JUDGMENT : Anant S. Dave, J. 1. Criminal Appeal No. 216 of 1987 was filed under Section 11 of the Probation of Offenders Act by the appellant State of Gujarat against the judgment and order dated 22.1.1987 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 272 of 1986. Criminal Appeal No. 217 of 1987 was filed by the State of Gujarat against judgment and order of acquittal dated 22.1.1987 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 272 of 1986 of the respondents accused so far as offence under Section 302 of the Indian Penal Code is concerned. The case of the prosecution is that at Ahmedabad, Bhudarpura, there is one Vaghri's Vas having about 150 huts which is called as Marvadi's Vas or Vaghri Vas situated near Sharda Society. There are most of the houses of Marvadi Vaghris except one or two of Gujarati Vaghris. According to the prosecution, on 17.5.1985, there was one marriage of Bai Shanta, daughter of Sonaji Vanaji and, hence, there was Mandva just near Jogni Mata, which was decorated including lighting just near Jogni Mata temple, there is Otta on which at about 7 to 7:30 p.m., Moda Moti, Girdhar Natha, Manubhai Vanabhai and Naran Bechar were sitting; whereas some boys were playing. At about 7:30 p.m., Manabhai Nagaji, a boy aged 16 years came there loitering watching the Mandap and was standing nearby. Accused Babaji Bhajanbhai also came there watching Mandap and inadvertently, his leg touched the leg of Manabhai Nagabhai. So, Manabhai Nagabhai told Babaji that though there is some light, whether he is blind and, as such, accused Babaji Bhajanbhai got enraged and started giving fist blows to Manabhai Nagaji. Manabhai raised shouts, but the other two accused viz. Rohitbhai Bhajanbhai and his nephew Jagdish Laxmanbhai immediately ran down to the spot. Rohit Bhajanbhai was armed with an iron bar. Jagdish gave fist blows whereas Rohit Bhajanbhai gave iron blow just over the left eyebrow of Manabhai Nagabhai whereby he got giddiness and fell down. The four persons who were nearby got up, but all the three accused ran way. Out of four, Naranbhai Becharbhai lifted Manabhai. Manabhai had also purged in his Chadi, but Naranbhai Becharbhai took him to the house and made him to lie down in a cot. The four persons who were nearby got up, but all the three accused ran way. Out of four, Naranbhai Becharbhai lifted Manabhai. Manabhai had also purged in his Chadi, but Naranbhai Becharbhai took him to the house and made him to lie down in a cot. Girdharbhai Nathabhai went to call a private doctor who was having dispensary nearby viz. Dr. Kandarp Kanaiyalal Joshi. He examined the pulse, heart, bits and pupils and found that Manabhai Nagabhai was dead. 1.1. Those were the days when there were riots and disturbances in Ahmedabad city and curfew was imposed in city and the vehicles were also not available. But Modabhai Motibhai went to the Ellisbridge Police Station at about 8:45 to 9:30 p.m., where he contacted Ellisbridge Police Station PSI Shri Mewada who was incharge of Investigation squad. He immediately recorded the complaint and went to the spot. As marriage party was to arrive and there was Mandap, the place of offence may not be disturbed and/or disturbed PSI had placed some bricks. He prepared inquest report of the dead body and recorded statements of witnesses. He sent the dead body along with report to V.S. Hospital with police constable Dilipsinh. PSI directed PSI Shri Shinde to go with Manubhai Vanaji in search of the accused and as Manubhai Vanaji was knowing their whereabouts. PSI had also forwarded the complaint for registration with his report. Police photographer was called for and as he also arrived during that time, photographs of dead body lying on the cot as well as place of offence were got snatched. He prepared the Panchnama of the place of offence. PSI Shinde produced accused Jagdish and Babaji at 2:30 a.m. They were arrested and taken on remand. Accused Rohit was arrested on 20.5.1985. He gave discovery of Muddamal article No. 1 iron bar which he pointed out from the Mehdi hedge of Parimal Garden and the same was attached under Panchnama. On receiving the postmortem note and on completion of investigation, all the three accused were charge-sheeted. 2. Upon committal, the case was tried being Sessions Case No. 207/1986 and judgment for acquittal was delivered on 22.1.1987. 3. The fact that Manabhai Nagabhai died an unnatural and homicidal death is consistently established from the evidence of Exh. 13 Dr. Bina Parikh who had carried out the post-mortem. Exh. 2. Upon committal, the case was tried being Sessions Case No. 207/1986 and judgment for acquittal was delivered on 22.1.1987. 