G. K. MATHUR, J. This appeal is directed against the judgment and order dated 30th January, 1979 passed by Sri R. S. Agrawal, II Additional Sessions Judge, Aligarh in Sessions Trial No. 465 of 1977 by which Daya Ram been convicted for the offences punishable under Sections 148, I. P. C. , 323/149 I. P. C. , 324/149, I. P. C. 325/149, I. P. C. and sentenced to undergo rigorous imprisonment for a period of one year, six months, two years and three years under those sections respectively. Daya Ram has been further convicted for the offence punishable under Section 302, I. P. C. and sentenced to undergo life imprisonment. The appellants Radhey Shyam and Subhash have been convicted for the offences punishable under Sections 148, 323/149, 324/149, 325/149 and 326/149, I. P. C. and each one has been sentenced to undergorigorous imprisonment for a period of one year, six months, three years and four years for the aforesaid offences respectively. Appellants far Chand and Vijai have been convicted for the offences punishable under Sections 147, I. P. C. 323/149, 324/149, 325/149 and 326/149, I. P C. and each has been sentenced to undergo rigorous imprisonment for a period of six months, two years, three years and four years for each count respectively. The sentences of the accused persons have been made to run concurrently. 2. The prosecution case, in brief, is that when Ramesh, Bhagwati Prasad, Laxmi Narain and Pooran Mai (P. W. 1) were sitting and talking amongst themselves, accused Subhash came out of his Nohara at about 10. 00 p. m. on 5th October, 1977 and asked them in abusive language to stop talking as he was studying and when Pooian Mai took exception to the abusive language of Subhash, he went away to his house saying that "sale MAN TO ABH1 JAOGE". 3. It is alleged that after a little while, Daya Ram, Radhey Shyam Subhash armed with spear, Har Chand and Vijai armed with Lathi came on the Chaupal and when they advanced to assault Pooran Mai and others sitting on the Chaupal (P. W. 6) Chameli wife of Pooran Mai and Smt. Punia wife of Bhagwati Prasad came out of the house on the Chaupal and they all raised alarm for safety due to which (P. W. 4) Kali Charan, Lakhpat, (P. W. 5) Gulab etc. arrived there with torches. arrived there with torches. It is alleged that Daya Ram gave a piercing blow of spear to Laxmi Narain and the other accused persons caused injuries with their weapons to Pooran Mai, Bhagwati Prasad, Smt. Chameli and Smt. Punia, Laxmi Narain, according to the prosecution, after receiving the spear blow, fell down on the Chaupal and died. 4. Pooran Mai, according to prosecution, got the report Ext. Ka. 1 of the incident written from Lakhpati Singh in the morning of 6th October, 1977 and lodged it at the Police Station Gonda, district Aligarh at 6. 30 a. m. which is situated at a distance of three miles. Check report Ex. Ka. 8 was prepared on its basis and the substance thereof was entered in the General Diary at serial No. 6 (Ex. Ka 9) by Babu Ram Yadav Head Constable. P. W. 8 A. K. Yadava, Station Officer, Police Station Gonda made the investigation of the case, prepared site-plan (Ex. Ka. 10) and got prepared inquest report Ex. Ka. 11, Naksha Nash Ex. Ka. 12, Challan report Ex. Ka. 13, by S. I. Giriraj Singh. He also took in possession blood-stained earth and sample of plain earth from the spot vide memo Ex. Ka. 15. 5. Dr. A. K. Garg, Medical Officer, Primary Health Centre, Gonda made the medical examination of the injuries of Pooran Mai, Smt. Punia, Bhagwati Prasad and Smt. Cnameli on 6th October, 1977 from 11. 30 a. m. to 12. 05 and prepared injury reports Exs. Ka. 6, Ka. 5, Ka. 4 and K. 3 respec tively. P. W. 7 Dr. S N. Agrawal Radiologist, Malkhan Singh Hospital, Aligarh after taking X-ray of left shoulder of Smt. Cuameli on 7th October, 1977, found a crack fracture of greater tuberosity of upper and left humorous bone vide X-ray report Ex. Ka. 9. 6. P. W. 2, Dr. V. K. Sarikwal, Medical Officer, Malkhan Singh Hospital, Aligarh made the post mortem examination on the body of Laxmi Narain at 3. 00 p. m. on 7th October, 1977. According to him the deceased was aged about 48 years. He found the following ante mortem injuries : 1 An oblique punctured wound 2x1" abdominal cavity deep and left side abdomen 6" blow left nipple at six o clock position. Margins were clean cut. Both the angles were clean cut. The direction of the wound was upward. According to him the deceased was aged about 48 years. He found the following ante mortem injuries : 1 An oblique punctured wound 2x1" abdominal cavity deep and left side abdomen 6" blow left nipple at six o clock position. Margins were clean cut. Both the angles were clean cut. The direction of the wound was upward. A part of the greater omen-turn was coming out of the wound. 