JUDGMENT B. N. Katju, J. 1. Bhan Singh and Sadal Singh have 61ed Criminal Appeal No. 3161 of 1983 and Bada Singh. Arjun Singh and Vishnu Singh have filed Criminal Appeal No. 3162 of 1983 against the judgment of Additional Sessions Judge, Karvi (Banda) dated 17-12-1983 passed in S. T. No. 195 of 1980. All the appellants have been convicted under section 307/149 IPC and have been sentenced to eight years' R. I. and a fine of Rs. 2,000/-. In default of payment of fine, they have been ordered to undergo two years' R. I. Bada Singh, Arjun Singh and Vishnu Singh appellants have further been convicted under Section 302/149 and 148 IPC and have: been sentenced to death and three years' R. I. respectively. BHAN Singh and Sadal Singh appellants have further been convicted under sections 302/149 and 147 IPC and have been sentenced to life imprisonment and two years' R. I. respectively. All the sentences have been ordered to run concurrently. 2. Bada Singh, Arjun Singh. Vishnu Singh and Sadal Singh appellants are the sons of Bhan Singh appellant. All the appellants are residents of village Tarawan. Ram Krishna PW 1 is the son of Dwarka Prasad. Mahavir PW 2 is the brother of Dwarka Prasad. These two witnesses are also residents of village Tarawan. Bhagwan Din, Ram Saran alias Munni Lal and Badri Prasad deceased were also sons of Dwarka Prasad and resided in village Tarawan. 3. The case of the prosecution, as unfolded by Mahabir PW 2, is that on the morning of 14-1-1980 he, Ram Krishna PW 1 and Bhagwan Din and Badri Prasad deceased went to scrape grass in their Barua Nala field in village Tarawan. On reaching the field at about 11.30 A. M. marks of a bullock-cart were seen across their field, in which Arkar was sown, as a result of which some of the crop had been damaged. While the aforesaid persons were scraping grass in the said field Bada Singh appellant came there at about 12 noon with his bullock-cart, in which a pumping set was kept. Mahabir stopped the said cart a few paces from the field and told Bada Singh appellant that he would not allow his cart to cross the field as damage had been caused to his crop by the cart earlier on that day. Mahabir stopped the said cart a few paces from the field and told Bada Singh appellant that he would not allow his cart to cross the field as damage had been caused to his crop by the cart earlier on that day. Bada Singh appellant left the cart and after covering a distance of about 15-20 paces shouted for his father and brothers, who were working in their field situated at a distance of about 150 paces from the field of the complainant. Shortly thereafter Arjun Singh and Vishnu Singh appellants armed with axes sand Bhan Singh and Sadal Singh appellant armed with Lathis came there. Bada Siniah appellant was armed with a Pharsa. Bada Singh and Vishnu Singh appellants assaulted Bhagwan Din deceased with the weapons with which they were armed, as a result of which he received injuries and fell down. When Badri Prasad deceased advanced towards the appellants he was assaulted by Bada Singh. Vishnu Singh, Arjun Singh and Sadal Singh appellants with the weapons with which they were armed and he also fell down on receiving injuries. Thereafter Ram Krishna PW 1 armed with a Lathi advanced towards the appellants and he was assaulted by Bada Singh, Arjun Singh and Vishnu Singh appellants with the weapons with which they were armed and he also fell down on receiving injuries. Ram Gopal PW 3 and Nanhku, who had arrived near the place of occurrence in the meantime, challenged the appellants. The appellants thereafter went away taking their cart with them. Bhagwan Din deceased was found dead and Badri Prasad deceased and Ram Krishna PW 1 were found unconscious by the witnesses after the appellants had left. Mahabir then proceeded from the Barua Nala field to his house to bring a bullock-cart. When he was at a distance of about one furlong from village Tarawan he heard the shout ' maro sale ko ye bacha jata hai ' and saw all the five appellants surrounding Ram Saran alias Munni Lal deceased and Bada Singh appellant gave him two blows with his pharsa in the field of Laxmi Lal. Mewa Lal and Kamta Prasad, who had reached the place of occurrence in the meantime, challenged the appellants and the appellants thereafter left their bullock-cart and ran towards the jungle. Ram Saran alias Munni Lal deceased was also found dead after