Pritam Singh Pattar, J.
1. This is an appeal filed by Paras Ram son of Sheo Karan aged 17 . years labourer resident of Ucha Gaon, tehsil Ballabgarh, district Gurgaon, against the judgment dated 14th September, 1971, of the Sessions Judge, Gurgaon, by which he convicted him under Section 304, Part II, and sentenced him to rigorous imprisonment for ten years.
2. Briefly stated the facts of this case are that Mool Chand accused was working at the tubewell of Ujagar Singh accused and also used to live there. The tubewell. of Hari Singh, Sarpanch was situate near the tubewell of Ujjagar Singh. On 11th February, 1971 Siri Chand son of Hari Singh was irrigating his fields by that tubewell and had placed his wrist watch near that tubewell and on that day Mool Chand came to their tubewell and went away after about five-seven minutes. At about 4.00 p. m. Siri Chand P. W. went to the tubewell and saw that his watch was missing. Since none else had come to the tubewell of Hari Singh except Mool Chand, therefore, it was suspected by Siri Chand that Mool Chand had stolen his watch, Hari Singh was also present in the field. Both Siri Chand P. W. and his father Hari Singh went to the tubewell of Ujagar Singh and enquired from Mool Chand about the watch, but he denied to have stolen the same. On the next day Hari Singh called Mool Chand at his house in the evening in the presence of Sher Singh, member panchayat and asked him to give back the watch or to take an oath. Thereupon Mool Chand told them that they could come at their tubewell on the next day, i. e. 13th February, 1971 and he would either return the watch or would pay its price. Accordingly Hari Singh accompanied by Siri Chand and Sher Singh went to the tubewell of Ujagar Singh where Mool Chand, Ujagar Singh, Pars Ram and Patmal accused were present. Hari Singh demanded the watch from Mool Chand. but Ujagar Singh replied ' that neither they would return the watch nor would pay its price and he was also alleged to have exhorted the other three accused to teach a lesson to Hari Singh and his companions for asking for the return of the watch and thereupon the rest of the accused, that is, Mool Chand, Pars Ram and Patmal started abusing Hari Singh and others. Thereafter Mool Chand, Patmal and Pars Ram accused gave fist blows to Hari Singh while Ujagar Singh caught him from his front side. Pars Ram accused picked up a danda lying there and gave a blow with it on the back side of the head of Hari Singh who fell down on receipt of the blow and became unconscious. According to the prosecution Ujagar Singh gave two-three fist blows to Hari Singh after he had fallen and had become unconscious. All the four accused then ran away.
3. Siri Chand brought a cot from his tubewell and Hari Singh was placed on it and was carried towards the Hospital. When they reached near the field of Chetan Dass and placed the cot on the ground they found Hari Singh dead. Leaving Chatar Singh P. W. who had arrived and Sher Singh P. W., at that place to guard the dead body, Siri Chand went to the police station at Ballabgarh and on his statement Khushi Ram, Station House Officer (P. W. 8) recorded the first information report, Exhibit P. F., at 2.05 p.m.
4. After recording the first information report. Khushi Ram, Sub-Inspector accompanied Siri Chand to the place where the dead body of Hari Chand was lying and found Sher Singh and Chatar Singh present near the dead body. The dead body was lying at a distance of 7 furlongs from the police station. The investigation officer prepared the inquest report, Exhibit P. K. and also prepared the injury statement of the injuries on the dead body. He recorded the statements of Sher Singh and Chatar Singh P. Ws. and then went to the place of occurrence at the tubewell of Ujagar Singh accused. He searched for the accused but they were not available. On 14th February, 1971, the clothes of the deceased, Exhibits P-2 to P-6, were produced before the investigating officer who took them into possession vide memo. Exhibit P. M. Khushi Ram Sub-Inspector (P. W. 8) arrested the accused on 16th February, 1971. Pars Ram accused had a scratch on his body and he prepared his injury statement Exhibit P. N. and got him medically examined in the afternoon of 16th February, 1971. Pars Ram accused made a disclosure statement. Exhibit P. H. that he had kept concealed a danda in the fodder stack at the tubewell of Ujagar Singh and he could get the same recovered. This statement was made in the presence of Prithi Singh and Daulat Ram and thereafter he got the danda Ex. P-1 recovered from that place which was taken into possession vide memo Exhibit P. J.