2. Contusion 8x2" on the left lower and back side of the chest. J. I. C.- 7. On internal examination, the inferior surface of the membrance of the chest under left side was found punctured and the left lobe of chest at the lower and was found punctured and on the left diaphragm was found punctured through and through. In the cavity on the left side of the chest 500 c. c. clotted and fluid blood was found. On the left side the left peritonium on the upper side was found punctured. In the abdominal cavity 300 c. c. clotted fluid blood was found and it was mixed with half digested food. The greater carvature superior surface of the stomach was punctured through and through and about 2 oz. half digested food was present. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of injury No. 1 and the death had occurred about one and a half days prior to his examination. 8. The prosecution has examined eight witnesses and tendered in evidence the report of Chemical Examiner, the Serologist and the affidavits of witnesses of formal nature. A mention of all the eight witnesses examined in the Court has come in the narration of the prosecution case. 9. The accused persons pleaded not guilty. Accused Radhey Shiam in his statement under Section 313, Cr. P. C. stated that at about 8. 00 or 900 p. m. when he was sleeping inside the room situate near the school, he heard the noise of Pooran Mai, Bhagwati Prasad, Ganga Prasad and Ramesh of quarrel ling with Subhash and that some of them were knocking the door of the room of Daya Ram asking Subhash in abusive language to come out of room and that some of them on the Chabutra of Daya Ram. Radhey Shiam further stated that he asked them not to give abuses but they did not stop and assaulted him with Lathi and spears. He claims that in desperation he snatched the spear of Ramesh and used it. He further stated that he could not say to whom the spear wielded by him struck as the night was dark. He claimed that he had fallen down and has not seen what happened thereafter. According to him the witnesses have deposed against him due to partybandi and that they belong to the same family. 10. Accused Subhash has denied all the allegations made by the prosecu tion and has stated in his statement recorded under Section 313 of the Criminal Procedure Code that he was studying in his room situate in his Nohara and that Pooran Mai, Bhagwati Prasad, Laxmi Narain and Ramesh came there and knocked the door and asked to open the door and said that they would kill him. He stated that he did not open the door and remained sitting in his room where he was all alone. He stated that he does not know any thing else. 11. Accused Daya Ram, Harchand and Vijai Kumar in their statements under Section 313, Cr. P. C. have specifically denied the allegations made against them and have stated that they have been falsely implicated due to partybandi. 12. The accused persons examined D. W. 1 Dr. M. S. Pundir, Assistant Medical Officer, District Jail, Aligarh. He stated that on 6th October, 1977 he examined the injuries of Radhey Shyam in the jail and found the following injuries on his person and noted them in the register : 1. Lacerated wound right middle of scalp 0. 5" x 0. 1" site 2-3. 1" above the upper junction of right ear. Margins irregular slightly swollen serum type discharge. 2. Lacerated wound (above right car on scalp) 0. 6 x 0. 1-1/2" x0. 3/4" site 0. 6" above upper junction of right external pinna. Marginsirregular slightly serum type discharge. ( for x-ray ). 3. Abrasion above right external pinna (upper region) 0. 4" x 0. 1" site, 0. 4" above the upper junction of right external pinna colour scab, Brown. 4. Linear abrasion right side of thorax lumber region (back 5 X 0. 1 site, 5. 2") below the lower angle of right scapula, Colour scab- Brown. 5. ( for x-ray ). 3. Abrasion above right external pinna (upper region) 0. 4" x 0. 1" site, 0. 4" above the upper junction of right external pinna colour scab, Brown. 4. Linear abrasion right side of thorax lumber region (back 5 X 0. 1 site, 5. 2") below the lower angle of right scapula, Colour scab- Brown. 5. Linear abrasion middle of left clavicle 1. 4" x 0. 1 "site; middle of left clavical. 13. All injuries are simple. Injury No. 2 kept under observation for x-ray. Injuries Nos. 1, 2 and 3 are caused by blunt object and Nos. 4 and 5 caused by semi-sharp object. Duration of the injuries about one day. Injury No. 2 healed easily. No x-ray required. 14. The learned trial court found the case proved and convicted and sentenced the accused persons as indicated above. 