J. C. GUPTA, J. ( 1 ) / - By the judgment dated 6-5-1980 the then Addi. Sessions Judge. Nainital has convicted and sentenced each of the appellants to life imprisonment under Section 302, I. P. C. to 7 years R. I. under Section 394, I. P. C. and two years R. I. under Sections 4/25 (1) (b), Arms Act. All the sentences have been ordered to run concurrently. ( 2 ) THE prosecution story as revealed from the First Information Report Ex. Ka 1 and the evidence is that on 7-6-1978 Rajendra Singh PW1 alongwith Mahal Singh PW3 and Karnail Singh was going from his village Chandeli to Khatima. At about 9. 30 a. m. when these persons were about-to approach towards Teraghat on the forest road. They heard an alarm coming from a distance of 25- 30 steps from the main road side. On hearing the alarm the witnesses rushed towards that side and saw that three miscreants were assaulting Guru Bachan Singh with knife. They further noticed that Guru Bachan Singh had been robbed of his valuables including wristwatch. On their challenge, miscreants ran towards the road. When the miscreants were about to reach the main road, Hajoora Singh, PW5 Chandan Singh and Tahloo Ram PW2, who were coming in a dunlop cart succeeded in apprehending two of the three miscreants with the help of first three persons whose names are mentioned above, but the third miscreant managed to escape in the forest. The two apprehended miscreants were Babu Khan and Ramesh Kumar Rastogi, the present appellants. When they were apprehended, each one of them was holding a blood stained knife in his hand. On search, a wristwatch and a sum of Rs. 5/- were recovered from Babu Khan appellant while from Ramesh Kumar appellant a sum of Rs. 6. 40 ps. was recovered. The apprehended appellants were brought to the place of occurrence by the aforesaid witnesses and there they found that Guru Bachan Singh was lying on the ground and was bleeding profusely. In the meantime, several persons collected there including the son and the Wife of the deceased Guru Bachan Singh. They were shown knives and the wrist-watch which were recovered from the appellants. Lakhveer Singh. PW4 son of the deceased and the wife of the deceased identified the wristwatch as that of Guru Bachan Singh. In the meantime, several persons collected there including the son and the Wife of the deceased Guru Bachan Singh. They were shown knives and the wrist-watch which were recovered from the appellants. Lakhveer Singh. PW4 son of the deceased and the wife of the deceased identified the wristwatch as that of Guru Bachan Singh. Rajendra Singh PW1 then left the miscreants with the recovered articles on the spot in the care and custody of the persons collected there and himself went to the police station to lodge the report. The F. I. R Ex. Ka. 1, a written one was lodged at the police station at 11. 05 a. m. and on its basis chick F. I. R. , Ex Ka-9 was prepared. Thereafter, investigation was ensued and S. I. Vikram Singh Rana P. W. 9 immediately rushed to the spot and formally arrested Babu Khan and Ramesh Kumar Rastogi. He also recorded the statements of the witnesses and prepared site plan Ex. Ka 13 Investigating Officer completed the inquest and prepared Panchayatnama Ex. Ka-2 and other papers. The Investigating Officer also took into his possession blood stained and plain earth, wristwatch knives etc. The accused persons were brought to the police station and lodged there. After completion of the investigation, charge-sheet Ex. Ka-16 was submitted against both the appellants. ( 3 ) DR. R. C. Maheshwari. P. W. 7 performed post-mortem examination of the dead-body of Guru Bachan Singh on 7 -6-1978 at 6. 15 p. m. and he found the following ante-mortem injuries:1. Incised wound 3 cm. x 1 cm. x cavity deep on right abdomen above 1 cm. away from midline. 2. Incised wound 3 cm. x 1 cm. x cavity deep on left abdomen about 6 cms. away from the unbilicus. 3. Incised wound 2 cm. x 0. 2 cm. x 0. 3 cm. on right side of face about 2 cms. below the right eye lid (lower ). 4. Incised wound 8 cm. x 3 cm. x cavity deep on back of left; 5. Incised wound 2. 5 cm. x 1 cm. x cavity deep on back of left 5 cms. away from midline and 17 cm. below the left shoulder. 6. Incised wound 2 cm. x 1 cm. x cavity deep on back of right 7 cm. away from midline. 7. Incised wound 6 cm. x 1. 5 cm. Incised wound 2. 5 cm. x 1 cm. x cavity deep on back of left 5 cms. away from midline and 17 cm. below the left shoulder. 