R.K. Patra, J.
1. The appellant stands convicted under Section 376/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 3,000/- with a defaulting sentence.
2. Prosecution case is that on 6-12-1989 at about 9 30 a.m. while PW 1 (victim) was going to Kundi Ashamani High School, the appellant suddenly appeared on the way and gave a push to her as a result of which she fell down on the ground. The appellant thereafter pounced upon her and dragged her under garment and attempted to have sexual intercourse with her. At that, time PW 7 who had come to attend call of nature heard the cry of PW 1 and came to the spot. On seeing PW 7, the appellant took to his heels. In respect of the said incident FIR was lodged by PW 2, the father of the victim PW 1. Investigation commenced and the appellant was put up for trial which has ended in his coviction, as aforesaid.
3. The plea of the appellant was one of denial. His case was that he was not in the village and was in fact getting treatment in Anantapur hospital from 4-12-1989 to 13-12-1989 and the case was foisted by the father of PW 1 due to previous enmity.
4. On the basis of evidence adduced in the case, the learned Sessions Judge found the appellant guilty undersection 376/511 of IPC 1or having attempted to commit rape.
5. When the case was taken up for hearing, Shri P. K. Misra, learned counsel for the appellant, submitted that the appellant was below 16 years of age at the time of occurrence and, as such, the provisions of Juvenile Justice Act, 1986 were applicable to him and he could not have been tried by the learned Sessions Judge. In support of the plea that the appellant was below 16 years of age the certificate granted by the Board of Secondary Education Orissa to the appellant and the horoscope were filed to accept them as additional evidence. As the certificate granted by the Board of Secondary Education, Orissa is an official document maintained in regular course of official business, directed the learned Sessions Judge to take evidence on the point at issue and record his findings and submit the report. The learned Sessions Judge after holding due enquiry submitted report on 7-9-1990 holding the the appellant was aged 15 years 6 months and 10 days on the date of occurrence dated 6-12-1989. There is no dispute that the Juvenile Justice Act, 1986 (hereinafter referred to as 'the Act') has come into force in the State of Orissa with effect from 2-10-1987. 'Juvenile' has been defined in Section 2(h) of the Act to mean a boy who has not attained 16 years of age or a girl who has not attained , the age of 18 years. Section 24(1) provides that no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Under the scheme of the Act a juvenile who . is accused of an offence shall be dealt with by the Juvenile Courts.
6. In Gopinath v. The State of West Bengal, AIR 1984 SC 237, the Supreme Court had the occasion to consider the provisions of the West Bengal Children Act which also contained provision similar to Section 24 of the Act. In that case a minor was tried along with others for committing the offence of murder and was convicted. in view of the clear bar contained in the West Bengal Children Act, the Court ruled that the entire trial of the child was without jurisdiction and was vitiated. In the case at hand, the finding of the learned Sessions Judge being that the age of the appellant was below 16 years on the date of the occurrence and in view of the clear prohibition contained in Section 24 of the Act, trial of the appellant leading to his conviction by the learned Sessions Judge has to be held to be without jurisdiction. I have, therefore, no hesitation be held that the entire trial of the appellant is without 'jurisdiction and the conviction-and sentence of the appellant are hereby set aside.
7. The next question that arises for consideration is what should be the sequel to my aforesaid finding The occurrence had taken place about 6 years back. The victim was aged 13 years by the time of the occurrence and with the passage of time she might have forgotten the trauma of the incident and at this stage to commence the trial afresh in the Court of Session and to revive in her the fading memory is neither expedient nor desirable in the interest of justice. The matter thus stands closed.
8. The appeal is accordingly allowed.