JUDGMENT
Ashok Agarwal, J.
1. A short question which is agitated in the present appeal is, whether the appellant is entitled to a benefit of the provisions of the probation of Offenders Act, 1958? By a judgment and order, passed on the 14th of May, 1987 by the learned 6th Additional Sessions Judge, Thane, in Sessions Case No. 445 of 1986, appellant, who is original accused No. 1, is acquitted of the offence punishable under section 302 read with section 34 of the Indian Penal Code, but is convicted for offence punishable under section 304 Part-II of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 300 in default to suffer further rigorous imprisonment for one month. By the very same order accused Nos. 2 and 3 are acquitted of all the charges levelled against them. The order, in so far as the same is adverse to accused No. 1, is impugned in the present appeal.
2. The only contention which has been raised by Shri Chitnis, the learned Advocate appearing in support of the appeal, is that benefit of the provisions of section 6 of the Probation of Offenders Act, 1958 ought to have been extended in favour of accused No. 1. Shri Chitnis has pointed out that a separate application seeking the benefit of the said Act was filed before the learned Judge of the trial Court, that application is at Exhibit-28. However, the learned Judge has declined to extend the benefit to accused No. 1. According to Shri Chitnis, this is preminently a fit case for granting the benefit of the said provisions. He has further criticised the reasons which have been given by the learned Judge of the trial Court for rejecting the prayer of the accused for being granted the benefit of section 6 of the Act.
3. In order to determine the merits of the prayer made by Shri chitnis, it would be necessary to see the nature of offence which is alleged to have been committed by the accused. At Exhibit 9, we have the first information report, which has been lodged by P.W. 1 Chandrakant Babul More, who is the son of the deceased Babulal. The incident in question has taken place on the 5th of March, 1986 at about 8.30 p.m. According to the complainant, he was in his house at that time. At that time, he saw his uncle’s son Satish Pandurang and accused No. 2 who is the brother of Satish, abusing and beating each other. The complainant came out of his house and advised them against abusing and beating each other. At that time there was exchange of severe beating between Satish and accused No. 2. The complainant, therefore, went there to rescue. At that time the three accused suddenly appeared on the scene and started beating the complainant. The complainant cried loudly. Hence, the father of the complainant Babulal and the wife of the complainant Chandrakala came to rescue the complainant. At that time accused No. 1 gave two blows with a cricket stump on the head of Babulal. Babulal fell on the ground. Accused Nos. 2 and 3 assaulted the complainant and his wife with hands and legs. Neighbours arrived and hence the accused ran away. During the incident both accused No. 1 and his mother had sustained injuries. These injuries are noted in a medical certificate which is at Exhibit 12. The injuries sustained by Ramabai More, who is the mother of the accused No. 1 are as under:
“insized wound over left parietal occipital region, oblique indirection, 3″ X 1/2″ bone deep with huge haemotoma of 3″ size. ”
The very same certificate also describes the injury sustained by accused No. 1, the same are as under.
“C.L.W. over forehead, central region with size 2″ X 1/2″ bone deep.”
It would, thus, appear that as far as the mother of accused No. 1 is concerned, she is alleged to have been assaulted on her head with the help of a Koyeta. She had sustained an incised wound over the left parietal region, oblique in nature of a size of 3″ X 1/2″ with a big haemotoma of 3.5″ in circumstance. It would, thus, appear that Ramabai had sustained a serious injury on the vital part of her body namely her head. Similarly, accused No. 1 has also bone deep. Hence, two person had sustained serious injuries at the time of the incident. As far as the injuries on the person of the deceased are concerned, the medical officer found an incised wound over the central part of the vertex towards the right side with depression of I.R.S. roughly rupee one coin size. There was profuse bleeding with depressed fracture of bone, size of the wound was 31/2″ X 1/4″ with the substance of the brain protuding. The injury was bone deep. The second injury was a constused lacerated wound over the left orbital margin size 1/2″ X 1/4″ X 1/2″ and the third injury certificate is to be found at Exhibit II.
