V.S. DAVE, J.—The application of Laxman appellant for suspension of sentence has come up for hearing today and during the course of arguments on the application, the learned counsel for both the parties agreed that since the entire case roots on the question as to what offence would be made out in the facts and circumstances of the case, we have taken up the appeal for hearing. 2. The Trial court vide its judgment dated 16.11.90 convicted the accused appellant Laxman for an offence under Section 302 IPC and sentenced him to Life Imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo six months R.I Brief facts giving rise to this appeal are that a report was lodged at police Station Gagal on July 21, 1986 by one Smt. Ladi alleging that animosity exists from before between Rama and other accused persons on the one side and her husband Deva on the other side, because of a dispute in respect of an agricultural land. On the morning of 21.07.when her husband was leaving for Ajmer for attending the court, it was alleged that he was attacked by the accused persons who were 12 in number. Her husband Deva sustained injuries and he was brought to Jawahar Lal Nehru Hos-pital Ajmer. A case under Sections 147, 148 and 307 IPC was registered against the 12 accused persons including the accused appellant. Since the injured Deva succumbed to the injuries, the offence was converted into one under Section 302 IPC. After investigation, the police submitted charge sheet against 12 accused persons, who were committed to the court of Sessions to stand trial. The learned Sessions Judge, transferred the case to the court of Additional Sessions Judge No. 1, Ajmer. The prosecution examined 15 witnesses in support of its case and in defence 4 witnesses were examined. The trial court disbelieved the prosecution witnesses qua 11 accused persons but held the case proved against the accused appellant and convicted and sentenced him as mentioned above. 3. The learned counsel for the appellant submitted that the trial court has erred in scrutinising the statements of the witnesses in a manner that the witnesses have been disbelieved qua 11 persons and have been relied upon against the accused appellant. 3. The learned counsel for the appellant submitted that the trial court has erred in scrutinising the statements of the witnesses in a manner that the witnesses have been disbelieved qua 11 persons and have been relied upon against the accused appellant. His submission is that there are only two eye-witnesses and both of them have stated that two of the accused persons namely, the Laxman appellant and one Bheru had caused injuries on the abdominal region of the deceased as a result of which he had expired and therefore, the guilt could not have been held to be proved against the accused appellant alone. It is then submitted that assuming that the prosecution story is wholly correct even then according to the post-mortem report and the statement of PW/12 Dr. B.D. Kaviya, the offence, does not travel beyond Section 323 IPC. for which the accused should be extended the benefit of Probation of Offenders Act as he is not a previous convict. 4. The learned Public Prosecutor submits that the statement of PW/13 Jubara and PW/16 Deva clearly indicate that the injuries were inflicted by the accused appellant and deliberately on the vital part of the body from which the intention can be inferred and therefore, there is no warrant for interference with the judgment of the trial court. 5. We have heard the learned counsel for the parties and perused the statement of PW / 13 Jubara and P W / 16 Deva. These witnesses have been disbelieved qua 11 accused persons and have been believed against the appellant. The reasons assigned by the learned trial court for not believing them is that their statements at trial qua eleven accused are not corroborated by the earlier statements, and they have thus been rightly disbelieved. However, both these two witnesses in the earlier statement, recorded by police also had attributed these injuries to Laxman alone, to which is their stand at the trial too. We are not inclined to disbelieve the statement of these two witnesses and held that the injury sustained by Deva was inflicted by appellant by giving a kick. 6. Regarding the question as to what offence is made out it may be mentioned that the incident took-place all of a sudden and was not premeditated. The accused appellant was already present on the Railway Plateform when the deceased Deva arrieved there. 6. Regarding the question as to what offence is made out it may be mentioned that the incident took-place all of a sudden and was not premeditated. The accused appellant was already present on the Railway Plateform when the deceased Deva arrieved there. It is not known how the altercation started but during that altercation injury was caused by Laxman and that too by kicking on the persons of deceased Deva. Deva had sustained three injuries in all, out of which one injury has been attributed to the accused appellant Laxman. The Doctor, B. D. Kaviya PW/12, in his statement stated that this injury was taken to be a simple injury and requisition was given for the X-ray for finding out the internal injury if there was any by taking X-ray of the abdomen in standing position. However, no dignosis could be done because the machine of the hospital was out of order and X-ray could not be taken with the result that he could not be treated properly. No effort has been made to find out and even to ask from this witness as to whether this injury was sufficient in the ordinary course of nature to cause death or not. In these circumstances, when a single injury was caused by the accused appellant on the spur of moment, it cannot be said that the intention of the accused appellant was to cause death of deceased Deva. The case is squarely covered by a decision of their Lordships of the Supreme Court in Ratan Singh vs. State (1). 7. In this view of the matter, we have no hesitation in holding that it is not a case under Section 302 IPC but is one for the offence under See. 323 IPC since even no grievous injury has also been mentioned by the Doctor. 8. As a result of the aforesaid discussion, we partly allow this appeal and set aside the conviction of the accused appellant under Section 302 IPC and after it into one under Section 323 IPC Regarding the question of sentence, in view of the fact that the incident had taken place on the spur of moment as mentioned above and only one injury was caused, it would be in the interest of juctice if the benefit of probation is extended to the accused appellant. 9. 9. Therefore, it is directed that the appellant should pay a compensation of Rs. 10,000/-(Rupees Ten Thousand) to Smt. Ladi, the widow of deceased. The said amount shall be deposited in the court of Addl. Sessions Judge No. 1, Ajmer and on his depositing the amount of compensation, the accused shall be released on probation provided he executes a personal bond in the sum of Rs. 2,000/- with one surety in the like amount to the satisfaction of the trial court to keep peace and be of good behaviour for a period of one year. The trial court is directed to ensure that the amount deposited in the court reaches in the hands of Smt. Ladi, wife of deceased Deva, within three weeks from the date of its deposite.