' This revision application under section 435/439, Criminal Procedure Code is directed against the judgment dated 19-3-1973 passed in appeal by the learned Sessions Judge, Sanghar who maintained the conviction of respondent No, 1 Manzoor Hussain under section 377, P. P. C. But reduced his sentence f 3 months to the period already undergone. The respondent, after conviction, had remained in Jail for about a week only. The learned Sessions Judge by a separate order dismissed the revision application of the applicant filed for enhancing the sentence of respondent No,
1. The present revision application is filed against both the orders.
2. Respondent No, 1 was convicted by the learned Civil Judge and F. C. M., Shandadpur for offence under section 377, P. P. C. On 31-3-69 and sentenced to suffer R. I. For three months. The respondent filed appeal before the learned Sessions Judge, Tharparkar at Sanghar, who by his order dated 14- 9-1970, set aside the conviction and sentence passed against the respondent and remanded the case for re-trial after keeping in view the provisions of Sind Children Act, 1955, because the age of appellant (respondent No, 1) in this matter at the time of incident was below 16 years.
3. The father of respondent Manzoor Hussain filed a Revision Application No, 141/1972 against the above order of re-trial and the High Court vide his Lordship's judgment dated 30-12-1972 set aside the said order, restored the conviction of the respondent and sent back the case to the learned Sessions Judge, Sanghar for disposal of the appeal as well as the revision application filed by Ali Akbar, father of the victim boy. The learned Sessions Judge, disposed of the appeal as well as the revision application on 19-3-1974 as mentioned above.
4. The contention of the learned counsel for the applicant is that looking to the seriousness of the offence committed by respondent No, 1 against a boy of tender age, the period of imprisonment already undergone imposed by the learned Sessions Judge was not only grossly inadequate but also illegal. The learned counsel has not been able to show how the sentence awarded by the Sessions Judge was illegal. This contention has therefore no force. As regards the sentence, the reasoning of the learned Sessions Judge is that the trial of the appellant by Civil Judge and F. C. M., Shandadpur was held to be legal and proper by the High Court in the Revision Application No, 141 of 1972 and that the appellant (respondent No, 1) has faced the protracted proceedings in Appeal and Revision for nearly five years. He has also stated that the age of the appellant at the time of incident was below 16 years, hence he awarded him lenient sentence up to the period already undergone. In addition the respondent has also faced prosecution before the trial Court for over one year as offence had occurred on 16-2-1968. These are valid circumstances for awarding lenient sentence and I do not find any reason to interfere after a lapse of 9 years.
5. Mr. Mohammad Hayat, learned Advocate appearing for respondent No, 1, has urged that according to Bombay Children Act, 1924, the respondent could not be awarded a sentence of imprisonment at all. The High Court has already held that the provisions of the Sind Children Act were not applicable because although the Act was passed but the Provincial Government had not issued notification in the official Gazette specifying the date from which it would come into force. I do not agree with the contention of the learned counsel for the respondent, because the case of the respondent would be covered by the provisions of section 27(i) (h) of Bombay Children Act. The above section lays down the methods of dealing with children charged with offences. The Court could award imprisonment to the respondent as at the time of incident he was more than 14 years of age. Clause (h) reads as under:- .
"Where the offender is a child of 14 years of age or upward, by sentencieng him to imprisonment."
It is mentioned in the challan that the age of the respondent at the time of offence was 16 years. In his statement under section 342, Cr. P. C. Recorded by the trial Court on 14-12-68, the age of the respondent is shown as 17 years. Therefore, the lower Court as well as the appellate Court have not committed any illegality by awarding the sentence of imprisonment to the respondent.
6. The learned counsel for the State Mr. Habib Rashid has supported the revision application saying that the sentence pased by the learned Session Judge was illegal. I have already shown above that by virtue of the provision of section 27 (I) (h) of Bombay Children Act, the sentence passed by th trial Court as well as by the appellate Court was legal and need not b interfered with.
7. I therefore, find no substance in this Revision application and dismis it.
8. .