S.K. Kaul, J.
1. This appeal arises out of an unfortunate occurrence in which two teenagers, both co-workers at a petty tea shop, were involved. The facts of this appeal lie in a short compass. Deceased Karhley, a lad of about 17, and accused Raja Ram of the same age group, both were employed at the hotel of one Halli, situate in Mohalla Bhuin-phurwa Nath. 4 or 5 days before this murder, according to the prosecution story, the deceased had committed car-na intercourse against the order of nature with accused Raja Ram. On 6th of Oct., 1972, the deceased and the accused both on pretext of easing themselves went away from this hotel at about 3 p. m. Both of them went to Mahewa Garhi. After finishing easing himself in the Arhar field of one Lai Mohan Singh, when Karhley deceased was tying the string of his Pyjama, Raja Ram accused expressed a desire to have a carnal intercourse against the order of nature with deceased Karhley. Karhley was not prepared to oblige him and pointedly refused the suggevStion. This is said to have enraged the accused who started assaulting Karhley with a knife. Karhley raised an alarm and this had brought to the scene of occurrence P. Ws. Chandrika Prasad and Raja Ram. Upon their arrival, Raja Ram accused is said to have run away. Karhley was lying injured. Karhley requested them to convey this information about his being injured at the hotel of Halli where he was employed. These two (persons came to the hotel of Halli, conveyed the information of this incident and thereafter Halli, accompanied by P. Ws. Indra Prasad and Mewa Lai, apart from some others, came to the aforesaid scene of occurrence forthwith. They found Karhley lying in the field of Lai Mohan Singh. Near about this place, where Karhley was lying, a Lota, a pair of Hawai Chappals and a knife were also found. Upon enquiry -by Halli, Karhley gave him the details of incident.'A cot was sent for by Halli. Halli, in the meantime, got prepared a written report which was scribed by Indra Prasad. Thereafter, Halli, took the injured on a cot to the Police Station Kotwali, Kheri, where he handed over the written report the same day at about 4.30 p. m. The distance between the scene of occurrence and the police station is about two miles, Karhley was promptly despatched to District Hospital, Lakhimpur, for his medical examination. Karhley was medically examined by Dr. Satish Chandra Agarwal Medical Officer, District Hospital, Kheri, on the same date, namely, 6th of Oct., 1972, at about 5.05 p.m. The following injuries were found upon the person of Karhley:
1. Penetrating wound 8 cm. X6 cm.X abdominal cavity deep on the abdomen, 5 cm. above umbilicus, margins of the wounds clean cut, bleeding present, loops of intestine coming out of the wound- vertically placed. The injury was kept under observation.
2. Incised wound 2 cm. XI cm. Xmus-cle deep below the umbilicus, bleeding present, obliquely placed.
3. Incised wound 2 cm.X 3 cm.X skin deep-close to the umbilicus on left side, bleeding present.
4. Incised wound 6 cm. XI cm.Xskin deep on the right side abdomen close to umbilicus on its right side.
5. Incised wound 1.5 cm.X;5 cm.Xskin deep on right side abdomen, lateral aspect, 8.5 cm. above .anterior superior iliac spine.
6. Incised wound 3 cm.X2 cm. X skin deep on the right side of the neck 5 cm. below chin.
7. Incised wound 3 cm. XI cm.Xcavity deep on the right chest 3 cm. left to the nipple-bleeding present-kept under observation.
8. Incised wound 1.5 cm,X. 5 cm.Xskin deep on the left forearm 4 cm. above wrist joint. Bleeding .present.
9. Incised wound 1 cm.X. 2 cm.Xiskin deep on the right forearm, 3 cm. above right wrist joint-bleeding present- transvesely placed.
