JUDGMENT 1. - Learned Sessions Judge, Bhiiwara has convicted the accused appellant under section 326, I. P. C. and sentenced him to rigorous imprisonment for 2 years and a fine of Rs. 200/-, in default of payment of fine to further suffer 2 months simple imprisonment. 2. In short, the prosecution story is that Harlal and Mangu are sons of Kishna and P. W. 8 Chhittar deceased was the real brother of Kishna. On 1-6-80, at about 9 p. m. Kishna and his two sons namely Harlal accused appellant and Mangu were giving beating to Kishna the father. Chhittar deceased came at the scene of occurrence to intervene and at that time it is alleged that the accused appellant Harlal who was armed with an axe gave a blow by it to deceased Chhittar and Mangu gave a lathi blow to him. The report of the incident Ex. P/1 was lodged at the Police Station Mandal District Bhiiwara. A case was registered under section 302/34 and 325 and the police after investigation filed a charge sheet in the court of Munsif and Judicial Magistrate, Mandal District Bhiiwara, who committed the case to the Sessions for trial, P. W. 5 Dr. Yogendra Kumar Arora conducted the autopsy on the dead body of Chittar on 2-6-80, as he had died a day earlier i. e. on the date of incident, P. W. 5. Dr. Yogendra Kumar Arora found only two injuries on the dead body of Chhittar. (1) Lacerated wound over the vertex 5" x 1, 1/2" bone deep placed anterio-posteriorly. (2) Contusion of the soft tissues of right fore-arm on its outer surface. On openning the scalp, it was noticed that there was haemotoma under the scalp involving whole of the upper part of the head. There was separation of fronto-parietal suture of the bones of skull and both the surface of hemispheres of brain. 3. In the opinion of the doctor, these injuries were ante-mortem and the cause of death was due to coma resulting from the head injuries Learned Sessions Judge after trial convicted the accused-appellant for the aforesaid offence whereas accused Mangu was acquitted of the charge. 4. I have gone through the evidence on record and it appears that the accused-appellant gave a blow by blunt side of the axe on the head of deceased Chhittar. There are statements of Mst. Chandi PW. 1 w/o Chhittar PW. 4. I have gone through the evidence on record and it appears that the accused-appellant gave a blow by blunt side of the axe on the head of deceased Chhittar. There are statements of Mst. Chandi PW. 1 w/o Chhittar PW. 2 Balu and PW. 8 Krishna, who have stated in their statements that the accused-appellant and his brother gave beating to the Chhittar deceased. All the three witnesses have stated that they witnessed the occurrence and the accused-appellant gave a blow by an axe on the head of deceased. Though Mst. Chandi PW. .1 in her cross-examination has stated that the blow was given by sharp side of the axe, and other two witnesses have only stated that the accused gave a blow by an axe. There is a single injury on the head ascribed to the accused-appellant. When a witness sees the incident, which takes a few minutes, from a distance it can hardly be possible for him to say as to whether the single injury was given from its sharp side or blunt side of a weapon like an axe which is capable of being used from both sides. On the ring the alarm, deceased Chhittar came at the scene of occurrence and at that time, accused appellant gave an axe blow from blunt side on the head of Chhittar, who fell down on the ground. Balu and Gangaram brought there to his house. Learned Sessions Judge, therefore, has rightly convicted the appellant under section 325.1.P.C. 5. An offence under section 325, I.P.C. is such that it can be dealt with under section 360 Cr.P.C. or unde the Probation of the Offenders Act, 1958. In view of the Mandate of the legislature contained in section 331 Cr.P.C. if the offence is such which can be dealt under any of the aforesaid provisions the court has to give `Special reasons" in his judgement as to why the case of the accused should not be so dealt with. In view of the Mandate of the legislature contained in section 331 Cr.P.C. if the offence is such which can be dealt under any of the aforesaid provisions the court has to give `Special reasons" in his judgement as to why the case of the accused should not be so dealt with. An argument was advanced before the learned Sessions Judge, Bhiiwara that looking to age of the accused, which has been given by him in his statement under section 313 Cr.P.C. as about 18 years of age, he should be dealt with under the Provisions of Probations of the Offenders Act, but learned Sessions Judge, Bhiiwara has observed that the age of the accused to him appears to be 23 years and looking to all the facts and circumstances of the case he does not feel inclined to deal with the case under the provisions of the Probation of the Offenders Act. As stated earlier, the occurrence took place suddenly on 1-6-80 and there was no enmity between the deceased and the accused appellant and they are close relations. I am, therefore, of the opinion that it is a fit case, which should be dealt with under section 4 of the Probation of Offenders Act. 6. I, therefore, partly accept the appeal. Looking to the nature of the offence the accused-appellant has been convicted under section 325 I.P.C., which can be dealt with under section 4 of the Probation of the Offenders Act, 1958 hereby direct that the accused-appellant who has given age 18 years, should be released on probation. It is therefore, directed that the accused-appellant shall be released on his entering into a bond in the sum of Rs. 2,000/- (Rs. two thousand only) and a surety in the like amount to the satisfaction of learned Sessions Judge, Bhiiwara to appear and receive sentence when called upon during the period of 1 year and in the meantime to keep peace and to be of good behaviour. The accused-appellant be intimated about the result of his appeal. He should furnish bonds to the satisfaction of learned Sessions Judge, Bhiiwara within a period of two months from the date, he receives intimation about the result of this appeal. If he fails to furnish the bonds within the time, he shall under-go the sentence awarded by the trial court. The accused-appellant be intimated about the result of his appeal. He should furnish bonds to the satisfaction of learned Sessions Judge, Bhiiwara within a period of two months from the date, he receives intimation about the result of this appeal. If he fails to furnish the bonds within the time, he shall under-go the sentence awarded by the trial court. As and when the furnishes the bond, he should be released forthwith if not required in any other case. Sd/- M.B. Sharma, J.Appeal partly allowed. *******