IMPORTANT POINT
The court emphasized the importance of considering the Probation of Offenders Act, 1958 during sentencing, highlighting the need for discretion based on the nature of the offence and the offender's background.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. N Mahajan, learned counsel for the petitioner. Also heard Mr. B Sarma, learned Additional Public Prosecutor, Assam.

2. The present application is filed assailing a judgment and order dated 29.06.2011 passed by the learned Judicial Magistrate, 1st Class in GR case No. 2/2009 convicting and sentencing the petitioner to undergo Rigorous Imprisonment for 6 months under Section 324 IPC and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer another one month of Simple Imprisonment.

3. Aforesaid judgment and sentence was challenged by the petitioner before the learned Additional Sessions Judge (FTC), Biswanath Chariali in Criminal Appeal No. 18(S-3)/2011. The said appeal also met with the same fate, however, the learned Additional Sessions Judge, Biswanath Chariali convicted the accused petitioner under Section 447 of IPC and sentenced him to suffer Rigorous Imprisonment for 3 months and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further Simple Imprisonment of 15 days. The aforesaid two judgments are challenged before this Court.

4. The prosecution story in a nutshell is that on 31.12.2008 at around 12.30 pm the accused/ petitioner, namely, Porag Borah caused bodily injured on the left hand side and on the backside of the son of the informant by using a sharp ‘Khukuri’ inside the premises of the school, namely, Morning Star English School. Accordingly, the FIR was filed before the Ghahigaon Out Post vide GDE No. 491 dated 31.12.2008 and the same was forwarded to the Officer-in-Charge of Gohpur Police Station and registered as Gohpur PS case No. 2/2009 under Section 447/326 IPC.

5. The learned Judicial Magistrate, 1st Class, Biswanath Chariali issued process, the accused appeared before the learned Magistrate on receipt of summons. Formal charges were framed under Section 447/448/324 of IPC, which the accused pleaded not guilty and claimed to be tried.

6. To bring home the charges, the prosecution examined as many as seven witnesses along with one court witness. The accused was examined under Section 313 Cr.P.C. The accused/petitioner did not adduce any evidence in his favour.

7. After appreciation of the evidence, the learned trial Court had convicted the petitioner as recorded hereinabove.

8. On appeal, the learned Additional Sessions Judge re-appreciated the evidence in details and came to the conclusion as recorded hereinabove and modified the sentence.

9. Feeling aggrieved by the aforesaid judgment, the present revision petition is preferred by the petitioner.

10. Mr. Mahajan, learned counsel for the petitioner, 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.

11. Mr. Mahajan, learned counsel argues that the petitioner is entitled for benefit under Section 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. Mahajan, learned counsel further submits that accused petitioner has not been convicted previously for any offence and he is first time offender.

12. According to Mr. Mahajan, learned counsel though the learned trial Court ought to have considered granting benefit under the Act, 1958, however, 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 grant of benefit to the petitioner though the conviction and sentence was modified.

13. It is further contended by the learned counsel for the petitioner that the accused is having a right of consideration under the Act, 1958 and therefore, the right of the petitioner has been violated. It is argued that the learned Appellate Court did not invoke the provisions of the Act, 1958 nor the provisions of Section 360/361 Cr.P.C while sentencing the accused petitioner and