3. The fact that Manabhai Nagabhai died an unnatural and homicidal death is consistently established from the evidence of Exh. 13 Dr. Bina Parikh who had carried out the post-mortem. Exh. 134 postmortem report as well as evidence of PW No. 2 Exh. 25 Modi Moti, the alleged eye witness, PW 3 Exh. 26 Dr. Kandarp Kanaiyalal Joshi, PW 4 Exh. 29 Manubhai Vanabhai, alleged eye witness, PW 5, Exh. 31 Naranbhai Becharbhai Over and above Exh. 15 is the inquest Panchnama. It is the case of the prosecution that on the date of the incident that is on 17.5.1985 at about 7:30 p.m. when the alleged four persons were sitting on the Otta of Jognimata, Manabhai Nagabhai had come and was just looking to the Mandva. At that time, accused Babaji was first who picked up quarrel, started giving fist blows and when accused Nos. 1 and 2, came accused Rohit had iron bar with which he had given blow over the left eyebrow and Jagdish had given fist blows. As soon as Manaji Nagaji received blow, by iron bar he got giddiness and fell down. Dr. Kandarp Joshi was immediately called for after the boy was taken to his house and made to lie down in the cot. He was declared dead after examining pulse, heart bits and pupils. The inquest Panchnama also revealed that there was an injury over the left eyebrow and it was the dead body of Mana Naga, which was sent with constable Dilipsingh for postmortem. Dr. Bina Parikh carried out the postmortem and found that deceased had following injuries: (1) CLW of 1.5 cm x 0.3 cm size on the left suparcilliary arch (just above left eyebrow) muscle deep-0.5 cm. (2) One cm long abrasion on left anterior abdominal wall 9 cm away from middle at the level of umbilicus. (3) One cm long abrasion on left anterior abdominal wall, 3 cm above anterior superior iliac spine and 5 cm below and above mentioned abrasion No. (2) viz. injury No. 2. And he had also internal injury in the head 5 cm long linear fracture in left side of posterior cranial fossa. The death was due to intra-cranial haemorrhage. No doubt Dr. injury No. 2. And he had also internal injury in the head 5 cm long linear fracture in left side of posterior cranial fossa. The death was due to intra-cranial haemorrhage. No doubt Dr. Parikh has stated that external injuries were not sufficient in ordinary course of nature to cause death, but fact remains that Mana Naga died on the spot after he received blow over left eyebrow when he fell down and he had succumbed to the injuries because he had been unconscious. He had also purged. He was declared dead by Dr. Joshi who examined him first immediately after the alleged incident. There is consistent evidence of the alleged eye witnesses Moda Moti and two other eye-witnesses that Manabhai Nagabhai came there and after he received blow, he fell down and he was removed to his house and he was found to be dead by Dr. Joshi. Thus, the fact that he died unnatural and homicidal death is proved. 4. Upon appreciation of the oral as well as documentary evidence, the learned trial Judge was of candid opinion that the prosecution could prove beyond reasonable doubt that deceased was given a blow with force by iron bar-muddamal article No. 1 or such article by accused No. 1 Rohit and, as such, he fell down unconscious and succumbed to the injuries, whereas accused No. 2 Jagdishbhai Laxmanbhai and accused No. 3 Bababhai had given fist blows and they had aided and abetted accused No. 1, because accused No. 3, who started the incident, whereas accused Nos. 1 and 2 came together, out of which accused No. 1 Rohit was duly armed. The learned trial Judge also further concluded that that intention could be gathered that they had common intention and first, blows were given by them before giving iron bar and in penultimate paragraph, para Nos. 27 to 29, it held as under: "27. Thus, considering all these aspects, I am of the candid opinion that the death was caused due to the injuries which resulted from the iron bar blow. 27 to 29, it held as under: "27. Thus, considering all these aspects, I am of the candid opinion that the death was caused due to the injuries which resulted from the iron bar blow. Not only that but as discussed before, it was Babu and Jagdish who came and gave fist blows and it was Rohit who had accompanied Jagdish who had come equipped with iron bar who gave such a blow that not only caused contused lacerated wound, on the left eyebrow but which caused fracture on left side posterior cranial fossa. 