JUDGMENT 1. 1. This appeal is directed against the judgment of the Sessions Judge, Balotra, dated 7.4.1994 convicting the appellant of the offence under Section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo six months' rigorous imprisonment. He has also been convicted for the offence under section 364 IPC and sentenced to five years' R.I. and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo six months' R.I. He has further been convicted of the offence under section 201 IPC and 5 sentenced to three years' R.I. and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo six months' R.I. 2. Briefly stated the prosecution case is that on 14.3.93, P.W. 1 lodged a written F.I.R. at Police station, Balotra stating that on 13.3.93, his son Pradeep Kumar, student of Class IV left the school along with P.W. 2 Babulal for returning home. On the way, one persons identifying himself known to Pradeep's father, asked Pradeep to accompany him. Pradeep boarded the cart. He assured Babulal that he would return soon. Babulal waited for him till evening but Pradeep did not return. He informed PW. 4 Poonma Ram about the incident. Pradeep Kumar was wearing gold `Lung' in his ears. He also description of clothes of Pradeep. He also stated that inspite of all efforts made, he has not been able to trace out his son Pradeep. On this information, police registered a case for the offence under Section 364 IPC and proceeded with investigation. 3. During investigation, the accused was arrested on 15.3.93 vide Ex.P. 8. In pursuance of the information given by him, the dead body of Pradeep was recovered. After usual investigation. police laid a chargesheet against the appellant for the offences under Sections 302, 365 and 365/302 IPC. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 16 witnesses The accused appellant in his statement under section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him. Relying on the circumstantial evidence, the trial Judge convicted and sentenced the appellant as noticed above. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 16 witnesses The accused appellant in his statement under section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him. Relying on the circumstantial evidence, the trial Judge convicted and sentenced the appellant as noticed above. The trial court has relied upon the following piece of circumstances in convicting the appellant of the offence under section 302 IPC : (i) The deceased Pradeep was last seen in the company of the appellant Narna Ram; (ii) The dead body of deceased Pradeep was recovered in pursuance of the information given by the appellant; (iii) Recovery of gold `Lung' in pursuance of the information given by the appellant; and (iv) The presence of footprints of the accused appellant from where he took deceased Pradeep. 4. P.W. 11 Dr. K.C. Chopra has stated that he was one of the members of the Board, which conducted the post-mortem of the dead body of Pradeep Kumar. In the opinion of the Board, the cause of death was asphyxia because of strangulation. 5. The defence has not disputed the death of Pradeep Kumar on account of strangulation. In view of this, it is not necessary to give the details of the post mortem report. 6. We shall deal with each of the circumstances in seriatim. 7. As regard the evidence of circumstances of last seen, the prosecution has examined P.W. 2 Babulal and P.W.3 Dhuda Ram. The statement of P.W. 2 Babulal has been rejected by the trial court for the reason that inspite of the fact that he was not earlier known to the accused, the identification in court was not preceded by the identification parade. He also admitted in the cross-examination that before coming to the court, the accused was shown to him outside the court. We have read the statement of P.W. 2 Babulal. In our opinion, the statement of P.W. 2 Babulal has been rightly rejected. 8. P.W. 3 Dhuda Ram is a driver. He stated that 13.3.93 at about 6 P.M. after loading the bricks in the truck, he was proceeding towards village Batadu. At some distance from village Vagundi, he found Narna Ram and Pradeep Kumar standing on the road. Both of them were known to him. 8. P.W. 3 Dhuda Ram is a driver. He stated that 13.3.93 at about 6 P.M. after loading the bricks in the truck, he was proceeding towards village Batadu. At some distance from village Vagundi, he found Narna Ram and Pradeep Kumar standing on the road. Both of them were known to him. He stopped the truck and enquired from Pradeep as to what he was doing standing on the road. On this Narna Ram replied that he was going to the `dhani' of Bhura Ram for collecting money and, as such, he will drop Pradeep at his house. Thereafter, he proceeded further. After unloading the truck, he returned to village Baitu. In the evening, he went to village Vagundi. He parked the truck near a hotel in village Vagundi. There, he found a large crowd. On enquiry, it revealed that Pradeep was missing since last evening. He disclosed that he had seen Pradeep and Narna on the last evening standing on a road. He also disclosed this fact to the police. In the cross-examination, he has stated that when