Judgment : Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 30.10.1982 passed by the learned VIII Additional Sessions Judge, Mainpuri in Sessions Trial No.218 of 1981 (State vs Ram Kishan and others), under section 304/34 IPC, PS Kurawali, district Mainpuri, whereby all the accused appellants have been convicted and sentenced to five years' rigorous imprisonment each under section 325/34 IPC and one year's rigorous imprisonment each under section 323 IPC. 2. In short compass, the prosecution story as unfolded by the prosecution is that on 14.07.1980 the cattle of accused persons Ram Kishan, Ram Autar and Tej Singh had grazed the maize crop of one Pyare Lal. At about 6.00 p.m., on the said day, Pyare Lal made a protest against the said grazing, on which all the accused persons, who were sitting under the neem tree, in front of the house of Lakhan in the village, began to beat him. They caused injuries on the head, thigh and leg of Pyare Lal. Ram Autar is stated to have caused a lathi blow on the head on account of which Pyare Lal fell down on the ground. The occurrence is stated to have been witnessed by Ganga Din, PW-2, Bishan Dyal, PW-3, Smt. Umedi, wife of Pyare Lal, PW-4 and others and on their interference the accused fled away. Pyare Lal was brought to his home and in the morning, he was taken to hospital. Ganga Din, leaving Pyare Lal, who was unconscious, reached the police station Kurawali and lodged a non-cognizable report Ext. Ka-2 at 9.20 a.m. On 15.07.1980. A case under section 323/427 IPC was registered at G.D. No. 12 (Ext. Ka-14) by Constable Deep Chandra, PW-9). The injuries of Pyare Lal were examined by Dr. N.B. Gupta, PW-8 at 9/10 p.m. who found two injuries on the body of Praye Lal. Injury No. 1, a lacerated wound on the skull which was dangerous and as the condition of Pyare Lal was deteriorating he referred the case vide his report report Ext. Ka-13 to Superintendent District Hospital, Mainpuri on the same day. Praye Lal was taken to Mainpuri but after admitting him in the hospital he was advised to be taken to Delhi or Agra for expert treatment. On the third day Pyare Lal was taken to Delhi in a car by Ganga Din etc. Ka-13 to Superintendent District Hospital, Mainpuri on the same day. Praye Lal was taken to Mainpuri but after admitting him in the hospital he was advised to be taken to Delhi or Agra for expert treatment. On the third day Pyare Lal was taken to Delhi in a car by Ganga Din etc. but a little ahead to Khurza, he died, as such he was taken back to the village and information of the same was sent to police station Kurawali on 18.07.1980 and at G.D. No. 12 at 11.20 a.m. Shri Jagdish Prasad, S.I., PW-7 proceeded for investigation, prepared inquest as Ext. Ka-7 and other papers regarding post-mortem as Ext. Ka-8 to Ext. Ka-11 and sent the dead body of Pyare Lal for post-mortem through Constable Nanak Chandra and Tara Chandra. The post-mortem on the dead body was conducted by R.K. Jain, PW-1, who found a lacerated wound on the head of the deceased and was of the opinion that he died on account of the said head injury and coma. On receipt of post-mortem report the case was converted from 323 IPC to 304 IPC by Constable Clerk Ram Charan Singh, PW-5 on 03.08.1980, vide G.D. Ext. Ka-3. After necessary investigation Sri S.N. Saxena, PW-6 submitted the charge-sheet Ext.Ka-4 against the accused persons. 3. charges under section 304 read with 34 IPC were framed against the accused to which they pleaded not guilty and stated that they have been falsely implicated due to enmity. Ram Autar has stated that in the evening he was coming with his cattle through the pathway which is in front of the house of Pyare Lal. Pyare Lal, Ganga Din, Balwant and Lakhan, who were drunk had beaten him and his father Ram Sahai and have falsely implicated them to save their own skin. He also stated that his as well as his father's injuries have been medically examined and he has also lodged a report at the police station. 4. The prosecution has examined as many as nine witnesses. Dr. R.K.Jain PW-1, Ganga Din PW-2, Vishnu PW-3, Smt. Umedi PW-4, Constable Cleark Ram Charan Singh PW-5, Sri S.N. Saxena, S.I., who submitted the charge sheet PW-6, Jagdish Prasad, S.I., PW-7, Dr. N.B.Gupta PW-8 and Constable Clerk Deep Chandra PW-9. 5. The fact that Pyare Lal died on account of the injury received by him is not in dispute. PW-1 Dr. R.K.Jain PW-1, Ganga Din PW-2, Vishnu PW-3, Smt. Umedi PW-4, Constable Cleark Ram Charan Singh PW-5, Sri S.N. Saxena, S.I., who submitted the charge sheet PW-6, Jagdish Prasad, S.I., PW-7, Dr. N.B.Gupta PW-8 and Constable Clerk Deep Chandra PW-9. 5. The fact that Pyare Lal died on account of the injury received by him is not in dispute. PW-1 Dr. R.K. Jain has conducted the autopsy on the dead body of Pyare Lal on 18.07.1980 at 4.00 p.m. and has found following ante-mortem injury on his dead-body. "(1) Lacerated wound 2 cm X 0.5 cm bone deep on the top of the head vertical direction with sign of healing. While in internal examination he found fracture of skull wound on the right side linear from top of head just above 9 cm X 9 cm on the right side brain was present and he was of the opinion that deceased died due to coma and heamorrhage. The said injury was caused by some blunt weapon. He also was of the opinion that this injury must have been caused three days before as the same was in the healing process." 