R. K. SHUKIA, J, J. ( 1 ) APPELLANTS Naushad, Islam and Nasim have preferred this appeal against the judgment and order dated 21/3/1979 passed by the Additional Sessions Judge, Kanpur whereby the aforesaid three appellants have been convicted and sentenced to undergo three years R. I. under Section 399 I. P. C. , two years R. I. each under 8ectioa 402 I. P. C. , one years R. I. each under Section 25 of the Arms Act and six months R. I. each under Section 27 of the Arms Act. All the aforesaid sentences have been ordered to run concurrently. Three other accused, namely, Ram Singh, Shri Ram and Puttan have been acquitted by the learned Sessions Judge. ( 2 ) THE brief facts of the prosecution case are as under: In the night of 23/8/1976 at about 3. 40 A. M. Ahmad Husain Zaidi (P. W. I) S. O. P. S. Swarup Nagar received an information from the informer that the gang of Ram Singh dacoit armed with deadly weapons would assemble in the said night at about 12 0 clock on the Satupla bridge in Nauraiya Khera of police circle and from there they would proceed to commit dacoity in the house of Inderpal Singh situated in village Nauraiya Khera. The above information was lodged in the General Diary. Thereafter Ahmad Husain Zaidi (P. W. 1) collected police force consisting of S. I. Subedar Singh (P. W. 2) S. I. 8. S. Tyagi, S. I. Attar Singh, A. S. I. Ram Bali Singh, Ram Samuj, Radhey Shyam and certain constables and Head Constable and proceeded towards Satupla Bridge then the police reached at Nauriya Khera pulia. Constables Ram Murari Singh and Sudhkar were to present batch the witnesses and A. S. I. Ram Ball Singh was sent to the house of Inderpal Singh for his protection. At about 10. 30 the above constable came there along with public witnesses Badloo (P. W. 3), Sheo Baran Singh (P. W. 6), Ram Chander Dubey (P. W. 7), Vijay Bahadur and Gouri Shanker. The police party and the public witnesses were told the purpose for which they had assembled there. After taking the personal search of the police officers and public witnesses Sri Zaidi (P. W. 1) formed three parties. The police party and the public witnesses were told the purpose for which they had assembled there. After taking the personal search of the police officers and public witnesses Sri Zaidi (P. W. 1) formed three parties. Party No. 1 was heded by Sri Zaidi (P. W. 1) party No. 2 by S. I. , S. S. Tyagi and party No. 3 by S. I. Subedar Singh (P. W. 2) Party No. 1 took position towards east of the hut of Babulal. Party No. 2 towards south east and party no. 3 towards south. At about 12 in the night four dacoits came from north and entered into the said hut and started smoking bins. After 10-15 minutes two other dacoits came there and on signal by mouth by the dacoits sitting in the hut they also entered into the said hut and joined their associates. The dacoits started talking to each other that the informer had yet not reached and other dacoit told that he knew the house of Indrapal Singh and he was a rich person and they would get sufficient cash and other properties and it was useless to wait for the informant. On the above assurance all the dacoits stood up to proceed. The members of the aforesaid police party and the witnesses heard the above talks of the dacoits and they were convinced that it was the gang of dacoits regarding which Sri Zaidi had received the information. As the dacoits stood up to proceed, Sri Zaidi flashed his torch upon them, challenged them and all the three parties simultaneously raised the dacoits. Three of the dacoits, namely, Naushad, Naseem and Islam were apprehended on the spot and the remaining three dacoits ran away. Their names were disclosed to the police as Ram Singh, Shri Ram and Puttan. They were also seen by the police party in the light of the torches. The personal search of the apprehended dacoits was taken in the presence of the witnesses and accused Naushad was found in possession of one country made gun Ext. 1 and 7 live cartridges Exts. 2 to 8. Accused Nasim was found in possession of one country made pistol Exts. 9 and 4 live cartridges Exts. 10 to 13 and one torch Ext. 14, while accused Islam was found in possession of one country-made pistol Ext. 15 and 5 live cartridges Ext. 1 and 7 live cartridges Exts. 2 to 8. Accused Nasim was found in possession of one country made pistol Exts. 9 and 4 live cartridges Exts. 10 to 13 and one torch Ext. 14, while accused Islam was found in possession of one country-made pistol Ext. 15 and 5 live cartridges Ext. 16 to 20 and one torch Ext. 21. Except the torches the recovered arms and ammunition were sealed on the spot and S. I. Tyagi prepared separate recovery memos Exts. Ka-1 to Ka-3 which were duly attested by the heads of the police party and the witnesses. The burnt pieces of bins and match-stick Ext-22 were separately sealed and separate recovery memo Ext-Ka-4 was prepared. ( 3 ) SRI Zaidi (P. W. 1) directed S. I. Subedar Singh (P. W. 2) to apprehend the aforesaid three dacoits who had run away. Their names were ascertained on the spot from the apprehended dacoits. Thereafter Sri Zaidi along with the police party apprehended dacoits and came to S. P. Swamp Nagar at 3-40 A. M. and the F. I. R. Ext-Ka-5 was prepared by the Head Constable on the dictation of Sri Zaidi (P. W. 1) which was signed by him and lodged at the Police Station Govind Nagar, District Kanpur on 3. 