Judgment B.K.Jha, J. 1. The accused, Mira Devi, was tried together with the appellants for different charges but she suffered conviction only under Sec. 323 of the Indian Penal Code and was left off on admonition. The appellants, Jai Prakash and Kunti Devi, were sentenced to R.I. for three years for their respective convictions under Secs. 307 and 307.00 34 of the Indian Penal Code. 2. The judgment and order of conviction was passed by the learned Additional Sessions Judge-II, Saran, Chapra on 12.3.1992 in Sessions Trial No. 22 of 1989. 3. Briefly, the case of the prosecution is that on 13.2.1988 at 9 a.m., the accused-appellant, Jai Prakash, asked the informant, Rajendra Prasad, as to why he was getting the mud and earth cut and removed by calling Zamadar of the Municipality in front of his house. On being replied by the informant that he had not called Zamadar of the Municipality for that purpose, the accused-appellant, Kunti Devi started abusing him. The informant protested whereupon she brought a farsa from her house and handed over, the same to the accused-appellant, Jai Prakash and exhorted him to kill the informant. Thereafter, the accused-appellant, Jai Prakash, gave a farsa blow on the head of the informant and he sustained cut injury. He again assaulted him with the butt portion of farsa and he fell down injured on the ground. The further case of the prosecution is that when Surendra and Lakshman Prasad, the brother and father of the informant rushed to save him, the accused, Mira Devi, wielded a lathi blow on the informant which was caught by Surendra Prasad. The witnesses, Sahjad Mian, Shyamji Prasad and many others witnessed the occurrence. Thereafter, the injured-informant, Rajendra Prasad, was removed to Sadar Hospital, Chapra for treatment. 4. On the same day, i.e. 13.2.1988 at 10.35 a.m., the S.I., D.K. Sinha, Chapra Town P.S., PW 8, recorded the fardbeyan of the informant, Rajendra Prasad of Village Sahebganj, Police Station and District Chapra in the Sadar Hospital. Chapra. On the basis of his fardbeyan a formal FIR was drawn up (Ext. No. 1) and Chapra Town P.S. Case No. 54 of 1988 dated 13.2.1988 was registered against all the three accused, namely, Jai Prakash, Kunti Devi and Mira Devi under Secs. 307/324/323/34 of the Indian Penal Code. Chapra. On the basis of his fardbeyan a formal FIR was drawn up (Ext. No. 1) and Chapra Town P.S. Case No. 54 of 1988 dated 13.2.1988 was registered against all the three accused, namely, Jai Prakash, Kunti Devi and Mira Devi under Secs. 307/324/323/34 of the Indian Penal Code. On completion of the investigation all the three accused were charge-sheeted, tried and convicted as indicated above. 5. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. Their further defence is that in fact, the prosecution party assaulted the accused-appellant, Kunti Devi, on the same day of occurrence, i.e., 13.2.1988; for which she was treated in Sadar Hospital. Chapra on 13.2.1988 and to save their skin the prosecution party filed this false case against them. Their further defence is that the parents of the both sides had quarrelled in course of which the parents of the accused were assaulted. The specific defence of the accused-appellant. Jai Prakash is that he was below 16 years of age at the time of the alleged occurrence and he was juvenile under the provisions of Juvenile Justice Act, 1986 and his trial, therefore, alongwith the accused, Kunti Devi, by the Court below was illegal. On behalf of the defence three witnesses were examined. 6. At trial, the prosecution examined altogether 11 witnesses in support of its case. Out of them PW 2, Md. Basawar is tendered witness. PW 4, Vishwanath Singh is a formal witness and has proved the formal FIR which is in the pen and signature of Subhash Sharma, the then Officer Incharge of Chapra Town Police Station (Ext. No. 1). PW 9. Dr. Rajeshwar Tiwary, is a Radiologist of Mahabir X-Ray Clinic, Chapra. His evidence is that he had X-Rayed the injury on the person of the informant. He proved the X-Ray Report (Ext. No. 6) and the X-Ray plates (Ext. No. 7) series PW 11. Jai Nath Singh is a formal witness. His evidence is that the informant had gone to Calcutta for his eye treatment and he had accompanied him upto Calcutta. He has proved three medical prescriptions which are in the pen and signatures of Dr. S.K. Viswas and Dr. Shyama (Ext. Nos. 8 to 8/2), he has also proved the X-Ray report of Dr. M. Chakrabarti (Ext. His evidence is that the informant had gone to Calcutta for his eye treatment and he had accompanied him upto Calcutta. He has proved three medical prescriptions which are in the pen and signatures of Dr. S.K. Viswas and Dr. Shyama (Ext. Nos. 8 to 8/2), he has also proved the X-Ray report of Dr. M. Chakrabarti (Ext. No. 9) and the report of Scan Centre which is in the pen and signature of Dr. Mukund R. Sah (Ext. No. 9/1). PW 7 is Dr. Dinesh Kumar Ojha, who had examined the injury on the person of the informant, Rajendra Prasad. PW 8, Dhirendra Kumar Sinha, is the I.O. of this case. The remaining five witnesses. i.e., PW 1. Mohan Prasad, PW 3, Surendra Prasad, PW 5, Lakshman Prasad, PW 6, Rajendra Prasad, the informant and PW 10, Arjun Pandey, are the eye-witnesses to the occurrence. 