6. Incised wound 2 cm. x 1 cm. x cavity deep on back of right 7 cm. away from midline. 7. Incised wound 6 cm. x 1. 5 cm. x cavity deep on left side of abdomen 8 cm. away from umblicus. 8. Incised wound 2 cm. x 1 cm. x cavity deep on left chest about 4 cms. away from left nipple. 9. Incised wound 3 cm. x 1 cm. x cavity about 3 cm. away from umblicus. 10. Incised wound 1. 5 cm. x 0. 5 cm. x cavity deep on right side chest about 12 cm. away from right nipple. 11. Incised wound 3 cm. x 1 cm. x muscle deep on right chest laterally 8 cm. away from right nipple. 12. Incised wound 3 cm. x 1. 5 cm. x cavity on right chest about 13 cm. below the right nipple. 13. Incised wound 3 cm. x 1 cm. cavity deep on right chest about 15 cm. below the right nipple. 14. Incised wound 3 cm. x 1. 5 cm. x bone deep on right upper arm laterally in the middle. 15. Abrasion 2 cm. x 1 cm. x 0. 5 cm. on left leg on the back side about 16 cm. below the left knee joint. In the internal examination pleura was found ruptured and both the lungs were also ruptured at many places under injuries of chest. Both the chambers of heart were empty Peritoneum, small intestines and large intestines were also found ruptured. In the opinion of the Doctor, cause of death was shock and haemorrhage due to ante mortem injuries. The post-mortem report is Ex. Ka 7. ( 4 ) IN order to substantiate the charges levelled against the appellants, the prosecution at the trial examined 8 witnesses, namely, PW1 Rajendra Singh, PW2 Tahloo Ram. PW3, Mahal Singh. PW4 Lakhveer Singh son of deceased Guru Bachan Singh. PW5 Hajoora Singh. PW6 Constable Ram Pher Gupta. PW7 Dr. Ramesh Chandra and PW 8 S. I. Vikram Singh Rana, the Investigating Officer. Out of the aforesaid witnesses Constable Ram Pher was a formal witness as he had escorted the dead- body in a sealed state to mortuary. P. W. 1. Rajendra Singh. PW3. Mahal Singh. PW2. PW5 Hajoora Singh. PW6 Constable Ram Pher Gupta. PW7 Dr. Ramesh Chandra and PW 8 S. I. Vikram Singh Rana, the Investigating Officer. Out of the aforesaid witnesses Constable Ram Pher was a formal witness as he had escorted the dead- body in a sealed state to mortuary. P. W. 1. Rajendra Singh. PW3. Mahal Singh. PW2. Tahloo Ram and PW5 Hajoora Singh are witnesses of fact while PW4 Lakhveer Singh identified the wrist-watch of the deceased. ( 5 ) THE accused persons in their statements given before the Trial Court denied the prosecution allegations. They both stated that they were arrested from their villages. The learned Sessions Judge on finding the case of the prosecution proved has convicted and sentenced the appellants by the impugned judgment. Both the appellants preferred jail appeals against the impugned judgment. During the pendency of appeal Ramesh Kumar Rastogi-appellant moved an application for bail through his Counsel Shri R. K. S. Chauhan and this Court by the order dated 30-10-1986 granted bail to the said appellant. ( 6 ) IT was reported by C. J. M. Nainital that appellant-Babu Khan has died while Ramesh Kumar Rastogi was still absconding. Efforts were made to get the presence of appellant Ramesh Kumar procured by sending notices to sureties but the C. J. M. reported that one of the surety died and the other surety was found to be fictitious. In the circumstances this Court by the order 32-2000 appointed Mr. Samit Gopal as amicus curiae to argue the appeal on behalf of Ramesh Kumarappellant and he was supplied the copy of paper book. Since Babu Khan appellant has died his appeal is to be dismissed as abated. We have heard Mr. Samit Gopal, amicus curiae, and Mr. R. K. Singh, learned A. G. A. for the State. ( 7 ) IN this case prosecution has examined four eye-witnesses. The first one is PW1 Rajendra Singh Rana. Before the Court, he stated that he alongwith Sardar Mahal Singh PW3 and Kamail Singh were going from the Village Chandeli to Khatima by the shorter route through forest and when they reached near Teraghat they heard some cries at about 9. 