K. S. RAKHRA, J. The appellants who are the real brothers, have been held guilty and sentenced to rigorous imprisonment for a term of 10 years and a fine of Rs. 10,000/- each for having been guilty of culpable homicide. The appellant Asif has been convicted under Section 304-II IPC and Mohd. Arif has been sentenced under Section 304-II read with Section 34 IPC. 2. According to prosecution, on 19-8-2000, at about 10. 00 a. m. in village Rasoolpur within the circle of P. S. Satrikh District Barabanki, two brother Anil Kumar and Sunil Kumar were preparing mud for repair of their house. Their uncle Moti Lal was also assisting them. The appellants happened to pass from there. Some splash of mud stained the clothes of appellant Asif. This gave cause for altercation and exchange of abuses, which culminated into physical assault by the appellants on Sunil. In this scuffle, Sunil fell to the ground. The appellant Asif found a hoe of the plough lying there. He picked it up and assaulted Sunil with the hoe of the plough on his head. Sunil received injury and fell down. The incident was witnesses by several persons who had gathered. The appellants then ran away. 3. The victim was taken to the hospital. An FIR was lodged by Moti Lal on the same day which was registered under Section 307 IPC but later on, since Sunil died on account of injuries received by him, the case was converted under Section 302 IPC. 4. After considering the evidence adduced by the prosecution, the trial Court found that there was no previous enmity of motive for commission of murder nor was there any prior preparation by any accused persons for making an assault. He also took notice of the fact that instead of assaulting from the side of the head of the hoe of the plough, the appellant Asif had given blow of the handle of the hoe of the plough. In these circumstances, the trial Court found that it was a case not falling under Section 302 IPC but was covered by Section 304-II IPC. He convicted the other accused Mohd Asif under Section 304- II IPC read with Section 34 IPC with the observation that both the accused together had fallen the victim to the ground and were beating him when Asif attacked with the handle of the hoe of the plough. He convicted the other accused Mohd Asif under Section 304- II IPC read with Section 34 IPC with the observation that both the accused together had fallen the victim to the ground and were beating him when Asif attacked with the handle of the hoe of the plough. In view of the circumstances mentioned above, I agree with the learned Counsel for the appellants that so far as the appellant Mohd. Arif is concerned, he could not have been held guilty for committing offence punishable under Section 304-II IPC read with Section 34 IPC. It is not a case that there was any previous enmity of previous preparation of previous concert for commission of this crime. The incident took place all of sudden and that too, on a petty matter when the mud splash accidentally, stained the clothes of accused Asif. The weapon i. e. , the hoe of the plough was also accidentally found laying there which was picked up by Asif. There was no exhortation by Arif nor Arif gave any blow with the said hoe of the plough. In these circumstances, the appellant Arif could be held guilty and convicted only for offence under Section 323 IPC and could not have been held guilty under Section 304-II IPC read with Section 34, IPC. 5. The conviction of Mohd. Asif under Section 304-II read with Section 34 IPC is, therefore, set aside and he is held guilty and is convicted under Section 323 IPC and is sentenced to one year imprisonment only. Since he has already undergone the imprisonment for more than a year, he will be released forthwith. 6. So far as Mohd. Asif is concerned, the argument of the learned Counsel for the appellant is that he was a juvenile within the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000) and was also a juvenile within the meaning of Juvenile Justice Act, 1986 (Act No. 53 of 1986) at the time of commission of the offence. Section 20 of the Act No. 56 of 2000 reads as follows : "20. Section 20 of the Act No. 56 of 2000 reads as follows : "20. Special provision in respect of pending cases.-Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. " This Act came into force on 1-4-2001 that means, on 19-8-2000, when the incident took place, the Act No. 53 of 1986 was in force. By virtue of Section 20 of the Act No. 56 of 2000, all proceedings in respect of the juvenile pending in any Court on the date on which this Act came into force shall have to be continued as if the Act No. 56 of 2000 had not been passed. It is only if the Court finds that the juvenile in conflict with law has committed an offence and a finding is recorded to that effect, the Court instead of passing any sentence has to forward the juvenile to the Board for passing such order in accordance with the provisions of the Act may be deemed proper. The argument of the learned Counsel for the appellants is that the appellant Mohd. Arif was below the age of 16 years at the time of commission of offence but above the age of 18 years when the trail was concluded and, therefore, the trial Court could not have passed any sentence on appellant Arif. The argument of the learned Counsel for the appellants is that in such a situation when a sentence had been passed and Mohd. Arif has also ceased to be juvenile, the appropriate course is to release him as he has already undergone detention of 6 years against a sentence of 10 years imprisonment passed on him. 7. Before considering this plea, it is to be kept in mind here that the plea that the appellants Mohd. Arif has also ceased to be juvenile, the appropriate course is to release him as he has already undergone detention of 6 years against a sentence of 10 years imprisonment passed on him. 7. Before considering this plea, it is to be kept in mind here that the plea that the appellants Mohd. Arif was juvenile, was not taken during trial. It was for the first time that the plea was raised in this appeal and, therefore, an application under Section 6 (2) of the Act No. 56 of 2000 was made by the appellant to treat him as a juvenile. 