Gurnam Singh, J.
1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Gurdaspur, dated 18-9-1972 vide which Pritam Singh son of Hari Singh, Shamir Singh and Amar Singh sons of Pritam Singh, Puran Singh son of Kartar Singh and Jagir Singh son of Soihan Singh residents of village Nathewal, have been convicted under Section 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each. Amar Singh and Shamir Singh have further been convicted under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- or, in default, to further undergo rigorous imprisonment for one year each. Pritam Singh, Jagir Singh and Puran Singh have been convicted under Section 302 read with Section 149, Indian Penal Code, and sentenced to imprisonment for life and a fine of Rs. 1,000/-, or, in default of payment of fine to further undergo rigorous imprisonment for one year each. Jagir Singh has further been convicted under Section 325, Indian Penal Code, for causing grievous injury to Darshan Singh, P. W and his co-accused Pritam Singh, Shamir Singh, Amar Singh and Puran Singh have been convicted under Section 325 read with Section 149, Indian Penal Code, and all of them have been sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 200/-, or, in default, to further undergo rigorous imprisonment for four months each, Shamir Singh was also convicted under Section 321, Indian Penal Code, for the injury of Darshan Singh while his co-accused Jagir Singh, Amar Singh, Puran Singh and Pritam Singh were convicted under Section 324 read with Section 149, Indian Penal Code, and all of them were sentenced to undergo rigorous imprisonment for one year each. All the sentences were ordered to run concurrently. Kartar Singh, the co-accused of the appellants was acquitted of all the charges.
2. The prosecution story, briefly stated, is that on 25-1-1972 at evening time, Pritam Singh accused and his sons Shamir Singh and Amar Singh raised changars in front of the house of Tarlok Singh. Tarlok Singh asked them not to do so and they went away raising changars and abusing Tarlok Singh. On the following day Tarlok Singh collected a Panchayat in the village in which Surat Singh, Balwinder Singh and Mukhtiar Singh were present. The Panchayat also called Pritam Singh, Pritam Singh denied the allegations made against him and his sons by Tarlok Singh, upon which he and Tarlok Singh exchanged hot words, but they were separated by the persons present there.
3. On 27-1-1972 Joginder Singh, brother-in-law of Frithpal Singh, P.W., Gursharan Singh and Tarlok Singh deceased, had come to the house of Gursharan Singh to enquire about his children as he (Gursharan Singh) was employed in the army. Prithpal Singh and Tarlok Singh deceased went to the house of Gursharan Singh to meet Joginder Singh. Because Gursharan Singh was not present at the house, so Prithpal Singh asked Joginder Singh to come to his house. At about 8.30 P.M. Prithpal Singh, Joginder Singh and Tarlok Singh deceased came out of fhe house of Gursharan Singh. Tarlok Singh was ahead of them. At that time Pritam Singh Sarpanch armed with a kirpan, his sons Shamir Singh and Amar Singh armed with a sua and dang, respectively, Jagir Singh armed with a takwa and Kartar Singh and Puran Singh armed with dangs, who were hiding themselves on the back side of the house of Swinder Singh came there and attacked Tarlok Singh. Shamir Singh gave a spear blow to Tarlok Singh which hit in the left side of his abdomen. When Tarlok Singh was falling, Pritam Singh gave a kirpan blow on the back of his right hand. Jagir Singh gave a takwa blow which hit on his left chest. Amar Singh alias Amba gave a dang blow hitting on his head and Kartar Singh and Puran Singh raised Lalkaras that Tarlok Singh should be killed. On the alarm raised by Tarlok Singh, Joginder Singh and Prithpal Singh, all the accused fled away with their respective weapons. It is further urged that when the accused were running away, Darshan Singh son of Bal Singh resident of village Basserpura, met them and enquired from them as to why they were going running and on that Jagir Singh and Shamir Singh caused him injuries.
4. Prithpal Singh and Joginder Singh put Tarlok Singh on a cot. They then went into the village to make some arrangement of some conveyance for taking Tarlok Singh to the hospital but no arrangement could be made and, therefore, Tarlok Singh was taken to Civil Hospital Batala, on a cot by Prithpal Singh, Anup Singh, Mohinder Singh and Kulwant Singh. They reached Civil Hospital, Batala, at about 10.30 P.M. Tarlok Singh was examined by Dr. Mrs. Balwant Kaur Bedi at 10.35 P.M. and the following injuries were found on his person:
1. A contused wound 111/2 cm. XI cm. Xbone deep oblique on the left fronto-parietal region 7 cm. away from left ear. The wound was bleeding. X-ray was advised.
