J. N. PATEL, J.:- Sessions Trial Nos.570102 & 193103 came to be clubbed and tried by the 1st Ad-hoc Additional Sessions Judge, Nagpur who by his judgment and order dated 15-012005 found the original accused nos.2 & 3 not guilty of the charges and acquitted them of the offences under Sections 307, 302 read with Sections 34 & 109 of Indian Penal Code, whereas convicted the original accused no.1, i.e. Yogesh s/o Damodhar Sonbawane of the offence under Section 307 of Indian Penal Code and sentenced him to suffer R.I. for 3 years and to pay a fine of Rs.5001- and in default, to suffer R.I. for 15 days. He was also found guilty and convicted of the offence punishable u1s.302 of Indian Penal Code and was sentenced to suffer imprisonment for life and to pay a fine of Rs.5001- and in default of payment of fine to suffer R.I. for 15 days. These substantive sentences were ordered to run concurrently. The judgment of conviction and sentence is challenged by the original accused no.1 Yogesh s/o Damodhar Sonbawane in this appeal whereas the State has not preferred any appeal against the acquittal of original accused nos.2 & 3 who came to be acquitted by the trial Court. 2. In nutshell, it is the prosecution's case that the original accused persons on 3107-2002 at about 5.45 p.m. at village Sillewada in furtherance of their common intention caused hurt to Manohar Bagade by means of Gupti and scissor with such intention and knowledge and under such circumstances that if by that act they had caused the death of Manohar Bagade, then they would have been guilty of murder and secondly, in furtherance of their common intention they committed murder by intentionally causing the death of Zingraji Bagade and also abetted the commission of these offences. 3. The incident took place as an outcome of a quarrel which had taken place two days ago between the two families on the pretext that a stone came to be thrown in the courtyard in the house of original accused no.2 Damu Sonbawane because of which the family of Damodhar Sonbawane and complainant abused each other. 3. The incident took place as an outcome of a quarrel which had taken place two days ago between the two families on the pretext that a stone came to be thrown in the courtyard in the house of original accused no.2 Damu Sonbawane because of which the family of Damodhar Sonbawane and complainant abused each other. The quarrel continued between the two families who were hurling abuses at each other and on the day of the incident when the complainant P:W.1 Manohar Zingraji Bagade was returning home after fishing in Kanhan river, he was informed by his brother Dilip P. W.11 that the quarrel between the two families was going on. P.W.1 Manohar on reaching home saw that the quarrel had ended but on· seeing him the original accused no.1 Yogesh instigated his father, i.e. Damu that they will beat the complainant because of which the complainant went to his home and brought a stick and proceeded towards the house of Damu. At this moment, Yogesh stood in front of his house armed with a Gupti (sword-stick) and assaulted P.W.! Manohar who claims to have obstructed the blow which caused injury to his right hand. Damu also came out armed with scissor in his hand and gave blow to P.W.1 Manohar with the scissor causing him injury on his right shoulder. On this, P.W.1 Manohar tried to escape followed by accused Yogesh and Damu. It is at this stage that the deceased Zingraji Bagade intervened in the quarrel to save his son P.W.1 Manohar whereupon Yogesh delivered a blow of Gupti on the chest of Zingraji as a result of which he fell under Peepal tree and the accused persons ran away from the place. Thereafter the wife of original accused no.3 rushed at the scene of occurrence with stick in her hand shouting to beat them and having noticed that Zingraji was lying on the ground she also ran away from the place. People gathered at the scene of occurrence. The injured Zingraji was then taken by P.W.l complainant to Walni Chowki in auto-rickshaw and from walni chowki (police outpost) the injured was taken to hospital at Walni where the doctor declared him dead. People gathered at the scene of occurrence. The injured Zingraji was then taken by P.W.l complainant to Walni Chowki in auto-rickshaw and from walni chowki (police outpost) the injured was taken to hospital at Walni where the doctor declared him dead. A report came to be lodged by P.W. l Manohar on the basis of which Police Station Khaparkheda registered FIR No.7S dated 31-07-2002 under Sections 307, 302 read with Section 109, 34 of Indian Penal Code against the accused persons. P. W .15 PSO Rajesh Dudhalwar then went to Walni hospital and prepared the inquest panchanama (Exh.31). He recorded statement of wife of the deceased, i.e. P.W.10 Laxmibai. Then he went to the Police Station and registered the offence on the basis of the report. According of P.W.15 PSO Dudhalwar, accused persons were absconding. On 01-08-2002 he went to the spot and prepared the spot panchanama (Exh.40). He arrested accused