RATNAVEL PANDIAN, J.


Ganapathy aged about 18 in January 1980, the accused in Sessions Case No. 142/79 on file of the Court of Session, Tirunelveli, has directed this appeal challenging the judgment of the trial Court convicting him of an offence under section 302, Indian P.C., and sentencing him to undergo imprisonment for life and further recommending to the Government of Tamil Nadu for passing an order under S. 10-A of the Tamil Nadu Borstal Schools Act (Tamil Nadu Act V of 1926) (as amended by Tamil Nadu Act No. 15 of 1959) (hereinafter referred to as the Act), directing him to be transferred to a Borstal School and to be detained there for certain number of years out of the total period of imprisonment (imprisonment for life) imposed on him.


2. The accusation against the accused-appellant is that on 31-3-1979, at about 6.30 a.m., at Kuliyari village, he caused the death of Vadivelu, his step-brother, by dropping a big granite stone (M.O. 6) on his head. To substantiate the above charge, the prosecution examined P.Ws. 1 to 12, filed Exts. P-1 to P-17 and marked M. Os. 1 to 10. Ex. C-1 is the x-ray report and Ex. C-2 is the age certificate based on Ex. C-1.


3. The brief facts of the case, as disclosed by the oral and documentary evidence, can be stated as follows. One Thiruvali Thevar had three wives. The deceased is his son through his second wife while the accused is his another son born through his third wife. The deceased married P.W. 1 about five years ago and had a son. The accused was unmarried. Thiruvali Thevar, his third wife, the deceased, his wife P.W. 1 and the accused were all residing under a common roof in the east-west Pillayar Koil Street. It is a terraced house with a thatched roof on the first floor. One has to go to the first floor by climbing a ladder from the kitchen. M.O. 1 (Ammi) was in the kitchen. The accused was wayward and he used to commit petty thefts of paddy from his house and sell them. On many occasions P.W. 1 had reported the matter to her husband, the deceased, who had reprimanded the accused, the last of which was on 30-3-1979, i.e., the previous day of the occurrence, at about 10.00 a.m. On the same night, P.W. 2 and another had also found fault with the accused, and gave suitable advice. On that night, the deceased and the accused took their beds on the pial of the house of one Sankarasubramaniam, a police constable. At about 6 a.m. on the date of occurrence (31-3-1979), the deceased came to his house and slept, in his kitchen by the side of M.O. 1 P.W. 1 asked her husband to get up. At that time she was shocked to see a big granite stone (M.O. 6) falling on the head of the deceased from the upstairs. He immediately looked towards the upstairs and found the accused there. There was profuse bleeding through mouth and nose of the deceased, and the injured succumbed to the injuries instantaneously. P.W. 1 shouted that the accused Ganapathi had killed her husband by dropping the stone. The neighbours, viz., P.W. 2 who was standing in the front courtyard, and P.W. 3, who was then returning after taking water from a pump, found the accused coming out of the house through the front door-way and running toward west. Both P.W. 2 and P.W. 3, on being attracted by the hue and cry raised by P.W. 1 went to the house of the deceased and found him lying dead in the kitchen. Then P.W. 1 went to the Police Station which is at a distance of a furlong from the scene place and reached there at about 7 a. m. She gave Ex. P1, a complaint to P.W. 11, the Sub-Inspector of Police, who, on the basis of Ex. P-1, registered a case in crime No. 40/79 under S. 302, I.P.C. He prepared express reports and sent them to the concerned officials. Ex. P-15 is the printed first information report sent to the court of the Judicial Second Class Magistrate at Thenkasi. At about 7-10 a.m. he informed the matter to the Inspector of Police, Shencottah (P.W. 12) over the phone, and P.W. 12 reached Puliyur Police Station at about 7-40 a.m. and got a copy of Ex. P-15. Then he went to the scene place along with P.W. 11 and prepared an observation mahazar Ex. P-7 in the presence of P.W. 6. He drew a rough sketch of the scene, Ex. P-16. Thereafter, between 7-45 a.m. and 11 a.m., he held inquest over the dead body of the deceased, during which he examined P.Ws. 1 to 3 and others. Ex. P-17 is the inquest report. After the inquest he sent the dead body through P.W. 10 with a requisition Ex. P-5 to the medical officer attached to Thenkasi hospital for conducting autopsy on the dead body. At about 11 a.m. be seized M. Os. 1 to 3 and 6 to 9 under Ex. P-8 attested by P.W. 6.


4. P.W. 5, the medical officer, on receipt of Ex. P-5 from P.W. 12, contacted necropsy on the body of the deceased at about 4 p.m. on 31st March 1979 and found the following injuries;


(1) A cut injury, 1

"in length, with irregular margins, over the left pinna at the junction of the upper one-third and the lower two-thirds.


