JUDGMENT : Shree Chandrashekhar, J. Patratu (Bhurkunda) PS Case No. 173 of 2008 was lodged against Mahavir Choudhary, his wife and son for causing death of Sunil Kumar Sinha in furtherance of the common intention. In her fardbeyan which was recorded at 22:30 hours on 14.09.2008, Kumkum Devi who is the wife of Sunil Kumar Sinha has stated that in the evening at about 07:30 PM Raja @ Karu Choudhary came and started abusing the family members of Akaullah Manjuri. He was pacified and taken away by her neighbours and about one and half hours thereafter his father came near her house, sat on chabutra and started inquiring about her husband. After some time when her husband came back he also sat with him on chabutra. Mahavir Chaudhary started abusing her husband accusing him that he got his son thrashed by the villagers. He threatened her husband with dire consequences and left home. In the same evening at about 09:30 PM Mahavir Chaudhary accompanied by his son and wife came to her house and started abusing her husband. Mahavir Chaudhary was carrying a sword, Raja @ Karu Chaudhary had a gupti (a sharp pointed weapon) and Soni Devi was holding a lathi in her hand. Mahavir Chaudhary struck a sword blow on the right leg of her husband, his wife assaulted him with lathi and Raja started indiscriminate attack with gupti causing injuries over chest, forehead, chin and over occipital region of her husband. On hearing hulla (bachao-bachao) her neighbours, namely, Mantu Gosai, Vinay Singh, Anil Kumar Sinha and others rushed there. The villagers chased the accused and apprehended Mahavir Chaudhary and an information was given to the police. On the basis of the fardbeyan of Kumkum Devi, a First Information Report was lodged against the accused under section 302/34 of the Indian Penal Code. On completion of the investigation al charge-sheet was filed against Mahavir Chaudhary and Soni Devi on 29.11.2008 and against Raja on 07.06.2009. The charges were framed against the accused Mahavir Chaudhary and Soni Devi on 24.03.2009 in Sessions Trial Case No. 127 of 2009 and against the accused Raja on 28.08.2009 in Sessions Trial Case No. 411 of 2009 and records of Sessions Trial Case No. 411 of 2009 were amalgamated in Sessions Trial Case No. 127 of 2009 vide order dated 08.99.2009. The accused have faced the trial on the charge of committing murder of Sunil Kumar Sinha in furtherance of common intention. 2. During the trial, the prosecution has examined nine witnesses out of whom PW1-Anil Kumar Sinha is the brother and PW7-Kumkum Devi is the wife of the deceased. PW2- Vinay Singh and PW5-Basant. Pas wan are co-villagers who have deposed in the Court that they have seen assault by the appellants upon Sunil Kumar Sinha. PW9, Dr. Sunil Kumar Singh who conducted the postmortem examination on 15.09.2008 found five incised wounds over different parts of the dead body and bruises on the chest (six in number). In his opinion, the injuries were antemortem in nature, caused within 06:00-36:00 hours and cause of death was hemorrhage and shock due to the injuries suffered by the deceased. 3. The learned trial Judge has held that PW1, PW2, PW-5 and PW7, the eyewitnesses, are the reliable witnesses and absence of motive would not adversely affect the prosecution case. The learned trial Judge has held that attested copy of the postmortem report can be admitted in evidence and failure of the prosecution to tender and prove the inquest report during the trial was immaterial. 4. The learned Additional Sessions Judge-II, Ramgarh has held thus: “16. So having regard to the facts and circumstances of the case and after considering and appreciating the evidences available on the record and after hearing the argument advanced on behalf of both the sides, this court has come to the definite conclusion that the prosecution has successfully been able to bring home the charge levelled against the accused persons u/s 302/34, JPC with sufficient, cogent and reliable evidences beyond all reasonable doubts. As such I find and hold that the above named accused persons namely 1. Raja @ Karu 2. Mahavir Chaudhary and 3. Soni Devi are guilty for committing murder to the husband of the informant in furtherance of common intention of all punishable u/s-302/34 IPC 17. Hence in the result, the above named accused persons namely 1. Raja @ Karu 2. Mahavir Chaudhary and 3. Soni Devi are hereby convicted for the offence punishable u/s 302/34, IPC levelled against them. The accused Raja @ Karu and Mahavir Choudhmy are already in judicial custody but the accused Soni Devi is on bail. Hence her bail and bail bonds are hereby cancelled and she is taken into custody. Raja @ Karu 2. Mahavir Chaudhary and 3. Soni Devi are hereby convicted for the offence punishable u/s 302/34, IPC levelled against them. The accused Raja @ Karu and Mahavir Choudhmy are already in judicial custody but the accused Soni Devi is on bail. Hence her bail and bail bonds are hereby cancelled and she is taken into custody. O.C. is directed to issue custody warrant against accused Soni Devi. The aforesaid convicts are remanded to sub-jail Ramgarh with a direction to appear un 09-08-2017 before the court for hearing on the point of quantum of sentence.” 