JUDGMENT K.S. Rakhra, J.
1. This is an appeal under Section 374(2) Cr.P.C. against the judgment and order dated 15.6.1983 passed by the Sessions Judge, Aligarh in Session Trial No. 94 of 1982 State v. Mangalsen and Ors. whereby the appellants have been convicted under Section 148 IPC and sentenced to three years' rigorous imprisonment and under Section 302/149 IPC and sentenced to life imprisonment.
2. Out of five appellants one Mangalsen alias Manga has expired during the pendency of appeal. Therefore, his appeal has abated vide order dated 21.11.2007.Out of remaining appellants, Om Prakash alias O.P. and Munna are sons of Mangalsen while Chandrapal and Murari Lal are sons of Kishan Lal.
The incident relates to murder of Mohan Lal son of Netrapal who was pulled down from a Lehra (Tanga) and was done to death on 31.12.1981 at 10 a.m. near village Naya Gaon of police station Sasani of district Aligarh. The prosecution claims that there was old enmity between Netrapal and the appellants.
3. One Raj Bahadur who was murdered about two years ago was brother of appellants Chandrapal and Murari Lal. The informant Netrapal P.W. 2 his son Mohan Lal (deceased) brother Babu Lal and his son Gandhi Prasad were charged for said murder and their trial was pending.
4. Earlier Babu Lal aforesaid had instituted a title suit with regard to some land which he claimed to have obtained through a "will" of his 'khandani' brother Kishan Lal. The said suit was against Raj Bahadur and Nanga who were claiming title to the disputed land through a sale deed executed in their favour by Ram Pyari sister of Kishan Lal. Nanga and appellant Mangalsen alias Manga are real brothers being sons of Than Singh but lateron Mangalsen alias Manga was adopted by Raghupati as his son about 35 years ago.
Mohan Lal is said to have been killed by the present appellants on account of the aforesaid enmity. The informant Netrapal P.W. 2 has described the appellants to be of one party.
5. The FIR of the incident was lodged by Netrapal on 31.12.1981 at 11.15 a.m. According to him he along with Hakim Singh and deceased Mohan Lal were going to Sasani on Tonga of Anoop Singh. Raghunath P.W. 3 who is cousin of the deceased was also following the Tonga on bicycle. They had started from their village Utara at about 9.30 a.m. and when the Tonga reached near Naya Gaon covering distance of 1.5 miles the five appellants came out from a hut situated by the side of the passage. Out of them Mangalsen was armed with country made pistol, Chandrapal with a gun, Om Prakash and Murari Lal with Gandasa and Munna was armed with Farsa. The appellants stopped the Tonga and pulled down Mohan Lal from it and opened attack on him with their weapons. The victim tried to escape but did not succeed. The appellants dragged him into a pit by the side of passage and killed him. After the commission of crime they ran away towards east. The first informant Netrapal then went near the pit and found that his son was lying dead. This incident was witnessed by the informant Netrapal, Raghunath. Hakim Singh and Tonga owner Anoop Singh P.W. 4.
6. On the oral report being lodged by Netrapal, Head constable Shiv Narain Singh P.W. 1 registered it as crime No. 382/81 under Section 147, 148 and 302/149 IPC. Sri Gopal Narain Singh, Inspector Incharge of police station Sasani was present at the police station when the FIR was registered. He took up the investigation forthwith and recorded statements of the informant Netrapal and also that of Head constable who had registered the crime. He then proceeded to the place of occurrence in the company of S.I. D.P. Sirohi and found the dead body of Mohan Lal lying in the pit. Inquest was held and the dead body after due formalities and preparation of necessary documents was despatched for autopsy through constables Harvir Singh P.W. 7 and another. From the place of occurrence, the Investigating officer collected sample of bloodstained and plain earth, a pair of shoes of the deceased and a pair of socks found on the feet of the deceased and necessary memos were prepared. At the place of occurrence he also found an empty cartridge which he took in to his possession and prepared necessary memo. Site plan of the place of occurrence was also prepared by him and on the same day he also recorded the statement of Anoop Singh P.W. 4 and Raghunath P.W. 3. After completion of investigation he submitted charge sheet against all the five appellants.
