- (1.) HEARD the learned counsel for the revisionist and the State.
(2.) THE prosecution case in short is that there was a joint kathal. tree and on the date of occurrence the revisionist plucking fruits when the informant side resisted it that cause injuries to them then FIR was lodged and the trial Court charged the accused persons for an offence under Section 147, 323, 341 and 379 of the Indian Penal Code but convicted the accused persons only under Sections 147, 323 and 341 of the IPC and under Section 248(2) of the Cr PC. The trial Court convicted them for offence under Section 147, 3 months R.I. for an offence under Section 323 R.I. for three months for an offence under Section 341 of the IPC, SI for fifteen days and the trial Court directed that all these punishments shall commence after the expiry of other as provided under Section 31 of the Cr PC. Against that order an appeal was preferred in the Sessions Court and by the appellate judgment in Cr Appeal No. 1/94/5/95 the conviction was upheld and sentence was modified to the extent that these both sentences shall run concurrently While awarding the sentence the learned appellate Court rejected the prayer for giving the benefit of Section 360 of the Cr PC. on the ground that in view of Section 19 of the Probation of Offenders Act this provision is not applicable in the State of Bihar and consequently it held that the trial Court rightly did not grant the benefit of Section 360 of the Cr PC, Section 19 of the Probation of Offenders Act reads as follows ; '' 19. Section 562 of the Code not to apply in certain areas. '' 'Subject to the provisions of Section 18, Section 562 of the Code shall cease to apply to the States or Parts thereof in which this Act is brought into force. ' It appears that this Act was adopted in the State of Bihar on 15.6.1979 this means that w.e.f. 15.6.1979 Section 360 which are the corresponding to Section 562 cannot be applied but no where it is said that even in the aforesaid circumstances the Probation of Offender Act did not apply, the benefit of Section 3 or 4 of the Offender Act, could not have been given. When the learned appellate Court heard on the point of sentence, if it felt difficulty in passing the order in term of Section 360 of the Cr PC, then also appellate Court should have considered the propriety of passing the order under Section 3 and 4 of the Probation of Offender Act. Ind that the revisionist and the opposite parties are Gotiyas. In paragraph 10 of the cross - examination of witnesses Digember Upadhayaya the father of the informant admitted as follows : '' Kathal Gach Dono Party (Mudai or Mudalayon) Ka Hai. Yah Kathal Gach 50%" Diwal Ki Bhitar Hai Aur 50% Diwal Ki Bahar Hai, Ham Dono Me Dastur Tha Ki Kathal Gach Me Se Kathal Dono Party Apene Apene Awasyaktanusar Tor Lete The. Yesa Nahi Tha Ki Pure Kathal Ko Tor Kiya Aur Dono Party Me Bat Liya. The injury that were found on the person of the injured are as follows : '' (i) Abrasion on nose 1/16" x 1/16" (ii) Tender Swelling over right arm 2" x 1" (iii) Tender swelling on front of chest 2" x 2" (iv) Tender swelling on left cheek 1" x 1" (v) Tender swelling on back of chest 2" x 2" (vi) Tender swelling over left waist 1" x 1"
(3.) THERE is nothing on the record to show that the revisionist were also convicted earlier, so considering the nature of the case when the admitted position is that both parties were at a liberty to pluck jackal fruits according to their own needs I do not think that the learned trial Court or appellant Court should have refused to extend the benefit of Probation of Offender Act.;