Judgment R.N.Sahay and S.K.Chattopadhyaya JJ. 1. out of seven appellants, three of them namely, appellant No.5 Raj Roshan Chaudhur, appellant No.6 Indrasan Chaudhur and appellant No.7 Chandradeo Chaudhur died during the pendency of this appeal and this appeal as against them stands abated. The appeal of appellant Nos. 1 to 5 survived for consideration. 2. Appellant No.1 Subhash Chaudhur has been convicted and sentenced to imprisonment for life under Sec. 302, Indian Penal Code and also three years imprisonment under Sec. 148, Indian Penal Code. Appellants No.5 to 7, whose appeal has abated, had been convicted under Sec. 147, I.P.C. and sentenced to one year imprisonment Appellant No.2 Narain Chaudhur, appellant No.3 Prahalad Chaudhur and appellant No.4 Parasu Ram Chaudhur have only been convicted under Sec. 148, IPC and sentenced to two years. Accused Bashisth Chaudhur, who was tried along with the appellant was acquitted. 3. The prosecution story has been narrated by the learned trial judge accurately in part-8 of the judgment as extracted below: "The case of the prosecution in brief is that on 14-5-1976 at about sun set at Village Manipur, P.S. Mirganj, District Siwan at present Gopalganj it is said that the informant Sheo Raj Chaudhur was returning from Khalihan. He reached near the well of his house. He saw the accused Bashisth Chaudhur with Barachhi Narain Chaudhur with Barachhi, Prahalad Chaudhur with Barachhi, Subhash Chaudhur with Barachhi and Indrasan Chaudhur with brick, Parsu Ram Chaudhur with Bhala, Chandra Deo Chaudhur, and Raj Roshan Chaudhur with lathi. They were sitting there. The accused Chandradeo abused the informant and said to kill him, because he is person interested in litigation. On this order the accused Narain Chaudhur, Prahlad Chaudhur assaulted with Barachhi. The accused Prahalad Chaudhur assaulted him on his right chest and right hand elbow. The accused Narain assaulted on the left chest. The informant raised alarm and his nephew Jai Ram Chaudhur rushed for rescue. Thereby Bashisth Chaudhur ordered to kill him. On the order at Bashisth Chaudhur, Subhash Chaudhur assaulted with Barachhi on stomach and Jai ram Chaudhur fell down on the ground. On alarm one Moti Lal Chaudhur (P.W. 2), Sudheshwari Chaudhur (not examined), Raghunath Chaudhur (P.W. 1) arrived and saw the occurrence. It is further said that the villagers such as Kapildeo Chaudhur (not examined), Raj Kumar Rat (not examined), Moti Lal Chaudhur. On alarm one Moti Lal Chaudhur (P.W. 2), Sudheshwari Chaudhur (not examined), Raghunath Chaudhur (P.W. 1) arrived and saw the occurrence. It is further said that the villagers such as Kapildeo Chaudhur (not examined), Raj Kumar Rat (not examined), Moti Lal Chaudhur. (P.W. 2) arrived and saw the occurrence and the accused persons went away. After the occurrence the injured were taken to the Hathuwan Hospital but on the way Jai Ram Chaudhur died. The injured and deceased, taken to the hospital where the fardbeyan of Suraj Chaudhur was recorded. The case was registered. The F.I.R. was drawn up and after completing investigation the police submitted charge-sheet against these accused persons." 4. The accused persons had put forward defence of total denial of entire occurrence. They raised the plea of alibi. According to the defence, there was dispute between the parties in respect of sahan land and it was alleged that the prosecution party looted away the grains from Berhi and on protest ladies members of the accused had been brutally assaulted. On raising hue and cry the villagers came to save them and in that course the villagers might have assaulted the prosecution party. 5. During trial, one witness, namely, Prabhu Nath Chaudhur (P.W. 3) was declared hostile. Raghunath Chaudhur (P.W.1) was the eye-witness to the occurrence. In the evening time at 5.30 p.m. he was returning to his house from khalihan. He saw the accused persons variously armed with Barachhi and Bhala near the well. Some of them were carrying bricks having received order accused Chandradeo Chaudhur, other accused persons attacked Sheoraj Chaudhur. Narain Chaudhur is alleged to have inflicted injury by means of Barachhi. Appellant No. 1 Subhash Chaudhur caused injury in the abdomen of Jai Ram Chaudhur. Injured Jai Ram Chaudhur and Sheo Raj Chaudhur were carried to Hathuwan Hospital on a bullock-cart but on the way near the Canal Jai Ram Chaudhur succumbed to his injuries. Moti Lal Chaudhur (P.W. 2) has corroborated the evidence of P.W. 1. Ram Sagar Chaudhur (P.W. 4) is another eyewitness, who fully supported the prosecution case, P.W. 6 (Dr. Injured Jai Ram Chaudhur and Sheo Raj Chaudhur were carried to Hathuwan Hospital on a bullock-cart but on the way near the Canal Jai Ram Chaudhur succumbed to his injuries. Moti Lal Chaudhur (P.W. 2) has corroborated the evidence of P.W. 1. Ram Sagar Chaudhur (P.W. 4) is another eyewitness, who fully supported the prosecution case, P.W. 6 (Dr. M.N. Mishra) had performed the autopsy of the deceased and found following injuries: "Punctured wound with clean cut margin 1" x maximum going into abdominal cavity 1" left to umblicus in the same level divided down wards forward and medially on opening the abdomen about 8 to 10 oz blood and blood clots were seen on the posterior abdomen wall. There was punctured wound on both the stomach walls corresponding to the internal wound. Blood vessel in the stomach bed was punctured." In the opinion of the doctor, death was due to shock and haemorrhage due to above injuries. 