Judgment : PARTHA SAKHA DATTA, J. (1) The learned Additional Sessions Judge, Fast Track Court No. 1, Jangipur in the district of Murshidabad convicted the appellant under Section 376/417 IPC in Sessions Serial No. 48 of 2004 corresponding to Sessions Trial No. 02 of 2004 arising out of Suti P.S. Case No. 110 of 2002 and sentenced him to suffer R.I. for 7 years with payment of fine of Rs.35,000/- in default to suffer for R.I. for 1 year with payment of fine of Rs.500/-in default to suffer S.I. for one month. (2) The judgment and order of the learned trial court has been appealed against in CRA No. 694 of 2005 and it came for consideration before this court on 17th September, 2007 and at the time of hearing of the appeal a point was taken that the appellant in his examination under Section 313 Cr.P.C. stated before the learned Judge that on the day of examination he was 15 years old. The courts attention was further drawn to the report of Dr. Alok Biswas (P.W. 6) which goes to show that on the date of examination of the appellant on 11th September, 2002 he was about 15 years old. Thus, with the aid of the medical report of P.W. 6 (Exbt. 2) and the statement of the accused under Section 313 Cr.P.c. it was contended that the appellant ought to have been tried under the Juvenile Justice (Care and Protection) Act 2002; and when the question of juvenility has been raised an enquiry was necessary so as to ascertain the age of the appellant at the time of the commission of the offence under Section 7(A) of the Act. (3) Upon such submission of the appellants advocate and upon hearing the learned counsel for the State of West Bengal there was a direction upon the learned trial court to ascertain the age of the appellant on the basis of evidence oral and documentary as may be adduced before the trial court and to return its finding to this court so as to proceed further with the hearing of the appeal. (4) In compliance with the order of this court dated 17th September, 2007 the learned trial court has returned its finding which requires to be now considered. (4) In compliance with the order of this court dated 17th September, 2007 the learned trial court has returned its finding which requires to be now considered. Before the learned Judge in the trial court, as it appears from the learned trial courts order dated 11th of January, 2008 the prosecution examined two witnesses and two documents were produced; one was the school certificate issued by the teacher-in-charge of Uttar Naya Bahadurpur Primary School (Exbt. 2) and the relevant entry in the admission register was dated 28th of May, 1991 (Exbt. 1). The relevant entry in the admission register of the primary school corroborated the date of birth of the appellant as described in the school certificate dated 23rd November, 2007. The school certificate dated 23rd November, 2007 issued by the said primary school (Exbt. 2) goes to show that as per admission register of the said school the date of birth of the appellant was 10th of January, 1985. As against this, defence proved a school certificate dated 29th of November, 2007 issued by Fatullapur S.M. High School showing the date of birth as 10th of January, 1987 but the learned trial court observed that the defence failed to prove the relevant entry in the admission register of Fatullapur (5) S.M. High School. Thus, the defence failed to prove the foundation of Exbt. A, i.e. the school certificate dated 29th of November, 2007 which could not carry any weight because the very basis of entry in the school certificate of Fatullapur S.M. High School wherein the date of birth was recorded as 10th of January, 1985 could not be established. However, treating 10th of January as the date of birth of the appellant the age of the appellant on the date of the commission of the days, i.e. less than 17 years. It was further observed that as regards subsequent cohabitation with the victim on the days as alleged the appellant was also less than 18 years of age. Juvenile Justice (Care and Protection of Children) Act 2000 came into force on and from 1st of April, 2001 with the repeal of the 1986 Act; thus juvenile means one who is under 18 years of age. The date of commission of the offence was 5th of December, 2001 and on that day the accused came to be less than 18 years of age. The date of commission of the offence was 5th of December, 2001 and on that day the accused came to be less than 18 years of age. (6) Thus, the appeal is now being proceeded with the finding that appellant on the date of the commission of the offence was a juvenile. As per the FIR which was lodged on 5th of September, 2002, 9 months preceding the date of filing of the FIR which roughly came to be 5th of December, 2001 the accused committed sexual intercourse with the victim against the will of the victim for the first time and then on 8 or 10 occasions subsequently on the promise that he would marry the victim. The victim conceived and when the proposal of marriage was placed to the appellant he refused. This was the FIR (Exbt. 1/3). (7) The victim stated before the learned Judge as P.W. 1 that when she had been to the house of the accused to meet the sister of the accused Mousumi the accused finding Mousumi not in the