JUDGMENT By the Court.—The instant appeal is directed against the judgment and order dated 26.3.1983 passed by the IIIrd Additional Sessions Judge, Rampur whereby the appellants have been convicted for life imprisonment under Section 302 read with Section 149 I.P.C., under Section 147 I.P.C. for six months rigorous imprisonment and under Section 148 I.P.C. for one year rigorous imprisonment in S.T. No. 16 of 1982 arising out of case Crime No. 168 of 1982, police station Swar, district Rampur. All the sentences were directed to run concurrently. The appellant No. 1 Abdul Hakeem and appellant No. 5 Ahmad Hasan have died and their appeal stood abated by this Court vide order dated 5.10.2015, hence we are now proceeding to hear the appeal against the surviving appellants, namely, Shamsher, Nazeer Ahmad and Mohammad Mustaqeem. 2. Sri N.I. Jafri, Advocate has appeared on behalf of the appellant Nos. 3 and 4 Nazeer Ahmad and Mohammad Mustaqeem and Sri T.A. Khan, learned counsel has appeared on behalf of the appellant No. 2 Shamsher. 3. The genesis of the prosecution in short conspectus is a First Information Report was lodged by Maqbool on 24.9.1981 at 4 P.M. in respect of an incident occurred at noon on the same day against the accused/appellants, namely, Hakeem Pradhan, Shamsher, Nazeer Ahmad, Mohammad Mustaqeem and Ahmad Hassan stating therein that two years before the occurrence the brother of complainant Ashique and Zainul Abdin son of Abdul Hakeem Pradhan were challaned in a case of robbery. The dispute took place between the two during the pendency of case of robbery and since then Zainul Abdin was bearing grudge against his brother Ashique. His brother Ashique had got arrested Hakeem Pradhan by the police of Swar district Rampur as he was running factory of manufacturing illegal country made pistols. For all these reasons the accused Hakeem Pradhan and others were bearing enmity with his brother Ashique. On account of this enmity Ashique had left the village and was living in district Moradabad due to fear of the accused persons and was earning his livelihood by pulling rickshaw. He was released from jail as he was arrested by the police in some case. After releasing from jail he was living in village Majra Evaz. On account of this enmity Ashique had left the village and was living in district Moradabad due to fear of the accused persons and was earning his livelihood by pulling rickshaw. He was released from jail as he was arrested by the police in some case. After releasing from jail he was living in village Majra Evaz. On the fateful day when the complainant alongwith his brother Ashique and brother-in-law Haneef were returning after cutting grass from his field near Dhav the appellants appeared suddenly from the sugar cane field, Hakeem Pradhan, Shamsher both sons of Ahmad Hassan having ballam accused Nazeer Ahmad son of Budha and Mohammad Mustaqeem son of Abdul Hakeem Pradhan were having tabal and Ahmad Hassan son of Ali Shah was having lathi. Hakeem Pradhan extorted them that Ashiq will taste the consequence of getting his factory raided by the police and getting conviction of Zainul Abdin, hence Ashique will not be spared today. All the five accused persons assaulted with their respective weapons to his brother. On hue and cry of complainant and his brother-in-law, various persons working in the field, namely, Zamiul Islam @ Miyan, Salim @ Bhola and others reached there raising alarm. All the accused/appellants escaped towards western field. When the complainant and all other persons came near to his brother, he was found dead. Thereafter the complainant went to the police station to lodge the First Information Report leaving behind his father and various persons of his village beside the dead body. 4. The First Information Report was scribed by Akhlaque Hussain which was registered at police station Swar under Sections 147, 148, 149, 302 I.P.C. as case Crime No. 168 of 1981. On the basis of written report the chick report (Exhibit Ka. 2) was prepared and the same was entered into in the general diary (Exhibit Ka. 3) by Head Constable Yogendra Pal Singh (P.W. 5). The criminal law was set in motion on the registration of the First Information Report and the investigation was entrusted to S.I. S.K. Mittal (P.W. 7) who recorded the statement of Head Constable Yogendra Pal Singh (P. W.5) and the complainant Maqbool (P.W.1) and thereafter reached at the place of occurrence alongwith police personnel. He had taken into custody the dead body and conducted the inquest of the deceased Ashique (Exhibit Ka. He had taken into custody the dead body and conducted the inquest of the deceased Ashique (Exhibit Ka. 5) and sealed the dead body and dispatched for conducting post-mortem to the District Hospital Rampur through constables Yunus Ali and Shishu Pal Singh alongwith, photo lash (Exhibit Ka. 7), Chalan lash (Exhibit Ka. 6) memo to Chief Medical