JUDGMENT - M.G. CHAUDHARI, J.:---When the appeal was placed for admission before me, I found it necessary to call for the record and proceedings and after perusing the same I am of the view that the appeal can be disposed of at this stage itself and need not be kept pending for years. Accordingly I have admitted the appeal. The learned Prosecutor waived notice and by consent the appeal was taken on board and is finally heard. The appellant is also present. 2. This appeal is directed against the judgment and order passed by the learned 8th Additional Sessions Judge, Thane on 29th June, 1992 convicting the appellant for the offence punishable under section 304 Part-II of the Indian Penal Code for which he has been sentenced to suffer rigorous imprisonment for five years. 3. The incident occurred in somewhat unfortunate circumstances. The appellant is a student and is presently reading for M.Com. examination. At the time of the incident he was a school going boy. Deceased Jaswant Singh Jogendra Singh Ramgadiah as well as the appellant were residents of Camp No. 3, Ulhasnagar. Both of them were working as labourers in the workshop of one Manvirsingh. The houses of both the parties were located in the vicinity of the workshop. They were knowing each other. On 10-4-1988 at about 1 O'clock in the afternoon the workers of the workshop of Manvirsingh known as Savindra Engineering Works had their lunch break. Manvirsingh, the owner of the workshop, had permitted the workers to get cooled water or ice from his house during the lunch break. On the aforesaid day appellant's brother Rocky went into the house of Manvirsingh and brought out ice from the refrigerator. However, the deceased Jaswant Singh threatened Rocky and asked him as to why and by whose permission he took the ice from Manvirsingh's house. It may be mentioned that Jaswant Singh was brother-in-law of Manvirsingh, the cousin sister of Jaswant Singh having been married to him. Rocky went to the house of the accused and informed him about the behaviour of Jaswant Singh with him. According to the prosecution when Jaswant Singh questioned Rocky as to how he was taking the ice from the house, Rocky had said that he was doing so at the instance of the appellant. Rocky went to the house of the accused and informed him about the behaviour of Jaswant Singh with him. According to the prosecution when Jaswant Singh questioned Rocky as to how he was taking the ice from the house, Rocky had said that he was doing so at the instance of the appellant. It was alleged that Jaswant Singh had said to Rocky thereupon as to whether the appellant was the minister of that place. When this was conveyed to the appellant by Rocky he was infuriated and came out of his house. He went to Jaswant Singh and put a counter question to him as to whether he was the minister of the place. That led to a quarrel between them. Both of them grappled each other and gave fist and kick blows to each other. During that scuffle Jaswant Singh fell down on the ground. It was alleged that even thereafter appellant continued to give kick and fist blows to him on various parts of his body. Jaswant Singh complained of pain in his stomach and was carried to his house by his younger brother Baldev Singh and thereafter to central hospital, Ulhasnagar where he was treated. However, he died on the same night in the hospital. On the following day complaint was lodged at the Vitthalwadi Police Station by Jogendrasingh father of the deceased Jaswant Singh. Offence was registered against the appellant under section 302 I.P. Code and he was arrested. After completing the investigation the chargesheet was filed against him on 27-5-1988 and the case was committed to the Court of Session, Thane. 4. The appellant pleaded not guilty to the charge for offence under section 302 I.P. Code. In his statement under section 313 Criminal Procedure Code he denied that he had assaulted the deceased at the time of incident. According to him when Rocky was bringing the ice from the house of Manvirsingh he was allowed to do so by Manvirsingh who had taken no objection and as Rocky was threatened by deceased Jaswant Singh he came out of his house. There was exchange of words between him and Jaswant Singh. Jaswant Singh got angry and rushed at him and beat him. There was exchange of words between him and Jaswant Singh. Jaswant Singh got angry and rushed at him and beat him. He tried to defend himself and hold hands of the deceased and in that process deceased fell in the gutter and his feet were entangled and obstructed due to the stones in the gutter. Soon thereafter brother of the deceased came there and the deceased went away alongwith him. According to the appellant he was falsely, involved in the present offence without any fault on his part. 5. After considering the evidence adduced by the prosecution and the explanation of the appellant the learned trial Judge held that the death of deceased Jaswant Singh was homicidal and that the appellant had caused his death by hitting him by fist and kick blows on his face, neck and stomach. In the opinion of the learned trial Judge the offence committed by the appellant however was one falling under section 304, Part-II of the Indian Penal Code, i.e. culpable homicide not amounting to murder. Consistently with that finding he convicted and sentenced the appellant as noted above. 