JUDGMENT S. I. Jafri, J. 1. Riasat, son of Nawab Uddin, resident of Mohalla Chiran, Police Station Kotwali, Rampur, has preferred this appeal against his conviction under sections 302 and 324 IPC and sentence of life imprisonment and six months' R. I. respectively under the aforesaid sections of the Penal Code, recorded by Sri Hukum Singh, Sessions Judge, Rampur, vide his judgment and order dated 21-11-1977 in Sessions Trial No. 160 of 1977 State v. Riasat under sections 302/324 IPC Police Station Kotwali, Rampur. 2. The case as disclosed in the First Information Report is that on 11th May, 1977 at about 8.15 A.M. Riasat appellant fatally injured Sultan and inflicted injuries on Zahid Khan PW 2 by means of a knife inside Jama Masjid, Rampur. It was alleged that the deceased Sultan aged about 70 years and Zahid Khan, PW 2 aged about 80 years, were employed for doing cleaning and sweeping work in the Central Mosque, Rampur and at about 8.15 A.M. while they were cleaning the floor of Jama Masijid, Riasat appellant came there and began to strike at the Jhar Phanoos (Chandelier) hanging to the ceiling inside the Hall of Jama Masjid, whereupon Sultan deceased asked him to desist from his (childish) pranks trying to break the aforesaid chandelier. Consequently, the appellant moved out of the hall and began to call him bad names. When the deceased objected to his abuse, the appellant whipped out a knife and delivered a knife blow which landed in the chest of Sultan deceased who fell down in the sahan and succumbed to his injuries instantly, Zahid Khan PW 2, Noor Ahmad PW 1 and Habibul Nabi Khan PW 3 who were present there, tried to apprehend the appellant but the appellant in order to keep the witnesses at bay, inflicted knife blows to Zahid Khan PW 2 while escaping. The appellant was given a hot chase and he could be apprehended at a distance of about 25 paces from the mosque in front of the shop of 'Hansa Dry Cleaners' with the help of Ram Singh, constable and others together with the blood-stained knife in the hand of the appellant. Injured Zahid Khan was, thereafter, sent to District Hospital for being administered medical treatment for the injuries that he had sustained. 3. Noor Ahmad PW 1 is the maker of the First Information Report in this case. Injured Zahid Khan was, thereafter, sent to District Hospital for being administered medical treatment for the injuries that he had sustained. 3. Noor Ahmad PW 1 is the maker of the First Information Report in this case. He lodged the aforesaid written report at 9-10 A.M. on 11-5-1977 at Police Station Kotwali, Rampur, whereupon Constable Azhar Hussain, PW 8 prepared a Chile report on the basis of the aforesaid report and he also registered a case under section 302/324 IPC against Riasat appellant in the General Diary of the Police Station. R. P. Singh, Station Officer, Police Station Kotwali, who was present at the Police Station at the time of the registration of the case, undertook the investigation of the case. He recorded the statement of Head Moharrir Azhar Hussain, Constable Ram Singh and NOOR Ahmad, complainant at Police Station Kotwali. Thereafter, he went to the place of occurrence and found the dead body of the deceased and sent the corps in sealed cover to the Mortuary for post-mortem examination through constables Wazi Ullah and Rajendra Prasad. While at the place of occurrence, the Sub-Inspector found blood and he collected the blood staked pieces of the platform of the mosque and also took unstained pieces of the platform and prepared recovery memo thereof Thereafter, the Investigating Officer recorded the statements of Habibul Nabi and others. The investigation of the case later on was taken over by Rajvir Singh Tyagi on 21-6-1977 and after recording the statement of Zahid Khan, PW 2, he submitted charge-sheet the same day. 4. Injuries sustained by Zahid Khan were examined at District Hospital, Rampur on 11-5-1977 at 8.40 A.M. by Dr. G. K. Jain, who found the following injuries on his person : 1, Incised wound 2 cm. x 1/2 cm. x depth of which could not be probed. On the middle of the back in the spinal region 18 cm. below the c7 spine which had been kept under observation. 2. Abrasion 1, 1/2 cm. x 1/6 cm. on the back of left ear. The autopsy on the dead-body of Sultan deceased was conducted by Dr. R K. Misra, Medical Officer, District Hospital, Rampur on 11-5-1977 at 5.30 P.M. and the Doctor found the following ante-mortem injuries on his person : Incised wound 5 cm. x 1 1/2 cm. x chest cavity deep on the front side, nearly 14 cm. The autopsy on the dead-body of Sultan deceased was conducted by Dr. R K. Misra, Medical Officer, District Hospital, Rampur on 11-5-1977 at 5.30 P.M. and the Doctor found the following ante-mortem injuries on his person : Incised wound 5 cm. x 1 1/2 cm. x chest cavity deep on the front side, nearly 14 cm. below the collar bone The wound was oblique and its margins were clean-cut. Internal examination of the body revealed that 4th, 5th and 6th ribs were cut and the muscles below them, were also cut. Pleura contained blood in both the sides and it was perforated. Arota was also cut from where it starts from heart 3 cm. long through and through. 5. According to the opinion of the Doctor, death was caused due to shock and haemorrhage as a result of antemortem injuries. 