JUDGMENT 1. - This appeal is directed against the judgment dated the 31st August, 1974 of the Sessions Judge, Sri Ganganagar convicting and sentencing the accused appellants under Section 302 read with Section 34 IPC to imprisonment for life. 2. The case relates to the incident which took place in the Rohi of village Chistian, Tehsil Hanumangarh, District Sri Ganganagar at about 8.30 A.M. on July 7, 1973 wherein the deceased Ramlal son of Khyali Ram Meghwal received a number of injuries as a result of which he died the next day at 3.00 A M. The prosecution case, in short, was that 2-3 days prior to the incident the deceased had gone to Sarna in the marriage party of Ram Rakh. There a clash over the firing of crackers took place between him and the accused-appellant Bega Ram and the deceased is said to have given 3-4 slaps to the accused Bagaram. On the date of the incident i.e., July 7, 1973 early in the morning, at about 4.00 A.M., Ram Lal had gone to plough the field of one Bhaiya Jat Sikh. There at about 8.30 A.M. he was beaten by the accused with lathies. This was witnessed by Bega Ram son of Uda Rain PW 2, Doongar PW 3 and Sunder Sansi PW 8. Ram Lal received a number of injuries all bruises except injuries No. 10, 13, 14 and 15 which were haematoma and lacerated wounds. The said injuries were as under : "10. One haematoma 4" x 3/4" on right posterior lumber region oblique in direction. 13. One lacerated wound 1" x ⅛" bone deep transverse insertion 1" above the left eye brow. 14. Lacerated wound 3" x 1/2" x bone deep anterio-posterior in direction in mid line on the vertex. 15. Lacerated wound 21/2" x 1/2" x bone deep just posterior to above injury and oblique from behind forwards and to the left." The beating took place in the field of Bhaiya but the deceased was in a position to move and walked a distance of about 340 yards and reached the field of Om Prakash. Begaram PW 2 went to Khyali Ram, the father of the deceased and informed him about the incident. Begaram PW 2 is the brother of Khyali Ram. Both Khyali Ram and Bega Ram started towards the field where the incident occurred. Begaram PW 2 went to Khyali Ram, the father of the deceased and informed him about the incident. Begaram PW 2 is the brother of Khyali Ram. Both Khyali Ram and Bega Ram started towards the field where the incident occurred. They, however, found Ramlal in the field of Om Prakash. Ramlal was in senses and on enquiry by Khyali Ram told that he was beaten with lathies by Bega Ram and Mallu Rain sons of Ram Chand. The deceased was then brought to their house in a camel cart. At about 10.30 A.M. Ram Lal was taken to village Jhandawali to a private practitioner Shri Mohanlal who gave the first aid to Ramlal and advised his father to take him to some Government hospital. However Ramlal was not taken to any hospital. His condition took to the worse and Shri Mohan Lal was called to the village Chistian. By that time the temperature of Ramlal rose 106 degree Mohanlal advised Khyali Ram to shift the deceased to a Government hospital. The advice was not acted upon, the condition of Ramlal continued deteriorating and he breathed his last in the night at 3.00 A.M. on July 8, 1973. The first information report of the occurrence was lodged at the Police Station, Hanumangarh at about 9. A.M. on July 8, 1973. The distance of the Police Station from the place of occurrence is noted in the first information report as 5 miles. A case under Section 302 IPC was registered and investigation started. The post mortem examination was conducted by Dr. Roop. Singh and according to him the cause of death was the head injury leading to the fracture of skull with internal hemorrhage and injury to the brain. The injuries were ante mortem and sufficient in the ordinary course of nature to cause death. Both the accused were arrested on September 12, 1973 and on their information the lathies were recovered. After completion of the investigation the police submitted a charge-sheet against the accused-appellants in the court of the Munsif Magistrate, Hanumangarh who committed them to the court of sessions to stand trial under Section 302 IPC. The learned Sessions Judge, Ganganagar framed the charges against the accused under Section 302 and 302 read with Section 34 IPC. The accused pleaded not guilty and claimed to be tried. 