N. N. SHARMA, J. ( 1 ) THIS revision is directed against the order dated 18. 11. 1981 by Sri Prem Singh, learned Sessions Judge, Ghazipur in Criminal Appeal No. 190 of 1981, by which he set aside the conviction of appellants under Section 394, Indian Penal Code but affirmed their convictions and sentences under sections 323/504/506, Indian Penal Code. ( 2 ) THE revisionists were initially convicted under Section 324 Indian Penal Code. And sentenced to four months R. I each, under Section 323, Indian Penal Code to three months R. I. each, under Section 50t, Indian Penal Code, they were convicted and sentenced to IS days imprisonment each, they were further convicted under Section 506, Indian Penal Code and sentenced to three months R. I. each by Sri V. P. Lukariya, learned Munsif-Magistrate Saidpur district Ghazipur vide order dated 25. 9. 1981 in case No. 313 of 1981, The aforesaid sentences were ordered to run concurrently. ( 3 ) THE prosecution story briefly stated is that parties are residents of village Kabla Jakhaniyan police-station Murkura. District Ghazipur. On 20. 2. 1981 complainant Purshottam P. W. 1 was digging foundation in his court-yard at about 3 P. M. , when both the revisionists who are own brothers arrived and belabured Purshottam with lately and spade blows; when his wife came to his rescue she was also belaboured with kicks and fist s. Witnesses Musafir, P. W. 2, and Kharman were attracted and intervened; while revisionists were threatening to kill and lot the property of the complainant. Complainant went to police-station and lodged the F. I. R. Ext. Ka 2 in the same afternoon at 6. 10 PM. The F. I. R. was proved by secondary evidence of P. W. 4 Sri Satdeo who was well acquainted with the hand writing of the complainant. Injured got himself medically examined by Dr. S. L. Garg. Medical Officer, Jakhaniya in the same evening on 21. 2. 1981 at 8 A. M. Two injuries were detected on his person as detailed in injury report Ext. Ka. I. Injury No. 1 was incised wound on the skull right fore head. Injury No. 2 which was also a simple injury was caused by some blunt weapon. Duration was about one day at the time of examination. 2. 1981 at 8 A. M. Two injuries were detected on his person as detailed in injury report Ext. Ka. I. Injury No. 1 was incised wound on the skull right fore head. Injury No. 2 which was also a simple injury was caused by some blunt weapon. Duration was about one day at the time of examination. As local police did not take any interest in the matter so the complaint was filed by the Complainant who examined himself and Musafir P. s. 1 and 2 in support of the prosecution story. ( 4 ) REVISIONIST denied their participation in the occurrence and alleged their implication to illwill. In their statements recorded under Section 313, Criminal Procedure Code they alleged that witnesses perjured. No evidence was adduced in defence. ( 5 ) LEARNED trial Magistrate believed the testimony of P. Ws. while the learned Appellate Court agreed with him except that he did not accept the allegations of prosecution that some spade or spear was used during the occurrence by the revisionists, In this connection he pointed out that use of a spade or spear was not mentioned by the complainant in F. I. R. but it was simply an improvement which was occasioned as the doctor found one incised wound. Learned Judge observed that such incised wound was capable of being caused by a lathi blow also on the forehead which was a bony part and such lacerated wound on a bony part could have looked like incised wound. This appears to be a Mistake committed by the doctor. Even though the injury on the forehead was caused by lathi yet the doctor took it to be an incised wound. Under the circumstances the use of spade by the assailants was ruled out and so conviction and sentence under Section 324 of the Indian Penal Code was set aside. However, conviction under remaining counts and sentences awarded there under were confirmed. ( 6 ) I have heard learned Advocate for the parties at length and carefully perused the record. On behalf of the revisionists it was argued before me that when major motions of the prosecution story was found false by the trial Magistrate the entire case should have been thrown out. ( 7 ) IN this connection reliance was placed upon Bhagirah v. State1. On behalf of the revisionists it was argued before me that when major motions of the prosecution story was found false by the trial Magistrate the entire case should have been thrown out. ( 7 ) IN this connection reliance was placed upon Bhagirah v. State1. Madhya Pradesh, where the courts below rejected the main part of the prosecution story that Kashiram was pulled out from his house and taken to a distance of 15 paces in the lane and there assaulted by the three accused while the prosecution case was that when the accused raided his house he bolted it from inside; the house