G. D. DUBEY, J. ( 1 ) THIS appeal has been preferred against the judgment and order of Fifth Additional District and Sessions Judge, Saharanpur, convicting and sentencing Jagvir to undergo imprisonment for life for the offence punishable under section 302, I. P. C. ( 2 ) THE prosecution case was that Azad aged eleven years, minor son of Rafal Singh, took the cow buffaloes of his family for grazing towards the river side of his village Babupur Nagali, Police station Deoband, district Saharanpur. This Azad had taken the cattle and. the calves to the river for drinking water. When the boy did not return for a long time, Rafal Singh found that his son Azad was near the grave of Peer Babu in the grave yard and the cattle were grazing nearby. He found that from behind Shobha and his son Jagvir were following him. Coming near Rafal Singh, Shobha abused him saying that he has got him at the appropriate place and the two attacked him. Shobha gave a lathi blow. Rafal Singh and his son raised an alarm. On their alarm, Sadhu Singh, Isam Singh, Mister Singh and Sukkhad came running towards Rafal Singh. Azad said that he was going call his uncle. Shobha Singh exhorted his son to open fire towards Azad. Jagvir fired his Country- made pistol towards Azad which hit him in the back. Azad fell down. On the challenge of the witnesses, the assailants ran away and they could not be apprehended. ( 3 ) AFTER the occurrence, Rafal, Singh took his son on a buggie to Deoband Hospital, but Azad died on the way. Thereafter, Rafal Singh lodged a report at Police-station Deoband at 4. 30 p. m. ; same day. ( 4 ) THE investigation was taken up by Sri Pal Sharma (P. W. 5) who, after necessary investigation, had submitted charge-sheet against Shobha and Jagvir. The learned Sessions Judge had charged Shobha for the offence punishable under sections 323 and 302 read with section 34, I. P. C. Appellant Jagvir was charged for the offence punishable under section 302 simplicitor and under section 323 read with section 34, I. P. C. The prosecution had examined Rafal Singh (P. W. 1), Sadhu Singh (P. W. 2) and Mister (P. W. 3) as eye witnesses. Chandra Bhan (P. W. 4) was examined to prove enmity between the appellants family and Rafal Singh. Chandra Bhan (P. W. 4) was examined to prove enmity between the appellants family and Rafal Singh. Sri Pal Sharma (P. W. 5) was the Investigating Officer. The two accused had pleaded not guilty to the charges and alleged that they had been implicated on account of enmity. They did not examine any witness in defence. After appraising evidence, the learned Sessions Judge found that the charges were not established against Shobha. The offence under Section 3231 34, I. P. C. was also held not established against the appellant. Hence Shobha was acquitted. Jagvir was acquitted of the charge under section 323 read with section 34, I. P. C. No appeal has been filed by the Government against the acquittal of Shobha. ( 5 ) THE post-mortem on the dead-body of Azad was conducted at 4. 30 p. m. on 9th July, 1978 in the mortuary by Dr. K. B. Verma, Superintendent, S. O. D. District Hospital, Saharanpur. The doctor had found one wound of entry on the back measuring 1. 5 cm x 1. 5 cm. 14 cm. below and medial to lower angle of left scapula. Blackening and tattooing were present all around the wound. The exit wound was 1 cm. x 1 cm. 4 cm. below umblicus. The area of Ecchimosis 15 cm. x 12- cm. on abdomen was found extending from umbilicus towards pelvic region. Three lead shots were found scattered in this area beneath abdominal region. Two abrasions were also found one each on left knee and right ankle joint. The stomach had 200 gms. of rice and dal semi-digested. The doctor had opined that the death was salted due to shock and haemorrhage as a result of gun-shot injuries. ( 6 ) IT has been argued that the two eye witnesses Sadhu Singh and Mistar were chance witnesses. It was urged in the alternative that even if they were present at the alleged spot then they would not have been able to recognise the assailants, because they were at a considerable distance. from the place of occurrence. It was also urge that the motive for occurrence was very week. Hence it was not probable that for such as weak motive the appellant and his father would have taken the extreme action of killing Azad. from the place of occurrence. It was also urge that the motive for occurrence was very week. Hence it was not probable that for such as weak motive the appellant and his father would have taken the extreme action of killing Azad. The learned Counsel for appellant drew our attention to the fact that the first information report was scribed by Sadhuram S/c Naubatram. Naubat and Sadhu had enmity with the appellant. It was urged that Azad was murdered at an unknown time. When his death came to the knowledge of the appellant Sadhuram and Naubat had prevailed the complainant party to implicate his enemies. The learned Counsel for the appellant also assailed the manner of occurrence and the reliability of the witnesses. It was contended that when