VINOD RAM SINGH v. STATE — 1999 DIGILAW 380 (ALL)

P. K. JAIN, J. ( 1 ) ORDER :- Appellant Vinod and his father Ram Singh were charged under Sections 302, IPC and 302 read with Section 34, IPC respectively for committing murder of one Prem Pal on 1-5-79 in village Aniwas P. S. Anoop Shahar, district Bulandshahr. ( 2 ) THE prosecution story as narrated in the written report lodged by Sri Chandra on 1-5-79 at 2. 10 p. m. is that there was mango tree in the field of Ram Singh Jatwa which was at the relevant time on adh Batai with the complainant. The brother of the complainant was watching the mango tree, he plucked some mangoes from the tree which was objected to by appellant Vinod, who is son of Ram Singh. Vinod slapped Shiv Shankar and at that time Prem Pal who had gone to ease himself reached there. He gave one slap to Vinod. Thereafter Vinod ran to nearby hut and picked up spear telling his father to accompany as Prem Pal has to be killed. On seeing Vinod and Ram Singh Prem Pal ran towards jai field of Ram Singh where Ram Singh caught hold of Prem Pal by waist and gave spear blow in the chest of the deceased. Witnesses Nanak Chandra and Indra Pal and the first informant who were in the nearby field of Ram Singh rushed to the scene of occurrence and saw the incident. The incident occurred around 12. 00 in the noon. ( 3 ) THE victim was rushed to the Anoop Shahar Government hospital where he was admitted. The victim, however, succumbed to the injuries within hours. ( 4 ) ORIGINALLY the case was registered under Section 307, IPC but on the death of Prem Pal it was converted to Section 302, IPC. P. W. 4 S. J. Nirbal Singh Gahlaut investigated the case. He held inquest on the dead body and prepared relevant papers. He inspected the place of occurrence and prepared site plan (Ex. Ka-8 ). From the jai field of Ram Singh he had taken sample of blood stained and plain earth, sealed them separately and prepared memo (Ex. Ka-9 ). He interrogated the witnesses and on completion of investigation submitted charge-sheet against both the accused. ( 5 ) VICTIM Prem Pal was medically examined by Dr. Suresh Kumar P. W. 7 on 1-5-79 at 1. Ka-9 ). He interrogated the witnesses and on completion of investigation submitted charge-sheet against both the accused. ( 5 ) VICTIM Prem Pal was medically examined by Dr. Suresh Kumar P. W. 7 on 1-5-79 at 1. 10 p. m. He had found the following injuries on the person of the victim. Punctured wound 2 cm. x 1 cm. x chest cavity deep on front of chest 5. 5 cm. towards right from left nipple at 9 Oclock position, tailing present at lower and (5th intercostal space ). Profuse bleeding present. Patient semi conscious and pulseless. Duration fresh. ( 6 ) DEATH of the victim occurred at 2. 30 p. m. and autopsy on his dead body was held by P. W. 5 Dr. G. N. Srivastava on 2-5-79 at 2. 15 p. m. Following ante-mortem injuries were found on theperson of the deceased. 1. Stitched (one) wound 3/4" in size (horizontally) on middle part of left chest region 2" medial to left nipple at 9 Oclock position. 2. Abrasion 2-1/2" x 3-1/4" on lower lateral part of right neck region. 3. Abrasion 1-1/4" x 1/6" on middle part of left back region laterally. ( 7 ) P. W. 7 stated in his deposition that the injury was fresh and could have been caused on 1-5-79 at 12. 00 in the noon. P. W. 5 Dr. G. N. Srivastava in his deposition stated that the injury was sufficient in the ordinary course of nature to cause death of the deceased. Both the witnesses further stated in their depositions that the chest injury could be caused by spear. P. W. 5 also stated in his deposition that on internal examination he had found that heart was punctured 1/2" x 1/8" vertical deep on right side. Clotted blood seen. Pericardium tear was found under injury No. 1 and clotted blood was also seen. ( 8 ) THE prosecution besides examining two doctors and one police officer examined three eye-witnesses namely, Sri Chandra P. W. 1 the first informant and an eye-witness, P. W. Indrapal and P. W. 3 Shiv Shankar. Besides them the statement of constable Delvir Singh P. W. 6 has been recorded and Shiv Prakash Sharma P. W. 8 who was Head Moharrir at the relevant time has also been examined. Besides them the statement of constable Delvir Singh P. W. 6 has been recorded and Shiv Prakash Sharma P. W. 8 who was Head Moharrir at the relevant time has also been examined. ( 9 ) ACCUSED Ram Singh denied the prosecution allegations though admitted that Shiv Shankar used to watch mango tree. He further stated that at the alleged date and time of occurrence he was not present at the scene of occurrence and he was in the Primary Pathshala Bahrka till 12. 