C. P. SEN, J. ( 1 ) THE appellants Prem and Bairam have been convicted under section 302 read with section 34 I. P. C. and each sentenced to imprisonment for life for committing murder of Laxman Keer. Deceased Laxman Keer was living with the wife Gangabai (P. W. 5) in village Namsadiya tahsil and district Hoshangabad. On the date of the incident, i. e. 17/8/1982, the deceased had gone out of his house and was returning at about 4. 30 p. m. when he was chased and beaten with Lathis by these two appellants. As a result, he fell down near the gate of his house. Hearing the alarm his wife Gangabai came out of the house and other villagers also collected there. The deceased was taken to the police station Hoshangabad where report Ex. P-10 was lodged by Gangabai. The deceased was admitted to the district hospital and was examined by Dr. Dilip Nagar (P. W. 3 ). He found three lacerated wounds on the skull and one lacerated wound on the lower lip. There was fracture of the skull and his condition was serious. These two appellants were arrested on 18/8/1982 and the appellant No. 1 Prem gave a memorandum (Ex. P-14) and then recovered a blood stained lathis vide Ex. P-3. Appellant No. 2 Balaram produced a blood stained lathi which was seized as per seizure memo (Ex. P-4 ). The deceased died on the morning of 21/8/1982. After holding inquest over the dead body was sent for post mortem examination. Dr. V. S. Dube (P. W. 8) after doing the autopsy opined that the deceased died due to coma and respiratory failure caused by injury to bead fracture of the skull and bleeding and laceration of brain tissue. The blood stained articles were sent for chemical examination and the Chemical Examiner vide report (Ex. p. 20) found presence of blood in both the lathis while the Serologist vide report (Ex. P21) could not detect the origin as the same had disintegrated. On completing the investigation, two appellants were charge-sheeted for the murder. Their defence was of denial. According to appellant No. 1 Prem, he had a quarrel about one Sword and he has been falsely implicated. P21) could not detect the origin as the same had disintegrated. On completing the investigation, two appellants were charge-sheeted for the murder. Their defence was of denial. According to appellant No. 1 Prem, he had a quarrel about one Sword and he has been falsely implicated. According to appellant No. 2 Balaram, he was grazing the cattle of the deceased who did not pay him his dues in spite of demands and so he bas been falsely implicated. Relying on the statements of eyewitnesses, corroborated by the F. I. R. and the medical evidence, both the appellants have been convicted and sentenced as mentioned earlier. ( 2 ) ACCORDING to the learned counsel for the appellants, appellant No. 2 Balaram was below 16 years of age on the date of the incident and as such he could have only been tried by the juvenile court under the Bal Adhiniyam and as such his trial is vitiated; he also relied in a school certificate showing his date of birth to be 7/5/1968. He further submitted that there was a sudden quarrel over fishing and the intention was only to belabour the deceased and not to commit his murder, as there was no previous enmity since it is not proved out of the two appellants who caused the fatal injury, the offence at the most will be one under section 304 Part II I. P. C. According to the learned Panel Advocate for the State, there were fractures of the parietal and frontal bones, both the appellants came together armed with lathis, chased the deceased and assaulted him in front of his house causing the fatal injuries; both of them are equally liable as the offence was committed with prior comfort and prearranged plan to commit the murder. ( 3 ) REGARDING the question as to whether the trial has been vitiated because appellant No. 2 Balaram was below 16 years of age when the incident took place on 17/8/1982 and also when the challan was filed on 8/11/1982 against him before the committal Magistrate, the learned counsel contended that appellant No. 2 Balaram was below 16 years of age and for this purpose he wanted to produce his school leaving certificate. The Govt. Advocate also took time to verify his actual age when the appeal came up for hearing on 13/8/1986. On 25. 8. The Govt. Advocate also took time to verify his actual age when the appeal came up for hearing on 13/8/1986. On 25. 8. 1986 on the request of the parties we sent for the record of bail application No. 827/82 decided on 22/11/1982 by the Sessions Judge, Hoshangabad granting bail to this appellant because of his immature age. In the record of that case there is a school leaving certificate or Vidya Mandir Pradhmik Shala Nimsadiya showing the date of birth of appellant No. 2 Balaram to be 7/5/1968. The Sessions Judie In the bail order has mentioned that when this appellant was produced before him, he estimated his age to be below 16 years and this was evident from the school leaving certificate. Therefore bail was granted. No evidence to the contrary has been produced. Therefore, we hold that appellant No. 2 Balaram was below 16 years of age when the incident took place and when the challan was filed in the case. Under section 19 of the MP Bal Adhinlyam. 