KUNDAN SINGH, J. This appeal has been preferred against the judgment and order dated 31-8-79 passed by Sri Ramji Lal, the then IVth Additional District and Ses sions Judge, Bareilly, whereby appellant Wahid Husain has been convicted under Section 376,i. P. C. and sentenced to undergo R. I. for 3 years in Sessions Trial No. 171 of 1978. 2. The prosecution case as set out in the F. I. R. , briefly stated, was that on 30-10-1977 Km. Maskooran, daughter of Wazir Shah had gone to collect the ground nuts from the field of Umrai. At about 4. 00 p. m. Umrai was constructing a mend of his Held, while Smt. Maqboolan was cutting paddy in her field. The appellant forcibly laid down Km. Maskooran on the mend of his sugar cane field and committed rape on her. On a hue and cry raised by the girl, Umrai and Maqboolan attracted to the scene of occur rence. The accused who was wearing a tahmad ran away from the place of occur rence. The girl was taken to her house. Badloo informant returned to his house in the evening, who was informed about the inci dent by the witnesses. Due to night he could not go to the police station. However next morning he went to the police station Shahi, District Bareilly along with the victim Km. Maskooran where an F. I. R. was lodged by him at 9. 30 a. m. A case was registered in the presence of S. I. Laxman Pushkaran (P. W. 5), who was entrusted to the investigation of the present case. He recorded the state ments of the witnesses including the victim. He also inspected the spot and prepared a site plan. Later on the investigation was transferred to Ram Iqbal Singh, S. I. , who after completing the remaining investiga tion submitted a charge sheet in court against the accused. 3. Km. Maskooran was medically ex amined by Dr. Usha Agarwal (P. W. 6), who found her hymen torn recently at 3. 00 and 6. 00 Oclock position. In the opinion of the Doctor an attempt was made for committing rape by penetrating the penis in the vagina and in the opinion of the Doctor the rape was probably committed at 1. 00 p. m. on 30-10-77. She was advised X-ray to deter mine the age of the victim. 00 and 6. 00 Oclock position. In the opinion of the Doctor an attempt was made for committing rape by penetrating the penis in the vagina and in the opinion of the Doctor the rape was probably committed at 1. 00 p. m. on 30-10-77. She was advised X-ray to deter mine the age of the victim. On the basis of the X-ray report the Doctor was of the opinion that the victim was aged about 12 years. 4. The prosecution examined Smt. Maqboolan and Umrai besides the victim Km. Maskooran as eye witnesses of the factum of incident. Badloo informant was ex amined as P. W. 1 to prove the first informa tion report. Laxman Pushkaran, S. I. (P. W. 5), who investigated the case at the initial stage and Dr. Usha Agarwal (P. W. 6), who medically examined the victim were also examined as prosecution witnesses. 5. The appellant denied the prosecu tion version and stated in his statement recorded under Section 313, Cr. P. C. that, chaukidar was a man of police. Mas kooran and Baldeo were in collusion with chaukidar He was standing on the patri of Canal. Maskooran victim took a sugarcane from his field for which he scolded her. She ran weeping and fell down on the ground. Thereafter he went away to his house. He further stated that he has been falsely impli cated in the present case due to enmity. 6. The learned Sessions Judge after going through the evidence on record held appellant guilty of the offence charged with an accordingly he convicted and sentenced him as stated above. 7. The learned Counsel for the appel lant firstly contended that the victim was handicapped and when she took away a sugarcane from the field of the appellant, she was scolded by the appellant and she ran weeping and fell down on the ground. The probability is not excluded that some wood might have entered her vagina and the ap pellant has been implicated in this present case due to suspicion. She was unable to answer the question. She was a girl of imma ture understanding and was not in a position to give answer correctly at the time of her deposition in the Court. She answered the questions by mere nodding her head. She was not administered oath as she was not in a position to give answers correctly. 8. She was unable to answer the question. She was a girl of imma ture understanding and was not in a position to give answer correctly at the time of her deposition in the Court. She answered the questions by mere nodding her head. She was not administered oath as she was not in a position to give answers correctly. 8. I have gone through the evidence on record and found that the submission of the learned counsel for the appellant was untenable inasmuch as the victim knew the meaning of bad work (bura kaam) and she gave her answer in affirmative by way of nodding her head. Two witnesses, namely, Umrai and Smt. Maqboolan found the appellant committing rape on the victim and they brought her to the house. On the basis of medical examination it cannot be said that no rape was committed on the girl. 9. The learned Counsel for the appel lant next contended that the appellant was about 12 years of age at the time of incident. The appellant was arrested and taken into custody on 14-11-77. He applied for bail before the learned Sessions Judge alleging that he was a boy of 12 years of age. Learned Sessions Judge summoned the accused in court and found him to be between 14 and 16 years old. Considering the young age of the appellant the Incharge Sessions Judge granted bail to the appellant vide his order dated 24-11-77. The appellant gave out his age as 12 years at the time when he was examined under Section 313, Cr. P. C. on 30-8-79. The observation of learned Ses sions Judge about the age of appellant was about 16 and 17. This statement of the ap pellant was recorded about after two years of the incident. Thus the appellant was a lad below 16 years at the time of incident on 30-10-77. As such he is entitled to the benefit of U. P. Children Act. 10. Learned counsel further con tended that as the appellant gave out his age as 12 years, it was the duty of the prosecu tion to get him medically examined to estab lish the fact that on the date of incident he was not a child. The observation of the learned Sessions Judge was that by ap pearance the appellant appeared to be aged about 16 or 17 years. The observation of the learned Sessions Judge was that by ap pearance the appellant appeared to be aged about 16 or 17 years. This observation can not be treated as an experts opinion. No importance or sanctity can be attached to this observation of the learned Sessions Judge, specially when the statement of the appellant recorded under Section 313, Cr. P. C. on the point of his age was that he was about 12 years old v is-a-vis that statement of the accused it was a duty of the court to have his age determined by medical examination and it should have also directed State coun sel to produce documentary evidence of age, if any, available. As in the present case, the appellant had given out a definite age as 12 years in his statement recorded under Sec. 313, Cr. P. C. it was not open to the court to have recorded a definite finding that on the date of incident the appellant was not a child. 