7. The evidence of PW 6 Rajendra Prasad, the informant is that the occurrence had taken place on 13.2.1988 at 9 a.m. At the alleged time the zamadar of the munici-pality with the help of labourers was getting the mud and earth cut and removed on thela in front of his shop as well as of the accused. Both the accused-appellants started abusing him for getting the mud and earth cut and removed from there. He protested whereupon the accused-appellant. Kunti Devi, brought a farsa from her house and handed over the same to Jai Prakash and instigated him to kill the informant. At this, the accusedappellant, Jai Prakash, assaulted the informant with farsa on his head causing cut injury and he again assaulted him with the butt portion of farsa as a result of which he fell down injured on the ground and blood started oozing out. When his brother and father rushed to save him the accused, Mira Devi, wielded a lathi at him and the same was caught by his brother, Surendra. He has further stated that thereafter he was removed to Sadar Hospital, Chapra, for treatment where he remained ospitalised and was discharged on 2.3.1988. His further evidence is that because of the assault his eye was damaged and he went to Calcutta for treatment. He has further stated that police came in the Hospital recorded his fardbeyan and was signed by him (Ext. No. 2). PW 1. Mohan Prasad, PW 3. Surendra Prasad, PW 5. His further evidence is that because of the assault his eye was damaged and he went to Calcutta for treatment. He has further stated that police came in the Hospital recorded his fardbeyan and was signed by him (Ext. No. 2). PW 1. Mohan Prasad, PW 3. Surendra Prasad, PW 5. Lakhman Prasad and PW 10, Arjun Pandey, have also corroborated the evidence of the informant and supported the case of the prosecution, they have clearly stated that when the informant protested the accused-appellants from abusing, the accused-appellant, Kunti Devi, brought a farsa, handed over the same to the accused-appellant, Jai Prakash and assaulted him. All these witnesses have been cross-examined at length but nothing material could be elicited to shake their evidence. 8. PW 7, is Dr. Dinesh Kumar Ojha. His evidence is that on 13.2.1988 he was posted as C.A.S., Sadar Hospital, Chapra. On the same day at 9.30 a.m. he examined the informant, Rajendra Prasad and found the following injuries on his person: (1). Incised wound on the scalp on the central portion 3" x 1/4" x scalp deep. (2). Bruise 2" x 2" on the scalp. According to him the age of the injuries was within six hours. Further according to him injury No. (1) was caused by sharp cutting heavy weapon such as farsa and injury No. (2) was caused by hard and blunt substance such as back portion of farsa. He has further stated that his opinion in respect of the finding about the injury was based on the X-Ray report issued by Mahabir X-Ray Clinic. He has further stated that the injury was sufficient in ordinary course of nature to permanent deprivation of eye sight and death. He proved the injury report (Ext. No. 3) and also the supplementary injury report (Ext. No. 4). 9. PW 8, Dhirendra Kumar Sinha, is the I.O. of this case. His evidence is that on 13.2.1988 he was posted as S.I. of Chapra Town P.S.. On the same day at 10.30 a.m. he recorded the fardbeyan of the informant, Rajendra Prasad in the Sadar Hospital, Chapra and was signed by him. He has proved the fardbeyan (Ext. No. 5). PW 8, Dhirendra Kumar Sinha, is the I.O. of this case. His evidence is that on 13.2.1988 he was posted as S.I. of Chapra Town P.S.. On the same day at 10.30 a.m. he recorded the fardbeyan of the informant, Rajendra Prasad in the Sadar Hospital, Chapra and was signed by him. He has proved the fardbeyan (Ext. No. 5). He proceeded with the investigation of this case, recorded the further statement of the informant as well as the statements of the witnesses and visited the P.O. According to him the road running in front of the house of the informant was the P.O. After completing investigation he submitted chargesheet. In cross-examination his evidence is that the informant had not handed over the blood stained cloths to him. His attention was also drawn to the statements of the witnesses recorded under Sec. 161 CrPC but nothing major contradictions surfaced in the evidence. 