6 Documents were filed which clearly show that the parties were in hostile terms and cases were also filed. Entire oral evidence has been dealt with in para 12 of the judgment of the Trial Court which for the, sake of convenience is extracted below: "In his cross-examination he has proved the injury report in the pen of Ram Dharichhan Pd. Singh Ext. A1 All, A/2 and A/3. P.W. 1 Raghu Nath Chaudhur has stated that on the alleged date and alleged time he was in his khalihan and was returning his house. On the way he saw the accused Bashisth, Subhas, Narain, Prahalad with Barachhi. Parsu Ram with Bhala and other accused persons with lathi and brick. They were sitting near the well. The accused Chandra Deo ordered Narain and Prahlad to kill the informant Sheo Nath Chaudhur. Thereby Narain Chaudhur assaulted with Barachhi on the chest and side of the chest. Prahalad Chaudhur assaulted with Barachhi on the right hand elbow. The informant fell down and the nephew Jai Ram Chciudhur rushed to save Sheo Raj Chaudhur and it is said that Bashisth Chaudhur ordered Subhash Chaudhur to kill Jai Ram Chaudhur. Thereby Subhash Chaudhur gave a Barachhi blow on the stomach and Jai ram Chaudhur fell down and became senseless. Prahalad Chaudhur assaulted with Barachhi on the right hand elbow. The informant fell down and the nephew Jai Ram Chciudhur rushed to save Sheo Raj Chaudhur and it is said that Bashisth Chaudhur ordered Subhash Chaudhur to kill Jai Ram Chaudhur. Thereby Subhash Chaudhur gave a Barachhi blow on the stomach and Jai ram Chaudhur fell down and became senseless. After the occurrence Moti Lal Chaudhur (P.W. 2), Kapil Deo Chaudhur (not examined), Kashi Nath Rai (not examined), Raj Kumar Rat (not examined) arrived and they took the injured to the Hathuwan Hospital. On the way Jai Ram Chaudhur died. In hospital the Fardbeyan of Sheo Raj Chaudhur was recorded. P.W. 2 Moti Lal Chaudhur has stated that on the alleged date at, about 6.30 p.m. he was going to khalihan from his house. Before he reached near the P.O. he saw the accused Bashisth Chaudhur with Barachhi, Narain with Barachi, Rajak with Barachhi, Subhash with Barachhi, Parsuram with bhala, Indrasan with brick, Chandradeo and Raj Roshan with lathi. The accused Chandradeo ordered to kill the informant and thereby Prahlad assaulted with Barachhi on the side of chest and Narain assaulted on the chest with Barachhi causing injuries on the person of informant. The informant Sheo Raj raised alarm and his nephew Jai Ram rushed to save him. Thereby Bashisth ordered to kill him and on his order Subhash gave a Barachhi blow on the stomach of Jai Ram and he fell down and the accused persons ran away. After the occurrence the informant Sheo Raj and Jai Ram (injured) were taken to the Hathuwan Hospital but on the way Jai Ram died. P.W. 4 Ram Sagar Chaudhur has stated that on the alleged date and time of setting sun he was at his door, which is at a distance of 100 yards from the alleged P.O. He saw Sheo Raj Chaudhur going to their house from Khalihan. When they reached near the door of the accused then the accused Narain Chaudhur assaulted on the side of the chest with Barachhi and Prahalad assaulted with Barachhi on the right chest. The informant Sheo Raj raised alarm and his nephew Jai Ram (deceased) rushed to save him. It is said that the accused Bashisth ordered Subhash to kill him. Thereby the accused Subhash gave a Barachhi blow on the stomach. At the time of occurrence many people came. The informant Sheo Raj raised alarm and his nephew Jai Ram (deceased) rushed to save him. It is said that the accused Bashisth ordered Subhash to kill him. Thereby the accused Subhash gave a Barachhi blow on the stomach. At the time of occurrence many people came. The accused drew the Barachhi from the stomach of Jai Ram Chaudhur and they ran away. The accused were chased by the people and accused Indrasan threw bricks on the witnesses causing injuries on one Nageshwar and Hansh Raj. After the occurrence injured were taken to the Hathuwan hospital but on the way Jai Ram Chaudhur died. He has further stated that the witnesses Negeshwar Chaudhur, Shyam Lal Chaudhur, Sheo Raj Chaudhur (informant) are dead. P.W. 5 Dineshwar Mishir is the Investigating Officer of the case. He has stated that on 15-5-1976 he received O.D. slip from the hospital and went to the hospital and he recorded fardbeyan of Sheo Raj Chaudhur and injured. Thereafter he read over and explained to the injured and he and one Kapildeo Chaudhur (not examined). Kashi Nath Rai (not examined) made signature, which is Ext.