JUDGMENT (ORAL) Dr. E.S. Da Silva, J. - This revision is directed against the judgment of the learned Additional Sessions judge, Margao, dated 20th February, 1993 which has upheld the petitioners conviction under section 323 read with section 34 of I.P.C., by order dated 22.9.1992. By the aforesaid order the petitioners had been sentenced to pay a fine or Rs. 250/- each and in default to undergo 15 days simple imprisonment. 2. The case of the prosecution is mat on 20th November, 1982 at about 11 a.m., when the respondent No.1 (hereinafter referred to as the respondent) was returning to his house from the house of his mother-in-law situated at Comba, both the petitioners who are on inimical terms with him, kept a watch on him and physically assaulted him on the road near the petitioners house. The petitioner No.1 caught hold of him from behind while the petitioner No.2 hit him on his forehead with a stone causing him grave injury. On a complaint lodged by him to the Police he was sent to hospital where he was treated by the Medical Officer; A medical certificate was issued by Dr. Kusum Talaulikar, but inspite of that the complaint was treated as N.C. complaint. The respondent then lodged a private complaint in the Court charging the petitioners under sections 323 and 504 read with section 34 of I.P.C. The petitioners pleaded not guilty to the charge. The learned Magistrate after recording evidence found the petitioners guilty of the offences under section 323 I.P.C. and sentenced them accordingly. The appeal filed by the petitioners was then rejected by the judgment which is under challenge in this petition. 3. Shri Lawande, learned counsel for the petitioners, has firstly submitted that the evidence led by the complainant has not proved the case of the prosecution. According to the learned counsel the prosecution story narrated by the respondent is not at all corroborated by the testimony of the only available eye witness who is Michael Pereira, P.W. 3. The learned counsel urged that the said Michael is undoubtedly a chance witness. Further regard should have been taken by the Magistrate on the background of the case and the admitted strained relationship between the parties consequent upon which a number of police cases had been filed between the family members of both the respondent and the petitioners. The learned counsel urged that the said Michael is undoubtedly a chance witness. Further regard should have been taken by the Magistrate on the background of the case and the admitted strained relationship between the parties consequent upon which a number of police cases had been filed between the family members of both the respondent and the petitioners. Shri Lawande has contended that if the evidence of P.W. 3 is discarded nothing remains in support of the prosecution case because the evidence of P.W. 1 by itself cannot be said to be sufficient enough to establish the case of a physical assault against the respondent beyond reasonable doubt. It was also submitted by the learned counsel that the evidence of P.W. 2, a medical officer who examined the respon4ent after the incident, does not take the prosecution case any further. In her deposition P.W. 2 Dr. Kusum Talaulikar, has stated that the head injury sustained by the respondent could have been also caused by a fall. This means that the injury need not have been necessarily inflicted as a result of a blow, on his forehead by the petitioner with a stone. As far as the evidence of P.W. 3 Michael Pereira, Shri Lawande pointed out substantial contradictions between the testimony of the two main witnesses for the prosecution. First of all while the respondent in his evidence says that the assault occurred in front of the house of the petitioners, Michael Pereira refers to the fact that he saw the petitioner hitting the respondent near the Chapel. There is also some inconsistency in the deposition of both the witnesses inasmuch as while the respondent in his complaint says that after the incident he went home and thereafter to the Police Station and in, his deposition in the Court refers to the fact that he was taken by somebody to his house; P.W.3 Michael Pereira says it was he who took him to the house. Michael was the only witness cited by the petitioners. Being so, according to Shri Lawande it is difficult to believe that if the statement given by Michael Pereira that it was he who accompanied the respondent to his house after the incident of assault this circumstance might have been mentioned by the respondent in his complaint. Michael was the only witness cited by the petitioners. Being so, according to Shri Lawande it is difficult to believe that if the statement given by Michael Pereira that it was he who accompanied the respondent to his house after the incident of assault this circumstance might have been mentioned by the respondent in his complaint. This fact by itself shows that Michael appears to be a false and fabricated witness who does not seem to have been present at the time of the incident and has come to depose in the Court as a chance witness. Shri Lawande has taken me through the judgment of the learned Sessions Judge and pointed out some findings which according to him appears to be perverse and not based on the evidence on record. 