Ajit Singh Bains,J. - (1.) KAKA son of Banta Ram and Buta son of Rachhpal, aged 17 and 18 years respectively, have filed this appeal against their conviction under section 304, Part II, read with section 34, Indian Penal Code, and sentence of eight year's rigorous imprisonment each, passed by the learned Sessions Judge, Ludhiana per his judgment dated list August, 1972. Banta Ram father of Kaka appellant was also tried under section 302 read with section 34, Indian Penal Code, but he was given the benefit of doubt and acquitted by the learned Sessions Judge, Ludhiana. The broad facts of the case, as narrated by Mohan Singh, P.W. 3, are that Banta Ram is the father of Kaka Singh accused and Buta Ram accused is their neighbour. He had known the accused for the last 20 years. Kaka appellant plies a rehri on which he transport goods. The complainant and his deceased brother Bhajan Singh had taken the land of Harbans Singh situated in the area of village Salim Tabri near G.T. road by -pass Ludhiana for cultivation and had sown potatoes in that land. It is alleged that two days before the Lohri of 1972, i.e., on 11th January 1972, they harvested their potato crop from that land and put those potatoes in bags which subsequently they sold to the ahrtis (commission agents). Two rehris were parked in their land for the cartage of the bags. In the meantime Kaka appellant also brought his rehri there and told them that he would put potato -bags on his rehri as directed by ahrtis. On this, Bhajan Singh deceased replied that they would transport the potato bags on their own rehris and thus would charge freight from the ahrtis. Kaka then returned along with his rehri telling that it was not fair on their part to transport potato bags on their rehris. After the departure of Kaka, they transported the potato -bags on their own rehris to the shop of ahrtis. Mohan Singh further stated that on the same day at about 8 P.M. he and Bhajan Singh deceased were proceeding towards village Bhaura, where their servant Bahadur Singh was residing so as to tell him to irrigate the land during the night from the tube -well because in the morning the electricity current would not be available. Village Bhaura is at a distance of about 1 1/2 furlongs from their land. It is alleged that when they reached the by -pass chowk, they found Kaka, Buta and Banta Ram appellants, armed with sotas standing there. There was electric light in the chowk. Kaka accused gave out a lalkara that Bhajan Singh was going and that be should be taught a lesson for not allowing him to transport potato -bags on his rehri On this all the three accused attacked Bhajan Singh. Kaka gave a sota blow on the left side of the head of Bhajan Singh while Buta Singh gave a sota blow on the right side of the head of Bhajan Singh, with the result that the latter fell down on the ground. As he was lying down, Banta Ram also gave him two sota blows, one on his right leg and the other on his right forearm. On hearing the alarm raised by Mohan Singh, Bachan Singh P.W. 7 and Mohinder Singh P.W. 8 reached the place of occurrence. Bachan Singh and Mohinder Singh tried to intervene, but all the three accused threatened them that in case they came nearer, they would also meet the same fate. Thereafter some other persons also collected there and on seeing them, the three accused ran away from the spot, with their respective sotas. Mohan Singh, Bachan Singh and Mohinder Singh then placed Bhajan Singh injured in a rickshaw and took him to his house. They laid Bhajan Singh on a cot and gave him first aid However, Bhajan Singh injured was not taken to the hospital in the night as they thought that the injuries of Bhajan Singh were not serious. The matter was also not reported to the police. In the next morning when the condition of Bhajan Singh became serious as he became unconscious, they took him by a truck to the civil hospital, Ludhiana, where he was got admitted as an in door patient. Dr. G.S. Malhota, P.W. 1 examined Bhajan Singh injured at 9.05 a.m. on January 12, 1972, and found four injuries on his person. Injuries Nos. 1 and 2 were kept under observation while injuries Nos. 3 and 4 were declared as simple. In his opinion, all the injuries were caused with blunt weapon. The time that elapsed between injuries and examination was within 12 hours. He prepared the medico -legal examination report, Exhibit P.B., indicating the seats of the injuries in the pictorial diagram, Exhibit PB/1, and sent the same to the police -station Saddar, Ludhiana, on the basis of which A.S.I., Om Parkash (P.W. 9) investigated the case. He went to the Civil Hospital, Ludhiana, at about 2.30 p.m. on January 12, 1972, and found that Bhajan Singh was unable to speak. The doctor on his request also opined that Bhajan Singh injured was unconscious and thus unable to make a statement. Accordingly, the statement of Mohan Singh P.W. 3 was recorded by A.S.I. Om Parkash (P.W. 9), which is Exhibit P.G., and on its basis a report in the roznamcha was recorded on January 13, which 1972, Exhibit P.J. Bhajan Singh in the meantime was taken by his away relatives from the hospital on January 17, 1972. He was got re -admitted on January 18, 1972 at 12.12 A.M. in the C.M.C. Hospital, Ludhiana. Bhajan Singh died in the hospital on January 20, 1972 of 10.45 P.M. All the three accused were challaned and tried by the learned Sessions Judge, with the aforesaid result.
(2.) ALL the accused, when examined under section 342, Criminal Procedure Code, denied the prosecution allegations against them and pleaded innocence. They further stated that the eye -witnesses were interested persons who had deposed falsely against them on account of misguided suspicion and that they never committed the crime. Learned Counsel for appellants did not challenge the conviction but prayed that since the appellants are of tender age, they be released under the provisions of Probation of Offenders Act, 1958. Section 6 of the said Act reads as follows : - - Restrictions on imprisonment of offenders under twenty -one years of age - - (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 sentenced 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 should 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 -section (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. A bare reading of this section makes it clear that the persons under the age 21 years found guilty of an offence punishable with imprisonment but not with imprisonment for life, the Court will not sentence them to imprisonment. However, the Court can sentence them only if the Court is satisfied that the nature of the offence and the character of the offender is such that it is not desirable to deal with him under section 3 or section 4, and it shall record its reasons. Sub -section (2) says that for satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub -section (1), the Court shall call for a report from the probation officer and may consider it and also any other information available to it relating to the character and physical and mental condition of the offender. In fact, the intention of the legislature in passing the Probation of Offenders Act, 1958 is clear. The legislature has emphasised on the reformation and rehabilitation of the offender as a useful and self reliant member of society without subjecting him to the deleterious effects of jail life. If persons under 21 years of age are sent to jail to undergo imprisonment, it may be that they may turn out hardened criminals. So the legislature has provided that in the case of persons of tender age, i.e. less than 21 years of age, the Court shall release them under the provisions of the Probation of Offenders Act by simply directing them to enter into a bond with or without surety for a specified period and during that period they should keep the peace and be of good behaviour. In the present case, it appears that the provisions of section 6 of the Act were not brought to the notice of the learned trial Judge as no reasons have been recorded by him in his judgment for awarding sentence of imprisonment to the appellants. In view of the foregoing reasons, the provisions of section 6 of the Probation of Offenders Act are attracted as Buta is 18 years and Kaka is only 17 years of age. It is, therefore, a fit case to release the appellants on probation. Section 6 of the Act is mandatory. Courts have no option except to comply with it.
(3.) ACCORDINGLY , I uphold the conviction of Kaka and Buta appellants but instead of sentencing them to imprisonment, release them on probation of good conduct on their entering into a bond in the sum of Rs. 2,000/ - each with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Ludhiana, to appear and receive sentence when called upon, for a period of three years, and in the meantime to keep the peace and be of good behaviour. Except with this modification, the appeal fails and is hereby dismissed The appellants are on bail and they need not surrender to their bail -bonds.;