J.C. Gupta, J.
1. Appellant named above have been convicted and sentenced to undergo life imprisonment Under Section 302/ 34 I.P.C., for three years R.I. and a fine of Rs. 500/- each Under Section 325/34 I.P.C. and to six months R.I. with fine of Rs. 100/- each Under Section 323/34 I.P.C. In default of payment of fine sentences were also imposed. The sentences are ordered to run concurrently. Smt. Kaushalya who was also tried along with the appellants has however been acquitted by the learned Sessions Judge by the same order dated 3-9-1981.
2. The prosecution story as revealed in the First Information Report and evidence on record, in short, is that of these appellants. Shyama and Kaloo are sons of appellant Sardari Lal. They are resident of village Matkhera, P.S. Bilaspur, district Rampur, In the same village resided Mahendra Pratap who died about 17-18 years ago leaving behind his wife Smt. Nand Rani P.W. 7, his daughter Aruna Kumari P.W. 2 and younger brother Girish Prasad, the deceased of this case. Wife of Girish Prasad had predeceased him and he had no issue. He thus started living with Smt. Nand Rani and her daughter Kumari Aruna.
3. Nand Rani had a piece of land in village Matkhera which accused Sardari Lal had taken in unlawful possession. She filed suit for eviction against him, which was decreed in her favour about 6-7 years ago. She succeeded in obtaining possession of the said land on the basis of the civil Court decree. The said piece of land was thereafter sold by her to one Sardar Gyan Singh. Accused Sardari Lal and his family members were thus nursing a grudge against Nand Rani, her daughter and Girish Prasad.
4. Prosecution story further runs that on 23-8-1980 at about 10.30 P.M. when Kumari Aruna, Smt. Nand Rani and deceased Girish Prasad after having their dinner were lying on cost in the courtyard in their house, they heard some noise coming from the side of the house of accused Sardari Lal. The Courtyard was having light of electric bulb. House of Sardari Lai was situated at a distance of about 50 paces from the house of Nand Rani, Sardari Lai came out of his house and started abusing deceased Girish Prasad. Smt. Nand Rani and Girish Prasad remonstrated him whereupon Sardari Lal extended threats and said that he would kill them. He then went into his house and reappeared with his sons Kaloo and Shyama appellants and wife Smt. Kaushalya (the acquitted accused). Sardari Lai and Kaloo were armed with ‘Ballam’ while Shyama was having a ‘danda’ in his hand. All the accused persons entered into Nand Rani’s house and started, beating Girish Prasad, Nand Rani and Kumari Aruna as a result of which they sustained injuries. Girish Prasad died an instantaneous death while Kumari Aruna received serious injuries on her person and Nand Rani simple injuries. On the alram raised by the victims, P.W. 8, Ram Charan and P;W. 9 Shiv Autar were attracted to the scene of occurrence. When pressure mounted from the witnesses the accused persons went away from the scene of occurrence.
5. After the incident Kumari Aruna P.W. 3 herself wrote down the Report Ex. Ka. 3 and lodged the same at police station. Bilaspur on the same light at 1.00 A.M. Constable clerk Vishnu Dutt Sharma;P.W. 10 prepared check F.I.R. Ex. Ka. 12 on the bar sis of written report of Km. Aruna and registered the case, against the appellants in the General Diary, whose copy has been proved as E. Ka. 13.
6. P.S.I. K, P. Singh was posted as officer-in-charge of police station Bilaspur. The instant case was registered in his presence, hence he took up investigation in his own hands and recorded the statement of Km. Aruna at the police station and then sent her for medical examination. Thereafter the investigating officer reached the place of occurrence, recorded the statement of Smt. Nand Rani and since she was having injuries, she was also sent for her medical examination under police escort. Inquest proceedings were got held through second officer Vindhyachal Singh P.W. 5. Necessary papers were prepared and dead body of Girish Prasad was sent to mortuary for post mortem examination.