8. 1976. The accused Ram Singh was apprehended by S. I. Subedar Singh (P. W. 2) from his hut near N. Block, Govind Nagar and accused Putt an and Sri Ram from their respective kothries in Yadav Bhawan, Swamp Nagar between 4 to 4. 30 A. M. on the said night. The above accused were made baparda on the spot and were brought to the police station baparda at 5-15 A. M. , they were put behind the bar and an endorsement of the same was made in the General Diary. ( 4 ) THE investigation of the case was conducted by S. I. Sri T. S. Misra (P. W. 9 ). He started the investigation on 4. 8. 1976, and interrogated Badloo (P. W. 3), Sheo Bran Singh (P. W. 6) and Ram Chandra. On the same day he inspected the place of occurrence and prepared the site plan Ext. Ka-lo. On completion of the investigation he submitted a charge sheet Ext. Ka-li against the three accused, namely, Naushad, Nasim and Islam. 8. 1976, and interrogated Badloo (P. W. 3), Sheo Bran Singh (P. W. 6) and Ram Chandra. On the same day he inspected the place of occurrence and prepared the site plan Ext. Ka-lo. On completion of the investigation he submitted a charge sheet Ext. Ka-li against the three accused, namely, Naushad, Nasim and Islam. He submitted separate charge sheet under Section 25 Arms Act against the above accused (Exts. Ka-12 to Ka-14) after taking sanctions-Exts. 12 A to 14 A from the District Magistrate, Kanpur. ( 5 ) SHRI Ram, Ram Singh and Puttan were put up for identification in the District jail, Kanpur on 26/6/1976. Their identification was conducted by Sri Chheda Lal (P. W. 12), Executive Magistrate. They were identified by the police officers and the witnesses. Since, they are acquitted by the learned Sessions Judge, therefore, it is not necessary to give their details. After completing the investigation S. I. Sri T. S. Misra submitted a separate charge sheet Ext. Ka-15 against Ram Singh, Sri Ram and Puttan accused on 29/8/1976. The matter was committed to Sessions for trail of all the 6 accused. ( 6 ) ALL the accused pleaded not guilty and contended that they have been falsely implicated in the case due to the enmity. Appellants Naushad and Nasim have stated that they were serving at the furniture shop of Asif Rais (D. W. 1) in Bansmandi. They have produced Asif Rais as (D. W. 1) in support of their defence. ( 7 ) THE prosecution has examined 12 witnesses in support of its case out of whom Sheo Baran Singh (P. W. 6), Ram Chandra (P. W. 7) and Amar Singh (P. W. 8) are the witnesses of fact. S. L Sri Zaidi (P. W. 1) S. L Subedar Singh (P. W. 2), Badloo (P. W. 3 ). Head constable Babu Lal (P. W. 4), Constable Him Lal (P. W. 5) S. I. T. S. Misra (P. W. 9), Constable Chakki Lal (P. W. 10), Constable Ram Nath (P. W. 11), and Sri Chheda Lal, Executive Magistrate (P. W. 12) are the formal witnesses. Besides the above witnesses the prosecution has also tendered in evidence the affidavits of constable Chakki Lal (P. W. 10), Ext. Ka-16 and Constable Ram Nath (P. W. 10), Ext. Ka-17. Besides the above witnesses the prosecution has also tendered in evidence the affidavits of constable Chakki Lal (P. W. 10), Ext. Ka-16 and Constable Ram Nath (P. W. 10), Ext. Ka-17. ( 8 ) AFTER considering the entire evidence the learned Sessions Judge has held that the identification of Sri Ram, Puttan and Ram Singh cannot be relied upon. Consequently they were acquitted but the three appellants namely, Naushad, Islam and Nasim have been convicted and sentenced as aforesaid. ( 9 ) THE aforesaid prosecution witnesses have stated about the manner of arrest of the three appellants and the aforesaid recoveries from their possessions Badloo (P. W. 3), Sheo Baran Singh (P. W. 6) and Ram Chandra Dwivedi (P. W. 7) are the residents of village Nauriya khera where the dacoity was proposed to be committed. They were called by the police to accompany the raiding party. They had also taken position along with the police party on the spot. There is no evidence on the record to show that any of these witnesses had any animosity against the appellants ( 10 ) THE prosecution witnesses have further stated that on the personal search of the appellants one country-made gun and 7 live cartridges were recovered from the possession of the appellants. Nasim appellant was found in possession of one country made pistol and 7 live cartridges and one torch. The appellant Naushad was found in possession of one country-made pistol, 7 live cartridges. The appellant Islam was found in possession of one country-made pistol, 5 live cartridges and one torch. The public witnesses have categorically stated that the three accused were apprehended in the presence of the public witnesses and the recoveries were made in their presence. It is true that exts. 1 to 3 have been signed by Baboo Lal Singh (P. W. 4 ). This does not affect the alleged prosecution case regarding the occurrence or recovery. ( 11 ) THE defence of the appellants Nasim and Naushad is that they were called by the police of the police Station Swarup