Judgment :- Common Judgment: (K.C. Bhanu, J.) 1. These Criminal Appeals are preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.) challenging the convictions and sentences recorded in judgment dated 21.6.2005 in Sessions Case No.458 of 2005 on the file of the I Additional Metropolitan Sessions Judge, Hyderabad. Originally, A.1 and A.2 filed Criminal Appeal No. 1133 of 2006, represented by State Brief. Thereafter, A1 preferred separate appeal in Criminal Appeal No.13 of 2007. 2. The learned Sessions Judge convicted A.1 of the offence under Section 302 Indian Penal Code (for short, ‘the I.P.C.’) and sentenced to undergo imprisonment for life and to pay fine of Rs.100/- in default to suffer rigorous imprisonment for one month; and A.2 of the offence under Section 302 read with 34 I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.100/- in default to suffer rigorous imprisonment for one month. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: P.Ws. 1 and 3 are friends of the Saikumar (hereinafter referred to as ‘the deceased’) and the accused, as rag pickers. P.W.1 is native of Sadam village, Chittoor district. P.W.1, the deceased and the accused used to sleep on the foot path at Liberty, Himayatnagar. Prior to the date of incident, A.1 sold one Radio to the deceased for Rs.50/-. There was dispute between the deceased and the accused regarding payment of Rs.50/-. Then, P.Ws. 1 and 3 pacified the matter. On the intervening night of 10/11.05.2005, P.W.1, the deceased and the accused slept on the foot path. At about 3.00 AM, A.2 sat on the chest of the deceased and A.1 beat the deceased with granite stone on his head. On hearing the cries of the deceased, P.W.1 woke up and saw the incident. On seeing the incident, P.W.1 ran away due to fear. After some time, he returned back to the scene of offence and saw the dead body of the deceased. Then, he went to police station and informed the incident to the police. On 11.05.2005 at about 8.00 AM, P.W.4 found one person lying fully covered with plastic bag. Then, P.W.4 went there and moved the body and asked him to get up. But, the person did not get up. Then, he went to police station and informed the incident to the police. On 11.05.2005 at about 8.00 AM, P.W.4 found one person lying fully covered with plastic bag. Then, P.W.4 went there and moved the body and asked him to get up. But, the person did not get up. P.W.2, a road sweeper, told him that the person was lying on the road from early morning. Then, P.W.4 suspected and called police. At about 9.30 AM, P.W.11-Inspector of Police, received phone call from P.W.4, made G.D. entry and visited the scene of offence. While P.W.11 was making enquiries for identification of the dead body, P.W.1 came and identified the deceased. Then, P.W.11 recorded Ex.P1-statement of P.W.1 and on the basis of Ex.P1, P.W.10-Sub Inspector of Police registered case in crime no.169/2005 under Section 302 I.P.C. and issued Ex.P12-F.I.R. Thereafter, P.W.11 took up investigation, prepared scene of observation report, drew rough sketch and collected blood stains from the scene of offence through cotton swab in the presence of P.W.6 and another. P.W.11 got photographed the scene of offence and the dead body, through P.W.5, and recorded statements of P.Ws.1 to 4. P.W.11 held inquest on the dead body of the deceased in the presence of P.W.6 and others, under Ex.P6-report. At about 3.00 PM, P.W.10 apprehended the accused at Domalaguda and brought to police station. Thereafter, P.W.11 effected the arrest of the accused and at the instance of the accused, he recovered M.O.1-stone and M.O.5-blood stained shirt. On 12.05.2005, P.W.7, tutor in Forensic Science Department, conducted autopsy over the dead body of the deceased under Ex.P7-post mortem report, and opined that cause of death was due to head injury. Thereafter, P.W.11 sent the material objects to Forensic Science Laboratory and received its report under Ex.P11. After completion of investigation and collecting required documents, P.W.11 laid the charge sheet. 4. The substance of charge framed against the accused is as follows. Thereafter, P.W.11 sent the material objects to Forensic Science Laboratory and received its report under Ex.P11. After completion of investigation and collecting required documents, P.W.11 laid the charge sheet. 4. The substance of charge framed against the accused is as follows. That, on 11.5.2005 in the early morning, in front of Color Times Photo Studio opposite to Dadu’s Sweet Shop, Himayat Nagar, A.1 and A.2, in furtherance of common intention, committed murder by intentionally causing the death of the deceased, by throwing a granite stone on his forehead by A.1 while A.2 caught hold of the deceased, and thereby committed an offence under Section 302 read with 34 I.P.C. When the charge was read over and explained to the accused, they pleaded not guilty, and claimed to be tried. 