30 a. m. and when they ran towards that side they saw that three persons were assaulting a Sikh with knives. One of the miscreants robbed the Sikh of his wristwatch. On their challenge, the miscreants ran away. 30 a. m. and when they ran towards that side they saw that three persons were assaulting a Sikh with knives. One of the miscreants robbed the Sikh of his wristwatch. On their challenge, the miscreants ran away. The witnesses chased them raising cries. Hajoora Singh. PW5. Chandan Singh and Tahloo Ram were coming from opposite side in their Dunlop cart. Appellants Babu Khan and Ramesh Kumar Rastogi were apprehended while the third miscreant managed to escape. Each of the appellants was having a blood stained knife. On personal search a sum of Rs. 5/- and a wrist-watch were recovered from accused Babu Khan and a sum of Rs. 640/- was recovered from the possession of appellant Ramesh Kumar Rastogi. The witnesses brought the arrested accused persons near the dead body of Guru Bachan Singh. In the meantime a number of persons gathered at the scene of occurrence including Lakhveer Singh PW4, the son of (the deceased. who identified the wrist-watch recovered from accused Babu Khan as that of his deceased father. It is also in his statement that after leaving the accused persons in the care and custody of other witnesses, he himself went to the police station and lodged written report Ex. Ka 1 at 11. 05 a. m. It may be mentioned that the police station was about 7 kms. from the place of incident. ( 8 ) MAHAL Singh. PW3 has also testified that the two appellants alongwith their one associate assaulted Sardar Guru Bachan Singh with knife and robbed him of his wrist-watch at about 9. 30 a. m. on 7-6-1978 at the place as alleged by the prosecution and that the two appellants were arrested with the help of other persons when they were being chased. Tahloo Ram P. W. 2 and Hajoora Singh PW 5 are the two witnesses which belonged to the other set of persons who were coming in a bullock cart from opposite direction. They both have deposed regarding the arrest of the appellants at the hands-of the witnesses and recovery of blood stained knives and the looted wrist-watch. All the four witnesses examined at the trial by the prosecution are totally independent. There is nothing on record to indicate that they had any grudge or ill-will against the appellants or any affinity towards the deceased or his family. The deceased was even unknown to them so also the appellants. All the four witnesses examined at the trial by the prosecution are totally independent. There is nothing on record to indicate that they had any grudge or ill-will against the appellants or any affinity towards the deceased or his family. The deceased was even unknown to them so also the appellants. They were passers by and happened to witness the occurrence. They firmly withstood to the cross examination and nothing material could come in their evidence which may create any doubt about their presence at the scene of occurrence. We have thoroughly gone through their evidence and find no reasons whatsoever to discard their impeachable testimony. Their evidence is wholly reliable and trustworthy and is also corroborated by the medical evidence furnished through Dr. R. C. Maheshwari PW7 who conducted the post-mortem examination. The First Information Report disclosed all the material facts leading to the incident and the arrest of the appellants in the manner alleged by the prosecution. The First Information Report was promptly lodged and has a great corroborative value. ( 9 ) ON a careful analysis of the entire evidence on record we find that the learned Sessions Judge has come to a right conclusion that the prosecution case against the appellant has been proved beyond reasonable doubt and the conviction of the appellant-Ramesh Kumar Rastogi under Sections 302 and 394. I. P. C. and Section 4/25, Arms Act has to be upheld. ( 10 ) AS regards the sentence of imprisonment awarded to appellant No. 2 Ramesh Kumar it has been argued by Mr. Samit Gopal, learned amicus curiae that since the said appellant was below 16 years of age at the time of occurrence, he was entitled to get the benefit of the provisions of the U. P. Children Act, 1951 as he was a child within the meaning of Section 2 (4) of the said Act. In support of his submission, he has placed reliance upon the decisions in Jayendra and Another v. State of U. P. Bhoop Ram v. State of U. P. , Jagbeer Singh v. State of U. P. and Bhala Bhngat v. State of Bihar. In support of his submission, he has placed reliance upon the decisions in Jayendra and Another v. State of U. P. Bhoop Ram v. State of U. P. , Jagbeer Singh v. State of U. P. and Bhala Bhngat v. State of Bihar. ( 11 ) IN the case of Bhoop Ram (supra), the question for consideration before the Apex Court was whether the accused who had been convicted