6. Appellant pleaded not guilty to the charge and he examined Asad Ali Khan DW 1 in his defence. However, Riasat appellant under section 313 CrPC stated that Zahid Khan, PW 2 had called him inside Jams Masjid. After passing water, as soon as he went inside the Bath-room near Hauz, Zahid Khan came from behind and caught hold of him and attempted to untie the strings of his trousers in order to copulate with him. He raised hue and cry upon which Sultan deceased also arrived there and joined hands with Zahid Khan to accomplish the object and under the circumstances, be wielded knife in order to guard against their attempts. Thereafter, he tried to escape but he was apprehended along with the knife. 7. The learned Sessions Judge, upon consideration of the evidence adduced in the case, came to the conclusion that the prosecution had been able to bring home the guilt to the accused and he accordingly convicted and sentenced him as stated supra. 8. In order to prove its case, the prosecution examined 11 witnesses in all and out of them, Noor Ahmad PW 1, Zahid Khan PW 2 and Habibul Nabi PW 3 were examined as ocular witnesses of the occurrence. Noor Ahmad PW 1 has dwelt upon the prosecution case in detail. He was the supervisor of Jama Masjid Rampur, while deceased Sultan and Zahid Khan PW 1 and Habibul Nabi PW 3 were the employees of the mosque for doing cleaning and sweeping job there. 9. Noor Ahmad PW 1 has dwelt upon the prosecution case in detail. He was the supervisor of Jama Masjid Rampur, while deceased Sultan and Zahid Khan PW 1 and Habibul Nabi PW 3 were the employees of the mosque for doing cleaning and sweeping job there. 9. Narrating the events of the day of occurrence, Noor Ahmah deposed that accused Riasat was also known to him from before. On 11-5-1976 at about 8.15 a. m. he was inside Jama Masjid and Sultan deceased, Zahid Khan and Habibul Nabi were also present there. Just about the time, Riasat accused came there and started taking aim at Jhar Phanoos (Chandelier), hanging to the ceiling of the mosque by means of a bamboo and on the objection made by Sultan deceased while moving to the Sahan of the mosque, the accused hurled abuse at Sultan deceased. Sultan deceased rebuked him and warned him to desist from his antics inside the mosque,, whereupon the accused delivered knife blow in the chest of the deceased and upon sustaining knife injuries, the deceased fell down on the ground and died instantly. When he (Noor Ahmad), Zahid Khan and Habibul Nabi moved forward to apprehend the accused, he also delivered 2-3 knife blows to Zahid Khan and began to escape towards Chauki Khans, but he and Habibul Nabi hotly chased him and succeeded in apprehending him in front of 'Hans Dry Cleaners' with the help of constable Ram Singh who had snatched knife from the hand of the accused. Thereafter, he wrote down a report at the gate of the mosque itself and went to the Police Station Kotwali along with the knife and the accused, where he handed over the report and the knife to the Head Moharrir, who prepaid recovery memo and the accused was put inside the lock-up of the Police Station. In cross-examination, he denied his absence inside the mosque. He also denied that Zahid Khan had caught hold of the accused inside the mosque in order to commit sodomy on him, as a result of which the accused had delivered knife blows to him. 10. Noor Ahmad complainant is a non-partisan and independent witness. No enmity leading to the appellant's liaise implication in the instant case, has been ascribed to the witness in cross-examination, nor has any motive prompting the accused to deliver knife blow to the deceased had been suggested. 10. Noor Ahmad complainant is a non-partisan and independent witness. No enmity leading to the appellant's liaise implication in the instant case, has been ascribed to the witness in cross-examination, nor has any motive prompting the accused to deliver knife blow to the deceased had been suggested. No material infirmity or discrepancy has been fished out by the defence from his evidence to discredit his testimony. On account of his being non-partisan, disinterested and independent, we hold him a wholly reliable witness, whose testimony radiates confidence. Evidence of Noor Ahmad, complainant is fully lent corroboration by Zahid Khan, PW 2 and Habibul Nabi PW 3. No animus has been ascribed to these witnesses appearing in support of the prosecution case nor any material discrepancy or infirmity could be pointed out by the defence to show them. Moreover, Zahid Khan is also an injured witness, whose testimony receives ample corroboration from the medical evidence as well. 11. Again reverting to the defence case, the appellant examined Asad Ali Khan, DW 1 who deposed that on the day of occurrence at about 8-9 a. m. while he was on his way to Mohalla Gujar Tola in order to see one of his friends, Pervez and as soon as he came in front of the Central Mosque, he noticed a crowd collected there as well as the appellant Riasat being held captive by two persons. There was a police constable as well. He further deposed that the appellant had told him that Zahid Khan wanted to commit unnatural act on him. Thereafter, Noor Ahmad arrived there and he took the appellant to Police Station Kotwali. He, then, went to the appellant's father in order to inform him about the appellant's arrest. In cross-examination, he admitted that he belongs to the Mohalla of the accused. He also admitted that the accused did not tell him that he had