JUDGMENT

K. Venkataswami, J.-The appellants alongwith one Shiv Kumar and Guddan were tried by the Sessions Court, Aligarh for the offences under Section 302 read with Section 34 IPC. The appellants and Guddan, in addition to the offences mentioned above, were tried for an offence under Section 394 IPC. One of the appellants Kailash son of Prem, (second appellant) and Guddan were further tried under Section 4/25 of the Arms Act also. The trial Court acquitted Shiv Kumar of the offences under Section 302 read with Section 34 but convicted him for an offence under Section 411 IPC. The appellants and Guddan were convicted for the offences charged against them. Additionally the second appellant was convicted under Section 4/25 Arms Act.

2. All the accused preferred appeals to the Allahabad High Court and the High Court while maintaining the conviction quashed the sentence imposed on Shiv Kumar and Guddan on the ground that they were minors when the offence was committed and by the time the judgment was rendered by the High Court they were majors (30 years ) and they could not be sent to approved school, purporting to follow the judgment of this court in Jayendra v. State of U.P.1. Accordingly the two appellants alone have preferred these two appeals.

3. Briefly stated, the facts as presented by prosecution are as follows :-

On 15.5.1977 at about 2.30 p.m. Kumari Manju Rani (PW 1) leaving her mother, grand-mother (both deceased) and one younger brother in Bara Mohalla, went to the house of one Jagdish Prasad to witness the bedai of Shobha, daughter of Jagdish Prasad. On her return at about 3.15 p.m., she found her house was locked from outside but the room adjacent to the courtyard was kept open. She entered the room and found her mother and grand-mother murdered. She raised an alarm and the neighbours collected there. She found that some ornaments and cash were missing. She lodged the first information report against unknown persons on 15.5.77 at police station Shastrigate at about 4 p.m. It is situated at a distance of 4 furlongs from her house. Her father by name Kishan Chandra (PW2) was in the service at Meerut. On hearing the news, he came to Aligarh the next day and he submitted the list of articles stolen from the house. On the basis of the statement recorded from Manju Rani (PW 1), a panchnama was prepared and the bodies were sent for post-mortem. The investigating officer collected blood and the blood-stained articles from the spot and prepared a site plan. While investigation was in progress, one Satish Chandra (PW 8) informed Sri Niwas (PW 9) on 17.5.77 that he saw on 15.5.77 (date of occurrence) at about 3 p.m. the appellants and Guddan coming out of the house of Kishan Chandra where the incident had taken place. This information was duly conveyed to the investigating officer. This gave some clue to the investigating officer to proceed further in the matter. After recording the statement of Satish Chandra and Sri Niwas, the investigating officer took steps to apprehend the culprits. Only on 20.5.77, they could arrest Kailash son of Kanhai (1st Appellant) at about 7 p.m. On search of Kailash, notices of one rupee for Rs. 21/- were recovered. He also noticed the shirt (Exbt.17) worn by the said Kailash, contained blood stains. That shirt was also taken into custody. On interrogation, he disclosed the name of Shiv Kumar as one of the associates in the commission of crime. Later on, Shiv Kumar also was arrested on the same evening at 8.30 p.m. in his house and 19 currency notes of one rupee each, gold earring and a piece of gold earring were recovered from his person. Kailash son of Kanhai (1st Appellant) disclosed that one jhola and one novel of Kishan Chand (PW 2) were in his custody at the house of one Shakuntala (PW 4). Investigating officer proceeded to the house of Shakuntala alongwith the said two accused and at about 10 p.m. recoveries were made of the jhola (Exbt. 12) and the novel (Exbt.13). The novel contained blo