VIJAYAN Vs. STATE

JUDGEMENT

(1.) This revision petition, filed by the accused in Sessions Case No. 56 of 1978 on the file of the Assistant Sessions Judge, Palghat, convicted under S.376 read with S.511 IPC and sentenced to undergo rigorous imprisonment for two years, has been admitted only on the question "whether the petitioner is liable or should have been dealt with under the Probation of Offenders Act".

(2.) The revision petitioner was charged before the learned trial Judge under S.376 IPC on the allegation that on 15-7-1978 at about 6 p. m. he, who is a tailor running a tailoring shop in Thenur village, Parali Amsom, Palghat committed rape on Kanakam aged 12 years, who went there to give him some tailoring work. After trial the learned trial Judge found that the offence of rape has not been made out, but that an offence of attempted rape has been made out and convicted him under S.376 read with S.511 IPC. The learned trial Judge did not consider whether the provisions of the Probation of Offenders' Act 1958 (for short Probation Act) or the provision of S.360 of the Code of Criminal Procedure (for short the code) are applicable to the facts of the case and if so whether they should be applied

(3.) One of the questions which arise for consideration is whether the offence under S.376 read with S.511 IPC is one of those offences which could at all be dealt with under S.4 of the Probation Act or S.360 of the code. S.4 of the Probation Act and S.360 of the code lay down that a person found guilty of having committed an offence not punishable with death or imprisonment for life could be dealt with thereunder in appropriate cases, subject to the various conditions laid down therein. Every court convicting a juvenile under 21 years of age has a statutory duty to apply, subject to eligibility, the beneficial probation provisions contained in the Probation Act, or the code unless in appropriate cases, for reasons recorded in writing, the court is satisfied that it is undesirable to apply such provisions, vide S.6 of Probation Act.