JUDGMENT 1. - The Additional Sessions Judge Gangapur City under his judgment dated April 30, 1979 convicted each of the accused-appellants under Section 376 IPC and each of the accused appellants was sentenced to undergo rigorous imprisonment for five years. 2. The case relates to the commission of rape by each of the accused-appellants with Kumari Sua Bai PW. 1 who, at the time when the offence was committed, was aged 7 to 8 years. The case of the prosecution is that on September 1, 1978 at about 12 noon when Miss Sua Bai was grazing her cows, both the accused-persons committed rape on her. A report of the incident was lodged by PW. Gopal and a case was registered. Investigation was set in motion. Dr. Ramesh Bansal PW 5 on Sept 1, 1978 itself examined Kumari Sua Bai and on examining her the doctor opined that she was about 8 to 10 years On examining her private parts, it was found that there was vertical tear 1 cm on posterior commissure of vulva with fresh bleeding. The hymen was ruptured with bleeding. Vagina was red and swallen The examination of private part was painful and vaginal orifice admits only one little finger. The injuries were fresh and caused by blunt object and the injuries were simple in nature. She was wearing dharidar under-wear and a white sari. The under-wear had red stains over front and sari had red stairs (suspected blood). Those were preserved and sealed. The doctor advised X ray and after seeing the X ray plates he was of the opinion that the age of the girl was 8 to 10 years. 3. The each of the accused persons was examined by Dr. Bansal and on examining J3gdish, in the opinion of the doctor, he was 16 years of age and was able to perform sexual inter-course. The doctor also examined Ratti Ram, the doctor was of the opinion that he was 15 years of age on the date of incident and was able to perform sexual inter-course. 4. A charge sheet was filed against both the accused-appellants. The appellants pleaded not guilty and claimed to be tried. The doctor also examined Ratti Ram, the doctor was of the opinion that he was 15 years of age on the date of incident and was able to perform sexual inter-course. 4. A charge sheet was filed against both the accused-appellants. The appellants pleaded not guilty and claimed to be tried. Each of the accused-appellants in his statement under Section 313 Cr.P.C. came up with a case that they have been falsely implicated in this case as per the case of Jagdish appellant, cattle of the father of Sua Bai used to trespass into the fields of his father and when his father protested and asked him why the cattle trespassed into his fields, he did not pay any heed and he has been falsely implicated. Accused-appellant Ratti Ram came up with a plea that there was a dispute in between his father and Gopal and therefore he has been falsely implicated in this case. The learned trial court after trial convicted and sentenced both the appellants as aforesaid. 5. The contention of the learned counsel for the appellants is that at the time of commission of offence both the appellants had not attained the age of 16 years and each of them was a child within the meaning of Section 2 (d) of the Rajasthan Children Act, 1970 (for short, the Act). But at the time when the offence was committed, and the learned trial court tried the accused appellants the Act was not in force in Sawai Madhopur district and during the appeal it came into force. Therefore, it can be said that the proceedings were still pending against the accused-appellants and the accused-appellants should be dealt with under the provisions of the Act and more so under the provisions of Section 26 of the Act. It is also contended by the learned counsel that the Act being a beneficial piece of legislation, its provisions should be liberally construed. The action of the State Government in extending the Act to some districts while not extending the same to others is discriminatory, when the children of the State form one class. It is also contended by the learned counsel that the Act being a beneficial piece of legislation, its provisions should be liberally construed. The action of the State Government in extending the Act to some districts while not extending the same to others is discriminatory, when the children of the State form one class. Apart from this according to the learned counsel, each of the accused-appellants who was a child at the time of commission of offence and that date is relevant for the purpose of the applicability of the Act, has already undergone the sentence and that should meet the ends of justice, when each of the accused-appellants has now grown up man and has settled in life. 6. The first question is about the age of each of the accused-appellants as on it will depend further questions agitated before me. As shall be presently shown there should not he dispute that at the time of commission of offence, the age of the accused-appellant was less than 16 years. In other words, each of the accused-appellant had not attained the age of 18 years at the time of commission of offence. In this connection a reference may be first made to the arrest memos of the appellants Ex. P/13 and Ex. P/14. A look at Ex P/13 arrest memo of Jagdish appellant will show that the age has been mentioned about 16 years A look at Ex. P/14 arrest memo of Ratti Ram will show that the age of Ratti Ram has been shown about 15 years Even Dr. Bansal PW 5 in his statement has stated that on September 4, 1978 he examined Jagdish and on the date of examination he was 16 years of age. He further states that on examining Ratti Ram he was of the opinion that Ratti Ram was 15 years of age on the date of his examination. Thus, from the evidence i.e. the arrest memo as well as statement of the doctor it can be