Challenging and impugning the judgement dated 27.11.2006 passed by the Additional District and Sessions (Fast Track Court-II), Coimbatore in C.A.No.366 of 2006 confirming the judgement dated 9.8.2006 passed by the Judicial Magistrate-II, Pollachi, in C.C.No.61 of 2001, this revision case is focussed.
2. The epitome of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus:-
As against which, appeal C.A.No.366 of 2006 was filed before the Additional District and Sessions Judge,(Fast Track Court No.2), Coimbatore, in Crl.A.No.366 of 2006, for nothing but to be dismissed by the appellate Court, confirming the conviction recorded and sentence imposed by the trial Court.
3. Challenging and impugned the judgements of both the Courts below, this revision case is focussed on various grounds, the gist and kernal of them would run thus:-
Even though the medical records would speak to the effect that even earlier to the registration of FIR treatment was taken, both the Courts below did not give due importance to that fact in giving the benefit of doubt in favour of the accused. The place of occurrence has not been clearly established by the prosecution, as there are were discrepancies in the evidence. As such, without applying the evidence, both the Courts below disposed of the matter, warranting interference by this Court.
4. The point for consideration is as to whether there is any perversity in applying the law in scanning and scrutinising the evidence and ultimately in arriving at the conclusion by both the Courts below.
5. Despite opportunities having been given, none represented the revision petitioner and the revision petitioner also was called absent.
6. The learned Government Advocate(Crl.Side) would advance his argument to the effect that absolutely there is no irregularity or impropriety on the part of both the Courts below in appreciating the evidence, recording the conviction and imposing the sentence.
7. At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Apex Court.
(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another, an excerpt from it would run thus:
"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under
Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
8. A bare poring over and perusal of the above judgements would exemplify and demonstrate that revisional Court should be reluctant to interfere with the findings recorded by the lower Court, unless there is perversity or non-application of law in appreciating the evidence.
9. In this case, the appellate Court correctly held that there was no doubt about the place of occurrence. However, in the FIR it is found stated that the occurrence took place Near Aanaimalai Mategoundan Koil Palam, Kaliapuram, but, the recitals in the body of the FIR would clearly reveal that when the injured approached the shop of Subbulakshmi for purchasing cake, the occurrence took place. As such, regarding the place of occurrence, there is no discrepancy at all and the appellate Court clearly dealt with that aspect and rendered its judgement to the effect that the benefit of doubt cannot be extended to the accused.
10. The occurrence took place on 2.9.2000 at about 16.30 hours, whereas, the FIR was lodged with the police on the same day at about 23.00 hours. Even before registration of the FIR, as revealed by the medical records, treatment was given to the injured at the Government hospital, Vetaikaranpudhur, at 6.30 p.m., so to say immediately after the occurrence, the Doctor gave treatment to the injured and simply because FIR was registered after giving medical treatment to the injured, there is no presumption that the case is a false one. The Courts are not expected to throw the baby along with bath water, but have to see the reality and assess the truth as found established. In the presence of truth, the technicalities would die in oblivion and mere irregularities cannot be pressed into service so as to extend the benefit of doubt. If at all there is any real doubt about the occurrence and there is failure on the part of the prosecution in placing the whole truth before the Court, the question of applying the benefit of doubt to the accused would arise. As such, in this case, both the Courts below appropriately and correctly applied the law and arrived at the conclusion that it was the accused, who inflicted injuries on the injured and caused grievous hurt to her and there is no doubt about it.
11. Regarding the sentence imposed by the lower Court and the appellate Court, one important aspect was failed to be noticed by them. Even though the accused was 20 years old at the time of perpetration of the offence, as revealed in the charge-sheet itself, nevertheless the significance of
Section 6 of the Probation of Officers Act was not taken into consideration by both the Courts below. It is therefore just and necessary to extract hereunder
Section 6 of the Probation of Offenders Act. Sub Section (2) of
Section 6 of the Act would run thus:
"6. Restrictions on imprisonment of offenders uner twenty-one years of age (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment )but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offence, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in sub-section (1) the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.
Unambiguously and unequivocally the above Section mandates that no sentence of imprisonment could be imposed on a person who is below 21 years of age, otherwise than in accordance with the procedure prescribed therein. But in this case, without complying with the mandates of Section 21 of the Probation of Offenders Act the lower Court imposed the sentence as referred to supra.
12. The learned Government Advocate invited the attention of this Court to the fact that the Magistrate considered the non-applicability of
Section 360 of Cr.P.C.as according to him the act perpetrated by the accused was ghastly in nature. I would also point out that the Magistrate fell into error in placing reliance on
Section 360 of Cr.P.C. because once Probation of Offenders Act is applicable in an area,
Section 360 of Cr.P.C. has no application. Hence, I would like to set aside the sentence imposed by the lower Court and as confirmed by the first appellate Court, in toto and remit the matter back to the Magistrate with the direction that he shall issue summons to the accused, secure his presence and thereafter call upon the Probation Officer to submit his report and after hearing both sides, with reference to the Probation Officer's report, a decision shall be taken as to whether in this case imposition of substantive sentence is necessary or not.
13. Accordingly, this revision is partly allowed, confirming the finding that the accused committed the offence under
Section 326 IPC, but setting aside the sentence imposed, and the matter is remitted back to the Magistrate, who is expected to dispose of the matter within three months from the date of receipt of copy of this order, adhering to
Section 6 of the Probation of Offenders Act.
The criminal revision case is ordered accordingly.
Msk To
1. The Additional District and Sessions (Fast Track Court-II), Coimbatore.
2. The Judicial Magistrate-II, Pollachi