JUDGMENT 1. The challenge in this appeal is to the judgment and order dated 11/9/1998 in Sessions Case No. 44/1998 by the Ld. Addl. Sessions Judge, Vadodara, recording conviction of the appellant, who was original accused no. 2 in the aforesaid Sessions Case for the commission of the offences punishable under sections 302 and 323 of the Indian Penal Code [for short 'IPC'] and the appellant was sentenced to undergo rigorous imprisonment [RI] for life and fine of Rs.10,000/- and in default of payment of fine, imprisonment for 6 months for the offence punishable under section 302 of the IPC and simple imprisonment [SI] for 3 months and fine of Rs.500/- and in default of payment of fine, imprisonment for 15 days for the offence punishable under section 323 of the IPC. Both the substantive sentences of imprisonment were ordered to run concurrently. 2. The prosecution case, as unfolded in the FIR and during trial, is that one Samir Mukimbhai Pathan lodged FIR before the Police Inspector, Gorva Police Station, Vadodara, on 16/10/1997 to the effect that he was doing colour work in the garage of Ganibhai [deceased]. On 16/10/1997 at about 9.00 a.m. the first informant Samir came to the garage to attend to his duty. Other workers were also present in the garage. At about 11.45 a.m. first informant Samir and one Asarafkhan Nasimkhan went to the tea stall of one Rasidbhai situated in front of their garage. At the relevant time, tea vendor Rasidbhai was not present but one person was standing near the stall and, therefore, Asarafkhan demanded tea from him and tea was given. Thereafter, Asarafkhan demanded water from that man and that man became violent and uttered threatening language. That man slept Asarafkhan. Thereupon, Asarafkhan told that man that he was serving in the garage of Ganibhai and, therefore, that person caught hold of Asarafkhan and dragged him to garage of Ganibhai. Ganibhai intervened and separated them. Thereafter, said person went away. It is the prosecution case that said person, who abused Asarafkhan and slept him, was appellant accused no. 2 - Ruhe alias Mithu Abdul Diwan. It is further the prosecution case that thereafter, at about 12.45 noon the appellant - accused no. 2 Ruhe alias Mithu along with original accused no. 1 - Rafik Abdul Diwan came to the garage of Abdul Ganibhai. Abdul Ganibhai was abused by both the accused. 2 - Ruhe alias Mithu Abdul Diwan. It is further the prosecution case that thereafter, at about 12.45 noon the appellant - accused no. 2 Ruhe alias Mithu along with original accused no. 1 - Rafik Abdul Diwan came to the garage of Abdul Ganibhai. Abdul Ganibhai was abused by both the accused. The appellant original accused no. 2 Ruhe alias Mithu took out a dagger and inflicted a blow with dagger on the left side chest of Abdul Ganibhai. It is the prosecution case that the appellant accused committed the act at the instigation of original accused no. 1 - Rafik Abdul Diwan. Upon hearing the shout of quarrel, both the accused made their escape good. Abdul Ganibhai was seriously injured and he was removed to hospital and he succumbed to his injuries. 3. The FIR lodged by the first informant Samir Mukimbhai Pathan was registered and investigation was commenced. During the course of investigation, statements of material witnesses were recorded. P M Report of the deceased was collected. Muddamal weapon dagger and its cover came to be recovered. Necessary panchnamas were drawn in presence of panchas. After the investigation was concluded, charge-sheet was filed in the Court of Ld. Chief Judicial Magistrate, Vadodara. Since the offence punishable under section 302 of the IPC is exclusively triable by the Court of Sessions, Ld. Chief Judicial Magistrate committed the case to the Court of Sessions at Vadodara, which is numbered as Sessions Case No. 44 of 1998 and the same was made over for trial to the Court of Ld. Addl. Sessions Judge, Vadodara ['trial Court' for short]. 4. The trial Court framed charge against both the accused at exh. 2, to which they did not plead guilty and claimed to be tried. Thereupon, prosecution adduced its oral and documentary evidence. The prosecution examined 11 witnesses and produced necessary documentary evidence. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statements of both the accused including the appellant under section 313 of the Criminal Procedure Code [for short 'Cr. P.C.'] and the accused in their further statements denied generally all the incriminating circumstances put to them by the trial Court and stated that they were wrongly implicated in this case. None of the accused adduced any oral evidence or examined any witness. 4.1. P.C.'] and the accused in their further statements denied generally all the incriminating circumstances put to them by the trial Court and stated that they were wrongly implicated in this case. None of the accused adduced any oral evidence or examined any witness. 