2. Opinion of Dr. Agarwal was that all the injuries were fresh. These were caused by a sharp edged weapon. Injuries 1. and 7 were kept under observation; The remaining injuries, however, were found to be simple. Karhley was admitted in the emergency ward. Since Karhley's condition started deteriorating, Dr. Agarwal sent a report to the Sub-Divisional Magistrate as well as Tahsil-dar-Magistrate for recording dying-declaration of Karhley. On the same date, namely, 6th of Oct., 1972. at .about 6.15 p. m., Tahsildar-Magistrate, Sri B. P. Srivastava, P. W. 8 recorded dying-declaration of Karhley in the emergency ward in the presence, of -Dr. Satish Chandra Agarwal who certified the mental condition of Karhley. We are repro- ducing this dying declartion in extenso as below:
Sri Kaitiley putta Hardwari Lai niwasi Arjun Purwa, ayu 18 warsh, ne ;bayan diva ki aj 3 1/4 bajje din men Power House ke pas khet mein tatti gaya tha. tatti jab men ho chuka to Raja Ram putra Lachman kahar ne mujh se kaha ki man yahan kaam nai karta. Mene kahaa ki men yah ban nahin. Men tatti dhokar utha hi tha aur apane pajama ka nara bandh raha tha ki itne men Raja Ram ne mere chakku mar diya. Men chillaya. Usne kai war chakku ke diya aur bhag gaya. Mere chillane par do ek admi mteiurkar agaye. Unse meme kaha lei HaTli Hotel par khabar kar do jahan men karta karta hun. Yah hotel Bhuipurwan Math ke chaurahe par kal. Halli malik ka nam hai. Bahut der bad hotel ke malik aur .admi wahan pahunche aur mujhe khatiya par asptal laye.
Karhley died. in the hospital on 8th Oct. 1972, at about 4.45 a. m., in spite of best medical aid. Thereafter, on receipt of the , the case was altered ,as one failing Under Section 302, I.P.C. Earn Dayal Rai, Sub-Inspector, went to the hospital and prepared inquest report relating to the dead body of Karhley. It was sealed and sent for autopsy. The .autopsy upon the dead body was conducted by Dr. Ram Singh, Medical Officer, District Hospital, Lakhknpiar-Kiieri, on 8th of Oct., 1972, at 3.30 p.m. The age of the deceased, according to Dr. Singh, was about 17 years. The following ante-mortem injuries were found upon the dead body:
1. Stitched wound 12 cm. long with ten stitches xm the middle line and right side of abdomen, 5 cm. above the symphysis, and 1 cm. outer to the middle line, vertical, stitches removed it was an incised wound 12 cm.Xl cm. underneath the rectus ahead and peritoneum was stitched.
2. Stitched wound 2 cm. long with two stitches on the left side of abdomen, 2.5 am. below the umbilicus at 5 O'clock position vertical, stitch removed it was am incised wound 2 cm. longX1 cm. width upto muscle deep.
3. Stitched would 2 cm. long with, two stitches am the left side of abdomen, 1 cm above the umbilicus at 1 O'clock position, stitches removed it was an in-eased wound 2 cm.X'1 cm.Xskin deep.
4. Stitched wound 1 1/2 cm. long with one stitch on the right side of abdomen, 10 cm. outer to the umbilicus at the same level, it was an incised wound of l cm. Xskin deep.
5. Stitched wound 3 cm. long with two stitches an the right side chest, 3 cm. inner to the right nipple at the same level vertical, stitches removed, it was an incised wound 3 cm. X 1 1/4cm,X chest cavity deep.
6. incised wound 3 cm.X. 2 cm. 2Xskin deep on the right side neck 4 1/2 cm. below the chin, just by the side of middle line oblique.
7. incised wound 1.5 cm.X3 cm. X superficial skin deep on the left forearm on the front 4 cm. above the wrist joint, oblique.
8 Stitched wound 1 cm. long with one stitch on the right forearm, front, 5 .cm. above the wrist joint, oblique, stitches removed it was an incised wound .1 cm.X .3 cm. Xskin deep.