4. In his turn Shri Kantak, learned counsel for the respondent, has submitted that there is no inconsistency or perversity in the findings of the learned Sessions Judge and therefore there is no reason for this Court to interfere in my of the findings in the exercise of its revisional jurisdiction. Shri Kantak has urged that the evidence of the complainant/respondent has not been Shaken at all during the cross-examination. He has clearly stated that the incident occurred in front of the petitioner's house when they both came out while he was passing through their house on his way home from the house of his mother-in-law. The contention of Shri Lawande that this story of the prosecution cannot be believed because the respondent was not required to pass through the petitioners house to go from his mother-in-law's place to his own house appears to be watered dawn' from the completed filed by the petitioners themselves to the police in respect of an incident purportedly occurred on the same day and time in front of their house. According to this complaint the petitioners admit that on that very day the respondent came in front of 'their house and started abusing the petitioner No. 2's wife whereupon the petitioner No.2 came out to inquire as to why the respondent was uttering abuses against his wife. At this time it is alleged that the respondent caught hold of his shirt and the petitioner No. 2 then hit back in order to give him a push and get himself freed. At this time it is alleged that the respondent caught hold of his shirt and the petitioner No. 2 then hit back in order to give him a push and get himself freed. From this complaint it flows that the question of the physical presence of the respondent in front of the house of the petitioners, and also the fact of a scuffle having occurred between them on the relevant date and time appears to have been established by the petitioners themselves. 5. The learned counsel has also urged that the evidence given by the respondent himself even assuming that the testimony of P.W. 3 is to be discarded is sufficient to make out the case of the prosecution. The submission of the learned counsel appears to be correct and deserves acceptance. In the facts and circumstances of the case and from the material brought on record by the petitioners, I see no reason as to why the testimony of the respondent should be disbelieved as far as the question of assault is concerned. According to the respondent after he was being assaulted by the petitioners he was taken to the hospital and examined by the doctor who certified the existence of an injury on his forehead. Therefore the evidence given by the respondent is to be deemed as corroborated by this medical evidence also. 6. On the other hand, the learned Sessions Judge has found some explanation with regard to the inconsistencies pointed out by Shri Lawande while confronting the statements of the respondent and P.W. 3 Michael Pereira. In this respect the finding given by the learned Sessions Judge that the reason as to why the respondent did not, mention either in his complaint or even at the time of his deposition in Court as to who actually accompanied him after the incident could be due, to the Court that after receiving a bleeding injury on his forehead he would be more concerned about me injury than to find out as to who was accompanying him cannot be said to be a perverse finding in the facts and circumstances of the case. Similarly another finding with regard to the story of the actual assault given by the respondent which has been corroborated by P.W. 3 as an independent eye witness need not be discarded for the reasons given by Shri Lawande that this witness being an interested witness cannot at all be relied upon. In this respect and although I am in agreement with the learned Petitioners counsel that P.W. 3 Michael appears to be a chance witness who might, however, happen to be at the place when the incident occurred, the fact that he is a person who used to pluck cocoanuts for the respondent does not make him necessarily as an interested witness. Shri Lawande is indeed right when he contends that the finding of the learned Sessions Judge to the extent that the facts averred by the petitioners in their complaint suggest a case of an assault actually committed on the petitioners is not correct As it was said above the said complaint only supports the case of the physical presence of the respondent in front of the petitioners house and the occurrence of a scuffle between the petitioners and the respondent on that occasion. Thus nothing more than that could have been drawn or extracted by the learned Sessions Judge from the said complaint. However, the fact remains that, as it was said above, the case of the prosecution is to be deemed as having been proved by the evidence given by the respondent himself which evidence was not rebutted by the petitioners in cross-examination and it was also further corroborated by the testimony of the medical officer. In the circumstances I am satisfied that a broad assessment of the evidence as it stands shows that the respondent was physically assaulted by the petitioners and as a result of which he has sustained an injury on his forehead. Hence the conviction of the petitioners under Section 323 appears to be justified in the facts of the case and on this point no grievance could have been made by the petitioners. 7. It was next submitted by Shri Lawande that in case this Courtl1olds that the conviction of the petitioners is to be affirmed then the benefit of probation should be given to them either under section 3 or section 4 of the Probation of Offenders Act (hereinafter referred to as the Act). 7. It was next submitted by Shri Lawande that in case this Courtl1olds that the conviction of the petitioners is to be affirmed then the benefit of probation should be given to them either under section 3 or section 4 of the Probation of Offenders Act (hereinafter referred to as the Act). According, to the learned counsel the refusal on the part of the learned Sessions Judge to entertain the petitioners application made for the purpose clearly reveals non-application of mind on his part the learned counsel has invited my attention to the provisions of section 361 of Cr. P.C. which clearly lays down a mandate on the trial Courts to, give reasons in a certain set of circumstances as to why the provisions of the Act should not be applied to an accused. Shri Lawahde has contended that the onus of giving reasons is, therefore, cast on the Magistrate himself and, therefore, the argument that such benefit could not be extended to the petitioners because having failed to raise such a ground in the memo of appeal and also by not raising the point during the hearing, of the appeal and petitioners by moving the application only after the completion of the hearing has taken the respondent by surprise is totally unacceptable. 