Anil Kumar Sharma, J. 1. Challenge in this appeal is to the judgment and order dated 5.3.1984 passed by Sri M.K. Mittal, the then VIth Addl. Sessions Judge, Jhansi in S.T. No. 212 of 1982 ( State Vs. Balbir and two others) whereby the appellants were found guilty for the offence punishable under Sections 325 read with section 34 IPC. Appellants Balbir and Roop Singh have been sentenced to undergo one year's rigorous imprisonment while appellant-Bindrawan was given benefit of Section 4 of U.P. First Offenders Probation Act. During pendency of the appeal, appellant-Bindrawan has passed away. 2. Shorn of details, the prosecution story as contained in the FIR and unfolded during trial is that on 8.8.1981 at about 6:30 P.M. the complainant lodged first information report with the P.S.-Moth, District-Jhansi against the accused-appellants alleging that they had assaulted the complainant with intention to kill him. As per the FIR version, ten days before the instant incident, the son of Pradhan of Bhairaw Ghat was bitten by snake and cousin of the complainant namely Gulab Yadav went to Jhansi with him for treatment. The divorced first wife of Roop Singh was living at Jhansi. Roop Singh was told by somebody that the cousin of complainant namely Gulab Yadav had instigated his wife to file a case of maintenance against him which annoyed him so he was in search of an opportunity to beat Gulab. The complainant Man Singh told Roop Singh not to beat him, but he was annoyed with the complainant. On 6.8.1981, two days prior to the incident, accused-appellants came at the house of Gulab but the complainant closed the doors of the house and could not assault him and left after hurling abuses. On the date of incident, while the complainant was returning from his field and reached near the shop of Sarju Baba of the village at about 6.30 p.m., the accused persons came from their houses and surrounded him with intention to assault. Appellant-Balbir Singh was armed with axe, appellant-Roop Singh was having a spear and appellant Brindawan was armed with lathi. Brindawan exhorted his sons ( appellants No. 1 and 2) to kill the complainant and gave a lathi blow upon him. Appellant-Balbir Singh was armed with axe, appellant-Roop Singh was having a spear and appellant Brindawan was armed with lathi. Brindawan exhorted his sons ( appellants No. 1 and 2) to kill the complainant and gave a lathi blow upon him. Accused-appellant Roop Singh assaulted his right arm with spear, the complainant wrested the spear from him, then Balbir attacked on his head with axe and Roop Singh began to beat with lathi causing injuries to the complainant. On his cries, Balram son of Meghraj Yadav, Shyam Lal son of Dhaniram Gadariya, and Manni Lal son of Maharaj Singh Yadav rushed and exhorted then, the accused-appellants took to their heels and entered the house. It has been further alleged in the FIR that if those witnesses had not come the complainant would have been killed at the hands of the accused-appellants. On the basis of this report a case at Crime No. 119 of 1981 under sections308 IPC was registered, investigation whereof was entrusted to SI Abdul Qayum Khan ( P.W.-4). He reached at the spot, recorded statement of witness Balram Yadav and prepared site plan Ex. Ka-7. His investigation culminated into charge against the accused persons. 3. The injured Man Singh was medically examined by Dr. Y.K. Sharma, Medical Officer Primary Health Centre, Moth on 8.8.1981 at 9:30 P.M. He found the following injuries on the persons of the injured:- 1. Incised wound 1-1/2 x 2/10" x bone deep in whole of the length on left side fore-head above downwards just above eyebrow bleeding. 2. Lacerated wound 1" x 2/10" x scalp deep on scalp oblique direction 5" from Tragus of left ear and 8" from bridge of nose. Bleeding present. 3. Lacerated wound 7/10" x 2/10" x scalp deep on left side vault of scalp oblique direction 4" from Tragus of left ear. Bleeding after removing clots. 4. Contusion 4-1/2" x 1" red colour on lateral side of upper part of left thigh horizontal direction 1-1/2" below greater trochenter. 5. Contusion 4-1/2" x 1" red colour on lateral side of upper part of left thigh directing downwards 1-1/2" below greater trochenter. 6. Contusion 3" x 1" red colour post aspect of left thigh horizontal direction 8" above knee. 7. Contusion 3" x 1" red colour post aspect of left thigh horizontal direction 4" above knee. 8. 5. Contusion 4-1/2" x 1" red colour on lateral side of upper part of left thigh directing downwards 1-1/2" below greater trochenter. 6. Contusion 3" x 1" red colour post aspect of left thigh horizontal direction 8" above knee. 7. Contusion 3" x 1" red colour post aspect of left thigh horizontal direction 4" above knee. 8. Contusion 2-1/2" x 1" on lateral aspect of left thigh 7" above knee red colour. Swelling present. 9. Contusion 3" x 1" on lateral aspect of left thigh 4" above knee horizontal direction. 10. Contusion 2" x 1" on lateral Moleolem left leg horizontal red colour swelling. 11. Contusion 1-1/2" x 1" on lateral aspect of left elbow above downwards. 12. Contusion 1-1/2" x 7/10" oblique on lateral aspect of left forearm red colour. 13. Penetrating wound 5/10" x 2/10" x 7/10" on posterior lateral aspect of right upper arm 2-1/2" above elbow joint. 14. Contusion 2" x 7/10" red colour posterior lateral aspect of right forearm oblique direction 3" below elbow joint 15. Contusion 5" x 1" on right side back of chest downwards and lateral from 5th thorasic spine. Red colour. 