INDU PRABHA SINGH, J.
(1.) Criminal Appeal No.186 of 1992 and Criminal Appeal No. 210 of 1992 arise out of the same judgment. They have been heard together and are being disposed of by this common judgment.
(2.) Both the appellants Ajay Singh and Ashok Singh have been convicted under Sections 304-Part 11/34 of the Indian Penal Code and were sentenced to undergo R.I. for five years each.
(3.) The prosecution case as disclosed on the basis of fardbeyan of the informant at about 2.00 a.m. in the early morning on 3.5.1989 is that the informant had settled marriage of his daughter Nilu Kumari with one Narendra Singh of District Chapra. Accordingly, barat reached his village in the previous evening and was staying in the building of Sanskrit Middle School. Thereafter barat party took their refreshment at the house of the informant and at about 8.00 p.m. they started back to 'Janbasa'. It has been alleged that two to three boys of barat were going behind them while the barat party was going to janbasa. The informant himself and Sitaram Singh, Punyadeo Singh. Kameshwar Singh, Devendra Singh and Chandeshwar Singh of the same village were also going. When these persons reached on the road by side of the pond which was to the north of that school they saw Ajay Singh and Ashok Singh both accused came from behind and overtook the informant and others going with him and started cutting jokes with those boys of the barat party who were going ahead. The boys of barat objected to the dirty talks at which it has been alleged that Ashok and Ajay started abusing and quarreling with them In the meantime, Ashok Singh caught hold of one boy of the barat and Ajay Singh took out a dagger from his waist and inflicted the dagger blow in the chest of the boy. The boy cried loudly and fell down on the earth at which both the accused fled away. The informant and others started lifting the boy and arranged for the docto
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r but the boy expired. The persons of the barat also came there from where they learnt that the name of the boy was Mukesh Kumar Singh. This occurrence took place in the night at 8.30 p.m.
(4.) On the basis of the fardbeyan on the informant the formal FIR was registered. The police started investigation and submitted charge-sheet. Accordingly, cognizance was taken and case was committed to the Court of Session for trial.
(5.) The appellants pleaded not guilty and have stated that they have been falsely implicated in this case.
(6.) The prosecution, in support of its case examined altogether five witnesses. PW1 is Punyadeo Singh, co-villager and eyewitness. PW2 is Laxmi Singh, co-villager and eyewitness. PW3 is Ram Niranjan Singh, the informant. PW4 is Dr. Manoranjan Kumar Srivastava and PW5 is Babulal Prasad, the I.O. of this case.
(7.) The defence has examined only one witness as DW 1, namely, Krishnadeo Singh. He has proved informatory petition filed by Baidyanath Singh, father of the appellant, Ajay Singh.
(8.) PW1 Punyadeo Singh co-villager claims to be the eyewitness of the occurrence. According to him at about 8.00 p.m. he was going to janbasa along with the informant. Laxmi Singh, Chandeshwar Singh. Sitaram Singh, Devendra Singh, Kameshwar Singh and Ganesh Singh and some other villagers to call those of barat party who had not taken their refreshment. He has also stated that the daughter of the informant was to be married with the grandson of Ganga Babu of District Chapra. According to him, the accused persons Ajay Singh, Ashok Singh. Siyaram Singh and Binod Singh were also going along with them with two boys of barat side, one was aged about 14 years and another was aged about 9 to 10 years old. He has also stated that when these two boys reached near the pond which was near the Sanskrit Middle School the accused started abusing these two boys. Thereafter, Binod Singh and Siyaram Singh ordered to kill them on which Ashok Singh caught hold of arm of the boy and Ajay Singh assaulted on the chest of one boy who was aged about 14 years with dagger. After receiving injury he fell down and the accused persons fled away. Thereafter barat party came and saw the occurrence and disclosed the name of the deceased as Mukesh Kumar Singh. He has also stated that the deceased Mukesh was the nephew of the bridegroom. He has also stated that after the occurrence barat party returned back without performing the marriage of the daughter of the informant. He has also stated that the generator was functioning and in the light of the generator he identified the accused persons.