3. The learned Sessions Judge, Ganganagar framed the charges against the accused under Section 302 and 302 read with Section 34 IPC. The accused pleaded not guilty and claimed to be tried. 3. In support of its case the prosecution examined as many as 10 witnesses. Begaram PW 2, Doongar PW 3, and Sunder PW 8 are eye witnesses of the occurrence. Khyali Ram father of the deceased is the author of the FIR and deposes about the oral dying declaration and the incident which took place in the marriage party of Ramrakh. PW 9 Mohanlal, the private medical practitioner deposes about the condition of the deceased seen by him at the time of giving first aid. PW 10 Laxmi Narain, Station House Officer, proves the various steps taken by him during the course of investigation. The remaining witnesses are formal. The statement of Dr. Roop Singh recorded in the committing court was transferred to the sessions file and read in evidence. In the statement recorded as required by Section 313 Cr. PC the accused denied the prosecution allegations and pleaded innocence. 4. The Sessions Judge by the judgment dated the 31-8-1974 has convicted the accused-appellant under section 302 read with s. 34 IPC and sentenced each of them to imprisonment for life. The Sessions Judge held that the deceased had died of violence in which he sustained injuries. By placing reliance on the testimony of the eye witnesses, namely, Begaram, Doongar and Sunder the Sessions Judge has held that it were accused who gave beating to the deceased. The Sessions Judge has further held that the dying declaration made by the deceased before Khyali is confirmed by his uncles Begaram and Doongarram, and another independent witnesses Mohan Lal. 5. We have heard Mr. K.C. Gaur, learned counsel for the accused-appellants and Mr. Niyajuddin Khan, learned Public Prosecutor. 6. After a short attempt assailing the finding of the learned Sessions Judge that it were the accused who caused the injuries to the deceased, learned counsel for the accused gave up the said challenge and concentrated his argument only as regards the nature of the offence. After going through the evidence of the eye-witnesses, namely, Begaram, Doongar and Sunder we - agree with the assessment of the learned Sessions Judge that the witnesses are credible. After going through the evidence of the eye-witnesses, namely, Begaram, Doongar and Sunder we - agree with the assessment of the learned Sessions Judge that the witnesses are credible. Begaram and Doongar are no doubt uncles of the deceased, but they are also related to the accused. They had no animus against the accused and would be the last person to implicate them falsely in the crime. The names of the accused appear in the first information report. The witnesses Begaram and Doongar are also named there. No serious infirmity affecting their credibility has been shown. We uphold the finding of the learned Sessions Judge that it were the accused who caused the injuries to the deceased. 7. We, however, find substance in the contention as regards the nature of the offence. To us it does not seem to be a case where the appellants could be convicted under Section 302 read with Section 34 IPC. No doubt the deceased had several injuries on his body. The doctor has mentioned the number as 21 and the Sessions Judge on a further count has totalled them as 47. However, on further probe we find that all, except injuries numbers 10, 13, 14 and 15 are bruises. Injury No. 10 is a haematoma and 13 to 14 are lacerated wounds and out of them only one on the head was fatal. Who out of the two caused this fatal blow is not shown. The crucial question, therefore, is what the common intention was and for what offence the appellants can be convicted by invoking the aid of Section 34 IPC. Both the victim and the accused are relatives. The accused appellants are brothers. Their relation with the deceased has been described by Khyali Ram as 'MERE TAYE KE BETE BHAI'. There was no previous enmity. The accused and the deceased both attended a marriage party only 2-3 days prior to the occurrence. The deceased was aged 18 years and the accused Malluram and Begaram 16 and 13 respectively as per the age mentioned in their statements. Accused Begaram and the deceased Ramlal had clashed over a petty matter i.e. firing of the crackers while attending the marriage party of Ram Rakh. After