JUDGMENT 1. - This appeal arises out of the judgement of the learned Sessions Judge, Mehta dated 22.4.1976. I have heard arguments and perused the record. 2. The prosecution case in brief is that Poona Ram and Hari Ram are real brothers. The relations between the families of Poona Ram and Hari Ram were strained for sometime past. It is alleged that on 28.6.75 at about noon time in their village Dehru, Bhanwaru grand son of Hari Ram accompanied by his brother-in-law Chandra co-accused went to the 'Bada' of Poona Ram armed with lathi and Farsi and removed two bullocks belonging to Poonam Ram, Mst. Suwati daughter of Poona Ram PW.2 and her mother deceased Jadav objected to the removal of their bullocks by the accused Bhanwaru and Chandru. The accused did not desist. Bhanwaru gave a Farsi blow to Mst. Suwari and Chandru gave a lathi blow to her. It is further alleged that Bhanwaru gave Farsi blow on the head of Mst. Jadav and also on the head of Mst. Suwati. Tiku Ram PW.6 who is a 'Hali' of Poona Ram happened to reach on the scene of occurrence. Seeing him so coming the accused are alleged to have left the scene of occurrence. 3. Mst. Suwati upon medical examination was found to have sustained an incised wound on the head and two bruises; one of the left arm and another on the base of the right middle finger. The injury report was prepared by Dr. Mohammed Ibrahim PW.11. Mst. Jadav was also examined by the same medical officer, who found an incised wound with clean margins with a fracture on her left parietal region. Mst. Jadav was then removed to Mahatma Gandhi Hospital, Jodhpur where the bed head ticket Ex.P2 was prepared which contains an entry that she was assaulted with a lathi by someone yesterday. Trachea tommy was done but she died at 4 a.m. on 1.7.75 due to respiratory failure. Her post mortem examination was conducted by Dr. P. Dayal PW.1. His report is Ex.P1. He found a stitched wound in the left parietal region and ill defined haemotoma and a fissured fracture of the middle cranial fossa. In his opinion, the cause of death was coma as a result of head injury. Her post mortem examination was conducted by Dr. P. Dayal PW.1. His report is Ex.P1. He found a stitched wound in the left parietal region and ill defined haemotoma and a fissured fracture of the middle cranial fossa. In his opinion, the cause of death was coma as a result of head injury. This incident was reported to the police and eventually both the accused persons came to be tried under sections 452, 394, 302, 323 and 324 Indian Penal Code. The learned Sessions Judge by his impugned judgement however, convicted Chandru Ram under section 447, 379, 324/34 and 323 Indian Penal Code and granted him probation for good conduct for two years. He convicted appellant Bhanwaru Ram and sentenced him as follows:- (a) under section 304 part II Indian Penal Code to rigorous imprisonment for five years; (b) under section 379 Indian Penal Code to rigorous imprisonment for two years; (c) under section 447 Indian Penal Code to rigorous imprisonment for six month; (d) under section 324 Indian Penal Code to rigorous imprisonment for two years. 4. The learned Sessions Judge directed that all the sentences shall run concurrently. Before I proceed to examine the case further I would like to mention that the learned Sessions Judge exceeded his jurisdiction by imposing a sentence of six months for an offence under section 447 Indian Penal Code when the Penal Code provides only for a maximum sentence of three months. Be that as it may, the learned counsel challenged the conviction of the appellant on the ground that the findings of the learned Sessions Judge are erroneous in as much as the fatal injury of Mst. Jadav alleged to have been caused by the appellant was not supported by the medical evidence. He drew my attention first to the FIR Ex.P3 lodged by Poona Ram PW.2. It was presented in the police station by Tiku Ram PW.6. In this report, Poona Ram stated that when the accused were removing the bullocks Suwati and Jadav caught the bullocks by their ropes but they were thrown aside by the accused. The women began to cry thereupon the accused armed with Farsi hit them. The police officer interrogated Tiku Ram bearer of the information who told him that Bhanwaru attacked Suwati and Jadav with Farsi while Chandru gave a lathi blow to Jadav. The women began to cry thereupon the accused armed with Farsi hit them. The police officer interrogated Tiku Ram bearer of the information who told him that Bhanwaru attacked Suwati and Jadav with Farsi while Chandru gave a lathi blow to Jadav. From the very inception thus there was a difference with regard to the type of weapon used by each accused person. Finally, prosecution witnesses maintained that Mst. Jadav was hit in the head by Bhanwaru with Farsi, Dr. P.Dayal PW.1 deposed that the injury of Mst. Jadav was caused by blunt weapon. Dr. Ibrahim PW.11, who had stitched the wound of Mst. Jadav deposed that the injury was caused by a sharp weapon. He appears to have disagreed with the opinion of Dr. Dayal and asserted that after three or four days, it is not possible to say whether the margins were clean cut or irregular. It is only up to 36 hours that it can definitely be said that the injury was by a blunt or a sharp weapon. The ill defined haemotama found at the time of the post mortem may have occurred on account of his mistake in allowing some small blood vessel remain stitched. Dr. Paras Ram Joshi DW.4 who appeared to prove the bruises of Bhanwaru, was also cross examined on this point. He was of the view that while stitching the wounds, the irregular margins are cut and the area is made uniform. If this is done it will not be possible to say later on whether the injury was caused by a sharp or a blunt weapon. After two three days it is not possible to say definitely whether the wound was by a sharp or a blunt weapon. The haemotoma could be produced by oozing of blood in any injury whether caused by blunt or a sharp weapon. The learned Sessions Judge was inclined to agree with the opinion of Dr. Ibrahim because he was the first person who had attended