11. On the contrary, learned A. G. A. submitted that the appellant has not proved that he was below 16 years of age at the time of incident. No evidence has been led by him at any stage and mere statement before the Sessions Judge under Sec. 313, Cr. P. C. was not sufficient to draw an inference that the time of the incident he was a child and in support of that contention he relied on a Supreme Court decision in the case State of Haryana v. Balwant Singh, reported in 1993 S. C. C. (Criminal) 251, wherein the judg ment of the High Court was reversed hold ing that the High Court found the accused below 16 years only on the basis of the age disclosed by the accused recorded under Sec. 313, Cr. P. C. In that context the relevant observation of the Supreme Court was as under: "admittedly, neither before the committal court nor before the trial court, no plea was raised on behalf of the respondent that he was child and that he should not have been committed by the Magistrate and thereafter tried by the Sessions Court and that he ought to have been dealt with only by the court of Juveniles. When it is not the case of the respondent that he was a child both before the committal court as well as before the trial court, it is very surprising that the High Court, based merely on the entry made in Section 313, Cr. P. C. statement mentioning the age of the respondent it as 17 has concluded that the respon dent was a child within the definition of the act on the date of occurrence though there was no other material for that conclusion. This conservation of the High Court, in our considered view, cannot be sustained either in law or on facts. Hence, we set aside that finding of the High Court that the respondent was a child. " 12. I have given my anxious thought to the submission made on behalf of the par ties. It is true that neither party has not led any evidence to prove that the appellant was or was not a child on the date or incident. In the present case there are circumstances in which the probability cannot be excluded to reach at a conclusion that the appellant was a child below 16 years at the time of incident. The learned counsel for the appellant drew attention of the Court to the order dated 24-11-77 of in the learned en- charge Ses sions Judge wherein it was mentioned that the accused was present in the court and by appearance he appeared to be between 14 and 16 years of age and he was enlarged on bail solely on that consideration. Secondly the appellant gave out his age as 12 years at the time when he was examined under Sec tion 313, Cr. P. C. on 30-8-79 while the inci dent took place on 30-10-77. This time the observation of the learned Sessions Judge was that the appellant appeared to be a lad of 16 or 17 years. Learned Trial Judge had also taken notice of the immature age of appellant while awarding him the sentence of 3 years R. I. only. In the situation alike here when the court finds the age given out by the accused under estimate or over es timate the court itself should form its own estimate and also mention it in the record. In the situation alike here when the court finds the age given out by the accused under estimate or over es timate the court itself should form its own estimate and also mention it in the record. If the accused is charged with an offence punishable with death and then court con siders the age given by him to be under estimate, or an over-estimate, it may order medical examination of the accused about his age and should direct the State Counsel to produce documentary evidence of his age, if any, is available, as is emphasised in Rule 50 of the General Rules (Criminal ). 13. Similar view has again been ex pressed in courts circular order No. 52/vii-B-32, dated 28-9-1954, which is reproduced hereunder. "in the first instance, each accused is in a murder case at the time of his examination by the Magistrate or by the Sessions Judge should be specifically asked as to what his age is and that age should be recorded. If the Magistrate or Sessions Judge suspects that the age stated by the accused, having recorded to the general appearance of the accused or some other reason, has not been cor rectly stated it is either an over estimate or under estimate then the Magistrate or the Sessions Judge should note his own estimate and if he considers it necessary or medical examination of the accused about his age. If any documentary evidence on the point of age is readily available, the prosecution should be asked to produce. " 14. In the present case the Trial Judge has noted his own estimate about the age of the appellant at the time when he was ex amined under Section 313, Cr. P. C. since the age of the appellant was on the border line of 16 years, just to decide the question whether the appellant was or was not en titled to the benefit of the provision of the Children Act, the duty was cast on the learned Sessions Judge to have the accused medically examined to arrive at a correct conclusion about the exact age of the appel lant, which to my dismay, he has failed to discharge. As the appellant was examined about 2 years after the incident and at that time his age was 16 or 17 years, the only consideration would be that he was below 16 years of age at the time of incident. 15. In the present case the appellant was taken into custody on 19-9-95 during pendency of the appeal in pursuance of the order of the court and was sent to Jail on 20-9-95. Later on he was granted bail by this Court on 15-3-96. Thus he had remained in jail for about 6 months. In the case of Jayendra and another v. State of U. P. reported in AIR 1982 SC 685 . The Supreme Court considered the facts and circumstances on record and held that Jayendra was a child within the meaning of the provisions of U. P. Children Act, 1951 on the date of the of fence. Section 28 of the aforesaid Act says notwithstanding any thing contrary in any law no Court shall sentence a child to im prisonment for life or to any term of im prisonment. 16. In the facts and circumstances dis cussed above, the appellant was a child below 16 years within the meaning under Section 2 (4) of U. P. Children Act and since the appellant has now crossed the age of 18 years, he cannot be sent to approved school. 17. Accordingly the appeal succeeds and is allowed in part. The conviction of the appellant awarded by the court below is affirmed but he shall not be sent to jail to serve out the sentence of imprisonment in flicted upon him. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. Appeal allowed in part .