M. C. JAIN, J. ( 1 ) THESE are three connected appeals out of the judgment and order dated 2-8-1980 passed by Sri o. N. Asthana, the then IV Additional Sessions Judge, Mainpuri in Sessions Trial No. 167 of 1979. Criminal Appeal No. 1711 of 1980 is being treated as the leading appeal and all the three appeals are being disposed of by this common judgment. Ram Swarup is the appellant of leading appeal No. 1711 of 1980 whereas Ram Sewak and Sukhvasi Lal are the appellants of connected appeals No. 1710 of 1980 and 2126 of 1980 respectively. Ram Sewak has been convicted under section 379, I. P. C. and sentenced to one years rigorous imprisonment. Sukhvasi Lal has been convicted under Section 302, I. P. C. and sentenced to life imprisonment whereas Ram Swarup has been convicted under Section 302, I. P. C. read with Section 34, IPC and has been sentenced to life imprisonment. ( 2 ) THE prosecution case as per the First Information Report and the evidence on record was that on 27-3-1978 at about 4 P. M. PW 1 Vishun Dayal arrived at his tube-well to start it to irrigate his standing wheat crop in village Byonti Kalan, Police Station Bewar, district Mainpuri. The tube well engine needed two persons to give the start, one to move the handle and the other to press the valve. PW 1 Vishun Dayal opened the tube-well Kothari and cleaned the engine for a couple of minutes. Thereafter, he went to the riverside in the northwest and called his nephew radhey Shyam who was irrigating his field by taking river water with the help of a diesel engine. When PW 1 Vishun Dayal took Radhey Shyam to help in the start of tube-well engine, Radhey shyam left his field in the charge of his brother and came to the tube-well of his uncle PW 1 vishun Dayal. Radhey Sham found that the accused-appellant Ram Sewak was digging potatoes from the field of his uncle PW 1 Vishun Dayal. He caught hold of Ram Sewak while he was doing so. PW 1 Vishun Dayal who was following him also came. Radhey Shyam told him that ram Sewak was digging potatoes from the field stealthily. Potatoes were lying open. Radhey Sham found that the accused-appellant Ram Sewak was digging potatoes from the field of his uncle PW 1 Vishun Dayal. He caught hold of Ram Sewak while he was doing so. PW 1 Vishun Dayal who was following him also came. Radhey Shyam told him that ram Sewak was digging potatoes from the field stealthily. Potatoes were lying open. Radhey shyam catching hold of Ram Sewak started taking him to Abadi of the village so as to chastise him publicly before the villagers. Ram Sewak cried for help. Radhey Shyam could carry Ram sewak hardly to a little distance when Ram Sewaks brother Sukhvasi Lal armed with spear and ram Swarup armed with pistol arrived from their house situated in the Abadi of Katra a little away from the tube-well of PW 1 Vishun Dayal. They asked Radhey Shyam to release Ram sewak. Hearing shouts, PW 1 Vishun Dayal also came out from his tube-well where he had gone when his nephew Radhey Shyam had told him that he was taking Ram Sewak to the Abadi. As radhey Shyam insisted to take Ram Sewak to the Abadi, Sukhvasi Lal assaulted Radhey Shyam with his spear. Ram Swarup also opened fire from his pistol on him. Radhey Shyam fell down on the ground in the north of the field of Berhi Beti, PW 2 Dwarika Prasad, PW 3 Patiram and others who were nearby saw this occurrence, Sukhvasi Lal and Ram Swarup thus got released ram Sewak from the holding of Radhey Shyam and ran towards western side. Radhey Shyam was laid on a cot and taken to Bewar on a tractor trolley of one Lajja Ram by PW 1 Vishun dayal and others. He died in the way at about 6. 30 P. M. When tractor carrying the dead body of radhey Shyam reached Bewar town, PW 1 Vishun Dayal prepared First Information Report Ex. Ka 1 and took the same along with the dead body of Radhey Shyam on the tractor to the Police station. There, First Information Report was lodged at 7. 45 P. M. A case under Section 302, i. P. C. was registered. Panchayatnama etc. of the dead body of the deceased had been prepared at the Police Station itself by the Investigating Officer PW 5 S. I. V. K. Gupta. The spot was visited by him the next day. There, First Information Report was lodged at 7. 