10. It is established from the above discussion that the accused-appellant, Jai Prakash, unsuccessfully attempted on the life of the informant, Rajendra Prasad by assaulting him with farsa and both the injuries caused by him on his head stand corroborated from the medical evidence. PW 7, Dr. Dinesh Kumar Ojha, has clearly, stated that the injuries were sufficient for permanent deprivation of eye sight as well as for death. 11. On the other hand, the defence has also examined three witnesses in support of its case. They are Pradeep Singh, DW 1, Pandit Jagdish Mishra, DW 2 and Dr. Bir Vijay Singh, DW 3. DW 1, Pradeep Singh, is the Head Master of D.A.V. High School. Sahebganj, Chapra. He has proved the certificate issued by the School on the basis of the entry in the School Admission Register from which it appears that the date of birth of the accused-appellant Jai Prakash is 12.6.1975. DW 2, Pandit Jagdish Mishra, has proved the horoscope of the accused, Jai Prakash (Ext. B) which also shows that his date of birth is 12.6.1975. The evidence of DW 3, Dr. Bir Vijay Singh, is that after retirement he was doing Private Practice and residing at Dahiawan Tola, P.S. Chapra Town, District Saran. On 12.2.1988 at 10 a.m. he examined Kunti Devi and found the following injuries on her person: (1). One lacerated wound 1 x 1/4" x 1/4" with clotted blood on right parietal bone middle. (2). Bir Vijay Singh, is that after retirement he was doing Private Practice and residing at Dahiawan Tola, P.S. Chapra Town, District Saran. On 12.2.1988 at 10 a.m. he examined Kunti Devi and found the following injuries on her person: (1). One lacerated wound 1 x 1/4" x 1/4" with clotted blood on right parietal bone middle. (2). One lacerated wound on nose with clotted blood in front portion 1 /2" x 1/6" x 1/6". In his opinion both the injuries were simple in nature caused by hard and blunt substance such as iron rod and lathi. The age of the injury was within six hours at the time of the examination. He proved the injury report (Ext. No. C). 12 The learned counsel for the appellants contended that the prosecution failed to explain the injuries sustained by the accused, Kunti Devi, at the time of the occurrence. On non-explanation of the injuries of the accused, Kunti Devi, the Court should draw an adverse inference against the prosecution case. 13. I find no merit in this contention. The admitted position of law is that the prosecution is bound to explain serious injury and not simple of the accused side sustained in the same transaction of the occurrence. In the present case, at trial no witness accepted in evidence that the accused, Kunti Devi, sustained injury at the same time of the occurrence. Further, the defence did not adduce any cogent evidence in support of it except the documentary evidence (Ext. C). From Ext. C, the injury report of the accused, Kunti Devi, it cannot be inferred that she sustained injury in course of the same occurrence. In other words, the defence failed to substantiate the contention that the accused, Kunti Devi, sustained injury at the alleged time of the occurrence. 14. The learned counsel for the appellants further contended that there was no premeditation or prior concert for intentionally attempting on the life of the informant. On this ground the accused, Mira Devi, was absolved of criminal liability of the charge under Secs. 307/34 of the Indian Penal Code, but the accused, Kunti Devi, was wrongly convicted by the Court below under Sec. 307 of the Indian Penal Code, with the aid of Sec. 34 of the IPC. 15. I do find substance in this contention. On this ground the accused, Mira Devi, was absolved of criminal liability of the charge under Secs. 307/34 of the Indian Penal Code, but the accused, Kunti Devi, was wrongly convicted by the Court below under Sec. 307 of the Indian Penal Code, with the aid of Sec. 34 of the IPC. 15. I do find substance in this contention. It is evident from the FIR and the prosecution evidence that at the spur of moment the accused, Kunti Devi, brought Farsa from her house and handed over the same to the accused-appellant, Jai Prakash and except that there is no allegation against her. There is no evidence to establish any criminal act done by her in furtherance of the common intention. Thus, the charge under Secs. 307/34 of the IPC framed against the accused-appellant, Kunti Devi, fails and she is acquitted of the charge. 