Damodhar on 01-08-2002 and also seized the clothes of the deceased. On 03-082002 he sent P.W.1 Manohar Bagade for medical examination and further investigation in the case was handed over to PSI Devidas Gondode. P.W.12 PSI Gondode in the course of investigation at the instance of accused Damu, discovered and seized Article 7 stick and scissor Article 8 in the presence of panchas vide seizure-memo Exh.36. He arrested accused Yogesh on 03-08-2002. At his instance, he discovered and seized Article 4 knife, also seized the clothes of the accused persons and recorded statements of witnesses acquainted with the case. He sent the accused persons to the hospital for drawing their blood samples. Till the conclusion of the investigation of the case, the accused no.3 Suman was not arrested as she was not found and, therefore, he filed charge-sheet against original accused Yogesh and Damu. Subsequently accused Suman also came to be arrested and separate charge-sheet came to be filed against her and that is how it culminated in two Sessions Trials which were clubbed together and tried by the learned trial Court. 4. The learned trial Court found that the prosecution has proved that the death of deceased Zingraji was homicidal on the basis of medical evidence of P.W.9 Dr. Mukherjee who conducted the autopsy on the dead body of Zingraji Arjun Bagade and in his opinion the cause of death was stab injury to heart. 4. The learned trial Court found that the prosecution has proved that the death of deceased Zingraji was homicidal on the basis of medical evidence of P.W.9 Dr. Mukherjee who conducted the autopsy on the dead body of Zingraji Arjun Bagade and in his opinion the cause of death was stab injury to heart. The doctor also opined that the said injury which is described in column no.17 with its internal damage in column no.20 was sufficient in ordinary course of nature to cause death and that it was possible by knife Article-4 discovered at the instance of accused no. 1 Yogesh. The postmortem report in the matter is at Exh.61. 5. In so far as the complicity of other two accused, i.e. the father and mother of Yogesh, original accused no.2 Damu and original accused no.3 Suman is concerned, the trial Court arrived at a conclusion that the prosecution has failed to prove its case against them beyond reasonable doubt due to material improvements made by the prosecution witnesses in their evidence before the Court as regards the complicity of these accused persons and that their evidence was at variance as to the role attributed to these accused persons by the witnesses and, therefore, recorded their acquittal. 6. The learned Counsel appearing for the appellant Yogesh submitted that the appellant and his parents have been falsely implicated by the complainant P.W.1 Manohar, P.W.l0 Laxmibai and P.W.11 Dilip who are the sons and widow of deceased Zingraji because of strained relations between them as a result of a quarrel which took place between the two families on account of throwing of stone in the house of Damu. 7. It is further submitted that in so far as the prosecution's case is concerned, it is based on the evidence of interested witnesses and in spite of the fact that the independent witnesses were examined by the prosecution, they have not supported the prosecution's case and the possibility of the deceased having suffered the injuries because of the uneven nature of the ground where he fell down under the influence of alcohol cannot be ruled out as the C.A.'s report (Exh.5!) in respect of the viscera which was sent to forensic laboratory for analysis, clearly records the results of analysis that it contained! 10 & 80 milligrams of ethyl alcohol per 100 grams respectively. 10 & 80 milligrams of ethyl alcohol per 100 grams respectively. It is further submitted that even accepting the prosecution's case, the appellant/accused has acted in exercise of his right of private defence as P.W.! Manohar and other witnesses have admitted that it is P.W.1 Manohar who attacked the accused persons armed with a stick and, therefore, the appellant/accused was justified in protecting himself and his parents from the assault. It is further submitted that the appellant/accused had no intention to commit murder of Zingraji who actually joined his son in attacking the accused persons though it is the prosecution's case that he tried to intervene in the quarrel and, therefore, the conviction of the appellant/accused for having committed offence under Sections 307 & 302 of Indian Penal Code is not justified. 