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2007 DIGILAW 1777 (PAT)

Akhilesh Ojha v. State Of Bihar

2007-11-14

SHIVA KIRTI SINGH, SYED MD.MAHFOOZ ALAM

body2007
Judgment Shiva Kirti Singh, J. 1. Through these 8 Criminal Appeals all the ten convicted accused have challenged the judgment dated 30.5.2001 passed by learned 1st, Additional Sessions Judge Saran at Chapra in Sessions Trial No. 50 of 1977 arising out of Garkha P.S. Case No. 5(7)73 dated 5.7.1973 whereby they have been convicted for various offences relating to murder of Shambhu Nath Singh and Prabhu Nath Singh, two sons of informant Baijnath Singh on 5.7.1973 at about 7 A.M. in village Mohamadpur, P.S. Garkha, District Saran. They have also challenged the order passed by learned court on 31.5.2001 whereby the learned trial court has awarded various sentences including imprisonment for life to all the ten appellants. Appellants Akhilesh Ojha (Cr. Appeal No. 265/ 2001), Keshav Singh (Cr. Appeal No. 275/ 2001) and Jitendra Singh (Cr. Appeal No. 280/2001) have been convicted for the offence under Sec. 302 read with Sec. 149 of the Indian Penal Code (hereinafter referred to as I.P.C.) and awarded life imprisonment and a fine of Rs. 2000/- each and in default further R.I. for one year and six months. They have also been convicted under Sec. 148 of the I.P.C. for which they have been awarded R.I. for two years. Appellant Thakur Singh (appellant no. 2 of Cr. Appeal No. 275/2001) and appellant Ram Pravesh Singh (Cr. Appeal No. 290/2001) have been convicted for the offence under Sec. 302 read with Sec. 149 of the I.P.C. for which they have been awarded the same sentence as the aforesaid appellants. They have also been convicted under Section 147 I.P.C. for which they have been awarded one year six months R.I. each. Appellants Adalat Pandit (Cr. Appeal No. 296/01), Thakur Ojha (Cr. Appeal No. 336/ 2001), Gorakhnath Singh (Cr. Appeal No. 342/2001) and appellants Rajnath Singh and Bachcha Singh (appellants 1 and 2 of Cr. Appeal No. 344/01) have been convicted for the offences under Sec. 302 I.P.C. and awarded life imprisonment and also a fine of Rs. 3,000/- and in default to undergo further R.I. for two years. They have also been convicted under Section 148 I.P.C. and awarded R.I. for two years each. Appellant Thakur Ojha has further been convicted for the offence under the Arms Act and awarded R.I. for two years. Except fine and sentences in default thereof, all other sentences are to run concurrently. 2. They have also been convicted under Section 148 I.P.C. and awarded R.I. for two years each. Appellant Thakur Ojha has further been convicted for the offence under the Arms Act and awarded R.I. for two years. Except fine and sentences in default thereof, all other sentences are to run concurrently. 2. According to the prosecution case, on 5.7.1973 at 8 A.M. Baijnath Singh father of the two deceased came to Garkha police station and his statement was recorded by A.S.I. Abdul Hai Mallik and on that basis the formal F.I.R. was instituted on the same date. The informant Baijnath Singh as well as A.S.I. Abdul Hai Mallik died before they could be examined during trial A.S.I. A.H. Mallik took up investigation at the initial stage till the investigation was taken over by the Officer-lncharge of Garkha police station S.I. Shatruhan Singh (P.W. 15) at about 12.15 P.M. on the date of occurrence itself at the village of occurrence. P.W. 15 has proved the writing and signature of A.S.I. A.H. Mallik on the F.I.R. which has been taken on record as Ext. 10 without any objection. The gist of investigation conducted by A.S.I. Mallik recorded in paragraphs 1 to 7 of the case diary have also been proved and marked as Ext. 11. The signature of Baijnath Singh on the F.I.R. has been proved by Bhrigunath Singh (P.W. 7) as Ext. 1/8. 3. According to the F.I.R. the prosecution case, in brief is that on 5.7.1973 at about 7 A.M. appellants Thakur Ojha with gun, Patiram Ojha, Akhilesh Ojha, Jitendra Singh, Rajnath Singh, Gorakhnath Singh, Keshav Singh, Bachcha Singh and Adalat Pandit @ Kumhar, all with Bhalas and Thakur Singh and Ram Pravesh Singh with lathis came to orchard of Baijnath Singh in plot no. 4905 situated at a distance of 3 Furlongs towards south-east of the village. They started plucking mangoes. On this the informant alongwith his two sons Shambhu Nath Singh (deceased) and Prabhu Nath Singh (deceased) went there and prevented them from plucking mangoes. It led to verbal altercation. Patiram Ojha (since dead) ordered Thakur Ojha to assault. Thakur Ojha fired two shots with his gun at Shambhu Nath Singh as a result he sustained injuries and after moving for a little distance towards home i.e. towards west he fell down in the orchard of one Arjun Singh. It led to verbal altercation. Patiram Ojha (since dead) ordered Thakur Ojha to assault. Thakur Ojha fired two shots with his gun at Shambhu Nath Singh as a result he sustained injuries and after moving for a little distance towards home i.e. towards west he fell down in the orchard of one Arjun Singh. After Shambhu fell down accused Gorakhnath Singh assaulted him with Bhala on the back of his chest. In the meantime Thakur Ojha further fired two shots at Prabhunath Singh, the elder son of the informant which caused injuries and he also fell down in the orchard of Arjun Singh. After he had fallen, he was assaulted by Rajnath Singh, Bachcha Singh, Adalat Pandit with Bhalas. Thereafter accused Jitendra Singh and Ram Pravesh Singh dragged Prabhunath Singh by both the hands towards east in the orchard of the informant. When the two sons of the informant died then the informant requested the assailants to kill him also but Patiram Ojha intervened saying that no useful purpose will be served by killing an old man; he should be allowed to live and cry. The names of Lachuman Singh (P.W. 8), Arjun Singh, since dead Badri Singh (P.W. 5), Bhrigunath Singh (P.W. 7) and Ram Prasad Singh (P.W. 4) were given out as witnesses in the F.I.R. with assertion that others who might have seen the occurrence would give their statements. The reason for the occurrence was said to be pendency of a Probate Case No. 1/65 in the Court of Additional Sessions Judge-Ill in respect of dispute over a Will in which the orchard where the occurrence had taken place was also involved. 4. It is further case of the prosecution that accused Akhilesh Ojha, Adalat Pandit and Gorakhnath Singh fled away from the village soon after the occurrence but the remaining 8 accused persons went to the house of accused Rajnath Singh and the police which arrived soon after lodging of the case at the police station arrested the remaining 8 accused from the house of Rajnath Singh. The A.S.I, also searched the house of Rajnath Singh and recovered from under the bedding on a cot one double barrel gun whose barrels were blocked with rags of clothes which smelt of kerosene oil. From another room of the house from under the cot two Bhalas were also recovered which had stains of blood. The A.S.I, also searched the house of Rajnath Singh and recovered from under the bedding on a cot one double barrel gun whose barrels were blocked with rags of clothes which smelt of kerosene oil. From another room of the house from under the cot two Bhalas were also recovered which had stains of blood. A.S.I. A.H. Mallik prepared seizure-list. The said seizure-list was proved by P.W. 2, Sukeshwar Singh as Ext. 2 as he has also signed the seizure- list as a witness. He has also proved signature of accused