JUDGMENT.:- On 23-3-1993, the Additional Sessions Judge, Amravati, on conclusion of trial in Sessions Case No. 63 of 1987, convicted the accused/appellant for the offence punishable under Section 304, Part II, of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and a fine of Rs. 1,000/-, and in default of payment of fine to suffer further rigorous imprisonment for three months, and in this criminal appeal the accused/appellant has taken exception to his conviction and sentence awarded by the Additional Sessions Judge, Amravati. 2. Sharad son of PW-2 Vithal, who was hardly 8 years old, died in the incident which occurred on 21-11-1986 at 4-00 P.M. Sharad (the deceased) along with PW-1 Sanjay, Rajendra, Dilip and PW-5 Mahadeo had gone to the play ground of the school and at about 4-00 p.m. on 21-12-1986 the accused/appellant Namdeo came to the ground with his bullockcart. The cart was loaded with bamboos. Sharad (the deceased) PW-1 Sanjay and PW-5 Mahadeo and others were asked by the teacher to go with the cart to bring another trip of bamhoos and accordingly all of them boarded the cart. When the bullock cart reached the river and the accused could not pull up the cart properly, the boys laughed at accused/appellant Namdeo. The accused/appellant gave a slap to PW-5 Mahadeo and PW-1 Sanjay for their behaviour and lifted the Ubhari of the cart and gave one blow to the bullock and another to Sharad on his head and as a result thereof Sharad sustained injury on his head and died instantaneously. PW-2 Vithal the father of deceased Sharad, lodged the report at the police station, Warud. Investigation commenced and the dead body of Shard was sent for autopsy. The Investigating Officer prepared spot panchanama (Ex. 15), inquest panchanama (Ex. 17), post mortem report (Ex. 19) was obtained. Ubhari was recovered at the disclosure statement of the accused/appellant and thereafter the Investigating Officer submitted the charge-sheet against the accused appellant, and since the case was triable exclusively by the Sessions Court, the accused/appellant was committed to the Court of the Additional Sessions Judge, Amravati, who framed the charge on 7-10-1992 against the accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty. Prosecution examined two eye-witnesses, viz. The accused pleaded not guilty. Prosecution examined two eye-witnesses, viz. PW-1 Sanjay and PW-5 Mahadeo, the father of the deceased and the first informant PW-2 Vithal, PW-4 Dr. Shanelata, who conducted the post mortem on the dead body of Sharad, and also examined the Investigating Officer and panch witness. The prosecution has exhibited various documents including the oral, report (Ex. 13), inquest panchanama (Ex. 17), spot panchanama (Ex. 15), post mortem report (Ex. 19) printed FIR (Ex. 29) amongst others. The statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure and he denied his involvement in the crime. In answer to Question No. 19 the accused/appellant explained that some boys tried to climb the cart while it was passing through the nallah and at that time one boy fell down. but he did not know who he was. He then went to his house. 3. The trial Court after recording the evidence and hearing the learned counsel for the accused/appellant and the Additional Public Prosecutor, concluded that the death of Sharad was homicidal and that the accused/appellant inflicted a blow of Ubhari on the head of Sharad, resulting into injury and for the said act, found the accused/appellant guilty for the offence under Section 304 Part II of the Indian Penal Code and sentenced him as aforesaid. 4. Shri Hardas, the learned counsel for the accused/appellant, tried to assail the finding of the trial Court about the homicidal death of Sharad and also sought to challenge the finding recorded by the trial Court that the accused/appellant inflicted Ubhari blow on the head of Sharad, which resulted into injury and death of the said Sharad. However, on the basis of the evidence of PW-1 Sanjay and PW-5 Mahadeo and duly corroborated by the medical evidence of PW-4 Shanelata and the post mortem report (Ex. 19), it cannot be said that the trial Court committed any error in concluding that the death of Sharad was homicidal. The prosecution has been able to prove that the accused/appellant inflicted the Ubhari blow to Sharad which caused injury on his head and us a result thereof Sharad died. Despite the searching and incisive cross-examination of these two eye-witnesses PW-1 Sanjay and PW-5 Mahadeo, who were also about 8 to 10 years of age, they have withstood the cross-examination and their examination-in-chief is not at all shaken. Despite the searching and incisive cross-examination of these two eye-witnesses PW-1 Sanjay and PW-5 Mahadeo, who were also about 8 to 10 years of age, they have withstood the cross-examination and their examination-in-chief is not at all shaken. I have also gone through the evidence of PW-2 Vithal -- the father of deceased Sharad, and his testimony too corroborates the two eye-witnesses PW-1 Sanjay and PW-5 Mahadeo. The contradictions pointed out here and there in the testimony of PW-1 Sanjay and PW-5 Mahadeo and PW-2 Vithal are only minor in nature and on the fringe and do not affect the veracity and truthfulness of these witnesses. The trial Court has also considered the fact that the accused/appellant had no intention to cause the death of Sharad and he had no intention or knowledge, in all probabilities, to cause the death of Sharad, but on the basis of the fact that the act of the accused/appellant was likely to cause the death of Sharad, convicted the accused/appellant for the offence punishable under Section 304, Part II, of the Indian Penal Code and, in my view, the conviction of the accused/appellant for the said offence is well merited and no fault can be found in the finding recorded by the trial Court. 