(2) A contusion about 1" *


in diameter, just behind the left, ear, over the mastoid region.


On internal examination, he found a fracture 2

"in length over the temporal bone below the patrons bones, extending laterally towards the lateral wall of the skull on the left side, and punctate haemorrhages over the surface and a deep deffused haemorrhage within the the brain matter on the left side. The two internal injuries corresponded to external injury No. 2 described above. Clotted blood was seen in the subdura and sub-arachnoid space over the left side. All the internal organs were pale. The medical officer is of the opinion that the deceased would appear to have died of shock and haemorrhage due to the internal injuries. Ex. P-6 is the post-mortem certificate. The doctor would further state that the injuries could have been caused due to the dropping of a stone life M.O. 6 from a height of 7 to 10 feet. While the injured was lying on the ground and that the injuries could have been caused at about 6-30 a.m. on 31st March 1979. Death in this case should have been instantaneous and the injuries were necessarily fatal. All the injuries, both internal and external, could have been caused by a single hit by the stone.


5. P.W. 10, the constable after the post-mortem examination, seized M. Os. 4 and 5 from the dead body and produced them at the Police Station P.W. 12 arrested the accused on 1st April, 1979 at about 8 a.m. near a bridge on the Baghavathipuram-Shencottoh road in the presence of P.W. 7 and another. When interrogated, the accused volunteered a statement, the admissible portion of which in Ex. P-9. In pursuance of Ex. P-9, the accused took P.W. 12 and others and pointed out P.W. 8 from whom M.O. 10, a gunny bag containing 10 kilograms of paddy, was seized under the mahazar Ex. P. 10. The accused was sent for remand. On 2nd April. 1979, the accused was sent to the court of the Judicial Second Class Magistrate, Ambasamudram (P.W. 4) with a requisition Ex. P. 2 from P.W. 12 for recording his statement under S. 164, Cr.P.C. Under the order of P.W. 4, the accused was produced before him, on 3rd April 1979, on which date the accused was given the preliminary warning Ex. P-3. Then, after observing all the statutory formalities and giving the accused sufficient time for reflection, P.W. 4 recorded the confession of the accused on 14th Aprl. 1979. Exhibit P-4 is the confessional statement given by the accused, along with the warning to him on the second day by the Magistrate. The Inspector further states that at a place 50 ft. away from the scene place there is a water tap on the western side and another tap on the eastern side at a distance of 200 ft. On 21st Aprl. 1979 P.W. 12 examined P.W. 5. It is the evidence of P.W. 9. Examiner of Copies attached to the Court of the Judicial Second Class Magistrate of Thenkasi, that M.Os. 1 to 9 were sent for chemical examination. Exts. P-13 and P-14 are the reports of the chemical examiner and the serologist respectively. After completing the investigation, P.W. 12 laid the the charge-sheet on 21st Aprl. 1979.


6. When examined under section 313, Cri.P.C., with reference to the incriminating pieces of evidence appearing against him, the accused would deny his complicity in the offence in question, though he would admit the relationship and the topography of the scene. He states that he did not throw the stone on the deceased; but it was true that P.W. 1 cried out. He denies his arrest and his having given a confession. He states that he was beaten by the Police and coerced to give the confessional statement.


7. The learned trial Judge, after accepting the evidence of P.Ws. 1 to 3, and placing reliance on Ex. P-4, has found the accused guilty under the charge and convicted him and sentenced him as aforementioned. Hence this appeal.


8. As the accused has not engaged a counsel of his own. Mr. K. N. Basha is defending the accused at the instance of the Madras District Committee for Legal Aid and Advice. The learned counsel took us through the recorded evidence very meticulously and contended that the evidence let in by the prosecution is grossly inadequate to sustain the conviction against the appellant-accused. Coming to the judicial confession of the accused, viz., Ex. P-4, it is submitted that the confession does not receive corroboration from independent source of evidence in its general particulars and secondly the incriminating portion of the confession is not supported by medical evidence and therefore it cannot from the basis of a conviction under this charge. Finally he argued that as P.W. 1 has admitted in her evidence that the accused had been secured even by 7 a.m. on 31st March, 1979, which evidence is diametrically opposite to that of P.W. 12 saying that the accused was arrested only on 1st Aprl. 1979 at about 8 a.m., the alleged recovery of M.O. 10 from the shop of P.W. 8 is a concocted one.


