ORDER : 1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. The present criminal appeal under Section 374(2) has been preferred claiming the following relief : “It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused-appellant may be acquitted of all the charges levelled against him.” 3. The matter pertains to an incident which occurred in the year 1991 and the present appeal has been pending since the year 1993. 4. Vide impugned judgment dated 20.08.1993, the learned Sessions Judge, Churu in Criminal Case No.154/92 though acquitted the accused-appellant for the offence under Section 376 IPC, but convicted him for the offences under Sections 448, 376/511 IPC and for the offence under Section 376/511, he was sentenced to undergo two years’ R.I., along with a fine of Rs. 500/-, in default of payment of which he was to further undergo one month’s R.I.; for the offence under Section 448 IPC, he was sentenced to undergo one month’s R.I., alongwith a fine of Rs.100/-, in default of payment of which, he was to further undergo seven days’ R.I. The offences under Sections 448 IPC is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.1000/-. The offences under Sections 376/511 IPC is punishable with imprisonment of either description for a term which (shall not be less than ten year, but which may extend to imprisonment for life, and shall also be liable to fine). 5. Learned counsel for the accused-appellant submits that at the time of occurrence of the alleged incident, the accused-appellant was 16 years, and therefore, below 21 years of age, on the date of the commission of the alleged incidents, and that he neither of them has any criminal antecedents to his discredit. 6. Learned counsel for the appellant submits that the incident reported is alleged to have taken place on 11.02.1991. Learned counsel further submits that a FIR was registered under Sections 376 & 450 IPC. Learned counsel also submits that after thorough investigation, the challan was filed under Sections 448 & 323 IPC. 6. Learned counsel for the appellant submits that the incident reported is alleged to have taken place on 11.02.1991. Learned counsel further submits that a FIR was registered under Sections 376 & 450 IPC. Learned counsel also submits that after thorough investigation, the challan was filed under Sections 448 & 323 IPC. Learned counsel further submits that thereafter, the learned Magistrate added Section 376 IPC and committed the case to the court of Sessions. Learned counsel also submits that thereafter, the conviction has been made by the learned Sessions Court under Sections 448 & 376/511 IPC awarding sentence of two years rigorous imprisonment and a fine of Rs.500/-. 7. Learned counsel further submits that on bare reading of the statement rendered by the prosecutrix in the capacity of PW-1, in which, she has clearly deposed that the accused is her nephew and they were not on talking terms as both the families were having dispute, however, she has deposed rape too. Learned counsel also submits that there was an effort of compromise between the parties, which could not succeed. 8. Learned counsel further submits that the independent witnesses, who are DW-1 Panna Lal and DW-2 Sita Ram, have not supported the prosecution story and have rather supported the compromise. Learned counsel also submits that the medical report indicates that there was no injury on the lower part of the body. Learned counsel has also pointed out that there is a delay of 28 hours in lodging the FIR. 9. Learned counsel for the appellant further submits that the appellant do not have any criminal antecedent to his discredit. 10. Learned counsel for the appellant also submits that the sentence awarded to the appellant(s) was suspended by this Hon’ble Court vide the order dated 20.09.1993, passed in S.B. Criminal Misc. Bail No. 344/1993, and thus, he is on bail. 11. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’). Learned counsel also referred to Section 6 of the Act. Sections 4 & 6 of the Act read as under: “4. 11. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’). Learned counsel also referred to Section 6 of the Act. Sections 4 & 6 of the Act read as under: “4. Power of court to release certain offenders on probation of good conduct.— (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3)… (4)… (5)... ” “6. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3)… (4)… (5)... ” “6. Restrictions on imprisonment of offenders under twenty-one years of age.— (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable 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 section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.” 12. On the other hand, learned Public Prosecutor opposes the submissions on the ground that the learned trial court has not convicted the petitioner under Section 376 IPC and of course the statement of the prosecutrix was sufficiently detrimental to the case of the prosecution to the extent of Sections 376/511 read with Section 448 IPC. He further submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-appellants are not entitled for any indulgence by this Court. 13. Heard learned counsel for the parties as well as perused the record of the case. 14. In Jugal Kishore Prasad Vs. State of Bihar, (1972) 2 SCC 633 , the Hon’ble Apex Court observed as under : “… Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of Section 6 of the Act.” 15. In Lakhvir Singh & Ors. This is clear from the language of Section 6 of the Act.” 15. In Lakhvir Singh & Ors. The State of Punjab & Ors., (2021) 2 SCC 763 , the Hon’ble Apex Court, while reiterating the decision rendered in Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458 and Ishar Das v. State of Punjab, (1973) 2 SCC 65 , held as under : "… In Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458 there are observations to the effect that “in case of an offender under the age of 21 years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, 'having regard to the circumstances of the case including nature of the offence and the character of the offender', and reasons for awarding sentence have to be recorded… … The rationale is that the underlying purpose of the provision being reformative – Section 6 being a special provision enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals... … while Section 6 provides that a court “must not” sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report. The relevant aspects while giving benefit under Section 6 of the Act are: the nature of offence, the character of the offender, and the surrounding circumstances as recorded in the probation officer’s report...” 16. In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 , while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , the Hon’ble Apex Court observed as under : “… The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient...” 17. This Court, after hearing learned counsel for the parties at length and also seeing the record, finds that there is a roller coaster ride with the prosecution as the FIR has been lodged under Sections 376 & 450 IPC whereas challan was filed under Sections 448 & 323 IPC. Further, the matter was committed to Sessions under Section 376 IPC and the conviction is under Sections 448 & 376/511 IPC. 18. This Court is conscious of the fact that the accused-appellant was below 21 years of age at the time of commission of the alleged offences, as is reflected from the record of the case and the offences under Sections 448 & 376/511 IPC, as mentioned above, are punishable with an imprisonment, for a term which may extend to one year and for a term which shall not be less than ten years, but which may extend to imprisonment for life respectively, which clearly makes the precedent law of Jugal Kishore (supra) and Lakhvir Singh (supra) applicable in the present case. 19. This Court also observes the statement of prosecutrix as well as the supporting witnesses, which indicates a longstanding rivalry between the family members as they are close relatives. 20. This Court also finds that the independent witnesses have stood by the accused, and thus, a huge suspicion has been created in the prosecution story. The medical report has also been examined by this Court. 21. This Court observes that there is no material on record that the appellant has any criminal antecedents. Thus, the accused-appellant is entitled to the benefit as per the mandatory requirement of the Act. 22. Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon’ble Apex Court in Mohd. Hashim (supra), deems it appropriate to extend the benefit of the Act to the accused-appellant. 23. Resultantly, the present appeal is partly allowed. 22. Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon’ble Apex Court in Mohd. Hashim (supra), deems it appropriate to extend the benefit of the Act to the accused-appellant. 23. Resultantly, the present appeal is partly allowed. While maintaining the conviction of the present accused-appellant for the offences under Sections 448 & 376/511 IPC, as recorded by the learned Court below in the impugned judgment, this Court interferes only with the sentence part of the said judgment, and directs that the appellants shall be released on probation, under Section 4 (while considering Section 6) of the Act, upon his furnishing a personal bond in the sum of Rs.50,000/-and two sureties in the sum of Rs.25,000/-each to the satisfaction of the learned trial court with a further undertaking that he shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellant is on bail. He need not surrender. His bail bonds stand discharged accordingly. 24. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.