JUDGMENT - S.M. HAJARNAVIS, J.:---This is an appeal by the State against the judgment delivered by the Additional Sessions Judge Greater Bombay, acquitting the respondents of an offence punishable under section 302 read with section 34 of the Indian Penal Code. Deceased Ramdas Annaji Waghchature and the accused resided in the 1st Line. Kmathipura, Bombay. During the Ganpati festival, there residents used to instal two deities and for that purpose the locality was devised in two parts. The deceased and Khande Bagde were the active workers of the eastern locality while the accused were the active workers of the western locality. On 6th September, 1974, Ramdas and Khande Bagde were collecting donations for the festival from the persons residing along Bapti Road which appears to be a part of the western locality. The accused picked up a quarrel and warned Ramdas and Khande not to collect donations from that locality. It appears that even then Ramdas collected donations from persons of that locality. On 9th September, 1974, that is on the date of the incident at about 10.00 p.m. or 10.15 p.m. Ramdas was sitting on the platform beneath a Pimpal tree. The accused and some other persons came there and questioned him why Ramdas and others were collecting donations from their locality. The accused gave fist blows and kicks to Ramdas. Some boys in that locality informed about this to Annaji the father of Ramdas. Annaji came there but he was pushed aside. Ramdas fell down and it was found that he was bleeding through his mouth and his tongue was protruding. On Dr. Dhabuwala from the same locality was summoned there who advised that Ramdas should be removed to hospital. Vilas Waghchaure, a cousin of Ramdas, carried Ramdas to J.J. Hospital in a taxi. He was admitted as an in-door patient. He was unconscious and he did not respond to the treatment and breathed his last at 5.45 p.m. on 10th September, 1974. In the meanwhile, immediately, after admitting Ramdas in hospital, Annaji and Tulshiram went to Nagpada Police Station where Annaji loged a First Information Report on the basis of which an offence was registered under section 307 read with section 114 of the Indian Penal Code by Sub-Inspector Shende. Ramdass clothes were seized by the Police from Annaji. The police visited the scene of offence and prepared a panchanama of the scene of offence. Ramdass clothes were seized by the Police from Annaji. The police visited the scene of offence and prepared a panchanama of the scene of offence. Sub-Inspector Shende also went to the hospital where he found that Ramdas was unconscious and, therefore, his statement could not be recorded. When he learnt that Ramdas was expired in the morning, the police changed the section of offence from section 307 to section 302 of the Indian Penal Code. After completing the investigation, a charge-sheet was filed in the Court of the Metropolitan Magistrate, 17th Court, Mazgaon on 9th October, 1974. The magistrate after going through the papers, committed the accused to face their trial before the Court of Sessions on 5th November, 1974. At the trial, a charge under section 302 read with section 34 of the Indian Penal Code was framed against the accused. It was explained to them. Both the accused pleaded not guilty and claimed to be tried. Their defence was of total denial. The prosecution examined Annaji Wagchaaure (P.W. 1). Tulshiram Sonawane (P.W. 2), and Khande Bagde (P.W. 3) as eye-witnesses. The prosecution also examined Dr. Mohomed Abdul Aziz (P.W. 12), Dr. Ajagaralli Qomatia (P.W. 13), Dr. S.K. Shah (P.W. 14). The first two doctors are formal witnesses inasmuch as they have produced the case papers. Dr. S.K. Shah conducted autopsy on the dead body of Ramdas. The rest of the witnesses were formal witnesses. After the prosecution evidence was over, the accused were examined. They denied to have committed any offence and stated that the case was false. The learned Judge, after taking all those materials into consideration, came to the conclusion that Ramdas died homicidal death because of the fracture of cervical vertebrae. He, however, held that the prosecution witness Annaji himself had admitted in is evidence that some other persons had also kicked the victim and, therefore, it might be that because of those kicks that he might have sustained the fracture of cervical vertebrae. He, therefore, held that it could not be held that it was the accused who had inflicted the fatal injury. He, therefore, found them guilty under section 323 of the Indian Penal Code and sentenced them to pay a fine of Rs. 100/- ., in default of payment of fine to suffer rigorous imprisonment for one month. It is against this judgment that this appeal has been filed. Mr. He, therefore, found them guilty under section 323 of the Indian Penal Code and sentenced them to pay a fine of Rs. 100/- ., in default of payment of fine to suffer rigorous imprisonment for one month. It is against this judgment that this appeal has been filed. Mr. Bardey, the learned Public Prosecutor, took us through the entire evidence and the judgment of the trial Court. He submitted that the learned trial Judge has committed an error in acquitting the accused. He submitted that the trial Judge ought to have held that it was the accused who had caused the fatal injuries to the deceased. There cannot be any dispute that the victim died a homicidal