5. To substantiate its case, prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P12, besides case property M.Os. 1 to 5. No oral evidence was adduced on behalf the accused, but Ex.D1-marked portion in Section 161 Cr.P.C. statement of P.W.1, was marked. 6. Accepting the evidence of P.W.1, the trial Court found the appellants/A.1 and A.2 guilty of the offences under Sections 302 and 302 read with 34 I.P.C. respectively, and accordingly convicted and sentenced them as above. Challenging the same, the respective appeals are preferred by the accused. 7. The learned counsel appearing for the appellants contended that, except the solitary testimony of P.W.1, there is no other evidence; that, the evidence of P.W.1 cannot be put in the category of wholly reliable, in view of the fact that several discrepancies are pointed out in his evidence; that, P.W.1 was not sleeping along with the deceased at the scene of offence and so his presence itself is doubtful at the relevant point of time of the incident; that, there was no motive for the accused to commit the murder; that, there was no enmity between the accused and the deceased. It is further contended that A.1 was juvenile as on the date of incident and therefore sending him to jail is illegal. Hence, it is prayed to set aside the convictions and sentences. 8. It is further contended that A.1 was juvenile as on the date of incident and therefore sending him to jail is illegal. Hence, it is prayed to set aside the convictions and sentences. 8. On the other hand, the Additional Public Prosecutor appearing for the respondent/State contended that presence of P.W.1 at the time of the occurrence of the incident, is established; that there is no other reason for P.W.1 to implicate the accused falsely in a case of this nature, leaving the real assailants; that he set the criminal law into motion; that, considering the fact that the incident took place in the wee hours of the day, it is not expected from the prosecution to examine any other eye-witnesses; that, the trial Court, after an elaborate consideration of the evidence on record, rightly convicted and sentenced the appellants, and there are no grounds to interfere with the same. Hence, he prayed to dismiss the Criminal Appeals. 9. Now, the point for determination in these appeals is whether the prosecution is able to bring home the guilt of the appellants/A.1 and A.2 beyond reasonable doubt, and whether the convictions and sentences recorded by the trial Court are liable to be confirmed or set aside or modified ? 10. P.W.6 is one of the inquest mediators, who was present when P.W.11-investigating officer held inquest on the dead body of the deceased under Ex.P6-panchanama. The inquest mediators opined that the deceased died due to head injury. Except suggesting that P.W.6 was not present at the time of inquest, nothing has been elicited to discredit his testimony. Therefore, from the evidence of P.Ws.6 and 11 and the recitals in Ex.P6, it is established that the apparent cause of death of the deceased was due to head injury. 11. P.W.7 is the Doctor, who conducted autopsy on the dead body of the deceased on 12.5.2005, and found the following injuries. 1) A contused abrasion of 9 x 5 cm with two irregular laceration of 3 x 1 cm x bone deep and 4 x 2 cm x bone deep in the middle part of the forehead – Reddish brown; 2) A contused abrasion of 5 x 3 cm with a laceration of 2 x 1 x bone deep associated with fracture of the bridge of the nose on the nose- Reddish brown. 3) A contusion of 6 x 4 cm on the right buccal area – Bluish brown. 4) A contusion of 3 x 2 cm on the left buccal area- bluish brown colour. 5) Contusion under the scalp on reflexion of 32 x 30 cm on the entire vault of the skull. 6) An almost midline tissured fracture, of the occipital bone vertically placed extending into the ring of the foramen magnum. 7) Haemorrhage clots in the liquefied brain matter. He issued Ex.P7-post mortem certificate, and opined that the cause of death is due to head injury and those injuries were possible by multiple impacts with heavy objects. Nothing has been elicited to discredit the testimony of P.W.7. From the above, homicidal nature of death of deceased is established beyond reasonable doubt. 