Judgment ( 1. ) THIS judgment shall govern Criminal Revision No. 364/01, Criminal Appeal No. 899/01 and Criminal Appeal No. 808/03 as all are arising out of the same impugned judgment dated 13. 2. 01 passed by the 4th Additional Sessions Judge, Rewa in Criminal Appeal No. 273/2000 arising out of a judgment dated 12. 12. 2000 passed by the Chief Judicial Magistrate, Rewa in Criminal Case No. 616/95 convicting the applicant/accused/appellant under Section 326 of IPC and sentenced for three years R. I. with fine of Rs. 3000, in default for further six months R. I. The said judgment of the trial court was modified by the Sessions Judge in above mentioned appeal, the conviction of the accused was converted from Section 326 into Section 325 of IPC and instead awarding the jail sentence the benefit of Section 4 of the Probation of Offenders Act was extended with a direction to release him on probation for three years with another direction to pay damages of Rs. 10,000/- to the complainant with adjustment of the fine amount of Rs. 3000/ -. ( 2. ) BEING aggrieved by the aforesaid judgment of the Sessions Court the Criminal Revision No. 364/01 has been filed by the applicant/accused for setting aside his conviction and direction for damages while Criminal Appeal No. 899/01 has been filed on behalf of the State under Section 11 (2) of Probation of Offenders Act 1958 against the finding of the appellate court extending the benefit of Probation to the accused while another Criminal Appeal No. 808/03 has been filed on behalf of the State under Section 378 (3) r/w Section 378 (1) of Cr. P. C. against acquittal of the accused under Section 326 of IPC by the subordinate Appellate Court. ( 3. ) THE applicant Dhruv Singh, of the aforesaid Criminal Revision who is impleaded as respondent in aforesaid both the criminal appeals is to be referred as an accused hereinafter in this judgment while the respondent of said revision and the appellant in both the appeals, the State of M. P. are to be referred hereinafter as prosecution. ( 4. ) THE facts giving rise to the all aforesaid cases are that on dated 26. 6. 1995 at about 9. 30 in the night the complainant Laxmi Prasad Singh on reaching to his home from the market. ( 4. ) THE facts giving rise to the all aforesaid cases are that on dated 26. 6. 1995 at about 9. 30 in the night the complainant Laxmi Prasad Singh on reaching to his home from the market. He personally requested to the accused Dhruv Singh for closing the window opened towards his courtyard as its opening is not necessary for the accused. At that time complainant was standing on the road while the accused alongwith his wife, married daughter and Shiv Shankar, the son-in-law etc. on his tarace. On hearing such thing from the complainant the accused pelted a stone from his tarace, which caused injury to the complainant on his head and left eye. On giving intimation to Police Station, Civil Lines, Rewa, he was referred to hospital for medical examination and treatment where his MLC report was prepared and remained under treatment. One another report regarding nature of injury was given by doctor on dated 22. 7. 1995. On its basis the offence under Section 326 of IPC was registered against the accused at the aforesaid Police Station, The accused was arrested. After holding investigation, the accused was charge sheeted under Section 326 of IPC. ( 5. ) THE charge under Section 326 was framed against the accused. On denial the trial was held. in trial the prosecution has examined as many as eight witnesses while two witnesses were examined on behalf of the accused in his defence. On appreciation of the evidence the trial court has found guilty to the accused under Section 326 of IPC for which he was sentenced for three years R. I. with fine of Rs. 3000/- with a direction to give Rs. 2000/- out of the fine amount to the complainant Laxmi Prasad. ( 6. ) THE said judgment of the trial court was assailed by the accused in the subordinate Appellate Court, where on hearing the impugned judgment was passed, as said above. Such judgment is challenged by the State by tiling aforesaid two appeals, while by the accused through said criminal revision. In the nut shell the State has come forward for restoration of the judgment of the trial court while the accused has come for his acquittal to this Court. ( 7. Such judgment is challenged by the State by tiling aforesaid two appeals, while by the accused through said criminal revision. In the nut shell the State has come forward for restoration of the judgment of the trial court while the accused has come for his acquittal to this Court. ( 7. ) COUNSEL for the accused in support of his revision has submitted that in view of evidence laid by the prosecution on proper appreciation of it the appellant should have been acquitted by the trial court as pelting the alleged stone by the appellant was not proved even by the depositions of victim Laxmi Prasad Singh (PW-1 ). By referring para 7 of his deposition he submitted that some bricks were put by this witness for the purpose of closing the alleged window, Subsequent to it the window was said to be a ventilation and the location of it little below from the roof of the house. The victim saw the stone while it was falling when the ventilation was on some height of the room and near to roof then the question to identify the person inside of such ventilation was not possible. But this question was not considered by both the courts below. By referring the depositions of Ram Sanehi Sigh (PW-4) it was submitted that he was not the eye-witness but he deposed the version said to him by victim only. He was declared hostile. Even on declaring him hostile nothing fruitful has come in his cross examination in support of the prosecution. By referring the deposition of another witness Tejbali Singh (PW-5), he has submitted that this witness has also not supported to the testimony of complainant as he was also not the eye witness. Besides this he stated that even on reaching him to spot, he could not know who assaulted to victim. Other alleged witnesses of the incident Dr. J. K. Sharma, (PW-6) has also became hostile and even in cross examination by the