7. The autopsy of the dead body was performed by Dr. S.R.P. Mishra P.W. 5 on 1.1.1982 at 11.30 a.m. According to the doctor, following ante mortem injuries were found on the dead body:
1. An incised wound on left side scalp parietal region 5¼" x 1" x bone deep.
2. An incised wound on left side occipital scalp 3" x ½" x bone deep.
3. An incised wound on left mastoid region 1" x ½ "x ¼".
4. An incised wound on occipital scalp 2 ½" x ½" bone deep.
5. An incised wound on left mandible and neck left lateral side 5" x 2 ½" x bone deep and vessels deep, third and fourth cervical vertebrae on deft side cut.
6. An incised wound 1" x ½" x vessels deep left side neck.
7. An incised wound on left side neck ½" x 2/10 "x muscle deep
8. An incised wound on left side neck ½" x 2/10" x vessels deep
9. An incised wound on left side neck 1" x 1/10 " x muscle deep
10. An incised wound on left side neck 1" x 1/10" x muscle deep
11. An incised wound on left side neck 1/2" x 1/10" x muscle deep
12. An incised wound on left side neck 1" x 1/10" x vessels deep
13. An incised wound in front of neck 1" x ½" x trachea deep
14. An incised wound in zygomatic region 3" x ½" x bone deep
15. An incised wound in right supra clavicullar region ½" x 1/10" x muscle deep.
16. An incised wound on right thinner thenar eminace hand 1" x 2/10" x muscle deep.
17. An incised wound on right hypothenar eminance hand 1" x 1/10" muscle deep
18. An incised wound on right back of fore arm 3.25" x 1" x bone deep
19. An incised wound on left upper arm lateral side 3" x ½" x ½"
20. An incised wound on left lateral upper arm 3" x ¼ " x bone deep
21. An incised wound on left forearm dorsum 5 ½ "x 3 ½" x bone deep
22. An incised wound on left dorsum hand 6" x 5 ½" x bone deep, carpals and meta carpals bones are cut
23. There are six gun shot wounds of entry on left back of scapular region each measuring 2/10" x 2/10" x bone deep. There is a fracture of scapular bone and communicating to left chest cavity, margins everted, no blackening ortatooing
24. Gun shot wounds of exit left side front of chest below left nipple margins everted 3/10" x 3/10" x communicating to left cavity. There is a fracture of fifth rib.
25. Gun shot wound of exit left third and fourth entry central space 3/10" x 3/10" x chest cavity deep margins everted, third and fourth ribs are fractured.
26. Gun shot wounds of entry left second entry costal space 3/10" x 3/10" x cavity deep, margins everted.
8. The doctor recovered two big pellets from the chest cavity of the deceased. The left lung of the deceased was lacerated and a pellet was also recovered from there. In the stomach, semi digested food was found by him. In the opinion of the doctor, Mohan Lal had died on account of shock and haemorrhage resulting from ante mortem injuries and the death had occurred about a day prior to the post mortem examination.
9. In order to prove its allegation the prosecution has examined eight witnesses in all in the trial court. No oral evidence was adduced in defence. First set of prosecution witness was that of P.W. 2 Netrapal, P.W. 3 R.P. Pathak and P.W. 4 Anoop Singh. All of them claimed to have witnessed the occurrence and have established beyond doubt that the incident took place on 31.12.1981 at about 10 a.m. when the deceased was going on a Tanga of Anoop Singh. The Tanga was stopped and Mohan Lal was pulled down from it and was attacked with fire arm as well as other weapons. Netrapal is the father of the deceased and has named all the five appellants attributing specific weapons to each of them and has stated that Mohan Lal was killed by them. He claims that he was also on the same Tonga with the deceased at the time of incident. He also deposed about previous enmity and inter-se relationship and connection of the appellants.
10. As per statement of Netrapal, Anoop Singh Tongawala, P.W. 4 belonged to Mominabad which was only half kilometer away from village Utara. He was known to him (Tongawala) since last four months when he started operating the Tonga. He also stated that for last ten years, the deceased was mostly living at his uncle's house at village Pratap near Hathras and looked after his agriculture. The said uncle (brother of Netrapal) had sent the deceased to the informant two days ago to remind him about the tubewell bill which was falling due. According to him payment towards bill, if made within time, was accepted at Sasani and after the expiry of due date one had to go to Hathras for making payment of the bill. Witness Netrapal stated that on the fateful day he was going to Sasani by Tanga to pay the bill and the deceased also boarded the same Tonga with a view to go back to village Pratap near Hathras. Hakim Singh was incidentally also on the Tanga as a passenger.
11. P.W. 3 Raghunath, the informant Netrapal stated that he is son of his brother in law (Sala) and had casually come to Utara a day before, in order to meet them. His village was 8 kilometers away. On the fateful day he was just following the Tonga on his own bicycle.