7. The investigation officer deputed S.I. Harkesh Singh for the arrest: of the accused persons but they were not found in the village.I.O. then recorded the statement of Ram Gharan and Shiv Autar witnesses, made inspection of the site of incident and prepared site plan Ex.Ka. 14. He further noticed that house of the deceased had electric connection and an electric bulb was fitted in the courtyard which was found to be in working condition. The investigating officer also collected sample of blood-stained and plain earth. Pieces of ban (cord) of cot which were stained with blood were also taken into possession through Memo Ex. Ka. 15 and Ka. 16. Accused Sardari Lal and Smt. Kaushalya were then arrested and from the person of accused Sardari Lal blood-stained Kurta Ext. 5 was taken in possession in the presence of witnesses and its memo Ext. Ka. 17 was prepared. Similarly one Duptta Ext. 6, shirt Ext. 7 and Shalwar Ext. 8 which had stains of blood were taken into posses sion through Memo Ex. Ka. 18. In the evening accused Shyama was arrested. Kaloo accused was arrested on 28-8-1980 and on completion of investigation Charge sheet Ex. Ka. 19 was submitted against these accused persons.
8. Dr. R.S. Gangwar P.W. 1 who was posted as Medical Officer Incharge, Civil Hospital, Bilaspur examined Km. Aruna at 1.30 A.M. on 24-8-1980 and found following injuries on her person:
1. Abraded contusion 7 cm. x 2 cm. x back of left forearm in the middle.
9. In the opinion of doctor the said injury was caused by blunt object and was simple in nature, its duration was fresh. Injury report of Km. Aruna is Ex. Ka. 1.
10. Injuries of Smt. Nand Rani were examined by the same doctor at 3.10 A.M. on 24-8-1980 and following injuries were found :
1. Lacerated wound 5.5 cm x 0.5 cm. x bone deep on the right side of head, 12 cm above the right ear.
2. lacerated wound 6 cm. x 0.5 cm x bone deep of left side of head, 13 cm. above the left ear.
3. Abraded contusion 14 cm x 6 cm on front of left arm, 5 cm. below the left shoulder joint.
4. Contusion 15 cm x 7 cm on left arm outer side, 7 cm. above the left elbow joint.
5. Contusion 6 cm x 3 cm on outer side of left leg near the ankle joint.
6. Contusion 11 cm. x 4 cm. on the outer side of left thigh, 25 cm above the left knee joint.
7. Contusion 10 cm x 4 cm/. on right shoulder joint.
8. Contusion 9 cm. x 3 cm on back right side of lower side chest in the last rib.
9. Abraded contusion 8 cm x 4 cm on back of left side chest in the last rib.
11. Colour of all the injuries was fed and in the opinion of doctor they were caused by blunt object. Injuries Nos. 1, 2 and 5 were kept under observation and rest were found simple. Their duration was fresh. Injury report of Smt. Nand Rani has been proved Ex. Ka. 2.
12. Dr. R.S. Gangwar P.W. 1 in his statement recorded at the trial deposed that injuries of both above named injured persons could be caused on 23-8-1980 at 10.30 p.m.
13. Dr. J.G. Garg P.W. 3 was posted as Radiologist in District Hospital, Rampur. On a reference made by Dr. R.S. Gangwar, he took X-ray of skull and left knee of Smt. Nand Rani. No abnormality was seen in X-ray of skull but X-ray of left knee revealed a fracture of fibula bone. X-ray report has been’ proved as Ex. Ka. 4while X-ray plates have been proved as Ex. Ka. 5 and Ka. 6.
14. Autopsy on the dead body of Girish Prasad was conducted on 24-8-1980 at 12.30 P.M. by Dr. H.B. Bhatt P.W. 4. The deceased was aged about 50 years. Rigor mortis was present all over body and decomposition had set in. Following ante mortem injuries were found :
1. Incised wound 3 cm. x 0.5 cm. x bone deep on front of right side of fore-head, 4 cm. above the right eye brow.
2. Incised wound 2 cm. x 0.5 cm. x bone deep on front of head, 8 cm. above the root of nose.
3. Incised wound 1.5 cm. x 0.5 cm x scalp deep, on back of right side head, 8 cm above the right ear.
4. Incised wound 3 cm. x 0.5 cm. x muscle deep on right side of upper part of chest, Just below the lateral and clavicle right side.
5. Incised wound 4 cm. x 2 cm, x muscle deep on top and front of right shoulder.
6. Incised penetrating wound 4 cm. x 1 cm. x chest cavity deep on right scapular region.
7. Incised penetrating wound 7 cm. x 1 cm. x chest cavity deep on middle of back, about 6 cm. below the lower end of left scapula bone.
