JUDGMENT 1. - This appeal is directed against the judgment of the Additional Sessions Judge, Swai Madhopur dated March 31, 1976 convicting the appellant Under Section 302, IPC and sentencing him to imprisonment for life and a fine of Rs. 300/-, in default of the payment of fine to further undergo two months' rigorous imprisonment. 2. Briefly recalled, the prosecution case, which short and simple, is that PW 2 Sukhpal, PW 3 Shanker, PW 4 Babu, PW 13 Mst. Kamla, the deceased Ganga Ram and the appellant Murari Lal were grazing their cattle in the forest of village Udana, P.S. Khandar, district Sawai Madhopur on July 30, 1975. The she-buffaloes of the appellant entered the field of one Jaggannath, who was a near relative of the deceased Ganga Ram. Shankar, Babu, Mst. Kamla and the deceased drove out the she-buffaloes from the field of Jaggannath and took them to the bank of the river situate nearby. The appellant Murari Lal picked up some quarrel with the deceased Ganga Ram on this matter. At about 1.00 p.m. when Ganga Ram was sitting with his neck downwards the appellant came and struck a blow on the back of his neck with an axe. The appellant thereafter took to heels. There was profuse bleeding from the wound of Ganga Ram and he became unconscious on the spot. It is alleged that the infliction of the injury was seen by PW 2 Sukhpal, PW 3 Shanker,PW4 Babu & PW 13 Mst. Kamla, who were nearby the site. Babu and Shanker went to the village and apprised Ganga Ram's father Bheru (PW 1) of the incident. Bheru came to the spot and found his son lying unconscious with a bleeding wound on his neck. He took Ganga Ram to the Government Dispensary, Khandal, where his injury was examined by Dr. G.S. Rajawat (PW 10). He noticed the following injury on the victim's body: "Incised wound 4" x 1" x 3" on the back of the neck. 3. The doctor was of the opinion that the injury was serious and grievous in nature and caused by some sharp edged weapon. He issued injury report Ex. P 11. Bheru went to the police station, Khandal and verbally lodged report Ex. P 1 of the occurrence at about 8.55 p.m. on the same day. The police registered a case Under Section 307, IPC and proceeded with investigation. He issued injury report Ex. P 11. Bheru went to the police station, Khandal and verbally lodged report Ex. P 1 of the occurrence at about 8.55 p.m. on the same day. The police registered a case Under Section 307, IPC and proceeded with investigation. The Investigating Officer approached the Tehsildar, Khandal to record the dying declaration of Ganga Ram as his condition was detoriating rapidly. The Tehsildar, Khandal Mr. Lal Singh (PW 14) went to the Government Dispensary, Khandal and recorded the statement (Ex. P 12) of the injured victim Ganga Ram. The Investigating Officer inspected the site and seized the blood-speared soil from there. Dr. Rajawat advised the parents of the victim to take him to Jaipur for medical treatment. Ganga Ram was taken to Jaipur and was got admitted in S.M.S. Hospital, Jaipur. Despite medical treatment, he did not survive and breathed his last on August 8, 1975. The police added Section 302, IPC during investigation. The post-mortem examination of the victim's dead body was conducted at about 6.00 a.m. on August 8, 1975 by the Medical Jurist Dr. R.K. Katara (PW 9). He found the following ante-mortem injuries on the victim's dead body:External: (1) Stitched wound opposed by three thread suters 11 c.m. in length transversely place over nape of neck just near the hair line in the middle; (2) Stitched wound opposed by three thread sutures 3 c.m. in length sagitally placed over left parietal region of scalp; (3) Stitched wound opposed by three thread sutures 2.5 cm. in length sagitally placed over right parietal region of scalp. Internal: (1) Injury No. 1 on dissection the wound was going obliquely downwards 3 c.m. in depth cutting obliquely muscles lingamentum nuches between C-2 and C-3 vertibra and causing contusion of the spinal cord at the same level. 