JUDGMENT: Mrs. Poonam Srivastav, J. Heard Sri Satish Trivedi, Senior Advocate, assisted by Sri Ajay Kumar Pandey, learned counsel for the appellants and learned A.G.A. for the State. The two appeals arise out of a common judgment passed by the IIIrd Additional Session Judge, Jaunpur in Sessions Trial No. 172 of 1978. Five accused namely Vivek, Surendra and Udai Pratap including the present two appellants Vijai Kumar and Vinod Kumar were sent up for trial. One more accused namely Bachanu is absconding. Three accused namely Vivek, Surendra and Udai Pratap have been acquitted by the court below. Present two appellants have been convicted under Section 304/149 I.P.C. and sentenced to three years R.I., under Section 324/149 I.P.C. and sentenced to one year R.I., under Section 323/149 I.P.C. and six months R.I. and under Section 148 I.P.C. one year R.I. All the sentences are directed to run concurrently. 2. One person namely Kripa Shanker died in the incident and two persons are said to have received injuries. Mithai Lal PW-4 and Anand Kumar. The incident is alleged to have taken place on 9.8.1976 at 8.00 P.M. in Mohalla Husainabad, Police Station Kotwali, District Jaunpur. The F.I.R. was registered on the same day at 21.45 P.M. by PW-2 Ramdas. According to Ex. Ka-1, the prosecution story is that on 9.8.1976 Kripa Shanker deceased, brother of the first informant along with six other friends namely Mithai, Anand Kumar, Lal Bahadur of Mohalla Minapur and Ram Chander, Satish Kumar of Mohalla Qadam Rasol were going for a dinner at the house of one Baburam Yadav situated in Mohalla Mianpur. They were going at about 8.00 P.M. when the incident took place. It is alleged that during the day time at about 2.30 P.M. some quarrel had taken place between Mithai PW-4 and accused Vijay Kumar regarding demand of money on the shop of Chandra Shekhar PW-6. The shop of Chandra Shekhar is situated on the main road near the Court. On the date and time of occurrence, while injured along with deceased were going for dinner, no sooner had they arrived a few steps ahead of the State Bank, in front of the house of Sri Jaintri Prasad, the accused namely Vijay Kumar, Vinod, Vivek, Bachanu (absconder) and two unknown persons came out from the hiding. They were armed with knives and hockey-sticks. They were armed with knives and hockey-sticks. They surrounded deceased Kripa Shanker, Mithai, Anand Kumar and others and assaulted them. Witness Kamla Yadav, Rampati, Ram Kumar and a number of other persons reached on the spot hearing alarm. Accused Vijai Kumar is alleged to have caused knife blow on the chest of Kripa Shanker who fell down on the spot and became unconscious. The accused Vijai Kumar and Vinod are further alleged to have attacked with their knives on Anand Kumar and Mithai. The first informant Ramdas is also said to have reached on the spot hearing shouts and when the witnesses challenged, the accused ran away. Kripa Shanker while going to the hospital died on the way. 3. The post mortem examination was conducted by Dr. R.P. Rastogi PW-3 on 10.8.1976 at 2.25 P.M. The following ante mortem injuries were found on the person of the deceased vide post mortem report Ex. Ka-2. 1.Incised punctured wound 3 cm x 1.3 cm x chest cavity deep on the left side of chest, oblique both margins clean cut, directed downward and inward. 5.7 cm inner and above to the left nipple at 10 O' clock position. 2.Contusion abraded 4 cm x 1 ½ cm top of left shoulder. 3.Contusion and swelling 10 cm. x 6 cm. left face cheek. The injured persons Anand Kumar and Mithai were medically examined by Dr. S. Alam in the same night between 12 and 2.45 A.M. Their injury reports Ex. Ka-9 and Ka-10 are proved by Pharmacist Ranjeet Singh PW-8. The following injuries were found on the person of Anand Kumar vide injury report Ex. Ka-9. 1.Incised wound 3 cm. x 0.5 cm x bone deep and bone cut on the middle part of the left clavicle, oozing present, advised X-ray margin sharp and angle triangular, complaint of pain on the right side waist. The injury kept under observation, advised X-ray left clavicle caused by sharp weapon, fresh in nature. The following injuries were found on the person of Mithai Lal vide injury report Ex. Ka-10. 1.Lacerated wound 2 cm. x 0.5 cm. on the top of skull oozing present, muscle deep. 2.Contusion 7 cm. x 2.5 cm. on the left scapular, reddish in colour. 3.Contusion 7.5 cm x 2 cm. 10 cm. below injury no. 2. 4.Contusion 7 cm. x 1.5 cm. on the right side back 12.5 cm. Ka-10. 1.Lacerated wound 2 cm. x 0.5 cm. on the top of skull oozing present, muscle deep. 2.Contusion 7 cm. x 2.5 cm. on the left scapular, reddish in colour. 3.Contusion 7.5 cm x 2 cm. 10 cm. below injury no. 2. 4.Contusion 7 cm. x 1.5 cm. on the right side back 12.5 cm. below, right scapula, reddish in colour. 