J.M. Srivastava, J.— This appeal is directed against the judgment and order dated 27.5.82 passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 191 (DH)177, whereby the appellant was convicted under section 3^2 IPC and sentenced to R. I. for life. 2. The prosecution case was that on 15. 9.76 at about 5 P.M. when deceased Thaneswar Bharali was returning home from Dhakuakhana Chariali the accused persons including the appellant had assaulted him with bamboo stick and caused grievous injury. Alarm was raised, the injured was removed to Dhakuakhana State Dispensary where he was admitted but died the next day. 3. The FIR was lodged at Dhakuakhana P.S. by Jugal Bharali brother of the deceased at 5 A.M. on 16.9.76. The Police commenced investigation, interrogated witnesses, held inquest and sent the dead body for post-mortem examination. The investigation completed, charge-sheet was filed against the appellant and four others. At the trial the learned Sessions Judge framed charge under section 302 IPC against the other accused. 4. In support of the charge, the prosecution examined nine witnesses, including the two Doctors and Investigating Officer and produced the post-mortem report and some documents. The defence also examined two witnesses. On consideration of the evidence the learned Sessions Judge held that the appellant had caused the injury which resulted in the death of the deceased, convicted him under section 30! IPC, and sentenced him as stated earlier. The other accused persons were not found guilty of the charge and were acquitted. 5. Aggrieved the appellant has come in appeal and Shri K.Sarma, his learned counsel, has submitted, that the prosecution version as given in the FIR was different from that at the trial, the prosecution evidence could not be accepted as reliable and on such evidence it could not be said that the charge against the appellant has been established beyond any reasonable doubt. Shri Sarma has also submitted that the appellant at the time of occurrence was 12 years of age and was a student, and that aspect of the matter in any case should also be considered. 6. We have heard Sari J. Singh, learne.1, Public Prosecutor. 7. The FIR, lodged by PWl Jugal Bharali was that on the date of occurrence the five accused persons named in the FIR including the appellant had assaulted the deceased with lathis and had caused grievous injuries. 6. We have heard Sari J. Singh, learne.1, Public Prosecutor. 7. The FIR, lodged by PWl Jugal Bharali was that on the date of occurrence the five accused persons named in the FIR including the appellant had assaulted the deceased with lathis and had caused grievous injuries. However, at the trial the prosecution evidence of PW 2 Padumi Bharali and PW 4 Moniram Hazarika who claimed to be eye witnesses, was that only tie accuse) appellant had inflicted the injuries. While it does appear that there was variation in the version, we are inclined to think that it does not materially affect the prosecution evidence at the trial, that the appellant had caused the injury which proved fatal. The reason in variation could well be, that informant Jugal Bharali had not actually seen the occurr­ence and came on the scene later. 8. On careful consideration of evidence we have not found any good reason to disbelieve the testimony of PW 2 Padumi Bharali, who stated that on the date of the occurrence she had been working inside the hall of Snishu Kalyaa Kendra in front of the house of accused Jewram. facing which on the road the occurrence took place. She went out to clean and wash her hands. She saw Thaneswar (deceased) coming on a bicycle on the road and when he reached the gate of Jewram accused Phatik gave a bamboo lathi blow on the back of the head of Thaneswar. He sustained injuries on head. She raised alarm. Shri Sarma, learned counsel for the appellant has submitted that Padumi Bnarali, PW 2 was not reliable because she had earlier stated to the Police that she had seen the occurrence while she was preparing mud for wiping purpose outside the weaving house, whereas at the trial she stated that she had seen the occurrence while she was washing her hands. We think that the difference in the statemeat was not contradiction, but was natural variation due to lapse of lime and haziness about when exactly she had seen the occurrence; for &ix years had passed, when she had been interrogated by the Police and her examination in Court. We think that the difference in the statemeat was not contradiction, but was natural variation due to lapse of lime and haziness about when exactly she had seen the occurrence; for &ix years had passed, when she had been interrogated by the Police and her examination in Court. Moreover, the time lag between the wiping "of the walls of the Kendra and thereafter washing her hand could not have been very substantial, as stated by the witness herself, that she could have forgotten at what point of time exactly the occurrence took place. It may also be noted that Padumi was interrogated by the Police the same day when FIR was lodged on 16.9.76 and even the accused appellant in his statement under section 513 Cr. P. C. had accepted that Padumi was one of the person he had found near the injured, which clearly means that Padumi had been present nearby and could have seen the occurrence. It may also be noted that she is related to both the deceased and the accused. 