(9.) PW 2 co-villager Laxmi Singh has also supported the case of prosecution. According to him, the barat party had gone back to the janbasa after taking refreshment, he along with others, whom he had named, including the informant were going to janbasa for requesting the rest of the baratis to take their refreshment. According to him, when they were going, ahead of them two boys of barat aged about 14 years and 8/9 years respectively were going and along with these two accused Ajay Singh and Ashok and their companions were also with them. He has stated that both the parties were cutting jokes and thereafter they started quarrelling with one another and upon this Siyaram Singh and Binod Singh ordered to kill him. Whereupon the accused Ashok Singh caught hold the arm of the deceased and Ajay Singh inflicted dagger blow in the chest of the deceased. He fell down and after sometime died. Thereafter all the accused persons fled away and while fleeing away the chappal and one cycle of the accused Ashok Singh were left.
(10.) PW 3, the informant Ram Niranjan Singh has fully supported the case of prosecution as stated in his fardbeyan. According to him, it was the time of the marriage of his daughter. The barat party had come and stayed at the Sanskrit Middle School in that village and at 7 p.m. barat had reached his house and the baratis had taken their light refreshment there but some baratis had remained in the janbasa and therefore they were going to request them to come and take their refreshment. He along with Laxmi Singh, Punyadeo Singh, Sitaram Singh, Devendra Singh, Kameshwar Singh and Ganesh Singh and some other villagers were going to janbasa. He has stated that the accused Ajay Singh and Ashok Singh were also going with them and the two boys of barati aged about 13/14 years and 9 years were also going with them. Thereafter they started cutting jokes and began to quarrel. He has stated that when they reached on the road near the pond, Siyaram Singh and Binod Singh shouted and ordered to kill him upon which the accused Ashok Singh caught hold of the arm of the deceased and accused Ajay Singh gave one chhura blow on his left side of the chest and the boy having received injury fell down and the accused persons fled away. The boy whose name was Mukesh died there. He has also stated that the marriage of his daughter was not performed and the barat party had returned back.
(11.) PW4 is Dr. Manoranjan Kumar Srivastava. He has stated that on 3.5.1989 at 11.30 a.m. he held the post-mortem examination on the dead body of deceased Mukesh Kumar Singh and found following ante-morten, injuries:
(1) Incised and punctured wound 1" x 1/2 x heart deep on the left side of the chest on mid-clavicluar line on fifth intercostals space. 11/2 lateral to the left nipple. On opening the chest, the heart was found punctured on its upper border with one pint of blood present in thorasis cavity. According to him, the cause of death was due to shock and haemorrhage due to the above mentioned injuries. The doctor opined that the injury was caused by a sharp pointed weapon which might be a dagger (chhuru).
(12.) PW5 Babulal Prasad is the IO of this case. He has stated that he reached the village of the informant in the midnight and recorded the fardbeyan of the informant and he put his signature over it. He started investigation and also examined the deceased Mukesh Kumar Singh and prepared the requisition of the deceased. On the place of occurrence he found one pair of plastic chappal and one Hiro Bicycle and also seized the blood stained soil and prepared seizure list. It has been marked as Ext. 6 Thereafter he again recorded the statement of the informant and inspected the place of occurrence. He has given vivid description of the place of occurrence. Thereafter he recorded the statement of the witnesses and he started to search the four accused persons. He found that they were absconding. After completion of investigation he-submitted charge-sheet.
(13.) It has been seriously contended, an behalf of the appellants, that in both these appeals the appellants were juveniles on the alleged date of occurrence and as such they should not have been convicted and punished in this manner by the trial Court. On behalf of the prosecution it has been contended that since this plea was not raised before the trial Court by the defence it cannot be raised here for the first time in the appeal. This point has, however, been well- settled by the Hon'ble Supreme Court in the case of Gopinath Ghosh v. The State of West Bengal, AIR 1984 SC 237. in which it was held that even if the pLea of minority is taken f