JUDGMENT A.S. Srivastava, J. - Mahendra Pratap Singh and Ravindra Kumar Singh Appellants have filed this appeal against the judgment and order dated 28-10-77 of the then Sessions Judge, Jaunpur, convicting Ravindra Kumar Singh u/s 302 IPC and Mahendra Pratap Singh u/s 302/34 IPC and sentencing both of them to Life Imprisonment. 2. In the year 1976 Mahendra Pratap Singh was a student of class XII of Public Inter College, Karakat, District Jaunpur, Ravindra Kumar Singh Appellant who was not a regular student of that college was appearing in that year in the High School Examination from that College as a private candidate. Deceased Gambhir Yadav was also a student of Class XI and his father Raja Ram PW 1 was a teacher in that College. 3. The case of the prosecution is that on 10-12-1976 there was some exchange of words between Gambhir Yadav and Appellant Mahendra Pratap Singh in connection with their seats in the class. Later in the day this exchange of words were followed by another quarrel between them at the college gate also. 4. On 11-2-1976, the College was closed at 11.50 A.M. on account of a meeting of the Teachers' Association. Thereafter, the deceased along with three other students viz. Shyam Lal PW 7, Hori Lal PW 9 and Phool Chand went to Karakat Bazar for purchasing ink. While returning, they reached near the Vyamyamshala of the College at about 12.30 P.M. There they were suddenly confronted by the two Appellants. On seeing Gambhir Yadav, Mahendra Pratap Singh Appellant shouted that as they had found the deceased at a very suitable place, the sale (Gambhir Yadav) should be beaten. Saying this Mahendra Pratap Singh Appellant slapped the deceased. When Shyam Lal, Hori Lal and Phool Chand protested, Ravindra Kumar Singh took out a knife and stabbed Gambhir Yadav thrice who fell down. However, before the two Appellants could run away they were captured at the spot. By that time, Raja Ram, the father of Gamhir Yadav also reached there. 5. Raja Ram proceeded to the police station Karakat along with injured Gambhir Yadav and the Appellants. The knife which Hari Lal PW 9 had snatched from Ravindra Kumar Singh Appellant was also taken over to the police station. By that time, Raja Ram, the father of Gamhir Yadav also reached there. 5. Raja Ram proceeded to the police station Karakat along with injured Gambhir Yadav and the Appellants. The knife which Hari Lal PW 9 had snatched from Ravindra Kumar Singh Appellant was also taken over to the police station. Raja Ram lodged the FIR of this case at the police station on the same day at 1 P.M. There the two Appellants were handed over to the police and the knife was deposited. 6. Gambhir Yadav was then sent to the District Hospital, Jaunpur, on the same day and his injuries were examined at 1.15 P.M. by Dr. Hari, Shanker Rai PW 2 who found the following injuries on him: (i) Punctured wound, 7/9" x 1/2" x not probbed due to fear of infection and haemorrhage on the right side of abdomen, 6 1/2" away from umblicus at 10 O' clock position. Bleeding present. (ii) Incised wound 1/2" x 3/4" x 1/4" on medial side of right wrist. 7. At the hospital the dying declaration of Gambhir Yadav also recorded on 11-12-1976 at 9 P.M. by Extra Judicial Magistrate Ram Charan Yadav PW 6. Gambhir Yadav, however, died in the Hospital on the night between 12/13-12-1976 at 12.30 A.M. The post mortem examination on his dead body was conducted on 13-12-1976 at 3.30 P.M. by Dr. Udai Singh PW 5 who found the following ante-mortem injuries: (i) Stitched wound, 19 cm. in the right thoracoabdominal region of right chest and right abdomen. On opening the stitches, margins of the wound were found clean cut and abdomen cavity deep. All the stitches were found to be intact in good condition. (ii) Stitched wound 1.2 cm. on the front and medial side of right wrist. On opening the stitches the margins of the wound were found surgically drosa. The wound was found to be clean cut and muscle deep. (iii) Stitched wound, 1.5 cm. on right iliac fossae of the abdomen. On opening the stitches the margins were found to be clean cut. A rubber drain was coming out of the wound. 8. The prosecution has examined ten witnesses in order to prove its case against the Appellants. Out of these witnesses Shyam Lal PW 7 and Hori Lal PW 9 have been examined as witnesses of fact. Both the Appellants have denied the prosecution case. A rubber drain was coming out of the wound. 8. The prosecution has examined ten witnesses in order to prove its case against the Appellants. Out of these witnesses Shyam Lal PW 7 and Hori Lal PW 9 have been examined as witnesses of fact. Both the Appellants have denied the prosecution case. Ravindra Kumar Singh Appellant has, however, stated that on 11-12-1976 when he went to his school there was an exchange of abuses between him and Hori Lal about two hours after when the College was closed. Thereafter when he went to the cycle stand near the office of the Principal, he was assaulted by Hori Lal, Gambhir Yadav, Rama Yadav, Kanhaiya Lal Yadav, Bankey Lal Yadav and others with danda, fists and slaps. Gambhir Yadav was armed with a danda. When they tried to throw him on the ground by holding his neck he wielded his knite in self-defence which caused injuries to. Gambhir Yadav. The Principal of the College then asked him to sit in his office. About an hour thereafter the police came there and took him to the Thana. He has also examined one witness Dr. Awadesh Kumar DW 1 in his defence. 