and sentenced alongwith certain adult accused should have been treated as a Tchild within the meaning of Section 2 (4) of the U. P. Children Act, 1951 and sent to the approved school for detention therein till he attained the age of 18 years instead of being sentenced to undergo imprisonment in jail. The Supreme Court after considering the material on record opined that the accused could not have completed 16 years of age on the date when the offence was committed and held that the accused should have been dealt with under the U. P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge and since the accused had attained the age of more than 28 years by the time his appeal was heard by the Supreme Court, it was further held that there was then no question of the accused being sent to an approved school under the U. P. Children Act for being detained there and though conviction was sustained, the sentence imposed on the accused was quashed. In Jogendra v. State of U. P. also the accused was below 16 years of age on the date when the offence was committed and had crossed the maximum age of detention in an approved school viz. , 18 years. The course which was adopted was that while sustaining conviction, sentence of imprisonment was quashed and the accused was directed to be released. ( 12 ) A Full Bench of the Patna High Court in the case of Krishna Bhagwan v. State of Bihar considered the question relating to the determination of the age of the accused and the belated raising of that plea. The Full Bench opined that a plea that 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. The Full Bench opined that a plea that 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. It further opined that taking into consideration the aim and intention of the Act benefit should not be denied to an offender whereby 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 ratio laid down in the case of State of Haryana v. Balwant Singh, was 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. P. C. conclude that the accused was a child within the definition of the expression; under the Act on the date of the occurrence, in the absence of any other material to support that conclusion. In the case of Bhola Bhagat (supra), the Apex Court, while distinguishing the decision of Balwants case, however, observed that the earlier judgment of the Apex Court in Gopi Nath Ghosh v. State of West Bengal and Bhoop Ram v. State of U. P. (supra) were not noticed or considered in Balwant Singhs case (supra) and the views expressed in Gopi Naths case and Bhoop Rams case received support from the three Judge Bench decision in the case of Pradeep Kumar v. State of U. P. , wherein it has been held that an accused cannot be denied of the benefit of the provisions of Act, on the basis of the Balwant Singhs case. In the case of Boola Bhagat, the correctness of the estimate of the age as given by the trial Court was neither doubted nor questioned by the State either in the High Court or in the Supreme Court and the parties accepted the correctness of the estimate of the age of the appellants as given by the trial Court and it was held that the three appellants should not be denied the benefit of the provisions of a socially progressive Statute. ( 13 ) KEEPING in view the above decisions, we now propose to examine the material on record to consider the question whether the appellant No. 2 Ramesh Kumar was a childt within the meaning of Section 2 (4) of the U. P. Children Act i. e. , was he below 16 years of age at the time when the offence was committed? The appellant was arrested on the spot and was brought to the police station on the same day of occurrence. In the general diary entry, no age of appellant-Ramesh Kumar is recorded. It was also not mentioned in the memo of arrest. There is a column in the chargesheet wherein the age of the accused is to be mentioned but in the present case, the Investigating Officer did not make any note regarding the age of the accused. Since, there were injuries on the person of the accused when he was brought to the police station, he was sent to Hospital for medical examination as is apparent from the G. D. entry No. 36 dated 7-6-1978 by which case was registered at the police station. However, no record relating to such medical examination which could have indicated the age of the accused bas been brought on record. When the accused was examined under Sectlon3l3, Cr. P. C. in