28. Now if we go through Section 299 of I.P. Code, it defines culpable homicide, whereas Section 300 I.P. Code provides as to when it is murder. In the present case, there was no common intention to cause murder at the first instance. The common intention was to cause only grievous hurt. So it cannot be said that accused had come with common intention to cause death or he caused death with common intention to cause such bodily injuries which is likely to cause death death or with knowledge that he was likely to cause death with such act. At the most, the intention was to cause grievous hurt and it has been caused when there is a fracture, but finaly, it resulted into death. Under the circumstances, I am of candid opinion that the present case would not fall under Section302 of the Indian Penal Code nor would it fall under Section 304 Part II Indian Penal Code, but it would fall under Section 326, Indian Penal Code, but unluckily boy died because of the injury. Even if, he had knowledge it was not so much eminent dangerous that in all probabilities it would cause death. Not only that but there is a lighter aspect of showing that some intimidation or cause was given by the deceased as soon as leg of Babu touched the leg of accused by saying him whether he is blind. Even if, he had knowledge it was not so much eminent dangerous that in all probabilities it would cause death. Not only that but there is a lighter aspect of showing that some intimidation or cause was given by the deceased as soon as leg of Babu touched the leg of accused by saying him whether he is blind. Under the circumstances, when the incident occurred on the spur of the moment and the nature of weapon whatever came in hand was brought to the spot by Rohit later on hearing the shout of Babu, I am of candid opinion that offence committed by Rohit is under Section 326, Indian Penal Code because it was causing grievous hurt because there was fracture of cranial fossa which corelates to external injury No. 1 and the doctor has also opined that such injury of fracture on skull is possible by iron bar. Doctor has said that death is due to the haemorrhage fracture of grievous hurt due to fracture of fossa fracture is grievous hurt. So also accused cannot be convicted under Section 304 Parts I and II, but accused can be convicted under Section 326, Indian Penal Code. The weapon used is iron bar Muddamal article No. 1 and looking to the length and size it can be very well said that if was a deadly weapon and if weapon is so used that not only it is likely to cause death, but it has caused the death, but so far intention or knowledge was of voluntarily causing grievous hurt being there and as there cannot be any knowledge or intention for murder or causing death that can be directly imputed, I am of candid opinion that accused have committed offence punishable under Section 326, Indian Penal Code. 29. Accused No. 1 - Rohit is convicted for offences punishable under Section 326, Indian Penal Code whereas accused Nos. 2 and 3, Jagdish and Babaji @ Babu are convicted for offence punishable under Sections 326 r/w 34 of Indian Penal Code or 114, Indian Penal Code, because they have aided and abetted as well as they had common intention to that extent." 5. 2 and 3, Jagdish and Babaji @ Babu are convicted for offence punishable under Sections 326 r/w 34 of Indian Penal Code or 114, Indian Penal Code, because they have aided and abetted as well as they had common intention to that extent." 5. In exercise of powers under the provisions of the Probation of Offenders Act, 1958, the learned trial Judge ordered accused convict to be released on probation for a period of one year and for good behaviour on furnishing a surety under Section 4(1) and (3) of the Probation of Offenders Act, 1958 and to comply with other conditions. 6. Being aggrieved by and dissatisfied with both conviction recorded under Section 326 of the Indian Penal Code of all accused and also ordered releasing the convict in exercise of powers under Sections 3 and 4(1) of the Probation of Offenders Act, 1958, the State of Gujarat has preferred appeal under Section 11 of the Act of 1958 mainly on the ground that though the respondents were convicted under Section 326 of the Indian Penal Code, which carried maximum punishment/upper limit prescribed under the offence is imprisonment for life or for 10 years and, therefore, the convicts were disentitled for receiving any such benefit under the Act of 1958. That another appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 against acquittal of the respondents accused convict under Sections 302 r/w 34 and 114of the Indian Penal Code in which, it is contended that evidence of eye