JUDGMENT J.G. Chitre, J. 1. The appellants have been convicted for an offence punishable u/s 304 pan I IPC and have been sentenced to under go 7 years RI with Fine of Rs. 10000/-, in default to undergo RI for 6 months by Addl. Sessions Judge, Agar Dist : Shajapur in the matter of S.T. 365/93 and that order is being assailed by the appellant by this appeal. 2. Shri ZA Warsi, appearing for the appellants argued that the learned trial Judge has committed error of law in holding that at the time of commission of the offence appellant Gordhan was Juvenile in view of provisions of Juvenile Justice Act, 1989 (hereinafter referred to as Act for short). He pointed out that the learned Judge has committal an error by giving more importance to the medical opinion than the evidence of Shri Garg who has been examined in the sessions case by defence and who has proved school leaving certificate which is Ex. D. 4. I find substance in his argument because it is the evidence of Shri Garg DW-1 that that Ex. D. 4 is the school leaving certificate showing (sic) appellant Gordhanlal was born on 3.5.78. At the time of giving evidence he has bought the school register also with him which was showing that as per entry made in it, the birth date of the appellant Gordhanlal was 3.5.78. A question was asked to him in the cross-examination to which he answered by saying that according to him it was true that the villagers mention the age of pupil to be admitted in school by giving estimated age. This has been the base of reasoning which has been advanced by the learned trial Judge in his judgment in paragraph No. 14 and 15 for the purpose of coming to the conclusion that on the date of commission of the offence i.e. 17.7.93, Gordhanlal was not 'Juvenile'. 3. Learned Judge has pointed out that an order was passed by learned Sessions Judge Shajapur on 8.1.94 in which the learned Judge had considered the point of the age of the appellant Gordhanlal. He pointed out that in the said order it has been mentioned that Gordhanlal was medically examined by Dr. Kapil Sahay and Dr. 3. Learned Judge has pointed out that an order was passed by learned Sessions Judge Shajapur on 8.1.94 in which the learned Judge had considered the point of the age of the appellant Gordhanlal. He pointed out that in the said order it has been mentioned that Gordhanlal was medically examined by Dr. Kapil Sahay and Dr. R.C. Sharma and it has been pointed out in the said order that Civil Surgeon Shajapur has opined in view of that medical report that on the date of said examination, the age of Gordhan was between 18-21 years. By mentioning this, the learned Judge concluded that the credence can not be given to school leaving certificate Ex. D. 4 when said order which was passed by Sessions Judge, Shajapur on 8.1.94 was not challenged by appellant - Gordhan by filing any revision against it. I do not agree with the learned Judge because his conclusion is not correct. The same sort of point was dealt with by the Supreme Court in the matter of Bhoopram vs. State of M.P. reported in AIR 1989 SC 1329 . In that case the said appellant had produced school certificate which was showing dale 24.6.1960' against the column 'date of birth'. In that case Chief Medical Officer opined that the said appellant appeared to be 30 years old on 30.4.87. In that case also the Sessions Judge had brushed aside the said school certificate by opinion that it was not unusual for parents to under estimate the age of their children by one or two years at the time of their admission in the school for securing benefit to the children in their future years. 4. In the present case the appellant Gordhan has proved by evidence of Shri Garg-Defence Witness that the said certificate D. 4 has the base from the entry from school register. Though said witness has answered that it is the habit of villagers to mention the age of pupils to be admitted in school by system of estimation, that can not be taken to be over riding phenomenon when the school certificate giving the correct idea about the specific birth date of appellant Gordhan is available on record. The opinion of Civil Suregon Shajapur based on the medical examination of Dr. Kapil and Dr. R.C. Sharma has base of approximation. The opinion of Civil Suregon Shajapur based on the medical examination of Dr. Kapil and Dr. R.C. Sharma has base of approximation. It has been stated that the age may be between 18-21 yrs. It means that a margin of three years has been indicated for the purpose of pointing out the estimated age of appellant Gordhan. Needless to say at this juncture that fusion of bones is dependent on many factors including hereditary body structure, environment, food and upbringing of the persons, Gordhan happens to be a villager. He might not have received the nourishing diet allowing his bones to fuse at proper time as expected by medical science. Therefore, the opinion about the age which has been expressed by the Civil Surgeon, Shajapur is not reliable when the certificate, Ex. D. 4 which is supported by the evidence on abut of D.W. Garg is available. In my view that has preference over the medical opinion. Further more, when two inferences are cropping up, it is settled rule of law that the inference which is in favour of the accused, has to he preferred. If that is done, the learned Judge was definitely wrong in not treating the appellant Gordhan as 'Juvenile' in view of the provisions of Act which defines - 'Juvenile' as to boy who has not attained the age of 16 years. In the present case the age of appellant Gordhan on the date of commission of offence, was 15 yrs, 7 months and 14 days. In view of this, the learned advocate, Shri Warsi has argued that learned A.S.J. should not have tried this case but should have directed his case to be tried by Juvenile Court. 