8. The learned Counsel for the appellant/accused further submitted that the possibility of P.W.! Manohar, his mother P.W.10 Laxmibai and P.W. Dilip, brother of the complainant in falsely implicating the accused is evident from the fact that though Damu and Suman were not at all involved in the offence, they have been attributed and assigned role by these witnesses to show their complicity in the crime without any justification which has been also noticed by the trial Court and they have been acquitted of the charges and, therefore, the evidence of all these witnesses deserves to be examined with the necessary care and caution and so far as P.W.1 Manohar is concerned, the allegation that the appellant/ (accused tried to give a blow on his stomach which he tried to avert is palpably false and the report lodged by him at the Walni outpost was after deliberations with the police as can be seen from the evidence of P.W.1 Manohar. It is, therefore, submitted that if at all any offence is made out considering the injuries suffered by P.W.1 Manohar, it can be said to be that under Section 324 of IP Code and in so far as the charge under Section 302 of IP Code is concerned of having committed murder of his father Zingraji, it is submitted that there is no evidence to the effect as to whether the deceased was injured in a scuffle or injured accidentally when he tried to intervene and taking into consideration that only one blow was given arising out of sudden quarrel, the case would at the most fall under Part-II of Section 304 of Indian Penal Code. 9. Mr. C. R. Thakur, learned Counsel for the appellant/accused, also took up ~ plea at the time of seeking suspension of sentences of the appellant/accused, that at the time of commission of the offence the appellant/accused was a juvenile and that he could not have been tried along with his parents before the regular Court and it was contended that the date of birth of the appellant/accused is 30-06-1985 and the alleged offence took place on 31-07-2002 and, therefore, as on the date of offence the applicant was aged 17 years, 1 month and 1 day and as per the Juvenile Justice (Care & Protection of Children) Act, 2000, such offender cannot be tried and convicted by the regular Sessions Court. It is submitted that this being a legal plea, the appellant is entitled to raise it before the High Court for the first time when his appeal is being taken up for hearing. It is submitted that as the parents of the applicant were illiterate and it is not expected of the appellant/accused to be aware of the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000 and the police officials of Khaparkheda Police Station having also overlooked this fact and quoted his age as 19 years on the date of offence, the learned Magistrate who took cognizance of the offence also did not examine the issue as to whether the appellant/original accused no.1 was juvenile or not and so also the trial Court and that is how it has resulted in miscarriage of justice. The learned Counsel for the appellant/accused has placed reliance on the following cases: 1. The learned Counsel for the appellant/accused has placed reliance on the following cases: 1. Bhola Bhagat V s. State of Bihar (1998 SCC (Cri) 125). 2. Gopinath Ghosh Vs. State of W.B. (1984 SCC (Cri) 478). 3. Krishna Bhagwan Vs. State of Bihar (AIR 1989 Patna 217). 4. Umesh Singh Vs. State of Bihar (2000 SCC (Cri) 1026). 5. Upendra Kumar Vs. State of Bihar (2005 SCC (Cri) 778). and also of this Court in the case of Umesh Dukhan Manda, Pune Vs. State of Maharashtra & another ( 2004(3) Mh.L.J. 663 : 2004 ALL MR (Cri) 2137). The learned Counsel for the appellant annexed School Leaving Certificate in support of his contention. 10. Mrs. Jog, learned Additional Public Prosecutor for the respondent/State, on the question of the appellant/accused being juvenile, submitted that there being no challenge on behalf of the appellant/accused on the issue of age since the time he came to be arrested and produced before the Magistrate for remand till his trial was concluded along with the co-accused and up to the stage of filing of the appeal itself indicates that the appellant/accused though assisted by an Advocate to represent. him at all the stages by remaining silent has waived his right to get benefit of the Juvenile Justice (Care & Protection of Children) Act, 2000. Though in fairness the learned A.P.P. submitted after being put on notice by this Court that the investigating machinery has verified about the age of the appellant/accused and even procured his birth certificate from the Registrar, Births & Deaths, Gram Panchayat, Sillewada does not dispute that the appellant/accused was born on 30-06-1985. Therefore, the issue as to whether on the date of commission of the offence the appellant/accused was ajuvenile or not is set at rest and no further investigation/enquiry into the matter is required to be done. Therefore, the issue as to whether on the date of commission of the offence the appellant/accused was ajuvenile or not is set at rest and no further investigation/enquiry into the matter is required to be done. Therefore, in our view, the contention of the learned A.P.P. that the appellant/accused cannot take up this plea in appeal having waived his right by not taking a plea that he was a juvenile before the trial Court cannot raise the issue for the first time before the appellate Court is meaningless and, therefore, we directed the learned A.P.P. to address us on the merits of the matter as we propose to take up this issue in the subsequent part of our judgment after arriving at a finding as to whether the conviction of the appellant/accused by the trial Court for having committed offence under Sections 307, 302 of Indian Penal Code is justified and proper on the basis of evidence on record. 