Shiv Kumar Sharma, J. - (1.) Short question that emerges for consideration is as to what procedure in an old criminal appeal should be adopted after finding the accused appellant (now 37 years of age) squarely fell within the definition of 'child' under the Rajasthan Children's Act, 1970 on the date of occurrence i.e. June 27, 1980.
(2.) The learned Sessions Judge Sikar vide his judgment dated March 16, 1981 convicted and sentenced the appellant Prahlad under section 302 IPC to suffer imprisonment for life and fine of Rs. 50/-. At the time of filing of the appeal an argument was advanced that the appellant was below 16 years of age on the date of occurrence i.e. June 17,1980, as such he was a child within the meaning of section 2(d) of the Rajasthan Children's Act, 1970 (for short 1970 Act). It was submitted that vide Notification dated November 14, 1981 published in the Rajasthan Gazette, Extraordinary Part 1 (b) II dated 14.11.1989 at page No. 407, the Rajasthan Children's Act 1970 was made applicable to the Sikar District also and in view of section 26 of the said Act, the sentence awarded to the appellant deserved to be set aside. This court vide order dated August 4, 1995 directed the Sessions Judge Sikar to make an enquiry under section 32(1) read with section 7(3) of 1970 Act for determining the age of the appellant on the date of occurrence i.e. June 27, 1980. The learned Sessions Judge conducted a detailed enquiry. The medical Board was constituted to examine the appellant and after recording the relevant evidence the learned Sessions Judge opined that the age of appellant on the date of the occurrence was 15 years and he was a child within the meaning of 1970 Act. Even otherwise the age of the appellant on July 5, 1980 as per his injury report Ex.P/12 was 15 and in his statement under section 313 Cr.RC. although he gave his age as 15 years the trial judge estimation was 16 to 17 years. Thus we are satisfied that the appellant was a child within the meaning of section 2(d) of 1970 Act on the date of occurrence.
(3.) Having carefully considered the prosecution evidence we find that the prosecution has established the charge under section 302 IPC against the appellant beyond reasonable doubt and he was rightly convicted by the learned trial judge but as the appellant was child within the meaning of 1970 Act he could not have sentenced to suffer imprisonment of life and fine of Rs. 50/- in view of section 22 of 1970 Act provides thus - "22. Orders that may not be passed against delinquent children, - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security : Provided that where a child who has attained the age of fourteen years has committed an offence and the children's court in satisfied that he offence committed is of so serious a nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other children in a special school to send him to such special school and that none of the other measures provided under this Act is suitable or sufficient, the children's court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government. (2) On receipt of a report from a children's court under sub-section (1), the State Government may make such arrangement in respect of the child as it deems proper and may order such delinquent child to be detained at such place, on such conditions and for such period as it think fit; Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed. (3) Save as provided in this Act, the words "conviction" and "sentence" shall ceased to be used in relation to children dealt under this Act and any reference in any enactment to a person convicted, a conviction or a sentence shall, in case of a child, be construed as including reference to a person found guilty of an offence, a finding of guilty or an order made upon such a finding, as the case may be.;