A. K. MATHUR, J. - (1.) THIS is an appeal directed against the judgment of conviction passed by the learned Sessions Judge, Jalore dated 4th November 1979 whereby the learned Judge has convicted the accused-appellant under sec-tion 307 IPC and sentenced him to five years' rigorous imprisonment and a fine of Rs. 500/ -. Likewise under section 326 IPC he has also been convicted and sentenced to 5 years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo three months' rigorous imprisonment. Under sec. 324 IPC he has been convicted and sentenced to one year's rigorous imprisonment. All the sentences have been directed to run concurrently.
(2.) THE brief facts giving rise to this appeal are that on 14. 06. 1 979 a written report was filed at the Police Station Sanchare in the early morning at 4 A. M. by Akha stating therein that on the previous night his son Chatra was sleeping at his well, one Champa son of Jawa Rebari was also sleep in gnearby him on the cot. At about mid night, he heard a sound of beating and he immediately rushed and found that Chatra was bleeding from the head and was lying in an injured condition. Some more people reached on the scene also. THE injured Chatra informed him that accused Sujana and Lakha have dealt axe blow on his head, nose, eye etc. After causing these injuries both the accused ran away from that place. On the basis of this information a case under section 307 read with section 34 IPC was registered against accused Chatra and Lakha. THE injured was immediately sent to the hospital and necessary medical assistance Was provided. THE injured's nasal bone was fractured and his eyes also received a great damage. After completing the necessary investigation a challan was filed against both the accused persons under sections 307, 326, 324 read with section 34 I. P. C. THE prosecution in support of its case examined six witnesses. THE learned Sessions Judge after due trial convicted accused Chatra as aforesaid. Hence the present appeal. Mr. Sandeep Mehta, the learned counsel for the accused-appellant submitted that at the time of the incident the accused was below 16 years of age. As per the medical report the Medical Officer, Primary Health Centre, Sanchore, the doctor has recorded that on the basis of his examination he found that accused was below 16 years of age. Learned counsel has submitted that at that time the Rajasthan Children Act,1970 was not made applicable in Jalore district. However, this Act was extended to Jalore on 14th November 1981. Learned counsel submitted that in an identical case Jagdish Vs. State of Rajasthan (1) it has been held that the Act though not applicable at the relevant time, but during the pendency of the appeal if the Act has been made applicable than the provisions of the Act will be applicable during the appeal. Learned counsel submits that since at the time when the conviction was recorded by the Sessions Judge on 4. 11. 79 the Act was not applicable but the Act was made applicable on 14th November 11981. Therefore, the benefit of Rajasthan Children Act should be given. The learned counsel has also invited my attention to Jayendra Vs. State of Uttar Pradesh (2) wherein in an identical situation it was observed by their lordships of the Supreme Court that if an offence is committed by a child and he has not been given a benefit of Children Act and meanwhile he attains the age beyond 18 years even in that case the child should not be given a substantive sentence, but his conviction should be upheld and the sentence should be quashed. It was observed with reference to Uttar Pradesh Children Act 1982 as under : - "section 2 (4) of the Uttar Pradesh Children Act, 1951 (U. P. Act 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 imprisonment for life or to any term of imprisonment. Section 29 provides, in so far as it is material that if a child is found to have committed an offence punishable with imprisonment 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. " In the present case also, the child at the time of the offence was below 16 years of age but at that time since the Act was not extended in Jalore, therefore, benefit of Children Act should not be given to him, but this Court has taken the view in the aforesaid case that benefit can be given to the accused during the pendency of the appeal by virtue of sec. 26 of the Rajasthan Children Act. As such the benefit of the Rajasthan Children Act under section 26 is extended to the appellant, but as he has crossed the age of 18 years, therefore, he cannot be sent to any Reformatory School. In these circumstances, the conviction of the accused-appellant is, however, maintained but the sentences are quashed. Learned counsel has informed that the accused had already undergone a sentence of 4 months. The appeal is allowed as indicated above. The conviction of the accused appellant is maintained but the sentences of the accused-appellant are quashed. .;