9. Before adverting to the arguments advanced by the learned counsel, we would first of all deal with the motive portion of the case. Admittedly the accused was residing along with the deceased, P.W. 1 and his father Thiruvali Thevar under a common roof in the east west Pillayar Koil Street and the house is a terraced one and the ladder for going to the first floor was inside the kitchen. According to the prosecution, the accused was a wayward and a spendthrift committing petty thefts of paddy from his house. In spite of the fact that he had been reprimanded on several occasions, he continued to commit petty thefts, the last of which was on 30-3-1979, i.e., the day prior to the ill-fated day. It is brought out in the evidence of P.W. 1 that on 30-3-1979, the deceased found fault with the accused for having committed theft of paddy and warned him in the presence of P.W. 2 and one Thirumalaiandi Thevar, who also joined P.W. 1 in reprimanding the accused. The accused went away saying that no one could find fault with him for removing paddy from his own house. According to the prosecution, the proximate motive for the commission of the offence is the warning and the reprimand given to the accused by the deceased in the presence of others. No doubt, the accused, who on 30th March 1979 took his bed with the deceased on the pial of one Vellathai (not examined), did not do any harm to the deceased. But, the accused had climbed the first floor of his house and had been waiting there till the deceased came to the kitchen so that he could drop the stone on the deceased from the first floor and put an end to his life. The question as to why the accused had chosen that hour and that mode of causing the death of the deceased, will not assume much significance, because we cannot delve into the mind of the accused and examine as to why he did not think of committing the murder even while the deceased was taking his bed by his side. Presumably, the accused would not have dared to commit the murder of his brother in the open pial of the house of Vellathai lest he would be caught red nhanded by others. On the other hand, he might have thought that if he could carry out his design by dropping the stone from the upstairs in a clandestine manner, he could easily escape from the place unnoticed.


10. So far as the occurrence proper is concerned, we have got the direct evidence of P.W. 1 and the evidence of P.Ws. 2 and 3 serving as a circumstantial piece of evidence P.W. 1 has deposed that when the stone M.O. 6 fell on the head of the deceased from the upstairs, she looked upwards through the passage leading to the first floor and found the accused there and thereafter saw the accused getting down from the upstairs through the front portion of the house and taking to his heels. P.Ws. 2 and 3 claim to have seen the accused running towards west at about 6-30 a.m., at which point of time simultaneously they heard the cry of P.W. 1 shouting that the accused was running after dropping a stone on the head of her husband (the deceased). In the cross-examination of these three witnesses nothing has been elicited to discredit their testimony. Hence, we accepting the evidence of these three witnesses, hold that the prosecution has shown that the accused was in the vicinity of the scene place and after dropping the stone, had left the scene house hurriedly towards west.


11. Apart from the evidence of these three witnesses, we have got the judicial confession of the accused given under Ex. P-4, which contains a wealth of material and in which the accused inculpates himself with the offence in question. A careful examination of this judicial confession, though retracted, receives corroboration in its general particulars from independent sources of evidence. In fact the accused in Ex. P-1 has stated that he had been reprimanded by P.W. 2, Thirumalaiandi Thevar and the deceased for having committed theft of his paddy, which he had sold to P.W. 8. He has also confessed that P.W. 1 saw him while he dropped the stone M.O. 6 from the upstairs and that he was also seen by P.Ws. 2 and 3 while he left the scene place. Therefore, this judicial confessions, which satisfies all the legal requirements, can be legally admitted in evidence and can found the basis for recording a conviction.


12. A criticism has been levelled against the prosecution case by the defence lawyer viz., that if the stone had been dropped from the upstairs, it would have crushed the head of the deceased completely, but inasmuch as the head had not been so crushed, it could not be said that the deceased was done to death in the manner spoken to by the prosecution witnesses. It is true that the medical officer had found a cut injury with irregular margin on the left pinna and a contusion just behind the left ear. On internal examination, there was fracture over the temporal bone and haemorrhage within the brain matter. Obviously, the stone could not have fallen straight on the head, but only on the left side of the head of the deceased and rested on the ground. It is common knowledge that whether the head would be completely crushed or not would depend upon the fact whether the stone had fallen right on the head or on the side portion of the head. In the present case, the stone had not fallen straight on the head, but on the left side, and that is the reason why the head had not been completely crushed.


13. For all the reasons stated above, we hold that the prosecution has convincingly and satisfactorily established the charge against the accused for the offence punishable under S. 302, I.P.C.


14. Now, the question that arises for our consideration is whether the order of the learned trial Judge sentencing the accused to undergo imprisonment for life and further recommending to the Government of Tamil Nadu for passing an order under S. 10-A of the Act, directing him to be transferred to a Borstal School where he is to be detained for a certain number of years out of the total period of imprisonment imposed on him, is sustainable, or whether the trial Judge should have straightway applied S. 8 of the Act and sentenced the accused to borstal detention.


