JUDGMENT 1. - The accused appellants have been convicted by Sessions Judge, Jhalawar under Section 307 read with Section 34 of the Indian Penal Code and sentenced to three years rigorous imprisonment and a fine of Rs. 100/- each and in default of payment of fine, to undergo one months rigorous imprisonment. Against this conviction and sentence passed on 30th March, 1983 the present appeal has been preferred by the appellants. 2. The facts in brief are that on 7th Feb., 1982 at about 9.00 p.m. the complainant Parvat Singh was returning from Unhel and going towards Salariya after having dinner with one Gauri Shanker. When he was near the well of Sardar Singh, he saw two cycles and at once became alert and he tried to run away but the four accused persons who were hiding came but armed with lathies and started giving lathy blows on him. He was carrying a `Katar' with him and accused Chander Singh caught hold of this Katar and inflicted injury on his upper lip. On hearing the shouts of Parvat Singh, Sardar Singh shouted that he was coming to his help and upon this, the accused ran away. The complainant lodged the first information report soon after the incident and he was examined by PW/6 Dr. On hearing the shouts of Parvat Singh, Sardar Singh shouted that he was coming to his help and upon this, the accused ran away. The complainant lodged the first information report soon after the incident and he was examined by PW/6 Dr. Sharat Chandra Vijayvargiya at about 1.30 a.m. and he found the following injuries on the person of Parbat Singh:- " 1- dVk gqvk ftlls [kqu cg jgk Fkk .6"x .2" tks chp esa pkSM+k vf/kd o vxy&cxy esa de pkSM+k FkkA mij ds gksaB ij e/; js[kk ls nka;s rjQ FkkA chp esa gksaB ds vkj&ikj FkkA mij cxy esa - 2" xgjk FkkA 2- dVk gqvk [kwu cgrk 1" x .2" chp esa pkSM+k o cktqvksa esa de pkSM+k gM~Mh rd xgjk fpdus fdukjs o vklikl lwtu fy;s FkkA tks flj ij nksuksa iSjkbZVy vfLFk;ksa ds e/; esa lkeus ls ihNs dh vksjA 3- uhyxw fu'kku 1.5" x 0.6" uhyh lwtu nksuksa iSjkbZVy o vkilh ihVu vfLFk;ksa ds tksM+ ijA 4- uhyxw fu'kku 4" x .6" yky lwtu frjNk cka;h tka?k ij ckgj dh rjQA 5- uhyxw fu'kku 4" x .6" yky lwtu frjNh cka;h tka?k ckgj dh rjQ pksV la0 4 ls rhu dh nwjh ij ?kqVus ls 2.5" mijA 6- uhyxw fu'kku 2.5" x 2" yky uhyh lwtu vkM+h 'kDy esa Hkqtk ds cka;h gkFk dh mij dh rjQ dksguh ls vk/kk" mij ckgj dh rjQA 7- uhyxw fu'kku 2" x .6" yky uhyh lwtu vkM+h 'kDy esa cka;h dksguh ij ihNsA 8- uhyxw fu'kku 10" x 0.6" yky lwtu [kM+h 'kDy esa ihB ij cka;h rjQ nwj e/; js[kk ls 2" nwjA 9- uhyxw fu'kku 9" x .6" yky lwtu [kM+h 'kDy esa pksV la0 8 ls 1" ckgjA 10- uhyxw fu'kku 1" O;kl esa yky lwtu nka;s ?kqVus ij ckgj dh rjQA 11- uhyxw fu'kku 2 la[;k esa 4" x .6" yky lwtu ,d nwljs ls 6.5" nj vkM+h 'kDy esa] cka;s dwYgs ij mij dh rjQA 12- fNyk gqvk ?kko 2" js[kk ds :i esa yky nka;s ?kqVus ij lkeusA 13- fNyk gqvk ?kko .6" O;kl esa yky cka;h dykbZ ij ihNs vUnj dh rjQA 14- fNyk gqvk .6" js[kk ds :i esa yky nka;s iSj ij lkeus chp esa vUnj dh rjQA " Two injuries were advised for X-ray and it was found that there were fractures on the head and on the humerus bone. He was asked to give further opinion about the injuries by clarifying the same and at this stage he gave opinion that injury No. 2 could be dangerous to life and could cause death if proper treatment was not available.4. The main witness in the case of PW. 4 Parbat Singh and he stated as to how the accused came out and surrounded him and started giving lathi blows and then Chander Singh gave blow by Katar. Sardar Singh shouted that he was coming with a gun and on hearing this, the accused ran away. Then Sardar Singh came there and took him to the well and on the request of Parbat Singh called Gauri Shanker and then he was taken to the Gangdhar Police Station and then to the hospital. PW. 11 Sardar Singh has supported the version of the complainant in so far he heard the shoutes and went towards that side and found Parbat Singh with injuries on various parts of his body. PW. 5 Gauri Shanker, who was called has also given out that Parbat Singh given out the names of the persons who had attacked him.5. As far as the incident is concerned, there is enough evidence to hold that it were the accused persons, who had inflicted the blows on Parbat Singh. They were armed with lathies and they had a common intention of causing injuries to Parbat Singh. The question which arises is whether the offence would be one under Section 307 IPC or it would be an offence for causing simple and grievous injuries or an offence under Section 308 IPC. the injuries which we have seen above go to show that there was no lathi injury on the head or on the vital part. It was per chance that Chander Singh caught hold of the Katar which was with the injured Parbat Singh and made use of it. There are two injuries by sharp weapon and they are on the head and leg. The head injury even caused a fracture, but to find out the offence which could be made out from the circumstances, it is to be seen whether in the facts and circumstances, if the accused had caused the death of Parbat Singh, the accused would be guilty of murder or would be guilty of culpable homicide not amounting to murder. The head injury even caused a fracture, but to find out the offence which could be made out from the circumstances, it is to be seen whether in the facts and circumstances, if the accused had caused the death of Parbat Singh, the accused would be guilty of murder or would be guilty of culpable homicide not amounting to murder. In the present case, the accused persons inflicted injuries by lathies and later one of them namely Chander Singh used the Katar. The accused in the case did the act of causing injuries with the intention of causing such vital injury as is likely to cause death. The act is not done with the intention or knowledge of causing death or by causing any fatal injury which could be sufficient in the ordinary course of nature to cause death. The intention of causing death cannot be attributed to the accused because, they had not made repetition of the blows. They can be attributed with knowledge that their act of causing injury was likely to cause death and in these circumstances, the offence could fall under Section 308 IPC. This offence is punishable with a punishment of seven years and the learned counsel of the appellant has contended that the accused appellants should be released on probation of good conduct under Section 360 Cr.P.C. It is the first offence committed by them and the offence was committed nine years ago, and according to him it would not be proper to send them in jail in the term of imprisonment. Considering the facts and circumstances, it cannot be said that there are any reasons for not releasing the accused under the provisions of Section 360 Cr.P.C. They can be released on probation of good conduct.6. In the result, the appeal of the appellants is partly allowed. Their conviction and sentence for the offence under Section 307 IPC is set aside and they are convicted for the offence under Section 308 IPC. They are released on probation of good conduct with the condition that they shall enter into a bond in the Rs. 3,000/- with one surety in the like amount to appear and receive sentence when called upon during the period of two years and in the mean-time to keep the peace and be of good behaviour.7. Two months time is allowed to the appellants to furnish the bail bonds. *******