4. At the trial, the defence had raised a plea of private defence. In this behalf, this is what has been observed in para 15 of the Judgment:
“From the above discussion, it is very clear that the prosecution has adduced cogent, consistent and convincing evidence to prove that at the relevant time, accused No. I gave blow with cricket stump on the head of Babul, and thereby caused bleeding injury to him. It was also argued on behalf of the defence that it has come on record that at that very time accused No. 1 had also sustained injury to his head. Not only that but he had also lodged complaint against present complainant and he was also treated by the Medical Officer, and so this circumstance shows that the accused No. 1 may have caused injury in the right of his private defence. Firstly it must be noted that plea regarding private defence is not specifically taken by the accused. Of course it is true that even if such plea is not taken, it is incumbent on the party who takes the plea of self-defence to show that there are such circumstances from-which such plea can be safely spelt out. In the instant case, no such material has brought on record due to which one can say that the accused No. 1 must have attacked Babul in self-defence. Besides this, it is well settled that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In the instant case, the manner in which the accused No. 1 Bhupesh had given two blows on the vital part of head of Babul, it cannot be said that the plea of right of private defence is open to him. So I am not inclined to accept the argument of the learned advocate for the defence in this behalf.”
4. By the impugned judgment and order, the trial Court found that the prosecution has failed to prove its case against accused Nos. 2 and 3. Accused Nos. 2 and 3 were, therefore, held to be entitled to an order of acquittal. As far as accused No. 1 is concerned, the learned Judge found that the prosecution has failed to make good the charge under section 302 I.P.C. He, however, found accused No. 1 guilty for an offence punishable under section 304, Part II Indian Penal Code. After giving the aforesaid findings, the learned Judge gave opportunity to accused No. 1 to make his submissions on the point of sentence. At that stage, an application, which is at Exhibit 28, was filed on behalf of accused No. 1 claiming benefit of section 6 of the Probation of Offenders act, In the application the accused stated that he had been convicted under section 304 Part II, that he was born on the 1st of June, 1966 and is, therefore, below the age of 21 years, the offence with which the accused is convicted is not punishable with death or imprisonment for life, the facts of the case do not warrant a serious sentence as the weapon used in an ordinary cricket stump, only a single blow was given and the assault was not premeditate. Moreover, the injuries are caused in a sudden fight. It was a case of sudden fight, the accused had also received injury at the hands of the complainant. Therefore, as a right of private defence the accused gave a single blow to the deceased. Therefore, the circumstances are not very serious. This is the first offence of the accused. He is not previously convicted in any offence in any Court. There is no previous criminal history in respect of the accused. He, therefore, prayed that he be released under the Probation of Offenders Act.
5. The said application was forwarded to the learned Public Prosecutor for offering his say, and this is what has been stated by the learned Public Prosecutor:
“No plea of private defence has been taken. However , after varifying the age of the accused the Honourable Court may pass a suitable order about sentence, taking into consideration that a life is lost.”
6. While disposing of the case, this is what the learned Judge has observed in respect of the above application:
“While considering the question whether accused can be given benefit of the provisions of Probation of Offenders Act, one has to take into consideration all the facts and circumstances of the case. In the instant case, we do find that the accused has committed very grave offence and ultimately because of his act, his uncle i.e. Babul has succumbed. So considering this fact that he gave severe blow with cricket stump on the head of his own uncle, I think that this is not a proper case, where the benefit of Probation of Offenders Act can be given to the accused. On the contrary I think that it is necessary to award such punishment to the accused, which would pinch him and would prevent him and others from doing such type of offences again. So I am not inclined to grant the application submitted on behalf of the accused in this behalf. So, having regard to all the facts and circumstances of the case, and considering the young age of the accused, and also having regard to the fact that there is no record of previous conviction against the accused, I pass the following order, which I think will meet the ends of Justice.”
7. In my view, the above observations which are made by the learned Judge while declining to entertain the application of the accused have overlooked material facts which are on record. It is also overlooked the objects and reasons behind passing of the Probation of Offenders Act. The learned Judge has overlooked the fact that the present case arose out of a sudden fight. In fact, the was going on between two brothers, accused No. 2 and his brother Satish. To this fight, neither accused No. 1, the deceased or the complainant were parties. All are closely related to each other. The complainant went to the spot and tried to intervene. At that stage accused No. 1 appears to have also come on the spot, Similarly, the deceased has also appeared on the scene. Thus, the entire incident arose suddenly. It was not at all premeditated. Another feature, which, in my view, the learned Judge has overlooked is the fact that two from the side of the accused have received injuries. Both accused No. 1 and his mother Ramabai have sustained serious injuries. A third feature which has also been overlooked is that accused No. 1 appears to have given only one blow with a cricket stump, which he may have found handy. In the circumstances, it is difficult to subscribe to the view of the learned Judge that “the accused had committed a very grievous offence and hence taking into consideration all the facts and circumstances of the case it is not a case for grant of the benefit of the Probation of Offenders Act.”