12. Netrapal has further stated that Sasani was about 4 kilometers from the place of occurrence. The dead body was despatched for autopsy at a bout 2 p.m. From the place of occurrence upto Sasani it was sent on another Tanga and reached there in one hour. From there it was sent to Aligarh where it reached by sun set. He had accompanied the dead body throughout.
Netrapal also states that the deceased had taken meals at his house at abouit 8 a.m. before leaving for Sasani on the Tanga.
13. P.W. 3 Raghunath was residing in village Mahoria at the. relevant time. This place is about 8 kilometers from village Utara. According to him, on the alleged date, time and place, he was following the Tonga at a distance of about 10 paces on his bicycle. As soon as the Tonga moved ahead of Naya Gaon the appellants made their appearance from a hut. He has described all the appellants by name connecting them with specific weapons which each of them was carrying. According to him, after pulling down Mohan Lal from the Tonga, all the appellants attacked him with their respective weapons. Appellant Chandra Pal kept this witness away by pointing his gun on him. He is a witness who keeps visiting the first informant of and on, on account of his relationship. He makes similar visits to other relations also. According to him he had come to the house of Netrapal on 30.12.1981 and on the next day this incident took place and it was witnessed by him. The informant Netrapal had used his cycle when he went from the place of occurrence to the police station to lodge the report.
14. Anoop Singh P.W. 4 is the Tonga owner. Narrating the incident he gave a statement to the effect that there were only two passengers on his Tonga at the time of incident. On the basis of this statement, the defence claims that presence of Netrapal P.W. 2 at the place of occurrence is doubtful. About the incident the Tonga owner has stated that the Tonga was stopped by two persons near village Naya Gaon and three of their companion also came out from the hut and joined them. They opened assault on the deceased with their respective weapons. He denied the prosecution suggestion that there were three passengers on his Tonga at the time of incident.
15. Rest of the witnesses examined by the prosecution in this case are P.W. 1 Shiv Narain Singh, Head constable who had registered the case and prepared chik FIR, Dr. S.R.P. Mishra P.W. 5 who conducted post mortem examination, D.P. Sirohi P.W. 6 who had held inquest, constable Harvir Singh P.W. 7 who had carried the dead body to the mortuary and S.I. Gopal Narain Singh P.W. 8 who is the Investigating officer of this case.
Relying upon the evidence, the trial court held the appellants guilty and convicted them as stated earlier.
16. We have heard Sri P.N. Mishra, Senior Advocate assisted by Sri Apul Mishra for appellant Nos. 2 and 3, Sri Dharmendra Singhal for appellant Chandra Pal and Murari Lal and also Sri Hemendra Kumar, learned AGA appearing on behalf of the State.
17. The argument of learned Counsel for the appellants is that Netrapal P.W. 2 and R.P. Pathak P.W. 3 had not witnessed the occurrence and Anoop Singh P.W. 4 who had seen the occurrence has not named the appellants as malefactors nor he stated any thing about the presence of Netrapal P.W. 2 and R.P. Pathak P.W. 3 at the time of occurrence. According to them, the FIR was also ante timed and the medical evidence is inconsistent with ocular evidence and lastly it has been argued that the appellants Munna and Om Prakash were less than 16 years of age on the date of alleged incident and therefore they should not be sent to jail under law.
18. Learned AGA on the other hand pointed out that it is a broad day light murder witnessed by Netrapal P.W. 2, R.P. Pathak P.W. 3 and Anoop Singh P.W. 4. There was sufficient motive for the commission of murder. The FIR was promptly lodged and the appellants were named in it.
It was contended that the trial court had rightly convicted the appellants.
19. We have carefully examined the evidence on record in the light of arguments raised by both the sides.
It is true that Netrapal P.W. 2 and Raghunath Prasad Pathak P.W. 3 are related to the deceased and are interested witnesses. Their testimony however cannot be rejected only on account of being interested witnesses. In view of relationship with the deceased at most it would be required to examine their deposition more critically and to place reliance on it only if their presence on the spot appears to be probable and established and their statements inspire confidence.
20. It has come in the statement of Netrapal that his son Mohan Lal used to live mostly at his uncle's house in village Pratap Gaon near Hathras. This uncle has agricultural field there and the deceased Mohan Lal used to take care of them for last ten years by living there. Mohan Lal had come to village Utara on Tuesday whereas the present incident took place two days after i.e. on Thursday. The witness has stated that his brother had sent Mohan Lal from Pratap Gaon to remind him that electric bill of tubewell had become due to be paid. He has further stated that the payment if made within time could be accepted at Sasani office of the electric supply company and if the last date of payment expired one had to go to Hathras to deposit the payment of bill.