05 p. m. Appellant Vinod also admitted that Shiv Shankar was watching mango tree. He further admitted that Shiv Shankar had picked mango and he had slapped him. He further stated that at the alleged time of incident he was at his hut where the engine is installed and was watching his wheat and he had seen Shiv Shankar on the mango tree who had plucked around 3-5 kg. of mangoes. When he asked Shiv Shankar why he has plucked mangoes Shiv Shanker replied in taunting way whereupon he slapped him. When he was collecting the plucked mangoes Prem Pal came with lathi exhorting that he will kill him. He ran towards his engine and Prem Pal chased him. He suddenly fell on the hal and sustained injuries in his chest and while returning he fell in the jai field. He went to his house and narrated about the incident. ( 10 ) THE accused in their defence examined P. W. 1 Krishna Gupta, Clerk in the Court of C. J. M. Bulandshahr, P. W. 2 Ranwari Lal Sharma, An Assistant Teacher in Primary School, Bahraka. Besides this the accused have also filed photo copy of High School Certificate showing that the date of birth of appellant Vinod was 2/01/1964. ( 11 ) THE trial Court believed the plea of alibi taken by accused Ram Singh and thereby acquitted him. As regards appellant Vinod prosecution evidence was believed and the trial Court, however, concluded that from the facts and evidence offence under Section 304 (Part II) IPC was established. The trial Court, therefore, convicted the appellant under Section 304 (Part II), IPC and sentenced him to undergo rigorous imprisonment for a period of five years. ( 12 ) I have heard learned counsel for the appellant and the learned Additional Government Advocate at length. The trial Court, therefore, convicted the appellant under Section 304 (Part II), IPC and sentenced him to undergo rigorous imprisonment for a period of five years. ( 12 ) I have heard learned counsel for the appellant and the learned Additional Government Advocate at length. ( 13 ) THE judgment and order of the trial Court are challenged on ground that the appellant was a child as defined in Section 2 (e) of the Children Act, 1960 and under Section 7 of the Act the Children Courts alone had power to deal with all proceedings relating to the delinquent children. Learned Sessions Judge had no jurisdiction to hold the trial and therefore, the conviction is bad in law. It is further submitted that the FIR is ante-timed, that the theory of catching hold of the deceased by Ram Singh father of the appellant has been disbelieved by the trial Court and the trial Court has committed error in believing the prosecution witnesses with regard to the remaining part of the prosecution case and lastly it is submitted that the injuries could not be caused by spear. ( 14 ) LEARNED A. G. A. submits that the evidence of three witnesses of fact remain unshattered and they have specifically stated that the injury was caused by spear. Their evidence is corroborated by evidence of Medical expert. The defence has failed to establish that the injury was caused in the manner alleged by the accused-appellant. Itis submitted that the Court below has rightly believed the witnesses. It is further submitted that there is no material for doubting that the First Information Report was not lodged at the time it is said to have been lodged nor there is any material to show that the First Information Report is ante-timed. It is also submitted that the prosecution story cannot be thrown away merely because of participation of one of the accused has been found by the trial Court to be doubtful. Lastly it is submitted that before the trial Court no submission was made that the appellant was a child within the meaning of Children Act, 1960 which was applicable at the relevant time and the trial Court had jurisdiction to try the appellant and convict him. Lastly it is submitted that before the trial Court no submission was made that the appellant was a child within the meaning of Children Act, 1960 which was applicable at the relevant time and the trial Court had jurisdiction to try the appellant and convict him. In any case, the trial will not be bad in law, at best sentence should have been awarded in accordance with the provisions of the Children Act, 1960. ( 15 ) AS is evident from the statement of facts and statement of the accused under Section 313 of the Cr. P. C. that the part of the prosecution case is admitted. That Shiv Shankar had plucked the mangoes from the mango tree, this was objected to by the appellant and the appellant gave one slap to Shiv Shankar is admitted. The defence version that Prem Pal had come with lathi exhorting that he will kill Vinod and that when the appellant went towards the engine Prem Pal chased him and then he suddenly fell down on a hal and sustained injuries in his chest, is not substantiated either by the cross-examination of the witnesses or by adducing of defence evidence. It is also admitted fact that Prem Pal on receipt of injury had fallen down in the jai field from where the blood was taken by the Investigating Officer. Thus, the date and time of the incident and the place where Prem Pal had fallen down after receipt of injury are not at all in dispute. What has been disputed by the appellant is that the manner in which the deceased sustained injury and the weapon from which the injury was sustained. According to the defence version the victim while chasing the appellant had fallen down on the hal and thereby sustained injury whereas according to the prosecution version the accused had chased Prem Pal who was caught hold by Ram Singh father of the accused and then the accused-appellant had given a spear blow in the chest of the deceased. It has already been pointed out above that the basis of the defence version is not laid down in the cross-examination of the witnesses nor any defence evidence was adduced. It is in this light that the arguments advanced by the learned counsel for the appellant have to be examined. It has already been pointed out above that the basis of the defence version is not laid down in the cross-examination of the