4. External injuries No. 2 and 3 were the surgical wounds caused by the Surgeon in treating the victim. In the opinion of Dr. Katara, the cause of death was due to respiratory failure as a result of injury to the spinal cord. The post-mortem report prepared by him is Ex. P 9. The accused was arrested on August 16, 1975 and in consequence of the disclosure statement made by him, axe (Article 3) was recovered. The clothes of the deceased were also seized and sealed. On chemical examination, these articles were found stained with blood. The post-mortem report prepared by him is Ex. P 9. The accused was arrested on August 16, 1975 and in consequence of the disclosure statement made by him, axe (Article 3) was recovered. The clothes of the deceased were also seized and sealed. On chemical examination, these articles were found stained with blood. On the completion of investigation, the police submitted a challan against the accused Murari Lal in the Court of the Additional Munsif cum Judicial Magistrate, Sawai Madhopur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge Under Section 302, IPC against the accused, to which he pleaded not guilty and faced the trial. In support of the case, the prosecution examined 15 witnesses and filed some documents. In defence, no evidence was adduced. The accused, in his statement recorded Under Section 313, Cr. PC raised no specific defence except denying the incident and his participation in it. On the conclusion of trial, the learned Additional Sessions Judge found the evidence of the ocular witnesses PW 2 Sukhpal, PW 3 Shanker, PW 4 Babu and PW 13 Mst. Kamla reliable and trustworthy. He further took help from the dying declaration Ex. P 12. On the basis of these two sets of evidence, the Sessions Judge held the charge Under Section 302, IPC duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction and sentence, the accused has come-up in appeal. 5. We have heard Mr. Doongarsingh learned Counsel for the accused-appellant and Mr. L.S. Udawat learned Public Prosecutor. We have also gone through the record of the case carefully. 6. Keeping in view the direct and positive evidence of the ocular witnesses PW 2 Sukhpal, PW 3 Shanker, PW 4 Babu and PW 13 Mst. Kamla and the dying declaration Ex. P. 12, the learned Counsel for the appellant did not challenge the incident and the role assigned to the appellant. He did not challenge the finding of the trial Court that the appellant had inflicted a blow on the back of the neck of the deceased-victim Gangaram with the sharp-side of the axe. The learned Counsel confined his submission only on the nature of offence made out from the established facts. He did not challenge the finding of the trial Court that the appellant had inflicted a blow on the back of the neck of the deceased-victim Gangaram with the sharp-side of the axe. The learned Counsel confined his submission only on the nature of offence made out from the established facts. His submission is that the appellant was wrongly convicted Under Section 302, IPC.From the proved facts the offence Under Section 302, IPC cannot be said to have been made out. There was no motive for the murder. The appellant was hardly 14/15 years of age when the incident took place. There was no repetition of blows. The facts do not show that there was any intention on the part of the appellant to cause the death of the victims. It was a trivial matter which led to the incident. It was argued that the offence made out is that of culpable homicide not amounting to murder falling within the ambit of the Second Part of Section 304, IPC. 7. Countering these contentions, it was contended by the learned Public Prosecutor that the injury was caused on a vital part like neck and the weapon used was the sharp side of an axe. The intention to commit murder on the part of the appellant is, thus, apparent. We have taken the respective submissions into consideration. 8. Admittedly, the quarrel between the deceased and the appellant took place on a very trivial matter. The appellant's she-buffaloes were driven out of the field of Jaggannath by the deceased and others. This driving of the cattle pricked the accused. There was no bad-blood between the deceased and the victim before this incident. The accused had not gone to any place in search of the weapon. He had the axe with him as he was looking after his cattle. He thus, did not prepare himself for assaulting the victim. Only one below was inflicted by the appellant to the victim. No repetition of blows is there. The arrest memo of the appellant is Ex. P 13. In his statement recorded Under Section 313, Cr.PC, he stated his age as 14 years. As per estimate by the trial Judge, his age was 17 years. The appellant was medically examined on September 15, 1975 by the Medical Jurist, General Hospital, Sawai Madhopur. No repetition of blows is there. The arrest memo of the appellant is Ex. P 13. In his statement recorded Under Section 313, Cr.PC, he stated his age as 14 years. As per estimate by the trial Judge, his age was 17 years. The