JUDGMENT : Both the appeals, arising out of the common judgment, were heard together and are being disposed of by the common judgment. Both the appellants were put on trial along with one Gautam @ Pramod Kumar Singh @ Bhola on the accusation of committing murder of Jai Ram Singh by causing fire-arm injuries to him. The court, having found these appellants, guilty convicted them for the offence punishable under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act vide judgment dated 29.07.2011 and sentenced each of them to undergo imprisonment for life and further to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for three months and further to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.5,000/- with default clause to undergo simple imprisonment for two months under Section 27 of the Arms Act vide order dated 01.08.2011. 2. The case of the prosecution, as has been projected, in the 'fardbeyan' (Ext. 3/2) is that on 04.10.2008, at about 6.30 a.m. while the deceased Jai Ram Singh, father of the informant, Pramod Kumar Chotu (P.W.10) was about to leave home for going to his duty, his grand daughter, aged about 5 years asked the deceased to drop her at 'Jubilee Park' where her grand-mother (wife of the deceased) had gone for taking morning walk. The deceased left home for dropping her grand-daughter to the Park. As soon as, they proceeded slightly ahead of Baghe Jamshed School, some one fired shot at him. Seeing this, the granddaughter of the deceased screamed which drew attention of the informant and other persons. Thereupon the informant (P.W.10), his uncle, Jai Prakash Singh (PW.5), Praveen Kumar Singh, Anil Kumar Singh (P.W.3) and the another uncle, Haridwar Prasad Singh (P.W.1) ran there and found two persons firing shots upon the deceased. After killing the deceased, they fled towards Rajendra Vidyalya. The informant and others took the deceased immediately to T.M.H. for treatment. Meanwhile, Srikant Upadhyay, Officer-in-Charge of the Bistupur Police Station upon receiving information that one man has been killed near Baghe Jamshed School and has been taken to T.M.H., he came over there and recorded the 'fardbeyan' (Ext.3/2) of the informant, Pramod Kumar @ Chhatu (P.W.10) who narrated about the incident as has been stated above. 3. On the basis of 'fardbeyan', a formal FIR (Ext. 3. On the basis of 'fardbeyan', a formal FIR (Ext. 10) was drawn and a case was registered against unknown. The I.O., Srikant Upadhyay (P.W.14) himself took up the investigation during which he held inquest on the dead-body of the deceased and sent the dead-body for post-mortem examination which was conducted by Dr. J. Sriniwas Rao (P.W.11) who on holding autopsy on the dead-body found the following injuries:- External Injuries:- 1(i) Stitched wound present over left side of the head-8 cm in length, 9 stitches – 6 cm above left eyebrow and 2 cm above upper border of left ear (pinna). (ii) Stitched wound :- Present over front & upper most part of neck lying horizontally -15 cm in length, 13 stitches from 3 cm below left angle of mandible extending up to front middle of neck. (iii) Stitched Wound :- Present over front middle of abdomen 19½ cm in length and 21 Stitches extending from 5 cm below top of Xiphoid to 2 cm below umbilicus. (iv) Stitched Wound – 2 cm in length – 1 stitch present over left side of the abdomen – 3 cm below lower-most rib of left side. (v) Stitched Wound :- 2 cm in length – 1 stitch present over right side of abdomen of 16 cm above right iliac crest. 2(i) Fire-arm wound of entrance :- 1.5 cm in diametre, circular in shape with blackening present over left side of the face, 8 cm below left eyebrow and 5½ cm left lateral to left angle of the mouth. (ii) Fire-arm Glancing wound :- 1cm X 1 cm present over left flank of abdomen 15 cm above left anterior superior iliac spine. (iii) Firearm wound of entrance :- 2 cm X 1 cm size over front middle of left thigh with blackening -17½ cm above left knee with corresponding wound of exit. 3(I) Abrasion – 1 cm X 1 cm size over top of left shoulder. Internal Injury – (i) Contusion of left fronto-temperoparietal and occipital region of scalp. (ii) Contusion of left temporalis muscle. (iii) Contusion of right fronto-temperoparietal region of scalp. 3(I) Abrasion – 1 cm X 1 cm size over top of left shoulder. Internal Injury – (i) Contusion of left fronto-temperoparietal and occipital region of scalp. (ii) Contusion of left temporalis muscle. (iii) Contusion of right fronto-temperoparietal region of scalp. (iv) Bullet entered into cranial cavity from the left side of the head, conturing, lacerating left temperoparietal region of scalp, making 2cm X 2 cm size circular whole over left temporal bone of skull then-lacerating, contusing left fronto-temporal lobe of brain travelling obliquely from left frontal to right occipital lobe of brain and also lacerating the track and lodged there from where it was recovered, preserved and handed-over to Constable. One bullet recovered from occipital lobe of brain-size length 3 cm diametre-3.9 cm marked as 'J'. (v) Diffuse contusion of whole brain. (vi) Contusion laceration of facial muscles. (vii) Contusion of underlying neck muscles. (viii) Stomach wall repaired at two places. (ix) Contusion of mesentry at places. (x) Contusion of laceration of left thigh muscles. 