R. Sachar, J.
1. This is an appeal against the judgment of the learned Sessions Judge, Jaipur City dated 27-4-71 by which he convicted the appellants under Section 302 read with Section 34 IPC and sentenced both of them to rigorous imprisonment for life and also a fine of Rs. 500/- each, and in default of payment of fine to further undergo rigorous imprisonment for six months.
2. The prosecution story in brief is that on 15-1-71 the deceased Kaus har Hussain was flying kites on the roof of Atish Market, Jaipur. His brother Mohammed Hussain PW 3 and Riyat Ali PW 7 were with him. It was further alleged that the accused came to the roof and they were also snatching the kites. They wanted Kaushar Hussain to go away but Kaushar refused and thereupon the appellants are said to have given beating and they also struck head of Kaushar with the result that the deceased fell down and became Unconscious. He was thereafter taken to the hospital where he died next day. The First Information Report was lodged on 16-1-1971 at 11.05 a.m. by the father of the deceased. He has appeared as PW. 2. His evidence is that the was informed by Mohammed Hussain that the appellants Kukku and Nazir had beaten Kaushar Hussain and he was inguinal unconscious state. He deposed that he took him to 'Safakhana' but was referred to hospital. But before that he went to Kotwali where a report was taken down by the Thanedar.
3. PW 3 is the younger brother of the deceased. He was 7 years of age at the time he deposed in the court. He has stated that the deceased had gone on the roof of Atish Market for the purpose of flying kites and he was, snatching the kites. Some time thereafter Kukku i.e. Virender Kumar had asked the deceased to go away but he refused. Then Nazir started beating Kaushar Hussain with slaps and fists. Thereafter Kukkoo also caught hold of the deceased be neck and struck his head against the wall resulting in injury of linear fractures of right temporal and parietal bones of the skull of the deceased. Thereafter again the deceased was beaten by both the appellants. To similar effect is the evidence of PW 7 Riyat Ali. Both the witnesses were not given oath because the learned Sessions Judge found that they did not know the implication of oath Mr. Chatterjee, learned Counsel for the appellants contended that the evidence of these witnesses being that of child witnesses could not be accepted unless it was commemorated by some other independent witnesses. He referred to us Bharvad Bhikha Valu and Ors. v. The State of Gujarat AIR 1971 SC 1964. This authority only lays down that it is desirable to seek corroboration of the evidence of a witness in view of his tender age. There is no rule of law that the evidence of a child witness cannot be accepted without corroboration though it may be prudent to obtain corroboration of the said evidence. Each case necessarily has to be decided on its own facts. The presence of these two witnesses is natural as according to them the had also gone for the purpose of flying kites and it cannot be said that this is not a proper explanation. The cross-examination of these two witnesses has not been able to shake them away from the main thrust of the story that the incident took place at the place and at the time and in the manner deposed to by these prosecution witnesses. Mr. Chatterjee has referred us to some variations in the statements made by these two witnesses before the Police. Mohd. Hussain PW 3 has stated in the court that Kukkoo had caught hold of the deceased by his neck aid had struck his head against the wall but this part was not mentioned in the police statement. The whole trend of the cross-examination has not been able to shake the evidence of these two witnesses that the beating was given to the deceased by the two appellants We have no reason not to accept the evidence of these witnesses who are natural witnesses and we must therefore hold that beating was given by the accused to the deceased. Their evidence also finds support from the medical evidence which bears only the version given by the prosecution witnesses.
4. P.W. 4 is the doctor, who has examined the deceased on 15-1-71. He found no external injury on the body of the deceased but he advised for X-ray of skull bones and the injury report is Ex. P/2, which was prepared by the doctor. It shows that there is no external mark of the injury on the body of deceased. The deceased died on 16-1-1971 at 10.10 a.m. and post-mortem was performed on him. On opening the body this witness found that the help tissue contused in the right temporal parietal region. There were linear fractures of right temper all and parietal bonus of skull. There was sub-dural haemorrhage present in the right parietal region. In the opinion of the doctor the cause of death was due to the head injury, which resulted in sub dural haemorrhage.
5. The next contention of Mr. Chatterjee was that common intention could not be attributed to the accused because the whole fight was sudden and even if the appellants were to be found guilty, an inference of guilt against the appellants at the most can be drawn under Section 323 IPC. We cannot agree. It is no doubt true that the death of the deceased was the direct result of the incident in which the accused gave beating to the deceased. As held in Kripal v. State of U.P. 1954 Cr. L.J. 1757 the common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous consensus of their minds to bring about a particular result can be said to have been developed and intended by all of them, is a question that has to be determined on the facts ' In such an eventuality an inference that both the accused had common intention to cause grievous hurt to the deceased is the only inference possible. The evidence by the two prosecution witnesses clearly shows that on the refusal by the deceased to leave the roof both the accused had started beating him. The evidence pf these witnesses also is that in the process shoe was thrust in the deceased's mouth. Both the witnesses have also said that both the accused came and asked the deceased to leave the roof but he refused and on this the appellants started beating him. Mr. Chattergee referred us to Mahbub Shah v. Emperor AIR (42) 1945 Privy Council-page 118 to stress that though intention may be similar it is not necessarily common intention. That case is, however, clearly distinguishable. In that case ore Gulam Quasim shouted and that two accused Wali Shah and Mahbub Shagh had rushed to his rescue. Wali Shah had fired gun resulting in the death of one Allah Dad. Mahbub Shah, the appellant before the Privy Coucil, had also fired and ;aused injuries to Hamidullah Khan. The High Court applied Section 34 IPC. But their Lordships of the Privy Council held that the common intention of both the accused Wali Shah and Mahbub Shah could only be to rescue Kuasim Shah but that it could not be said that the common intention was to murder the deceased, and there was thus no question to hold both of them to have common intention to murder the deceased more so when it was known that the shot that killed the deceased was by Wali Shah. In the present case when the deceased refused to leave the roof both the accused beat him jointly, and continued to do so. Their intention to give beating to the deceased follows directly from this action of theirs.
