K.P. Mohapatra, J.
1. This appeal is directed against the order passed by the learned Sessions Judge, Puri affirming the order of conviction and sentence of the petitioner for an offence punishable under Section 379 of the Penal Code ('I..P.C for short).
2. The prosecution case in brief is that on 18-10-1977 the petitioner committed theft of a bicycle belonging to P.W. 1 which was kept in front of his house. On the same day when the petitioner offered the stolen bicycle for sale to P.W, 8, the latter entertained suspicion, detained the petitioner and informed P.W. 9, Assistant Sub-Inspector of Police at Chandanpur Out Post. P.W. 9 came, seized the bicycle by seizure-list (Ext. 4) and arrested the petitioner, against whom after close of investigation, charge-sheet was submitted for an offence under Section 379 I..P.C.
3. The plea of the petitioner was denial of theft of the bicycle. The learned trial Court relied on the evidence of P.Ws. 1, 4, 8 and 9, accepted the prosecution evidence and convicted the petitioner under Section 379 I.P.C. and sentenced him to undergo rigorous imprisonment for six months. On appeal the learned Sessions Judge maintained the conviction and sentence.
4. During hearing of the revision learned Counsel for the petitioner placed the evidence of P.Ws. 1, 4, 8 and 9. It appears from the evidence of P.W. 1 that the bicycle which was seized by Ext. 4 belonged to him and it was stolen from the front of his house. P.W. 4 was the neighbour of P.W. 1. From his evidence it appears that the petitioner committed theft of the bicycle and left the place. He was a boy of 13 years of age when he gave evidence before the trial Court. Learned Counsel for the appellant referred to Section 118 of the Evidence Act and urged that the witness was of tend.;r age and the trial Court did not satisfy itself by putting questions to ascertain that the witness was capable of understanding the questions put to him. It indeed appears from the records that questions were not put to the witness for the purpose of ascertaining the fact that he was capable of understanding the questions put to him. But from the reading of the evidence of P.W. 4, it is crystal clear that he was capable of understanding the nature of questions put to him and the facts he deposed. As a matter of fact he gave clear statements in examination-in-Chief and cross-examination. Therefore, there was no irregularity for non-compliance of Section 118 of the Evidence Act. The evidence of P.W. 8 is important. He stated that while he was coming to his Dhana Ada at about 8 a.m., he saw the petitioner with a bicycle. The petitioner offered the bicycle to him for sale for Rs. 50/-. At this, his suspicion arose and so he called the petitioner to the Dhana Ada. He brought the matter to the notice of P.W. 9 who was then serving as the Assistant Sub-Inspector of Police, Chandanpur Out Post. P.W. 9 came and took the bicycle, as well as, the petitioner with him to the Out Post. This witness is a stranger both to P.W. 1 and the petitioner. He had no reason to grind any axe against the latter. Therefore, in ordinary course he was not expected to speak falsehood so as to implicate the petitioner in an offence of theft. In my view he was a reliable witness and his evidence was rightly accepted. From his evidence an inference can be drawn under Section 114 of the Evidence Act to the effect that when the stolen property, namely, the bicycle was seized from the possession of the petitioner soon after the theft thereof was committed, a presumption can be drawn according to illustration (a) that he was either the thief or the receiver of the goods knowing it to be stolen. P.W. 9 was the Assistant Sub-Inspector of Police, of Chandanpur Out Post who arrived at the Dhana Ada of P.W. 8 soon after receiving information and seized the bicycle by Ext. 4 and arrested the petitioner. From the aforesaid evidence the learned Courts below recorded the finding that the petitioner had stolen the bicycle belonging to P.W. 1 from the front of his house. It is well settled that the concurrent finding of guilty by the Courts below which has not been shown to be erroneous or perverse is not available to be assailed in revision. Therefore the order of conviction is affirmed.