4. The Doctor issued post-mortem examination report (Ext.6) with an opinion that all the injuries are ante-mortem in nature and the death occurred due to hemorrhage and shock on account of injury No.2 caused by fire-arm. 5. On completion of the investigation, charge-sheet was submitted first against Manoranjan Singh @ Lallu and Gautam @ Pramod Singh @ Bhola. Subsequently supplementary charge-sheet was submitted against Om Prakash Bhagat @ Banti Jaiswal. During investigation, these two appellants as well as Gautam @ Pramod Singh @ Bhola were apprehended who were put on T.I. Parade. During T.I. Parade, the appellant, Manoranjan Singh @ Lallu (juvenile) was identified by Anil Kumar Singh-P.W.3 and Amod Kumar-P.W.2 which is reflected from T.I. Chart (Ext.2) and Ext.2/3. Similarly, Gautam @ Pramod Singh @ Bhola (died) was identified by Haridwar Prasad Singh (P.W.1), Pramod Kumar @ Chotu (P.W.10), informant and Anil Kumar Singh (P.W.3) as is appearing from T.I. Chart Ext. 2/1 and 2/4. similarly the appellant, Om Prakash Bhagat @ Banti Jaiswal was identified during Test Identification Parade by P.Ws.1, 2, 3 as is evident from Ext.2/2. 6. Meanwhile the I.O. recorded the statements of the witnesses. 2/1 and 2/4. similarly the appellant, Om Prakash Bhagat @ Banti Jaiswal was identified during Test Identification Parade by P.Ws.1, 2, 3 as is evident from Ext.2/2. 6. Meanwhile the I.O. recorded the statements of the witnesses. Before the accused persons were put on trial, the accused, Gautam @ Pramod Kumar Singh @ Bhola died and, therefore, only these two appellants, Majoranjan Singh @ Lallu and Om Prakash Bhagat were put on trial, during which the prosecution in order to prove its case examined as many as 14 witnesses. Of them, P.W.1-Haridwar Prasad Singh (brother of the deceased), P.W.2-Amod Kumar (son of the deceased), P.W.3-Anil Kumar Singh (nephew of the deceased), P.W.5-Jai Prakash Singh (brother of the deceased), did testify that while they were taking tea in the morning at the verandah of the house of the deceased, the deceased left home taking his grand-daughter for dropping her at Jubilee Park where her grand-mother had gone for taking morning walk. After few minutes, they heard sound of firing and also sound of screaming of grand-daughter of the deceased and immediately they rushed to that direction from where sound of firing came and as soon as they reached near the Jamshed Baghe School, they found two persons firing shots upon the deceased whereas one person was sitting over the motorcycle. They made attempt to catch-hold of the assailant, but they succeeded in fleeing away from there. 7. In course of trial, the appellant, Manoranjan Singh @ Lallu was identified by the witnesses i.e. P.Ws.1, 2, 3 as the person who had fired shots upon the deceased. The aforesaid witnesses i.e. P.Ws.1, 2, 3 also identified the appellant, Om Prakash Bhagat @ Banty Jaiswal as the person who was found sitting over the Motorcycle near the place of occurrence. 8. Upon closure of the prosecution case, when the appellants were questioned under Section 313 of the Cr.P.C. over the incriminating evidences appearing against them, they denied. 9. The Trial Court having placed its implicit reliance on the testimonies of the aforesaid witnesses i.e. P.Ws.1, 2, 3, 5 and 10 to be trustworthy recorded the order of conviction and sentence, which is under challenge in these appeals. 10. Mr. 9. The Trial Court having placed its implicit reliance on the testimonies of the aforesaid witnesses i.e. P.Ws.1, 2, 3, 5 and 10 to be trustworthy recorded the order of conviction and sentence, which is under challenge in these appeals. 10. Mr. Anil Kumar, learned Senior counsel appearing for the appellants submits that earlier when the issue was raised regarding juvenility of the appellant, Manoranjan Singh @ Lallu in this appeal, this Court vide order dated 07.01.2015, did find the appellant as juvenile on the date of occurrence and, as such, his case be dealt with in the manner which has been laid down by the Hon'ble Supreme Court if the appellant is found guilty by the appellate Court. 