Officer Exhibit Ka. 8, memo to R. I. Exhibit Ka. 9, police paper No. 33 Exhibit Ka. 10 prepared by him. He prepared the site plan Exhibit Ka. 11. He had collected the plain and blood stained soil from the site and kept in sealed cover in separate container exhibited as Exhibit Ka. 12. He had also collected leaves of sugar cane from the field of Sohan Singh and prepared its memo vide Exhibit Ka. 13. He tried to find the accused persons by raiding their house but he could not get any success. The Investigating Officer thereafter recorded the statement of other witnesses on 25.9.1981 under Section 161 Cr.P.C. The post-mortem of the deceased was conducted on 25.9.1981 at 3.30 P.M. by Dr. R.K. Agarwal (P.W. 6) of District Hospital Rampur. The accused persons surrendered before the Court themselves and thus after collecting all necessary and clinching evidence the Investigating Officer submitted the charge-sheet against all the accused persons (Exhibit Ka. 14). 5. Dr. R.K. Agarwal (P.W.6) who conducted the post-mortem of the dead body of deceased Ashique proved the same as Exhibit Ka. 4. On external examination of the dead body, the Doctor found that the deceased was about 37 years old and was of average built body. The rigor mortis was passed off from upper extremity and was present in lower extremity. The post-mortem staining was found on the body. The decomposition had started. Abdomen was distended. The following anti mortem injuries were found by the Doctor, which is as under; 1. Incised wound 6 cm x 1 cm X scalp deep longitudinal on left side head 5 cm above left eye brow; 2. Incised wound 3 cm x 1 cm x bone deep on middle of chin, transverse, 1 cm blow lower lip; 3. Incised wound 12 cm x 8 cm x 8 cm on front and middle of neck below the level of laryax underline organs trachea, oesophogus, corotid, artery, juglar vein large blood vessles of neck muscles, cervical vertebrae found cut through and through. Incised wound 12 cm x 8 cm x 8 cm on front and middle of neck below the level of laryax underline organs trachea, oesophogus, corotid, artery, juglar vein large blood vessles of neck muscles, cervical vertebrae found cut through and through. Neck attached with head by skin muscle of left side neck and back only. Injuries 5 cm above manubrium sterni transversely placed. 4. Incised wound 11 cm x 7 cm x 6 cm on right side neck extending from a point 6 cm below right ear upto a point 5 cm below occipital protuberance, 1 cm apart injury No. 3. 5. Incised wound 6 cm x 2 cm bone on top of right shoulder. 6. Incised wound 2 cm x 1/4 cm x skin on left shoulder tapering in linear abrasion 12 cm x on front and middle on chest. 7. Abraded contusion 1/2 cm x 1/4 cm on front and left side chest 12 cm below left nipple. 8. Incised wound 2 cm x 1/2 cm x bone at the base of left little finger front side. 9. Lacerated wound 1 cm x 1/2 cm x skin on front and middle of left leg. 10. Lacerated wound 1 cm x 1/4 cm x skin on front and lower part of right leg. The doctor further found that clotted blood was present in the margin and depth of the wounds. On internal examination cervical vertebrae was found cut through and through under injury No. 3. Trachea found cut through and through under injury No. 3 and large blood vessels of neck found cut through and through under injury No. 3 and 4. Oesophagus found severed under injury No. 3. Partially digested food semi-solid in consistency about 4 ozs. The Doctor opined that injury Nos. 7, 9 and 10 could have been caused by lathi while other injuries by Tabal, the death was the result of shock and haemorrhage and the duration of death was about one day. 6. The case was committed to the Court of sessions and charges were framed against the appellants on 1.6.1982 under Sections 147, 148, 302/149 I.P.C., which was explained to them, they pleaded not guilty and claimed to be tried. In order to bring home the guilt of the appellants the prosecution had examined seven witnesses. 6. The case was committed to the Court of sessions and charges were framed against the appellants on 1.6.1982 under Sections 147, 148, 302/149 I.P.C., which was explained to them, they pleaded not guilty and claimed to be tried. In order to bring home the guilt of the appellants the prosecution had examined seven witnesses. Four witnesses of fact were examined by the prosecution they are: Maqbool P.W. 1 the complainant who is an eye-witness and brother of the deceased Ashique present at the spot at the time of incident, Jamiul Islam @ Miyan and Saleem as P. W. 2 and P.W. 3 and Haneef as P.W. 4 who is the brother-in-law of the complainant Maqbool and the deceased. The formal witnesses examined by the prosecution H.C. Yogendra Pal Singh as P.W. 5 who had prepared chick First Information Report and proved the entry made in the general diary as Exhibit Ka. 3. Dr. R.K. Agarwal who conducted the post-mortem of the deceased Ashique and proved the post-mortem was examined as P.W. 6. S. K. Mittal, Anti Road Hold up In-charge, Rampur who was posted as S.I. at police station Swar investigated the case and submitted the charge-sheet was examined as P. W. 7. 