12. There is no dispute about the scene of occurrence. P.W.6 is one of the mediators, who was present when police observed the scene of occurrence under Ex.P4-panchanama. Similarly, P.W.11 had drawn rough sketch of scene of occurrence under Ex.P5. P.W.5 is the photographer, who took photographs of the dead body of the deceased. The photographs along with corresponding negatives, are marked as Ex.P3. The scene of occurrence is on the footpath in front of Color Times Photo Studio, Himayatnagar, Hyderabad. Police also seized bloodstains with the help of cotton. The scene of occurrence is not seriously disputed by the appellants. Now, it has to be seen whether the appellants are the assailants of the deceased or not. 13. The entire case of prosecution rests upon the solitary testimony of P.W.1. So long as the evidence of a single eye-witness is wholly reliable, there will not be any difficulty in basing a conviction on his testimony alone. However, where the evidence of single eye-witness is not found to be wholly reliable, in the sense that there are some circumstances which may show that he could have interest in the prosecution, then the Court has to look for independent corroboration of his testimony on material particulars, before recording conviction. It is not the quantity, but quality, that matters. 14. ‘Motive’ as canvassed by the prosecution is that, A.1 sold one Radio to the deceased Sai Kumar for Rs.50/- and the deceased promised to pay the amount on the next day, but he did not pay the said amount. It is not the quantity, but quality, that matters. 14. ‘Motive’ as canvassed by the prosecution is that, A.1 sold one Radio to the deceased Sai Kumar for Rs.50/- and the deceased promised to pay the amount on the next day, but he did not pay the said amount. In that regard, a quarrel ensued between A.1 and the deceased on the fateful date of the incident. No doubt, the motive, as projected by the prosecution, appears to be trivial in nature. But, the motive is not an integral part of crime. It is only an aid in assessment of criminality. Absence of motive or non-proof of motive, may not lead to a conclusion that the case of the prosecution has to be doubted. 15. It is not in dispute that P.W.1, A.1, A.2 and the deceased Sai Kumar were friends. It is in the evidence of P.W.1 that they were doing waste paper picking business and were in the habit of sleeping on foot path at Liberty, Himayatnagar, Hyderabad; that, on the early morning of 11.05.2005, it is alleged that A.2 sat on the chest of the deceased and A.1 beat the deceased with a granite stone on his head, that, P.W.1, who was sleeping along with the deceased, woke up and saw the incident after hearing the cries. It is suggested to P.W.1 that he had not witnessed the incident and that since the deceased was his friend, he was planted as an eye-witness to the incident. But, the same is denied by P.W.1. He stated in cross-examination that there was no quarrel took place before they went to sleep on that night; that, they slept at about 11.00 PM on 10.05.2005. It is in his evidence that after collecting waste papers, all of them used to assemble on the foot path at Liberty Talkies. So, in view of the fact that all these persons were friends, P.W.1 would not have implicated the accused falsely in a case of this nature, leaving the real assailants. He has no grouse or enmity against the appellants. Similarly, he has no interest in success of the case of prosecution. He also stated that he had acquaintance with the accused and the deceased, as all of them were doing same avocation of picking up papers, and used to sleep on foot path at Liberty during night times. He has no grouse or enmity against the appellants. Similarly, he has no interest in success of the case of prosecution. He also stated that he had acquaintance with the accused and the deceased, as all of them were doing same avocation of picking up papers, and used to sleep on foot path at Liberty during night times. Since P.W.1 was also doing the same avocation of the deceased and accused, there is every possibility of P.W.1 sleeping along with the deceased and accused at the relevant point of time of the incident and it is quite natural. So, his presence at the time of the incident can be said to be probable and convincing. Therefore, presence of P.W.1 at the time of the incident is established and the same cannot be doubted. 16. A perusal of Ex.P1 would go to show that on 10.05.2005 in night hours, while P.W.1 was sleeping on foot path at about 3.00 hours, he heard hue and cry and woke up from sleep and saw A.1 and A.2 quarrelling with the deceased; that, A.1 started beating the deceased with a stone on his head and face, while A.2 caught hold of the deceased by laying him on the ground, so that he could not move. The recitals in Ex.P1 are more or less completely in corroboration with the evidence of P.W.1. So, the evidence of P.W.1 is reliable and trustworthy. 