15. The age of the accused is shown in his statement under S. 313, Cri.P.C., as 18 as on 23-1-1980. C.W. 1, the Radiologist who examined the accused both radiologically and physically, has opined that the accused has completed 19 years of age and is below 21 years of age as on 21st January, 1980. Therefore, it is clear that the appellant accused was, as on the date of the conviction, viz., on 25th January 1980, was not less than 18 and not more than 21 years of age. The definition of the term 'adolescent offender' as given in S. 2(1) of the Act, is as follows.


"In this Act, unless there is anything repugnant in the subject or context" Adolescent offender" *


means any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give security under S. 118 of the Cr.P.C. has failed to do so and who at the time of such conviction or failure to give security is not less than 18 or more than 21 years of age."


Section 8(1), coming under Part II of the Act under the heading" Committal to Borstal Schools

", deals with the power of the Court to pass sentence of detention on adolescent offenders in Borstal Schools, and it reads as follows" *


When it appears to a Court having jurisdiction under this Act that an adolescent offender should by reason of his criminal habits or tendencies, or association with persons of bad character, be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime, it shall be lawful for the Court, in lieu of passing a sentence of imprisonment, to pass a sentence of detention in a Borstal School for a term which shall not be less than two years and shall not exceed five years, but in no case extending beyond the date on which the adolescent offender will, in the opinion of the Court, attain the age of twenty-three years.


"To attract S. 8 of the Act, it must be established firstly that the person concerned is an adolescent offender within the meaning of S. 2(1) and secondly that such an adolescent offender, by reason of his criminal habits or tendencies or association with persons of bad character, should in the opinion of the Court be subject to borstal detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime. If these two conditions are satisfied, the Court having jurisdiction under this Act, may, in lieu of passing a sentence of imprisonment, pass an order of borstal detention.


16. An interesting question as to the interpretation of S. 8 and the conditions precedent for the application of the said section, arose in Public Prosecutor v. Nagappa Poojari, 1949 Mad WN (Cri) 6 : (1949- 50 CrLJ 656). In that case, the Sessions Judge who tried the accused refused to apply S. 8 of the Act, holding that there was no evidence that the accused had criminal tendencies or bad association as contemplated therein. Subba Rao, J., as he then was, speaking for the Bench while examining the interpretation given by the learned trial Judge, has observed as follows" *


The condition precedent to the application of S. 8 is that the adolescent offender should have criminal habits or tendencies or association with persons of bad character. If the learned Judge's interpretation of that S. 8 were to be accepted, it would mean that a person who has no criminal tendencies would be sent to the ordinary jail, whereas a person with criminal tendencies will be sent to the Borstal School. This interpretation would defeat the object of the Act itself. If a person without criminal tendencies is sent to a jail, there is greater danger of his contamination by his association which hard criminals, whereas the object of the Act is to send such people to a Borstal School, so that they may have good training and come out of it to become useful citizens. The words 'criminal tendencies' should not be given a narrow interpretation. If a boy had no criminal tendencies, he would not be convicted for any crime at all. The fact that the boy is convicted for one offence or other under the I.P.C. shows, in the view of the Court, convicting him that he has criminal tendencies. We would interpret the section to mean that whenever an adolescent was convicted of an offence, ordinarily he should be given the advantage of being put in the Borstal School so that by long association and training he would come out of the termination of the stay as a useful citizen of the country.


"Mack, J., while agreeing with the judgment of Subba Rao, J., has observed that a criminal tendency does not manifest itself only in acts involving dishonesty such as theft or cheating and that a person who, owing to lack of self-control or as a result of his environment, is unable to restrain himself and commits an offence of either grievous hurt or homicide by using a deadly weapon without regard to consequences, exhibits a criminal tendency, just as much as a person who steal and that it is difficult to lay down hard and fast conditions as to the type of adolescents who should be sent to a borstal school.


17. Section 8(2) deals with the statutory formalities to be observed by the Court before passing the order of borstal detention, and as per that provision, the Court should call for a report from the Probation Officer and consider the same or any other report or representation which may be made to it and also may make any further enquiry as it thinks fit as to the suitability of the case for treatment in a Borstal School, and shall be satisfied that the character, state of health and mental condition of the offender and other circumstances of the case are such that the offender is likely to profit by such instruction and discipline. It is within the discretionary power of the Court to communicate the substance of the report of the Probation Officer to the offender, thereby affording him an opportunity of producing such evidence as may be relevant to the matter stated in the report.