witnesses nor any defence evidence was adduced. It is in this light that the arguments advanced by the learned counsel for the appellant have to be examined. ( 16 ) IT may be observed here that the prosecution examined three witnesses of fact viz. , P. W. 1 Sri Chandra, P. W. 2 Indra Pal and P. W. 3 Shiv Shankar. So far as Shiv Shankar is concerned, his presence is very much admitted by the defence. The presence of the remaining two witnesses can also not be doubted in view of the nature of evidence. First informant Sri Chandra is brother of the deceased as well as of witness Shiv Shankar. He has stated that he was serving with co-accused Ram Singh, father of the appellant. He has categorically stated that he was at the Thresher engine of Ram Singh at the time of the said incident. During the cross-examination he has stated that jai field where Prem Pal had fallen down was around 90 yards away from the engine. He has further stated that he was there for watching engine. There is no suggestion to this witness that he was not employed with Ram Singh accused. This witness has fully supported the prosecution version. True it is that he is brother of the deceased as well as brother of P. W. 3 but that alone would not be enough to distrust the witness. What is required is to scrutinise his evidence with great care and caution. Having so scrutinized, I do not find anything to hold that Sri Chandra was not present at the scene of occurrence or that he is not a reliable witness. The evidence of this witness is materially corroborated by the medical evidence. It is of course, suggested to this witness that the deceased sustained injury by falling on the blade of the hal (plough) but such a suggestion has been categorically denied by the witness. The evidence of this witness is materially corroborated by the medical evidence. It is of course, suggested to this witness that the deceased sustained injury by falling on the blade of the hal (plough) but such a suggestion has been categorically denied by the witness. ( 17 ) P. W. 2 Indrapal claims that his field is situated around 60-65 paces away from the field of Ram Singh and just before the time of the incident he was working in his field and at the time of the incident he had gone to take water at the Tube-well of Ram Singh who is father of the appellant. This claim of the witness could not be challenged in any manner during the cross-examination. This witness has also fully corroborated the case of the prosecution and similar is the position of evidence of P. W. 3 Shiv Shankar. ( 18 ) THE sole ground on which thelearned counsel submits that the evidence of these witnesses is not reliable in that they were interrogated by the I. O. around 17 days after the incident. P. W. 2 has categorically stated that in the morning of next day he had gone to his sasural Kanjalpur and it was on his return that he was interrogated by the I. O. So far as the two remaining witnesses are concerned, they were real brothers of the deceased. The I. O. has explained that the witnesses were not available on account of which they could not be interrogated expeditiously. The witnesses have not been cross-examined on the question about their availability in the village. Therefore, there is no reason to disbelieve the I. O. that the witnesses were not available in the village and for that reason they could not be interrogated by the I. O. ( 19 ) IT is then vehemently argued that participation of Ram Singh has been found to be not proved whereas the prosecution story is that Ram Singh had caught hold of the deceased and it was then that the appellant had given spear blow. It is submitted that once the theory of catching hold by Ram Singh goes away the remaining part of the prosecution story should also not be believed. I do not find any substance in this argument of the learned counsel for the appellant. It is submitted that once the theory of catching hold by Ram Singh goes away the remaining part of the prosecution story should also not be believed. I do not find any substance in this argument of the learned counsel for the appellant. The theory of falsus in uno falsus in Omnibus is not applicable to Criminal cases in India. The settled position of law is that only so much of the prosecution story is to be accepted which is established by the evidence of reliable witnesses. Part of the statement of a witness could be held to be reliable whereas part of it can be rejected having been found to be unreliable. In the instant case, the trial Court has committed no error by doing so in view of the facts and circumstances of the case as also in view of the nature of evidence on record. ( 20 ) THE submission that the medical evidence does not substantiate the prosecution version is without substance. As already pointed out above the specific case of the defence that the victim sustained injury by fall on the blade of a plough is not substantiated by any evidence. On the other hand, the evidence of the prosecution witnesses that a spear blow was given to the deceased is consistent and is corroborated by the evidence of the Doctor who had initially examined the deceased. P. W. 7 Dr. Suresh Kumar has categorically stated that the injury sustained by the deceased could be caused by spear. There is no cross-examination on this point nor there is any suggestion that such injury could only be caused by fall on a blade