CHAUDHURI, J. - (1.) criminal appeal No.319 of 1978 arises out of Sessions Trial No.5(3) of 1978 held by the learned Addl. District and Sessions Judge Cooch Behar. In the said trial the present appellant Pradip Ghose alias Khaju was convicted u/s.307 I.P.C. and sentenced to R.I. for seven years. He was also convicted u/s.354 I.P.C. and sentenced to R.I. for six months. Both the sentences were to run concurrently. He was also convicted u/s.342, I.P.C. but no separate sentence was imposed The said offences were committed by the appellant on 18-9-76.
(2.) At the hearing of this appeal on 15-5-86 this Court, in view of the submissions made by Mr. Somraj Dutt, the learned Advocate for the appellant and Mr. S. Mukherjee, learned P.P., this Court remitted the following issue for determination to the learned Session Judge, Cooch Behar :- "What was the age of the accused-appellant Pradip Ghose alies Khaju on 18-9-76". The learned Session Judge was asked to certify his finding after giving an opportunity to both sides to lead oral and documentary evidence, if any, and after hearing their submissions, if any on the said issue. The learned Sessions Judge was further given liberty to send the accused to the Chief Medical Officer, Cooch Behar, for ascertainment of the age of the accused.
(3.) The learned Sessions Judge by his order dt.28-11-86 forwarded to this Court, has after holding the necessary enquiry, clearly found that the age of the accused as on 2-9-85 would be about 25 years. The alleged date of occurrence being 18-9-76 the appellant was obviously well below the age of 18 years on 19-9-76. The text of the said order dt.28-11-85 of the learned Sessions Judge is set out herein below:- Accused Pradip Kr. Ghosh Khaju on bail is present. Ld. lawyer of the accd. person as well as the Ld.P.P. are present. Prosecution files hajira of the Radiologist Dr. S.K. Dutta. Dr. S.K. Dutta is examined in chief by the Ld.P.P. as P.W.1 who proves the "X-ray" plates, marked as Mat.Exbt.I (collectively). His cross-examination is declined by the Ld. lawyer of the defence and he is discharged. Pursuant to the Hon'ble Court's order, the accd. Pradip Ghosh was forwarded to the Radiologist, M.O.N., Hospital, Cooch Behar, for his ossification test to ascertain his age. Dr. S.K. Dutta, the Radiologist, examined the accd. on 2nd Sept.1986 and he also identified the accd. Pradip Ghose in Court. From the evidence of the Radiologist it is clear that the present age of the accd. is above 25 years. The Ld. Public Prosecutor appearing for the State has in his usual fairness submitted that there is nothing in the evidence of the radiologist (P.W.1) to controvert his opinion that the present age of the accd. as on 2nd Sept.1986, would be about 25 years. No other evidence has been led with regard to the age of the accused. Having - regard to the evidence of P.W.1 I am of the view that the age of the accd. as found by the radiologist would be about 25 years on 2nd Sept. 1986 which is the date of examination of the accd. by the radiologist. In the present case, the occurrence took place in Sept.1976 i.e. about 10 years back. Accordingly, the age of the accd. as on the date of occurrence would be much below 18 years and as such he must be found to be a 'Child' within the meaning of the term as defined in the West Bengal Children Act, 1959. Accordingly, I hold that the accd. was a child and his case is to be governed by the West Bengal Children Act, 1959. Let the aforesaid finding along with the record of the case be forwarded to the Hon'ble High Court at the earliest, the evidence of the radiologist along with the X-ray plates, material Ext.I, be also forwarded to the Hon'ble High Court for Hon'ble Court's perusal and consideration." Sd/-. P.P. Sarkar, Sessions Judge, Cooch Behar.;