Pradeep and Narna met him on the road, Naga Ram, Khalasi was also on the truck. He also stated that he reached in the village Batadu in the night at about 10 P.M. He unloaded the bricks in the morning. He stayed there up to 5 to 6 P.M. He also stated that he disclosed the fact of seeing Pradeep alongwith Narna at the hotel. He further stated that the police recorded his statement at the hotel itself. He denied the suggestion that he had not seen deceased Pradeep in the company of accused Narna. Learned counsel for the appellant has criticised the statement of this witness on the ground that he is a chance witness. We are unable to agree with the submission of the learned counsel for the appellant. The witness is a truck driver. He has a regular movement on the said route. Nothing has been elicited in the cross examination to discredit the evidence of this witness. Thus, even on exclusion of the evidence of P.W. 2 Babulal, the circumstance of `last seen' on the basis of statement of P.W. 3 Dhuda Ram has been firmly established by the prosecution against the appellant. 9. The second circumstance is the recovery of the dead body of Pradeep at the instance of appellant. Thus, even on exclusion of the evidence of P.W. 2 Babulal, the circumstance of `last seen' on the basis of statement of P.W. 3 Dhuda Ram has been firmly established by the prosecution against the appellant. 9. The second circumstance is the recovery of the dead body of Pradeep at the instance of appellant. On 15.3.93, vide Ex.P. 8, the appellant Narna Ram was arrested. On the same day, he made a disclosure statement before P.W. 15 Bhikha Ram that he had buried the dead body of Pradeep in the field of Bagta Ram Meghwal In Pursuance of the said information, the dead body of Pradeep was recovered vide Ex.P. 3. The inquest report was prepared on the spot vide Ex.P 5. The recovery has been proved by P.W. 14 Bhanwar Dan and P.W. 15 Bhikha Ram. The recovery has also been supported by the statement of motbir PW. 5 Veerma Ram. Thus, the second circumstance has also been established firmly by the prosecution. 10. As far as the third circumstance i.e. recovery of gold `lung' (Article-1) is concerned, it has been recovered vide Ex.P. 12 in pursuance of the information given by the accused vide Ex.P. 33. The recovery has been proved by the Investigating Officer P.W. 15 Bhikha Ram and motbir PW. 8 Jalu Ram, P.W. 15 Bhikha Ram has stated that `lung' was packed and sealed on the spot and was deposited in the Malkhana at the Police Station. PW. 13 Madanlal, M.J.M. Siwana, stated that on 10.5.93. application Ex.P 23 was submitted by A.S.I. Bhikha Ram for arranging the identification of the `lung' of the deceased recovered at the instance of the accused. On 14.5.93, he conducted the identification proceedings vide Ex.P 7. The `lung' was identified by P.W. 1 Bhura Ram and P.W. 7 Nema Ram P.W. 1 Bhura Ram has stated that deceased Pradeep was wearing the said `lung' when he left the house for the school. PW. 7 Nema Ram is a gold smith. He has stated that he had manufactured the `lung' under the instructions of Bhura Ram. Thus, the prosecution has succeeded in establishing the circumstance of recovery of `lung' at the instance of appellant firmly by cogent evidence. 11. Another circumstance against the appellant is his own `juti' recovered vide Ex.P. 13 in pursuance of the information memo Ex.P. 32. This recovery has been proved by PW 14 Bhanwar Dan. Thus, the prosecution has succeeded in establishing the circumstance of recovery of `lung' at the instance of appellant firmly by cogent evidence. 11. Another circumstance against the appellant is his own `juti' recovered vide Ex.P. 13 in pursuance of the information memo Ex.P. 32. This recovery has been proved by PW 14 Bhanwar Dan. 12. PW. 4 Poonma Ram has stated that deceased Pradeep was his cousin brother. As Pradeep had not returned from the school, everybody was worried and they went in search of him. P.W. 2 Babulal had told him at about 7 or 7.30 P.M. that Pradeep has been taken by one person in a bullock cart. Thereafter, along with Babu, he went to the spot from where Pradeep was taken by the said unknown person. There, he found the foot prints of the person, who had taken away Pradeep. The foot prints were of `pointed Jutis'. He covered those foot prints by `tagaris'. Thereafter, police went to the spot and took the moulds of the foot prints. P.W. 15 Bhikha Rani has stated that during investigation, he lifted two moulds from the spot. He marked the moulds as `A' and `B'. P.W. 13 Madanlal Bhati, M.J.M., Siwana has stated that or 18.5.93, accused Narna Rain was produced before him from the Sub Jail, Balotra. P.W. 9 Chetan Giri, a mould Specialist, lifted the moulds of Narna Ram in his presence vide Ex.P. 10 He also stated that according to the prosecution, accused was wearing `jutis' at the time when he kidnapped deceased Pradeep. In total, four moulds were taken in his presence. He has further stated that moulds were again taken on 18.5.93. The prosecution has also proved evidence to show that the moulds were kept intact from the place of seizure to the point it was delivered