K. L. SHRIVASTAVA, J. ( 1 ) THAT appeal is directed against the judgment Dt. 12-7-1984 passed by the Additional Sessions Judge, Neemuch in Sessions Trial No. 11 of 1984 whereby the appellant was tried for the murder of Jagdishsingh and has been convicted under S. 323 of the I. P. C. and has been sentenced to undergo 6 months' rigorous imprisonment and a fine of Rs. 200/- and in default to undergo imprisonment for 2 months. ( 2 ) ACCORDING to the prosecution it was at about 4 p. m. on 2-10-1983 that the appellant Raghuvirsingh aged 25 years resident of village Tokrs, had several times kicked his co-villager Jagdishsingh aged 10 years on his stomach. On hearing the cries of the victim, his sister Munnibai aged 14 years (P. W. 4) had come out of her residence and had seen the appellant kicking the victim and on being asked to desist from so doing, he had threatened her. It was after the appellant had left the place that Munnibai took Jagdishsingh inside her residence and on being asked he had told her that earlier the same day he was involved in a dispute with Baboosingh (D. W. 1) aged 12 years, the brother of the appellant and he, in consequence, had injured the said Baboosingh with a stone and it was on being informed of this by Baboosingh that the appellant had indulged in the crime. He had immediately complained to her of pain in his stomach. Later he informed his grandfather Mangilal (P. W. 3) about the occurrence and on his father's return to the village had informed to him also about the same. He had also informed Hardayal (P. W. 2 ). ( 3 ) 1 On the following day when Jagdishsingh was being taken to Singoli for treatment, he died on the way. ( 4 ) THE occurrence was reported by Sualal (P. W. 1) to Singoli police on 3-10-83 and a crime under S. 302 of the I. P. C. was registered. ( 5 ) POST-MORTEM on the corpus of Jagdish Singh was conducted by Dr. G. D. Sokhiya (P. W. 6) and he opined that the death was as a result of injury to the small intestines. Ex. P. 5 dt. 4-10-83 is the connected report. ( 5 ) POST-MORTEM on the corpus of Jagdish Singh was conducted by Dr. G. D. Sokhiya (P. W. 6) and he opined that the death was as a result of injury to the small intestines. Ex. P. 5 dt. 4-10-83 is the connected report. ( 6 ) AT the conclusion of the investigation the appellant was tried for murder with the result already stated. ( 7 ) THE learned counsel for the appellant has not assailed the appellant's conviction which, on the material on record, I find to be on firm foundation. There is no reason to disbelieve the testimony of Munnibai (P. W. 4) which is duly supported by the material on record. In the report Ex. P-6-A dt. 2-10-83 lodged by Baboosingh (D. W. 1) there is nothing to indicate that he had kicked Jagdishsingh on his stomach. ( 8 ) THE submission of the learned counsel for the appellant is that, in the circumstances of the case, the appellant is entitled to the benefit of the Probation of Offenders Act, 1958 (for short 'the Act' ). In support of his submission he has placed reliance on the decisions in Omprakash's case AIR 1982 SC 783 : (1982 Cri LJ 628 (2)) and Saligram's case (1978 MPWN (I) 436 ). ( 9 ) THE point for consideration is whether the appellant deserves to be dealt with under S. 3 or S. 4 of the Act which came into force in the State of M. P. on 2-10-1962. ( 10 ) IT may be pointed out that S. 19 of the Act provides that subject to the saving of portion of certain enactments as provided in S. 18 ibid, S. 562 of the repealed Code (corresponding to S. 360 of the new Code of 1973 for short 'the Code') shall cease to apply to the States or parts thereof in which the Act is brought into force. In the decision in Omprakash's case (1982 Cri L. J 628 (2) (SC)) (supra) it was having regard to the facts and circumstances of that case and particularly in view of the fact that the offence of which the appellants were convicted was one under S. 323, IPC, the Supreme Court observing that it would meet the ends of justice if the appellants are not set to jail but are released on probation, had dealt with them under S. 360 (1) of the Criminal P. C. 1973 (for short 'the Code ). From the decision it is not clear whether or not the appellants had been tried u/s 302, IPC. ( 11 ) SECTION 53 of the I. P. C. points out that there are six kinds of punishments including imprisonment and fine. Sec. 4 of the Act uses the words the court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond and the High Court in Saligram's case (1978 MPWN (1) 436) (supra) held that when the Court below acted u/s 4 of the Act, it ought not to have imposed the sentence of fine. ( 12 ) AS pointed out in the decision in Rattan Lal's case AIR 1965 SC 444 : (1965 (1) Cri LJ 360) the Act distinguishes offenders below 21 years of age and those above that age and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. In the case of offenders below the age of 21 years, an injunction is issued by S. 6 of the Act to the Court not to sentence them to imprisonments 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 is not desirable to deal with them under S. 3 or S. 4 of the Act. ( 13 ) IN determining whether a convict is entitled to the benefit of S. 3 of the Act, apart from the fact that there must not be any previous conviction, the Court by which the person is found guilty has to be of opinion that, having regard to the circumstances of the case including the nature of the offence and character of the offender it is expedient to release him after due admonition. In resorting to the provision in S. 4 of the Act which provides for release of a convict on probation of good conduct all the aforesaid conditions except the one of previous conviction have to be satisfied. The proviso to the section further requires that Court shall not direct release of an offender on probation of good conduct unless it is satisfied regarding the place of abode or regular occupation. Sub-section (2) of S. 4 requires that the Court shall take into consideration the report, if any, of the Probation officer concerned in relation to the case. In dealing with the question of release on probation of good conduct or after admonition, the provision in S. 361 of the Code which requires recording of special reasons has to be kept in mind. ( 14 ) IN the instant case the appellant is a grown-up person aged 25 years and he indulged in the crime against a boy of tender age. He decided to take revenge and took the law in his own hands. It is not a case of indulging in a crime in the heat of passion. I am, therefore, of the view that the appellant does not deserve to be dealt with either under S. 3 or S. 4 of the Act. ( 15 ) THIS brings us to the question of sentence. It has been contended that the occurrence in question is an old one and the appellant has already been in detention for about 3 months in connection with the crime and it is not neither just nor desirable that he should be sent back to jail. This contention has force. ( 16 ) IN the result, the appeal is partly allowed. The appellant's conviction under S. 323 of the I. P. C is maintained but the sentence of imprisonment is reduced to the period already undergone and that of fine is enhanced from Rs. 200/- to Rs. 1000/- (one thousand ). This contention has force. ( 16 ) IN the result, the appeal is partly allowed. The appellant's conviction under S. 323 of the I. P. C is maintained but the sentence of imprisonment is reduced to the period already undergone and that of fine is enhanced from Rs. 200/- to Rs. 1000/- (one thousand ). In default of payment of fine the appellant shall undergo simple imprisonment for two months. The appellant's hail bonds shall stand discharged. Appeal partly allowed. .