JUDGMENT 1. - The learned Additional Sessions Judge, Bhilwara has convicted the accused-appellant under section 304 Part I of the Indian Penal Code and has sentenced him to five years' rigorous imprisonment and to pay a fine of Rs. 200/- and in default to further suffer four months' rigorous imprisonment. 2. The deceased appellant is the real brother of deceased Jaggu, Panna is the third brother. All the three brothers had taken agricultural land of one Hem Singh P. W. 1 for cultivation and it is said that they were in possession of different parcels of land. On October 22, 1979, in the morning, Jaggu deceased was going to irrigate his land from the well and it is alleged that the accused-appellant and his brother Panna came there. Both asked deceased Jaggu not to irrigate his field that day as it was their turn. Some altercation took place and it is alleged that the accused-appellant and his brother Panna throw deceased Jaggu on the ground and while Panna was sitting on his chest and was pressing his neck with his hand, the accused appellant picked up a kassi and gave a single blow on the head of Jaggu from its blunt side, There was bleeding from the injury and Jaggu died. A report of the incident was lodged by Smt. Verji P. W. 8 wife of Jaggu deceased. Dr. Dhanraj P. W. 11 conducted the autopsy on the dead body of Jaggu on 23rd of October, 1979, and found the following injuries:- (1) Lacerated wound shaped over ''centre of scalp 1, 1/4" long on both I the arms. (2) Abrasion 1,1/4" x ⅕" vertically over left side of the neck in the centre. (3) Bruise 1/4" x ⅕" over right side of upper forehead. (4) Bruise 1/4" x 1/4" over centre of right eyebrow. In the opinion of Doctor Panwar there was a fracture under the occipital bone 2" long and the membranes were also torn. There was clotted blood underneath the fracture and brain was also lacerated. In his opinion, the deceased died of coma as a result of the injuries. 3. The accused pleaded not guilty to the charge and claimed to be tried and the learned Sessions Jadge after trial convicted and sentenced the accused as aforesaid. 4. There was clotted blood underneath the fracture and brain was also lacerated. In his opinion, the deceased died of coma as a result of the injuries. 3. The accused pleaded not guilty to the charge and claimed to be tried and the learned Sessions Jadge after trial convicted and sentenced the accused as aforesaid. 4. After having gone through the record of the case with assistance of the I learned Amicus Curiae it can be said that there is sufficient material on record that the accused-appellant is the author of the injury to deceased Jaggu. Smt. Verji P. W. 81 is the wife of deceased Jaggu. She has stated that her husband was in the process of; taking water from the well for irrigating his field and the accused-appellant along with his brother Panna arrived there. Panna sat over the chest of her husband and accused appellant gave a blow by kassi on the head of Jaggu. There was bleeding from the injury and her husband died at the spot. She admits that there was no previous enmity between the three brothers. Jagdish P. W. 9 reached the spot after the occurrence. He was declared hostile by the Public Prosecutor. The learned trial court has S placed reliance on the statement of Verji. The plea of accused-appellant Madhu was of bare denial. The accused did not examine any witness in his defence. The co-accused Panna who has been acquitted came out with a plea that it was his turn to irrigate the field from the well. He was irrigating his field and Jaggu deceased came there and asked him that he will not allow to irrigate the field. Jaggu came running and tried to strangulate him. Both fell while grappling. He also tried to catch hold of Jaggu by his neck. While Jaggu was sitting on his chest his brother Madhu accused-appellant arrived and in order to save him he gave a blow by kassi on the head of Jaggu. 5. It appears that Panna accused did receive three injuries. Both fell while grappling. He also tried to catch hold of Jaggu by his neck. While Jaggu was sitting on his chest his brother Madhu accused-appellant arrived and in order to save him he gave a blow by kassi on the head of Jaggu. 5. It appears that Panna accused did receive three injuries. All abrasions on the right and left side of the neck and on the anterior aspect of the left wrist, F Therefore taking the injuries of Panna into consideration, the possibility cannot be excluded that both Panna and Jaggu deceased were grappling with each other and both were trying to strangulate each other, accused arrived with a kasssi and gave a single blow on the head of the deceased Jaggu. 6. The learned trial court has observed that looking to the facts and circumstances of the case and the conduct of the accused that he gave a single blow by the blunt side of the kassi, all that can be said is that the accused had the knowledge that by his act the death of Jaggu may be caused. But surprisingly enough, even concluding so, the learned Additional Sessions Judge convicted and sentenced the accused appellant under section 304 Part I I. P. C. An offence under section Part 1 I.P.C. can only be made out if death is caused with the intention of causing death or of causing such bodily injury as is likely to cause death. If the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death then the offence falls under second part of section 304 I.P.C. In Chand v. State of U.P., (A.I.R. 1972 C.C. 955 ) it has been held that with a finding that the accused had the knowledge that he was causing such bodily injuries to the victim and is likely to cause death the accused can only be convicted under section 304 Part II I.P.C. and not under section 304 part I I.P.C. 7. Therefore, I am of the opinion that looking to the facts and circumstances of the case that the occurrence took place all of a sudden, the accused picked up a kassi, used its blunt side and gave a single blow, the finding of the learned trial court that the accused gave a blow with the knowledge that it is likely to cause death is correct, what with this finding, the accused can only be convicted under section 305 part II I.P.C. and not under section 304 part I I.P.C. 8. I will, therefore, alter the conviction and the appellant to section 304 part II I.P.C. from section 304 part I I.P.C. 9. How the question as to whether the case of the accused should be dealt with under section 360 Cr. P.C. or under the provisions of the Probation of Offenders Act, 1958 herein after referred to as the Act. The age of the accused as given in the statement under section 313 Cr. P.C. is 17 years and that is also the estimate of the learned Additional Sessions Judge so far as the age of the accused is concerned. Therefore, the accused was less than 21 years of age on the date the offence was committed as well as on the day when the matter of awarding sentence came up for consideration before the Court. The accused is, therefore, entitled to be dealt with under the provisions of the Act by virtue of section 6 of the Act, unless after calling the report of the Probation Officer, for reasons to be recorded, the Court can say that the case of the accused should not be so dealt with. In the instant case have already given the circumstances in which the offence is alleged to have been committed. The accused is the real brother of deceased Jaggu. I am of the opinion that looking to the facts and circumstances of the case and antecedents of the offender, his character and age, it is a fit case which should be dealt with under section 4 of the Act. 10. Therefore, the appeal of the accused-appellant is partly accepted. The accused is the real brother of deceased Jaggu. I am of the opinion that looking to the facts and circumstances of the case and antecedents of the offender, his character and age, it is a fit case which should be dealt with under section 4 of the Act. 10. Therefore, the appeal of the accused-appellant is partly accepted. His conviction is altered from section 304 part I I.P.C. to under section 304 part II I.P.C. While convicting him under section 304 part II I.P.C. looking to the facts and circumstances of the case and the age of the appellant which is 17 years, it is hereby directed that the accused-appellant Madhu be released on his entering into a bond in the sum of Rs. 1000/- and a surety in the like amount to the satisfaction of the learned Additional Secessions Judge, Bhilwara to appear and receive sentence during a period of one year when called upon by the court and in the mean time to keep the peace and be of good behaviour. The result of the appellate intimated to the accused in ; District Jain Bhilwara or in Jail where from he might have been transferred, one 'month's time is allowed to the accused to furnish the desired bonds in trial Court. Sd./- Mohendra Bhushan J.Appeal partly allowed. *******