11. Mrs. Jog, learned A.P.P. submitted that in so far as merits of the matter are concerned, the trial Court has arrived at a finding that the appellant/accused is guilty of having committed offence under Sections 307 & 302 of Indian Penal Code based on the evidence of eye-witnesses out of whom P.W.1 Manohar is the main witness having suffered injuries in the transaction and his evidence stands corroborated by the report lodged by him at the Walni police outpost and medical evidence on record and stands corroborated by the evidence of P.W.l0 Laxmibai and P.W.ll Dilip. 12. Mrs. Jog submitted that the trial Court has taken into consideration the evidence on record in its proper perspective and has rightly held that the appellant/accused is the author of injuries suffered by P.W.1 Manohar and is also responsible for the death of his father Zingraji Bagade. 13. According to the learned A.P.P., the fact that Zingraji Bagade died a homicidal death stands well established and is not much disputed. The police in the course of investigation has also been able to procure the weapon of assault, i.e. the knife Article-4 which has been found to be having stains of blood of Group 'B' which was that of the deceased. The police in the course of investigation has also been able to procure the weapon of assault, i.e. the knife Article-4 which has been found to be having stains of blood of Group 'B' which was that of the deceased. The plea of the appellant/accused that deceased might have died due to falling on uneven surface at the site being under the influence of liquor itself stands falsified considering the nature of injuries which in the opinion of Dr. Mukherjee P.W.9 are possible by the knife Article-4. It is submitted that the nature of injuries as noticed in column No.17 and column No.20 of the postmortem report (Exh.61) clearly indicates that such injuries cannot be caused by falling on sharp-edged stone and, therefore, though it is a case where the appellant/accused has taken a plea of having acted in exercise of right of private defence, it was not applicable to the appellant/accused so far as the deceased Zingraji is concerned as according to the prosecution, the deceased Zingraji has tried to intervene in the quarrel and such a plea if available is solely in case of P.W.1 Manohar who was armed with a stick and came to the house of the accused persons. Therefore, the decision of the trial Court in convicting the appellant/accused for having committed offence under Sections 307 & 302 of Indian Penal Code does not call for any interference and the appeal deserves to be dismissed. 14. The prosecution case solely rests on the evidence of P. W.1 Manohar s/o Zingraji Bagade, though the prosecution has examined two more witnesses on the point of incident which has supported it, P.W.l0 Laxmibai, the widow of Zingraji and P.W.11 Dilip another son of Zingraji as their evidence if read as a whole rather gives an impression that they have probably not seen the incident of assault. 15. In his evidence before the Court P.W.1 Manohar has deposed to the effect that on the date of incident at about 5.00 to 6.00 p.m. someone pelted stone at the house of the accused and they thought that the stone was pelted from their house. He was in his house. Accused started quarrel. Accused Yogesh Sonbawane was with a gupti. He stabbed him by gupti on his abdomen but he saved himself but sustained injury to his right shoulder. He was in banyan. He started to run away from the spot. He was in his house. Accused started quarrel. Accused Yogesh Sonbawane was with a gupti. He stabbed him by gupti on his abdomen but he saved himself but sustained injury to his right shoulder. He was in banyan. He started to run away from the spot. The father of the accused was chasing him with a scissor. He attempted to stab in his back by scissors. While saving said stab he received the injury to his right hand and started to run away. Father (i.e. Zingraji) had seen the injuries sustained by him. Therefore, he proceeded towards him. He ran away. According to P.W.! Manohar, accused nos.2 & 3 caught hold of his father and accused Yogesh stabbed his father by knife on his chest and then they ran away from the spot. He had seen that his father was injured and, therefore, he came to him and then he had taken his father to hospital in auto but he further stated that he first went to Police Station, he lodged the report (Exh.28) and thereafter police along with him had taken his father to the hospital where doctor declared him dead. In his cross-examination, he has stated that he had been to the Police Station at about 7.00 p.m., his mother and one Shankar Ingole were with him. He was in the Police Station for 5.00 to 6.00 minutes and narrated the incident. Police