21. With regard to deceased Mohan Lai, P.W. 2 Netra Pal has stated that the only purpose of his coming to Utara was to remind him about payment of electricity bill. The deceased was going back to Hathras and with that thing in view he was going to Sasani on Tonga with his father.
The explanation given by Netrapal P.W. 2 with regard to presence of the deceased and presence of this witness on Tonga at the place of occurrence is therefore wholly reliable.
22. With regard to presence of R.P. Pathak P.W. 3 the statement of Netrapal is that on account of his relationship the witness had come to Utara on Wednesday just to meet them. He had reached Utara at 4 or 5 p.m. A day before the incident. R.P. Pathak P.W. 3 who was resident of Mahoria a village situated at a distance of 8 kilometers from Utara has also confirmed this fact that out of relationship he had come to Utatra to meet the first informant and his family members on 30.12.1981 and reached there at about 5 p.m.
23. The presence of R.P. Pathak P.W. 3 at Utara at the relevant date is thus very probable. When the prosecution witness claims that he was also following the Tonga on a cycle, this statement also appears to be quite probable. We are therefore of the opinion that the testimony of Netrapal and R.P. Pathak can not be discarded on the ground of their being chance witnesses.
24. The circumstances on the other hand confirm that these witnesses were there when the incident took place. It is significant to note that the incident took place on 31.12.1981 at 10 a.m. which has also been confirmed by Anoop Singh P.W. 4 the Tonga owner. The police station was four kilometers away and the first informant had gone to police station on cycle with R.P. Pathak to lodge the report. At the police station an oral report was lodged on the basis of which chik FIR Ex.ka-1 was prepared by H.C. Shiv Narain Singh P.W. 1 and an entry was made in the G.D. of police station at serial No. 29. This witness also stated that at 11.30 a.m. vide GD serial No. 22 special report of the crime was sent to the authorities. This fact has not been disputed by the defence. Ex.ka-4 is the copy of inquest report which refers to the fact that FIR was lodged at the police station at 11.30 a.m. and the inquest proceedings were commenced on the same day at 12.45 p.m. The inquest report enumerates the list of documents which were sent along with inquest report to the doctor conducting autopsy. In the list of documents so enclosed a copy of chik is also mentioned.
25. Harvir Singh P.W. 7 is one of those constables to whom the dead body along with relevant papers were handed over at the place of occurrence to be delivered at district head quarter Aligarh for the purpose of autopsy. No suggestion was given to this witness that chik report was ante timed and a copy of it was not handed over to him along with other papers when the dead body was handed over to him. There is therefore no doubt about the fact that the FIR was lodged on 31.12.1981 at 11.15 a.m. The presence of Netrapal at the police station at 11.15 a.m. with all the details of incident is itself a proof of fact that he was a witness to the occurrence. It can not be imagined that he had come to know of this incident in village Utara from where he had gone to the place of occurrence and after finding his son killed, he would concoct a story so promptly and cite false witness therein and yet reach police station at 11.15 a.m. to make a report. The very fact that description of the incident given in the FIR is wholly inconsonance with the deposition made in the court also shows that he was speaking the truth and that R.P. Pathak P.W. 3 had also witnessed the occurrence.
26. It is true that there was another passenger Hakim Singh going on the same Tanga but with regard to this witness Netra Pal has clearly stated that he has been won over and has been pressurised by the accused persons not to depose against them and therefore he has refused to appear before the court to support the prosecution story.
27. On behalf of appellants it was contended that if Anoop Singh P.W. 4 the Tongawala could name Mohan Lal who was the victim why he did not name his father Netrapal as a witness of the occurrence. It is to be mentioned here that according to Anoop Singh there were only two passengers on the Tanga at the time of incident. The argument of learned Counsel for the appellants was that the other persons besides the deceased might have been Hakim Singh whom the prosecution had withheld. After considering this submission we are of the opinion that presence of Netrapal at the time of incident has been established from the evidence already discussed. In view of presence of Netrapal and R.P. Pathak having been established we are not inclined to attach any importance to the fact that Anoop Singh P.W. 4 had mentioned about two passengers on the Tonga whereas according to the prosecution there were three persons namely Mohan Lai, his father Netrapal and Hakim Singh.
