Judgment K. Nath, J. 1. APPELLANT Puran and his two sons Tauley and Suresh alongwith one Debi have been convicted under Section 302 read with Section 34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. 2. DECEASED Chhotta was the younger brother of Puran. Sometime in 1972 certain plots appear to have been given to Puran appellant on which he was in possession. In the year 197o, Pacta of some land was given to deceased Chhotca and his brother Sumer separately. The prosecution case as also admitted by the accused. is that the land which was let out to Chhotta and Sumer had been in prior possession of Puran. On 29-6-1976 at about 9-00 a. m. when Chhotta is said to have been returning from the newly acquired land, alter ploughing it to his village Lodhna Khera Police Station Pihani district Hardoi and had arrived, at about 9-00 a. m., on the village Rasta towards south of the field of one Mangli situated towards east of a canal, appellant Tauley said to have been armed with country made pistol and the rest of the appellants said to have been armed with lathis, arrived Appellant Tauley is said to have fired at Chhotta who ran into the field of Mangoli and fell down there The rest of the appellants are said to have struck him with Lathis in consequence of which Chhotta died at the spot. Sumer who had accompained Chhotta for agricultural operations in the field and was proceeding a few steps ahead of Chhotta, is said to have seen the commission of the offence and when he proceeded forward to save his brother, the appellants are said to have given Lathi beatings to him as well. 3. IT is the admitted case of both the sides that about 4 or 5 days prior to this murder when Chhotta had gone to plough the field, appellant Puran had forbidden him from doing so which had led to an altercation. That incident is said to have provided the immediate motive for committing the murder. 3. IT is the admitted case of both the sides that about 4 or 5 days prior to this murder when Chhotta had gone to plough the field, appellant Puran had forbidden him from doing so which had led to an altercation. That incident is said to have provided the immediate motive for committing the murder. Sumer, after entrusting the dead body of Chhotta to the latter's wife on the spot, went to the Police Station Pihani, two miles away, and lodged FIR there at 10-30 a. m. He named all the accused alongwith their weapons and described the presence of Gajraj PW 2 Phool Chand PW 3 and one Munna Chamar as witnesses of the occurrence. He was sent at once for his medical examination. He was medically examined the same day at 12-30 noon by Dr. Ramesh Chandra PW 7 who found 5 contusions of various sizes on his person. They were located on the left fore-arm, left buttock, left leg, left chest front aswell as left chest back. The colour of the first two contusions was found to be red. The Doctor was of the opinion that all the injuries were fresh and would have been caused the same day (29-6-1976) at about 9-00 a. m. with a possible variation of three hours either way. 4. THE FIR having been lodged in the presence of the Investigating Officer S. I., Harpal Singh PW 8 the investigation was taken up by him immediately. He recorded the statement of Sumer at the Police Station and arrived at the spot. He found the dead body of Chhotta lying in the field of Mangali at a distance of about 4 steps towards the north of the southern Mend of the field. THE dead body was at a distance of 22 steps from the canal culvert situated on the village Rasta and towards the south-west of the field of Mangali. THE Investigating Officer, found blood stains near the dead body, he collected samples of plain and blood stained earth and sealed them in separate bundles. He prepared site-plan which indicates the position of the disputed field at some distance further south-west of the canal culvert. THE Investigating Officer, found blood stains near the dead body, he collected samples of plain and blood stained earth and sealed them in separate bundles. He prepared site-plan which indicates the position of the disputed field at some distance further south-west of the canal culvert. The Investigating Officer interrorgated two eye witnesses Gajraj PW 2 and Phool Chand PW 3 the same day The dead body having been dispatched by him with relevant documents in sealed state for post mortem examination, was examined by Dr. K. R. Burnwal on 30-6-1978 at 11-30 a. m. The doctor found seven ante mortem injuries on the person of the deceased. Lacerated wound on the left leg had fractured both bones of the leg into pieces, the lacerated wound on right leg had fractured tibia into pieces, two contusions on the right side of chest had caused fracture of third and fourth ribs, rupturing right pleura and laceration of right lung, lacerated wound on the left side of the head had caused fracture of the left parietal bone, there was contusion on the left side of chest and two lacerated wounds on the right side of chin with mandible fractured on right side of cheek. 