JOHNSON Vs. KUNJU KUNJU

JUDGEMENT

(1.) THE revision petitioners are the accused in C. C. 321/71 of the Sub Divisional Magistrate, Alwaye. THEy were alleged to have committed offences punishable under S. 323, 324 and 326 read with S. 34 IPC. THE offences were alleged to have been committed in the course of an incident following purchase of a bottle of milk by the second accused from Bethelhem Church at Karukutti. THE milk was sold in auction by the complainant on behalf of the church. THE trial court convicted the first accused for as offence under S. 326ipc. and sentenced him to rigorous imprisonment for 9 months. Accused Nos. 2 and 3 were convicted for an offence under S. 323 IPC. , and sentenced to rigorous imprisonment for one month. In appeal, the conviction of the first accused was altered to one under S. 324 ipc. After entering a finding that the first accused was below 21 years old on the date of the offence, the appellate Court obtained a report from the district Probation Officer and on the basis of that report released him on probation under S. 4 of the Probation of Offenders Act. THE conviction of accused Nos. 2 and 3 was confirmed; but the sentence was altered to one of fine.

(2.) THOUGH in this revision petition the petitioners challenge the finding of guilty entered" by the courts below, I see no reason for interference. In the alternative, petitioners 2 and 3 who are accused Nos, 2 and 3 pray that the provisions of S. 3 of the Probation of offenders Act be invoked in their favour. Such a request is seen made before the appellate Judge. But the appellate judge held that these persons being aged 29 years and 55 years respectively, having regard to the manner of attack, the weapon used and other circumstances of the case, there was no justification for applying the provisions of the Probation of Offenders Act. According to the petitioners the appellate judge laid undue importance to the age of the offender and omitted to note that S. 3 of the Probamation of Offenders Act can be invoked even in the case of persons over 21 years old.

(3.) AS regards petitioners 2 and 3, the offence they have been found guilty is only one under S. 323 I. P. C. The finding is that the second petitioner hit the complainant and pw. 3 with the bottle of milk which he purchased and the petitioner hit them with a stone. But the injuries on pws. 1 and 3 as a result of their attack have been described by the appellate judge as very trivial. From the facts of the case, the incident was not a preconceived one and appears to be the result of a sudden quarrel. Since the provisions of the Probation of Offenders Act have been invoked in the case of the first petitioner, who inflicted a serious injury, it is only proper that petitioners 2 and 3 are also given the benefit of that Act. Their conviction will stand upheld. Instead of the sentence passed, they are admonished under S. 3 of the probation of Offenders Act. The fine, if any paid will be refunded. The revision petition is dismissed in other respects. Dismissed. . .