Judgment N.S.Rao, J. 1. Bashisht Singh appellant stands convicted under Sec.325 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 2. The appellants father Sabhapati Singh was a brother of Gopal Singh, father of Ram Jan am Singh deceased. Rampati Singh PW is also a brother of Sabhapati Singh. Ram Babu Singh and Bishram Singh, the appellants co-accused (since acquitted) are his brother. Ram Sukh Singh PW is the brother of the deceased and Chandra Mohan Singh and Chandra Bhanu Singh PWs are the hitters sons. Anirudh Singh PW is the first cousin of the appellant, being son of Ram Pati Singh PW. 3. The prosecution version, in brief, is that although no regular partition of the ancestral properties of the parties had taken place, they are cultivating some lands separately for convenience, and the other lands Mill remain Joint. The deceased had settled some of the joint land on cash rent to one Lakhshmi Turha for growing Kharbuza. The deceased had given the share of cash rent collected from Lakshmi Turha to the appellant, but the appellant was of the view that he had been paid less. On 17-6-1979 at about 7.00 P.M. when the deceased and Rampati Singh PW were sitting on the same cot in the latters bathan, the appellant and his brothers Ram Babu Singh and Bishram Singh had arrived there. They had demanded extra amount from the deceased as the share of Kharbuza crop. The deceased had replied that whatever was due to them had already been paid. Thereupon, the parties had exchanged hot words and during the course of the same, the appellant had given one fast blow to Ram Jan-am Singh at the back of his neck and on the chest. Apart from Rampati Singh PW, the occurrence was also witnessed by Chandra Mohan Singh, Chandra Bhauu Singh and Ram Sukh Singh PWs as they were nearby. After committing the crime, and appellant and his brothers had fled away. Ram Janam Singh was found to have become unconscious. Therefore, he was removed and then got admitted as an indoor patient in the State Dispensary at Raghunath Pur. 4. Intimation regarding admission of Ram Janam Singh in the Dispensary at Raghunathpur was sent to Police Station Raghunathpur. Thereupon, Sub-Inspector G. Anthony PW had arrived. Ram Janam Singh was found to have become unconscious. Therefore, he was removed and then got admitted as an indoor patient in the State Dispensary at Raghunath Pur. 4. Intimation regarding admission of Ram Janam Singh in the Dispensary at Raghunathpur was sent to Police Station Raghunathpur. Thereupon, Sub-Inspector G. Anthony PW had arrived. He could not record the statement of Ram Janam Singh during that night as he was still unconscious. S.I. Anthony PW had again arrived in the Dispensary at about 8.00 A.M. on 8-6-1987 and found Ram Janam Singh to be in a fit condition to make his statement Accordingly, statement Ext. 7 of Ram Janam Singh was recorded. For better treatment, Ram Janam Singh was being removed to Sadar Hospital at Siwan when he had died in the way. The case was registered and investigations were carried out. Statements of PWs were recorded and the appellant as also his co-accused arrested. After completion of the investigations, charge-sheets against them were submitted by S. I. Nagendra Kumar PW. 5. For proving its case, the prosecution had examined Chandra Mohan Singh PW1, Raghav Singh PW2, Chandra Bhanu Singh PW3, Rampati Singh PW4, Dr. Ram Subhag Singh PW5, S.I. Nagendra Kumar Singh PW6, Anirudh Singh PW7, Ramsukh Singh PW8, Dr. Sri Ram Singh PW9, Gama Dusadh PW 10 and S.I.G. Anthony PW11. Out of these witnesses, PW10 has only been tendered for cross-examination. Evidence of PWs 2 to 7 is to the effect that they had reached the spot shortly after the crime and learnt about the occurrence from the witnesses present. 6. The appellant, in his examination, had denied the prosecution allegations, and stated that he was innocent. He had not examined any witnessin his defence. 7. The success of prosecution in the case rests on the dying declaration Ext. 7 of Ram Janam Singh deceased as also on the ocular evidence of PWs 1, 3, 4 and 8. As was mentioned in Ext. 7, these PWs had unanimously sworn at trial that at the instance of his co-accused (since acquitted), the appellant had given fist blows to the deceased on his neck end chest, and that had resulted in his death on the following day. Learned counsel for the appellant has submitted that as the names of PWs 3 and 8 are not mentioned in Ext. 7, they be held not to be the truthful witnesses. Learned counsel for the appellant has submitted that as the names of PWs 3 and 8 are not mentioned in Ext. 7, they be held not to be the truthful witnesses. The submission is not well founded. Admittedly, the houses of those two PWs are near-by and like PWs 1 and 4 they are equally natural and probable witnesses. Quite likely that when the deceased was made the target of the attack, be had not noticed the presence of PWs 3 and 8 in the neighbourhood, and for that reason, had not mentioned their names in his statement Ext. 7. Even otherwise, if we ignore the evidence of PWs 3 and 8, still we have got the wholly reliable evidence of PW 1 and 4 for bringing home the guilt against the appellent. PW4 is the real uncle (fathers brother) of the appellant. PW4 has not been shown to be sharing any hostility towards the appellant. Therefore, PW 4 had no reason for falsely deposing against him. He was with the deceased when the appellant had committed the crime. He (PW4) has given a highly consistent account of the occurrence. There are no reasons to reject his testimony. As regard PW1, the mere fact that he is the son of the deceased is by itself not sufficient to discard his testimony. He (PW1) is the first cousin of the appellant and has also described the occurrence in a straight-forward manner. The evidence of PWs 1 and 4 is absolutely without any blemish and is sufficient for holding that the appellant had caused the death of the deceased in the manner stated by the prosecution. The fact also stands clearly mentioned in Ext. 7 and in the given circumstances, this dying declaration alone is sufficient for proving the guilt of the appellant. 