of plough. Only this much suggested to P. W. 5 Dr. G. N. Srivastava, who held autopsy on the dead body of the deceased, that if the victim falls on some penetrating object then also such injury could be caused, the answer of the Doctor was in affirmative. However, the Doctor has not been specifically asked nor can be presumed to have admitted that the injury found on the person of the deceased could be caused by fall on the blade of a plough. Therefore, the submission of the learned counsel that injury could not be caused by spear cannot be accepted. However, the Doctor has not been specifically asked nor can be presumed to have admitted that the injury found on the person of the deceased could be caused by fall on the blade of a plough. Therefore, the submission of the learned counsel that injury could not be caused by spear cannot be accepted. ( 21 ) THE next submission on behalf of the appellant is that the report is ante-timed and, therefore, reliance can not be placed on such a report. It is submitted that once it is found that the report was ante-timed the entire prosecution story based upon such a report can not be accepted. There is no dispute that the incident had occurred around 12. 00 in the noon. The distance of the Police Station and the place of occurrence is 6 miles as shown in the chick report. The report was registered at the police station at 2. 10 p. m. It is the case of the prosecution that the victim was first taken to the hospital where he was medically examined and though it is not specifically stated that he was given some treatment at the hospital but perusal of the post-mortem examination report shows that the victim had one stitched wound which prima facie, shows that before his death some operation was done and thereafter the wound was stitched. There is material on record showing that after the victim was taken to the hospital an information was sent by the Medical authorities to the police regarding admission of the victim at the hospital. The prosecution has proved letter (Ex. Ka-13) sent by the Medical Officer Incharge of Anoopshahr Government hospital and an entry was made in the G. D. copy of which is Ex. Ka-15. This information was received at the police station at 2. 00 p. m. The report was registered at the police station at 2. 10 p. m. and thereafter information of death was received at the police station at 2. 50 p. m. on the date of incident itself. Information sent by the hospital is Ex. Ka-14. It was sent at 2. 45 p. m. and the copy of the G. D. entry is (Ex. Ka-18 ). 10 p. m. and thereafter information of death was received at the police station at 2. 50 p. m. on the date of incident itself. Information sent by the hospital is Ex. Ka-14. It was sent at 2. 45 p. m. and the copy of the G. D. entry is (Ex. Ka-18 ). IT was suggested to P. W. 1 during cross-examination that the report was lodged next day in consultation with the Investigating Officer and the written report was prepared on dictation of the Investigating Officer. This suggestion has been denied by the witness. But for such a suggestion nothing has been elicited from P. W. 1 with regard to ante-timing of the F. I. R. or its having come in existence in consultation with the Investigating Officer P. W. 8 is the Head Moharrir who had scribed the chick report and other relevant G. D. entries including Ex. Ka-15 and Ex. Ka-18. Though there was a suggestion to this witness also that the report was registered on 2-5-79 and was ante-timed but the basis for such a suggestion or for the argument that the report was ante-timed was not laid on cross-examination of this witness also P. W. 4 Sub-Inspector Nirbal Singh Gahalaut was the Investigating Officer. This witness has, of course, stated during cross-examination that he had reached the hospital at 2. 25 p. m. and had started holding inquest from 3. 00 p. m. and on the basis of such allegations it is submitted that even though information of death was received at 2. 50 p. m. yet the I. O. proceeded to the hospital at 2. 25 p. m. It is further pointed out that according to the prosecution case FIR was recorded at 2. 10 p. m. whereas according to the inquest report and challan Nash Ex. Ka-2 and Ex. Ka-4 the time of the lodging of the FIR at 2. 50 p. m. instead of 2. 10 p. m. The submission of the learned counsel is that these circumstances show that the report was ante-timed and was brought in existence later on after Investigating Officer had held inquest. The submission is that atleast at the time of holding of the inquest, the report was not in existence. The submission does not appear to have any substance. 10 p. m. The submission of the learned counsel is that these circumstances show that the report was ante-timed and was brought in existence later on after Investigating Officer had held inquest. The submission is that atleast at the time of holding of the inquest, the report was not in existence. The submission does not appear to have any substance. As already pointed out above, information regarding admission of the victim in Anoop Shahar Hospital in serious condition was already received by the I. O. at 2. 00 p. m. It was but natural for the I. O. to have started for the hospital to find out the facts as according to the prosecution the report had already been registered at 2. 