JUDGMENT 1. - The learned Additional Sessions Judge No.l, Jodhpur in sessions case No. 6/75 under his judgment dated July 9, 1976 has convicted accused Chokharam under sections 324 and 323 I.P.C. Under the former count the accused has been sentenced to undergo six months R.I. and in the latter count to four months R.I. Accused appellants Kaluram and Budharam have been convicted under sections 323 and 324/34 I.P.C. under the former count each of them has been ordered to undergo four months R.I. and on the latter count to six months R.I. The substantive sentence of all the accused persons have been ordered to run concurrently. 2. The facts of the case in brief are these. On August 17, 1974 at about 8 a.m. Dayalram son of Prahladram P.W.10 had gone to call Dayalram son of Gangaram P.W.9 for attending a meeting of the Navyug Mandal. It is alleged that when Dayalram P.W. 10 was returning, the three accused appellants along with others armed with weapons followed him. The accused appellant Chokharam was armed with a Pharsi whereas the other accused appellants Budharam and Hariram with lathi and Kalu was armed with no weapon. The accused appellants in all numbering five inflicted injuries to Dayalram who raised an alarm, hearing which many persons were attracted. Prahladram P.W.5, father of Dayalram P.W. 10 also reached the spot. He lodged report Ex.P.2 in the police station where a case was registered and investigation was set in motion. 3. The injuries of Dayalram P.W.10 were examined by Dr. J.S. Chaudhary P.W.l on August 18, 1974 in Primary Health Centre, Bhopalgarh and he found that Dayalram had five injuries out of which injury No. 5 was an incised wound 10cm x 2cm x bone deep on the right parietal region vertically placed. This injury No.4 which was also on the left elbow joint were caused by a sharp weapon whereas the other three injuries were caused by blunt weapon. Though the doctor described injury No.5 as grievous but no x-ray was taken and the only point on which he described this injury as grievous was that it was caused by a sharp weapon and was on the head. The accused persons were tried and the plea of Kaluram and Budharam before the Magistrate was that they were not present on the spot and because of party factions they have been involved. The accused persons were tried and the plea of Kaluram and Budharam before the Magistrate was that they were not present on the spot and because of party factions they have been involved. Accused appellant Chokharam came out with a plea that it was he who was beaten. He was at his house then Dayalram P.W.3 and one Chetan came to his house and called him out. When he went out he was beaten and he was beaten inside his house as well. Accused appellants examined Gopalram D.W. 1, Devaram D.W.2, Mohammad Ibrahim D.W.3 and Dr. P.P. Gandhi D.W.4. The learned Sessions Judge after trial acquitted all other accused persons and convicted the appellants as aforesaid. 4. Learned counsel for the accused appellants has not challenged the conviction of the accused-appellants for the offence for which they have been convicted His only contention is that looking to the facts and that the occurrence took place in the year 1974 and the accused persons have only been convicted under sections 324, 323 and 323/34 I.P.C. the accused should be given benefit of either under section 360 Cr. P.C. or under the provisions of the probation of offenders Act (hereinafter referred to as the Act). Though on behalf of the accused persons the injuries allegedly received by Chokharam were also got proved by Dr. Gandhi D.W.4, the learned advocate has not advanced any argument with regard to the injuries allegedly received by accused Chokharam. That apart, the learned Sessions Judge has discussed the evidence and has placed reliance on the prosecution case. 5. There is sufficient material on record that the accused persons are the authors of injuries received by P.W. 10 Dayalram. Besides the statement of P.W.10 Dayalram that accused Chokharam was armed with a Pharsi and gave two blows with it to him, there are also statements of Dayalram P.W.3 and Narayanram P.W.4, who have stated that they witnessed the occurrence and accused Chokharam was armed with a Pharsi and gave two blows to to Dayalram P.W. 10. So far as accused appellants Kalu and Budharam are concerned, it is also stated by them that they also gave beating to Dayalram P. W. 10 and the doctor also found that he has received as many as five injuries The statements of the witnesses are corroborated by the statement of the doctor. So far as accused appellants Kalu and Budharam are concerned, it is also stated by them that they also gave beating to Dayalram P. W. 10 and the doctor also found that he has received as many as five injuries The statements of the witnesses are corroborated by the statement of the doctor. As already stated, on examining Dayalram, the doctor found five injuries on his person. Therefore, looking to the facts and circumstances of the case.it is proved that the beating was administered by all the three accused appellants in furtherance of the common intention of all. Accused Chokharam has rightly been convicted under sections 326 and 323/34 I.P.C. whereas the other accused u/s 323 and 324/34 I.P.C. 6. The learned Sessions Judge perhaps due to in advertence loss sight of the provisions of sections 361 Cr. P.C. which contain the mandate of the legislature that the case of the accused is such which can be dealt with either under section 360 Cr. P.C. or under the provisions of the Act, the court must consider as to whether the case of the accused should be so dealt with or not. In case the court feels that looking to the nature of the offence circumstances of the case, the case is not such which should be dealt with under either or both the provisions, it is the duty of the court to record special reasons in his judgment. The learned Additional Sessions Judge has not addressed himself to this aspect and after hearing the accused and the Public Prosecutor on the sentence, sentenced the accused petitioners as aforesaid. I am of the opinion that because the occurrence took place in the year 1974, that is about seven years ago, and the accused persons have only been convicted for the offence under section 324 and 323 I.P.C.their case should be dealt with under section 4 of the Act. 7. I am of the opinion that because the occurrence took place in the year 1974, that is about seven years ago, and the accused persons have only been convicted for the offence under section 324 and 323 I.P.C.their case should be dealt with under section 4 of the Act. 7. In the result, the appeal is partly allowed, the conviction of accused appellant Chokharam under sections 323 and 324 and others u/s 324/34 and 323 I.P.C. on merits is maintained and the appeal is dismissed, but looking to the facts and circumstances of the case, nature of the offence and that the occurrence took place about seven years ago and there is no previous conviction on record, it is hereby directed that each of the accused appellant shall be released on probation of good conduct on his furnishing a personal bond of Rs. 20000/- and a surety in the like amount to the satisfaction of the trial court to appear and receive sentence when called upon within a period of six months and in the meantime to keep the peace and be of good behaviour. Two months time is given to furnish the bonds in the trial court.Appeal Partly Allowed. *******