ORDER :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-

"It is, therefore, prayed that this appeal may kindly be accepted, the conviction of the appellants be set aside and they be acquitted."

3. The matter pertains to an incident that occurred in the year 1990 and the present appeal has been pending since 1992.

4. Vide impugned judgment dated 31.10.1992 the learned Additional Sessions Judge, Churu in Sessions Case No.78/92 (20/91) convicted the appellants as under :-

Appellant No. 1 Subhash convicted for the offence under Section 304 Part-II IPC and sentenced him to undergo seven years R.I., along with a fine of Rs. 200/-default in payment of which he was to further undergo 2 months' R.I.

Appellants No.2 to 9 convicted for the offence under Section 304 Part-II readwith Section 149 of IPC and sentenced them to undergo seven years R.I., along with a fine of Rs. 200/-default in payment of which they were to further undergo 2 months' R.I.

Appellants no.1 to 9 convicted for the offence under Section 148 IPC and sentenced them to undergo one years' R.I., along with a fine of Rs. 60/-default in payment of which they were to further undergo 07 days' R.I..

Appellant No.3, 4, 6, 7, 8 & 9 convicted for the offence under Section 323 of IPC and sentenced them to a fine of Rs.100/-default in payment of which they were to further undergo 15 days' ' R.I.

4. Learned counsel for the appellants has shown from the record that apparently at the time of the incident, though there was a dispute between the parties, but there was no intention to cause death to the old lady, who was struck by lathi on head, which caused her death. It is also contended that since the intention was not there that is why the conviction has happened under Section 304 part-II.

5. Learned counsel for the appellants further submits that the appellant no.1 was a minor but the theory of minor was disregarded by learned trial court. It is also contended that that main allegation was upon Subhash and Pratap, out of which, Pratap has already expired.

6. Learned counsel for the appellants further submits that apart from Pratap, Ram Kumar, Balveer and Rohitash have also expired. It is also contended that learned trial court could not prove the offence beyond reasonable doubt and in fact has rendered the judgment on probabilities.

7. Learned counsel for the appellants also submits that looking into the age of the appellant no.1 and also the fact that he has already undergone a sentence of two years and 10 months, thus, the appeal may be allowed while giving the benefit of Probation of Offenders Act to the surviving appellant and the sentence awarded to them may be substituted with the period of sentence already undergone by them.

8. Learned counsel for the accused-appellants submits that the accused-appellant do not have any criminal antecedents to his discredit.

9. Learned counsel for the accused-appellant further submits that the sentence awarded to the accused-appellant-Subhash suspended by this Hon’ble Court vide the order dated 10.02.1994 passed in S.B. Criminal Misc. Second Bail Application for Suspension of Sentence No.40/1993 and thus, his on bail.

10. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’).

“4. Power of court to release certain offenders on probation of good conduct.—

(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 ch