ORDER 1. This appeal under section 374 (2) of the Code of Criminal Procedure, 1973 preferred by the accused has been directed against a judgment dated 10th October 2003 delivered in Sessions Case No. 118/2003 by the Sessions Judge, Shivpuri (M.P.), convicting the accused for committing rape on the prosecutrix, aged 13 years which is an offence punishable under section 376 (1) of IPC and sentencing him to suffer seven years’ rigorous imprisonment with a fine of Rs. 500/- (Rs. Five Hundred Only), in default of payment of which he was also directed to serve additional one month’s imprisonment. 2. The incident, in brief, is that on 8th April 2003, at around 8.30 pm, the prosecutrix accompanied with Veerwati Bai went at the tube well of her vicinity for drawing water. At that moment, accused Ramswarup reached and taking the advantage of her loneliness, as by that time, her colleague left the place, forcibly took the prosecutrix away to a place of Fundi and committed rape on her. The prosecutrix along with her parents went to the police station Chharha, district Shivpuri and lodged the FIR. The investigation was set in motion. She was medically examined. The case diary statements of ocular witnesses were recorded. The accused was arrested and after his arrest, he was medically examined. After usual investigation, the charge sheet was filed. On committal, the sessions trial was commenced and on prosecution evidence, the accused was convicted and sentenced as mentioned above, hence, this appeal. 3. The contention of the learned counsel appearing for the appellant is that appellant is a juvenile under section 7 (2) and 20 of the Juvenile Justice (Protection and Care of Children) Act, 2000, hereinafter referred to as the ‘Act 2000’ but the trial Judge without enquiring into the age of accused straightway held him guilty in utter disregard to the mandatory provisions. Even otherwise, as per learned counsel there was no evidence against the accused to hold him guilty and in such circumstances, the accused could not be convicted for the alleged offence of rape. It is, therefore, prayed that by allowing this appeal, the accused may be acquitted of the alleged offence. 4. Heard the learned counsel for the parties and also perused the record of the case. 5. It is, therefore, prayed that by allowing this appeal, the accused may be acquitted of the alleged offence. 4. Heard the learned counsel for the parties and also perused the record of the case. 5. There is no doubt that the learned Sessions Judge had the power and it was well within her jurisdiction to determine the age of the accused-appellant. Even in the absence of an enquiry under the Act, the Sessions Court, after the case is committed to it has the power to make an enquiry and determine the age of the accused if it considers it necessary in the interest of justice or a prayer is made in that behalf. 6. In this respect, a reference may be made to a decision in the case of Om Prakash v. State of Rajasthan, (2012) 5 SCC 201 , at page 210 wherein the Hon. apex Court was pleased to observe as follows:- “25. It is hard to ignore that when the Additional Sessions Judge in spite of meticulous scrutiny of oral and documentary evidence could not arrive at a conclusive finding that he was clearly a juvenile below the age of 18 years on the date of incident, then by what logic and reasoning he should get the benefit of the theory of benevolent legislation on the foothold of the Juvenile Justice Act is difficult to comprehend as it clearly results in erroneous application of this principle and thus we find sufficient force in the contention of the learned counsel for the appellant that the benefit of the principle of benevolent legislation can be made applicable in favour of only those delinquents who undoubtedly have been held to be juveniles which leaves no scope for speculation about the age of the alleged accused. 26. We therefore cannot overlook that the trial Court as well as the High Court while passing the impugned order could not arrive at any finding at all as to whether the accused was a major or minor on the date of the incident and yet gave the benefit of the principle of benevolent legislation to an accused whose plea of minority that he was below the age of 18 years itself was in doubt. In such a situation, the scales of justice are required to be put on an even keel by insisting for a reliable and cogent proof in support of the plea of juvenility specially when the victim was also a minor. 39. We therefore, deem it just and appropriate to set aside the judgment and order passed by the High Court as also the Courts below and thus allow this appeal. Consequently, the accused Vijay Kumar, s/o Joga Ram shall be sent for trial before the Court of competent jurisdiction wherein the trial is pending and not to the Juvenile Court as pleaded by him. We order accordingly.” 7. On perusal of the operative portion of the impugned judgment, this Court finds that at the time of hearing the accused on the point of sentence, he raised a plea of his juvenility and claimed to be extended the benefit under the Act, therefore, keeping in view the principles laid down by the Hon. apex Court, the learned trial Court before passing sentence against the accused was obliged to make an enquiry after taking such an evidence as may be necessary so as to determine his age and then record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be, but unfortunately the provisions were overlooked. Hence without considering the appeal on merits, this Court feels it necessary to direct the trial Court to hold an enquiry itself for determination of the age of the accused on the date of commission of crime and if it concludes based upon an enquiry after collecting such an evidence, as may be necessary, that the accused/appellant was beyond the age of eighteen years, in that situation, the sentence as per provisions of the Indian Penal Code shall be awarded. However, if it returns a finding that the accused on the date of incident was within eighteen years, in that circumstance, the accused shall be entitled to get benefit of the provisions of the Act. 8. Resultantly, by allowing the appeal, the impugned judgment of conviction and sentence is hereby set aside and the case is remanded back to the trial Court for enquiry to be conducted under section 7A of the Act for determining the issue of juvenility raised by the accused/appellant and passing an appropriate order in that regard. 8. Resultantly, by allowing the appeal, the impugned judgment of conviction and sentence is hereby set aside and the case is remanded back to the trial Court for enquiry to be conducted under section 7A of the Act for determining the issue of juvenility raised by the accused/appellant and passing an appropriate order in that regard. The trial Court shall complete this process, within a period of five months from the date of receipt of a copy of this order. The accused is directed to be kept present before the trial Court on 17th May, 2013. It is further directed that while dealing with the case of the accused the trial Judge shall also adhere to the provisions regarding bail as enumerated under the Act itself. 9. Record of the case shall be dispatched to the trial Court forth with, alongwith a copy of this remand order.