Padmanabhan Nair, J.

The State/complainant in Sessions Case 80/1996 on the file of the Sessions Court, Kollam is the appellant in this Appeal. The respondent was charge sheeted in Crime No.313/1995 of Kottiyam Police Station alleging that he committed an offence punishable under Sec. 302 of Indian Penal Code.

2. The prosecution case was that at about 8.20 a.m. on 21-11-1995 the respondent committed the murder of one Ramanan with the intention and knowledge that his act was likely to cause the death of Remanan. It was alleged that the respondent stabbed Remanan with a knife on the left side of his back and when Remanan turned round, the respondent again stabbed him on the right side of his chest. The victim succumbed to the injuries.

3. P.W.2 (H. Rajan) gave Ext.P1 F.I. statement before P.W.8, (S.S. Firoz) the Sub Inspector of Police who recorded the same and registered Ext.P1(a) First Information Report. The subsequent investigation was conducted by P.W.9, (K.A. John) the Circle Inspector of Police. After the investigation was over, final report was laid before the Judl. First Class Magistrate-II, Kollam. The learned Magistrate committed the case to the court of Sessions. When the accused appeared before the learned Sessions Judge, charge under Sec. 302 was framed against him after hearing both sides. He pleaded not guilty to the offence alleged against him.

4. On the side of the prosecution 10 witnesses were examined as P.Ws 1 to 10. Exts. P1 to P12 were proved and marked. M.O.s 1 to 9 identified. P.Ws 1 to 3 are the eye witnesses. P.W.4 prepared Ext. P2 plan. He proved the same. P.W.5 took the injured to the hospital in his autorikshaw. P.W.6, the doctor examined Remanan and issued Ext.P3 wound certificate. P.W.7 conducted autopsy on the dead body of Remanan and issued Ext.P5 post-mortem examination certificate. P.W.8 registered Ext.P1 as F.I.R P.W.9 prepared Ext.P7 inquest. He conducted part of investigation also.

5. After the prosecution evidence was over, the respondent was questioned under Sec.313 (1) (b) Cr.P.C. He denied all the incriminating circumstances brought against him. Since no grounds were made out to acquit the accused under Sec. 232 Cr.P.C. he was called upon to enter on his defence. No defence evidence was adduced. Exts. D1 to D3 were proved and marked. The learned Sessions Judge on appreciation of the evidence found that the respondent caused the death of Remanan at atbout 8.20 a.m. on 21-11-1995 but he was not guilty of the offence under Sec. 302 and acquitted him of that offence. The respondent was found guilty of a lesser offence punishable under Sec. 304 Part II of Indian Penal Code. The accused was aged 18 on the date of commission of offence and aged 20 at the time of trial. The learned Sessions Judge invoked the provisions of Sec. 4 of the Probation of Offenders Act, 1958, released the respondent on probation of good conduct for a period of three years on executing a bond for Rs.10,000/- with two solvent sureties to the like sum on each surety being a close relative of the respondent and also a stipulation made that the respondent shall appear and receive sentence as and when called for during the said period of three years. It was also ordered that respondent shall be under the supervision of the District Probation Officer, Kollam. The respondent was also directed to pay an amount of Rs.25,000/- by way of compensation to the legal heirs of deceased Remanan. The respondent did not file any appeal challenging the conviction imposed on him by the learned Sessions Judge.

6. The State had filed this Appeal challenging the adequacy of the sentence alone. When the matter came up for hearing before the learned Single Judge, the learned Public Prosecutor raised two contentions:-

i) The invocation of the provisions under Sec. 4 of the Probation of Offenders Act was a misuse of that provision.

ii) If the evidence on record is properly appreciated what is proved is an offence under Sec.302 and not an offen