the prosecution case against the co-accused Shobba has not been believed the case against the appellant too should not have been believed. In the last it was pointed out that the appellant was about 16 years old at the time of occurrence. Hence the appellant should have been given the benefit of U. P. Children Act, 1951. In support of his contention the learned Counsel relied upon Jayendra and another v. State of Uttar Pradesh1 and Raisul v. State of Uttar Pradesh2. ( 7 ) WE have heard learned Counsel for the state. It was urged that even though Sobha Ram was acquitted the court can come to the conclusion that the prosecution case against appellant will correct. ( 8 ) WE find sufficient force in the last contention of learned Counsel for the appellant. Appellant had given his age as 16 years in his statement under section 313, Cr. P. C. The learned Sessions Judge observed by making - endorsement in his handwriting that- the appellant appeared to be 22 to 23 years old on 5/12/1978 the date of his statement. However, the learned Sessions Judge observed it his judgment, while passing order of sentence that appellant was 16 to 17 years old. ( 9 ) THE observations of the learned Sessions Judge that appellant was 22 to 23 years old on the date of statement if of no avail to the prosecution. The Sessions Judge had proceeded to convict the appellant after making observation that he was 16 to 17 years old. The sentence used is this respect is He is a boy between 16 to 17 years of age. The Sessions Judge had proceeded to convict the appellant after making observation that he was 16 to 17 years old. The sentence used is this respect is He is a boy between 16 to 17 years of age. Therefore, we have to proceed on the basis of this observation of the learned Sessions Judge. ( 10 ) SINCE the appellant was a boy between 16 to 17 years of age, the Children Act was applicable to him. In Jayendras case mentioned above a doctor had examined the convict. On the basis of the medical report the Supreme Court had observed that on the date of occurrence the convict must have been about 16 years and 4 months old. The Supreme Court observed that convict had given statement that he was about 15 years of age on the date of offence. Accepting this statement toe Supreme Court had observed that according to section 2 (4) of the V. P. Children Act. 1951 the convict was a child. Hence under section 27 of the said act such a child should not be sentenced to imprisonment for life. The Supreme Court had observed that at the time of judgment the convict of appellant Jayendra was 23 years of age. Hence the Supreme Court found it not fit to send Jayendra to an approved school. Keeping in view the above observations the appellant should, be set at libeny forthwith, even he is held guilty of the time of hearing of this appeal, the appellant would - about 29 to 30 years of age. Hence it is not possible to send him to an approved school. ( 11 ) IN the case of Raisul quoted above the Supreme Court had observed that courts should not substitute their view about the age of a person. Appearance can be deceptive. ( 12 ) IN the present case the learned Sessions Judge had erred in sentencing the appellant to imprisonment for life. If the learned Sessions Judge had any doubt about the age of the appellant, he should have made inquiry by asking the, prosecution to adduce evidence about the age of the appellant and also obtaining the necessary medical report. The General Rules (Criminal) 1977 have been framed by this High Court in exercise of its powers under Article 227 of the Constitution of India. The General Rules (Criminal) 1977 have been framed by this High Court in exercise of its powers under Article 227 of the Constitution of India. The relevant portion of rule 50 regarding age reads as under: If the court considers the age given by a witness on accused to be an underestimate or an overestimate it should form its own estimate and mention it also in the record. If the accused is charged with an offence punishable with death and the court considers the age given by him to be an underestimate, or an overestimate, it may order medical examination of the accused about his age and should direct the State Counsel to produce documentary evidence of his age, if any, is available. ( 13 ) THE learned Sessions Judge ought to have followed the directives of this court as contained in the above quoted rules, if he come to the conclusion that the age of the appellant was 22-23 years according to his estimate. When the learned Sessions Judge had made observation that appellant was a boy then it was incumbent upon him to follow the directives of the V. P. Children Act. ( 14 ) AS regard the motive P. W. 1 Rafal Singh had stated that Naubat Singh is the son of his uncle. There was a litigation between Naubat Singh and Shobharam about a land. Shobharam had put to fire the sugarcane of Naubat Singh. A criminal case had started in respect of this crime. On the application of Naubat Singh a case under section 107/117. of Code of Criminal Procedure was started