V. D. GYANI, J. ( 1 ) AS none appears for the petitioner, Shri Arvind Gokhale, Advocate, who is present, is requested to act as an amicus curaie. He acceded to the request and heard. Also heard Shri Desai, learned Panel Lawyer for the State. ( 2 ) THE petitioner stands convicted under Sec. 325, IPC and sentenced to undergo rigorous imprisonment for six months with a fine of Rs. 300/- or in default of payment of fine to undergo one month's rigorous imprisonment. The trial Court further directed that in the event the fine being deposited, Rs. 300/- be paid as compensation to the injured Deva. ( 3 ) SHRI Gokhale, learned counsel for the petitioner pointed out that the appellate Court was wrong in holding that it was not incumbent on the prosecution to have explained the injuries sustained by the co-accused Mangtya and that the injuries were caused at a different place in an altogether different incident. The next submission made by him is that even if the petitioner is held to be guilty, yet it was not a case where a young boy, shown to be 22 years of age, should have been refused the benefit of Probation of Offenders Act and both the courts below, according to him, have failed in not invoking. Sec. 360, Cr. P. C. Shri Desai, learned Panel Lawyer for the State submitted that the conviction is supported by the evidence on record. He, however. added that so far as consideration of ground of probation is concerned, if it is made out, he would not come in the way. ( 4 ) BEFORE proceeding any further it may be noted that the petitioner was tried along with three others, Kaduwa and Dayaram, who have been acquitted by the trial Court, while Mangtya was held to be guilty under Sec. 323, IPC and sentenced to pay a fine of Rs. 300 - only, considering his old age. Both Mangtya and Lacchiram preferred appeal and the appellate Court dismissed the same. This revision petition has been preferred by accused Lacchiram alone, who is the son of accused Mangtya. ( 5 ) THE trial Court refused to invoke Sec. 360, Cr. 300 - only, considering his old age. Both Mangtya and Lacchiram preferred appeal and the appellate Court dismissed the same. This revision petition has been preferred by accused Lacchiram alone, who is the son of accused Mangtya. ( 5 ) THE trial Court refused to invoke Sec. 360, Cr. P. C. and the provisions of the Probation of Offenders Act and observed that it would be better to sentence the accused properly rather than releasing them on probation; even while accepting the fact that they were first offenders. The other reason assigned by the learned Magistrate is that his discretion did not permit him to take a lenient view, lest it would give rise to more crimes. ( 6 ) WITH this approach, even in a conviction under Sec. 323. IPC to an old man of 50 admittedly the first offender, if benefit of probation is not extended and the lower appellate Court brushed aside the argument by a stroke of one sentence, saying that there is no force that the sentence is harsh. It is time that our Magistrates and Additional District/sessions Judges gainfully derive something from the following. passage from Social Mission of Law by V. R. Krishna Iyer. "trust begets trust and the freshmen in crime as distinguished from seasoned repeaters and chronic anti-social elements may favourably respond to external stimuli and internal pressures and thus be saved. This twentieth century approach to crime and punishment is for us, of Gandhian Vintage but runs counter to the traditional theory of harsh deterrence writ large in the Penal Code and the Criminal P. C. The ghosts of Macaulay and men of his ilk haunt our criminal courts still, so much so, that probation fares ill in the law Courts. Twenty five years of freedom have not freed our judiciary from the obsolescent British Indian ideology bearing on suppression of crime. And it is time our Magistracy bent to the winds blowing for a long time now. Orthodoxy and ignorance die hard even among judicial personnel. The awareness of the need to be educated in current thought on the causes, syndrome and treatment of crime and criminals is the beginning of the forensic appreciation of probation and allied methods. And it is time our Magistracy bent to the winds blowing for a long time now. Orthodoxy and ignorance die hard even among judicial personnel. The awareness of the need to be educated in current thought on the causes, syndrome and treatment of crime and criminals is the beginning of the forensic appreciation of probation and allied methods. Indeed, modern criminal jurisprudence and allied social and psychiatric departments have gone so far ahead of the lagging Indian Courts, cloistered in their outworn ideas, that a national training or refresher programme for the criminal judiciary from the lowest to the highest echelon is an imperative need. How else can we produce a dynamic change among those who are but laymen in this field ? the pivotal role of the Magistracy in implementing intelligently and compassionately a comprehensive programme of probation involves new techniques, new responsibilities and new areas of decision-making. " Pages 96-97 of book. ( 7 ) SO far as submission on merits and the availability of the right of self-defence is concerned, the reason adopted by the learned Judge that the incident took place at two different places is not correct. In this connection it