PALOK BASU, J. ( 1 ) THIS appeal has been filed by Pachrangi, Sinder Singh and Chandra Prakash against their conviction u/s. 302/34, IPC and sentence of imprisonment for life as awarded by II Addl. Sess. Judge Shahjahanpur on 16-1-1979 in Sessions Trial No. 351 of 1978. ( 2 ) AN incident is said to have happened at about 10 p. m. on 21-8-1977 in the precincts of the Railway Station Maigalganj, District Shahjahanpur. Ram Kumar, P. W. 3, was employed in the said Railway Station and P. W. 2, Salig Ram had come to see him. They were on a charpai. At the station platform, four other travellers were asleep, one of whom was sleeping on the cement bench. Three appellants reached there when appellant Pachrangi fired at the person who was sleeping on the Bench from his tamancha (country made pistol), appellant Sinder Singh delivered blows with a Hatta (Iron rod) and appellant Chandra Prakash beat him with his hands after catching hold of him. Alarm was raised by Salig Ram and Ram Kumar who also flashed their torches. Electric light was also available. The appellants were known to them from before. A chase was given. Constable Chhatrapal Singh and another constable were coming from opposite direction and all the three appellants were ultimately arrested then and there. Pachrangi was found in possession of a Katta from within which an empty cartridge was found. Sinder Singh was carrying the iron-rod. The appellants and the recovered articles were taken to the police station Maigalganj where Ram Karan Singh P. W. 7, prepared memos in respect of the recovered articles. The blood-stained Kurta of appellant pachrangi was also taken into possession. Salig Ram lodged a FIR on the basis of which a case was registered in the general diary Ext. Ka 14. The case was sent to the police station G. R. P. Shahjahanpur where S. O. Bhim Singh, P. W. 5, took up the investigation as he was station officer G. R. P. then. Uma Shankar, P. W. 1, constable made the necessary entries in the general diary. Postmortem examination was performed by Dr. K. A. Abbas, P. W. 6 on 23-8-1977 who found the following injuries on the person of the deceased:"ante-MORTEM Injuries: 1. Incised wound 6 cm x. 5 cm x bone on the right side of face on the right external ear. Postmortem examination was performed by Dr. K. A. Abbas, P. W. 6 on 23-8-1977 who found the following injuries on the person of the deceased:"ante-MORTEM Injuries: 1. Incised wound 6 cm x. 5 cm x bone on the right side of face on the right external ear. The external ear was cut into two separate pieces, margins were clean cut. Direction was transferees. The parietal bone was cut into pieces. 2. Circular multiple lacerated fire arm wounds 3 cm x 1. 5 cm x cavity deep on the right side of abdomen upper part. Margins were inverted and irregular. Blackening and singeing of hair was present. Single wound was 0. 5 cm x 0. 5 cm x cavity deep. Liver was perforated at multiple places below the injury. " ( 3 ) THE deceased was, however an unknown Muslim man whose whereabouts could not be ascertained. After completing the investigation, charge sheet was filed against the appellants. It may be mentioned here that the sealed packets containing the clothes, pellets, tickiles and earth, relating to the case, were kept in packet, as is proved by the statement of Head constable Raghunath Singh, P. W. 8 and Head Moarrir Pratap Narain, P. W. 9. The chemical Examiner opined in his reports Exts. Ka-15 and Ka-16 that human blood was found on the iron rod, the shirt and the earth. ( 4 ) THE accused appellants denied their participation in the occurrence and attributed false implication due to enmity. They, however, did not lead any evidence in their defence. The learned Trial Judge after placing implicit reliance on the theory propounded by the prosecution and on the testimony of Salig Ram Kumar, Chhatrapal Singh and Bhim Singh, P. W. 2, P. W. 3, P. W. 4 and P. W. 5 respectively, held that the spot arrest is duly proved and there was no reason to doubt the prosecution case about the assassination of the unknown deceased at the railway station and, therefore, convicted and sentenced the appellants as noted above. Hence this appeal. 4a. Sri G. S. Chaturvedi, learned counsel for the appellants assisted by Sri Ramesh Sinha has been heard at length in support of this appeal whereas Sri A. K. Dwivedi, learned A. G. A. has appeared on behalf of the State prosecutor. The entire record has been thoroughly placed and minutely examined. Hence this appeal. 4a. Sri G. S. Chaturvedi, learned counsel for the appellants assisted by Sri Ramesh Sinha has been heard at length in support of this appeal whereas Sri A. K. Dwivedi, learned A. G. A. has appeared on behalf of the State prosecutor. The entire record has been thoroughly placed and minutely examined. ( 5 ) IT goes without saying that if the theory of arrest at the spot is believed, there will be no reason to discard the prosecution story that the accused-appellants had committed offence in the manner as alleged by the prosecution. Sri Chaturvedi has, however, tried to make out a distinction on the ground of the allegations in the prosecution case itself and also on the ground of some legal requirements consisting two appellants, namely Sindar Singh and Chandra Prakash which points will be dealt with a little later. ( 6 ) SRI A. K. Dwivedi, learned A. G. A. has vehemently argued that the learned trial Judge has correctly appreciated eye-witness account inasmuch as he had the opportunity to examine the demeanour of P. W. 2, Salig Ram and P. W. 3, Ram Kumar and, therefore, reasons set out in his judgment may be accepted by this court and the witnesses testimony regarding of proving the arrest may be believed. ( 7 ) IT may be noted that none of the three witnesses namely, Salig Ram and Ram Kumar, who of course are public