5. THE noticeable feature is that there was no fire arm injury. THE stomach and bladder were empty, walls of both the intestines had some faecal matter. THE duration of death was estimated to be about one day. 6. THE appellants on being prosecuted, pleaded not guilty They all admitted that Puran had land in his possession for a pretty long time and that about 4 or 5 days before this murder, quarrel had taken place between him and Chhotta. Puran and his two sons Tauley and Suresh stated that they had been falsely implicated due to enmity arising out of dispute over the land Debi said that he has been prosecuted due to partibandi and under the influence of the police. He added that in respect of a dacoity committed at his house, his father bad lodged a report implicating the deceased Chhotta, hence he has been falsely implicated in this case. The prosecution examined Sumer PW 1, Gajraj PW 2 and Phool Chand PW 3 as witnesses of fact. 7. PW 4 is Doctor R. K. Burnwal who conducted the post mortem examination, PW 7 Dr. The prosecution examined Sumer PW 1, Gajraj PW 2 and Phool Chand PW 3 as witnesses of fact. 7. PW 4 is Doctor R. K. Burnwal who conducted the post mortem examination, PW 7 Dr. Ramesh Chandra examined the injuries of Sumer, PW 9 Shri Krishna is the Lekhpal who proved the allotment of the land to Chhotta, PW 5 Constable Shri Pal singh proved safe movement of the dead body for post mortem examination, PW 6 Shri Sheo Ramshukla Head Constable recorded the dictated FIR and registered the case ; PW 8 S. I. Harpal Singh investigated the case. 8. THE appellants examined PW 1 Nawab Singh village Pradhan to prove that the land had been in possession of Puran since 1972. The learned III Additional Sessions Judge Hardoi accepted the prosecution evidence and convicted and sentenced the appellants as mentioned above. 9. WHEN this appeal was taken up for hearing Shri S.C. Bajpai learned counsel for the appellants appeared and said that the brief had been taken away by the accused who had engaged Shri J.N Misra to argue the case. Shri J.N. Misra has not come today. As we waded through the record of this case carefully and closely with the aid of the learned Assistant Government Advocate, Shri A.N. Banerji, after the list had been revised, Sri Amitabh Misra Advocate appeared, and filed his memo of appearance and argued the case. 10. THE first question which immediately strikes the mind is the absence of any fire arm injury on the person of either the deceased Chhotta or the injured Sumer. In the first information report it was said that the appellant Tauley fired which caused injury to Chhotta who fell down into the field of Mangali. In his statement Sumer PW 1s id that Tauley fired at Chhotta from a distance of 15 to lb s.eps wnich hit Chhota. Gajraj PW 2 said that Tauley fired whereby Chhotta was nit and he fell down injured, into the field of Mangali. THE observation of the learned lower court is that since the witnesses saw Tauley firing, and Chhotta falling into the field, they might have inferred that the pistol fire had hit Chhotta and, therefore, they might have stated accordingly. Gajraj PW 2 said that Tauley fired whereby Chhotta was nit and he fell down injured, into the field of Mangali. THE observation of the learned lower court is that since the witnesses saw Tauley firing, and Chhotta falling into the field, they might have inferred that the pistol fire had hit Chhotta and, therefore, they might have stated accordingly. It appears from the statements of these witnesses that when Tauley fired, PW 1 Sumer was few steps further east of Chhotta while the other two witnesses Gajraj PW 2 and Phoolchand PW 3 were at a little more distance of about 30 steps further east of both of them. PW 3 Phoolchand stated that when he was on his way towards the west to look up his field he heard sound of fire shot and saw that Tauley had fired. This statement indicates that atleast this witness had no actually seen the firing done by Tauley appellant, and that his attention was attracted after the pistol had been fired. THE position of Tauley appellant at the time of firing was further west of deceased chhotta. Having regard to the comparative position of the deceased and the witnesses it is not safe to hold beyond reasonable doubt that Tauley fired, or that if he at all fired, it was with a view to strike the deceased. THE fact remains that the alleged pistol fired by Tauley did not cause any injury to Chhotta. His mere presence should not be enough to connect him with the commission of the crime. THE witnesses could be under a mistaken notion of the role of Tauley. Since the medical evidence is contrary to the theory of Chhotta having being actually hit by fire arm the only reasonable conclusion may be that Tauley appellant might have been present but he may not have fired