7. In defense Mehandi Hassan, Lekhpal of area of village Doonda Wala was examined as D.W.1, Akhlaque Hussain who was the scribe of the First Information Report was examined as D.W.2. In their examination under Section 313 Cr.P.C. all the appellants pleaded false implication due to enmity and on account of pressure of the local police. 8. The learned counsel Sri N.I. Jafri, appearing on behalf of appellant Nos. 3 and 4 Nazeer Ahmad and Mohammad Mustaqeem, has submitted that the appellants have been implicated merely on suspicion as the deceased who was a criminal person and number of cases were pending against him would have been killed by some other persons who were in inimical terms with the deceased and as such they are victim of false implication by the first informant Maqbool Ahmad. There are various inconsistency in the testimony of the eye-witnesses with the medical evidence and it creates doubt as to the presence of the complainant and other witnesses at the time of incident in as much as if the appellants were brutally assaulting his brother, the complainant who is the real brother and P.W. 4 Haneef who is the brother-in-law did not make any effort to come forward to save the life of deceased Ashique. It is specifically mentioned in the First Information Report itself that the eye-witnesses named in the First Information Report Jamiul Islam and Saleem on their reaching on the spot the accused persons went away thus they would not have any occasion to see the manner of assault as alleged by the P. W. 1. From the statement of defence witness Lekhpal Mehandi Hassan D. W. 2 who has stated that there is no field of Nanhey in village Doonda Wala and therefore as alleged in the First Information Report that P.W.2 and P. W. 3, at the time of alleged incident, were working in the agriculture field of their brother Nanhey becomes doubtful and as such their testimony as the eye-witness of the occurrence is falsified. It is further necessary to be pointed out that in the First Information Report the first informant has stated that after cutting grass from their field the complainant alongwith his brother Ashique and brother-in-law Haneef were returning home and at Dhave the deceased was attacked and killed by the accused/appellants but the Investigating Officer had not found any bundle of grass or grass cutting weapon from the place of incident, which makes the entire prosecution story all the more false and concocted. There is material inconsistency in the statement with the statement of other prosecution witnesses P. W. 4 Haneef who is brother-in-law of the deceased and the complainant is a resident of village Hairawa about 20 kilometers away from the place of incident and as such there was no occasion for him to be present at the time of the incident at the spot. His presence has been made only in order to give strength to the prosecution case. His presence has been made only in order to give strength to the prosecution case. The learned counsel for the appellants has further pointed out that the First Information Report was anti timed as while conducting inquest on the dead body of the deceased the Investigating Officer did not not mention crime number and section and on the second page only offense under Section 302 I.P.C. was mentioned and on the last page of the inquest report there is mention of only two papers, which had been sent for post-mortem, which all goes to show that the First Information Report was not in existence at the time of conducting the inquest. It is further contended that there is great delay in sending the dead body for post-mortem when the inquest was already conducted on 24.9.1981 and it took time to reach at headquarters only at 1 P.M. on 25.9.1981, thus after the preparation of inquest report of the deceased the First Information Report was lodged. The trial Court has completely erred in believing the testimony of prosecution witnesses whose presence were highly doubtful and inconsistent with the medical evidence. There was no motive for the appellants to commit the murder of the deceased. On account of serious infirmities the conviction recorded by the trial Court is unsustainable hence the appellant Nos. 3 and 4, namely, Nazeer Ahmad and Mohammad Mustaqeem deserve their acquittal. 