JUDGMENT
Rajendra Saxena, J.
1. This appeal has been preferred against the judgment dated 8.4.1981 passed by learned Additional Sessions Judge, Kishangarh Bas, Camp at Alwar, whereby he convicted the appellant for the offence Under Section 302 IPC and sentenced him to life Imprisonment an a fine of Rs. 500/- and in default of payment of fine to further undergo R.I. for five months.
2. Stated in succinct, the prosecution case is that on 28 October, 1979 at about 9.00 A.M. the appellant Intentionally dealt axe blows and caused fatal injuries to Smt. Ball, who was carrying the tiffin for her daughter. On the report (Ex.P. 2) lodged by Makhan, FIR Ex.P. 3 was drawn at Police Station Bansur and after usual investigation a challan was filed against the appellant in the court of learned Munsif and Judicial Magistrate, Behror, who in turn committed the case to the Sessions.
3. The appellant was charged for the offence Under Section 302 IPC. He denied the indictment and claimed trial. After trial the learned Sessions Judge convicted and sentenced the appellant in the manner Indicated above.
4. During the pendency of this appeal an application Under Section 26 of the Rajasthan Children Act, 1970 (In short the Act) was filed on behalf of the appellant that he was born on 8.2.1964, that on the date of occurrence i.e. on 28th October, 1979, he was below 16 years and as such he was a ‘child’ within the meaning of Section 2(d) of the Act and it was prayed that necessary orders for his release be passed In accordance with law.
5. This court by its Order dated 4th August, 1995 directed the learned Additional Sessions Judge, Kishangarh Bas, to make an enquiry Under Section 32(1) read with Section 7(3) of the Act for determination of the age of the appellant on the date of occurrence and to submit his finding. In pursuance thereof the learned Additional Sessions Judge after conducting necessary enquiry has submitted his report dated 28th November, 1995. He has given a positive finding that the date of birth of the appellant as recorded In the Government School was 8th February, 1964 and as such on the date of Incident he was below 16 years of age. Thus on the date of incident the appellant was delinquent child within the meaning of Section 2(d)(1) of the Act.
6. Section 22(1) of the Act lays down that “notwithstanding anything to the contrary contained In any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment, or committed to person In default of payment of fine or in default of furnishing security”.
7. Section 26 of the Act provides special provisions In respect of the pending cases and runs as under:
26. Special provision in respect of pending cases : Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children’s court, which shall pass orders in respect of that child in accordance with the provisions of this Act as if it has been satisfied in inquiry under this Act that the child has committed the offence.
8. The provisions of the Act, 1970 have been made applicable to Alwar District vide Gazette Notification dated 14th November, 1981.
9. In Jayendra v. State of U.P. 1982 Cr.L.R. (SC) 20, Special Leave Petition was filed by the appellant against his conviction and sentence on the ground that on the date of commission of offence he was below 16 years and as such he was a ‘child’ within the meaning of Section 2(4) of the Uttar Pradesh Children Act, 1951. The Supreme Court directed for an enquiry for the determination of his age Under Section 27 of the said Act. Section 27 provided that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 29 of the said Act laid down that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. The Apex Court held that to the normal course, they would have directed that the appellant shall be sent to an approved school, but in view of the fact that he was about 23 years of age, he could not be sent to the approved school. His conviction was therefore, up-held. However his sentence was quashed. The provisions of Uttar Pradesh Children Act, 1951 are in para materia with the provisions of the Act, 1971.
10. In Sujna v. State of Rajasthan 1990 RLW (1) 117, the accused appellant was convicted by the Sessions Judge, Jalore on 4.11.79 Under Section 307 IPC and sentenced to 5 years R.I. with fine. The incident took place on 14th June, 1979. During the appeal the appellant on inquiry was found to be a child within the meaning of Section 2(d) of the Act. The provisions of the Act were made applicable to Jalore District, where the crime had taken place on 14.11.1981. Interpreting the provisions of Section 26, this Court held that the benefit of the provisions of the Act can be given even during appeal. Since the accused had crossed the age of 18 years it was further held that he could not be sent to any Reformatory School. Therefore, his conviction was maintained but his sentence was quashed.
11. In the instant case, the crime was committed on 28th October, 1979. On that time the age of the appellant was below 16 years and he was a child. Now he is more than 30 years. Therefore, in view of the provisions of Section 26 of the Act, now the appellant can not be sent to the Children School or to the Reformatory School. In such circumstances, his sentence deserves to be quashed.
12. Hence for the reasons mentioned above, this appeal is partly allowed, and his conviction for the offence Under Section 302 IPC is maintained but his sentence is hereby quashed. The appellant is on bail. He need not surrender. His bail bonds stand discharged.