and, therefore, may not have been a party to the commission of the crime This would create a doubt regarding his complicity in the offence of which he is entitled to get benefit. But this inference would not lead to the conclusion that the witnesses were not present or had not seen the commission of the offence by the rest of the accused which consisted of attack by Lathis. The deceased has sustained seven injuries, injured Sumer PW 1 has sustained five injuries. But this inference would not lead to the conclusion that the witnesses were not present or had not seen the commission of the offence by the rest of the accused which consisted of attack by Lathis. The deceased has sustained seven injuries, injured Sumer PW 1 has sustained five injuries. This could have been caused by three persons using their Lathis as all of them were caused by blunt weapons. 11. THE next circumstance concerns the inter se enmity between the accused Debi and Puran. In the statement of Sumer PW 1 it has appeared that there was a case under section 107 Cr. P.C. between Puran and the lather of Debi, but that case, according to the witness, had occurred 15 or 16 years earlier. On the contrary, there had been enmity between Debi and Chhotta with a close proximity of time. PW 1 Sumer stated that about 3 years earlier Debi had lodged a report with the police against Chhotta ; the witness added that that was done with the aid of Puran. He also admitted that the father of Debi had lodged a report against Chhotta about three years earlier for an offence under section 45/ IPC. Indeed Debi himself has admitted that in respect of a dacoity committed at his house, his father had named Chhotta. It is not at all improbable, therefore, that in view of the latter enmity between Devi and the deceased, he had joined hands with Puran, who as admitted, had quarrel with Chhotta in respect of the land. THE circumstance, therefore, does not cause any doubt upon the probability of Devi joining the co-accused in attacking Chhotta with Lathis. 12. ANOTHER circumstance tried to be brought out by the accused is that the dead body of Chhotta was found shortly before sun-rise on the canal patri by P.W. 1 Nawab Singh, the village Pradban on the same day. This theory does not bear scrutiny at all for several reasons. The dead body as well as the blood stains were actually found by the Investigating Officer in the field of Mangali as deposed to by the eye witnesses. No suggestion was made to any of the prosecution witnesses that the dead body was found on the canal patri. This theory does not bear scrutiny at all for several reasons. The dead body as well as the blood stains were actually found by the Investigating Officer in the field of Mangali as deposed to by the eye witnesses. No suggestion was made to any of the prosecution witnesses that the dead body was found on the canal patri. The village Pradhan, Nawab Singh (D.W. 1) who said that when he was going to ease himself in the early hour of the morning just before the sun-rise on that day and had noticed the dead body of Chhotta on the canal patri, does not appear to have lodged any first information report thereof. His statement that he informed the Investigating Officer about it has been denied by the Investigating Officer himself. The statement of P.W. 3, Pnoolchand is that when Chhotta was fatally attacked by the accused in the field of Mangali and he found Chhotta lying dead, the body of Chhotta had not become cold. That also would show that Chhotta would not have died in early hours of the darkness but that the death would have occurred at about 9-00 A.M. P.W. 2 Gajraj and P.W. 3 Phool Chand are independent witnesses, their testimony against the appellants who struck with lathis is reliable and convincing. P.W. 1 Sumer is not only an eye witness but is himself an injured witness. His injuries, when examined the same day at 12-30 noon, were described as fresh. This belies the suggestion on behalf of the accused that the injuries sustained by him or the deceased had been caused in the dark hours. The incident took place in the last days of June and the dark hours must have passed at about 5-00 A.M. The medical evidence is consistent with the incident having taken place at about 9-00 A M. and not with the possibility of its having occurred during the hours of darkness. 