Judgment R.N.Sahay, J. 1. On 24th July, 1985, the appellant was charged by the Sessions Judge of Hazaribagh, for having committed the murder of of Sita Sau. The charge related to an occurrance having taken place at 4.30 p.m. on 16th May, 1980 at village Lipda in the district Chatra. 2. The case of the prosecution has been nearly narrated in paragraph 2 of the judgment in appeal as follows : "The prosecution case, as contained in the F.I.R. (Ext. 2) in brief, is that on 15-5-1980 at about 4.30 p.m. accused Laxmanial alias Gujulal was getting mangoes plucked through Prakash, Mostt. Budhni Devi, mother of deceased Sita Sao, came and protested as to why unripe mangoes were being destroyed by plucking, on which the accused hurled abuses and pushed her. The said Mostt. Budhni Devi went to her house lying nearby and reported the matter to her son Sita Sao. Sita Sao came near the tree and asked the accused as to why he had abused his mother which result some scuffle between the accused and Sita Sao. It is also alleged that the accussed inflicted lathi blows on the back of Sita Sao and he went running to his house and came back with a dagger and inflicted a dagger blow on left side of the chest of Sita Sao, as a result of which he fell down and ultimately died. Informant Khirodhar Sao (PW 3) saw the occurrence and he carried Sita Sao on a riskshaw to Chatra hospital where he was declared dead by the doctor. On the statement of Khirodhar Sao, F.l.R. (Ext. 2) was drawn up. According to the F.l.R. the informant (PW 3) Jagdish Sao, Baunu Ram, Tilak Sao and Jiwa Bhuian had seen the occurrence after reaching the place of occurrence on hearing hulla. The police after completing iuvestigation, submitted charge-sheet and after commitment, this case was received on transfer and PWs 2 to 5 were examined in this court. PW 1 Mahabir Sao was examined in chief on 18-2-1986 in the court of the then learned Sessions Judge, but he was cross-examined in this court on 12-8-1986." 3. By judgment pronounced on 30-4-1988 the Additional Sessions Judge, Hazaribagh, found the appellant guilty for the murder of Sita Sao and sentenced him to imprisonment for life. 4. PW 1 Mahabir Sao was examined in chief on 18-2-1986 in the court of the then learned Sessions Judge, but he was cross-examined in this court on 12-8-1986." 3. By judgment pronounced on 30-4-1988 the Additional Sessions Judge, Hazaribagh, found the appellant guilty for the murder of Sita Sao and sentenced him to imprisonment for life. 4. When this appeal was taken up for hearing on 19-2-1992, Sri T. R. Bajaj, stated that the appellant was a minor on the date of ocurrence and this fact is supported by evidence on record. Sri Bajaj submitted that in view of the decision of this Court in Krishna Bhagwan V/s. State of Bihar reported in 1989 PLJR 507 (FB), the appeal should be disposed of in terms of the decision of this case. 5. After hearing Sri Bajaj, and the APP, the Bench of which I was a member recorded the following order : "The appellant has appealed against his conviction recorded under Section 302 of the Indian Penal Code and sentence of imprisonment for life. The occurrence had taken place an 16th May, 1980. Sri T.R. Bajaj, learned counsel for the appellant, placed records of the case before us and submitted that the appellant was a minor on the date of occurrence. The appellant was examined under Section 313 of the Code of Criminal Procedure on 18th January, 1987 and his age was assesed to be 21 years by the trial Judge. Thus the accused was only 14 years of age at the time of occurrence. Even PW 1 Mahabir Sao, has stated that the appellant was of the age of 14 years on the date of occurrence. The plea of the minority was not taken before the trial court. But it appears from the records that such a plea was taken in the bail application moved before the Sessions Judge and bafore tbe High Court. Sri Bajaj submitted if the evidence is examined the appellant deserves to be acquitted on merits. Sri Bajaj placing reliance on Krishna Bhagwan V/s. The State of Bihar, 1989 PLJR 507 (FB), urged that in view of the decision in the Full Bench case we should decide the appeal on merits and in case the appellant is acquitted no further action is necessary. But in case the appellants conviction is affirmed then we should proceed in the manner laid down in the decision. But in case the appellants conviction is affirmed then we should proceed in the manner laid down in the decision. N.P. Singh, J. delivering the leading judgment with whom and other two learned Judges agreed, has held as follows : "If such an accused is acquitted, there is no question of holding any enquiry in respect of the accused being a child on the relevant date but, if the findinggof the guilt recorded by the court below is affirmed and this Court on the basis of materials on record is prima facie satisfied that the may be a child/juvenile within the meaning of the relevant Act on the date of the commission of the offence it should call for a finding from the childrens court/juveniles court in accordance with Section 32 of the Act. If the finding so received is accepted by this court, then this court in terms of Section 26 of the Juvenile Act should pass an order in accordance with Sections 21 and 22 of the Act. In Gopinath Ghosh V/s. The State of West Bengal, AIR 1984 SC 237 , it has been held that if minor is tried in contrvention of West Bengal Children Act, 1959, then the entire trial is without jurisdiction and is vitiated in this case. It appears that the learned Judges constituting the Full Bench commited to consider para 11 of the Supreme Court Judgment (supra), although this decision was considered by their Lordships. In our view the decision in the full Bench case is in direct conflict with the decision of the Supreme Court in AIR 1983 SC 237, (supra). If the trial of the appellant was illegal and without jurisdiction there is no question of deciding the appeal on merits nor the procedure laid down by the Full Bench can be taken recourse to. This case is, therefore, referred to a Larger Bench for consideration whether the decision reported in 1989 PLJR 507 (FB) is correct. The record be placed before the Honble Chief Justice for constituting a larger Bench." 