10 p. m. perusal of the chick report shows that originally the case was registered under Section 307 of the I. P. C. and thereafter on death of the victim it was converted into under Section 302, I. P. C. If the report was registered after death the case would have been registered under Section 302, I. P. C. instead of Section 307, I. P. C. As to the discrepancies in the Inquest Report and Challan Nash with regard to the time of information, no question has been put to P. W. 4 the Investigating Officer in this regard. The discrepancy appears to be prima facie due to mistake on the part of the Investigating Officer in scribing time of receipt of information of death instead of the time of registration of the FIR. In any case, no cross-examination has been directed, therefore, no inference can be drawn that the report came in existence after the death of the victim. The G. D. entries of 2. 00 p. m. regarding information of the victim having been admitted in the hospital and subsequent entry of 2. 50 p. m. regarding information of the death of the victim clearly indicate that such a manipulation was not possible. In case the information of death was received at 2. 50 p. m. and entry was made in the G. D. and the FIR was not in existence, it would not have been possible to register the First Information Report at 2. 10 p. m. and make relevant entry in the G. D. at 2. 10 p. m. that is, before information of death. 50 p. m. and entry was made in the G. D. and the FIR was not in existence, it would not have been possible to register the First Information Report at 2. 10 p. m. and make relevant entry in the G. D. at 2. 10 p. m. that is, before information of death. The factum that the police station was 6 miles away from the scene of incident and that the victim was first taken to the hospital is not in dispute the victim having sustained serious injury it was but natural for the first informant and other relations of the deceased to have first rushed to the hospital in their anxiety to save the life of the victim which they did. Therefore, the conduct in rushing to the hospital cannot be doubted to be unnatural. The first informant and his relations must have consumed time of around 2 hours in covering the distance of 6 miles and in seeing that proper medical aid was given to the victim. Considering all these facts and circumstances I do not find that the report was lodged with delay or that it was ante-timed or that it was registered in consultation with the Investigating Officer. ( 22 ) THE last submission of the learned counsel for the appellant is that the appellant was a child at the time of commission of the offence within the meaning of the Children Act, 1960 and the Childrens Court had exclusive jurisdiction to try the appellant. The order of conviction recorded by the learned Sessions Judge was without jurisdiction. Learned A. G. A. submits that such a plea was not raised before the learned Sessions Judge. Only at the end of the trial, copy of the High School Certificate was filed and from perusal of the judgment of the trial Court it appears that prayer for releasing the appellant on probation was made, which after due consideration of the facts and circumstances was rejected by the trial Court. In this appeal before this Court also copy on the High School Certificate has been filed. As pointed out earlier the incident occurred on 1-5-79. The date of birth of the appellant as recorded in the High School Certificate is 2/01/1964 which means that the appellant was aged around 15 years 4 months old at the time of the incident. In statement under Section 313, Cr. As pointed out earlier the incident occurred on 1-5-79. The date of birth of the appellant as recorded in the High School Certificate is 2/01/1964 which means that the appellant was aged around 15 years 4 months old at the time of the incident. In statement under Section 313, Cr. P. C. the appellant has stated his age to be 18 years. The statement was recorded on 24-6-80. If the age recorded in the High School Certificate is taken to be correct then he would have been 16 years 5 months and 22 days old on the date of recording of his statement under Section 313, Cr. P. C. It is now well, settled by a catena of judicial pronouncements that the date of birth recorded in the High School Certificate is to be believed unless there is anything found to the contrary. The learned Sessions Judge appears to have ignored it without giving any cogent reason. There is no material except the statement of accused to rebut the date of birth given in the High School Certificate (Ex. Kha-2 ). It appears that such a question was not raised before the learned Sessions Judge and therefore, he did not deal with the question which is now raised in this appeal. Section 2 (e) of the Children Act, 1960 (hereinafter called as the Act) which was applicable at the relevant time defines the child as follows :" (E) "child" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. "sub-SECTION (1) of Section 7 of the Act provides that not withstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act the Board or a children Court have power to deal exclusively with all proceedings under this Act relating to neglected children or delinquent children, as the case may be. This provision is applicable where a Board or a Childrens Court has been constituted for the area. This provision is applicable where a Board or a Childrens Court has been constituted for the area. Sub-section (2) of Section 7 of the Act further provides that if no Board or Childrens Court has been constituted for any area, the powers conferred on the Board or the Childrens Court by or under this Act shall be exercised in that area, only by the following namely- (A) the District Magistrate, or (B) the Sub-Divisional Magistrate, or (C) any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be. "sub-CLAUSE (c) was substituted by Act No. 15 of 1978. ( 23 ) IN the instant case, there is no material showing whether a Board or Childrens Court were constituted for the area in question to deal with the neglected children or delinquent children. Therefore, provisions of sub-section (2) of Section 7 of the Act would at least be applicable. Under Section 8 of the Act when the Board or the Childrens Court is of the opinion that a person brought before it was a child, is required to send proceedings of the record to the competent authority having jurisdiction over the proceeding. Sub-section (h) of Section 2 of the Act defines that the "competent authority" means, in relation to delinquent children, the childrens Court constituted under Section 5, and where no such Board of Childrens Court has been constituted, includes any Court empowered under sub-section (2) of Section 7 to exercise the powers conferred on a Board or Childrens Court. The delinquent children is also defined in sub-section (j) of Section 2 of the Act, which means a child who has been found to have committed an offence. Thus the appellant being aged less than 16 years at the time of commission of the crime was a child within the meaning of expression of child under Section 2 (e) of the Act and was further a delinquent child under Section 2 (j) of the Act. Thus the appellant being aged less than 16 years at the time of commission of the crime was a child within the meaning of expression of child under Section 2 (e) of the Act and was further a delinquent child under Section 2 (j) of the Act. In view of the provisions contained in sub-sections (1) and (2) of Section 7 of the Act, the Childrens Court having jurisdiction over the area was to have exclusive jurisdiction over the proceedings respecting a delinquent child and where there was no such childrens Court constituted for the area then Metropolitan Magistrate or Judicial Magistrate First Class as the case may be who was conferred with the powers of a childrens Court was to deal exclusively with a delinquent child. In the instant case, this has not been done. The question as to what would be the effect if the trial Court has not adhered to the aforesaid provisions of the Children Act. ( 24 ) LEARNED counsel for the appellant has relied upon a number of decisions in support of his submission. These decisions are Mahboob Ahmad v. State of U. P. , 1993 (30) ACC 26, Sheo Mangal Singh v. State of U. P. , 1991 (1) All LJ 434 : (1990 Cri LJ 1698); Guddu v. State of U. P. , 1989 All LJ 390 and Aquil Alvi v. State of U. P. , 1995 All LJ 1547. ( 25 ) IN Mahboob Ahmad v. State of U. P. at the time of the trial a representation was made by the accused which was rejected by the learned Sessions Judge by holding that the accused was not a child. Such a decision was arrived at by the visual appearance of the accused. This was a case under the Juvenile Justice Act which was substituted by the Children Act. The Court on consideration of the facts and circumstances held that the determination of the age in the manner done by the learned Sessions Judge, to say the least, is most unsatisfactory. Merely on visual appearance the learned Sessions Judge, could not record the finding regarding age of the revisionist so as to conclude if he was a juvenile on the relevant date. Merely on visual appearance the learned Sessions Judge, could not record the finding regarding age of the revisionist so as to conclude if he was a juvenile on the relevant date. Such a decision was made by the Court when a revision was preferred in the High Court against the order of the learned Sessions Judge holding that the accused was not a juvenile. In the instant case the accused did not make any such representation and only at the conclusion of the trial at the defence stage photocopy of the High School Certificate which was not even attested copy, was filed. Question of jurisdiction of the Court was not raised and only submission appears to have been made was with regard to granting of benefit of the provisions of Release on Probation of Offenders Act. ( 26 ) IN the case of Sheo Mangal Singh the question arose for consideration was that whether commitment to the Court of Session without recording opinion whether the accused appeared to be juvenile when produced before him was proper or not. It appears that an objection was raised after committal of the case to the Court of Sessions when the trial started. The objection that the accused should not be tried by the Court of Sessions, was rejected by the learned Sessions Judge and then a revision was filed against said order. This Court held that in the circumstances of the case when the revisionist was brought or produced before the Magistrate, who was presumably not empowered to exercise the powers of juvenile Court he should have considered the question whether the accused appeared juvenile and if they did appear juvenile, he should have proceeded in accordance with Section 8 and forwarded the juveniles and