PALA Vs. STATE

JUDGEMENT

(1.) AFTER holding guilty for the offence under Section 376, I. P. C. the learned Sessions Judge, Bulandshahr sentenced the appellant to undergo R. I. for one year and a fine of Rs. 2,000. The order indicated that in default of payment of fine, the appellant would have to further undergo R. I. for six months. It was also provided by the learned Sessions Judge that 25% of the fine money, if released from the convict, would be paid to Km. Shanti, who was ravished by the appellant. While considering the quantum of sentence, the learned Additional Sessions Judge, Bulandshahr indicated in his order that the convict Pala was undoubtedly minor at the time of occur renceand since it was his first offence, he was given lesser punishment. In his statement under Section 313, Cr. P. C. which was recorded on 4-1-1979, the appellant gave his age as 16 years, but the Court below indicated that the appellant appeared to be of 21 years of age, meaning thereby that at the time of occurrence, he was about 16 years of age. The learned Addl. Government Advocate drew the attention of this Court to the F. I. R. and the charge-sheet, wherein the age of the applicant was mentioned as 19-20 and 22 years respec tively. He contended that observation of the Court about the age of the appellant was only the opinion of the Judge. If the appellant wanted to get benefit of the Children Act, it was incumbent upon him to get himself examined by a Doctor and produce report of the Doctor.

(2.) ACCORDING to the defence, the age of the appellant at the time of occurrence was around 12 years. He was not examined by the Doctor after the occurrence. There is nothing on the record to indicate that when he was remanded to the judicial custody, what was his age. It is really unfortunate that the Magistrate did not indicate the age of the persons, while remanding such persons to judicial custody. Remanding a minor child of 12 years amounts to denial of benefit of the Children Act. In such a situation, the Magistrate must mention the date of the person at the time of remanding him to judicial custody.

(3.) IT is really unfortunate that the appellant in his statement under Sec tion 313, Cr. P. C. recorded on 4- 1-1979, had indicated his age to be 16 years but the learned Sessions Judge did not think it fit or proper to get him medically examined by a Medical Officer in order to determine his age. Even after taking a lenient view in the matter of award of sentence, the learned Sessions Judge observed that undoubtedly he was minor at the time of the commission of offence, but he failed to give any benefit under Children Act to the appellant. IT was also the bounden duty of the prosecution to have rebutted the claim of the appellant that he was minor at the time of occurrence, by seeking permission from the Court to get the appellant medically examined but the prosecution also failed to discharge its duties, leaving no option for this Court to hold that at the time of the occurrence, the appellant was minor, as opined by the learned Sessions Judge. Certainly, the offence which the appellant is alleged to have committed, was heinous in nature and the appellant could have been sentenced to imprisonment but he could not be sent to Jail and was to be dealt with in accordance with the provisions con tained under the Children Act. IT would be pertinent to mention that the occurrence took place in the instant case on 26-1-1974 and the appellant was convicted and sentenced on 30-1-1979. This appeal was filed in the year 1979 which has come up for disposal in the year 1994. The appellant by this time, must have attained the age of 32 to 35 years, but in view of the fact that he could not have been sent to jail at the time when he alleged to have commit ted the offence, on account of his being minor, this Court cannot direct him to undergo the remaining sentence of imprisonment, as he was on bail during the pendency of the appeal. 6 In view of what I have indicated hereinabove, this appeal succeeds. The judgment and order dated 30- 1-1979 passed by VI Addl. Sessions Judge, Bulandshahr, are set aside. The bail bonds are discharged. Appeal allowed. .