4.1. Appreciating, analyzing and scrutinizing the oral and documentary evidence on record and considering submissions made on behalf of both the sides, the trial Court came to the conclusion that so far as appellant original accused no.2 Ruhe alias Mithu is concerned, the prosecution successfully proved its case beyond any reasonable doubt and his involvement in the offence and his participation was proved by the prosecution. Consequently, the trial Court recorded conviction of the appellant for the commission of offence punishable under sections 302 and 323 of the IPC and awarded the sentence as hereinabove referred to in this judgment. However, the trial Court recorded acquittal of co-accused [original accused no. 1] Rafik Abdul Diwan. We are told that the State has not challenged the acquittal or original accused no. 1 Rafik by preferring any acquittal appeal under section 378 of the Cr. P.C. 5. During the pendency of this appeal, the appellant preferred Misc. Criminal Application No. 7934 of 2008 inter-alia stating that at the time when the alleged incident took place, he was aged about 17 years i.e. he had not completed 18 years of his age. In said application preferred under section 391 of the Cr. P.C., the appellant requested to record additional evidence regarding his age. Said application came to be disposed of by coordinate bench of this Court vide order dated 1/7/2008 and the application was allowed, however, the concerned trial Court was directed to undertake the exercise of recording evidence for the ascertainment of the age of the appellant at the time of the incident and the trial Court was directed to send a report to this Court along with the record and proceedings and the evidence that it may have been recorded in this context. Pursuant to said order, the trial Court recorded additional evidence and the trial Court recorded the evidence of father of the appellant, named Abdulmadar Mohamadshah Diwan, principal of Shantilal Pragjibhai Shroff Primary School No. 1, Padra, named Raysingbhai Parmar and Hazrabibi Abdulmadar Diwan, the mother of the appellant. Pursuant to said order, the trial Court recorded additional evidence and the trial Court recorded the evidence of father of the appellant, named Abdulmadar Mohamadshah Diwan, principal of Shantilal Pragjibhai Shroff Primary School No. 1, Padra, named Raysingbhai Parmar and Hazrabibi Abdulmadar Diwan, the mother of the appellant. During the course of oral evidence, necessary documentary evidence regarding school leaving certificate of the appellant showing his date of birth as well as birth certificates of brothers of the appellant were produced. No oral evidence came to be adduced by the State. The entire bunch of oral and documentary evidence recorded by the trial Court pursuant to the order of this Court dated 1/7/2008 came to be forwarded to this Court by Ld. Sessions Judge, Vadodara, vide letter dated 1/9/2008. 6. We have heard the submissions of learned advocate Mr. H.N. Joshi for M/s. Thakkar Associates for the appellant and Mr. L B Dabhi, Ld. APP representing the respondent - State. 7. Mr. Joshi, Ld. Advocate representing the appellant accused submitted that the appellant does not dispute his conviction recorded by the trial Court for the offences punishable under sections 302 and 323 of the IPC and the impugned judgment recording his conviction is not therefore, disputed. However, relying upon the additional evidence collected by the trial Court pursuant to the order of this Court, Mr. Joshi submitted that the evidence clearly reveals that the date of birth of the appellant is 20/9/1980 and the incident occurred on 16/10/1997, meaning thereby, on the date of the incident, the appellant was aged 17 years, 1 month and 26 days. It is, therefore, submitted that since he was less than 18 years of age, he was “juvenile” as defined in section 2 [k] of the Juvenile Justice [Care and Protection of Children] Act, 2000 [for short 'the Act']. 7.1. Mr. Joshi, Ld. Advocate for the appellant submitted that since the appellant was juvenile as defined under the Act and that on 11/9/1998 when the trial Court recorded his conviction and awarded the sentence, he no longer continued to be juvenile and, therefore, sentence should not have been awarded by the trial Court. It is further submitted that at present the appellant is aged about 30 years and, therefore, the sentence imposed against the appellant would be liable to be set aside. 7.2. Mr. Joshi, Ld. It is further submitted that at present the appellant is aged about 30 years and, therefore, the sentence imposed against the appellant would be liable to be set aside. 7.2. Mr. Joshi, Ld. Advocate for the appellant placed reliance upon the following decisions : (i) Gopinath Ghosh v. State of West Bengal reported in 1984 [Suppl.] S.C.C. 228 (ii) Jyoti Sankar v. State reported in 1995 Criminal Law Journal 3048 [Orissa] (iii) Bhola Bhagat v. State of Bihar reported in [1997] 8 S.C.C. 720, (iv) Nanlabhai Kukabhai Rathva v. State of Gujarat reported in 2005 [1] GLH 611 (v) Upendra Kumar v. State of Bihar reported in [2005] [Criminal] S.C.C. 778 (vi) Gurpreet Singh v. State of Punjab reported in [2005] 12 S.C.C. 615 (vii) Amarsinh @ Dipsinh Sursinh v. State of Gujarat reported in 2007 [2] GLH p. 1 (viii) Dharambir v. State [NCT of Delhi] reported in [2010] 5 S.C.C. 344. 7.3. Relying upon those authorities, Mr. Joshi, Ld. Advocate for the appellant submitted that the order of sentence rendered by the trial Court deserves to be set aside. 