JUDGMENT P.K. Shamsuddin, J. 1. Accused 1 to 3 who had been convicted by the Court of Sessions. Tellicherry under S.325 IPC read with S.34 IPC and sentenced to undergo simple imprisonment for 4 years each are the appellants. 2. The prosecution case, in brief, is as follows Appellants are brothers. The first appellant was aged 20, the 2nd appellant was aged 18 and the 3rd appellant was aged 16. On 17-1-1983 Oosappa Gowda now deceased went to Sullia for crushing coconut kernel along with PW 1. They entrusted the same in oil mill. Since they could not get the oil on that day they went to Kammadi market and purchased 1 quintal of rice and took the same in a jeep and came to the shop of PW 2. From there the rice was divided into 3 and bundled the same. PW 1 took one bundle of rice, the other bundles were kept in the shop of PW 2. Then Oosappa Gowda proceeded to his house along with PW 1. They had to go through a hilly area to reach the house of Oosappa Gowda. At about 5.30 they reached near the house of the accused. PW 1 was going ahead. After reaching some distance PW 1 waited for Oosappa Gowda. When PW 1 reached near the house of the accused, he waited for Oosappa Gowda. Then he saw the accused standing on the side of the road. A1 and A3 had sticks and the second accused was armed with chopper. At that time Oosappa Gowda was about 100 metres behind PW 1. When Oosappa Gowda reached 30 metres behind PW 1. PW 1 again proceeded towards the house of Oosappa Gowda. After some time PW 1 heard a cry. Thereupon PW 1 looked back and saw the accused beating Oosappa Gowda. PW 1 rushed to the house of Oosappa Gowda and informed his wife PW 3 who came along with his daughter PW 4 to the scene; of occurrence PW 1 also followed them and when they reached the scene of occurrence they found Oosappa Gowda lying on the side of the road with injuries on different parts of the body below the waist. Oosappa Gowda was not in a position to move. PW 1 went back and informed PW 2 about the incident. Oosappa Gowda was not in a position to move. PW 1 went back and informed PW 2 about the incident. PW 2 telephoned and fetched a car and came, to the scene of occurrence in the car along with one Venkita Ramana. PWs 2 and 3 took the injured to the Government Hospital at Sullia. PW 8 the doctor attached to the hospital examined and found Oosappa Gowda dead. PW 1 went to the house of the deceased. On the next morning he went to Rajapuram police station and lodged Ext. P1 statement which was recorded by PW 10, the Sub Inspector of Police. On the basis of the F I statement FIR was prepared and crime was registered. PW 10 went to the hospital and conducted the inquest over the body of Oosappa Gowda. Ext. P12 is the inquest report. Autopsy was conducted over the dead body of Oosappa Gowda by PW 8 and Ext. P13 is the post mortem certificate. PW 10 the Sub Inspector went to the scene of occurrence and prepared Ext. P2 scene mahazar. PW 9 prepared Ext. P14 plan. PW 10 arrested the accused on 24-1-1983. PW 12 took up the investigation and after completing the investigation charge was laid before the court of Judicial Magistrate of the Second Class, who committed the accused to stand trial before the court of sessions, Tellicherry. 3. On the accused pleading not guilty, the prosecution examined PWs 1 to 13 marked Exts. P1 to P21 and also material objects 1 to 12. In their statements under S.313 in the Code of Criminal Procedure, the accused generally denied the incriminating circumstances appearing against them. On behalf of the defence, case diary contradiction of PW 1, Ext. D1 was marked. 4. PW 1 is the most important witness in the case. He deposed that on 17-1-1983 at about 7.30 a.m. he along with Oosappa Gowda went to an oil mill at Sullia, for crushing copra. As they could not get oil on that day they went to Kammady market and purchased 1 quintal of rice and returned in a jeep and got down at the shop of PW 2 which is at Badadukka. From there the rice was divided into 3. After taking one bundle he proceeded to the house of Oosappa Gowda along with Oosappa Gowda. They were walking in a distance of 15 metres. From there the rice was divided into 3. After taking one bundle he proceeded to the house of Oosappa Gowda along with Oosappa Gowda. They were walking in a distance of 15 metres. After walking some distance P. W1 turned back when be did not see Oosappa Gowda and waited for him on the road for sometime. When he reached near the house of accused he waited for Oosappa Gowda and then he saw the accused waiting there. They were seen in the midst of bushes. On seeing Oosappa Gowda he again started to walk. After sometime he heard a cry from behind. He turned back and saw 3 accused persons striking Oosappa Gowda with sticks. Accused 1 and 3 struck him with sticks and the second accused struck him with blunt portion of the chopper. He, after throwing away the rice bag rushed to the house of Oosappa Gowda and told his wife and children about the incident. His wife, PW 3 with daughters PW 4 and