9. Sri T.A. Khan who had appeared on behalf of the appellant No. 2 Shamsher has taken the plea that the appellant Shamsher was juvenile on the date of occurrence i.e. 24.9.1981. When his statement was recorded under Section 313 Cr.P.C., on 1.2.1983 he had specifically stated that he was aged about 16 years and thus from reckoning the age on the date of occurrence he would be only of 14/15 years. It is further contended by him that the appellant Shamsher is an illiterate person and has no documentary proof that he was minor at the time of incident. The certified copy of the family register is duly prepared by the Government officer under the provisions of U.P. Panchayat Raj (Maintenance of family Register) Rules, 1970. The extract of family register is admissible under Rule 12 (3) (iii) of Juvenile Justice (Care and Protection of Children) Rules, 2000. The certified copy of the family register is duly prepared by the Government officer under the provisions of U.P. Panchayat Raj (Maintenance of family Register) Rules, 1970. The extract of family register is admissible under Rule 12 (3) (iii) of Juvenile Justice (Care and Protection of Children) Rules, 2000. On taking this plea before this Court by moving an application alongwith affidavit of Shamsher the inquiry was conducted by the District & Sessions Judge, Rampur pursuant to the order passed by this Court on 10.4.2012. The inquiry was made by the Court below by inviting objections from the complainant Maqbool. The Medical Board was also constituted for determining the age of appellant Shamsher. The Medical Board on 19.5.2012 determined the age of the appellant Shamsher about 44 years. The inquiry Judge has submitted the report on 19.6.2012 following the procedure prescribed under the Juvenile Justice Care and Protection of Children Act and Rules 2000. 10. In support of his submission the learned counsel has relied upon the decision of Hon’ble Apex Court in the case of Umesh Singh and another v. State of Bihar, 2000 (6) SCC 89 and contended that the Apex Court had set the aside the conviction recorded by the trial Court in respect of Arvind Singh who was found 13 years of age at the time of incident in support whereof the matriculation certificate produced before the Court was accepted though the plea was never raised before the trial Court or before the High Court. The Apex Court while up holding the conviction set aside the sentence of life imprisonment imposed upon him. Similarly in Bhim @ Uttam Ghosh v. State of West Bengal, (2010) 145 SCC 571, on the basis of the report submitted by the State the appellant was 15 years at the time of commission of offence as per the record available with the Board of Secondary Education his date of birth was 4.1.1968. The appellant was held to be juvenile and therefore the Apex Court held that it would not be conducive for the environment of the special home to send the appellant there or to keep him at some other place as postulated in Section 16 of the 2000 Act for the remaining period in terms of Section 15 of the said Act. while sustaining the conviction of the appellant under Section 307 I.P.C. the sentence was quashed and was directed to be released forthwith if not required in any other case. 11. The correctness of the conviction was not challenged before us and submitted that the trial judge has committed manifest error in proceeding against the appellant Shamsher alongwith other accused persons and as per report of the learned inquiry Judge the appellant No. 2 Shamsher was minor at the time of incident. Section 20 of the 2000 Act would apply in the present case also and, therefore, the sentence imposed upon him is liable to be set aside and the case be forwarded to the Juvenile Justice Board for passing appropriate sentence in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act 2000. 12. Per contra the learned A.G.A. has contended that the prosecution has proved the case beyond all reasonable doubt against all the appellants. During the pendency of appeal Hakeem Pradhan and Ahmad Hasan have died. The First Information Report lodged against all the accused/appellants who were having lethal weapons had committed gruesome murder of the brother of the complainant Ashique. The incident took place in the broad day light at about 12 O’clock of which the First Information Report was promptly lodged at 4 P.M. The motive has fully proved, which is mentioned by the brother of the deceased Maqbool that they were bearing enmity with the deceased. The deceased Ashique and the son of appellant No. 1 Zainul Abdin were prosecuted in a case of robbery and some differences arose between the deceased and Zainul Abdin. Later on the deceased got the factory of manufacturing of country made fire-arms raided by the police. The factory was belonging to Hakim Pradhan the appellant No. 1. In the robbery case Ashique was acquitted while Zainul Abdin was convicted and on account of which there was constant threat to his life so the deceased left the village and was living in district Moradabad. This fact is admitted by the accused/appellants in their statements under Section 313 Cr.P.C. The appellant Hakim Pradhan now deceased has admitted their strained relation with the deceased Ashique, therefore, it cannot be said that there was no motive for the appellants to commit offence by forming an unlawful