6. Mr. Gupte, the learned Counsel for the appellant, inter alia submitted that the incident had taken place on the spur of the moment and there was no intention on the part of the appellant to assault the deceased and that prosecution had failed to prove that death of the deceased was homicidal particularly as the deceased was alive for 16 hours after the incident and thus his death would not be the result of any kick or fist blows given by the appellant as alleged. In that connection he submitted that the fact that the injuries mentioned in the post mortem report were all on the right side of the body of the deceased that was consistent with the version of the appellant about the incident. Mr. Gupte further submitted that the witnesses examined by the prosecution included relatives of the deceased and were interested persons and as such reliance could not have been placed on their evidence. The learned Counsel therefore submitted that the appellant is entitled to be acquitted and he has been wrongly convicted even for the lesser offence under section 304 Part-II of the Indian Penal Code. Mr. The learned Counsel therefore submitted that the appellant is entitled to be acquitted and he has been wrongly convicted even for the lesser offence under section 304 Part-II of the Indian Penal Code. Mr. Gupte submitted that in any event the conviction under section 304 Part-II is bad and at the most the offence would fall under section 325 of the Indian Penal Code. In his submission the sentence awarded is excessive and harsh having regard to the circumstance that the appellant was a boy about 18-19 years old and was a student and was not a person with any criminal mentality and the whole thing had happened on the spur of moment as he seems to have lost control over himself over what was said by the deceased and further as there was free exchange of blows between deceased and the appellant. 7. The learned Prosecutor Mrs. Keluskar, however, strongly supports the judgment of the lower Court. 8. After going through the evidence I find it difficult to come to the conclusion that the appellant had not been responsible for doing acts eventually leading to the death of the deceased. Although the acts committed by the appellant were of giving kick and fist blows the blows in the stomach proved fatal and although the act was not done by the appellant either intentionally or knowingly that it was likely to result in causing death of Jaswant Singh he must take the consequences of his acts. The learned Judge, in my opinion, was also right in holding from the evidence of Dr. Jagtap and the medical record including the post mortem notes, that the cause of death of the deceased was the injury to the heart, kidney and colon which were ante mortem injuries and were sufficient in the ordinary course of nature to cause death and that those injuries were possible by fist and kick blows. The finding of the learned Judge that the death was thus unnatural and homicidal must be accepted. The finding of the learned Judge that the death was thus unnatural and homicidal must be accepted. I further find that the learned trial Judge is justified in relying upon the evidence of the father of the deceased i.e. Jogindrasingh, mother of the deceased Amarjit Kaur and Baldevsingh-brother of the deceased to gather the manner in which the incident had occurred and about the immediate condition of the deceased soon after the incident and the testimony of the eye-witnesses Shankar Murari and Ashok Sonar to come to the conclusion that the appellant had given the kick and fist blows which had caused the fatal injuries to the deceased during the incident. As I find no fault in the appreciation of the evidence on the part of the learned trial Judge I have no hesitation in accepting that evidence and to confirm the finding of the learned trial Judge that the acts of the appellant were responsible for causing the death of the deceased. There is no substance in the argument that the witnesses should not have been believed as they were interested witnesses. In that connection it is worthy to be noticed that there were two eye-witnesses who were independent witnesses. 9. I also find from the evidence that it does not in any manner probabalise the defence version that the deceased had suffered the fatal injuries accidentally due to fall in the gutter and getting entangled with and obstructed by stones in the gutter. The defence version itself is sufficient to show that the prosecution story about the incident is true. Consequently I confirm the finding of the learned trial Judge that the appellant is guilty of having caused the death of deceased Jaswant Singh. 10. Although the charge was brought against the appellant for offence under section 302 I.P.C. the learned trial Judge held from the circumstances revealed by the evidence that the offence amounted to culpable homicide punishable under section 304 Part-II of the Indian Penal Code. In my opinion there is room to take the view that it would be section 325 I.P.C. which would apply more appropriately to the facts established by the evidence rather than section 304 Part-II. In my opinion there is room to take the view that it would be section 325 I.P.C. which would apply more appropriately to the facts established by the evidence rather than section 304 Part-II. Section 304 Part-II applies where culpable homicide not amounting to murder has been committed if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. Obviously there could be no intention on the part of the appellant either to cause death of the deceased or to cause such bodily injury as was likely to cause death. That question has to be determined with reference to the manner in which the incident started and occurred and not from the subsequent event of the death of the person or the nature of injuries which could, according to the opinion of the doctor, have been sufficient to cause death in the ordinary course of the nature. The whole thing had happened on the spur of the moment. The appellant was enraged by the disparaging remark passed by Jaswant Singh about him when Rocky had gone to fetch ice. He came out of his house out of anger and there was exchange of words between him and Jaswant Singh and thereafter a scuffle had ensued between both of them and they assaulted each other. That was an instance therefore of a sudden quarrel developed on the spur of