8. Per contra, Mr. L.B. Dabhi, Ld. APP representing the respondent - State submitted that the appellant, through the trial, did not utter a word to the effect that on the day of the incident he was aged about 17 years. It is submitted that considering the statement recorded by the trial Court of the appellant, he disclosed his age as 22 years. It is, therefore, submitted that the very fact that now the appellant comes forward with the case that at the time of the incident, he was juvenile is nothing but an after thought and the said defence is raised only with a view to avoid the sentence awarded to him by the trial Court. 8.1. Mr. Dabhi, Ld. APP, considering the additional evidence recorded by the trial Court, stated that the appellant merely relies upon his school leaving certificate to prove his date of birth, but his birth registration certificate and other authenticate evidence showing his date of birth is not produced. It is, therefore, submitted that no reliance should be placed upon the school leaving certificate. 8.2. In the above context, it is submitted that the appeal may be dismissed. 9. At the outset, as submitted by Mr. Joshi, Ld. It is, therefore, submitted that no reliance should be placed upon the school leaving certificate. 8.2. In the above context, it is submitted that the appeal may be dismissed. 9. At the outset, as submitted by Mr. Joshi, Ld. Advocate for the appellant that the conviction recorded by the trial Court is not challenged, it will not be necessary for this Court to re-appreciate, re-examine and re-scrutinize the oral and documentary evidence adduced by the prosecution before the trial Court. Suffice it to say that the prosecution has examined eye witnesses in support of its case and the trial Court found the evidence of eye witnesses cogent, convincing and trustworthy and concluded that the prosecution successfully proved its case beyond any reasonable doubt. Examining the record and proceedings of this case, we are of the considered opinion that no illegality or irregularity has been committed by the trial Court while coming to the conclusion that the prosecution has successfully proved beyond any reasonable doubt the involvement and participation of the appellant in this incident and the trial Court, therefore, rightly recorded the conviction of the appellant for the offences punishable under sections 302 and 323 of the IPC. However, as stated above, during pendency of this appeal, the appellant preferred Misc. Criminal Application No. 7934 of 2008 and this Court vide order dated 1/7/2008 permitted the appellant to adduce additional evidence. However, it was directed that the additional evidence to be recorded by the trial Court. Pursuant to the said order, it seems that the trial Court recorded the additional evidence as described above in this judgment. 10. We have given our thoughtful consideration to the oral and documentary evidence adduced by the appellant in support of his contention that at the time of the incident he had not completed 18 years of age. Examining the oral evidence of father of the appellant, named Abdulmadar Mohamadshah Diwan and Hazrabibi Abdulmadar, mother of the appellant. Perusing their evidence, it transpires that the appellant has 3 other elder brothers and he is the youngest. His eldest brother is Gulammadar and as per birth date certificate exh. 58, his birth date is 6/5/1971. Then there is his brother named Saifulmadar and considering his birth registration certificate exh. 59, his date of birth is 07/07/1975. Younger to Saifulmadar, but elder to the appellant, there is his brother Rafikmadar and considering the birth certificate exh. His eldest brother is Gulammadar and as per birth date certificate exh. 58, his birth date is 6/5/1971. Then there is his brother named Saifulmadar and considering his birth registration certificate exh. 59, his date of birth is 07/07/1975. Younger to Saifulmadar, but elder to the appellant, there is his brother Rafikmadar and considering the birth certificate exh. 54, the birth date of Rafikmadar is 23/12/1976. Both the parents of the appellant deposed that their 4th child is the appellant. However, they stated that the date of birth of the appellant was not informed to concerned Corporation / Municipality and, therefore, his birth is not registered. However, considering the evidence of Abdulmadar, it becomes clear that he had accompanied the appellant for his admission in the school at Padra and at that time since there was no evidence regarding the age of the appellant, he was asked by the concerned school authority to declare the birth date of the appellant on oath on the affidavit and, therefore, on 14/7/1986, on oath he declared in his affidavit before the concerned Executive Magistrate that the date of birth of appellant is 20/9/1980. Exh. 48 is the affidavit. 10.1. Evidence of Principal of Shantilal Pragjibhai Shroff Primary School, Padra, named Raysingbhai is also recorded by the trial Court and according to his evidence and considering the relevant extracts of general register maintained by the school produced at exh. 52, at serial No. 7485 name of the appellant is mentioned and the date of his birth is stated to be 20/9/2980. 