S.C. Agarwal, J.
1. This appeal is directed against the judgment dated October 27, 1977 passed by the Sessions Judge, Bhilwara, in Sessions Case No. 107 of 1976. In the Sessions Case aforesaid, appellant Sakir Mohammed alias Sakir Hussain and one Fakir Mohammed were prosecuted. The appellant was charged with the offence Under Section 302, IPC and accused Fakir Mohammed was charged with the offence Under Section 302 read with Section 114, IPC. The learned Sessions Judge acquitted Fakir Mohammed of the charge levelled against him. So far as the appellant is concerned, the Sessions Judge convicted him of the offence Under Section 304 Part II of the Indian Penal Code and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default of payment of fine to further suffer rigorous imprisonment for a period of six months.
2. The case of the prosecution is that on September 6, 1976 Rafiq Mohammed deceased was sitting on a cart near the 'Paal' of a 'Bandh. An altercation took place between accused persons and deceased Rafiq Mohammed and appellant Sakir Mohammed threw a stone at Rafiq Momammed which hit him on the temple. Accused Fakir Mohammed was having a stick with him and he assaulted the deceased with the same. After Rafiq Mohammed was hit by the stone, he fell down and became unconscious. He regained consciousness after about 20 minutes and returned to his house. The injuries of Rafiq Mohammed were examined by Dr. Chiranjilal PW 4 Medical Officer Jahajpur on September 10, 1976 at 4 30 p.m. vide injury report Ex. P 2. According to the said report, there were two injuries on the parson of the deceased one was bruise 5 cm x. 1.6. cm regular margin on the left side of the face over the zygoma and the other was a bruise with swelling 4 cm x 3 cm, irregular in shape on the left cheek. Since Dr. Chiranjilal did not consider the said injuries to be serious and the general condition of the deceased was quite good, the deceased returned home. Subsequently, he became unconscious and was taken again to Dr. Chiranjilal at about 6 30 p.m. on September 10,1970. Since the condition of the deceased was serious, Dr. Chiranji Lal referred the case, to Sawai Man Singh, Hospital, Jaipur and while the deceased was being taken to Jaipur, died in the way. The first information with regard to the offence was lodged by Najir Mohammed PW 1, the father the deceased, at police station Jahajpur on September 10,1976 at 8 00 p m. Since the deceased was alive when the first information report was lodged, a case Under Section 307 was registered and the investigation was commenced. After the death of Rafiq Momammed, the case was altered to 302/34 of the Indian Penal Code. The autopsy on the dead body of deceased Rafiq Mohammed was conducted by Dr. Chiranji Lal vide post-mortem report Ex. P 3. In the post-mortem report, it was recorded that effusion of blood was present in the substance of the left temporalis muscle, there was committed fracture of the left temporal bone and the fracture line was irregular and was approximately 6 cms. in length, massive extra-dural collection of blood was present on left side of the head over the temporo-parietal region and the membrance were intact and the brain surface was congested. In the said post-mortem report, it was further recorded that the cause of death was gradual deepening coma due to compression of the brain tissue by haematoma underneath the temporo-parietal bones on the left side of the skull and that the hematoma was due to rupture of the middle meningeal artery on left side caused by fracture of the temporal bone The investigation was conducted by Chain Singh, SHO, Police Station Jahajpur (PW 5) who prepased the Panchnama Ex. P. 5 memo of site inspection Ex. P6, and site-plan Ex. P7. The appellant was arrested on September 11,1976 at 3.30 p.m. by memo of arrest Ex. P. 8 and Fakir Mohammed was also arrested on September 11,1976 at 3.30 p.m by memo of arrest Ex. P 9. After completing the investigations, the police filed charge-sheet against the accused persons in the court of Munsif and Judicial Magistrate, Jahajpur who committed the accused for trial to the court of Sessions and thereupon, charges under Sections 302 and 302/114 IPC were framed against the accused appellant and accused Fakir Mohammed. The accused persons pleaded not guilty and claimed to be tried.