one Kavitha ran towards the scene of occurrence and came to the spot. PW 1 also reached the scene of occurrence. They saw Oosappa Gowda lying on the side of the road with injuries. PW 1 rushed to PW 2. PW 2 telephoned and fetched a can and both of them came to the scene and PWs 2 and 3 took Oosappa Gowda to the hospital. PW 8 attached to the hospital examined Oosappa Gowda and declared him dead. He returned to the house of Oosappa Gowda with children and on the next day he went to the police station and gave Ext. P1 statement which was recorded by PW 10 Though this witness was cross examined at length nothing has been brought out which would cast doubt on the veracity of the testimony of PW 1. Nothing has also been suggested to the witness to indicate that he had any axe to grind against the accused excepting the fact that he was an employer of the deceased Oosappa Gowda. His evidence appeared to be natural, probable and truthful. I do not find any reason to reject his evidence. PW 2 corroborated the evidence of PW 1 in material particulars excepting the actual incident. His evidence appeared to be natural, probable and truthful. I do not find any reason to reject his evidence. PW 2 corroborated the evidence of PW 1 in material particulars excepting the actual incident. After the incident PW 1 went to the shop and reported the matter and PW 2 fetched a car and came to the scene of occurrence and took Oosappa Gowda to the hospital. The evidence shows that soon after the incident PW 1 reported to them A1 to A3 attacked Oosappa Gowda and they immediately rushed to the place and found Oosappa Gouda with bleeding injuries. 5. The prosecution also has established that the accused had sufficient motive to attack the deceased Oosappa Gowda. PW 5 an advocate practising in the Atputhur, South Canara deposed that there were litigations between the deceased and the family of the accused. Ext. P3 to P6 proved by PW 5 would show that there were civil disputes between the parties. 6. PW 8 conducted the post mortem and Ext. P13 is the post mortem certificate. Post mortem findings as revealed in Ext. P13 are as follows. 1. A small abrasion on the posterior aspect of right forearm 5 cms. above the wrist joint size 2 cm x 1/2 cm skin depth. 2. Small numerous abrasions on the posterior aspect of right forearm below average size 3 mm x 3 cm. 3. Small 5 abrasions on the posterior aspect of left forearm below the left elbow average size 3 mm x 3 mm. 4. An abrasion on the back of the right shoulder 5 cm below the right acromic - clavicular joint size 2 cm x 1 cm contusion around it size 4 cm x 2 cm. 5. Contusion over the right scapular region size 6 cm x 2 cm. 6. Contusion over the scapular region 8 cm x 4 cm. 7. Contusion with abrasion on the back of the chest 23 cms. below the cervical prominence and 2 cm lateral to median line (on left side) abrasion size 5 cm x 1 1/2 cm. contusion size 6 cm x 2 cm. 8. An irregular abrasion on the right lateral aspect of the chest size 6 cm x 4 CMS. 9. An abrasion on the lateral aspect of right thigh 25 cms. below the right anterior superior iliac spine size cms. x 2 cm. 10. contusion size 6 cm x 2 cm. 8. An irregular abrasion on the right lateral aspect of the chest size 6 cm x 4 CMS. 9. An abrasion on the lateral aspect of right thigh 25 cms. below the right anterior superior iliac spine size cms. x 2 cm. 10. A lacerated wound on the anterior aspect of the left knee size 3 cm x 1 cm. 11. An abrasion over the anterior aspect of the right leg 5 cm below the right knee joint size 7 cms. x 4 cms. 12. Three abrasions on the anterior aspect of left knee joint size 1 1/2 cm x 1 cm each. 13. An abrasion 4 cm below the left knee size 2 1/2 cm x 1 cm. 14. A lacerated wound on the anterior aspect of left leg 8 cm below the left knee size of 2 cms. X 3/4 cm x 1 cm. 15. Ah abrasion on the anterior aspect of left leg 20 cms. below the knee size 3cms. x 2 cms. PW. 8 proved Ext. P13 post mortem certificate. He also deposed that the cumulative effect of all the injuries was to cause death. But in the crow examination he admitted that there were no internal injuries and the external injuries were not grievous. According to him all the injuries were superficial - minor injuries. He further stated that none of the injuries taken separately is fatal. He also admitted that deceased Oosappa Gowda was a chronic lung patient and was also suffering from heart disease. His opinion was that the cause of death was as a result of shock and haemorrhage. The learned Sessions Judge considered the post mortem certificate and also the evidence of PW 8 and found that there was no intention for the accused to commit murder. He observed the very fact the accused persons struck below the waist of the deceased it self was indicative of the fact that they did not want to kill him. The learned Judge also relied on the evidence of PW 1 that second accused was only using the blunt portion of the chopper for striking the deceased and also the fact that all the injuries found on the