assembly. This fact is admitted by the accused/appellants in their statements under Section 313 Cr.P.C. The appellant Hakim Pradhan now deceased has admitted their strained relation with the deceased Ashique, therefore, it cannot be said that there was no motive for the appellants to commit offence by forming an unlawful assembly. The post-mortem report fully corroborates the eye-witness account that the deceased was done to death in a brutal manner by the appellant Abdul Hakim and Shamsher who were armed with ballam while Nazeer Ahmad and Mohammad Mustaqeem were armed with Tabal and Ahmad Hassan was armed with lathi. The First Information Report was scribed by Akhlak Hussain who was won over by the appellants, hence he examined himself as D.W. 2. The medical evidence cannot be said to be inconsistent with the testimony of the eye-witness as there is consistent statement of all the witnesses that the appellants were armed with ballam, tabal and lathi. There were seven incised wound and two lacerated wound besides abraded contusion were found on the vital parts of the body of the deceased. The Doctor was not specifically interrogated by the defence with regard to the nature of injury caused by the sharp edged weapons. Time and place of the incident had not at all been disputed by the defense. All the appellants had emerged from the sugar cane field of Sohan Singh and started assaulting the deceased with their respective weapons. The incident was witnessed by the P.W. 2 and 3 who at once reached there from the field of maize. These facts have been fully corroborated by the site plan prepared by the Investigating Officer, which was proved by him as Exhibit Ka. 11. Nanhey’s filed has also been shown in the site plan. The blood was also recovered by the Investigating Officer from the place of incident. The presence of P. W. 3 Saleem cannot be doubted. The presence of the prosecution witnesses have not been challenged at all. P. W. 4 Haneef who is brother-in-law of the complainant and the deceased was coming together after cutting grass who had seen the incident and as such his testimony cannot be made doubtful merely because he is a related witness. The presence of the prosecution witnesses have not been challenged at all. P. W. 4 Haneef who is brother-in-law of the complainant and the deceased was coming together after cutting grass who had seen the incident and as such his testimony cannot be made doubtful merely because he is a related witness. Merely because the witnesses had not sustained with any injury would not make their presence doubtful that they had not come forward to save the deceased at the time when the assault took place. The reaction of the witnesses depend upon the manner of assault and therefore the presence of the witnesses cannot improbablize that they did not come to rescue of the victim. How an unarmed person would react in a situation like this cannot be fixed when all the appellants were armed with deadly weapons. The prosecution case cannot be doubted in any manner. 13. The inquest was conducted by the Investigating Officer soon after he reached at the place of incident after the First Information Report was lodged by the complainant, he took the dead body in custody and prepared the inquest report. The son of the complainant is one of the witness of inquest report. With regard to any infirmity in the inquest the Investigating Officer was not at all cross-examined by the defense. 14. The learned A.G.A. has further contended that so far as the plea of juvenility of Shamsher has been raised by the learned counsel appearing on his behalf is concerned the learned trial Judge at the time of recording the statement of Shamsher under Section 313 Cr.P.C. has not made any observation in respect of the appearance of the appellant that he is appearing to be minor. In the statement recorded on 1.2.1983 the age of Shamsher was shown as 16 years. Even when the judgment was pronounced the opportunity was given to the appellant on question of sentence, even no such plea was taken at the time. When the appeal was filed in 1983, no such ground was taken even at the time of admission of the appeal and now after a lapse of 29 years an application has been filed alongwith affidavit that appellant Shamsher was juvenile on the date of occurrence i.e. 24.9.1981 as he was less than 15 years of age. When the appeal was filed in 1983, no such ground was taken even at the time of admission of the appeal and now after a lapse of 29 years an application has been filed alongwith affidavit that appellant Shamsher was juvenile on the date of occurrence i.e. 24.9.1981 as he was less than 15 years of age. A report was called from the District & Sessions Judge, Moradabad who submitted its report on 19.6.2012 that the appellant Shamsher was 14 to 15 years at the time of incident. The report so submitted is not in conformity with the provision of the 