JUDGMENT 1. (Oral) - Accused-appellants Ram Prasad and Shri Kishan alias Ram Kishan along with Sultan, Sukh and Surajmal were tried by learned Additional Sessions Judge, Kota under Sections 302 read with Section 149 and 148, I. P. C., in connection with an occurrence dated May 10, 1977. During the course of this occurrence deceased Surajmal son of Shri Chhitar Lal sustained two injuries i. e., (i) fracture of left tempo-paretal bone, and (ii) fracture of right tibia below knee. 2. The prosecution in all examined nine witnesses, out of whom PW, 1, Pana, PW 2 Chhania, PW 3 Mannalal, PW 4 Ram Bilas, PW 5 Ram Kishan and PW 9 Bhairulal were examined as eye witnesses of the occurrence. PW 6 Dr. Rameshwar Vijai was examined to prove the postmortem report and the injuries sustained by the deceased, as he performed autopsy on the dead body of deceased Suraj Mai. PW 7 Shiv Narain and PW 8 Abdul Habib are the investigating officers of the case. 3. Learned Additional Sessions Judge after perusal of the evidence on record came to the conclusion that the guilt was not brought home to accused Suraj Mai, Sultan and Sua beyond reasonable doubt. He, however, convicted accused-appellants Sri Kishan alies Ram Kishan and Ram Prasad under Section 302 read with Section 34 I. P. C. and sentenced each of them to suffer imprisonment for life and a fine on Rs 500/- each In default of payment of fine to further suffer one years' rigorous imprisonment. 4. The convicted accused have challenged the verdict of the trial Court by filing appeal from jail to this Court. 5. The trial court has mainly based the conviction of the accused on the statements of PW 3 Mannalal, PW 5 Ram Kishan and PW 9 Bherulal corroborated by F.I.R., medical evidence and the statements of the investigating officer. 6. Learned counsel for the appellants after arguing for some time rightly conceded on the point that there is consistent, cogent and reliable evidence to hold that the two accused participated in the assault which led to the death of Suraj Mai and as such we are not required to discuss in detail the evidence examined on behalf of the prosecution. Learned counsel for the appellants after arguing for some time rightly conceded on the point that there is consistent, cogent and reliable evidence to hold that the two accused participated in the assault which led to the death of Suraj Mai and as such we are not required to discuss in detail the evidence examined on behalf of the prosecution. However, we have also looked into the record and are satisfied to the effect that there is consistent evidence as regards participation of the two accused in the assault of Suraj Mai (since deceased). We are in agreement with the learned counsel for the accused that the prosecution has miserably failed to prove previous enmity between the accused appellants and the complainant party. A minor quarrel regarding the right to sweep the flow of certain persons cannot be said to be sufficient cause for making a murderous assault. The occurrence appears to be the offshoot of a sudden quarrel. Trifling incidents sometime lead to results which are unexpected. Both the accused have inflicted only one injury each on the person of the deceased, but there is nothing on record to hold as to which of the two accused appellants inflicted the fatal blow on the head of the deceased. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Section 34 of the Indian Penal Code and as such we have to find out as to what was the common intention of the accused in furtherance of which they caused injuries to Surajmal (since deceased). In the facts and circumstances of the case it would be safe to hold that the common intention of the appellants was to give a severe beating to the deceased and not to cause death. The two blows were being given on a person, who must have attempted to defend himself, and it cannot be said with certainty that the injury which fell on the head of the deceased was intended to have been caused on the part on which it fell. We accordingly alter the conviction of each of the accused-appellant from Section 302 read with Section 34 I. P. C. to that under Section 325 read with Section 34 I. P. C. 7. Accused-appellant Ram Prasad is said to be below 21 years of age. We accordingly alter the conviction of each of the accused-appellant from Section 302 read with Section 34 I. P. C. to that under Section 325 read with Section 34 I. P. C. 7. Accused-appellant Ram Prasad is said to be below 21 years of age. He has already undergone sentence for three and a half years. His conviction and sentence awarded to him by the trial court under Section 302 read with Section 34 I. P. C. are set aside. He is convicted under Section 325 read with Section 34 I. P. C. and as such it would meet the ends of justice if we award him to sentence of imprisonment to the period already undergone by him. 8. As regards accused-appellant Sri Kishan alias Ram Kishan it would suffice to say that he had already remained in jail for a period exceeding one and a half years prior to his release from this Court. He is also below 21 years of age. The object of Section 6 of the Probation of Offenders Act broadly speaking is to see that young offenders are not sent to jail, because of grave risk to their attitude to life to which they are likely to he exposed as a result of their close association with the hardened and habitual criminals, who may happen to be the inmates of the jail. This is likely to do more harm than good to the society. It is for this reason that the mandatory injunction against imposition of sentence has been provided by the Legislature for the offenders, who are not guilty of offences punishable with imprisonment for life and are below 21 years of age. 9. There is nothing on record to hold that accused Sri Kishan alias Ram Kishan is previous convict. Keeping in view the nature of the offence and attenuating circumstances of the case, the age of the appellant we consider it proper to give him the benefit of the provisions of the Probation of Offenders Act. On behalf of the State it has been conceded that this Court can give benefit of the provisions of the Act without making any reference to the Probation Officer. 10. On behalf of the State it has been conceded that this Court can give benefit of the provisions of the Act without making any reference to the Probation Officer. 10. We convict the accused appellant Sri Kishan alias Ram Kishan under Section 325 read with section 34 I. P. C. We set aside the sentence of imprisonment and fine imposed on him under Section 302 read with Section 34 I.P.C. and direct that he be released on executing a personal bond with one surety in the sum of Rs. 1000/- to appear in the trial Court and receive the sentence whenever called upon to do so within a period of one year and during that period to maintain the peace and be of good behaviour. The trial Court is directed to take the bonds. Two months time is allowed to the learned counsel for the appellant to present the accused in the trial Court and furnish his bail bonds, failing which the trial Court will pass appropriate.The appeal is partly allowed as indicated above. Sd/- M.L. Shrimal, J., Sd/- S.C. Agrawal, J. *******