JUDGMENT

DESAI, J.:— Special leave granted.

2. Appellant Gopinath Ghosh was convicted by the learned Additional Sessions Judge, Nadia along with Bharat Ghosh @ Sadhu and Jagannath Ghosh under Section 302 read with Section 34 of the Indian Penal Code for having committed murder of Rabi Ghosh, son of Kartick Ghosh on August 19, 1974. Appellant Gopinath Ghosh is alleged to have caused an injury with a fala which landed on the left side chest below the neck of deceased Rabi. Information of the offence was lodged by Kartick Ghosh, father of deceased Rabi at Nakashipara Police Station at about 3.40 p.m. on the date of the occurrence. After completing the investigation, appellant and two others were chargesheeted for an offence under Section 302 read with Section 34 of the Indian Penal Code. The learned Magistrate committed the case to the Court of Session. The case came up for trial before the learned Additional Sessions Judge, Nadia who on appraisal of evidence held that appellant Gopinath Ghosh has caused the fatal injury in furtherance of the common intention of all the three accused and accordingly convicted them for an offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life.

3. Appellant and the two co-accused preferred Criminal Appeal No. 160 of 1977 in the Calcutta High Court. A Division Bench of the High Court held that it is satisfactorily established that the present appellant caused the injury with a fala to deceased Rabi which proved fatal and, therefore, the charge under Section 302 1. P. C. is brought home to him. The High Court further held that it is not shown that the two co-accused Bharat Ghosh @ Sadhu and Jagannath Ghosh shared the common intention with the present appellant and accordingly allowed their appeal and set aside their conviction and sentence and acquitted them of all the charges.

4. Appellant Gopinath Ghosh has filed this appeal by special leave.

5. Learned counsel who appeared for the appellant urged that on the date of the offence i.e. on August 19, 1974, appellant was aged below 18 years and was therefore a child within the meaning of the expression in the West Bengal Children Act, 1959 (Act for short) and, therefore, the Court had no jurisdiction to sentence him to suffer imprisonment after holding a trial. In, view of this contention, the Court by its order dated March 11, 1983 framed the following issue for determination:

"What was the age of the accused Gopinath Ghosh (appellant) on the date of the offence for which he was tried and convicted,?"

and remitted the issue to learned Sessions Judge, Nadia to certify the finding after giving an opportunity to both sides to lead oral and documentary evidence. Liberty was reserved with the learned Sessions Judge to send accused Gopinath Ghosh to Chief Medical Officer, Nadia to ascertain his age.

6. On receipt of the order made by this Court, the learned Additional Sessions Judge, First Court, Nadia directed Superintendent of Krishnagar Jail to produce accused Gopinath Ghosh in the office of the Chief Medical Office Nadia on June 4, 1983 for medical examination with a view to ascertaining his age and submit the report to the court. Thereafter, the prosecution, examined P. W. 1 Dr. A. K. Basu, Chief Medical Officer of Health, Nadia, " P. W. 2 Dr. J. C. Debnath, Radiologist, P. W. 3 Dr. C. R. Bhattacharyya, Orthopaedic Surgeon and P. W. 4 Dr. R. B. Roy. Thereafter, Smt. Bhaktabala Dasi, mother of the appellant was examined as a witness for the defence. The case was adjourned as the appellant wanted to examine Mangalmoy Sarkar, Headmaster of Sudhakarpur High School to prove entries from the Admission Register. That request was granted and the Headmaster was examined. The learned Additional Sessions Judge after hearing both the sides certified his finding that appellant Gopinath Ghosh was aged between 16 and 17 years on the date of the offence i.e. on August 19, 1974. This finding is not q