Mst. Jadav and because Dr. Dayal examined the injury after three days of its occurrence. The learned Sessions Judge further observed that both Suwati and Jadav have received sharp weapon injuries in the head. They should have been caused by only one of the two accused persons. Ibrahim because he was the first person who had attended Mst. Jadav and because Dr. Dayal examined the injury after three days of its occurrence. The learned Sessions Judge further observed that both Suwati and Jadav have received sharp weapon injuries in the head. They should have been caused by only one of the two accused persons. He believed the prosecution version that it was Bhanwaru who was armed with Farsi, a sharp weapon while Chandru was armed with a lathi. I have considered over the contention and it appears to me that the medical opinion cannot be considered categorical. Mst. Suwati deposed that Bhanwaru gave a Farsi blow to her and her mother. Tiku Ram PW.6 has also made a similar statement. He was confronted with his report Ex. P3 portion C to D wherein he is said that Chandru delivered a lathi blow to Mst. Jadav. He appears to have changed the version after the medical officer Dr. Ibrahim PW.11 certified that the injury on Mst. Jadav was caused by a sharp weapon. This witness Tiku Ram claims to be an eye witness and the aforesaid contradiction makes his testimony unreliable because the contradiction is material and significant. 5. The learned counsel then submitted that there is difference between the dimensions of the injuries of Mst. Suwati and Mst. Jadav. If both the injuries were inflicted by Bhanwaru by the same weapon then there should have been no difference in the dimensions of the injuries. If Mst. Jadav had in fact received a sharp weapon injury, she should have a so bled as did Mst. Suwati. No blood soiled cloth of Mst. Jadav has been produced. I have also considered these submissions but I find no force in any of them. On the contrary, I see no reason to disbelieve the story put forwarded by Mst. Suwati that it was Bhanwaru who delivered a Farsi blow to Mst. Jadav. The finding of the learned trial court in respect of an offence under section 304 part II Indian Penal Code against the appellant cannot therefore be disturbed. 6. As regards the offence under section 379 Indian Penal Code the prosecution has not been able to satisfactorily explain why Bhanwaru should be tempted to remove the bullocks of Poona Ram in the day time in the presence of the women of the family. 6. As regards the offence under section 379 Indian Penal Code the prosecution has not been able to satisfactorily explain why Bhanwaru should be tempted to remove the bullocks of Poona Ram in the day time in the presence of the women of the family. As regards the offence of a section 324 Indian Penal Code the learned counsel for the appellant conceded that there is no escape for the appellant from the charge because according to the original version of the prosecution it was Bhanwaru who have a Farsi blow to Mst. Suwati and it was Chandru who gave a lathi blow to Mst. Jadav. As regards the offence of section 447 Indian Penal Code, it also appears to have been made cut because the accused is said to have entered the 'Bada' and committed an offence under section 447 Indian Penal Code. It was lastly submitted that looking to the circumstances of the case, age and character of the accused, the learned Sessions Judge should have granted benefit of probation to the appellant as well. The learned Sessions Judge observed that even if it was accepted that Bhanwaru was below 21 years of age, then too, he was not entitled to the benefit of probation because he attacked two women, one of whom was fatally wounded and in defence he cooked up a story casting aspersion on the character of Mst. Suwati. I have considered this matter afresh. According to the estimate of age made by the learned trial Judge himself the age of the appellant was placed between 20 and 22 years. His school certificate Ex.P6 showed his age as 16 years. But since the judge himself was not sure whether the age was near about 20 years the benefit of this doubt should go to the accused and it should be held that on the day he was convicted he has not attained the age of 21 years. It will be noticed as was noticed by the learned Sessions Judge in the very beginning of his judgement that the parties are closely related and therefore there could have been no intention on the part of Bhanwaru to take the life of Mst. Jadav. It will be noticed as was noticed by the learned Sessions Judge in the very beginning of his judgement that the parties are closely related and therefore there could have been no intention on the part of Bhanwaru to take the life of Mst. Jadav. No doubt there have been strained relations between them but in the circumstances in which the alleged offences are said to have been committed, it appears that it is a case in which benefit of probation should be extended. The appellant is not a previous convict and the story of the theft is also not very convincing. The medical evidence is discrepant and there is also a difference between the story which Tiku Ram gave when he lodged the first information report with the police and what he has stated at the trial. The appellant has been in pre-trial detention for a period of 8 months and for about two months after his conviction. In this background, it will only serve the ends of justice if the appellant is dealt with leniently. 7. Accordingly, I partly accepted this appeal and direct that the convictions of the appellant under sections 304 part II, 379, 447 and 324 Indian Penal Code are maintained. But his sentences on these counts are set aside and instead it is directed that he shall be released provided he furnishes personal bond in the amount of Rs. 2000/- and surety in the like amount to the satisfaction of the learned Sessions Judge, Mehta, undertaking to appear and receive sentence when called upon to do so within a period of two years and in the mean time to keep the peace and be of good behaviour. He is allowed one month's time to file the aforesaid bond. *******