the trial Court on 23-4-1980, he stated his age as 17 years meaning thereby that on the date of occurrence i. e. , 7-6-1978, he was below 16 years of age. No observation to the contrary has been made by the learned Sessions Judge that the age disclosed by the appellant-Ramesh Kumar was not correct. Had the learned Sessions Judge any doubt about the correctness of the statement made by the appellant, he must have made enquiry by asking both the prosecution and the accused to adduce evidence about the age of the appellant No. 2 and also would have obtained necessary medical report. Rule 50 of the General Rules Criminal as framed by this Court provides that if the trial Court considers the age given by a witness or an accused to be an underestimate or an over-estimate it should form its own estimate and mention it also in the record. Rule 50 of the General Rules Criminal as framed by this Court provides that if the trial Court considers the age given by a witness or an accused to be an underestimate or an over-estimate it should form its own estimate and mention it also in the record. If the accused is charged with an offence punishable with death and the Court considers the age given by him to be an underestimate or an overestimate, it may order medical examination of the accused about his age and should direct the State Counsel to produce documentary evidence of his age, if any, available. The fact that no other estimate of age has been given by the learned Sessions Judge nor any enquiry held there is no reason why the statement of the accused regarding his age be not accepted. It is also pertinent to note that while selecting lessor punishment of imprisonment of life, the learned Sessions Judge in the judgment in question has accepted the age of the accused as 17 years which if calculated on the date of commission of offence would come to below 16 years. It may also be not out of place to mention here that when the case was pending enquiry the committing Magistrate made a request to the Supdt. Jail, Haldwani to produce the accused in Court and it was reported in return that the child accused was not in Haldwani Jail. Learned A. G. A. has also invited our attention to the following observations made by Honble V. P. Mathur, J, in his order dated 30-10-1986 whereby the appellant No. 2, Ramesh Kumar Rastogi was granted bail pending his appeal in this Court: It appears from the record that this man is in jail custody since 7-6-1978 and at the time of his initial arrest and during the course of the trial of the case for most of the part in law of his minority, he was confined in juvenile Jail at Baretlly and the juvenile jail authority transferred him to Central Jail. Baretlly. T Thus it appears that initially for some period the appellant was kept in juvenile jail at Bareilly. Baretlly. T Thus it appears that initially for some period the appellant was kept in juvenile jail at Bareilly. From the record it is thus clearly borne out that on the date the offence was committed the appellant No. 2 was a child within the meaning of Section 2 (4) of the D. P. Children Act and accordingly under Section 27 of the said Act he could not be sentenced to imprisonment for any term and since undisputedly accused-appellant Ramesh Kumar Rastogi has now crossed the age of 18 years there is no question of his being sent to an approved school under the provisions of the said Act for being detained there. Accordingly while sustaining conviction of appellant No. 2 under Sections 302 and 394. I. P. C. and 4/25. Arms Act, we quash the sentence of imprisonment imposed upon him by the learned Sessions Judge and direct that appellant shall not be taken into custody to serve out the sentences as awarded by the learned Sessions Judge. ( 14 ) IN the result the appeal filed by appellant No. 1 Babu Khan is dismissed as abated on account of his having died during the pendency of appeal. ( 15 ) SO far as the appeal of appellant No. 2 Ramesh Kumar Rastogi is concerned the same is partly allowed. While sustaining his conviction under various counts recorded by the learned Sessions Judge we quash the sentences of imprisonment imposed upon him by the Sessions Judge. He is on bail he need not surrender his bail bonds are cancelled and sureties discharged. ( 16 ) MR. Samit Gopal who argued the appeal on behalf of Appellant No. 2 as amicus curiae shall be paid Rs. 2. 100/as fee. Appeal allowed partly. .