8. Incised penetrating wound 2 cm x 0.5 cm. x chest cavity deep on middle of back, 4 cm below injury No. 6.
15. In the internal examination pleura was found punctured under injury No. 7. Left lung was also punctured underneath the same injury. Stomach contained undigested food. In the opinion of the medical officer the cause of death was shock and hemorrhage resulting from injury to lung. Post mortem report of Glrish Prasad is Ex. Ka. 7.
16. At the trial prosecution, produced 11 witnesses, of whom Aruna Kumari P.W. 2, Nand Rani P.W. 7, Ram Charan P.W. 8 and Shiv Autar P.W. 9 are witnesses of fact.
17. Accused persons in their statements denied the prosecution allegations. Shyama accused in his statement admitted that Girish Prasad used to live in the same house along with Smt. Nand Rani and Km. Aruna. Inter-se relationship of accused persons was also admitted by him. He also admitted that about 6-7 years prior to the date of murder, Smt. Nand Rani had succeeded in the litigation against him in respect of a piece of land on which Sardari Lai had trespassed and that Nand. Rani obtained its possession in execution of her decree and then sold the same to Sardar Gyan Singh. However, he denied that he was inimical to deceased and his family members on account of the above litigation. He further stated that he has been falsely implicated due to enmity. According to him on hearing some noise during night hours he and his Mother Kaushalya came out of their house and when they intervened to save Girish Prasad and others they were also assaulted by unknown thieves.
18. Accused Sardari Lal had also admitted all the facts which were admitted by Accused Shyama with regard to the litigation. According to him he was sleeping inside his house after taking liquor and at about 10 p.m. he was awakened by his wife Kaushalya and son Shyama. Kaushalya was bleeding in. her hand. Kaloo accused denied his presence.
19. Accused persons examined Dr, N.K. Tandon D.W. 1 who proved Injury reports of Smt. Kaushalya and Shyama accused as Exs. Kha 1 and K’ha 2. Injuries of Smt. Kaushalya were examined on 24-8-1980 at 12.30 p.m. who was accompanied by Constable Hetram Singh. On. the person of Kaushalya Devi only one injury was found which is reproduced below :
1. Incised wound 4 cm. x 1 ½ cm. on left side of upper arm, K6 cm. from left elbow joint.
In the opinion of doctor injury was simple caused by sharp weapon and its duration was about, half day old.
20. Injuries of accused Shyama alias Shyam Sunder were however examined on 25-8-1980 at 10.45 a.m. by Dr, N.K. Tandon and following injuries were found :
1. Contusion 6 cm. x 1 ½ cm. on the right side of lower arm, 3 cm. from right wrist joint.
2. Abrasion 2½ cm. x 1 ½ cm. on the right side of shoulder joint.
21. Both the injuries were simple and caused by hard and blunt object. Their duration was about one day.
22. The defence also produced D.W. 2 Mool Chand alias Billu who stated that in the night of 23-8-1980 at about .11.30 p.m.. he heard a series of sounds and shots outside his house and when he came out, he noticed that it was all dark and about 5-6 miscreants were assaulting some persons who could be Nand Rani and Girish Prasad. On arrival of villagers those miscreants ran away. They had covered their faces with clothes hence they could not be identified, Shyama and his mother Kaushalya were also present at that place and had injuries on their person. Smt. Kaushalya told him that when they intervened to save Girish Prasad and others, they were also assaulted by the miscreants.
23. On appraisal of evidence the learned Session Judge has found that the accused persons had motive to assault the deceased and his family members, that the incident occurred inside the house of Smt. Nand Rani at about 10-10.30 p.m. wherein Girish Prasad, Nand Rani and Km. Aruna were assaulted; that Girish Prasad died on the spot; that it were the appellants Sardari Lal and his two sons who had assaulted the decased, Smt. Nand Rani and Km. Aruna and thus they committed murder of Girish Prasad in furtherence of their common intention; that electric light was available at the scence of occurrence in which the appellants were identified by the witnesses; and that it has not been established that injuries on defence side were received by accused Shyama and his mother Smt. Kaushalya in the course of the same incident and that they were most likely manufactured. With these findings the learned Session Judge had convicted and sentenced the appellants under various counts. Co-accused Smt. Kaushlya has however been given benefit of doubt with the finding that it was not fully established beyond doubt that she actively participated in the incident or that she shared common intention with other co-accused persons.
24. We have heard Sri J.N. Chaturvedi appearing for the appellants and the learned A.G.A- for the State.
25. At the out set we may mention that as per the report of C.J.M. concerned Sardari Lai has died during the pendency of this appeal. His appeal, therefore, has abated.
