JUDGMENT 1. - The State has come-up in appeal against the judgment of Additional Sessions Judge, Baran dated March 7, 1975, by which accused Narain and Kesra were acquitted of the offence under section 302 but were convicted under section 323, IPC. Accused Kesra was released on probation of good conduct while accused Narain was sentenced to six months rigorous imprisonment. The grievance of the State is that both the accused were wrongly acquitted of the offence under section 302, IPC. 2. Briefly put, the prosecution case is that at the time of sun-setting on September 14, 1974, the deceased Suraj Mai was returning from his field with a pair of oxen in village Gopalpura P.S. Mangrol district Kota. His wife Mst. Pushpa (PW 6) and his brother's wife Mst. Mangi (PW 7) were coming from the opposite direction. Accused Kesra, who had a Lathi in his hand, followed Surajmal. When Surajmal happened to pas out-side his enclosure, Kesra struck three blows with his Lathi to him. The blows hit him on his left ear, right clavical and right arm etc. His wife Mst. Pushpa tried to intervene to save her husband. She too was not spared and was struck a few blows by accused Kesra. Mst. Pushpa raised cries. Accused Narain came with an axe and struck some blows with its reverse-side to Surajmal. Surajmal fell down. He did not survive and passed away after some-time. A report of the occurrence was lodged at Police Station, Mangrol at about 1.30 a.m. on September 15, 1974 by PW 4 Madho. It is alleged that the incident was also seen by Madho (PW 4) and Chhotu (PW 5) The police registered a case and proceeded with investigation. The Station House Officer Arjun Das (PW 10) arrived on the spot. He visited the site and prepared the site plan. He also prepared the inquest report of the victim's dead-body. The post-mortem examination of the victim's dead-body was conducted by PW 1 Dr. Arjun Singh the then Medical Officer Incharge, Government Dispensary, Mangrol. He noticed the following ante-mortem injuries on the victim's deadbody:- "(1) Abrasion 1" x 1/2" on the lateral 1 /3rd of right clavical. (2) Abrasion 1/2" x 1/2" on right molar prominence. (3) Abrasion 1" x 1" on the angle of left mendible. Arjun Singh the then Medical Officer Incharge, Government Dispensary, Mangrol. He noticed the following ante-mortem injuries on the victim's deadbody:- "(1) Abrasion 1" x 1/2" on the lateral 1 /3rd of right clavical. (2) Abrasion 1/2" x 1/2" on right molar prominence. (3) Abrasion 1" x 1" on the angle of left mendible. (4) Abrasion 1/2" x 1/2" on the left side of neck on its lateral surface and mid portion. (5) Abrasion 1/4'' x 1/4" on the lobule of left ear. (6) Bruise 4" x 1" horizontally in left hypochontrium starting from its anterior surface. (7) Bruise 4" x 1" vertically in lateral surface of right arm. (8) Bruise 4" x 1" horizontally on the right thigh on the middle 1 /3rd." 3. The doctor was of the opinion that the cause of death was rupture of spleen which led to extensive haemorrhage and shock. The post-mortem examination report prepared by him is Ex. P 2. The accused were arrested. On the completion of investigation, the police presented a challan against the two accused persons in the Court of Munsif and Judicial Magistrate. Baran, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed a charge under section 302, IPC against both of them, to which they pleaded not guilty and faced the trial. In support of its case, the prosecution examined ten witnesses and filed some documents. In defence, the accused examined one witness. On the conclusion of trial, the learned Sessions Judge held that both the accused persons had struck blows to the deceased Surajmal and also to PW 6 Mst. Pushpa. However, he took the view that there was no intention on the part of the accused persons to cause the death of Surajmal. He also took the view that knowledge could also not be attributed to the accused persons that by their act of causing injuries, death was the likely result. According to the learned Sessions Judge, the accused had given a simple beating to the deceased. The offence, therefore, did not amount to that of culpable homicide amounting to murder. The accused persons were, therefore, convicted under section 323, IPC and were dealt-with as mentioned at the very out-set. Aggrieved against the acquittal of the accused persons from the offence under section 302, IPC the State has taken this appeal. 4. The offence, therefore, did not amount to that of culpable homicide amounting to murder. The accused persons were, therefore, convicted under section 323, IPC and were dealt-with as mentioned at the very out-set. Aggrieved against the acquittal of the accused persons from the offence under section 302, IPC the State has taken this appeal. 4. We have heard the learnd Public Prosecutor and Mr. Doongar singh the learned counsel for the accused persons. We have also gone through the case file carefully. 