JUDGMENT 1. - This appeal Under section 374 of the Code of Criminal procedure, 1973 (The Cr.P.C.') by Rama Kant accused is directed against the judgment and order dated December 1, 1983 whereby, on a trial held by the learned Sessions Judge, Dholpur in Sessions Case No. 55 of 1979 the appellant was found guilty of the offence Under section 302 of the Indian Penal Code (the IPC'), convicted as such and sentenced to imprisonment for life and pay a fine of Rs. 50/- or in case of default of payment of fine to under go rigorous imprisonment for one month.The relevant facts are these : 2. Kum. Saroj Gudiya, the deceased, was the 14-15 years old daughter of PW. 1 Smt. Urmila and PW. 2 Damodar Prasad, residents of Mohalla Bhamti Pura, DDholpur. At the relevant time she was a student of Class VIII. Ramakant appellant used to live with his grand parents in a house, about 50 paces away from the house of Damodar Prasad. At the relevant time the appellant was a student of Xth class. 3. On April 10, 1979 PW. 2 Damodar returned to his house at about 9.00 PM. and after taking his meal was going to retre for night rest, that his wife Smt. Urmila told him that Saroj had gone to urinate but did not return ever after 15-20 minutes. Damodar Prasad went out of his house to enquire about Saroj and then he was informed by PW. 3 Rameshwar, PW. 4 Ashok, PW. 6 Trilok Chand and some other boys of the Mohalla that they had seen Kum. Saroj entering into the house of the appellant with him. Damodar Prasad and the residents of the Mohalla tried to take search of the house but appellant's grandfather. Sh. Mohar Singh, (since deceased accused) did not allow them to do so. Apprehending that his daughter might be sold or killed by the appellant and his grand parents. Damodar Prasad reached the Police Station Kotwali in the very night and delivered a written report (Ex.P 2) to the Station House Officer (SHO) Sh. Rajbir Singh (PW 16) who registered Crime No. 81/79 Under section 363, 364, 366 & 342 IPC (vide FIR Ex.R 3) and handed over the investigation of the case to his subordinate Officer, Sh. Raghubir Singh ASI (PW. 12). 4. Rajbir Singh (PW 16) who registered Crime No. 81/79 Under section 363, 364, 366 & 342 IPC (vide FIR Ex.R 3) and handed over the investigation of the case to his subordinate Officer, Sh. Raghubir Singh ASI (PW. 12). 4. Alongwith the FIR (Ex.P 2) Damodar Prasad had also submitted two hand written letters. One written in blue ink (Ex.R 6) and the other in red ink. These letters are alleged to have been found in the school bag of the deceased girl. They mentioned of a love-affair between her and the appellant. On being compared with the hand writing of the appellant one of these letters (Ex.P 6) was found to be written in its handwriting. The said letter Ex.R 6 was also admitted by the appellant at his trial. Raghubir Singh seized the two letters vide Ex.P 5 and commenced preliminary investigation. 5. In the course of his investigation the ASI had yet inspected the house of Damodar and prepared the map (Ex.R 4) thereof and examined Rameshwar, Ashok, Trilok and some other witnesses that the case is alleged to have taken a political and caste colour as by then neither Kum. Saroj could be recovered nor any person was arrested. The witnesses were emphatic in their assertion that they had seen Kum. Saroj entering into the house of the appellant but not coming out therefrom though they had kept a vigil on the house during the night. Rajbir Singh SHO (PW. 16) had therefore to take the investigation back in his hands. 6. Rajbir Singh SHO arrested the appellant at 3.00 PM. on 11.4.79. Soon after his arrest the appellant is alleged to have given an information Under section 27 of the Evidence Act to the effect that the dead body of Kum. Saroj was lying hidden behind some tin containers, tats etc. inside the Bukhari of his house and that her shirt (Ex. Art. 1) and petti-coat (Ex. Art 3) were kept by him inside the cover of a "Gudda". The SHO recovered the dead body of Kum. Saroj from behind the tins, tats and stones (Ex.P. 16) and the shirt and petticoat of the deceased from under the cover of the Gadda' as per information of the appellant. The dead body was having a Baniyan and Chadhi' (underwear) on it. The SHO recovered the dead body of Kum. Saroj from behind the tins, tats and stones (Ex.P. 16) and the shirt and petticoat of the deceased from under the cover of the Gadda' as per information of the appellant. The dead body was having a Baniyan and Chadhi' (underwear) on it. Rajbir Singh SHO prepared a Punchayatnama (Ex.P. 7) of the dead body in presence of the Punches as also the site map of the place of its recovery (Ex.R 15). He took some photographs of the relevant places (Ek.P 25 to Ex.P. 27) also. He, then forwarded the dead body to the General Hospital, Dholpur for post-mortem examination. 7. On conducting the autopsy at 6.00 PM. on 11.4.79 Dr. Mohan Lal Maroo (PW. 11) noted the following facts with regard to the dead body of the deceased : "The body was stout and was covered with "Bhusa" and rigor mortis was not present. Face suffused and blue with lividity of the lips and with blue nails of the upper limbs and the skin showed punctiform Ecchymosis with lividity of the limbs. Blood frothy liquid was issuing from the left nostril. Injuries : (1) Abrasion 1/4"x 1/4" over the left nostril. (2) Abrasion 1/4"x 1/4" over the lower lip near the left angle of the mouth. (3) There was haemmatoma and laceration of the inner musosa surface of upper and lower lips and angles of mouth. (4) Laceration of gums of upper and lower jaws from right canine to left canine teeth with blood stained discharge oozing. Exes-Both the eyes were closed and the conjunctive congested with petiechial haemorrhage and both pupil dilated and the eye-bails were prominent. Larynx and Trachea were congested with full of blood froth discharge. Both the lungs were congested and sub-pleural ecchymosis and exuded dark fluid blood of section. Organs of generation were externally healthy. Hymen was absent and witish discharge was oozing. 8. Dr. Maroo opined that the deceased might have died within the last eighteen hours before the post mortem examination. He further opined that injuries Nos. 2,3 and 4 could be caused by using pressure and coercive force against the mouth of the deceased. In his opinion the cause of the death of the deceased was suffocation due to closure of mouth and nostrils (Ex.P 19) 9. On 12.4.79 Ramakant appellant was also examined by Dr. He further opined that injuries Nos. 2,3 and 4 could be caused by using pressure and coercive force against the mouth of the deceased. In his opinion the cause of the death of the deceased was suffocation due to closure of mouth and nostrils (Ex.P 19) 9. On 12.4.79 Ramakant appellant was also examined by Dr. Maroo and following injury was noticed by him on his person : "Ecchymosis 1/4"x 1/4" on the base of the nail of the left thumb. 