JUDGMENT : Umesh Chandra Tripathi, J. 1. This appeal has arisen out of the judgment and order dated 19.12.2003 passed by Additional Session Judge/Fast Track Court No. 3, Azamgarh in Session Trial No. 193 of 2000 (State v. Sati Ram and others), arising out of Case Crime No. 160 of 1998, convicting the appellant under Section 304 Part II of Indian Penal Code (hereinafter referred to as 'IPC') and sentencing him to seven years' rigorous imprisonment and fine of Rs. 5,000/- and in case of default in payment of fine, six months' simple imprisonment has to be undergone. 2. The brief facts of the prosecution case, as spelt out on perusal of record, are that informant Shyam Dev and his uncle Sati Ram resided in the same house in village Avani Pura, Police Station - Tarwa, District - Azamgarh. On 17.06.1998 at about 08.30 A.M. Inarjiya, wife of Sati Ram was collecting dung of the cattle belonging to the informant. On seeing this, informant's father Ram Bali objected her to do so. As a result thereof, Sati Ram along with this two sons Pujan and Shiv Bachan assaulted Ram Bail with bamboo, due to which he received grievous injury on the head. The incident was witnessed by the informant, his wife Parmila and many others. Pursuant thereto, informant Shyam Dev took his father Ram Bali, who was unconscious, to Sri Shiv Prasad Gupta Hospital, Varanasi for his treatment, where he was admitted. The next day, i.e. on 18.06.1998, at 03.20 A.M. Ram Bali succumbed to his injury and breathed his last. After the post mortem was conducted, informant Shyam Dev performed the last rites of his father on 19.06.1998 at Electric Crematorium, Harishchandra Ghat, Varanasi. It was urged that report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1. 3. Contents of the written report were taken down in the chik first information report at Police Station - Tarwa, District - Azamgarh on 20.06.1998 at 02.15 P.M. at Case Crime No. 160 of 1998 for offence punishable under Section 304 IPC. The chik FIR is on record and the same is marked as Ex.Ka.2. 3. Contents of the written report were taken down in the chik first information report at Police Station - Tarwa, District - Azamgarh on 20.06.1998 at 02.15 P.M. at Case Crime No. 160 of 1998 for offence punishable under Section 304 IPC. The chik FIR is on record and the same is marked as Ex.Ka.2. On the basis of entry so made in the chik FIR, relevant entries were made in the General Diary (G.D. Rapat No. 21) at the same police station under aforesaid section of IPC and a case was registered against the accused. The relevant G.D. entry (nakal rapat) is on record and the same is marked as Ex.Ka.3. 4. Injured Ram Bali was medically examined at Sri Shiv Prasad Gupta Hospital, Varanasi by Dr. V.P. Jaiswal on 17.06.1998 at 09.55 P.M., who noted the following injuries on his person : 1. A contused swelling 7.0 cm. x 5.0 cm. on the left side head, kept under observation and x-ray advised (A.P. Lateral). 2. A abrasion 1.0 cm. x 0.25 cm. on the left knee joint. 5. In the opinion of doctor, injury was simple in nature, except injury no. 1. Caused by blunt object. Duration fresh. 6. After the death of injured Ram Bali, post mortem on the cadaver of deceased was conducted by Dr. R.K. Singh, who noted the following ante-mortem injuries on his person: 1. Abraded contusion 3 cm. x 2 cm. on left side of head 13 cm. above left ear. 2. Abrasion 1 cm. x ½ cm. on left side of forehead 3 cm. above left eyebrow, 3 cm. lateral to mid line. 7. On internal examination of skull, it was found that all bones on both sides, except the occipital bones of both sides, were broken. 8. In the opinion of the doctor, cause of death of deceased was coma as a result of head and brain injuries. 9. On information of death of Ram Bali being given, Sub-Inspector Arun Kumar Mishra of the police station concerned came to SSPG Hospital, Varanasi and conducted inquest on the person of the deceased. Inquest report (panchayatnama) was prepared, which is on record and marked as Ex.Ka.9. In the process, relevant papers viz. police station report, photo nash, challan nash, letter to C.M.O., etc. (Ex.Ka.7 to Ex.Ka.11) were also prepared. Inquest report (panchayatnama) was prepared, which is on record and marked as Ex.Ka.9. In the process, relevant papers viz. police station report, photo nash, challan nash, letter to C.M.O., etc. (Ex.Ka.7 to Ex.Ka.11) were also prepared. Thereafter, dead body of deceased Ram Bali was sent to SSPG Hospital for post mortem examination. 10. On the basis of the written report, case was registered and investigation whereof was entrusted to Bhawani Bhikh Pandey, Sub-Inspector, Police Station - Tarwa, District - Azamgarh, who recorded statements of various witnesses. He thereafter proceeded to the place of occurrence and prepared its site plan, which is on record and marked as Ex.Ka.12 and recorded statement of the accused. Due to transfer of Sub-Inspector Bhawani Bhikh Pandey, the investigation of the case was entrusted to Sub-Inspector J.N. Dube, who submitted charge sheet against the accused under Section 304 IPC. 11. Consequent thereupon, committal proceedings took place and the case was committed to the court of sessions. As a sequel to that, it was made over for trial and disposal to the court of II Additional Session Judge/Fast Track Court No. 3, Azamgarh. Appellant along with other co-accused Sati Ram and Poojan was heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charge against them under Section 304/34 IPC. Charge was read over and explained to the accused, who pleaded innocence and opted for trial. 