JAGDISH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is. directed against the judgment of learned Additional Sessions Judge No. 2, Bharatpur dated 4.9.1990, who maintained the conviction under Section 323 IPC and extended the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as, 'the Act, 1958') to the petitioners.

(2.) BRIEFLY stating the facts of the case are that a report was lodged at Police Station, Bhusavar on 10.1.74 alleging that accused petitioners alongwith others gave beating to Shiv Dutt. A case under Section 307 IPC was registered and investigation commenced. During the course of investigation complaint also filed a complaint on 7.5.75 on which a report was sought for from the police station as as FIR had already been lodged and matter was investigated. The police, on 13.8.75, submitted a charge -sheet, which came up for consideration before the learned Magistrate on 5.5.76. He took cognizance of the offence under Section 147/323 IPC against as many as six accused persons including the two petitioners. During the course of trial, prosecution examined as many as five witnesses in suport of its case. Accused examined six witnesses in his defence. It is pertinent to mention here that during the course of trial, one accused Shyam Lal died hence, the proceedings were droped against him. A compromise was entered into between the complainant and accused Charan Lal and as such accused Charan lal was also acquitted in terms of compromise. Thus, the case proceeded only against four accused persons. The learned Magistrate held Jagdish, Ramnath, Kedar and Suresh guilty of offence under Section 147 and 323 IPC and gave them the benefit of Section 4 of theAct, 1958. Against this judgment, an appeal was preferred before the learned Sessions Judge, Bharatpur, which was transferred to the Court of Addl. Sessions Judge No. 2. The learned Additional Sessions Judge held that the offence is not established under Section 147 IPC. He, however, maintained the conviction of petitioners Jagdish and Suresh under Section 323 IPC only and maintained the order of granting benefit of Section 4 olf the Act, 1958. It is against this judgment that the present revision petition has been filed.

(3.) REPLYING to the preliminary objection, Mr. Surana has submitted that appeal is against an order of conviction under Section 374 Cr.P.C. an when the exceptions have been made and in Section 376 Cr.P.C. they are in respect of the sentences which classify the cases as petty cases. His submission is that benefit of provisions of Probation of Offenders Act cannot be equated with the provisions of Section 360, Cr.P.C., and, therefore, an appeal was maintainable.