body of Oosappa Gowda are minor and superficial, excepting the 2 lacerated wounds. The learned Judge also relied on the evidence of PW 1 that second accused was only using the blunt portion of the chopper for striking the deceased and also the fact that all the injuries found on the body of Oosappa Gowda are minor and superficial, excepting the 2 lacerated wounds. On the basis of these facts the learned Sessions Judge held that the common intention was only to cause grievous hurt and therefore the offence committed will only fall under S.325 IPC read with S.34 I.P.C. 7. The learned counsel for the accused argued that it will not be safe to enter conviction on the basis of sole testimony of PW 1 who had seen only a part of the occurrence. I do not think that there is any substance in the contention of the learned counsel. As pointed out earlier PW 1 saw the accused waiting near the house of the deceased with sticks and the chopper. The subsequent events proved that it was for the purpose of attacking the deceased they waited there. When the deceased was struck he appears to have made a cry which attracted his attention and when he turned back he saw the accused striking; A1 and A2 with sticks and A3 with chopper. In these circumstances the prosecution has established beyond doubt that Al and A3 struck the deceased with sticks and A2 struck the deceased with the blunt portion of the chopper which caused injuries described in the post mortem certificate. 8. The next question which has to be considered is what is the offence committed by the accused. The learned Sessions Judge found that the offence will fall only under S.325 IPC. Grievous hurt has been defined in S.320 IPC. According to the learned Counsel for the accused the hurt caused to the deceased by the accused will fall only under S.324 IPC and will not fall under S.325 IPC. According to the learned counsel the hurt which is revealed in the post mortem certificate will not fall in any of the clauses mentioned under S.320 IPC. However, the learned Public Prosecutor argued that it fall under Clause eighthly of S.320. PW 8 has clearly stated there were no incised injuries and there were only external injuries and all the injuries were minor and superficial. However, the learned Public Prosecutor argued that it fall under Clause eighthly of S.320. PW 8 has clearly stated there were no incised injuries and there were only external injuries and all the injuries were minor and superficial. It is also clear from the evidence of PW 8 that the deceased , was suffering from heart disease and other complaints. In these circumstances it will be difficult to bring the act committed by the accused under Clause eighthly of S.320 IPC and the offence committed by them only falls under S.324 IPC. 9. The learned counsel also invited my attention to the fact that all accused are under 21 years of age at the time of occurrence and during the trial the learned Sessions Judge erred in not applying S.6 of the probation of Offenders Act, as the accused are under age of 21 years. In this connection the learned counsel particularly invited my attention to the decision of the Supreme Court in Musa Khan and others v. State of Maharashtra ( AIR 1976 SC 2566 ), Their Lordships of the Supreme Court observed as follows. "The Probation of Offenders Act is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the Government. Unfortunately, though the provisions of S.6 of the Probation of Offenders of Act are mandatory, the Courts do not appear to make wise use of these provisions which is necessary to protect our younger generation from becoming professional criminals and, therefore, a menace to the Society." In Mohammed Aziz Mohammed Nazir v. State of Maharashtra ( AIR 1976 SC 730 ) it was pointed out that S.6 lays down an injunction, as distinct from a discretion under S.3 or 4 of the Act and this inhibition on the power of the court to impose sentence of imprisonment applies not only at the stage of trial but also at the stage of High Court or any other court. Their Lordships held thus: "We are concerned in this appeal with S.6 of the Probation of Offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act. Their Lordships held thus: "We are concerned in this appeal with S.6 of the Probation of Offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act. Sub-s.(1) of S.6, on a plain grammatical reading of its language, provides that when any person under twenty one years age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court, by which the person is found guilty, shall not impose any sentence of imprisonment, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it would not be desirable to deal with him under S.3 or S.4 and if the court chooses to pass any sentence of imprisonment on the offender, it shall record its reasons for doing so. Sub-s.(2) of S.5 then goes on to say that for the purpose of satisfying itself whether it would not be desirable to deal under S.3 or S.4 with an offender referred to in sub-s.