the appellants had left. 4. Mewa Lal and Kamta Prasad, who had reached the place of occurrence in the meantime, challenged the appellants and the appellants thereafter left their bullock-cart and ran towards the jungle. Ram Saran alias Munni Lal deceased was also found dead after the appellants had left. 4. Mahabir took Ram Krishna PW 1 and Badri Prasad deceased to the Outpost Sheoram Pur of P. S. Karvi on bullock-cart and lodged the first information report at 2.20 P. M. on the same day 14-1-80, the distance of the Outpost from the place of occurrence being 4 kms. Badri Prasad deceased died at about 11-45 P. M. on the day of occurrence 14-1-1980 at the hospital at Sheorampur. 5. The injuries of Ram Krishna PW 1 were examined by Dr. V. L. Sharma PW 5 at 5.40 P. M. on the same day 14-1-1980 and the undermentioned injuries were found on his person : "(1) Incised wound size 5 0 cm x 1.0 cm x bone deep on the left side of head and face in left temporal and maxillary region 4.0 cm lateral to the outer angle of left eye brow placed vertically fresh bleeding present. Advised X-ray " "(2) Incised wound size 2.5 cm x 0.5 cm x muscledeep on left gluteal region 10 cm lateral and away to the left hip joints obliquely placed." "(3). Incised wound size 7.0 cm x2.5 cm x muscle deep on the posterior aspect of Right leg 11.0 cm below Rt. Knee joint obliquely placed. Fresh bleeding present." 6. The post-mortem examination of the bodies of the three deceased was conducted by Dr. M. K. Joshi PW 4 on 15-1-1980 between 12 noon and 4 P. M. The under-mentioned ante-mortem injuries were found on the body of Bhagwan Din deceased ; "(1) Incised wound size 16 cm x 6 cm x chest cavity deep on left supraclavicular region and back of upper part of left side of chest (scapular region) extending from 2 1/2 cms above the middle of shaft of It. clavicle to back of chest in scapular region 9 cms above the inferior angle in scapula and from 2 cms medial to left (paper torn) clavicular joint to 6 cms lateral to midline, placed obliquely. Direction from backward and inward. Underlying blood vessels, soft tissue and bones, left scapulla and 2nd and 3nd ribs posteriorly cut. (2) Incised wound size 12 cms. Direction from backward and inward. Underlying blood vessels, soft tissue and bones, left scapulla and 2nd and 3nd ribs posteriorly cut. (2) Incised wound size 12 cms. x 7 cms x bane deep on top and posterior aspect of Right should, joint placed obliquely underlying vessels, soft tissue and bone Rt. Head of Humerus cut. Direction from backwards and inwards." 7. In the opinion of Dr. Joshi, the injuries found on the body of Bhagwan Din deceased were sufficient in the ordinary course of nature to cause death. 8. The under-mentioned ante-mortem [injuries were found on the body of Ram Saran alias Munni Lal deceased :- "(1) Incised wound size 12 cms. x 2 1/2 cms. x brain cavity deep on left side of middle of Head in parietal region 24 cms. above the left Ear and 11 cms. above the left Eye brow placed vertically. Direction from left downwards and backwards underlying bone left [parietal cut. (2) Incised wound size 14 cms. x 3 1/2 cms. x through and through (Head) attached posteriorly with a Tag of skin on front of middle of Neck extending from 4 cms above the supra sternal notch to 5 cms below the chin. Direction from front forward and backward. Underlying blood vessels soft tissue, thyroid cartilage, larynx, oesphagus and C 3 vertabree and spinal cord cut through and through." In the opinion of Dr. Joshi, the injuries found on the body of Ram Saran alias Munni Lal deceased were sufficient in the ordinary course of nature to cause death. 9. The under-mentioned ante-mortem injuries were found on the body of Badri Prasad deceased :- "(1) Incised wound size 7.00 cm x 0.5 cm x bone deep on Rt. side of Head in parietal region 44 cms above the Rt. ear lobule obliquely placed. Direction from front downwards and lably- under- lying bone Rt. parietal and occipital fractured. (2) Incised wound size 14 cms x 9 cms x bone deep an antromedial aspect of lower 1/3 of left Arm and left Elbow joint 15 cms below the left Axillary pit obliquely placed underlying bone Medial Epicondyle of left humerus cut and soft tissue cut. (3) Incised wound size 3 cms x 1.5 cms x muscle deep on Antrolateral aspect of middle of left fore arm 12 cms above the wrist joint obliquely placed. (3) Incised wound size 3 cms x 1.5 cms x muscle deep on Antrolateral aspect of middle of left fore arm 12 cms above the wrist joint obliquely placed. (4) Incised wound size 3 cms x 1.5 cms x muscle deep on antromedial aspect of lower 1/3 of left fore arm 1 cm above the wrist joint. (5) Contusion size 3 cms x 2 cms on posterior aspect of Right wrist joint. 