NESARGI, J. ( 1 ) THIS appeal by the State is purported to have been filed under Section 378 of the Code of criminal Procedure against the judgment dated 20-8-1979 passed by the Additional Session judge, Bijapur, in Sessions Case No. 67/1978. ( 2 ) THE respondents who were A-1 to A-5 in the said Sessions Case were charged with having committed offences punishable under Section 324 r/w 34, 341, r/w 34, 148 and 302. r/w 149 of the Indian Penal Code. The learned Sessions Judge convicted each one of them for having committed the offence under Section 304 of. P. C. and sentenced each one of them to undergo imprisonment for a period of five years under the latter part of Section 304 of IPC. Thereafter he proceeded to apply the provisions of Section 360 Cr. P. C. and released them on probation of good conduct. ( 3 ) THOUGH the appeal filed by the State is purported to be under Section 378 Cr. P. C. , ground No. 7 in the memorandum of appeal makes out that the State is aggrieved by the order of the learned sessions Judge in applying the provisions of Section 360 Cr. P. C. In that view of the matter, the legal position is that the appeal can be said to have been instituted under Section 377 Cr. P. C. also. The other prayer in the appeal is that the learned Sessions Judge erred in acquitted the accused of having committed the offence punishable under Section 302 r/w Section 149 of IPC. ( 4 ) THE simple case of the prosecution as available in the evidence of P. W. 7 Channappa and P. W. 8 Mahadevappa the two important witness is that P. Ws. 7 and 8 are owners of R. S. No. 197 of halladgennur village within the jurisdiction of Kolhar Police Station. They had arranged with p. W. 9 Mallappa and others who owned sheep for penning the sheep in the said land during the night between 6-9-1978 and 7-9-1978 for the purpose of manuring the land. P. W. 7, P. W. 8, A-1, a-2, A-4 and A-5 were watching the sheep in the land during the said night. Earlier to 1-00 a. m. of 7-9-1978, P. W. 7 slept and P. W. 8 took his turn in his place in watching the sheep along with a-1. A-2, A-4 and A-5. P. W. 7, P. W. 8, A-1, a-2, A-4 and A-5 were watching the sheep in the land during the said night. Earlier to 1-00 a. m. of 7-9-1978, P. W. 7 slept and P. W. 8 took his turn in his place in watching the sheep along with a-1. A-2, A-4 and A-5. He woke up P. W. 7 and told him that a person was coming hopping to commit theft of the sheep and there were other persons also. A-1, A-2, A-4 and A-5 gave a chase and while doing so stones were pelted at them. A stone hit on the forehead of A-1 and another stone hit on the left knee of A-2. Hence they fell back A-4 and A-5 alone continued the chase and caught hold of Appanna the deceased who is supposed to be the person who had come there hopping, and they brought him to the land. A-5 tied his hands and legs by means of a rope M. O. 12 and disrobed him. After disrobing him the clothes viz. The shirt and the dhoti were kept underneath a tree about a furlong away from the spot where he had been tied. It also alleged by the prosecution that blows were dealt on the deceased Appanna by some of the accused viz. A-1, a-2, A-4 and A-5. By about 6-00 a. m. on 7-9-1978, P. W. 8 went to P. W. 10 Bhimanagounda, the police Patil of, Kolhar, and informed him, P. W. 10 went to the spot and questioned the deceased. He was still lying with his hands and legs tied by means of a rope M. O. 12. The deceased made signs to indicate where his clothes were and P. W. 10 brought those clothes and spread them on the person of the deceased. P. W. 10 then went to the Police station at Kolhar leaving all those persons there and the deceased also in the tied-up-condition. P. W. 11 Chandrashekhar HCB-961 was the Station House Officer. P. W. 10 gave his information as per Ex. P-12 at about 1-05 p. m. P. W. 11 went to the spot. In the meanwhile, P. W. 13 Rantappagouda had learnt from P. W. 10 that such an incident had taken place. P. W. 11 Chandrashekhar HCB-961 was the Station House Officer. P. W. 10 gave his information as per Ex. P-12 at about 1-05 p. m. P. W. 11 went to the spot. In the meanwhile, P. W. 13 Rantappagouda had learnt from P. W. 10 that such an incident had taken place. He (P. W. 13) accompanied by A-3 had gone to the spot and there A-3 interrogated the deceased but did not get any reply from him in regard to the complicity of the other Harnashikaris A-3 then heated up the iron-kuda which is said to have been recovered at his instance after his arrest and his information was recorded, and branded the deceased on the various parts of his body thereby causing about 21 injuries as noticed by P. W. 2 dr. Rangappa who conducted the post mortem examination. After P. W. 11 reached the