house cohabited with the victim who then started crying but was threatened. Accused consoled her that he would marry her and then on subsequent occasions such cohabitation did take place. This with her and promised to marry and then she starting loving him after such cohabitation. On the date of the evidence of the victim which was 7th of September, 2004 she was 18 years old, which means that on the date of the alleged commission of offence which was 2 years 9 months preceding her giving evidence in court she was 16 years old. P.W. 2, Tapan Das, the father of the victim corroborated the evidence of his daughter as was reported to him by her. The appellants father was reported of the incident so that a marriage could be arranged but after dilly dallying the appellants father avoided. A child was born of such sexual intercourse. P.W. 3, Sisir Kumar Das is the scriber of the FIR. P.W. 4, is Chumki Das, another daughter of P.W. 2 who was aged 12 years and her evidence is that her elder sister had been to house of the appellant and she found in the evening her elder sister and the appellant lying on a cot. As she entered into the room the appellant went away. P.W. 4, is Chumki Das, another daughter of P.W. 2 who was aged 12 years and her evidence is that her elder sister had been to house of the appellant and she found in the evening her elder sister and the appellant lying on a cot. As she entered into the room the appellant went away. (8) Evidence of P.W. 5, Bharati Das is of no relevance. P.W. 6, Dr. Alok Kumar Biswas, as already observed, found that on the day of examination he found the appellant about 15 years. Evidence of this witness is no longer relevant because subsequently on the basis of the documentary evidence it has been found out by the learned trial court that the age of the December, 2001 was under 18 years. P.W. 7, Mr. Shri Kumar Goswami, the Judicial Magistrate recorded the statement of the victim which goes to show that in one night in the month of Magh of the year preceding the year of her statement dated 5th of September, 2002 the appellant came to her room and committed sexual intercourse against her will. (9) Evidence of P.W. 8, Dr. Pradip Kumar Mishra is of no assistance since medical examination was done long after the alleged commission of offence and only it is found that the hymen of the victim was found raptured with vagina remaining intact. (10) Dr. Asit Kumar Majumder (P.W. 9), the medical officer of Sub-Divisional Hospital at Jangipur took sample of blood of the victim, of her child and of the accused and the result of the Assistant Director (Biology) cum-Assistant Chemical Examiner to the Government of India (Exbt. 6/2) is that the appellant is the biological father of the baby. This finding could not be assailed. (11) As regards the age of the victim defence examined D.W. 3 Dr. Pratap Chandra Saha, the Medical Officer of Sub-Divisional Hospital at Jangipur who conducted ossification test of the victim on 2nd of July, 2003 observed through test was conducted on the prayer of the I.O. This ascertainment of age as 18/19 years on the date of examination of the victim does not help to ascertain the age of the girl on the date of the alleged commission of the offence which first took place on 5th of December, 2001. The doctor says in his cross-examination by this prosecution that it is not possible to say for him whether the actual age of the victim girl was 16 years or not at the time of the alleged commission of the offence. (12) Having considered the evidence of the witnesses for the prosecution and the defence it comes to be established without any shadow of doubt that the victim was sexually intercoursed by the appellant and the controversy rests with the question whether such sexual intercourse was committed with the consent of the girl or not. Since D.W. 2 fails to say whether the victim was 16 years at the time of commission of the offence or not it cannot be definitely concluded that she was about 16 years of age. Such a conclusion is risky one because ossification test report only gives an approximation of age which may vary either by increase or by decrease by 2/3 years. The victim has consistently said in her evidence that she was raped against her will. She has stated that subsequently she cohabited with the appellant as the latter assured of marrying her. (13) Thus, the prosecution case is found to have been established. Since the appellant was a juvenile he has to be dealt with under the Juvenile Justice (Care and Protection) Act 2000. About 27 years have elapsed since the alleged commission of offence. It is futile now to ask the appellant to be tried under the Act 2000. It appears that the appellant has been in judicial custody since the date of sentence which is 30th of July, 2005. Accordingly, the appellant be released forthwith with the sentence reduced to the period already undergone. Thus the appeal is allowed in part. (14) CRAN Application No. 2044 of 2006 also stands disposed of. (15) A copy of this judgment shall be sent to the learned Additional Sessions Judge, Fast Track Court No. 1, Jangipur for information and necessary action and also to the Superintendent of the Correctional Home where the appellant is lodged.