Judgment

KHANNA, J.:- The short question which arises for determination in this appeal on certificate granted by Patna High Court is whether the appellant who was less then 21 years of age on the date of his conviction for an offence under Section 326 read with S. 149 Indian Penal Code, can claim the benefit of Section 6 of the Probation of Offenders Act, 1958 (Act No. 20 of 1958).

2. The appellant and five others, who belong to village Mandil in District Gaya, were tried in the court of Additional Sessions Judge Gaya for offences under Sections 147, 148, 307, 323 and 307 read with Section 149 Indian Penal Code and Section 25 of the Arms Act. Jugal Kishore appellant was convicted under S. 326 read with S. 149 and Section 148 Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years on the first count and rigorous imprisonment for a period of two years on the second count. The sentences awarded to the appellant were ordered to run concurrently. The other five accused were also convicted for various offences and were sentenced on those counts.

3. On appeal the Patna High Court as per judgment dated January 22, 1968 acquitted two of the accused. The conviction of the appellant for offences under Section 326 read with Sections 149 and 148 Penal Code was maintained. The sentence of the appellant for the offence under S. 326 read with Section 149 Indian Penal Code was reduced from five years to three years. The sentence for the offence under S. 148 Indian Penal Code was, however, maintained, The conviction of the other three accused was maintained for some of the offences, and they were awarded sentences of imprisonment on that count. After the pronouncement of the judgment by the High Court, an application was made on behalf of the appellant that his case be dealt with under the Probation of Offenders Act on the ground that he was below 21 years of age at the time of his conviction by the trial court. This application was rejected by the High Court as per order dated December 12, 1968 on the ground that the offence for which the appellant had been convicted was punishable with imprisonment for life, and as such, the provisions of Probation of Offenders Act could not be invoked in his case. On prayer made by the appellant, the High Court certified the case to be fit for appeal to the SC as it involved the question relating to the applicability of the Probation of Offenders Act.

4. The appellant and his companions were tried on the allegation that on October 14, 1964 at about 10 a.m. while Madho Saran was getting his field bearing No. 1678 ploughed by his ploughman Bakshya Mahto, the appellant and Raghu accused went there and questioned Madho Saran for cutting the ridge between field Nos. 1678 and 1719. Field No. 1719 belonged to the appellant Madho Saran went to his house and narrated the incident to his brother Sadho Saran. Madho Saran and Sadho Saran along with others then came out of their house and while they were near a barrage, they met the accused who were accompanied by about 30 persons of their village. One of the accused, namely, Hira Lal, who was armed with a gun fired a shot as a result of which Sadho Saran was hit on his head. Sadho Saran fell down, whereafter the other accused, including the appellant who was armed with a garasa, caused further injuries to Sadho Saran and his companions with sharp-edged and blunt weapons. The injured were thereafter taken to Jehanabad Hospital. On receipt of intimation from the doctor incharge of the hospital, a police Sub-Inspector went to the hospital and recorded the statement of Madho Saran. Nand Kishore, one of the accused, also lodged a report at the police station.

5. The question with which we are concerned in this appeal, as mentioned earlier, is whether the appellant can claim the benefit of the Probation of Offenders Act. The appellant gave his age to be 19 years in his statement under Section 342 of the Code of Criminal Procedure, and the ca