Ashok Kumar Tiwari, J.
1. This revision is directed against the judgment and order dated 30-10-1998 passed by learned IV Additional Sessions Judge, Ujjain (M.P.) vide which the appeal of the applicant, against conviction and sentence awarded to him, has been rejected.
2. Applicant and other co-accused persons were tried for committing offences punishable under Sections 294, 323/34, 324/34 and 341 Indian Penal Code by learned Judicial Magistrate First Class, Badnagar District Ujjain (M.P.) and vide judgment and order delivered by him in Criminal Case No. 60/95, other co-accused persons were acquitted of aforesaid charges, but applicant was convicted only under Section 324 IPC and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-. Feeling aggrieved by the conviction and sentence, applicant preferred an appeal. Learned IV Additional Sessions Judge, Ujjain (M.P.) vide impugned judgment and order rejected the appeal of the applicant and confirmed his conviction and maintained the sentence awarded to him. Hence, he has filed this revision petition.
3. Case of the prosecution is that on the date of incident, she buffalo of accused Kaluram entered in courtyard of Nanuram (P.W. 1). When Rajaram (P. W. 2) his son got it out accused Kaluram quarreled with him and abused him. Nanuram asked him not to abuse and to keep she buffalo inside his house. After that, accused Kaluram brought an iron ladle (Khurpa) from his house and applicant Munna also came with 'Khurpa' and co-accused Vidyabai caught hold of Nanuram while Kaluram struck him on head with 'Khurpa' and applicant Munna struck the hot part of 'Khurpa' on right hand of Rajaram (P.W. 2) which damaged his skin. Rajaram (P.W. 2) and Nanuram (P.W. 1) went to Police Station Bhatpachlana where First information Report was lodged. After due investigation, charge-sheet was filed against the applicant and other co-accused persons.
4. After appreciation of evidence adduced by the prosecution learned Trial Magistrate has convicted the applicant. The finding of conviction is not the outcome of misreading of evidence nor any evidence or part of it, has been ignored. The findings of the Trial Court as regards the conviction of applicant is not perverse. A particular witness should have been believed or disbelieved is not open for criticism at the revisional stage. The applicant has to make out manifest illegality in the judgment of the Courts below. Only then, conviction could be set aside. Therefore, conviction of applicant is maintained.
5. Learned Counsel for applicant has contended that applicant should have been released on probation and he should have been given the benefit of Section 360 of Criminal Procedure Code and the concerned provisions of Probation of Offenders Act. This contention has some force in it. The benefit of provisions of Probation of Offenders Act should be given liberally.
6. From the perusal of the record, it appears that in the final report filed by the concerning police, applicant has been described of 19 years' of age. No previous conviction has been proved against him and undisputedly he is the first offender. Looking to his age and the nature of offence in the circumstances in which the offence has been committed, it is expedient that applicant should be released on probation of good conduct. The reasons given by the Trial Magistrate and by lower Appellate Court for not releasing the applicant on probation are not sound and well founded. As such, mandatory duty cast on Magistrate has not been duly performed and lower Appellate Court has also not considered this aspect. Existence of some dispute regarding the exit of water could hardly be a ground to decline the benefit of provisions of Probation of Offenders Act. Existence of some prior disputes cannot be equated with 'previous enmity'. It is also important that the incident took place as she buffalo of accused Kaluram entered into the house of Nanuram (P.W. 1) and it was driven out by his son Rajaram (P.W. 2). Looking to the nature of the incident, appellant could have been extended the benefit of provisions of Probation of Offenders Act because the benefit of it should be given liberally. The order of Courts below to the extent of not extending the benefit of release on probation to the applicant are not legal and proper.
7. Consequently, the revision is allowed in part. The conviction of applicant under Section 324 IPC is maintained, but the sentence of applicant is suspended and he is directed to be released on probation of good conduct and ordered to enter into a bond of Rs. 1,000/- (Rupees one thousand) with one surety in the like amount to appear and serve the sentence imposed by the Trial Magistrate, when called upon to do so during the period of one year and in the meantime, to keep peace and be of good behaviour. Applicant is directed to appear on 12th April, 2004 before the Judicial Magistrate First Class, Badnagar and aforementioned bond shall be executed before the learned J.M.F.C., Badnagar within six weeks from today.