26. The factum of death of Girish Prasad has neither been disputed nor challenged before us which is also otherwise fully established from the statement of Dr. H.B. Bhatt P.W. 4 who had conducted autopsy on the dead body of the deceased Girish Prasad.
27. Learned counsel for the appellants however submitted that the two independent witnesses P.W. 8 Ram Charan and P.W. 9 Shiv Autar turned hostile and did not support the prosecution story as deposed by Aruna Kumari P.W. 2 and Smt. Nand Rani P.W. 7 and the circumstances indicate that most likely the deceased and other persons were assaulted by some unknown miscreants in darkness and the appellants were nominated by Km. Aruna P.W. 2 on account of past inimical relations between her family and the accused persons. It was further submitted by the appellants counsel that in any view of the matter appellant Shyama is alleged to have been armed with lathi and the deceased did not sustain any injury of lathi and since only injury No. 7 was fatal he cannot be said to be sharing common intention of other accused persons to commit the murder of the deceased and at any rate, this appellant was a “child” within the meaning of Children Act, hence Under Section 18 of the said Act he cannot be sent to jail to serve out his sentence of imprisonment. As regards Kaloo appellent who is alleged to be carrying a ‘Ballam’ like deceased appellant Sardari Lal it was urged that he too cannot be held guilty for the offence punishable Under Section 302 read with Section 34 I.P.C. as it is not proved that the fatal injury, being No. 7, was inflicted by this appellant and at best he could be held guilty only Under Section 326 read with Section 34 of the Indian Penal Code.
28. In the present case out of four witnesses of fact examined at the trial only P.W. 2 Km. Aruna and Smt. Nand Rani P.W. 7 supported the prosecution case while P.W. 8 Ram Charan and P.W. 9 Shiv Autar turned hostile and did not support the version deposed by Km. Aruna and Smt. Nand Rani. The fact that Km. Aruna, and Smt. Nand Rarii had received injuries in the same incident in which deceased Girish Prasad lost his life has also not been disputed or challenged before us by the learned counsel for the appellants. It is also proved from the statements of Dr. R.S. Gangwar P.W. 1 who had medically examined the aforesaid witnesses on the same night at 1 a.m. and 3.10 a.m. respectively. Dr. Gangwar categorically stated that at the time of medical examination their injuries were fresh and could be suffered by them on the same night at about 10-10.30 p.m. The presence of Smt. Nand Rani P.W. 7 and Km. Aruna P.W. 2 inside their house at the time of incident was most natural and probable. Their presence even otherwise also cannot be doubted as they had themselves received injuries during the course of incident. Merely because they happen to be close relative of the deceased, Girish Prasad, their evidence cannot be viewed with suspicion nor can the same be thrown over board on this ground alone. Time and again the Apex Court has been saying that mere fact of relationship of the witnesses with the deceased far from being the foundation of criticism of the evidence, is often a sure guarantee of the truth. The only requirement is that their evidence has to be examined with care and caution and if after such examination no grave infirmity or weakness are found to discredit them, conviction can be safely based upon their evidence. In the present case both P.W. 2 Km. Aruna and P.W. 7 Smt. Nand Rani were injured during the course of incident and as their injuries would suggest, the assailants must have come in close contact with them. Thus, they could have easily seen the faces of the persons assaulting them and there would not have been any difficulty to identify asailants who were no strangers to them as the appellants belonged to their own village. The dead body of Girish Prasad was found by the investigating officer in the house of Nand Rani. Blood was also found on the cot as well as underneath it. The house of accused persons was situated at a distance of 50 paces from the house of Smt. Nand Rani. The defence case that some unknown miscreants had assaulted the deceased and the two ladies in the Rasta as deposed by D.W. 2 Billu alias Mool Chand does not find support at all from the attending circumstances appearing in the case. Neither any blood was found at the place of occurrence suggested by the defence nor dead body of Girish Prasad was found there. It is nobody’s case that dead body of Girish Prasad was ever removed from the place where he was assaulted.