Rajnath Singh on Ext. 2 by way of endorsement as Ext. 3. The Officer-in-charge reached the village at about 12-15 in the noon. He went to the orchard where the occurrence had taken place and made seizure of blood stained earth under two dead bodies. The seizure-lists have been proved and marked as Exts. 2/1 and 2/2. P.W. 15 prepared inquest reports of two dead bodies at the place of occurrence and those reports have been proved and marked Exts. 8 and 8/1. As Investigating Officer (P.W. 15) inspected the place of occurrence noted that it was mango orchard of Baijnath Singh on west of which was orchard of Arjun Singh. The dead body of Prabhunath Singh was found in the orchard of Baijnath Singh and the dead body of Shambhunath Singh was found in the orchard of, Rameshwar Singh and Saryug Singh, (co- sharers and family members of Arjun Singh). According to witnesses the same orchard is also known as orchard of Arjun Singh. The I.O. also found mark of dragging of body of Prabhunath Singh from the orchard of Rameshwar Singh and Saryug Singh to the orchard of informant Baijnath Singh covering a distance of 64 yards. He found marks of blood at the places where the dead bodies were found and also at the place from where the mark of dragging of body of Prabhu Nath Singh had started. The Investigating Officer made a rough sketch (Ext. 9) of the place of occurrence. He sent 8 arrested accused to the police station alongwith some police officials. The two dead bodies were sent to hospital for autopsy alongwith Chaukidar Ram Nath Manjhi (P.W. 9). The material witnesses were examined on the same date. The Investigating Officer made a rough sketch (Ext. 9) of the place of occurrence. He sent 8 arrested accused to the police station alongwith some police officials. The two dead bodies were sent to hospital for autopsy alongwith Chaukidar Ram Nath Manjhi (P.W. 9). The material witnesses were examined on the same date. On 9.7.1973 the I.O. went to arrest accused Adalat Pandit and from his house he collected an envelope and telegram which have been marked as X and Y for identification. He also recorded the statement of Post-Master, Baijnath Singh and Daak peon Ram Balak Rai, sent several seized articles to Forensic Science Laboratory and handed over investigation to successor officer-in- charge. Ultimately, charge-sheet was submitted on 4.4.1976 against the accused persons. After cognizance and service of police papers to the accused case was committed to the court of sessions on 29.11.1976. The charges were framed on 26th May, 1981. The accused persons pleaded not guilty to the charges and hence they were put on trial and have been ultimately convicted and sentenced by the trial court as already noticed 5. The prosecution in order to prove its case has examined altogether 16 witnesses. P.W. 1 Ram Adhar Singh is a formal witness who only signed on the inquest report. P.W. 2, Sukeshwar Singh, P.W. 4 Ram Prasad Singh, P.W. 5 Badri Nath Singh, P.W. 7 Bhrigunath Singh and P.W. 8 Lachchuman Singh are material witnesses who have claimed to have seen the alleged occurrence P.W. 3 Pashupati Nath Gupta is a compounder and a formal witness who has proved the post mortem reports of the two deceased as Exts. 5 and 5/1. He has deposed that the post mortem reports are in the handwriting and under the signature of Dr. B.M. Srivastava who is dead. In cross-examination he has stated that one Dr. J.C. Brahmo is alive. P.W. 6 Ram Lakhan Singh has been tendered only for the purpose of cross-examination. P.W. 9 Ram Nath Manjhi is a formal witness who took the dead bodies for autopsy and identified the same. P.W. 10 Baijnath Singh, a postmaster is a formal witness who has proved a delivery slip containing signature of peon Ram Balak Raut as Ext. 6 to show that a registered envelop in the name of accused Adalat Pandit had arrived on 3.7.1973 and had been served on him by the postal peon. P.W. 10 Baijnath Singh, a postmaster is a formal witness who has proved a delivery slip containing signature of peon Ram Balak Raut as Ext. 6 to show that a registered envelop in the name of accused Adalat Pandit had arrived on 3.7.1973 and had been served on him by the postal peon. P.W. 11 Ram Balak Rai a postal peon is also a formal witness who has claimed that he delivered a registered letter to Adalat Pandit on 3.7.1973, obtained signature of Adalat Pandit on the delivery slip and put his own signature also on the same. The signatures on the delivery slip have been proved by him as Exts. 1/9 and 1/10 respectively. P.W. 12 Dina Nath Singh is a Clerk in the Civil Court at Chapra who brought a Will (Ext. 7) kept in safe custody of the Court. P.W. 13 Dharmnath Pathak has proved the Will dated 10.7.1958 of late Tej Narayan Singh an uncle of informant Baijnath Singh as Ext. 7 and has claimed that he had identified Tejnarain Singh before the Registrar when its execution was admitted by Tej Narain Singh. According to this witness Tej Narain died 9/10 years after executing the Will and after his death informant Baijnath Singh came in possession over his properties. Bhagmato Kuer, daughter- in-law of Tejnarain Singh died 8-10 years before Baijnath Singh and she remained joint with him. Kishori daughter of Bhagmato lived in her matrimonial place. He denied knowledge of any Will by Tejnarain Singh in 1964 in favour of Kishori or of any Will by Bhagmato in the year 1965 in favour of Kishori or of any registered gift by Bhagmato in 1970 in favour of Kishori (wife of accused Thakur Ojha). 6. P.W. 14, Sultan Ahmad was posted as B.D.O. of Garkha Block on 5.7.1973. He has deposed that accused Gorakhnath Singh was working as a Gram Sewak in the same block in respect of Devaria Pachpatia Gram Panchayat on 5.7.1973. The witness had gone to Devaria for collection of levy wheat. He reached that village at 1 P.M. in the day. Accused Gorakh Nath Singh came there after one and half hours of his arrival. This witness has been examined to expose the claim of alibi of Gorakhnath Singh that since early morning of 5.7.1973 he was attending to his official duty of collecting levy wheat at village Devaria. He reached that village at 1 P.M. in the day. Accused Gorakh Nath Singh came there after one and half hours of his arrival. This witness has been examined to expose the claim of alibi of Gorakhnath Singh that since early morning of 5.7.1973 he was attending to his official duty of collecting levy wheat at village Devaria. It has come in the evidence of P.W. 8 that Devaria is only at a distance of 4 Kms. from the village of occurrence. 7. P.W. 15 S.I. Shatruhan Singh is the Investigating Officer who conducted material part of investigation a part of which has already been noticed. However, before discussing the evidence of material eye witnesses and of P.W. 15 it may be noticed that P.W. 16 Md. Hussain Ansari is a Clerk in Arms Section of the office of District Magistrate, Chapra. With the help of register of Arms Licences he has deposed that Thakur Ojha has a D.B.B.L. Gun licence bearing no. 4227 and the number of his gun is 12490. He is only a formal witness. 