17. There are some discrepancies in the evidence of P.W.1 with regard to manner of giving report to police. In chief-examination, he stated that at 11.00 AM on 11.05.2005, he went to police station and gave the report. But, in cross-examination, he admitted that he gave a statement to police at the scene of occurrence. But, as seen from the evidence of P.W.11-investigating officer, at about 9.30 AM on 11.05.2005, he received a telephone call from P.W.4 about the incident and immediately he made a G.D. entry and proceeded to the scene of occurrence; that, at the scene of occurrence, he recorded the statement of P.W.1 and sent the same to S.H.O. with a direction to register the case. The said report was received at 11.00 AM by P.W.10-Sub Inspector of Police, who registered the case. The said report was received at 11.00 AM by P.W.10-Sub Inspector of Police, who registered the case. Though there is discrepancy with regard to manner of giving the report, at the same time, since the witness was deposing about the incident after lapse of about one year, such a discrepancy cannot be given undue importance. 18. The contention of the learned counsel for the appellants is that if really P.W.1 is an eye-witness to the incident, he would have stated about the incident to P.W.3, but P.W.3 stated that P.W.1 informed him that the deceased Sai Kumar died and he never stated that P.W.1 informed him the names of the assailants of deceased. No doubt, for the reasons best known to him, P.W.3 did not support the case of prosecution and he was declared hostile. But, his evidence would go to show that there was a dispute between A.1 and the deceased with regard to payment of Rs.50/-. Because P.W.3 did not state that P.W.1 informed him the names of the assailants, that would not be a ground to discredit the testimony of P.W.1, when his evidence is consistent from the beginning till he testified in the Court. Some minor discrepancies or deviations or even improvements, would be bound to occur even in the case of a truthful witness, when he was made to depose about the occurrence after lapse of a long time. When those discrepancies or exaggerations do not go to the root of the prosecution case, undue importance cannot be given to them. The main fabric of the prosecution is unshattered, which reveals that A.1 and A.2 are the assailants of the deceased. 19. P.W.2 is only a sweeper, who used to sweep the roads. She found blood stains in front of Photo Studio. 20. P.W.4 is the person who informed P.W.11 about finding of the dead body in front of the Photo Studio. P.W.8 is one of the mediators present at the time of arrest of the accused and seizure of stone. As per the disclosure statement of A.1 and A.2, the M.O.1-stone allegedly used in commission of the offence, was recovered. Similarly, M.O.5-blood stained shirt of A.1 was also seized. When the material objects were sent to the Forensic Science Laboratory, terry cotton half sleeved shirt and another half sleeved shirt were found containing human blood. 21. As per the disclosure statement of A.1 and A.2, the M.O.1-stone allegedly used in commission of the offence, was recovered. Similarly, M.O.5-blood stained shirt of A.1 was also seized. When the material objects were sent to the Forensic Science Laboratory, terry cotton half sleeved shirt and another half sleeved shirt were found containing human blood. 21. From the above evidence, it is clear that A.1 caused the head injury to the deceased. Considering the nature of the injuries, the intention of A.1 was to kill the deceased. Though A.2 had no motive or grouse against the deceased, still his involvement is apparently clear. He sat on the deceased, thereby disabled the deceased from moving, as a result of which, A.1 beat the deceased with the stone. It is difficult for the prosecution to prove intention of the accused. But, the intention can be gathered from the circumstances of the case. It is clear from the above that A.2 firmly caught hold of the deceased by sitting on his body and thereafter A.1 beat the deceased, and both the accused ran away from the scene of occurrence, and that on the disclosure statement made by the accused, weapon of offence was seized. Therefore, the trial Court rightly placed reliance on the evidence of P.W.1 to base the conviction and found A.1 guilty of the offence under Section 302 I.P.C. and A.2 of the offence under Section 302 read with 34 I.P.C., and rightly convicted them of the said charges, and there are absolutely no grounds to interfere with the convictions recorded by the trial Court. 