J. C. GUPTA, J. By the judgment dated 6-5-80 the then Addl. Sessions Judge, Nainital has convicted and sen tenced each of the appellants to life im prisonment under Section 302, IPC to 7 years RI under Section 394, IPC and two years RI under Section 4/25 (l) (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 7-6-78 Rajendra Singh PW-1 alongwith Mahal Singh PW-3 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 Taraghat on the forest road, they heard an alarm com ing 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 fur ther noticed that Guru Bachan Singh had been robbed of his valuable including wrist watch. On their challenge, miscreants ran towards the road. When the miscreants were about to reach the main road, Hajoora Singh, PW-5 Chandan Singh and Tahloo Ram PW-2 who were coming in a dunlop cart succeeded in apprehending two of the three miscreants with the help 01 first three persons whose names are men tioned above, but the third miscreants 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 wrist watch and a sum of Rs. 5 were recovered from Babu Khan appellant while from Ramesh Kumar appellant a sum of Rs. 6. 40 was recovered. The apprehended appel lants were brought to the place of occur rence 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 per sons 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 PW-4 son of the deceased and the wife of the deceased identified the wrist watch as that of Guru Bachan Singh. In the meantime several per sons 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 PW-4 son of the deceased and the wife of the deceased identified the wrist watch as that of Guru Bachan Singh. Rajendra Singh1 PW-1 then left the miscreants with the recovered ar ticles 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 FIR Ex. Ka-1 a written one, was lodged at the police station at 11. 05 a. m. and on its basis chick FIR Ex. Ka- 9 was prepared. Thereafter investigation was ensued and S. I. Vikram Singh Rana PW-9 immediately rushed to the snot 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 wrist watch, 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, PW-7 per formed post-mortem examination of the dead-body of Guru Bachan Singh on 7-6-78 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 cm away from the umbilicus. (3) Incised wound 2 cm x 0. 2 cm x 0. 3 cm on right side of face about 2 cm 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 cm 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) Incised wound 2. 5 cm x 1 cm x cavity deep on back of left 5 cm 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 umblilcus. (8) Incised wound 2 cm x 1 cm x cavity deep on left chest about 4 cm away from left nipple. (9) Incised wound 3 cm x 1 cm x cavity about 3 cm away from umbilicus. (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 laterially 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 x 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 laterially 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. 4. 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 Peritoneoun, small in testines and large intestines were also found ruptured. In the opinion of the Doc tor, cause of death was shock and hemor rhage due to ante mortem injuries and post-mortem report is Ex. Ka-7. 5. In order to substantiate the charges levelled against the appellants, the prosecution at the trial examined 8 wit nesses namely, PW-1 Rajendra Singh, PW-2 Tahloo Ram, PW-3 Mahal Singh, PW-4 Lakhveer Singh son of deceased Guru Bachan Singh, P W-5 Hajoora Singh, PW-6 Constable Ram Pher Gupta,. PW-7 Dr. Ramesh Chandra and PW-8 SI Vikram Singh Rana the Investigating Officer. Out of the aforesaid witnesses constable Ram Pher was a formal witness as he had es corted the dead-body in a sealed state to mortuary. PW-7 Dr. Ramesh Chandra and PW-8 SI Vikram Singh Rana the Investigating Officer. Out of the aforesaid witnesses constable Ram Pher was a formal witness as he had es corted the dead-body in a sealed state to mortuary. PW-1 Rajendra Singh, PW-3 Mahal Singh, P W-2 Tahloo Ram and P W-5 Hajoora Singh are witnesses of fact while PW-4 Lakhveer Singh identified the wrist watch of the deceased. 6. The accused persons in their state ments given before the trial Court denied the prosecution allegations. They both stated that they were arrested from their villages. 7. The learned Sessions Judge on finding the case of the prosecution proved, has convicted and sentenced the appel lants by the impugned judgment. 8. Both the appellants preferred jail appeals against the impugned judgment. During the pendency of appeal Ramesh Kumar Rastogi appellant moved an ap plication for bail through his Counsel Shri R. K. S. Chauhan and this Court by the order dated 30-10-86 granted bail to the said appellant. 