10. In the opinion of Dr. Maroo the above injury was caused with some blunt weapon within the last 36 hours before his examination and was simple in nature. (Ex.P 20). 11. Dr. Maroo had found a wetted cloth ped, over the vagina of the deceased, under her Chaddi. He sealed the Banyan, Chaddhi and the wetted cloth ped and handed over the same to the police for chemical examination for presence of blood and/or semen. 12. Shiv Kumar Constable (PW. 13) took all the three sealed articles, as mentioned above, to the State Forensic Sciences Laboratory, Jaipur. On examination by the experts, human blood was detected in the Chaddi, Banyan and the wetted cloth ped but the blood group could not be determined. Human semen was detected in the wetted cloth ped. (Ex.P 29 and Ex.P 30). 13. On 12.4.79 Mohar Singh, the grandfather of the appellant, was also arrested and on an information given by him Under section 27 Evidence Act on 13.4.79 at 8.00 A.M., a golden ring (Bali) is alleged to have been recovered and seized. 14. In an identification proceeding conducted by Sh. Om Prakash Gupta Magistrate on 23.4.79 the golden ring so recovered at the instance of Mohar Singh was identified correctly by Smt. Urmila (PW.1) and Damodar Prasad (PW. 2), as belonging to the deceased. 15. During the course of investigation of the case Mohar Singh died on 4.5.79, while he was in judicial custody. After completing the investigation Rajbir Singh SHO submitted a report Under section 173 Cr.PC. on 11.5.79 against Rama Kant appellant for committing the offences Under Sections 302, 364 and 201 IPC. The learned Magistrate committed the case to the court of Sessions Judge at Dholpur. 16. The learned Sessions Judge, Dholpur tried the appellant on the charge for the offences Under Sections 302 and 201 IPC. on 11.5.79 against Rama Kant appellant for committing the offences Under Sections 302, 364 and 201 IPC. The learned Magistrate committed the case to the court of Sessions Judge at Dholpur. 16. The learned Sessions Judge, Dholpur tried the appellant on the charge for the offences Under Sections 302 and 201 IPC. The prosecution examined 16 witnesses to prove the aforementioned charge against the appellant. On being examined Under section 313 Cr.PC. he denied to have given any information leading to the discovery of the dead body of the deceased and her shirt and petticoat. He stated that he used to reside in the house alongwith his grand parents, servant and brothers and that on the day of the commission of the alleged offence he had been sent by his grand father to the adjoining house wherefrom he had gone to his school in the morning to appear at the High School examination and the police arrested him on false accusation. He claimed to be a minor, being below 16 years of age, at the time of the commission of the alleged offences and produced certificate from his Principal (Ex.D. 5) in support of his assertion. No oral evidence was led in defence. 17. On trial of the appellant the learned Sessions Judge found the following facts proved against him, viz : "(1) Deceased Saroj was on visiting terms with the appellant. (2) She, of her own accord and alone, went into the house of the appellant at about 9.00 PM. on 10.4.79. (3) A number of people had seen Saroj going into the house of the appellant and since she was not sent back from the house, they kept a vigil upon the house of the appellant throughout that night. (4) In the house, there were deceased accused Mohar Singh, his wife and brother and sister of the appellant Ramakant as also Ramakant himself. (5) Saroj was killed inside the house by forcibly closing her nostrils and mouth, thus, suffocating her to death. (6) The statement of Dr. Maroo that a single person cannot cause death of the girl of the age of Saroj in that manner and more than one person would have done it was accepted. (5) Saroj was killed inside the house by forcibly closing her nostrils and mouth, thus, suffocating her to death. (6) The statement of Dr. Maroo that a single person cannot cause death of the girl of the age of Saroj in that manner and more than one person would have done it was accepted. In the opinion of the learned trial Judge at least one person would have closed the mouth and nostrils by employing both hands and another person would have pressed the deceased to disable her from putting resistance. (7) The dead body of Saroj was recovered by the police on information given by the appellant. (8) The petticoat and the bush shirt of deceased were recovered at the instance of the accused Ramakant, cautiously hidden within the cover of a Gadda'. 18. The learned Sessions Judge was of the opinion that from the setting and circumstances, mentioned above, he had no doubt that the appellant was one of the persons who caused the death of Saroj; the other person could be deceased Mohar Singh. As the wife of Mohar Singh was an old lady and the younger brother and sister of accused Ramakant were mere children, they could not have been instrumental to the death of Saroj. It was immaterial whether the appellant himself closed the mouth and nostrils of Saroj or pressed her to incapacitate her from making resistance. In either case he was trying to kill her. The learned Sessions Judge noted yet another circumstance which, in his opinion, showed that it was accused Ramakant who was one of the killers of Saroj. In the opinion of the learned Judge it was not expected that Saroj, while alive, would allow anybody to disrobe her petti-coat and bush-shirt. These articles must have been removed from the body of saroj after she had been killed. The recovery of these two articles at the instance of the appellant, found hidden under the cover the "Gudda", showed that in all probabilities it was the appellant who had removed those two clothes from the person of Saroj and hid them. The learned Sessions Judge, therefore, concluded that the only hypothesis which could be made on the basis of the evidence on record was that it was the appellant who killed Saroj by suffocating her by closing her mouth and nostrils, aided by other accused Mohar Singh deceased. The learned Sessions Judge, therefore, concluded that the only hypothesis which could be made on the basis of the evidence on record was that it was the appellant who killed Saroj by suffocating her by closing her mouth and nostrils, aided by other accused Mohar Singh deceased. He, therefore, held the appellant guilty of the offence Under section 302 IPC and punished him in the manner stated above. 