SURYA PRASAD, J. ( 1 ) THIS is a criminal appeal against the judgment and order passed by the then learned V. Addi. Sessions Judge, Bulandshahr, dated 17th October, 1979 in Session Trial No. 153 of 1979 State v. Lekh Ram, convicting the appellant under section 376, I. P. C, and sentencing him to three years Rigorous Imprisonment. ( 2 ) THE prosecution case briefly stated is that the appellant-accused Lekh Ram has committed rape on the prosecutrix Km. Jagriti daughter of Bhuley Gujar resident of village Madhaiya Noorpur, Police Station Gulaoti, District Bulandshahr on 14-12-1978 at about 4. 30 P. M. in the Barseem field of her father, where she had gone to watch Barseem Crop. She made hue and cry at the time of rape alleged to have been committed by Lekh Ram. Consequently Ramu and Lakshmi Gujar rushed to the place of occurrence. Seeing them, the accused ran away. The prosecutrix accompanied by her father Bhuley and Lakshmi went to the police station, where she lodged an oral report on the basis of which a case was registered against the accused u/s 376, I. P. C. From the police station she was sent to the hospital for medical examination. The Lady Dr. Smt. Manjula Sharma medically examined her and submitted her report vide Ex. Ka2. Investigation ensued. After the completion of the investigation of the case, a chargesheet was submitted against the accused. ( 3 ) THE prosecution examined prosecutrix Km. Jagriti P. W. 1, Ramu P. W. 2, Lakshmi P. W. 3, Dr. Smt. Manjula Sharma P. W. 4, S. I. Baboo Lal P. W. 5, Dr. H. U. K. Juberi P. W. 6 and Satya Pal Singh P. W. 7 and relied upon certain documents in support of its case. ( 4 ) THE accused pleaded not guilty. He has stated that all the allegations levelled against him are wholly wrong and incorrect. He has also stated that he has been falsely implicated by the prosecutrix at the instance of her father on account of enmity. He has examined Ravindra Singh Advocate D. W. 1, Kundiya Singh Ahalmad D. W. 2, Hukum Singh D. W. 3, Mahendra Singh Advocate D. W. 4 and Sri Bheekba Lal, C. J. M. Bulandsharhr D. W. 5 and relied upon certain documents in support of his contentions. He has examined Ravindra Singh Advocate D. W. 1, Kundiya Singh Ahalmad D. W. 2, Hukum Singh D. W. 3, Mahendra Singh Advocate D. W. 4 and Sri Bheekba Lal, C. J. M. Bulandsharhr D. W. 5 and relied upon certain documents in support of his contentions. ( 5 ) HAVING heard the learned counsel for the parties and having carefully considered the evidence on record. The learned V. Additional Sessions Judge, Bulandshahr, convicted and sentenced the accused vide his impugned judgment and order dated 17-10-1979 as already mentioned above. ( 6 ) HEARD the learned counsel for the parties and perused the evidence. The learned counsel for the appellant-accused has, at the very out set, expressed that the appellant-accused has no case on merits. He has, however, argued that the appellant-accused was minor at the time of the occurrence and, therefore, he cannot be sentenced to any imprisonment nor can he be sent to jail. ( 7 ) THE incident is said to have taken place on 14th December, 1978. His statement under section 313 Cr. P. C. was recorded on 28-4-1979, wherein he has categorically stated that he is aged about 12 years meaning thereby that he was aged about 11 years 2 months on the date of occurrence. His statement on the point of his age has not been challenged by the prosecution in any manner what -so-ever. The learned counsel for the respondent has, however, drawn the attention of the Court to the observation made by the learned V. Additional Sessions Judge while recording the statement of the accused under section 313, Cr. P. C. His observation is that the accused is not less than 18 years of age in any case. This observation cannot be treated as that of any Expert. No importance or sanctity can be attached to this observation especially when the statement of the appellant-accused under section 313 Cr. P. C. on the point of his age goes unchallenged and unrebutted. The learned counsel for the appellant accused has placed reliance upon T1jayendra and another v. State of Uttar Pradesh, wherein it has been inter alia observed by the Honble Supreme Court as under: 3. Section 2 (4) of the Uttar Pradesh Children Act, 1951 (U. P. Act No. 1 of 1952) defines a child to mean a person under the age of 16 years. Section 2 (4) of the Uttar Pradesh Children Act, 1951 (U. P. Act No. 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot to do so. ( 8 ) IN the present case the appellant-accused Lekh Ram is also now nearly 23 years of age and was minor on the date of incident and, therefore, I cannot direct that he should be sent to jail. ( 9 ) IN view of the aforesaid observations made by the Hon ble Supreme Court and in view of the facts and circumstances of the instant case, the appeal is partly allowed. The conviction is maintained. But the sentence imposed upon him is hereby quashed. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. Appeal allowed partly. .