In Re: Chelliah Alias Mariappa Kudumban

Panchapakesa Ayyar, J.—The accused, a boy past 16, has been convicted u/s 302, Penal Code, by the Sessions Judge of Ramnad, and

sentenced to transportation for life with the recommendation for action under S. 10-A, Borstal Schools Act.

The facts are simple. The accused and the deceased a neighbouring boy of 12, were friends, though, like boys of that age, they were also now

and then quarrelling. On 26th March 1948, the accused called the deceased to go with him to collect some babul beans which he bad taken on

lease for a rupee. The two boys went together, the accused taking with him athorothi stick (a stick with a small iron bill hook at the end) for

plucking the beans. They were seen together gaily chatting and laughing and proceeding towards the babul tree by P. W. 7, the accused''s

Stepmother. That night, the deceased did not return home, so his relatives went about enquiring for him. Finally, the accused was questioned. At

first he said that the deceased had gone to a cinema, circus, etc. Later on, he said that the deceased had climbed up a palmyrah tree to gather

palmyra fruits and had fallen down and died. Still later, when questioned sternly by the assembled villagers, be confessed, in the presence of P.

Ws. 4, 5, 9,10 and 12 and others, that he and the deceased went together and gathered babul beans from the tree leased out by him, and that he

divided the collected beans into three equal shares, and offered one share to the deceased, taking two for himself, one by virtue of his lease and

one by virtue of his aiding in gathering the beans. The deceased, however, insisted that he should receive a full half share. The accused would not

agree. Thereupon, the deceased, in a huff, scattered the beans, saying that he did not want any. Then the accused gave him a slap on the cheek for

refusing the one-third offered to him. The deceased then threw a stone at the accused, and the accused hit him with the thoratti stick (M. O. 1) and

the deceased died of that one blow; being afraid of the consequences, the accused said that he threw the dead body of the deceased into an

adjoining well. He showed the assembled villagers the corpse of the deceased in that well; that was the first time that anybody knew that the

deceased''s corpse was in that well. The clothes of the accused were also seized, and they were found stained with human blood. The prosecution

suggestion is that the blood was that of the deceased.

The learned Counsel for the appellant urged that the offence had nut been brought home to the accused and especially the fatal blow covered by

injury no, 8 which, even according to the doctor (P. W. 1) could have been caused by a fall. We too are of the opinion that though the quarrel is

proved and the infliction of some of the injuries on the deceased, including the grievous injury on the jaw, is proved to have been caused by the

accused, there is to satisfactory proof that the fatal injury injury No. 8 on the deceased was dealt by the accused, and that it might very well be that

the deceased ran away after receiving some injuries and fell down and sustained injury No. 8 and died. In these circumstances, we set aside the

conviction of the accused u/s 802, Penal Code and substitute for it a conviction u/s 826 of the Code.

It is clear to us from the very facts proved in this case that the accused is an adolescent offender with criminal tendencies. Considering the entire

circumstances, we are of opinion that the proper order to pass in this case is to direct the accused u/s 8, Borstal Schools Act. to be detained in the

Borstal school, Palamcottah, for a period of five years from the date of the lower Court''s conviction. We are of opinion that the very fact that this

young boy dealt such injuries to the deceased for such a petty reason and threw the dead body into the well, will show pronounced criminal

tendencies and propensities in him. We also consider that it is somewhat inequitable to send adolescents with records of thefts, cheatings and

criminal tendencies of that type alone to the Borstal School, and to send adolescents with different criminal tendencies as here, to the ordinary jail,

with the far greater hardships involved and the lesser facilities for reformation and of settlement in life by teaching a useful occupation. All

adolescents with criminal tendencies will clearly be covered by Section 8, in our opinion. We have no hesitation in following the ruling in the Public

Prosecutor v. Nagappa Pujari, 1948 3 M. L. J. 630 : A. I. R, 1949 Mad. 160 in preference to the different views taken in some other rulings. The

age of the appellant is declared to be just past 16 at the time of his conviction by the lower Court.