3. The prosecution in support of its case, examined five witnesses. Nazir Mohammed PW 1 is the father of the deceased who had lodged the first information report Gafoor Khan PW 2 and Badar Khan PW 3 have been examined as eye-witness of the occurrence; Dr. Chiranji Lal PW 4 is the Medical Officer who had examined the injuries of the deceased and had also conducted the post-mortem examination of the deceased and had proved the injury report Ex P 2 and the post mortem report Ex. P. 3; and Shri Chain Singh PW 5 is the investigation officer. The appellant in his statement recorded Under Section 313 Cr P.C. denied the prosecution case and stated that the witnesses were deposing against him because his field and the field of Gafoor Khan were adjacent to each other and the cattle of Gafoor Khan had entered his fields to which he objected and, therefore, Gafoor Khan was against him. The accused persons also examined Dr. Raghu Raj Singh Choudhary DW 1 to show that injury No. 1 found on the person of the deceased could not have been caused by stone and further that the haematoma on the temporal region could not be caused by the said injury.
4. The Sessions Judge held that from the evidence of Gafoor Khan PW 2 and Badar Khan PW 3, it was established that the appellant threw a stone on the deceased as a result of which the decessed had sustained two injuries on his person and he died as a result of the injuries. The Sessions Judge further held that the testimony of Gafoor Khan PW 2 and Badarkhan PW 3 was corroborated by medical evidence of Dr. Chiranji Lal PW 4 who stated that both the injuries found on the person of the deceased could be caused by throwing a stone and one stone could have caused both the injuries. The Sessions Judge did not place reliance on the testimony of Dr. Raghu Raj Singh Choudihary DW 1 on the grounds that Dr. Choudhary had neither examined the injuries of the deceased nor had examined the dead body of the deceased and whatever he stated, was on the basis of the injury report Ex P 2 and the postmortem report Ex. P 3 prepared by Dr. Chiranjilal and further that Dr. Chiranjilal was not cross-examined on these matters. According to the Sessions Judge, a stone could have a regular edge and injury No. 1, which was regular in shape, could have been caused from the regular side of a stone. The Sessions Judge further held that alongwith zygoma and temporal bone are situated at different places but they are quite close to each other and, therefore, it could not be said that injury No. 1 could not have resulted in the internal injury of brain. The Sessions Judge was, however, of the view that in so far as accused Fakir Mohammed was concerned, it could not be established that he had instigated the appellant to throw the stone on the deceased or that he had inflicted a blow with the Mick on (he person of the deceased and all that was established was that he had abused the deceased. The Sessions Judge, therefore, acquitted Fakir Mohammed of the charge Under Section 302/114 of the Indian Penal Code. As regards the appellant, the Sessions Judge was of the view that the dispute had arisen on account of a quarrel over grazing of cattle and that it could not be said that the appellant had an intention to cause the death of the deceased or had an intention of inflicting such an injury as is likely to cause the death. According to the Sessions Judge, the appellant could only be held guilty for the offence punishable Under Section 304 Part II of the Indian Penal Code and, therefore, he convicted the appellant of the offence Under Section 304 Part II, IPC. Being dissatisfied with the aforesaid conviction and sentence imposed upon him by the Sessions Judge, the appellant has filed this appeal.
5. I have heard Shri Guru Prakash, learned Counsel for the appellant and Shri Niazuddin Khan, learned Public Prosecutor for the State.
