GORACHAND DE, J. ( 1 ) THIS appeal is directed against the judgment and order dated 30-4-85 passed by the learned Additional Sessions Judge, 4th Court, Murshidabad in sessions Trial No. 3 of 1985. By the said judgment, the learned Judge found the accused Uttam Ghosh guilty under Section 307, I. P. C. and after hearing the accused on the question of sentence under Section 235 (2), Cr. P. C. and keeping in view the tender age and that the offence was committed on the spur of moment, sentenced him to suffer R. I. for 7 years and to pay a fine of rs. 500/-, in default, to suffer further R. I. for three months. . ( 2 ) THE fact of this case is that on 14-10-83 at about 10/11 a. m. , a few persons were playing cards in a room and few others, including the accused Uttam Ghosh, were present there. In course of playing, the victim Japen Ghosh left, for which the accused uttam Ghosh hurriedly went to his own house and came with a hansua (a paddy cutting instrument used by the villagers) in his hand and started assaulting Japen ghosh as a result of which Japen Ghosh sustained serious injuries on his shoulder, back and left thumb. Japen Ghosh was removed to the nearest hospital for treatment where he stayed for about 27 days and his left thumb was amputed. One complaint was lodged to the local Police Station by one sahadev Ghosh. F. I. R. was drawn, investigation was made and ultimately chargesheet was filed against the accused Uttam ghosh and the case was committed to the court of Session where a charge under Section 307, I. P. C. was framed against the accused Uttam Ghosh. Uttam Ghosh pleaded not guilty to the charge and accordingly, a date was fixed for production of prosecution witnesses. ( 3 ) ON 16-4-85, the defence produced one ossification test report pointing out that the accused person was aged about 17 years at the time of the alleged offence, and after a contested hearing, the learned Additional sessions Judge came to the finding that the accused was a minor and that he was fit to proceed with the trial as there was no Juvenile Court in the district. Accordingly, the trial started after the plea of not guilty by the accused under Section 251, Cr. Accordingly, the trial started after the plea of not guilty by the accused under Section 251, Cr. P. C. The prosecution produced as many as 12 witnesses including the attending physical and the Investigating Officer. Eye-witnesses were also examined and all of them narrated how in course of playing cards the incident happened. It is already indicated that the accused was in the hospital for 27 days and his left thumb was amputated as a result of such assault. Thus placing reliance on the evidence adduced by the prosecution and after examining the accused under Section 313, Cr. P. C. , the learned Judge found the accused guilty under Section 307, I. P. C. and sentenced him in the manner indicated hereinabove. ( 4 ) IN course of hearing of this appeal, the learned counsel for the appellant practically did not challenge the conviction, but he directed his attack on the non-observance of the settled principle of law by the trial Court in the case of a juvenile delinquent within the meaning of the West Bengal Children Act, 1959 and argued that the provision of Section 26 of the Act was not followed by the Court below and the order of sentence was passed without taking into consideration the facts and circumstances of this case. It is also pointed out that though the learned Judge concluded that the accused was of tender age and the incident took place on the spur of moment, no attempt was made to take into consideration the provisions of Section 26 of the Act. Accordingly, the learned counsel for the appellant contended that in a case of this nature, sentence is liable to be set aside. ( 5 ) MRS. Krishna Ghosh, learned counsel for the State, however, contended that the evidence on records is sufficient to indicate that the trial Court came to a just decision in convicting the present appellant under section 307, I. P. C. It is also contended that in view of the provisions of Section 465, cr. P. C. , there is no reason to interfere with the sentence passed in this case. ( 6 ) AT the very outset it is to be noted that the evidence adduced by the eye-witnesses are sufficient to prove that the present appellant actually assaulted the victim Japen Ghosh by means of Hansua (a paddy cutting instrument used by the villagers ). ( 6 ) AT the very outset it is to be noted that the evidence adduced by the eye-witnesses are sufficient to prove that the present appellant actually assaulted the victim Japen Ghosh by means of Hansua (a paddy cutting instrument used by the villagers ). It is also indicated in the evidence that the injuries were serious in nature as those were inflicted on the shoulder, back and left thumb as a result of which the left thumb was to be amputated. All such evidence are sufficient to prove that the accused persons had actually committed an offence punishable under Section 307,i. P. C. It is already stated that the learned counsel for the appellant has also not