22. The next contention raised by the learned counsel for the appellant/A.1 is that A.1 is a juvenile within the meaning of 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and therefore sentencing him to undergo imprisonment for life in jail, is unsustainable. 22. The next contention raised by the learned counsel for the appellant/A.1 is that A.1 is a juvenile within the meaning of 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and therefore sentencing him to undergo imprisonment for life in jail, is unsustainable. The placed reliance on a decision in Upendra Kumar v. State of Bhiar (2005) 3 Supreme Court Cases 592) wherein it is held thus: “… It provides that notwithstanding anything containing in the Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which the Act came into force in that area shall be continued in that court as if the 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 the Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.” 23. But, from a perusal of the record, it is clear that such a plea has not been taken by A.1 in the Trial Court, and it was taken for the first time in this appeal. In view of the fact that the Juvenile Justice (Care and Protection of Children) Act, 2000 is a beneficial piece of legislation, this Court called for report of the learned I Additional Metropolitan Sessions Judge in this regard. The Sessions Judge referred A.1 to Department of Forensic Science Medicine, for giving opinion with regard to age of A.1. A.1 was examined on 23.07.2008 and it was opined that, on general, physical, dental and radiological examination, A.1 was aged about 20 years as on 23.7.2008. The Sessions Judge also examined mother of A.1, who testified that A.1 was aged about 20 years. But, she has not produced any other proof to show that A.1 was aged about 20 years. Further, the evidence of Doctor is only opinion evidence and it cannot be taken as a conclusive proof with regard to the age of A.1. The Sessions Judge also examined mother of A.1, who testified that A.1 was aged about 20 years. But, she has not produced any other proof to show that A.1 was aged about 20 years. Further, the evidence of Doctor is only opinion evidence and it cannot be taken as a conclusive proof with regard to the age of A.1. Even if a margin of two years on either side is taken to the opinion age given by the Doctor, A.1 may be aged about 15 years or 19 years, as on the date of the incident. Therefore, when the appellant/A.1 failed to show that he was aged less than 18 years of age, as on the date of the incident i.e. 11.05.2005, it cannot be said that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, would apply to him. 24. Another contention raised by the learned counsel for the appellant/A.1 is that since A.1 was less than 21 years of age as on the date of the incident, even according to the case of prosecution, he should not have been sent to prison, but he should have been to Borstal School. In support of his contention, he relied on a decision in B. Shankaramma & another v. Government of A.P. rep. by its Secretary, Home Department & another ( 1993 (1) ALT 130 ) wherein a learned single Judge of this Court held thus: “Having set aside the impugned G.O., what could be the relief that the 2nd petitioner is entitled to in the circumstances where hardly three and half months period is left for his completing 23 years of age from now. No doubt, Section 10 of the Act empowers the Inspector-General to transfer adolescent prisoners to borstal schools and, therefore, normally courts should, at the most, direct the Inspector General of Police to consider the request of the adolescent prisoner to transfer him to borstal school….” 25. In view of the fact that A.1 was admittedly less than 21 years of age as on the date of conviction, we direct the Inspector General of Police (Prisons) to consider the case of A.1 herein, to send him to Borstal School under Section 10 of the Borstal Schools Act, 1925, and the case of the appellant/A.1 shall be dealt with in accordance with the provisions of the Borstal Schools Act, 1925, with regard to sentence. 26. In the result, the convictions and sentences recorded against the appellants/A.1 and A.2 in the judgment dated 21.06.2005 in Sessions Case No.458 of 2005 on the file of the I Additional Metropolitan Sessions Judge, Hyderabad, are confirmed. But, in case of appellant/A.1, we direct the Inspector General of Police (Prisons) to consider his case, to send him to Borstal School under Section 10 of the Borstal Schools Act, 1925, and the case of the appellant/A.1 shall be dealt with in accordance with the provisions of the Borstal Schools Act, 1925, with regard to sentence. 27. With the above observations, the Criminal Appeals are dismissed.