JUDGMENT 1. - This criminal appeal is directed against the judgment and order dated 17th Dec., 81 passed by the Sessions Judge, Jhunjhunu, by which, he convicted and sentenced each accused appellant as under:- Name of Accused U/s. Punishment. Banwarilal 302, IPC Imprisonment for life; and a fine of Rs. 1,000/-, in payments default, to one year's RI. " 447, IPC Two months' RI. " 148, IPC One year's RI and a fine of Rs. 200/- in default of payment of fine, to further two months' RI. Mani Ram Karni Ram, Randhir, Dwarika Prasad and Dayanand 302/149, IPC Imprisonment for life; and a fine of Rs. 300/- each; in default of payment of fine, to 3 months RI each. " 447, IPC 2 months RI each. " 147 6 months RI and a fine of Rs. 100/- each; in default of payment fine one month's RI each. 2. The prosecution story, in brief is that one Mst. Manohari, daughter of Chainaram (deceased) accompanied by her maternal brother Ramlal, lodged a report before the Superintendent of police, Jhunjhunu on 16th June, 78 wherein, it was alleged that her father had a litigation with the villagers for the last so many years. When her father, Chainaram and her maternal brother Rajendra and herself were returning from field to their house, on the way when they reached the Jaw at about 11.30 A. M. the accused persons came there with a bullock-cart from the south and stated that enemy had come and that he would be finished. It was further alleged that Banwari started beating with a Gandasi, Maniram, Karniram and Randhir gave beating with lathis and bricks. Dwarkaprasad and Dayanand accused, it was alleged that they were saying that he (Chainaram) should be finished and should not be let alive. On account of the injuries, her father Chainaram fell down on the ground. All the accused persons then ran away from the scene of occurrence. They (complainant-party) then took Chainaram on a cot to the house, reaching where, they noticed that he had already died. In spite of that, they called a doctor, who after examination, declared Chainaram as dead. On receipt of this report, a case under sections 147, 148 , 447 & 302/149, IP was registered and the investigation started. After arresting the accused persons and completing the investigation,the police submitted a challan against them. In spite of that, they called a doctor, who after examination, declared Chainaram as dead. On receipt of this report, a case under sections 147, 148 , 447 & 302/149, IP was registered and the investigation started. After arresting the accused persons and completing the investigation,the police submitted a challan against them. The learned Sessions Judge framed charges against the accused persons under sections 147, 302/149, 447 or 447/149. Accused Banwarilal was also charge-sheeted for offence under sections 502 & 148, IPC. All the accused persons denied the charges framed against them and claimed trial. 3. To support its case, the prosecution examined 12 witnesses in all. However, no witness was examined by the accused persons in their defence. After pursuing the entire case-record and hearing both the sides, the learned Sessions Judge found all the accused persons guilty of the offences and sentenced each of them as mentioned above. 4. It has not been disputed by either party that Chainaram died on account the injuries inflicted to him. All the prosecution witnesses have stated that accused Banwarilal inflicted Gandasi blow on the head of Chainaram (deceased), and further that accused Maniram and Randhir inflicted lathi blows to Chainaram, which resulted in fractures. According to them, Karniram inflicted blows by bricks. Chainaram was examined by Dr. Rameshwarlal PW 4, who found six injuries on the person of Chainaram. The post-mortem examination was also conducted on the dead body of Chainaram, by this doctor, according to whom, the cause of death of Chainaram was severe shock and external haemorrhage on account of injury No. 1 which was on the head of the deceased. This injury, according to the doctor, was caused by some sharp weapon, and was sufficient in the ordinary course of nature to cause death. As such, it becomes clear that Chainaram died on account of the injuries received by him, as has been proved by Dr. Rameshwarlal PW 4. 5. Mr. Sajjan Singh, the learned amicus curiae argued that the accused persons were convicted for forming an unlawful assembly, and that two accused Dayanand and Dwarkaprasad have been falsely implicated in this case to show the accused persons more than five in number, so that, a case under section 147 or 148, IPC for forming an unlawful assembly may be established against the accused persons. 6. 6. We have perused the entire record of this case and find that there is no evidence against Dayanand and Dwarkaprasad to the effect that they inflicted even a single blow to Chainaram (deceased). The only evidence against them is that they stated that Chainaram should be killed and he should not be left alive. This story of the prosecution against these two accused persons, namely, Dayanand and Dwarkaprasad is not at all believable. In our view, simply to show forming of an unlawful assembly, the prosecution has added the names of these two accused persons in the list of accused persons. Mr. Tibrewal, the learned complainant his fairly conceded that actually, there is no case against accused Dwarkaprasad. As such, we find that these two accused persons, Dayanand and Dwarkaprasad have been falsely implicated in this case by the prosecution, and the learned Sessions Judge has wrongly found them guilty of offence and sentenced each of them as mentioned above. There is no case against these two accused persons, namely, Dayanand and Dwarkaprasad. Their appeal, therefore, deserves to be accepted. 