29. The learned Sessions Judge has rightly found that it is not established that injuries of Kaushalya and appellant Shyama were caused during the course of same incident in which persons on prosecution side were assaulted. The injuries of both Kaushalya and Shyama were not of such a nature which the prosecution was bound to explain, Stage for explaining injuries of accused persons arise only when it is proved that the accused persons also sustained injuries in the same transaction in which persons from the prosecution side were injured. It is also well settled that prosecution is not always under an obligation to explain the situation in every case whenever defence brings on record that injuries on defence side were also sustained. If the injuries were superficial and were of such a nature which could be self explainable as self-inflicted or self-suffered the prosecution case cannot be doubted merely for the reason that it failed to explain such superficial and maneuvered injuries. In the present case the evidence of the two injured witnesses is not at all weakened or repudiated for the reason simply that they have denied the fact of Smt. Kaushalya and Shyama receiving injuries during the course of the same incident.
30. So far as presence of light is concerned, right from the F.I.R. it is stated that in the courtyard light of electric bulb was there. Both the witnesses have also confirmed this source of light. The Investigating Officer at the time of inspection verified the above fact and found that an electric bulb was fitted in the courtyard and the same was in working condition. Even D.W. 2 Mool Chand alias Billu has admitted in his statement before the Court that house of Nand Rani has electric connection. However he tried to add that on the night of occurrence no power was there in the village at 10 p.m. and the power was resumed at about 12-12.30 in the night. No such suggestion was given to any witness examined on behalf of the prosecution. At no point of time before the examination of D.W. 2 Mool Charid the defence has come up with the plea of absence of electric light, not even in their statements Under Section 313 Cr. P.C. We have carefully gone through the statement of D.W. 2 Mool Chand and to us he appears to be a got up witness. He admitted that he did not tell to the investigation officer that Sardari Lal and others have been wrongly nominated. He further admitted that till his statement was recorded in court he did not tell to any persons that Sardari Lal and others have been falsely implicated nor he had disclosed that he was present at the time of occurrence. He frankly admitted that he was stating this fact for the first time in court.
31. As far as motive is concerned, the learned counsel for the appellants did not make any submission and in our opinion rightly so. The prosecution came with the motive that prior to the present occurrence a litigation ensued between Smt. Nand Rani and Sardari Lal over a piece of land as after the death of husband of Nand Rani, Sardari Lal had trespassed over the same. Smt. Nand Rani succeeded in that suit and regained possession from Sardari Lal in execution of that decree. All these facts were also admitted to accused Sardari Lal and Shyama in their statements recorded Under Section 313 Cr. P.C. It, therefore, cannot be said that accused persons had no motive to assault the deceased and his other family members. The evidence of first informant P.W. 2 Km. Aruna receives further corroboration from the first Information Report which was promptly lodged by her on the same night at police station Bilaspur at 1.00 A.M. after covering a distance of about 13 Kms. The promptness of the First Information Report thus rules out any possibility of manipulation or confabulation. The F.I.R. gives out a vivid account of the incident, the names of all the appellants and specified the weapons which each of them carried. The role played by each accused was also Distinctly stated. The source of light was also mentioned. Nothing is brought on record by the defence on the basis of which authenticity of First Information Report could be doubted, the F.I.R. thus, in this case has corroborative value.
32. On analysis of evidence on record and consideration of factual situation and circumstances, we agree with the learned Sessions Judge that the prosecution case has been proved beyond any reasonable doubt so far as participation of the present appellants in this incident is concerned.
33. Now it is to be found out what offence/offences were committed by the appellants. It was submitted by learned counsel for the appellants that only one injury described as injury No. 7 in the post-mortem report, proved fatal and other injuries were simple in nature and in the absence of proof regarding the author of the said fatal injury the appellants could only be held guilty Under Section 326 I.P.C. read with Section 34 of the Indian Penal Code. According to him from the circumstances appearing in the case presumption of common intention to commit the murder of Girish Prasad cannot be inferred. It was further submitted that at any rate so far as appellant Shyama, who was armed with lathi, is concerned, it cannot be said with certainty that he shared common intention of other accused as he is not alleged to have inflicted any injury on the deceased.
34. The legal position with regard to common intention is well settled. It is not possible for the prosecution in each case to prove the ingredients of common intention by direct evidence and common intention generally has to be inferred from the facts and circumstances appearing in the case and no hard and fast rule can be laid down in this regard. The facts leading to inference of common intention, however, have to be established beyond doubt like any other fact. Presumption of common intention is subject to the same restrictions as other presumptions and the Court before drawing any presumption of commission of an offence of murder with the aid of Section 34 I.P.C. against any person must satisfy itself that the said person had planned it with one or more person. The conclusion of the Court should not be based on bare conjecture, surmise or suspicion. Inference of common intention should never be drawn unless it is a necessary corollary deducible from the totality of circumstances appearing in the case. No such inference can be had from an isolated individual act. The offence committed must be a consequence of such an intention. The Apex Court in Gurdatta Mai’s case reported in AIR 1965 SC 257 observed thus:
Thus necessary conditions for the application of Section 34 of the Code are common intention to commit an offence and participation by the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established all the accused would be liable for the said offence.
