- (1.) AFTER holding guilty for the offence under Section 376, I. P. C. the learned Sessions Judge, Bulandshahr sentenced the appellant to undergo R. I. for one year and a fine of Rs. 2,000. The order indicated that in default of payment of fine, the appellant would have to further undergo R. I. for six months. It was also provided by the learned Sessions Judge that 25% of the fine money, if released from the convict, would be paid to Km. Shanti, who was ravished by the appellant. While considering the quantum of sentence, the learned Additional Sessions Judge, Bulandshahr indicated in his order that the convict Pala was undoubtedly minor at the time of occur renceand since it was his first offence, he was given lesser punishment. In his statement under Section 313, Cr. P. C. which was recorded on 4-1-1979, the appellant gave his age as 16 years, but the Court below indicated that the appellant appeared to be of 21 years of age, meaning thereby that at the time of occurrence, he was about 16 years of age. The learned Addl. Government Advocate drew the attention of this Court to the F. I. R. and the charge-sheet, wherein the age of the applicant was mentioned as 19-20 and 22 years respec tively. He contended that observation of the Court about the age of the appellant was only the opinion of the Judge. If the appellant wanted to get benefit of the Children Act, it was incumbent upon him to get himself examined by a Doctor and produce report of the Doctor.
(2.) ACCORDING to the defence, the age of the appellant at the time of occurrence was around 12 years. He was not examined by the Doctor after the occurrence. There is nothing on the record to indicate that when he was remanded to the judicial custody, what was his age. It is really unfortunate that the Magistrate did not indicate the age of the persons, while remanding such persons to judicial custody. Remanding a minor child of 12 years amounts to denial of benefit of the Children Act. In such a situation, the Magistrate must mention the date of the person at the time of remanding him to judicial custody. Mr. M. Islam, the learned counsel for the appellant has drawn atten tion of this Court to a decision of Division Bench of this Court in the case of Jagvir v. State of U. P. , 1992 ACC 658, wherein defence was taken from the side of the appellant that he was a minor at the time when the sentence was imposed on him. Relying upon a decision of the Supreme Court in the case of Jayendra and another v. State of U. P. , 1981 SCC (Cr) 809and also in the case of Raisul v. State of U. P. , AIR 1977 SC 1822, the Division Bench of this Court indicated that since the appellant was a boy between 16 to 17 years of age, the Children Act was applicable to his case. In Jayendra's case, the Doctor had examined the convict. On the basis of medical examination report, the Supreme Court had observed, that on the date of occurrence, the convict must have been about 16 years and 4 months old. The Supreme Court observed that convict had given statement that he was about 15 years of age on the date of offence. Accepting this statement, the Supreme Court had observed that according to Section 2 (4) of the U, P. Children Act, 1951, the convict was a child. Hence under Section 27 of the said Act, such a child should not be sentenced to imprisonment for life. The Supreme Court had observed that at the time of judgment the convict- appellant Jayendra was 23 years of age and hence the Supreme Court found it, not fit to send Jayendra to an approved school. Keeping in view the above observation, the appellant should be set at liberty forthwith, even he is held guilty. At the time of hear ing of this appeal, the appellant would be about 29 to 30 years, hence it is not possible to send him to an approved school. In the case of Raisul, (supra) the Supreme Court also observed that courts should not substitute their view about the age of a person and appearance can be deceptive. Thereafter, the Division Bench held as under: "in the present case the learned Sessions Judge had erred in sentencing the appellant to imprisonment for life. If the learned Sessions Judge had any doubt about the age of the appellant, he should have made enquiry by asking the prosecution to adduce evidence about the age of the appellant and also obtaining the necessary medical report. General Rules (Criminal) 1977 have been framed by this High Court in exercise of its powers under Article 227 of the Constitution of India. The relevant portion of Rule 50 regard ing age reads as under: "if the Court considers the age given by a witness an accused to be an under estimate or an over- estimate, it should form its own estimate and mention it also in the record. If the accus ed is charged with an offence punishable with death and the Court considers the age given by him to be an underestimate or an over-estimate, it may order medical examination of the accused about his age and should direct the State counsel to produce documentary evidence of hi s age, if any, is avail able. " The learned Sessions Judge ought to have followed the directives of this Court as contained in the Rules if he came to the conclusion that the age of the appellant was 22 to 23 years according to his estimate. When the learned Sessions Judge has made observation that the appellant was a booty, then it was incumbent upon him to follow the directives of the U. P. Children Act. In a recent case In re Munnav. State of U. P. ,1994 UP Cr R 284, wherein the appellant stated his age to be 15 years which was not disputed. Hence in these circumstances, a Division Bench of this Court indicated: "it has been found above that the age of the appellant was about 15 years on 24-3-1979. He was about 14 years of age on 10-6-1978 at the time of occurrence as this fact is not in dispute the appel lant is liable to be dealt with on the basis that he was above 12 years and below 16 years of age on the relevant date. There is no evidence to show. . . . . . . . that the appellant is of an unruly or depraved character. There is also nothing to show that he can be sent to an approved school or can be dealt with in any other suit able manner under the Act. Therefore, there can be no escape from the conclusion that the appellant cannot be sentenced to imprisonment for life and may be dealt with under Section 33 (e) or (g) of the Act. In other words he may be released on proba tion with a sentence of fine. In a similar situation the same course was adopted in the case of Sher Mohammad also cited above. We found no reasonable basis for drawing any distinction between that case and the present one. "
(3.) IT is really unfortunate that the appellant in his statement under Sec tion 313, Cr. P. C. recorded on 4- 1-1979, had indicated his age to be 16 years but the learned Sessions Judge did not think it fit or proper to get him medically examined by a Medical Officer in order to determine his age. Even after taking a lenient view in the matter of award of sentence, the learned Sessions Judge observed that undoubtedly he was minor at the time of the commission of offence, but he failed to give any benefit under Children Act to the appellant. IT was also the bounden duty of the prosecution to have rebutted the claim of the appellant that he was minor at the time of occurrence, by seeking permission from the Court to get the appellant medically examined but the prosecution also failed to discharge its duties, leaving no option for this Court to hold that at the time of the occurrence, the appellant was minor, as opined by the learned Sessions Judge. Certainly, the offence which the appellant is alleged to have committed, was heinous in nature and the appellant could have been sentenced to imprisonment but he could not be sent to Jail and was to be dealt with in accordance with the provisions con tained under the Children Act. IT would be pertinent to mention that the occurrence took place in the instant case on 26-1-1974 and the appellant was convicted and sentenced on 30-1-1979. This appeal was filed in the year 1979 which has come up for disposal in the year 1994. The appellant by this time, must have attained the age of 32 to 35 years, but in view of the fact that he could not have been sent to jail at the time when he alleged to have commit ted the offence, on account of his being minor, this Court cannot direct him to undergo the remaining sentence of imprisonment, as he was on bail during the pendency of the appeal. 6 In view of what I have indicated hereinabove, this appeal succeeds. The judgment and order dated 30- 1-1979 passed by VI Addl. Sessions Judge, Bulandshahr, are set aside. The bail bonds are discharged. Appeal allowed. .;