challenged the conviction. So, after a due consideration of the evidence on record and circumstances explained, I hold that the learned Judge rightly found the accused guilty under Section 307,i. P. C. and convicted him thereunder. ( 7 ) BUT as regards imposition of sentence, i find that the learned Judge completely ignored his own order dated 16-4-85 in which he conlcuded that the present appellant was a minor and decided to proceed with the trial according to the provision of West Bengal children Act, 1959. So he took the plea of the accused under Section 251, Cr. P. C. without following the Warrant Procedure. But surprisingly enough, the judgment indicates that the learned Judge proceeded as if, the accused person was an adult and not a juvenile delinquent within the meaning of West. Bengal Children Act, 1959. It is stated above that the offence was committed in the year 1983. So when the accused was found to be a juvenile delinquent, it was incumbent upon the Court to proceed in accordance with the other provisions of the West Bengal Children Act, 1959. The trial Court only at the initial stage followed the procedure and examined the accused under Section 251, Cr. P. C. but thereafter forgot to apply the other provisions of the Code. This is sufficient to show that a failure of justice has in fact been occasioned thereby, and accordingly, the Court is competent to proceed with the question of legality of the sentence and Section 465 of the Cr. P. C. is not a bar. P. C. but thereafter forgot to apply the other provisions of the Code. This is sufficient to show that a failure of justice has in fact been occasioned thereby, and accordingly, the Court is competent to proceed with the question of legality of the sentence and Section 465 of the Cr. P. C. is not a bar. ( 8 ) IN Section 27 of the West Bengal Children Act, 1959 there are provisions as to what order canbe lawfully passed in respect of the juvenile delinquent. It is already stated above that the trial Court did not consider this aspect of the matter. The imposition of sentence to R. I. for 7 years and thereafter to pay a fine of Rs. 500/- and, in default, to suffer further R. I. for three months are sufficient to indicate that the Court below did not apply its mind to the West Bengal Children Act, 1959. In fact, he was not competent to pass an order of sentence in the manner done in this case and accordingly, passing of the sentence in this case has no sanction of law and accordingly, it is liable to be set aside. ( 9 ) THUS, the facts and circumstances of this case takes me to a situation where conviction of the present appellant is upheld, but sentence is liable to be set aside or quashed. The learned counsel for the appellant on this score placed reliance to two decisions of the Apex Court. In the case of bhoop Ram v. State of U. P. reported in 1989 scc (Crl) 486 : (1990 Cri LJ 2671), the Apex court considered such a situation where the offence was committed at the age of 16 years and in courfg of hearing of the appeal, the accused was aged about 2. 8 years. The Apex court took the view that since the appellant was aged more than 28 years of age, there was no question of the appellant being sent sent to an approved school under the Uttar pradesh Children Act for being detained there. Accordingly, their Lordships took the view that the conviction of the accused was to be sustained under all the charges framed against him but the award of sentence was to be quashed. Accordingly, their Lordships took the view that the conviction of the accused was to be sustained under all the charges framed against him but the award of sentence was to be quashed. ( 10 ) IN the case of Pradeep Kumar v. State of U. P. reported in 1995 SCC (Crl) 395 : (1994 Cri LJ 148), the Apex Court again considered such fact situation and was pleased to uphold conviction and considering the age of the appellant sustained the conviction under all the charges against them but quashed the sentenes awarded to them and directed their release forthwith. ( 11 ) IN the present case, as stated hereinabove, the accused was aged 17 years at the time of alleged offence in 1983 and at present, he is aged about 36 years and as such no purpose would be served in passing any order under Section 26 of the West bengal Children Act, 1959. Accordingly, keeping in view the law enunciated in the above two decisions of the Apex Court, I deem it proper to proceed in the line indicated in those decisions. ( 12 ) ACCORDINGLY, I sustain the conviction of the appellant under Section 307, I. P. C. , but however, quash the sentence awarded to him and direct his release forthwith and the accused be discharged from the bail bond. ( 13 ) IT is made clear that in terms of Sec; tion 49 of the West Bengal Children Act, 1959, the conviction of the said accused shall not be regarded as dis-qualification attached to conviction for an offence. ( 14 ) WITH the above observations, this appeal is disposed of. ( 15 ) LET a copy of this judgment along with the L. C. R. be sent down to the Court below forthwith. Order accordingly.