ORDER :- Special leave is granted only to the appellant Kehar Singh son of Ghanshyam. In respect of others the Special Leave Petition is rejected.

2. The appellant Kehar Singh with his brother Dhir Singh and father Ghanshyam and acquitted accused Hukum Singh were tried by the learned III Additional District and Sessions Judge, Saharanpur, for having committed offences under Ss. 302/34 and Sections 323/34 of the Penal Code. Hukum Singh was acquitted. The remaining three accused including Kehar Singh were convicted for both the offences and with respect to the first offence each one of them was sentenced to suffer imprisonment for life and in respect of the second offence, rigorous imprisonment for six months. Substantive sentences were directed to run concurrently.

3. The appellant, his father Ghanshyam and brother Dhir Singh preferred Criminal Appeal No. 2170 of 1976 in the High Court of Judicature at Allahabad. A Division Bench of the High Court dismissed the appeal and confirmed the conviction and sentence of Ghanshyam and Dhir Singh but while confirming the conviction of appellant Kehar Singh the High Court set aside the sentence and referred his case to the State Government under Section 32 of the Uttar Pradesh Children Act, 1951 (Act for short) and pending the decision of the Government under S. 32 (2), Kehar Singh was directed to be kept in safe custody in jail but he was neither to be treated as convict serving a sentence nor undertrial and the confinement was for safe custody only.

4. All the three convicted accused moved an application to obtain special leave to appeal against the judgment of the High Court. When this matter earlier came up before Baharul Islam and V. Balakrishna Eradi, JJ., a notice was ordered to be issued limited to the question of the right of private defence claimed by the petitioners. Thereafter the matter came before us and after hearing the learned counsel, Mr. R. K. Garg, for the petitioners and the learned counsel Mr. Bharadwaj for the respondents, we granted leave to appellant Kehar Singh alone and rejected the special leave petition of the other appellants. With the consent of the parties we heard the appeal on merits.

5. There was some civil dispute between the deceased Dhoom Singh and the father of the appellant, Kehar Singh. Dhoom Singh apprehending danger to his life had sent an application on June 16,1975 to the Superintendent of Police, Saharanpur, complaining that not only his life but the life of his son was in danger at the hands of Ghanshyam, Hukum Singh and others. There were some unsuccessful attempts at reapproachment between the parties. It is the prosecution case that on June 21, 1975, deceased Dhoom Singh, P. W. 2 Dharampal and one Chuttan, when they were on their way to Pir Ka Maidan, were intercepted by the acquitted accused Hukum Singh and the three co-accused. Hukum Singh had a tabal with him and each of the three co-accused, including the present appellant, was armed with a lathi. It is the prosecution case that all the four accused persons started belabouring Dhoom, Singh. P. W. 2 Dharam Pal intervened to rescue Dhoom Singh and in the process suffered a lathi blow at the hands of accused No. 1 Ghanshyam Singh. Accused No. 2 Dhir Singh is said to have given a lathi blow on the head after Dhoom Singh had fallen down. Dhoom Singh fell on the ground and died on the spot. A report was sent to the police station and after usual investigation the four accused hereinbefore mentioned were charge-sheeted and tried and dealt with as mentioned above.

6. The limited question before us is whether the participation by Kehar Singh is established to the satisfaction of the Court. The first thing to note is that Kehar Singh is the younger son of the original accused No. 1 Ghanshyam. At the relevant time it is an admitted position that the appellant was aged 15 years and this is borne out by the endorsement made by the trial Court in the Court proceedings. It is found as a fact that on the d