8. Before reverting to the evidence of material eye witnesses and the evidence of the Investigating Officer it will be useful to notice here that the defence of the accused persons as appearing from the trend of cross-examination of the P.Ws., suggestions made to them, statement of the accused persons under Section 313 Cr.P.C. and the depositions of defence witnesses, is of false implication of the accused persons on account of dispute over property and enmity. On behalf of accused Gorakh Nath Singh and Adalat Pandit a specific defence of alibi has also been taken. The plea of Gorakh Nath Singh is that he was on duty as Gram Sewak engaged in collection of levy wheat at the Darwaja of Mukhia Ram Badai Singh of village Devaria. The plea of Adalat Pandit is that before the date of alleged occurrence, since 3.7.1973, after availing leave, he had joined duty (Military Service) in his unit near border of Bangladesh. 9. The defence has examined altogether 26 witnesses. The defence has also proved a large number of documents Ext. A to Ext. X/3. The evidence adduced on behalf of the defence is in support of the plea of alibi of Gorakhnath Singh and Adalat Pandit and to show that there was land dispute and previous enmity between the parties. 10. 9. The defence has examined altogether 26 witnesses. The defence has also proved a large number of documents Ext. A to Ext. X/3. The evidence adduced on behalf of the defence is in support of the plea of alibi of Gorakhnath Singh and Adalat Pandit and to show that there was land dispute and previous enmity between the parties. 10. Coming to the material eye witnesses, P.W. 2 Sukeshwar Singh has claimed to be an eye witness of the alleged occurrence and has fully supported the prosecution case. He has claimed that on 5.7.1973 at about 7 A.M. he had gone to see his maize crop in his field near the orchard of Baijnath Singh. He saw the 11 named accused persons with their respective arms when they came to the orchard of the informant. After a little while he saw the informant Baijnath Singh and his two sons Prabhu Nath Singh and Shambhu Nath Singh coming to the said orchard. The accused persons wanted to harvest crop of mangoes in that orchard and Baijnath Singh forbade them. Exchange of hot words took place and thereafter on the orders of Patiram Ojha, Thakur Ojha fired two shots hitting Shambhu Nath Singh. Shambhu ran towards west and fell down in the orchard of Arjun Singh. Thereafter he was assaulted by Gorakhnath Singh on the back of the chest with a Bhala. Prabhunath Singh ran towards Shambhu. Thakur Ojha again fired two shots which hit Prabhu. He also fell down in the orchard of Arjun Singh. Thereafter Prabhu Singh was assaulted by Bachcha Singh, Rajnath Singh and Adalat Pandit by Bhala. On the orders of Thakur Ojha, Ram Pravesh and Jitendra Singh dragged Prabhu Nath Singh with both hands to the orchard of Baijnath Singh and kept him there. In spite of entreaties of the informant that he should also be killed when his two sons have been killed, Patiram replied that killing an old man would be of no benefit and the informant should live to lament. According to this witness P.Ws. 4, 5, 6, 7 and 8 as well as Arjun Singh saw the occurrence. He has deposed that Arjun Singh had subsequently died and his brothers name was Rameshwar Singh. According to this witness P.Ws. 4, 5, 6, 7 and 8 as well as Arjun Singh saw the occurrence. He has deposed that Arjun Singh had subsequently died and his brothers name was Rameshwar Singh. This witness further stated that after the occurrence Gorakh Nath Singh, Adalat Pandit and Akhilesh Ojha went towards south and rest accused persons went towards west in the house of Shyamdeo Singh and Rajnath Singh. After the accused persons went away, this witness went closer and found Prabhu Nath Singh and Shabhu Nath Singh to be dead. According to this witness the people of the village had surrounded the house of Rajnath Singh Where the accused persons had concealed themselves till the A.S.I, of Police arrived and arrested the 8 accused persons from the house of accused Rajnath Singh. He has also claimed to be a witness of search of the house of Raj Nath Singh wherefrom a double barrel gun and two blood stained Bhalas were recovered. He has proved the seizure-list as Ext. 2 and has also proved signature of accused Rajnath Singh on the said seizure-list as Ext. 3. He has also signed on the two seizure-lists (Ext. 2/1 and 2/2) showing seizure of blood stained earth by P.W. 15, the I.O. from under the two dead bodies found at the place of occurrence. He has also proved a letter in the hand writing of accused Adalat Pandit as Ext. 4. He has disclosed that accused Thakur Ojha is a brother of deceased accused Patiram Ojha and uncle of accused Akhilesh Ojha. Accused Jitendra Singh is a relation of accused Thakur Singh. Accused Raj Nath Singh, Bachcha Singh and Keshav Singh are brothers whereas accused Thakur Singh is a brother of accused Gorakh Nath Singh. Accused Ram Pravesh Singh is son of accused Thakur Singh. He has also proved the clothings of the two deceased and the heads of two seized Bhalas as material exhibits. Attention of this witness has been drawn to the fact that he had not stated before the I.O. that villagers surrounded the house of Raj Nath Singh and that after the occurrence Gorakh Nath Singh and two other accused persons fled away owards south. He has denied the suggestion that he has deposed falsely against the accused persons on account of enmity. 11. He has denied the suggestion that he has deposed falsely against the accused persons on account of enmity. 11. P.M. 4 Ram Prasad Singh is an eye witness whose name as eye witness is mentioned in the F.I.R. He has explained that on the date of occurrence Marwa (Mandap) was to be installed in relation to marriage of daughter of one Kedar Nath Singh (brother of Badri Nath Singh P.W. 5). For that he alongwith Badri Nath Singh at about 7 A.M. had gone to cut bamboos in the bamboo clumps belonging to Mostt. Tija Kunwar which was situated at a distance of 1 1/2 Rassi towards north of orchard of the informant Baijnath Singh. He saw the occurrence as narrated by P.W. 2 and given in the F.I.R. after they had cut, one bamboo piece. He has fully supported the prosecution case in all material particulars. He has admitted that Tej Narain Singh was brother of Laxmi Narain (father of informant) and Bhagmato Kuer was widowed daughter-in-law of Tej Narain Singh whose land was being claimed by accused Thakur Ojha leading to litigation between the parties. He has also explained that Arjun Singh (whose orchard is adjacent west of the orchard of informant) has two brothers Rameshwar Singh and Sudama Singh. He has admitted that he has purchased 1 katha 2 dhurs of land from Rameshwar, son of the informant but has denied that he has got that land for deposing as a witness in the present case. He has claimed that he was a witness in this case from much before. He has reiterated that before the police he had stated about Thakur Ojha having ordered for dragging the dead body to the orchard of the informant and that three accused persons fled towards south and 8 accused persons fled towards west. Nothing material has been elicited in the cross-examination of this witness to discredit his testimony. P.W. 5, Badri Nath Singh had supported P.W. 4 as an eye witness of the alleged occurrence and has claimed that he had also gone with P.W. 4 to fetch bamboos in relation to marriage ceremony of daughter of his brother Kedar Nath Singh. Nothing material has been elicited in the cross-examination of this witness to discredit his testimony. P.W. 5, Badri Nath Singh had supported P.W. 4 as an eye witness of the alleged occurrence and has claimed that he had also gone with P.W. 4 to fetch bamboos in relation to marriage ceremony of daughter of his brother Kedar Nath Singh. His deposition is on same lines as that of P.W. 4 and his presence at the place of occurrence as a witness is also mentioned in the F.I.R. No good reason has been shown to disbelieve his testimony as a witness. 