IMPORTANT POINT
The court affirmed the conviction but set aside the sentence for a juvenile offender, imposing a fine instead, in accordance with juvenile justice provisions.

JUDGMENT :

RAM MANOHAR NARAYAN MISHRA, J.

1. Instant Criminal Appeal has been preferred under Section 374 Cr.P.C. against the judgment and order dated 22.10.1983 in St. No. 438 of 1982 State Vs. Dodraj and others, whereby the accused appellants Shree Ram, Ram Bahadur were convicted for charge under Section 302/149 IPC and Section 148 IPC, for which they were sentenced to imprisonment for life and one year rigorous imprisonment respectively and the remaining five accused persons Dodraj, Ram Swaroop, Neksoo, Summeri alias Bhadain and Kallan alias Kalyan were convicted under Sections 147 and 302/149 IPC and each of them have been sentenced to six months rigorous imprisonment for charge under Section 147 IPC and life imprisonment for charge under Section 302/149 IPC. Both the sentences were directed to run concurrently.

2. The appellants were enlarged on bail vide order dated 27.10.1983 passed in instant appeal during the pendency of appeal. Appellants Dodraj, Ram Swaroop, Neksoo, Summeri alias Bhadain, Shree Ram and Kallan alias Kalyan have died during the pendency of appeal and appeal has been dismissed for these deceased appellants as having abated by various orders passed by this Court in the present appeal. Thus the appeal at present survives in respect of appellant Ram Bahadur only, and it has been argued in respect of appellant Ram Bahadur by the learned counsel for the parties.

3. This fact is noticeable that appellant No. 2 Ram Bahadur, the sole surviving appellant moved an application before this Court with a prayer to consider his juvenality at the time of offence, as he was aged about 17 years at the time of incident. This Court heard learned counsel for the parties, on this application filed on behalf of appellant No. 2 Ram Bahadur, wherein he claimed juvenality, and on 16.02.2022 passed an order to the effect that the application filed by the applicant/appellant alongwith all the documents be forwarded to the concerned session judge, and, in turn, the concerned sessions judge shall conduct an appropriate inquiry for determining the age of the appellant No. 2. It is also directed in the said order the the concerned sessions judge, after conducting an appropriate inquiry in accordance with law, shall send his report before this Court.

4. In compliance of this Court’s order dated 16.02.2022 a report dated 28.09.2022 alongwith lower court record has been received from District and Sessions Judge, Budaun, wherein it is stated that at the time of incident appellant Ram Bahadur was juvenile. There is nothing on record which could manifest that any appeal or revision was filed on behalf of State or defacto complainant. Interms this finding of juvenality recorded by learned Sessions Judge, the appellant would be treated as juvenile for the purposes of present criminal appeal.

5. Heard Sri Rahul Mishra, learned counsel for the appellants and Sri Rahul Asthana, learned AGA for the State.

6. The factual matrix of prosecution case in nutshell are that informant Ramavtar lodged an FIR by filing written report bearing dated 05.07.1982 at P.S. Ujhani, District Budaun, wherein he stated that there was enmity between his family members and accused Dodraj. A dacoity had taken place at the house of accused Dodraj, and for that dacoity deceased Ram Prakash who was brother of the informant was named an accused and he was challaned, his brother Ram Prakash acquitted of said charge of dacoity by court of session on 28.06.1982. On 05.07.1982 the deceased Ram Prakash, his brother Ramavtar PW2, and his father Brij Lal PW3 were going to Ujhani town to get wheat grinded and to purchase other articles for the Katha (a religious ceremony) by a bullock cart. At about 07:30 am they reached near railway line crossing which was very close to their village, the accused Dodraj, Ram Swaroop, Neksoo, Summeri alias Bhadain, Ram Bahadur and Kallan alias Kalyan, met them on way who has come from other side and were armed with lathis and kanta. They stated that they