death because of the injuries that he had sustained at the time of the incident. All the three eye-witnesses have stated that the victim was sitting on a platform near the Pimpal tree at the time of the incident and that the accused along with some other persons came there and began to give fist blows. He fell down to the ground and he was bleeding through the month and his tongue had come out. He was then removed to the hospital. The papers produced by the Doctors clearly show that when Ramdas was admitted to the hospital, he was unconscious and inspite of the treatment he succumbed to the injuries in the early morning. Dr. S.K. Shah (P.W. 14), who conducted autopsy on the body of Ramdas noticed the following external injuries : (1) Tracheostomy incision 2" x 1" on the lower neck and (2) Fracture on neck. The first injury was due to the operation which was performed on him after he was admitted in the hospital. On opening the body, the found that there was fracture of cervical vertebrae 2, 3, and 4 of 2 c.m. each. The brain showed massive sub-arachnoid haemorrhage all ober the brain, more marked at the base. He also noticed mild laceration of the brain stem 20 cc. of free haemorrhage fluid seen in the cranial cavity. Both lungs showed patchy area of congestion. It was his opinion that the cause of death was fracture of survival vertebrae with diffused sub-arachnoid haemorrhage. This haemorrhage could be caused by any heavy blow. He also noticed mild laceration of the brain stem 20 cc. of free haemorrhage fluid seen in the cranial cavity. Both lungs showed patchy area of congestion. It was his opinion that the cause of death was fracture of survival vertebrae with diffused sub-arachnoid haemorrhage. This haemorrhage could be caused by any heavy blow. He has been cross-examined and it has been brought out in cross-examination that the fracture of cervical vertebrae was possible by heavy fall on the neck on hard surface. There was, however, no suggestion in the cross-examination of the eye-witnesses to show that the viting had heaving fallen down in the attack. Therefore, there cannot be any doubt that the victim sustained the fracture due to heavy blow and this is exactly the learned trial Judge has found and we accept that finding. So far as the eye-witnesses are concerned, Annaji (P.W. 1), has stated that when he heard the shouts, he went there and found that the accused were delivering blows and kicks to his son. He, however, admitted in his cross-examination that the accused did not deliver any fist blows to his son in his presence. He also admitted that some other persons delivered kicks to his son. It appears to us that the injury sustained by the deceased Ramdas must be more dueto the kicks than the fist blows. Tulsiram Sonawane (P.W. 2) has stated that he had also seen the attack but in his cross-examination he stated that he went thereafter Annaji had gone there. That means, he had no occasion to seen the actual attack by the accused. Therefore, his evidence cannot be of any assistance to connect the accused with the fatal injury. Khandu Bagde (P.W. 3) has stated that he saw that Ramdas was ought by the two accused near the Pimpal tree and they were beating Ramdas with fist blows. His evidence has been accepted by the trial Judge and we no not see any reasons why that evidence should not be accepted. All this evidence only establishes that the victim was beaten by the accused by fist blows and that he was also kicked by other persons. The earned Judges has observed that the fatal injury cannot be attributed to the accused alone in view of the fact that the victim was kicked by other persons. We do not see any infirmity in that reasoning. The earned Judges has observed that the fatal injury cannot be attributed to the accused alone in view of the fact that the victim was kicked by other persons. We do not see any infirmity in that reasoning. The accused were, therefore, rightly acquitted for an offence punishable under section 302 read with section 34 of the Indian Penal Code. So far as the sentence is concerned, we think that the learned Judge was unduly lenient in awarding the sentence to the accused under section 323 of the Indian Penal Code. There is no manner of doubt that the accused took law into their own hands and it appears that they are bullies and had mercilessly beaten the victim but in view of the fact that an appeal for enhancement filed by the state was dismissed in motion hearing on the ground that it was barred by time, this is a fit case, in our opinion, where we think that instead of sentencing them to fine alone under section 323 of the Indian Penal Code the learned Judge ought to have bound the accused under section 4(1) of the Probation of Offenders Act, 1958. We, therefore, confirm the conviction of the accused under section 323 of the Indian Penal Code but set aside the sentence imposed by the Lower Court and instead of sentencing the accused to any punishment, we direct that the accused be released under section 4(1) of the Probation of Offenders Act, 1958 on their entering into personal bonds for Rs. 500/- each, to appear and receive sentence when called upon for a period of two years and in the meanwhile to keep the peace and be of good behaviour. With this modification in the sentence, the appeal is dismissed. On executing the bonds the accused be released forthwith. -----