the record of the proceedings to the Competent Authority. If it did not strike to the Magistrate, it was the duty of the revisionists themselves to have raised this question before him and made a request. If any party was dissatisfied with the decision, he could go in appeal. But this was not done and the matter reached the Sessions Court. Thus Juvenile Court has had no opportunity of considering the matter, and if the opinion of the Sessions Judge is taken to be final the parties will be deprived of the right of appeal. If any party was dissatisfied with the decision, he could go in appeal. But this was not done and the matter reached the Sessions Court. Thus Juvenile Court has had no opportunity of considering the matter, and if the opinion of the Sessions Judge is taken to be final the parties will be deprived of the right of appeal. In these circumstances revision which was considered alongwith the application under Section 482, Cr. P. C. was allowed and the Sessions Judge was directed to send back the matter to the Court of Magistrate who made the commitment and that Court was directed to proceed afresh keeping in mind the provisions of Section 8 of the Juvenile Justice Act. ( 27 ) IN the case of Guddu v. State of U. P. , 1989 All LJ 390 the Court after considering the provisions of Section 24 of the Juvenile Justice Act held that in all cases whether they were pending since before 2/10/1987 (i. e. since the date of enforcement of the Act) or have come up after that date. Section 24 will apply if the charges have not been framed. But if the charges have been framed and the trial has already proceeded then Section 26 will come into play. It may be mentioned that Section 24 of the Juvenile Justice Act provides that notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, or in any other law for the time being in force, no juvenile shall be charged with or tried for, any offence together with a person who is not a juvenile. That was a case in which the charges were not framed till the Act was enforced. An application was moved before the learned Sessions Judge in view of the provisions contained in Section 24 of the Act that the accused should not be tried with other accused who were not juveniles. The learned Sessions Judge though held that the accused were juvenile but rejected the application on the ground that the trial was pending since before enforcement of the Juvenile Justice Act. Therefore, in view of the provisions of Section 26 of the Court shouldcontinue the trial. This Court held in revision preferred by the accused that Section 24 will apply if the charges have not been framed. Therefore, in view of the provisions of Section 26 of the Court shouldcontinue the trial. This Court held in revision preferred by the accused that Section 24 will apply if the charges have not been framed. But if the charges have been framed and the trial has already proceeded then alone Section 26 will come into play. ( 28 ) IN the last case Aquil Alvi v. State of U. P. , 1995 All LJ 1547 this Court after considering a number of decisions held that the Sessions Judge is empowered to make an enquiry and to determine the age of the accused. ( 29 ) THUS the cases cited by the learned counsel for the appellant do not hold the appellant so far as the plea raised is with regard to the jurisdiction of the trial Court in holding the trial is concerned. I may point out here that sub-section (3) of Section 7 of the Act provides that the Sessions Court and the High Court may also exercise the powers of the Board or the Childrens Court under the Children Act when the proceeding comes before them in appeal, revision or otherwise. Therefore, the power of the Childrens Court can be exercised by the Sessions Judge when the matter has come up before it after commitment of the case. Every order of the Childrens Court is appealable under Section 37 of the Act subject to the provisions contained in the said section and the orders of the Sessions Judge passed an appeal are revisable by the High Court. It is true that Section 24 (1) of the Children Act, 1960 prohibits joint trial of a child for any offence together with a person who was not the child. The provisions contained under Section 24 (1) of the Act have been made in order to safeguard the interest of the child and to keep them at a distance from the hardened criminals. In the instant case, however, no such plea was raised before the trial Court and besides that the accused with whom the child was being tried in the session trial was none else than the father and guardian of the appellant himself. It is not shown that any prejudice was caused to the accused by not adhering to the provisions contained in Section 24 (1) of the Act. It is not shown that any prejudice was caused to the accused by not adhering to the provisions contained in Section 24 (1) of the Act. Section 26 of the Act though it related to the cases in which proceedings were pending in respect of the child prior to coming into force of the Act provided that such proceeding shall be continued in that Court as if this Act had not been passed and if the Court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the childrens Court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the child has committed the offence. In the instant case, even though the provisions of Section 26 of the Act will not be applicable for the reason