S.K. Chawla, J.

Counsel name removed from here

Accused Balkishan was convicted of the offences under Sections 454 and 380, Indian Penal Code and sentenced to R. I. for 6 months under each count, both the sentences running concurrently, by judgment dated `22-1-1982 of Judicial Magistrate First Class, Ganj Basoda. On appeal being carried by him, the aforesaid convictions and sentences were affirmed by judgment dated 29-7-1989 by A.S.J., Ganj Basoda. Now the accused has come in revision to this Court.

According to the prosecution case, on 10-7-1978 during day time house breaking was committed in the house of one Premsingh (PW 4) when none was present in the house. Some silver ornaments kept in a box in the house were stolen in that incident. On 13-7-1978, applicant Balkishan got two pairs of silver Banke and one pair of silver Tankar recovered on his information and at his instance from a room of his house in which he had stored straw. On 17-7-1978 he got one silver Kardhani recovered from the shop of a jeweller named Chandrakumar (PW 11) to whom he had sold it for Rs. 460/-, telling his name to be Dhansingh. The transaction of sale was found to be entered in the register of the shop-keeper. All the ornaments seized were identified to be property stolen in the above said theft. On these facts, the applicant was convicted and sentenced of the offences of house-breaking and theft from a dwelling house, in the manner already indicated.

A febble attempt was made to challenge the conviction of the applicant, but the attempt was soon given up by his counsel. The only contention raised was with respect to the sentence. In this connection, it was contended that the applicant/accused was aged 19 years at the time of the commission of the crime, although he had attained the age of 22 years when the trial Court found him guilty. As the applicant was below 21 years of age on the date of the commission of the crime, Section 6 of the Probation of Offenders Act, 1958 (hereinafter called the) was squarely attracted, which contained an injunction to the courts forbidding them to impose sentence of imprisonment. It was urged that the Courts below were in error in ignoring the said injunction and in sentencing the applicant to imprisonment.

It does not admit of any doubt that the applicant was aged about 19 years at the time of the commission of the crime. The challan filed against him described him to be aged 19 years. Even in the array of the trial Courts judgment, the applicant was described as aged 19 years. The trial took about 3 1/2 years, calculating from the date of the commission of the crime. In that way, the applicant was aged more than 21 years on the date he was found guilty by the trial Court. The trial Court did not advert at all in its judgment to the provisions of Probation of Offenders Act, 1958. The appellate Court observed in its judgment that appellant was aged 24-25 years at the time of judgment by the trial Court, and considering the seriousness of the crime of house-breaking and the feeling of insecurity and alarm which such offences caused among the people, it was not advisable to extend to the applicant the benefit of probation under Section 4 of the. On this reasoning the appellate Court affirmed the sentence of imprisonment awarded by the trial Court. It is not known how the appellate Court arrived at the figure of 24-25 years, when it did not appear to be disputed that the applicant was aged about 19 years at the time of commission of the crime.

It will be seen that Section 6 of thelays down an injunction, as distinct from a discretion under Section 3 or Section 4, not to impose a sentence of imprisonment on a person who is under 21 years of age and is found guilty of having committed an offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with him under Section 3 or Section 4. It will further be seen that although Section 6 makes itself applicable when a person under 21 years of age is found guilty, it does not expressly refer to any date with reference to which the age "under 21 years" mentioned in it may be reckoned. Is it to be reckoned with reference to the date of the commission of the crime Or is it to be reckoned with reference to the date when the trial Court is required to deal with the accused for the purpose of punishment If the first were the crucial date, it is obvious that Section 6 would bring within its net large number of accused persons on whom sentence of imprisonment cannot be passed in view of injunction contained in Section 6. If the second were the crucial date, then obviously those accused persons who were below 21 years of age at the time of the commission of the crime, but who attained the age of 21 years at the conclusion of their trial when they were held guilty, would be excluded from the net of Section 6.