against Shobharam. In these criminal cases the family members of Rafal Singh had done the necessary pairvi. The second enmity was alleged that Sukhbir sb Shobharam had died. Shobaram had suspected that probably Rafal Singh had poisoned the boy. In order to know the name of administer of poisoning Sadhu Singh, Samar Singh Pradhan, Kaliram and Master had gone to Dhampur to inquire from a Tantrik. A panchayat was held about this incident Rafal Singh was held innocent by the panchayat. It was urged that on account of all these things the family members of appellant were harbouring ill will. ( 15 ) THE learned Counsel for the appellant pointed out that Rafal Singh had admitted that litigation about the land was IS years old. The proceedings under section 107/117, Cr. It was urged that on account of all these things the family members of appellant were harbouring ill will. ( 15 ) THE learned Counsel for the appellant pointed out that Rafal Singh had admitted that litigation about the land was IS years old. The proceedings under section 107/117, Cr. P. C. had started during that period. Rafal Singh had admitted that in case under section 107/117, Cr. P. C. the parties had come to the terms. This case had been started in 1959. The sugarcane burning case was started in 1960. In this case the accused had been acquitted. Rafal Singh had also admitted that in the litigation about the land the court had given a decision that Naubat and Shobharam had half share. According to the decision of 1960 both the parties are in possession of half share. It was urge-d that the above litigation had ended about 18 years back and the appellant had not taken any action of revenge against the complainant-party, then it was not probable that on the date of occurrence they would have taken a decision to take revenge of the old enmity. ( 16 ) THE Prosecution had however, given a fresh cause for motive to take revenge against Rafal Singh P. W. 4 Chandrabhan was examined before the lower court on 17/11/1978. Be had stated that 5 years prior to his statement Sukhbir son of Shobaram accused had died. According- to this statement Sukhbir must have died sometime in 1973. This witness stated that Shobharam had suspected that Rafal Singh had a hand in this death. In this connection a Panchayat was held in which it was found that Sukhbir had died as a result of excessive drinking and suspicision against Rafal Singh was baseless, Thereupon Shobharam had told this witness that he was not satisfied with the decision of panchayat and he will take revenge of the death of his son. Thus witness stated that on account of this fact that witness had participated in panchayat, Shobharam became angry with him. This witness admitted in his cross-examination that the panchayat was held in August 1973. He also admitted that 4 years back he had lodged a report against Shobharam for beating him. Thereupon proceedings u/s 107/177 of the Code of Criminal Procedure were started against both the parties. This witness admitted in his cross-examination that the panchayat was held in August 1973. He also admitted that 4 years back he had lodged a report against Shobharam for beating him. Thereupon proceedings u/s 107/177 of the Code of Criminal Procedure were started against both the parties. He also admitted that he had not made any written complaint to any authority that Shobharam had threatened that he will take revenge. ( 17 ) KEEPING in view the statement of afford witness it looks improbable that Shobharam would have not been able to get any opportunity to attack Rafal Singh or his other family members during the next 5 years. In this case the occurrence had taken place in July 1978. The motive stated by Chandrabhan P. W. 4 is also of a very weak nature. ( 18 ) BEFORE examining the statement of Rafal Singh we would prefer to discuss the statements of two eye witnesses Sadhu Singh P. W. 2 and Mister P. W. 3, P. W. 2 Sadhu Singh had stated that a Mazar of Peert exists at a distance of 350 yards towards south-east from a temple existing towards north of the village Babupur. He stated that he generally goes to this temple and sits there for about 1 to 1 12 hours every day. This witness stated that he ran towards the place of occurrence after hearing the shouts raised by the victim after receiving a Lathi blow. The prosecution version shows that as soon as Rafal Singh received Lathi blows his son Azad uttered that he is going to call his uncle. Soon after a shot was fired from the Country made pistol towards him. In the whole process it would not have taken more than a minute. Hence, even if we accept that whatever this witness Sadhu Singh stating is correct then, he would not have been able to go more than 50 yards before the assailants had struck a fatal blow on Azad and ran away. In that situation witness Sadhu Singh would have been more than 50 yards away from the place of occurrence. It would have been difficult for Sadhu Singh to recognise the assailants even in a broad day light. This witness had stated that he had seen the first Lathi blow being inflicted