JUDGMENT

Hon'ble R.C. Khulbe, J.

This appeal, preferred by the appellant u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 24.06.2004 passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial No.33 of 1999, whereby the Court below has convicted the appellant under Section 324 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo two years' R.I.

2. Facts, in nutshell, are that PW1 Jaman Singh gave an F.I.R. (Ex.Ka-2) to SDM, Lansdowne with the averments that in the morning of 6.1.1998, while he was getting the hair cut, appellant, being armed with a dagger, came and struck the same on his back. Thereafter, the appellant gave consecutive blows on the head and hand of complainant by that weapon with the intention to kill him.

3. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan; and after completion of investigation, submitted the charge-sheet against the appellant.

4. The case was, accordingly, committed to the court of Sessions after complying with the provisions of Section 207 Cr.P.C.

5. Learned Sessions Court, accordingly, framed the Charge against the appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution has examined PW1 Jaman Singh, PW2 Mohan Singh, PW3 Satya Prasad Naithani, and PW4 Mohan Singh (Patwari).

7. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. who denied the allegations made against him.

8. After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed.

9. Heard learned Counsel for the parties and perused the entire evidence available on the record.

10. Mr. Akshay Kumar, learned Counsel appearing for the appellant fairly submits that the conviction of the appellant, as recorded by the Court below under Section 324 IPC is perfectly justified as per the evidence recorded before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellant may be extended the benefit of being the first-offender and he may be released on probation by giving him the benefit of the Probation of Offenders Act, 1958.

11. Learned State Counsel appearing for the State, admits that he has not received any report about the criminal antecedents of the appellant, and admitted that appellant is the first-time offender.

12. In this regard, the Hon'ble Apex Court in the case of “Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

“7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."

13. Section 4 of the Probation of Offenders Act, 1958 read as under:

“4. Power of court to release certain offenders on probation of good conduct

1. When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time be