I ASJ, Sidhi in ST No. 80/02 vide impugned judgment dated 26.12.2003 recording conviction of appellant under section 376 (2) (f) IPC sentenced him to undergo RI for a period of 10 years and to pay fine Rs. 1,000/- in default to suffer further imprisonment for a period of six months. Being aggrieved, appellant has preferred this appeal under section 374 (2) CrPC.

Ramsunder (PW 3) father of the prosecutrix (PW 2) aged about 6 years on 15.3.2002 lodged the report (Exhibit P-4) to the effect that on 13.3.2002 in the evening prosecutrix was subjected to rape by the appellant. On the basis of report aforesaid, prosecutrix was sent to hospital. Dr. Pushpa Soni (PW 5) on examined found marks of violence in the private part of the prosecutrix and recorded the report (Exhibit P-l). Completing the investigation appellant was charge sheeted.

MFC Waidhan in Criminal Case No. 276/02 vide order dated 5.7.2002 committed the case to the Court of Sessions. The Court below vide impugned judgment recording conviction of appellant under section 376 (2) (f) IPC sentenced him to undergo RI and to pay fine in default to suffer further imprisonment for the period said above.

In this appeal, vide IA No. 2917/2005 it has been contended that on the date of alleged incident dated 13.3.2002, appellant was a juvenile in conflict with law as defined under section 2 (1) of Juvenile Justice (Care and Protection of Children) Act, 2000. As such, the Court of Sessions had no jurisdiction to try the case relating to alleged act of crime against the appellant. As per certificate of Primary School Examination 1998 (Annexure A-I) and Middle School Examination, 2001 (Annexure A-2) the date of birth of appellant has been stated as 4.3.1988. vide order dated 12.5.2005 in the present appeal, Superintendent Jail, Rewa was directed to get the ossification report of the appellant from Radiology Department of Medical College, Rewa. A memo to this effect has been sent and in compliance vide memo No. 1311 dated 16.6.2005, the report of the Board was received. As per this report, on the date of examination i.e., 2.6.2005, the appellant was said to be above 19 years of age. On the basis aforesaid, it has been strenuously contended that in any case on 13.3.2002, appellant was a juvenile in conflict with law.

In B.A. No. 221/02, vide order dated 5.2.2002, bail to appellant in ST No. 80/02 was granted by the Court on the ground that the date of birth of appellant as per school record seems to be 4.3.1988. As such, on the date of alleged commission of crime, he was below 16 years of age. The Court below ought to have conducted an enquiry in the matter relating to the age of appellant in FIR (Exhibit P-4), appellant was said to be aged about 17 years. However, as per arrest memo (Exhibit P-7) he has been shown to be aged about 18 years. No evidence of age in fact was ever ascertained by the Investigating Officer or the Court below before proceeding further with the trial of appellant in ST No. 80/02.

In Krishna Bhagwan v. State of Bihar AIR 1989 Patna 217 it has been held plea that accused was a child and his trial by ordinary criminal Court is ban-ea, taken for first time at appellate stage can be entertained.

In Rajendra Singh @ Sonu v. State of M.P. 2002 (1) MPWN 144 = 2002 (3) MPLJ 315 on facts and in the circumstances, it has been held:

"When the question of age of the applicant being alleged to be 16 on dated of incident arose and his being juvenile was agitated before the trial Court, then the trial Court is duty bound to enquire into the matter as per Juvenile Justice Act, the question of jurisdiction can be raised at any stage even at the final stage when the appeal or the matter is pending before the Supreme Court. AIR 1998 SC 236, 1997 MPLJ 591 and 1997 MPLJ 400, Ref."

Without holding enquiry in relation to the age of the appellant on the date of alleged incident on 13.3.2002, the Court below ought not to have proceeded further.

Consequently, the appeal