2000 Act. The extract of family register, which has been filed before this Court raising the plea of juvenility was not placed before the inquiry judge. The appellant Shamsher who is an illiterate person, and on the basis of date of birth of his elder brother and younger brother recorded in their transfer certificates and school leaving certificate respectively the inquiry judge came to the conclusion that the date birth of Shamsher can be determined in the year 1967. This presumption cannot take the place of proof to determine his age. He was also appeared before the Medical Board, the Medical Board issued a certificate determining his age about 44 years. No reliance can be placed on the Medical Board Certificate without recording the statement of the Doctor who had prepared the certificate and therefore holding Shamsher to be minor at the time of incident would be a mockery of justice, therefore, the appellant does not deserve any benefit of the plea of juvenility. The cases cited with regard to the plea of juvenility will not be of any help to the appellant Shamsher as in those cases after considering the school certificate regarding the date of birth the benefit of the Act of 2000 has been extended. The role played by all the appellants including Shamsher who had formed an unlawful assembly having lethal weapons committed ghastly murder of Ashique their conviction and sentence does not suffer from any infirmity. The impugned judgment passed by the Court below deserves to be up held against the surviving appellants. They do not deserve any sort of clemency. 15. The role played by all the appellants including Shamsher who had formed an unlawful assembly having lethal weapons committed ghastly murder of Ashique their conviction and sentence does not suffer from any infirmity. The impugned judgment passed by the Court below deserves to be up held against the surviving appellants. They do not deserve any sort of clemency. 15. Having considered the submissions of the learned counsel for the parties and the learned A.G.A. for the State the motive attributed to the appellants is fully proved by the complainant P.W. 1, which is well mentioned at the initial stage in the First Information Report itself. It has also come in the evidence that deceased Ashique had left village on account of fear of the accused persons and only two months before the occurrence he returned to his village but he was arrested by the police and had been sent to jail. Thereafter he was released from jail twelve days before the occurrence and was living in his village. On the fateful day when the deceased Ashique alongwith his brother and P. W. 5 who is his brother-in-law were returning after cutting grass from the forest all the accused/appellants emerged from the field of Sohan Singh, the appellant Hakeem Pradhan (now deceased) who was having ballam exhorted that Ashique should not be spared as he has got his factory raided and at his instance his son Jainul Abadin was convicted. The other accused persons who were equipped with ballam, tabal and lathi started assaulting him. P. W. 1 Maqbool and P.W. 4 Haneef cried for help and on raising their alarm P.W. 2 and P.W. 3 Jameel-Ul-Islam @ Mian and Saleem who were working in the nearby maize field reached there and they saw that Ashique had been done to death. The First Information Report was lodged by P.W. 1, which was scribed by Akhlaque Hassan. The First Information Report was lodged by P.W. 1, which was scribed by Akhlaque Hassan. The P.W. 2, 3 and 4 have fully corroborated the manner of incident, place of occurrence and their testimony is further corroborated by the statement of the Doctor who had conducted the autopsy of the deceased on 25.9.1981 at 3.30 P.M. The Doctor R. K. Agarwal who was examined as P. W. 6 found as many as ten injuries on the body of the deceased, seven were incised wounds on head, face, neck, shoulder while two lacerated wounds on both legs and abraded contusion on the chest. Looking into the nature of injuries i.e. trachea was found through and through, blood vessels of the neck found cut through and through so also the cervical vertebrae, the Doctor had opined, that the injuries were sufficient to cause death in ordinary course of nature and the duration of death was about one day since the date of death. Thus in view of the injuries of the deceased the eye-witness account given by the prosecution witnesses cannot be disbelieved that the accused persons were not armed with ballam, tabal and lathi. In the deposition of Doctor he had stated that the injuries found on the person of deceased Ashique could have been caused by ballam. It is always not necessary that by using ballam there would be a punctured wound, it depends upon as to how the injury was caused, if it was used like lathi. The Doctor has clearly stated that the incised wound could have been caused by ballam. When several persons attacking and assaulting it would not be possible to count the blows and which weapon was used in what manner, but the fact remains that all the accused appellants were armed with ballam, tabal and lathi, therefore, the medical report is not inconsistent with the eye-witness account to discredit their testimony. 