11. Learned senior counsel appearing for both the appellants, Manoranjan Singh @ Lallu (juvenile) and Om Prakash Bhagat @ Banti Jaiswal submits that the testimonies of the witnesses P.Ws.1, 2, 3, 5 and 10 never inspire confidence to be believed in the facts and circumstances appearing in this case. 12. In this regard, it was submitted that as per the case of the prosecution, the deceased left home along with his granddaughter. After a while, as per the testimonies of the witnesses, they heard sound of firing and also the sound of screaming of the grand-daughter of the deceased who had gone with the deceased and then they rushed towards that direction. When they proceeded ahead of Baghe Jamshed School, they found two persons who were subsequently identified as Gautam @ Pramod Kumar Singh @ Bhola and Manoranjan Singh @ Lallu (juvenile) firing shots upon the deceased, whereas they found Om Prakash Bhagat @ Banti Jaiswal sitting over the Motorcycle at the place of occurrence. But their testimonies to the effect that they saw one of the appellants firing shot and another sitting on the Motorcycle never inspire confidence to be believed as it is not expected from the assailant that they will be taking much time in pumping bullet upon the deceased. But their testimonies to the effect that they saw one of the appellants firing shot and another sitting on the Motorcycle never inspire confidence to be believed as it is not expected from the assailant that they will be taking much time in pumping bullet upon the deceased. It must have taken 2 or 3 minutes for the witnesses to reach over the place of occurrence as the distance in between the house of the witnesses and the place of occurrence, as per the evidence of the I.O. (P.W.14) was about 65 metre and, therefore, by the time, aforesaid witnesses would have reached to the place of occurrence, the assailant must have left the place and, therefore, any claim made by the witnesses to have seen the appellants pumping bullet upon the deceased is not worth acceptable and, therefore, the testimonies of the witnesses be rejected and the order of conviction and sentence be set aside. 13. As against this, Mr. Shekhar Sinha, learned counsel appearing for the State submits that it is quite imaginary on the part of the counsel appearing for the appellants to submit that the assailant, after killing the deceased, must have left the place of occurrence before the witnesses reached there as the defence failed to elicit anything from the witnesses to form such opinion that by the time the appellant reached at the place of occurrence, the assailant had fled away. Had the witnesses been not in a position to see the assailant, they would not have been able to identify the assailant in the T.I. Parade and also in the Court. 14. In this regard, it was pointed out that both the appellants have been identified by the witnesses i.e. P.Ws.1, 2 and 3 which fact goes to establish that by the time they reached to the place of occurrence, the assailants were present at the place of occurrence. In such situation, the order of conviction never warrants to be interfered with. 15. In such situation, the order of conviction never warrants to be interfered with. 15. Having heard learned counsel appearing for the parties, and on perusal of the record, we do find that the case of the prosecution, as has been testified by the witnesses i.e. P.Ws.1, 2, 3, 5 and 10 is that on the day of occurrence at about the 6.30 a.m., the deceased left home by taking his grand-daughter for dropping her to 'Jubilee Park' where grand-mother of the girl had gone for taking morning walk. After few minutes, when the witnesses, who were at the house of the deceased and were taking tea, heard sound of firing and also the screaming sound of the girl child, they rushed towards that direction and when came near the Jamshed Baghe School, they saw two persons who subsequently were identified as Manoranjan Singh @ Lallu and Gautam @ Pramod Kumar @ Bhola firing shots upon the deceased and they found Om Prakash Bhagat @ Banti Jaiswal sitting on a motorcycle near there. 16. All the witnesses are almost consistent on the aforesaid point though there are some deviation, but that does not seem to be on material point. The question which does arise as to whether the witnesses were in a position to hear the sound of firing and the sound of screaming from the place where occurrence took place? 17. According to the learned senior counsel appearing for the appellants, it is not possible to hear the sound of screaming of the girl from the distance of 65 metre and that assuming the witnesses after hearing sound, rushed to the place of occurrence, but by the time, they would have reached to the place of occurrence, the assailant must have left that place. 18. 