- (1.) THIS is an appeal against the judgment and order dated 9-10-1980 passed by Sri Y. P. Singh, the then 1st Additional Sessions Judge, Badaun in S. T. No. 72 of 1979, State v. Suresh and others, under Sections 147 and 308/149, IPC, whereby, he convicted Chhotey and Ram Bilas accused-appellants of the of fences under Section 452 and 308, IPC and sentenced them to serve R. I. for a period of 2 years for the offence under Section 308, IPC and R. I. for a period of 6 months for the offence under Section 452 IPC. Both the sentences were made to run concur rently.
(2.) OUT of the two accused appellants, Chhotey accused-appellant has died and the appeal has abated as regards him. Con sequently, the appeal now survives only to the extent of Ram Bilas accused-appel lant. In regard to this accused-appellant, his conviction for the offence under Sec tions 308 and 452, IPC has not been chal lenged by the learned Counsel. The only argument is that he was a child within the meaning of the term under Section 2 (4) of the U. P. Children Act, 1951- and conse quently, he could not be sentenced and sent to prison. The learned Counsel for this ac cused-appellant has relied on the state ment of the age given by the accused-ap pellant under Section 313, Cr. PC before the trial judge in respect of which there is no observation of the judge about the age of this accused-appellant contrary to the age of 20 years as given by him in that statement under Section 313, Cr. PC. His statement under Section 313, Cr. PC. was recorded on 24-9-1980. The date of occur rence in this case was 11-9-1975. There is no reason why the statement under Sec tion 313, Cr. PC. be not taken at its face value particularly when in this case no plea for taking the benefit of the U. P. Children Act, 1951 was raised at the time before the Sessions Judge. If such a plea has been raised at the stage, it may be said for a moment that he modulated his age in order to get the benefit of the provisions of Children Act but no such claim was made before the Sessions Judge. Perhaps, the learned Counsel for the parties and the learned Sessions Judge were completely unaware of the provisions of U. P. Children Act. A period of 5 months and 13 days was interfering between the date of occur rence and the date of the statement of the accused-appellant under Section 313, Cr. PC. consequently, on the date of occur rence his age would come to be 15 years and 13 days or near about that. In any case, he was a child within the meaning of that term in Section 2 (4) of the U. P. Children Act, 1951. It may be mentioned that while under Section 1 (3) of the U. P. Children Act, 1951, Section 77 of the said Act had come into force at once the remaining provisions of this Act came into force in the local areas in accordance with the notification made by the State Govern ment from time to time in pursuance of Section 1 (4) of the U. P. Children Act. The remaining provisions of this Act i. e. Sec tion 2 and all other subsequent Sections of this Act had been made applicable to the District of Budaun vide notification No. 7174/xxxvi-2-197s- 91 (p) 77 dated November 22,1978 w. e. f. 23-11-1978. So on the date of the judgment by the Sessions Judge in the Sessions Trial, the Act was applicable and consequently the accuse-appellant would be entitled to the benefit of the provisions of this Act. The learned Counsel for the appellant placed reliance on the authority Jayendra and others v. State of U. P, 1981 SCC (Crl.) 809. In this authority the statement of the appellant that he was 15 years of age on the date of occurrence was accepted by the apex Court and the apex Court said, "section 2 (4) of the Utter Pradesh Children Act, 1951 (U. P. Act No. 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprison ment for life or to any term of imprison ment. Section 29 provides, insofar as it is material, that if a child is found to have committed an offence punishable with im prisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so.
(3.) FOR these reasons, though the con viction of the appellant Jayendra has to be upheld, we quash the sentence imposed upon him and direct that he shall be released forthwith. In so far as the other appellant is concerned, his special leave petition has already been dismissed. This observation apply to the present case also. In view of Section 27 of the Act, the accused- appellant being a child cannot be sentenced to any term of imprisonment and Section 29 which provides that a child may be ordered to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. That being, the position, now the accused-appellant Ram Bilas cannot be sent to jail to serve any sentence and being 37 years old now he cannot also be sent to an approved school.;