4. The investigation was taken up by PW-9 the then S.O. Dina Nath Misra. He interrogated witnesses Ramdas and Mithai Lal at the police station. Mithai was sent through constable Dhirendra Pratap Singh to Civil Hospital for medical examination. The I.O. then reached the Civil Hospital. He could not prepare the inquest report of the dead body of Kripa Shanker in the night instead he reached on the spot. 5. The prosecution examined ten witnesses. PW-1 Anand Kumar is an injured eye witness. He narrated about the incident as mentioned above. PW-2 Ramdas is the first informant and eye witness. PW-4 Mithai Lal is an injured eye witness. PW-5 Lal Bahadur is another eye witness. PW-6 Chandra Shekhar is a witness who deposed about the quarrel which took place at 2.30 P.M. during the day between Vijai Kumar, Kripa Shanker and Mithai Lal, in which Kripa Shanker had intervened. PW-3 Dr. R.P. Rastogi had conducted the post mortem examination of the dead body of Kripa Shanker. PW-7 Bansh Narain Chaubey is the Head Constable who had prepared the chik F.I.R. Ex. Ka-7 and made entries in the G.D. Ex. Ka-8. PW-8 Ramjeet is the Pharmacist who proved the injury reports of Anand Kumar and Mithai Lal prepared by Dr. S. Alam who was abroad and was not available. PW-9 Dina Nath Misra is the Investigating Officer who gave out the details of the investigation. PW-10 Ram Bali Singh, S.I. had submitted the addition charge sheet against Udai Pratap and Surendra accused. The additional charge sheet was not available on record. Injured Anand Kumar was not examined. 6. Learned Session Judge framed charge under Sections 147, 148, 302/149, 324/149 and 323/149 I.P.C. Learned Session Judge did not record conviction under Section 302 I.P.C. but under Section 304 Part I I.P.C. The first argument of Sri Satish Trivedi, Senior Advocate is that injuries of Anand Kumar were not proved. Injured Anand Kumar was not examined. 6. Learned Session Judge framed charge under Sections 147, 148, 302/149, 324/149 and 323/149 I.P.C. Learned Session Judge did not record conviction under Section 302 I.P.C. but under Section 304 Part I I.P.C. The first argument of Sri Satish Trivedi, Senior Advocate is that injuries of Anand Kumar were not proved. Besides, on the same evidence three accused have been given a clear acquittal and, therefore, conviction under Sections 304, 324 and 323 I.P.C. with the aid of Section 149 I.P.C. cannot be maintained and upheld. Conviction under Section 148 I.P.C. can also not be maintained. No charge was framed under Section 34 I.P.C. and it is also submitted that the appellant Vijai Kumar who is alleged to have given fatal blow which resulted in death of Kripa Shanker is juvenile within the meaning of Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in the year 2006. So far Vinod Kumar is concerned, he has caused only simple injury and they had already served out a sentence of 2 ½ months. The contention of Sri Satish Trivedi is that according to High School Certificate, age of Vijai Kumar was 17 years, four months, seven days on the date of occurrence. An affidavit has been filed along with copy of High School Certificate as well as Identity Card of Bar Council of U.P. to substantiate his date of birth. 7. Learned counsel has laid emphasis and submitted that it is to be noted that sub Section of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) was amended by Section 4 of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 and it was contemplated that juvenile means who is alleged to have committed an offence and had not completed 18 years of age as on the date of commission of such offence. Emphasis was laid on the special provision in respect of pending cases as provided under Section 20 of the Act which was made effective retrospectively after the amendment in the year 2006. The contention of Sri Satish Trivedi is that the ratio laid down in Pratap Singh Vs. State of Jharkhand, 2005 SCC (Cri) 742 is now not a good law. The latest decision of the Apex Court; Balu alias Bakthvatchalu Vs. The contention of Sri Satish Trivedi is that the ratio laid down in Pratap Singh Vs. State of Jharkhand, 2005 SCC (Cri) 742 is now not a good law. The latest decision of the Apex Court; Balu alias Bakthvatchalu Vs. State of Tamil Nadu, (2009) 2 Supreme Court Cases (Cri), 829. Section 20 of the Act along with Explanation which has been added subsequent to the Amending Act, 2006 is quoted below:- "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. [Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation:- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed]. Inserted by Act 33 of 2006." 8. In the case of Pratap Singh (supra) the Constitution Bench while interpreting the consequences of cases pending since before the time or when the Act of 1986 was applicable, after the Act of 2000 was enacted and the proceedings continued to be pending, the consequence and the effect of Section 20 of the Act was considered. In the case of Pratap Singh (supra) the Constitution Bench while interpreting the consequences of cases pending since before the time or when the Act of 1986 was applicable, after the Act of 2000 was enacted and the proceedings continued to be pending, the consequence and the effect of Section 20 of the Act was considered. The Apex Court held that the relevant date on which the age has to be calculated of a juvenile is 1.4.2001 which is the actual date when the Act of 2000 was made applicable in the pending proceeding in any court of law or authority as well. It is, therefore, concluded in Pratap Singh's Case that an accused below the age of 18 years as on 1.4.2001 for attracting the provisions of Section 20 of the Act, the essential requirement to be established is that: (i) on the date of coming into force the proceedings in which the petitioner was accused, were pending; and (ii) on that day he was below the age of 18 years. Thus the Apex Court was of the view that the protection granted to a juvenile can be extended but this extension is only to a limited extent. 