9. It was reported by CJM, Nainital that appellant Babu Khan has died while Ramesh Kumar Rastogi was still abscond ing. Efforts were made to get the presence of appellant Ramesh Kumar procured by sending notices to sureties but the CJM reported that one of the surety died and the other surety was found to be fictitious. In the circumstances this Court by the order 3-2-2000 appointed Shri Samit Gopal as amicus curiae to argue the appeal on be half of Ramesh Kumar-appellant and he was supplied the copy of paper book. Since Babu Khan appellant has died, his appeal is to be dismissed as abated. 10. We have heard Shri Samit Gopal, amicus curiae, and Shri R. K. Singh, learned AGA of the State. 11. In this case prosecution has ex amined four eye-witnesses. The first one is PW-1 Rajendra Singh Rana. Before the Court he stated that he alongwith Sardar Mahal Singh PW-3 and Karnail 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 as saulting a Sikh with knives. One of the miscreants robbed the Sikh of his wrist watch. On their challenge the miscreants ran away. The witnesses chased them rais ing cries. 30 a. m. and when they ran towards that side they saw that three persons were as saulting a Sikh with knives. One of the miscreants robbed the Sikh of his wrist watch. On their challenge the miscreants ran away. The witnesses chased them rais ing cries. Hajoora Singh. PW-5 Chandan Singh and Tahloo Ram were coming from opposite side in their Dunlop cart. Appellants Babu Khan and Ramesh Kumar Ras togi 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. 6. 40 was recovered from the possession of ap pellant Ramesh Kumar Rastogi. The wit nesses brought the arrested accused per sons near the dead-body of Guru Bachan Singh. In the meantime a number of per sons gathered at the scene of occurrence including Lakhveer Singh PW-4, 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 ac cused 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 maybe mentioned that the police station was about 7 kms from the place of incident. 12. Mahal Singh, PW-3 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 7-6-78 at the place as alleged by the prosecution and that the two appellants were arrested with the help of other per sons when they were being chased. Tahloo Ram PW-2 and Hajoora Singh PW-5 are the two witnesses which belonged to the other set of persons who were coming in a bullcock cart from opposite direction. They both have deposed regarding the ar rest 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. 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 appel lants. 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 sence of occur rence. We have thoroughly gone through their evidence and find no reasons what soever to discard their impeachable tes timony. Their evidence is wholly reliable and trustworthy and is also corroborated by the medical evidence furnished through Dr. R. C. Maheshwari PW-7 who con ducted the post-mortem examination. The first information report disclosed all the material facts leading to the incident and the arrest of the appellant and the manner alleged by the prosecution. The first infor mation report was promptly lodged and has a great corroborative value. 13. On a careful analysis of the entire evidence on record we find that the learned Sessions Judge has come to a right con clusion 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, IPC and 4/25, Arms Act has to be upheld. 14. As regards the sentence of im prisonment awarded to appellant No. 2 Ramesh Kumar it has been argued by Shri 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 achild within the meaning of Section 2 (4) of the said Act. In support of his submis sion he has placed reliance upon the decisions in Jayendra and another v. State of U. P, 1981 SCC (Criminal) 809, Bhoop Ram v. State of U. P. , 1989 ACC 285 (SC); l9s9 JIC 530 (SC); Jagbeer Singh v. State of U. P, 1992 ACC 658 ; 1995 (2) JIC 2140 (All) and Bhola Bhagat v. State of Bihar, AIR 1998 SC 236. 15. 15. 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 child within the meaning of Section 2 (4) of the U. P. Children Act, 1951 and sent to the ap proved 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 consider ing 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, AIR 1982 SC 685 , also the accused was below 16 years of age on the date when the offence was committed and had crossed the maxi mum age of detention in an approved school viz. 18 years. The course which was alleged was that while sustaining convic tion, sentence of imprisonment was quashed and the accused was directed to be released. 