8. Learned Counsel for the appellant has argued that as the co-accused pf the appellant have been acquitted, he (the appellant) be also exonerated in the case. The argument is stated only to be rejected. Neither of the co-accused of the appellant bad actually participated in giving any blow/injury to the deceased. They had accompanied the appellant, being his brothers. PWs examined were duly confronted with the previous police statement wherein, they had not mentioned about participation of those co-accused of the appellant during the course of the crime. Neither of the co-accused of the appellant bad actually participated in giving any blow/injury to the deceased. They had accompanied the appellant, being his brothers. PWs examined were duly confronted with the previous police statement wherein, they had not mentioned about participation of those co-accused of the appellant during the course of the crime. It was for all those reasons that their acquittal was ordered. However, as regards the appellant, the trial Court has rightly found that there is clear, consistent and reliable evidence to show that he had given two blows to the deceased in the manner deposed by the witnesses. 9. It having been found that the appellant had given two fist blows to the deceased resulting in the latters death, the all important point for determination is as to what offence he has committed. PW9, who had conducted the postmortem examination had found the deceased body to be a diseased one. His heart was enlarged and there was a lacerated tear 1-1/4" long vertical in the interior valve of the right ventricle. The heart valve was thiner than normal. Liver was enlarged and was double of the normal size. The trial Court, on the basis of the materials brought on record, has rightly found that the appellant was not aware of the internal disease of the deceased. There is no evidence that the appellant had the knowledge about that condition of the deceased or he had even reasons to know about it. The appellant had no intention to kill the deceased, and by giving two fist blows to the deceased, no knowledge could be attributed to the appellant that that would result in the deceased death. Therefore, the case under Sec.304 of the Indian Penal Code was rightly not found to have been established. 10. PW4 was duly confronted with the previous police statement wherein he had stated that the appellant had given the list blows to the deceased when the two were indulging in hatha-pai. PW1 has admitted that the deceased had fallen on the ground during the course of occurrence. PW9, who had examined the deceased in the dispensary, at Raghunathpur had not even described his chest injury to be grievous The inner condition of the deceased was found to be highly diseased during the course of autopsy by the PW5 for the first time. PW9, who had examined the deceased in the dispensary, at Raghunathpur had not even described his chest injury to be grievous The inner condition of the deceased was found to be highly diseased during the course of autopsy by the PW5 for the first time. The trial Court has rightly found that the rupture of the heart was not on account of intentional blow on the chest and the appellant had, therefore, no knowledge that the death of the deceased would be caused because of his giving the fist blow on his chest. As stated above, the chest injury of the deceased was found to be simple by PW9. Therefore, the appellants conviction under Sec.325 of Indian Penal Code is unwarranted and he is to be held guilty only under Sec.323 of Indian Penal Code. 11. For reasons stated above, this appeal is partly accepted. The conviction of the appellant under Sec.325 of Indian Penal Code is set aside, but he is held guilty, and accordingly convicted, only under Sec.323 of Indian Penal Code. As regards the sentence, the appellant has already undergone the ordeal of a protracted trial. The occurrence, had taken place all of a sudden and without any premeditation. The appellant is not a person with shady past. Therefore, taking into consideration the age, character and antecedent, as also the circumstances in which the offence was committed, the appellant, instead of being sentenced, is ordered, under Sec.360 of Code of Criminal- Procedure, to be released on probation of good conduct on his entering into a bond of Rs. 1000.00 (Rupees one thousand) with one surety of the like amount to the satisfaction of the trial Court, to keep peace and be of good behaviour, and receive sentence when called upon during that period to do so, failing which he shall undergo rigorous imprisonment for one year. The appellant, through his learned counsel, is directed to furnish the requisite bonds by 13-12-1988, failing which he shall surrender in that Court on the following day (14-12-1988) for being remitted to jail for undergoing his sentence in the manner stated above.