needs to be noted that when a frecas takes place involving sizable number of persons, they do not strictly confine to particular place or position and are bound to move a few paces here and there and that would not take away the right that would otherwise accrue to an accused. The case against the accused was initiated on a written report made by Dewa (P. W. 1), vide Ex. P/1. This report clearly stated that the petitioner assaulted him with a stick on his head, while his father Mangtya assaulted him with a stick on his back. On the basis of this report a case under Sec. 324/34, IPC came to be registered. During trial Dewa improved upon the nature of weapon from stick he shifted to axe (Kulhari ). According to the injury report, Ex. P/3, Dewa had five injuries three contusions, one abrasion and an incised wound over left parietal region. Mangtya had a lacerated wound over right parietal region of head in a verticle direction and a bruise transverse over lower one-third of right upper arm. According to the injury report, Ex. P/3, Dewa had five injuries three contusions, one abrasion and an incised wound over left parietal region. Mangtya had a lacerated wound over right parietal region of head in a verticle direction and a bruise transverse over lower one-third of right upper arm. He was examined the same day at 9-30 p. m. In the opinion of the doctor these injuries could have been caused within six hours of his examination. ( 8 ) SHRI Gokhale pointed out the fallacy involved in the appellate Court's reasoning that the incident occurred at two different places. When all prosecution witnesses have denied having seen the injury and even the Investigating Officer, who sent Mangtya for medical examination just within two hours of the incident, on being asked about it, said that the fact was not recorded in the case-diary. When witnesses suppress the fact that the accused had sustained injuries, which in the case of Mangtya were quite apparent and the Investigating Officer does not even record the fact in the case-diary, it reflects on both, the veracity of witnesses and fairness of investigation. The appellate Court has failed in appreciating the injuries caused to Mangtya in their proper perspective. No intrinsic reliance can be placed on such a witness, who suppresses the injuries sustained by an accused. Reading the evidence of Dewa (PW. 1), it is clear that he had seen the injury but he further added that it must have been self inflicted. It was for the prosecution to have explained the injury sustained by accused Mangtya. In what circumstance and by whom were these injuries caused to him, the prosecution has utterly failed to explain it. ( 9 ) WITH this tainted nature of evidence, with all attempts at suppression, the appellate Court was palpably wrong in denying the right of self-defence to the accused-petitioner. In what circumstance and by whom were these injuries caused to him, the prosecution has utterly failed to explain it. ( 9 ) WITH this tainted nature of evidence, with all attempts at suppression, the appellate Court was palpably wrong in denying the right of self-defence to the accused-petitioner. The Supreme Court has in Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 , has explained as to what inference can be deduced from non-explanation of injuries sustained by an accused, as follows :"the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case; and (4) the omission on the part of the prosecution to explain the injuries on the person of the accused assumed much greater importance where the evidence consists of interested or inimical witnesses. "the statement made by Mangtya under S. 313, Cr. P. C. has not at all been considered by the trial Court as well as the appellate Court. He has further stated that he had three stitches in his head and it was the Thanedar who had sent him for medical examination, while the Thanedar dishonestly omitted to record the fact in the case-diary. In the circumstances the propositions laid down by the Supreme Court in the case of Lakshmi Singh, are fully attracted. ( 10 ) THE petitioner's conviction and sentence as recorded by the trial Court and upheld by the appellate Court cannot be allowed to stand. It is liable to be set aside and is accordingly set aside and he is acquitted of the charges framed against him. His bail-bonds are discharged. Fine, if paid, be refunded to him. ( 10 ) THE petitioner's conviction and sentence as recorded by the trial Court and upheld by the appellate Court cannot be allowed to stand. It is liable to be set aside and is accordingly set aside and he is acquitted of the charges framed against him. His bail-bonds are discharged. Fine, if paid, be refunded to him. ( 11 ) THOUGH accused Mangtya has not preferred any revision petition against his conviction, to my mind in a revision petition where the legality of the impugned order itself is called in question, as pointed out by the Supreme Court the conviction and sentence of the non-petitioning accused Mangtya cannot also be sustained consistent with the findings in and the result of the revision petition as the findings are inter-dependant and inextricably integrated. The conviction and sentence of accused Mangtya are also set aside and the said Mangtya is acquitted of the charged framed against him. Fine, if paid by Mangtya be also refunded to him. Petition allowed. .