JUDGMENT 1. - Appellant Sri Bhagwan has been found guilty of offences under section 304 Part I and 323 read with Section 34, Indian Penal Code by the learned Addl. Sessions Judge No. 2, Sri Ganganagar vide judgment dated 18-9.1990. Appellant Megh Raj has been found guilty of offences under section 304 Part I read with Section 34, Indian Penal Code and 323 read with Section 34, Indian Penal Code by the same judgment. Both the appellants have been sentenced to undergo R I. for 10 years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further R.I for six months for offence under section 304 Part I, Indian Penal Code. For offence to 323 read with Section 34, Indian Penal Code, both of them have been sentenced to S.I. for three months. Both the sentences have been ordered to run concurrently. Aggrieved, Sri Bhagwan and Megh Raj have come in appeal. 2. It appears that in all eight persons were put up for trial before the learned Addl. Sessions Judge, The charges against these persons were that they formed an unlawful assembly with the object of assaulting and committing murder of Raju Arora on 28-7-89 at 8:30 p.m. near Sukhadia Circle, Sri Ganganagar. The prosecution story was that all the accused persons, in furtherance of the common object of the said unlawful assembly assaulted Raju and Sheokat All and when one Kailash tried to intervene, appellant Sri Bhagwan stabbed him in the chest while co-accused Megh Raj grappled with him. The prosecution story further was that Raju and Sheokat Ali also sustained injuries in this assault. 3. After proper investigation, all the accused were challaned and were eventually committed to the court of Sessions at Sri Ganganagar. The case was transferred to the court of learned Addl. Sessions Judge No. 2, Sri Ganganagar and after due trial, acquitted Prem Kumar, Tejpal Singh, Surendra Kumar, Raju @ Ghanshyam. Baggu @ Bhagwandas and Raju S/o Om Prakash of all the charges. He found that presence of these accused persons was not established at all. He, however, found that Sri Bhagwan and Megh Raj initially assaulted Raju and Sheokat Ali. Meanwhile. Kailash intervened and Sri Bhagwan stabbed him on the chest resulting in his death. 4. Learned trial Judge was of the view that the assailants had no intention to commit murder of Kailash. He, however, found that Sri Bhagwan and Megh Raj initially assaulted Raju and Sheokat Ali. Meanwhile. Kailash intervened and Sri Bhagwan stabbed him on the chest resulting in his death. 4. Learned trial Judge was of the view that the assailants had no intention to commit murder of Kailash. However, he was of the view that Sri Bhagwan had committed an offence under section 304 part I, Indian Penal Code by inflicting injuries on the chest of Kailash which resulted in his death. He was also of the view that appellant Megh Raj shared the common intention with Sri Bhagwan to Inflict the said blow on Kailash. The learned trial Judge was of the view that it could not be spelled out as to which of the two accused had caused injuries to Raju and Sheokat Ali. Hence, he held both of them guilty for offences under section 323 read with Section 34, Indian Penal Code. 5. In the present appeal, learned counsel for the appellants submits that so far as appellant Sri Bhagwan is concerned, charge under section 304 Part I Indian Penal Code is not made out because Sri Bhagwan had no intention to assault Kailash and it was accidently that Sri Bhagwan inflicted one blow on his chest. The blow was not repeated. The appellant did not act in any cruel manner. He had no enmity with Kailash whatsoever and hence Sri Bhagwan could have been convicted under section 304 part II, Indian Penal Code. He does not challenge the conviction of Shri Bhagwan for offence under section 323, Indian Penal Code. However, so far as Megh Raj is concerned, he submits that Megh Raj could not have shared any common intention with Sri Bhagwan in inflicting injury to Kailash. He could not have even anticipated that Sri Bhagwan would inflict injuries to Kailash and, therefore, Megh Raj should be acquitted of offences under section 304 Part I read with Section 34, Indian Penal Code the charge under section 323 read with section 34 is also not made out against Megh Raj because other co-accused appellant who in identical circumstances obtained were acquitted by the learned trial Judge. He, therefore, submits that Megh Raj deserves acquittal on both the counts. 6. On the question of sentence, he submits that age of Sri Bhagwan was hardly 18 years when the offence is said to have been committed. He, therefore, submits that Megh Raj deserves acquittal on both the counts. 6. On the question of sentence, he submits that age of Sri Bhagwan was hardly 18 years when the offence is said to have been committed. He has already remained behind bars for more than three years. He is not a previous convict. He is also not a habitual offender. The act was not premeditated or preplanned in any manner and, therefore, Sri Bhagwan should be granted benefit of probation. 7. The learned P.P opposes the appeal seriously and submits that no case for interference with the judgment of the learned trial Judge is made out. He also submits that it is not a fit case where the accused appellants or any one of them may be released on probation of good conduct. 8. I have heard learned counsel for the parties and have gone through the record of the learned trial court. 