delivered knife blows to anybody. It was also admitted by him in cross-examination that, thereafter, he did not go to see his friend as he went to the appellant's father to inform him. 12. Upon careful consideration of the evidence of Asad Ali Khan, we feel that the testimony of Asad Ali Khan is not capable of making any dent in the prosecution case or help the defence case. 12. Upon careful consideration of the evidence of Asad Ali Khan, we feel that the testimony of Asad Ali Khan is not capable of making any dent in the prosecution case or help the defence case. He is admittedly a resident of the Mohalla to which appellant belongs and the probability that he was holding brief for the appellant on account of his close association with the accused, cannot be ruled out, and as such, we hold that he is a got up witness introduced in order to support the defence version. Sri Iqbal Hussain Khan, learned counsel for the appellant submitted that the prosecution case that tie appellant was aiming at Jhar Phanoos (Chandelier), banging to the ceiling of the hall of Jama Masjid cannot be accepted as the appellant in doing so, was not due to gain anything. He further submitted that this act as ascribed to the appellant, demonstrates the mental abnormality of the appellant and cannot be regarded as an act of normal mind. It was further submitted by the learned counsel that the prosecution has not let the true picture emerged and had, thus, concealed the true facts from being diclosed to the Court. This contention of the learned counsel for the appellant is based on no evidence on the record and the circumstances of the case do not even indicate whether certain material facts bearing on the just decision of this case, were withheld by the prosecution from being disclosed to the court. However, it is not uncommon that sometimes, young boys are prone to doing mischievous acts such as throwing stones at the street lamps just for fun. In the present case, the story that the appellant was attempting to damage the Jhar Phanoos (Chandelier) inside the mosque out of sheer mischief or fun, cannot be ruled out and thus, the prosecution case appears to be probable. 13. The learned counsel for the appellant further pointed out that according to the prosecution case, the appellant, was stirring the Jhar Phanoos by means of a bamboo, but the Investigating Officer did not find any bamboo inside the mosque. The learned counsel further submitted that the First Information Report is conspicuous by its silence with regard to the fact that the appellant had tried to damage the Jhar Phanoos by means of a bamboo lying in the mosque. The learned counsel further submitted that the First Information Report is conspicuous by its silence with regard to the fact that the appellant had tried to damage the Jhar Phanoos by means of a bamboo lying in the mosque. It is, thus, submitted by the learned counsel that in view of the discrepancies as pointed above, the origin of the prosecution case itself appears to be doubtful and no credence, thus, be given to the prosecution case. 14. Considering the facts and circumstances of the case, we are of the view that some laxity in the investigation is no doubt there on the part of the Investigating Officer, but merely the bamboo not being taken into possession by the Investigating Officer, or the bamboo not being mentioned in the First Information Report, do not fatally affect and dislodge the very foundation of the prosecution case and therefore, we are fully satisfied that prosecution has fully succeeded in bringing home the guilt to the appellant without any reasonable doubt. We also hold that the defence has failed to bring out any illegality or infirmity in the judgment of the trial court. However, the learned counsel for the appellant has drawn our attention to the fact of the accused being minor at the time of occurrence and submitted that the accused being minor on the date when the occurrence bad taken place, any sentence of imprisonment cannot be legally passed on him in view of the provisions of section 27 of U.P. Children Act of 1951. The said section is quoted below : " Section 27-Sentences that may not be passed on child. 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 ; Provided that a child, who is twelve years of age or upwards may be committed to prison when the court certifies that he is of so untruly, or of so depraved a character that he is not fit to be sent to an approved school and that none of the other methods in which the case may legally be dealt with is suitable.". Before deliberating upon the applicability of the provisions of section 27 of the Act, it would be appropriate to take into account the definition of child given in the Act. Before deliberating upon the applicability of the provisions of section 27 of the Act, it would be appropriate to take into account the definition of child given in the Act. Section 2 of the Act defines the child as under: "A child means a person under the age of 16 years". 