2. An oblique incised wound 7|cmX 1 cm.X bone cut underneath on the back of right hand starting from metacarpo phalangeal joint of right middle finger going towards first phalanx of right ring finger cutting it. Wound was bleeding.
3. A stab incised wound 31/2 cm. X 1 cm. oblique on the left side of abdomen 10 cm. away from umbilicus. There was a corresponding cut in the shirt.
4. An abrasion 1/4cm. X 1/2 cm. X 31/2 cm. away from umbilicus on the left side.
5. A superficial incised wound oblique If em. XI cm. on the lateral side of left chest 9 cm. away and downwards from left nipple.
5. Injuries Nos. 1 and 3 were kept under observation. Injury No. 2 was declared grievous. Injuries Nos. 4 and 5 were declared simple. Injuries Nos. 1 and 4 were caused by blunt weapon and the rest were caused by sharp edged weapon. The duration of the injuries was fresh. Lady Dr. Balwant Kaur Bedi sent ruga, Exhibit P.H., to the Station House Officer, Police Station Saddar Batala on which Assistant Sub-Inspector Harchand Singh, after making an entry in the roznamcha, went to the Civil Hospital. He made a request to the doctor to know as to whether Tarlok Singh was in a fit condition to make a statement or not. The doctor declared him as unfit to make a statement. Assistant Sub-Inspector Har-chand Singh then recorded the statement of Prithpal Singh at Exhibit P.L. and sent the same to police station Saddar Batala for registration of the case. The formal First Information Report Exhibit P.L./2 was recorded by Sub-Inspector Raj Kumar.
6. Tarlok Singh was referred by Lady Dr. Balwant Kaur Bedi to V.J. Hospital, Amritsar, where he died on 31-1-1972.
7. Post-mortem on the dead-body of Tarlok Singh was conducted by Dr. Kuldip Singh on 1-2-1972 at 1.30 P.M. Death in the opinion of the doctor was due to shock and haemorrhage caused by injuries Nos. 1 and 3, which were sufficient to cause death in the ordinary course of nature.
8. Assistant Sub-Inspector Harchand Singh accompanied by Prithpal Singh, P.W., reached village Nathewal and raided the houses of the accused but they were not available. He inspected the spot on the next day and took into possession blood-stained earth and turned the same into a sealed parcel. He also recorded the statements of Jofiinder Singh, Harbans Kaur and Mukhtiar Singh. On the next day he went to Amritsar and made request ' Exhibit P.R. before the doctor, to know, as to whether Tarlok Singh was fit to make a statement but the doctor declared him unfit to make any statement. On 30-1-1972 he again came to village Mathewal and joined Jaswant Singh with him. He raided the house of Pritam Singh accused and arrested Shamir Singh accused. On inter rogation Shamir Singh made a disclosure statement saying that he had kept concealed his spear in the heap of Parali in his fields and could get the same recovered. His statement Exhibit P.V. was recorded and in pursuance of the same he got recovered spear (barchhi), Exhibit P.-1., which was stained with blood and was turned into a sealed parcel. A case under the Arms Act was also got registered against him. Amar Singh, Jagir Singh and Pritam Singh accused were also arrested on the same day. Puran Singh and Kartar Singh accused were arrested on 2-2-1972. The statement of Darshan Singh, P.W., was recorded on 3-2-1972. He was also sent to the hospital for getting himself medically examined.
9. Darshan Singh was examined by Dr. S.P. Mago on 3-2-1972 at 1.35 P.M. and the following injuries were found on his person:
1. Wound with edamatous margins with unhealthy floor transverse, on the mid line back 24 cm. below the 7th cervical spine, area around the wound edamatous and red wound covered with dressing and area cleaned before examination.
2. Wound on the front and inner side right thigh 3 cm. above knee cap 1/2 cm. X cm. 1/3cm. X 2cm. with abrasion dry scabbed on both sides of wound 2 cm. each margins edamatous and irregular, floor unhealthy, granulation, scab from the wound falling of edena of the leg upper half seen by pitting on pressure. Knee joint had effusion. There was swelling above the knee joint all around. Advised X-ray.