prosecution no fruitful thing in favour of the prosecution was stated by him, ( 8. ) RECOVERY of such stone has not been proved by reliable evidence, It is not in dispute that there was enmity in between the complainant and the appellant on account of such window or ventilation, hence false implication of accused could not be ruled out and firstly he prayed for acquittal of the accused. ) RECOVERY of such stone has not been proved by reliable evidence, It is not in dispute that there was enmity in between the complainant and the appellant on account of such window or ventilation, hence false implication of accused could not be ruled out and firstly he prayed for acquittal of the accused. ( 9. ) HE has also advanced his arguments by assailing the findings of the appellate court regarding imposition of Rs. 10,000/- against him as damages. According to him once the court has extended the benefit of Probation of Offenders Act then the punishment could not have been awarded against him in any manner. The punishment is defined under Section 53 of the IPC in which the fine is also included. As per provision of Section 4 of the Probation of Offenders Act and Section 360 of the Cr. P. C. the person who had no criminal history or antecedents is found guilty for such offence, then on proper consideration he could be extended the benefit of such provision. In such circumstances no punishment could be imposed. Therefore, after holding case of Probation the appellate court has committed grave error in imposing the fine in the shape of damages and prayed in case accused is not acquitted then such findings of the appellate court be quashed and the benefit of Probation should be given to him without imposing any fine or damages. ( 10. ) BY opposing the appeals filed by the prosecution in respect of Criminal Appeal No. 808/03 he has submitted that the appellant has not committed the alleged incident, therefore, he could not be connected with the case. But in view of the medical evidence available on the record the approach of the appellate court regarding nature of injury sustained by the victim was correct. The same is covered under Section 325 of IPC only and not under Section 326. he also referred the deposition of Dr. R. P. Shrivastava (PW-3) and his MLC report, Ex. P/5 in this regard. Besides this he has also referred the medical report of victim, Ex. P/4 prepared by Dr. R. K. Mishra, (PW-2) and submitted that according to it no vital organ was damaged due to said alleged injury, hence the offence was not covered under Section 326 and prayed for dismissal of the said appeal filed by the State. ( 11. Besides this he has also referred the medical report of victim, Ex. P/4 prepared by Dr. R. K. Mishra, (PW-2) and submitted that according to it no vital organ was damaged due to said alleged injury, hence the offence was not covered under Section 326 and prayed for dismissal of the said appeal filed by the State. ( 11. ) SO far the Criminal Appeal No. 899/03 is concerned, he has submitted that it was a matter of record that accused had no criminal history or antecedents in past. In such circumstances in view of mandatory provision of Section 360 of the Cr. P. C. and the provision of Section 4 of the Probation of Offenders Act the appellant was rightly extended the benefit of the aforesaid provisions. Hence, the appellate court has not committed any error or mistake in extending such benefit to the appellant. Simultaneously he has submitted that he has made this submission in alternate while on allowing his Criminal Revision in consequence of the same both the appeals of prosecution are liable to be dismissed and submitted that both the appeals of the State be dismissed by allowing his criminal revision. ( 12. ) WHILE other hand Shri Ramesh Shukla learned Dy. Govt. Adv. has submitted that the appellate court has committed a grave error in converting the conviction of me accused from Section 326 into Section 325 of IPC while as per available medical evidence the case was fully covered by Section 326 IPC. In support of this contention he also referred the depositions of said doctors and their reports. According to him in view of duration of treatment and the injury sustained by the victim on his eye and face by which the victim has lost the vision capacity of his eye till some extent. Hence, it was not a case of conversion and prayed for restoring the judgment of the trial court by allowing his criminal appeal No. 808/03. ( 13. ) HE also submitted that even on conversion the conviction of the accused from Section 326 to 325 of IPC there was no circumstance for extending the benefit of Probation under the aforesaid provision. As per his submission the approach of the appellate court in this regard is apparently contrary to such provisions. ( 13. ) HE also submitted that even on conversion the conviction of the accused from Section 326 to 325 of IPC there was no circumstance for extending the benefit of Probation under the aforesaid provision. As per his submission the approach of the appellate court in this regard is apparently contrary to such provisions. Hence, the same is required modification at this stage and prayed for setting aside the Probation awarded by the appellate court to the accused by allowing his criminal appeal No. 899/01. ( 14. ) SO far criminal revision of accused is concerned, he said that both the courts below, on appreciation of evidence have rightly held guilty to the appellant for the alleged incident, hence under the revisional jurisdiction accused is not entitled to get any relief by re-appreciating the evidence. It was also submitted by him that the evidence was appreciated by both courts below in accordance with settled provisions of the law in this regard. No error of jurisdiction or any irregularity, illegality or perversity have been committed by courts below in holding guilty to the accused. Hence, there is no scope for allowing the revision and prayed for dismissal of the same. ( 15. ) HAVING heard learned Counsels, I have gone through the record of the trial court. It is matter of fact that earlier to the date of incident the party had some enmity against each other on account of opening some