28. Learned Counsel for the appellants has argued that presence of Netrapal and R.P. Pathak should be doubted because they made no effort to save or comfort the victim and no bloodstains were found on their clothes or hands. In this regard there is statement of R.P. Pathak that after the incident this witness as well as Netrapal had touched the body of victim and their hands as well as clothes got bloodstained. However, he added that he does not recollect whether they had shown their bloodstained hands or clothes to any police officer or not. The police had arrived on the spot after about half an hour of the lodging of the FIR. In these circumstances it can not be said with certainty that these two witnesses Netrapal and R.P. Pathak had not made any effort to touch the body of the deceased or had not received any bloodstains on their hands or clothes.
29. It was next argued that FIR was ante timed because copy of FIR was issued to the first informant in the evening as stated by him. We are of the view that only because copy was issued in the evening it can not be said that FIR was not registered at 11.15 a.m. All other circumstances which have been discussed earlier go to establish that FIR was registered at 11.15 a.m.
30. It was next argued that the prosecution has failed to fix the identity of Netrapal as one of the passengers of the Tanga by getting him identified from Tangawala Annop Singh. We are of the view that once the presence of Netrapal on the scene of occurrence is established from other facts and circumstances, the identification from Tangawala was not necessary.
31. It is significant to note that Investigating officer Gopal Narain Singh had recorded the statement of Netrapal on 31.12.1981 at the police station itself. On his arrival at the place of occurrence, he also found R.P. Pathak and Anoop Singh present there, and he recorded their statements under Section 161 Cr.P.C. on the same day. It has come in the evidence that police had arrived at the place of occurrence within half an hour and inquest was commenced at 12.45 p.m. The presence of R.P. Pathak on the spot when the Investigating Officer came also goes to show that he was a witness of occurrence otherwise his presence was not probable because he was living at a distance of 8 kilometers and was not such a person whom the information about the crime should have necessarily been passed without loss of time.
32. Referring to the autopsy report the argument of learned Counsel for the appellants was that it is inconsistent with the description of incident given by the so called eye witnesses. The submission of learned Counsel was that two gun shots were fired and there is only one injury showing wound of entry of six pellets with three exit wounds. It was argued that if two shots were fired there should have been two separate gun shot wounds. In this regard the evidence shows that only one shot struck the victim and second shot did not.
33. It was next argued that as per eye witnesses the victim was dragged from Tonga up to the pit which was 13 paces away and there are no dragging marks. Further it was argued that the victim was allegedly assaulted immediately after pulling down from Tonga and there should have been trail of blood from Tonga up to pit.
34. In this regard it has to be kept in mind that an unexpected situation was created by the accused persons who were five in number. They pulled down the victim from Tonga for opening an attack on him. They were armed with country made pistol, gun, Farsa and Gandasa. Out of panic Netrapal took to his heel and ran up to 100-150 paces back towards his village before he turned back. Similarly, R.P. Pathak has stated that he was shown a gun and threatened not to interfere in the matter. In such a situation of panic and terror it was not expected from the witnesses to notice minute details of the assault and some contradictions here and there in such cases are quite natural. There were five accused who had pulled down the victim from Tonga and the pit where he was left dead was only 13 paces away from the place where the Tonga stopped. In such cases it is not necessary that if the culprits dragged the victim his body must graze against the ground so as to suffer abrasion or contusion. R.P. Pathak P.W. 3 has stated that when the victim received fire arm injuries he was at a distance of about 12 paces towards west from Tonga. We are of the opinion that in these circumstances if no trail of blood was found between Tonga and the pit where the victim was left dead no adverse inference can be drawn. In fact R.P. Pathak has said that when the victim received fire arm injury, he had already been thrown in the pit by the culprits.
35. In view of the discussions made above, we are of the opinion that ocular version of the incident given by Netrapal, R.P. Pathak and Anoop Singh can not be discarded on the ground that there were no abrasion or contusion on the body of the deceased or that there is no evidence that trail of blood from Tonga to the place where the victim was thrown dead in a pit. The prosecution story and the evidence adduced by them appear to be wholly reliable. The stomach contents in the body of the deceased were also inconformity with the prosecution story that the victim had taken meal at 8 a.m. In our opinion, the appellants were rightly held guilty and convicted by the trial court.
36. Sri P.N. Mishra, learned senior counsel for the appellants further submitted that Om Prakash alias O.P. son of Mangalsen was less than 16 years of age on the date of incident and therefore he ought to have been given benefit of U.P. Children Act.
