B. R. ARORA, J. - (1.) THIS appeal is directed against the judgment dated 7th of December, 1979, and 14th of December, 1979, passed by the Sessions Judge, Jodhpur, by which the learned Sessions Judge, convicted the appellant Tarachand under section 304 Part II I. P. C. and awarded him a sentence of rigorous imprisonment for five years.
(2.) THE incident, which led to the prosecution of the present appellants along with Sohanlal and Munnalal, took place on 8th of August, 1979. According to the prosecution on the day of 'raksha Bandhan' on 8th of August, 1979, P. W. 3 Hukamchand, accused Tarachand, and Munnalal, the brother Mohanlal P. w. 6 were plying kites on the roof of their house. P. W. 2 Surajkanwar was also there on the roof. Hukamchand cut the string of Manoharlal's kite, upon which, Manoharlal gave a fist blow to Hukamchand and Hukamchand, thereupon cried and on hearing the crices of Hukamchand, his father Kishanlal, went up-stairs, reprimanded Manoharlal and sent Manoharlal his brother Tarachand and Munnalal down-stairs. Kishanlal took Hukamchand with him and made him to sit in the room. After coming down-stairs, Manoharlal P. W. 6 narrated the incident to accused Mohanlal. THEreupon, accused Sohanlal asked Kishanlal to come down-stairs in the chowk. When Kishanlal came in to the chowk, accused Sohanlal took Kishanlal to took, and all these three accused made an assault on Kishanlal and struck him against the wall. Accused Sohanlal also asked Tarachand to bring a dagger. Accused Tarachand brought a dagger from the room and inflicted injury with that dagger to Kishanlal. On account of this injury, there was a profuse bleeding. Kishanlal was brought to the Mahatma Gandhi Hospital, Jodhpur, where he was admitted for treatment, but the injury proved fatal and Kishanlal died on account of this injury. After the death, post mortem of Kishanlal was conducted by Dr. R. K. Gehlot and he found following injury on the body of Kishanlal:- "incised wound 5. 0 c. m. x 2. 0 cm. on the anterior aspect of left shoulder region about 5. 0 cm. below and medial to acromian process. Subcutaneous tissue, muscles underneath were cut, running obliquely back wards, medially across the anterior axillary fold reaching to third intercostal space in the mid-axillary line of its course tissues are clean cut, entering into the thoraxic cavity through third intercostal space in the mid-axillary line, the intercostal muscles are clean cut and underneath plaura was clean cut and there was incised wound 2. 0 c. m. x 0. 7 c. m. which was 2. 5 c. m. deep on the lateral aspect of left lung on its upper lobe, obliquely downwards' backwards and medially. THEre was about 1. 5 litre of blood present in the left pleural cavity, the left lung was collapsed in the cavity. " THE prosecution, in support of its case produced four eye-witnesses to the occurrence, namely, P. W. 1 Smt. Kamla, P. W. 2 Smt. Surajkanwar, P. W. 3 Hukamchand and P. W. 6 Manoharlal. THE prosecution in all produced 12 witnesses. Accused did not produce any evidence in defence. THE learned Sessions Judge tried the present appellant under section 302 I. P. C. and the other two accused, Munnalal and Sohanlal, for the offence under section 302/34 I. P. C. THE learned Sessions Judge after trial acquitted Sohanlal and Munnalal for the offence under sec. 302/34 I. P. C. He also acquitted the present appellant under sec. 302 I. P. C. but convicted him under section 304 Part II I. P. C. and awarded a sentence of 5 year's rigorous imprisonment. Dissatisfied with the conviction and sentence passed by the learned Sessions Judge, the appellant preferred this appeal. The only contention raised by the learned counsel for the appellant is that the learned lower court convicted the appellant under section 304 Part II I. P. C. , but did not give the benefit of probation to the appellant though at the time of incident as well as at the time of conviction he was less than 21 years of age. It is not in dispute that the accused at the time of incident was of 19 years of age. The learned Sessions Judge refused to release appellant on probation on the ground that the offence is a serious in nature, the life of innocent person has been lost for no fault of his and the age is not the only consideration for releasing an accused on probation of good conduct. The learned Sessions Judge while refusing to release the appellant on probation of good conduct under sec. 360 Cr. P. C. or under the provisions of Probation of Offenders Act, though gave reasons but in my view the reasons given by the learned Sessions Judge in rejecting this prayer are not convincing. Section 361 Cr. P. C creates a duty upon the court to apply the provision of s. 360 Cr. P. C. wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of sec. 360 Cr. P. C. the special reasons contemplated by sec. 361 Cr. P. C. must be such as to compel the Court to hold that it is impossible to reform and rehabi-liate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. Thus while considering the question whether the probation should be given, to a particular person or not, personality of the offender as revealed by age, character and antecedents and other circumstances and the tractability of the offender to reform must necessarily lay a most prominent role. The learned Sessions Judge while refusing to grant the probation to the appellant did not consider this aspect of the law and in my view he was not right in refusing to grant probation. Section 6 of the Probation of Offenders Act lays down an injunction not to impose sentence of imprisonment upon an offender of the class covered by this section unless for the reasons recorded by it the Court finds it undesirable to give benefit and for that he should call for the report from the Probation Officer. The accused at the time of incident was only 19 years of age and he inflicted injury to his real uncle and had no intention to take the life of deceased, but on account of the suddenness of the incident the unfortunate death of Kishan lal took place. Thus looking to the age of the accused, close relationship of the parties, the intention of the accused and the fact that the accused was not a previous convict and the offence is not punishable with life imprisonment, I thin it proper to extend the benefit of probation to the appellant. Accordingly, the appeal is partly allowed, the conviction of the appellant under section 304 part 11 I. P. C. is maintained but instead of sentencing the accused under section 304 Part II I. P. C. I direct that the appellant shall be released, provided he furnishes a personal bond in the sum of Rs. 10,000/- and a surety in the like amount to the satisfaction of the learned Sessions Judge, Jodhpur, undertaking to appear and receive the sentence when called upon to do so within a period of 3 years and in the mean time to keep the peace and be of good behaviour. The appellant is allowed one month's time to file the aforesaid bonds. .;