spot he arranged to take the deceased who was still in a position to walk with him and then sent him to the Dispensary at Kolhar. By the time the doctor reached the Dispensary the deceased Appanna expired. P. W. 11 recorded his report as per Ex. P. 13 and on the basis of that report P. W. 15 ningappa HCB-569 registered the case. A-1 and and A-2 were arrested on 8-9-1978 in Kolhapur and A-3 to A-5 were arrested on 9-9-78. Information given voluntarily by A-3 was recorded as per Ex. P-19 and pursuant to that information sticks M. Os. 9 to 11 were recovered and they were seized and sealed under the panchanama Ex. P-9. Investigation was completed and a charge sheet was filed. ( 5 ) THE learned Sessions Judge has accepted the evidence of P. W. 2 in regard to the injuries caused on the deceased Appanna and the evidence of P. W. 1 Dr. Gurappa in regard to the injury caused on the forehead of A-1. He has concluded that because of the injuries Appanna had expired. He has accepted the evidence of P. Ws. 7 and 8 who are eye-witnesses to the incident and has then come to the conclusion that the prosecution had established the offence of culpable homicide not amounting to murder against all the accused persons. He has concluded that because of the injuries Appanna had expired. He has accepted the evidence of P. Ws. 7 and 8 who are eye-witnesses to the incident and has then come to the conclusion that the prosecution had established the offence of culpable homicide not amounting to murder against all the accused persons. He lastly concluded that all the accused persons were to be sentenced under the latter part of Section 304 IPC and sentenced each one of them to undergo imprisonment for five years and thereafter applied the provisions of section 360, Cr. P. C. ( 6 ) IN view of the legal position that the State has challenged the adequacy of the sentence by incorporating ground No. 6 in the memorandum of appeal, the accused are entitled to plead for their acquittal in view of Section 377 (3) Cr. P. C. ( 7 ) THAT the deceased Appanna was branded by means of a hot iron is satisfactorily established by the evidence of P. W. 2 who conducted the post-mortem examination over the dead body of appanna and found 21 burn injuries on the various parts of his body. P. W. 2 has further stated that the left side 7th and 8th ribs had been fractured and the left lung had collapsed and because of that and also because of the burns Appanna had died as a result of shock and haemorrhage. He has also stated that the burns themselves were sufficient to give rise to shock and result in the death of Appanna and that the fracture which caused the injury to the vital organ left lung also could have caused shock and resulted in the death of Appanna. In view of this material, we hold that burn injuries had been caused on Appanna and Appanna had sustained fractures of 7th and 8th left side ribs and because of the fractures left lung had collapsed. That establishes that appanna had met with homicidal death. ( 8 ) P. WS. 7 and 8 are natural witnesses. It cannot be said that they are interested witnesses because if at all they are interested, they are interested in A-1, A-2, A-4 and A-5 who were also engaged in watching the sheep that had been penned in their land during the night between 6-9-1978 and 7-9-1978. ( 8 ) P. WS. 7 and 8 are natural witnesses. It cannot be said that they are interested witnesses because if at all they are interested, they are interested in A-1, A-2, A-4 and A-5 who were also engaged in watching the sheep that had been penned in their land during the night between 6-9-1978 and 7-9-1978. The fact that Appanna's hands and legs had been tied by means of rope m. O. 12 has been witnessed by the Police Patil P. W. 10 who went to the spot on being informed by P. W. 8 at about 6 a. m. on 7-9-1978. Therefore, the evidence of P. Ws. 7 and 8 in this behalf gains support from the evidence of P. W. 10. That fact has been also observed by P. W. 11 the head Constable who went there after receiving information from P. W. 10 as per Ex. P-12 at about 1-05 p. m. on 7-9-1978 and by that time Appanna had sustained burn injuries also. How he came to sustain the burn injuries has been spoken to by P. Ws. 7 and 8. Their presence in the land, being owners of the said land, is quite natural. They have spoken to the incident from the inception to the end. The sum and substance of their evidence is that they and A-1, A-2, A-4 and a-5 were watching the sheep in the land, that some persons came there and one of them was hopping and they had come there in the land without their permission to commit theft of the sheep, that thereafter A-1, A-2, A-4 and A-5 chased those persons and while they were so chasing A-1 