JUDGMENT 1. :- Heard learned counsel for the parties. It is stated by Mr. Biri Singh that the accused-appellant was below 17 years of age as on the date of the occurrence i.e. 12.3.98. He has placed reliance upon the attested copy of the birth certificate dated 20.3.98 issued by the State Education Department wherein the date of birth of accused-appellant has been certified as 10th Oct., 1981. 2. As per provisions of section 360 Cr.P.C., where a question has been raised regarding extension of benefit to the accused it is the bounden duty of the Court to record a finding that where any person who is below 21 years of age and is accused of an offence, who has been convicted with an imprisonment for a term of seven years or less, if it appears to the Court before which he is convicted, having regard to his age, character or antecedents and the circumstances in which the offence was committed, 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 may be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period as the Court may direct and in the meantime to keep the peace and be of good behaviour. This statutory requirement of law as per the Section 360(1) Cr.P.C. has not beer. examined by the trial Court before convicting the accused to undergo R.I. for 5 years under Section 304 (H) IPC. section 361 Cr.P.C. also envisages that where the Court is of the view that benefit of probation should not be extended to the accused who has been proved to be below 21 years of age as on the date of commission of offence, such reasons must be recorded. 3. section 361 Cr.P.C. also envisages that where the Court is of the view that benefit of probation should not be extended to the accused who has been proved to be below 21 years of age as on the date of commission of offence, such reasons must be recorded. 3. In the instant case, there has been violation of both the provisions, Section 360 as well as section 361 Cr.P.C. which have been over looked by the trial Court notwithstanding availability of direct evidence on record with regard to the age of the accused being below 17 years as per the attested copy of the certificate dated 20th March, 1998 issued by the State Department duly certifying the age of the accused to be below 17 years and his date of birth as 10th Oct., 1981, the accused-appellant being a juvenile offender. 4. As per the prosecution story, one Kalyan PW1 lodged a report to the 10 Police Station Mala Kheda in village Shahpur on 13.3.1998 about the incident alleged to have taken place on 12.3.1998 wherein it was alleged that his son Babu Lal went in the factory area at Colour Factory on 12.3.98 at 11.30 a.m. alongwith Raju, Vijay, Jitendra, Seth Samundar and Ram Singh. It was alleged that his son was uprooting the gram crop for consumption from the field of Kamal Jat. On this Kamal inflicted a lathi blow on the head of his son as a result of which he fell down. Kama] also gave beating to Raju. Complainant was informed in the village by Seth, Vijay and Ram Singh. On receipt of this information, complainant sent his son Ghoda at the place of incident alongwith Nihal Singh. They brought injured-Babulal at the residence. In the night when the condition of Babulal became precarious, he was taken to the hospital in a tractor. Injured was accompanied by complainant, Dayaram, Roshan, Prabhu and ors. Babulal expired on the way. His dead body was brought to complainant's residence. Shyam Singh informed the police on telephone that Babulal expired on account of the head injury. On the receipt of telephonic message the police reached at the village and thereafter the complainant lodged the report. On receipt of this report a case for offences under Sections 302 I.P.C. was registered and investigation commenced. Post Mortem was conducted on the body of deceased Babulal. On the receipt of telephonic message the police reached at the village and thereafter the complainant lodged the report. On receipt of this report a case for offences under Sections 302 I.P.C. was registered and investigation commenced. Post Mortem was conducted on the body of deceased Babulal. In the opinion of the doctor the death was caused on account of fracture of skull bone, "hematoma" and shock. 