5. In Sessions Trial Case No. 127 of 2009 (with Sessions Trial Case No. 411 of 2009), the appellants were convicted and sentenced to RI for life and a fine of Rs. 5000/- each under section 302/34 of the Indian Penal Code with a default stipulation to undergo further SI for three months. 6. There are four witnesses who have claimed during the trial that the appellants were involved in the occurrence. PW 1 and PW7 are closely related to the deceased and taking the stand of the defence that the prosecution has failed to prove motive for the crime, it can be said that the defence does not challenge the evidence of these witnesses on the ground that it was motivated by any ill-will. The deceased was living in the quarter allotted by Mis. Central Coalfields Limited together with his brother Anil Kumar Sinha, PW1. The first incident started in the evening around 07:30 PM and the appellants assaulted the deceased around 09:30 PM. In the cross-examination of PW 1 and PW7 there was no suggestion throwing a challenge to their presence in the house in the evening of 14.09.2008. These witnesses have tendered cogent and reliable evidence and there, is no material on record to doubt their presence in their house in the fateful evening. 7. PW1 has deposed in the Court that around 09:00-09:30 PM Mahavir Choudhary, his wife and son came to the house of Sunil Kumar Sinha and started assaulting him. On cries of his brother he rushed there but by that time Karu Choudhary had struck gupti in his chest. The villagers chased the accused and Mahavir Choudhary was apprehended. In his cross-examination he has stated that assault upon his brother took place just in front of the house, about 5-10 paces away. On cries of his brother he rushed there but by that time Karu Choudhary had struck gupti in his chest. The villagers chased the accused and Mahavir Choudhary was apprehended. In his cross-examination he has stated that assault upon his brother took place just in front of the house, about 5-10 paces away. On a suggestion by the defence that he was not staying together with the deceased he has reiterated that his two brothers are living in the quarter allotted to his deceased brother. He has further stated that while fleeing away Mahavir Choudhary threw the sword in a nala (drain) and several villagers including Vinay, Mantu, Lalan, Lankesh and others had assembled at the place of occurrence. This is also his evidence that they were living adjacent to his house, at a distance of about 10 meters to 20/30 meters. It was a dark night but he has stated that there was sufficient light in the front portion of the house. PW2 is a co-villager who has seen the quarrel between Raja and the wife of Sakarulla Ansari. He has said that the neighbours intervened and sent back Raja and about 1 ½ hours thereafter Mahavir Choudhary came and started quarreling with Sunil Kumar Sinha. After some time Mahavir Choudhary along with his wife and son came back and assaulted Sunil Kumar Sinha. PW2 has further stated that when the neighbours tried to apprehend the accused two ... of them succeeded to escape but Mahavir Choudhary was caught by them. In his cross-examination he has stated that on hearing quarrel he came to the place of occurrence and had seen the occurrence. He has said that Mantu Gosai, Santosh Singh, Lalan Singh, Basant Paswan and others came to the place of occurrence on hearing hulla. His house was at a distance about 10-15 paces away from the house of the deceased and Mantu Gosai, Lalan and Lankesh are also his immediate neighbours. PW7, the informant is the wife of the deceased. Her examination-in-chief is a bit more detailed compared to the evidence of PW1 and PW2. Even assuming that she has exaggerated the version of the occurrence there is no doubt on her stand that she has seen the appellants assaulting her husband. In her cross-examination the defence did", not put suggestions to the story which she has narrated in the Court. Even assuming that she has exaggerated the version of the occurrence there is no doubt on her stand that she has seen the appellants assaulting her husband. In her cross-examination the defence did", not put suggestions to the story which she has narrated in the Court. She has stated that a quarter was allotted