Judgment : N.L. Ganguly, J. 1. The Ave appellants, Mulla, Shanker, Ram Prakash, Rani Raja and Munna, preferred the above appeal against the judgment and order passed by the Sessions Judge, Jalaun at Orai in Sessions Trial No. 119 of 1977 convicting all the appellants under Section 302 read with Section 149,I.P.C. and sentencing each of them to life imprisonment. The appellants, Munna. Shanker and Ram Prakash, were convicted under Section 148,1.P.C. and sentenced to 1 1/4 years R.I. and appellants Ram Raja and Munna were convicted under Section 147, I.P.C. and sentenced to one year R.I. All the sentences to run concurrently. 2. The F.I.R. was lodged by Dulichand about the occurrence which had taken place at 3.40 p.m. on 19.6.1974 in village Sandhi. P.S. Ata. District Jalaun. The F.I.R. was registered at 4.40 p.m. on 19.6.1974. The distance of the police station from the village is two miles towards south. The F.I.R. was lodged under Sections 147, 148 and 324, I.P.C. by Dulichand, which was orally-dictated to the Head Constable. Dulichand later on died at the hospital. In the incident Ram Prasad had also received injuries, who had also died at 2.35 a.m. on 20.6.1974. 3. Shanker aged about 15 years and Munna aged about 14 years are sons of appellant Mulla and Raja Ram is also another son of appellant Mulla. The appellant Ram Prakash son of Bhagirath is not related with appellant Mulla. All the appellants and deceased informant Dulichand belonged to the same village. 4. According to the prosecution case a day before the occurrence appellant Mulla had uttered something amounting to the defamation of the wife of Ram Prasad appellant, which led exchange of abuses between them. On 19.6.1974 at 4 p.m. when Dulichand informant and his son Ram Prasad were sitting at the door of their house, appellant Mulla and the co-appellants happened to be there. Mulla and Ram Prakash are said to be armed with spear, Shanker armed with an axe and Raja Ram and Munna armed with lathis. Mulla exhorted that Ram Prasad (deceased) and his father Dulichand informant (deceased) who had abused him a day before, be beaten. All the accused appellants started beating Dulichand and Ram Prasad with their respective weapons. On the alarm raised by the victim Dulichand, witnesses Sita Ram. Nathu and Lakshmi and several others had reached the spot and witnessed the incident. Mulla exhorted that Ram Prasad (deceased) and his father Dulichand informant (deceased) who had abused him a day before, be beaten. All the accused appellants started beating Dulichand and Ram Prasad with their respective weapons. On the alarm raised by the victim Dulichand, witnesses Sita Ram. Nathu and Lakshmi and several others had reached the spot and witnessed the incident. On the arrival of the witnesses and on their intervention the accused appellants left the victims and fled away. The victims Dulichand and Ram Prasad had received severe injuries. They were taken to the police station by P.W. 2 Parmai on the same day at about 8.40 p.m. Dulichand dictated the oral report to the Head Constable at the police station. The investigation followed after registering the case. The I.O. P.W. 7 Daya Ram Singh recorded the statements of Parmai, Dulichand and Ram Prasad at the police station and sent the two injured persons to the hospital at Orai for medical aid and examination of their injuries. P.W. 7 Daya Ram Singh I.O. himself rushed to the spot. It was night The I.O. halted in the village of occurrence and took up the investigation next morning. Dr. V. Singh P.W. 6 attended the injured persons between 12 and 1 in the night of 20.6.1974. Ram Prasad had succumbed to his injuries at 2.30 a.m. and Dulichand had succumbed to his injuries at 9.30 p.m. on 20.6.1974. The case was converted to be one under Section 302, I.P.C. 5. The dead body of Dulichand was examined in autopsy by Dr. V. Singh P.W. 6 at 5.15 p.m. on 21.6.1974. The ante-mortem injuries of Dulichand and opinion about his death are quoted as under : 1. Star shaped incised penetrating wound 3 cm. x 1 1/4 cm. on the right side of the chest. Right lung and lever were cut below this injury. 2 Lacerated wound 1 cm. x 1 cm. skin deep left side of the chest. The death was due to haemorrhage, shock and asphyxia resulting from the ante-mortem injuries. 6. Dr. S. B. Mathur P.W. 9 had conducted the post-mortem examination of the dead body of Ram Prasad at 5 p.m. on 20.6.1974 and found the following ante- mortem injuries. 1. Lacerated wound 4 cm. x 1/2 cm. scalp deep on the forefront 9 cm. above the left eye. 2 Lacerated wound 1 cm. x 1/2 cm. 6. Dr. S. B. Mathur P.W. 9 had conducted the post-mortem examination of the dead body of Ram Prasad at 5 p.m. on 20.6.1974 and found the following ante- mortem injuries. 