B. K. SHARMA, J. ( 1 ) THIS is a revision against the judgment and order dated 28-9-1983 passed by Sri R. C. Verma, the then Sessions Judge, Mainpuri in Criminal Appeal No. 188 of 1983 under Section 376, I. P. C. whereby, he dismissed the appeal preferred against the judgment and order dated 19-8-1983 passed by Sri V. B. Singh, the then Assistant Sessions Judge, Mainpuri in S. T. No. 211 of 1983 convicting the accused-revisionist for the offence under Section 376, I. P. C. and sentencing him to undergo R. I. for a period of 3 years for having committed rape upon Km. Kusma Devi, aged about 10 years on 21-2-1983 in the field. ( 2 ) HEARD learned counsel for the accused-revisionist and the learned A. G. A. ( 3 ) IN this case, the learned counsel for the accused-revisionist has not challenged the conviction of the accused-revisionist for the offence under Section 376, I. P. C. He has only made his submissions on the point of sentence. His claim is that the accused-revisionist was a child within the meaning of the term under the U. P. Children Act; 1952 on the date of occurrence and that consequently in view of Section 27 of the U. P. Children Act, he cannot be sentenced to imprisonment for any term. U. P. Children Act, 1951 (U. P. Act No. 1 of 1952) was made applicable to the local area of Mainpuri District to which this case relates by notification No. 5078/xxvi-SW-32 (P)-67, dated 29/09/1970. He has pointed out that under Section 29 of the U. P. Children Act, the Court may send the child found to have committed an offence punishable with imprisonment, to an approved school for such period of stay at will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period. He has placed reliance in support of his contentions on the authority Chhotey v. State, 1998 JIC 527 (All ). ( 4 ) THE learned counsel for the accused-revisionist has placed reliance on the statement given by the accused-revisionist in his statement under Section 313, Cr. P. C. on 1-8-1983, wherein he gave his age as 16 years. He has placed reliance in support of his contentions on the authority Chhotey v. State, 1998 JIC 527 (All ). ( 4 ) THE learned counsel for the accused-revisionist has placed reliance on the statement given by the accused-revisionist in his statement under Section 313, Cr. P. C. on 1-8-1983, wherein he gave his age as 16 years. He has also pointed out that on this statement, there was no observation recorded by the learned Sessions Judge about his age different from the age as given by the accused. The learned counsel for the accused has also referred to the judgment of the learned Assistant Sessions Judge in which he has dealt with the point of sentence. The learned Assistant Sessions Judge stated in his judgment on the point of sentence that the learned counsel for the accused submitted that the accused is aged about 16 years and is a first offender and that he should be released on probation. The learned Sessions Judge observed in this regard that the accused appears to be a minor and considering the circumstances of the case, imposed the aforesaid sentence on the accused revisionist. It is, thus clear that the view of the learned Assistant Sessions Judge on the point of age of the accused-revisionist did not differ from the age as claimed by the accused in his statement under Section 313, Cr. P. C. The unfortunate position is that the learned Judge who presided over the trial of the accused revisionist and the learned counsel who represented the accused-revisionist before the trial Court, both were ignorant of the legal position. They were ignorant that partition law did not apply to a case like the one under Section 376, I. P. C. which could be punished with imprisonment for life and secondly that if the accused was below 16 years of age on the date of occurrence, then the provisions of Section 27 of the U. P. Children Act would become applicable. ( 5 ) IN the case of Chhotey aforesaid, reliance was placed by the learned counsel for the accused-revisionist on the statement of his age given by the accused-revisionist under Section 313, Cr. ( 5 ) IN the case of Chhotey aforesaid, reliance was placed by the learned counsel for the accused-revisionist on the statement of his age given by the accused-revisionist under Section 313, Cr. P. C. before the trial Judge, in respect of which there was no observation of the Judge about the age of the accused contrary to the age of 20 years as given by him in that statement which was recorded on 24-9-1980, while the date of occurrence in that case was 11-9-1975 and the Court observed :"there is no reason why the statement under Section 313, Cr. P. C. be not taken at its face value particularly when in this case no plea for taking the benefit of the U. P. Children Act, 1951 was raised at the time before the Sessions Judge. If such a plea had been raised at the stage, it may be said for a moment that he modulated his age in order to get the benefit of the provisions of Children Act but no such claim was made before the Sessions Judge. Perhaps, the learned counsel for the parties and the learned Sessions Judge were completely unaware of the provisions of the U. P. Children Act. "in that case, the statement of the accused-appellant under Section 313, Cr. P. C. was acted upon and the benefit of the U. P. Children Act was given to him. ( 6 ) IN the present case, the facts are more in favour of the accused-revisionist on this point inasmuch as, the learned Assistant Sessions Judge has referred to the age claimed by the accused and did not differ from it and observed that the accused appeared to be a minor and due to his ignorance about the provisions of the U. P. Children Act proceeded to impose the sentence of imprisonment. ( 7 ) NOW in the present case, the position is that his age was 16 years on 1-8-1983 and since then many many years have added to his age and consequently, he cannot even be sent to an approved school under Section 29 of the Children Act. ( 8 ) CONSEQUENTLY, the position is that even while his conviction stands, his sentence of imprisonment cannot be sustained and he cannot even be sent to an approved school. ( 8 ) CONSEQUENTLY, the position is that even while his conviction stands, his sentence of imprisonment cannot be sustained and he cannot even be sent to an approved school. It is an unfortunate case where a minor girl just 10 years of age has been mercilessly raped by the accused-revisionist but as the law is now he can neither be sent to jail nor to an approved school. ( 9 ) FOR the reasons aforementioned, the revision is partly allowed. The conviction of the accused-revisionist for the offence under Section 376, I. P. C. is maintained. However, his sentence of imprisonment is set aside. He is on bail from this Court. He need not surrender to it. His bail bonds are cancelled and sureties discharged. Revision partly allowed.