in the name of her father-in-law who was employed under Mis. Central Coalfields Limited and she originally belongs to Navi Nagar in the district of Aurangabad but her family does not live there most of the time. We find that the place of occurrence was proved by the prosecution and it was most natural that a wife was staying with her husband. The incident has taken place around 09:30 PM on 14.09.2008 and her fardbeyan was recorded at 10:30 PM the same night. The records reveal that an information about the occurrence along with a copy of the fardbeyan was sent to the police station on the same night and the First Information Rep0l1 was lodged early morning on 15.09.2008, at 05:00 AM. Nothing more is required to establish that the informant was present in her house at Central Saunda, New Bansgarha, PS-Bhurkunda, District- Ramgarh; and not at Navi Nagar, District- Aurangabad. 8. Mr. Arwind Kumar, the learned counsel for the appellants would contend that there are serious inconsistencies in the testimony of PW 1, PW2 and PW7 so far as number of injuries of Sunil Kumar Sinha and manner of occurrence are concerned. The learned counsel has further stated that the evidence of PW7 who has stated in the Court that eye and ear of her husband were chopped is not supported by the medical evidence and while so her testimony is not reliable. 9. Mrs. Priya Shreshtha, the learned Spl.PP has relied on the judgment in "Sardul Singh v. State of Punjab" AIR 1994 SC 672 to submit that it is not possible for the witnesses to give details of the injuries in seriatim. The learned Spl.PP has referred to the judgment in "Nand Kumar v. State of Chhattisgarh" (2015) 1 SCC 776 on non-examination of a witness and the judgment in "lalpat Rai v. State of Haryana" AIR 2011 SC 2179 to press hard that it is not necessary that an eyewitness must suffer injury in the occurrence. 10. According to the prosecution, three persons have assaulted husband of the informant. 10. According to the prosecution, three persons have assaulted husband of the informant. Mahavir Choudhary was carrying a sword and his son had brought a gupti. They pounced upon Sunil Kumar Sinha and Raja @ Karu statted indiscriminate assault on him. In the above crime scenario a witness is not expected to give narration of the occurrence with mathematical precision. It was night time and the occurrence took place outside the house of the deceased. This is the prosecution evidence that the informant was inside the house and other witnesses came rushing to the place of occurrence. In such situation minor inconsistencies in their testimony are bound to happen. Moreover, the medical evidence which discloses injuries around eyebrows, upper nostril and cheek of Sunil Kumar Sinha corresponds to descriptions given by the informant regarding injuries on her husband. 11. We find that PW 1, PW2 and PW7 notwithstanding minor inconsistencies and to an extent some exaggeration in their testimony are reliable and trustworthy witnesses. 12. PW5-Basant Paswan has also supported the prosecution and he has affirmed that he stated before the police that he had seen the occurrence. He was residing in CCL quarter near the house of the accused and the deceased was also his neighbor. PW6 has also tried to support the prosecution but his examination-in-chief is very cryptic and in his cross-examination he has said that for the first time he was tendering evidence in this case. Therefore, we would exclude his evidence from consideration yet the prosecution has proved participation of the appellants in the occurrence. 13. However, conviction of the appellants under section 302/34 of the Indian Penal Code is not proper. 14. The prosecution witnesses have stated about involvement of all three accused but as regards Soni Devi they have made a vague allegation. Even assuming that Soni Oevi assaulted Sunil Kumar Sinha with lathi and bruises on the chest of Sunil Kumar Sinha can be attributed to assault by her, still, on such evidence it cannot be inferred that she shared common intention to cause death of Sunil Kumar Sinha. Similarly, the prosecution evidence is not sufficient to hold Mahavir Choudhary guilty under section 302/34 of the Indian Penal Code. According to the prosecution, he was holding a sword but definite case of the prosecution is that he has assaulted Sunil Kumar Sinha on his right leg. Similarly, the prosecution evidence is not sufficient to hold Mahavir Choudhary guilty under section 302/34 of the Indian Penal Code. According to the prosecution, he was holding a sword but definite case of the prosecution is that he has assaulted Sunil Kumar Sinha on his right leg. He was carrying a dangerous weapon but there is no evidence that he attempted repeated assault, not eyen an allegation. His son who had brought a gupti started indiscriminate attack on Sunil Kumar Sinha but for that reason common intention on the part of Mahavir Choudhary and Soni Devi cannot be inferred. It is not necessary that all those who have participated in the occurrence were motivated by a common intention. Section 34 of the Indian Penal Code embodies the principle of joint criminal liability in the doing of a criminal act, the essence of which is existence of a common intention. 