10. In the opinion of Dr. Joshi, the injuries found on the body of Badri Prasad deceased were sufficient in the ordinary course of nature to cause death. The prosecution examined three eye-witnesses, namely, Ram Krishna PW 1, Mahabir PW 2 and Ram Gopal PW 3. 11. All the appellants pleaded not guilty and stated that they were implicated falsely due to enmity. 12. The trial court after considering the evidence on record came to the conclusion that the prosecution has succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned earlier. Mahabir PW 2 narrated the prosecution case as mentioned earlier. His statement that Ram Krishna PW 1. Bhagwan Din deceased and Badri Prasad deceased were scraping grass in their joint Barua Nala field at the time of the incident appears to Be; convincing as it is natural His statement that he stopped Bada Singh appelant from taking his bullock- cart carrying a pumping set across the sxid field also appears to be convincing as the crop in the said field had been damaged earlier on the same day by the passage of a bullock-cart. It is noteworthy that the investigating officer found the crop trampled in the said field. It is true that Mahabir did not receive any injury at the time of the incident, but from this it cannot be inferred that he was; not present at the time of the occurrence. Considering the fact that the appellants assaulted three of his nephews, namely, Bhagwan Din and Badri Prasad deceased and Ram Krishna PW 1, who were near their cart, it was not necessary for them to have assaulted him also. Considering the fact that the appellants assaulted three of his nephews, namely, Bhagwan Din and Badri Prasad deceased and Ram Krishna PW 1, who were near their cart, it was not necessary for them to have assaulted him also. His evidence regarding the assault on Bhagwan Din and Badri Prasad deceased and Ram Krishna PW 1 by Bada Singh, Arjun Singh, Vishnu Singh and Sadal Single appellants at the Barua Nala field is corroborated by the first information / report lodged by him promptly and is also supported by the medical evidence. It may be noted that a contusion was found on the mist of Badri Prasad deceased, which could have been caused by the Lathi wielded by Sadal Singh appellant. The injuries found on the bodies of Bhagwan Din and Badri Prasad deceased could have been caused by Pharsa and axe wielded by Bada Singh, Arjun Singh and Vishnu Singh appellants. His evidence regarding the assault on Bhagwan Din and Badri Prasad deceased and Ram Krishna by Bada Singh, Arjun Singh, Vishnu Singh and Sadal Singh appellants at the Barua Nala field at the time of the incident thus appears to be reliable. We are, however, not prepared to place implicit reliance on his evidence that all the five appellants surrounded Ram Saran alias Munni Lal deceased in the field of Laxmi Lala at a distance of about one furlong from village Tarawan after having assaulted Bhagwan Din and Badri Prasad deceased and Ram Krishna at the Barua Nala field as in the first information report it is not mentioned by him that he had witnessed this incident. Further Bhaiya Lal and Kamta Prasad, who have been named in the first information report as eye-witnesses of this incident, have not been examined by the prosecution. It is also doubtful that he would have reached near the field of Laxmi Lala while he was going from the Barua Nala field after the first incident to his village Tarawan to get a bullock-cart just in time to have witnessed this incident. Moreover in the first information report it was not mentioned by him that Bada Singh appellant assaulted Ram Saran alias Munni Lal deceased with his Pharsa, but it was mentioned that all the five appellants had assaulted him. Moreover in the first information report it was not mentioned by him that Bada Singh appellant assaulted Ram Saran alias Munni Lal deceased with his Pharsa, but it was mentioned that all the five appellants had assaulted him. In these circumstances, implicit reliance cannot be placed on his solitary evidence regarding the assault on Ram Saran alias Munni Lal deceased by the appellants. 