JUDGMENT Chauhan, J. -- 1. In Sessions Trial No. 59/86, out of four persons i.e. Devi Singh. Balwantsingh, Narayan Singh and Kamal Singh, who were tried for the offences under Sections 302/34, 307/34, 325/34 and 325/34 of the Indian Penal Code, Devi Singh and Balwant Singh were acquitted and rest of the two persons, vide judgment and order dated 21.1.88 having been found guilty with the aid of Section 34 IPC for the offence punishable u/s 302 IPC were sentenced to imprisonment for life, who feeling aggrieved therefrom. approached this Court by means of this appeal. which is being decided finally. 2. The prosecution case in brief was that while Vikram Singh (PW 2) in the evening hours at about 4 p.m. was cutting Khakhra from his field in village Majodiya, P.S. Mandi Sehore, District Sehore, the accused Devi Singh came over there and abused him and asked him how he was cutting Khakhra, who told him as it was on the boundary of his field (Mend) whereat Devi Singh called the accused persons Kamal Singh, Narayan Singh and Balwant Singh who reached there equipped with Kalla (thick wooden rod) and lalhis. Accused Balwant Singh wasthaving Khalla whereas Kamal Singh and Narayan Singh were having Lathis. Devi Singh, after taking khalla from accused Balwant Singh, hit on the head of Vikram Singh and accused Kamal Singh hit him with lathi and Vikram Singh saved the attack with his axe in which process handle of axe was broken, accused Narayan Singh also hit him with lathi, which hit him on the left shoulder. 3. In the context of the facts of the present case, it is not necessary to dilate on the matter in detail on account of acquittal of Devi Singh, the main accused 10 whom role assigned was for causing injury which resulted in the death of Manohar Singh owing to which other facts only have a peripheral relevant. 4. The occurrence in question took place on 5.1.86 at about 4 p.m. in village Mahodiya P.S. Mandi Sehore, District Sehore, wherein Manohar Singh died. The FIR of the incident was lodged by PW 2 Vikram Singh at P.S. Mandi on 5.1.86 at 6.30 p.m. Post-mortem examination of the dead body was conducted by Dr. Ashok Sharma (PW 14) who found the following four ante-mortem injuries on the person of the deceased. The FIR of the incident was lodged by PW 2 Vikram Singh at P.S. Mandi on 5.1.86 at 6.30 p.m. Post-mortem examination of the dead body was conducted by Dr. Ashok Sharma (PW 14) who found the following four ante-mortem injuries on the person of the deceased. (1) Rail track pattern bruise obliquely vertical margin diffused over the right deltoid region anterior aspect size 7 x 2 c.m. Reddish purple in colour. (2) Abrasion 2 c.m. above the right tibral tubrosity size 4 x 2 c.m. vertical. (3) Abrasion two in number linear parallel to each other 0.5 c.m. apart transverse 4 c.m. above the lateral malluculous left side size 2 c.m. and 2 c.m. respectively; (4) Surgically stitched wound over left parietal region triangular in shape pointing anteriorly. The superior limb is horizontal in saqqitact plance measuring 5 c.m. while lower limb measuring 4 c.m. with base 2 c.m. The flapping of the sking is peuit posteriorly and borders of the injury are aheaded and contused for a length of 0.5 c.m. Out of these injuries, the injury No. (4) was the fatal which caused death. 5. The prosecution examined as many as 14 witnesses out of which Vikram Singh (PW 2), Madan Singh (PW 4), Gajraj Singh (PW 5) Ratan Singh (PW 6), Premnarayan (PW 7) and Dhankuynwar Bai (PW 9) were the persons who were the eye witnesses in regard to the fact of causing of the injuries to the deceased. 6. In defence, the accused persons denied their involvement and examined one witness Dr. D.N. Dwivedi (DW I) in regard to the injuries sustained by the accused persons i.e. Kamal Singh and Narayan Singh. 7. Heard the learned counsel for the appellants and the learned State counsel. 8. Learned counsel for the appellants submitted that in view of the acquittal of the main accused Devi Singh by the trial Court, the present appellants cannot be fastened with the liability of guilt for committing offence punishable under Section 302 IPC and having regard to the injuries other than the injury No. (4), the liability at the most, if any, cannot be fastened more than that for the guilt u/s 323 IPC. Learned counsel further submitted that the mitigating factor, in the event if the Court pleases to record acquittal of the appellants of the charge u/s 302 IPC and record conviction u/s 323 IPC, that the appellants have already served out the sentence for a period more than 10 years out of the sentence as imposed upon them, by the trial Court, deserves consideration. 