The case of Ramji Missar v. State of Bihar in : AIR 1963 SC 1088 , is the first case in which the Supreme Court pointedly and specifically dealt with the question as to what is the crucial date for reckoning the age mentioned in Section 6(1) of the. In that case, two brothers who had been convicted and sentenced by the Sessions Judge, under Sections 307 and 326, Indian Penal Code in the case of younger brother Basist and under Section 324, Indian Penal Code in the case of elder brother Ramji, were on appeal both convicted and sentenced by the High Court for the offence under Section 324, Indian Penal Code. The offence under Section 324, Indian Penal Code being not punishable with imprisonment for life, the question that was raised before the Supreme Court was whether the High Court should have applied the provisions of Section 6 of theto both the accused persons. The elder brother Ramji was aged not below 21 years and Basist aged 20 years on the date the Sessions Judge convicted them. The Supreme Court held that the crucial date for reckoning the age mentioned in Section 6(1) of theis the date when an accused on being held guilty is required to be dealt with by the trial Court for the purpose of punishing him. That being so, the Supreme Court held that the High Court was correct in holding that Section 6 was not applicable to RamjL The Supreme Court further held that Section 6 was applicable to Basist and the High Court was in error in thinking that it had unfettered discretion under Section 11(1) of thewhether to apply the provisions of Section 6 or not. The Supreme Court accordingly allowed the appeal of Basist and remanded the case to the High Court to consider the proper order to be passed in his case by applying the provisions of Section 6 of the. In this decision, the Supreme Court also gave elaborate reasoning saying why the crucial date for the purpose of reckoning the age mentioned in Section 6(1) should be the date when the accused is dealt by the trial Court for the purpose of punishing him. The following observations in this decision are pertinent:-

"The question of the age of the person is relevant not for the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found, on the evidence, guilty. The object of the is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. If this were borne in mind it would be clear that the age referred to by the opening words of Section 6(1) should be that when the court is dealing with the offender........"

There are however two decisions of the Supreme Court which came to my notice which would show that the crucial date for reckoning the age mentioned in Section 6(1) is the date of the commission of the crime. Those decisions are Darshan Kumar v. Jabalpur Municipality in AIR 1973 SC 906 and Ramlal and Anr. v. State of Punjab in JT 1988(1) SC 258 . The first decision of Darshan Kumar is a short decision consisting of just two paragraphs. That entire decision may be profitably reproduced here :-

JUDGMENT :--After hearing counsel for the parties the following order must be made in this case in view of the decision of this Court in : 1964(7) SCR 676 : 1965 (l)Cri LJ 360 when the birth certificate produced shows that the appellant was below 21 years of age at the time of the commission of the offence :-

"The order of the High Court is set aside and the High Court is directed to make an order under Section 6 of the Probation of Offenders Act, 1958 and if it so desires remand the case to the Sessions Court or the trial court for doing so. The appeal shall stand allowed accordingly. The appellant who was released on bail by this court can apply to the High Court now for being released on bail.

Ordered accordingly."

This decision of Darshan Kumar does not refer to Ramji Missars case (supra) which was by a larger Bench of 4-Judges. Darshan Kumars case was a 2-Judge Bench decision, Darshan Kumars case however makes a reference to a decision in Rattanlal v. State of Punjab in 1965(1) CriLJ. 360 = : AIR 1965 SC 444 . A perusal of Rattanlals case would show that it relies in its turn on the decision in Ramji Missars case. So it can be said that Darshan Kumars case also indirectly relies on Ramji Missars case, although the decision it gave was divergent from Ramji Missars case.