also did enquiry with his mother and Shankar Ingole but in so far as report is concerned, he stated that he had signed it in the hospital and police Ramkhilawan reduced his report into writing. He had prepared the report and I had signed it in hospital. He has again improved by saying that the report was reduced into writing in his presence and it is at about 9.00 p.m. that PSI Dudhalwar met him in the hospital. Further in his cross-examination he has accepted that when he reached home he had taken a stick and went towards the house of accused which is just one house away from their house at a distance of 10 ft. According to him, his father was working as a Loader in W.C.L. and used to consume liquor. Further in his cross-examination he has accepted that when he reached home he had taken a stick and went towards the house of accused which is just one house away from their house at a distance of 10 ft. According to him, his father was working as a Loader in W.C.L. and used to consume liquor. In so far as his evidence relating to the complicity of the original accused nos.2 & 3, i.e. Damu and Suman is concerned, it has been brought on record as a material omission that accused nos.2 & 3 caught hold of his father and accused no.1 stabbed his father by knife. Similarly, about the fact that accused no.2 chased him with scissor and attempted to stab him and while he was trying to save himself, he suffered the injuries to the right hand also has been brought on record as a material omission. He has admitted that the stick Artic1e-7 before the Court was the same stick which he had taken to beat the accused persons. What stands established by the evidence of P.W.I Manohar is that on the day of the incident, as the accused started quarrel he took a stick from his house and went towards the house of the accused which is just at a distance of 10 feet from his house where the appellant/accused Yogesh tried to assault him with a gupti on his abdomen but he averted the same which resulted in causing him injury to his right shoulder. As regards the second part of the incident in which his father was assaulted, the witness has not come up with the true story and has attempted to rope in accused nos.2 & 3. 16. If one sees the evidence of P.W.10 Laxmibai, she has deposed to the effect that the accused persons did quarrel and abuse them in filthy language, her husband asked them not to abuse, her son Manohar, i.e. P.W.I went out with a stick, accused Damodhar injured her son by scissor and when her husband started to run to save him, accused Yogesh also chased him. Accused Yogesh stabbed her husband by means of knife when her husband went to intervene in the quarrel and her husband received a stab injury by knife of Yogesh and accused no.3. Suman instigated these accused persons. Thereafter, accused persons ran away from the spot. Accused Yogesh stabbed her husband by means of knife when her husband went to intervene in the quarrel and her husband received a stab injury by knife of Yogesh and accused no.3. Suman instigated these accused persons. Thereafter, accused persons ran away from the spot. Therefore, in so far as Laxmibai is concerned, she does not corroborate P. W.I Manohar on the fact that it was accused Yogesh who tried to stab P. W.I Manohar on his stomach with a gupti but the injuries suffered by Manohar have been caused by Damu, i.e. father of the appellant/accused who has been acquitted by the trial Court and in so far as this fact that accused Damodhar injured her son by scissor is concerned, has been brought on record as a material omission. The evidence of P.W.10 Laxmibai does not implicate the appellant/ accused Yogesh as the person who assaulted P.W.1 Manohar. 17. In so far as P.W.11 Dilip, one of the sons of Zingraji is concerned, his evidence if read as a whole rather goes to show that he was not present at the scene of occurrence. He has given altogether a different story of the incident and his statement was recorded by the police after 5 days of the incident. 18. The other aspect is the medical evidence. So far as P.W.1 Manohar is concerned, he was examined by P.W.6 Dr. Ganjre who has deposed to the effect that on 31-07-2002 one Manohar Bagade was brought to him for medical examination and treatment. He found two punctured wounds on right arm and he was given primary treatment and was released as the injuries were not serious and these injuries can be caused by sharp and hard object like knife Article-4. It is subsequently the police asked him to issue the certificate. So he had issued the certificate (Exh.46). In his cross-examination he has accepted that he has not mentioned the identification marks as well as the name of the patient in his certificate and that the certificate is issued by him from the treatment paper on 04-08-2002. It is subsequently the police asked him to issue the certificate. So he had issued the certificate (Exh.46). In his cross-examination he has accepted that he has not mentioned the identification marks as well as the name of the patient