said that the age of the accused-appellants was less than 16 years and none of them attained the age of 16 years. Thus, from the evidence i.e. the arrest memo as well as statement of the doctor it can be said that the age of the accused-appellants was less than 16 years and none of them attained the age of 16 years. Each of the accused-appellants was examined under Sec 313 Cr P.C. So far as accused-appellant Jagdish is concerned on 31.3.1979 when his statement was recorded he gave his age as 13 years and even as per the estimation by the court he was of 16 years. It may be stated that the incident took place on September 1, 1978 and therefore even the estimation of the court on March 31, 1979 i e after six months of the commission of offence, was of 16 years It can be said that the accused-appellant Jagdish had not attained the age of 16 years on the date of occurrence. So far as accused appellant Ratti Ram is concerned he gave his age as 12 years and the estimation of the court is 14 years- He had not therefore attained the age of 16 years on the date of occurrence Even the learned trial court has said that none of the appellants had attained the age of 16 years. The court has not dealt with the case of the accused appellants under the provisions of the Act on the ground that on the date of commission of offence as well as during the trial the Act had not been extended to Sawai Modhopur district. `Child as per Section 2(d) of the Act means a boy who has not attained the age of sixteen years and a girl who has not attained the age of eighteen years. `Delinquent child as per Section 2 (i) means a child who has been found to have committed an offence. Thus, there can be no dispute that both the accused-appellants were child within the meaning of Sec. i (d) of the Act and as they have been found to have committed an offence by the learned trial court which finding has not been challenged by the learned counsel it can be said that each them is delinquent child under Section 2(i) of the Act. The question is as to whether if the Act was not in force in Sawai Madhopur to which the case belongs, and it was made applicable during the pendency of appeal. The question is as to whether if the Act was not in force in Sawai Madhopur to which the case belongs, and it was made applicable during the pendency of appeal. This Court had examined the question of applicability of the Act to different districts in Raj. and in case of Moti v. State, 1981 Cr. LJ. NOC 45(Raj) . It was held that extension of the Act to four districts only and not extending the same to other districts amounts to breach of Article 39(f) of the Constitution and it also amounts to discrimination between child and child. Under Section 1 (2) of the Act, the Act extends to the whole of the State of Raj. and under sub-section (3) of Section 1, the Act shall come into force in the State on such date as the State Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different areas thereof. The Act first of all was extended to Jaipur and Ajmer districts of Raj. by virtue of the powers conferred by sub-section (3) of Section 1 of the Act. Thereafter, vide further notification dated June 22, 1974 it was extended to the districts of Jodhpur and Kota and then by further notification dated August 1979 the Act was extended to Udaipur district. There is no dispute that now the Act has been extended to the remaining areas of Raj and as such the Act is in force throughout the State of Raj. A bare reading of the preamble of the Act will show that the Act has been made to provide for care.protection, maintenance, welfare, training education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the State of Raj. It is thus a beneficial piece of Legislation so far as the child within the meaning of Section 2 (d) and delinquent child within the meaning of Section 2(i) of the Act is concerned. This Court in the case of Umesh Chandra v. The State of Raj, 1976 RLW 240 , had the occasion to examine the question whether a child within the meaning of Section 2 (d) has a right to be tried in accordance with the provisions of the Act, even if the Act was pot applicable to the area where the occurrence took place. This Court in the aforesaid case was dealing with the case where offence of murder has been committed in the district of Tonk to which district in exercise of the powers of subsection (3) of Section 1 of the Act, the Act had not been extended. At the relevant time the judgship was comprising of Jaipur City and Tonk districts On transfer application being made under Section 28 of the Code of Criminal Procedure 1898 the case had been transferred from the Additional Sessions Judge, Tonk to the court of Additional Sessions Judge, Jaipur City, Jaipur. An application was filed that because the accused was being tried in Jaipur where the Act was in force, the case of the child should be dealt with under the provisions of the Act, But the contention was repelled and this Court said that the children court constituted for Jaipur City is not empowered to try the offence alleged to have been committed by the accused in Tonk District. Merely because the sessions case against the accused has been transferred to the court of Addl. Sessions Judge Jaipur from Tonk, the Act shell not be applicable even if the learned Judge is competent to try the petitioner for offence with which he was charged. In view of this, the learned Judge of this Court refused to examine the question whether the accused was below 16 years of age at the time when the occurrence was committed The Supreme Court in the case of Umesh Chand v. State of Raj., Cr.L.R. 1982 (SC) 209 held that the material date which is to be seen for the purpose of the applicability of the Act is the date at the time of occurrence. Referring to Section 26 of the Act the court in para 27 of its judgment said:- "A combined reading of these two sections would clearly show that the statute takes care of contingencies where proceedings in respect of a child were pending in any court in any area on the date on which the Act came into force. Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but would forward the child to the childrens court for passing orders in accordance with the Act". Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but would forward the child to the childrens court for passing orders in accordance with the Act". The court also said that as regards the general applicability of the Act, we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place. The Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at the age could not be said to be mature for imputing mensrea as in the case of an adult. This being the intendment of the Act a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place. The Supreme Court while upholding the convict n of the accused, set aside the sentence awarded by the Sessions Judge as affirmed by the High Court, and directed the Additional Sessions Judge Jaipur to forward the accused to the Childrens court for receiving sentence in accordance with the provisions of Section 26 of the Act. 7. A bare reading of Section 26 of the Act will show that if any proceedings are pending in respect of any child on the date when the Act came into force in that area, they shall be continued by in that court as if the Act had not been passed and if the court finds that the child has committed an offence it shall record such finding and instead of passing any sentence in respect of the child forward the child to the Childrens Court which shall pass orders in respect of that child in accordance with the provisions of the Act. The words "all proceedings" and "pending in any court in any area" leave no manner of doubt that even if an appeal is pending the child has to be dealt with in accordance with the provisions of Section 26 of the Act 8. The words "all proceedings" and "pending in any court in any area" leave no manner of doubt that even if an appeal is pending the child has to be dealt with in accordance with the provisions of Section 26 of the Act 8. In the case of Ramkuuiar Sahu and others v. State of Bihar, AIR 1980 SC 83 , the court was dealing with a case of child within the meaning of Section 2(d) of the Act in an area where the provisions like the Act had not been brought in statutory book. One of the accused was below 16 years and was tried and convicted alongwith adults. Observing that despite of the observations of the Supreme Court the conscience of the State of Bihar has not been quickened into kindness towards children and its legislature has not found the mood or time to pass a Children Act, the court said that had there been a Children Act, the two accused appellants would have received more compassionate consideration at the hands of the court. The court therefore discharged the accused who were below sixteen years and had already undergone some sentence by the time the judgment of the Supreme Court came to be made. In the case of Gopinath Ghosh v. The State of West Bengal, Cr.L.R. 1984 (SC) 1 , dealing with Article 39(f) of the Constitution the court said that - "However, in view of the underlying intendment and beneficial provisions of the Act read with cl. (f) of Article 39 of the Constitution which provides that the State shall direct its policy 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 the ward the benefit of the provisions being extended to the appellant, if he was not otherwise entitled to it." I have already referred to Section 26 of the Act and held that even in the pendency of appeal, the proceedings are continued. As per S. 26. As per S. 26. of the Act if any proceedings are pending in respect of any child on the date when the Act came into force, they shall be continued by that court as if the Act bad not been passed and if the court finds that the child has committed an offence it shall record such finding and instead of passing any sentence in respect of the child forward the child to the childrens court which shall pass order in accordance with the provisions of the Act. Thus, when during the pendency of appeal the Act was extended to Sawai Madhopur district, one course which was open for the court was that it should refrain from imposing the sentence upon the child and forward the matter to the childrens court, but again the question is whether this course should now be adopted, and while confirming the conviction of the accused-appellants who had not attained the age of 16 years on the date of occurrence, the case should be forwarded to the childrens court more so when the appellants had already undergone some sentence, appellant Jagdish having undergone 8 months and 25 days sentence and appellant Ratti Ram having undergone the sentence for one month and 9 days and more so when this appeal is pending for last more than 8 years. In my opinion, looking to the fact that the Act had come into force during the pendency of appeal no useful purpose will be served by forwarding the accused to the childrens court, for being dealt with under the Act. In the facts and circumstances of the case the sentence already under gone by the appellants shall, in my opinion, meet the ends of justice. 9. Consequently, both the appeals are partly allowed. While the conviction of each of the accused-appellants under Section 376 IPC is affirmed, in the facts and circumstances of the case, the appellants are sentenced to the period of imprisonment already undergone. They are on bail. They need not surrender to their bail bonds which are hereby discharged.Appeal Partly allowed. *******