IMPORTANT POINT
The court emphasized the importance of considering the offender's background and the nature of the offence when exercising discretion in sentencing under the Probation of Offenders Act.

JUDGMENT :

1. Heard Mr. M. Biswas, 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 401 read with Section 397 of the Code of Criminal Procedure, 1973 is filed challenging the legality, propriety and correctness of the judgment dated 10.05.2011 passed by the learned Sessions Judge, Dhubri in Criminal Appeal being C.A.No. 10(1)/2010, whereby the learned Sessions Judge, Dhubri though upheld the judgment and order dated 26.02.2010 passed by the learned Sub-Divisional Judicial Magistrate (M), Bilasipara in G.R. (BBR.) Case No. 155/2002 by reducing the sentence imposed upon the petitioner No. 3, i.e., Jiten Barman from the Rigorous Imprisonment (RI) of 2 (two) years to imprisonment of 3 (three) months.

3. The facts of the case is that one Panchami Barman lodged an Ejahar at Bogoribari Police Station on 01.11.2002 alleging that on the said date at about 02:30 pm, the petitioners together entered into the land of the informant and while the informant, her husband and younger sister obstructed them, the petitioners assaulted over the chest and back side of the informant and also assaulted the husband of the informant over his head with iron rod. The petitioners also caused injury to the sister of the informant by lathi in different parts of her body.

4. After receipt of the aforesaid ejahar, the police registered Bagribari P.S. Case No. 155/2002 under Sections 447/325/326/34 IPC and the case was investigated. Subsequently, on completion of the investigation, the concerned Investigating Officer submitted charge-sheet against all the accused/petitioners under Sections 447/323/325/34 IPC. Thereafter, the accused/petitioners appeared before the learned Court below on receipt of summons and the charge under Sections 447/323/325/34 IPC were explained to the accused/petitioners, which they pleaded not guilty and accordingly, the trial was proceeded. Thereafter, the learned Sub-Divisional Judicial Magistrate (M), Bilasipara by the judgment dated 26.02.2010 found the petitioners guilty of commission of offence under Sections 447/323 IPC and convicted & sentenced them to pay a fine of Rs. 500/- for commission of offence under 447 IPC and Rs. 1,000/- for commission of offence under Section 323 IPC and in default of payment of fine, sentenced them to undergo 1 (one) month Simple Imprisonment (SI). However, the petitioner No. 3, was sentenced to undergo 2 (two) years for RI and to pay Rs. 1,000/- as fine and in default of payment of fine, to undergo 1 (one) month additional imprisonment.

5. Being aggrieved with the impugned judgment dated 26.02.2010, the accused/petitioners preferred an appeal being C.A. No. 10(1)2010 before the learned Sessions Judge, Dhubri. After hearing the learned counsels for the parties and on perusal of the record, the learned Sessions Judge, Dhubri vide judgment dated 10.05.2011 partly allowed the appeal by reducing the sentence of the petitioner No. 3, from the RI of 2 (two) years to imprisonment of 3 (three) months and Rs. 1,000/- as imposed earlier for commission of offence under Section 325 IPC.

6. Being aggrieved, the present petition is filed.

7. Mr. Biswas, 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.

8. Mr. Biswas, learned counsel for the petitioners argues that the petitioners are entitled for 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. Biswas, learned counsel further submits that the accused/petitioners have not been convicted previously for any offence and they are first time offenders.

9. Mr. Biswas, learned counsel for the petitioners further contends that the accused/petitioners and th