witnesses, medical evidence, which reflected nature of injury and cause of death so deposed by the medical officer and usage of weapon by respondent No. 1 could well establish not only knowledge, but also intention on the part of the accused to cause death and under no circumstances, it could be concluded that they had no knowledge that in ordinary course of nature, usage of such weapon on vital part of body of the deceased would not result into death. It is submitted that under no circumstances, there was any intention to cause grievous hurt with usage of weapon so concluded by the learned Judge. It is submitted that under no circumstances, there was any intention to cause grievous hurt with usage of weapon so concluded by the learned Judge. When the accused had intended to cause death, it would ordinarily invite punishment under Section 302 of the Indian Penal Code and in all probabilities, even if the cause of scuffle and usage of weapon are considered and so believed by the learned trial Judge, the case was made out by the prosecution to impose punishment under Section 302 of Indian Penal Code. It is, therefore, submitted that acquittal of respondents under Section 302 deserves to be interfered with by quashing and setting aside the judgment and order dated 22.1.1987 and appeal under Section 378 of Code of Criminal Procedure, 1973 be allowed accordingly. 7. Both these appeals are heard together in view of submissions made by learned APP. It is reported that respondent No. 1-Rohit Vaghri has expired on 31.7.1999 as per report submitted by the Deputy Registrar, Criminal Department - II, City Sessions Court, Ahmedabad, in which certificate of death is also attached. Therefore, both these appeals qua accused No. 1 shall stand abated. 8. In the context of the appeal filed under Section 11 of the Act of 1958, learned APP would contend that Section 326 of the Indian Penal Code is punishable with life imprisonment, which is maximum punishment, alternatively 10 years or fine would disentitle the convicts for the relief in exercise of powers under Sections 3 and 4 of the Act of 1958 for which, reliance is placed on Sections 3, 4, 11 and 12 of the Act and also decisions of the Apex Court considering similar case where it is held that accused convicted for offence under Section 326 of the Indian Fenal Code which is punishable with life imprisonment is not entitled to benefit of the Act. On Section 326 of the Indian Penal Code, the decision relied upon is1995 SCC (Criminal) 249 in case of State of Rajasthan v. Kailash Chandra, whereby the Apex Court agreed with the submissions made by learned Counsel for the respondents accused that the High Court had committed illegality in extending provisions of Probation of Offenders Act, 1958 for the conviction under Section 326. Another decisions relied upon are II (2008) SLT 272 : 1 (2008) DLT (Crl.) 784 (SC) : I (2008) CCR 337 (SC) : AIR 2008 SC 1298 in case of Ramesh Doss v. Raghu Nath and Others, V (2006) SLT 441 : 111 (2006) CCR 122 (SC) : (2006) 5 SCC 396, in case of Chhanniv. State of U.P. and AIR 1983 SC 359 in case of State of Gujarat v. V.A. Chauhan, whereby accused convicted of offence punishable with life imprisonment in the fact of that case under Sections 409 and 467 of the Indian Penal Code, etc. and release on probation was held as not proper, but the Apex Court refused to interfere in view of such benefit was given to accused since many years. 9. Another decision is of learned Judge of Gauhati High Court reported in 1997 Cri. L.J. 2617 in case of Sirish Chandra Paul v. State of Tripura. While considering the case of a convict under Section 307 of the Indian Penal Code where the said offence being punishable with imprisonment for life or imprisonment for 10 years, it was held that accused was not entitled to be given benefit of probation. That was a case under Section 360 of the Code of Criminal Procedure, 1973 considered by the learned Judge for giving benefit of probation. 10. Therefore, in the facts of this case, when conviction is ordered under Section 326 of the Indian Penal Code, which has upper limit of punishment, namely life imprisonment and therefore, order granting benefit of probation to the respondent convicts by the learned Judge deserves to be quashed and set aside. For better appraisal of facts and law, it is profitable to produce relevant sections of Act of 1958, Code of Criminal Procedure, 1973 and Indian Penal Code. "Sections 4 & 11 of the Probation of Offenders Act, 1958 4. For better appraisal of facts and law, it is profitable to produce relevant sections of Act of 1958, Code of Criminal Procedure, 1973 and Indian Penal Code. "Sections 4 & 11 of the Probation of Offenders Act, 1958 4. Power of Court to release certain offenders on probation of good conduct-- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of 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 release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under Sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under Sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The Court making a supervision order under Sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The Court making a supervision order under Sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 11. Courts competent to make order under the Act, appeal and revision and powers of Courts in appeal and revision--(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision. (2) Notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court. (3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under Section 3 or Section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit. (4) When an order has been made under Section 3 or Section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was found guilty. Section 360 of Code of Criminal Procedure, 1973 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 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. (7) The Court, before directing the release of an offender under Subsection (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. (7) The Court, before directing the release of an offender under Subsection (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 the 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 such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. Section 326 of Indian Penal Code 326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with a [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 11. By considering sub-Section (10) of Section 360 of the Code of Criminal Procedure, 1973 and Section 12 of the Act of 1958, which commences with non obstent clause, the Apex Court held that both the statutes have significant differences and co-existence would lead to anomalous results and certainly, Probation Act has thus an age over Section 360 of the Code of Criminal Procedure, 1973. In the facts and circumstances of this case, we are not called upon to examine and interpret Section 360 of the Code of Criminal Procedure, 1973 since the order under appeal is passed by the learned trial Judge in exercise of powers under Sections 3 and 4 of the Probation of Offenders Act, 1958. 12. That in all the decisions, though issue involved about grant of benefit of probation to offender either under Section360 of Code of Criminal Procedure, 1973 or under Section 4 of the Probation of Offenders Act, 1958, an accused of an offence punishable with life imprisonment was held to be disentitled for such benefit. That in the decision of Ramesh Dass (supra), the Apex Court relied upon earlier case of Chhanni v. State of U.P. (supra) and another decision in case of Daljit Singh and others v. State of Punjab reported in V (2006) SLT 569 : 111 (2006) CCR 158 (SC) : (2006) 6 SCC 159 , and carved out distinction between the provisions of Probation of Offenders Act vis-à-vis Section 360 of the Code of Criminal Procedure, 1973 and in para 5, 6 and 7, held as under: "5. Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the Legislature, who gave birth to the Probation Act and the Code wanted to obviate. Yet the Legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. Yet the Legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in Sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable. 6. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. 7. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. 7. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area." 13. Therefore, both the above provisions, namely Section 4 of Act of 1958 and Section 360 of the Code of Criminal Procedure, 1973 though operate for the subject pertaining to grant of benefit to offenders, but are mutually exclusive. 14. Now, it is trite, as per the judgments in case of Kailash Chandra (supra), V.A. Chauhan (supra), Ramesh Doss (supra) and Daljit Singh (supra) that an offence punishable for life imprisonment, offender of such offence is not to be given benefit of Probation of Offenders Act. That law on the subject is no more res integra. 