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2004 DIGILAW 1580 (RAJ)

Abdul Rehman v. State of Rajasthan

2004-10-28

DALIP SINGH

body2004
JUDGMENT 1. - This appeal has been filed by the appellant against the judgment dated 27.2.1988 passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 39/87 convicting the appellant u/s. 363 IPC and sentencing him to one year's rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo one month's imprisonment. 2. The submission of the learned counsel for the appellant in this appeal is confined to the fact that the age of the accused-appellant, as per charge-sheet submitted by the police, is 18 years. In the statement of the accused-appellant recorded u/s. 313 Cr.P.C. the age has been given as 20 years on 24.3.1988. Consequently, the learned counsel for the appellant submits that as per the record available with the trial Court the age of the accused was below 21 years and the accused-appellant ought to have been dealt with the provisions of Section 360 Cr.P.C. The learned counsel for the appellant submits that failure on the part of the learned trial Court to deal with the accused-appellant u/s. 360 Cr.P.C. is a violation of the provisions contained in Section 361 Cr.P.C. Learned counsel for the appellant further submits that in the facts and circumstances of the present case, particularly looking to the age of the accused-appellant and the fact that the incident is of the year 1987 and more than 17 years have passed, the parties have settled down. The accused-appellant is married and has his own family. The victim Mafiya, PW 2, as per her statement recorded in the Court Ex.D/1, is also married and living happily with her husband. In view of the aforesaid facts and circumstances of the case learned counsel for the appellant submits that it is a fit case where the benefit of provisions of See. 360 Cr.P.C. be extended to the accused- appellant. 3. Learned Public Prosecutor has opposed the prayer made by the learned counsel for the appellant and submits that it was a serious offence where the minor was removed from the lawful guardianship of the father and it is not a fit case in which the accused-appellant should be given the benefit of Section 360 of Cr.P.C. 4. I have considered the rival submissions made at the Bar. I have considered the rival submissions made at the Bar. Looking to the fact that the matter is an old one and more than 17 years have elapsed and also the fact that both the accused-appellant and the victim have married and are living happily with their respective families I deem it a fit case to extend the benefits of Section 360 Cr.P.C. to the accused-appellant. At the time of the incident the age of the victim PW 2 has been given out by the Doctor PW 4 and PW 5 who examined her to be between 16 and 17 years which is a marginal case in which it cannot be ruled out that the age by approximation would be about 2 years on either side. Reliance has been placed on the judgment of Hon'ble Supreme Court reported in AIR 1982 SC page 1297 Jaya Mala v. Home Secretary, Government of Jammu & Kashmir & Ors. wherein in para 9 of the said judgment it has been observed that "..... the approximate age opined by the expert, in October, 1981 detenu was around 17 years of age, consequently, the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side ...... 5. In this view of the matter, particularly looking to the age and circumstances mentioned above as well as the fact that the matter is of the year 1987 and more than 17 years have elapsed I am inclined to give the benefit of provisions of Section 360 of the Cr.P.C. to the accused so that instead of serving the sentence the accused would be released on probation on entering into a bond for a period of six months in a sum of Rs. 5,000/- with one surety of the like amount to appear and receive the sentence which called upon for maintaining peace and good behaviour. In the event of the accused-appellant not submitting the bond as aforesaid with the surety within a period of two months the accused-appellant would serve the sentence as awarded by the learned trial Court. 6. Thus, the appeal is allowed in part as indicated above.Appeal partly allowed. *******