12. P.W. 7, Bhrigunath Singh and P.W. 8 Lachchuman Singh are also eye witnesses of the alleged occurrence whose names as witnesses find mentioned in the F.I.R. P.W. 7 has claimed that he was in his field since 7 in the morning of the date of occurrence. That field is situated 150 yards south-west of orchard of the informant. He has claimed to have seen the entire occurrence. He has deposed that on arrival from the police station, the Assistant Sub-Inspector of Police arrested 8 accused persons and searched the house of Raj Nath Singh wherefrom he recovered a double barrel gun and in the barrels of the same rags of clothes had been pushed and smell of kerosene oil came from the clothes inserted in the gun. A blood stained Bhala was seized from under a Chouki kept in another room. The A.S.I, prepared seizure-list on which the witness signed. Two seizure-lists were prepared of the blood stained earth taken from the place of occurrence. On that also the witness had signed. He has claimed that since his attaining consciousness he has seen the orchard which is the place of occurrence in possession of informant, Baijnath Singh and Lakhan (Ram Lakhan, P.W. 6). To his knowledge there had never been any proceeding under Sec. 144 or 145 of the Code of Criminal Proceure in relation to the said orchard. He has stated that the informant as well as Ram Dayal Singh and Ramjeet Singh have died after the occurrence. He has identified the signature of the informant on the F.I.R. as Ext.1/8. He has given the name of uncle of Arjun Singh as Saryug Singh. He has stated that the informant as well as Ram Dayal Singh and Ramjeet Singh have died after the occurrence. He has identified the signature of the informant on the F.I.R. as Ext.1/8. He has given the name of uncle of Arjun Singh as Saryug Singh. He has admitted that much before the occurrence he had obtained a mortgage deed from the informant in the name of his son in respect of 9 Kathas 10 Dhurs of land. He has further admitted that the said land was redeemed after paying the mortgage money and he has no concern with the said land. He has denied to have deposed as a witness on behalf of the informant or his son Rameshwar in any case (Civil or Criminal) filed by Bhagmato Kuer. He has successfully withstood the test of cross-examination and appears to be a reliable eye witness in respect of the time, place and manner of the alleged occurrence. P.W. 8, Lachchuman Singh has deposed that on the south of orchard of the informant is orchard of Jiyaman and Sukhdeo Singh and to south of that is the orchard of this witness and in the morning at about 7 A.M. of the date of occurrence he was in his orchard and saw the entire occurrence. He has fully supported the prosecution case as an eye witness. In cross-examination he has admitted that on 7.12.1965 he had executed a mortgage deed in favour of Thakur Ojha (Ext. A). He has denied any knowledge of the suggestion that he was an opposite party in 107 proceeding initiated by Bhagmato Kuer or that his nephew Naval Kishore had filed an affidavit in a proceeding under Section 145 Cr.P.C. in favour of the informant. He has claimed that he had stated before the I.O. that Thakur Ojha ordered for dragging of dead body to the orchard of the informant and has denied that he had stated before the I.O. that all the accused ran towards the village. He has disclosed that he had land dispute with one Nand Lal and in the year 1963 accused Gorakh Nath Singh had issued rent receipt in his name and he has got rent receipts for four years and the case with Nand Kumar was still pending before the Commissioner. He has disclosed that he had land dispute with one Nand Lal and in the year 1963 accused Gorakh Nath Singh had issued rent receipt in his name and he has got rent receipts for four years and the case with Nand Kumar was still pending before the Commissioner. He has disclosed that Gorakh Nath Singh was Gram Sewak of his village from 1960 to 1972 and thereafter he is Gram Sewak of village Devaria Pachpatia which is south of his village. He has given the relationship amongst some of the accused persons and has deposed that accused Thakur Ojha was living in the house of Raj Nath Singh since 4-5 years prior to the alleged occurrence and in a criminal case instituted after the occurrence accused Raj Nath Singh has deposed against him. Nothing material has been elicited in cross-examination to discredit this witness as an eye witness of the alleged occurrence. 13. As noticed earlier, P.W.15 Shatruhan Singh was the Investigating Officer who took over investigation of this case from Abdul Hai Mallik on the date of occurrence itself at about 12.15 P.M. after reaching village Mohammadpur where the occurrence had taken place. At the relevant time he was Officer-lncharge of Garkha Police Station. After taking charge of investigation he went to the place of occurrence and prepared the inquest reports of the two deceased (Exts. 8 and 8/ 1). The other material steps taken by him in course of investigation have been noticed earlier in paragraph-4 of the judgment. The same shows that material investigation was conducted by this witness and later charge-sheet was submitted by another I.O. The material findings of the I.O. such as blood under the two dead bodies as well as blood from where body of Prabhu Nath Singh had been dragged as well as mark of dragging, support the prosecution case. In cross-examination this witness has deposed that towards the north of the body of Prabhunath there was a bamboo grove at a distance of 48 yards. He has replied that he had not recorded any statement of Saryug Singh or Rameshwar Singh. He has admitted that he has not mentioned in the diary that mango fruit was available in the orchard where the occurrence had taken place or that any mango branch or leaves had been found fallen. He has replied that he had not recorded any statement of Saryug Singh or Rameshwar Singh. He has admitted that he has not mentioned in the diary that mango fruit was available in the orchard where the occurrence had taken place or that any mango branch or leaves had been found fallen. He has described the place of occurrence as mango orchard belonging to Baij Nath Singh and Ram Lakhan Singh and has also given the boundary of the orchard disclosing orchard of Arjun Singh on the west. He has admitted that he had given the boundary after investigation and enquiry from others. He has denied that he has given wrong boundary on the west of the place of occurrence. He has affirmed that at the time of inquest he had seen blood and injuries on the person of the two deceased. He has disclosed that before him P.W. 2 had stated that he saw the occurrence from his field and Bhrigunath (P.W. 7) was with him; he had not stated that house of Rajnath Singh was surrounded; he had stated that after the occurrence all the accused fled towards orchard. Regarding P.W. 4, Ram Prasad Singh, the I.O. "disclosed that P.W. 4 had told him that he had gone to fetch bamboo for constructing Marwa but had not disclosed the name of Kedar Nath Singh and had not shown him the spot from where he had cut bamboo: he had not stated that he went to the orchard and saw the occurrence from there; he had not stated that Thakur Ojha ordered for dragging the dead body. The I.O. has disclosed similar facts regarding P.W. 5, Badri Narayan Singh. About P.W. 7 the I.O. has disclosed that he had stated that the accused wanted to pluck mangoes but had not stated that they attempted to pluck the mangoes; he had stated that Patiram Ojha ordered Thakur Ojha to kill the informant and his two sons and that all the accused persons fled towards the village; he had not stated that Thakur Ojha ordered for dragging the deceased or that villagers had surrounded the house of Raj Nath Singh. About P.W. 8 Lachchuman Singh the I.O. has disclosed that he had not stated the number of khata and khesra of the orchard, the place of occurrence; he had stated that Patiram ordered Thakur Ojha to kill the informant and his sons; he had not stated that Thakur Ojha ordered for dragging the deceaseds. The I.O. has admitted that he did not prepare search list in respect of telegram which he recovered from the house of accused Adalat Pandit and could not say who had written the Inland letter. 