6. The Chief Justice was pleased to refer the appeal to a Full Bench. This case is, therefore, referred to a Larger Bench for consideration whether the decision reported in 1989 PLJR 507 (FB) is correct. The record be placed before the Honble Chief Justice for constituting a larger Bench." 6. The Chief Justice was pleased to refer the appeal to a Full Bench. Full Bench passed the following order : "One of us (Amir Das, J.) sitting with brother R. N. Sahay, J. by order dated 19-24992 doubted the correctness of the Full Bench judgment of three Judges of this Court in Krishna Bhagwan V/s. State of Bihar, reported in 1989 PLJR 507, in view of the decision of the Supreme Court in Gopi Nath Ghosh V/s. State of West Bengal, reported in AIR 1984 SC 237 . In the order dated 19-2-1992, detailed reasons have been given doubting the correctness of the Full Bench decision in the case of Krishna Bhagwan (supra), and in this view of the matter, we do not feel necessary to reiterate them. Having heard learned counsel for the parties and appreciated the entire facts, circumstances and legal position, being a co-ordinate Bench, even though the Rules contained in Chapter V of the Rules of the Patna High Court, 1918 are silent on the issue whether a Full Bench can refer a question referred before it to a larger Bench of five Judges, following the ratio laid down by the Supreme Court in Atma Ram V/s. State of Punjab, reported in AIR 1959 SC 519 and Tribhowendas Purushattam Das Thakkar V/s. Ratilal Motilal Patel, reported in AIR 1968 SC 372 , we request the Honbis, the Chief Justice to constitute a Bench of five Judges for re-considering the correctness of the Full Bench decision of this Court in Krishna Bhagwan (supra). Let the office place all papers before the Honbie the Chief Justice so that the law be settled quickly as it is bound to affect the fate of numerous appeals. Sd. B.K. Roy. Sd. N.P. Singh. Sd. Amir Das." 7. The record in due course was again placed before the then Chief Justice. The Chief Justice by order dated 10-9-1992 which is not a judicial order, passed the following order : "The question of referring to a larger Beach dose not arise. Sd. B.K. Roy. Sd. N.P. Singh. Sd. Amir Das." 7. The record in due course was again placed before the then Chief Justice. The Chief Justice by order dated 10-9-1992 which is not a judicial order, passed the following order : "The question of referring to a larger Beach dose not arise. If the learned Judges are of the view that the Full Bench decision is wrong in view of the Supreme Court decision, then they must follow the Supreme Court decision irrespective of Full Bench decision inasmuch as under Article 141 of the Constitution that is the law of the land. No Full Bench decision can stand in the way. If they are of the view that the Supreme Court decision has no relevance in respect of the matter in dispute, then they are bound by the Full Bench decision and accordingly they must follow the same. In any view of the matter, the question of referring to a larger Bench at this stage cannot and does not arise. The matter is referred back to the Division Bench concerned. Sd. B.C. Basak Chief Justice." 8. Chapter V of the Patna High Court Rules lays down the procedure for reference to a Full Bench. Rule 1 of Chapter V reads as follows : "Whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or whenever in any case a Division Bench differs from any other Division Bench upon a point of law or usage having the force of law such case shall be referred for decision by a Full Bench." By implication, this Rule shall also applies to a case where a Full Bench differs from another Full Bench as in the instant case. Chief Justice, however refused to constitute a larger Bench of five Judges by passing administrative order. With great respect to Honble the Chief Justice under Rule 1 of Chapter V of the the Patna High Cuort Rules, was bound to refer the case to larger Bench. The language of Rule 1 is mandatory and no discretion is left with the Chief Justice or not to refer the matter in which one Full Bench differs with another Full Bench, to a larger Bench. 9. The language of Rule 1 is mandatory and no discretion is left with the Chief Justice or not to refer the matter in which one Full Bench differs with another Full Bench, to a larger Bench. 9. With great respect to the Honble the Chief Justice be passed the order dated 10-9-1992 without appreciating the fact that the Division Bench cannot refuse to follow the decision of a Full Bench, particularly, in the instant case. The aforesaid order of the Chief Justice is not binding on us and cannot be followed. 10. The decision in Krishna Bhagwans case 1989 PLJR 507 (FB), was based on decision in Gopinath Ghosh V/s. State of West Bengal, AIR 1984 SC 237 , the learned Judges overlooked the crucial paragraph of the Supreme Court judgment. 