JUDGMENT 1. 2. Shyam Sunder Byas, J. - Since these two appeals are directed against one and the same judgment of the Sessions Judge, Bikaner dated August 20, 1974, they were heard together and are decided by a common judgment. By the judgment aforesaid, the learned Sessions Judge convicted six persons, viz., Jhandu Khan, Safi, Yusuf, Gulam Nabi, Ramjan and Shamekhan under Sections 138, 323 and 448, IPC. Accused Jhandu Khan was further convicted under Section 455, IPC. Except accused Jhandu Khan, all other (five in number ) instead of being sentenced to any punishment, were released on probation of good conduct. Accused Jhandu Khan was sentenced to four month's rigorous imprisonment with a fine of Rs. 50/- under Section 455, I.P.C., three month' rigorous imprisonment with a fine of Rs. 50/- under Section 323, I.P.C. and two month' rigorous imprisonment with a fine of Rs. 50/- under Section 148, I.P.C. All of them were acquitted of the offence under Section 307, IPC. Accused Jhandu Khan has come-up in appeal to challenge his conviction and sentence while the grievance of the State is that the accused persons were wrongly acquitted of the offence Under Section 307, IPC. 2. Very few facts need narration for the disposal of this appeal. Briefly stated, the prosecution case is that at about 6.00 A.M. on July 14, 1973, thirteen persons in all went to the house of PW 1 Ismail situate in Garsariya Mohalla, Bikaner. The door of the house was bolted from inside The bolt was removed. The miscreants then made an assault on Ismhil and the members of his family and landed blows to them. A report of the occurrence was lodged at about 6.30 A.M. on the same days. The police registered a case and after usual investigation submitted a challan against the six accused persons named above and one Mst. Fatma wife of accused Jhandu Khan in the Court of Additional Munsif & Judicial Magistrate, Bikaner, who committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 148, 307/149, 449 to and 323, IPC against time, which they pleaded not guilty and faced the trial. In defence they placed a counter-story that the members of the complaint party forcibly came to the house of accused Jhandukhan and made an assault on them, resulting in serve injuries to them. The learned Sessions Judge framed charges under Sections 148, 307/149, 449 to and 323, IPC against time, which they pleaded not guilty and faced the trial. In defence they placed a counter-story that the members of the complaint party forcibly came to the house of accused Jhandukhan and made an assault on them, resulting in serve injuries to them. On the conclusion of the trial, the Sessions Judge was of the opinion that no case under Section 307, I.P.C. was made out. There was no incriminating material as against accused Mst. Fatma. Mst. Fatma was acquitted of all the charges while the remaining six accused persons were convicted as mentioned at the very out-set. Accused Jhandu Khan was sentenced as mentioned above while the remaining five were let-off on probation of goods conduct. We have heard Mr. P.P. Chaudhary learned counsel for the accused persons and Dr. S.S. Bhandawat the learned Public Prosecutor. We have also gone through the case file carefully. 3. Mr. Chaudhary, appearing for the accused Jhandu Khan contended that the accused was wrongly convicted under Section 455, IPC. In the First Information Report Ex. P1 though it has been mentioned that the bolt of the door was removed and the accused persons made entry into the house, it has not been disclosed in it that it was accused .Jhandu Khan who had removed the bolt. It was argued that in order to fasten the criminal liability for the offence under Section 455, [PC on accused Jhandu Khan, there must be evidence that it was he and none else who had removed the bolt of the door. On the other hand, it was contended by Dr. Bhandawat that though this fact has not been mentioned in the First Information Report Ex. P 1, it is not of material consequence. We have taken the respective submissions into consideration and find that there is considerable force in the contention raised by Mr. Chaudhary. 4. Though it has been mentioned in the FIR Ex. P 1 that the door of the house was bolted from inside and the bolt was removed by the accused persons, it has not been mentioned in Ex. P 1 that the bolt was removed by the accused Jhandu Khan. Apart from that, we entertain serious doubts whether the door of the house was in fact bolted from inside ? P 1 that the door of the house was bolted from inside and the bolt was removed by the accused persons, it has not been mentioned in Ex. P 1 that the bolt was removed by the accused Jhandu Khan. Apart from that, we entertain serious doubts whether the door of the house was in fact bolted from inside ? The occurrence is said to have taken place at 6.00 a.m. on July 14, 1973. At 6.00 in July, there is much light and sun-shine. People wake-up much before this time. Ismail is a Tongawala. His wife, at the time of the occurrence, was providing fodder to the mare. In these circumstances it can be well inferred that the door of the house must have been open and was open when the accused made the entry. We, are, therefore, unable to maintain the conviction of accused Jhandu Khan under Section 455, IPC. At the most, he should have been convicted along with co-accused under Section 448, IPC. We, therefore, set-aside the conviction of accused Jhandu Khan under Section 455 and instead convict him under Section 448, IPC. 5. The other submission of Mr. Chaudhary is that when the remaining five accused persons were let-off on the probation of good conduct, accused Jhandu Khan should not be differently treated. It was argued that at the time of recording his statement under Section 313, Cr.PC., his age has been mentioned as 60-65 years. He is, therefore, now, nearly 75 years in age. It would not be proper to send back such an old man to jail. Dr. Bhandawat contends that accused Jhandu Khan was the leader of the accused-party, as such he should not be let-off on probation of good conduct. 6. We, find considerable force in the submission of Mr. Chaudhary. Accused Jhandu Khan is, now, nearly 75 years in age. It would be highly improper and unjust to send such an old man of advanced age to jail. The other accused persons have been let-off on probation of good conduct. We find no good and cogent reasons not to extend the same benefit to accused Jhandu Khan. This disposes of the appeal of accused Jhandu Khan. 7. Coming to the appeal of the State, it was argued by Dr. Bhandawat that the accused were wrongly admitted of the offence under Section 307, IPC. We find no good and cogent reasons not to extend the same benefit to accused Jhandu Khan. This disposes of the appeal of accused Jhandu Khan. 7. Coming to the appeal of the State, it was argued by Dr. Bhandawat that the accused were wrongly admitted of the offence under Section 307, IPC. The accused had come having formed the common object to commit the murder of the members of the complainant party. As such, the acquittal under Section 307, [PC is bad and should be set-aside. We find no merit in the contention of Dr. Bhandawat. The members of the complainant party and the accused persons are closely related inter se. It was the family feud which resulted in the exchange of blows between them. Accused persons were also beaten and (heir injuries are not superficial. In order to make out an offence under Section 307, [PC the intention to kill should be there. Looking to the proximate relationship between the parties and the nature of the injuries sustained by the members of the complainant party, we are of the opinion that there was no intention on the part of the accused person to commit the murder of any member of the complainant party. The learned Sessions Judge was perfectly correct in arriving at a conclusion that no offence under Section 307, IPC was made out against the accused persons. We are, therefore, unable to accept the State appeal against the acquittal. 8. In the result, (1) the appeal filed by the State is dismissed. (2) The appeal of accused Jhandu Khan is partly allowed. His conviction and sentence under Section 455, IPC are set-aside and instead he is convicted under Section 448, IPC. His sentences under Sections 148 and 323, IPC are also set-aside. Instead of sentencing him at once to any punishment, we hereby direct that he will be released on his entering into a bond for a sum of Rs. 3000/- together with a surety in the like amount to the satisfaction of the Sessions Judge, Bikaner to appear and receive sentence when called-upon during a period of two years and in the meantime to keep the peace and be of good behaviour. He is allowed one month's time to furnish the aforesaid bonds. Appeal partly allowed. *******