16. The learned trial judge has rightly concluded that all the accused/appellants formed an unlawful assembly the common object of which to commit murder of deceased Ashique at the time and place as stated by Maqbool Hasan who had lodged the First Information Report promptly. 16. The learned trial judge has rightly concluded that all the accused/appellants formed an unlawful assembly the common object of which to commit murder of deceased Ashique at the time and place as stated by Maqbool Hasan who had lodged the First Information Report promptly. It is clearly discernible from the analysis of the entire evidence on record that there was prearranged plan anterior in point of time to the commission of the offence and the criminal act has been done in concert pursuant to the prearranged plan. 17. The plea of juvenility has been raised before this Court after moving an application on behalf of appellant Shamsher alongwith his affidavit annexing therewith a copy of the extract of family register issued by the Gram Panchayat Adhikari, Gram Pranchayat Doondwala Development Block, Rampur. The extract of family register is undated as to when it was issued or prepared by the Gram Panchayat Adhikari. On this application this Court by order dated 10.4.2012 directed the District & Sessions Judge, Rampur to hold an inquiry in accordance with law to determine the age of the appellant Shamsher for declaring him to be juvenile. Pursuant to the order of this Court the report has been submitted by the District & Sessions Judge, Rampur on 19.6.2012. The Medical Board so constituted examined the appellant Shamsher and determined his age about 44 years on 19.5.2012 on the basis of ossification test according to which the inquiry judge arrived at conclusion that on the date of occurrence i.e. 24.9.1981, his age was about 14-15 years. 18. For ready reference Section 7-A of the Juvenile Justice (Care and Protection) 2000 (for short the J.J. Act) Act and Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short the 2007 Rules) in respect of the nature of inquiry contemplated therein read as follows; “Section 7A the J.J. Act. Procedure to be followed when claim of juvenility is raised before any Court. Procedure to be followed when claim of juvenility is raised before any Court. (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary but not an affidavit so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognize at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.” “Rule 12 of the 2007 Rules. Procedure to be followed in determination of Age. (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining - (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 19. From the expression used above the Court or Board can accept the documents, certificate etc. as evidence. As contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules in respect of age determination inquiry only in the absence of matriculation or equivalent certificate or the date of birth certificate or certificate from school first attended the birth certificate given by a Corporation or Municipal Authority or a Panchayat “not an affidavit but certificate or document” and the question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. When the exact assessment of age cannot be done then the Court for reasons to be recorded may give the benefit of juvenility by considering his or her age at lower side with the margin of one year. 20. The Act also envisages that once the inquiry has been done no further inquiry shall be conducted as Section 49 of the Juvenile Justice Act draws a presumption of the age of juvenility on its determination. 20. The Act also envisages that once the inquiry has been done no further inquiry shall be conducted as Section 49 of the Juvenile Justice Act draws a presumption of the age of juvenility on its determination. At the same time if the documents or certificates are found to be fabricated or manipulated so as to escape from the criminal case, such inquiry would not have any binding effect. According to the medical Board’s opinion the appellant was about 44 years when he was medically examined on 19.5.2012. The inquiry judge found that the same is in conformity with the statement recorded under Section 313 Cr.P.C. on 1.2.1983. Medical opinion perse is not a conclusive proof of the age of the person concerned and it is merely an opinion and there may be error. 