witnesses, as well as Chhatrapal Singh, who is a constable in the police, had any reason whatsoever to depose falsely against the appellants. They have been thoroughly cross-examined. From the statement of Salig Ram it appears that at one stage he has stated in his cross-examination that the Station Officer had arrived on a motor-cycle, he chased the accused on motor cycle and returned after one or one and half hours and said that the accused and the weapons have been recovered. It was further stated in the cross-examination that the Station Officer got the FIR written in the next morning on which he had put his thumb marks. On the strength of this statement Sri Chaturvedi argued that the theory of spot arrest should be discarded. ( 8 ) THE aforesaid statement of Salig Ram, however, does not merit discarding of his entire statement. On the strength of this statement Sri Chaturvedi argued that the theory of spot arrest should be discarded. ( 8 ) THE aforesaid statement of Salig Ram, however, does not merit discarding of his entire statement. It may be remembered that in the FIR as well as in his examination-in-chief and also in the cross-examination the consistent case of the said witness had been that the three appellants were arrested by the members of the public including himself, Ram Kumar and Chhatrapal Singh, constable whereafter the recovery was made and memos relating to their arrest and recovery were duly prepared, they were carried to the police station whereafter the FIR was lodged at 23. 30 p. m. on 21-8-1977. It may be remembered that the incident had happened at 10. 30 p. m. in the night. ( 9 ) THERE is not an iota of evidence in the cross-examination as to why Salig Ram should be at all talking against the appellants. Similar is the position of Ram Kumar. In the cross-examination we do not find even a suggestion that there were ulterior motives for falsely implicating the appellants. There is another circumstance going much against the appellants. Appellant Pachrangi was medically examined the next after-noon after he was sent for medical examination. He was found to sustain several injuries, the timing of which squarely tallies with the time of their arrest. The shirt which he was wearing had blood stained marks. These circumstances remain wholly unchallenged by the defence. On the facts and circumstances of the present case, it cannot certainly be believed for a moment that the prosecution has fabricated the entire case against the appellants for no rhyme or reason. ( 10 ) IT was sought to be made out by the learned counsel for the appellants that since the whereabouts of the deceased could not be ascertained by the prosecution the story propounded by it should be discarded. It may be remembered that if the prosecution starts with the theory of spot-arrest, it runs the risk of disproving the offence in the event of failing to prove the spot arrest after the incident. In such cases one may not go about investigating the whereabouts of the deceased, should be satisfied on the evidence and materials forthcoming that all the accused were nabbed by the members of the public and police constables just after committing the crime. In such cases one may not go about investigating the whereabouts of the deceased, should be satisfied on the evidence and materials forthcoming that all the accused were nabbed by the members of the public and police constables just after committing the crime. In the instant case it has proved beyond reasonable doubt that the appellants were arrested at the railway station in the manner alleged by the prosecution immediately after committing the crime. The Investigating Officer, therefore, did not go to find out as to who the deceased was, who was killed by the appellants. It may be remembered that it was railway station where the incident had happened and electric light was available. This fact has gone unchallenged. Apart from this, P. W. 2 and P. W. 3 have referred to using their torches at the relevant time and in view of this statement the testimony of the three eye-witnesses Salig Ram, Ram Kumar and Chhatrapal Singh in spite confidence and has to be relied upon. ( 11 ) THE post-mortem report corroborates the prosecution story in so far as use of iron rod and the country made pistol by the appellants Sindar Singh and Pachrangi are concerned, therefore, the participation of these two appellants is also fully established from the independent circumstances of finding injuries on the deceased attributed to the weapon used by these two appellants. ( 12 ) THIS is the stage where the argument of learned counsel relating to participation of Chandra Prakash, or even if his participation is believed, offence for which he may be convicted, has to be examined. It is admitted to the prosecution that Chandra Prakash was unarmed. No role of exhortation is attributed to him. The passenger who was killed ultimately, was sleeping. It is rightly argued that under the circumstances there was absolutely no reason or justification for the appellant Chandra Prakash to catch hold of the sleeping man. It is further argued as to why should he catch hold of the object of murder when he was already asleep. It sounds too improbable to accept that appellant Chandra Prakash should risk his own life by embracing the deceased and permitting the other appellants to fire at the object. Simultaneously it is argued that why should Chandra Prakash presume that Pachrangi was having a country made pistol with him. It sounds too improbable to accept that appellant Chandra Prakash should risk his own life by embracing the deceased and permitting the other appellants to fire at the object. Simultaneously it is argued that why should Chandra Prakash presume that Pachrangi was having a country made pistol with him. The prosecution case is not that Pachrangi was