19. In regard to the other charge for offence Under section 201 IPC the learned Sessions Judge held that there was no circumstance in evidence on record from which it could be held that after killing the girl the appellant had put her in the Bukhari'. He therefore, acquitted the appellant of the offence Under section 201 IPC. The State respondent has not, reportedly, challenged this part of the impugned judgment and order of the learned Sessions Judge by way of filing any State appeal. 20. Regarding the age of the appellant, as claimed by him and shown in the certificate (Ex.D. 5) produced by him in the course of his examination Under section 313 Cr.PC., a copy of the Transfer Certificate showing the same date of birth of the appellant as was mentioned in Ex.D. 5 was also placed on the record of the case. The learned Sessions Judge rejected this documentary evidence for two reasons. Firstly, the recital of the date of birth in the Transfer Certificate was in his opinion a secondary evidence and the primary evidence of the date of birth. Which could be the admission form filled in and filed by the parents or guardians of the appellant, was not placed on record. Secondly, the Transfer Certificate and the date of birth written therein was not proved by any legal evidence. The learned Sessions Judge, therefore, himself estimated the age of the appellant and held that he (the appellant) was not below the age of 16 years at th' time of the occurrence. He, accordingly, declined to refer the appellant to the Children Court under Section 26 of the Children Act, 1960. 21. Mr. Biri Singh, the learned counsel for the appellant advanced two fold arguments before us. In the first place the learned counsel vehemently urged that the learned Sessions Judge did not appreciate the evidence on record and the circumstances attending on the unfortunate death of Saroj deceased in right perspective. In this behalf Mr. 21. Mr. Biri Singh, the learned counsel for the appellant advanced two fold arguments before us. In the first place the learned counsel vehemently urged that the learned Sessions Judge did not appreciate the evidence on record and the circumstances attending on the unfortunate death of Saroj deceased in right perspective. In this behalf Mr. Biri Singh particularly pointed out that the facts regarding the death of the deceased and presence of her dead body inside the house of Mohar Singh deceased had already come to the knowledge of the police and the prosecution witnesses much before the arrest of the appellant at 3.00 RM. on 11.4.79 and before giving by him any information Under section 27 of the Evidence Act relating to the place wherefrom the dead body was recovered. It was submitted that in view of the above facts no discovery of the dead body of Saroj may be claimed to have been made at the information and instance of the appellant. In the second place Mr. Biri Singh submitted that the appellant, having been fully proved to be below 16 years of age at the time of the occurrence, was required to be dealt with in accordance with the provisions of the relevant Children Act and the learned Sessions Judge was wrong in not having referred the case of the appellant to the Children Court. Mr. Biri Singh supported his view points with the relevant provisions in the Evidence Act and the Children Act and also some decided cases. 22. The learned Public Prosecutor, however, fully supported the judgment and order under appeal and further submitted that the facts and circumstances found proved and established on record of the case, left no manner of doubt that the only conclusion to be arrived at on the basis of such proved and established facts and circumstances was that the appellant was the killer of Kum. Saroj. 23. After having patiently heard the learned counsel for the parties at length and carefully examined the record of the case we feel inclined to reject the first limb of the arguments of Mr. Biri Singh but accept the second one. 24. The present case is based on circumstantial evidence. Saroj. 23. After having patiently heard the learned counsel for the parties at length and carefully examined the record of the case we feel inclined to reject the first limb of the arguments of Mr. Biri Singh but accept the second one. 24. The present case is based on circumstantial evidence. In a case, which is to be established by circumstantial evidence, the circumstances must form an unbroken chain to establish the guilt of the accused and the prosecution case should not lie in the realm of surmises and conjectures even if the facts and circumstances are very intriguing raising serious suspicion. The facts and circumstances established on record must lead to one and only one hypothesis which clearly establishes the complicity of the accused in the commission of the offence and completely rules out his innocence. Therefore, there is all the necessity of scrutinising the circumstances intended to be relied upon to form a complete guilty chain. However, in making the careful scrutiny of the various facts and circumstances the evidence of the witnesses is required to be appreciated in a realistic manner having regard to all the surrounding facts and circumstances prevailing at on about the time of occurrence of the incident, the conditions the witnesses are living in, their behavioural pattern, the natural possibility of different persons reacting differently in different situations and circumstances and their natural tendency of exaggerating certain facts. If the circumstances relied upon in support of the guilt of the accused are found fully established and the chain of evidence furnished by such circumstances is so complete as leaves no reasonable ground for a conclusion consistent with the innocence of the accused, the conviction of the accused can safely be based on such circumstantial evidence. In the instant case all the facts and circumstances relied upon by the learned Sessions Judge for convicting the appellant for the offence of causing death of Kum. Saroj are found conclusively proved and they lead to no other hypothesis but that of the complicity of the appellant in the commission of the crime. 