5. It was vehemently contended by the learned Public Prosecutor that accused Kesra inflicted a number of blows to the deceased-victim. He is the author of the fatal injury. The fatal injury caused the rupture of the spleen which led to extensive haemorrhage and shock. It was argued that the spleen was of normal size with no ailment. It was further argued that according to Dr. Arjun Singh (PW1 ), the rupture of spleen was sufficient in the ordinary course of nature to cause death. It was argued that in view of this medical evidence, the offence made out is covered by Clause 3rd of Section 300 and the offence made out is punishable under section 30, IPC. 6. Countering these contentions, it was argued by Mr. Doongar Singh the learned counsel appearing for the accused person that the deceased was the close relative of the accused persons. Both of them are cousins inter-se. They, therefore, had no intention to commit his murder. No motive has been alleged. It is a case of simple "MAARPEET" and the accused were, therefore, rightly acquitted of the offence under section 302, IPC. We have taken the respective submissions into consideration. 7. The learned Sessions Judge, while acquitting the accused persons of the offence under section 302, IPC took the help of the observation made in Jawaning vs (1956 R.L.W. 60). We have carefully gone through this decision and are of the view that it renders no help to the accused persons. In the case of Jawanmg (Supra), the deceased had enlarged spleen and fatty heart. It was in these circumstances that no offence under section 302 Part II, IPC was taken to have been made out and the offence under section 323, IPC was only taken as proved. Here in the instant case in our hand, the testimony of Dr. In the case of Jawanmg (Supra), the deceased had enlarged spleen and fatty heart. It was in these circumstances that no offence under section 302 Part II, IPC was taken to have been made out and the offence under section 323, IPC was only taken as proved. Here in the instant case in our hand, the testimony of Dr. Arjun Singh (PW 1) shows that the spleen of the deceased Surajmal was of normal size with no ailment. The observations made in Jawaning's case (Supra), thus, have no bearing and render no assistance to the accused persons. 8. Admittedly, the deceased and the accused persons are closely related inter se-being the first cousins. No motive has been alleged by the prosecution. As such the intention to commit murder on the part of the accused persons is completely missing. Further, as many as eight injuries were flicked to the deceased Surajmal. One of them proved Dial. Accused Kesra is the author of this fatal injury, it can be safely said that accused Kesra did an act with the knowledge that by his act he was likely to cause death of the victim. The case is, thus, covered by the 3rd Part of Section 299 and is, therefore, punishable under Part II of Section 304, IPC as culpable homicide not amounting to murder. He should, therefore, be convicted under section 304 Part II, IPC. 9. As regards accused Narain, the evidence of the four ocular witnesses viz., PW 6 Mst. Pushpa, PW 7 Mst. Mangi, PW 5 Chhotu and PW 4 Madho is that he came only when Kesra had already started beating Surajmal. The injuries caused by him were simple in nature. He is not the author of the fatal injury. As such, section 34, IPC cannot be applied as against him. The learned Sessions Judge has already convicted him under section 323, IPC. We have no material to convict him for the graver offence in place of section 323, IPC. No interference is called for as regards accused Narain. 10. Accused Kesra was below twenty one years in age at the time of his conviction by the trial court. The offence was committed long back in 1974. It would not be proper to send accused Kesra to jail after the lapse of nearly eleven years. No interference is called for as regards accused Narain. 10. Accused Kesra was below twenty one years in age at the time of his conviction by the trial court. The offence was committed long back in 1974. It would not be proper to send accused Kesra to jail after the lapse of nearly eleven years. We have also no special reasons not to extend the benefit of probation of good conduct to accused Kesra. 11. In the result, we partly allow the appeal as under:- (1) the conviction of accused Kesra from that under section 323 is enhanced to that under section 304, Part II, IPC. But instead of sentencing him at once to any punishment, it is hereby directed that he will be released on his entering into a bond in the sum of Rs, 3000/- together with a surety in the like amount to the satisfaction of the Additional Sessions Judge, Baran to appear and receive sentence when called upon during a period of two years and in the mean time to keep the peace and be of good behaviour. He is allowed two months time to submit the aforesaid bonds. (2) Accused Kesra is directed under section 5 of the Probation of Offenders Act, 1958 to pay a sum of Rs. 4000/- (Rupees four thousand) as compensation to Mst. Pushpa the widow of deceased Surajmal. We will deposit this amount with two months in the trial Court. The amount so deposited will be paid to her. In case he fails to deposit this amount within the time allowed, the learned Additional Sessions Judge will proceed against him under section 5(2) of the Probation of Offenders Act, 1958 and (3) the appeal o" the State as against accused Narain is dismissed. 12. The appeal shall accordingly stand disposed of.Appeal Partly allowed. *******