35. Where conviction of an accused for the offence of murder is sought with the help of Section 34 of the Indian Penal Code, it has to be established, if not by direct evidence, then from the facts and circumstances appearing in the case that the murder was committed in furtherance of that common intention. It ought to be shared by all the participant accused conjointly.
36. The Privy Council in Baredra Kumar Ghose AIR 1925 P.C. 1 laid down that the expression ‘a criminal act’ occurring in Section 34 of the Indian Penal Code means that unity of criminal behaviour which results in something, for which an individual would be punishable, if it were done by himself alone i.e. a criminal offence. In other words ‘common intention’ is an intention to commit the crime actually committed and each accused person can be convicted of that crime if he has participated in furtherance of that common intention. It connotes prior meeting of minds for accomplishing some criminal act. Common intention and similar intention are not synonyms and should not be confused to be given the same meaning, they are two different concepts of law. Before an inference of common intention can be reached in a given case, the incriminating facts from which such an inference is to be drawn should be first established; they should really warrant that more than one accused persons have acted in furtherance of common intention of all. These facts must be wholly incompatible with any contrary inference; and incapable of being explained on any other reasonable hypothesis.
37. In the backdrop of this legal position, we now proceed to examine the facts in the present case. Girish Prasad, deceased of the present case, sustained only incised and penetrating injuries. He suffered in all eight injuries of whom three were on head, two on upper part of chest and top of right shoulder and remaining three were chest cavity deep wounds, two were on back and one on right scapular region. The internal examination revealed that injury No. 7 had punctured pleura and left lung and according to the opinion of doctor cause of death was injury No. 7.
38. Shyama appellant was armed with a danda and he inflicted injuries on the two injured women namely Nand Rani and Km. Aruna. X-ray examination of Smt. Nand Rani revealed fracture of fibula bone. This appellant is not alleged to have caused any injury on Girish Prasad, Similarly the other two appellants have not been assigned any participation in the assault on injured witnesses. It is in the evidence that Sardari Lal and his sons were inimical to Nand Rani, Girish Prasad and Km. Aruna on account of a previous litigation which Sardari Lal had lost to Smt. Nand Rani. On the date of occurrence Sardari Lal had come in front of the house of Nand Rani and. started abusing Girish Prasad whereupon he was remonstrated by Nand Rani and Girish Prasad. Extending threats Sardari Lal then went back to his house and re-appeared on the scene with his two sons Kaloo and Shyama appellants and wife Smt. Kaushalya. He and his son Kaloo had brought ‘spear” with them while appellant Shyama carried a “danda”. They all made entry into the house of Nand Rani and started assaulting Girish Prasad, Nand Rani and Km. Aruna. Girish Prasad met an instantaneous death and after committing the crime all the accused persons left the scene of occurrence together carrying with them their respective weapons with which assault was made. In these circumstances and having regard to the nature and seat of injuries of Girish Prasad, it can be reasonably inferred that the appellants had come to the house of Nand Rani with a predetermined mind and a pre-plan. Two of them caused serious injuries on Girish Prasad with deadly weapons like ‘spears’. The mere fact that appellant Shyama had not made any assault on the deceased will be of no consequence as he himself assisted other accused persons in carrying out theoir plan by making assault, on the witnesses who were present with the deceased in the same house. He in fact held the witnesses back from saving the deceased. The appellants, therefore, have rightly been held guilty Under Section 302 read with 34 I.P.C. and 323/ 34 1.P.C. for causing death of Girish Prasad, grievous hurt to Smt. Nand Rani and simple hurt to Km. Aruna respectively.
39. With regard to appellant Shyama, it was submitted by the appellants counsel that he is entitled to get benefit of the provisions of the U.P. Children Act inasmuch as he was a ‘Child’ within the meaning of Section 2(4) of the said Act. In support of his submission learned counsel placed reliance upon the decisions of the Apex Court in the cases of Jayendra v. State of U.P. 1981 SCC (Cri) 809 : (AIR 1982 SC 685); Bhoop Ram v. State of U.P. 1989 All Cri C 285 : (1990 All LJ 65) and Bhola Bhagat v. State of Bihar AIR 1998 SC 236.
