JUDGMENT 1. 1. This appeal has been filed by the appellant Rajkumar, from Jail, against his conviction and sentence for the offences under Sections 302 and 323 IPC imposed by the Sessions Judge, Jaipur City, Jaipur, vide his judgment dated September 6, 1980, in Sessions case No. 6/1980. 2. The case of the prosecution is that the appellant was living in the Children Home at Hatroi, Jaipur City, Jaipur. Rangaswami deceased was also an inmate of the said Children Home. On 11th October, 1979 at about 11.30 p.m. the appellant entered in the room where Rangaswami was sleeping and assaulted Rangaswami with an iron-pipe. On hearing the cries of Rangaswami, Radhey Shyam PW 3 who was sleeping nearby woke-up and also raised a cry. Thereupon the appellant gave a blow with the pipe to Radhey Shyam and ran-away. The case of the prosecution is further that one day prior to the occurrence some quarrel had taken place between the appellant and Rangaswami and they were bearing enmity against each other. Rangaswami was removed from the hospital where he died on 12th October, 1979 at 12.45 A.M. A case was registered against the appellant and after investigation charge sheet was filed against the appellant in the court of Judicial Magistrate No. 2, Jaipur City, Jaipur and the appellant was committed for trial to the court of Sessions. He was charged with offence under Section 302 for committing murder of Rangaswami and an offence under Section 323 IPC for having caused simple hurt to Radhey Shyam PW 3. The Sessions Judge, vide his judgment dated 6th September, 1980 convicted the appellant for both offences. The appellant has been sentenced to imprisonment for life under Section 302 IPC and simple imprisonment for a period of three months under Section 323 IPC. Both the sentences have been ordered to run concurrently. Feeling aggrieved by the aforesaid conviction and sentence imposed on him the appellant has filed this appeal from Jail. 3. Smt. Gyanwati Dhakar was appointed as amicus-curiae to represent the appellant before this Court. Mrs. Both the sentences have been ordered to run concurrently. Feeling aggrieved by the aforesaid conviction and sentence imposed on him the appellant has filed this appeal from Jail. 3. Smt. Gyanwati Dhakar was appointed as amicus-curiae to represent the appellant before this Court. Mrs. Dhakar has submitted that the trial of the appellant was without jurisdiction in view of the provisions of the Rajasthan Children Act, 1970 (hereinafter referred to as the Act) since the appellant was a child on the date of the occurrence and that the conviction of the appellant for the offences for which he has been convicted and sentences imposed on him for the said offences cannot be sustained. In support of her aforesaid submission Mrs. Dhakar has pointed out that according to the prosecution itself the appellant was an inmate of the Children Home on 11th October, 1979, the date of occurrence and since the Children Home are set up under the Act and only a child can be an inmate of a Children Home, the appellant was a child on the date of the occurrence and he could only be dealt with in accordance with the provisions of the Act. 4. In view of the aforesaid submission of Mrs. Dhakar, we considered it necessary to examine the record of the Children Home, Jaipur, relating to the appellant and we directed the learned Public Prosecutor to produce the said record before the Court. The said record was produced before the Court by the learned Public Prosecutor and on examining the said record it was considered necessary in the interest of justice to record the statement of Shri Shivchand Jain, Superintendent, Children Home, Jaipur as a Court witness and statement of Shri Shiv Chand Jain was recorded. Shri Shivchand Jain has placed on record the order on the basis of which the appellant was detained in the Children Home at Jaipur and the same has been Exhibited at Ex.C.W. 1. By the said order Ex.C.W 1 dated 6th July, 1978 passed by the competent Authority, Children Board, Kota, the appellant along with his brother Daulat Ram were directed to be detained in the Children Home at Jaipur. In the said order the age of the appellant is mentioned as 12 years and the age of his brother, Daulat Ram, is mentioned as 10 years. In the said order the age of the appellant is mentioned as 12 years and the age of his brother, Daulat Ram, is mentioned as 10 years. From the aforesaid document it is clearly established that the age of the appellant on the date of the occurrence was less than 16 years and he was a child for the purpose of the Act. Under Section 2(d) of Its Act the word "child" has been defined to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. 