15. In "Pradeep Kumar v. Union Administration, Chandigarh" (2006) 10 SCC 608 the Hon'ble Supreme Court has observed as under: "12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." 16. Having examined the prosecution evidence, we are of the definite opinion that Mahavir Choudhary and Soni Devi cannot be convicted for murder with the aid of section 34 of the Indian Penal Code and, accordingly, their conviction under section 302/34 of the Indian Penal Code is set-aside. 17. Mahavir Choudhary has caused incised wound on right leg of Sunil Kumar Sinha. This injury was definitely grievous in nature and, therefore, Mahavir Choudhary is liable to be convicted under Section 325 of the Indian Penal Code and he is sentenced to RI for five years. The bruise injuries caused to Sunil Kumar Sinha would make Soni Devi liable for conviction under section 323 of the Indian Penal Code and, accordingly, she is sentenced to RI for one year. 18. The prosecution evidence against Raja is that he caused as many as four incised wounds over chest, cheek, face and mandible of the deceased. The bruise injuries caused to Sunil Kumar Sinha would make Soni Devi liable for conviction under section 323 of the Indian Penal Code and, accordingly, she is sentenced to RI for one year. 18. The prosecution evidence against Raja is that he caused as many as four incised wounds over chest, cheek, face and mandible of the deceased. According to the prosecution, Raja is the person who had started quarrel with the wife of Sakarulla Ansari. The villagers had intervened and sent him back home but this infuriated him and his father was also annoyed. Mahavir Choudhary came to the house of the deceased and there was a quarrel between them for this reason. About half an hour thereafter the appellants came and assaulted Sunil Kumar Sinha in front of his house. At that time, Mahavir Choudhary was holding a sword but he did not hit the deceased on vital part of the body nor has he repeated the sword blow. Raja has caused several injuries over the vital parts of the body and, therefore, it can be safely inferred that he acted with cruelty. The incident took place after some interval of time and right from the first incident Raja was involved in the quarrel and, therefore, it must be held that his acts were premeditated. The evidences on record do not show that in a sudden fight in the heat of passion Raja has caused injuries to the deceased. This was also not a case of grave and sudden provocation on account of which the accused deprived of the power of self-control gave indiscriminate gupti blows on vital parts of the body of the deceased. Apparently, applicability of Exception I and Exception 4 to section 300 of the Indian Penal Code is ruled out. We find that Raja intended to cause death of Sunil Kumar Sinha or at least he had knowledge that so many injuries on vital parts of the body were so imminently dangerous that in all probability would cause death or such bodily injuries as was likely to cause death - falling under clause Fourthly to section 300 of the Indian Penal Code. Accordingly, we affirm his conviction under section 302 of the Indian Penal Code for causing death of Sunil Kumar Sinha. 19. Mr. Accordingly, we affirm his conviction under section 302 of the Indian Penal Code for causing death of Sunil Kumar Sinha. 19. Mr. Arwind Kumar, the learned counsel for the appellants has raised a plea that the evidence produced in course of sessions trial was sufficient to hold that Raja was a juvenile at the time of the offence. 20. Under the old Act (Juvenile Justice Act, 1986) if the accused was not more than 16 years of age as on the date of the offence he was to be treated as juvenile. Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 contains special provision in respect of the pending cases. The explanation to section 20 which was added by Act 33 of 2006 provides that if the accused was a juvenile on the date of commission of the offence but has ceased to be so on or before the date of commencement of the new Act would get benefit of the provisions thereof. In "Satya Deo alias Bhoorey v. State of UP" (2020) 10 SCC 555 the Hon'ble Supreme Court has held that section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 authoritatively commands that the Court must at any stage, even post judgment by the trial Court when the matter is pending in, appeal, revision or otherwise, consider and decide upon the question of juvenility. It is also important to indicate that section 7 A which was inserted by Amendment Act 33 of 2006 provides that a claim of juvenility may be raised "before any Court and at any stage, even after the final disposal of the case". In "Satya Deo" the Hon'ble Supreme Court has further held that in section 64 of the Juvenile Justice (Care and Protection of Children) Act, 2000 substitution of the words "may direct" with "shall direct" in the main provision was to clarify that the provision was mandatory and not directory. 21. The records of the present case reveal that after seven prosecution witnesses were examined - PW7 was examined on 09.08.2011; a plea of juvenility was raised by Raja. The Court permitted him to lead evidence in Sessions Trial Case No. 411 of 2009 and on behalf of the accused three inquiry witnesses were examined. One was the headmaster of Middle School, Central Coalfields Limited, Sounda. The Court permitted him to lead evidence in Sessions Trial Case No. 411 of 2009 and on behalf of the accused three inquiry witnesses were examined. One was the headmaster of Middle School, Central Coalfields Limited, Sounda. He has proved the admission register and stated that Raja Chaudhary was admitted in the school on 06.09.2002, with admission No.185. He has identified entry made in the admission register by Ex-headmaster, namely, Basudeo Ram. This witness has further stated that the date of birth of Raja Chaudhary was recorded in the register as 25.05.1994 and in this regard he has issued a certificate. Mahavir Chaudhary has examined himself as a witness to support the plea of juvenility of his son. He has also deposed in the Court that his son was admitted in Rajkiya Middle School, Central Coalfields Limited, Sounda where he studied up to Class-V. He has confirmed that Raja 'Chaudhary was born on 25.05.1994. The learned Spl.PP, referring to cross-examination of inquiry witness no.1 who has stated that for admission of Raja Chaudhary he had gone to the school on 16.02.1995, contended that he is not a reliable witness. On this, we would simply say that once the document produced by the accused was not challenged as false or fabricated and the said document is proved by the headmaster of the school, the date of birth of the accused recorded in the school register and certificate issued by the school must be accepted as proof of the age of the accused. We find that the evidence tendered during the enquiry established that the accused was a juvenile on the date of offence. 22. In "Bhola Bhagat v. State of Bihar" (1997) 8 SCC 720 the Hon 'ble Supreme Court while sustaining conviction of the juvenile has set-aside the sentence awarded to him and the judgment in "Bhola Bhagat" has been consistently followed in the subsequent cases. 23. We would, therefore, not interfere with the conviction of Raja @ Karu Choudhary but sentence of Rl for life and a fine of Rs. 5000/awarded to him by the learned trial court is set-aside. 24. Mahavir Choudhary is convicted under section 325 of the Indian Penal Code and is sentenced to Rl for five years. 25. Soni Devi is convicted under section 323 of the Indian Penal Code and is sentenced to RI for one year. 26. Mrs. 5000/awarded to him by the learned trial court is set-aside. 24. Mahavir Choudhary is convicted under section 325 of the Indian Penal Code and is sentenced to Rl for five years. 25. Soni Devi is convicted under section 323 of the Indian Penal Code and is sentenced to RI for one year. 26. Mrs. Priya Shreshtha, the learned Spl.PP states that Mahavir Choudhary who has served the sentence of more than twelve years, with remission, is in custody while Soni Devi who has served the sentence of more than one year, with remission, is on bail. 27. Accordingly, the appellant, namely, Mahavir Choudhary shall be set free forthwith, if not wanted in connection to any other case. The appellant, namely, Soni Devi who is on bail is discharged of liability of the bail bonds furnished by her. 28. Mrs. Priya Shreshtha, the learned Spl.PP states that Raja @ Karu who is the appellant in Cr. Appeal (DB) No. 2082 of 2017 is in custody. 29. Accordingly, Raja @ Karu shall be set free forthwith, if not wanted in connection to any other case. 30. In the result, Cr. Appeal (DB) No. 2082 of 2017 is disposed of and Cr. Appeal (DB) No. 1665 of 2017 is allowed in the terms, and to the extent indicated hereinabove. 31. Let lower court records be transmitted to the Court concerned, forthwith. 32. Let a copy of the Judgment be transmitted to the Court concerned through IFAX'.