18. These submissions appeared to be in the nature of surmises and conjecture as nothing seems to have been elicited in this regard from the witnesses so as to form such opinion rather the evidence which has been there on the record is that it was early morning of the month of the October whereby, according to the learned counsel appearing for the State, no rush would have been there on the road and then in such situation, in absence of any evidence, the submission of the learned counsel appearing for the appellant cannot be accepted that they would not have been in a position to hear the sound of screaming and to rush to the place of occurrence. Since nothing has been elicited to make even a slightest dent on the trustworthiness of the witnesses on this point, there is no option for us, but to accept the testimonies of the witnesses that they after hearing the screaming sound of the grand-daughter of the deceased, came to the place of occurrence and then saw the appellant to whom, they identified not only in the T.I. Parade, but also before the Court. In such situation, we do find the witnesses trustworthy. 19. However, the question does arise as to whether the appellant, Om Prakash Bhagat @ Banti Jaiswal was also a party to that crime or has been made victim of the circumstance? 20. It be stated that all the witnesses have testified that the appellant, Om Prakash Bhagat @ Banti Jaiswal was present at the place of occurrence by sitting over a Motorcycle. Except that no role has been assigned to this appellant in the commission of the offence of the deceased. 21. Since the witnesses did testify that he also fled away from the place of occurrence when the other two appellants after killing the deceased, fled away, the court did find him guilty, but it has never been the case of the prosecution that the appellant who had fired shots upon the deceased fled away along with this appellant, but from perusal of the T.I. Chart, it does appear that this appellant fled towards 'Kinan Stadium' whereas as per the testimonies of the witnesses, the assailant had fled away towards 'Rajendra Vidyalya. 22. 22. In such event, it would never be safe for this Court to hold the appellant, Om Prakash Bhagat @ Banti Jaiswal guilty only on that material. In such situation, he deserves benefit of doubt and accordingly, judgment of conviction and order of sentence passed against him, is hereby, set aside and he is acquitted of the charge and is discharged from the liability of his bail bonds. 23. We have already held that trial Court is justified in recording the order of conviction against the appellant, Manoranjan Singh @ Lallu who has been found juvenile. 24. In that event, the ratio laid down in the case of Lakhan Lal Vs. State of Bihar ( AIR 2011 SC 842 ) needs to be followed. 25. It be stated that in a case of Lakhan Lal (supra), matter relating to procedure to be adopted in a case where question of juvenility has been raised for the first time, cropped up. Their Lordships after taking notice of the several decisions was pleased to hold as under :- “A somewhat similar question had arisen in Umesh Singh and Another vs. State of Bihar [ (2000)6 SCC 89 ] wherein this Court relying upon the earlier decisions in a case of Bhola Bhagat V/s State of Bihar [ (1997) 8 SCC 720 )], Gopinath Ghosh Vs. State of W.B. [1984 (Supp.) SCC 228] and in a case of Bhoop Ram Vs. State of U.P. [ (1989) 3 SCC 1 ] while sustaining the conviction of the appellant therein under all the charges, held that the sentences awarded to them need to be set aside. It was also a case where the appellant therein was aged below 18 years and was a child for the purposes of the Bihar Children Act, 1970 on the date of the occurrence.” 26. After holding so, the question also cropped up before Their Lordships as to what sort of order relating to sentence be passed against the appellants for the offences committed by them under Section 302 read with Section 34 of the Indian Penal Code. After holding so, the question also cropped up before Their Lordships as to what sort of order relating to sentence be passed against the appellants for the offences committed by them under Section 302 read with Section 34 of the Indian Penal Code. Their Lordships after having regard of the age of the appellants who had crossed the age of 40 years did hold that it will not be conducive to the environment in the special home and at any rate, they have undergone an actual period of sentence of more than three years the maximum period provided under Section 15 of the 2000 Act. In that event, Their Lordships set aside the sentence, while affirming the order of conviction. 27. Applying the said principle, we do find that the present age of the appellant is as 32 years and has already served sentence for more than six years and eleven months and thereby, following the decision rendered in a case of Lakhan Lal (supra), the sentence imposed by the trial court is hereby, set aside and the appellant, Manoranjan Singh @ Lallu (juvenile) is directed to be released, if not wanted in any case. 28. Thus, the Cr. Appeal (DB) No. 550 of 2011 is partly allowed, whereas Cr. Appeal (DB) No. 557 of 2011 is allowed.