13. Ram Krishna PW 1 corroborated the evidence of Mahabir PW 2 regarding the incident at the Barua Nala field. It was also stated by him that Bhan singh appellant had instigated the remaining appellants to assault Bhagwan Din and Badri Prasad deceased and RAM Krishna. His presence at the time of the incident is established by the injuries received by him. He is also mentioned as an, eye-witness in the first information report and his evidence is also supported by the medical evidence. It is true that he is a close relation of the three deceased, but this is not sufficient to discard his testimony. Nothing has been brought out in his cross-examination to shake his credit. In our opinion, his evidence regarding the participation of Bada Singh, Arjun singh, Vishnu Singh and Sadal Singh appellants in the first incident is reliable, 14. Ram Gopal PW 2 also corroborated the evidence of Mahabir PW 2 regarding the first incident at the Barua Nala field. It was stated by him that on the day of occurrence he was proceeding from his village Tarawan to Bharat Kup along with Nanhku to see Mela as it was Khichri festival. When he reached near the Barua Nala field of Mahabir and his nephews he heard noise and saw Bada Singh appellant assaulting RAM Krishna PW 1 with a Pharsa and Arjun Singh and Vishnu Singh appellants assaulting him with axes, as a result of which be fell down after receiving injuries. All the appellants then went away towards the north taking their bullock-cart with them. He is mentioned as an eye-witness in the first information report and the explanation furnished by him for his presence near the place of occurrence at the time of the incident appears to be convincing. His evidence regarding the assault on RAM Krishna is supported by the medical evidence. It is true that he is the; cousin of the three deceased, but this is not sufficient for rejecting his testimony. His evidence regarding the assault on RAM Krishna is supported by the medical evidence. It is true that he is the; cousin of the three deceased, but this is not sufficient for rejecting his testimony. Nothing has been brought out in his cross-examination to shake his credit, In our opinion, his evidence is also wholly reliable. The evidence of Ram Krishna PW 1 that Bhan Singh appellant instigated the remaining appellants to assault Bhagwan Din and Badri Prasad deceased and Ram Krishna at the time of the first incident at the Barua Nala field cannot be relied upon as it is not supported by the evidence of Mahabir PW 2. It is also not mentioned in the first information report that Bhan Singh appellant instigated the remaining appellants at the time of the incident at Barua Nala field. In these circumstances, although Bhan Singh appellant may have come to the Barua Nala field along with Arjun Singh, Vishnu Singh and Sadal Singh appellants, it cannot be held that he participated in the incident or was a member of an unlawful assembly. Further it cannot also be held that Bada Singh,, Arjun Singh, Vishnu Singh and Sadal Singh appellants assaulted Bhagwnn Din and Badri Prasad deceased and Ram Krishna PW 1 in furtherance of his common intention. His conviction under sections 302/149, 307/149 and 147 IPG thus appears to be unjustified and deserves to be set aside. 15. The evidence of the three eye witnesses establishes that Bada Singh, Arjun Singh, Vishnu Singh and Sadal Singh appellants assaulted Bhagwan Din and Badri Prasad deceased and Ram Krishna PW 1 at the Barua Nala field at the time of the first incident with the weapons with which they were armed, which resulted in the death of Bhagwan Din and Badri Prasad deceased. All these appellants are, therefore, clearly guilty under Section 302/34 IPC. 16. Coming to the question of sentence, we are of the opinion that the sentence of death awarded by the trial count to Bada Singh, Arjun Singh and Vishnu Singh appellants under section 302/149 IPC appears to be unjustified and deserves to be set aside. It is noteworth that it was admitted by Ram Krishna that there was no previous enmity between the parties. It is noteworth that it was admitted by Ram Krishna that there was no previous enmity between the parties. The assault on Bhagwan Din and Badri Prasad deceased and Ram Krishna PW 1 by these four appellants took place all of a sudden without any premeditation. Further only three grievous injuries on vital parts of the bodies of Bhagwan Din and Badri Prasad deceased were inflicted by Bada Singh, Arjun Singh and Vishnu Singh appellants. The conviction of Bada Singh, Arjun Singh and Vishnu Singh appellants under section 148 IPC and the conviction of Sadal Singh appellant under Section 147 IPC are also unjustified and deserve to be set aside. 