5. It may be mentioned that in the Arrest Memo Ex.P. 4 dated 12th October, 1979, the age of the appellant has been mentioned as approximately 17 years and when his statement was recorded before the Sessions Judge under Section 313 Cr.PC on 14th August, 1980 the appellant had disclosed his age as 17 years and the learned Sessions Judge had estimated his age as 18 years. No enquiry was, however, made before the trial Court with regard to the age of the appellant. In the absence of any such enquiry we cannot accept the rough assessment about the age of the appellant in the arrest memo and the statement recorded under Section 313 Cr.PC. We are of the opinion that in view of the record relating to the detention of the appellant in the Children Home at Jaipur, as proved by Shri Shiv Chand Jain, it must be held that the appellant was below 16 years of age, and was a child on the date of occurrence. 6. In this context we may refer to the recent decision of Supreme Court in Gopinath Ghosh v. The State of West Bengal, AIR 1984 SC 237 . In that case one of the accused was found to be a child governed by the provisions of the West Bengal Children Act, 1959. During the course of his examination before the trial court he had given his age as 20 years and no objection with regard to the jurisdiction to proceed with the trial was raised either before the trial court or before the High Court. The said objection was raised for the first time in appeal before the Supreme Court. During the course of his examination before the trial court he had given his age as 20 years and no objection with regard to the jurisdiction to proceed with the trial was raised either before the trial court or before the High Court. The said objection was raised for the first time in appeal before the Supreme Court. the Supreme Court permitted the said objection to be raised and called for a finding about the age of the said accused from the trial court and on the basis of the said finding held that the accused was a child on the date of the commission of the offence. In the said case the Supreme Court has held as under: "Unfortunately, in this case, appellant Gopinath Ghosh never questioned the jurisdiction of the Session Court, which tried him for the offence of murder. Even the appellant had given his age as 20 years when questioned by the learned Addl. Sessions Judge. Neither the appellant nor his learned counsel appearing before the learned Additional Sessions Judge as well as at the hearing of his appeal in the High Court ever questioned the jurisdiction of the trial court to hold the trial of the appellant nor was it ever contended that he was a juvenile delinquent within the meaning of the Act and, therefore, the Court had no jurisdiction to sentence him to suffer imprisonment for life. It was for the first time that this contention was raised before this Court. However, in view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its police towards securing that Children are given opportunities and facilities to develop in a healthy' manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit or the provisions being extended to the appellant, if he was otherwise entitled to it." 7. In view of the aforesaid decision of Supreme Court mere fact that the appellant did not challenge the jurisdiction of the Sessions Judge during the course of trial or he disclosed his age as 17 years during the course of his examination under Section 313 Cr. P.C. he cannot be precluded from raising this question before this Court. We have therefore, permitted the appellant to raise this question and have examined this question and have found that the appellant was a child on the date of occurrence. Once it is held that the appellant was a child on the date of the occurrence it necessarily follows that the Sessions Judge had no jurisdiction to try the appellant in view of the provisions of the Act and the appellant could only be dealt with in accordance with the provisions of the Act. 8. The aforesaid discussion leads to the conclusion that the conviction of the appellant for the offences under Sections 302 and 323 IPC and the sentence imposed upon him for the said offences by the Sessions Judge cannot be upheld and must be set-aside and the case must be remitted to the Children's Court, Jaipur for proceeding further in accordance with Law Keeping in view the provisions of the Act. 9. In the result the appeal is allowed. The conviction and sentences imposed upon the appellant for the offences under Sections 302 & 323 IPC are set-aside and the case is remitted to the Children's Court, Jaipur for proceeding further in accordance with law keeping in view the provisions of the Act. Taking into consideration the facts and circumstances of the case, we consider that this is a fit case in which the appellant may be released on bail on his furnishing a personal bond for a sum of Rs. 2,000/-. The appellant is directed to appear before the Children's Court, Jaipur on 18th January, 1985.Appeal allowed. *******