18. A pertinent question arises in this context, whether an accused, who stands convicted of an offence punishable under S. 302, I.P.C., can be deemed to be an adolescent offender within the meaning of S. 2(1) of the Act, so that S. 8 of the Act can be invoked in his case and his detention in a Borstal School ordered. The lawful sentence that can be passed under S. 302, I.P.C. is death or imprisonment for life. Now, we have to see whether the term 'imprisonment' occurring in Sections 2(1) and 8(1) of the Act would include within its ambit the punishment of imprisonment for life. To answer this question reference has to be made to S. 53 of the I.P.C. which categorizes the various types of punishment to which offenders are liable under the provisions of the Penal Code. The various categories of punishment listed in S. 53 are" *


Firstly, death


Secondly, imprisonment for life


Thirdly, (omitted)


Fourthly imprisonment which is of two descriptions, viz. (1) rigorous, that is, with hard labour, and (2) simple. Fifthly, forfeiture of property, and Sixthly, fine"


It may be noted that the punishment" imprisonment for life"now appearing in the second clause, is a substitution for the expression" transportation.


"by S. 117 of the Code of Criminal Procedure Amendment Act of 1955 (Act 26 of 1955) and it is distinct and different from the term "imprisonment" coming under the fourth clause, which may be either rigorous or simple. As per one of the ingredients of the definition of the term "adolescent offender" within S. 2(1) of the Act, a person should have convicted of any offence punishable with "imprisonment" falling under Clause (4) of S. 53. I.P.C. The punishment for a conviction under S. 302, I.P.C., is not imprisonment simpliciter falling within the definition of Clause (4) of S. 53, but "death or imprisonment for life" falling within Clauses (1) and (2) respectively of the said S. 53. Therefore, a Court having jurisdiction under this Act can order borstal detention of an adolescent offender under S. 8 of the Act only in cases where the offender would have been, in the opinion of the Court, otherwise liable for imprisonment simpliciter falling within Clause (4) of S. 53. I.P.C. In other words, if the offender is, in the opinion of the court, liable to be sentenced to imprisonment for life for the offence committed by him, then the Court cannot apply S. 8 of the Act and order his borstal detention. In such cases, the power is given only to the State Government under S. 10-A of the Act, which reads as follows" *


The State Government may, if satisfied that any offender who has been sentenced to transportation either before or after the passing of the Madras Borstal Schools (Amendment) Act, 1939, and who at the time of conviction was (not less than 18) not more than 21 years of age might with advantage be detained in a Borstal School, direct that such offender shall be transferred to a Borstal School, there to serve the whole or any part of the unexpired residue of the sentence. The provisions of this Act shall apply to such offender as if he had been originally sentenced to detention in a Borstal SchoolAn order may be made under this, section notwithstanding that the sentence of transportation has been subsequently commuted into a sentence of imprisonment.


"A mere reading of S. 10-A would show that the Legislature, in its wisdom, wanted to make a distinction between an offender falling within S. 10-A and an "adolescent offender" as defined in S. 2(1) of the Act


19. Now, S. 10-A has to be read along with S. 53-A, I.P.C., introduced by S. 117 of Act 26 of 1955. S. 53-A sub-section (4), which is relevant for the purpose, enacts 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 reference to imprisonment for life


(b) if the expression means transportation for any shorter term, be deemed to have been omitted."


The expression" transportation

"occurring in clause (2) of S. 53 of the Penal Code, as it stood then meant "transportation for life" and also transportation for any other term. For example, In Re P. O. Chidambaram Pillai (two separate decisions) 1909 (9) CrLJ 130 : 1909 (9) CrLJ 140 he was sentenced to transportation for six years and transportation for four years respectively. In this connection, see the report of the Joint Committee containing the notes on causes of the Bill, which was subsequently enacted into the Code of Criminal Procedure Amendment Act of 1955 (Act XXVI of 1955). Evidently, this was the reason why under S. 302 of the Indian Penal Code, as it stood before the 1955 amendment, the punishment provided was not "transportation" but "transportation for life, which expression was substituted by the words" imprisonment for life" *


by Act 26 of 1955. Now, as per S. 53-A, if the expression used meant transportation for any shorter term, that expression should be deemed to have been omitted. Therefore, the only meaning that could be given to the term "transportation" occurring in any law, is "transportation for life". The result is that the word "transportation" occurring in S. 10-A of the Act should be construed as "imprisonment for life". In this context, we would like to observe that it is for the State Legislature to amend S. 10-A suitably, taking into consideration the substitution of the term "imprisonment for life" in the place of "transportation" by virtue of S. 117 of Act 26 of 1955 and the new provision under S. 53-A of the Indian Penal Code.