was hammered at the entrance door which was broken open and Kashiram was pull out and forcibly taken up to a distance of 80 feet. There, Bhagirath and Gopal struck one spear blow each on the left lank of Kashiram, while Manohar gave him a farst blow. The blade of the spear of one of the assailants got detached from its wooden handle and was left embedded in the wound of Kashiram. Devisingh tried to intercede but Gopal dealt him a blow, too. The assailants then ran away. Devisingh went to the Police station Khmlel and lodged the First Information Report. ( 8 ) THIS version was disbelieved by the court below on the ground that both pieces of the door clearly disclosed that violence was put on it from inside and not outside. The edgs of the holes were inverted showing that the weapon had been thrust from inside and not from outside. The defence version therefore, is supported that Kashiram was shut by his friends and his associates in his house when he acted like a bully after his arrival from Indore. Thus the venue of occurrence and the manner of occurrence were belied hot only the oral evidence but also falsified by the medical evidence according to which there was only one injury on Bhagirath which could be caused with a spear. Under the circumstances it was held that all the accused should have been acquitted. It has been shown above that the facts of the present case are entirely different. ( 9 ) I do not subscribe to this view for the simple reason that it was the duty of the court below to scruetinise the evidence and separate the grain from the chaff. It has been shown above that the facts of the present case are entirely different. ( 9 ) I do not subscribe to this view for the simple reason that it was the duty of the court below to scruetinise the evidence and separate the grain from the chaff. The house of blunt weapon by Ram Karan during this occurrence was made out by consistent statements of P. Ws. I and 2, there was also prompt F. I. R. in this case op the medical. examination and the allegations 10 the complaint, etc. are quite consistent en this point. So the complicity of Ram Karan for offence under Section 323, Indian Penal Code, is fully made out in this case beyond shadow of reasonable doubt. ( 10 ) ON behalf of the revisionists it was further argued that Ram Karan was justified in obstructing the digging of the foundation by Purshottem as in his cross-examination he faltered about extent of his courtyard which he alleged to be only five Lathas towards east and thereafter was the field of Raghunath. Even though the Raghunath Noniya did not come forward to protect his prope. rty but it was open to the revisionists to defend the property of that Raghunath just like a good sarna ritan Right to defend even others property exists under Section 97 as was observed in Dalganjan and others v. King Emperor. That ruling is not applicable in this case. In that case the facts were that one Jalpa was in possession of a certain mango grove in village Osa. ( 11 ) IN the instant case in their statements the accused never alleged any dispute in connection with the digging of the foundation. They simply alleged their implication on account of ill will. No suggestion of self-defence of property was thrown in cross-examination to any P. W. ( 12 ) IN the instant case it was further observed by learned appellate court that in cross- examination complainant under confusion made the statement about extent of direction of his courtyard being towards east though the fact was that he was digging foundation only own courtyard. This is a finding of fact which is binding on me in rules on. So there is absolutely nothing on record to support such flimsy or fantastic plea and no argument can be built on it. This is a finding of fact which is binding on me in rules on. So there is absolutely nothing on record to support such flimsy or fantastic plea and no argument can be built on it. In Rishi Kesh Singh v. State it was observed:there is a difference between a flimsy or fantastic plea which is to be rejected altogether and a reasonable but incompletely proved plea which casts a genuine doubt on the prosecution version so that it indirectly succeeds. Parbhoos case, 1941 All L. J. 619 AIR 1941 All 402 (FB) was not meant to afford any guidance on what reason able doubt itself means. