JUDGMENT D. Biswas, J. 1. The appellants were tried for an offence under section 302, I.P.C. by the Additional Sessions Judge, Sonitpur; Tezpur in Sessions Case No.111 (S)/I997 and sentenced to imprisonment for life and to pay a fine of Rs.2000/-, in default to further R.I. for one year. Being aggrieved thereby, this appeal has been preferred challenging the legality and propriety of the judgment on various grounds. 2. Prosecution case unfurled in the F.I.R. lodged is that on 25th August, 1995 at around 2.30 p.m., the appellant Rana Saikia had killed Gautom Das, son of the informant by causing assault on his person with a sharp dao in front of the office of the Development Officer, Other Backward Classes Development Corporation Ltd. On the Kumargaon Parbatiya Baseria Path at Hazarapara. 3. On receipt of the F.I.R., G.D.Entry No.479 dated 25.8.1995 was made by the Incharge of Lalmati Police Outpost. The Incharge of Lalmati Police Outpost initiated the investigation into the alleged offence and, simultaneously, forwarded the F.I.R. to the officer-in-charge of Tezpur Police Station for registration of a case. Accordingly, Tezpur Police Station Case No.567/95 under section 302, I.P.C. was registered. The I.O. visited the spot, held autopsy on the dead body of the deceased Gautom Das, recorded the statement of the witnesses and, on completion of all formalities, charge-sheeted the appellants under section 302 / 34, I.P.C. 4. The learned Magistrate by the order dated 5.7.1997 committed the case to the Court of Sessions for trial. The learned Sessions Judge by the orders dated 8th September, 1997 and 27th.October, 1998 framed charge against the appellants, namely Sri Rana Saikia and Sri Swaraj Saikia respectively under section 302, I.P.C. 5. The appellants, on being explained, denied the charge and pleaded not guilty. The learned Sessions Judge proceeded with the trial, examined 12 witnesses produced by the prosecution and 2 witnesses produced by the defence. After conclusion of the trial, the learned Sessions Judge convicted the appellants as aforesaid. 6. Shri J.M.Choudhury, learned Senior Counsel appearing for the appellants submitted that Sri Swaraj Saikia was 13 years 6 months old on the day of occurrence. He ought to have been tried by a Juvenile Court and not by the Sessions Judge. Shri Choudhury submitted that the trial for the above reasons stand vitiated. 6. Shri J.M.Choudhury, learned Senior Counsel appearing for the appellants submitted that Sri Swaraj Saikia was 13 years 6 months old on the day of occurrence. He ought to have been tried by a Juvenile Court and not by the Sessions Judge. Shri Choudhury submitted that the trial for the above reasons stand vitiated. Shri Choudhury further argued that the statements of the witnesses are full of contradictions and the prosecution has failed to bring home the charge levelled against the appellants. Mr.Munir, learned Public Prosecutor, however, argued at length to justify the conviction with reference to the statements of the witnesses. 7. Before the evidence on record is considered, we would like to refer to the evidence of the Medical Officer, P.W.7, Dr.Daliur Rahman. He had performed the autopsy on the dead body of Gautom Das. The evidence discloses that the deceased Gautom Das, aged 30 years, had suffered the following injuries:- Rigor mortis present. Injuries found- (1) Transverse incised wound on the back of the upper part of neck = 6" x 2" x 3" on the upper part of the neck. (2) Incised wound on the left parietal region of the scalp = 4" x 1" x 1". (3) Incised wound on the right parietal region of the scalp = 4" x 1" x 1". (4) Incised wound on the frontal region of the scalp = 3" x 1" x 1". (5) Incised wound on the occipital region of the scalp = 4" x 1" x 1". (6) Incised wound on the left on the intrascapular region = 3" x 1" x 1". (7) Incised wound on the medial side of dorsal part of left forearm. Fracture of scalp bone on the frontal, parietal both right and left side and occipital region present. Viscesturn of second cervical vertical. Membrane lacerated from the areas as described. Brain lacerated on frontal both parietal and occipital bones. Spinal chord bisected at C-2 level. Heart was found empty. Stomach contents undigested food material. Others were healthy. The opinion of the doctor as to the cause of death is as follows:- Death was due to shock and haemmorhage as a result of injuries sustained. All injuries are ante-mortem in nature. These injuries are sufficient to cause the death of a person in the ordinary course of nature. 