appellant was medically examined on September 15, 1975 by the Medical Jurist, General Hospital, Sawai Madhopur. The doctor conducted the ossification test, etc., and found that the appellant was 14 years. This medical examination to ascertain the age of the accused was conducted when he applied for bail. On the basis of this medical evidence relating to his age, he was released on bail by the Sessions Judge on October 28, 1975. It can be safely said from this material that the accused was at the most 14/15 years in age when the incident took place. The victim did not die instantaneously on the spot. The incident took place on July 30, 1975. He died on August 8, 1975. He, thus, survived for ten days after the incident. 9. We have gone through the testimony of the Medical Jurist Dr. Katara (PW 9), who conducted the medico-legal autopsy over the victim's dead body. No where he stated that injury No. 1 was sufficient in the ordinary course of nature to cause death. 10. The position, therefore, boils down to this that there was no motive and intention on the part of the appellant to cause the death of the victim. The appellant was an immature lad hardly of 14/15 years in age at the time of the incident. He lost head on a trivial matter of his being driven out by the deceased and others from field. The medical evidence is not very helpful to show that injury No. 1 which caused the death, was sufficient in the ordinary course of nature to cause death. The case is therefore, covered by none of the four clauses of Section 300, IPC so as to bring the case within the , culpable homicide amounting to murder. In as much as death has been caused, the matter must still come atleast within meaning of culpable homicide not amounting to murder. The accused did an act with the knowledge that by his act he was likely to cause the death of the victim. In as much as death has been caused, the matter must still come atleast within meaning of culpable homicide not amounting to murder. The accused did an act with the knowledge that by his act he was likely to cause the death of the victim. The case is, thus, covered by the 3rd part of Section 299, and is, therefore, punishable under the Second Part of Section 304, IPC as culpable homicide not amounting to murder. In other words, the offence committed by the accused falls Under Section 304, Part II, IPC as the act was done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Laxman Kalu Nikalje v. The State of Maharashtra AIR 1968 SC 1300 provides an apology. We are, therefore, unable to maintain the conviction of the appellant Under Section 302, IPC. The offence made out against him is that Under Section 304, Part IT, IPC. 11. As discussed earlier, the accused was not above sixteen years in age at the time of the commission of the crime. An accused under 21 years of age, if convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against him, he is to be released on probation of good conduct in accordance with the provisions of Section 360 Cr.PC. Section 361(1) Cr.PC casts a mandate on the Court to record special reasons for not dealing with an accused Under Section 360, Cr.PC. Here in the instant case, we find no special reasons for not applying the provisions of Section 360, Cr.PC. The offence was not pre-designed or premeditated. It was committed under a sudden impulse. No previous conviction stands at the discredit of the appellant. It would, therefore, be not improper to release him on probation of good conduct Under Section 360, Cr.PC. 12. In the result, we partly allow this appeal and alter the conviction of accused Murari Lal from Section 302 to Section 304, Part II, IPC Instead of sentencing him at once to any punishment, we hereby direct that he will be immediately released on his entering into a bond for a sum of Rs. 12. In the result, we partly allow this appeal and alter the conviction of accused Murari Lal from Section 302 to Section 304, Part II, IPC Instead of sentencing him at once to any punishment, we hereby direct that he will be immediately released on his entering into a bond for a sum of Rs. 8000/-together with a surety in the like amount to the satisfaction of the learned Sessions Judge, Sawai Madhopur to appear and receive sentence when called upon during the period of two years and in the mean time to keep the peace and be of good behaviour. The accused is allowed two months time to furnish the aforesaid bonds. 13. The appeal is accordingly disposed of in the manner indicated above.Appeal Partly allowed. *******