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy, or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity to separate the chaff from the grain. It is the doubt of a reasonable, astute, and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence. ( 13 ) IT appears that only two injuries were sustained by Purshottam who assigned the spade to Deo in examination-in-chief but spared his in cross-examination in view of the reasoning given by learned Magistrate himself no sharp edged weapon was used during the occurrence and so Deo is entitled to the benefit of reasonable doubt and is acquitted herewith of all the charges. ( 14 ) EVEN the charges under Sections 504 506 Indian Penal Code have not been made out by cogent evidence. Informant himself did not stick to his F. I. R. and alleged that it was not recorded to his dictation. His witness Musafir, P. W. 2, did not mention a single words about any threat of killing, etc. in his statement. Under circumstances the field interested exaggerated statement of complaint on this point is not acceptable to me specially when the actual words used by Ram Karan to attract the operation of Section 504/ 906, Indian Penal Code were not set out in charges Nos. 3 and 4 also vide K. P. Sinha v. Atabuddin which posited:it is necessary that the actual words used or supposed to have been used by the accused which the complainant understood to be words of insult should be mentioned in the complainant. 3 and 4 also vide K. P. Sinha v. Atabuddin which posited:it is necessary that the actual words used or supposed to have been used by the accused which the complainant understood to be words of insult should be mentioned in the complainant. Otherwise the Court would not be in opposition to decide whether the words used amounted to intentional insult. In the second place, the words used which amounted to intentional insult should be such as to give provocation for the commission of a breach of the peace. Where no allegation has been made in the complaint that the in tensional insult was such as to give provocation for any breach of the peace, Section 504 has no application at all. ( 15 ) RESPECTFULLY agree with the said observations. Similarly in Shyam Lal Bania v. The King it was observed:before a person can be found guilty of an offence punishable under Section 504 not insulting a person by the use of words it must be shown that the accused used those words intending or knowing it to be likely that it would result in such provocation as would cause that person to break the peace etc. In the absence of all mentioned either in the charge when a charge is framed or in the record of evidence as to what words were used it is not possible for the High Court in revision to decide whether the words used indicated such intention or knowledge and the conviction cannot be maintained. ( 16 ) SO the conviction and sentence of Ram Karan under Section 504 as well as 506, Indian Penal Code must fall off. ( 17 ) ON the point of sentence learned Advocate for the revisionists argued before me that benefit of Section 4 of the First Offenderst Probation Act No. VI of 1998 should have given to Ram Karan. It was obligatory on the part of the Magistrate to have recorded special reasons for not doing so. This permission about non observance of the provisions of Section 36 L of Criminal Procedure Code amounted to an illegality and so the sentence of imprisonment was unsustainable. ( 18 ) LEARNED Advocate for the revisionists relied upon some observations made in Ved Prakash v. State of Haryana6. It appears that in that case some observations were made about sentence. This permission about non observance of the provisions of Section 36 L of Criminal Procedure Code amounted to an illegality and so the sentence of imprisonment was unsustainable. ( 18 ) LEARNED Advocate for the revisionists relied upon some observations made in Ved Prakash v. State of Haryana6. It appears that in that case some observations were made about sentence. There the accused convicted for offence attracting Section 36 TI Criminal Procedure Code that his age was less than 21 years and so having regard to the circumstances of the offender its benefit he was released on probation under Section 4, sub-clause (1) aforesaid. ( 19 ) THE next authority relied upon by him has been reported in Dilbagh Singh v. State of Punjab7 in which although the age of accused 32 years but his character was considered as fairly good and upright, alert and interested in rural games. He was a petty farmer having five brothers and a mother. His family circumstance disclosed that having regard to his young wife and four children and the elder daughter being paralytic from birth benefit of Probation Act was extended to him. ( 20 ) HE also referred to State of U. P. V. Misri Lal and others8 There was the charge of murder in that case and there was no evidence as to which of the accused had caused fatal injuries. Under such circumstances the accused was extended benefit of Section 4 of U. P. First Offenders Probation Act for their conviction under Section 304, Part. ( 21 ) IN that case also the character, antecedents and family circumstances of offenders were taken into consideration. ( 22 ) THE next authority relied upon by him has been reported in Pusupula Narsaiah v. State of A. P. 9. It was also a case of murder and not a case which could have attracted Section 360 Indian Penal Code. H appears that in that case the of accused was less than 14 years. So benefit of