6. The next question is whether that common intention was only to give simple hurt or to give grievous injuries. From the evidence disclosed we see that the appellants were not satisfied by merely giving the deceased one or two blows but they went on giving blows after blows and also struck the. deceased's head against the wall. Considering fact that the deceased was a child aged about 13 years and the accused were at least 4 to 5 years elder than him, the intention that inevitably must be attributed to them was the intention to give not apply simple but grievous injuries. The sub-dural haemorrhage which was caused due to the head injury resulted in the death must lead to the conclusion that the appellants had committed the offence under Section 325 IPC. The learned court has, however, come to the conclusion that the appellants were guilty under Section 302 IPC on the ground that the intention has to be inferred from whit happened and that the intention may not be in active consciousness, but it is there in the sub-conscious, all the time. We feel that this effort to analyse the sub-conscious to find out intention though understandable in the clinic of a psyco-analyst is an exercise not permitted in a court of law. We feel that the learned trial court was in error in attributing the intention to the accused to commit murder and that there was no intention to cause death is clear from the evidence on record that not weapon was used by the appellants against the deceased. We cannot find any intention or even knowledge to the accused that their act was likely to cause the death of the deceased. The conviction under Section 302 IPC cannot, therefore, be sustained & it is altered to Section 325 IPC. An effort was made be Mr. Chatterjee that the conviction should not be under Section 325 IPC, but it must be under Section 323 IPC. He relied upon 1970 SCC Voll II 532. In that case the deceased was is a drunk condition and was asked to go away but the deceased refused on which he was pushed by the accused and fell down and died and it was found that sub-dural hemorrhage had occurred. Their Lordships observed that it was very seldom that such a mere push could cause such an injury and death and thus came to the conclusion that the offence was punishable under Section 323 IPC. That case is clearly distinguishable from the present case. We would therefore allow the appeal to the extent that the convictions of the appellants are altered from Section 302 IPC to Section 325 read with Section 34 IPC.
7. The next question is of sentence. The appellants were released on bail by this Court by its order dated 5-5-71 and they have been out overseen. We also find that the age of the accused Nazir Khan given on 28-4-71 in his statement under Section 342 Cr.P.C. is mentioned as 14-15 years but the court noted it by the appearance to be about 19 years Similarly the age of Virender (Kukkoo) was given about 19 years but the court by appearance noted the same to be about 21 years. Section 4 of the Probation of Offenders Act provides that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life the Court may release him on probation of good conduct and Section 6 of the Act provides that if any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life the court shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the charade; of the offender it would not be desirable to deal with him under Section 3 or Section 4 or if the Court passes' any sentence of imprisonment on the offenders, it shall record its reasons for doing so. The offence is of the year 1971, and the provisions of Probation of Offenders Act have now further been liberalised by the Code of Criminal Procedure, 1971. Though of course, Code of 1973 is not applicable to the present case but it gives guidance as to what is the intention of Legislature in the matter of releasing the offenders on probation. Section 360 of the Cr.P.C., 1973 provides that when any person not under 21 Years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years of less, or when any person under 21 years of age or any woman is convicted of an offence not purchase able with death or imprisonment for life, and no previous conviction is proved against the offender the court may instead of sentencing him at one 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 as the court may direct and in the meantime to keep the peace and be of good behaviour, Section 361 of the Cr.P.C. provides chit where in any case the court could hive dealt with an accused person under Section 360 Cr.P.C. but has not done so, it shall record in its judgment the special reasons for not having done so. In the present case as the accused Nazir was admittedly below 21 years of age, he is entitled to the benefit of Section 6 of the Probation of Offenders Act. We see no reason why similar benefit should not be available to the other co-accused Virender, as his age is at border line.
8. We would, therefore, allow the appeal to the extent that the conviction of the appellants under Section 302 read with Section 34 I.P.C. is altered to that under Section 325 read with Section 34 I.P.C. We also feel that the appellants who are on bail should not be sentenced to any punishment but be dealt with under the Probation of Offenders Act. We would therefore direct that the appellants instead be released on probation on their entering each into a bond in the sum of Rs. 2000/-(Rs. two thousand) with one surety in the like amount to the satisfaction of the Sessions Judge, Jaipur City to keep peace and be of good behaviour for a period of two ears and to appear and receive sentence when ever they are called upon during this period. One month's time is granted to furnish the bonds with sureties as directed above. The appeal is disposed of accordingly.