In Re: Yakub

Venkataraman, J.—This is an appeal against the judgment of the learned Sessions Judge, Madras convicting the Appellant of the murder of one Doss Mudaliar by stabbing him with a knife on 11th June 1970 about 7 p.m. in Domming Kuppam near the Bay of Bengal in Santhome area and sentencing him to imprisonment for life. The Appellant is a young man of 19, is a fisherman by profession and a resident of the area which was inhabited by fishermen. He and witness Arokiam, P.W. 5 used to go to the high seas for fishing together and share the proceeds of sale of the fish caught equally. On 5th June 1970 they sold the fish caught by them for Rs. 7. According to the evidence of P.W. 5 he paid exactly half thereof to the Appellant for his share. But the Appellant returned sometime later and told him that it was short by eight annas. P. W. 6, the younger sister of Arokiam (P. W. 5) and Perianayagaswami, P. W. 7, the husband of P. W. 6 had come there from their place of Royapuram temporarily. P. W. 7 tried to assuage the quarrel between P. W. 5 and the Appellant by offering to pay the deficit of eight annas himself, but the Appellant refused the same saying that an outsider need not arbitrate and offer to pay. The Appellant seems to have been prone to abuse and excessive temper and he made some hot and pungent remarks against P. W. 7. This provoked a protest from P. W. 6. The Appellant unable to bear this protest, knocked out a tooth of P. W. 6. This was reported to Doss Mudaliar, the victim in this case, who was the maternal uncle of P. W. 5 and appears to have commanded some respect among the fishermen in the locality. Doss Mudaliar, P. W. 5 and P. W. 7 questioned the Appellant about his high-handedness in knocking out the tooth of a woman, but the Appellant would not listen to them and even threatened them with violence. Because he was of unruly temper they left the matter at that stage. However, according to the evidence of P. W. 1, the wife of Doss Mudaliar, the Appellant continued to indulge in abuse of Doss Mudaliar even three or four days later.

On 11th June 1970 about 7-15 p.m., P. W. 7 and P. W. 6 were standing in front of the portion where Arokia Mary, the paternal aunt of P. W. 7 was living. They had come to stay with her temporarily. That portion is shown as No. 10 in block 58 which had been built by the Housing Board to house the fishermen, though some of the fishermen like Doss Mudaliar and the accused had not yet vacated their huts and moved into the main building. The Appellant came there and stared at P.W. 7 and asked him whether he was going to make a complaint to the police about the previous violent act of the Appellant towards P. W. 6. P. W. 7 replied that he had not till then made a complaint but he would make one if the accused created further disturbance. The Appellant then whipped out a knife from his waist and proclaimed that he would finish off any one who dared to oppose him. Whirling the knife M.O. 1, the Appellant went towards his house in the northern side. P.W. 8 was a witness to this.

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[The discussion of facts is omitted�Ed.]

We therefore confirm the conviction of the Appellant of the offence of murder of Doss Mudaliar u/s 302 I.P.C. and also the sentence of imprisonment for life which is the minimum imposed by law.