25. In the present case there is no dispute that Kum. Saroj was an unmarried girl of 14 or 15 years of age reading in class VIII. Saroj are found conclusively proved and they lead to no other hypothesis but that of the complicity of the appellant in the commission of the crime. 25. In the present case there is no dispute that Kum. Saroj was an unmarried girl of 14 or 15 years of age reading in class VIII. It is also beyond any dispute that at the relevant time the appellant himself was a teenager reading in Class X in the same town and living with his grand parents in the house of his grand father Mohar Singh (deceased accused) in the same Mohalla wherein Saroj was living with her parents. Their houses were quite close to each other. In view of their age, sex and situation of their respective houses they could have felt attracted towards each other. There was thus good opportunity for them to have developed intimacy and, therefore, the conclusion of the learned sessions Judge that the deceased was on visiting terms with the appellant is fully borne out of the facts and circumstances of this case. Ex.P 6 the letter stated to have been found in the school bag of Saroj and produced by PW 2 Damodar Prasad alongwith his written report (Ex.R 2), the writing whereof was got compared by the handwriting expert and reported by him to be comparing with that of the appellant and ultimately the appellant admitting the said document before commencement of the trial and which gives the clear indication that Saroj was on visiting terms with the appellant and was invited by him, fully supports the finding of the learned Sessions Judge. Moreover, the established fact that the dead body of Kumari Saroj was found in half-naked condition with only an underwear and a baniyan on it and under the underwear and above her private parts wetted cloth ped containing human semen was also found and her bush shirt and petticoat were found under the cover of a Gadda' clearly establish the possibility of the appellant having physical relations with the deceased. 26. The next fact found fully proved and established on record is that at about 9.00 RM. on 10.4.72 the deceased was seen entering into house of the appellant. PW. 3 Rameshwar, PW. 5 Bhagwati Prasad, PW. 8 Triloki Nath and PW. 26. The next fact found fully proved and established on record is that at about 9.00 RM. on 10.4.72 the deceased was seen entering into house of the appellant. PW. 3 Rameshwar, PW. 5 Bhagwati Prasad, PW. 8 Triloki Nath and PW. 10 Shyam Babu have clearly stated that they had seen Saroj going to and entering into the house of the appellant. All these witnesses resided in the same locality. The witnesses could have been present at the shops situated just infront of the house of Damodar Prasad and overlooking gali going to the house of Mohar Singh deceased. Even PW. 3 Rameshwar and PW 5 Bhagwati Prasad who were declared hostile did support that fact. The conduct of other witnesses clearly support that fact. On being informed by his wife, PW. 2 Damodar Prasad could have naturally come out of his house and enquired of the witnesses present at the shops about his daughter. On coming to know that Saroj was seen entering into the house of the appellant the witnesses could have naturally tried to contact Mohar Singh deceased, who was the head of the family of the appellant. The other witnesses namely PW. 7 Shobha Ram, PW. 8 Triloki Nath. PW 9 Duli Chand and PW.10 Shyam Babbo could have collected in the gali on hearing the noise being raised there. These witnesses and other persons who had so gathered there could have asked Mohar Singh to allow a search of his house. It is alleged that Mohar Singh had not agreed to giving the search of his house as he apprehended mischief by the witnesses but finally had agreed to allow PW 5 Bhagwati Prasad and PW. 9 Duli Chand to enter into his house whereupon they entered house and glanced cursorily and casually in the Baithak and one or two other rooms. The witnesses have further deposed that on not finding Saroj inside the house but being certain of the fact that she had entered the house but had not been seen coming out therefrom some of them had kept vigil on the house of the night. The facts stated by the witnesses exhibit their natural conduct. It was the month of April. Two teenagers of the mohalla were being suspected to be having a love affair. Two families of different castes were involved in such affair. The facts stated by the witnesses exhibit their natural conduct. It was the month of April. Two teenagers of the mohalla were being suspected to be having a love affair. Two families of different castes were involved in such affair. The teenagers of the mohalla, who included student also, could have felt interested in keeping watch on the conduct and behaviour of Saroj and the appellant. Above all, the dead body of Saroj was unquestionably found in the house of the appellant on the following day and this fact gives ample credibility to the version of the witnesses. 27. Much capital was tried to be made of the statement of PW. 1 Smt. Urmila Devi to the effect that the dead body of Saroj was found in the house of Mohar Singh in the morning hours. It was submitted that since the place of recovery of the dead body of the deceased had come to the knowledge and/or notice of the police in the following morning and the same had also been recovered the subsequent recovery of the dead body of the deceased at the alleged information and instance of the appellant was of no avail. We have very critically examined this aspect of Mr. Biri Singh's argument but found no force in it. Smt. Urmila Devi is a house lady and happens to be the mother of the deceased. She is educated upto 2 or 3 standard only. In the examination in chief she stated that at about 9.00 P.M. Saroj had gone out on the pretext that she was going to bathroom (Which was just close to the outer shutter of the house). She further stated that when Saroj did not return for some time, she told that fact to her husband PW. 2 Damodar Prasad who made a search of Saroj but she was not traceable. The witness added that Saroj was found dead in the house of Mohar Singh. On being cross examined she pleaded ignorance about the appellant's family living in the house of Mohar Singh and stated that she was not on visiting terms with the inmates of Mohar Singh's house. She further stated that Saroj could not be traced during the night though the police had also visited the mohalla in the night and searched the house of Mohar Singh. She further stated that