The main legal point established in the judgment is the application of the Probation of Offenders Act to modify the sentence of the accused, considering the nature of the offence and the character of the offenders.

JUDGMENT :

1. Heard Sri Anil Srivastava, assisted by Sri Anil Kumar Verma, learned counsel for the revisionists, Sri Roshan Singh, learned A.G.A. for the State at length and perused the material available on record.

2. This criminal revision has been preferred against the judgment and order of conviction and sentencing passed by Assistant Sessions Judge, 5th Varanasi, in S.T. No. 183 of 1989 (State Vs. Sankata and four others) under Sections 147, 148, 149, 307 I.P.C. and Section 25 of the Arms Act and Crl. Appeal No. 27 of 1990 (Sankatha and Four Others Vs. State) dated 17th August, 1990 by the Sessions Judge, Varanasi.

3. The learned A.S.J. convicted accused Sankatha u/s 147, 148, 307 I.P.C. and Section 25 of the Arms Act and awarded one month’s simple imprisonment u/s 147 I.P.C. three months simple imprisonment u/s 148 I.P.C. and 7 years rigorous u/s 307 I.P.C. and fine of Rs. 500/-. He also sentenced the accused Sankatha for five months of rigorous imprisonment and fine of Rs. 100/-u/s 25 of the Arms Act with default stipulation of three months simple imprisonment. The learned A.S.J. convicted the rest of the accused persons u/s 147, 307 read with Section 149 I.P.C. and convicted accused Shobha, Pandhari, Subhash and Chhote Lal for one month’s simple imprisonment under Section 147 I.P.C. and five years rigorous imprisonment to each of the accused under Section 307 read with Section 149 I.P.C. and fine of Rs. 200/-to each of the accused with default stipulation of one month’s simple imprisonment.

4. The learned A.S.J. allowed the appeal partly and in place of Section 307 I.P.C. convicted the accused Sankatha u/s 324 read with Section 149 I.P.C. and sentenced him two years rigorous imprisonment with a fine of Rs. 200/-with one month's additional imprisonment in case of non deposition of the fine but acquitted him under Section 147 I.P.C. and maintained the conviction and sentencing u/s 148 I.P.C. and awarded three months simple imprisonment, maintained the conviction under Section 25 Arms Act and awarded five months rigorous imprisonment with a fine of Rs. 100/-and in case of default, one month’s simple imprisonment.

5. Co-accused Shobha, Pandhari, Chhotelal and Subhash were convicted u/s 147, 324 read with Section 149 I.P.C. with a sentence of one month's simple imprisonment u/s 147 I.P.C. and two years rigorous imprisonment u/s 324 read with Section 149 I.P.C. together with a fine of Rs. 200/ and in case of default of payment, one month's simple imprisonment.

6. The revisionists have taken the grounds that the judgment and order of both the Courts below are against the weight of the evidence on record. They have failed to appreciate the evidence. Both the Courts have erred in relying upon the tented, interested, inimical, contrary and highly unreliable prosecution evidence and no conviction can be sustained on such evidence. The impugned judgments are perverse and based on conjectures and surmises. No independent witness has been produced by the prosecution while several are named in the F.I.R. and the charge-sheet. No explanation for their non-examination has been offered, therefore, u/s 114 G of the Indian Evidence Act, an adverse presumption will have to be drawn.

7. The witness Laldhari, cousin of the informant/injured is an accused against the revisionist Sankatha which was pending in the Court of J.M. II Varanasi. No offence has been proved against any of the accused-revisionists. Four of the accused-revisionists were quite empty-handed and no overt role has been attributed to them. The only role is assigned to Sankatha because earlier to this incident, an F.I.R. was lodged by Sankatha against Lal Dhari and others about beating. No intention to kill the injured is proved against any of the accused-revisionist in view of the superf