6. Dr. N.B. Gupta, PW-8 has examined Pyare Lal on 15.07.1980 at 7.10 a.m. and found the following injuries on his body. "(1) Lacerated wound 4 cm X ½ cm deep up to the skull on the right side of skull and adjacent to mid-line 15 cm above to the right ear. No fresh bleeding was present. (2) Contusion 5 cm X 3 cm on the lateral side of upper part of the left lower leg, 7 cm from the knee joint, reddish blue in colour." 7. He also found the general condition of Pyare Lal injured as poor. His pulse was 64 per minute, blood pressure 86/40 m.m., temperature 100 F., pupils were not reacting to light. He kept the injury No. 1 under observation and found injury No. 2 simple and in his opinion both these injuries were caused by blunt weapon, the duration of which was half day old. He advised for X-ray of skull and vide letter, copy of which is Ext. Ka-13, he referred the case to District Hospital, Mainpuri as the condition of Pyare Lal was serious and as no expert treatment was available at P.H.C. Thus, from the above statement of these two witnesses viz. Dr. R.K. Jain and Dr. He advised for X-ray of skull and vide letter, copy of which is Ext. Ka-13, he referred the case to District Hospital, Mainpuri as the condition of Pyare Lal was serious and as no expert treatment was available at P.H.C. Thus, from the above statement of these two witnesses viz. Dr. R.K. Jain and Dr. N.B. Gupta, who have proved the post-mortem report Ext. Ka-1 and injury report Ext. Ka-12 and reference letter Ext.Ka-13 respectively, it is proved that Pyare Lal received injury by blunt weapon on the relevant date i.e. 14.07.1980 at about 7 p.m. as submitted by Dr. N.B. Gupta in para six of his statement and died due to one of them i.e. head injury on 17.07.1980 i.e. one day before post-mortem was conducted. 8. PW-2 Ganga Din is the cousin brother of Pyare Lal. He has stated that the cattle of Ram Kishan, Ram Autar and Tej Singh accused have grazed the maize crop of Pyare Lal on which Pyare Lal made a protest and all these accused persons belaboured him with lathies under the neem tree near the house of Lakhan on account of which he fell down. He took Pyare Lal to his house and took him to hospital in the morning and made a report. He proved his non-cognizable report Ext. Ka-2 and also stated that on the advise of the Doctor, he took Pyare Lal to District Hospital, Mainpuri and got him admitted. He also proved that on the advise of the doctor of Mainpuri to take Pyare Lal to Agra or Delhi on the third day when he was taking Pyare Lal to Delhi when he reached Khurza, Pyare Lal succumbed to his injury. He brought him back and informed the police. His statement stands corroborated by Dr. N.B. Gupta and Constable Deep Chandra PW-9. Constable Deep Chandra who has proved the report made by Ganga Din on 15.07.1980 under sections 323 and 427 IPC and the entry made in G.D. on the basis of the said non-cognizable report Ext. Ka-14. He also proved that on the information of the death of Pyare Lal and on receipt of the post-mortem report, the case was converted on 03.08.1980 from section 323 of IPC to 304 IPC by Constable Clerk Ram Charan Singh PW-5, who has proved the entry of G.D. Ext. Ka-3. Ka-14. He also proved that on the information of the death of Pyare Lal and on receipt of the post-mortem report, the case was converted on 03.08.1980 from section 323 of IPC to 304 IPC by Constable Clerk Ram Charan Singh PW-5, who has proved the entry of G.D. Ext. Ka-3. The information of the death of Pyare Lal was recorded at G.D. No. 12 at 11.30 a.m. on 18.07.1980, at police station Kurawali by Ram Charan Singh. 9. Besides this, the statement of Ganga Din stands corroborated by the statement of PW-3 Vishnu Dayal and PW-4 Smt. Umedi, the wife of the deceased. PW-3 Vishnu has also stated that on the day he was at his tube-well and saw that the cattle of the accused had grazed the maize crop of Pyare Lal and when he had gone there he made a protest when all these persons belaboured him with lathies. He also took Pyare Lal to Hospital Kurawali and from there to Mainpuri and then to Delhi. He stated that it was Ram Autar who gave the first lathi blow on the head. Smt. Umedi PW-4 is the wife of the deceased and has stated that the cattle of the accused had grazed the maize crop and her husband has seen the same and went directly to make a protest on which the accused began to abuse him. They were sitting under the neem tree at a distance of 10 yards south of the house of Pyare Lal and with the help of the lathi began to beat him. Hearing the altercation she had also rushed there and witnessed the beating. She brought Pyare Lal to home and in the morning, took him to the