8. It is now settled law that the plea of juvenility can be raised at any stage. The Apex Court has held so in the case of Umesh Chandra v. State of Rajasthan, (1992) 2 SCC 202 , and also in the case of Pratap Singh v. State of Jharkhand, 2005 (3) JIC 129 (SC) : JT (2005) 2 SC 271, that age of the accused on the date of incident is to be taken into account. Accordingly, this Court vide its order dated 31-1-2005, required the appellants to be produced before it. They were produced before this Court on 9-2-2005 and the Court observed that from their looks, their claim that they are juvenile requires consideration. It accordingly directed the learned Sessions Judge Barabanki to hold an inquiry and give a report about the age of the appellants. Learned Sessions Judge Barabanki gave its report on 7- 4-2005 holding that at the time of incident, both the appellants were within the age of 16 years and were juvenile. In coming to this conclusion, learned Sessions Judge had taken into consideration the medical examination and report of the CMO concerned. The CMO had given in his report that the appellants at the time of their examination i. e. 2-3-2005, were above 18 years of age. They had 14/14 teeth and the epiphysis of wrist and elbow and joints had fused. The CMO had given in his report that the appellants at the time of their examination i. e. 2-3-2005, were above 18 years of age. They had 14/14 teeth and the epiphysis of wrist and elbow and joints had fused. Learned Sessions Judge formed the view that the doctors opinion could be interpreted to mean that the appellants were above the age of 18 years of age but below the age of 19 years and since both of them had not more than 28 teeth in their mouth, their age at the time of examination could not have been more than 18 years or 20 years in any case and since this examination took place about four and a half years after the date of incident, the inference drawn by the learned Sessions Judge was that the appellants were less than 16 years at the time of incident. Learned Sessions Judge had also taken into consideration the school certificate as well as the affidavit of the mother of the appellant. When the inquiry had concluded, the District Government Counsel (Crl.) made an application before the learned Sessions Judge for an opportunity to the prosecution to prove that the school certificates were not reliable. Learned Sessions Judge declined to give this opportunity on the ground that the inquiry had already concluded. While doing so, he had also observed that the school certificates were not of much significance in the present case. Learned Sessions Judge also summoned the two appellants from the Jail and made his opinion by visual assessment and was of the view that the appellants were around 20-21 years of age. This was in conformity with the age assessed by the CMO because, there could be variation of two years on either side in age assessed by medical examination. The learned Sessions Judge formed an opinion that at the time of examination by CMO, the age of the appellants was above 18 years. 9. This appeal came up for hearing before Honble Mr. Justice R. P. Yadav (now retired ). His lordship after considering the report of the learned Sessions Judge, was of the view that the learned Sessions Judge was wrong in not giving opportunity to the prosecution to show that the School certificate was not reliable. 9. This appeal came up for hearing before Honble Mr. Justice R. P. Yadav (now retired ). His lordship after considering the report of the learned Sessions Judge, was of the view that the learned Sessions Judge was wrong in not giving opportunity to the prosecution to show that the School certificate was not reliable. The report of the learned Sessions Judge was accordingly set aside and the matter was sent back to the learned Sessions Judge for afresh inquiry for determining the age of the appellants. It was observed that the learned Sessions Judge would give due opportunity to the appellants as well as the prosecution to adduce evidence. 10. This time, the matter was dealt with by the Additional Sessions Judge. The Additional Sessions Judge in his inquiry report dated 22-11-2005, observed that the appellants had not adduced any new evidence but they relied upon the evidence already adduced by them. He accordingly found that there was no material to show that the school i. e. the Madarsa of which the school certificate could be produced was recognised one or not and since the School certificate had not been proved, therefore it was found that the School certificate could not have been relied. The mother of the appellants had given her statement and the Additional Sessions Judge found that the said statement also was not very specific or convincing. The prosecution had not adduced any evidence before the Additional Sessions Judge. The medical certificate of the CMO was disposed of by the Additional Sessions Judge with a bald observation that on the basis of the medical certificate it cannot be said that the age of the appellants was less than 18 years on 19-8-2000. The Additional Sessions Judge thus, found that the burden was on the appellants to show that they were juvenile and they have not discharged the burden. 