5. Learned Counsel appearing for the petitioner urged that on the date of conviction by the trial Court the petitioner was aged less than 21 years of age. He was a student of the Utkal Sangeet Mahavidyalaya. He was not a habitual offender and no previous conviction for any offence was proved against him. He belonged to a village in Cuttack district and was living in Puri town. Perhaps on account of dire necessity and poverty he committed the offence. If at this young age he undergoes the sentence in prison he may come in contact with bad characters in which case he is likely to turn into a habitual criminal beyond redemption. In order that this juvenile offender should lead a normal crime free life and earn his livelihood as a peaceful citizen, he should be given opportunity to redeem himself by application of the provisions of Section 360 of the Cr. P.C. ('Code' for short). The record indeed reveals that when the crime was committed he was a boy of tender years and was described by P.Ws. 4 and 8 as a 'boy'. He offered the stolen bicycle for sale to P.W. 8 for a paltry sum of Rs. 50/- which indicates that he Was in dire necessity of money. It was not unlikely that on account of such necessity he was impelled to commit the crime because, having left his village in Cuttack district he was staying in Puri town. It appears from his statement recorded under Section 313 of the Code that he was aged about 20 years and was a student of the Utkal Sangeet Mahavidyalaya. No previous conviction of any offence was proved against him. The evidence of P.W. 8 shows that he did not make any attempt to run away, which indicates that he was a novice in crime. If at this formative stage of his life and career, the petitioner lives in the jail, there is every possibility of his coming in contact with bad characters and criminals and may be he will be baptised into a life of crimes beyond correction. In such circumstances, in my opinion, it is a fit case for application of the provisions of Section 360 of the Code. In this connection, reference may be made to three decisions reported in : 1979CriLJ841 , Bishnu Deo Shaw v. Sate of West Bengal : 1979CriLJ907 Surendra Kumar v. State of Rajasthan, and a recent decision of this Court reported in (1985) 59 Cut LT 297 : 1985 Cri LJ 1591, Saradhakar Sahu v. State of Orissa. In the decision of Bishnu Deo Shaw (supra) it was observed as follows:.Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and, to state 'special reasons' if it does not do so. In the context of Section 360, the 'special reasons' contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.
In the case of Surendra Kumar 1979 Cri LJ 907 (supra) it was held as follows:
It was then submitted that the appellant was below the age of 21 years at the time when the offence is alleged to have been committed, therefore, he should be given the benefit of Section 360, Cr. P.C. which is mandatory where an offence is punishable with fine or with imprisonment with a term of seven years or less. The case of the appellant undoubtedly falls within the four corners of Section 360.
In the case of Saradhakar Sahu 1985 Cri LJ 1591 (Orissa) (supra) the principles laid down in Bishnu Deo Shaw's case 1979 Cri LJ 841 was followed and was held as follows:
Where it comes within the purview of Section 360 or the Probation of Offenders Act or involves a youthful offender under any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders and the Court refrains from dealing with the offender under Section 360 or under the provisions of the Probation of Offenders Act, the law casts a duty on the Courts to record special reasons in its judgment for not doing so. Section 361 is mandatory. What was observed by the Supreme Court on Section 361 vis-a-vis Section 360 of the Code of Criminal Procedure is equally applicable to Section 361 vis-a-vis the Probation of Offenders Act.
6. It is therefore crystal clear that the latest thinking in the science of criminology supported by legislative intendment is against punishment of incarceration in jail of youthful offenders for the reason that once they take to a life of crime on account of despair and in coming in contact with hardened criminals, the path of correction is closed. It then becomes difficult for them to lead a normal life free from crimes. Therefore, the policy is to reform and rehabilitate them so as to give them a chance to lead an honest life and become useful to their own family, as well as, to the society at large.
7. In these circumstances, the sentence of imprisonment imposed on the petitioner is suspended and he is released on probation of good conduct by entering into a bond of Rs. 2,000/- with one surety for the like amount for a period of two years to the satisfaction of the Sub-Divisional Judicial Magistrate, Puri to appear and receive the sentence when called upon during the said period and in the meantime he shall keep peace and be of good behaviour. The conviction is accordingly sustained. The rule of enhancement is discharged.