9. Stitched wound 1 1/2 cm. long with two stitches on the back of neck lower part just below the tip of 7th cervical spine in the middle line stitches removed it was an incised wound l cm. X1 cm. X tissue deep.
3. Internal examination revealed that there was blood ecchymosis present under injury No. 5 on right chest, and right chest wall was punctured under injury No. 5. Right pleura was also punctured under injury No. 5 and the right pleural cavity contained 70 M.L. of fluid blood. Right lung was punctured under injury No. 5 and was covered with blood. The stomach was empty and was found to be stitched at two places. The opinion of Dr. Singh was that death was caused due to shock and haemorrhage as a result of ante-mortem injuries which, in his view, were sufficient in the ordinary course to cause death.
4. Investigation of this case was taken in hand by Sri Ram Dayal Rai, Sub-Inspector. He visited the scene of occurrence the next morning and interrogated P. Ws. Halli, jndra Prasad, Mewa Lal Chandrika Prasad and .Raja Ram. He then prepared a site-plan with the help of witnesses. On the spot he found Lota lExt 1, a pair of Hawiai Chappals and a knife. He sealed these things and prepared a memo of the same. He interrogated some other witnesses. He1 made a search for the accused, but found him absconding. However, Raja Ram accused surrendered in the Court on 10th Oct., 1972. After completing investigation, a charge-sheet was submitted against the accused, and on that basis, he was asked to stand his trial Under Section 302, I.P.C.
5. The defence of the accused was complete denial and false implication. According to him, he had worked at the shop of Halli up-till 3rd of Oct., 1972. He has told Halli that he would no longer serve him. Halli being annoyed inasmuch as in spite of his persuation, he was not agreeable to work for him, had implicated him in this case.
6. The learned Sessions Judge, on an appraisement of evidence, found that the charge was fully brought home to the accused beyond reasonable doubt and, as such, looking to his age, he sentenced him to undergo imprisonment for life. It is in these circumstances that Raja Ram has come up in appeal to this Court.
7. We have heard counsel for the appellant.
8. Apart from the submission of the learned counsel for the appellant that the prosecution story was doubtful, the second submission was that benefit of U. P. Children Act, 1952 (0. P. Act 1 of 1952) (hereinafter mentioned as the Act), Should be given to Raja Ram and, there-lore, he should not be sentenced to imprisonment.
9. On the factum of this incident, we think there can be no doubt that it was Raja Ram who was responsible for causing injuries to Karley on account of which he ultimately succumbed in spite of beat medical aid. There are two eyewitnesses of the occurrence, namely, Chandrika Prasad and Raja Ram. There is also dying-declaration of the deceased recorded by the Magistrate promptly. It is significant to note that the Magistrate, who recorded the dying-declaration, was not cross-examined at all. The law on dying-declaration is now well-settled. If it is held by a Court that the person giving dying-declaration is In a fit mental state and the dying-declaration is untutored and relates to an incident where there could be no mistake about the identity of the assailants and has been given at the earliest opportunity, the same even without corroboratton has to be accepted. There is no rule of law that such a dying-decleration needs corroboration. We may note the following decisions of the Supreme Court in this behalf: (1) Khushal Rao v. State of Bombay : 1958CriLJ106 ; (2) Harbans Singh v. State of Punjab AIR 1962 SC 43&: (1962 (1) Cri LJ 479); (3) Tapinder Singh v. State of Punjab, : 1970CriLJ1415 ; ,(4) Lallubhai Devehand Shah State of Gujarat : 1972CriLJ828 ; (5) Benka Naiko state v. Orissa : 1976CriLJ1556 - and (6) Mannu. Raja v State of Madhya Pradesh : 1976CriLJ1718