1. Lacerated wound 4 cm. x 1/2 cm. scalp deep on the forefront 9 cm. above the left eye. 2 Lacerated wound 1 cm. x 1/2 cm. on the back side of the head, 14 cm. above the left ear. 3. Contusion 2 cm. on the left shoulder. 4 Lacerated wound 1 1/4 cm. x 1/2 cm. on abdomen region. 5. Incised wound 2 cm. x 1 cm. x 1 cm. on the back left side, 10 cm. below scapula. 6. Abrasion 2 cm. x 1 cm. on the back side of the left elbow. 7. Abrasion 1 1/2 cm. x 1 cm. on the left knee. 8. Abrasion 2 cm. x 1 cm. on the left knee. DR. S. B. Mathur opined that death of Ram Prasad was due to shock resulting from ante-mortem injuries. The inquest report of the dead body of Ram Prasad was prepared on 20.6.1974 and of Dulichand on 21.6.1974 by S.I. Nandlal Singh and S.O. Arshad Ali respectively. The I.O. Daya Ram Singh P.W. 7 visited the village of occurrence on 20.6.1974, recovered blood-stained and ordinary earth from the spot in presence of the witnesses, interrogated the witnesses, namely, Nathu Ram, Km. Shiv Kali and others on the same day. He made search for the accused persons but they were not found in the village. The recovery memo of blood-stained and ordinary earth was prepared. The dead body had been sealed in cloth. Statements of witnesses of Panchayat nama were also recorded. The I.O. after completion of the investigation submitted charge-sheet. 7. The prosecution examined eye-witnesses P.W. 1 Sita Ram, P.W- 3 Nathu Ram and P.W. 4 Km. Shiv Kali and also examined P.W. 2 Parmai, who had taken the victim injured Dulichand and Ram Prasad after the incident to the police station for lodging the report. The charge under Section 302 read with Section 149, I.P.C. was framed by the Sessions Judge, which was read over and explained to the accused persons in Hindi, who pleaded not guilty and claimed to be tried. Further a charge under Section 147, I.P.C. was framed against Raja Ram and Munna appellants. The charge under Section 302 read with Section 149, I.P.C. was framed by the Sessions Judge, which was read over and explained to the accused persons in Hindi, who pleaded not guilty and claimed to be tried. Further a charge under Section 147, I.P.C. was framed against Raja Ram and Munna appellants. A charge under Section 148, I.P.C. was also framed against Mulla, Shanker and Ram Prakash which was also read to the appellants and they pleaded not guilty and claimed to be tried. 8. Heard Sri A. D. Giri, Senior Advocate, appearing for the appellants and Sri K. C. Saxena, A. G. A. for the state at length. The learned counsel for the parties placed the entire evidence before the Court, which we have perused and examined in detail. Sri A. D. Giri challenged the authenticity and correctness of the F.I.R. verbally dictated by Dulichand victim to the Head Constable at the police station. He submitted that in view of the nature of the injuries it is not possible for Dulichand to be in a fit and mental condition to make such a detailed statement to the Head Constable, who recorded the oral F.I.R. He submitted that since the recording of the oral F.I.R. is doubtful, the F.I.R. in the present case cannot be treated as a dying declaration. Sri Giri submitted that the injured Ram Prasad was also seriously injured who could not have given any statement to the I.O. The evidence of the alleged eye-witnesses Sita Ram P.W. 1, Nathu Ram P.W. 3 and Shiv Kali P.W. 4 is not believable and suffers from material contradictions and variation and it would be unsafe to rely on their statements. He also submitted that the recovery of the bloodstained and the ordinary earth from the place of occurrence by the I.O. is also doubtful. 9. The prosecution examined P.W. 1 Sita Ram, who stated that he had heard the notice of altercation from his house. He went to the place of occurrence at the door of Dulichand and Ram Prasad, who were fighting with Mulli Mali, Shanker, Munna, Raja Ram, sons of Mulla were also fighting. No other person was there. Mulla was armed with spear. Raja Ram and Shanker were armed with lathi and Munna was armed with an axe. No other accused was there. When witness Sita Ram reached exchange of abuses was going on. No other person was there. Mulla was armed with spear. Raja Ram and Shanker were armed with lathi and Munna was armed with an axe. No other accused was there. When witness Sita Ram reached exchange of abuses was going on. In his presence lathi, spear and kulhari injuries were not exchanged or caused. They were verbally exchanging words. The witnesses are said to have intervened and the accused persons left the place. This witness was declared hostile. He was cross-examined after he was declared as hostile witness by the prosecution. The statement recorded under Section 161, Cr. P.C. by the I.O. was put to him. He stated that he could not give any reason how his statement was recorded by the I.O. 10. The learned counsel