We may state here that at the time of the conviction by the learned Sessions Judge on 22nd October 1970 the the Appellant was 19 but he had not yet completed 21. Hence he is not an "adolescent offender" within the definition of S. 2(1) of the Madras Borstal Schools Act, 1925, as amended by Madras Act 15 of 1959. According to that ''adolescent offender" means any person who has been convicted of any offence punishable with imprisonment, and who at the time of such conviction is not less than 18 and not more than 21 years of age. The term ''imprisonment for life'' which is itself a separate kind of punishment under Clause 2 of S. 53, I.P.C. different from imprisonment, rigorous or simple which is provided in Clause 4 of S. 53. Only the case of an adolescent offender has been specifically provided for in S. 8 of the Madras Borstal Schools Act, and in such a case after calling for the report from the probation officer the court may pass an order of sentence of detention of the adolescent offender in a borstal school. But S. 10-Aof the Act provides for a case like the present. It says that 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, nor 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 his sentence. By virtue of Act 26 of 1955 the word "transportation'' should be read as ''imprisonment for life''. That shows again that for the purpose of the Madras Borstal Schools Act, ''imprisonment for life'' is a separate kind of punishment from mere imprisonment and S. 8 of the Act which applies to imprisonment does not apply to a case of imprisonment for life. The latter class of cases has to be dealt with by the State Government. There is a decision of Horwill and Mack, JJ. in Krishnaswami, In re ILR 1949 Mad. 354, where action was recommended by the court to the State Government u/s 10-A of the Madras Borstal Schools Act where at that time the provisions for transportation for life was still there and had not been replaced by the words ''imprisonment for life''. The counsel appearing for the accused in that case conceded that S. 8 of the Act would not apply and the court proceeded on that basis. That was because the words occurring in S. 10-A were ''transportation for life'' and S. 8 dealt with only imprisonment. We think, however, that even after the amendment effected by Act 26 of 1955 by substituting the words "imprisonment for life" for the word ''transportation'' the reasoning in that decision still applies. It may be noted that even after Act 26 of 1995, S. 10-A has not been deleted from the Madras Borstal Schools Act. That could only be explained on the footing that in a case of imprisonment for life, it is the State Government which can act u/s 10-A and not the court.

At this stage we may remark that the position will be different for the purpose of the Madras Children Act (Act IV of 1920 as amended by Madras Act 37 of 1958). For the purpose of that Act, there will be no difference between imprisonment and imprisonment for life. That was what was decided by Anantanarayanan and Veeraswami, JJ. in C.A. 37 to 41 and 141 of 1960, dated 1st February 1961. In that case, the accused was found to be 17 years of age by the learned Sessions Judge at the time of his conviction in 1959. The learned Sessions Judge had recommended to the State Government that he might be detained u/s 10-A of the Borstal Schools Act. In appeal the learned Judges of this Court pointed out that the learned Sessions Judge had overlooked the fact that S. 10-A of the Borstal Schools Act had been amended by Madras Act XV of 1959 by substituting the words "not less than 18" for the words "not less than 16". The amendment took the case out of the purview of S. 10-A of the Borstal Schools Act. But there had been a corresponding amendment of the Madras Children Act, by Act 37 of 1958 increasing the maximum age of a "youthful offender" from 16 to 18. By virtue of that amendment, the case of the accused in that case came to be within the ambit of the Madras Children Act. There was firstly a provision in S. 22 of the Act enacting that no child or young person shall be sentenced to death or imprisonment. Secondly S. 23(1) of the Act (with a proviso excepting a young person of very unruly or depraved character) enacted that when a person between 12 and 18 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 proposed to act under that provision. Objection was, however, raised to such a course by the learned Public Prosecutor on the ground that S. 23(1) covered only a case of offence punishable with imprisonment but not a case of an offence u/s 302, I.P.C. punishable with death or imprisonment, for life. The learned Public Prosecutor seems to have referred to the distinction in S. 53, I.P.C. between imprisonment for life and imprisonment. The argument was replied with the following observations:

But it 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 impriment for life is mentioned as a separate category in the place of transportation for life, can it be said that imprisonment in the Indian Penal Code 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 S. 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 S. 23, because the very object o the Act is to provide for the custody, trial, maintenance, welfare, education and character training of youthful offenders and the case, protection, maintenance, welfare education and character training of children and young persons who are uncontrollable or are in moral danger, or destitute, or in need of care and protection.

The learned Assistant Public Prosecutor has also referred to two unreported judgments of a Bench of this Court (Anantanarayanan and Venkatadri, JJ. in C.A. 803 of 1960 dated 25th October, 1961 and C.A. 983 of 1960 dated 30th January, 1962, where recommendation was made to the State Government u/s 10-A of the Madras Borstal Schools Act in cases similar to the present but there was no discussion of the legal point.

A copy of this judgment will be sent to the State Government for such action as they may deem fit.