Probation under Section 4 may replace imprisonment for Section 325 IPC convictions in appropriate cases.

On 13 May 2003, the petitioner, Nazrul Kabir, along with Abu Sufiyan and Fazlul Kabir, allegedly went to the de facto complainant’s residence, abused the complainant and his family, and attempted to damage a newly constructed meter house. When the injured person objected, the accused allegedly assaulted him, and the petitioner was specifically alleged to have struck him on the nose with a lathi, causing bleeding and grievous injuries requiring treatment at Kolkata Medical College Hospital.

An FIR was registered as Bagnan P.S. Case No. 84/06 dated 15 February 2006 under Sections 323/325/34 of the Indian Penal Code (“IPC”). After investigation, a charge-sheet was submitted under the same provisions, and cognizance was taken on 31 July 2006.

Following the examination of seven prosecution witnesses, the Judicial Magistrate convicted all three accused under Sections 325/34 IPC and sentenced each to two years’ simple imprisonment and a fine of ₹1,000, with a further two months’ simple imprisonment in default of payment of fine. On appeal, the Additional Sessions Judge acquitted Abu Sufiyan and Fazlul Kabir but affirmed the petitioner’s conviction and sentence. The petitioner therefore invoked the revisional jurisdiction of the High Court under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973, challenging both the conviction and sentence. He also sought the benefit of probation under the Probation of Offenders Act, 1958.

Whether the concurrent conviction of the petitioner under Sections 325/34 IPC was sustainable when the other two accused had been acquitted and the medical record did not name the petitioner as the assailant?

Whether, having regard to the petitioner’s circumstances, the age of the occurrence, absence of antecedents and relationship between the parties, the petitioner was entitled to release on probation under Section 4 of the Probation of Offenders Act, 1958?

The Court applied Sections 397/401 read with Section 482 Cr.P.C., governing the High Court’s revisional and inherent jurisdiction; Section 325 IPC, which penalises voluntarily causing grievous hurt; and Section 34 IPC, concerning acts done by several persons in furtherance of common intention.

The Court relied on the principle that the credible and unimpeached testimony of an injured eyewitness constitutes direct evidence and may sustain a conviction when corroborated by medical evidence.

For sentencing, the Court applied Section 4 of the Probation of Offenders Act, 1958, under which a person convicted of an offence not punishable with death or imprisonment for life may be released on probation after considering the nature of the offence and the character and circumstances of the offender.

The Court relied on State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659, and the cited Calcutta High Court decisions, recognising that probation may be appropriate in cases involving old, sudden and non-premeditated disputes, familial or personal relationships, absence of criminal antecedents and substantial lapse of time.

The Court rejected the challenge to conviction. It found that PW 3, the injured witness, specifically implicated the petitioner and attributed to him the blow on the victim’s nose. His testimony remained unshaken in cross-examination and was corroborated by the evidence of the treating doctor, PW 6, regarding the grievous injury.

The Court held that the absence of the assailant’s name in the medical document did not displace the substantive and credible eyewitness testimony. Accordingly, the concurrent findings of guilt under Sections 325/34 IPC were held to be correct and not warranting interference in revision.

However, while considering sentence, the Court noted that Section 325 IPC was not subject to the statutory exclusion in Section 4 of the Probation of Offenders Act, since it was not punishable with death or imprisonment for life.

The occurrence had taken place more than two decades earlier, arose out of a sudden altercation between near relatives, and there was no material indicating prior criminal antecedents. Applying the reformative purpose of the Probation of Offenders Act and the principle in Jagmohan Singh, the Court considered the petitioner a fit candidate for probation.

The petitioner was directed to execute a bond of peace and good behaviour for two years to the satisfaction of the Trial Court within one month.

If he failed to execute the bond, the Trial Court was directed to take steps to apprehend him and enforce the sentence imposed in the case in accordance with law.

The connected application was disposed of and the Trial Court records were directed to be transmitted for necessary action.