IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE

LUNGLEI JUDICIAL DISTRICT : LUNGLEI

Crl.Revision No. 18 of 2016

In Crl.Tr. No58 of 2016
U/s 323/506 Part II IPC r/w
43(2)MLPC Act

PRESENT
Helen Dawngliani
Addl.District & Sessions Judge

C.Zochhuanawma
S/o C.Lalhmunmawia
R/o Farm Veng, Lunglei
Mizoram ……… Revision Petitioner

Versus

State of Mizoram ………. Respondent

Date of hearing ……… 27.6.2016

Date of judgment ……… 28.6.2016

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 APPEARANCE

For the Revision Petitioner ……… Ms.JothansangiTlau,

Advocate
For the Respondent ……… Mrs.C.Vanlalmuani, Addl.PP

JUDGMENT AND ORDER

1. This revision petition is preferred from by the petitioner against the

sentence passed by the Ld. Chief Judicial Magistrate while convicting the
petitioner for the offence u/s 323/506 Part II IPC r/w 43(2) MLPC Act vide Order
dt. 29.4.2016 in Crl.Tr. No.58 of 2016 wherein for his conviction u/s 506 Part II
IPC the petitioner was sentenced to undergo simple imprisonment for 5 years
with fine of Rs.1000, in default to further undergo simple imprisonment for 10
days. For his conviction u/s 323 IPC, the petitioner was sentenced to undergo
simple imprisonment for 8 months with fine of Rs.1000/- in default to further
undergo simple imprisonment for 10 days. For his conviction u/s 43(2)MLPC Act,
the petitioner was sentenced to undergo simple imprisonment for 6 months with
fine of Rs.1000/- in default to further undergo simple imprisonment for 10 days .
The sentences were ordered to run concurrently.

2. Record is received from the Ld. Chief Judicial Magistrate, Lunglei.

3. Ms.Jothansangi Tlau Advocate is assigned under the legal aid scheme to

represent the revision petitioner.

4. Heard the Ld. Counsels.

Ms.Jothansangi Tlau Ld. Counsel for the revision petitioner submitted that inspite
of the fact that there is no medical evidence of the victims sustaining any hurt,
the Ld. Trial Court convicted the revision petitioner for the offence u/s 323 IPC.

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There is also no evidence that the accused threatened to kill his kin and no
witnesses deposed to this effect. The Ld. Counsel submitted that the sentence
of 5 years simple imprisonment with fine of Rs.1000/- i/s SI for 10 days imposed
by the Ld. Trial court is too severe and does not commensurate with the offence.
The Ld. Counsel submitted that even though the petitioner may not have a clean
criminal record, yet keeping in mind the offence and the evidence in hand, the
sentence imposed is too severe. The Ld. Counsel further argued that this is the
first time the petitioner is convicted u/s 323 IPC and sec.506 IPC. The Ld.
Counsel also submitted that though the petitioner is accused of hitting his father
and brother with a firewood, yet, when they were medically examined on the
next day of the incident, there was no finding of injury and as such it appears
that they have exaggerated their story. Relying on the application of the
petitioner the Ld. Counsel submitted that the petitioner has kidney problem with
hypertension. Since no medical officer or at least a nurse is posted in the Jail he
requires treatment outside.
On the other hand, Mrs.C.Vanlalmuani the Ld. Addl.PP submitted that the
accused clearly pleaded guilty to the fact that he had beaten his father and
brother. It is seen from the record that he stated that he hit them with a
firewood. The evidence shows that the accused/petitioner is a nuisance to his
family and keeping in mind the nature of the petitioner the sentence of
imprisonment imposed upon the petitioner appears to be reasonable and that no
interference is called for.

5. In the case at hand, charge was framed u/506 Part II/323 B IPC r/w 43
(2) MLPC Act by the Ld. Trial Court. The revision petitioner pleaded guilty to the
charge by stating “ ka jail tang chhuak hi phalna tel lovin zu ka in a, ka pa te ka
u te thingfak in ka vua a, hliam pawh an tuar tih hi a dik, ka rui em ani”.

6. In the given facts and materials on record, this court while exercising the
power u/s 397 Cr.PC can look into the correctness, legality or propriety of finding
sentence or Order. It may re-iterated that the limited prayer of the revision
petitioner in this application is for reduction of sentence.