8. Shri Kantak has joined issue with the petitioner learned counsel in this regard by stating that the observation made by the learned Session Judge are well conceived once it was for the petitioners to lay down the foundation of the applicability of the relevant provision of the Act. According to the learned counsel by failing to raise the point before the trial Court the petitioners were notable to adduce any evidence to show that the requirements of the applicability of sections 3 or 4 of the Act are to be attracted in the instant case. According to the learned counsel by failing to raise the point before the trial Court the petitioners were notable to adduce any evidence to show that the requirements of the applicability of sections 3 or 4 of the Act are to be attracted in the instant case. Shri Kantak has taken me through the provision of section 3 which reads that when any person is found guilty of having committed an offence punishable with imprisonment for not more than two years or with fine or with both under the Indian Penal Code or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to do So then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to, any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. The learned counsel has argued that by failing to adduce evidence about the previous - conviction or the character of the petitioners or even regarding the nature of the offence the petitioners would not be able to make a case to justify the applicability of section 3 of the Act In reply Shri Lawande has submitted that having regard to the fact that this being a case tried as a summons case in terms of provisions of section 255(2) Cr. P.C. there was no opportunity for the petitioners to lead any evidence to establish the grounds for the applicability of the aforesaid provision and, therefore, there was no scope for him to gather material for this purpose. 9. The learned counsel has cited a number of judgments of the Supreme Court in support of his contention that the applicability of the provisions of the Act should have been done by the Courts below suo motu and therefore this Court as a revisional Court has also powers and the duty so to do. For this purpose reliance has been placed by the learned counsel in the cases of Mofaldina Fernandes v. State1, Keshav Sitaram Sali v. State of Maharashtra2, Babu Raghunath Naik v. Mrs. For this purpose reliance has been placed by the learned counsel in the cases of Mofaldina Fernandes v. State1, Keshav Sitaram Sali v. State of Maharashtra2, Babu Raghunath Naik v. Mrs. Tereiinha Pacheco Faria and another3, Rosha nali Burhanali Syed v. State of Gujarat4 and Hansa v. State of Punjab5. In the last three rulings it was pointed out by Shri Lawande that the Courts have given to the accused the benefit of probation even in serious offences of theft and grevious injuries. 10. After going through the said judgments, I am Satisfied that it is for the Courts to decide whether the facts and circumstances of the case justify the benefit and judiciously apply, its mind before availing or the provisions of the Act when there is no material to establish that an accused has been previously convicted and there is also nothing to militate against his character after taking into account the nature of the offence and the expediency of such probation being extended to them. 11. In the instant case Shri Kantak bas pointed out that the offence appears to be of serious nature, and in view of' the concurrent findings of both the Courts below there was no reason for this Court in the exercise of it revisional jurisdiction to go to the extent of applying the benefit of section 3 of the Act to the petitioners by simply releasing them after due admonition. According to him substantial justice could be arrived at in case this Court finds that the provisions of the Act should be applied to the petitioners by releasing them in terms of section 4 of the Act on their entering into a bond of good conduct 12. There appears to be some substances in the submission of the learned counsel for the respondent From the overall considerations of the case namely the fact that the occurrence took place, more than 10 years ago it seems that the ends of justice would be met if the petitioners are directed to be released on probation on their entering into a bond for a Period of one year without any surety which bond the petitioners should execute before the trial Court. Shri Lawande has requested for a period of four weeks to enable the petitioners to appear before the learned Magistrate for the purpose of executing the said bond. The request is granted. 13. Shri Lawande has requested for a period of four weeks to enable the petitioners to appear before the learned Magistrate for the purpose of executing the said bond. The request is granted. 13. Accordingly the revision is partly allowed. The order of conviction imposed by the learned Magistrate and upheld by the learned Sessions Judge is confirmed but the sentence awarded on them should not be executed during the probation period on the petitioners executing a bond as per the directions given above. Rule is partly made absolute in the above terms. Revision partly allowed. 1. 1968 Cri. LJ. 1340. 2. A.I.R. 1983 S.C. 291. 3. A.I.R. 1967 Goa. Daman Diu 95. 4. A.I.R. 1982 S.C. 784. 5. A.I.R. 1977 S.C. 1991.