JUDGMENT Gyanendra Kumar, J. - This case has come up before us because of an order dated 6-11-1961 passed by a learned Single Judge of this Court, who ordered issue of notice to the accused Pearey alias Chhanga to show cause why the order of the learned Sessions Judge dated 19-7-1961 giving him the benefit of the U.P. First Offenders' Probation Act be not set aside and a proper sentence under Section 376, I.P.C. be not awarded to him. 2. The accused was charged under Section 376, I.P.C. The prosecution story in short was that on 10th February 1961 at about 10-30 A.M. in Mohalla Kalamandir, Pilibhit, the accused committed rape on Kumari Prema aged about five or six years who was playing outside her house which is close to that of the accused. The accused is alleged to have taken the girl inside his house and committed rape on her. On alarm being raised by the girl, her mother Srimati Sudama proceeded towards the house of the accused. As she entered the house of the accused, she saw him coming out of it, holding his trousers with both the hands. On reaching inside the house, Srimati Sudama found her daughter lying on a cot bleeding profusely from her private parts. She then took Kumari Prema to the police station where a first information report was dictated by the girl herself. The Head Constable recorded the same and took the shalwar of the girl into custody (as it was supposed to be containing marks of blood and spermatozoa.). The same was sent to the Chemical Examiner who after examination passed it on to the Government Serologist. In his report dated 24-3-61 (Ex. Ka-9) the Chemical Examiner detected spermatozoa and blood stains on the shalwar of the girl; while in his report dated 7-4-61 (Ex. Ka-10), the Government Serologist detected stains of human blood on the shalwar of the girl. 3. Kumari Prema was examined by Lady Doctor C. D. Tandon on 10-2 1961 at 4-30 P.M. The Doctor found that the hymen of the girl was torn. There was congestion all over the vaginal opening and inner surface of labia minora. The girl was also subjected to an X-ray examination with a view to determine her age. 3. Kumari Prema was examined by Lady Doctor C. D. Tandon on 10-2 1961 at 4-30 P.M. The Doctor found that the hymen of the girl was torn. There was congestion all over the vaginal opening and inner surface of labia minora. The girl was also subjected to an X-ray examination with a view to determine her age. In the opinion of the Doctor, her age was 5 to 6 years and the injuries present on her external genitals were caused by a hard object, most probably by the penetration of an erect penis. She was of the opinion that the injuries of the girl were to day old at the time of the examination. 4. The accused was produced before the S.D.M. Sadar Pilibhit on 10th March 1961 with a report that he wanted to make a confession. The Magistrate gave him sufficient time and opportunity to think over the matter. The accused was again produced before the Magistrate on 1-4-1961. The Magistrate then gave him due warning to the effect that he was not bound to make a confession, and the same if made, could be used against him as evidence. After satisfying himself that the accused really wanted to make a voluntary confession, the Magistrate recorded the confession of the accused which is Ex. Ka-5 dated 1-4-1961. 5. The aforesaid confession was to the effect that Kumari Prema was in the house of the accused from before he reached there. There was no one else present in his house at that time. The accused caught hold of the girl and committed rape on her. Thereafter the girl went away to her house. She did not raise any alarm or make any noise. 6. In the Court of Sessions, Kumari Prema was produced as a witness but it was discovered that on account of her very tender age, she could not understand the questions, nor could she give sensible answers. She was, therefore, discharged by the learned Sessions Judge. The only other material oral evidence was that of her mother Srimati Sudama. Her testimony is to the effect that she saw the accused coming out of the house holding his trousers with his both the hands, that her daughter Kumari Prema was lying on a cot and was bleeding profusely from her private parts. The only other material oral evidence was that of her mother Srimati Sudama. Her testimony is to the effect that she saw the accused coming out of the house holding his trousers with his both the hands, that her daughter Kumari Prema was lying on a cot and was bleeding profusely from her private parts. Soon thereafter, the girl made a statement to the police in her presence implicating the accused in the crime. Thus on behalf of the prosecution, there is no direct evidence of the commission of the crime by the accused. There is only circumstantial evidence of Srimati Sudama and the confession of the accused to which he stuck on, even before the Sessions Judge. In his statement at the trial the accused admitted his confession to be correct and that he made it out of free will, but added that Srimati Sudama had not met or seen him after the occurrence at the time and place alleged by her. 7. On the basis of the aforesaid confession, the circumstantial evidence of Srimati Sudama and the medical evidence of Dr. C. D. Tandon as well as the corroborative evidence furnished by the reports of the Chemical Examiner and the Serologist, the learned Sessions Judge was satisfied that the offence had been brought home to the accused. However, in view of the fact that the accused was only about 13 years of age, he gave him the benefit of Section 4 of the U.P. First Offenders Probation Act. The accused was therefore ordered to execute a personal bond for Rs. 500 with two sureties in the like amount and be of good behaviour for a period of two years. In case the accused broke the conditions of the bond, he was ordered to undergo rigorous imprisonment for a period of two years under Section 376, I. P. C. 8. It was argued on behalf of the State that the benefit of Section 4 of the U.P. First Offenders Probation Act could not have been given to the accused inasmuch as Section 4 was not applicable to a person convicted of an offence punishable with death or transportation for life. It was further argued that under Section 376, I.P.C. the maximum punishment prescribed was life imprisonment and as such it could not be governed by the provisions of Section 4 of the U.P. First Offenders' Probation Act. It was further argued that under Section 376, I.P.C. the maximum punishment prescribed was life imprisonment and as such it could not be governed by the provisions of Section 4 of the U.P. First Offenders' Probation Act. In support of the above contention, the learned Deputy Government Advocate had invited our attention to a Division Bench case of Mushtaq v. State, AIR 1954 Allahabad 580 : 1954 ALJ 256 wherein it was observed that the benefit of Section 4 of the U.P. First Offenders Probation Act was not available to a person who was convicted of an offence under Section 376, I.P.C. inasmuch as he was punishable with imprisonment for life. It appears that the provisions of the second part of Section 376, I. P. C. were not brought to the notice of their Lordships, which lays down that in a case under Section 376, I.P.C., the accused could also be sentenced to imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. The test for excluding the application of Section 4 of the Act is that the offence complained of should be punishable with death or imprisonment for life and nothing less than it even in the alternative. Thus the criterion to determine the applicability of Section 4 of the U.P. First Offenders Probation Act appears to be the minimum penalty prescribed under a particular section and not the maximum penalty. Moreover, in that case, their Lordships were really concerned with the interpretation and scope of Secs. 17, 29 and 75 of the U.P. Children Act and the observations of their Lordships regarding the applicability of the provisions of Section 4 of the U.P. First Offenders' Probation Act, were in the nature of obiter dicta. 9. As for the notice of enhancement of sentence issued by a learned Single Judge of this Court, we are of the opinion that keeping in view the young age of the accused, it is not in the interest of justice or the larger interest of the society that he should be sent to jail and be thus allowed to come in contact with hardened criminals. We, therefore, do not consider that any enhancement of punishment of the accused is called for in this case. We, therefore, think that the order passed by the learned Sessions Judge was an appropriate and proper order. We, therefore, do not consider that any enhancement of punishment of the accused is called for in this case. We, therefore, think that the order passed by the learned Sessions Judge was an appropriate and proper order. We maintain the same and discharge the notice.