9. So far as the Devisingh is concerned, he, on the basis of evidence on record, was the person who caused the injury No. (4) and as per the evidence of the doctor, it is the injury No. (4) which in fact was the cause of death of the deceased. However, since the trial Court found lacuna in the prosecution evidence and not believing, the witnesses acquitted Devi Singh and Balwant Singh as they had no role to play. Since the main person Devi Singh who was assigned the role of causing fatal injury has been acquitted the case of the other persons cannot be brought under Section 302 IPC. It was neither the case that all the accused persons were guilty for committing the offence u/s 302 IPC either independently or with the aid of Section 34 IPC and even there is no material on the record so to warrant to take the aid of Section 34 IPC. Even otherwise, Section 34 cannot be taken in aid when the main accused has received acquittal and no appeal there against has been filed by the State as per the information supplied by the State counsel himself. Now, the question for consideration remains as to whether the submission as advanced by the learned counsel for the appellants regarding consideration of the guilt of the accused persons under Section 323 IPC, can be accepted so far as the nature of the injuries Nos. (1), (2) and (3) concerned, they are of simple nature and evidence on the record establishes that these injuries on the person of the deceased were caused by the appellants and there is evidence of the eye-witnesses deposing to establish the causing of these injuries on the person of the deceased by the present appellants. 10. (1), (2) and (3) concerned, they are of simple nature and evidence on the record establishes that these injuries on the person of the deceased were caused by the appellants and there is evidence of the eye-witnesses deposing to establish the causing of these injuries on the person of the deceased by the present appellants. 10. In view of this, we are of the opinion that the appellants cannot be fastened with the liability for the guilt punishable under Section 302 IPC whereunder they deserve acquittal but we, on the basis of material on the record, find them guilty for commission of the offence punishable under Section 323 IPC. 11. Since appellants are found guilty for commission of offence punishable under Section 323 IPC, the question crops up regarding sentencing exercise. It is a case where the accused persons have already served out 10 years imprisonment out of the sentence of imprisonment imposed upon them by the trial Court but since the accused persons are found guilty for the commission of offence punishable under Section 323 IPC and having regard to the fact, we consider it proper that no sentence be recorded as we consider it appropriate to treat them under Section 360 of the Code of Criminal Procedure, 1973. Since the appellants have got a permanent abode and no previous conviction is proved against them and regard being had to the fact that they were young• persons in their twenties at the time of commission of offence in the year 1986, it is found expedient that they should have a chance to reform themselves instead of getting sentence, which may ultimately mar their career in future. Under the circumstances, it is a case where they are entitled for being let off on probation. Accordingly, where recording conviction under Section 323 IPC, we keep in abeyance the imposition of sentence therefor and direct the appellants to exhibit a decent behaviour and be of good conduct for a period of two years and they be released forthwith on probation on their entering into personal bond to the tune of Rs. 15,000/- each, to the satisfaction of the trial Court with a condition that in violation of the condition, they would be called upon during the period of two years for receiving the sentence for the offence. 15,000/- each, to the satisfaction of the trial Court with a condition that in violation of the condition, they would be called upon during the period of two years for receiving the sentence for the offence. The conviction of the appellants under Section 302/34 IPC and the sentence imposed thereunder are set aside. The appellants, who are in jail, be sent to the trial Court forthwith together with Certified Copy of this judgment, which shall be supplied free of cost, for execution of the bond as directed and shall be set at liberty thereon, in case they are not wanted in some other crime. 12. With the above modification and direction, the appeal stands finally disposed of.