for the appellants submitted that the injuries on the person of Dulichand proved by Dr. V. Singh were as many as seven. Injury No. 3 incised penetrating wound 2 cm. x 1 cm. star shaped with four angles on posterior entral side of left chest lower part ; surgical emphasised present probing not done and injury No. 4 lacerated wound 1 1/4 cm. x 1/4 cm. just below umblicus probing not done, were serious and were kept under observation. Injury No. 3 was caused by sharp weapon, rest by blunt object. Sri Giri submitted that the injured was serious. The post-mortem report shows that the lung of the deceased Dulichand was ruptured and punctured. He submitted that a person having such serious injuries will not be physically fit and mentally alert to give an oral version of the occurrence to the Head Constable at the police station in such details and coherent manner. He would rather be under serious pain and would not be in a position to speak at all. P.W. 6 Dr. V. Singh was cross-examined at length and it was also suggested that after receiving such serious injuries Dulichand and Ram Prasad injured could not be in a position to speak. Dr. V. Singh stated that it was not essential that after receiving such injuries as were received by Ram Prasad and Dulichand victims, they would not be in a position to speak. He further stated that it may be possible that after receiving such injuries the victims may have fainted but it was not essential. Dr. V. Singh stated that it was not essential that after receiving such injuries as were received by Ram Prasad and Dulichand victims, they would not be in a position to speak. He further stated that it may be possible that after receiving such injuries the victims may have fainted but it was not essential. It is also stated by him that it cannot be estimated that if at all the injured had fainted for how much period he remained unconscious. The argument of the learned counsel for the appellants that Dulichand could not be in a physical and mental state, fit to make oral statement for recording the F.I.R. cannot be accepted. The age of Dulichand was 55 years at the time of the occurrence. He was of average build and muscular body. It cannot be said that he was too old and weak and would not be in a position to speak after receiving such injuries. It is also not disputed that Dulichand survived after receiving injuries for more than 29-30 hours. He had actually died at 9.30 p.m. on 20.6.1974. The statement of Dr. V. Singh also shows that the victim Dulichand cannot be said to have become incapable of making statement after receiving such injuries as indicated in the injury report and post mortem report. Sri A. D. Giri advanced another submission that the perusal of the F.I.R Ext. Ka-8, which was written by the Head Constable Jagdish Singh P.W. 8, shows that it was the oral statement of Dulichand. Jagdish Singh P.W. 8 stated in his evidence that Dulichand was not literate, as such his thumb impression on the F.I.R. was taken. He stated that Dulichand was brought to the police station along with his son Ram Prasad by their companion Parmai, Jagdish Singh stated that he had written the F.I.R. in Hindi 'Khari Boli'. The witness was posted at the police station for about a year on the date of the F.I.R. was written by him. He stated that he could not tell what is the language spoken in that area. During his stay he could not know what is the common language of the people in the locality. Every person in the locality spoke different language. He stated that he could not tell what is the language spoken in that area. During his stay he could not know what is the common language of the people in the locality. Every person in the locality spoke different language. He had denied that at the time Dulichand made his oral statement for recording the F.I.R. he was not physically fit to dictate the F.I.R. He also denied that Lakshmi Narain Brahmin Sanghi had accompanied the injured Dulichand and the report was written after deliberation and consultation with Lakshmi Narain. Sri Giri also submitted that the language and the manner in which the F.I.R. was written, shows that an illiterate person like Dulichand would not be in a position to state in such specific and appropriate details about the occurrence as is recorded in the oral F.I.R. Ext. Ka-8 we are not inclined to accept the submission of the learned counsel for the appellants that only because the deceased Dulichand belonged to Bundelkhand area where the common language used is not 'Khari Boli' it cannot be presumed that Dulichand could not be in a position to state what has been written in the F.I.R It is not unknown that people without education speak 'Khari Boli' in Bundelkhand area or in the eastern part of the State. We have perused and examined the language used