(1), the court shall call for a report from the Probation Officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. S.6 thus lays down an injunction, as distinct from a discretion under S.3 or S.4 not to impose a sentence of imprisonment on a person who is under twenty one years age and is found guilty of having committed an offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with him under S.3 or S.4. This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the stage of Trial Court but also at the stage of "High Court or any other Court when the case comes before it on appeal or in revision." Vide S.11, Sub-s.(1) of the Act, it is, therefore, obvious that even though the point relating to the applicability of S.6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is the section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society." In Masarullah v. State of Tamil Nadu 1982 (3) SCC 458 the appellant was convicted by the High Court for offences under S.397 and 452 IPC and was sentenced to 5 and 7 years' imprisonment respectively. According to the Probation Officer's report at the time of commission of offence he was aged below 21 years. Although the offence committed by the appellant were not punishable with life imprisonment, the High Court declined to give benefit under S.6 and 4 of the Probation of Offenders Act for the reason that the appellant committed crime of daring and reprehensible nature in a preplanned manner. Allowing the appeal the Supreme Court observed as follows: "6. In case of an offender under the age of 21 years on the date of commission of the offence, the court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the court to award sentence unless the court considers otherwise 'having regard to the circumstances of the case including nature of the offence and the character of the offender', and reasons for awarding sentence have to be recorded. Considerations relevant to the adjudication of this aspect are, circumstances of the case, nature of the offence and character of the offender. Considerations relevant to the adjudication of this aspect are, circumstances of the case, nature of the offence and character of the offender. It is, therefore, necessary to keep in view the aforementioned three aspects while deciding whether the appellant should be granted the benefit of the provisions of the Act." The principle enunciated in all these decisions is that it is mandatory on the part on the court to apply the provisions of S.6 of the Probation of Offenders Act in all cases where the accused person is under 21 years of age and is found guilty of having committed the offence punishable with imprisonment but not with imprisonment for life and that the court shall not sentence such person to imprisonment. As pointed out by the Supreme Court, S.6 of the Probation of Offenders Act is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment for them by the Government. The provisions of S.6 of the Probation of Offender's Act are mandatory and are intended to protect the younger generation from becoming professional criminals. It is an injunction against the court to prevent such accused being sent to imprisonment in a case where he is found guilty of having committed on offence punishable with imprisonment but not with imprisonment for life. S.(1) itself gives clear indication that normally in all cases falling under S.6 of the said Act, the accused should not be sent to prison and only in exceptional cases where the court is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under S.3 or S.4 of the Probation of Offenders Act that the court can pass sentence of imprisonment on the offender and in such cases it shall record its reasons for doing so. In cases where the court deviates from the normal R.(1) the court shall call for a report from the Probation Officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. In cases where the court deviates from the normal R.(1) the court shall call for a report from the Probation Officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. It is rather unfortunate that the lower court missed these aspects and failed to give the benefit of S.6 of the Probation of Offender's Act to the accused in this case, In the circumstances I hold that this is a fit case where the court should have applied S.6 of the Probation of Offender's Act. In the result I acquit all the accused of the offence punishable under S.325 IPC read with 34 IPC and convict each of the accused under S.324 read with S.34 IPC but I apply S.6 of the Probation of Offender's Act and instead of sentencing them to imprisonment. I order to release each of the accused on proof of good conduct, on entering into a bond for Rs. 3,000/- with 2 sureties for the like amount to the satisfaction of the court of Sessions, Tellicherry for a period of 3 years and to appear in court when called upon and in the meantime to keep peace and good behaviour. A period of two months is given for execution of the bond. Criminal appeal is allowed to the above extent.