14. Before coming to the arguments advanced on behalf of appellants it will be useful to notice the defence witnesses examined mainly on behalf of accused Gorakh Nath and Adalat Pandit in support of their plea of alibi. P.W. 1, Dy. Superintendent of Police, Kapil Narain Sinha has proved an endorsement on an application of Gorakh Nath Singh made by him, as Ext. C and his report as Ext. B (with objection). He has admitted that he is not aware about the result of the investigation and whether his report was found correct on facts by the S.P. or not. D.W. 2, Kailash Singh and D.W. 3 Munshi Lal Raj have deposed to the effect that they had gone to the house of Mukhia Ram Badal (D.W. 7) at about 6 A.M. of 5.7.1973 where they deposited levy wheat for which receipt was prepared by Gorakhnath Singh and payment was also made by him. They have produced receipts which have been marked as Ext. D and D/1. They have not produced the notices for deposit of levy wheat. They were not aware how much wheat were to be deposited as levy or the rate for such wheat. They have denied the suggestion that the receipts are forged. According to them four persons of their village had gone to deposit levy wheat. According to D.W. 3, Ram Pravesh Singh who is V.L.W. (Village Level Worker) carbon copies of receipts are kept in block office. He admits that he met the B.D.O., P.W. 14 at 1.30 P.M. He has admitted that there is no paper to prove his presence at the time of collection of levy wheat in village Devaria. D.W. 5, Punkal Manjhi is a Chaukidar of village Madhupur who has claimed that from 6 A.M. to 10- 11 A.M. he was present at the time of collection of levy wheat. D.W. 5, Punkal Manjhi is a Chaukidar of village Madhupur who has claimed that from 6 A.M. to 10- 11 A.M. he was present at the time of collection of levy wheat. Accused Gorakhnath Singh used to write receipts and make payment to the agriculturists. He has admitted that there was no written order asking him to work for collection of levy wheat and there is no document to prove his presence at the house of Mukhia on the relevant date. D.W. 6, Chandradeo Prasad Singh has deposed on same lines as D.Ws. 2 and 3. According to him the levy work continued from 6 A.M. to 12 noon. He also paid levy but has no receipts. D.W. 7, Ram Badai Singh is the Mukhia. According to him levy work continued from 6 A.M. till 11 A.M. at his Darwaja. He admitted that there is no paper that on that date collection of levy wheat was made at his Darwaja or that he was present at that time. D.W. 8, Kuldip Narain Singh is a Karmchari. According to him levy work started from 6 A.M. and continued till 12 in the noon and thereafter he went for lunch and then again the levy work continued till evening. On that date B.D.O. (P.W. 14) had come. He has admitted that there is no paper to show that he was present at the time of collection of levy wheat on the relevant date and had worked in connection with the same. D.W. 9, Ram Lall Manjhi is Chaukidar of village Devaria. He has claimed that he used to call the agriculturists for deposit of levy wheat and Gorakhnath Singh used to write the receipts and make payment. He has not given the date and time of alleged collection of levy wheat. He was not examined by the I.O. D.W. 10, Vidya Nand Singh is a resident of village Devaria. He has claimed that Gorakhnath Singh was his tenant who spent the night of 4.7.1973 in his house and in the next morning he left at 5.45 A.M. with Ram Pravesh Singh, D.W. 4 for going to house of Mukhia. He was not examined by the I.O. D.W. 10, Vidya Nand Singh is a resident of village Devaria. He has claimed that Gorakhnath Singh was his tenant who spent the night of 4.7.1973 in his house and in the next morning he left at 5.45 A.M. with Ram Pravesh Singh, D.W. 4 for going to house of Mukhia. He was not examined by the I.O. The aforesaid defence witnesses have been thoroughly discussed by the learned trial court and on going through their evidence I am in agreement with the view of the trial court that their evidence is not reliable and it cannot be held on the basis of the aforesaid evidence that accused Gorakhnath Singh could not have been present in the alleged occurrence on 5.7.1973 at about 7 A.M. at village Mohammadpur which is only at a distance of 4 K.M. from village Devaria. The identification of this accused by eye witnesses as one of the accused persons who participated in the occurrence cannot be disbelieved on the basis of evidence of aforesaid defence witnesses. Many of the defence witnesses noticed above are Chaukidars, Karmchahes or village level worker whereas accused Gorakhnath Singh is also a Gram Sewak of village Devaria and hence these witnesses appear to be interested witnesses and not reliable. So far as Exts. B and C are concerned, they were matters arising in course of investigation and clearly a charge-sheet was submitted because the view of the D.S.P. in Ext. B was not found correct by the S.P. Exts. D and D/1 have not been substantiated by producing carbon copy of the receipts from the Block Office. 15. D.Ws.12, 13, 14, 15, 16, 17 and 18 are formal witnesses who have proved some documents with a view to show previous enmity between the parties. Exts. F and J are fardbeyan and F.I.R. for showing that P.W. 4, Ram Prasad Singh had filed a case under Sec. 324 and some other sections of the I.P.C. and Section 27 of the Arms Act against Jameer Mian and 9 others on 8.1.1980, 3 years after the present case. Some rent receipts have been proved by D.W. 17 to show that as Gram Sewak, Gorakh Nath Singh had issued those rent receipts in 1963 in favour of Nand Lal and probably against Lachchuman Singh, P.W. 8. D.W. 18 has proved Ext. Some rent receipts have been proved by D.W. 17 to show that as Gram Sewak, Gorakh Nath Singh had issued those rent receipts in 1963 in favour of Nand Lal and probably against Lachchuman Singh, P.W. 8. D.W. 18 has proved Ext. L, a gift deed by Bhagmato Kuer in favour of Kishori Devi, daughter of Bhagmato and wife of accused Thakur Ojha. The documents to show enmity need not be discussed in detail because it is admitted by several prosecution witnesses that there was a dispute and litigation pending with regard to lands of Tej Narain Singh whose widowed daughter-in-law was Bhagmato Kuer whose daughter Kishori was married to accused Thakur Ojha. 16. D.W. 19 Pandit Anand Nath Tiwary is an advocate who claims to have measured the distance between plot no. 4905, orchard which is alleged to be the place of occurrence and several other plots in the vicinity. He has admitted that he has not made any measurement on the actual site but has given the distance on the basis of R.S. Survey map prepared in the year 1917. His evidence is of no consequence. 