16. Contusion 3" x 1-1/2" on left side back of chest downwards medially from 4th thorasic spine. 17. Contusion 4" x 1" red colour above downwards and medially on post aspect of right thigh 3" above knee. 18. Abrasion 1" x 7/10" on lower part of right knee joint in front side. In the opinion of the doctor the injuries were fresh, pupil of both eyes were equally reacting to light and no symptom of vomiting was present. Injury no. 1 was caused by sharp edged weapon, injury no. 13, by pointed weapon and rest, by blunt weapon. The injuries were kept under observation. The Doctor proved the injury reports, Ex. Ka. 4 to Ex. Ka. 6. As per the supplementary report dated 13.08.1981, there was swelling around ankle-injury No. 10; with pain and tenderness. Rest injuries were healing. On X-ray examination injury No. 10 was found grievous as fracture in calcanium bone was found, as per second supplementary report dt. 18.8.1981 prepared on the basis of the report of Radiologist, District Hospital Jhansi. Doctor opined that the injuries could have been caused on 8.8.1981 at 6:30 P.M. Injury No. 1 could have been caused by axe, injury No. 13, by spear and the rest by Lathi. 18.8.1981 prepared on the basis of the report of Radiologist, District Hospital Jhansi. Doctor opined that the injuries could have been caused on 8.8.1981 at 6:30 P.M. Injury No. 1 could have been caused by axe, injury No. 13, by spear and the rest by Lathi. Cumulative effect of these injuries was reported not to be fatal for life. 4. On 24.8.1983, Sri M.K. Mittal, the then Vth Addl. Sessions Judge, Jhansi has farmed charges against the appellants under Section 308 IPC and on 20.1.1984, it was amended by the same learned trial Judge to be under Section 307 IPC. 5. In order to prove its case, the prosecution had examined complainant and injured Man Singh PW-1, Dr. S.C. Srivastava PW-2, Dr. Y.K. Sharma PW-3, SI Abdul Qayum Khan PW-4, HC Ram Dutt Dixit PW-5 and HC Raja Bhaiya PW-6. 6. Statements of the accused appellants were recorded under Section 313 Cr.P.C. They denied the charges levelled upon them and claimed trial. They contended that they have been implicated due to enmity. Roop Singh stated that he has not left his first wife. He never wanted to beat Gulab Singh and did not abuse him or the complainant, nor he beat him. Accused Balbir denied any enmity with the complainant. He has stated that his father and the father of the complainant are real brothers, his father had got more land than Man Singh. They have also two rooms in the house of Man Singh and he wanted them to vacate the rooms but they did not do so, which was the reason to displease the complainant. He has further stated that the complainant was in touch with the gang of Mani Ram and at the pointing out of the complainant Mani Ram was arrested, who had beaten the complainant ( injured). His brother Udavir Singh and Balram brought the complainant from Khandak of Sewra hillock. Accused Bindrawan has also denied that he asked his sons ( appellants) to beat the complainant to death. He further stated that he got two rooms in the house of complainant. He did not vacate those rooms at the insistence of the complainant and for this reason, he developed enmity with the appellants. He also stated that he had been beaten by Mani Ram and not by them. However, accused persons did not examine any witness in defence. He further stated that he got two rooms in the house of complainant. He did not vacate those rooms at the insistence of the complainant and for this reason, he developed enmity with the appellants. He also stated that he had been beaten by Mani Ram and not by them. However, accused persons did not examine any witness in defence. Even, on behalf of the prosecution case, besides the formal witnesses, only complainant was examined, other witnesses mentioned in the FIR did not come forward to support the prosecution case due to fear and it appears later on, Gulab was also won over by the accused persons and he was not examined by the prosecution. 7. The learned trial Court after hearing the parties' counsel through the impugned judgment has released appellant-Bindrawan on probation under Section 4 of U.P. First Offenders Probation Act for good conduct of one year and convicted and sentenced appellants Balbir and Roop Singh as noted in para-1 of this judgment. Aggrieved, the appellants have filed the instant appeal. 8. I have heard Sri S.D. Singh Jadaun, Amicus Curiae for the appellants, Sri Sushil Kumar, learned AGA of the State and perused the impugned judgment and record of the trial court. 9. Sri Jadaun, Amicus Curiae has stated that the appellants have been falsely implicated in the case. They had not beaten the complainant; that no independent witness had been examined by the prosecution and the sole interested testimony of Man Singh PW-1 should not be relied upon. In fact, the complainant was beaten by Mani Ram but the accused-appellants have been implicated due to partition dispute between the parties. Alternatively it has been submitted that the surviving appellants were allegedly having spear and axe and only one injury each of such weapon had been found on the person of the complainant and the other injuries including injury no. 10 was caused by co-accused Brindavan, who had been extended benefit of Probation of Offenders' Act by the trial Court, so the interest of justice demands that the appellants no. 1 and 2 be also given the same treatment in the matter of quantum of sentence. On the other hand the learned AGA supporting the impugned judgment has vehemently argued that the complainant has suffered as many as 18 injuries, there was no reason for him to falsely implicate the appellants rather the real culprits. 