Tikam Das v. State — 1962 DIGILAW 32 (RAJ)

DAVE, J.—This is an application in revision by Tikam Das under sec. 435 C.P.C. 2. The petitioner was convicted by Magistrate First Class No. 2, Kotah, under sec. 377 I.P.C. on 30.12.61 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-. Aggrieved by that judgment, he filed an appeal in the court of the Sessions Judge, Kotah. The learned Sessions Judge altered his conviction from sec. 377 to sec. 377/511 I.P.C and reduced the period of rigorous imprisonment to six months only. The sentence of fine was set aside. The petitioner is not satisfied with that decision dated 15th January, 1962, and hence he has approached this Court. 3. It has been urged by learned counsel for the petitioner that the finding of the learned Sessions Judge, Kotah, to the effect that his client had attempted to commit unnatural offence with Ramratan was not correct. I have gone into the judgments of both the courts below and in my opinion there are no good grounds for this Court to interfere with the finding of fact arrived at by the learned Sessions Judge. 4. The only mistake which appears to have been committed by the learned Sessions Judge is that he did not comply with the provisions of sec. 6 of the Probation of Offenders Act (No. 26 of 1918), which will hereinafter be referred as the Act. Sec. 6(1) of the Act runs as follows: — "6(1) When any person under twenty-one years of age is found guilty of having committed an offence punisbable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under sec. 3 or sec. 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so." 5. 3 or sec. 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so." 5. It is clear from the language of the said section that if any person is found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life and if it is also found that the accused is under twenty-one years of age, then the court convicting him should not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case, the nature of the offence and the character of the offender it would not be proper to deal with him under sec. 3 or sec. 4 of the Act. It is further laid down if the court passes any sentence of imprisonment on the offender, it should record its reasons for doing so. It is thus obvious that if the offender is under twenty-one years of age, he should not ordinarily be sentenced to imprisonment and if the court thinks it proper to sentence him to imprisonment, it should first satisfy itself that there are good grounds to take such a step and that the nature of the offence and the character of the offender compel the court to award him sentence of imprisonment at once. Sub-sec. (2) of sec. 6 of the Act further lays down that if the court thinks that it is not desirable to deal with the offender under twenty-one years of age under sec. 3 or sec. 4 of the Act, it should call for a report from the probation officer and consider the report. It should also consider if there is any other information available relating to the character and physical and mental condition of the offender. 6. Now, in the present case, it is clear from the judgment of the trial court that the accused was not above the age of twenty-one years. Learned counsel for the petitioner has referred to Dr. D. L. Chhanganis report in which the doctor had only mentioned that the age of the petitioner was above 18 years. He did not mention the higher limit of the petitioners age. However, in the statement of the accused, which was recorded by the trial court, his age was shown as 18-19 years. D. L. Chhanganis report in which the doctor had only mentioned that the age of the petitioner was above 18 years. He did not mention the higher limit of the petitioners age. However, in the statement of the accused, which was recorded by the trial court, his age was shown as 18-19 years. The trial court has noted his age to be 20 years in its judgment. Thus, the petitioner appears to be under 21 years of age and this fact is not contested by learned counsel appearing for the State. The Act came into force in Rajasthan from 1st of January, 1962, and therefore, it could not be applicable when the case was decided by the trial court on 30th December, 1961. Moreover, the trial court had convicted the accused under sec. 377 I.P.C. and since that offence was punishable with life imprisonment, the trial court could not proceed under sec. 4 of the Act. But, when the appellate court decided the appeal, the Act had already come into force. The appellate court did not find the accused guilty of the substantive offence under sec. 377 I.P.C. but of a mere attempt to commit that offence and therefore he was convicted under sec. 377/511 I.P.C. The appellate court having found the accused guilty of an offence which was no longer punishable with life imprisonment, the provisions of sec. 4 of the Act were attracted. The appellate court did not disagree with the trial courts finding about the age of the accused and therefore it ought not to have sentenced him to imprisonment, unless it was satisfied that having regard to the circumstances of the case, the nature of the offence and the character of the offender it was not desirable to deal with him under secs.4 and 6 of the Act. The perusal of the appellate courts judgment shows that it has not given any reasons for not proceeding under sec. 6 of the Act. It seems that the provisions of the Act were perhaps not brought to the notice of the appellate court at all otherwise it would have expressed some opinion about the application of secs.4 and 6 of the Act. I think that the petitioner having been found guilty only of an attempt to commit the offence under sec. It seems that the provisions of the Act were perhaps not brought to the notice of the appellate court at all otherwise it would have expressed some opinion about the application of secs.4 and 6 of the Act. I think that the petitioner having been found guilty only of an attempt to commit the offence under sec. 377 I.P.C. and there being no adverse report against his previous conduct, it would not be proper to sentence him to imprisonment at this stage. 7. The revision application is therefore partly allowed and while the petitioners conviction under sec. 377/511 I,P.C. is maintained, the sentence of imprisonment awarded to him is for the present set aside and it is ordered that the petitioner should be released if he enters into a bond for Rs. 2000/- together with one surety in the like amount to the satisfaction of the Magistrate First Class No. 2, Kotah, to appear and receive sentence when called upon during the period not exceeding three years and in the meantime to keep peace and be of good behaviour. The trial court be directed to release the petitioner as soon as the bond together with surety, referred above, is furnished.