5. After completion of investigation the accused were challaned and were committed to stand their trial under Section 304 read with Section 34, Indian Penal Code. The learned Sessions Judge acquitted Patmal, Mool Chand and Ujagar Singh accused giving them benefit of doubt but convicted and sentenced Pars Ram as mentioned above. Feeling aggrieved he filed the present appeal alleging that the decision of the trial Court was wrong and incorrect and it may be set aside. It was also alleged that he was less than 21 years of age on the date of his conviction and therefore he could not be sentenced to imprisonment in view of the mandatory provisions of Section 6(1) of the Probation of Offenders Act.
6. Mr. Surinder Sarup learned Counsel for the appellant did not contest the conviction of Paras Ram appellant under Section 304, Part II, Indian' Penal Code, but he contended that according to the provisions of Section 6(1) of the Probation of Offenders Act, 1958, (Act 20 of 1958), (hereinafter called the Act) if an offender is under 21 years of age then he cannot be sentenced to imprisonment unless the provisions of Sub-section (2) of Section 6 of that Act are complied with. Section 6 Sub-sections (1) and (2) reads as follows:
(1) When any person under twenty-one years of ace is found guilty of having committed an offence punishable with imprisonment (hut not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report from the Probation Officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.
Section 11 of the Act lays down that 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.
7. In Ramji Missar v. State of Bihar : AIR1963SC1088 it was held that the words in Section 11(1) of the Act ''pass an order under the Act' are not to be construed strictly and literally, but to be understood to mean 'to exercise the powers or jurisdiction conferred by the Act.' Therefore the Courts mentioned in Section 11 of the Act, be they trial Courts or exercising appellate or revisional jurisdiction, arc thereby empowered to exercise the jurisdiction conferred on Courts not only under Sections 3 and 4 of the Act and the consequential provisions but also under Section 6 of the Act. Therefore this Court had got power to pass an order under Section 6(1) of the Act by virtue of the provisions of Section 11 of the Act.
8. It is admitted that the age of the accused at the time of the commission of the crime and also of his conviction at the trial Court was less than 21 years. In Ramji Missar's case : AIR1963SC1088 (supra) it was held as under:
As regards the crucial date for reckoning the age where an appellate Court modifies the judgment of the trial Judge and when Section 6 becomes applicable to a person only on the decision of an appellate or a revisional Court, it must be held that it is the date upon which the trial Court had to deal with the offender.
The object of this Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The question of age of the person is relevant not for the purpose of determining his guilt but only for the purpose of punishment which he should suffer for the offence of which he has been found, on the evidence, guilty. Where therefore, the Courts find that the offender is not a person under the age of 21 years on the date when the Court found him guilty. Section 6(1) of the Act has no application to him. However, in the instant case it is common case of the parties that the age of the accused as given by him during the trial was 17 years and he was admittedly less than 21 years of age when the trial Court convicted and sentenced him on 14th September, 1971.
9. The learned Sessions Judge did not give any reasons for sentencing him to imprisonment as required by the Act that it would not be desirable to deal with the accused under Sections 3 or 4 of the Act. The provisions of Section 6(2) of the Act are mandatory and when the Court decides that the accused who is less than 21 years of age and has been found guilty of an offence punishable with imprisonment then it must comply with the provisions of Section 6(2) of the Act. In Rattan Lal v. The State of Punjab : 1965CriLJ360 the facts were that on 31-5-1962 A, a resident of P was convicted under Sections 451 and 354, Indian Penal Code, and sentenced to 6 months rigorous imprisonment and a fine of Rs. 200/-. A was 16 years old at the time of his conviction. The Probation of Offenders Act was extended to P on 1-9-1962, A's appeal before Additional Sessions Judge was dismissed on 22-9-1962. A's revision in the High Court was dismissed on 27-9-1962. No ground was taken in the revision that the Additional Sessions Judge should have acted under Section 6 of the Act. After the disposal of revision A filed petition requesting the High Court to exercise its jurisdiction under Section 11. It was also dismissed. On appeal by special leave the Hon'ble Judges of the Supreme Court held that the calling for a report from the Probation Officer is a condition precedent in the exercise of power under Section 6(2) of the Act by the Court. The judgments of the lower Courts and the High Court sentencing the appellant to imprisonment were set aside and the case was remanded to the High Court to make an order after complying with Section 6(1) of the Act. In that case the appellant was sentenced to imprisonment without calling for the report of the Probation Officer as required by Section 2 of the Act which is a mandatory provision.