Saroj could not be traced during the night though the police had also visited the mohalla in the night and searched the house of Mohar Singh. It was in this context that she stated that in the morning she had come to know that the dead body of Saroj was found in the house of Moher Singh. She did not claim to have herself seen the dead body of Saroj in the morning. What she had stated regarding the recovery of the dead body of Saroj in the morning is simply her own surmise and is not at all supported by any other evidence on the record of the case. PW. 2 Damodar Prasad, the father of the deceased, had stated in the examination in chief that the dead body of Saroj was recovered at about 5.00 PM. on the following day and he was not at all cross examined on this point. PW. 3 Rameshwar, who is a hostile witness deposed on being cross examined by defence that the dead body had been recovered at about 3.00 PM. or 4.00 PM. on the following day. PW. 4 Ashok is also another hostile witness and he was denied to have witnessed the recovery of the dead body. PW. 5 Bhagwati Prasad is though another hostile witness yet he has supported the prosecution case in all material particulars. He has his shop just 30 or 40 paces away from the house of the appellant. He stated that when he was sitting in his shop he had seen Saroj coming out of her house and going in the gali and that Triloki and Govind had told him that Saroj had entered into the house of Mohar Singh (deceased accused). He further stated that a number of persons had gathered there and kept a watch on Mohar Singh's house. The witness further told that he and Duli Chand had taken search of the "Baithak" and Pol' of Mohar Singh's house but had not searched the "Bukhari". This witness too clearly stated that on the next day he had seen the dead body of Saroj at about 3.00 or 4.00 PM. outside Mohar Singh's house and the people present there were telling that the dead body had been brought out of the house of the said accused. PW. This witness too clearly stated that on the next day he had seen the dead body of Saroj at about 3.00 or 4.00 PM. outside Mohar Singh's house and the people present there were telling that the dead body had been brought out of the house of the said accused. PW. 6 Triloki Chand has no doubt stated that he had seen the dead body of Saroj in the morning lying in front of the house of Mohar Singh but he is not supported on that point by other witnesses. He is a hostile witness. His statement that he had heard no hulla' during the night belies his version and therefore this witness cannot be believed on the point of the recovery of the dead body. PW. 7 Shobha Ram is again though a hostile witness yet he has stated that during the night there was hulla' in the mohalla whereupon he had come out of his house and came to know that the people who had gathered there wanted to take search of Mohar Singh's house that on the following day, in the evening. He had seen the dead body of the deceased kept outside of the house of Mohar Singh. On being cross- examined by the defence on that point he stuck to that position. PW. 8 Triloki Nath has stated that after having taken his meals he was sitting on the well when he had seen Saroj coming out of his house and entering into the house of Mohar Singh and after some time there was a hulla' in the Mohalla and people had gathered in front of the house of Mohar Singh. He further stated that he, Duli Chand and Bhagwati Prasad had taken the search of Mohar Singh's house in the night but did not find the girl there and that he watched the house of Mohar Singh during the night from the well and in the morning he had gone to attend to his duties. He further stated that in the evening he had returned at about 4.00 or 4.30 PM. and then he saw the dead body of Saroj being brought out of the house of Mohar Singh. 28. PW. 9 Duli Chand and PW. 10 Shyam Baboo are residents of the same Mohalla. He further stated that in the evening he had returned at about 4.00 or 4.30 PM. and then he saw the dead body of Saroj being brought out of the house of Mohar Singh. 28. PW. 9 Duli Chand and PW. 10 Shyam Baboo are residents of the same Mohalla. Duli Chand has stated that after having taken his meals at about 9.00 or 10.00 P.M. when he was retiring for night rest he heard the hulla' in the Mohalla where upon he came out of his house and found a number of persons having gathered at the house of Mohar Singh asking him to open the doors of his house for a search by them but Mohar Singh ultimately agreed for search of his house by the witness and Bhagwati Prasad whereupon they both entered the house of Mohar Singh and after making a casual glance at the Chowk' and rooms came out of the house, that Mohar Singh shut the doors of his house but the people there were persistent in their views that saroj was inside Mohar Singh's house and therefore, there was a jagran' during the night. The witness further stated that he went to his house and in the following morning when he came out of his house there was a general rumour that the girl had been murdered. The witness added that he went to his shop and when he returned therefrom in the evening at about 3.00 or 4.00 PM. and reached the Mohalla he found the police present there and then the police called him and told him that Rama Kant appellant had given all information regarding the presence of the dead body of Saroj in the Bukhari of the stair case of the house of Mohar Singh, that the appellant Ramakant was there with the police and that he (the witness) had accompanied the police to the Bukhari and therefrom the police recovered the dead body of Saroj having a Baniyan and an underwear only on it. The witness further stated that the dead body was hidden behind some peepas' and stones, in the cross-examination the witness denied the presence of Mohar Singh and further explained that about 9.00 A.M. in morning there was a rumour that Mohar Singh had given information regarding the dead body of the deceased in his house. The witness further stated that the dead body was hidden behind some peepas' and stones, in the cross-examination the witness denied the presence of Mohar Singh and further explained that about 9.00 A.M. in morning there was a rumour that Mohar Singh had given information regarding the dead body of the deceased in his house. This rumour seems to have been the basis of the statement of Smt. Urmila Devi PW. 1 that the dead body had been recovered in the morning. The learned Judge has very rightly observed that such rumours cannot