5. Shri Hardas, the learned counsel for the accused/appellant, then submitted that the incident occurred in the year 1986 almost nine years before and the accused/appellant had no intention or knowledge to cause the death of Sharad and it was at the spur of the moment when the boys sought to laugh over the accused/appellant when his cart could not climb the river slope, the accused/appellant became angry and gave one blow of the Ubhari which was lying in the bullock cart, and the accused/appellant at the time of the incident was also young and about 26 years old. Shri Hardas also submits that the accused/appellant is married and is having young children and though he is poor and surviving himself and his family from the earnings he makes from the labour work, yet since young boy of 18 years died, his client is prepared to pay reasonable fine of Rs. 15,000/-, so that from the said fine, the father of the deceased could be compensated. 15,000/-, so that from the said fine, the father of the deceased could be compensated. The learned counsel for the accused/appellant submits that the accused/appellant has already undergone the sentence of about six weeks and in the peculiar facts and circumstances of the present case, interest of justice would be met if the sentence awarded by the trial Court is reduced to already undergone and the fine is increased from Rs. 1,000/- to Rs. 15,000/-. 6. Shri Jichkar, the learned Additional Public Prosecutor, also submits that in the peculiar facts and circumstances of the case, the reformatory justice of punishment would be better subserved if the father of the deceased is compensated due to the death of his young son Sharad by awarding reasonable fine. Shri Jichkar submits that the sentence undergone by the accused/appellant is though inadequate, yet in the circumstances, the Court may pass appropriate orders. 7. Shri Khandalkar appears on behalf of the respondent No. 2, the complainant and father of the deceased, and after seeking permission from the Court as well as the Additional Public Prosecutor, submits that the Court may pass appropriate order about the sentence taking into consideration the facts and circumstances of the case. 8. On thoughtful consideration of the contentions raised by the learned counsel on the question of sentence, I find some justification in the contention of the learned counsel for the accused/appellant. It is true that the young child of 8 years died because of the injury caused by the accused/appellant, but the manner in which the incident occurred and looking to the age of the accused/appellant and the fact that the incident occurred nine years before and the accused/appellant had already suffered agony of this criminal case during this period and also the fact that the respondent No. 2 Vithal, the father of deceased Sharad, who is presently aged about 75 years, has lost his young child, interest of justice would be better served if the sentence awarded to the accused/appellant is reduced to the sentence already undergone and the fine awarded by the trial Court is increased to Rs. 15,000/-. 15,000/-. I am conscious of the fact that for the offence punishable under Section 304 Part II, of the Indian Penal Code, the sentence undergone by the accused/appellant is inadequate and ordinarily the sentence awarded by the trial Court did not deserve to be interfered with, but in the peculiar facts and circumstances of the case, including the fact that the child Sharad was 8 years old and his father PW-2 Vithal is presently 75 years old, in the special and peculiar circumstances of the case, the substantive sentence awarded to the accused/appellant deserves to be reduced and the payment of fine increased, so that in old age the respondent No. 2 Vithal, who has lost his young child, can be saved from financial miseries, though no amount can compensate the loss of the young child and sentence to be effective should not only be reformatory but also retributory, deterrent and preventive. 9. Consequently, this criminal appeal is partly allowed. The conviction of the accused/appellant under Section 304, Part II, of the Indian Penal Code is maintained. However, the sentence awarded by the trial Court in its judgement dated 23-3-1993 is modified and for the offence punishable under Section 304 Part II, of the Indian Penal Code, the substantive sentence awarded to the accused/appellant is reduced to the sentence already undergone and the fine awarded by the trial Court is increased to Rs. 15,000/-. If the fine of Rs. 1,000/- as directed by the trial Court has been deposited by the accused/appellant, the said amount shall be adjusted in the fine amount of Rs. 15,000/-. The accused/appellant is directed to make the payment of fine of Rs. 15,000/- within two months from to-day, failing which the accused/appellant shall have to undergo the sentence of rigorous imprisonment for five years. In case the fine is paid by the accused/appellant within the time, the entire payment of fine should be paid to respondent No. 2 Vithal Fakiraji Sonkuwar (PW-2) as soon as it is paid by the accused/appellant. Order accordingly. Order accordingly.