10. Dr. 1 and 2 be also given the same treatment in the matter of quantum of sentence. On the other hand the learned AGA supporting the impugned judgment has vehemently argued that the complainant has suffered as many as 18 injuries, there was no reason for him to falsely implicate the appellants rather the real culprits. 10. Dr. S.C. Srivastava-PW-2, Radiologist at District Hospital Jhansi, proved Ex. Ka. 3, the X-ray report of left leg of Man Singh. He found fracture in calcanium bone. He also proved his report Ex. Ka. 3. Raja Bhaiya-PW-6 who took the injured to the hospital, was examined. 11. Complainant and injured Man Singh, PW-1 has reiterated almost the FIR version. before the trial Court He has further stated that accused Balbir and Roop Singh are his cousin brothers and Brindawan is his uncle. Gulab is the son of his younger uncle and there was no unity among them. The accused persons were in search of Gulab for the reason mentioned in para-2 of this judgment and the complainant was taking his side which resulted in enmity with the accused appellants and they beat the injured on the date of incident and his life was saved on the intervention of the witnesses named in the FIR but they did not come forward to depose against the accused persons for the element of fear. He further stated that his clothes were taken by the constable at Police Station and has proved Ex. Ka-1, Fard Ex. Ka-2, Kurta of Balram Ex. 1, his Kurta Ex.-2 and Baniyan Ex.-2 deposing that for collecting his X-ray he had gone to District Hospital, Jhansi. This witness had been cross-examined at length on behalf of the defence, but nothing adverse could be elicited from his testimony which may create doubt about the authenticity of the prosecution story. 12. The injuries found on the person of the injured have been proved by Dr. Y.K. Sharma PW-3, who had medically examined 3-hours after the incident on the same day i.e. 8.8.1981. He has clearly mentioned in his report Ex. Ka-4 that all the injuries found on the person of Man Singh were fresh. Injury no 1 could be caused by sharp weapon, injury no. 3 by pointed sharp object and rest by hard and blunt object. The injuries were kept under observation. After x-ray examination report of Radiologist-Dr. S.C. Srivastava, PW-2, Dr. Ka-4 that all the injuries found on the person of Man Singh were fresh. Injury no 1 could be caused by sharp weapon, injury no. 3 by pointed sharp object and rest by hard and blunt object. The injuries were kept under observation. After x-ray examination report of Radiologist-Dr. S.C. Srivastava, PW-2, Dr. Sharma in his supplementary report Ex. Ka-6 has opined that injury no. 10 was grievous and rest were simple. On the basis of this injury the accused persons had been found guilty for the offence punishable u/s. 325/34 IPC. Role of causing in injury no. 1 could be attributed to appellant Balbir as he has allegedly used axe and injury no. 3 could be caused by Roop Singh with bhala, but surprisingly the learned trial Court has not convicted these appellants for the offence punishable u/s. 324 IPC. Aggrieved, the State has not filed any appeal and in this appeal u/s. 374 Cr. P.C., this Court cannot convict these appellants u/s. 324 IPC and sentence them accordingly as it would amount enhancement of punishment, which is beyond the scope of Section 374 Cr. P.C. However, in the facts and circumstances of the case it is found that the statement of the complainant finds full corroboration from medical evidence on record and the accused-appellants no. 1 and 2 were rightly convicted by the trial Court for the offence punishable under section 325/34 IPC. 13. Learned Amicus Curiae for the appellants no. 1 and 2 have argued that the incident is about 33 years old, this appeal is pending for three decades, these appellants have no criminal history nor they are previous convict, so no useful purpose would be served to send them to jail for a short term of one year and as such they may be extended benefit of Section 360 Cr. P.C. In this connection he has submitted that it was imperative for the trial Court to have given special reasons as provided in Section 361 Cr.P.C. for not extending benefit of Section 360 Cr. P.C. to these appellants. 14. The learned trial Court considering the old age of appellant no. 3, has given benefit of Section 4 of Probation of Offenders Act to him, but the same has been denied to the appellants no. 1 and 2. Section 360 and 361 Cr. P.C. reads as under: "360. P.C. to these appellants. 