K.D. Sharma, J.
1. This appeal by Prabhu is directed against the judgment of the Additional Sessions Judge, Gangapur City, dated September 28, 1972, by which the appellant was convicted under Section 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for two years.
2. The prosecution case against the appellant was that on June 13, 1972, at about 2 pan Jeet Ram and his father Lohdey potters, left their village for their klin to make earthenware pots. At that time, Maluka approached them and asked them not to use the klin, as the former would cover it with kelus. Thereupon, Lohdey replied that the klin was meant for his use and that he would expose his earthen pots there to file. Maluka resented the above reply and went towards the village faying that he would teach Lohdey a lesson. After a short while, Maluka returned to the place for making earthenware vessels along with Ramjilal, Prabhu appellant, Badri and Bheru. Maluka and his companions were armed with lathis. As soon as they reached the spot, they asked Lohdey to remove his earthen posts from there. Lohdey refused to remove he pots. Thereupon, Maluka and his associates openly declared that Lohdey must be done away with Prabhu appellant, in the first instance, inflicted a lathi blow on the head of Lohdey as a result of which the latter fell down and became unconscious. The head injury caused by the blow started bleeding profusely. The miscreants ran away from there, as they considered Lohdey to be dead The sons of Lohdey removed their father from the place of occurrence and brought him to Gangapur in a bullock-cart. Mishra son of Lohdey lodged the first information report with the police at police-station Gangapur on June 14, 1972, at 5 p.m. The injured was admitted to the hospital at Gangapur.
3. On the basis of the report, the police registered a criminal case under Section 307 I.P.C. and made inquiries into the physical condition of Lohdey. Lohdey succumbed to the injuries after two days in the hospital. The police altered the case to one under Section 302 I.P.C. and made usual investigation into it. After collecting necessary evidence against the accused persons, the police put up a charge sheet against them under Section 302 I.P.C. in the court of Magistrate, Gangapur The learned Magistrate held an inquiry, preparatory to commitment, in the case and committed the appellant Prabhu, Ramjilal,. Maluka, Badri and Bheru to the court of Additional Sessions Judge, Gangapur City, under Sections 302, 147 I.P.C. and Section 302 read with Section 149 I.P.C. The Addition Sessions Judge, Gangapur City tried the accused persons for the aforesaid offences and found Phabhu appellant guilty of an offence punishable under Section 304 Part II I.P.C. only. The other accused, namely, Ramjilal, Maluka, Badri and Bheru were acquitted of all the charges framed against them After convicting Prabhu appellant for the offence under Section 304 part II I.P.C., the learned Additional Sessions Judge took a lenient view in the matter of sentence and awarded to him two years, rigorous imprisonment only, as stated above.
4. Aggrieved by his conviction and sentence, the appellant has come up in appeal to this court.
5. I have carefully gone through the record of the case and I card Mr.N.L. Tibrewal for the appellant and Mr. S.B. Mathur for the State.
6. There is ample cogent and unimpeachable evidence on the record to prove that the accused appellant inflicted the violent blow on the head of Lohdey with a lathi. The result of the blow was that Lohdey fell down & become unconscious. The head injury started bleeding from mouth & head. Mr. N.L. Tirewal learned Counsel for the appellant also has not assailed the conviction of the appellant under Section 304 part II I.P.C. His only contention is that the appellant was below 21 years of age on the date whom he was convicted by the trial Court & was entitled to the benefit of the Probation of Offenders Act Having carefully scrutinised the evidence of the eye witnesses viz. Mishra PW 2, Jeetram PW 4, Gangaram PW 5 and the Medical Officer Dr. S.L.Gupta, I am fully convinced that no other person but the appellant was responsible for the head injury of Lohdey deceased Consequently. I found no substantial ground for interference with the findings of the trial court as to the guilt of accused under Section 304 part II I.P.C.
7. As regards sentence, it may be observed that the trial court itself observed that according to the medical evidence the appellant was between 19 and 20 years of age at the time then he was convicted. In spite of these observations regarding the age of the appellant, the trial court refused to deal with him under Section 3 and 4 of the Probation of Offenders Art merely On the ground that, if the appellant was released on probation, the situation of law and order would be adversely affected, especially when the parties were uneducated. In my opinion, the trial Court has committed error in refusing the benefit of admonition or probation to the appellant without even calling for a report from the probation officer relating to the character and physical and mental condition of the appellant.
8. The provision for calling a report from the probation officer under Section 6(ii) of the Probation of Offenders Act is mandatory as observed by the Supreme Court in a case Ratan Lal v. The State of Punjab : 1965CriLJ360 . As the trial court has failed to apply Section 6 of the Probation of Offenders Act to this case even after arriving at the conclusion that the age of the appellant was below 21 years at the time of convicting him, I am of the view that it is a fit case in which the sentence of rigorous as imprisonment for two years passed against the appellant must be set aside while maintaining the conviction under Section 304 part II I.P.C. This Court can directly pass an order under Section 6(1) of the Probation of Offenders Act, but it is bound to act in accordance with provisions of Section 6(2) of the Act. It has been clearly laid down that the court shall call for a report from the Probation Officer and consider it or any other in formation available to it, relating to the character, physical and mental condition of the offender for The purpose of satisfying itself whether it would not be desirable to deal with the petitioner under Section 3 or Section 4 of the Probation of Offenders Act.
9. Hence it is necessary to remand the case to the Additional Sessions Judge, Gangapur City, with the direction that he shall call for a report from the Probation Officer under sub Section (2) of Section 6 of the Probation of Offenders; Act and consider it and deal with the petitioner under Section 6(1) of the said Act.
10. I partly accept the appeal and while maintaining the conviction of the petitioner under Section 304 part II I.P.C. set aside the sentence of two years, rigorous imprisonment passed against him by the trial Court and remand the case to the Additional Sessions Judge. Gangapur City with the direction that he will call for a report from the Probation Officer of the area under Sub-section (2 of Section 6 of the Probation of Offenders Act, 1958, consider it and then pass appropriate order under Section 6(1) of the Act. The accused shall appear before the Additional Sessions Judge, Gangapur City, on 28-3-77. He shall remain on bail and the Additional Sessions Judge shall obtain fresh bail bonds from him for his appearance before him.