the incident of beating the deceased was in a position to move and in fact walked a distance of 340 yards. Accused Begaram and the deceased Ramlal had clashed over a petty matter i.e. firing of the crackers while attending the marriage party of Ram Rakh. After the incident of beating the deceased was in a position to move and in fact walked a distance of 340 yards. Both Begaram PW 2 and Doongar PW 3 who are his uncles did net take his injuries seriously. Doongar has in terms admitted : " jkeyky fQj mBdj [kkys ds lkFk&lkFk ?kj fd rjQ vkus yxk ml oDr eSaus ;g [;ky fd;k fd jkeyky ds ekewyh pksVsa gS vkSj og ?kj dks tk jgk gS vkSj eSa fQj ?kkl dh xBjh mBkdj vius ?kj dks pyk x;kA " After giving the first aid the medical practitioner advised Khyaliram to remove the deceased to the hospital but Khyaliram did not act upon this advise obviously because none took it seriously and did not anticipate that the injuries would result in death. In these circumstances it would be difficult for us to infer that the common intention of the accused appellants I was to cause the death of Ramlal. It appears that they intended to chastise I and give a severe beating to the deceased and in that process one of them inflicted a blow on the head which resulted in his death. However, the act of beating was done with a knowledge on their part that it was likely to I cause death and as such an offence under Section 304 Part II read with. I Section 34 IPC is clearly made out against them. 8. We, accordingly alter the conviction of the accused-appellants from Section 302 read with Section 34 IPC to Section 304 Part II read with Section 34 IPC. The sentence of imprisonment of life awarded to both the accused-appellants is set aside. Mallu Ram is sentenced to 5 years' rigorous imprisonment for the offence under Section 304 Part II IPC. We are told that he was released on bail as late as September 23, 1978 and he is said to have undergone the sentence of 5 years. He need not, therefore, surrender to his bail bonds. 9. As regards Begaram, the learned counsel for the accused has urged that he was below 21 years of age, both on the date of the incident and the date of his conviction by the Sessions Judge. He need not, therefore, surrender to his bail bonds. 9. As regards Begaram, the learned counsel for the accused has urged that he was below 21 years of age, both on the date of the incident and the date of his conviction by the Sessions Judge. He is, therefore, entitled to the benefit of Section 6 of the Probation of Offenders Act. In the statement of Begaram recorded by the committing court on February 27, 1974 the accused has given his age as 13 years and the same was estimated by the Munsif Magistrate as 18 years. In the statement recorded by the Sessions Judge on August 14, 1974 the age of the accused is mentioned as 13 year (estimated 17 years). In any view of the matter the accused was below 21 years and the learned Public Prosecutor also does not dispute this. Therefore, this accused is plainly entitled to the benefit of Section 6 of the Probation of Offenders Act, 1958. Having regard to the age, character and antecedents of the accused and the circumstances in which the offence was committed we consider it expedient that the accused Bega Ram should be released on probation of good conduct. 10. We accordingly allow the appeal. The conviction of the accused-appellants under Section 302 read with Section 34 IPC is altered to that under Section 304 Part II read with Section 34 IPC. 11. The sentence of imprisonment for life imposed on both the accused is set aside. Instead accused Mallu Ram is sentenced to five years' rigorous imprisonment under Section 304 Part II IPC. He is said to have already undergone more than 5 years and therefore, he need not surrender. As regards Bega Ram accused, we direct that he be released on probation of good conduct. Instead of sentencing him at once to any punishment we direct that he be released on his entering into a bond in the amount of Rs. 5,000/- (Rupees Five Thousand) with one surety in the like amount to the satisfaction of the Sessions Judge, Sri Ganganagar, to appear and receive sentence when called upon during the period of two years as the court of Sessions Judge, Sri Ganganagar may direct and in the meantime to keep the peace and be of good behaviour.Appeal partly allowed. *******