16. It was next contended for the appellant, Jai Prakash that at the time of recording his statements under Sec. 313, Cr PC on 19.6.1991, the Trial Court assessed his age 18 years. so he was below 16 years of age at the time of the occurrence on 13.2.1988. He further contended that under law a juvenile cannot be sentenced to any term after conviction, so the Trial Court committed an error of law by sentencing him and the same is fit to be set aside. In this context he placed his reliance on a case of Bhola Bhagat, Prabhunath Prasad and Chandra Sen Prasad V/s. The State of Bihar reported in wherein it has been held that after four years from the date of occurrence accused persons recorded statements under Sec. 313 of the Cr PC that they were within the definition of children on the date of occurrence. When a plea is raised on behalf of an accused that he was a child within the meaning of the definition under the Act, it becomes obligatory for the Court, in case it entertains any doubt about the age as claimed by the accused, to hold, an enquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence. Following the course adopted in Gopi Nath Ghoshs, Bhoop Rams and Pradeep Kumars case (supra) while sustaining the conviction of the appellants under all the charges the Apex Court quashed the sentence awarded to them. 17. On the other hand, learned counsel for the State submitted that this point was finally decided in this case earlier. After considering the report of the Medical Board the Trial Court had come to the conclusion that the accused was more that 16 years of age at the time of the occurrence vide order dated 17.3.1990 and the petition of the accused-appellant, Jai Prakash was rejected. He preferred Criminal Misc. No. 3467 of 1990 against the order before the High Court and the same was dismissed vide order dated 23.4.1990, so the matter was finally decided and no scope was left for him to agitate again the matter. 18. After hearing both sides I find no merit in this contention made on behalf of the State. The accusedappellant, Jai Prakash, agitated this matter at pre-trial stage in Criminal Misc. No. 3467 of 1990 which was dismissed for non prosecution. This matter was not decided on merits by the High Court to shut the mouth of the defence. 19. In the present case, the admitted position is that the Trial Court assessed the age of the accusedappellant, Jai Prakash, 18 years at the time of recording his statement under Sec. 313, Cr PC on 19.6.1991 and the alleged occurrence had taken place on 13.2.1988. Thus, the accused-appellant, Jai Prakash, would not have completed 16 years of age on the date of the occurrence. In such a situation, he should have been dealt with under Sec. 32 Clause(l) of the Juvenile Justice Act, 1986 which provides that Where it appears to a competent authority that a person brought before it under any of the provisions of this Act, (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take evidence as may be necessary and shall record a finding whether the person is juvenile or not, stating his age as nearly as may be. On receipt of the enquiry report the appellant, Jai Prakash should have been dealt with under Sec. 21 of the Juvenile Justice Act, 1986 and the Juvenile Court should have passed appropriate order instead of sentencing him. 20. In the present case, now admittedly, the appellant, Jai Prakash, has attained more than 30 years of age, so he cannot be dealt with under Sec. 21 (1)(d) of the Juvenile Justice Act, 1986 because he has crossed the maximum age of detention in Special Home, i.e., 18 years. In this context, the learned counsel for the appellant, Jai Prakash, made reference of the case of Bhoop Ram V/s. The State of U.P., wherein it has been held that where an accused had been wrongly sentenced to imprisonment instead of being treated as a child under Sec. 2(4) of the U.P. Children Act, and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course should be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthith. 21. In the result, I sustain the conviction of the accused-appellant, Jai Prakash, under Sec. 307 of the Indian Penal Code but set aside the sentence awarded to him. This appeal is allowed partly. Both the appellants, Jai Prakash and Kunti Devi, are on provisional bail, so they are discharged from the liabilities of their executed bail bonds.