in the F.I.R. Ext. Ka-8. We have no doubt or suspicion that Dulichand would not be in a position to dictate the facts as stated in the F.I.R. P.W. 2 Parmai, who had accompanied Dulichand and Ram Prasad to the police station for lodging the report in his examination-in-chief stated that when he was taking the injured Dulichand and Ram Prasad to the police station Dulichand was speaking. He also stated that Dulichand had said that 3-4 persons had assaulted. After considering the evidence on record and ; perusal of the F.I.R. we are of the view that Dulichand deceased was in a fit physical and mental condition at the time when he dictated the F.I.R Orally to the Head Constable at the police station. There was no external aid or occasion for deliberation, as suggested by the learned counsel for the appellants. There was no external aid or occasion for deliberation, as suggested by the learned counsel for the appellants. We also do not accept the submission of the learned counsel for the appellants that the language and the details given in the F.I.R. are not of the deceased Dulichand, as they were not in the local dialogue but in 'Khari Boli'. The F.I.R. is not very detailed giving minutest details. It simply narrates the facts of the occurrence. There is no circumstance, which may raise any doubt or suspicion about the version given by the deceased Dulichand to the Head Constable at the time of recording the F.I.R. This document is thus to be treated as a dying declaration under Section 32 (1) of the Evidence Act. 11. The learned counsel for the appellants submitted that Ram Prakash appellant was not present at the time of occurrence nor he had participated in the assault. He submitted that P.W. 1 Sita Ram, who was declared hostile, has not named Ram Prakash in his statement. His statement under Section 161, Cr. P.C. recorded by the I.O. was put to him and he denied to have made such statement. However, that alone is not the circumstance to be considered. P.W. 2 Parmai in his statement has stated that on the way when Dulichand was being taken to the police station he had said that 3-4 persons has assaulted him. The learned counsel placed the evidence of P.W. 2 Parmai and submitted that the injured Dulichand and his son Ram Prasad were taken to the police station on the bullock cart of appellant Ram Prakash. He also submitted that the house of appellant Ram Prakash is in front of the house of the deceased Dulichand. When he reached the place of occurrence after the incident Ram Prakash was not present at his door. Ram Prakash appellant had also accompanied the injured to the police station on his bullock cart. The witness stated that Ram Prakash appellant had come on his bullock cart carrying manure. Witness Parmai asked him to give bullock cart and he permitted to take the bullock cart. The submission of the learned counsel has merit. Ram Prakash appellant had also accompanied the injured to the police station on his bullock cart. The witness stated that Ram Prakash appellant had come on his bullock cart carrying manure. Witness Parmai asked him to give bullock cart and he permitted to take the bullock cart. The submission of the learned counsel has merit. If Ram Prakash appellant was really an accused in the case, he would not have accompanied the injured persons to the police station for lodging the F.I.R. It is also not believable that a person, who only few minutes before had participated in the commission of serious assault to Dulichand and Ram Prasad, would have gone thereafter with his bullock cart to carry manure on it to his house. This unpurturbed conduct of appellant Ram Prakash shows that no person, who has committed such an offence, would move in such a manner after the commission of the offence nor he would permit the complainant's associate P.W. 2 Parmai to carry the injured persons on his bullock cart to the police station for lodging the report against him. The statement of Parmai P.W. 2 that Dulichand deceased on way to the police station had said that 3-4 persons had assaulted him also raises an inference that Mulla and his three sons may be the persons. Ram Prakash appellant, who was an outsider not belonging to the family of Mulla, was not to be omitted by the deceased Dulichand. The evidence on record creates a reasonable doubt about the participation in the commission of the offence by appellant Ram Prakash. He thus is entitled to be given the benefit of doubt. The prosecution has failed to prove the guilt against the appellant Ram Prakash beyond all reasonable doubt. 