V. Dutta Gyani, J. — This appeal is directed against the judgment dated 24th June, 1993, delivered by Additional Sessions Judge, Jorhat in Sessions Case No.45 (J) of 1990, thereby holding the appellants guilty of offence punishable under section 302 IPC and sentencing them to undergo imprisonment for life with a fine of Rs.2,000/- each, or in default of payment of fine to suffer one year's RI. 2. The accused-appellants were tried along with two others, namely, Kamal, the father of the appellants and Nomal, the brother, since acquitted by the trial Court. No appeal has been preferred by the State against their acquittal. 3. Prosecution case stated in brief was that the deceased Jogendra Nath Bora, who was an employee of Oil & Natural Gas Commission, lived with his wife and daughters in village Chingoligaon near Jorhat, within the jurisdiction of Jorhat Police Station. The appellants are also residents of the same village and lived hardly at a distance of about 100 yards from the house of the deceased. On 28th June, 1989, around 3 PM, it is alleged, that the accused armed with lathis and dao came to the house of the deceased Jogendra Nath Bora, while the two acquitted remain outside the court yard, it is alleged that the appellants, assaulted JogendraNath after calling him out of the house which resulted in the following injuries, as noted by PW 10 Dr. Kushal Kumar Saikia, who performed autopsy on the dead body of Jogendra Nath. "Injuries : (1) Acchymosed areas over the right side of the back with size 3" x 1/2". (2) Soft swelling over the volt of the skull. (3) Multiple acchymosed areas over the scalp." 4. It is the prosecution case that on the day of the incident the deceased having returned home, the family was enjoying an afternoon nap. The sisters as stated by PW 1 Dipti Rekha Borah were suffering from Measles. Hearing a knock on the window, she along with her father came out. she saw that the appellants were at the door steps. It was Ramesh, who Hit her father with a 'lathi' on his neck, while appellant Upen had hit Jogendra Nath with a 'lathi' on his back. The other family members who have been examined as witnesses have deposed more or less in the same vein substantially corroborating each other. 5. she saw that the appellants were at the door steps. It was Ramesh, who Hit her father with a 'lathi' on his neck, while appellant Upen had hit Jogendra Nath with a 'lathi' on his back. The other family members who have been examined as witnesses have deposed more or less in the same vein substantially corroborating each other. 5. Learned counsel for the appellant, without challenging the veracity of the statements made by the witnesses has raised a point which is essential question of law - whether on facts as proved, the appellants could be held to be guilty of offence punishable under section 302IPG ? or, as urged by the appellants' counsel the prosecution case on its face value, falls within the purview of section 304 Part II IPC? 6. Learned counsel appearing for the respondent State submitted that appellant Ramesh has choosen the vital part, like head, to inflict a lathi, is itself indicative of his intention which was equally shared by appellant Upen, who hit on the back. 7. Before proceeding any further it would not be out of place to have a look at the charge as framed by, the learned trial Judge, it reads as follows : "That you, on or about the 28.6.89 at 3 PM at Sajguri Gaon, under Jorhat Police Station, did commit murder by intentionally causing the death of Jogendra Nath Bora in furtherance of your common intention, and thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of the Court of Session. That you, on or about the same date time and place voluntarily caused hurt to Smti Rasmi Rekha Bora in furtherance of your common intention, and thereby committed an offence punishable under section 323/34." 8. It is significant to note that while framing a charge under section 323/34 in respect of simple hurt caused to the witnesses, the learned trial Judge has not framed any such charge under section 302 read with section 34IPC. Therefore, it cannot be said that the accused shared a common intention, as urged by the learned Public Prosecutor. There is no hint in the charge as framed by the trial Court that so far as section 302 IPC is concerned, they were also charged with the constructive liability under section 34 IPC. Therefore, it cannot be said that the accused shared a common intention, as urged by the learned Public Prosecutor. There is no hint in the charge as framed by the trial Court that so far as section 302 IPC is concerned, they were also charged with the constructive liability under section 34 IPC. In absence of such a charge, the-resultant prejudice caused to the accused can well be assessed. The purpose of framing a charge is to apprise and post the accused with the knowledge or the nature of the case that he is supposed to meet at the trial. 9. Now coming to the overt act as attributed to the appellants and proved by the prosecution, the appellant Ramesh dealt a lathi blow which fell on the head of the deceased. It is nobody's case that while dealing with a blow he aimed at the head of the deceased, nor there is an iota of evidence to suggest that he was in any manner prevented from repeating the blows by intervention of someone although PW 1 appeared on the scene as claimed by her along with her deceased father. She also does not say that she made any attempt to foil any repetition of blow on the part of appellant Ramesh. Thus the fact remains that only one blow on the head was dealt with by the accused appellant Ramesh. In these circumstances, the submissions made by the learned counsel for the appellant cannot be lightly brushed aside. Reliance has been placed by him on a judgment of the Apex Court as reported in AIR 1994 SC 34 (Joseph vs. State of Kerela). Following the same, the considering the evidence on record, the conviction of appellant Ramesh under section 302 IPC as recorded by the trial Court cannot be allowed to stand, it is liable to be quashed and accordingly quashed. So far as the appellant Upen is concerned, the fact that the lathi blow was dealt on the back, it goes to show that he had no intention of causing any such bodily injury which was in the ordinary course of nature likely to cause death. At best, the injury, can be said to be a simple hurt. His conviction under section 302 IPC as recorded by the trial Court is liable to be set aside, it is accordingly set aside. At best, the injury, can be said to be a simple hurt. His conviction under section 302 IPC as recorded by the trial Court is liable to be set aside, it is accordingly set aside. Instead, he is found to be guilty of offence punishable under section 323 IPC. The period of imprisonment already undergone by now is more than the maximum sentence prescribed for the offence. He is set at liberty forthwith. The amount of fine, if paid/deposited, be refunded to him. 10. Appellant Ramesh is found to be guilty of offence punishable under section 304 Part II. The maximum punishment prescribed for this offence is 10 years. As pointed out by the learned counsel for the appellant his age at the time of recording of statement under section 313 CrPC was 21 years. He was a college going student and there is nothing on record to show that his antecedents are such as to disentitle him from the benefit of section 4/6 of the Probation of Offenders Act. Section 360 CrPC read with section 4 and 6 of the Probation of Offenders Act enjoins the Court, before sentencing an accused not above the age of 21, to consider the desirability of releasing the convict on probation of good conduct. The current judicial trend in sentencing is rehabilitative and reformative, rather than punitive guided by the provisions of Probation of Offenders Act, and section 360 CrPC. We do not think it proper at this stage to allow the accused appellant to remain in jail although he has been found to be guilty under section 304 Part II IPC, he is directed to be released on probation of good conduct on his furnishing a bond to the satisfaction of the Chief Judicial Magistrate, Jorhat in a sum of Rs.5,000/- for keeping good behaviour for a period of 3 years from the date of his release on probation. He should further undertake that in the event of breach of the bond or otherwise, called upon by the Court, for receiving sentence he shall appear before the Court as and when called upon to do so. On such bond being furnished, appellant Ramesh_be also released on probation of good conduct for a period of 3 years. The appeal stands allowed in terms, as indicated above.