openly exhibiting the said pistol. It is after he had removed Chadar covering the face that he is said to have fired at the deceased. Similarly, it is asked as to why should Chandra Prakash appellant expect that his companion Sindar Singh appellant will use the iron-rod which was a common appliance, hardly expected to be used as a weapon. Consequently, it is argued that Chandra Prakash appellant cannot be saddled with the liability of S. 34, IPC i. e. sharing the intention of the other accused. ( 13 ) THE prosecution case against Chandra Prakash may have to be noted here all over again in order to see whether he can be said to have shared the common intention. It is nobodys case that Pachrangi had been openly exhibiting his fire arm or that the small iron rod in the hands of Sindar Singh was a weapon at all. No role of exhortation had been attributed to Chandra Prakash. No motive whatsoever existed. Chandra Prakash could not expect that he is going to a place where he will meet a target which he has to kill. Similarly, it cannot be presumed on the facts and circumstances of the present case that Chandra Prakash had reason to know any motive with either Pachrangi or Sindar Singh to perpetrate the present crime. The theory of embracing the sleeping target appears too improbable to believe. Chandra Prakash may be risking his life by that action and it is difficult to attribute the said action to the accused at that hour. Under these circumstances, even if the presence of Chandra Prakash is believed at the site, it cannot be said that he was sharing the intention of murder held by remaining accused. The argument of Sri Dwivedi that it was expected of Chandra Prakash to disassociate himself from the rest of the accused if he were not sharing the common intention, must be rejected. The argument of Sri Dwivedi that it was expected of Chandra Prakash to disassociate himself from the rest of the accused if he were not sharing the common intention, must be rejected. It may be remembered that not dis-associating oneself after sudden happening of an incident can and should not be presumed to indicate his association with the criminal intention of others at the time of the offence. The pronouncement of the Supreme Court in the case of Banwari Lal v. State reported in AIR 1962 SC 1198 supports this view. Under the circumstances, Chandra Prakash appellant should get benefit of doubt as the charge u/ S. 302/34, IPC as against him has not been proved to the hilt. ( 14 ) LEARNED counsel for the appellants then argued that Sindar Singh even though tried and convicted on the basis of the evidence produced could not have been tried with the rest of the accused and awarded sentence of imprisonment in view of the provisions contained in U. P. Childrens Act. It has been brought to the notice of the court that district Shahjahanpur became a notified district within the meaning of U. P. Childrens Act, 1951 vide Notification No. 5246/xxxvi-Sw-32 (p)/67 dated 23/11/1967 which was enforced with effect from 11/12/1971. Reliance has been placed on a decision of the Supreme Court in Bhoop Ram v. State of U. P. reported in 1989 All Cri R 276. ( 15 ) IT may be noted that the appellant must have been aged only about 14 years on the day of incident as his age has been noted as 16 years on 12-1-79 in his statement u/s. 313, Cr. P. C. No contrary opinion has been recorded by the learned Judge. ( 16 ) A person under 16 years is a child within the meaning of the U. P. Children Act, S. 27 of which provides that no court shall sentence a child to imprisonment for any term. Therefore, Sindar Singh could not have been sentenced to life imprisonment by the Trial Judge. He may have been sent to an approved school. However, since the appellant should now be of about 28 years, he cannot be directed to be sent to an approved school for being detained there. Therefore, Sindar Singh could not have been sentenced to life imprisonment by the Trial Judge. He may have been sent to an approved school. However, since the appellant should now be of about 28 years, he cannot be directed to be sent to an approved school for being detained there. It thus appears appropriate to direct, as was done in Bhoop Rams case (supra), that appellant Sindar Singhs conviction be sustained and his sentence be quashed. For the reasons discussed above the appellant Sindar Singh need not be sent to jail again in view of the decision and the provisions cited above. Consequently, while the appellant Sindar Singhs conviction u/s. 302/34, IPC is upheld, his sentence, on the facts and circumstances of the present case, is reduced to the period undergone as no useful purpose will be served by directing a retrial. ( 17 ) AS regards the appellant Pachrangi he has been rightly convicted u/s. 302/34, IPC, and sentenced to life imprisonment. There is no force in his appeal which is hereby dismissed. His age has been noted as 22 years on 12-1-1979 and, therefore, no question of extending any benefit to him as available to Sindar Singh arises. ( 18 ) IN view of the aforesaid discussion the appeal is partly allowed. The conviction and sentence awarded to Pachrangi are maintained. He is on bail. He will surrender to his bail bonds and serve out the sentence awarded to him. ( 19 ) SINDAR Singh appellant has been rightly convicted u/s. 302/34, IPC but his sentence is reduced to the period already undergone giving him the benefit of the U. P. Childrens Act. He is on bail. He need not surrender to his bail bonds. His bail bonds are hereby discharged. ( 20 ) THE appellant Chandra Prakash is acquitted of the charges u/s. 302/34, IPC as the case is not proved beyond reasonable doubt against him and the sentence of life imprisonment is set aside. He is on bail. He need not surrender to his bail bonds. His bail bonds are discharged. Appeal partly allowed. .