10. Injury No. 1 was simple while injury No. 2 was declared grievous after X-ray examination.
11. Kartar Singh son of Mehar Singh, who appeared as a D.W. and is the father of Puran Singh appellant, was examined by Dr. S.P. Mago on 28-1-1972 at 7.35 P.M. and five injuries, simple in nature caused by blunt weapon were found on his person and the probable duration of the injuries was within 36 hours.
12. Prithpal Singh, Joginder Singh and Mst. Harbans Kaur are the alleged eye-witnesses in this case and they have deposed about the facts narrated above. Darshan Singh, (P.W. 8), stated, that about six months before he was examined, he received a message that his brother Bachan Singh was lying seriously ill in village Basserpura, that he left for Basser-pura and reached near the house of Mohan Singh in village Nathewal at about 5.30 P.M., that all the six accused met him on the pathway, that Pritam Singh was armed with a kirpan, Shamir Singh with a sua, Jagir Singh with a takwa, whereas Arnar Singh, Kartar Singh and Puran Singh were armed with dangs, that they were going running towards the direction from which he was coming, that he asked, them as to why they were coming running and from where they were coming running and that without replying they caused him injuries thinking that he was going to round them up. He further stated that Jagir Singh gave a takwa blow on his right leg and when he was going to fall, Shamir Singh gave him a spear blow on his back and that thereafter the accused ran away.
13. Mukhtiar Singh, (P.W. 9), stated, that about six months before the date of his examination Tarlok Singh deceased came to him at about 9 A.M. and complained that Pritam Singh and his companions had raised changars in front of his house and that he (Pritam Singh) should be asked as to why he had done so. He further stated that Tarlok Singh collected Panchayat in front of the Gurdwara, that he was there in the Panchayat, that Pritam Singh accused was also summoned there, that the Panchayat asked him about the complaint made by Tarlok Singh but he denied the allegations and that they (Tarlok Singh and Pritam Singh) exchanged abuses and hot words. He further stated that they separated them and sent them to their respective houses.
14. The accused while examined under Section 342; Criminal Procedure Code, denied all the allegations made against them. Pritam Singh accused took the following plea :
Tarlok Singh deceased had filed a money suit in the Panchayat against Ajit Singh son of Sant Singh for the recovery of Rs. 200/- from him. I was the village Sarpanch. I had dismissed his suit. I produce the relevant file Exs. D-1 to D-5. The second file also relates to the money suit filed by the same Tarlok Singh (deceased) against same Ajit Singh. This was also dismissed by me. Both the suits were dismissed on 22-5-1969. The proceedings in both the suits had taken place in my presence and under my supervision and the members of the Panchayat had been attesting the proceedings. For this reason, the complainants have falsely implicated me and my sons. I also produce pedigree table Ex. D-6.
15. The accused had examined Kartar Singth father of Puran Singh appellant in their defence and he stated that, 61/4 months before he gave his evidence, at about 8 or 9 P.M. he was coming after a round of his fields and was proceeding towards his house, that he was having a spear with him, that Tarlok Singh deceased met him near the corner of phirni having a dang with him, that he (Tarlok Singh) gave a dang blow on his head, that they exchanged blows, that Tarlok Singh fell down and that he went to his house. He further stated that on the next morning when he was going to the hospital, Assistant Sub-Inspector Hardhand Singh met him, that he narrated the facts to him and also took him to the place where he had fought with Tarlok Singh deceased, that the Assistant Sub-Inspector kept him sitting through the day and that he was sent to the hospital at about 7 P.M. where he was medically examined.
16. The learned Counsel for the appellants vehemently contended that the case of Puran Singh appellant is similar to that of Kartar Singh accused, since acquitted, as Lalkaras were attributed to both of them so he also deserves to be acquitted. With regard to Jagir Singh appellant the learned Counsel for the appellants contended that according to the prosecution he was armed with a Takwa but the injury of Tarlok Singh attributed to him, was only a superficial incised wound and that he had no animus to cause any injury to Tarlok Singh deceased. He further contended that Jagir Singh also had no reason to cause any injury to Darshan Singh. P.W., and that the conduct of the latter showed that he was not a truthful witness.