the moment and therefore it cannot be said that any particular blows were given by the appellant with the knowledge that these would prove fatal. The appellant had not come armed with any weapon; there was no previous history to the incident. Ordinarily appellant could not have the knowledge that giving fist or kick blows would be so serious as to result in causing death of the deceased. It is pertinent to note that the deceased had survived after the incident for nearly 16 hours. Eventhough therefore the result was most unfortunate I find it difficult to agree with the opinion of the learned Judge that the offence committed by the appellant was punishable under section 304 Part-II. 11. Section 325 of the Indian Penal Code provides punishment for voluntarily causing grievous hurt. Eventhough therefore the result was most unfortunate I find it difficult to agree with the opinion of the learned Judge that the offence committed by the appellant was punishable under section 304 Part-II. 11. Section 325 of the Indian Penal Code provides punishment for voluntarily causing grievous hurt. In the absence of any intention on the part of the appellant to cause death or knowledge that his act was likely to result in causing death, yet having regard to the nature of the injuries that were found to have been suffered by the deceased, the conclusion is inevitable that by giving fist and kick blows the appellant had voluntarily caused grievous hurt inasmuch as the hurt caused endangered the life of the deceased and therefore he would be guilty for committing offence punishable under section 325 I.P.C. I am, therefore, inclined to alter the conviction from offence punishable under section 304 Part-II to offence punishable under section 325 I.P. Code. 12. The learned trial Judge has awarded a sentence of rigorous imprisonment for five years eventhough he has observed that he was convinced that this was an unfortunate incident which was the result of the small quarrel between two young boys and that there was no intention on the part of the appellant to kill the deceased. The learned trial Judge has also noted that there were no antecedents to the discredit of the appellant and that he was a student and those factors were in his favour to take a lenient view. For these very circumstances I am inclined to reduce the sentence. Moreover, since I have altered the conviction of the appellant for offence punishable under section 325 I.P. Code which prescribes punishment of imprisonment of either description for a term which may extend to seven years and fine, there is a case for reducing the sentence. In my opinion a sentence of R.I. for three years coupled with fine of Rs. 3,000/- would be sufficient to meet the ends of justice. 13. At this stage Mr. Gupte submits that inasmuch as I have altered the conviction for offence punishable under section 325 for which the punishment extends to seven years I may suspend the sentence and instead release the appellant on probation of good conduct for a period of one year on a bond in the sum of Rs. 13. At this stage Mr. Gupte submits that inasmuch as I have altered the conviction for offence punishable under section 325 for which the punishment extends to seven years I may suspend the sentence and instead release the appellant on probation of good conduct for a period of one year on a bond in the sum of Rs. 3,000/- with one surety for like amount under section 360 Criminal Procedure Code. I am inclined to accept the above submission made by the learned Counsel. 14. Section 360(1) of the Code of Criminal Procedure, 1973 (in so far as material for the present purpose) provides that when any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour. 15. Sub-section (4) of section 360 provides that an order under this section may be made by any Appellate Court or by the High Court. I am called upon to exercise this power inasmuch as on the date of conviction by the Lower Court the appellant was no longer a person under twenty-one years of age and as he was convicted under section 304 Part-II I.P.C. which prescribes the sentence which may extend to ten years, the trial Court could not have considered to extend the benefit of section 360 Cr.P.Code to the appellant. However, since his conviction is altered by me to the offence under section 325 I.P. Code for which the sentence of imprisonment extends up to seven years, the appellant has become entitled to be given that benefit. 16. The record shows that the appellant was born on 4-9-1969. However, since his conviction is altered by me to the offence under section 325 I.P. Code for which the sentence of imprisonment extends up to seven years, the appellant has become entitled to be given that benefit. 16. The record shows that the appellant was born on 4-9-1969. The offence took place on 10th of April, 1988. On that day the appellant thus was a person under twenty-one years of age. However, on the date of conviction i.e. 29th June, 1992 he was no longer a person under twenty-one years of age. Thus he did not fulfil the requirements of section 360. As held in (Ramji Missar and another v. State of Bihar)1, A.I.R. 1963 Supreme Court 1088, (wherein the Court was dealing with similar provisions of section 6(1) of the Probation of Offenders Act, 1958), it is the date upon which the trial Court had to deal with the offender which is the crucial date for reckoning the age of the accused. Same would be the position under section 360 of the Code and thus on the date on which the trial Court had to deal with the appellant the benefit thereunder could not be extended to him as he was not a person under twenty-one years of age and the sentence prescribed for the offence for which he was convicted was more than seven years. However, since the conviction now has been altered the appellant is entitled to be given benefit of probation having regard to the extent