8. It is undisputed that the accused was born on the 1st of June, 1966. The incident in question has taken place on the 5th of March, 1986 and the judgment of the trial Court was delivered on the 14th of May, 1986. Hence, the accused was below the age of 21 years both on the date of the incident as also on the date of passing of the order of conviction and sentence.
9. The accused, in the instant case, has been held not guilty for the offence punishable under section 302. He has been found guilty for an offence punishable under section 304 part II of the Indian Penal Code. Hence, the accused has been convicted for an offence which is not punishable with imprisonment for life. In the circumstances, the provisions of section 6 of the Probation of Offenders Act can legally and legitimately be extended to the accused No. 1. It is to be noted that, the object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offender are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. In my view, if one has regard to all the facts and circumstances of the present case, as also the object which is predominantly behind the Act, it is pre-eminently a fit case in which the accused deserves to be given the benefit of the provisions of the Act I have already narrated all the facts and circumstances of the case which are relevant on the issue. I find that the same are such which richly deserve the said benefit.
10. As far as the provisions of section 6 of the Act are concerned, they relate to offenders who are below 21 years old. It would appear that under section 6, the ordinary rule is to grant the benefit. Granting the benefit is a rule and to-deny the benefit is an exception. This is aparent from sub-section (2) of section 6 of the Act. The said sub-section provides that in case it is found that it is not desirable to extend the benefit to an offender, the Court shall call for a report from a 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. It would, thus appear that in case a benefit is to be extended nothing further is required. It is only when a benefit is to be denied that the aforesaid procedure is to be adopted. The above procedure is in contrast with the procedure which has been laid down in section 4. Section 4 deals with all offenders above the age of 21. In cases falling under section 4, the Court is required, before making an order, extending the benefit of section 4, to take into consideration the report, if any, of the Probation Officer concerned in relation to the case. That, however, is not required for giving benefit under section 6. Hence, while extending the benefit of section 4 a procedure in regard to taking into consideration the report of the Probation Officer has been laid down. No such procedure is required to be followed in case a benefit is to be given under section 6. It is only when the benefit is to be denied that the procedure prescribed under sub-section (2) of section 6 i.e. of calling for a report from the Probation Officer and considering the same is required to be undertaken. The scheme of the provisions is clear. Benefit of section 6 will ordinarily have to be granted. It is only in rare and exception cases that the benefit can be refused.
11. If the benefit under section 6 of the Act is intended to be given no reasons are required to be given in support. If, however, the provisions of section 6 are applicable to an accused and if the case is not found fit for extending the benefit, reasons will have to be given why the benefit is being denied. As far as the learned Judge of the trial Court is concerned, it has, no doubt, given some reasons why he has not found this a fit case to extent the benefit. As already pointed out, the learned Judge has omitted to take into account several vital and important facts which appear on the record and which are in favour of the accused. If the same are taken into account, I find this a fit and proper case to extend the benefit of section 6 of the Probation of Offenders Act, in favour of the present accused.
12. For the foregoing reasons I am inclined to extend the benefit of section6 read with section 3 of the Probation of Offenders Act. The order of conviction passed against the accused under section 304 Part II is maintained. Instead of sentencing accused No. 1 to any punishment I release him on probation of good conduct on his entering into a bond in a sum of Rs. 2,000/- with two sureties of the like amount to appear and receive sentence when called upon during the period of two years and I further direct that in the meantime accused No. 1 will keep peace and be of good behaviour. It is clarified that the aforesaid order of conviction will be subject to the provisions of section 12 of the Act i.e. the accused will not suffer disqualification, if any, attaching to a conviction of the offence under law. The accused No. 1/appellant herein will enter into a bond with sureties as directed, within a period of four weeks. On execution of the aforestated bond alongwith sureties his bail bonds shall stand cancelled. The appeal is partly allowed in the above terms.