11. Examining the above evidence, we are of the considered opinion that the appellant established his date of birth being 20/9/1980. There is no dispute that his birth was not registered in the Corporation/Municipality, but by adducing the additional evidence before the trial Court, the appellant successfully proved that on the day of the incident, he was aged 17 years, 1 month and 26 days. 12. There is no dispute that throughout the trial, the appellant nowhere stated that at the time of the incident he was juvenile. However, considering proviso to sub-section [1] of section 7[A] of the Act, it is statutorily provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage. Even considering para. There is no dispute that throughout the trial, the appellant nowhere stated that at the time of the incident he was juvenile. However, considering proviso to sub-section [1] of section 7[A] of the Act, it is statutorily provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage. Even considering para. 10 of Gopinath Ghosh's case [supra], it clearly transpires that the plea of juvenility was raised for the first time before Hon'ble the Apex Court and it was held that the plea can be raised at any stage. Moreover, the proviso contained in section 7-A of the Act came to be relied upon by Hon'ble the Apex Court in Dharambir's case [supra] and observed that such plea can be raised for the first time even before Hon'ble the Apex Court. 13. Having held that the appellant original accused was juvenile on the date of the occurrence of event, the next question calls for determination is what is the effect of this finding on the original order of conviction and sentence imposed on the appellant original accused. 14. Considering Dharambir's case [supra], after determining the age of the appellant and after arriving at the conclusion that on the date of the incident the appellant had not completed 18 years of age, in para. 19 Hon'ble the Apex Court observed as under : “19. In the instant case, as per the information furnished to us, the appellant has undergone an actual period of sentence of 2 years 4 months and 4 days and is now aged about thirty-five years. We feel that, keeping in view the age of the appellant, it may not be conducive to the environment in the special home and to the interest of other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to a special home or for keeping him at some other place of safety for the remaining period of less than eight months, the maximum period for which he can now be kept in either of the two places.” 14.1. Accordingly, in Dharambir's case, while sustaining the conviction of the appellant, the sentence awarded to him was quashed and directed his release from the jail. 15. Accordingly, in Dharambir's case, while sustaining the conviction of the appellant, the sentence awarded to him was quashed and directed his release from the jail. 15. In Amarsinh @ Dipsinh Sursinh Patel's case [supra], co-ordinate Bench of this Court elaborately discussed relevant provisions of the Act and the above referred cases decided by Hon'ble the Apex Court and observed as under : “30. In this connection, it would be appropriate to have a close look at the relevant statutory provisions contained in the Juvenile justice (Care and Protection of Children) Act, 2000. For the avowed object of providing the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of delinquent juveniles, the Juvenile Justice Act, 1986 was enacted by Parliament. Thereafter, Parliament has thought it expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments, the present Act was enacted by the Parliament. Section-2(k) defines “juvenile” or “child” means a person who has not completed eighteenth year of age. Section-4 of the Act discusses about the Juvenile Justice Board, which carves out an exception and states that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, by notification in the Official Gazette, constitute for a district or a group of districts specified in the notification, one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act. Section-10 of the Act talks about apprehension of juvenile in conflict with law, which says that as soon as a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of the special juvenile police unit or the designated police officer who shall immediately report the matter to a member of the Board. Section-14 of the Act empowers the Juvenile Justice Board to make inquiry regarding juvenile. Section-14 of the Act empowers the Juvenile Justice Board to make inquiry regarding juvenile. It says that where a juvenile having been charged with the offence is produced before a Board, the Board shall hold the inquiry in accordance with the provisions of this Act and may make such order in relation to the juvenile as it deems fit. Section-16 of the Act however mandates that certain orders cannot be passed against juvenile. It says that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. Section-17 of the Act clearly stipulates that a proceeding under Chapter-VIII of the Code of Criminal Procedure is not competent against juvenile. Section-18 of the Act forbids any joint proceeding of juvenile and person not a juvenile. 