17. The conviction of Bada Singh, Arjun Singh, Vishnu Singh and Sadal Singh appellants under Section 307/149 IPC and the sentence of eight years' R. I. and a fine of Rs. 2,000/- awarded to them thereunder for causing injuries to Ram Krishna PW 1 are also unjustified and deserves to be set aside and instead they are guilty under section 307/34 IPC and deserve to be sentenced to eight years rigorous imprisonment 18. Arjun Singh appellant had given his age as 19 years in the trial Court on 24-10-1983 when his statement was recorded under section 313 CrPC. On this basis it was contended by the learned counsel for the appellants that Arjun Singh appellant was below 16 years of age at the time of the incident on 14-1-1980. The U. P. Children Act, 1951 was thus applicable to him and in view of section 27 of the said Act he could not be either sentenced to death or to imprisonment for life or even sentenced to any term of imprisonment. The question of age of ARJUN Singh appellant at the time of the incident was not considered by the trial Court as it was not raised before it. In these circumstances we considered it necessary in the interest of justice to direct the trial court under Section 391 CrPC to record the evidence of the parties regarding the age of ARJUN Singh appellant at the time of the incident and to submit the same to this Court. In compliance with our order dated 29- 8-1984 the evidence of the parties regarding the age of ARJUN Singh appellant at the time of the incident was recorded by the trial Court and has been submitted to this Court. In compliance with our order dated 29- 8-1984 the evidence of the parties regarding the age of ARJUN Singh appellant at the time of the incident was recorded by the trial Court and has been submitted to this Court. Three witnesses were examined on behalf of ARJUN Singh appellant, namely, Deshraj Pradhan DW 1, Radhey Shyam Misra DW 2 and Dr. M. S. Varma Chief Medical Officer Allahabad DW 3. Deshraj Pradhan DW 1 deposed that he is Headmaster of the Primary Pathshala Tarkha since 24-4-1971. The admission register of the school showed that the name of Arjun Sringh son of Bhan Singh resident of village Tarkha, Tahsil Karvi, district Banda was entered in the said register at serial no. 187 which was in the hand writing of the then Headmaster Jagdish Prasad. The date of birth of Arjun Singh appellant was mentioned as 8-4-1964. He was admitted in class I on 1-8-1969 and he left the school on 30- 6-1974 after passing class V. The aforesaid entry was marked as Ext. 18. On the basis of the said entry he had issued the certificate Ext. Ka. 19. It was, however, admitted by him in his cross-examination that he could not say as to who had come with Arjun Singh appellant and had got his age recorded in the admission register. The age of students is recorded on the basis of information. He could not say as to whether the guardians get the ages of their wards recorded two or three years less than their real age. 19. Radhey Shyam Misra DW 2 deposed that he had brought the register of Radhakrishna Poddar Inter College Chi/;rakoot. In this register at serial no. 25 the name of Arjun Singh son of Bhan Singh, resident of village Tarkha has been recorded. He was admitted in class XI on 28-2-1979. His Date of birth was recorded (8-4-1964. It was, however, admitted by him in his cross- examination that the age of Arjun Singh appellant was recorded on the basis of his age given in the Transfer Certificate of the Junior High School. 20. He was admitted in class XI on 28-2-1979. His Date of birth was recorded (8-4-1964. It was, however, admitted by him in his cross- examination that the age of Arjun Singh appellant was recorded on the basis of his age given in the Transfer Certificate of the Junior High School. 