9. Mahendra Pratap Singh Appellant has stated that he was in his class. On hearing noise when he came out he saw people rushing to the Principal's room. He also went there and found Ravindra Kumar Appellant sitting there. A police party also arrived there at 1 P.M. On learning that he is the cousin of Ravindra Kumar Singh, the police party arrested him also. He examined no witness in defence. 10. After considering the above evidence, the learned Sessions Judge has concluded that the case of the prosecution is proved against both the Appellants. He has accordingly convicted and sentenced them as already stated above. 11. After examining the evidence on record in the light of the arguments made before us we agree with the finding of the learned Sessions Judge that Gambhir Yadav had received injuries on 11-12-1976 and about 12.30 P.M. near the Vyayamshala of Public Inter College, Karakat, Jaunpur. He had given good reasons in support of this finding. We agree with him as completely that we proposes to refer to the material on the record rather briefly. He had given good reasons in support of this finding. We agree with him as completely that we proposes to refer to the material on the record rather briefly. Firstly, there is no reason to hold the two eye witnesses, namely, Shyam Lal PW 7 and Hori Lal PW 9 unreliable. Further, there statements find corroboration from the report of this case lodged immediately after the occurrence. The father of deceased viz. Raja Ram PW 1 who lodged the report in the police station was a teacher in the same College and had also reached the place of the occurrence immediately after the incident. The two Appellants who were arrested on the spot were also taken to thana where they were handed over to the police. The weapon on assault, i.e. the knife snatched from the hands of Ravindra Kumar Singh Appellant was also deposited at the police station when the report was lodged. These facts also corroborate the statements of the two eye witnesses viz. shyam Lal and Hori Lal. 12. We further agree with the finding of the learned Sessions Judge that Gambhir Yadav died subsequently and as a result of the injuries sustained by him. The nature of the injury No. 1 also supports the statement of Dr. Udai Singh PW 5 that it was sufficient in the ordinary course of nature to cause the death of Gambhir Yadav. 13. We are not at all impressed by the argument of the learned Counsel for the Appellant that the atoresaid injuries were caused to the deceased by Ravindra Kumar Singh Appellant in the exercise of right of private defence. It is not possible to accept this theory on the basis of the injury report dated 13-12-1976 (Ext. Kha-4) which was prepared by Dr. Bajpal after examining Ravindra Kumar Singh Appellant in the District Jail, jaunpur on 13-12-1976 at about 11.30 a.m. The injuries noted in this injury report are: (1) Multiple contusions in an area of 17 cm. x 11 cm. over the front and outer side of left upper arm just below left shoulder joint. These contusions were varying in size and overlapping. Blue. (2) Contusion 6 cm. x 11/2 cm. over the front of left thigh 20 cm. above left knee joint. Transverse and blue. 14. x 11 cm. over the front and outer side of left upper arm just below left shoulder joint. These contusions were varying in size and overlapping. Blue. (2) Contusion 6 cm. x 11/2 cm. over the front of left thigh 20 cm. above left knee joint. Transverse and blue. 14. According to the argument of the learned Counsel for the Appellants, these injuries were received by Ravindra Kumar Singh Appellant in the incident and the concealment of these injuries by the prosecution indicate that the occurrence had not started in the manner alleged by the prosecution. The learned Sessions Judge has given good reasons to dismiss this plea. We also agree with his findings. The presence of contusions in an area of 17 cm. x 11 cm. on the outer side of left upper arm which were overlapping and were varying in size could not be the result of beating by Danda or fists or slaps. Same is the nature of other contusions which were on the front of left thigh. On the other hand these minor injuries could be caused by a fall or beating in the course of his arrest on the spot after the incident. The mere fact that causing of such injuries to Ravindra Kumar Singh during his arrest following the incident does not discredit the prosecution case as proved by the prosecution evidence already discussed above. We, therefore, endorse the finding of the learned Sessions Judge that the injuries to the deceased were not caused by Ravindra Kumar Singh in the exercise of right of private defence. Thus we are in no doubt that the occurrence had taken place on the aforesaid date, time, place and in the manner alleged by the prosecution. 