17. It is in the evidence of Joginder Singh and Mst. Harbans Kaur, the alleged eye-witnesses, that Puran Singh and Kartar Singh had only raised Lalkaras that Tarlok Singh should be killed. The learned Sessions Judge observed in his judgment that 'evidently, therefore, the presence of these two accused at the scene of occurrence becomes doubtful but the case of Puran Singh accused again becomes distinguishable from the other accused Kartar Singh because in the F.I.R. it is stated that D.W. 1' Kartar Singh who happened to be the father of Puran Singh accused had come to the spot to enquire about Puran Singh and consequently he received injuries at the hands of somebody by means of brick-bats. The conduct of D.W. Kartar Singh, therefore, confirms Puran Singh accused's presence at the spot of occurrence.' This finding of the learned trial Judge is not based on an admissible evidence on the file. Kartar Singh had appeared as D.W. 1 and he did not state that he (had come to the spot to jenquire about his son Puran Singh, The learned Sessions Judge has wrongly used the contents of the first information re-port as it is not a substantive piece of evidence. Thus the case of Puran Singh accused is similar to that of Kartar Singh accused, since acquitted, and as such he also deserves to be acquitted of all the charges. Consequently Puran Singh accused is also acquitted of all the charges.
18. So far as the case of Jagir Singh accused is concerned, according to the prosecution version he hit a takwa blow on the left chest of Tarlok Singh. The injury attributed to Jagir Singh was No. 5 on the person of Tarlok Singh deceased when he was examined by Dr. Mrs. 'Balwant Kaur Bedi. Injury No. 5 was only a superficial incised wound. In the opinion of Dr. Mrs. Balwant Kaur Bedi, injury No. 5, however, could have been caused if the edge of a spear could have been struck dangwise. If Takwa would have been used with some force, it must have caused a serious injury and not a superficial incised wound. It is alleged that Jagir Singh appellant was the friend of Pritam Singh Sarpanch but there is nothing on the file to show that he had any animus to cause injuries to Tarlok Singh deceased. Thus Jagir Singh had no reason to joint Pritam Singh and others for causing injuries to Tarlok Singh deceased.
19. Jagir Singh appellant was also convicted under Section 325, Indian Penal Code, for causing a grievous injury on the person of Darshan Singh, (P.W. 8). Darshan Singh (P.W. 8), belongs to village Basserpura. He is having land in villages Talwandi and Basserpura. Villages Talwandi and Basserpura are situated at a distance of one mile from each other and village Nathewal is in the midway. Darshan Singh, P.W. was going to village Basserpura as his brother Bachan Singh was seriously ill and that he was on his way. All the six accused in this case met him on the pathway. He enquired from the accused as to why they were going running and without replying they caused him injuries. This version of Darshan 'Singh finds no corroboration from the other evidence on the file except the injuries on his person. According to Darshan Singh he was taken by Anup Singh to his house after he had received the injuries, and from there a message was sent and his brothers took him to their house. Moreover, Darshan Singh, P.W., got himself medically examined on 3-2-1972. The doctor originally was of the opinion that he could not definitely state as to with which weapon injuries to Darshan Singh, P.W., had been caused. After seeing the X-ray report he stated that injury No. 2 could be due to blunt weapon hit. The doctor further stated that he could not definitely state as to whether the fracture near injury No. 2 of Darshan Singh could have been the result of the same blow with which injury No. 2 was caused or that the wound and the fracture were the result of two separate blows by different weapons. He further deposed that he also could not definitely state, as to whether the wound of injury No. 2 was the result of blow with a sharp edged weapon or with blunt weapon. Darshan Singh also did not lodge any report with the police. He had started getting his broken thigh treated from Jumma. In view of all these circumstances it is difficult to say that Jagir Singh appellant had caused injury No. 2 on the person of Darshan Singh. P.W. Thus the case against Jagir Singh appellant also cannot be said to have been proved beyond all doubts and as such he is also acquitted of all the charges. Similarly the story that Shamir Singh appellant caused an injury to Darshan Singh, P.W., cannot be believed and as such his (Shamir Singh's) conviction and sentence under Section 324, Indian Penal Code, and the convictions and sentences of Pritam Singh and Amar Singh appellants under Section 324, read with Section 149, Indian Penal Code, are also set aside.
