IMPORTANT POINT
The court emphasized that sentencing should consider individual circumstances and not be mechanical, allowing probation for first-time offenders.

JUDGMENT :

1. Heard Mr. N. Uddin, learned counsel for the petitioners and Mr. P. Borthakur, learned Additional Public Prosecutor (APP), Assam for the State.

2. The present revision petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure, 1973 is filed challenging the legality, propriety and correctness of the judgment and order dated 23.12.2011 passed by the learned Judicial Magistrate, 1st Class, Morigaon in connection with GR Case No. 1116/2008 arising out of Lahorighat P.S. Case No. 191/2008 convicting and sentencing the petitioners to undergo Rigorous Imprisonment (RI) for 3 (three) months and also to pay fine of Rs. 1,000/- each and in default of payment of fine, to undergo Simple Imprisonment (SI) for another 10 (ten) days for the commission of offence under Sections 323/34 IPC. Further, the challenge is against the judgment and order dated 19.04.2012 passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 03/2012 upholding the judgment and order dated 23.12.2011 passed by the learned Judicial Magistrate, 1st Class, Morigaon.

3. The prosecution story in nutshell is that on 01.10.2008 at around 08:30 pm, during the distribution of collected money for Imam of Barbar Masjid, the accused/petitioners for the reasons of a previous dispute attacked the father of the informant on his head and injured him. On the basis of such allegation, Lahorighat P.S. Case No. 191/2008 under Sections 143/341/325 IPC was registered and accordingly, the case was investigated. Subsequently, on completion of the investigation, the concerned Investigating Officer submitted charge-sheet against the accused/petitioners including the four other accused persons under Sections 143/323/34 IPC. Thereafter, the accused/petitioners appeared before the learned Court below on receipt of summons and the charges under Sections 143/323/34 IPC were explained to them, which they pleaded not guilty and accordingly, the trial was proceeded. Thereafter, the learned Judicial Magistrate 1st Class, Morigaon by the judgment dated 23.12.2011 found the accused/petitioners herein guilty for the commission of offence under Sections 323/34 IPC and convicted & sentenced them as recorded herein above and the same was also affirmed by the learned Appellate Court vide the judgment and order dated 19.04.2012.

4. Being aggrieved, the present petition is filed.

5. Mr. Uddin, learned counsel for the petitioners, at the outset, submits that he shall not challenge the impugned order of conviction on merit and shall confine his submission in the appeal only in respect of the order of sentence.

6. Mr. Uddin, learned counsel for the petitioners argues that the petitioners are entitled for the benefit under Sections 360/361 Cr.P.C. and under the Probation of Offenders Act, 1958 (hereinafter referred to as Act, 1958) which had not been granted by both the learned Courts below. Mr. Uddin, learned counsel for the petitioners further submits that the accused/petitioners have not been convicted previously for any offence and they are first time offenders.

7. According to Mr. Uddin, learned counsel for the petitioners though the learned Trial Court ought to have considered for granting the benefit under the Act, 1958, however, the same was rejected only on the consideration of gravity of the alleged offence and at the same time, the learned Appellate Court even did not consider to grant benefit to the accused/petitioners. However, the learned Appellate Court categorically concluded that the incident happened as a result of clash between the parties for non-parting of money which had been collected for Imam of Barbar Masjid and accordingly, convicted and sentenced the accused/petitioners acquitting the above named co-accused.

8. It is further contended by the learned counsel for the petitioners that the accused/petitioners are having a right of consideration under the Act, 1958 and therefore, the rights of the petitioners have been violated. It is argued