1970 where a child having been charged with an offence appears or is produced before a Juvenile Court, such court shall hold enquiry in accordance with the provisions of section 39 and may subject to the provisions of this Act make such orders in relation to the child as it deems fit. Under section 22 notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment or committed to prison. Under section 24 no child shall be charged with or tried for any offence together with a person who is not a child. Interpreting these provisions, the Supreme Court in Raghbir v. State of Haryana1 has held that an accused who is less than 16 years and who is accused of an offence under section 302 I. P. C. he is entitled to the benefit of the Children Act, therefore, his trial and conviction under the Criminal Procedure Code is illegal by overruling a Full Bench decision of this Court in 1978 Cri D. J. 585, which had held to be contrary. Therefore, the trial resulting in the conviction and sentence passed against appellant No 2 Balaram are vitiated. Therefore, the trial resulting in the conviction and sentence passed against appellant No 2 Balaram are vitiated. Accordingly the conviction and sentence passed against this appellant are set aside and it is directed that he be tried before the Juvenile Court at Hoshangabad under the M. P. Bal Adhiniyam. ( 4 ) IT has come in evidence that TGangabai (P. W. 5) after hearing some noise came out of the house and saw these two appellants pursuing her husband (deceased); appellant No. 2 Balaram first gave a blow on his head with his lathi as a result the deceased fell dawn on the ground and thereafter the deceased was further assaulted by these two appellants by lathis. After the deceased had fallen down, she had entreated the appellants not to beat the deceased but they paid no need. She is corroborated by Ramu (P. W. 7) who was playing nearby. It is true that in the F. I. R. (Ex. P. 10) lodged immediately after the offence, Gangabai had not mentioned the presence of Ramu (P. W. 7), but she has explained this omission by saying that she was very much frightened and so she did not notice his presence there. The statements of these two eye-witnesses are corroborated by Dr. Dilip Nagar (P. W. 3) who examined the deceased on the same night and found one lacerated wound 11/2 X 1/2 X bone deep on the right frontal bone with depression of frontal bone, one lacerated wound 11/2 x 1/2 bone deep with fracture half inch below the first injury and another lacerated wound 2 x 1/2 x 1/2 on the frontal parietal region and there were depressed fractures of parietal and frontal bone damaging the brain matter. The deceased died on 21/8/1982. The autopsy was done by Dr. V. S. Dube (P. W. 8) who also confirmed the injuries sustained by the deceased. In addition Dr. Nagar had also found one lacerated wound on the lower lip. According to both the doctors, injury Nos. 1 and 2 were sufficient in the ordinary course of nature tocause death. On the memorandum of appellant No. 2 Balaram a blood stained lathi was seized as per seizure memo Ex. P-3 and appellant No. 2 Balaram produced a blood stained lathi was seized as per seizure memo Ex. P-4. The Chemical Examiner vide his report (Ex. 1 and 2 were sufficient in the ordinary course of nature tocause death. On the memorandum of appellant No. 2 Balaram a blood stained lathi was seized as per seizure memo Ex. P-3 and appellant No. 2 Balaram produced a blood stained lathi was seized as per seizure memo Ex. P-4. The Chemical Examiner vide his report (Ex. P-20) confirmed presence of blood on both these lathis but the Serologist could not determine the origin of the blood as the same had disintegrated vide report Ex. P-21. Seizure memo show that bath the lathis were about in length with knots and were formidable weapons and when used with force on a middle aged person like the deceased. The nature of the injuries show that the deceased was assaulted with force and blows were given even when he had fallen down on determined. Therefore, the intention of the appellants was to commit the murder. There is 80 merit in the contention of the learned counsel for the appellants that since it is not known who caused the fatal injuries, appellant No. 1 Prem can only be convicted under section 304 Part II I. P. C. All the injuries were caused on the head which is a vital part of the body causing depressed fractures of the parietal and frontal bones. The decision of the Supreme Court in Shri Kishan v. State of U. P2 has no application because there was a sudden quarrel and only one blow was given on the head but it was not known who caused the fatal blow and therefore the conviction was changed from section 302/34 I. P. C. to one under section 325/34 I. P. C. In the other case of Ramlal v. Delhi Administration3 at page 2462 of the same volume there were two lathi blows on the head, one of which proved fatal but it was not known who caused the fatal blow. Therefore, the conviction of the appellant was converted from 302/34 I. P. C. to 304/34 I. P. C. Here the first blow was given by appellant No. 2 Balaram on the head and after the deceased fell down two more blows were given by these two appellants on his head. Therefore, they intended to cause his death which is evident from the nature of injuries caused. Therefore, the conviction and sentence of the appellant have to be affirmed. Therefore, they intended to cause his death which is evident from the nature of injuries caused. Therefore, the conviction and sentence of the appellant have to be affirmed. ( 5 ) WITH the result the appeal is partly allowed. The conviction and sentence of appellant No. 1 Prem are affirmed and that of appellant No. 2 Balaram are set aside and it is directed that he be tried to the Juvenile Court under the M. P. Bal Adhiniyam. He is directed to appear before the Juvenile Court, Hoshangabad on 27/10/1986. Appeal partly allowed. .