31. The above provisions of the Act have come up for consideration before this Court as well as before the Hon'ble Supreme Court. It is advantageous to refer to some of the decisions for the purpose of arriving at just and proper conclusion in this matter. 32. In the case of Jyoti Sankar Tripathy Vs. State (Supra) the Orissa High Court has referred to the decisions of the Hon'ble Supreme Court in the case of Gopinath Ghosh Vs. The State of West Bengal (Supra) and observed that the Hon'ble Supreme Court had the occasion to consider the provisions of the West Bengal Children Act which also contained provisions similar to Section-24 of the Act. In that case, a minor was tried alongwith others for committing the offence of murder and was convicted. In view of the clear bar contained in the West Bengal Children Act, the Court ruled that the entire trial of the child was without jurisdiction and was vitiated. Following this judgment the Orissa High Court has held that the finding of the learned Sessions Judge being that the age of the appellant was below 16 years on the date of occurrence and in view of the clear prohibition contained in Section-24 of the Act, trial of the appellant leading to his conviction by the learned Sessions Judge has to be held to be without jurisdiction. The Court further held that the entire trial of the appellant is without jurisdiction and the conviction and sentence of the appellant was therefore set aside. The Court has also considered the question as to what should be the sequel to its finding. The Court further observed that the occurrence had taken place about 5 years back. The victim was aged 13 years at the time of the occurrence and with the passage of time she might have forgotten the trauma of the incident and at that stage to commence the trial afresh in the Court of Sessions and to revive in her the fading memory was neither expedient nor desirable in the interest of justice. The matter was therefore ordered to be closed. 33. In the case of Bhola Bhagat Vs. State of Bihar (Supra) wherein it is held that when a plea is raised on behalf of an accused that he was a “child” within the meaning of the definition of the expression under the Act, it becomes obligatory for the Court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially-oriented legislation, it is an obligation of the Court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The Court must hold an enquiry and return a finding regarding the age, one way or the other. The Court further held that the High Courts and the subordinate courts are expected to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the efforts of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The Court further held that the High Courts and the subordinate courts are expected to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the efforts of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The Court further observed that the High Courts may issue administrative directions to the subordinate courts that whenever such a plea is raised before them and they entertain any reasonable doubt about the correctness of the plea, they must as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the accused concerned and then deal with the case in the manner provided by law. 34. In the case of Nanlabhai Kukabhai Rathwa Vs. State of Gujarat (Supra), the Division Bench of this Court has held that the entire trial that was conducted before the learned Additional Judge and Fast Track Court Judge at Chhota Udepur gets vitiated, being without jurisdiction and authority of law. The Court further observed that the order of conviction and sentence passed by the said Judge at the conclusion of the trial cannot stand as they also fall alongwith the trial. While quashing the conviction and sentence the Court has also addressed to the question as to what course to be adopted. The Court therefore directed that the Trial Court shall forthwith make arrangement to get the appellant released from the Central Prison, Vadodara and to produce him before the concerned Board with the accusation of having committed the offence to enable the Board to take further action in accordance with the provisions of the Act. 35. In the case of Upendra Kumar Vs. State of Bihar (Supra), the Hon'ble Supreme Court has held that the course this Court adopted in Gopinath Ghosh case as also in Bhola Bhagat case was to sustain the conviction but, at the same time, quash the sentence awarded to the convict. The Court further held that in the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. The Court further held that in the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. Following the aforesaid decision, the Court has sustained the conviction of the appellant for the offences for which he has been found guilty by the Court of Sessions, as affirmed by the High Court, at the same time, however, the sentence awarded to the appellant was quashed and the appeal was allowed to the said extent. Resultantly, the appellant was directed to be released forthwith if not required