window or ventilation by the appellant towards the courtyard of the complainant. As per para 7 of the deposition Laxmi Prasad Singh, (PW-1), the victim, it appears that the ventilation or the window of the accused was closed by putting some bricks in front of it, Such ventilation or window was on a height of a room at the upper story and the same was only little below from the roof, So it is not possible for a person who is standing at the road may see the person who is in the room from such window or ventilation at upper story. In such circumstances for the sake of arguments if it is assumed that stone was pelted from the upper side, the same could not be alleged against the accused that it was pelted by him. The same has also not been proved by the prosecution, specifically from the spot map, Ex. In such circumstances for the sake of arguments if it is assumed that stone was pelted from the upper side, the same could not be alleged against the accused that it was pelted by him. The same has also not been proved by the prosecution, specifically from the spot map, Ex. P/1, Besides this as per own depositions of victim in para 1, some other persons were also present on such roof or tarace of the appellant, then the alleged act can not be connected with the accused. So in such circumstances in view of the enmity in between the parties the version of this witness could not be relied unless the same is corroborated by any independent eye witness. While alleged eye witness Ram Sanehi Singh (PW-4) has not said anything against the accused. Even after declaring him hostile, he has not supported the case of the prosecution, the other witness Tejbali Singh (PW-5) reached to the place of incident subsequent to the incident. He only saw to victim in injured condition and stated only hearsays versions. Various persons are residents in such locality but none of the resident has come or supported the case of prosecution. Hence, the story put fourth by the prosecution has not been proved by any of the aforesaid witnesses. Dr. J. K. Sharma (PW-6) has also not said anything against the accused, hence in view of the aforesaid the prosecution has failed to proved the case against the accused beyond reasonable doubt. ( 16. ) MERE on the testimony of victim Laxmi Prasad Singh (PW-1) accused could not be convicted unless the same is not supported by any independent witness. This question was answered by the apex court in the matter of Bir Singh and Ors. v. State of Utter Pradesh reported in AIR1978 SC 59 , 1978 Crilj177a , (1977 )4 SCC420 in which it is held as under: Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the Court would be justified in drawing an adverse inference against the prosecution," (Placitum ). The said dictum is directly applicable to the case at hand. In view of the aforesaid discussion. ( 17. The said dictum is directly applicable to the case at hand. In view of the aforesaid discussion. ( 17. ) THEREFORE, it is held that the trial court as well as the appellate court both have committed apparent error of jurisdiction in appreciation of the evidence as the material questions as said above have not been considered in accordance with legal position as laid down in the aforesaid case by the apex court. Hence the conviction of the accused as held by court below is not sustainable under the law. Hence, The judgments of the courts below require interference for giving acquittal to the accused by allowing his criminal revision. ( 18. ) COMING to the Criminal Appeal No. 808/03 it is suffice to say that the offender of the criminal case is always held guilty for such offence or act which actually committed the same can be ascertained only on account of nature of injury. On perusing Ex. P/5 the MLC report and deposition of Dr. R. K. Shrivastava (PW-3), it appears that some injuries were sustained by the victim on his face and eye but it has not been proved by the appropriate evidence of scientific investigation showing that the victim has lost his vision of his eye permanently or till some extent permanently. In the absence of it, it could not be said that such injury was sufficient to hold the permanent deprivation of the eye or any vital organ of the body. Even Dr. R. K. Mishra, (PW-2) in his report, Ex. P/4 or his deposition has not stated that such injury has created the permanent deprivation to the eye of complainant. Hence, it is held that the appellate court has not committed any error in converting the Section 326 of IPC into Section 325 of the IPC. In view of this finding the appeal filed by the prosecution for restoration of the judgment of the trial court fails and liable to be dismissed. In spite the aforesaid finding no liability can be imposed against the appellant for aforesaid offence. ( 19. ) SO far Criminal appeal No. 899/01 is concerned, when in the foregoing paragraphs it has been held that the accused was entitled for acquittal and he has been wrongly convicted and sentenced by the trial court under such circumstances the question of Probation does not remain in the case. ( 19. ) SO far Criminal appeal No. 899/01 is concerned, when in the foregoing paragraphs it has been held that the accused was entitled for acquittal and he has been wrongly convicted and sentenced by the trial court under such circumstances the question of Probation does not remain in the case. Hence this appeal does not require any consideration on merits. It can be disposed of in view of the conclusion of said Criminal Revision, as court is not bound to decide the academic question, which is not necessary to decide any controversy in the case. ( 20. ) IN view of the aforesaid discussion and findings the criminal revision No. 364/01 filed on behalf of the accused is hereby allowed and the judgments of both the courts below holding guilty to the accused are hereby set aside by acquitting the applicant-accused of said criminal revision. In consequence of it the criminal appeal No. 808/03 and Criminal Appeal No. 899/01 tiled on behalf of the State are hereby dismissed. The copies of this judgment are placed with the record of all aforesaid cases. The amount of line if deposited by the accused, then same be refunded to him.