sustained a stone hit on the forehead and A-2 on his left knee and therefore they fell back, and that A-4 and A-5 continued chase and brought back the deceased Appanna and A-5 tied him by means of M. O. 12. Cross-examination of P. Ws. 7 and 8 has not brought out any material. ( 9 ) THE prayer in the appeal of the State is that the acquittal of the accused of all the remaining offences including the offences under Sections 324 r/w 34 and 341 r/w 34 IPC is wrong. The evidence of P. Ws. 7 and 8 supported by the evidence of P. Ws. ( 9 ) THE prayer in the appeal of the State is that the acquittal of the accused of all the remaining offences including the offences under Sections 324 r/w 34 and 341 r/w 34 IPC is wrong. The evidence of P. Ws. 7 and 8 supported by the evidence of P. Ws. 10 and 11 leaves no doubt in our mind that A-4 and A-5 had gone on after the deceased and other persons and returned after catching hold of the deceased and brought him to the land in question. Therefore, both of them wrongfully detained the deceased Appanna A-5 further on tied the hands and legs of the deceased by means of a rope. But the offence committed by him would be the same namely under Section 341 IPC. Hence we hold that the prosecution has satisfactorily established that a-4 and A-5 have been guilty of having committed the offence punishable under Section 341 r/w section 34 IPC. It cannot be said that A-1 and A-2 also had a hand that. If it can be said so, then p. Ws. 7 and 8 also would be in same position as A-1 and A-2. That is too very far-fetched. It is subsequent to 6 a. m. on 7-9-1978 that P. W. 13 and A-3 went to the spot and A-3 interrogated the deceased Appanna whose hands and legs had been tied, but finding that Appanna was not co-operating A-3 branded him by a hot iron which is said to be M. O. 1. That part of the prosecution case is also spoken to by P. Ws. 7 and 8. We find no reason to disbelieve their evidence for the very reasons we relied on in regard to the earlier part of the incident. In fact p. W. 11 the Head Constable who went there after 1-05 p. m. found the deceased Appanna lying with his hands and legs tied by means of a rope M. O. 12 and having sustained burn injuries and he arranged to take him to the hospital where he expired before the doctor arrived. Now the question is whether A-3 alone is guilty of any offence in this behalf or A-1, A-2, A-4 and A-5 are also guilty of that offence. Now the question is whether A-3 alone is guilty of any offence in this behalf or A-1, A-2, A-4 and A-5 are also guilty of that offence. It is not the case of the prosecution that A-1, A-2, A-4 and A-5 did in any manner instigate or suggest even to A-3 that he should brand the deceased Appanna by means of a hot iron. Therefore, A-3 alone will have to be held responsible for that act of branding the deceased. Now, it has to be seen what offence A-3 has committed. The evidence of p. W. 2 the doctor who conducted the postmortem examination is not conclusive on this aspect of the case because he is not sure whether the shock which caused the death of Appanna was due to the burns caused on him or due to the fracture of the left side 7th and 8th ribs which in turn caused the collapsing of the left lung. The doctor P. W. 2 has sworn that the same could have been caused by a fail. P. W. 13 who has been treated hostile by the prosecution has stated that the deceased was pushed and he fell down when he was taken to Kolhar Police Station. It has been argued that this fall might have caused the fracture of the left side 7th and 8th ribs which inturn caused the collapsing of the left lung. That possibility cannot be ruled out. Therefore, the offence committed by A-3 in branding the deceased Appanna can fall only under the provisions of S. 324, IPC. In view of the evidence of P. W. 13 it is just possible that the deceased Appanna met his death after the fracture of the ribs and collapsing of the left lung and not immediately after the burns caused on his body. Therefore it cannot at all be said with any certainty that it was because of the burns caused on the person of the deceased Appanna that he sustained shock which resulted in his death. The direct connection between the injuries and the death is not established satisfactorily. This is another reason why it will have to be held that A-3 alone is guilty of the offence under Section 324. The direct connection between the injuries and the death is not established satisfactorily. This is another reason why it will have to be held that A-3 alone is guilty of the offence under Section 324. P. C. ( 10 ) THE foregoing reasons and conclusions show that the learned Sessions Judge has been wrong in finding all these accused persons guilty of