20. It is true that it appears from, the statement of Deshraj Pradhan DW 1 and Radhey Shyam Misra DW 2 that the registers of the Primary Patbsbala Tarka and the Radha Krishna Poddar Inter College Chitrakoot showed that Arjun Singh appellant was born on 8-4-1964 but from this it does not necessarily follow that this was the correct date of his birth as it is quite common that lesser age is often recorded at the time of admission in school. Dr. M. S. Varma Chief Medical Officer, Allahabad DW 3 deposed that he examined Arjun Singh appellant on 5-11-1984 and found that he had 32 teeth and that the pubic hair were present. The X-ray plates dated 20-10-1984 showed that epiphysis of both the bones of the right wrist had fused and the epiphysis of all the bones of right elbow had also fused. On the basis of the X-ray plates he was of the opinion that the age of Arjun Singh appellant on 22-10-1984 was twenty years and there could be a margin of six months either way. In our opinion implicit reliance cannot be placed on his evidence regarding the age of Arjun Singh appellant as according to Modi's Medical Jurisprudence the fusion of the epiphysis of the right wrist and right elbow takes place between the age of 20 and 21 years. Mereover it is difficult to determine the exact age of a person merely on the basis of the fusion of the epiphysis of the wrist and the elbow as it cannot be determined as to when it had taken place. In case of a person who is more than twenty years of age this would also be present. 21. It is noteworthy that the prosecution has filed the Kutumb register in which the date of birth of Arjun Singh appellant is recorded as 15-3-1961. He is also mentioned as a voter in the electoral roll on 1-1-1984. In these circumstances Arjun Singh appellant does not appear to have been below the age of sixteen years at the time of the incident. He is also mentioned as a voter in the electoral roll on 1-1-1984. In these circumstances Arjun Singh appellant does not appear to have been below the age of sixteen years at the time of the incident. The U. P. Children Act is thus not applicable to him. 22. Criminal Appeal No. 3162 of 1983 is accordingly allowed in part. The conviction of Bada Singh, Arjun Singh and Vishnu Singh appellants under section 302/149 IPC and the sentence of death awarded to them thereunder are set aside and instead they are convicted under Section 302/34 IPC and sentenced to life imprisonment. Their conviction under Section 307/149 IPC and the sentence of eight years rigorous imprisonment and a fine of Rs. 2000/- awarded to them thereunder are set aside and instead they are convicted under section 307/34 IPC and sentenced to eight years rigorous imprisonment. Their conviction under Section 148 IPC and the sentence of three years rigorous imprisonment awarded to them thereunder are set aside. All the sentences awarded to Bada Singh, Arjun Singh and Vishnu Singh appellants shall run concurrently. The reference made by the learned Judge for the confirmation of the sentence of death awardeu to Bada Singh, Arjun Singh and Vishnu Singh appellants is rejected. 23. Criminal Appeal No. 3161 of 1983 is allowed in part. The conviction of Bhan Singh appellant under Section 302/149, 307/149 and 147 IPC and the sentences awarded to him thereunder are set aside. The conviction of Sadal Singh appellant under section 302/149 IPC and the sentences of life imprisonment awarded to him thereunder are set aside and instead he is convicted under Section 302/34 IPC and sentenced to life imprisonment. His conviction under section 307/149 IPC and the sentence of eight years rigorous imprisonment and a fine of Rs. 2000/- awarded to him thereunder are set aside and instead he is convicted under Section 307/34 IPC and sentenced to eight years rigorous imprisonment. His conviction under section 147 IPC and the sentence of two years rigorous imprisonment awarded to him thereunder are set aside. Both the sentences awarded to Sadal Singh appellant shall run concurrently. 24. Bada Singh, Arjun Singh and Vishnu Singh appellants are in jail. They shall serve out the sentences awarded to them. Sadal Singh appellant is on bail. [He shall be taken into custody forthwith and shall serve out the sentences awarded to him. 25. Both the sentences awarded to Sadal Singh appellant shall run concurrently. 24. Bada Singh, Arjun Singh and Vishnu Singh appellants are in jail. They shall serve out the sentences awarded to them. Sadal Singh appellant is on bail. [He shall be taken into custody forthwith and shall serve out the sentences awarded to him. 25. Bhan Singh appellant is also on bail. He need not surrender. His bail bonds are discharged.