9. PW 4 Maniram Hazarika has stated that there were two lathi blows inflicted by the appellant on the deceased and to that extent there was difference with the state moot made by Padumi, but we think PW 2 Padumi is more reliable and we are not inclined to accept the statement of Maniram Hazarika who was not interrogated by the Police during investigation. We, accordingly, find the evidence of PW 2 Padumi reliable and accept it. 10. PW 9, Dr. A. Ahmed who performed the post-mortem examination had found three injuries :- 1) One bruise with firmly adherent blood-clot over the right Zygomatic arch-size 2" X 21/2. 2) Echymosis of right lower eye-lid. 3) One lacerated wound over the right parital region of head- size 21/2" X ¼” X skull deep. With firmly adherent blood clot and ragged margin with frecture of right parital bone- size 3" X1/6” X membrane deep. The other injuries noted were its corresponding internal injuries. On consideration of the medical evidence it is clear that the deceased had only one grievous injury on the region of head which was the cause of death. 11. The next question is what offence was committed by the appellant. The other injuries noted were its corresponding internal injuries. On consideration of the medical evidence it is clear that the deceased had only one grievous injury on the region of head which was the cause of death. 11. The next question is what offence was committed by the appellant. The appellant at the time of examination in Court in 1982 was 18 years of age, which means that at the time of occurr­ence in 1976 he was about 12 years. It may be said that he was of tender age at the time of occurrence. There had been earlier in the day, some quarrel between the family of the accused appellant and the brother of the deceased over a loan of Rs. 37/- taken by the brother of the deceased. The evidence of the occurrence was that as Thaneswar came the appellant had given one blow which hit the deceased on the head. Considering the circumstances in which the occurrence was stated to have taken place, we have not found it reasonably safe to conclude that the appellant had inflicted the injury which resulted in the death of the deceased, with the intention to cause death or even to cause death or even to cause an injury which was likely to cause death. We think that all that may safely be said is that the appellant had knowledge , hat by said act he could cause death. In this view of the matter, in our opinion the offence committed was not murder but one punishable under section 304 Part-II IPC. 12. Shri K. Sarma, learned counsel for the appellant has submi­tted that the appellant was about 12 years of age at the time of occurrence, was a student and taking into consideration the nature of the offence committed it shall be expedient to extend to the appellant the benefit of the Probation of ' Offenders Act, 1958, hereinafter called the Act. Shri J. Singh, learned Public Prosecutor has fairly not raised any objection to grant of said benefit to the appellant. 13. We think that in view of the age of the appellant at the time, that he was a student, and also that fourteen years have passed after the occurrence, it shall be expedient to release the appellant on probation of good conduct under the provisions of section 4 of the Act. 14. 13. We think that in view of the age of the appellant at the time, that he was a student, and also that fourteen years have passed after the occurrence, it shall be expedient to release the appellant on probation of good conduct under the provisions of section 4 of the Act. 14. For the aforesaid reasons, this appeal is partly allowed and the conviction of the appellant under section 302 IPC is altered to that under section 304 Part-II IPC. The sentence under section 302 IPC is set aside. The appellant shall be released on probation of good conduct on entering into a bond to appear and receive sentence when called upon during the period of 2 (two) years, from today, and in the meantime to keep the peace and be of good behaviour.