having committed the offence of culpable homicide not amounting to murder. So far as sentencing is concerned, a plain reading of Section 360 cr. P. C. makes it abundantly clear that the learned Sessions Judge has misunderstood the Section because this Section would be applicable so far as persons above the age of twentyone years are concerned only if the offence committed by them is punishable with fine only or with imprisonment for a term of seven years or less. The offence found established by the learned sessions Judge falls under Section 304 IPC and the sentence according to the learned Sessions judge will be covered by the latter part of Section 304 IPC. The maximum sentence provided under that part is imprisonment for ten years. Therefore the provisions of Section 360 Cr. P. C. were not applicable. Now that we have found A-4 and A-5 guilty of the offence under Section 341 r/w S. 34 of IPC which is punishable with imprisonment up to one month and provisions of section 360 Cr. P. C. would be applicable to them, and because we have found A-3 guilty of the offence under Section 324 of IPC the maximum sentence provided for which is imprisonment for three years the provisions of Section 360 Cr. P. C. would be applicable to him also. It is to be noticed that A-5 has given his age as 18 years when the charges was read over and explained to him and he was asked to give his plea under Section 228 Cr. P. C. and also when his statement was recorded under Section 313 Cr. P. C. His age is not mentioned in the charge-sheet. In the extract of the Prisoners Search Register found in the miscellaneous papers in this case, the age of a-5 is found mentioned as 18 years, and that tallies with what he has stated as mentioned earlier. P. C. and also when his statement was recorded under Section 313 Cr. P. C. His age is not mentioned in the charge-sheet. In the extract of the Prisoners Search Register found in the miscellaneous papers in this case, the age of a-5 is found mentioned as 18 years, and that tallies with what he has stated as mentioned earlier. In that view of the matter he would also be entitled to the application of Section 6 of the probation of Offenders Act. But we are of the opinion that we need not go into this aspect at all as in our view the facts and circumstances established in this case disclose that the deceased appanna and others had criminally trespassed into the said land during the night of 6-9-1978 and 7-9-1978 with an object of committing theft of sheep and while they were about to do so they were chased and only Appanna was caught and detained and A-3 intervened and caused burns by means of of a hot iron on the person of Appanna in regard to which A-1, A-2, A-4 and A-5 did not have anything to do A-1 and A-2 have nothing to do with the wrongful restraint or detention of Appanna because only A-4 and A-5 were responsible for it. Therefore, A-1 and A-2 are entitled to be acquitted and in view of the facts and circumstances found proved we hold that a lenient view has to be taken in regard to the offences committed by A-3, A-4 and A-5. We have already noted that A-3, A-4 and A-5 were arrested on 9-9-1978 and were in custody up to 28-10-1978. We hold that a sentence of two weeks' simple imprisonment for the offence under section 341 r/w Section 34 IPC so far as A-4 and A-5 are concerned would meet the ends of justice, and a sentence of one month's rigorous imprisonment as against A-3 for the offence under Section 324 IPC would also meet the ends of Justice. ( 11 ) IN the result, in exercise of our powers under Section 377 (3) Cr. P. C. we hold that A-1 and a-2 are to be acquitted and therefore set aside the conviction and sentence passed on them and acquit them. ( 11 ) IN the result, in exercise of our powers under Section 377 (3) Cr. P. C. we hold that A-1 and a-2 are to be acquitted and therefore set aside the conviction and sentence passed on them and acquit them. We set aside the conviction and sentence passed on A-3, A-4 and A-5 by the learned Sessions Judge, and we convict A-3 for having committed the offence under Section 324 ipc and sentence him to undergo rigorous imprisonment for one month and A-4 and A-5 for having committed the offence Section 341 r/w S. 34 IPC and sentence each one of them of undergo simple imprisonment for two weeks. A-3, A-4 and A-5 are entitled to the benefit of section 428 Cr. P. C. In this view of the matter we consider it unnecessary to go into the question whether Section 6 of the Probation of Offenders Act so far as A-5 is concerned and Section 360 cr. P. C. so far as the convicted accused are concerned would be applicable or not and if applicable what would be the resultant position in law. ( 12 ) ORDER accordingly.