20. With the acquittal of Puran Singh and Jagir Singh appellants, Section 148, Indian Penal Code, will not be applicable to this case and as such the convictions and sentences of the remaining appellants under Section 148, Indian Penal Code, are set aside. Further, with the acquittal of Jagir Singh, the convictions and sentences of the remaining appellants under Sections 325 read with Section 149, Indian Penal Code, are not maintainable and are also set aside. So far as the case, of Pritam Singh and his sons Shamir Singh and Amar Singh appellants, is concerned, the prosecution case is that two days before the present occurrence, they had raised changars in front of the house of Tarlok Singh deceased, that Tarlok Singh collected a Panchayat on the next day of that incident, that in the Panchayat Pritam Singh appellant was also summoned, that hot' words were exchanged between Pritam Singh appellant and Tarlok Singh deceased and that they were separated by the Panchayat people. It was on account of this incident that Pritam Singh appellant nursed a grudge against Tarlok Singh deceased. Pritam Singh appellant was armed with a kirpan, Shamir Singh appellant was armed with a spear and Amar Singh appellant was armed with a dang. The consistent version given by Prithpal Singh, Joginder Singh and Mst. Harbans Kaur, P. Ws. is that Shamir Singih appellant gave a spear blow on the left side of the abdomen of Tarlok Singh deceased, that Pritam Singh appellant gave a kirpan blow on his right hand and that Amar Singh gave a dang blow on his head. Tarlok Singh deceased was attacked when he was returning from the house of his brother Gursharan Singh. The fact, that Pritam Singh, Shamir Singh and Amar Singh appellants caused injuries to Tarlok Singh deceased when he was returning from the house of Gursharan Singh, shows that they had caused these injuries to him with a common intention. Injury No. 1 on the body of Tarlok Singh deceased was attributed to Amar Singh appellant and injury No. 3 was attributed to Shamir Singh appellant. In the opinion of the doctor, death of Tarlok Singh was due to injuries Nos. 1 and 3, which were sufficient in the ordinary course of nature to cause death. The version given by Prithpal Singh, Joginder Singh and Harbans Kaur, P. Ws., as against Pritam Singh, Shamir Singh and Amar Singh appellants is corroborated by the first information report and also from the medical evidence and it is established that they caused injuries to Tarlok Singh as a result of which he died. As said above, they caused injuries to Tarlok Singh with a common intention. Therefore, the convictions of Shamir Singh and Amar Singh appellants under Section 302, Indian Penal Code, are maintained.
21. Amar Singh appellant while examined under Section 342, Criminal Procedure Code, on 3-8-1972 gave his age as 15 years. The learned Additional Sessions Judge in the judgment also gave the age of Amar Singh appellant as 15 years. Under the East Punjab Children Act, 1949, 'child' means a person under the age of 16 years. When Amar Singh, at the time of his examination under Section 342, Criminal Procedure Code of 189 had given his age as 15 years, it was the duty of the trial Court, to make due enquiry as to his age and a finding to that effect should have been recorded stating his age as nearly as may be. The trial Court did not determine the age of Amar Singh. There is also no other proof on the file to determine the age of Amar Singh appellant. The learned trial Judge while recording the judgment gave the age of Amar Singh appellant as 15 years. Under these circumstances, the age of Amar Singh appellant at the time of commission of the offence shall have to be held as below 16 years and as such he has to be dealt with under the East Punjab Children Act, 1949.
22. In the opinion of the doctor the death of Tarlok Singh was due to injuries Nos. 1 and 3, Out of these two injuries, one is attributed to Amar Singh appellant. Amar Singh had caused only one injury to Tarlok Singh. In these circumstances, the offence committed by Amar Singh is not of such a serious nature that no punishment, which the Court, under the East Punjab Children Act, 1949, is authorised to inflict, will be sufficient. There is nothing on the file to show that Amar Singh was so unruly or of so depraved character that he is not a fit person to be sent to a certified school. He will, therefore, be dealt with under the provisions of East Punjab Children Act, 1949.
23. Under Section 42 of the said Act, a child can be detained in a certified school and the period of detention in any case cannot extend beyond the time when he would in the opinion of the Court attain the age of 18 years. The occurrence in this case took place on 27-1-1972. Amar Singh gave his age as 15 years on 3-8-1972. He has all the time been in jail and is now aged more than 18 years. The learned Sessions Judge instead of acting under the East Punjab Children Act, 1949, sentenced Amar Singh appellant to imprisonment for life which is not legally correct.
24. In the result we set aside the sentence of imprisonment for life awarded to Amar Singh and treat the sentence already undergone by him in the jail as a period of detention in a certified school and as he has completed the age of 18 years, we order that he be set at liberty, if not required in any other case.
25. The sentence of Shamir Singh appellant under Section 302, Indian Penal Code, is maintained.
26. The conviction of Pritam Singh appellant is converted from under Section 302 read with Section 149, Indian Penal Code, to under Section 302 read with Section 34, Indian Penal Code, but his sentence on this count is maintained.
27. This appeal is thus partly accepted.