JUDGMENT :

1. List of cases has been revised and the case is being taken up in the revised call for hearing.

2. Heard Shri Kaushal Kishore Tewari, learned counsel for the appellants and Shri Hari Shanker Bajpai, learned A.G.A for the State.

3. The present appeal under Section 374 (2) of the Criminal Procedure Code has been preferred against the judgment and order dated 03-02-2004 passed by the court of Additional Sessions Judge/ Fast Track Court (III) Lakhimpur Kheri in S.T. No. 649 of 2000: State Vs. Dinesh Kumar and others, whereby the appellants were convicted and sentenced under sections 323 and 504 I.P.C. for six months rigorous imprisonment.

4. That Brief facts of the case are that the case emerged from the FIR lodged by PW-1, Nathulal stating that on 01-06-1999 when PW-1 (complainant) along with his family members was sitting in his house then accused / appellants armed with lathi and danda entered into the house of the complainant and started beating everyone and even committed loot over there. Complainant further stated that in this occurrence even his wife got injured.

5. On this allegation, Nathulal lodged a written report as Exhibit Ka-1 at Police station Kheri on 01-06-1999 at 7:30 PM and the case was registered under sections 394 I.P.C. as Case Crime No. 174-A/1999. Thereafter Kamla Devi wife of Nathulal was medically examined on 01-06-1999 and the doctor had opined that neither of the injuries were on the vital parts.

6. This case was entrusted to PW-5, S.I. Sher Bahadur Singh who investigated this case and during investigation, he visited the place of occurrence and prepared the site plan and even recorded the statements of witnesses and after completing the investigation, investigating officer had submitted the charge sheet against the appellants and one Guddu @ Rajesh Kumar on 22-09-1999 only under section 323 and 504 I.P.C. as no evidence was found against the appellants under section 394 I.P.C. And further during trial accused Guddu @ Rajesh Kumar died.

7. That further after submission of charge-sheet before the Additional Chief Judicial Magistrate, Kheri the said case was committed to Court of Session wherein it was registered as S.T. No. 649 of 2000. After committal, the trial court framed charges against the accused-appellants under Sections 323 and 504 I.P.C. The accused-appellants denied the charges levelled against them and claimed to be tried.

8. That in order to substantiate its case, prosecution examined five witnesses namely PW-1 Nathulal first informant of the alleged incident, PW-2 Dr. P.K. Jangwaar, PW-3, Dr. G R Sharma , PW-4, Smt. Kamla Devi who was reported to be injured in this incident, and PW-5, S.I. Sher Bahadur Singh, Investigating Officer.

9. That after closing of the evidence, statement of accused/ appellants under Section 313 Cr.P.C. were recorded by the trial court explaining the entire evidence and other circumstances, in which the appellants denied the prosecution story and the entire prosecution story was said to be wrong and concocted.

10. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, found the accused / appellants guilty and convicted the appellants under sections 323 and 504 I.P.C. for 6 months rigorous imprisonment and acquitted the appellants from the charges under section 394 and 452 I.P.C.

11. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellants have preferred the present appeal.

12. Learned counsel for the appellants submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938 and the provisions of the said act shall apply in the present case. He further submitted that the Probation of Offenders Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as held by Hon’ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (20