The age of the offender should not be a sole disqualifying factor for the benefit of probation under the Probation of Offenders Act, especially when the punishment for the offences is not life imprisonment or death.

1. - Heard Mr.L.D.Khatri, learned counsel for the petitioner and Mr.A.R.Nikub, learned Public Prosecutor.

2. The facts in brief necessary to be noted are that on 14.9.1997 at about 6.30 AM, one Himmat Singh submitted a written report before the Police Station, Jaisalmer, alleging that while his sister in law alongwith her children was sleeping in the house in the previous night at about 1.30 AM, he heard hue and cry and having reached the place of occurrence, apprehended the petitioner thereat. On necessary enquiries, his sister in law Khetu Kanwar accused the petitioner of having caught her hand while she was sleeping.

3. On the report, the police submitted a charge-sheet for the offences u/ss.457 and 354 IPC. The petitioner denied the charges for which the trial followed. At the trial, the prosecutrix and other witnesses were examined. The petitioner in his statement under section 313 Cr.P.C. denied the charge. He further examined two witnesses in defence.

4. At the conclusion of the trial, the court below though convicted him for both the offences, granted him the benefit of Section 4 of the Probation of Offenders Act, 1958 (for short hereinafter referred-to as "the Act"). He was thereby required to execute a bond of Rs. 5000/- undertaking to keep peace and to maintain good behaviour for a period of two years and not to repeat the same offences. He was also ordered to give an undertaking that he would be required to present himself before the court at any time when called for and suffer the sentence, that would be awarded.

5. The State preferred an appeal and the learned District and Sessions Judge, Jaisalmer by the judgment and order dated 19.7.2001 passed in Cr. Appeal No. 09/2001, while maintaining the conviction of the petitioner under the aforementioned provisions of the Indian Penal Code, also interfered with his release on probation under the Act and instead, sentenced him to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/-, in default to undergo simple imprisonment for further one month for the offence under section 457 IPC and to suffer rigorous imprisonment for three months for the offence under section 354 IPC. It was, however, directed that both the sentences would run concurrently. Being aggrieved, the petitioner has filed the instant revision petition.

6. The learned counsel for the petitioner has argued that in absence of any material on record to prove beyond all reasonable doubt that he had any past criminal record and that his antecedents did not disentitle him to the benefit of probation under Section 4 of the Act, the learned first Appellate Court had erred in law in holding to the contrary. The learned counsel argued that though at the relevant point of time, the petitioner was aged about 35 years having regard to the nature of offence and the sentence provided in law, the learned lower Appellate Court ought not to have interfered with the impugned judgment and order also having regard to the fact that during the trial, he had suffered imprisonment for a period of nine days. He has urged further that following the judgment in appeal, the petitioner had to undergo further ten days' imprisonment and that at this distant point of time, interference with the impugned judgment and order is warranted in the facts and circumstances of the case.

7. Mr. A.R. Nikub, learned Public Prosecutor, has argued that because the petitioner admittedly at the time of commission of offence aged 35 years, he was not entitled to the benefit of probation under Sec.4 of the Act and further having regard to the gravity of the offence for which he had been convicted, the decision of the learned lower Appellate Court cannot be faulted with.

8. Upon hearing the learned counsel for the parties and on a consideration of the materials on record, this court having regard to the lapse of time in particular, is inclined to accept the pleas raised on behalf of the petitioners. The offence relates back