12. The prosecution in order to substantiate charge against the accused examined as many as eight prosecution witnesses, out of whom, P.W.1 informant Shyam Dev and P.W.2 Parmila (informant's wife) were examined as witnesses of fact, whereas P.W.3 Constable Moharir Hari Das, P.W.4 Dr. R.K. Singh, P.W.5 Dr. V.P. Jaiswal, P.W.6 S.I. J.N. Dube, P.W.7 S.I. Arun Kumar Mishra (second investigating officer) and P.W.8 S.I. Bhawani Bhikh Pandey (first investigating officer) were examined as formal witnesses. 13. Except as above, no other testimony was adduced, therefore, after closure of prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C., wherein they pleaded innocence and claimed that they have been falsely implicated in this case due to enmity. 14. In defence, no testimony was adduced, either oral or documentary. 15. 13. Except as above, no other testimony was adduced, therefore, after closure of prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C., wherein they pleaded innocence and claimed that they have been falsely implicated in this case due to enmity. 14. In defence, no testimony was adduced, either oral or documentary. 15. The learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentence to seven years' rigorous imprisonment to the accused-appellant under Section 304 Part II IPC. Co-accused Sati Ram and Pujan were acquitted from charge of offence under Section 304/34 IPC by the trial court. 16. Feeling aggrieved by the order of learned Session Judge, the appellant has preferred the instant criminal appeal. 17. Heard Sri Ashok Kumar Singh, learned counsel for the appellant and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh. 18. Learned counsel for the appellant contended that first information report has been lodged after three days of the occurrence, for which no plausible explanation has been given by the prosecution. Role of causing injury by the appellant to the deceased is not specified in the FIR. There is material contradiction in the ocular testimony of witnesses of fact - informant Shyam Dev and his wife Parmila. No independent witness has been examined by the police. The prosecution has failed to prove guilt of the accused-appellant beyond reasonable doubt. 19. Apart from arguing on the merits of the case, learned counsel for the appellant further contended that at the time of the occurrence, appellant Shiv Bachan was aged about 20 years. The alleged incidence had taken place 20 years ago. Informant Shyam Dev, deceased Ram Bali and accused Sati Ram were members of the same family. If the court comes to the conclusion about guilt of appellant Shiv Bachan, then a lenient view should be taken and instead of sentencing him, he should be released on probation. 20. Learned A.G.A contended that there is no infirmity or illegality in the impugned order passed by the court below and as such, the appeal is liable to be dismissed. 21. P.W.1 informant Shyam Dev had admitted in his cross-examination that his father deceased Ram Bali and accused Sati Ram were real brothers. 20. Learned A.G.A contended that there is no infirmity or illegality in the impugned order passed by the court below and as such, the appeal is liable to be dismissed. 21. P.W.1 informant Shyam Dev had admitted in his cross-examination that his father deceased Ram Bali and accused Sati Ram were real brothers. He further admitted that his cousin accused Pujan also went with him and injured Ram Bali to SSPG Hospital, Varanasi after the incidence. This shows that at that time, relation of accused with informant was not so bitter. The incidence had taken place at 08.30 A.M. Informant Shyam Dev, accused Pujan and some other persons took the injured Ram Bali to SSPG Hospital, Varanasi immediately, where he was admitted and in the night intervening 17/18.06.1998 at 03.20 A.M., he breathed his last. After his last rites were performed, FIR was lodged by the informant. Therefore, it cannot be said that there is delay in lodging the FIR by the informant. It was the duty of the informant to first try to save the life of his father. The relation between informant Shyam Dev and the accused was cordial. Further, if deceased Ram Bali did not die, it was quite possible that informant Shyam Dev may not have lodged FIR. 22. P.W.1 informant Shyam Dev and P.W.2 Parmila deposed before court that on 17.06.1998 at about 08.30 A.M., Inarjiya, wife of accused Sati Ram was collecting cattle dung. On objection being made by deceased Ram Bali, accused Sati Ram, while abusing, exhorted to beat Ram Bali. Then accused-appellant Shiv Bachan assaulted Ram Bali with bamboo, due to which he sustained grievous injury and became unconscious. There is no material contradiction in the statement of P.W.1 Shyam Dev and P.W.2 Parmila Devi on this fact, due to which their testimony may be discarded. 