-1. On the basis of fardbeyan the F.I. R. was drawn up by Raghu Nath Mishir, which is Ext. 2. He took up the investigation. He went to the P.O. There is a village path in front of the well. The path goes towards east to the house of the informant. The house of Indrasan Chaudhur is towards south of the well. The P.O. is adjacent north to the well. The earth of the alleged P.O. was removed and the P.O. was found watered. There is Berhi in the north of the alleged P.O. and some blood were found on the bamboo of the Berhi. The house of the informant is at a distance of 52 feet in the east from the P.O. He has further stated that there was a proceeding under Sec. 107. Cr. P.C. pending between parties in respect to 1 katha 18 dhurs of land. The bath an of the informant is at a distance of 150 yards towards north and east. He also found 2 to 4, wheat grains near berhi and on P.O. He prepared the inquest report of the deceased Jai Ram Chaudhur in the -carbon process and made his signature Ext. 3 and sent the dead body of Jai Ram Chaudhur in hospital for postmortem. He also found 2 to 4, wheat grains near berhi and on P.O. He prepared the inquest report of the deceased Jai Ram Chaudhur in the -carbon process and made his signature Ext. 3 and sent the dead body of Jai Ram Chaudhur in hospital for postmortem. He also seized the blood mark, dry bamboo with blood clot and some earth and prepared a seizure list which are Exts. 4 and 4/1. He also requisitioned the injury report of Sheo Raj Chaudhur, which was in the pen of Raghu Nath Pd. He also took statement of the witnesses and submitted the charge-sheet P.W. 6 Dr. Mahanarain Mishra has stated that on 15-5-1976 at about 11.30 a.m. he held the P.M. examination on the dead body of Jai Ram Chaudhur........" 7. Learned Additional Sessions Judge convicted appellant, Subhash Chaudhur under Sec. 302, IPC and the remaining appellants have been convicted under Sec. 147, IPC. 8. Mr. Rana Pratap Singh, learned Senior Counsel for the appellant submitted that evidence brought on record by the prosecution is not worthy of reliance. More so, the prosecution party and the accused persons were involved in litigations. We have examined the evidence and are satisfied that the findings of the trial Judge are satisfactory and cannot be questioned. It is, however, submitted that appellant No.1 Subhash Chaudhur was minor at the time of occurrence. It is established beyond doubt that appellant No.1 was below 16 years at the time of occurrence. This was accepted by the C.J.M. when this appellant had appeared before him on 17-6-1976. The C.J .M. recorded following order: "...........So far accused Subhash Chaudhur is concerned, a school leaving certificate dated 4-6-1976 granted by the Headmaster Eden High School, Hathua has been filed, which goes to show that the date of birth of this accused as recorded in the school is 11-2-1961. Besides this, a medical certificate has also been filed which does show that the age of this accused is about 16 years. A medical certificate has also been filed in respect of accused Prahlad Chaudhur also which goes to show that according to the doctor his age is approximately 16 years. So far accused Prahlad Chaudhur is concerned, on a look he does not appear to be below 16 years of age. Accused Sub hash Chaudhur may be below 16 years of age......". So far accused Prahlad Chaudhur is concerned, on a look he does not appear to be below 16 years of age. Accused Sub hash Chaudhur may be below 16 years of age......". Hence, it is claimed that the C.J .M. was satisfied that the appellant Subhash Cahudhur was below 16 years of age, still he did not pass any order for trial of this accused under Juvenile Justice Act. This plea was not taken before the Sessions Court as also he is the principal accused charged under Section 302, IPC. 9. Mr. Singh further submitted that even if the conviction of the appellant is upheld, his sentence is liable to be quashed in view of the recent decision of the Supreme Court in Bhola Bhagat V/s. State of Bihar. In this case on consideration of various decisions of the Supreme Court as well as Special Bench decision of this Court in Krishna Bhagwan V/s. State of Bihar, the Supreme Court held that when a plea is raised for the first time in this Court and the Court is satisfied that the accused was below 16 years of age at the time of occurrence, still he was not tried under the Juvenile Justice Act, the Court will confirm the conviction but set aside the sentence. The first decision on this point is Gopinath Ghosh V/s. State of West Benga. This decision was followed in Bhola Bhagats case (supra). In Gopinaths case the plea of minority was taken for the first time in the Supreme Court. The Supreme Court on being satisfied that the accused was child within the expression child as contained in West Bengal Children Act, 1959 held that he was illegally tried by the regular Court and the entire trial was vitiated and retrial under the West Bengal Children Act was directed. 10. Full Bench of this Court in Krishna Bhagwan V/s. State of Bihar (supra), laid down the procedure for disposal of appeal by this Court when a plea of minority was raised for the first time in this Court. 