12. Sri Giri submitted that the evidence oi Nathu Ram P.W. 3 and Sita Ram P.W. 1 is not corroborating each other, rather is contradictory. Nathu Ram P.W. 3 corroborated Sita Ram P.W. 1 about Mulla and Ram Raja carrying spears at the time of occurrence but he contradicted that Shanker was carrying a kulhari and Sita Ram said that he was carrying a lathi. Munna alias Shivnarain was stated to have carried a lathi by Nathu Ram whereas Sita Ram said that he was carrying an axe. Munna alias Shivnarain was stated to have carried a lathi by Nathu Ram whereas Sita Ram said that he was carrying an axe. Learned counsel for the appellants submitted that the witnesses Nathu Ram P.W. 3 and Sita Ram P.W. 1 are not reliable witnesses at least they are not wholly reliable. Their evidence requires corrboration. In such circumstances it was submitted 'hat the evidence of these two witnesses be not accepted. Relying on the cases in State v. Tula Ram, 1960 Cr LJ 1276 and Va-divelu Thevar v. State of Madras, AIR 1957 SC 614 . It has been pointed out that in 1957 AIR SC 614 (supra) the apex court classified the witnesses into three categories namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. Under the first category of proof, the Court should not have any difficulty in coming to its conclusion either way. It may convict or may acquit on the testimony of a single witness, if it is found to be above approach or suspicion of interestedness incompetence or subordination. Again there is no difficulty in the second category of proof and the statement of a witness wholly unreliable must be rejected for all purposes. It is in the third category of proof, namely, where the witness is neither wholly reliable nor wholly unreliable that difficulty arises. And in such cases the Court seeks corroboration from some independent evidence or from circumstances. As has been observed by the Supreme Court in this decision, as a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness out-weighs the testimony of a number of other witnesses of indifferent character. Where the nature of the testimony of a witness, who is not wholly reliable requires corroboration courts, as a rule of prudence, insist on corroboration from independent evidence. There can be no corroboration of a false or doubtful witness by another witness of the same character. In the present case it is not the evidence of Nathu Ram P.W. 3 and Sita Ram P.W. 1, which is the only evidence for consideration. P.W. 4 Shiv Kali at the time of evidence in 1978 was of 16 years of age. She was at the time of occurrence about 11.12 years of age. In the present case it is not the evidence of Nathu Ram P.W. 3 and Sita Ram P.W. 1, which is the only evidence for consideration. P.W. 4 Shiv Kali at the time of evidence in 1978 was of 16 years of age. She was at the time of occurrence about 11.12 years of age. She stated that she was present at the time of the assault made on her father and brother. Her statement was said to be not believable. It has been argued that at the time of occurrence she had been to attend the call of nature near the pond and when she was coming back, she had seen the occurrence. Her name was not mentioned in the F.I.R. as an eye-witness. The learned counsel submitted that non-mention of the name of P.W. 4 Shiv Kali raises a serious doubt. She was not present nor she witnessed the incident. Had she been there, there was no occasion for omitting her name. She is not an outsider. She is the daughter of the deceased Dulichand. She cannot be said to be a chance witness. Her statement is not to be disbelieved only because she said that she had been to attend the call of nature. That does not mean that she could not return and witness the occurrence, as stated by her. The injury on the deceased was said to be star shaped. Lot of arguments has been advance that the weapons carried and used by appellants Mulla and Ram Prakash were spears. It is submitted that the injuries on the deceased Dulichand and Ram Prasad both were of one and the same weapon i.e. star shaped injuries. The injuries on the person of the deceased Dulichand and Ram Prasad thus could not be caused by spear. The question put to the witness how many axe injuries were inflicted and the injury was caused could not be replied by her. The submission of the learned counsel for the appellants that on account of such statement her testimony becomes doubtful and is not acceptable at all. In such circumstances when Marpit is going on it is neither possible nor can be imagined that the witness would be able to count the number of blows given to the deceased and by whom and whose blow caused the injury. In such circumstances when Marpit is going on it is neither possible nor can be imagined that the witness would be able to count the number of blows given to the deceased and by whom and whose blow caused the injury. If a person is expected to give such details it would be too much and the courts are not supposed to appreciate the evidence of witnesses in such critical manner. Thus the testimony of P.W. 4 Shiv Kali is trustworthy and not only corroborates the statement of Dulichand in the F.I.R. and Nathu Ram P.W. 3 and Sita Ram P.W. 1. 