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CASE NO.: Appeal (crl.)  1214 of 2005

PETITIONER: Sita Ram Paswan & Anr.                                

RESPONDENT: State of Bihar                                                 

DATE OF JUDGMENT: 19/09/2005

BENCH: Ashok Bhan & P.P. Naolekar

JUDGMENT: J U D G M E N T  (arising out of SLP (Crl.) No.3214 of 2005)

P.P. NAOLEKAR, J.

               Leave granted.

               Accused-1, Sitaram Paswan and Raj Kumar, Accused-2  were convicted and sentenced for imprisonment for three months  under Section 323 I.P.C. and six months under Section 324 read with  Section 34 of the Indian Penal Code.         The prosecution case, in short, is that  PW-5, Paltoo Paswan  lodged the FIR, alleging therein that on 28.7.1998 at about 10.00 AM   when his wife was proceeding towards the market, she fell in the  ditch, filled with water  on the way and was not visible.  She made  hue and cry as to who had dug the ditch.  On this A-1 came out of his  house and replied that he has dug the ditch. Smt. Krishna Devi, PW-2  scolded him and asked him to fill up the ditch.  On this, A-1  assaulted  Krishna Devi with fists.  She cried for help, her husband, Paltoo  Paswan,  PW-5 along with his son Vijay Kumar, PW-4 rushed at the  spot.  Seeing them, A-1 came with sword along with Raj Kumar when  they reached the  spot.  Raj Kumar assaulted Paltoo Paswan,   PW-5  on the head with sword and also assaulted Vijay Kumar with sword  and  Sitaram Paswan, A-1,  with Danda.

               The accused-appellants faced trial.  As many as 6  witnesses were examined by the prosecution.  Witnesses, PW-1  Kalika Singh and PW-3, Raghubansh Raut are independent witnesses  whereas PW-2, Krishna Devi, PW-4, Vijay Kumar and PW-5, Paltoo  Paswan are related and injured witnesses.  The statements recorded of  these witnesses are more or less similar.  They stated that Sitaram  Paswan assaulted Krishna Devi on her mouth with fists.  Thereafter  Paltoo Paswan and Vijay Kumar reached there.  Raj Kumar took  sword from the hands of Sitaram and gave blows on the head of  Paltoo Paswan and Vijay Kumar, PW-5 and PW-4 respectively.   Assault was also made with Danda.  The medical evidence produced  has corroborated the statements of these witnesses.                 The defence version is that the accused person have been  falsely implicated.  The Courts, after consideration of the entire  evidence on record, have found the evidence reliable and accordingly  convicted the appellants.  The conviction and sentence was  unsuccessfully challenged before the High Court.  However, the High  Court acquitted the appellant of the charge under Section 341 IPC and  reduced the sentence to three months  from six months under Section  323, IPC and six months from one year under Section 324 read with  Section 34, Indian Penal Code in view of the nature of  offence which

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took place suddenly and as there was no previous conviction against  them.                 Thus the three Courts have already held that the  prosecution has proved its case by cogent evidence and we do not find  any ground to take a different view in the matter and acquit the  accused-appellants.                   It is urged before us by the learned counsel for the  appellants that the prayer for releasing the appellants on probation   under  the Probation of Offenders Act 1958  should have been  considered by the Court when such request was made before the  Magistrate and the same is apparent from the order of the Magistrate  when he records: "learned defence counsel has submitted that the  convicts have no previous conviction and they are young, so  considering the nature of the offence, they may kindly be released  under Section 3 of Probation of Offenders Act". Learned counsel for  the appellants  submitted before this Court that having regard to the  circumstances of the case, including the nature of the offence and the  character of the offender, it is expedient to release the accused persons  on probation by this Court.                   Section 4 of the Probation of Offenders Act empowers  the Court to release a convicted person on his entering into a bond  with or without sureties  on probation when he  is found guilty of  committing of any offence, not punishable with death or  imprisonment for life.  Relevant portion of Section 4 of the Probation  of Offenders Act, 1958 reads thus: "Section 4 - Power of Court to release certain  offenders on probation  of good conduct - (1)  When  any person is found guilty of having  committed an offence not punishable with death  or imprisonment for life and the Court by which  the person is found guilty is of opinion that,  having regard to the circumstances  of the case  including the nature of the offence and the  character of the offender, it is expedient to  release him on probation of good conduct, then,  notwithstanding anything contained in any  other law for the time being in force, the Court  may, instead of sentencing him at once to any  punishment, direct that he be released  on his  entering into a bond, with or without sureties, to  appear and receive sentence when called upon  during such period not exceeding three years, as  the Court may direct, and in the meantime to  keep the peace and be of good behaviour."                 For exercising the power which is discretionary, the Court has to  consider  circumstances of the case, the nature of the offence and the  character of the offender.  While considering the nature of the offence,  the Court must take a realistic view of the gravity of the offence, the  impact which the offence had on the victim.  The benefit available to  the accused under Section 4 of the Probation of Offenders Act is  subject to the limitation embodied in the provisions and the word  "may" clearly indicates that the discretion vests with the Court  whether to release the offender in exercise of the powers under  Section 3 or 4 of the Probation of Offenders Act, having regard to the  nature of the offence and the character of the offender and overall  circumstances of the case.  The powers under Section 4 of the  Probation of Offenders Act vest with the Court when any person is  found guilty of the offence committed, not punishable with death or  imprisonment for life.  This power can be exercised by the Courts  while finding the person guilty and if the Court thinks that having  regard to the circumstances of the case, including the nature of the  offence and the character of the offender, benefit should be extended  to the accused, the power can be exercised by the Court even at the  appellate or revisional stage and also by this Court while hearing

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appeal under Article 136 of the Constitution of India.                   The fact as emerged in this case.  It is apparent that the  incident occurred at the spur of the moment and is traverse in nature.   There is no material on record to indicate that the appellants have any  previous conviction.  In the absence of such evidence, we treat  appellants as first offenders.  A-1, namely, Sitaram Paswan has made  the assault using Danda and the fists and caused simple injuries to  Krishna Devi, Paltoo Paswan and Vijay Kumar, PW-2, PW-5 and  PW-4 respectively.  He has been convicted with the aid of Section 34,  under Section 324  and under Section 323 I.P.C. whereas the case of  A-2 Raj Kumar is different.  He has caused injuries to Paltoo Paswan  and Vijay Kumar using the sword.  Injury found on Paltoo  Paswan is  sharp cuts on left side of the head and on Vijay Kumar, cut injury on  the left side of the head.                 Having regard to the aforesaid circumstances and taking  the overall view of the matter, we feel that the accused-appellant  Sitaram Paswan is entitled for the benefit under Section 4 of the  Probation of Offenders Act.  Therefore, while confirming his  conviction, we direct that he be released on probation on his entering  into a bond for Rs.10,000/-  within the period of three weeks from  today  before the Court of S.D.J.M. (Sadar),  Sitamarhi, for keeping  peace and good behaviour.  The appeal of the Raj Kumar is dismissed  and he would surrender forthwith.