13. ALTHOUGH the stomach of the deceased was empty, he had apparently eased himself because the urinary bladdar was empty and the intesunes had only some faecal matter sticking to their walls. The Doctor did not find the intestines to be full of faecal matter. He has been cross-examined in detail about the matter of the assault; he has stood the cross examination well. The Doctor did not find the intestines to be full of faecal matter. He has been cross-examined in detail about the matter of the assault; he has stood the cross examination well. P.W. 2 Gajraj deposed that he was going to his own held when he saw the incident. He has deposed about Puran. Suresh and Debi accused striking Chhotta with Lathis in the field of Mangali, so also Sumer (P.W. D. His testimony was sought to be challenged on the ground that be was originally a resident of village Chhataiya and, therefore, there was no likelihood of his being present on the spot in village Lodhna Khera. His statement, however, is that one Ram Rati was the widow of Mool Chand of village Lodhna Khera to whom he had married and in consequence thereof he had been living at the house of that lady and looking after her cultivation, since about a few months prior to this murder. 14. P.W. 3 Phool Chand said that he was going to look after his field at about 9-00 A.M. that day when he saw the commission of the offence. He stated that he used to live at the house of his parent-in-laws in village Lodhna Khera. He denied the suggestion on behalf of the accused that only casually he used to visit that village. He also appears to be a natural witness like P.W. 2 Gajraj. We also notice that appellant Suresh had described his age in his statement under section 313, Cr. P.C. to be 16 years. He was examined in the year 1978, the offence was committed in the year 1976. On the face of it, he should have been about 14 years of age when the offence was committed. If that be so, he should be entitled to the benefit of Uttar Pradesh Children Act, 1952, 15. IT may be mentioned in this connection that the learned Additional Sessions Judge who tried the case did not append his own estimation of the age of the accused Suresh. The question of age of accused Suresh and its consequence does not appear to have been considered by the parties or by the Court below. IT may be mentioned in this connection that the learned Additional Sessions Judge who tried the case did not append his own estimation of the age of the accused Suresh. The question of age of accused Suresh and its consequence does not appear to have been considered by the parties or by the Court below. The list of the Notification under which the provisions of Uttar Pradesh Children Act, 1952 were made applicable to the various districts of this State is printed at pages 312 and 313 of the Uttar Pradesh Local Acts Volume II by V. K. S. Chaudhari and Yatindra Singh, Advocates published by the Centra Law Agency, Allahabad. The list indicates that the provisions were made applicable with effect from 11th December, 1971 to District Hardoi under Notification No. 5246/XXXVI-SW-32 (P) 67 dated November 23, 1967. IT is clear therefore, that the Uttar Pradesh Children Act was applicable in District Hardoi in the year 1976 when the offence was committed. Appellant Suresh was child as defined under the Act. Section 27 of the Act prohibits a child to by awarded an imprisonment for any term. Proviso to Section 27 of the Act say that a child who is twelve years of age or upwards may be committed to prison when the court certifies that he is so unruly or of so deprived a character the he is not fit to be sent to an approved School and that none of the other methods in which the case may be legally dealt with is suitable. There is no material on the record of this case on the basis of which this provision could be made applicable. We, therefore, hold that the appellant Suresh should not be committed to prison. The proper action to be taken seems to be to require him to furnish an undertaking of good conduct as set out in Clause (e) of Section 3 of the Act. 16. IN the result, the appeal is partly allowed. The conviction am sentence of appellant Tauley for the offence under section 302/34, IPC is set aside. He is acquitted of the charge. He is on bail. He need not surrender His bail-bonds are discharged. The conviction and sentence of imprisonment for life awarded to appellants Puran and Debi for the offence under section 302/34, IPC are confirmed. They are on bail. Their bail-bonds are cancelled. He is acquitted of the charge. He is on bail. He need not surrender His bail-bonds are discharged. The conviction and sentence of imprisonment for life awarded to appellants Puran and Debi for the offence under section 302/34, IPC are confirmed. They are on bail. Their bail-bonds are cancelled. They shall be take: into custody to serve out the sentence awarded to them. 17. THE conviction of appellant Suresh for the offence under section 302/34 IPC is confirmed but the imprisonment for life awarded to him is set aside Instead of the sentence of imprisonment he shall be released on executing a personal bond and furnishing two sureties to the satisfaction of the Chief Judicial Magistrate, Hardoi to be of good behaviour and to maintain peace for a period of two years. He shall appear before the Chief Judicial Magistrate Hardoi, for the purpose. 18. THE Chief Judicial Magistrate, Hardoi will submit his compliance report within six weeks from receipt of a copy of this order. Appeal partly allowed.