JUDGMENT Kanchan Chakraborty, J. 1. The challenge in this appeal is to the judgment and conviction dated 22.12.2009 and 23.12.2009 respectively thereby convicting the appellant Raj Kr. Mondal under section 376/511 of the IPC and sentencing him to suffer RI for five years and to pay fine of Rs. 5,000/-. The appeal has been preferred challenging the judgment above on many fold grounds and one of the main ground is that the learned Court failed to consider that on the date of occurrence, the appellant was below the age to attain the majority in terms of Juvenile Justice (Care and Protection of Children) Act, 2000 (As amended). 2. Since this point is raised seriously by Mr. Acharya, learned Counsel appearing for the appellant and conceded by Mr. Chakraborty, learned Counsel appearing on behalf of the State of West Bengal, this Court thinks fit and proper to take up the matter first of all without entering into the merit of the judgment. 3. Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 is set out below:- [7A. Procedure to be followed when claim of juvenility is raised before any Court.--(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rule made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect]. 4. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect]. 4. Section 49 of the said Act is also set out below: 49. Presumption and determination of age.--(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be true age of that person. 5. The provisions above made it explicit that when a question of juvenility of an accused is raised, Court is to be act according to the Law to ascertain the truthfulness of the claim of the accused and also to ascertain his actual age. The Act also provides procedures to be followed in doing so. 6. The instant case was set in motion by one FIR which was marked Ext. 1.A bare reading of the Ext. 1 leaves no room of doubt that the defacto complainant herself stated in the FIR that the age of the appellant/accused is 17 years at the relevant point of time. The accused/appellant was examined under section 313 of the Cr. PC by the learned Trial Court on 30.6.2009. The learned Trial Court recorded his age as 18 years on that date. 7. The incident alleged had taken place about 2 years prior to that examination of the accused/appellant under section 313 of the Cr. PC. The accused/appellant was examined under section 313 of the Cr. PC by the learned Trial Court on 30.6.2009. The learned Trial Court recorded his age as 18 years on that date. 7. The incident alleged had taken place about 2 years prior to that examination of the accused/appellant under section 313 of the Cr. PC. This two important documents or pieces of evidence were overlooked by the learned Trial Court as well as by the learned Counsels for the parties. It is not the case that a question of juvenility was raised and agitated unsuccessfully by the accused/appellant in the learned Trial Court. This is also not a case where the Trial Court held the accused to be a juvenile or not juvenile. The Trial Court was oblivious to take two pieces of important evidences into consideration as to the juvenility of the accused/appellant. Now, the appellant has taken a ground in this appeal claiming that he was a juvenile at the time of commission of the offence for the first time. 8. In view of the provisions under section 7A read with section 49 of the Act, this point can well be agitated before the Appellate Court for the first time. There is no bar for a juvenile delinquent to raise such a point in an appeal for the first time. The benefit of benevolent legislation can be made applicable in favour of those delinquents who undoubtedly have been held to be a juvenile, which leaves no scope for speculation about his age. It is not correct to say that the accused/appellant who allegedly committed a grave and heinous offence has attempted to take a statutory protection to subvert or dupe the cause of justice. 9. In this case, no doubt, there is a clear and unambiguous case in favour of the appellant/accused that he was a minor on the date of incident. The learned Trial Court admitted the contents of the FIR into evidence and marked Ext. 1.A Court itself noted down the age of the accused as 18 years at the time of examination under section 313 of the Cr. PC. So, it appears to be a genuine case where the appellant is not trying to take shelter of Juvenile Justice (Care and Protection of Children) Act, 2000 by using it as a shield. 10. 1.A Court itself noted down the age of the accused as 18 years at the time of examination under section 313 of the Cr. PC. So, it appears to be a genuine case where the appellant is not trying to take shelter of Juvenile Justice (Care and Protection of Children) Act, 2000 by using it as a shield. 10. Therefore, this Court also expresses its agreement with the view of the learned Counsels for the appellant as well as the State of West Bengal that this being a genuine case where juvenility of the accused had to be ascertained by the learned Trial Court. But unfortunately, it was not done. Therefore, this appellant is entitled to protection under the Act. 11. In the premises above, this Court allows the appeal and sets aside the judgment impugned. The matter be remitted back to the learned Trial Court for ascertaining juvenility of the accused/appellant as claimed in this Court in accordance with law first of all and thereafter proceed with the case on the basis of the result of such enquiry. 12. Accordingly, the appeal is disposed of. 13. There will be no order as to costs. 14. L.C.R. be returned with the copy of the judgment. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.