in his certificate and that the certificate is issued by him from the treatment paper on 04-08-2002. Therefore, in so far as the charge against the appellant/accused for assaulting P.W.1 Manohar with the gupti is concerned, if at all P.W.1 Manohar's evidence is accepted, it is only one injury, the authorship of which is attributed to Yogesh, i.e the appellant/accused which was of simple nature and, therefore, we have no hesitation to hold that what the prosecution had established as its best is that the appellant/accused has caused a simple injury with weapon like knife Article-4 on the hand of Manohar and that only makes out a case under Section 324, Indian Penal Code and, therefore, the finding of the trial Court that the prosecution has proved that the appellant/ accused has committed an offence under Section 307 of Indian Penal Code cannot be sustained on the basis of evidence on record. On the other hand, P.W.10 Laxmibai who is the mother of P:W.1 Manohar does not support him on this count at all that the injury suffered by Manohar was caused by appellant/accused Yogesh. We, therefore, find that in view of the nature of the evidence on record, it would be most unsafe to hold that it is the appellant/accused who is author of any of the injuries suffered by P.W.1 Manohar and he deserves to be given benefit of doubt, in so far as the authorship of the injuries suffered by P.W.1 Manohar is concerned, the prosecution having failed to establish the same by leading cogent, consistent and reliable evidence. 19. Now let us examine about the injury caused to deceased Zingraji Bagade. In so far as P.W.1 Manohar is concerned, his evidence on this point appears to be doubtful as we have already expressed that he is trying to suppress the whole truth in order to implicate the accused nos.2 & 3 in 'the incident relating to stabbing of his father by accused Yogesh so as to implicate accused nos.2 & 3 also. On the other hand, his evidence goes to show that after he was assaulted he ran away from the scene of occurrence and then his father came to be assaulted by knife on his chest, whereas Laxmibai has deposed to the effect that when her husband started to run to save her son Manohar who was being assaulted by Damu with scissors and got injured, accused Yogesh stabbed her husband by means of knife when her husband went to intervene in the quarrel and her husband received a stab injury by knife of Yogesh. If this is so, then Yogesh has assaulted Zingraji with the knife Article-4 by stabbing him on his chest in the midst of quarrel which was going on between them. Therefore, after considering the evidence, what we find is that the case of the appellant/accused would squarely fall within Exception-4 of Section 300 of Indian Penal Code as all the conditions to invoke this Exception were prevalent at that time. It is a case of sudden fight between two families over the issue of throwing of stone. There was no premeditation on the part of the accused persons and particularly the appellant/accused and the act attributed to him by having stabbed Zingraji on his chest was committed in heat of passion when they were being assaulted by his son P.W.1 Manohar who was armed with a stick and rushed towards their house while there was an exchange of abuses from both the sides and the fact that the appellant/accused had not taken any undue advantage or acted in a cruel manner for the very reason that he had only given one blow to Zingraji who at the relevant time had consumed liquor and we have to accept the prosecution case that he did intervene in the quarrel and as the prosecution case is solely based on interested witnesses, whether the efforts taken by the deceased were to settle the quarrel or his intervention was to join his son in the quarrel to assault the other side remains a mystery. 20. In so far as the medical evidence on this aspect is concerned, we have already discussed it. It is a case of giving one blow only on the chest which has caused death but it cannot be said that the appellant/accused had any intention to commit murder of Zingraji though one can attribute knowledge to him. 20. In so far as the medical evidence on this aspect is concerned, we have already discussed it. It is a case of giving one blow only on the chest which has caused death but it cannot be said that the appellant/accused had any intention to commit murder of Zingraji though one can attribute knowledge to him. Therefore, in our opinion, the finding of the trial Court that the appellant/accused is guilty of having committed offence under Section 302 IPC deserves to be quashed and set aside. In the alternative, we find the appellant/accused guilty of having committed offence under Part-II of Section 304 of Indian Penal Code and he stands convicted for the said offence. 