20. Now, the distinction between S. 2(1) and S. 10-A (as construed by virtue of S. 117 of Act 26 of 1955 and S. 53-A, I.P.C.), can be understood and appreciated by referring to the following comparative table


------------------------------------------------------------------------ Section 2(1) Section 10-A ------------------------------------------------------------------------ An adolescent offender - An offender -


(1) who has been convicted of any (1) who has been sentenced to offence punishable with imprisonment for life, and imprisonment, and


(2) who, at the time of the (2) who, at the time of the conviction, is not less than conviction, was not less 18 and not more than 21 years than 18 and not more than of age. 21 years of age. ------------------------------------------------------------------------


The condition regarding the age in both the sections is the same, viz., that the offender should be within the age group of 18-21. The only different between the wordings in these two sections is that while under S. 2(1), the offender should have been convicted of any offence punishable with imprisonment, under S. 10-A the offender should have been sentenced to imprisonment for life. In this connection we may state the Statement of Objects and Reasons mentioned in the Bill for the insertion of S. 10-A (published in the Fort. St George Gazette dated 7th March, 1939) makes it clear that S. 10-A was introduced in order to remove the difficulty that had arisen due to the fact that the definition of the expression "adolescent offender" did not cover the case of persons sentenced to transportation and to empower the Government to transfer the said offenders also to the Borstal Schools in proper cases. Now, since the expression "transportation" should be construed as "imprisonment for life" the reasons mentioned in the Statement of Objects and Reasons referred to above would hold good even today while making a distinction between S. 2(1) and S. 10A. It may also be noted that even after Act 26 of 1955, S. 10-A has not been deleted from the Act and that could only be explained on the footing that in a case of imprisonment for life, it is the State Government which can act under S. 10-A and not the Court. At this stage, it would not be out of place to mention here that the term 'imprisonment' as used in the Tamil Nadu Children Act (Act IV of 1920), as amended by Tamil Nadu Act 37 of 1958, is wide enough to include within its ambit the term "imprisonment for life" unlike in the Tamil Nadu Borstal Schools Act21. In this context, we may refer to the decision rendered by a Bench of this Court consisting of Venkataraman and Maharajan, JJ., in Re Yakub Judgment of this Court in Crl. Appeal No. 1223/70 dated 2-12-1971, (Reported in 1972 Mad LW (Cri) 56) wherein it has been observed that the position will be different for the purpose of the Tamil Nadu Children Act, that is to say, "for the purpose of that Act (Act IV of 1920) there will be no difference between 'imprisonment' and 'imprisonment for life.'" *


The above Bench has made reference to and agreed with the view taken earlier by another Division Bench of this Court consisting of Anantanarayanan and Veeraswami, JJ. (as they then were), in Criminal Appeals Nos. 37 of 41 and 141 of 1960 dated 1-2-1961 Judgment of this Court in C.A. 37 to 41 and 141 of 1960, dated 1-2-1961. In the last mentioned case, the accused was aged about 17 years at the time of his conviction in 1959. The learned Sessions Judge had recommended to the State Government that he might be detained under S. 10-A of the Borstal Schools Act. In appeal, the Division Bench pointed out that the learned Sessions Judge had overlooked the fact that Section 10-A of the Act had been amended by Madras Act 15 of 1959 by substituting the words "not less than 18" for the words "not less than 16", which amendment took the case out of the purview of S. 10-A of the Act. Since there had already been an amendment of the Tamil Nadu Children Act by Act 37 of 1958 increasing the the maximum age of a "youthful offender" from 16 to 18, the case of the accused in that case to be within the ambit of the Children Act. Firstly, as per the provision under section 22 of the Children Act, no child or young persons could be sentenced to death or imprisonment, with a proviso that such a young person, if certified by the court to be of so unruly or of so depraved a character, may be sentenced to imprisonment. Secondly, Section 23(1) of the Children Act enacts that where any person who, in the opinion of the Court before which he is charged, is 12 years of age upwards, but less than 18 years of age is convicted of an offence punishable with imprisonment, the Court may, in addition to or in lieu of sentencing him according to law to any other punishment, order that he be sent to a senior approved school. The learned Judges in Crl. Appeals Nos. 37 to 41 and 141 of 1960 Judgment of this Court in C.A. 37 to 41 and 141 of 1960 dated 1st February, 1961, proposed to act under section 23(1) of the said Act. Objection was, however, raised to such a course by the learned Public Prosecutor on the ground that Section 23(1) covered only the case of an offence punishable under section 302. I.P.C., with death or imprisonment for life, and while doing so, he referred to the distinction in Section 53 between the terms "imprisonment for life" and "imprisonment". That argument was repelled by the Bench with the following observations :-


