Judgment :

B. SUDERSHAN REDDY, J.

1. Criminal Miscellaneous Petition in Special Leave Petition (Crl.) No. 4724 of 2004 has been taken up and allowed. The Special Leave Petition shall stand restored to the file. Leave granted.

2. These appeals are directed against the common judgment and order dated 27th April, 2004 of the High Court of Judicature at Patna in Criminal Appeal Nos. 649 of 1987 and 14 of 1988 whereby the High Court dismissed the Criminal Appeals filed by the appellants, confirmed their conviction for the offence punishable under Section 302 read with Section 34 of I.P.C. for committing murder of one Surender Choudhary and accordingly sentenced them to undergo life imprisonment.

3. When the matter came up for hearing, Shri K.V. Vishwanathan, learned senior counsel appearing for the appellant Lakhan Lal, submitted that since at the time of commission of the said offence, the appellant had not completed 18 years of age, he was a `juvenile' within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the 2000 Act") and therefore, the order of sentence passed against the appellant for the offence committed by him under Section 302 read with Section 34, IPC is to be set aside.

4. We find that the conviction of the appellants is based upon the evidence of Malti Devi (PW1), wife, Sumitra Devi (PW2), mother and Lakhan Choudhary (informant) (PW3), father of the deceased Surender Choudhary who were all eyewitnesses to the incident and there is absolutely no reason to disbelieve their evidence. Dr. R.P. Jaiswal (PW5) who conducted the postmortem examination over the dead body of Surender Choudhary found ante mortem injuries on his person and according to him, the cause of death was shock and hemorrhage as a result of the injuries caused by sharp cutting penetrating substance such as churra (dagger). Those injuries were attributed to have been caused by the appellants Pappu Lal who was armed with a churra and Lakhan Lal who was armed with a country made pistol. These facts need not detain us any further since the conviction of the appellants for the offence punishable under Section 302 read with Section 34, IPC is not in issue.

5. Sofaras Pappu Lal @ Manoj Kumar Srivastava, the appellant in SLP (crl) No. 4724 of 2004 is concerned, the special leave petition preferred by him was dismissed by this Court on 8th April, 2005 with the following order:

"It is admitted that neither The Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) nor the Juvenile Justice Act, 1986 nor the Bihar Childrens Act would apply as on the date of the occurrence the appellant was 16 years and 10 months old. On merits we see no reason to interfere. Accordingly, the petition shall stand dismissed".

In fact, on the date of occurrence, that is to say 9.5.1985, the appellant was aged about 16 years and 5 months as the same is evident from the certificate dated 6.8.1983 of the Bihar School Education Board wherein the date of birth of Pappu Lal is recorded as 9.12.1968. This certificate is made available for the perusal of the court.

6. The appellant Pappu Lal, relying on the judgment of this Court in Dharambir Vs. State (NCT of Delhi) & Anr. ((2010) 5 SCC 344) filed an application to recall the order dated 8th April, 2005 passed by this Court dismissing his Special Leave Petition and to restore the special leave petition to its original number. The application is ordered accordingly and that is how we have taken up both the appeals for hearing.

7. There is no dispute whatsoever before us as it is fairly conceded by the learned counsel Shri Manish Kumar, appearing for Shri Gopal Singh, learned counsel for the State of Bihar that both the appellants were minors as on the date of incident i.e., 9th May, 1985. The appellant Lakhan Lal was aged about 16 years 10 months and the other appellant Pappu Lal was aged about 16 years 5 months as on the date of occurrence of t