CHAUHAN, J. - (1.) THE appellant has challenged the judgment dated 17. 7. 1985 whereby the learned trial Court has convicted him for offence under Section 324 of Indian Penal Code (for short, "ipc"), while acquitting him of offences under Sections 147, 148, 380 and 307 of IPC. However, instead of granting the benefit of probation, the learned trial Court has sentenced him to ten months' rigorous imprisonment and has imposed a fine of Rs. 200/- and has directed that he shall undergo two months' rigorous imprisonment in default of payment of fine.
(2.) BRIEFLY, the facts of the case are that Ram Dutt (PW. 1) lodged a report (Ex. P/1) at the Police Station, wherein he claimed that: On 15. 3. 1982, in the morning, around 10' O Clock, when he went to the temple of Hanumanji, which is near his shop, Shri Gopal (the appellant), Jagdish, Nihal Singh, Ram Bharosi, Om Prakash, Data Ram and Ram Kishan and other two unidentified persons came near him. At that time, Ram Kumar Brahmin was standing near the complainant, Ram Dutt. While Jagdish had a revolver, one of the two unidentified persons had a gun. According to the complainant party, the group of people came near the complainant and attacked the complainant. When Shri Gopal fired from his gun, Ram Kumar Brahmin pushed the complainant inside the gallery of his house. However, even then the complainant sustained pallets in his fingers and in his palm. Ram Kumar Brahmin closed the shutter of the gallery. Thereafter, the accused persons entered into the shop of the complainant and took away Rs. 500/- and a HMT watch. When the villagers rushed to the rescue, the accused persons fired from their gun in the air and went away towards the village Vasai Nabab. Ram Dutt was taken for medical treatment to the village Sapao. However, as the doctor was not available there, no medical report or injury report could be prepared. Thereafter, the complainant went to the police station to lodge a report. Upon this report, a formal FIR (Ex. P. 4) was chalked out. Subsequently, challan was submitted against the above named persons namely Shri Gopal, Jagdish, Om Prakash, Ram Bharosi, Nihal Singh, Data Ram, Ram Kishan. In order to support its case, the prosecution examined six witnesses and submitted eight documents. The defence neither examined any witness, nor submitted any document. However, the statements of the accused persons were recorded under Section 313 IPC. In his statement, Gopal claimed that while he was going from his village to village Khoragarh, the complainant had fought with him and had shot at his foot. In order to prove this fact, he had submitted an injury report. But, the injury report could not be proved in the Court. After going through the oral and documentary evidence, the learned trial Court acquitted all the co-accused persons except the accused-appellant. The learned trial Court convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. Mr. S. S. Sunda, the learned counsel for the appellants, has not challenged the conviction, but has challenged the non- granting of probation to the appellant by the learned trial Court. According to the learned counsel, this is the only crime committed by the appellant. The offence for which he has been convicted, namely Section 324 IPC, is not punishable either with life imprisonment or with death. Since the conditions required by Section 360 of Code of Criminal Procedure Code (for short, `cr. P. C. ') were fulfilled, the learned trial Court was required to give reasons for denying the benefit of probation to the appellant. But, the learned trial Court has denied the said benefit ostensibly on the ground that "the trial was completed within a short span of three years. " According to the learned counsel, this is not "special reason" for denying the benefit of probation. Hence, he has made a limited prayer to this Court that the benefit of probation should be granted to the appellant. On the other hand, Mr. Vijayant Nirwan, the learned counsel for the complainant, has vehemently argued that sufficient evidence exists for convicting the appellant for offence under Section 324 of IPC as discussed in detail by the learned trial Court. Moreover, those persons who break the law do not deserve the benefit of probation. Therefore, he has supported the impugned judgment.
(3.) LIKEWISE, Mr. Arun Sharma, the learned Public Prosecutor has argued that the benefit of probation should not be granted to the appellant. We have heard the learned counsel for the parties, have perused the impugned judgment and have examined the documents available on record. Theory of punishment has undergone a sea-change in the last century. From revenge to deterrence, the theory of punishment has now come to the reformative stage. The discoveries in the field of psychology heralded in the 19th Century by Sigmund Freud and subsequently developed in the 20th Century by B. F. Skinner have influenced penology. A person is not born as a criminal, but is transformed as a criminal because of the environment around him. However, the experiment of B. F. Skinner, with piegions, have proved the fact that people can be conditioned and re-conditioned and can be taught new skills and behavioral patterns. The studies in psychology subsequently led to change in theory of punishment in penology. The purpose behind punishment is no longer punitive or deterrent, but the aim is to reform the offender to the extent that he becomes a law-abiding citizen. With the reformative theory of punishment in the forefront, Sections 360 and 361 of Cr. P. C. were introduced in the Criminal Procedure Code. Likewise, in the year 1958, the Indian Parliament enacted the Probation of Offenders Act, 1958 (for short, `the Act of 1958' ). The purpose of probation is to ensure that the offender observes good behaviour and continues to be a law-abiding and law fearing citizen. ;