15. However, we do not agree with the learned Sessions Judge that Ravindra Kumar Singh Appellant had stabbed the deceased in furtherance of any common intention. This is apparent from a mere perusal of the statement of Shyam Lal PW 7. According to his statement, while the deceased was returning from the Karakat Market along with Hori Lal, Shyam Lal and Phool Chand and had reached near the Vyayamshala of Public Inter College, they were seen by the two Appellants. It was after seeing them that Mahendra Pratap Singh Appellant merely shouted that the sale (i.e. Gambhir Yadav) be beaten. While saying so he only slapped Gambhir Yadav. It was after seeing them that Mahendra Pratap Singh Appellant merely shouted that the sale (i.e. Gambhir Yadav) be beaten. While saying so he only slapped Gambhir Yadav. Shyam Lal has stated that after the deceased was so slapped by Mahendra Pratap Singh, the persons present there protested by enquiring as to why he had slapped Gambhir Yadav. It was after this protest that Ravindra Kumar Singh took out a knife and stabbed the deceased. Thus the sequence of events as given out by this witness, leaves no room for doubt that the act of Ravindra Kumar Singh in taking out a knife and giving knife blows to the deceased was his individual act not committed by him in furtherance of any common intention. Mahendra Pratap Singh Appellant who only intended to beat him cannot be held to share the intention of Ravindra Kumar Singh which was his spontaneous act done after the protests made by others following the mere slapping of the deceased by Mahendra Pratap Singh. Therefore, Mahendra Pratap Singh Could not be convicted u/s 302 IPC with the aid of Section 34 IPC. That is, Mahendra Pratap Singh can be held responsible only for having slapped the deceased. Therefore, his conviction and sentence u/s 302/34 IPC cannot be sustained. Instead he will have to be convicted and sentenced u/s 323 IPC. 16. As already stated above, Ravindra Kumar Singh Appellant had committed the murder of Gambhir Yadav by inflicting fatal injuries on him by a knife. The learned Sessions Judge has, therefore, rightly convicted him u/s 302 IPC. But his sentence of life imprisonment under this section cannot, for reasons hereinafter given, be sustained. In his statement recorded u/s 313 Code of Criminal Procedure. Ravindra Kumar Singh Appellant had given his age as 16 years on the date of the statement. If this was his age on the date of his statement then on the date of the offence he was certainly below 16 years of age. Since this plea was not raised before the trial court, it did not consider the question of giving this Appellant the benefit of Section 27 of the Uttar Pradesh Children Act, 1951. This Appellant has filed an affidavit in this Court alongwith his certificate of High School Examination, 1978 and copies of his scholars' register. These documents prove that the date of birth of Appellant Ravindra Kumar Singh was 16-1-1961. This Appellant has filed an affidavit in this Court alongwith his certificate of High School Examination, 1978 and copies of his scholars' register. These documents prove that the date of birth of Appellant Ravindra Kumar Singh was 16-1-1961. On 11-12-1976, i.e. on the date of offence, the age of Ravindra Kumar Singh was, therefore, below 16 years i.e. he was a " child " on the date of offence as defined in Section 2(4) of the U.P. Children Act. Section 27 of this Act provides that: Notwithstanding anything to the contrary contained in any law, no court shall sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine... 17. It is, therefore, evident that Section 37 of the U.P. Children Act, 1951 prohibits the sentencing of a " child " to imprisonment for any term. In that event Ravindra Kumar Singh Appellant, being a " child " can also not be sent to jail. 18. The objection raised on behalf of the State that this plea of this Appellant cannot be allowed to be raised in this appeal has no substance. In Gopinath Ghosh Vs. The State of West Bengal, AIR 1984 SC 237 the Supreme Court permitted similar plea to be raised before it for the first time. In this case, the Supreme Court permitted this plea to be raised before it for the first time with the object of extending the benevolent provisions of the West Bengal Children Act. With the same object i.e. with the object of extending the benevolent provisions of Section 27 of the U.P. Children Act this plea can be permitted to be raised for the first time in this appeal also. 19. Further, while giving the benefit of Section 27 of the U.P. Children Act to Ravindra Kumar Singh Appellant the provisions of Section 29 of the Act cannot also be ignored. Section 29 makes a provision for sending a child to an approval School in case he is found to have committed an offence punishable with transportation or imprisonment. It further provides that such a child be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years. It further provides that such a child be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years. Ravindra Kumar Singh Appellant who was born on 16-1-1961 has already attained the age of more than 18 years today. Therefore, as provided u/s 29 of the U.P. Children Act, he cannot now be sent to an approved school. In such a situation, the Supreme Court his in Jayendra and another Vs. State of Uttar Pradesh, AIR 1982 SC 685 while maintaining the conviction of the Appellant of that case, quashed the sentence imposed upon him. Following this decision of the Supreme Court, we also quash the sentence of Ravindra Kumar Singh Appellant while maintaining his conviction u/s 302 IPC. 20. The appeal is partly allowed. The conviction of Ravindra Kumar Singh Appellant u/s 302 IPC is maintained but his sentence is quashed. He need not, therefore, surrender to his bail bonds which are also hereby cancelled. The conviction and sentence of Mahendra Pratap Singh Appellant u/s 302/34 IPC is also set aside and instead he is convicted u/s 323 IPC and sentence to the period already undergone. Appeal partly allowed.