This is an appeal against the judgment and order dated 9-10-1980 passed by Sri Y. P. Singh, the then 1st Additional Sessions Judge, Badaun in S. T. No. 72 of 1979, State v. Suresh and others, under Sections 147 and 308/149, IPC, whereby, he convicted Chhotey and Ram Bilas accused-appellants of the of fences under Section 452 and 308, IPC and sentenced them to serve R. I. for a period of 2 years for the offence under Section 308, IPC and R. I. for a period of 6 months for the offence under Section 452 IPC. Both the sentences were made to run concur rently.

2. Out of the two accused appellants, Chhotey accused-appellant has died and the appeal has abated as regards him. Con sequently, the appeal now survives only to the extent of Ram Bilas accused-appel lant. In regard to this accused-appellant, his conviction for the offence under Sec tions 308 and 452, IPC has not been chal lenged by the learned Counsel. The only argument is that he was a child within the meaning of the term under Section 2 (4) of the U. P. Children Act, 1951- and conse quently, he could not be sentenced and sent to prison.

3. The learned Counsel for this ac cused-appellant has relied on the state