The second case of Ramlal and Anr. v. State of Punjab in JT 1988(1) SC 258 is also a short decision impoying that crucial date for reckoning the age would be the date of the commission of the crime. That was an appeal before the Supreme Court under the provisions of the Terrorists Affected Areas (Special Courts) Act. There were two appellants in that appeal. The conviction of appellant No. 1 in that appeal was converted from Section 302, Indian Penal Code to Section 304 (Part-I) ibid and his sentence of imprisonment for life was substituted by sentence of R.I. for 8 years. The conviction of appellant No. 2 under Section 324, Indian Penal Code was maintained. With regard to punishment on this appellant, the Supreme Court observed thus : "So far as appellant No. 2 is concerned, who is convicted under Section 324, Indian Penal Code it appears from the judgment and it is not disputed that at the time of the incident he was a boy of 20 years. Under these circumstances, he was entitled to the benefit of Section 6 of the Probation of Offenders Act." From these observations, it would appear that for the applicability of Section 6, the date of the incident, i.e., of the commission of the crime was considered to be the material date.

The foregoing account would show that there is an apparent conflict between the decisions of the Supreme Court - between the decision of Ramji Missars case on the one hand and Darshan Kumars case and Ramlals case on the other. It must be said that all the decisions of the Supreme Court are entitled to utmost respect. They are the law of the land. It is rare, if ever, that there would arise a conflict between the decisions of the Supreme Court. But when such a conflict does arise, and it may simply not be possible to follow both kinds of decisions, the rule of precedent is that decision given by larger Bench of the Supreme Court should be followed in preference to decisions by smaller Benches of that Court. This practice has crystallized into a rule of law. See Union of India v. K. S. Subramanian in : AIR 1976 SC 2433 and State of U. P. v. Ram Chandra Trivedi in : AIR 1976 SC 2547 . The rule of precedent appears also to be that decision of larger Bench of the Supreme Court has to be followed when subsequent decisions of smaller Benches of the Supreme Court, not noticing earlier larger Bench decision, are given. See Mattulal v. Radhelal in : AIR 1974 SC 1596 . If the conflicting decisions given by the Supreme Court are of co-equal Benches, it has been observed in Full Bench decision of Patna High Court in Amar Singh Yadav v. Shanti Devi in : AIR 1987 Pat. 191 that High Court must follow that judgment which states the law more elaborately and accurately. The question whether that decision is earlier or later is not material.

In the present case, the conflict is not between judgments of the Supreme Court of co-equal Benches. The decision in Ramji Missars case was given by four Judges. On the other hand, the decision in Darshan Kumars case was by two Judges and in Ramlals case by three Judges. The authority of Ramji Missars case must be said to be holding the field. It was not even referred to in later decisions of smaller Benches. It dealt with the question more elaborately and precisely. Its authority was in no way whittled down, impaired or eroded. Relying on that decision, it must be held, as I do, that crucial date for reckoning the age mentioned in Section 6(1) of theis the date when the trial Court has to deal with the accused for the purpose of punishment. Brother Shacheendra Dwivedi, J. has also taken this view in Devi Chamar v. State of M. P. in : 1993 MPLJ 698 , with which I am in entire agreement.

Coming back to the present case, on the above view, it must be held that Section 6 was inapplicable to the applicant since he was aged 22 years on the date he was found guilty by the trial Court. No legal injunction had therefore come into play forbidding imposition of sentence of imprisonment on the applicant. At the same time one cannot help noticing that the incident had taken place 15 years back. The applicant has already suffered about 32 days of imprisonment. It will also be improper and almost gratuitous cruelty to send back the applicant to jail to suffer the remaining short sentence of imprisonment, which will have a pernicious effect. Considering all these factors, it will, in the opinion of this Court, serve the ends of justice if the sentence of imprisonment visited on the applicant is reduced to the one already undergone by him and he is visited with some fine as a measure of chastisement.

The revision is partly allowed. The conviction of applicant Balkishan for offences under Sections 454 and 380, Indian Penal Code is maintained. The sentences of imprisonment for these offences are reduced to imprisonment already undergone by the applicant. In addition, the applicant is fined Rs. 150/- for each offence. In default of payment of fine, he shall undergo R.I. for 2 months for non-payment of each fine. The applicant is given two months time to pay the fine.