hospital. As the hospital is nearer to his house and comes first in the way Pyare Lal was taken to hospital and then Ganga Din went to lodge a report. She also repeated the story of removal of Pyare Lal from P.H.C. to district hospital, Mainpuri and then while taking to Delhi Pyare Lal breathed his last. As the hospital is nearer to his house and comes first in the way Pyare Lal was taken to hospital and then Ganga Din went to lodge a report. She also repeated the story of removal of Pyare Lal from P.H.C. to district hospital, Mainpuri and then while taking to Delhi Pyare Lal breathed his last. The statement of these witnesses that maize crop of Pyare Lal was grazed by cattle of the accused also stands corroborated by the statement of PW-7 Jagdish S.I., who has stated that he himself has seen the grazed portion of the crop in the southern side of the field of Pyare Lal, which he has marked with a letter 'A' in the site plan Ext.Ka-5. 10. In their statements under section 313 Cr.P.C., accused have denied the occurrence. Although the accused have not adduced any oral evidence in their defence, but have filed the injury reports of Ramautar and his father Ram Sahai Ext. Kha-1 and Ext. Kha-2 as well as a non-cognizable report dated 15.07.1980 Ext. Kha-3 against Pyare Lal, Ganga Din, Ganga Ram and Lakhan under section 323/504 IPC. The report has been proved by Constable Deep Chandra. According to injury report Ram Autar received four injuries and Ram Sahai have received two injuries and Ram Autar has also lodged a report that Pyare Lal and others have beaten him and his father when he was coming with his cattle on the way which is in front of the house of Pyare Lal. 11. The learned lower court, after perusing the record and hearing the counsel for the parties, convicted the appellants as stated in para 1 of the Judgment. 12. Feeling aggrieved the accused have come up in appeal. 13. I have heard learned counsel for the parties at length and perused the trial court record. 14. Learned counsel for the appellants has submitted that the accused appellant Ram Kishan is above 61 years of age, appellant Tej Singh is 53 years of age and the appellant Ram Autar is about 55 years of age and no useful purpose would be solved by sending these aged persons to jail. 15. The learned lower court in its wisdom has proceeded to convict the accused-appellants under sections 325/34 and 323 IPC. 15. The learned lower court in its wisdom has proceeded to convict the accused-appellants under sections 325/34 and 323 IPC. The trial court should not have passed a cryptic order by just mentioning in one line that the accused did not deserve leniency. 16. It has further been submitted that the learned trial court only mentioned the arguments of the counsel, but did not give its own finding as to why the court did not think it proper to grant benefit of Probation of First Offenders Act or under section 360 of Cr.P.C. 17. As per law laid down by the Supreme Court in Daljit Singh vs State of Punjab, reported in (2006) 6 SCC 159 , either the benefit of section 4 of Probation of Offenders Act or the benefit of section 360 of Cr.P.C. should be given, but both cannot be given simultaneously. 18. Learned counsel for the appellants has further submitted that on the point of sentence the learned trial court has not assigned any reason for not granting probation. 19. Here again the provisions of Section 361 Cr.P.C. come into play, which 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 persons under section 360 or under the provisions of the 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." In the present case, the learned trial court has just given a passing reference that he does not think it proper to give the benefit of Probation of Offenders Act to the accused, whereas it was mandatory for the court below to do so under the provisions of Section 361 Cr.P.C. Thus, as already said, I hold that the occurrence relates to the year 1980 and this appeal is pending since 1982, no illegality, irregularity or impropriety in the impugned Judgment thus, I feel that the conviction should be maintained, but the sentence should be modified. 20. The appeal is partly allowed with the following modification. 21. The conviction of the appellants is upheld. 20. The appeal is partly allowed with the following modification. 21. The conviction of the appellants is upheld. However, instead of sending them to jail, the appellants shall get the benefit of Section 4 of the Probation of Offenders Act. Instead of sentencing them to five years' rigorous imprisonment each under section 325/34 IPC and one year's rigorous imprisonment each under section 323 IPC, they shall file two bonds to the tune of Rs.25,000/- coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the trial court as per Rules. The bonds aforesaid be filed by the accused persons within two months from today which time shall not be extended on any ground whatsoever. 22. Let a certified copy of this order be sent to the trial court concerned for compliance. ———————