37. The provisions of U.P. Children Act were applicable in the district Aligarh on the date of commission of crime as well as on the date of decision of the trial court which is 15.6.1983. The definition of "child" given in Section 2(4) of the Children Act provides that a person under the age of 16 years is a child. Under Section 27 of the Act no court could sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine. There is however a proviso which says that if child who is of 12 years of age or more is so unruly or of so depraved character that he is not fit to be sent to an approved school and that none of the methods in which his case could be legally dealt with was suitable, the court could commit him to prison. In the case before us there is no material on record nor there is any contention on behalf of the State that case of Om Prakash alias O.P. appellant No. 2 falls within the scope of aforesaid proviso. We have therefore to examine the claim of this appellant with regard to the aforesaid provision of Children Act.
38. In the case of Rajender Chandra v. State of Chhattishgarh 2002 SCC (Crl) 333 the Apex Court while considering the claim of the appellant that he was of 16 years of age held that the court should not adopt a hyper technical view in such cases where two views are possible. In border line case the court should lean in favour of holding the accused to be a juvenile. That was the case where on account of doubt being raised by the trial court about the age of the accused who was claiming to be 16 years he was subjected to ossification test and the opinion of the doctor was that the accused was about 16 years of age. The Sessions Judge instead of giving benefit of age to the accused declined the same observing that there could be variation of 2-3 years in determination of age on the basis of ossification test. This conclusion of the trial court was disapproved and the court held that where two views are possible benefit should go to the accused.
39. In the case of Jayendra v. State of U.P. 1981 SCC 809 the accused claiming benefit of Children Act was subjected to medical examination and on the medical report his age came to be about 16 years and four months. The accused had given his statement that he was 15 years of age on the date of offence. The Apex Court accepted the statement of the accused and observed that according to Section 2(4) of U.P. Children Act the accused was child hence under Section 27 of the Act he could not be sentenced to imprisonment for life. The accused in that case was 23 years of age on the date of statement and therefore the Supreme Court did not find it fit to send him to an approved school. He was accordingly set at liberty forthwith although his conviction was maintained.
40. Relying upon the case of Jayendra's case this Court in Jagvir v. State of U.P. 1992 (29) ACC 658 gave benefit to an accused who had given his age in the statement under Section 313 Cr.P.C. as 16 years. The Sessions Judge made an endorsement that the accused was 22-23 years of age. However, while delivering Judgment the Sessions Judge had mentioned that the said accused was 16 to 17 years old.
41. In the case before us, the appellant Om Prakash had given his age in his statement under Section 313 Cr.P.C. as 16 years. There was an endorsement made by the trial Judge that on appearance this accused appears to be 18 years of age. This statement was recorded on 6.6.1983. We thus find that if the statement of accused is accepted he was about 14 years and seven months on the date of commission of crime i.e. 13.12.1981 and if the endorsement of Sessions Judge is taken into consideration the age of the appellant Om Prakash on the date of commission of crime comes to 16 years and seven months approximately. It is to be kept in mind that the Sessions Judge had not entered into an inquiry for determination of age of this accused nor any medical opinion was sought to determine the age. The fact therefore remains that in either situation it is a border line case and as held by Apex Court in Rajender's case benefit of this situation should be given to the accused.
42. In the case of Gurpreet Singh v. State of Punjab 2006 (54) ACC 8, it was held that the court should first consider the legality or otherwise of the conviction of the accused where he claims to be juvenile on the date of occurrence. If the conviction is upheld he has to be sent to juvenile home if the accused continues to be juvenile on the date of judgment. On the other hand, if he was juvenile on the date of offence, but if he ceased to be the juvenile on the date of final then the sentence imposed against him has to be set aside.
43. Applying the aforesaid principle to the case of Om Prakash alias O.P. we are of the opinion that he was child within the definition of U.P. Children Act 1951 on the date of occurrence. He could therefore have been sent to reformatory home but this was not done. Now when this appeal is being decided he has ceased to be a child and he must be now a man aged about 42 years. We therefore uphold his conviction but set aside his sentence.
44. The conviction of Munna, Chandra Pal and Murari Lal, appellant Nos. 3, 4 and 5, is upheld and sentences passed on them by the trial court are confirmed. Their appeals are dismissed.
45. The appeal of appellant No. 2 Om Prakash alias O.P. is partly allowed. His conviction recorded by the trial court is maintained but the sentence passed on him is set aside.