45 P. M. A case under Section 302, i. P. C. was registered. Panchayatnama etc. of the dead body of the deceased had been prepared at the Police Station itself by the Investigating Officer PW 5 S. I. V. K. Gupta. The spot was visited by him the next day. The dead body of the deceased was sent for post-mortem which was conducted by PW 4 Dr. S. B. Agarwal. The following ante-mortem injuries were found on his person who was a young man aged about 26 years : 1. Lacerated wound 2. 5 cm. x 0. 5 cm. x scalp deep on the right side head 8 cm. above the right ear. 2. Oblique punctured wound 2 cm. x 1 cm. x cavity deep on the left axillary (out) line 7 cm. outer from left nipple at 2o clock position. Margins clean cut and ends tappering and tailing medially. ( 3 ) THE death had occurred due to shock and haemorrhage as a result of chest injury which was sufficient in normal course to cause death. Ultimately, after conclusion of the investigation the accused-appellants were booked for trial. They pleaded false implication Their case was that ram Sewak happened to see PW 1 Vishun Dayal making indecent gestures and overtures towards the wife of Vakil Kumhar and he spoke about this misconduct of PW 1 Vishun Dayal to the villagers on Holi dwij (a date before this incident ). Thus, PW 1 Vishun Dayal was much annoyed of Ram Sewak and his family members and thus he happened to falsely implicate the accused-appellants all of whom are brothers. ( 4 ) AT the trial, the prosecution examined seven witnesses including the Doctor and Investigating officer. Out of them, PW 1 Vishun Dayal, PW 2 Dwarika Prasad and PW 3 Patiram were examined as eyewitnesses. PW 2 Dwarika Prasad turned hostile. None was examined by the accused persons in their defence. The learned Additional Sessions Judge believed the prosecution case and evidence. He, accordingly, convicted and sentenced them as stated hereinabove. ( 5 ) WE have heard Sri Ram Ji Saxena, learned counsel for the three appellants in support of the appeals and learned A. G. A. on behalf of State in opposition of the appeal. We have also carefully gone through the material and evidence on record. He, accordingly, convicted and sentenced them as stated hereinabove. ( 5 ) WE have heard Sri Ram Ji Saxena, learned counsel for the three appellants in support of the appeals and learned A. G. A. on behalf of State in opposition of the appeal. We have also carefully gone through the material and evidence on record. We intend to deal with the case of each accused-appellant separately in the succeeding discussion keeping in view the arguments advanced at the Bar. We first take up the case of accused-appellant Ram Sewak who had been caught by Radhey shyam (deceased) digging potatoes and who has been convicted under Section 379, I. P. C. and sentenced to one years rigorous imprisonment. For him, his learned counsel has invited our attention that he was aged about 19 years (as stated by him) in his statement under Section 313, cr. P. C. recorded on 19-7-1980. The learned additional Sessions Judge estimated his age as about 20 years as endorsed by him on his statement under Section 313, Cr. P. C. It has been argued that he was about sixteen years of age at the time of the incident on 27-3-1978 and was covered under the definition of child as per U. P. Children Act, 1951 (which was then in force) and should have been set at liberty even if he was held guilty. So far as the finding of guilt recorded against him is concerned, we find that it is well based on acceptable evidence of PW 1 Vishun dayal and PW 3 Patiram that he committed theft of potatoes from the field of PW 1 Vishun dayal and had been caught while doing so by the deceased Radhey Shyam. The investigating officer had found 54 pieces of potatoes weighing about three Kgs. on 28-3-1978 from the spot. He had prepared Phard also in this behalf which is Ex. Ka 3. So, the finding of guilt recorded against him by the learned Additional Sessions Judge is perfectly justified. However, we find substantial force in this argument of learned counsel that he should be set at liberty. on 28-3-1978 from the spot. He had prepared Phard also in this behalf which is Ex. Ka 3. So, the finding of guilt recorded against him by the learned Additional Sessions Judge is perfectly justified. However, we find substantial force in this argument of learned counsel that he should be set at liberty. Reliance is placed on a Division Bench decision of this Court in the Case of Jagbir v. State of