8. Stomach contents undigested food material. Others were healthy. The opinion of the doctor as to the cause of death is as follows:- Death was due to shock and haemmorhage as a result of injuries sustained. All injuries are ante-mortem in nature. These injuries are sufficient to cause the death of a person in the ordinary course of nature. 8. PW.12, Sri Sadananda Medhi, I.O. proved the autopsy report, Ext.6 and Ext.7, the dead body challan. The evidence of the Medical Officer read with the above documents and the evidence of P.W.12 establish that Gautom Das, son of Sri Baneswar Das succumbed to the injuries as alleged. 9. The questions now arises for consideration is as to whether the appellants had caused the death of Gautom Das by causing injuries on his person by means of a dao. P.W.1, Shri Rohini Bora, is a cart puller. According to him, on the day of occurrence at about 2/3 p.m., while he was coming with his cart he saw accused Rana and Swaraj assaulting a man with daos. He saw accused Rana running towards police station while the other towards Da Parbatia. According to him, later he came to know that the man who was assaulted was Gautom Das and he died on the spot. Ext.1 is the statement made by him before the Magistrate. The statement was recorded on 11.9.1995. In this statement, the witness has stated that he had seen both the appellants assaulting the man. 10. P.W.2, Sri Baneswar Das, father of the deceased, stated that on the day of occurrence, he was in his house. Accused Swaraj Saikia went to 'his house and stated that he cut off Gautom'. Shri Badan Das also reported him that the accused had assaulted Gautam. Hearing this, he became unconscious. Somebody obtained his signature in the evening in the ejahar marked as Ext.3. 11. P.W.3, Sri Badan Das, stated that he met Sri Swaraj Saikia on the road. Swaraj told him that Rana and he had cut off Gautam Das. At that time, there was blood-stain on the right hand of Swaraj. Proceeding towards the location, he saw the dead body of Gautam lying on the road side. The police people were already there. He also made a statement before the Magistrate marked as Ext.2. 12. Swaraj told him that Rana and he had cut off Gautam Das. At that time, there was blood-stain on the right hand of Swaraj. Proceeding towards the location, he saw the dead body of Gautam lying on the road side. The police people were already there. He also made a statement before the Magistrate marked as Ext.2. 12. P.W.4, Shri Mahiram Das, deposed that he met Swaraj telling his father that he had cut off Gautam. P.W.5, Shri Pankaj Patangiya is a businessman of the locality. He stated that on his way back to home, he saw the dead body of Gautam. People present there told him that a "youth" had cut him. He went to the police station and lodged the information. By that time he came to know that Rana Saikia had already surrendered before the police station with a dao. 13. P.W.6, Sri Jatin Bora, stated that he heard Swaraj Saikia saying that he had cut "Gautam to the finish". He went to the police station where he found the dead body of Gautam. P.W.8, Sri Hemo Bora went to the place of occurrence being attracted by commotion and saw a man lying injured on the road. He could not say who had assaulted the man. P.W.9, Sri Loknath Keot, is also a reported witness and said nothing positive in favour of the prosecution. 14. The evidence of P.W.1 is positive in so far both the accused-persons are concerned. He had categorically stated that he had seen Rana and Swaraj Assaulting Gautam by means of a dao. He had also reiterated the same before the learned Magistrate. The defence could not elicit anything out of him during cross-examination. P.W.2 is a reported witness. He is the father of the deceased. He had lodged the ejahar before the police station. P.W.9 also stands on the same footing. P.W.5 did not say anything incriminating against the appellants. Thus, we are left with the evidence of five non-official witnesses i.e., P.Ws. 1, 3, 4, 6 and 11. P.Ws.3, 4 and 6 have proved the extrajudicial confession made by accused Swaraj. The evidence of P.W.11, is important for the reason that he had witnessed Rana Saikia surrendering before the police outpost along with a dao. The evidence to this effect could not be assailed by the defence. 