7. Now, there remains only four accused persons in this case. Banwarilal has been convicted under section 302, IPC. From the entire evidence, it has been established that he inflicted Gandasi blow on the head of Chainaram. The doctor has stated that injury No.l was inflicted by a sharp weapon, which is an incised wound, and was sufficient in the ordinary course of nature to cause death. As such, it has clearly been established that Banwarilal was the author of the fatal injury and is responsible for the death of Chainaram. The case against Banwarilal is fully established under section 302, IPC. We, therefore, agree with the finding of the learned Sessions Judge about accused-appellant Banwarilal that he is guilty of offence under section 302, IPC. 8. Now, it is to be seen as to what offence accused appellants Maniram, Karniram and Randhir have committed. All the prosecution witnesses have stated Maniram and Randhir inflicted lathi blows to Chainaram. 9. PW 5 Rajendra singh in his statement, has stated that Maniram infected lathi blow on the shoulder of Chainaram, and that, Randhir also inflicted lathi below on the hand of Chainaram. He has further stated that Maniram also inflicted another blow which hit on the hand of Chainaram. The other prosecution witnesses also have stated so. 9. PW 5 Rajendra singh in his statement, has stated that Maniram infected lathi blow on the shoulder of Chainaram, and that, Randhir also inflicted lathi below on the hand of Chainaram. He has further stated that Maniram also inflicted another blow which hit on the hand of Chainaram. The other prosecution witnesses also have stated so. Therefore, it is clear that Maniram and Randhir inflicted lathi blows to Chainaram which resulted in fracture, as the doctor has opined. As such, the case against Maniram and Randhir has been fully established under section 325, IPC. 10. The learned amicus curiae has then argued that when the incident look place, accused Randhir was 20 years of age while Maniram was of 16 years. 11. We have seen the record of the case as also the statement of the accused recorded under section 313, Cr. P. C. In his said statement, accused Maniram has stated his age as 16 years, and the learned Sessions Judge has also agreed to it. Randhir in his statement has stated his age as 20 years, and the learned Sessions Judge has found him to be 22 years of age. However, we find that both these accused of young age at the time of commission of the offence, who are still young boys. In our view, if these two accused are sent back to jail, then, there remains the possibility of their becoming hardened criminal in the atmosphere of the jail. So, we find it a fit case where these two accused persons deserve to be released on probation. 12. The evidence against accused Karniram is that he inflicted blows by bricks on the chest of Chainaram, which have resulted in simple injury. He, therefore, is liable to be held guilty under section 323, IPC. 13. In view of our above discussion, we hold accused Banwarilal guilty offence under section 302, IPC, and confirm his sentence of imprisonment for life, as awarded to him by the learned Sessions Judge. 14. Accused Maniram and Karniram are found guilty under section 325, IPC and sentenced to 2 years rigorous imprisonment and a fine of Rs. 50/- each. In default of payment of fine, each of them shall undergo one months rigorous imprisonment each. 14. Accused Maniram and Karniram are found guilty under section 325, IPC and sentenced to 2 years rigorous imprisonment and a fine of Rs. 50/- each. In default of payment of fine, each of them shall undergo one months rigorous imprisonment each. But, as indicated above, instead of sending them to jail, they both are hereby ordered to be released on probation, on each of their furnishing a personal bond in the sum of Rs. 2,000/- together with one surety in the like, amount, to the satisfaction of the trial court, for keeping the peace and being of good behaviour for a period of two years. In case, they repeat any offence of the like nature during this period of two years, they be taken in to custody for undergoing the sentence of imprisonment awarded to them this Court. 15. Accused Karniram is found guilty of offence under section 323, IPC. He has already been in jail for more than three months. He is sentenced to imprisonment, which he has already undergone in this case. 16. The appeal is, therefore, partly accepted as indicated above, and that filed by accused appellants Dayanand and Dwarkaprasad, accepted. The convictions and the sentences passed by the learned Sessions Judge against accused Dayanand and Dwarkaprasad, are set aside. Accused Dayanand and Dwarkaprasad are already on bail. They need not surrender. Their bail-bonds are hereby cancelled.Appeal Partly allowed. *******