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7. In the instant case as mentioned before for his conviction u/s 506 Part-II
IPC the accused is imposed sentence of simple imprisonment for five years with
fine of Rs.1000/-, IDSI for 10 days. For his conviction u/s 323 IPC he is imposed
simple imprisonment for 8 months with fine of Rs.1000/-, IDSI for 10 days. For
his conviction u/s 43(2) MLPC Act the petitioner is imposed simple imprisonment
for 6 months with fine of Rs.1000/-, IDSI for 10 days. The sentence were
directed to run concurrently.

8. Upon perusal of the record and more particularly the impugned judgment
and order, it is notice that while convicting the petitioner for the offence u/s 506
Part II IPC, higher/enhanced punishment was inflicted upon him keeping in mind
his past convictions which were brought on record. In this connection, it may be
pointed out that as per section 211(7) Cr.PC, if the accused, having been
previously convicted of any offence, is liable, by reason of such previous
conviction, to enhanced punishment, or to punishment of a different kind, for a
subsequent offence, and it is intended to prove such previous conviction for the
purpose of affecting the punishment which the court may think it fit to award for
the subsequent offence, the fact date and place of the previous conviction shall
be stated in the charge; and if such statement has been omitted, the court may
add at any time before sentence is passed. But in this case, this was not done
by the Ld. Trial Court at the time of framing of charge.

9. At paragraph 4 of the Order dt.29.4.2016 the Ld. Trial court has

mentioned that in view of the previous conviction of the accused, ‘severe
punishment’ is called for. Though the term ‘enhanced punishment’ is not used, it
has the same implication in as much as it would mean punishment more than
what is usually inflicted in the absence of such criminal antecedent. In this
regard, section 298 Cr.PC provides how previous conviction or acquittal has to be
proved. Upon examination of the record, it is noticed that there was no such
proof as mandated u/s 298 Cr.PC before the court proceeded to inflict severe
punishment in view of the previous convictions of the accused.

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10. It is also noticed that before the Ld. Trial Court proceeded to pass
sentence, the accused was not heard in person. In this regard, the honb’le Apex
Court in the case of Allauddin Mian & Ors versus State of Bihar reported
in 1989 AIR 1456 has held that the requirement of hearing the accused is
intended to satisfy the rule of natural justice. It is all the more necessary since
the courts are generally required to make a choice from a wide range of
discretion in the matter of sentencing. Sentence hearing serves dual purpose; it
satisfies the rule of justice by affording the accused an opportunity of being
heard on the question of sentence and at the same time, it also helps the court
in choosing the sentence to be awarded. The provision is clearly mandatory and
should not be treated as a mere formality.

11. In the case at hand, upon perusal of the impugned Judgment & Order, it
appears that the manner of hearing the accused on the question of sentence did
not serve the intended purpose.

12. For the reasons indicated in the preceding paragraphs, this court is of the
view that sufficient ground exist to interfere with the sentence imposed by the
Ld. Trial Court. At the same time, it may be kept in mind that from the evidence
and materials on record, it appears that the petitioner has been creating problem
to his family. It is seen from the evidence that when he is at home, his family
members cannot live in peace. It is also see that the present incident arose on
the very day when he was released from jail. These considerations cannot be
lost sight of at the time of imposing sentence.

13. Accordingly, while maintaining the conviction u/s 506 Part II IPC Act,
sentence imposed is interfered and modified as follows:-

For his conviction u/s 506 Part II IPC accused C.Zochhuanawma is

sentenced to undergo simple imprisonment for 2 years and 6 months

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 with fine of Rs.1000/- in default to further undergo simple
imprisonment for 1 week.

14. The conviction and sentence passed for the offence u/s 323 IPC r/w
43(2)MLPC Act are not interfered.

15. Sentences passed for the three offences shall run concurrently.

16. With the above Order, the revision petition stands allowed to the extend
indicated above.

17. Case stands disposed off. Case records be consigned to the record
room.

Sd/-(HELEN DAWNGLIANI)
Additional Sessions Judge
Lunglei Judicial District: Lunglei

Memo No. Crl. Rev. No.18/2016/AD&SJ/(L)/……… : Dated Lunglei, the 28th June , 2016
Copy to:

1. C.Zochhuanawma through Ms.Hani Jothansangi, Advocate.

2. The District & Sessions Judge, Lunglei Judicial District, Lunglei.
3. The Addl. Public Prosecutor, Lunglei.
4. The Superintendent, District Jail, Lunglei.
5. P.I. of Police, Lunglei.
6. P.A to Additional District & Sessions Judge, Lunglei Judicial District, Lunglei.
7. Registration Section.
8. Case Record.

PESHKAR

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