13. The learned counsel for the appellants drew the attention of the Court to the statement of witness D.W. 1 Lalli, who stated that there is a house of one Baldev Pathak in the village. The house of Bhoja Ahir is adjoining towards west of house of Baldev Pathak. The house of Raja Ram is also near it. The house of Baldev Pathak is at a distance of 100 Hath towards East from the house of Dulichand deceased. The son of the witness Lalli was assaulted by one Vinod with axe near the house of Baldev Pathak. Ganga Prasad had also assaulted Vinod with axe. Shiv Prasad and Mulla had assaulted him with lathi. Mulla is the son of Shiv Prasad. On the alarm raised at the time of incident of assault on Vinod witness Lalli, Parmai, Devi Dayal had reached there and intervened. Vinod injured was taken to the hospital. In the evening at 6 o'clock he was going to lodge a report at the police station when Vinod was being taken to the Orai hospital for medical examination from the police station, Parmai witness of the case was going on his bullockcart on the way to the police station. In the said bullockcart Ram Prasad and Dulichand were also there. Ram Prasad and Dulichand were unconscious and not speaking. They had reached the police station unconscious and were not able to speak. Lakshmi Brahmin of the village had also reached there. Dulichand had not dictated the report. Lakshmi had taken the Sub-Inspector aside and was conversing with him. After lodging the report the witness had come to the motor stand. After some time Dulichand and Ram Prasad also came to the motor stand. At that time also they were unconscious. Lakshmi Brahmin of the village had also reached there. Dulichand had not dictated the report. Lakshmi had taken the Sub-Inspector aside and was conversing with him. After lodging the report the witness had come to the motor stand. After some time Dulichand and Ram Prasad also came to the motor stand. At that time also they were unconscious. The witness Lalli stated that he was present at the door of Baldev Pathak in the village from 4 to 6 o'clock in the evening and no incident had taken place at the door of Dulichand. Shiv Kali was at that time at her father's-in-law place. He denied to have seen Nathu Ram and Sita Ram at the place of occurrence. The learned counsel for the appellants submitted that his statement is reliable. It is proved that he had lodged a report at the police station and had seen the deceased Dulichand and Ram Prasad, who were unconscious. He also stated that Shiv Kali P.W. 4 was not present in the village but was at her father's- in-law place. We have already discussed the evidence of P.W. 2 Parmai, P.W. 3 Nathu Ram and P.W. 1 Sita Ram and Shiv Kali. These witnesses are very consistent in their statement about participation and assault by the appellants Mulla, Ram Raj, Shanker and Munna. We have already recorded reasons and circumstances to hold that Ram Prakash was perhaps not present at the time of occurrence nor had participated in commission of" the offence and benefit of doubt has been extended to him. But the evidence of the witnesses is dun corroborated by the medical evidence, post-mortem report and the injury report and the F.I.R., which is to be treated as dying declaration, lite prosecution esse against appellants Mulla. Shanker, Ram Raja and Munna is fully establishes beyond all reasonable doubt. The court below also considered the evidence on record and arrived at the same conclusion. 14. The learned counsel for the appellants submitted that the appellants Shanker and Munna were minor on the date of occurrence. The learned counsel submitted that in view of Section 27 of the U. P. Children Act. Shanker and Munna cannot be sentenced and sent to Jail. The provision of Section 27 is quoted as under: "27. 14. The learned counsel for the appellants submitted that the appellants Shanker and Munna were minor on the date of occurrence. The learned counsel submitted that in view of Section 27 of the U. P. Children Act. Shanker and Munna cannot be sentenced and sent to Jail. The provision of Section 27 is quoted as under: "27. Sentence that may not be passed on child.