14. The learned trial Court considering the old age of appellant no. 3, has given benefit of Section 4 of Probation of Offenders Act to him, but the same has been denied to the appellants no. 1 and 2. Section 360 and 361 Cr. P.C. reads as under: "360. Order to release on probation of good conduct or after admonition :-- ( 1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period ( not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section ( 2). ( 2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section ( 1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. ( 3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code ( 45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. ( 4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. ( 5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. ( 6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. ( 6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. ( 7) The Court before directing the release of an offender under sub-section ( 1), shall be satisfied that an offender or his surety ( if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. ( 8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance , it may issue a warrant for his apprehension. ( 9) An offender, when apprehended on any such warrant shall be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and Court may, after hearing the case, pass sentence. ( 10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 ( 20 of 1951), the Children Act, 1960 ( 60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." Section 361 Cr. P.C. reads as under: "361. Special reasons to be recorded in certain cases.- Where in any case the Court could have dealt with- ( a) an accused person under section 360 or under the provisions of Probation of Offenders Act, 1958 ( 20 of 1958), or ( b) a youthful offender under the Children Act, 1960 ( 60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. but has not done so, it shall record in its judgment the special reasons for not having done so." It appears that the effect, relevance and applicability of Section 360 Cr.P.C. have not been considered by the court below although it was argued on behalf of the appellants that they belong to the same family and have no criminal history. 15. 15. The Apex Court in the case of Eliamma & Anr. vs. State of Karnataka : ( 2009) 11 SCC 42 , in which the accused appellant was found guilty for the offence punishable u/s. 304 Part-II IPC, remitted the matter to the trial court for limited purpose for deciding whether the benefit under Section 360 Cr.P.C. can be extended to the appellants. It has followed the principles laid down in Chandreshwar Sharma Vs. State of Bihar : 2000 ( 9) SCC 245 ], wherein it was observed as follows: "The appellant herein was convicted under Sections 379 and 411 IPC and was sentenced to rigorous imprisonment for one year as 3.5 kg of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable. Pursuant to the said notice, Mr. Singh, the learned Standing Counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the court of appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed." 16. The language employed in section 360 Cr.P.C. shows that stress is upon making an attempt at reforming a convict. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed." 16. The language employed in section 360 Cr.P.C. shows that stress is upon making an attempt at reforming a convict. To make it obligatory on the part of the court to deal with a case under section 360 Cr.P.C., it has been clearly mentioned in section 361 Cr.P.C. that if a case is not dealt with section 360 Cr.P.C., the court has to record special reasons for not doing so in its judgment. In the instant case, the learned trial Court has extended benefit of Section 4 of Probation of Offenders' Act to co-accused Brindawan ( father of appellants no. 1 and 2) on account of his advanced age, but has declined to provide this opportunity to appellant no. 1 and 2, simply because the complainant had sustained as many as 18 injuries. It has been further observed that all the accused persons belong to the same family and there is no earlier offence alleged or reported against them. The appellants no. 1 and 2 are real brothers and they were quite young at the time of the incident. The incident took place in year 1981 i.e. about 33 years ago and the appeal is pending for three decades, therefore, sending appellants no. 1 and 2 for a short term of one year to prison would not serve the interest of justice particularly when they have no other criminal history including conviction. Learned AGA could not also bring to the notice of the court any other depravity in their character, which may show them to be of incorrigible nature, which is required for declining the benefit of probation to these convicts. In these circumstances, considering the age, character and antecedents of the appellants no. 1 and 2, the interest of justice would be served if they are extended benefit of Section 360 Cr. P.C. 17. The appeal of appellants no. 1 and 2 is partly allowed. Their conviction under section 325/34 IPC is confirmed. In these circumstances, considering the age, character and antecedents of the appellants no. 1 and 2, the interest of justice would be served if they are extended benefit of Section 360 Cr. P.C. 17. The appeal of appellants no. 1 and 2 is partly allowed. Their conviction under section 325/34 IPC is confirmed. However, instead of immediately sentencing them to imprisonment they are directed to be released on probation of good conduct on each of them entering into a personal bond with one surety each in the like amount to the satisfaction of the Court concerned for a period of one year to keep peace and be of good behaviour and in case of breach to appear and receive sentence when called upon during the above period. The bonds be filed within one month from today. In default to execute the bonds, as above within the stipulated time, the appellants would serve out the sentence as imposed by the Court below. Let copy of the judgment be immediately sent to the Court concerned along with the lower Court record for ensuring necessary compliance, which should be reported to the Court within 4-weeks.