rumours represent the loud thinking and surmises of the makers thereof and cannot be regarded as legal evidence and are in admissible in evidence for their being simply hearsay evidence. Duli Chand could not tell the name of any person in particular from whom he had heard such rumour. The statement of Duli Chand in the examination-in- chief regarding the presence of Mohar Singh (deceased accused) at the time of recovery of the dead body of Saroj was contradicted by him in the cross-examination wherein he categorically denied that fact. Apart from that, PW. 10 Shyam Babu, PW. 12 Raghubir Singh ASI and PW. 16 Rajbir Singh SHO have unambiguously stated that the dead body of Saroj and her clothes from under the cover of Gadda' were recovered at the information and instance of Rama Kant appellant. These witnesses appear to be bearing no grudge or enemity against the appellant. There is no good reason to discard their sworn testimonies and the learned Sessions Judge has committed no error in accepting their evidence on the point of arrest of the appellant at 3.00 RM. on 11.4.79, his giving information relating to the presence of the dead body of the deceased inside the Bukhari and the clothes of the deceased under the cover of a Gadda' and such information leading to the discovery of those material evidence in the case. 29. The argument of Mr. Biri Singh that since there were other members of appellant's family in the house, possibility of their committing the murder of the deceased cannot be ruled out has been very minutely examined by the learned trial Judge. He has held that the brothers and sister of the appellant were simply children and could not have participated in the commission of the ghastly crime. He has held that the brothers and sister of the appellant were simply children and could not have participated in the commission of the ghastly crime. Mohar Singh deceased though was an old and sick man yet he could have abetted the commission of the offence of murder by helping the appellant in over powering the deceased and in weakening her resistance power. In the totality of the circumstances it cannot be over looked that the dead of the deceased had been found with a baniyan and under wear on it and that the wetted cloth ped found under her underwear over her private parts was found stained with human semen. These facts clearly probabilise the possibility of the appellant having indulged in sex act with the deceased after having disrobed her of her bush shirt and petticoat with her consent and that during the meanwhile, on a hulla' having been raised about the missing of Saroj and her being suspected to be inside the house of Mohar Singh, the appellant could have thought of killing her and his grand father would have helped him in over powering the deceased. The learned Sessions Judge has rightly pointed out that the appellant being stronger than his grandfather would close the nostrils of the deceased with one hand and her mouth with the other and the old man would help him in breaking the resistance power of the deceased. In any case, the direct complicity of the appellant in the commission of the murder of the deceased cannot be ruled out on any reasonable ground whatsoever. In this behalf the presence of the ecchymosos under the nail of left thumb of the appellant and similar ecchymosis and injury on the nostril of the deceased cannot be overlooked. The argument that the appellant had received that injury in his school is supported with no evidence and, therefore, the bald statement of the appellant without telling the circumstances as to how, where and when did he receive that injury which was unsupported with any abrasion on the outer skin of the thumb cannot be attached any value. 30. The argument that the appellant had received that injury in his school is supported with no evidence and, therefore, the bald statement of the appellant without telling the circumstances as to how, where and when did he receive that injury which was unsupported with any abrasion on the outer skin of the thumb cannot be attached any value. 30. After having examined the relevant evidence in support of the inferences drawn from the facts established on the record of the case we are satisfied that the learned trial Judge was fully justified in drawing such inferences from the evidence on record and the circumstances of the case. The circumstances found proved and established in this case not only bring out a motive on the part of the appellant to cause the death of Saroj deceased in the facts and circumstances of the case but also lead to the only hypothesis consistent with the complicity of the appellant in the commission of the offence of murder of Saroj which hypothesis is in consistence with his innocence. 31. We may add that the commission of the offence of murder in the death of Saroj by violence was not disputed before us. That apart, we entertain no doubt that Saroj had died of suffocation caused by the closure of her nostrils and mouth and that in the ordinary course of nature death in that manner could have been caused. We find that the theory put forth by the prosecution in this case was quite, acceptable in the facts and circumstances of the case and that the evidence produced in support of such theory was trustworthy and was rightly held reliable by the learned trial Judge. The theory put forth inspires confidence in us in the given facts and circumstances of the case and therefore, we entertain no doubt at all of its truthful character. 32. In view of the discussion made herein above we hold that the various circumstances found established by the learned Sessions Judge and as reproduced above stood fully proved on the record of the case and that the inferences drawn by the learned Judge from them are correct. We accordingly uphold the conviction of the appellant for the offence Under section 302 IPC for causing death of Saroj deceased during the intervening night of 10/11.4.79. 33. Now coming to the other limb of the argument of Mr. We accordingly uphold the conviction of the appellant for the offence Under section 302 IPC for causing death of Saroj deceased during the intervening night of 10/11.4.79. 