- Not with standing 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 unruly, 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." It was neither pointed out nor argued nor there is any consideration in the judgment of the Sessions Judge that the appellants Shanker and Munna were entitled for benefit of Section 27 of the U. P. Children Act. Admittedly they were above 12 years of age according to the submission of the learned counsel for the appellants. P.W. 3 Nathu Ram in his cross-examination in statement recorded on 15.12.1978 stated that the age of appellant Munna is 18 years on the said date. Shanker appellant is two years older than Munna appellant. The occurrence had taken place on 19.6.1974. Thus at the time of occurrence Munna was aged 14 1/2 years and Shanker was 16 1/2 years of age. In the statement under Section 313, Cr. P.C. recorded on 7.2.1979 Shanker appellant gave his age as 19 years and Munna as 18 years. Thus the age according to the statement of the appellants would come below 15 and 14 years respectively. The decisions in Jayendra and another v. State of U. P., AIR 1982 SC 685 ; Virendra v. State of U. P. 1987 (2)ACC 529; Riasat v. State of U. P.. 1988 ACC 377; Bhup Ram v. State o/U. P.. 1989 (26) ACC 285, were referred. The decisions in Jayendra and another v. State of U. P., AIR 1982 SC 685 ; Virendra v. State of U. P. 1987 (2)ACC 529; Riasat v. State of U. P.. 1988 ACC 377; Bhup Ram v. State o/U. P.. 1989 (26) ACC 285, were referred. In all these cases the Apex Court as well as Divisional Benches of our Court on the date of hearing of the appeal found that at the time of hearing of the appeal, the appellant became above 18 years of age but at the time of commission of offence was below 16 years of age and benefit of Section 27 of the U. P. Children Act was extended. The conviction passed against the accused was upheld but the sentence awarded was quashed. Sri K. C. Saxena, Addl. Govt. Advocate placed. State of Haryana v. Balwant Singh. 1993 Supp. (1) SCC 409 and Hart Om v. State of U. P., 1993 (1) Crimes 294: 1993 CrLJ 1383 . In 1993 Supp. (1) SCC (supra), the Apex Court was pleased to remand the case for decision on merits. It was found that before the trial Court even at the stage of framing of charge the age was given as 17 years. The Magistrate before whom the respondent was brought was not satisfied that the respondent was a child within the definition of the word 'child' under the Haryana Children Act. Thus neither before the committal court nor before the trial court this plea was raised on behalf of the appellants that these appellants were children and that they should not have been committed by the Magistrate and, therefore, the trial by the Sessions Court ought to have been dealt with only under the Juvenile Courts Act. The Apex Court was pleased to remand the case to the High Court for deciding the case on merits. Here in this case the evidence of the prosecution witnesses also shows that Shanker and Munna appellants were admittedly below 16 years of age at the time of occurrence and the decisions of the Supreme Court and the Division Benches referred to above fully apply to the facts of the present case. The learned A.G.A. cited the case in Suresh v. State of U. P., AIR 1981 SC 1122 , which in our opinion, is of no assistance to the decision of the present case. The learned A.G.A. cited the case in Suresh v. State of U. P., AIR 1981 SC 1122 , which in our opinion, is of no assistance to the decision of the present case. He also cited the case in Vinod Kumar v. State of U. P., AIR 1987 SC 1501 . The decision of the Supreme Court was that the accused had not only assaulted but had also played a prominent role, which resulted in gruesome tripple murders. The document produced on behalf of the accused showing their age was of doubtful authenticity and unsafe to rely. The Court was thus of the view that the accused in that case was not a child within the meaning of 'child' as defined in the U. P. Children Act either under Section 2 (4) or 2 (9) thereof. The Court has thus declined to give benefit of Section 29 of the U. P. Children Act. The facts of the present case are quite different and distinct. It has not been shown that these two appellants Shanker and Munna were the persons who helped in the commission of gruesome offence. Their age was admitted to be below 16 years at the time of commission of the offence by the prosecution witnesses themselves. Thus the facts and circumstances of the present case are quite distinct and the prosecution cannot be given any credit on this point. 15. Since we have recorded the finding that Ram Prakash appellant was perhaps not present in the commission of the offence, the question that arises whether the conviction and sentence of the appellants under Sections 302, 149, 148 and 147. I.P.C. should be maintained. The applicability of Section 34, I.P.C. was considered by the Constitution Bench of the Supreme Court in the case in Pandurang and others v. State of Hyderabad, AIR 1955 SC 216 . The requirement for applicability of Section 34 is that all that is necessary either to have direct proof of prior concert or proof of circumstances which necessarily leads to that inference, or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. The Supreme Court in the above case in