9. I may state that the acquittal of other accused persons recorded by the learned trial Judge has become final as no appeal has been filed against such acquittal by the State. 10. I would first take up the case against appellant Megh Raj PW 3. Raju in his examination-in chief has stated that Sri Bhagwan and Megh Raj came to Sukhadia Circle where he was sitting along with certain other persons, Sri Bhagwan on reaching the spot caught hold of his hair and upon this Kailash tried to intervene and Sri Bhagwan stabbed Kailash. He further stated that Sheokat All as also this witness were given beating by Meghla, Tejpal Raju, Popia, Premia and others. PW 4 Sheokat Ali has staled that when this witness along with PW 3 Raju were sitting near Sukhadia Circle, Sri Bhagwan, Megh Raj and one more person came there. Sri Bhagwan caught hold of hair or Raju at which Kailash tried to intervene. Upon this Sri Bhagwan gave a whistle and stabbed Kailash. Other co-accused came there and gave beating to Raju and Sheokat Ali. 'PW 6 Radhey Shyam, who claims to be another eyewitness of the occurrence has stated that initially Megh Raj came to Raju, Sheokat Ali and this witness and asked them to have compromised about some previous incident. However, Megh Raj went away and then Sri Bhagwan came there and he caught hold Raju at which Kailash intervened. 'PW 6 Radhey Shyam, who claims to be another eyewitness of the occurrence has stated that initially Megh Raj came to Raju, Sheokat Ali and this witness and asked them to have compromised about some previous incident. However, Megh Raj went away and then Sri Bhagwan came there and he caught hold Raju at which Kailash intervened. Sri Bhagwan put a stab blow on the chest of Kailash. A close scrutiny of these three witnesses gees to show that no specific act has been attributed to appellant Megh Raj regarding beating to Raju or to Sheokat Ali. Radhey Shaym specifically stales that Megh Raj had gone away He does not state that Megh Raj inflicted any injuries to Raju or to Sheokat All No recoveries have been made from appellant Megh Raj The prosecution evidence itself shows that Megh Raj had come to the scene of occurrence to request for a compromise to be made regarding a previous incident. It cannot be therefore, spelled out that he had shared any common intention with Sri Bhagwan in assaulting either Raju or Sheokat Ali or Kailash. There is no specific evidence regarding any assault made by him on Raju or Sheokat Ali. An omnibus statement has been made by Raju that he along with Sheokat Ali were beaten by Hockey sticks by Meghla, Tejpal, Raja Popia, Premia and others A similar omnibus statement was made by Sheokat Ali. When other co-accused persons Prem Kumar, Tejpal, Surendra Kumar, Raju @ Ghanstiyam, Baggu @ Ghanshyam, Raju s/o Om Prakash had been acquitted on this same evidence, it is difficult to hold that Megh Raj shared any common intention with Sri Bhagwan so far as assault on Raju, Sheokat All or Kailash is concerned. I, therefore, find merit in the contention that conviction of Megh Raj for offence under section 304 part I read with Section 34, Indian Penal Code and Section 323 read with Section 34, Indian Penal Code cannot be maintained and sustained and Megh Raj deserves to be acquitted of both the charges. 11. This takes me to the consideration of the case of appellant Sri Bhagwan, There is consistent evidence of Raju. Sheokat Ali and Radhey Shyam that Sri Bhagwan caught hold of the hair of Raju and at that juncture Kailash tried to intervene, upon which Sri Bhagwan Stabbed Kailash on the chest. 11. This takes me to the consideration of the case of appellant Sri Bhagwan, There is consistent evidence of Raju. Sheokat Ali and Radhey Shyam that Sri Bhagwan caught hold of the hair of Raju and at that juncture Kailash tried to intervene, upon which Sri Bhagwan Stabbed Kailash on the chest. This testimony has not been shaken in cross examination at all and is corroborated by medical evidence on record. None of the eye-witnesses alleged that Sri Bhagwan caused any injuries to Sheokat All and Raju. The likelihood appears to be that the co-accused who were acquitted by the learned trial Judge might have inflicted injuries to Raju and Sheokat Ali. On the basis of the aforesaid evidence, the only charge proved against Sri Bhagwan is that he caught hold of the hair of Raju and on being intervened by Kailash, gave a stab blow to him. By catching hold of the hairs of Raju, this appellant voluntarily caused simple hurt to Raju as defined under section 319, Indian Penal Code and, therefore, he can be convicted of an offence under section 323, Indian Penal Code so far as assault by this appellant on Raju is concerned. 