33. Now coming to the other limb of the argument of Mr. Biri Singh regarding the age of the appellant at the time of commission of the offence in this case we find that in the arrest memo (Ex.P 21) the age of the appellant was mentioned as 18 years. The appellant was arrested on 11.4.79 and the estimation of his age was made by the officer arresting him. The basis of such estimation is not known to us. On 12.4.79 the appellant was examined by PW. 11 Mohan Lal Maroo who mentioned the age of the appellant as 16 years in the report (Ex.P 20) prepared by him. This estimation appears to have been made by the witness on mere appearance of the appellant being of that age. The appellant was examined on 4.2.82 Under section 313 Cr.PC. wherein he appears to have told his age at 17 years but the trial court appears to have estimated his age at 18 years on that day. The occurrence in the case had taken place on 10.4.79 and therefore, if one goes by the estimation of the age of the appellant as made by the trial court while examining him Under section 313 Cr.PC. on 4.2.82 then the age of the appellant would come to below 16 years. This would tally with the estimation made of his age by Dr. Mohan Lal Maroo (PW 11). It appears that on 21.5.79 the appellant had applied for bail Under section 439 Cr.PC. to this court. Alongwith his application he had filed a School Leaving Certificate. After looking into the entries made in that certificate regarding the age of the appellant this court had observed that the appellant had not attained the age of 16 years. On 18.10.80 the appellant had requested the trial court for requisitioning the record of the case whereupon the Transfer Certificate form, filed along with the bail application, had been placed. The court had called for such record also and that forms part of the record of the trial court. It may be stated that the T.C. from had been issued by the Head Master, Govt. Higher Sec. School, Dholpur (Rajasthan) under his signature and seal of the institution. The court had called for such record also and that forms part of the record of the trial court. It may be stated that the T.C. from had been issued by the Head Master, Govt. Higher Sec. School, Dholpur (Rajasthan) under his signature and seal of the institution. In this Transfer Certificate from the date of birth of the appellant was mentioned as June 23, 1963. This document was not however got exhibited at the trial of the case. Through his statement Under section 313 Cr.RC. the appellant had exhibited as Ex.D. 5 the birth certificate issued by Head Master, Govt. Higher Sec. School, Dholpur wherein it was certified that according to the school record the date of birth of the appellant was 23.6.63. The learned Session Judge with reference to the cases reported in AIR 1970 Punjab & Haryana 450, AIR 1970 S.C. 1029 and 1978 Cr.L.R. (S.C.) 150 held that since the primary evidence was not produced before him the document relied upon by the appellant particularly Ex.D. 5 could not be considered and that it was well within his competent to estimate the age of the appellant. The learned Sessions Judge, therefore, estimated the age of the appellant and held that the appellant was not below the age of 16 years at the time of occurrence in the present case. He accordingly declined to refer the case of the appellant to the Children Court as per Section 26 of the Children Act, 1960. 34. The main argument of Mr. Biri Singh that the certificate Ex.D. 5 was admissible in evidence Under section 35 of the Evidence Act and therefore, the learned Sessions Judge was not correct in rejecting the admissible and reliable evidence in support of the age of the appellant. In this behalf the learned counsel relied upon the decisions of the Supreme Court in the cases of Ramesh Chand v. State of Rajasthan (1982 S.C. Cases (3) 396) and Bhup Ram v. State of U.P., ( AIR 1989 SC 1329 ) . 35. The learned Public Prosecutor, however, relied upon the cases cited by the learned Sessions Judge in support of his reasons for not dealing the case of the appellant in accordance with the provisions of the Children Act. 36. 35. The learned Public Prosecutor, however, relied upon the cases cited by the learned Sessions Judge in support of his reasons for not dealing the case of the appellant in accordance with the provisions of the Children Act. 36. It is not in dispute that at the time of commission of the offence in the present case the Children Act, 1960 was not applicable to Dholpur District. Before 15 April, 1982 Dholpur District was a part of Bharatpur District. The Children Act, 1960 was applied to Bharatpur Dist. in November 1981 when the trial of the appellant was pending before the trial court. 37. At the time of the pendency of the trial of the appellant Rajasthan Children Act came into force and its provision applied to the case of the appellant. Since the relevant provisions in the Children Act, 1960 and Rajasthan Children Act 1970 are in paramateria, the question whether the Children Act, 1960 or the Rajasthan Children Act, 1970 was applicable to the case of the appellant is infact, quite immaterial. 38. Section 2(d) of the Rajasthan Children Act, 1970 says that child means a boy who has not attained the age of 16 years. In the case of Umesh Chand (supra) it was held by the Supreme Court that the age of the accused was to be reckoned with reference to the date of commission of the offence. The Apex Court has further observed in the said case that the Children Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act. 39. It is no doubt true that in the case of Ram Moorti (supra) the Supreme Court, dealing with a case Under section 366 and 376 had observed that the age of prosecutrix in such cases is always of greater importance, particularly so where according to medical evidence he was found to have been used to sexual intercourse. This was a case under the provisions of IPC and the question of construction of the provisions of the Rajasthan Children Act, 1970 had not arisen therein. The question of construction of the provisions of Rajasthan Children Act, 1970 directly arose before the Apex Court in the case of Umesh Chand (supra). This was a case under the provisions of IPC and the question of construction of the provisions of the Rajasthan Children Act, 1970 had not arisen therein. The question of construction of the provisions of Rajasthan Children Act, 1970 directly arose before the Apex Court in the case of Umesh Chand (supra). The Apex Court held that the Act being a piece of social legislation meant for the protection of children who commit criminal offences, its provisions were required to be liberally and meaningfully construed so as to advance the object of the act. It is, therefore, clear that where the question of the age of the accused in the context of the Rajasthan Children Act, 1970 arises such question has to be answered by making a liberal construction of the provisions of the Rajasthan Children Act, 1970. 