6. The first contention urged by Shri Guru Prakash was that reliance could not be placed on the testimony of Gafoor Khan PW 2 and Badar Khan PW 3, the two eye-witnesses examined by the prosecution. In this regard, Shri Guru Prakash had submitted that the deceased did not name the appellant as the assailant to Dr. Chiranji Lal before examination of his injuries on September 10,1976 at 4 30 p.m. Shri Guru Prakash has further submitted that at the time, the deceased was in full senses and if the appelant was the person who had inflicted the injuries on his person with the stone, he would have certainly mentioned the name of the assailant, to Dr. Chiranji Lal but he did not do so. It is true that the deceased did not mention the name of the appellant as the person who had inflicted the injuries on his person when he went to meet Dr. Chiranji Lal on September 10,1976 at 4.30 p.m. and his injuries were examined by Dr. Chiranji Lal. But the aforesaid failure on the part of the deceased to name the appellant as the assailant before Dr. Chiranji Lal does not mean that the testimony of Shri Gafoorkhan PW 2 and Badar Khan PW 3 should not be accepted. Gafoor Khan PW 2 has deposed that on the date of the occurrence, he had met the appellant and Fakir Mohammed and all three of them were returning towards the village. In the way, the accused persons told him that they had a quarrel with the deceased and that he (the deceased) would be killed one day. Gafoor Khan has further stated that when they reached near the 'Paal' of the 'Bandh', they saw a bullock cart coming from the side of the town and the deceased was sitting inside the cart and Bahadur was driving the cart. When they reached near the cart, the deceased offered a 'Beeri' and he stopped to smoke a 'Beeri'. The accused persons told the deceased as to why he had raised a hue about the grazing of the cattle and, thereupon Rafiq told that he did not cause any loss to their cultivation and since they were causing loss, so he had to object. Fakir Mohammed had a stick with him and the appellant picked up a stone. Fakir Mohammed gave a blow with the stick on the right rib of the deceased and when the appellant picked up a stone, he took him away but the appellant threw the stone with force and it hit the deceased on the temple and thereafter, the deceased fell dawn and became unconscious. The deceased regained consciousness after 20 minutes and shortly thereafter, he left for the village on foot. According to Gaffor Khan, occurrence had taken place at about 10 or 11 a.m. uring the course of cross-examination, he stated that he did not go to the hospital along with the deceased. He has also stated that during the course of the day, every body in the village had come to know about this incident. He has stated that the stone was thrown by the appellant from a distance of four of five steps.
7. Badar Khan PW 3 was the driver of the bullockcart in which the deceased was sitting at the time of the incident. He has deposed that at the 'Paal' of the 'Bandh', he saw Gafoor as well as both the accused persons coming from the side of Nagola and they stopped when they reached near the cart. The accused persons abused the deceased and the appellant threw a stone which hit the left temple of the deceased. After being hit by the stone, the deceased became unconscious and he regained consciousness after 20 to 28 minutes Daring this period, the accused persons left the scene. After regaining consciousness, the deceaed left for his house. During the course of cross-examination, he has stated that the stone was thrown from a distanec of two to three steps.
8. I have carefully examined the evidence of Gafoor Khan PW 2 and Badar Khan PW 3. Nothing has been brought out during the course of their cross-examination which may throw doubt on their testimony so far as they have deposed that while the deceased was at the 'Paal' of the 'Bandh , the accused persons came there and after an exchange of abuses between the accused persons and the deceased, the appellant picked up a stone and threw the same towards the deceased and the said stone hit the deceased on the left temple and after being hit by the stone, the deceased fell down and became unconscious and regained consciousness after about 20 to 25 minutes after which, he went home. In my opinion, the aforesaid part of the testimony of the aforesaid witnesses inspires confidence and it should be accepted as true. The medical evidence also lends support to the testimony of Gafoor Khan PW 2, and Badar Khan PW 3 in as much as Dr. Chiranji Lal PW 4, who had prepared the injury report Ex. P 2 after examining the injuries of the deceased on September 10, 1976 at 4 30 p.m. and who had also prepared the postmortem report Ex. P 3 after post-mortem examination of the dead body of the deceased on September 1 ,1976, stated that both the injuries found on the person of the deceased could be caused by a stone and both the injuries could be caused by single stone-hit. In my opinion therefore, it must be held that the appellant had inflicted the injuries found on the person of the deceased by throwing a stone at the deceased and that death of the deceased was caused as a result of the said injuries.
