JUDGMENT M.C. Jain, J.
1. The accused respondent Surjeet Singh was convicted under Section 307 I.P.C. by judgment dated 30.8.1983 passed by Sri Mohi-Ul-Islam, the then VII Additional Sessions Judge, Bareilly in Sessions Trial No. 447 of 1981 for causing gunshot injuries to three children, namely, Dhanvant Singh, Sonu and Balwinder Oberai who were on a Rikshaw. The incident occurred on 13.11.1980 at about 8 A.M. in Mohalla Subhash Nagar near Khanna Building within P.S. Kotwali, District Bareilly. He was sentenced to undergo two years' rigorous imprisonment but instead of sending him to jail, the trial judge gave him the benefit of Section 4 read with Section 6 of the Probation of Offenders Act, 1958 and he was directed to enter into a personal bond of Rs. 2000/- and to furnish two sureties, each in the like amount to the satisfaction of the court for keeping peace and be of good behaviour during a period of two years. He was to remain under the supervision of the District Probation Officer, Bareilly. The State, being aggrieved of this concession given to the accused respondent, has preferred this appeal for enhancing the sentence awarded to him. This Government Appeal was admitted on the sole question whether the Sessions Judge was entitled to release the accused respondent on probation alter holding him guilty of the charge under Section 307 I.P.C., since the offence of Section 307 I.P.C. is punishable with sentence of life imprisonment. This is the limited question involved in this appeal.
2. We have heard Sri K.P. Shukla, learned A.G.A. for the appellant (State) and Sri Rajul Bhargava appointed as Amicus curiae for the accused respondent.
3. The reasoning adopted by the trial judge for releasing the accused respondent on probation was that he (accused) was less than 21 years of age.
4. The learned A.G.A. has rightly argued that Section 4 of the Probation of Offenders Act, 1958 could not apply to the present case as the accused respondent was found guilty of the offence under Section 307 I.P.C. which is punishable upto the sentence of imprisonment for life. The bare reading of Section 4 of the Probation of Offenders Act, 1958 makes it clear that an offence punishable with death or imprisonment for life is beyond its scope. Section 6 of the said Act also could not apply to him. Therefore, the approach of the trial judge is not legally sustainable.
5. However, as rightly argued by the learned Amicus curiae, the accused respondent cannot be sentenced to imprisonment. It is to be taken note of that the impugned judgment was delivered on 30.8.1983. The incident had taken place on 13.11.1980. The supplementary' statement of the accused respondent under Section 313 Cr.P.C. was recorded on 30.8.1983 in which he stated that he was less than 15 years of age at the time of the incident. The trial judge, however, made an observation that he appeared to be over 18 years of age. We find that the accused respondent even relied on his school-leaving certificate in which his date of birth was recorded as 9.8.1968. Wading through the record, we find that from his side the bail application was made before the Chief Judicial Magistrate, Bareilly on 15.12.1980 in which, too, a ground was taken that he was aged about 12 years. His father Nirmal Singh had filed affidavit to this effect that his date of birth was 9.8.1968. The school-leaving certificate was filed at that very time in which his date of birth was recorded as 9.8.1968. So, the plea about under age was not subsequently developed from the side of the accused respondent. Rather, it was there from the very beginning. Even going by the observation of the trial judge on 22.8.1983 (while recording his statement under Section 313 Cr.P.C.) that he appeared over 8 years of age. He must have been less than 16 years of age on the date of incident i.e. 13.11.1980 The U.P. Children Act, 1951 was in force at the relevant time when the incident took place. Section 2 (4) of the U.P. Children Act, 1951 (U.P. Act No. 1 of 1952) defines a child to mean a person under the age of sixteen years. Section 27 of the said Act provides 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 provides, in so far as it is material, 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 of the age of 18 years by the child. The Supreme Court has held in the case of Bhola Bhagat v. State of Bihar AIR 1998 SC 238 that the benefit of Children Act should not be refused on technical grounds. So, instead of Probation of Offenders Act, 1958, the benefit of Children Act, 1951 ought to have been afforded to the accused respondent Surjeet Singh. Though he was under 16 years of age at the time of the incident, but he must be about 40 years of the age presently. In the normal course, we would have directed him to be sent to the approved school, but in view of the fact that he is now about 40 years of age, he cannot now be sent to an approved school.
6. Situation boils down to this that no sentence of imprisonment can be passed against the accused respondent and this appeal for enhancement of sentence is liable to be dismissed.
7. Government Appeal is hereby dismissed.
8. Sri Rajul Bhargava, Amicus curiae for the accused respondent, who argued out the appeal, shall got Rs. 1000/- as his fee.
9. Judgment be certified to the lower court.