Short Note : 1. The material facts are that on 22-6-74 the petitioner Raghunath after buying kerosene contained in a tin had taken it on his cycle which he had placed in front of his house in Waidhan town. The bullock-cart, in which the respondent No. 1 Ramnath and the respondent No. 4 Hanshlal were travelling, happened to pass that way. It dashed against the cycle spilling the kerosene, contained in the tin, on the road. On discovery of the loss the petitioner Raghunath, complained and asked them to pay him the compensatory amount. This resulted in exchange of abuse. Soon, the respondent Nos. 1 and 4 were joined by the respondent No. 2 Ramlallu and the respondent No. 3 Babaee who were also armed with sticks. One of them Hanshlal dealt a blow on the petitioner Raghunath's hand entailing fracture of his radius and ulna bones. Held : Two questions arise for determination in this revision petition. First of them is whether the two respondents had been rightly found guilty of offence punishable under section 323 IPC, read with section 34 IPC, or that they had committed along with the acquitted respondents crime punishable under section 325 read with section 34 IPC. 2. The second question is whether the convicted respondents have been rightly given the benefit of the Probation of Offenders Act. 3. As to the first of the questions, on studying the evidence of particularly the petitioner Raghunath it is clear that he attributes the dealing of lathi blow on him only to the respondent No. 4 Hanshlal entailing injury to his left hand. He does not attribute anything to the other respondents, particularly the respondent Nos. 1 and 3. According to Deman (P.W.2) at the time the respondent No. 4 Hanshlal struck a lathi blow on Raghunath, the respondent No. 2 Ramlallu had caught hold of Raghunath; he (the respondent No. 2) had also by shouting ^^ekjks lkys dks** encouraged the respondent No. 4 Hanshlal. In the face of this evidence it is clear that the only participants in the act were the respondent No. 4 Hanshlal and the respondent No. 2 Ramlallu. No overt act is attributable to the other respondents, namely, Ramnath, the respondent No. 1 and Babaee, the respondent No. 3. They have been rightly acquitted. 4. In the face of this evidence it is clear that the only participants in the act were the respondent No. 4 Hanshlal and the respondent No. 2 Ramlallu. No overt act is attributable to the other respondents, namely, Ramnath, the respondent No. 1 and Babaee, the respondent No. 3. They have been rightly acquitted. 4. Because there was no confirmatory test due to the non-examination of the Radiologist about the injuries sustained by Raghunath being grievous in nature, the two respondents Hanshlal and Ramlallu have been rightly given the benefit that they had participated in jointly dealing a simple hurt to Raghunath. 5. As to the second question it was within the discretion of the trial Magistrate to have given the benefit of the Probation of Offenders Act to the two convicted respondents Nos. 2 and 4. This discretion was obviously influenced because of the respondents being the first offenders and having perpetrated the offence in question in a fit of passion. Revision dismissed.