from the temple. In that situation witness Sadhu Singh would have been more than 50 yards away from the place of occurrence. It would have been difficult for Sadhu Singh to recognise the assailants even in a broad day light. This witness had stated that he had seen the first Lathi blow being inflicted from the temple. In that situation the witness would not have been able to see as to who inflicted this first Lathi blow. The circumstances stated above indicate that Sadhu Singh could not have seen the actual occurrence and recognise the assailants. His statement does not inspire confidence. ( 19 ) MISTAF P. W. 3 had stated that he had gone to take out cow dung cake from his Bhitaura situated near the Mazar of Peer Babut. The witness stated that on alarm raised by Rafal Singh he rushed towards the place of occurrence. He saw Jagvir opening fire from his Country made pistols towards Azad. There after Jagvir ran away towards east. The witness had seen Jagvir running away with Country made pistol. This witness admitted in his cross-examination that his house is situated in the middle of the Abadi. Behind his house there is a very big Gher. He stated that his cow dung cake are not prepared in this Gher, but the cow dung cakes are prepared in the grave yard. We are not at all convinced that a person who possessed a very big Gher will not prepare his PW dung in his Gher but will get prepared in the grave yard. It appears that the witness is stating about the existence of his Bhitaura near the grave yard of Peer Babu only to make his presence at the spot probable. This witness stated that after receiving first blow Shobharam and Rafal grappled to each other. This witness also stated that as soon as this grappling started Jagvir fired towards Azad. He stated that Jagvir had filed from a distance of 1 or 2 feet. The prosecution had not come forward with any version that any grappling had taken place between Shobharam and Rafal Singh. ( 20 ) THIS witness is not an independent person. He admitted in paragraph 3 of his crossexamination that his father and Bhoora father of Kamala, Sukkhara and Deshran and father of Naubat are real brothers. The prosecution had not come forward with any version that any grappling had taken place between Shobharam and Rafal Singh. ( 20 ) THIS witness is not an independent person. He admitted in paragraph 3 of his crossexamination that his father and Bhoora father of Kamala, Sukkhara and Deshran and father of Naubat are real brothers. Consequently this witness is closely associated with Naubat with whom appellant and his father had litigation about 15 years back. We are not convinced with the statement of this witness that he had any Bhitaura near the place of occurrence and thus had any occasion to go to it for taking out cow dung cakes. This witness is also not very reliable. ( 21 ) THE statement of Rafal Singh does not inspire confidence. The sole injury found on his person does not appear to be an injury caused by a lathi blow. It is very superficial in nature. Since the genuineness of the injury report was admitted, the doctor was not examined. Therefore, version of the doctor about the alleged injury is not available to us. We are, however, not convinced that the superficial injury measuring 1 cm. x 2/10 cm. x skin deep on right side nose would be caused by a lathi blow. If the appellant and his father Shobha had an intention to cause hurt to Rafal Singh, then he would not have stopped by giving a single blow, to Rafal Singh. ( 22 ) ACCORDING to the prosecution version, the appellant and Shobha were following from their village. The main dispute and suspicion were against Rafal Singh. They could have easily attacked Rafal Singh on the way. ( 23 ) RAFAL Singh has given a very queer statement as to why he went in search of his son. He stated that his son was to go for his tuition. He had engaged a private teacher for teaching Azad. Azad used to go at 2. 00 P. M. to the house of a teacher for tuition. The occurrence had taken place in a village site in July when the school opens. It does not look probable that any villager could have engaged a private teacher in the very beginning of the session for teaching his son. The version of Rafal Singh about the tutor and his going to the field for searching Azad is only an after thought story. It does not look probable that any villager could have engaged a private teacher in the very beginning of the session for teaching his son. The version of Rafal Singh about the tutor and his going to the field for searching Azad is only an after thought story. It does not inspire our confidence. ( 24 ) IN view of the above discussions, we are of opinion that the prosecution evidence was not of such character on the basis of which the appellant could be convicted for the offence punishable under section 302, I. P. C. ( 25 ) IN the result, the appeal succeeds and is allowed. The judgment and order of the lower court are set aside. The appellant is acquitted of the charge levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. Appeal allowed .