15. No benefits of Section 4 under the Probation of Offenders Act, 1958 be extended to an offender of an offence of life imprisonment. Therefore, in the facts and circumstances of the present case, benefit given under Section 4 of the Probation Act is contrary to the law laid down by the Apex Court in the above cases and it is held that accused Nos. 1 to 3 convicted under Section 326 of the Indian Penal Code carrying maximum punishment of life imprisonment were not entitled to the benefit in exercise of powers under Section 4 of the Probation of Offenders Act, 1958. Accordingly, the order deserves to be quashed and set aside. 16. Though, there is a force in the arguments advanced by learned Additional Public Prosecutor, the conviction ordered under Section 326 when it was held by the learned Judge of common intention on the part of the accused and homicidal death remained undisputed ought to have been punished at least under Section 304 (Part II) of the Indian Penal Code. At this stage, in view of the findings given by us in setting aside order of granting benefit of probation to the respondents accused under Section 4 of the Probation of Offenders Act, 1958 and following reasons, we sustain conviction under Section 326 of the Indian Penal Code. 17. That conviction secured under Section 326 of accused Nos. At this stage, in view of the findings given by us in setting aside order of granting benefit of probation to the respondents accused under Section 4 of the Probation of Offenders Act, 1958 and following reasons, we sustain conviction under Section 326 of the Indian Penal Code. 17. That conviction secured under Section 326 of accused Nos. 2 and 3 if viewed in the context of circumstances leading to the extent including role of each of the accused as per the case of prosecution and so believed by the learned trial Judge, it is clear that there was no common intention on the part of all the three accused to cause such grievous injuries, particularly when accused No. 3 Balaji, who started giving blows and thereafter, Mana Naga raised shouts and other two accused, namely Jagdish-accused No. 2 and Rohit-accused No. 1 came there and out of, Rohit was armed with iron bar and gave fatal blows by iron-pipes to injured who succumbed to the injuries later on. Thus, accused No. 2 is believed to have given fist blows, but at the same time, all three accused had no prior gathering or any premeditation, preparation or any intention to cause grievous injuries as the quarrel had taken place in the backdrop of incident, namely that in advertently, leg of Balaji Bhagabhai touched leg of Manabhai Nagabhai and Manabhai Nagabhai told Balaji that though there was so much light, whether he was blind and as such, Balaji got enraged and started giving fist blows to Manabhai Nagabhai, who later on was inflicted injury by other two accused, who came to rescue and, therefore, no common intention could be inferred or gathered in inflicting grievous injury to the deceased and therefore, qua respondent Nos. 2 and 3 i.e. accused Nos. 2 and 3, even conviction ordered under Section 326 is as such not sustainable, but fact remains of homicidal death is proved and that benefit of probation is extended to all the accused and after conviction, more than 28 years have elapsed and in absence of appeal against acquittal, we are not inclined to alter the findings or the conviction as such, but as we have held that grant of benefit in exercise of powers under Section 4 of the Probation of Offenders Act, 1958 is illegal, sentencing accused Nos. 2 and 3, as accused No. 1 has expired, is the only procedure remained to be followed. In peculiar facts and circumstances of the case, we have also taken note that accused Nos. 2 and 3 during their status as under trial prisoner had remained in jail for about 119 and 38 days respectively before they came to be released on bail by the competent Court, the above period undergone by them as under trial prisoner to be treated as sentence. Since, 28 years have elapsed, we also hold that benefit given under Section 4 of Act of 1958 is held illegal, but such holdings shall not entail any disqualification so far as accused Nos. 2 and 3 are concerned. For the foregoing reasons, Criminal Appeal No. 216 of 1987 filed under Section 11 of the Probation of Offenders Act, 1958 is allowed. The judgment and order dated 22.1.1987 passed by the learned City Civil Judge, Ahmedabad in Sessions Case No. 272 of 1986 granting benefit of Probation of Offenders Act to the respondent-accused is hereby quashed and set aside. Criminal Appeal No. 217 of 1987 filed under Section 378 of the Code of Criminal Procedure, 1973 is disposed of by sustaining the order of conviction and sentencing accused Nos. 2 and 3 to the extent of imprisonment undergone by accused Nos. 2 and 3 as under trial prisoner.