5. The prosecution examined as many as 12 witnesses in support of its case. From the prosecution story no direct motive has been attributed to the accused. The injured was not taken to the hospital immediately for which there is no explanation on the record. The complainant Kalyan, PW1 who lodged the report is not eye witness of the incident. PW5 Raju, PW6 Jitendra and PW7, Brijendra who were examined as eye witnesses by the prosecution have not assigned any direct role to the accused. Dr. Raj Kumar, deposed in his examination in chief that the possibility regarding injuries being received by the deceased as a result of fall on metalled road cannot be ruled out. This fact has also been corroborated by the witnesses, PW5, PW6 and PW7 as referred to above. No previous enmity has been assigned to the appellant which could be responsible for alleged altercation between him and the deceased. PW5 Raju has stated in his evidence that he took injured in village Gundpur at Doctor's clinic. After receiving first aid, he remained there with the injured (deceased) for about 4 to 5 hours. From the deoctor's clinic, he was first taken to village on bicycle and from there onwards, he was taken to the hospital in late hours of the night. Hence, in my view, the possibility of injured having developed complication as a result of delay in getting the medical aid cannot be ruled out. Further the possiblity of injured (deceased) having received injuries as a result of fall from the bicycle also cannot be ruled out. Under such circumstances, applying scales of justice, benefit of doubt should be extended to the accused. The prosecution has also failed to explain the circumstance as to what was the reason for the concerned Investigating Agency not to have directed the injured to be rushed to the Hospital. 6. Under such circumstances, applying scales of justice, benefit of doubt should be extended to the accused. The prosecution has also failed to explain the circumstance as to what was the reason for the concerned Investigating Agency not to have directed the injured to be rushed to the Hospital. 6. Though the prosecution filed charge-sheet for offence under Section 302 I.P.C., but the trial Court taking lenient view of the matter in view of the evidence led by the prosecution on the record was of the view that the offence alleged to have been committed by the accused is culpable homicide not amounting to murder and accordingly instead of convicting the accused for offence under Section 302 I.P.C. directed his conviction to be maintained under Section 304(11) I.P.C. for five years R.I. and a fine of Rs. 5,000/-. 7. During the course of hearing, the learned counsel for the appellant has placed reliance on the judgment of this Court in Bhawru Ram V/s State reported in 1997(2) RCC 163 wherein the accused who was below 21 years of age as on the date when he was convicted and awarded sentence of five years' R.I., while maintaining his conviction for offence under Section 304(11) I.P.C. having regard to his age, dose relationship of the parties, no motive on the part of the accused to take life of the deceased and the accused tiling not previous convict, the sentence of five years' R.I. which was imposed on the accused was set aside and the accused was directed by this Court to be released on furnishing personal bond. Likewise, in the case of Tarachand V/s State of Rajasthan Reported in 1990 Criminal Law Reporter (Raj.) 598 , similar view was expressed by the Court, having regard to the age of the accused, close relationship of the parties, no motive having been proved, the benfit of probation was extended to the accused. 8. Likewise, in the case of Tarachand V/s State of Rajasthan Reported in 1990 Criminal Law Reporter (Raj.) 598 , similar view was expressed by the Court, having regard to the age of the accused, close relationship of the parties, no motive having been proved, the benfit of probation was extended to the accused. 8. Likewise in the instant case, extending ratio of aforesaid decisions which in my view are fully attracted while maintaining conviction of the accused appellant for offence under Section 304 (II) I.P.C. as directed by the trial Court vide impugned judgment and order dated 31.5.99 in Sessions Case No. 6/98, it is accordingly directed that the accused-appellant being not previous convict and since he was admittedly below 17 years of age as on the date of occurrence, as per the prosecution evidence referred to above, instead of directing the accussed-appellant to undergo remaining period of sentence, I am of the view that the appellant may be released on probation with a view to rehabilitate himself and prove a better and useful citizen for the society since the alleged crime was committed without any pre-meditation in his adolescence, which is an impressionable age. Learned counsel for the appellant states that the appellant is studying in high school and in my view compassionate view is required keeping in view the fact that his eduational career should not be disturbed which it is hoped that he will be able to resume after his release on probation. 9. As a result of above discussion, the appeal is partly allowed. It is accordingly directed that the accused-appellant Kama] Singh son of Sua Lal be released on probation with the stipulation that he shall maintain peace and be of good behaviour for a period of one year provided he furnishes a personal bond in the sum of Rs. 25,000/- ( Rs. Twenty Five Thousand Only) with one surety in the like amount to the satisfaction of the trial Court.With the above observations/directions, the appeal stands partly allowed and disposed of.Appeal Partly Allowed. *******