15. In order to find out whether the benefit of the Act be extended to the accused, is presupposes to ascertain whether U.P. Children Act 1951 came into force in the district of Rampur or not on the relevant date. The learned counsel for the appellant placed before us the notification no. 2692/XXX-IV-SW 77-91 (9) 76 dated 18th November 1977, wherein, it was notified that sub-section (4) of Section 1 of U.P. Children Act of 1951 (U.P. Act No. 1 of 1952) and all the provisions of the Act, came into force with immediate effect in the local area comprising the districts of Jhansi, Lakhimpur Kheri, Jalaun, Rampur, Muzaffarnagar and Fatehpur. From the above notification, it transpires that though on the date of occurrence in the present case, the Act was not in force in the district of Rampur, but had come in force on 18th November 1977 i.e. three days before the delivery of judgment in the present case by the trial court i.e. on 21-11-1977. Under the circumstances, we take a liberal view of the provisions of the Act and extend the benefits of the Act to the appellant, if the accused on the basis of the evidence on reword, is found to be under sixteen years of age on the day of occurrence taking into consideration the preamble and spirit of the Act. 16. The learned counsel for the appellant submitted that the learned Sessions Judge, while recording the statement of the accused on 21-11-1977 under section 313 CrPC had given his age about 16 years. The Chief Medical Officer, Rampur vide his report dated 12/14-11-1985, submitted on the direction of this Court after examining the accused, had given his age as above 19 years on 14-11-1985. The learned counsel further submitted that, thereafter, on the application dated 22-12-1986 moved by [public prosecutor before the Sessions Judge, a Medical Board was set up which after examining the accused on 1-4- 1987 estimated his age about 22 years. The learned counsel further submitted that, thereafter, on the application dated 22-12-1986 moved by [public prosecutor before the Sessions Judge, a Medical Board was set up which after examining the accused on 1-4- 1987 estimated his age about 22 years. The Board found epiphysis around the joint not yet fused completely, middle pieces of sternum showed partial fusion, xphisterm and mamibrium sterni were not fused. Setures were visible in the skull on X-ray examination. The learned counsel also submitted that the learned Sessions Judge, Rampur recorded the statements of Nawatb Uddin CW 1 and Mithilesh Kumar Shukla, CW 2 and Dr. A. N. Kapoor, CMO Dehradun as additional evidence under the direction of this Court. The appellant has also filed Ration Card and a copy of the Birth and Death register maintained by the Municipal Board, Rampur, before the learned Sessions Judge,, showing his date of birth as 15-6-1964. The learned Sessions Judge afforded opportunity to the District Government Counsel for cross-examining the above three witnesses and on cross- examination, the prosecution has failed to dislodge the testimony of Dr. A. N. Kapoor, who opined that upon examination of the accused on 14-11-1985 he found his age to be above 19 years subject to a margin upto one year on the higher side. 17. Nawab Uddin, father of the appellant, who was examined as CW 1, has given out the age of the appellant as about 17 years. A copy of the birth and death register filed by him showed tike date of birth of the appellant to be as 15-6-1964. A careful scrutiny of the evidence of the witnesses examined by the Sessions Judge, the medical reports and also the Ration Card and the birth and death register, we come to conclusion that the accused Riasat being under sixteen years of age was minor on the day of occurrence. Once a court arrives at a conclusion that the appellant was a child being under sixteen years of age on the day of occurrence, the accused, if convicted, cannot be sentenced to imprisonment in view of the provisions contained in section 27 of the Act. Once a court arrives at a conclusion that the appellant was a child being under sixteen years of age on the day of occurrence, the accused, if convicted, cannot be sentenced to imprisonment in view of the provisions contained in section 27 of the Act. The learned counsel for the appellant placed reliance on 1982 SC 68S Jayvendra v. State of U.P. wherein while upholding the conviction of the accused, the Honourable Court had set aside the sentence of imprisonment holding the accused to be a child on the day of occurrence and directed the release of the accused forthwith. The learned counsel for the appellant also placed reliance on 1988 ACrR 28 Virendra v. State of U.P., wherein the conviction of the appellant under section 302 IPC was upheld but the sentence of life imprisonment was set aside on the ground that the appellant was a child on the day of occurrence. 18. Upon a conspectus of the facts and circumstances, as discussed above, we uphold the conviction of the appellant under sections 302 and 324 IPC but set aside the sentence of life imprisonment and six months' RI respectively awarded to him by the trial court, as he was a child on the day of occurrence of this case. The appellant is presently aged about 22 years and therefore, he has attained majority and under the circumstance, he cannot be sent to any approved School or he be given in the care of any suitable person including his parents. Under the circumstances as shown above, the appellant deserves to be released. 19. In the result, the appeal is partly allowed. The conviction recorded by the trial court under section 302 and 324 IPC against the appellant is affirmed, but the sentence of life imprisonment and six months RI respectively awarded to him are set aside. The appellant is on bail. He need not surrender and his bail bonds are discharged. Appeal partly allowed.