10. In the instant case also the Sessions Judge sentenced the appellant to imprisonment for ten years without complying with the mandatory provisions of Section 6(2) of the Act, according to which it was incumbent on him to call for a report from the Probation Officer as to pass the proper order after considering the same. Section 6(1) of Act enjoins that an accused who is under 21 years of age, if convicted of an offence punishable with imprisonment but not with imprisonment for life, shall not be sentenced to imprisonment. Thus if a person under 21 years of age has been convicted of such an offence then the Court is to decide whether he should be sentenced to imprisonment or he should be released on probation under Section 3 or 4 of the Act. If the Court decides that he should be released on probation under Section 3 or 4 of the Act then it can pass the orders. However, if the Court comes to the conclusion that it will not be desirable to deal with him under Section 3 or 4 of the Act then it cannot sentence him to imprisonment unless a report from the Probation Officer is called and considered as required by Section 6(2) of the Act.
11. The learned Counsel for the State relied upon State v. Florencio Mascarenhas AIR 1969 Goa 115 : 1969 Cri LJ 1392, wherein it was held as under:
Calling for a report from the Probation Officer is a condition precedent for the exercise of the power under Section 6(1) of the Act by the Court.
Where, therefore, the Court, in exercise of power under Section 6(1), releases the accused who is of 19 years age and who is convicted by him under Section 392, Penal Code without calling for a report from the Probation Officer as required by Section 6(2), it cannot be said that the order releasing the accused is legal.
With due respect I do not agree with the law laid down in this authority. There is no mention of calling of the report of a Probation Officer in Section 6(1) of the Act. In Section 6(2) of the Act it is mentioned that if the Court wants to satisfy itself that it would not be desirable to deal with the accused under Section 3 or 4 then it shall call the report of the Probation Officer. As stated above, however, if the Court comes to the conclusion that taking into consideration the circumstances of the case including the nature of the offence and the character of the offender it is desirable to release him on probation under Section 3 or 4 of the Act then no report is required to be called for under Section 6 of the Act from the Probation Officer.
12. For the above reasons it is held that the learned Sessions Judge after the conviction of the appellant should have complied with the provisions of Section 6 Sub-section (2) of the Act and call for the report of the Probation Officer before passing the sentence of imprisonment. The sentence of imprisonment passed by the trial Court is therefore not legal and is set aside. The accused is a labourer and is aged about 17/18 years. He had no enmity with the deceased Hari Singh who was a Sarpanch of the village Panchayat but Hari Singh had some dispute with Mool Chand accused, since acquitted, regarding the theft of the watch of his son Siri Chand regarding which he (Hari Singh) along with his son Siri Chand and Sher Singh P. W. had gone to the tubewell of Ujagar Singh where Mool Chand was working as his employee. Per chance this Pars Ram appellant was also present. It appears that there was a sudden altercation between the parties in which exchange of abuses and fist blows took place and the appellant picked up a wooden danda, Exhibit P-1, from the nearby place and gave only one injury to the deceased which proved fatal. Taking into consideration the circumstances of the case, the nature of the offence and the conduct of the appellant I am of the considered view that it is a fit case to release the appellant Pars Ram on probation. I, therefore, partially accept his appeal, set aside his sentence of imprisonment and order his release under Section 4 of the Act on his executing a bond in the sum of Rs. 5.000/- with two sureties in the like amount to keep peace and be of good behaviour for a period of three years and to appear and receive sentence when called upon during such period.