15. Feeling dissatisfied, the accused persons have preferred this appeal. 16. Heard the learned counsel for the appellants and the learned Government Advocate and perused the record. 17. Daya Ram, Harchand and Radhey Shiam appellants are real brothers. Appellant Subhash is the son of Daya Ram and appellant Vijai Kumar is the son of Radhey Shiam. 18. P. W. Pooran Mai and Bhagwati Prasad are brothers. Deceased Laxmi Narain was their brother and the appellants happened to be collaterals of P. W. 1 Pooran Mai but the relations between them were strained and they were not on visiting terms since long. Towards north of the Chabutra is the Chaupal of the house of Pooran Mai and after passage Nohra of Daya Ram is situated. The said Nohra contains a room, varandah besides thatch etc. The house of the appellants are situate towards south-west of the house of Pooran Mai as shown in the site plan. 19. The main argument advanced by the learned counsel for the appellants is that the injuries received by Radhey Shiam appellant remained unexplained by the prosecution and the stand of the prosecution witnesses to the effect that he did not receive the injuries rendered the prosecution case incorrect and highly doubtful. 19. The main argument advanced by the learned counsel for the appellants is that the injuries received by Radhey Shiam appellant remained unexplained by the prosecution and the stand of the prosecution witnesses to the effect that he did not receive the injuries rendered the prosecution case incorrect and highly doubtful. He urged that the incident in question, in fact, had taken place at the Nohra of Daya Ram appellant where the P. W. 1 Pooran Mai and others had come to attack and kill Subhash and that the appellant Radhey Shim was attacked by them when he asked them not to do so. 20. The learned Government Advocate submitted that the incident in question had taken place at the Chaupal Chabutra of Pooran Mal and not at the Nohara of Daya Ram and that the appellant Radhey Shiam did not receive any injury in the incident in question at all and therefore, the question of explanation of the injuries of Radhey Shiam appellant did not arise at all. 21. We have perused the evidence in the light of the above submissions. P. W. 1 Pooran Mai has stated that the appellant Subhash came to his Chaupal from his Nohara at about 10. 00 p. m. where he, Bhagwati Prasad, Laxmi Narain and Ramesh were talking and asked them not to talk as he was studying and when Pooran Mai etc. objected to the use of the abuses, he went away from there towards his house giving them threat. He has also stated that a little after that, the appellants came to the Chabutrafchaupal and started assaulting them. The statement of Pooran Mai relating to the coming of Subhash appellant from his Nohra to get the talks stopped because it was causing disturbance in his studies, is quite convincing. It has come in evidence that Subhash was a student of class XI in those days. The appellant Subhash in his statement under Section 313 of the Code of Criminal Procedure has stated that he was studying in his room situated in the Nohra at the time of incident in question. 22. On the question of actual incident of assault and murder of Laxmi Narain, there is the testimony of P. W. 1 Pooran Mai, P. W. 4, Kali Charan, P. W. 5 Gulab and P. W. 6 Chameli. 22. On the question of actual incident of assault and murder of Laxmi Narain, there is the testimony of P. W. 1 Pooran Mai, P. W. 4, Kali Charan, P. W. 5 Gulab and P. W. 6 Chameli. Amongst them Pooran Mai and Chameli had received injuries in the incident in question P. W. 4 Kali Charan and P. W. 5 Gulab have stated that they arrived at the spot on hearing the cries for help of Pooran Mai etc. They have stated on oath that Daya Ram gave spear blow to Laxmi Narain and that the incident in question had taken place at the Chaupal of Pooran Mai. In the incident in question Pooran Mai, Bhagwati Prasad, Smt. Puniyan and Smt. Chameli have received injuries besides Laxmi Narain at the hands of the assailants. The Investigating Officer found blood at the Chaupal of Pooran Mai. He also found the dead body of Laxmi Narain kept there. The plea of appellant Radhey Shiam taken by him in the statement made under Section 313 of the Criminal Procedure Code that Pooran Mai, Bhagwati Prasad and Ramesh were quarrelling with Subhash and some of them were knocking the door of the room of Subhash in abusive language to come out of the room without any rhyme or reason, has no legs to stand. Further his theory that the aforesaid persons assaulted him with lathis and spear, that in desperation he snatched the spear of Ramesh and wielded it without knowing whom it struck and that he had fallen