1, 3, 4, 6 and 11. P.Ws.3, 4 and 6 have proved the extrajudicial confession made by accused Swaraj. The evidence of P.W.11, is important for the reason that he had witnessed Rana Saikia surrendering before the police outpost along with a dao. The evidence to this effect could not be assailed by the defence. P.W.12, incharge of the outpost deposed that on that day he was informed by the Sub-Inspector Shri D.Sarkar that a person was moving with a dao in his hand. After receipt of the information, he along with other police personnel were preparing to go out to take appropriate steps. At that time, the appellant Rana Saikia arrived at the outpost with a dao in his hand and told that he had come 'after having cut a man'. Accordingly, he made the G.D.Entry No.473 dated 25.8.1995. Ext.5 is the G.D.Entry, from where we found that Rana Saikia arrived at the outpost with a dao in his hand and made a statement that he had cut a man. 15. The evidence of the non-official witnesses, particularly that of P.Ws. 1, 3, 4 and 6 read together clearly establish that both the appellants, namely Rana Saikia and Swaraj Saikia assaulted and killed Gautam Das. The extra-judicial confession made to different persons by Swaraj Saikia clearly establish his complicity with the alleged offence. The officer-in-charge of the outpost, P.W.12, had deposed that Rana Saikia had surrendered before him with a dao and narrated the incident. The evidence of the witnesses read together leads to the irresistible conclusion that both Rana Saikia as well as his brother Swaraj Saikia committed the offence charged with. We have carefully examined the statements made during the course of cross-examination. We are unable to unearth any serious infirmity rendering the prosecution version unreliable. Therefore, both the appellants have been rightly convicted by the learned Sessions Judge. In so far, Rana Saikia is concerned, he has to undergo imprisonment as ordered by the learned Sessions Judge. As regards Swaraj Saikia, it may be mentioned that this Court by the order dated 29.7.2005 directed the Sessions Judge, Tezpur to cause an enquiry and determine the age of Swaraj Saikia on the day of occurrence. In so far, Rana Saikia is concerned, he has to undergo imprisonment as ordered by the learned Sessions Judge. As regards Swaraj Saikia, it may be mentioned that this Court by the order dated 29.7.2005 directed the Sessions Judge, Tezpur to cause an enquiry and determine the age of Swaraj Saikia on the day of occurrence. Accordingly, the learned Sessions Judge after due enquiry submitted a report wherefrom it appears that Swaraj was born on 11.11.1981 and on the day of occurrence he was 13 years 9 months 14 days old. Therefore, Swaraj Saikia was required to be tried by a Juvenile Court and not by the learned Sessions Judge as provided in section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 18 provides as follows: 18. No joint proceeding of juvenile and person not a juvenile- (1) Notwithstanding anything to the contrary contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence direct separate trials of the juvenile and the other person. 16. It would appear from the above that there is a positive bar on the trial of juvenile along with a person who i9s not a juvenile. In the instant case, the learned Sessions Judge failed to take note of this provision. Thereby, the trial in so far Swaraj Saikia is concerned stands vitiated and from that point of view he is entitled to trial afresh by a Juvenile Court. But in the instant case, Swaraj Saikia is in custody since the date of his conviction i.e. 30.3.2003 and now he is 24 years old. At this belated stage, it would be unjust to refer him back for trial afresh. Hence, we consider it as appropriate to set aside his conviction and set him free. 17. But in the instant case, Swaraj Saikia is in custody since the date of his conviction i.e. 30.3.2003 and now he is 24 years old. At this belated stage, it would be unjust to refer him back for trial afresh. Hence, we consider it as appropriate to set aside his conviction and set him free. 17. In the result, the appeal is partly allowed. The conviction and sentence imposed upon Shri Rana Saikia are hereby affirmed. Shri Swaraj Saikia is acquitted for the above reasons, and he is directed to be set free forthwith. Appeal allowed