Sanwata Vs. State of Rajasthan

penal code - sections 325, 447 and criminal procedure code--sections 360, 361--sentence--accused above 40 years and probation not granted--co-accused given benefit of probation--criminal proceedings lasted for 11 years--held; it is not proper to send accused to jail and sentence is reduced to already undergone.;the benefit of probation was extended to birbal, chainiya and krishna by the courts below and the benefit of probation was not allowed to accused only as he was about 40 years of age. the accused has faced criminal proceedings for about eleven years. this is the first offence of the accused. considering the provisions of section 360 read with section 361 of cr. p.c. in my view it will not be appropriate to send the accused-petitioner in jail at this stage, instead of giving him an opportunity to reform and rehabilitate himself in the society.;revision partly allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to..........months accused remained in jail. this is the first offence of the accused, therefore, no purpose will be served in sending him in jail after lapse of eleven years specially, in view of the provisions of section 360 of cr. p.c. on the other hand, the learned public prosecutor is relied upon the judgments at courts below.3. i heard the learned counsel for the accused-petitioner and perused the material on record, as learned counsel for the petitioner has not pressed the revision petition on merits, therefore, there is no need to repeat the facts. the basic facts are not in dispute that birbal, chainiya, krishna and accused sanwata are convicted under section 325 read with section 34 and 447 ipc for the offence committed on 8.7.1979. the benefit of probation was extended to birbal, chainiya and krishna by the courts below and the benefit of probation was not allowed to accused only as he was about 40 years of age. the accused has faced criminal proceedings for about eleven years. this is the first offence of the accused. considering the provisions of section 360 read with section 361 of cr. p.c. in my view it will not be appropriate to send the accused-petitioner in jail at this stage, instead of giving him an opportunity to reform and rehabilitate himself in the society.4. in the result, the conviction under sections 325 and 447 ipc is upheld. the sentence is reduced to the period already undergone by the accused. fine of rs. 400/- (rupees four hundred) is sustained. the accused-petitioner is directed to pay the fine within two months from the date of this order. in default of payment of fine undergo one month simple imprisonment.5. the revision petition is partly allowed.