11. This appeal was placed for hearing before us and we intanded to refer the matter to a Full Bench for consideration whether the learned Chief Justice by an administrative order can refuse to constitute Full Bench in disregard to Rule 1 of Chapter V of the Patna High Court Rules. It is not necesssary now to do so since this appeal can be disposed of in the light of a recent decision of the Supreme Court to which we shall refer immediately after briefly placing on the record the evidence in the case. 12. Sri Bajaj while placing the evidence was sanguine that the appeal deserves to be allowed on merits. It may be stated that only four witnesses including the doctor who had performed autopsy of the deceased was examined on behalf of the prosecution. The learued court has stated in paragraph 6 of his judgment that despite repeated adjournments only four witnesses could be examined. 13. According to the medical evidence, there was one punctured wound : 1" X 4" X bone deep in the left side of the chest of the deceased between 5th and 6th ribs. The heart and lobe of the liver was found punctured. The abdominal cavity was full of blood. The injury had been inflicted by sharp cutting weapon like dagger. The medical evidence establishes that it was a case of homicide. 14. So tar other witnesses are concerned ; Mahavir Saw (PW 1) reached on hearing nulla and the mother of the deceased narrrated to him and other persons assembled there as to how the occurrence had taken place. The injury had been inflicted by sharp cutting weapon like dagger. The medical evidence establishes that it was a case of homicide. 14. So tar other witnesses are concerned ; Mahavir Saw (PW 1) reached on hearing nulla and the mother of the deceased narrrated to him and other persons assembled there as to how the occurrence had taken place. This witness has not spoken of presence of Madho Sao (PW 4), the brother of the deceased. Madho Sao has deposed that he had seen the appellant inflicting dagger blow. This witness was not present during the first part of the occurrence (quarrel over plucking of Mangoes). This witness stated that Mahendra Sao, brother of the deceased snatched the dagger from the hand of the appellant. This part of the evidence of this witness stands contradicted by the evidence of PW 3, the informant, who has stated that the appellant fled with the dagger. PW 4 had not seen the accused returning with the dagger. 15. Khirodhar (PW 3) has deposed having been present through out the occurrence. PW 3 admitted that when he reached the place of occurrence, the mother of the deceased bad left for her house. This tender the testimony of PW 3, a bit doubtful. The I. O. failed to appear before the trial court. It was argued before the trial Judge that the evidence of PW 3 excludes the presence of PWs 1 and 4 and presence of PW 3 was itself doubtful since this witness who was an employee of Bihar State Electricity Board was expected to be in his office at 4.30 p.m. the hour of occurrence. 16. Sri Bajaj submitted that the evidence is not full proof. The conviction of the appellant is based on extremely dodubtful evidence. He submitted that a close reading of evidence of PWs 1, 3 and 4 will lead to unmistakable inference that all these witnesses exclude the possibility of each other being eye-witness to the occurrence. Mr. Bajaj submitted that conviction of the appellant under Section 302, IPC is absolutely unwarranted even if the evidence of the witnesses is accepted on their face value. He further submitted that non-examination of independent witnesses coupled with the fact that the I.O. was not examined is a serious infirmity. 17. The argument of Sri Bajaj is not without force. Mr. Bajaj submitted that conviction of the appellant under Section 302, IPC is absolutely unwarranted even if the evidence of the witnesses is accepted on their face value. He further submitted that non-examination of independent witnesses coupled with the fact that the I.O. was not examined is a serious infirmity. 17. The argument of Sri Bajaj is not without force. We are fortunately relived from the task of re-appreciating the evidence and record our own finding, because of recent decision of the Supreme Court which has to the rescue of the appellant. The Bench hearing to appeal of the first instance came to a definite finding that there was unimpeachable evidence that the appellant was a minor at the time of the occurrence. (Order dated 19-2-1992). 18. In Pradeep Kumar V/s. State of U. P., reported in 1994 BBCJ 60 (SC), three appellants before the Supreme Court were minors at the time of the occurrence. They were convicted under Sections 302/34, IPC and sentenced to imprisonment for life in contravention of U. P. Children Act, 1951. The Honble Supreme Court considered the findings recorded by High Court of Allahabad to the effect that all the three appellants were minor at the time of occurrence. The appeal was disposed of on the following terms : "It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U. P.Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act. Since the appellants are now aged more than 30 years, chore is no question of sending them to an approved school under the U. P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under ail the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms." 19. The present appellant is aged 28 years now. He was aged about 13 years at the time of occurrence. Following the aforesaid decision of the Supreme Court, we quash the sentence of imprisonment for life awarded by the trial judge while maintaining his conviction. 20. The appeal is partly allowed in the above terms. The present appellant is aged 28 years now. He was aged about 13 years at the time of occurrence. Following the aforesaid decision of the Supreme Court, we quash the sentence of imprisonment for life awarded by the trial judge while maintaining his conviction. 20. The appeal is partly allowed in the above terms. The appellant is on bail He is discharged from the liability of the bail bond.