11. After considering all the circumstances, I am of the view that the appellants have to be treated as juvenile on the date of commission of offence. Referring to earlier cases, the Apex Court in the case of Arnit Das v. State of Bihar, 2001 (2) JIC 684 (SC) : 2000 (5) SCC 488 , reiterated the principle that in deciding the question of age of an accused claiming to be the juvenile hyper technical approach should not be adopted. Referring to earlier cases, the Apex Court in the case of Arnit Das v. State of Bihar, 2001 (2) JIC 684 (SC) : 2000 (5) SCC 488 , reiterated the principle that in deciding the question of age of an accused claiming to be the juvenile hyper technical approach should not be adopted. If the two views of the same evidence are possible, the one which leans to hold the accused juvenile, should be adopted. In the instant case, the two appellants were produced before this Court in appeal as well as before the learned Sessions Judge. Both the Courts by visual observations, found that the contention of the appellants was apparently correct. The appellants are almost illiterate as their mothers statement that they had been to school only upto 2nd or 3rd standard. The number of teeth in their month, the fusion of bones and the opinion of the CMO strongly suggest that the age of appellants was around 18-19 years at the time of the medical examination in March, 2005. This is a very strong evidence to show that the appellants were below 16 years of age when the offence was committed. They should, therefore, have been referred to juvenile Court but instead of that, they were treated as an adult accused and were tried by the Court and the Court as mentioned earlier, has sentenced them to 10 years imprisonment. 12. Learned Counsel for the appellants has referred to the case of Bhoop Ram v. State of U. P. , decided on 4-4-1989 by the Honble Supreme Court in Cri. Appeal No. 228 of 1989 [ air 1989 SC 1329 ] in which the Court came across a similar situation. 13. Dealing with the provisions of the U. P. Children Act, 1951 the Court found that the age of the accused was less than 16 years on the date of commission of offence and, therefore, he ought to have been dealt with under the provisions of U. P. Children Act, 1951 instead of being sentenced to imprisonment when convicted by the learned Sessions Judge. At the time of delivery of judgment, the accused were 28 years of age. The Supreme Court maintained the conviction of the appellants but quashed the sentence awarded to him and he was directed to be released. 14. Similarly, in the case of Bibhuti Mandal and Anr. At the time of delivery of judgment, the accused were 28 years of age. The Supreme Court maintained the conviction of the appellants but quashed the sentence awarded to him and he was directed to be released. 14. Similarly, in the case of Bibhuti Mandal and Anr. v. State of Bihar, 2000 (3) Crimes 226, the accused who was in fact a juvenile but this plea was not taken in the trial. The trial Court held the accused guilty and convicted him under Section 302 IPC. The Patna High Court observed that the plea about age could be taken in the appeal also. Holding the accused to be juvenile and while maintaining the conviction, the sentence of life imprisonment was set aside. In setting aside the sentence the Patna High Court placed reliance of the case of Bhola Bhagat v. State of Bihar, 1997 (2) PLJR 161, in which too similar action was taken. The Division Bench of the Rajasthan High Court also took a similar view in the case of Refique Khan v. State of Rajasthan, 2004 (2) Crimes 106 . 15. In view of the discussions made above, this Court is of the view that the appellant Asif was also a juvenile at the time of commission of offence in this case. 16. From the evidence on record and particularly, the statement of eye-witness PW-1 Anil Kumar and PW-2 Raja Ram and PW-3 Dr. S. K. Srivastava who conducted autopsy and the PW-6 Dr. Ramesh Chandra Singh who had conducted medical examination of the injuries of Sunil Kumar, coupled with other formal evidence, the conclusion of the trial Court holding Asif guilty for offence under Section 304-II IPC, does not call for any interference. 17. Since he has now become more than 18 years of age and also because his conviction under Section 304-II IPC, on the basis of evidence adduced is just and sound and he his already been in Jail for 6 years now this Court rejects his appeal so far as conviction is concerned but sets aside the sentence of imprisonment. He shall be released now after paying the fine imposed by the trial Court if not already paid. 18. The appeal of other accused Mohd. He shall be released now after paying the fine imposed by the trial Court if not already paid. 18. The appeal of other accused Mohd. Asif is party allowed and his conviction under Section 304-II read with Section 34 IPC and sentence passed on him, is set aside and the conviction is altered under Section 323 IPC and sentence is reduced to one year imprisonment only. 19. The appeal is accordingly disposed of. Appeal disposed of. .