IMPORTANT POINT
A person found guilty of the offence under section 377 Indian Penal Code is not entitled to claim the benefit of Section 6 of the Probation of Offenders Act.

JUDGMENT

Manisana, J. - This revision arises from a judgment of the Sessions Judge, Cachar given on 27 July 1981 in Criminal Appeal No. 15(1) of 1981 dismissing the appeal from a judgment and order of conviction of the Judicial Magistrate of the 1st Class, Karimganj passed In G.R. Case No. 191 of 1978 convicting the petitioners under section 377 I.P.C. and sentencing them to R.I. for 6 months and fine of Rs. 100/- each.

2. The only submission of the learned counsel for the petitioners that the petitioners may be released on probation of good conduct. He has drawn my attention to the petition dated 25 July 1981 filed by the petitioners before the Sessions Judge praying for releasing them on probation of good conduct stating that they repented what they had done; and that they were under 21 years of age; and that they had no any previous conviction; and that they may be given a chance that they may be good and law abiding citizen. The Sessions Judge rejected the petition on the ground that the plea was not raised during bearing and the judgment had been already delivered.

3. In the present case the petitioners have been found guilty of committing the offence under section 377 I.P.C. The offence under section 377 is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years. Assuming that the petitioners were under 21 years of age as imprisonment for life can also be awarded for the offence under section 377, I.P.C. a person found guilty of such an offence would not entitle to claim the benefit of section 6 of the Probation of Offenders Act To hold otherwise would have the effect of ignoring the expression "but not imprisonment for life" In Section 6, the fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of the offence punishable with imprisonment for life, I see Parichhat v State of M.P.1 and Jugal Kishore v. State of Bihar2). Therefore, the petitioner will not be entitled to be released on probation of good conduct.

4. The next question which arises for consideration is what punishment should be awarded to the petitioners. The occurrence took place on 5 March 1978, that is to say more than 9 years ago. The Magistrate convicted the petitioners on 31 January 1981.

The Sessions Judge dismissed the appeal on 27th July 1981. The conviction has been in force for more than 6 years. There is nothing on record to show that the petitioners were previously convicted. In the absence of such materials, it is treated that the petitioners are first offenders. The school certificate Annexure-I to the petition shows that the petitioner No. 2 Abdul Nur was aged about 15½ years on the first March 1977. It is stated at the bar that the petitioners were not at all detained In connection with the present case. Having regard to the circumstances and considering the age of the petitioner No. 2 Abdul Nur in my judgment to reduce the sentence of imprisonment to 7 days will meet the ends of justice. As regards petitioner No. 1 Ratan Mia, from records the exact age of the petitioner No. 1 is not available. However, this statement under section 313 Cr. P.C. shows that he was aged about 20 years when he was examined under section 313 Cr. PC. Although the age given by the accused in his statement had no special significance the petitioner No. 1 Ratan Mia is also entitled to get the benefit of the proposed order to be passed in favour of the petitioner No. 2 Abdul Nur.

5. For the foregoing reasons the conviction of the petitioners under section 377 I.P.C. is upheld but the sentence of imprisonment is modified and reduced to 7 days that is the petitioners are sentenced to RI for 7 days each. It is made clear that only the sentence of Imprisonment has been modified and not the fine. The bail bonds of the petitioners are cancelled. They are to surrender before the Judicial Magistrate of the 1st Class, Karimganj to serve out the sentenc