17. D.W. 23, Arjun Rai and D.W. 24 Bikramaditya Manjhi are also formal witnesses who have proved Ext. H and Ext. W only to substantiate the plea of enmity between the accused Rajnath Singh and the prosecution party. Ext. H is a destruction report of relevant record from the record room of Collectorate at Saran. Ext. W is alleged to be a copy of an application given by accused Rajnath Singh on 1.1.1969 to the Sarpanch and D.W. 24 claims that he had issued a true copy of the said application whose original had already been destroyed in flood. In view of earlier observation regarding general enmity between the parties, these documents are not of much consequence. D.Ws. 20, 21, 22, 25 and 26 are on the point of alibi of accused Adalat Pandit. D.W. 20 has claimed to be an handwriting expert who has compared the signature of Adalat Pandit given in court and over the postal receipt Ext. 6 and has found the two to be different. His report has been marked as Ext. N. From his cross-examination it is apparent that he never prepared photo enlargement of the disputed signature and has prepared the report in the previous evening after taking fee. His evidence does not inspire confidence. 6 and has found the two to be different. His report has been marked as Ext. N. From his cross-examination it is apparent that he never prepared photo enlargement of the disputed signature and has prepared the report in the previous evening after taking fee. His evidence does not inspire confidence. D.W. 21 Praduman Dubey is a Head-Clerk in the Sainik Office, Danapur. He has proved leave register of Adalat Pandit as Ext. O. D.W. 22 A.B. Prasad is also an employee in the pay accounts office, Sainik Office, Danapur. Pay-Book of Adalat Pandit has been marked as Ext. P. The acquittance roll has been marked as Ext. Q. The entries are said to be made by a Havildar rank personnel. A perusal of Ext. P shows that in the last column there is no initial or date in support of the plea that he was on leave from 11.6.1973 till 2.7.1973. On Ext. Q, the acquittance roll, the date of last payment made to Adalat Pandit is 26.5.1973 and the date of payment of a further sum of Rs.100/- is claimed to be made on 3.7.1973 but the document does not show the date 3.7.1973. D.W. 25, Colonel Pritam Singh was Commanding Officer of 10 Bihar Regiment at the relevant time and he had admitted that he has no personal knowledge regarding actual presence of accused Adalat Pandit on the relevant date. D.W. 26, Colonel Amrik Singh has supported Exts. P and Q but in answer to question 11 it appears that he has stated that by an order dated 26.1.73 the leave of Adalat Pandit was extended for 14 days from 6.4.73 to 19.4.73 because Adalat Pandit could not resume his duty on 6.4.73. How such extension was made on an earlier date remains a mystery. Again in answer to question no. 14 he has replied that on the basis of Ext. P it appears that Adalat Pandit had 22 days of leave from 16.6.73 to 2.7.73 vide order dated 12.3.73. From answer of this witness to questions in cross-examination on behalf of State, particularly in relation to question nos. Again in answer to question no. 14 he has replied that on the basis of Ext. P it appears that Adalat Pandit had 22 days of leave from 16.6.73 to 2.7.73 vide order dated 12.3.73. From answer of this witness to questions in cross-examination on behalf of State, particularly in relation to question nos. 6 and 7 showing that there was no record to confirm how leave was communicated, it appears that the matter of grant of leave had been maintained in a casual manner and although this officer claimed personal knowledge about presence of the appellant in the Unit on 3.7.73, his answers to question nos. 8 and 9 in cross-examination reveal that he has claimed personal knowledge on the basis of Ext. Q, the acquittance roll. 18. On a careful consideration of the aforesaid defence witnesses examined on behalf of Adalat Pandit and on carefully going through Exts. P and Q it is deemed unsafe to rely on the aforesaid evidence and documents for accepting the plea of alibi of Adalat Pandit. From the records it is apparent that Adalat Pandit had availed long leaves and admittedly he was on leave till 2.7.73 and the documents contained in Exts. P and Q were casually maintained by a Havildar, and attempt has been made to show that he reported back on duty on 3rd July, 1973. As against aforesaid defence witnesses, the evidence of prosecution witnesses regarding service of a registered letter to him at village on 3.7.73 and regarding identification of appellant Adalat Pandit as one of the persons who participated in the occurrence appears much more reliable and trustworthy. In that view of the matter his plea of alibi is also found to be not acceptable. 19. On behalf of appellants it was first submitted that since the informant could not be examined due to his death | the prosecution case should not be accepted. The submission is found to be without any merit. The Fardbeyan has been formally proved as Ext. 10 and the informant if he had been alive would have only been one more witness to depose on behalf of prosecution. It is well established in law that it is not the quantity but the quality of the evidence which is material. It has further been submitted that the post mortem reports show that one Dr. 10 and the informant if he had been alive would have only been one more witness to depose on behalf of prosecution. It is well established in law that it is not the quantity but the quality of the evidence which is material. It has further been submitted that the post mortem reports show that one Dr. J.C. Brahmo had also signed on the said reports which were prepared by Dr. B.M. Srivastava who is said to be dead and therefore non-examination of Dr. J.C. Brahmo should lead to adverse inference against the prosecution. The post mortem reports have been proved by P.W. 3, a compounder who has claimed to have worked with Dr. Srivastava and to be conversant wltn nils writing and signature.He has deposed that both the post mortem reports are under writing and signature of Dr. B.M. Srivastava who is dead. Merely because the signature of Dr. J.C. Brahmo appears in the post mortem reports, these reports in the handwriting and under the signature of Dr. B.M. Srivastava who is dead cannot loss their significance tor the purpose of corroborating the prosecution case. From the trend of cross-examination of witnesses in this case it is clear that there is no serious challenge to death of the two deceased on account of injuries due to firearm shots and due to Bhala injuries. In that view of the matter also it is found that non-examination of Dr. J.C. Brahmo cannot be of such a consequence so as to throw away the prosecution case. It is also submitted that P.W. 6, Ram Lakhan Singh was a co-sharer of the informant and therefore he should have been examined-in-chief for the purpose of supporting the prosecution case and should not have been merely tendered for cross- examination. The submission is devoid of any merit because once a witness has been tendered the defence cannot claim any prejudice. Further this witness is not named in the F.I.R. as a witness of the main occurrence. 20. The submission is devoid of any merit because once a witness has been tendered the defence cannot claim any prejudice. Further this witness is not named in the F.I.R. as a witness of the main occurrence. 