U. P. 1992 All cri C 658 (DB) which is based on two decisions of the Supreme Court in Jayendra v. State of u. P. 1981 SCC (Cri) 809 and Raisul v. State of U. P. AIR 1977 SC 1822 . In Jagbirs case (supra)the appellant had given his age as sixteen years in his statement under Section 313, Cr. P. C. The learned Sessions Judge observed by making an endorsement in his writing that the appellant appeared to be of 22-23 years old on 15-12-1978 (the date of his statement ). However, the learned Sessions Judge observed in his judgment, while passing order of sentence that the appellant was 16-17 years old. In Jayendras case (supra) a Doctor had examined the convict. On the basis of medical examination, he must have been sixteen years and four months old at the time of occurrence. The Supreme Court stated that the convict had given statement that he was aged about 15 years on the date of occurrence. Accepting this statement the Supreme Court had observed that according to Section 2 (4) of the U. P. Children Act, the convict was a child as per section 27 of the said Act. Such a child could not be sentenced to imprisonment. The Supreme court observed that at the time of the judgment the convict appellant Jayendra was 25 years of age. The Supreme Court, therefore, found it not to be a fit case to send him to an approved school, it may be pointed out that the provision to send a guilty child to an approved school is there under Section 29 of the U. P. Children Act and such period could not exceed beyond the time when the child would be attending the age of 18 years. ( 6 ) IN the case at hand, the learned Additional Sessions Judge recorded in his writing on the statement of the accused-appellant under Section 313, Cr. ( 6 ) IN the case at hand, the learned Additional Sessions Judge recorded in his writing on the statement of the accused-appellant under Section 313, Cr. P. C. recorded on 19-7-1980 that he appeared to be aged 20 years, but he did not direct his medical examination for the determination of his age. Therefore, having regard to the case law on the point as mentioned above the statement of the accused-appellant Ram Sewak in his statement under Section 313, Cr. P. C. recorded on 19-7-1980 should be accepted that he was aged about 19 years meaning thereby that he was aged between 16-17 years at the time of the occurrence on 27-3-1978. Giving margin of one year in approximation, he must be taken to be a child on the date of the incident 27-3-1978. At the time of hearing of this appeal, his age works out as about 37 years. So, there can be no question of sending him to an approved school either as per Section 29 of the U. P. Children Act. In a situation like the present one, the Supreme Court directed the release of the appellant jayendra in Jayendra v. State AIR 1982 SC 685 (supra ). Here also we would maintain the conviction of the appellant Ram Sewak under Section 379, I. P. C. but would quash the sentence of one years rigorous imprisonment passed against him. ( 7 ) NOW we take up the case of the accused-appellant Ram Swarup who is said to have opened fire on the deceased Radhey Shyam. True, PW 1 Vishun Dayal and PW 3 Patiram stated that he had opened fire on the deceased, but it is a fact that the deceased did not sustain any firearm injury. He sustained a spear injury on his chest-ante-mortem injury No. 2 and a lacerated wound on the right side of the head. PW 4 Dr. S. P. Agarwal who conducted autopsy on the dead body of the deceased stated that injury No. 1 could be sustained by a spear and the injury No. 1 could be possible on a fall of the victim after receipt of the second injury (spear injury on the chest ). To come to the point, none of the two injuries sustained by the deceased was a firearm injury. To come to the point, none of the two injuries sustained by the deceased was a firearm injury. It is doubtful that Ram Swarup appellant was present there and had opened shot on the deceased from the pistol. Therefore, the benefit of doubt should be extended to him. Having regard to this strong circumstance that he did not sustain any firearm injury, we are inclined to accept the appeal of the appellant Ram Swarup. ( 8 ) LASTLY comes the case of the appellant Sukhvasi Lal who struck a spear blow on the chest of the deceased causing his death. We make it clear that it is clinchingly established by