AKSHAY H. MEHTA, J.

( 1 ) THE appellant has challenged his conviction under section 302 of the Indian Penal Code [hereinafter referred to as the IPC] and also the consequential order of sentence directing him to suffer rigorous imprisonment [ri] for life and to pay fine of Rs. 2,000/=, in default to undergo further RI for two months. He has been convicted by the Ld. Addl. Judge and Fast Track Court Judge, Chhota Udepur, in Sessions Case No. 55 of 2003 by judgment dated 17th May, 2004.

( 2 ) FACTS constituting the present prosecution, in short, can be stated as under :-2. 1. ON the date of the incident i. e. 9th March, 2003 the informant and his elder brother Ramsing were going to their uncles place at about 6. 00 p. m. for settling the accounts with regard to wood. They were returning at about 6. 45 p. m. At that time the present appellant alongwith one Gumanbhai Kukabhai Rathwa accosted them in the field of Bhimla Bhuraliya. It is the case of the prosecution that the appellant darted an arrow at the informant and his brother Ramsing. The arrow hit brother of the informant on the left hand side near armpit. Ramsing, therefore, fell down on the ground. It is the case of the prosecution that at that time Gumanbhai was giving filthy abuses and was instigating the appellant to kill the informant and Ramsing. The informant immediately went to the house of his uncle and came back in company of his relatives at the place where Ramsing was lying. When they came there, they found that Ramsing was already dead. They, therefore, went to Rangpur Police Station and lodged complaint against the present appellant. According to the informant, the motive for assault was a land dispute. 2. 2. ON receipt of the FIR, offence was registered against the appellant and investigation was started. After due investigation, the charge-sheet was submitted in the Court of the Ld. Judicial Magistrate First Class at Chhota Udepur, who in turn committed the case to the Court of Sessions since offence under section 302 of the IPC is exclusively triable by the Court of Sessions. 2. 3. AT the trial, the Sessions Court framed charge against the appellant at Exh. 3. The appellant denied his guilt and claimed to be tried. 2. 4. AT the hearing of the case, prosecution examined 8 witnesses and also produced documentary evidence in support of its case. At the end of the recording of the evidence, the learned trial Judge recorded the further statement of the appellant under section 313 of the Code of Criminal Procedure [hereinafter referred to as cr. P. C. ]. It appears that no specific defence was raised except that of general denial. 2. 5. AS stated above, at the end of the trial the appellant was convicted for offence under section 302 of the IPC and sentenced to suffer RI for life. The said judgment and order of conviction and sentence are challenged in this appeal.

( 3 ) AT the time of preliminary hearing of the appeal for admission and hearing of the application filed under Section 389 of the Cr. P. C. by the appellant, it was submitted by Mr. Kalathil, learned advocate appearing for the appellant that the appellant was juvenile at the time when the offence was committed and he ought to have been tried in accordance with the provisions of the Juvenile Justice [care and Protection of Children] Act, 2000 [hereinafter referred to as the Act]. According to him, this fact was never noticed at the time of trial by all concerned and it came to light only after the trial was over and the judgment was pronounced. Having regard to this submission made before us and in view of the decision of the Apex Court rendered in the case of Gopinath Ghosh v/s. State of West Bengal reported in 1984 (Suppl.) S. C. C. p. 228, we had directed the trial Court vide order dated 20th July, 2004 passed in the present appeal for determining the following issue:-"what was the age of the accused Nanlabhai Kukabhai Rathwa on the date of offence for which he was tried and convicted?"while remitting

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