Shiv Dayal, J.
1. This is an appeal from the judgment of Shri Raina, Sessions Judge, Jabalpur, whereby the appellant has been convicted of the offence under Section 376, Penal Code, and sentenced to two years rigorous imprisonment. The learned Sessions Judge has directed that instead of undergoing his sentence he would be sent to a Reformatory School under the Reformatory Schools Act, 1897, and shall be detained there for a period of two years.
2. The accused is about 15 years of age. His mother died some years ago. He lives with his father. In the neighbourhood resides Kumari Budhia, a girl of about 8 or 9 years, with her parents. She often used to go to his house for playing. On 13th January 1965, at about 5 p.m., she went to his house to play with him (vide her cross-examination). At that, time there was no one in his house. He took her in a room, lay her down and committed sexual intercourse. On medical examination, the following injuries were found on her person:
'(1) A superficial abrasion on the inner side of both the labia minora, size 1/10' x 1/10'. It was red, tender and painful. There was no bleeding or discharge. Both the labia minora were swollen.
(2) A small superficial laceration was present on the hymen at 6O'clock position. There was no bleeding from the laceration. It was painful to touch and swollen' Dr. (Kumari) Urmila Gour, P. W. 8) says that both the labia minora were normal. There was no redness, tenderness or swelling. There were no marks of seminal stains over pubes or thighs. There was no injury on any other part of her body. These facts are not in dispute. He made a clean breast of his guilt at all stages of the trial, although the learned Sessions Judge did not deem it fit to convict him on his plea of guilty. However slight was the penetration, the accused is guilty of rape, in the eye of law.
3. All that is urged by Shri Harshey, learned Counsel for the appellant, is that the accused should be dealt with under Section 31(1) of the Reformatory Schools Act rather than under Section 8(1). They read thus:
'8 (1) Whenever any youthful offender is sentenced to transportation or imprisonment, and is, in the judgment of the Court by which he is sentenced, a proper person to be an inmate of a Reformatory School, the Court may, subject to any rules made by the State Government, direct that, instead of undergoing his sentence, he shall be sent to such a school, and be there detained for a period which shall be not less than three or more than seven years'.
'31 (1) Notwithstanding anything contained in this Act or in any other enactment for the time being in force, any Court may, it is shall think fit, instead of sentencing any youthful offender to transportation or imprisonment or directing him to be detained in a Reformatory School, order him to be-
(a) discharged after due admonition, or
(b) delivered to his parent or to his guardian or nearest adult relative, on such parent, guardian or relative executing a bond, with or without sureties, as the Court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding twelve months.'
4. The peculiar facts and circumstances of this case are that the accused is under 15. As has been found, he had always been of good character and good behaviour. There had never been any complaint against him of misconduct from any quarters. He had had schooling upto the seventh class but as his father could not afford for further education, he was withdrawn from the school and worked with his father. The prosecutrix lived in his neighbourhood since her birth and it was usual for them to play together in his house. The learned Sessions Judge has rightly concluded that the accused indulged in the sexual act without employing any force or restraint on the girl, who seems to have submitted to it willingly without knowing what he was doing; that as soon as she complained of pain, he abandoned the act and allowed her to go; that the accused had no moral training and committed the act on account of curiosity and weakness of an adolescent mind; that the act was due to indiscretion of an immature mind; and that the accused was otherwise well behaved.
5. But the question is whether the provisions of the Reformatory Schools Act apply to the case of an offence, the sentence for which may extend to imprisonment for life. The offence under Section 376, Penal Code, is such an offence. Before any provisions of the Reformatory Schools Act can be invoked, the offender must be a 'youthful offender' within the meaning of Section 4(a) of that Act, which is in these words:--
' 'Youthful offender' means any boy who has been convicted of any offence punishable with transportation or imprisonment ..... and who, at the time of suchconviction, ..... was under the age of sixteen years.'
Sending of a first youthful offender, whose antecedents are not shown to be bad, to an ordinary prison may have the effect of making him a hardened criminal. It is with that object that diverse provisions are made in certain laws which provide for other suitable forms of punishment. The intention of the law, as manifests itself in the definition of youthful offender in the Reformatory Schools Act, is that an offender under the age of 16 years should not be sent to anordinary prison. An essential ingredient of this definition is that the offence must be punishable with 'transportation or imprisonment'. It is worthy of note that in the said interpretation clause, or any other section of the Act 'transportation' was not defined nor qualified by prescribing any term, so that an offence punishable with transportation for life was within the purview of that definition. To put it differently, irrespective of the nature of the offence, whenever transportation or imprisonment could be awarded as punishment, and the sentence was in fact so awarded to boy under 16, the Court had the discretion, having regard to the facts and circumstances of the case, to exercise its powers under Section 8 or, for that matter, under Section 31.