the testimony of PW 1 Vishun Dayal and PW 3 Patiram (even ignoring the testimony of PW 2 dwarika Prasad) that this fatal injury had been caused to the deceased by the appellant Sukhvasi lal. PW 3 Patiram too is named as an eyewitness in the promptly lodged First Information report by PW 1 Vishun Dayal who himself is an eyewitness. None of them has any motive to depose falsely against him. PW 3 Patiram has given plausible explanation for his presence at the spot that he was going to his field to collect grass for his goats and cow when he happened to witness this incident near the tube-well of PW 1 Vishun Dayal. He is not thick either with the complainant PW 1 Vishun Dayal. We, therefore, find the testimony of PW 1 Vishun Dayal and pw 3 Patiram to be perfectly believable as against the appellant Sukhvasi Lal that he had struck the fatal spear blow on the chest of the victim. While addressing ourselves to the question of offence committed by him, we are of the opinion that he only committed an offence of culpable homicide not amounting to murder punishable under Part I of Section 304, I. P. C. and not under section 302, I. P. C. Brief reasons in this regard may be stated. It is pertinent to state here that the incident occurred all of a sudden when Radhey Shyam started taking this accuseds brother Ram sewak to the Abadi of the village to chastise him for having committed theft of potatoes from the field in question. There was no premeditation or preplanning. It is pertinent to state here that the incident occurred all of a sudden when Radhey Shyam started taking this accuseds brother Ram sewak to the Abadi of the village to chastise him for having committed theft of potatoes from the field in question. There was no premeditation or preplanning. The purpose of the appellant was only to rescue his brother Ram Sewak from the hold of Radhey Shyam and when Radhey Shyam resisted and did not extricate Ram Sewak from his clutches, the appellant gave him a spear blow on the chest to achieve his purpose. The incident occurred at the spur of the moment. Nevertheless, he chose the chest of the victim (vital part) to cause a forceful spear injury and he shall be imputed the intention of causing such bodily injury as was likely to cause the victims death. The case is, therefore, covered by Part I of Section 304, I. P. C. His learned counsel has argued that he was aged about 55 years on 19-7-1980, the date of his statement under Section 313, Cr. P. C. The appeal having been heard in November, 1999 he must be now in the neighbourhood of 74-75 years of age. Learned counsel has prayed for leniency in awarding sentence to him. We are in judgment that seven years rigorous imprisonment to the appellant under Section 304, Part I, I. P. C. would meet the ends of justice. ( 9 ) IN the net conclusion, we decide the three appeals as stated hereinbelow : ( 10 ) CRIMINAL Appeal No. 1710 of 1980 filed by the appellant Ram Sewak is dismissed so far as his conviction under Section 379, I. P. C. is concerned. His conviction for the said offence is upheld but we quash the sentence of one years rigorous imprisonment imposed upon him in view of the fact that he was a child as per the U. P. Children Act, 1951 at the time of the incident. He is on bail. He need not surrender. His personal bond and bail bonds are cancelled and sureties discharged. ( 11 ) WE allow the Criminal Appeal No. 1711 of 1980 filed by the appellant Ram Swarup by setting aside his conviction under Section 302, I. P. C. read with Section 34, IPC and sentence of life imprisonment passed there under. He too is on bail. He need not surrender. ( 11 ) WE allow the Criminal Appeal No. 1711 of 1980 filed by the appellant Ram Swarup by setting aside his conviction under Section 302, I. P. C. read with Section 34, IPC and sentence of life imprisonment passed there under. He too is on bail. He need not surrender. His personal bonds are cancelled and sureties discharged, ( 12 ) WE partly allow Appeal No. 2126 of 1980 filed by Sukhvasi Lal and modify his conviction from Section 302, IPC to that of Part I of Section 304, I. P. C. His sentence of life imprisonment is set aside. Instead, he is sentenced to undergo seven years" rigorous imprisonment under Part I of section 304, I. P. C. He is on bail. He shall surrender forthwith to serve out the sentence passed against him. .