9. Shri Guru Prakash has next submitted that even if it be held that it was the appellant who had inflicted the injuries found on the person of the deceased, the appellant cannot be held guilty of the offence Under Section 304 part II IPC in as much as on the evidence adduced by the prosecution, the appellant is said to have thrown only one stone at the deceased and it should not be expected that the appellant could know that the said stone would hit the deceased on his temple and, therefore, the appellant could not be attributed the knowledge that the injury that was being inflicted by him by throwing the stone on the person of the deceased could be such as was likely to cause death. According to Shri Guru Prakash, all that can be said to have been made out against the accused appellant is an off nce Under Section 3/5, IPC. find considerable force in the aforesaid submission of Shri Guru Prakash. The evidence of Gafoor Khan PW 2 and Badar Khan PW 3 is to the effect that the appellant had picked up a stone and had thrown it at the deceased and the said stone hit the deceased on his right temple. The particular stone, which was thrown by the appellant at the deceased, has not been recovered from the scene of occurrence and, therefore, it is not possible to know the size of the stone that was thrown by the appellant at the deceased. From the evidence of Gafoor Khan PW 2 it appears that the stone was thrown from a distance of about four to five steps from the deceased. In view of the distance from which the stone was thrown, cannot be said that at the time when the appellant threw the stone, he was aware that the stone would hit the deceased on the temple or any vital part of his body. In my opinion, therefore, on the basis that the appellant threw a stone at the deceased, it cannot be said that the appellant can be attributed the knowledge that the said stone, when it would hit the deceased, would cause such an injury as was likely to cause his death. In the circumstances, the conviction of the appellant for the offence Under Section 304 part II of the Indian Penal Code, cannot be sustained. The only offence for which the appellant can be held guilty is the offence for causing grievous hurt punishable Under Section 325 IPC.
10. Shri Guru Prakash has submitted that the age of the appellant at the time of the incident was 19 years and that it is a fit case, in which the appellant may be given the benefit of the provisions of Probation of Offenders Act as well as Section 360 of the Code of Criminal Procedure. With regard to the age of the appellant, I find that in the memo of arrest, the age of appellant is mentioned as 22 years. At the time when his statement was recorded by the trial Court, the appellant mentioned his age as 19 years but the trial Court, on its own estimate, noted the age of the appellant as 25 years. Since the appellant did not put his age in issue and did not adduce any evidence to show that he was below 21 years of, age on the date of incident, it is no possible to hold that he was below 21 years of age at the time of the incident. However, even if the appellant is held to be more than 21 years of age at the time of the incident, he is entitled to invoke protection of Section 360, Cr. P.C. in view of the fact that his conviction for the offence Under Section 304, IPC, is being set aside by his court and he is being held guilty of the offence punishable Under Section 325, IPC, which is punishable with imprisonment for a term extending upto seven years. It has been mentioned by Shri Guru Prakash that the appellant has not been previously convicted in any other case. Taking into consideration the facts and circumstances of the case, and the background in which the offence has taken place, and also the fact that the incident took place more than seven years back, 1 am of the opinion that it is a fit case in which the appellant should be released on probation Under Section 360, Cr. P.C.
11. In the result the appeal is partly allowed. The conviction and sentence imposed on the appellant for the offence Under Section 304 Part II of the Indian Penal Code are set aside. The appelant is convicted of the offence punishable Under Section 325, IPC. A sentence of rigorous imprisonment for two years and a fine of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for a period of six months is imposed on the appellant. It is further directed that the appellant shall not be required to undergo the aforesaid sentence imposed on him for the offence Under Section 325 IPC if he furnishes a personal bond in the sum of Rs. 5,000/-and a surety in the like amount to keep peace and to be of good behaviour for a period of two years. The aforesaid bond should be furnished to the satisfaction of the Sessions Judge, Bhilwara, within a period of one month. If the said bonds are not furnished within a period of one month or if the appellant commits a breach of the said bonds, he would be required to undergo the sentence that has been imposed upon him for the offence Under Section 325, IPC