in the Forensic Science Laboratory. Since this aspect has not been challenged, it is not necessary to refer the evidence in this regard. In the F.S.L. report Ex.P. 9, plaster of Paris cast of Juty impressions alleged to have been lifted from the scene of occurrence marked `A' and `B' and plaster of paris cast of Juty impressions (Control) marked `Ka'. `Kha'. `Ga' and `Gha' were compared. The packet `C' contained a pair of Red velvet. covered embroided Desi July, which were marked as exhibits C-L and C-R in the laboratory. `Kha'. `Ga' and `Gha' were compared. The packet `C' contained a pair of Red velvet. covered embroided Desi July, which were marked as exhibits C-L and C-R in the laboratory. It was opined that Juty impression of moulds marked A, `Kha' and `Ga' tallied with that of the Juti sale, exhibit C-R and Juty impression of moulds marked B, `Ka, and `Gha, lied with that of the Juti sole, exhibit C-L. Thus, this circumstance has also established firmly by the prosecution. 13. Taking all the aforesaid circumstances together, it completes a chain indicating towards the guilt of the appellant excluding any other hypothesis but of the guilt of the accused. Thus, in our opinion, the learned Judge has not committed any error in holding the appellant guilty of murder of Pradeep Kumar. 14. It is lastly contended by the learned counsel that on the date of offence i.e. 13.3.93, the appellant was below 16 years of age and he was, therefore, a child within the meaning of sub clause (h) of Section 2 of Juvenile Justice Act 1986. It is submitted that on 2.3.94, when the statement of appellant was recorded under Section 313 Cr.PC, has was below 16 years of age. The learned trial Judge. thus, on the basis of conjectures estimated his age to be of 19 years. It is further submitted that it was the duty of the so trial Judge to have conducted an enquiry with respect to the age of the appellant before proceeding the trial. 15. Learned counsel has placed reliance on a decision of the Apex Court in Gopinath Ghosh v. State of West Bengal, reported in 1984 (Supp) S.C.C. 228 . He has also relied upon another decision of Bhola Bhagat v. State of Bihar, reported in 1997 Cr.L.R. (SC) 783 . He has also placed reliance on a decision of the Apex Court in Arnit Das v. State of Bihar, reported in 2000 AIR SCW 2037 , wherein the Court held that the crucial date for determination of the point of time when the person is juvenile is the date when he is brought before the competent authority and not the date of commissioner of offence. He has also brought to our notice another decision of the Apex Court in Umesh Singh v. State of Bihar, reported in 2000 AIR SCW 2169 , wherein the Supreme Court confirmed the conviction but set aside the sentence imposed on the accused having found one of the accused of 13 years of age at the time of incident. 16. We have considered all the cases cited at the bar. None of the cases, advance the case of appellant. In the instant case, the arrest memo Ex.P. 8 shows that he was of 21 years of age at the time of incident. This was not challenged by the accused during trial. It is only in his statement under Section 313 Cr.PC that he has disclosed his age as 16 years. In State of Haryana v. Balwant Singh, reported in 1993 Supp. (1) SCC 409 , the Apex Court has held that if the plea that accused was a child, has not been raised before the committal court as well as before the trial court, the High Court could not merely on the basis of the age recorded in the statement under Section 313 Cr.PC, conclude that the accused was a child within the meaning of the definition of expression under the Act on the date of occurrence, in absence of any other material to support that conclusion. This case has been considered and distinguished by the Apex Court in Bhola Bhagat's case (supra) on the ground that at the time of granting of Special Appeal, the appellants had produced School Leaving Certificates and the horoscopes respectively showing their age as 15 and 13 years at the time of commission of offence. In that case, the Court found that the plea was raised before the trial court as well as before the High Court. Both the courts considered the plea but denied the benefit to the appellants for different reasons. The Apex Court observed that where some material is produced to show that the accused was a juvenile or a child, in all fairness, an enquiry with respect to the age be conducted. In the instant case, no material has been produced even, before this court to show that the accused appellant was below 16 years of age on the date when he was first produced before the learned Magistrate. Thus the contention being devoid of merit is rejected. 17. In the instant case, no material has been produced even, before this court to show that the accused appellant was below 16 years of age on the date when he was first produced before the learned Magistrate. Thus the contention being devoid of merit is rejected. 17. Consequently, we find no merit in this appeal and the same is dismissed. The appellant is in jail. He will serve out the remaining part of the sentence.Appeal dismissed. *******