- (1.) K. N. Ojha, J. Heard Sri Sanjeev Singh learned Counsel for the revisionist and Sri R. R. K. Mishra, learned AGA and have gone through the judgment of the Courts below.
(2.) INSTANT revision has been preferred against the order of conviction and sentence dated 9-7-1985 passed by the Special Judge, Varanasi, in Criminal Appeal No. 18 of 1985, Nanhakoo and another v. State and another, by which the order of conviction passed by the Chief Judicial Magistrate, Varanasi, on 3-1- 1985 in Case No. 20601 of 1983, Prabhu Narain v. Nanhakoo and another, under Section 323/504 and 506 IPC was confirmed but the sentence was modified from one month's RI to a fine of Rs. 500 against each of the appellant and in default of payment of fine to undergo imprisonment of 20 days. Both the Courts below have made a concurrent finding that due to enmity of pending litigation injury was caused to Prabhu Narain complainant resident of village Hathi Dih, police station Jansa, district Varanasi, on 10-3-1983 at about 1. 30 p. m. FIR of which was lodged on the same day at 2. 15 p. m. at police station Jansa, district Varanasi, under Sections 323, 504 and 506 IPC against the revisionist Nannhkoo and Mullar, who are also the residents of the same village. Doctor examined and three injuries were found on the body of the complainant. Prosecution examined Dharnidhar Pandey, Vinod Kumar and the complainant himself as eye-witnesses of the occurrence, constable Shambhu Nath Tiwari proved the G. D. entry and Chick FIR and Dr. M. K. Gupta proved the injury report of the complainant. After appreciation of evidence both the Courts below arrived at the conclusion that due to enmity when Nali and Arhar crop of the complaint was being damaged protest was made by him on which the revisionists caused injuries to the complainant in furtherance of their common intention. The learned Counsel for the revisionists submits that it is a case in which benefit of Section 4 of the Probation of First Offenders Act was to be given because one of the accused is very old and the other is younger in age and his whole life is ahead.
(3.) A perusal of the record shows that injuries were not caused all of a sudden. Litigation was going on between the parties. The parties are of the same village and this was the reason that Arhar crop and Nali is said to have been damaged and when protest was made by the complainant the revisionists caused injuries to the complainant, not only this threatening was also extended. When the parties are of the same village and there is some dispute about any land, the matter can be got decided on civil side or by calling for panchayat but to take law into their own hands and cause injuries to the complainant shows that there was already a mental preparation to cause injury to teach lesson. The learned Counsel for the revisionist has cited Section 4 of the Probation of First Offenders Act, which contemplates that: "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 persons 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 a 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. From Section 4 of the said Act it is clear that it is the nature of offence and the character of the offender, which is subject-matter of consideration in order to arrive at a conclusion whether it is expedient to release him on probation of good conduct or not. When both the parties are living in the same village and litigation is pending between them and daily they have an intention of harm being caused by one another, it cannot be said that it was an innocent act, which all of a sudden took shape of injury being caused. Therefore, in my opinion it is not a fit case in which it may be said that the conduct of the accused justifies for being given the benefit of Section 4 of the Probation of First Offenders Act.;