Probation Act was extended to him. It was also a case of murder and not a case which could have attracted Section 360 Indian Penal Code. H appears that in that case the of accused was less than 14 years. So benefit of Probation Act was extended to him. ( 23 ) THE next authority relied upon has been reported in Satar Masiah v. State 10, where it was held that in view of age, character and antecedents of the offender and the circumstances of the case who was a young man and conviction could have entailed and the sentence could have operated to his prejudice, so benefit of Probation Act was extended to him. ( 24 ) LEARNED Advocate for the revisionist further relied upon Keshav Sita Ram Sail v. State of Maharashtra11 where the observations were:criminal Procedure Code (2 of 1974), Section 360 Probation of Offenders Act (195g), Sections 3, 4-Benefit under Accused, an employee of railway alleged to have abetted commission of theft of coal worth Rs. 8 from railway goods wagon-Accused taken back to duty after his conviction by High Court-In view of his character and antecedents, Supreme Court observed that benefit of probation could have been given by High Court-Sentence imposed upon him set aside, case remitted to trial court to pass appropriate order. (Penal Code (1860), Section 37y ). Criminal Appeal No. 1334 of 1973, Dated 25/3/1985 (Born.) Reversed. ( 25 ) A mere look at the head-note will go to disclose that this case is clearly distinguishable Revisionist is not an employee in any department. His main stay is cultivation. He is aged about 35 years; when he was questioned on the point of sentence by the learned trial Magistrate; he had nothing to say but wanted to be excused. Learned trial Magistrate did not extend the benefit of Probation Act to the revisionist. It is correct that he did not record any reasons for not extending the benefit of that Act to the revisionist. It appears that no argument was advanced before him on this point at the stage of trial. Even at the stage of appeal this point was not canvassed. The circumstances of the case go to show that revisionist is well advanced in age; without any rhyme or reason he attacked the victim who was Gigging the foundation in his courtyard in exercise of his own right of property. Even at the stage of appeal this point was not canvassed. The circumstances of the case go to show that revisionist is well advanced in age; without any rhyme or reason he attacked the victim who was Gigging the foundation in his courtyard in exercise of his own right of property. Ram Karan had absolutely no business to have gone there and attacked the victim; even when his wife came for intervention she was not spared but was beaten with fists and kicks. Under the circumstances it was not a fit case in which benefit of Probation Act was merited by the age, character, antecedents or the circumstances of the crime. ( 26 ) IT is not able that not a single authority directly in point was cited before me to show that DO sentence of imprisonment under section 323 Indian Penal Code is awardable if the trial Magistrate has failed to record special reasons for not extending benefit of Probation Act to the accused. A mere look at Section 4 of the Probation Act shall go to disclose that it is a discretionary matter with the trial court and in the instant case while sitting in Revision, this Court can sparingly interfere on this ground specially when a mere look at Section 465 of the Code of Criminal Procedure shall go to disclose that the object of the provision is to see that the form must not override the substance. ( 27 ) A mere look at the aforesaid provision shall go to disclose that if such objection was never raised before the trial court or before the appellate court and does not go to the root of the matter so as to vitiate the proceeding sentence is not to be set aside. ( 28 ) FOR the aforesaid reasons this contention is ruled out. ( 29 ) IN the result the revision is pardy allowed. Conviction and sentence of Deo Yadava under Sections 323/504/506, Indian Penal Code are set aside and he is acquitted of the said charges. He is on bail and need not surrender to his bail bonds which are discharged. ( 30 ) CONVICTION and sentence of Ram Karan under Section 504/506, Indian Penal Code are set aside. However, his conviction and sentence under Section 323, Indian Penal Code as recorded by the court below are affirmed. Ram Karan is on bail. He is on bail and need not surrender to his bail bonds which are discharged. ( 30 ) CONVICTION and sentence of Ram Karan under Section 504/506, Indian Penal Code are set aside. However, his conviction and sentence under Section 323, Indian Penal Code as recorded by the court below are affirmed. Ram Karan is on bail. Let him surrender to his bail bonds forthwith and taken into custody to serve out the aforesaid sentence. Impugned order is modified accordingly. Revision partly allowed. .