9. Sri Satish Trivedi has argued that at the time when the judgment was delivered in Pratap Singh' s case, Amending Act 2006 had neither come into force nor was considered, therefore, the interpretation given in Balu's case (supra) coupled with Section 7A of the Amending Act, 2006 is liable to be taken into consideration. A decision of Gujrat High Court has also been relied upon by Sri Satish Trivedi, Senior Advocate; Gaurav Pradip Verma Vs. State of Gujrat, 2008 Crl. L.J., 4009. It was held that the provisions of sub section 20 and Section (2) (1) of the Amending Act is to be made applicable in a pending appeal inasmuch as appeal is a continuous proceeding and therefore, the accused should be accorded benefit of the Amended Act. 10. I have perused the judgment of Gujrat High Court. Paragraphs 11 and 12 of the said judgment are quoted below:- 11. The next question we are required to consider is whether the matter should be referred to the juvenile Court or not. 10. I have perused the judgment of Gujrat High Court. Paragraphs 11 and 12 of the said judgment are quoted below:- 11. The next question we are required to consider is whether the matter should be referred to the juvenile Court or not. In this regard, we are of the considered opinion that, as held in the case of Upendra Kumar (supra) after a long time of about 17 years, it would not be appropriate to refer the Appellant to the Juvenile Board. Therefore, the conviction is required to be sustained, but the sentence is required to be quashed. 12. In the premises aforesaid, we sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Session and at the same time the sentence awarded to the appellant is quashed. The appeal is allowed to the aforesaid extent. 11. In the instant case, admittedly the period lapsed is much more than 17 years i.e. almost 30 years i.e. double the period as in the case of Gaurav Pradip Verma. This alone cannot exempt the accused on the ground of his being less than 18 years at the time of commission of offence. The incident took place on 9.8.1976 when the U.P. Children Act, 1951 was applicable. The Juvenile Justice Act, 1986 was also not applicable after the age of juvenile was enhanced. Besides, the appellants have already been in jail for some period and they are practising advocates which stands substantiated from the affidavit filed and bringing on record their registration certificates and enrolment number. I am not inclined to grant the benefit of the accused being less than eighteen years on the date of occurrence. I do not agree with the submission of the learned counsel. I have also heard the arguments on merits. Since I am not inclined to allow the appeal only because the accused was approximately 17 ½ years of age on the date of occurrence i.e. 9th August, 1976. I proceed to decide the appeal on merits. 12. The submission of the learned counsel is that five persons were sent up for trial and charge was framed under Sections 304, 324, 323 I.P.C. with the aid of Section 149 I.P.C. and also under Section 148 I.P.C., the conviction of the present appellants cannot be maintained. I proceed to decide the appeal on merits. 12. The submission of the learned counsel is that five persons were sent up for trial and charge was framed under Sections 304, 324, 323 I.P.C. with the aid of Section 149 I.P.C. and also under Section 148 I.P.C., the conviction of the present appellants cannot be maintained. Since three accused were given a clear acquittal, it is difficult to accept that conviction by the learned Session Judge with the aid of Section 149 I.P.C. i.e. by forming an unlawful assembly can be upheld. Unlawful assembly is defined in Section 141 I.P.C. Basic requirement is that five or more persons have a common object to commit a criminal act. Since they are only two accused who have been convicted and the co-accused alleged to constitute an unlawful assembly are acquitted, it is evident that participation of the three accused acquitted stands negated. Thus conviction with the aid of Section 149 I.P.C. cannot be upheld. Charge framed was under Sections 304/324/323 I.P.C. with the aid of Section 149/148 I.P.C. 13. In the case of Allauddin Mian and others, Sharif Mian and another Vs. State of Bihar, AIR 1989 Supreme Court, 1456, the Apex Court held while elucidating the provisions of Section 149 I.P.C. that since this Section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. There must be a nexus between the common object and the offence committed and conviction with the aid of Section 149 I.P.C. can only be upheld if it is found and established that the same was committed to accomplish a common object, each member will be held liable for the criminal act. In the instant case the Session Judge framed charge under Sections 147/148 and 149 I.P.C., thus an unlawful assembly was constituted. Three accused having been acquitted the only conclusion will be that the existence of unlawful assembly was disbelieved and, therefore, the entire prosecution case falls apart. 14. In the circumstances, the appeals are allowed. The judgment and order dated 30.4.1981 passed by the IIIrd Additional Session Judge, Jaunpur in Session Trial No. 172 of 1978 is set aside. The appellants are acquitted. The appellants need not surrender.