10. Indeed this F.I.R. also could be treated as an oral1 dying-declaration of the deceased? because it was on his information about this incident that Halli had lodged this F.I.R in this F.I.R it was clearly mentioned that the and' the accused, who were co-workers at the- hotel of Halli, had left at 3 p. m., on 6th of Oct.,, 1972, with the object of easing themselves; When they reached near Mahewa Garhi in the Arhar field. Karley refused the request of Raja Bam to- after him to commit carnal intercourse against nature where upon Raja Ram gave knife blows to him. On his shouts, Baja Bam P. W. 5 and-Chandrika Prasad' R W. 3; were attracted and they were sent to Halli with the information upon which Halli came and took him to the Kotwali on a cot. Apart from the earliest version given by the deceased, as noted above, the given by declaration Ext. Ka-16 is complete be itself. There is no mental imparent or impediment on account? of when Karley would not have been in a positron to give this statement. There is a1so certificate of the doctor appended to this statement of the mental condition of Karley. In this dying declaration looking to the' time of incident, when is a broad day night, the injuries have been clearly ascribed to Raja Ram accused, it is also mentioned in this dying declaration that two persons to rushed on his statement and he had requested them to- convey' the news to' Ms master Balli. We think in this case, this dying declaration by itself is sufficient, to connect the accused with this offence: However, the .prosecution examined that which is not a witness of the occurrence, Chandrika Prasad P. W. 3 and Baja Ram P. W. 5 at well who are witness, of the occurrence. it may be that Raja Ram P. W. 5' is a child witness but scrunity of testimony goes to show that witness be stated was a correct version. Be may not be knowing Karhley and' Raja Ram from before, tout that would mot fee very much material in this case, more when the accused did not claim identification at the hands of this witness Chandrika Prasad P. W. 3, court, resiled? in the Court of Session both them he was confronted with his statement which he had given in the Court of the Committing Magistrate and that statement was bodily lifted under Section 288 of the Cr.PC by the Sessions Judge. That statement of Chandrika Prasad under Section 288, Cr.PC is sufficient for purposes of corroboration. Chandrika Prasad in the Court of Sessions however admitted that Raja Ram prosecution witness had told him that the accused had assaulted Karhley. He also said that he had gone to the scene of occurrence and found Karhley injured at about 3.30 p. m. That statement, though being that of a hostile witness, can be accepted to this extent at least that it fixes the scene of occurrence, the time of occurrence as well as proves the presence of Raja Ram P. W. 5. In view of the discussion noted above, we have no hesitation in coming to this conclusion in agreement with the findings of the trial court that it was the accused who had -assaulted Karhley with knife on the relevant date, time and place which ultimately resulted in the death of Karhley.
11. Coming to the second submission, the definition given in the Children Act of a child runs thus:
'Child' means a person under the age of sixteen years.
Before a person can take advantage of the provision of this Act it is his duty to show that he was- under sixteen years of age. In this case, in the Court of the Committing Magistrate, the age of the accused was noted as 20 years. In the Court of Session, the age of the accused was noted as 17 years. The statement of the accused was recorded by the Sessions Judge Under Section 342, Cr. P. C on 27-9-1973. The incident took place on 6th of Oct., 1972. In that view of the matter, he could not be under 16 years of age at the time of occurrence. We think it is immaterial in this case to enter into the question whether this point of age has to be reckoned with reference to the date of occurrence or with reference to the date of the statement of the accused as recorded by the Sessions Judge who was to convict him or to give him the benefit of the Act because on both these crucial dates, the accused, according to the evidence on record, was not under 1? years of age. We may note here that this point was not taken at any stage except for the first time in the arguments addressed before us.
12. As a result, we do not think the (accused-appellant can claim benefit of 'the Children Act.
13. Altogether, therefore, we see no force in this appeal and it is hereby rejected. Sentence and conviction awarded to accused Raja Ram by the trial Court to undergo imprisonment for life under S. 302, I.P.C. is maintained. He is on bail. He will surrender and serve out the sentence awarded to him. Chief Judicial Magistrate, Kheri, will send compliance report within six weeks.
14. We may, however, make this observation that it is open to the appellant still to approach the Governor to exercise his prerogative of clemency looking to his age.