"But is should be remembered that imprisonment for life was substituted for the words 'transportation for life'. When the latter category of sentence was in vogue, the classification of punishment under the two heads aforesaid was intelligible. But once punishment by transportation for life is abolished, the question arises whether the intention nevertheless is to make a distinction between imprisonment for life and imprisonment for lesser periods. Normally, the word 'imprisonment' is of wide connotation. Merely because imprisonment for life is mentioned as a separate category in the" *


place of transportation for life, can it be said that imprisonment in the I.P.C. should be understood as only imprisonment other than imprisonment for life ? In our opinion such a distinction does not in the present context appear to make sense. In any case, we think that for purposes of Section 23(1), imprisonment contemplated by the section includes also imprisonment for life. Any other interpretation of the provision will lead to anomalous results, viz., that in a case where a youthful offender is convicted for an offence punishable with imprisonment for life, no other provision of the Act will be applicable to him. That could not obviously be the intention of Section 23, because the very object of the Act is to provide for the custody, trial, maintenance, welfare, education and character training of youthful offenders, and the care, protection, maintenance, welfare, education and character training of children any young persons who are uncontrollable or are in moral danger, or destitute, or in need of care and protection.


"Finally, in Re Yakub C.A. 1223/70 Judgment of this Court dated 2-12-1971 : (1972 Mad LW (Cri) 56) the Bench held as follows" *


The observations to the effect that the distinction between 'imprisonment for life' and 'imprisonment' does not make sense

"have to be confined to the context of the Children Act and cannot apply to the Borstal Schools Act. There is a difference between the two Acts on this point. Under the Borstal Schools Act, Section 10-A is still retained even after the provision in Central Act 26 of 1955 substituting the words 'imprisonment' wherever they occur. That shows that where the offence is punishable with imprisonment for life, it is the State Government alone which can act : the Court cannot act under section 8. In the Children Act there is no such provision corresponding to S. 10-A of the Borstal Schools Act and the Court itself is expected to act under S. 23(1) even in a case of imprisonment for life." *


The same view has been taken by a Division Bench of the Andhra Pradesh High Court consisting of Basi Reddy and Venkatesam, JJ., in Public Prosecutor v. Mohan Rao 1963 Mad LJ (Cri) 603. In that case, the accused aged about 19 was held guilty of murder and the Sessions Judge, applying Sec. 8 of the Madras Borstal Schools Act, ordered the detention of the accused in the borstal school till he attained the age of 23. A question arose whether the accused therein could be deemed to be an adolescent offender within the meaning of Section 2(1) of the Act and whether the order passed by the Sessions Judge applying Section 8 was valid and sustainable. In this context, the Bench, after examining the definition of the term 'adolescent offender' and referring to Sec. 53 of the I.P.C. observed as follows :-


"It will be seen that 'imprisonment for life', which has been substituted for 'transportation for life' by Section 117 of the Criminal Procedure Code (Amendment) Act, 1955, is distinct from and different to 'imprisonment' which may be rigorous or simple. Section 2(1) of the Act defines 'adolescent offender' as a person who has been convicted of any offence punishable with imprisonment. Section 302, I.P.C., is not an offence punishable with imprisonment simpliciter, but it is is an offence punishable with imprisonment for life or death. It would follow, therefore, that Section 8 of the Act can have no application to a case where a person has been convicted of murder, that is to say, of an offence punishable with imprisonment for life." *


Ultimately the Bench held that the case before them was a fit and proper one in which Section 10-A might be applied by the State Government.


22. Thus, it is clear that there is a vast difference between the scope and applicability of Section 8 and of Section 10-A of the Act, in that the Court can exercise its power only in cases where the sentence of imprisonment simpliciter falling under Clause (4) of Section 53. I.P.C., is to be imposed, and not in cases where the sentence of imprisonment for life falling under cl. (2) of Section 53 is to be imposed, in which cases only the State Government has got the discretion to order borstal detention under S. 10-A of the Act. (See Krishnaswami v. King 1948 Mad WN (Cri) 117 : 1949 (50) CrLJ 115) : Periaswami Asari v. King 1948 Mad WN (Cri) 157 : (1948- 50 CrLJ 240) and the judgments of this Court in Criminal Appeals Nos. 803/60 and 983/60 Judgments of this Court in Crl. Appeal No. 803/60 dated 25-10-1961 Judgment of this Court in Crl. Appeal No. 983/60 dated 30-1-1962, in which recommendations were made to the State Government under section 10-A of the Act in cases similar to the present one.


23. The next important question to be considered is as to the maximum period for which an offender to whom Section 10-A could be applied has to undergo detention consequent upon the introduction of Section 433-A, Cri.P.C. As per Section 8 of the Act, the sentence of detention in a borstal school shall not be less than two years and shall not exceed five years and in any case not extending beyond the date on which the adolescent offender will, in the opinion of the Court, attain the age of 23 years. Section 10-A does not prescribe any period, but would read that the offender coming under that provision shall serve the whole or any part of the unexpired residue of the sentence, viz., the sentence of imprisonment for life. Similarly, Section 10 gives power to the Inspector-General of Prisons, subject to the rules made by the State Government, to direct an adolescent offender undergoing imprisonment in consequence of a sentence passed against him, to be transferred from the prison to a borstal school to serve the whole or any part of the unexpired residue of the sentence.