40. In Bhoop Ram’s case (supra) on consideration of material placed on record the Apex Court found that accused had not completed the age of 16 years on the date of commission of the offence and held that the accused, therefore, should have been dealt with under the provisions of the U.P. Children Act by the Session Judge instead of being sentenced to imprisonment. The Apex Court quashed the sentence of imprisonment imposed on the accused as he could not be sent to an approved school under the provisions of U.P. Children Act for being detained there because he had already crossed the age of 18 years. Similar course of action was adopted in the case of Jogendra v. State,of U.P. AIR 1982 SC 685. Relying upon the decision in State of Haryana v. Balwant Singh 1993 Supp. (1) SCC 409, it was argued by the learned A.G.A. that since in the present case the plea that appellant Shyama Was a ‘Child’ on the date of occurrence had not been raised before the trial Court, the said plea should not be permitted to be raised here in this appeal for the first time. In the case of Bhola Bhagat (AIR 1998 SC 236) (Supra) the Apex Court while distinguishing the decision of Balwant Singh’s case observed that the earlier judgment of Apex Court in Gopi Nath Ghose v. State of West Bengal AIR 1984 SC 237 and Bhoop Ram v. State of U.P, (supra) were not noticed or considered in Balwant Singh’s case and the view expressed in Gopi Nath Ghosh and Bhoop Ram’s case has received support from the three Bench decisions in the case of Pradeep Kumar v. State of U.P. AIR 1994 SC 104 : (1993 All LJ 1362) that such an accused cannot be denied the benefit of the provisions of Children Act on the basis of observations made in Balwant Singh’s case, if he is otherwise entitled.
41. In the present case, appellant Shyama in his statement recorded under Section 313 Cr. P.C. on 24-8-1981 stated his age as 14 years. The incident was of 23-8-1980. The learned Session Judge estimated the age of accused as more than 16 years by making the note “appears to be more than 16 years.” Statement of accused Under Section 313 Cr. P.C. was recorded after more than seven months of the incident. None of the prosecution witnesses deposed about the age of this accused. In the charge sheet Ex. Ka. 19 which was submitted by the investigating officer against all the accused persons on 31-8-1980, the age of appellant Shyama was recorded as 13-14 years. Appellant Shyama as early as on 27-8-1980 had pleaded that he was a minor of about 12 years iof age in his application for bail moved before C.J.M., Rampur. The same statement was made in the bail application on his behalf before the Sessions Judge arid he was allowed bail by the learned Sessions Judge by his order dated 30-8-1980 with the observation that Shyama was a young boy of 12 years of age. Therefore, there is no doubt left in our mind that the appellant Shyama was a ‘Child’ within the meaning of Section 2(4) of the Children Act, being below 16 years of age on the date when the present incident had occurred and accordingly he is entitled to get the benefit of the provisions of the said Act. Thus, he could (not sic) be sentenced for imprisonment for any term and since undisputedly he has now crossed the age of 18 years, there is no question also of his being sent to an approved school under the provisions of the said Act for being detained there. Accordingly while sustaining his conviction under the aforesaid counts, we quash the sentences of imprisonment imposed by the learned Sessions Judge upon Shyama appellant arid direct that he shall not be taken into custody for serving out the sentences as awarded by the trial Court.
42. In the result, the appeal filed by appellant Sardari Lal is dismissed as abated on account: of his having died during the pendency of his appeal.
43. Appeal of appellant Kaloo is dismissed and the order of conviction and sentence passed by learned Sessions Judge in respect of him is up-held. Appellant Kaloo is on bail. His bail is cancelled and he shall be taken into custody forthwith to serve out the sentence as imposed by the learned Sessions Judge in his order dated 3-9-1981.
44. Appeal of appellant Shyama is partly allowed. While sustaining his conviction under the abovesaid counts as recorded by the learned Sessions Judge, we quash the sentences of imprisonment imposed upon him. Bail of this appellant was cancelled during pendency of appeal in this Court and therefore, if the appellant is in jail, he shall be released forthwith unless wanted in any other case and, if not, he need not surrender. His bail bonds shall stand cancelled and sureties discharged.
* Against Judgment and order of Arjan Dev, Sessions Judge, Rampur, D/- 3-9-1981.