JUDGMENT 1. - The learned Sessions Judge, Merta has convicted the accused appellant under Section 304 Part II of the Indian Penal Code and sentenced him to three years' rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment of fine, to further suffer one month's simple imprisonment. 2. The facts of the case out of which this appeal arises in brief are these : The accused appellant is employed in army. It appears that he had come to his village Moja Hudil police station Chitawa, District Nagpur in the month of April, 1977. It further appears that the accused is addicted to drinks. On April 25, 1977, Roopa PW 1 was at his house. The accused, under the influence of liquor, came to his house and asked Roopa PW 1 to bring some more liquor for him. Roopa PW I gave out that he had no liquor with him and at this, the accused is alleged to have said to Roopa that he should purchase it from the market. The accused said that he had some money and if the money falls short, then he should add to it. Roopa refused and it is alleged that at this, the accused started quarrelling with him. He slapped him. In the meantime, Smt. Mohini PW 2 wife of Roopa and Maya daughter of Rupa came to intervene. The accused used his leg to kick Smt. Mohini and it is alleged that a kick also hit Maya, daughter of Roopa, a girl aged five years, as a result of which, she fell on the ground and there was dislocation of cergico-occipital joint and death was due to respiratory failure. 3. The accused was tried by the learned Sessions Judge, Merta for an offence under Section 302 of the Indian Penal Code so far as the death of Maya is concerned and under Section 323, IPC for causing injuries to Roopa PW 1 and his wife. The accused pleaded not guilty and claimed trial. After the close of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure to explain the circumstances appearing against him in the evidence of the prosecution witnesses. The accused stands on a bare plea of denial. The accused pleaded not guilty and claimed trial. After the close of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure to explain the circumstances appearing against him in the evidence of the prosecution witnesses. The accused stands on a bare plea of denial. A case was set up by the accused that he was going to purchase some articles in connection with the marriage of his sister's daughter in a bus. He had to alight the bus on being asked by the police. The accused examined four witnesses in defence. 4. During the course of trial, it appears that a compromise was arrived at with Mohini and Roopa. The accused appellant was acquitted under Section 323 but the learned Sessions Judge convicted and sentenced the appellant as aforesaid. 5. The contention of the learned advocate is that on the material on record, it cannot be said that even one kick of the accused appellant hit Maya. He submits that there is no injury and the two injuries which were found by the doctor on the person of Maya were simple in nature : one abrasion below the lateral angle of the right eye and the other was a swelling on the dorsal side of the right hand. But after taking into consideration the record, it can be said that Maya received a kick from the accused. Roopa PW 1, who is the father of deceased Maya has stated that when his wife Smt. Mohini came to intervene, his daughter Maya who is said to be standing at a distance, also came to him. At that time, the accused kicked and it hit Maya who fell at a distance of about two steps. Smt. Mohini PW 2 who is the wife of Roopa has also stated similarly. She states that a kick by the accused hit Maya who fell at a distance and stopped breathing. According to the statement of Roopa, the accused was wearing shoes whereas as per the statement of Smt. Mohini, the accused was only wearing chappal. Gopi PW 3 who is also an eye-witness, states that one kick was given by the accused to Roopa and the other was aimed by the accused at the wife of Roopa, namely, Smt. Mohini but instead, it hit the girl who fell on a nearby stone and became unconscious. Gopi PW 3 who is also an eye-witness, states that one kick was given by the accused to Roopa and the other was aimed by the accused at the wife of Roopa, namely, Smt. Mohini but instead, it hit the girl who fell on a nearby stone and became unconscious. Though Gopi was declared hostile, to me, it appears that there was no occasion for the accused to have kicked the minor girl aged about five years and it appears to be more probable that the accused kicked Smt. Mohini and Maya was hit. On the evidence on record, therefore it can be said that the accused gave one kick to Mohini as a result of which Maya was hit on the ground and received injuries including the fatal one. 6. The learned Sessions Judge has observed that in his opinion, there is a direct relation in the kick given by the accused to Maya and her falling and receiving a fatal injury. There was no previous enmity between the accused and Roopa PW 1, father of Maya. The occurrence took place all of a sudden and when Maya came to intervene, she received a kick which could not have been aimed by the accused at her and because she came in between seeing the quarrel between her father and her mother also and the accused appellant one was him. The accused, therefore, cannot be said to have intended even to cause a grievous injury to Maya. Merely because she fell and received a grievous injury which proved fatal, the accused cannot be held responsible for having caused voluntarily grievous injury. Section 299, IPC defines culpable homicide and whoever causes death with the intention of causing death or such bodily injuries as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide amounts to murder in case the case falls under any of the four clauses of Section 300 of the Indian Penal Code. It cannot be said in the facts and circumstances of the case and the manner in which the occurrence took place that, the accused intended to cause such bodily injury as was likely to cause death or even had knowledge that he, by his act of giving a single kick would, cause the death of Maya. It cannot be said in the facts and circumstances of the case and the manner in which the occurrence took place that, the accused intended to cause such bodily injury as was likely to cause death or even had knowledge that he, by his act of giving a single kick would, cause the death of Maya. The act of the accused, there fore, does not amount to an offence of culpable homicide. Therefore, the accused should not have been convicted for culpable homicide not amounting to murder under Section 304 part II. The accused can only be held responsible for having caused simple injuries. I am, therefore, of the opinion that the accused is only liable under Section 323 of the Indian Penal Code. The accused is employed in the Indian Army. There was no previous enmity in between the accused and Miss Maya. The occurrence took place all of a sudden perhaps because of the slap by the accused who appears to be found of liquor. There is no previous conviction on record. If the case of the accused is not dealt with under Section 4 of the Probation of Offender Act, it is likely to affect his career. The accused and Ruppa and Smt. Mohini have arrived at a compromise and that is why the accused was acquitted of the charge under Section 323, Indian Penal Code. I am of the opinion that it is a fit case in which the benefit of Probation of Offenders Act should be extended to the accused appellant. 7. In the result, the appeal is allowed in part. The accused is acquitted of the charge under Section 304 Part II of the Indian Penal Code. He is convicted of the offence under Section 323, IPC. but for the reasons already stated, instead of at once sentencing the accused appellant to any imprisonment, it is directed that the accused appellant shall be released on probation of good conduct on his furnishing a personal bond in the sum of Rs. 2,000/- (rupees two thousand only) and a surety in the like amount to the satisfaction of the learned Sessions Judge, Merta to appear and receive sentence whenever called upon to do so during a period of one year and in the meantime to keep the peace and be of good behaviour. Two month's time is allowed to furnish the bonds. 2,000/- (rupees two thousand only) and a surety in the like amount to the satisfaction of the learned Sessions Judge, Merta to appear and receive sentence whenever called upon to do so during a period of one year and in the meantime to keep the peace and be of good behaviour. Two month's time is allowed to furnish the bonds. It may be stated here that under Section 12 of the Probation of Offender Act, 1958, in case the the case of the accused is dealt with under Section 4 of the Act, the accused does not suffer any disqualification, if any attaching to a conviction for an offence. Even otherwise, an offence under Section 323, IPC, in the facts and circumstances of this case, does not amount, to moral turpitude and cannot, be said to be a serious offence and i am sure, will not come in the way of the career of the accused appellant.Appeal Partly Allowed. *******