20. It was submitted with some emphasis on behalf of the defence that the genesis of the occurrence has not been proved beyond reasonable doubt because there is no positive evidence that there were mangoes on the trees in the orchard of the informant or there were instruments for plucking those mangoes, instead the evidence is that the accused persons had gone to the orchard with weapons and therefore it cannot be accepted that they had gone to pluck mangoes. Although this argument appears attractive on its face value but it has no substance. The evidence of witnesses is clear and consistent and the circumstances also clearly show that the accused persons went to the orchard of the informant, the place of occurrence armed and fully prepared to claim their right of plucking mangoes and this intention of the accused persons has been fully described in simple words that they had gone for harvesting the mango crops. The genesis lies only in the fact that when the claim of the accused persons that they had right to harvest the mango crop was resist, the alleged occurrence took place. There is no merit in the submission that the real genesis of the occurrence was suppressed, because there is no counter case nor any good suggestion as to why the real genesis would be suppressed. It is not in dispute that two sons of the informant, were killed at the place of occurrence at about the time and date alleged by the prosecution. 21. It has been submitted on behalf of the defence that the manner of the occurrence i.e. injuries by firing and assault by Bhalas is not free from doubt because the gun seized was examined in the Forensic Science Laboratory, Patna and was found to be jammed as per report (Ext. 15). The report regarding the gun clearly shows that the gun was examined much later in November, 1976 when it is a public knowledge that in 1975 Patna town had suffered serious flood and the condition of the gun described in the report suggests that the material Ext. I, the gun had also suffered due to the flood. 15). The report regarding the gun clearly shows that the gun was examined much later in November, 1976 when it is a public knowledge that in 1975 Patna town had suffered serious flood and the condition of the gun described in the report suggests that the material Ext. I, the gun had also suffered due to the flood. Hence the report of Forensic Science Laboratory cannot be of any help to the defence and on the basis of other evidence it has to be held that in the occurrence shots were fired at the two deceased by a gun and a D.B.B.L. Gun was seized from the house of one of the accused on the date of occurrence itself and from that house as many as 8 of the accused persons were arrested. The alleged contradictions between the nature of the injuries found in the post mortem report and the manner of occurrence given by the prosecution are also found to be without substance. The two injuries appearing to be incised wound on the body of Prabhunath Singh as per Ext. 5 could easily have been caused by Bhala which has two sharp edges besides a pointed end. Injury No. VI by a firearms on deceased Prabhunath is shown to have contused and blackened margin. No doubt this injury appears to be by a shot from a close range and the distance between the deceased and the accused persons as given by the witnesses, prima facie, creates a doubt because this injury could not have been possible from a distance of 35-40 yards as given by P.W. 4 or 60 yards as given by P.W. 2. However, on looking at the entire occurrence as disclosed by the witnesses it is clear that initially there was exchange of hot words between the two parties and in order to register their protest the prosecution party must have gone close to the accused persons. The attention of the witnesses present in the nearby fields who were engaged in their own affairs could not have been of such a nature so as to correctly see the distance between Thakur Ojha who fired the shots and the two deceased at the relevant time when the deceased persons received injuries. The attention of the witnesses present in the nearby fields who were engaged in their own affairs could not have been of such a nature so as to correctly see the distance between Thakur Ojha who fired the shots and the two deceased at the relevant time when the deceased persons received injuries. Hence, on the basis of one of the firearm injuries on Prabhu being from a close range it is not just and proper to reject the prosecution case. The injuries found on the two deceased support the prosecution case with respect to the weapons as well as the manner of occurrence. Ext. 5 shows that deceased Prabhunath had received 2 firearm injuries and 4 injuries were by sharp pointed cutting weapon. Death was a result of such injuries. Extensive ecchomosis on the right side of skin of back was also found. Ext. 5/1 shows that deceased Shambhunath had pillet injuries at several places a penetrating wound on the middle of right side of back, one corresponding rib was broken and an abrasion on the right knee. Death was caused due to the injuries. The autopsies started on 6.7.73 at 10.00 A.M. and according to the Doctor, time elapsed since death was more than 24 hours. 22. On behalf of appellant no. 2 of Cr. Appeal No. 344 of 2001, Bachcha Singh it has been submitted that on 29.1.82 at the time of recording the statement of Bachcha Singh under Sec. 313 Cr.P.C. the court has assessed his age to be 22 years and he has also given out his age as 22 years and therefore on the date of the alleged occurrence i.e. 5.7.73 this appellant was about 13 1/2 years of age and therefore he should be given protection of Provisions of Bihar Children Ordinance, 1973 (Bihar Ordinance No. 33/ 73) which was published in the Bihar Gazette on 8.4.1973 and was followed by successive Ordinances and ultimately repealed by Bihar Children Act, 1982 which was published in Bihar Gazette (Extraordinary) dated 15.12.1983. In respect of aforesaid plea of appellant Bachcha Singh that on the date of the alleged occurrence he was a child and therefore protected from trial by a regular criminal court alongwith other accused persons, it is relevant to note that at the time of the alleged occurrence Bihar Children Ordinance, 1973 had been promulgated. In respect of aforesaid plea of appellant Bachcha Singh that on the date of the alleged occurrence he was a child and therefore protected from trial by a regular criminal court alongwith other accused persons, it is relevant to note that at the time of the alleged occurrence Bihar Children Ordinance, 1973 had been promulgated. Under that Ordinance a child was defined to be a boy or a girl who has not attained 18 years of age. On facts it is clear that appellant Bachcha Singh was covered by definition of the terms "Child". The provisions of the aforesaid Ordinance clearly prohibited trial and conviction of a child by any regular court and only a Childrens Court could deal with a child delinquent. A child less than 14 years of age could not be awarded sentence of fine and could be sent to a special school only till he ceased to be a child i.e. till attainment of age of 18 years. However, sub-section (3) of Sec. 1 of the Ordinance No. 33 of 1973 provides that the Ordinance shall come into effect from the date which may be notified by the State Government through notification published in the official gazette and for different areas of the State different dates can be prescribed. No material has been placed before this court