12. Now, the question is whether the act of Sri Bhagwan falls within Section 304 Part I or Section 304 Part II, Indian Penal Code. Learned counsel for the appellant has relied, upon Babu Lal v. State of Raj., 1988 (13) R Cr C 225 and Ramhet and Ors. v. State of Raj., 1988 (13) R Cr C 410 . In both these cases the accused had caused single injury to the deceased who was an intervenor in the incident. There was no premeditation, motive or enmity shown in the case. In the present case I find that this appellant, namely, Sri Bhagwan gave a stab wound to Kailash who was intervenor in the incident. Sri Bhagwan had no previous enmity with Kailash at all. There is no evidence or premeditation or motive. It does not appear that Sri Bhagwan had acted in a cruel manner. He did not repeat the blow In my opinion, in these circumstances. Sri Bhagwan had no previous enmity with Kailash at all. There is no evidence or premeditation or motive. It does not appear that Sri Bhagwan had acted in a cruel manner. He did not repeat the blow In my opinion, in these circumstances. the conviction of the appellant Sri Bhagwan for offences under section 304 Part I, Indian Penal Code could not be sustained and he could have been convicted only for offence under section 304 Part II Indian Penal Code as held in Babu Lars case and Ramhet's case referred to above. I am supported in my opinion by the judgment of the Apex Court rendered in Tholan v. State of Tamil Nadu, 1984 Cr LJ 478 . In that case the accused had no dispute with the deceased. There was an assault on the spur of moment and the accused inflicted only one blow with knife. Their Lordship of the Apex Court held that in the circumstances of the case the requisite intention to commit murder could not be attributed to the accused. It was further held that since he wielded a weapon like a knife and, therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to "cause death" It was held that in such a situation though the accused could not be convicted under section 302. He would be guilty of committing an offence under section 304 Part II, Indian Penal Code, In my opinion, the case of petitioner Sri Bhagwan falls under section 304 Part II, Indian Penal Code and the learned trial Judge went wrong in convicting him for offences under section 304 I, Indian Penal Code. 13. Now coming to the question of sentence, the learned counsel for the appellants submits that the appellant was a young boy of 18 years of age on the date the incident took place. He is not a previous convict. He is also not a habitual offender and, therefore, he may be released on probation of good conduct under the provisions of Probation of Offenders Act read with Section 360, Criminal Procedure Code. He is not a previous convict. He is also not a habitual offender and, therefore, he may be released on probation of good conduct under the provisions of Probation of Offenders Act read with Section 360, Criminal Procedure Code. In this connection he has placed reliance upon Murari Lal v. State of Raj., 1986 RCC 267 , wherein a Division Bench of this Court while convicting appellant for offence under section 304 part II, Indian Penal Code directed release of the appellant on probation of good conduct. The learned P.P. opposes this request and submits that in case the Court comes to the conclusion that Sri Bhagwan should be released on probation, the next of kin of deceased Kailash should be granted compensation. He has placed reliance upon Khanjan Pal v. State of U.P., 1991 SCC (Cri) 44 . I have carefully considered the rival contentions. The appellant Sri Bhagwan was 18 years of age when the incident took place. He is not a previous convict. He has not been shown to be a habitual offender. He has already remained behind bars for quite some time. The incident took place in the year 1989 and we are in the year 1993. In my opinion, it is a fit case where appellant Sri Bhagwan ought to be released on probation of good conduct. However, it is also a fit case where he must be made to pay compensation to the next of kin of deceased Kailash. 14. While considering the quantum of compensation to the next of kin of the deceased, this Court shall have to keep in mind the economic and social status of the appellant. He belongs to the community of Dhankas, which is a Scheduled Caste in Rajasthan. The Dhankas normally earn their living by weaving cotton The appellant has not been in a position to improve his status because he has been behind bars since his conviction. In my opinion a sum of Rs. 10,000/- as compensation to the next of kin of the deceased would meet the end of justice. Oat of this sum. Rs. 5000/- should he paid within a period of six months and the balance amount should be paid in instalments of Rs. 25 per month. The learned trial fudge may make an enquiry to ascertain as to who are the next of kin of deceased Kailash. Oat of this sum. Rs. 5000/- should he paid within a period of six months and the balance amount should be paid in instalments of Rs. 25 per month. The learned trial fudge may make an enquiry to ascertain as to who are the next of kin of deceased Kailash. The S.H.O may also be asked to collect information about the next of kin of the deceased. 15. No other point has been urged before me. 16. In the aforesaid premises. I accept appeal of Meet Raj and set aside his conviction for offences under section 304 Part I read with Section 34, Indian Penal Code and :23 read with Section 34, Indian Penal Code. Sentences passed against him for the aforesaid offences are also set aside. He is on bail and need not surrender to his bail bonds. Appellant Shri Bhagwan Shall furnish a personal bond in a sum of Rs 7000/- and a surety bond in a like sum to the satisfaction of the learned trial Judge within a period of 15 days from today stipulating that he shall keep the peace and be of good behaviour and would not commit any offence during a period of two years from today. Upon such bonds being furnished, he shall be released on probation forthwith. The amount of compensation shall be paid as directed above and in case he fails to do so, the same shall be realizable as fine under the provisions of the Criminal Procedure Code.Appeal partly allowed. *******