5. When a Juvenile is charged for committing a crime with co-accused who is not juvenile, the case of juvenile has to be separated from such co-accused and juvenile is to be tried before Juvenile Court, keeping in view provisions of S.24 of the Act. 6. After hearing Shri Sen, Dy. G.A, for the State, I come to the conclusion that the appellant Gordhan should have been tried before the Juvenile Court and should not have been tried by A.S.J. Shajapur who recorded conviction against him in S.T. 363/93. 6. After hearing Shri Sen, Dy. G.A, for the State, I come to the conclusion that the appellant Gordhan should have been tried before the Juvenile Court and should not have been tried by A.S.J. Shajapur who recorded conviction against him in S.T. 363/93. Thus, in the interest of justice the order of conviction and sentence recorded against him in respect of offence punishable u/s 304 (I) IPC, has to be set aside and it stands set aside. He needs to be tried before Juvenile Court. 7. Shri Warsi, argued that there is no evidence on record to prove that appellant Kamla Bai caused any bodily injury to deceased Kalu as evidence indicates. I find force in his argument because it has been stated by prosecution witnesses Sidhu, Jugdish that Kamlabai played some active part in the said incident; while other prosecution witnesses - Sajan, Inder Singh and Maharbansing have stated otherwise so far as part played by Kamlabai is concerned. It is the evidence of Sidhu that Kamlabai gave a knife blow on neck and back of deceased Kalu. He has stated that Kamlabai instigated Gordhan to stab deceased Kalu by telling Mm that he was to keep the honour of her milk as mother. In the cross-examination Sidhu was exposed and he had to admit that such statement was not made by him when his statement was recorded by police. PW - Jagdish has stated that at the time of said incident, Kamlabai had caught deceased Kalu but he was also exposed and had admitted in the cross-examination that no such information was released by him when he was interrogated during the course of investigation. PW Sajan has stated that Kamlabai appeared on spot of incident after the incident was over and she was weeping by saying that Gordhan was assaulted. PW Inder Singh has stated that Kamla bai was present on the spot of incident at all. Maharban Singh has also not mentioned the name of Kamlabai at all as the person either participating in the said incident or present on the spot of incident. 8. When this is the evidence which has been adduced by prosecution against Kamlabai, the learned trial Judge should not have concluded that prosecution has proved the guilt against the appellant Kamlabai so far as the offence punishable u/s 304 (I) IPC is concerned. 8. When this is the evidence which has been adduced by prosecution against Kamlabai, the learned trial Judge should not have concluded that prosecution has proved the guilt against the appellant Kamlabai so far as the offence punishable u/s 304 (I) IPC is concerned. The learned trial Judge has committed an error in accepting the prosecution evidence on the point of guilt of Kamlabai and passing the order of conviction and sentence against her which is being impugned by this appeal. That order of conviction and sentence can not he sustained as it is not proper, legal and correct. The said order needs to be set aside and it stands set aside. 9. Thus, the appeal is allowed. The order of conviction and sentence passed against appellant - Gordhan s/o Ramesh in S.T. 365/93 in context with an offence punishable under S. 304 part I IPC is hereby set aside. It is hereby directed that he be tried before the appropriate Juvenile Court for the charge of committing murder of deceased Kalu, in accordance with provisions of law. The order of conviction and sentence passed against appellant Kamlabai wife of Ramesh is hereby set aside and she is hereby acquitted. Kamlabai be set to liberty forthwith, if not required in any other enquiry, proceeding or trial. Appellant Gordhanlal @ Gordhan s/o Ramesh is hereby directed to be released on his father-Ramesh, Guardian, furnishing security to the tune of Rs. 15000/- (fifteen thousand) with one surety and PR bond to that extent for his presence and good behaviour during trial, before appropriate Juvenile Court. Such bond is to he furnished by him before the appropriate Juvenile Court within a month from today. As he happens to be Juvenile he should be released from the jail where he has been detained, forthwith. The record be dispatched to the appropriate trial court for the purpose of despatching it to appropriate Juvenile Court for the purpose of proceedings which is to proceed against appellant Gordhan s/o Ramesh. The MUDDEMAL articles be preserved for the said proceedings.