in any other case. 36. In the case of Gurpreet Singh Vs. State of Punjab (Supra), the Hon'ble Supreme Court has held that it is well settled that on the date of occurrence of the events if the convict prisoner is juvenile and if that point is not raised either before the trial Court or before the High Court, in such a eventuality this Court should fist consider the legality or otherwise of conviction of the accused and in case the conviction is upheld, a report should be called for from the trial Court on the point as to whether the accused was juvenile on the date of occurrence and upon receipt of the report, if it is found that the accused was juvenile on such date and continues to be so, he shall be sent to juvenile home. But in case it finds that on the date of the occurrence, he was juvenile but on the date this Court is passing final order upon the report received from the trial Court, he no longer continues to be juvenile, the sentence imposed against him would be liable to be set aside. 37. But in case it finds that on the date of the occurrence, he was juvenile but on the date this Court is passing final order upon the report received from the trial Court, he no longer continues to be juvenile, the sentence imposed against him would be liable to be set aside. 37. Following the above referred statutory provisions and the judicial pronouncements made by this Court and other Courts as well as by the Hon'ble Supreme Court and in view of specific finding of the learned Additional Sessions Judge, Panchmahal at Godhra that the appellant-original accused was juvenile on the date of the occurrence of the event, we are of the view that the impugned order and judgment passed by the learned Additional Sessions Judge, Panchmahal at Godhra on 30.4.2005 convicting the appellant - original accused for an offence punishable under Section-304 of IPC and sentencing him for RI of 10 years with fine of Rs.1,000/- and in default thereof to undergo the further sentence of SI of 3 months is without jurisdiction and deserves to be quashed and set aside. However, since the challenge to the order of conviction being not pressed and following the judgment of the Hon'ble Supreme Court in the case of Upendra Kumar Vs. State of Bihar, despite sustaining the conviction, we quash the sentence awarded to the appellant - original accused. Since the appellant - original accused is major as on this date, there is no question of referring the appellant - accused to Juvenile Board. We, therefore, while sustaining the conviction of the appellant - original accused for the offence for which he has been found guilty by the learned Additional Sessions Judge, Panchmahal at Godhra, the sentence awarded by him to the appellant - original accused is quashed and set aside and the present appeal is allowed to this extent. Resultantly the appellant - original accused is directed to be released forthwith if not required in any other case.” 16. Following the above referred statutory provisions and the judicial pronouncements made by this Court and Hon'ble the Apex Court and in view of the additional evidence recorded by the trial Court to the effect that appellant - accused was juvenile on the date of the incident, we are of the view that maintaining his conviction recorded by the trial Court, the order of sentence deserves to be set aside. Moreover, in the instant case, as per the jail remark sheet furnished to us, the appellant has undergone actual period of sentence of 1 year, 5 months and 4 days. As stated above, by now he is aged about 30 years. We feel that keeping in view the age of the appellant, it may not be conducive to the environment in the special home and to the interest of other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to a special home or for keeping him at some other place of safety for the remaining period of his sentence. As held in Gurpreet Singh's case [supra] Hon'ble the Apex Court observed that in a case the Court finds that on the date of the occurrence, accused was juvenile but on the date the Court is passing final order upon the report received from the trial Court, he no longer continued to be juvenile, the sentence imposed against him would be liable to be set aside. 17. In the result, the conviction recorded by the trial Court deserves to be maintained. However, the order of sentence is required to be set aside. The sentence imposed upon the appellant was suspended and he was released on bail pending the appeal and, therefore, it is not necessary for him now to surrender before the jail authority and his bail bonds shall stand cancelled. 18. For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant - Ruhe @ Mithu Abdul Diwan recorded on 11/9/1998 in Sessions Case No. 44/1998 by the Ld. Addl. Sessions Judge, Vadodara, convicting him for the offences punishable under sections 302 and 323 of the IPC is confirmed, however, the sentence awarded to him by the Ld. Addl. Sessions Judge is set aside and the present appeal is partly allowed to this extent. Since the appellant is released on bail pending the appeal, his bail bond shall stand cancelled and his surety is discharged. Fine, if paid, shall be refunded to him.