Nagar from the shop of Asif Rais (D. W. 1) and that they were asked to work at the police station Swarup Nagar, but when they demanded their wages, they were falsely implicated in this case. ( 11 ) THE defence of the appellants Nasim and Naushad is that they were called by the police of the police Station Swarup Nagar from the shop of Asif Rais (D. W. 1) and that they were asked to work at the police station Swarup Nagar, but when they demanded their wages, they were falsely implicated in this case. Asif Rais (D. W. 1) was examined to prove this fact but he himself had stated that the accused Nasim and Naushad were working at his shop. Therefore, he has every interest to save them. Hence his evidence is not reliable. ( 12 ) AFTER careful scrutiny of the evidence on the record and in view of the above discussions, I have no doubt that the prosecution has proved its case beyond reasonable doubts against all the three appellants and the case of the defence has no force, therefore, the convictions of all the three appellants are maintained. ( 13 ) ON the question of sentences, Sri T. P. Asthana, the learned counsel for the appellants urged that at the time of occurrence the appellants Islam and Nasim were below the age of 16, therefore, they are entitled to get the benefit of U. P. Children Act and they cannot be sent to jail. In support of his contention he relied on Ghanshyam v. State of U. P. and Gopi Nath Ghosh vs. State of West Bengal ( 14 ) NOW the limited question that remains for consideration is as to whether Islam and Nasim appellants were children within the meaning of Section 2 (h) of the U. P. Children Act. Section 2 (4) of the U. P. Children Act defines Child to mean a person under the age of 16 Years. Admittedly, Islam appellant has given his age about 16 years Nasim appellant has given his age 17 years before the trial court. The aforesaid statements of both these two appellants have not been disputed by anybody nor the Sessions Judge has made any note in negative about the correctness of the aforesaid ages given by the appellants. Admittedly, Islam appellant has given his age about 16 years Nasim appellant has given his age 17 years before the trial court. The aforesaid statements of both these two appellants have not been disputed by anybody nor the Sessions Judge has made any note in negative about the correctness of the aforesaid ages given by the appellants. Thus after mathematical calculation, the ages of the appellants Islam and Nasim come about 13 years 5 months and about 14 years 5 months respectively on 2/8/1976 at the time of the occurrence which brings them under the definition of Child under Section 2 (4) of the U. P. Children Act is Section 27 of the same Act provides that not withstanding any thing to the contrary contained in any Jaw, 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. There is proviso to the Section that if the child is found to be unruly in behaviour or deproved, that he is not fit to be sent to an approved school and/or the other provisions under which the case can be legally dealt with arc suitable, such a child, if shown to be 12 years of age may be committed to prison. ( 15 ) SECTION 29 (1) provides that when a child is found to have committed an offence punishable with imprisonment for life and the court having been satisfied on enquiry that it would be expedient to so deal with the child, may order him to 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 or for a shorter period, the reasons for such period to be recorded in writing. ( 16 ) SINCE Islam was 13 years and 5 months of age at the time of the occurrence and Nasim appellant was 14 years and 5 months, therefore according to the provisions of Section 27 of the U. P. Children Act, no court shall sentence a child to death or transportation or imprisonment for any term or commit them to prison in default of payment of fine. Section 2 of the Act provides, insofar as it is material, that when a child is found to have committed an offence punishable with imprisonment the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, I would have directed that the appellants Islam and Nasim should be sent to an approved school but in view of the fact that they are now about 25 and 26 years old respectively, I cannot do so. Therefore, following the ratio in Jitendra v. State of U. P. I uphold the convictions of Islam and Nasim appellants but quash the sentences imposed by the trial court on them. Since Naushad appellant was about 21 years of age at the time of occurrence his conviction and sentence shall be maintained. ( 17 ) IN the result, the convictions of Islam and Nasim appellants are maintained and due to aforesaid reasons the sentences imposed by the trial court on them are quashed. They are already on bail. They need not surrender. Their bail bonds are discharged. So far as Naushad appellant is concerned, his conviction and sentence imposed by the trial court are maintained. He is on bail. He will be taken into custody forthwith to serve out the sentence according to law. Compliance of this order must be sent to this court within three months from the receipt of the record of the case. Order accordingly .