40. From the narration of facts, as made above, it is clear that at various stages of the proceedings different authorities, entrusted with the discharge of public duties, had made the estimation of the age of the appellant differently. There is no evidence of the medical examination of the appellant regarding his age. In the absence of such evidence the other evidence relied upon by him in support of his being below the age of 16 years as on 10.4.79 is required to be appreciated in right perspective. In this behalf it is true that the T.C. Form, issued by the Head Master, Govt., Higher Sec. School, Dholpur (Rajasthan) was not exhibited at the trial, though the same had been produced by the appellant at the time of hearing his bail application by this court, but for that reason alone this document, in our opinion should not be rejected. In Ram Murti's case (supra) it was no doubt observed that school certificate can not be relied upon to determine the age of a person but such observations were made by their Lordships in the context of the commission of the offences Under section 366 and 376 and therein it was also observed that in such cases the age of prosecutrix is always of importance. But after the decision of that case the Supreme Court, in the case of Umesh Chand (supra), observed that the Rajasthan Children Act being a piece of social legislation was required to be liberally and meaningfully construed so as to advance the object of the act. But after the decision of that case the Supreme Court, in the case of Umesh Chand (supra), observed that the Rajasthan Children Act being a piece of social legislation was required to be liberally and meaningfully construed so as to advance the object of the act. In that case the entries in the school register and admission form, maintained in the course of discharge of regular official duty and existing ante litem motem, were held reliable Under section 35 of the evidence Act. In view of such approach of the Apex Court of the provisions of the Rajasthan Children Act 1970 we are inclined to accept the entries made in the T.C. form regarding the age of the appellant as quite admissible in evidence particularly for the reason that the said document was prepared by a public servant in the discharge of his official duties and that the record of such entries was kept by the said public servant. The certificate Ex.D. 5 issue by the Head Master of the Govt. Higher Sec. School, Dholpur (Rajasthan) mentioning the same date of birth of the appellant, as was mentioned in the transfer certificate form, should therefore be held admissible for the same reasons. In both these documents the date of birth of the appellant had been mentioned as 23.6.63 which clearly suggests that on 10.4.79 when the offence in the present case was committed the appellant was below 16 years of age. This documentary evidence which gets support from the estimation made of the age of the appellant by the Doctor, examining him on 12.4.79 and by the trial Judge while examining the appellant Under section 313 Cr.PC. on 4.2.82, in our opinion, outweights the estimation made by the learned Sessions Judge at the time of making the impugned Judgment and order in the present case. We, therefore, hold that the evidence brought on the record of the case proves that at the time of commission of offence on 10.4.79 the appellant, whose date of birth was 23.6.63 (as recorded in the relevant school certificates) was below 16 years of age. Therefore, in view of the provisions contained in Section 26 of the Rajasthan Children Act, 1970 the case of the appellant should have been referred to the Children Court by the learned Sessions Judge after recording his finding on the guilt of the accused. 41. Therefore, in view of the provisions contained in Section 26 of the Rajasthan Children Act, 1970 the case of the appellant should have been referred to the Children Court by the learned Sessions Judge after recording his finding on the guilt of the accused. 41. In view of our finding regarding the age of the appellant at the time of the commission of the offence and keeping in mind the provisions of Section 21/22 and 26 of the Rajasthan Children Act, 1970 we would have sent the case back to the trial court for passing appropriate orders under that Act. However, we find that by the time we are deciding this appeal the appellant is already more than 30 years of age. There would therefore, arise no question of the appellant to be sent to an approved school under the Rajasthan Children Act, 1970 for being detained there. In this behalf we get support for our views from the decisions of the Supreme Court in the cases of Jaindra v. State of U.P., AIR 1982 SC 685 and Bhup Ram (supra) wherein, under similar circumstances, the Apex Court ruled that where an accused, held guilty, is found to have been sentenced to imprisonment instead of being treated as a child and sent to an approved school, the right course to be followed is to sustain the conviction but to quash the sentence passed on him and direct his release forthwith. Following the ratic dice-den-di of the two cases of the Apex Court we would uphold the conviction of the appellant Under section 302 IPC but since the appellant is now aged more than 30 years no question of his being sent to an approved school under the provisions of Rajasthan Children Act, 1970 for being detained there would arises. We have therefore, to set aside the sentence imposed on the appellant and direct his release forthwith, if he is in custody. 42. In the result the conviction of the appellant for the offence of murder punishable Under section 302 IPC is sustained, but the sentence of imprisonment and fine imposed on him is hereby set aside. Since the appellant is already more than 30 years of age and no order Under section 21 of the Rajasthan Children Act, 1970, for his detention for a maximum period of three (3) years can now be passed. Since the appellant is already more than 30 years of age and no order Under section 21 of the Rajasthan Children Act, 1970, for his detention for a maximum period of three (3) years can now be passed. We direct that he shall be released forthwith, if in custody and not wanted in any other case. The appellant is, however, reported to be on bail. He need not surrender as his bail bonds are hereby cancelled. The amount of fine, if realised from him, shall be returned to him.Appeal stands partly allowed.> Appeal Partly Allowed. *******