21. In the case of Babloo Pasi v. State of Jharkhand and another, 2009 (64) ACC 745, the Hon’ble Apex Court held that it would be imprudent to formulate a uniform standard for the determination of age. True that the medical Board’s opinion is a useful guiding factor for determination of the age of a person but is not incontrovertible. The date of birth is to be determined on the basis of material on record and appreciation of evidence adduced by the parties. 22. Apart from this from the perusal of the entire record of the Court below it is revealed that while moving bail application before the Court below he had taken the bald plea only that he was about 15 years of age without any documentary proof. The contention was never raised before the trial Court or even at the time of awarding sentence and has been raised before this Court at a very belated stage with an extract of family register, which is undated. What was the basis of the entries made in the family register regarding the date of birth/age of the appellant Shamsher in the absence whereof it is a waste paper. 23. The entries made in Family Register are never made in regular course. The Kutumb Register is an evidence to show that the person is living in the family, but not an evidence regarding age. The inquiry Judge recorded the statement of Gram Panchayat Adhikari as P.W. 1 who had categorically denied that he has not prepared the extract of family register showing the entries relating to Shamsher. 24. The Kutumb Register is an evidence to show that the person is living in the family, but not an evidence regarding age. The inquiry Judge recorded the statement of Gram Panchayat Adhikari as P.W. 1 who had categorically denied that he has not prepared the extract of family register showing the entries relating to Shamsher. 24. The learned inquiry Judge has also tried to make arithmetical calculation on the basis of transfer certificate of elder brother and High School Certificate of younger brother of the appellant Shamsher. In our opinion such calculation is irrelevant altogether and therefore the reasons recorded by the inquiry Judge on the basis whereof holding the appellant Shamsher minor aged about 14 to 15 year at the time of incident cannot be sustained. We are therefore of the firm opinion that the plea of juvenility on behalf of appellant Shamsher on the basis of medical opinion is not in consonance with other evidence on record. 25. The evidence has been judged and weighed warily and cautiously by the learned trial judge with great circumspection as all the witnesses who were examined by the prosecution had supported the prosecution version with respect to the time of incident, place of occurrence and the manner of assault. No adverse inference has been elicited in the lengthy cross-examination by the defense so as to discredit or obliterate the prosecution version. The surviving appellants had also assaulted the victim with dangerous weapon like ballam and tabal the defense has utterly failed to confront the suggestion given by the prosecution. Their statement under Section 313 Cr.P.C. cannot be of any worth to prove their innocence. There is connectivity of evidence which cannot be over shadowed in the guise of minor variations from the side of prosecution. The testimony of related witnesses cannot be disbelieved as the witnesses would not leave the actual assailants to go unpunished. 26. It is specifically borne out that all the accused appellants had equally participated in the commission of crime and it is immaterial to distinguish their role since the joint liability of all accused appellants can very well be inferred from their conduct as when several persons simultaneously attack with common intent, no distinction between causing fatal and non-fatal injuries could be drawn while allocating the guilt. There is evidence of overt act sharing the common object at all the crucial stage. There is evidence of overt act sharing the common object at all the crucial stage. The medical evidence cannot be drifted away which is fully corroborated by ocular testimony. The threadbare analysis of the entire evidence on record leads to irresistible conclusion that the prosecution has proved its case to the hilt resulting into conviction of the appellants by the trial Court. 27. From the above prolix discussion the inevitable conclusion is that the appeal preferred by the surviving appellant, namely, Shamsher, Nazeer Ahmad and Mohammad Mustakeen is without merit deserves dismissal. 28. Accordingly, the appeal is dismissed. The judgment and order passed by the III Additional &Sessions Judge, Rampur dated 26.3.1983 in S.T. No. 16 of 1982 does not suffer from any infirmity to warrant any interference by this Court. The conviction and sentence is hereby maintained and up held hence we direct that the appellants Shamsher, Nazeer Ahmad and Mohammad Mustakeem who are on bail be taken into custody forthwith to serve out the sentence awarded to them. 29. The office shall remit the record to the trial Court for further necessary compliance. 30. Judgment be certified and placed on record. ———————