24. Thus, it is clear that a person directed to be detained in a borstal school can be kept under borstal detention only for the maximum period provided under the Act, viz. till he attains the age of 23. Now, the question is, if an offender aged between 18 and 21, as in this case, is convicted of an offence under section 302, I.P.C., and sentenced to imprisonment for life and subsequently ordered to be detained in the borstal school by the State Government under S. 10-A whether he is or is not to be retransferred to the prison to undergo the unexpired portion of the sentence. As Section 433-A of the Cri.P.C. 1973, states that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, such person shall not be released from the prison unless he has served at least 14 years of imprisonment. Therefore, it would follow that in such cases, in offender, after attaining the maximum age up to which he can be detained in the borstal school, has necessarily to be transferred to the prison so that he could serve the unexpired portion of the sentence as per requirements of Sec. 433-A. Our attention was drawn to the decision of the Supreme Court in Kunwar Bahadur v. State of Uttar Pradesh where their Lordships, while examining the question whether an accused aged about 15 ordered to be kept under the United Provinces

Borstal Act, should surrender to serve the remaining sentence after having served five years in the Borstal institution, have expressed their view that the sentence of five years' detention in the institution will be equivalent even to a higher sentence of life imprisonment and therefore his surrendering to serve the remaining sentence does not arise. But, it is to be noted that in the above case the Supreme Court has not examined the impact of the new provision under section 433-A, Cri.P.C. obviously for the reason that the conviction in the said case was much earlier to the introduction of Section 433-A. But, the Supreme Court in Maru Ram v. Union of India has observed that Section 433-A, Cri.P.C., "does declare emphatically in imperative intendment to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the operative part of Section 433-A."At the same thim, the Supreme Court has further pointed out that" Sec. 433-A does not further cannot affect even a weebit the pardon power of the Governor or the President (under Arts. 151 and 72 respectively of the Constitution)." * Thus, it is clear that unless the President or the Governor chooses to give remission of the unexpired portion of the sentence by virtue of Art. 72 or 161, as the case may be, the person sentenced to life imprisonment has necessarily to serve 14 years' imprisonment and or that purposes has to be retransferred to the prison after completing the borstal detention. Therefore, in view of the present position of law laid down by the Supreme Court in Maru Ram's case the accused who stands sentenced to life imprisonment after the introduction of Section 433-A, Cri.P.C., cannot avail of the observation of the Supreme Court made in Kunwar Bahadur's case. 25. No doubt, there is an anomaly viz., the purpose for which the borstal detention was ordered would completely be defeated by such a retransfer to the prison, because the object of detention in pursuance of this Borstal Schools Act is for giving industrial training and other instructions and the persons so detained are subject to disciplinary and moral influences, as will be conducive to their reformation and the prevention of crimes. Only for the purpose of carrying out the above object, Section 4 empowers the State Government to make rules with regard to the treatment, maintenance, education (professional, vocational or technical training), control of inmates etc. To send back such a person after getting such a training, to the prison, thereby allowing him to mingle with the hardened, incorrigible and habitual offenders, would, in our view, completely nullify the reformation that would have been brought about with respect to the offender during his borstal detention. 26. In order to get over his situation, the Tamil Nadu Prison Reforms Commission, 1978-79, in their report, has made the following suggestion while dealing with the grievance of the young offenders kept under section 10 of the Borstal Schools Act. "But, after completion of their period is this institution they are sent back to the central prisons to complete the remaining term of their imprisonment. In consequence, the benefit of borstal training, gained by them is practically lost. A halt-way measure such as hostel scheme, which we are recommending in another chapter, will have to be arranged to avoid sending these offenders to the central prison again. In such hostels, these offenders may complete the remaining period of their sentence with minimum security arrangements and with ample facilities to secure employment in the vicinity." * The above suggestions of the Commission have been broadly accepted by the Government as per G.O. 2665. Home, dated 24-10-1979, and it is for the Government to implement those recommendations and remove the anomaly to the extent possible. Otherwise in view of the insertion of the specific provision under section 433-A in the Cri.P.C. 1973, Section 10-A of the Act will not bring about the desired effect and consequently the object of the Act will be practically defeated in cases of this nature. 27. In the result for the discussions made above, we hold that the judgment of the learned trial Judge, convicting the accused under section 302, I.P.C., and sentencing him to imprisonment for life and recommending to the Government under section 10-A of the Act to keep the accused under borstal detention for some period out of the total period of imprisonment, is quite valid and is accordingly confirmed and the appeal is dismissed.