ORDER :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374(2) Cr.P.C. praying for the following reliefs:-

“It is, therefore, prayed that this Hon’ble Court will be pleased to send for the record of the lower court, peruse the same and after perusal, quash the conviction and sentences passed against the appellants, acquit them or pass any other orders that this Hon’ble court deems fit and proper.”

3. The matter pertains to an incident that occurred in the year 1986 and the present appeal has been pending since 1993.

4. Vide impugned judgment dated 30.09.1993, the learned Additional Sessions Judge, Sojat, Pali passed in Sessions Case No.44/92 (36/1987) though, while extending the benefit of doubt, acquitted the accused-appellants for the offence under Section 376 IPC, but convicted them for the offence under Section 366 IPC and sentenced them to undergo two years simple imprisonment, alongwith a fine of Rs.500/-, default in payment of which they were to further undergo one month simple imprisonment. The offence under Section 366 IPC, as per the Indian Penal Code, is punishable under Section 363 IPC, with imprisonment, for a term may extend to seven years.

5. At the outset, learned counsel for the accused-appellants submits that appellant No.3-Shoukat s/o Mohd. Khan has already expired.

6. Learned counsel for the accused-appellants further submits that at the time of occurrence of the alleged incident, the accused-appellants; Shoukat was 171/2 years and Sikandar and the other Shoukat were below 18 years of age, on the date of the commission of the alleged incident, and that neither of them has any criminal antecedents to their discredit.

7. Learned counsel for the accused-appellants further submits that the accused-appellants were ordered to be released by this Hon’ble Court vide order dated 26.10.1993, passed in S.B. Criminal Misc. Bail Application No.413/1993, and thus, they are on bail.

8. Learned counsel for the accused-appellants however, makes a limited prayer that the surviving accused-appellants No.1 and 2 may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’). Learned counsel also referred to Section 6 of the Act.

Sections 4 & 6 of the Act read as under :

“4. Power of court to release certain offenders on probation of good conduct.—

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3)…

(4)…

(5)... ”

“6. Restrictions on imprisonment of offenders under twenty-one years of age.—

(1) When any person under twenty-one years of age is found g