that the Act was already enforced at the time of commission of the offence yet since the proceeding had come before the Sessions Court by way of committal and no objection was raised by the accused with regard to the jurisdiction of the trial Court and in view of Section 7 (3) of the Act the Sessions Court had powers of the Childrens Court when proceeding came before it in appeal or otherwise, the trial held by the Sessions Court cannot be said to be without jurisdiction. The Court should have, however, on arriving a finding of guilt dealt with the appellant in accordance with the provisions of the Children Act so far as the question of award of sentence was concerned. In view of the provisions of sub-section (3) of Section 7 of the Act such powers can be exercised by this Court also when the matter has come up in appeal or otherwise before this Court. Therefore, while holding that the finding of conviction recorded by the trial Court would not be bad in law on account of the accused being tried by the Court below this Court is of the view that the sentence awarded by the learned Sessions Judge is not in accordance with law. Therefore, while holding that the finding of conviction recorded by the trial Court would not be bad in law on account of the accused being tried by the Court below this Court is of the view that the sentence awarded by the learned Sessions Judge is not in accordance with law. Since this Court in appeal can exercise all the powers of the Childrens Court in view of the provisions contained in Section 7 (3) of the Act, this Court thinks it proper to set aside the order of sentence passed by the trial Court and pass an order of sentence in accordance with the provisions of Section 22 of the Act. ( 30 ) SUB-SECTION (1) of Section 22 of the Act provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine, or in default of furnishing security. Proviso to sub-section (1) of Section 22 of the Act further provides that a child who has attained the age of fourteen years has committed an offence and the childrens Court is satisfied that the offence committed is of so serious a nature or that his conduct andbehaviour have been such that it would not be in his interest or in the interest of other children in a special school to send him to such special school and that none of other measures provided under this Act is suitable or sufficient, the childrens Court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the Administrator. In the instant case before this Court there is absolutely nothing on record or in the judgment of the trial Court to attract the proviso of Section 22 (1) of the Act. Since Section 22 (1) of the Act, in the absence of the circumstances in the proviso, prohibits a delinquent child to be punished with imprisonment or committed to prison in default of payment of fine or in default of furnishing security, no order of sentence of imprisonment could have been passed against the appellant. Therefore, the provisions of Section 21 of the Act would be attracted. Therefore, the provisions of Section 21 of the Act would be attracted. The childrens Court could have passed following orders on a finding that the child has committed an offence :- (A) allow the child to go home after admonition; (B) direct the child to be released on probation of good conduct and placed under the care of any parent or guardian etc. ; (C) make an order directing the child to be sent to a special School in accordance with the provisions contained in Section 21; (D) order the child to pay a fine if he is over fourteen years of age and earns money. NOW the question arises with regard to the feasibility of passing such an order in appeal after lapse of 15 years. The Court has been apprised of the fact that the appellant is now a practising lawyer and he is now aged about 34 years. Nothing has been brought on record or to the notice of the Court showing that during this period when the appeal was pending before this Court the behaviour and conduct of the appellant was such so as to direct him to be awarded any of the aforesaid sentences. Otherwise also, the accused has a right of speedy trial which includes disposal of the appeal expeditiously which has not been done in the instant case. After lapse of more than 18 years when the accused appellant is well settled in his profession and is leading a peaceful life without any bad antecedents having reported to this Court it would not be in the interest of justice and in the larger interest of the Society to award any sentence to the appellant. Besides this, the appellant has already been in jail for some time. ( 31 ) IN view of the discussions made above, the appeal deserves to be partly allowed. The conviction of the appellant under Section 304 (Part II) of the I. P. C. recorded by the trial Court is upheld. The order of sentence passed by the trial Court is, however, set aside considering the facts and circumstances that the appellant has already suffered some imprisonment and that he is well settled in his profession and is now living peacefully. No further order of sentence is needed. ( 32 ) THE appellant is on bail. His bail-bonds are cancelled and the surety bonds are discharged. Appeal partly allowed. No further order of sentence is needed. ( 32 ) THE appellant is on bail. His bail-bonds are cancelled and the surety bonds are discharged. Appeal partly allowed. .