16. A Full Bench of the Patna High Court in the case Krishna Bhagwan v. State of Bihar, AIR 1989 Patna (p) ,217, con sidered the question relating to the deter mination 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 tech nical 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 tech nical grounds. It further opined that making into consideration the aim and intention of the Act benefit should not be allowed to an offender where by the time the trial commenced or concluded the ac cused released to be 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. Bhagwant Singh, 1993 Supp (1) SCC 409, 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 state ment under Section 313 Crpc conclude that the accused was a child within the definition of the expression under the Act on the date of the occurrence in the ab sence of any other material to report that conclusion. In the case of Bhpla Bhagat (supra), the apex Court, which distinguish ing the decision of Balwants case, how ever, observed that the earlier judgment of the apex Court in Gopinath Ghosh v. State of Bengal, AIR 1984 SC 237 ; Bhoop Ram v. State of U. P, AIR 1989 SC 1329 , were not noticed or considered in Balwant Singhs case (supra) and the views expressed in Gopi Maths case and Bhoop Rams case received support from the three Judge Bench decision in the case of Pradeep Kumar v. State of U. P. , AIR 1994 SC 104 , wherein it has been held that an accused can not be denied of the benefit of the provisions of Act on the basis of the Bal want Singhs case. In the case of Bhola 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 the Supreme Court and the parties accepted the correct ness of the estimate of the age of the appel lants as given by the trial Court and it was held that the three appellants could not be denied the benefit of the provisions of a socially progressive Statute. 17. Keeping in view the above decisions, we now propose to examine the material on record to consider the ques tion whether the appellant No. 2 Ramesh Kumar was a child within the meaning of Section 2 (4) of the U. P. Children Act Le. was he below 16 years of age at the time when the offence was committed? The ap pellant 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 charge-sheet 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 inquires on the person of the accused when he was brought to the police station, he was sent to Hospi tal for medical examination as is apparent from the GD entry No. 36 dated 7-6-78 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 has been brought on record. When the accused was examined under Section 313, Crpc in the trial Court on 23-4- 80 he stated his age as 17 years meaning thereby that on the date of occurrence L e. 7-6-78 he was below 16 years of age. No observation to the contrary has been made by the learned Ses sions Judge that the age disclosed by the appellant Ramesh Kumar was not correct. No observation to the contrary has been made by the learned Ses sions 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 injury 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 underes timate or an overestimate 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 ac cused 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 inquiry 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 commis sion of offence would come to below 16 years. It may also be not out of place to mention here that when the case was pend ing inquiry 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 AGA has also invited our intention to the following observations made by Honble V. P. Mathur, J. in his order dated 10-10-86 whereby the appellant No. 2 Ramesh Kumar Rastogi was granted bail pending as appeal in this Court. 18. Learned AGA has also invited our intention to the following observations made by Honble V. P. Mathur, J. in his order dated 10-10-86 whereby the appellant No. 2 Ramesh Kumar Rastogi was granted bail pending as appeal in this Court. 18. It appears from the record that this man is in jail custody since 7-6-78 and at the time of his initial arrest and during the course of the trial of the case, for most of the part, in view of his minority, he was confined in juvenile jail at Bareilly and the juvenile jail authority transferred him to Central Jail, Bareilly. 19. 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 U. P. Children Act and accordingly under Section 27 of the said Act he could not be sentenced to imprison ment 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 ap proved school under the provisions of the said Act for being detained there. Accord ingly while sustaining conviction of appel lant No. 2 under Sections 302 and 394, IPC and 4/25 Arms Act, we quash the sentence of imprisonment imposed upon him by the learned Sessions Judge and direct that ap pellant shall not be taken into custody to serve out the sentences as awarded by the learned Sessions Judge. 20. 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. 21. 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 Courts recorded by the learned Sessions Judge, we quash the sentence 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. 22. Shri Samit Gopal who argued the appeal on behalf of appellant No. 2 as amicus curiae shall be paid Rs. 2100 as fee. Appeal partly allowed. .