Criminal Appeal (SJ) No.267 of 1996 Against the judgment and order of conviction dated 30. 09.1996 Passed by J. K. Sinha, Additional Sessions Judge II, Munger, In Sessions Trial No. 79 of 1992. 1. Sarwan Paswan, son of Sri Jagdeo Paswan. 2. Bahadur Paswan, son of Huro Paswan. Both are residents of Village- Arma, P.S. Surajgarha, District- Lakhisarai. …………………………………………….Appellants. Versus The State of Bihar …………………………Respondent. .... .... For the Appellants :Mr. Arun Kumar Tripathi, Amicus Curiae. For the State : Mr. Parmeshwar Mehta, A.P.P. = PRESENT HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. On repeated call no one appears on behalf of the appellants. 2. Mr. Arun Kumar Tripathi, Advocate, appears and prays that he may be permitted to appear in this case as Amicus Curiae. 3. Prayer is allowed. 4. Appellant no. 1 Sarwan Kumar has been convicted for offence under Section 325 of the Indian Penal and sentence him to undergo rigorous imprisonment for one year and Appellant no. 2 Bahadur Paswan has been convicted for offence under Section 323 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for six months, but benefit of Probation of Offender Act has not been given. 2 5. Learned Amicus Curiae however, contends that charge was framed for offence under Section 307 of the Indian Penal Code and other allied Sections. However, injuries were found simple except injury no. 5 and injury found by Lathi and hence contends that benefit of Probation of Offender Act and Section 360 Cr.P.C. is to be given. 6. The prosecution case as alleged that informant and injured Singheshwar Paswan was talking with the mother of one Prakash Das then accused persons including the appellants came and assaulted by lathi. However, on the Fardbeyan, F.I.R. was lodged, charge sheet was submitted under Section 307 of Indian Penal Code. Cognizance was taken and case was committed to Court of Sessions. Charge was framed and witnesses were examined by the prosecution party. 7. However, out of five injuries except injury no. 5 are found to be simple. Taking into consideration both oral and documentary evidence, the appellants have been convicted for offence under Section 325 and 323 of the Indian Penal Code. 8. I proceed the evidence. The witness supported the prosecution case. I do not find any merit to interfere of 3 conviction recorded by the lower court. 9. So far order of sentence is concerned since the occurrence is of the year 1991 and twenty years has already been elapsed and order of conviction recorded under Section 325 and 323 of I.P.C. and hence no reason has been assigned as to why benefit of Probation of Offender Act be not given to the appellant. 10. However, nature of injury suggest that except injury no. 5 all the injuries are found to be simple. Hence having regard to the facts and circumstances, appellants are entitled for benefit of Probation of Offender Act and hence order of sentence recorded by the lower court is hereby set aside and Appellant no. 2 Bahadur Paswan who has been convicted for offence under Section 323 is ordered to be released on due admonition. Appellant no. 1 Sarwan Paswan is directed to be released on condition of entering into a bond of Rs. 2,000/-(Two thousand) with two sureties of the like amount each for a period of one year for keeping peace and good behaviour and if he violates the condition then he shall appear and receive the sentence. 11. With this modification, this appeal is dismissed. 4 12. Mr.Arun Kumar Tripathi, assisted the Court as Amicus Curiae and hence Legal Service Authority shall proceed for his remuneration in this regard for his assistance. Patna High Court The 1st July, 2011 NAFR/m.p. ( Gopal Prasad, J.)