Ayyangar, J. - (1.) This appeal by special leave granted by us on September 7, 1962 raises for consideration the proper construction of Ss. 6 and 11 of the Probation of Offenders Act, 1958 (Central Act XX of 1958) hereinafter called the 'Act'.
(2.) The appellants are two brothers- Ramji and Basist. It was alleged that these two assaulted one Sidhnath (P.W. 2) who as a result suffered grievous injuries. Basist, the younger brother was charged before the Assistant Sessions Judge, Arrah with the commission of an offence under S. 307, Indian Penal Code for the reason that the injury he inflicted was a bhala-blow under circumstances "that if by that act death had been caused he would have been guilty of murder", and as the injury actually sustained was grievous he was further charged with causing grievous hurt under S. 326, Indian Penal Code. The elder brother who too caused hurt to the victim was charged under S. 324, Indian Penal Code. The Assistant Sessions Judge held that prosecution case as alleged established against both the accused. It is now necessary to mention that according to the Sessions Judge Ramji was 21 years old and Basist 19. Section 6 of the Act enacts; "6. (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-s. (1) the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender." The terms of this section excluded the application of its provisions to Basist who was found guilty of an offence punishable with imprisonment for life (both Ss. 307 and 326, Indian Penal Code). He accordingly sentenced Basist to undergo rigorous imprisonment for six years under S. 307, Indian Penal Code and to four years under S. 326, Indian Penal Code, the sentences to run concurrently. As regards Ramji, the elder brother he considered it inappropriate to afford him the benefit of this provision and recorded his finding on this matter in these terms: "So far as accused Ramji is concerned I am not inclined to take recourse to the Probation of Offenders Act, 1958 because the act of assault on the informant on the part of this accused is premeditated." He sentenced him to undergo rigorous imprisonment for two years under S. 324, Indian Penal Code.
(3.) Both the accused filed an appeal to the High Court. The learned Single Judge who heard the appeal considered the evidence in the case and the circumstances in which the injury was inflicted and held that there was no intention on the part of Basist to cause grievous hurt to P.W. 2, with the result that as against him the conviction under S. 307 as well as that under S. 326, Indian Penal Code were set aside and in their place he recorded a finding of guilty in respect of an offence under S. 324, Indian Penal Code for which he imposed a sentence of rigorous imprisonment for two years. As against Ramji the conviction was maintained but being informed by Counsel that accused had been suffering from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months.;