Deepak Gupta, J.—This case discloses a very sordid state of affairs where neither the prosecution nor the Court thought it fit at the appropriate time to go into the question as to what is the age of the accused. In case this had been done at the appropriate time a long and unnecessary trial could have easily been avoided.

2. The background of the case is as follows: - The prosecutrix in his case was born on 22.4.1987. According to her in December, 1999 she lad gone to the house of Dhani Ram to attend the marriage of Asha Devi daughter of Dhani Ram who is her Bua. She stayed the night in Dhani Rams house. Further according to the prosecutrix, appellant-Bittu, and one other girl Pompa and the prosecutrix slept on one bed and one other person, namely, Devinder slept on another bed. In the middle of the night, accused Bittu tried to open the Nara of her salwar. The prosecutrix woke up and raised an alarm. The accused then placed his hand on her mouth. Thereafter the accused is alleged to have raped the prosecutrix. According to the prosecutrix when she was being raped, Devinder lit a match stick and saw what was happening but did not intervene. After she was raped the prosecutrix, the accused and Pompa kept sleeping on the same bed. In the morning, the accused promised to marry her and also threatened her that in case she told anybody about the incident then he would kill her.

3. According to the prosecutrix after some months she felt pain in the abdomen and in the month of Sauz (October) when she had gone to Hatkoti Temple to attend a fair, she met the accused there. She told the accused that she was pregnant and he asked her to keep silent. He gave her some medicines to abort herself. He had given her four capsules of some medicine. She consumed three capsules at one go and then she became unconscious. When she regained consciousness, her mother and another lady were present there who asked her how she had become pregnant. On their questioning, she told them about the incident. She went to the Police Station and lodged the report on 25.6.2000 on the basis of which an F.I.R. (Ext.FW-2/A) was lodged.

4. After the F.I.R. was lodged, the police swung into action and investigated the matter. The challan was filed in the Court and finally the accused was convicted of having committed an offence under Sections 376 and 315 I.P.C. He has been sentenced to undergo rigorous imprisonment for a period of seven years under Section 376 I.P.C. and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. For the offence under Section 315 I.P.C, the accused has been sentenced to imprisonment for three years and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo imprisonment for six months.

5. At the outset, it would be pertinent to mention that when the challan was filed in Court, the only material on record with regard to the age of the accused-Bittu was the school leaving certificate (Ext.PW-12/A) in which the date of birth of the accused was shown to be 16.4.1984. The incident is alleged to have taken place in December, 1999- It is, thus, apparent that as per the challan on the date of the incident he was below 16 years of age. The accused was produced before the Court and granted bail on 1.7.2000. When the matter was pending before the Judicial Magistrate (1st Class) Jubbal for committal proceedings/ it had been urged before him that since the accused was a juvenile, his case had to be tried under the Juvenile Justice Act, 1986. On behalf of the prosecution, it had been urged that it was not the date of the offence which was relevant but it was the date of production and the prosecution relied upon the judgment of the apex Court in Arnit Das v. State of Bihar, AIR 2000 Supreme Court 2264. It would be pertinent to mention that no dispute with regard to the date of birth of the accused was raised at that stage. The Committal Magistrate, in my view, rightly held that