of punishment prescribed for the offence for which he is now convicted though he is above twenty-one years of age, and that benefit can be extended in exercise of powers of this Court under sub-section (4) of section 360 of the Code. This section is a piece of beneficent legislation. The object of the section is to avoid sending the first offender to prison and thereby running the risk of turning him into a regular criminal. In the instant case this is the first conviction of the appellant. He is a student. He is in his twenties. He is not a person with criminal tendency. There is nothing to show that he is a person of bad character. He has a fixed place of abode. He is willing to compensate the family of the deceased. The circumstances in which the incident happened were unfortunate. He is a student. He is in his twenties. He is not a person with criminal tendency. There is nothing to show that he is a person of bad character. He has a fixed place of abode. He is willing to compensate the family of the deceased. The circumstances in which the incident happened were unfortunate. This, thus is eminently a fit case to show leniency and sympathy to the appellant in the exercise of the discretion under the section. It is needless to emphasise that benefit of this section must be given in an appropriate case consistently with the object behind it. Indeed its provisions are mandatory as held by the Supreme Court in the case (Surendra Kumar v. State of Rajasthan)2, A.I.R. 1979 Supreme Court page 1048. The appellant therefore deserves to be given benefit of probation of good conduct having regard to the age and character of the appellant and the circumstances in which the offence was committed. At this stage it may be recorded that the appellant who is present in the Court had a discussion with the learned prosecutor through his Counsel and has offered to pay a sum of Rs. 3,000/- to the family members of the deceased Jaswant Singh by way of compensation which amount he proposes to pay within a period of two months from today. This offer is made by him notwithstanding that his conviction would be maintained and he may be released on probation of good conduct. I think this to be a good gesture made by the appellant who is a young person and a student and has thus demonstrated that approach of an educated and refined person could be humane and repentant. I appreciate the gesture and hope that the appellant would pay the amount as proposed by him within a period of two months to the family members of the deceased. The payment may be made by depositing the amount in the trial Court which shall pay the amount to the family members of deceased Jaswant Singh. In the event of such payment being made consequential direction as to the sentence of fine will have to be made as indicated below. 17. In the result, the appeal is partly allowed. The payment may be made by depositing the amount in the trial Court which shall pay the amount to the family members of deceased Jaswant Singh. In the event of such payment being made consequential direction as to the sentence of fine will have to be made as indicated below. 17. In the result, the appeal is partly allowed. The conviction of the appellant for the offence punishable under section 304 Part-II I.P. Code is altered to conviction for offence punishable under section 325 I.P.C. Consequently the conviction under section 304-II is set aside and appellant stands convicted under section 325 I.P.C. instead thereof. The sentence of R.I. for five years imposed upon the appellant for the offence under section 304 Part-II I.P.C. by the trial Court is substituted by a sentence of R.I. for three years for the offence punishable under section 325 I.P. Code. The appellant is further awarded a sentence of fine in the sum of Rs. 3,000/- for the said offence. The amount of fine when realised shall be paid to the members of the family of the deceased as compensation. The sentence of imprisonment and fine so awarded however is hereby suspended and the appellant is released on probation of good conduct under section 360(1) Criminal Procedure Code, on his executing a personal bond of Rs. 3,000/- with one surety for like amount for a period of one year from the day of execution of the bond, with condition to appear and receive the sentence when called upon during the said period and in the meantime to keep the peace and be of good behaviour. In case the appellant violates the conditions of the bond he shall be called upon to receive the sentence. In the event of occasion arising for the appellant to receive the sentence for violating the conditions of the bond he shall not be required to suffer the sentence of fine if meanwhile he had paid the amount of Rs. 3,000/- by way of compensation to the members of the family of the deceased and he shall be taken to have paid the fine. It is made clear that in case the amount is not so paid then the sentence of fine will be liable to be executed against the appellant. 3,000/- by way of compensation to the members of the family of the deceased and he shall be taken to have paid the fine. It is made clear that in case the amount is not so paid then the sentence of fine will be liable to be executed against the appellant. The appellant shall execute the bond in the trial Court within a period of four weeks from today and the interim bail of the appellant shall continue till the expiry of four weeks from today. The bail bonds already executed shall stand extended for a period of four weeks from today. In the event of default on the part of the appellant to execute the bond with surety under section 360 Criminal Procedure Code, within the time stipulated above, he shall surrender to custody and will undergo the sentence. Appeal accordingly disposed of. The order to be communicated to the lower Court immediately. Certified copy be expedited. Order accordingly. -----