Mustafa Vs. State and anr. - Court Judgment

Excerpt:
penal code - section 323 and--probation of--offenders act--section 6 and criminal procedure code (new)--section 360--accused of 18 years--matrimonial relations likely to be broken--apology tendered--benefit of probation granted.; with a view that the matrimonial relation of the accused-appellant may not be broken, and also keeping in view the fast that the accused appellant was below 18 years of age on the date of occurrence, while maintaining the conviction of the accused-appellant, it is hereby ordered that the accused-appellant shall not be sent to jail if he executes a personal bond for rs. 1,000/-.; an admonition has been administered to him. he has expressed unqualified apology and has also verbally undertaken to be of good behaviour and to maintain pease.;appeal 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 be treated as juvenile under the said act. - 1,000/- to the satisfaction of the deputy registrar of the high court at jaipur to maintain peace and to be of good behaviour for a period of one year and to undertake to appear before the learned sessions judge, sawai madhopur whenever called upon to do so to undergo the sentences awarded to him the personal bond is to be submitted within a week failing which the accused appellant shall be taken into custody to undergo the sentence awarded to him. he has expressed unqualified apology, and has also verbally undertaken to be of good behaviour and to maintain peace. the fine, if paid, by the accused appellant shall be refunded to him if he executes the bond to maintain peace and to be of good behaviour as ordered above.p.d. kundal, j.1. this is an appeal against the judgment of the learned sessions judge, sawai madhopur dated 28th february, 1978. the accused was tried for an offence under, section, 307 ipc, but was convicted under section 323, ipc, and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of rs. 500/-, and in default to undergo further rigorous imprisonment for one month.2. the learned counsel for the accused appellant has contended that at the time of occurrence the accused was below 21 years of age. the incident is alleged to have taken place en 30th march, 1976. according to the school certificate the date of birth of the accused appellant is 6th july, 1959. it has been contended that the accused appellant had gone to fetch his wife mst. saharbanu who was with her parents. as mst. saharbanu was not prepared to accompany the accused, a scuffle arose in which the accused beat her. according to the medical report, the following injuries were found on the body of mst. saharbanu:1. bruise 3 x 2 cm on right leg mid of shin2. bruise 2 x 5 cm on the right knee joint3. bruise 5 x 4 cm on left knee joint4. bruise 8 x 3 cm on left upper one fourth of fore-arm5. bruise 2 x 2 cm on left index finger root6. bruise 10 x 4 cm on right elbow joint and lower end of right upper arm7. bruise 3 x 3 cm on left tempoto maxillary area8 lacerated wound 3 x cm x scalp deep en frontal parietal region9. lacerated wound 1x cm x scalp deep on frontal aspect of scalp10. lacerated wound 3 x cm x scalp deep on the posterior an i towards right side of mid scalp3. the learned counsel for the accused appellant has contended that it is a fit case in which the benefits of section 360, cr pc 1973 read with section 6 of the probation of offenders act may be extended in the present case.4. mr. khan, learned public prosecutor, appearing on behalf of the state has not opposed the extension of the benefits of the provisions of section 360, cr pc read with section 6 of the probation of offenders act to the accused appellant.5. having considered the entire set of circumstances and also with a view that the matrimonial relations of the accused appellant may not be broken, and also keeping in view the fact that the accused appellant was below 18 years of age on the date of occurrence, while maintaining the conviction of the accused appellant, it is hereby ordered that the accused appellant shall not be sent to jail if he executes a personal bond for rs. 1,000/- to the satisfaction of the deputy registrar of the high court at jaipur to maintain peace and to be of good behaviour for a period of one year and to undertake to appear before the learned sessions judge, sawai madhopur whenever called upon to do so to undergo the sentences awarded to him the personal bond is to be submitted within a week failing which the accused appellant shall be taken into custody to undergo the sentence awarded to him.6. the accused appellant is personally present before the court. an admonition has been administered to him. he has expressed unqualified apology, and has also verbally undertaken to be of good behaviour and to maintain peace.7. the appeal is partly allowed as indicated above. the fine, if paid, by the accused appellant shall be refunded to him if he executes the bond to maintain peace and to be of good behaviour as ordered above.