Section 53 of the Penal Code (before Act No. 26 of 1955) read thus:--
'53. The punishments to which offenders are liable under the provisions of this Code are:
x x x x x Fourthly,-- Imprisonment, which is of two descriptions namely:
(1) Rigorous, that is, with hard labour;
(2) Simple. x x x x x
There also, 'transportation for life' was not enlisted as a separate category from 'transportation'. It would thus appear that the word 'transportation' in Section 4(a) of the Reformatory Schools Act, included transportation for life, so that the offence under Section 376, or any other offence which was punishable with transportation for life, was also within the ambit of that definition. This, in my opinion, was the true position of the law as it stood before the enactment of the Code of Criminal Procedure (Amendment) Act. No. XXVI of 1955.
6. By the Code of Criminal Procedure (Amendment) Act, No. 26 of 1955, 'transportation', as a form of punishment, was abolished. The Schedule to the Act (see Section 117) amends all provisions wherever the word 'transportation' occurred in the Penal Code and other laws for the time being in force. In a nutshell :--Penal Code
(a) In section 53, for the words 'Secondly, -- Transportation', the words 'Secondly,--Imprisonment for life' were substituted.
(b) In all Sections wherever the expression 'Transportation for life' occurred, the words 'imprisonment for life' were substituted.
(c) In certain Sections, the expression used was 'transportation for life or any shorter term'. They too were substituted by 'imprisonment for life.'
(d) The word 'transportation' was substituted by the expression 'imprisonment for life'.
Other Laws (paragraph 2)
(A) As regards construction of reference to 'transportation for life' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law has to be construed as a reference to 'imprisonment for life'
(B) Any reference to 'transportation for a term or to transportation for any shorter term' is to be omitted.
(C) Then paragraph 2 (4) of the Schedule runs thus:--
'Any reference to 'transportation' in any other law for the time being in force shall. -
(a) if the expression means transportation for life, be construed as a reference to imprisonment for life:
(b) If the expression means transportation for any shorter term, be deemed to have been omitted.'
It will be quite clear from the manner in which the provisions of the Schedule have been quoted above, that in the provisions of the Penal Code, the expression 'transportation for life or any shorter term' and the word 'transportation' simpliciter have been substituted by the expression 'imprisonment for life'. But as regards other laws (a) 'transportation for life' has been substituted by imprisonment for life'; (B) 'transportation for a term or transportation for any shorter term' has been omitted; and (C) whenever the word 'transportation' simpliciter occurs, it has to be determined whether in the particular Act the word 'transportation' means 'transportation for life' or 'transportation for any shorter term,' It is obvious enough from the language of paragraph 2(4) of the Schedule that the word 'transportation' simpliciter, as used in any other law may mean either (1) transportation for life; or (2) transportation for any shorter term. In the latter case, it has to be omitted, otherwise, it has to be read as 'imprisonment for life.'
7. The crux of the matter, therefore, is whether the word 'transportation' in Section 4(a) of the Reformatory Schools Act, has by virtue of the amending law, been substituted by 'imprisonment for life' In the Reformatory Schools Act, the expression 'transportation' has not been defined nor 'any shorter term' has been prescribed. Since the main object and purpose of the Reformatory Schools Act is to provide for a substituted form of punishment, the word 'transportation' occurring in Section 4(a) should be read to have the same meaning as 'transportation' in Section 53, Penal Code. In this context, it may be recalled that for all kinds of expressions where 'transportation' occurred, the expression 'imprisonment for life' has been substituted in the Penal Code. It was observed in Kishorilal v. Emperor 72 Ind App. 1 : (AIR 1945 PC 64V that 'transportation' was in truth a name given in India to the sentence for life. In G.V. Oodse v. State of Maharashtra, AIR 1961 SC 600, it is observed:--'The word 'transportation' was not defined in the Penal Code, but it was for life with two exceptions.'
On that analysis, the words 'imprisonment for life' must now be read for the word 'transportation' in Section 4(a) of the Reformatory Schools Act. It seems quite clear that where a provision employs the word 'transportation' simpliciter, in the absence of clear intention to the contrary, it means transportation for life. At this juncture, I would refer to three decisions. In Daljit Singh v. Emperor, AIR 1937 Nag 274, a boy of 14 years was convicted for murder and sentenced to transportation for life by the Sessions Court. The Division Bench, while confirming the conviction for murder, directed the accused to be detained in a Reformatory School for a period of four years. It was observed as follows :--
'The depravity in the case before us is not so innate. We have here to consider the case of a boy brought up in a comfortable home, a boy apparently of intellectual attainments above the average, but of a haughty and imperious disposition which has not been properly controlled, a boy who has been accustomed to treat the coolies with whom he inevitably comes in frequent contact as if they were beings of another order and bound to execute all his wishes without demur or question. Unaccustomed to having his desires thwarted and unfortunately having a lethal weapon in his hands at the time, he lost control of himself and used it with a fatal effect. The discipline of a Reformatory School may well prove salutary to such a youth, whereas it would have been ineffective in the case of a youth so depraved as Rama and Channoo. Where the course of sending a youth to a Reformatory School is open to us, and we are of opinion that the discipline there obtaining would profit the youthful offender, we consider it our duty to take action under the provisions of that Act rather than simply to affirm the sentence of transportation for life and leave the decision of the degree of clemency to be exercised to the Local Government.'