as to when the provisions of the Ordinance came into effect through publication of notification in the official gazette. However, the successor Act Bihar Children Act, 1982, by virtue of sub-section (3) of Sec. 1 of that Act came into force with immediate effect, i.e. with effect from 15.12.1983. Section 60 of the Bihar Children Act, 1982 saved any right, privilege, obligation or liability acquired, accrued or incurred under any previous law corresponding to provisions of this Act which shall stand repealed if it had come into force in any area before the date of coming into force of Bihar Children Act, 1982. Similar is the provisions in Sec. 63 of the Juvenile Justice Act, 1986 which succeeded Bihar Children Act, 1982. Similar is the provisions in Sec. 63 of the Juvenile Justice Act, 1986 which succeeded Bihar Children Act, 1982. The current corresponding legislation : The Juvenile Justice (Care and Protection of Children) Act, 2000 repealed the said Juvenile Justice Act, 1986 with effect from 1.4.2001 and Sec. 69(2) of this Act provides that anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act. 23. A discussion of the relevant provisions of the law as made above makes it clear that if on the date of occurrence i.e. 5.7.1973 Bihar Ordinance No. 33 of 1973 had been made effective by notification in the official gazette, the appellant Bachcha Singh being covered by the definition of the term Child under the said Ordinance would have acquired a right of being tried by a Children Court only as per provisions of the said Ordinance and his trial and conviction by a regular criminal court under the provisions of the Code of Criminal Procedure would be bad in law. Such right if shown to have been acquired on account of law enforced on the relevant date of occurrence would stand protected under the provisions of the successor Acts and according to well settled law such right of a juvenile in conflict with law can be claimed at any stage of the proceeding including at the appellate stage. 24. Now it has to be seen whether in absence of any notification showing enforcement of the Bihar Children Ordinance, 1973 on 5.7.1973, it is possible to give any relief to appellant Bachcha Singh. The Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006 has inserted a new Section 7-A laying down procedure to be followed when claim of juvenility is raised before any court. The Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006 has inserted a new Section 7-A laying down procedure to be followed when claim of juvenility is raised before any court. Section 7-A runs as follows: (1) "Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take-such evidence as may be necessary (but not an affidavit) as so to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." 25. A discussions of the relevant provisions of the law as made above makes it clear, that if on the date of occurrence i.e. 5.7.1973 if the Bihar Ordinance No. 33 of 1973 had been made effective by a notification in the official gazette, the appellant Bachcha Singh being covered by the definition of the term Child under the said Ordinance would have acquired a right of being tried by a Children Court only as per provisions of the said Ordinance and his trial and conviction by a regular Criminal Court under the provisions of the Code of Criminal Procedure would be bad in law. Such right if shown to have been acquired on account of law enforced on the relevant date of occurrence, would stand protected under the provisions of the successor Acts and according to well settled law such right of a juvenile in conflict, with law can be claimed at any stage of the proceeding including at the appellate stage. 26. Such right if shown to have been acquired on account of law enforced on the relevant date of occurrence, would stand protected under the provisions of the successor Acts and according to well settled law such right of a juvenile in conflict, with law can be claimed at any stage of the proceeding including at the appellate stage. 26. On a plain reading of proviso to sub-section (1) of Section 7-A of the Act it is clear that the effect of the Amendment Act is retrospective so as to cover even those juveniles who have ceased to be so on or before date of commencement of the Amendment Act and a claim of juvenility shall be recognised at any stage, even after final disposal of the case In view of aforesaid statutory provisions introduced through the Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006 the conviction of Bachcha Singh (appellant no. 2 of Cr. Appeal No. 344 of 2001) by a competent Criminal Court notwithstanding, the sentence passed against him by the trial court has to be set aside as in law it can have no effect. This court has already found Bachcha Singh to be a juvenile on the date of commission of the offence and hence notwithstanding his conviction, the sentence passed against appellant no. 2 of Cr. Appeal No. 344 of 2001, Bachcha Singh is set aside. His case is remitted and forwarded to the Board constituted to deal with juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 for the District of Saran so that the Board may pass an appropriate order in respect of appellant Bachcha Singh in accordance with law. 27. On a careful analysis of the prosecution evidence as well as the defence evidence it is found that the prosecution has been able to prove in this case not only the time and place of alleged occurrence which have not been seriously challenged but also the manner of the alleged occurrence. 27. On a careful analysis of the prosecution evidence as well as the defence evidence it is found that the prosecution has been able to prove in this case not only the time and place of alleged occurrence which have not been seriously challenged but also the manner of the alleged occurrence. The identity of the accused persons has been fully established by the prosecution evidence and it is clear that all the appellants had gone to the place of occurrence alongwith their respective arms as members of an unlawful assembly with a common object of asserting right of harvesting the mango crops in the orchard of the informant and were prepared for meeting any resistance with the help of arms carried by the accused persons. It was in furtherance of such common object that the two deceased were fired upon and further assaulted and due to injuries caused by such assault they died at the place of occurrence. In such circumstances, all the appellants are found to be guilty of the charges for which they have been convicted by the trial court. The sentences awarded to the appellants, except appellant Bachcha Singh also require no interference. The appeals of all others except Bachcha Singh are found to be without any merit. The appeals are accordingly dismissed. Appellants Akhilesh Ojha (Cr. Appeal No. 265/2001), Keshav Singh, Thakur Singh (Cr. Appeal No. 275 of 2001), Jitendra Singh (Cr. Appeal No. 280/2001) and Ram Pravesh Singh (Cr. Appeal No. 290 of 2001) appear to be on bail. Their bail bonds are cancelled and they are directed to be taken into custody forthwith so that they also may serve their remaining sentences in accordance with law. The appeal of Bachcha Singh (appellant no. 2 in Cr. Appeal No. 344 of 2001) is allowed in part only in respect of his sentence which is set aside. He shall be released forthwith from jail custody, if not required in connection with any other case. For purpose of sentence, his case is remitted to appropriate Board as observed earlier.