Paras 32 and 33 was pleased to observe as under: "32. Now in the case of section we think it is well settled that a common intention presupposes prior concert. The Supreme Court in the above case in Paras 32 and 33 was pleased to observe as under: "32. Now in the case of section we think it is well settled that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherence of the common intention of them all Mahbub Shah v. Emperor, AIR 1945 PC 118 at pp. 120 and 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others ; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved In his case. AIR 1925 PC 1 at pp. 5 and 6 (A) and AIR 1945 PC 118 (B). As their lordships say in the latter case' the partition which divides their bonds is often very thin : nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice. 33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on by-standards to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough as in the latter privy Council case to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." 16. There is a pre arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough as in the latter privy Council case to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." 16. We are thus of the view that the conviction and sentence awarded under Section 302 read with Sections 149, 148 and 147, I.P.C. needs a little modification. In the present case, it is amply proved that appellant Mulla and his sons Ram Raja, Shanker and Munna co-appellants and appellant Ram Prakash s/o Bhagirath Teli armed with lathi, spear axe and surrounded the informant and his son and Mulla had accosted why they are only seeing, assault them, as they had assaulted two days earlier. The accused appellants started belabouring Informant's son with spear, lathi and axe causing injuries to witnesses and death of two persons. WE have now to ascertain whether there was any common intention of murdering the victims and also to cause injuries to any one whosoever tried to prevent the assailants. The appellant Mulla and his three sons had come to the place of occurrence fully armed with deadly weapons. It is Mulla appellant who had accosted and his three sons started assaulting the injured and deceased. The nature and gravity of the injuries show that the assailants had gone to cause such fatal injuries which in ordinary course would result in death of the person. It is not possible to find out that which of the appellants actually caused the murderous injury on the victim. It is evident that the intention of appellant Mulla was to cause such injury which in normal course results in death of the person. The weapons carried by the appellants show that the appellants had proceeded before the actual assault to the victim and deceased persons to cause injury which was sufficient to cause culpable homicide amounting to murder. Thus it shows that the accused appellants had pre-planned to commit such offence that may amount to murder. The weapons carried by the appellants show that the appellants had proceeded before the actual assault to the victim and deceased persons to cause injury which was sufficient to cause culpable homicide amounting to murder. Thus it shows that the accused appellants had pre-planned to commit such offence that may amount to murder. Thus we are of the view that the appellants Mulla and three co-appellants arc liable to be convicted under Section 302, I.P.C. with the aid of Section 34, I.P.C. Thus we modify the conviction of appellants Mulla, Ram Raja, Munna and Shanker under Section 302, I.P.C. read with Section 34, I.P.C. and sentence of Mulla, Ram Raja appellant to undergo life imprisonment. Their sentences under Sections 147, 148 and 149, I.P.C. are hereby set aside. Mulla and Ram Raja appellants are on bail. Their appeal is dismissed with the above modification. They shall be taken into custody to serve out the sentence under Section 302/34, I.P.C. as indicated above since Munna and Shanker appellants were below 16 years of age at the time of the occurrence, they are entitled to the benefit of Section 27 of the U. P. Children Act. Their conviction under Section 302, I.P.C. is modified to be under Section 302 read with Section 34, I.P.C. Their conviction and sentence under Sections 147, 148 and 149, I.P.C. are set aside. Since they have been given benefit of Section 27 of the U. P. Children Act, they are not sentenced to undergo imprisonment. They are on bail, they need not surrender to serve out the sentence. 17. The appeal of appellant Ram Prakash is allowed and he is given benefit of doubt. The conviction and sentence awarded to him by the court below are set aside. He is on bail. He need not surrender. His bail bonds stands discharged. The result is that the appeal is partly allowed, as indicated above. Appeal partly allowed.