MUNNA Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted under Sections 342 and 376 IPC and sentenced to undergo R. I. for six months and order dated 28-7-1981 passed by the learned III Additional Sessions Judge Bahraich. Learned counsel for the appellant has at the very beginning mentioned that he will not press the appeal on merits if the preliminary point raised by him finds favour. His contention is that the appellant according to the prosecution was less than 16 years of age on the date of the offence and was therefore, entitled to the benefit of the U. P. Children Act and consequently should not have been sent to jail. His further contention is that in the circumstances he may be released after admonition or on bonds to be furnished by his parents. It will (be seen) that the appellant was prosecuted for the offences u/Secs. 342 and 376 IPC on the allegations that he took away Anwari aged 8, minor daughter of Nanhoo, into his house and confining her inside committed rape on her. THE offence was alleged to have been committed on 31st March 1980. THE appellant in his statement under section 313 CrPC recorded on 28-7-1981 gave his age as 17 years which has not been challenged. Thus on the date of the occurrence he should have been about 15 years and eight months of age, and was admittedly a child within the meaning of the U. P. Children Act. THE provisions of the said Act were enforced in district Bahraich by notification dated 29th August, 1968. Thus clearly he was entitled to the benefit of the aforesaid Act and by virtue of section 27 of the said Act he could not have been sentenced to imprisonment. In Jayendra v. State of U. P., AIR 1982 SC 685 the Supreme Court ordered release of the accused for the aforesaid reasons although on the date of the order the accused had become 23 years of age. THE appellant is slightly more than 19 years of age now. He cannot therefore, be sent to an approved school. Looking to the circumstances and the nature of the offence for which he was found guilty and also to his age, it would be appropriate to release the appellant on probation of good conduct in accordance with the provisions of section 30 of the aforesaid Act.

(2.) IN the result, the appeal is partly allowed and while the conviction of the appellant under sections 342 and 376 IPC is maintained, the sentence of imprisonment awarded to him is set aside. He shall be released on probation of good conduct and shall be committed to the care of his father, and if the father be not alive, to the care of his mother or any other adult male member of the family with whom he may be living, on the latter's executing before the C. J. M. Bahraich a bond with two sureties to be responsible for the good behaviour of the appellant, for a period of two years. The bonds may be furnished within a period of three months from today. The record shall be sent back to the C. J. M. Bahraich, immediately. Appeal partly allowed.