down on the ground and did not know what happened thereafter, appears to be far from reality. It may be mentioned that the appellant Radhey Shiam has nowhere mentioned the name of Laxmi Narain amongst the persons who were quarrel ling with Subhash and were asking him to open the door to which he objected himself. Appellant Subhash in his statement under Section 313, Cr. P. C. stated that he did not open the door at the knocking of Pooran Mai, Bhagwati Prasad, Laxmi Narain and Ramesh and that he did not know anything else. In this view of the matter and in the face of the statements of the prosecution witnesses, it is established beyond doubt that the incident in question had taken place at the Chaupal of Pooran Mai as alleged by the prosecution. 23. In this view of the matter and in the face of the statements of the prosecution witnesses, it is established beyond doubt that the incident in question had taken place at the Chaupal of Pooran Mai as alleged by the prosecution. 23. The eye-witnesses examined by the prosecution have stated on oath that Pooran Mai, Bhagwati Prasad, Laxmi Narain and Ramesh had no arms in their hands at the time of incident in question and that no injury was caused to any of the assailants in the said incident. On behalf of the accused persons, no direct evidence has been given in support of the case set up by the appellants Subhash and Radhey Shiam. The only evidence adduced by the appellant is the statement of D. W. 1 Dr. M. S. Pundir, Assistant Medical Offi cer, District Jail, Aligarh. He claimed to have examined the injuries of Radhey Shiam on 6th October, 1977 in the District Jail and noted them in the injury register. They have been described above. All the injuries were simple in nature. The injury No. 2 for which he was advised x-ray, was not x-ray ed because it healed up easily. It has come in the statement of Dr. Pundir that these injuries could not be self-suffered because they were on scalp. He, however, stated that the injuries of the under-trials are noted in the register of the jail at the time of entrance, maintained at the gate of the District Jail. In this case the injuries have been noted by the doctor in the injuries register maintained at the jail hospital. Appellant Radhey Shiam was arrested by Shanker Pal Singh A. S. I. on 6th October, 1977 at about 8. 30 a. m. The entry of which was made by him in the G. D. at serial No. 14 in which it has been mentioned that there was no injury on the person of Kadhey btuam but the Baniyan contained the blood spots. Appellant Radhey Shiam was sent in custody before the Judicial Magistrate but he did not make a request for the medical examination of the injuries as required under Section 54 of the Criminal Procedure Code. It is also significant to note that the appellants did not lodge any report to the police nor gave any application to any authority about their alleged version of the incident in question. It is also significant to note that the appellants did not lodge any report to the police nor gave any application to any authority about their alleged version of the incident in question. We are of the opinion, in view of the above evidence and circumstances that the appellant Radhey Shiam, in fact, did not receive any injury in the incident in question. The statement of Dr. Pundir cannot be accepted to hold that Radhey Shiam had received injuries in the incident in question. 24. In this view of the matter, the argument of the learned counsel for the appellants that the prosecution case is rendered incorrect and highly doubt ful on account of non-explanation of the injuries of Radhey Shiam appellant falls to the ground. 25. We, however, agree with the contention of the learned counsel for the appellants that Subhash and Vijai Kumar were below 16 years of age at the time of incident in question and, therefore, they cannot be sent to jail to serve out their sentences. Their conviction, however, cannot be set aside on this ground. 26. No other point has been argued in this appeal. 27. We maintain the conviction of the appellants Subhash and Vijai Kumar awarded by the court below but quash their sentences as they were below 16 years of age at the time of the incident and now having become majors they cannot be sent to approved school. 28. The appeal is dismissed with the above-mentioned modification. The appellants Daya Ram, Radhey Shiam and Har Chand are on bail. They shall be taken into custody forthwith to serve out the sentences. The appel lants Subhash and Vijai Kumar, whose conviction has been maintained but sentences are quashed, need not surrender. The bail bonds furnished by each of the appellants are hereby cancelled. Decided accordingly. .