In Rama v Emperor (1908) 4 Nag LR 180 it was held that the Reformatory Schools Act is applicable to the case of a juvenile offender who has been convicted of murder and sentenced to transportation for life. In Ulla Mahapatra v. The King, AIR 1950 Ori 261, murder was committed by a boy of 12 years, who was sentenced to transportation for life by the Sessions Court. Panlgrahi, J., observed:--
'We uphold the conviction and maintain the sentence passed on him. In view, however, of the tender age of the appellant, we do not think it proper that he should serve the sentence of transportation for life in a jail which will only make him a hardened criminal and mar his future life. We have, therefore, arrived at the conclusion that the proper action to be taken in this case would be to recommend the detention of the appellant in a Reformatory School under Section 8, Reformatory Schools Act, (Act 8 of 1897)'.
Jagannadhadas, J. (as his Lordship then was) agreed and further observed that the accused was a youthful offender, although Section 302, Penal Code, is also punishable with death It is enough to satisfy the definition of 'youthful offender' in the Act, if the offence of which he is convicted is also punishable with transportation.
8. All the three decisions just cited support the view that 'transportation' in section 4(a) of the Reformatory Schools Act means 'transportation for life'. If that was not so, the provisions of that Act could not be applied to an offender, who was found guilty of murder under Section 302, Penal Code. Above all, if transportation was another name for life imprisonment, in 72 Ind App. 1 = (AIR 1945 PC 64) and AIR 1961 SC 600, what else could be the import of that expression In Section 4(a) of the Act and for which case was It meant? When, by virtue of the Amendment Act, No. 26 of 1955, the punishment if transportation was abolished and in Section 53, Penal Code, 'transportation' was substituted by 'imprisonment for life', there is nothing to show that the intention of the legislature was to deny the benefits of the provisions of the Reformatory Schools Act to an offender whom, before the amendment, the Court could give them.
9. But, In Gangaram v. State, Criminal Appeal No. 347 of 1962, D/- 28-10-1963-1964 MPLJ (SN) 24, it has been held that an offender who is guilty of an offence punishable with imprisonment for life is outside the purview of a 'youthful offender' within the meaning of the Reformatory Schools Act, inasmuch as, now, under Section 53, Penal Code, the punishment of imprisonment for life is a category different from the one providing punishment of Imprisonment, rigorous or simple. It has further held that an offence, though punishable with imprisonment for life, is not included in the offences referred to in Section 4 (a) of the Reformatory Schools Act, if it is also punishable with death.
10. If Gangaram (supra) has to be followed and in my opinion, considerations of judicial propriety and decorum so require -- the appellant cannot be given the benefit of either Section 31 or Section 8 of the Reformatory Schools Act. Probation of Offenders Act and Section 562, Criminal Procedure Code, are in terms, inapplicable. Having regard to the peculiar facts and circumstances of the case, as already set out, no judicial mind will agree to send the appellant to an ordinary jail even for a single day. He is present here. He has been brought from the Reformatory School, Seoni, where he has been for two and a half months in compliance with the order of the Sessions Court. He is a small lad with remarkable simplicity and innocence on his face and in his looks. He vividly describes to me the life and treatment in the Reformatory School He gets ordinarily good meals thrice in a day. He is provided with simple vet tidy clothes. He learns Sanskrit there. He is also taught the Ramayan. He is being trained to make tin utensils. He says he is not treated harshly there. Before the learned Sessions Judge he candidly confessed his misdeed. I have perused his statement which contains the whole truth and nothing but the truth. The learned Sessions Judge was entirely right in the conclusion he reached and the observations he made. I am convinced that the crime was the outcome of a momentary and sudden thrust of temptation. As at present advised, I do not feel persuaded to distinguish this case from Gangaram Criminal Appeal No. 347 of 1962 D/- 28-10-1963=1964 MPLJ, (Note) 24 (supra), on the strength of the Division Bench decision in Daljit Singh, AIR 1937 Nag 274 (supra). And, in view of the peculiarities of this case, interests of justice prevent me from referring it to a larger Bench, as that will mean keeping the appellant in unnecessary suspense. Confronted with this situation, the only just course is to reduce the sentence to one till the rising of the Court.
11. The appeal is partly allowed. While the conviction under Section 376, Penal Code, is maintained, the sentence is reduced to imprisonment till the rising of theCourt.