10. Full Bench of this Court in Krishna Bhagwan V/s. State of Bihar (supra), laid down the procedure for disposal of appeal by this Court when a plea of minority was raised for the first time in this Court. After referring to Gopinath Ghoshs case (supra), the Full Bench laid down special procedure for disposal of the appeal, the Full Bench observed: ".........According to me, if the plea that the accused was a child or juvenile on the date of the commission of the offence is taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by Sec. 26 of the Juvenile Act and should record a finding in respect of the charge which has been levelled against such an accused. 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 finding of 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 accused 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/Juvenile Court in accordance with Sec. 32 of the Act. If the finding so received is accepted by this Court then this Court in terms of Sec. 26 of the Juvenile Act should pass an order directing the Juvenile Court to pass orders in accordance with Secs. 21 and 22 of the Act." This decision, is no doubt referred to by the Supreme Court in Bhola Bhagats case, but this case was not approved or disproved by the Supreme Court. It is clear that Supreme Court had no occasion to consider that the procedure for disposal of the appeal laid down by the Full Bench of this Court was correct procedure, otherwise the Supreme Court need not have set aside the sentence. The law as stands today is that the plea of minority was raised for the first time in this Court and the Court is satisfied that the appellant was minor and his conviction was justified, only then the Court set aside the sentence but maintained the conviction. 11. The law as stands today is that the plea of minority was raised for the first time in this Court and the Court is satisfied that the appellant was minor and his conviction was justified, only then the Court set aside the sentence but maintained the conviction. 11. The Supreme Court has referred to the judgment of the Full Bench of the Court and observed as follows: "A Full Bench of the Patna High Court in the case of Krishna Bhagwan V/s. State of Bihar, considered the question relating to the determination of the age of that accused and the belated raising of that plea and opined that though the normal rule is that a plea unless it goes to the very root of the jurisdiction should not be allowed to be taken at the appellate stage especially when it requires investigation into a question of fact but a plea that the accused in question was a "child" within the meaning of the Act can be entertained at the appellate stage also and should not be overlooked on technical grounds. After noticing the provisions of the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986 ; the Full Bench of the Patna High Court opined, taking into consideration the aim and intention of the two Acts, that the application of the provisions of the Acts should not be denied to an offender where by the time the trial commenced or concluded the accused had ceased to be a juvenile, although, when the offence was committed he was a juvenile within the meaning of the Act. The Court then laid down the procedure which should be followed when a plea is raised to the effect that the accused on the date of the offence was a child and held that inquiry into the aspect should be conducted and on the basis of the evidence led at the inquiry, the Court should record a finding whether or not on the date of commission of the offence, the accused was a "child" within the meaning of the Act." 12. The Full Bench decision of this Court in Krishna Bhagwans case (supra) is contrary to the decision of the Supreme Court in Bhoop Ram V/s. State of U.P.4. The correctness of the decision Krishna Bhagwans case is under consideration by a larger Bench. The Full Bench decision of this Court in Krishna Bhagwans case (supra) is contrary to the decision of the Supreme Court in Bhoop Ram V/s. State of U.P.4. The correctness of the decision Krishna Bhagwans case is under consideration by a larger Bench. In Bhoop Singhs case (supra) the Supreme Court in para 6 of the judgment has observed as follows: "8. Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra V/s. State of U.P., 1981(4) SCC 149 , that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under Sec. 2 (4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentence imposed upon the appellant are quashed." 13. Bhoop Rams case was decided after Krishna Bhagwans case but this decision was not considered by the Supreme Court. The appellant No.1 in the instant case has crossed the age of minority and hence it cannot be referred to Juvenile Court in term of the decision in Krishna Bhagwans case (supra). We are bound to follow Bhola Bhagats case (supra) and Bhoop Rams case (supra). 14. In the result, we uphold the conviction of appellants 1 to 4 but set aside the sentence of appellant No.1 Subhash Chaudhur. Appellants 2 to 4 have remained in custody for some time. Their sentence is reduced to the period already undergone. This appeal is dismissed with above modification in sentence.