23. In the first information report, it is mentioned that accused Sati Ram, Pujan and Shiv Bachan (appellant) had assaulted deceased Ram Bali with bamboo, due to which he sustained injury on his head, but in the first information report, it is not specifically narrated that accused-appellant Shiv Bachan had caused injury to deceased Ram Bali with bamboo. Further, deceased Ram Bali had sustained single injury on his head. 24. Further, deceased Ram Bali had sustained single injury on his head. 24. Here it must be noted that P.W.1 informant Shyam Dev and his wife Parmila had not narrated this fact for the first time before the court that accused-appellant Shiv Bachan assaulted deceased Ram Bali on his head with bamboo, but they have narrated this fact to the I.O. In their cross-examination, they deposed that they had stated to the I.O. that accused-appellant Shiv Bachan caused head injury to deceased Ram Bali. This fact was confirmed by P.W.8 Retd. S.I. Bhawani Bhikh Pandey who admitted that P.W.1 Shyam Dev and P.W.2 Parmila had stated during investigation that accused-appellant Shiv Bachan had caused head injury to deceased Ram Bali. P.W.1 informant Shyam Dev had put his thumb impression on the written information, which shows that he is an illiterate witness and he admitted in his cross-examination that accused Pujan went with him and his father injured Ram Bali to SSPG Hospital, Varanasi for his treatment. This shows that P.W.1 informant Shyam Dev is innocent and natural witness of this occurrence. He also admitted this fact that his cattle and cattle of accused were tied at the same place. The occurrence had taken place at their residence. Moreover, the incident has been admitted by the appellant in his statement under Section 313 Cr.P.C. 25. Co-accused Sati Ram and Pujan were acquitted by learned trial court; only on this basis accused-appellant Shiv Bachan cannot be acquitted. From the perusal of record, it is evident that occurrence had taken place suddenly without any pre-concert. Head injury was caused by accused-appellant Shiv Bachan to deceased Ram Bali. 26. For the aforesaid reason and after going through the record of the case and judgment passed by learned trial court, I am of the considered view that there is no infirmity in the well-reasoned order of conviction passed by learned trial court against the accused-appellant. 27. Head injury was caused by accused-appellant Shiv Bachan to deceased Ram Bali. 26. For the aforesaid reason and after going through the record of the case and judgment passed by learned trial court, I am of the considered view that there is no infirmity in the well-reasoned order of conviction passed by learned trial court against the accused-appellant. 27. As far as release of accused-appellant on probation is concerned, it is necessary to look into the statutory provision of Section 4 (1) of The Probation of Offenders Act, 1958, which is as follows : (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.... 28. The statement of accused-appellant Shiv Bachan under Section 313 Cr.P.C. was recorded on 25.10.2003 in which he stated his age about 25 years. Accordingly, on the date of occurrence, that is to say, 17.06.1998, his age would have been less than 21 years. P.W.1 informant Shyam Dev and his wife Parmila had put their thumb impression on their statement before court. Accused Sati Ram had also put his thumb impression on his statement under Section 313 Cr.P.C. which shows that informant Shyam Dev, deceased Ram Bali and the accused were poor villagers. They were descendants of the same ancestors and were members of the same family. They were neighbours also. Accused Pujan had himself gone with injured Ram Bali to SSPG Hospital, Varanasi for his treatment. This shows that even after the incident, their relation was cordial. 29. They were descendants of the same ancestors and were members of the same family. They were neighbours also. Accused Pujan had himself gone with injured Ram Bali to SSPG Hospital, Varanasi for his treatment. This shows that even after the incident, their relation was cordial. 29. From the perusal of the above provision, it is apparent that any person found guilty of having committed an offence not punishable with death or imprisonment for life, he may be released on probation. Punishment provided for offence punishable under Section 304 Part II of the Indian Penal Code is imprisonment of either description for a term which may stand to 10 years, or with fine, or with both. Therefore, a person found guilty of committing offence under Section 304 Part II IPC may be released on probation. 30. In Mohammad Alias Biliya v. State of Rajasthan (2000) 10 SCC 486 , Hon'ble Apex Court had directed to release the appellant, who was convicted for offence punishable under Section 304 Part II IPC, on probation. Considering the particular facts and circumstances of the case, it is expedient to release the accused-appellant on probation. 31. Accordingly, the appeal is allowed in part. Conviction of accused-appellant Shiv Bachan under Section 304 Part II IPC is hereby upheld, but his sentence is set aside. Instead of sentencing him at once to any punishment, he is released on probation of good conduct for a period of two years. Appellant is directed to furnish a personal bond and two reliable sureties each in the like amount, to the satisfaction of trial court, before the trial court within 30 days from receipt of certified copy of this order by the trial court with the condition that he shall appear and receive sentence when called by this Court before such period and in the meantime, to keep peace and be of good behaviour. 32. Appellant is further directed to deposit compensation of Rs. 20,000/- in the trial court within 30 days from receipt of certified copy of this order by the trial court. That compensation amount shall be paid to the legal heirs of deceased Ram Bali. 33. Office is directed to send a certified copy of this order to Sessions Judge, Azamgarh for its compliance. Let the lower court's record be remitted back to the court concerned.