21. As a result of the aforesaid discussion, the appeal is partly allowed. The conviction and sentence of the appellant for having committed offence under Section 307 of IPC is quashed and set aside. Further, his conviction and sentence for having committed offence under Section 302 ofIPC is also quashed and set aside. Instead, he is convicted for having committed offence under Part-II of Section 304 of Indian Penal Code. 22. At this stage, we propose to deal with the fact situation of this case in so far as the appellant/accused being placed in a peculiar situation, i.e. though he was a juvenile on the date he committed the offence as he had not completed 18th year of age and being a juvenile in conflict with law he could not have been tried along with the co-accused, i.e. his parents by the Court of Sessions, their being a specific bar under Section 18 of the Juvenile Justice Act, still as no plea was taken at any stage till the conclusion of the trial by the appellant/accused that he is a juvenile and cannot be tried by the Court of Sessions and his trial ought to have been separated and had already undergone the trial and was convicted and sentenced by the trial Court for having committed offence under Sections 307 & 302 of Indian Penal Code, he has placed himself in a piquant situation. 23. 23. We do not find fault with the appellant who was admittedly ajuvenile on the date of commission of offence and ought to have been dealt with in accordance with the provisions of the Juvenile Justice Act but as the law has taken its course and he has been tried and convicted, we felt it proper to hear his appeal on merits as in the present appeal he has challenged both his conviction and sentence which was not the case before the Court in the two decisions cited before us. One is that of Umesh Dukhan Manda, Pune Vs. State of Maharashtra & another ( 2004(3) Mh.L.J. 663 : 2004 ALL MR (Cri) 2137) wherein this Court held that as the petitioner has not challenged his conviction and has only questioned the sentence and as the petitioner has been in custody from 10-04-1999 and having completed 5 years in custody for the various reasons given in the judgment, it directed that the petitioner shall be released forthwith unless he is required in any other criminal case. 24. Similar was the case of a juvenile when it was brought to the notice of the Supreme Court as can be seen from the decision of the Supreme Court rendered in the case of Upendra Kumar Vs. State of Bihar reported in 2005 SCC (Cri) 778 wherein the Court was required to consider a case of ajuvenile and the Supreme Court was of the view that though the appellant was entitled for the benefits of the Juvenile Justice (Care & Protection of Children) Act, 2000 as on the date in question, i.e. when the offence of murder came to be committed on 1003-1995, the petitioner accused was below 18 years stood fully established on record, the Supreme Court referred to the cases of Bhola Bhagat Vs. State of Bihar [ (1997)8 SCC 720 ] & Gopinath Ghosh Vs. State of W. B. [1984 Supp. SCC 228) so as to sustain the conviction but at the same time, quashed the sentence awarded to the convict. State of Bihar [ (1997)8 SCC 720 ] & Gopinath Ghosh Vs. State of W. B. [1984 Supp. SCC 228) so as to sustain the conviction but at the same time, quashed the sentence awarded to the convict. Therefore, in the case of Upendra Kumar, the Supreme Court held that: "Following the aforesaid decisions, we would sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Session, as affirmed by the High Court, at the same time, however, the sentence awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the appellant is directed to be released forthwith if not required in any other case." 25. Mr. Thakur, therefore, submitted that the Court should not impose any sentence on the appellant/accused for having found him guilty of having committed offence under Part-II of Section 304 of Indian Penal Code and set him at liberty by ordering his release. 26. The learned A.P.P. on the other hand, strongly objected to adopting this course and submitted that in the two decisions relied upon by the learned Counsel for the appellant/ accused, the Court of Bombay High Court as well as the Supreme Court took particular view considering the lapse of time and the period already suffered by the juvenile in prison, for lapse on part of authorities in diligently dealing with the matter and that this may also result in miscarriage of justice to the victims and, therefore, the best course would be to allow the law to follow its own course as applicable to the case of the appellant/accused. 27. Having considered the rival contentions, in our opinion, it would be a fit case to refer the matter to the Juvenile Justice Board and, therefore, we pass the following order :- In so far as the sentence is concerned, in our opinion. it will be appropriate for us to direct the appellant who is presently on bail by our order dated 20-07-2005 to appear before the Juvenile Justice Board constituted under Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000 on 30th November, 2005. On the appellant appearing before the Juvenile Board, it will proceed to pass orders in accordance with Sections 15 & 16 of the Juvenile Justice Act. Order accordingly.