(Trial referred by the Court of Session of the Vizagapatam Division for confirmation of the sentences of death passed upon the said prisoners in Case No. 10 of the Calendar for 1942 on 28-3-42 and appeal by the said prisoners against the said sentences of death passed upon them in the said case.)

Mockett, J.

I entirely agree with the conclusion at which my learned brother has arrived with regard to the correctness of the conviction and the sentence in this case and I do not intend to add anything to what he said with regard to the conviction. I, however, desire to express my explicit agreement with the observations that he has made on the subject of the sentence in this case. There is no doubt whatever that the authorities on the subject are abundant that the normal sentence for conviction for murder is t hat of death. S. 367 of the Code of Criminal Procedure makes it clear in Sub-Cl. (5) that if the accused is convicted of an offence punishable with death and the Court sentences him to a punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed. What reason could the learned trial Judge give in the case The facts were that two young men committed a cold-blooded and atrocious murder of a young child for the purpose of gain. No reasons arising out of the facts could be given. The only conceivable reason that could be given was that the criminals were young men. But my learned brother has pointed out to-day and recently in R.T. No. 82 of 1942 that it is not the law that a youngman e.g., between 16 and 18, should not in any circumstances be sentenced to death. This High Court has frequently said that youth is not a reason why the Court should not do its duty. For us to accede to the plea of the learned Counsel for the accused in this case would in my view amount to this, we should be indicating that a learned Sessions Judge had acted wrongly when in fact he had acted absolutely rightly and by inference would be suggesting that he had erred in doing his duty when in fact we should not be doing ours. This Court, it must be remembered, is concerned with the passing of sentence, not with its execution, and when it has passed or confirmed a sentence its duty is done.

Happell, J. :The appellants have been convicted by the Sessions Judge of Vizagapatam for the murder of a boy of eight years of age named Arjunamurti on the 17th of October last.

The accused are themselves youths of not much over sixteen. The 2nd accused was a farm servant in the employment of the father of the deceased boy. The boy was last seen by his father when he went out on the morning of the 17th to the fields to untie the cattle. At about mid-day that day, according to the evidence of the father as P.W. 2, the 2nd accused told him that the deceased had not been to the field to untie the cattle. From that time a search was made for the boy, but he was not found until two days later, on the 19th, when the witness P.W. 5, saw the corpse of a boy floating in a well in his field and reported the fact to P.W.

2. The boy was recognised by P.W. 2 as his son and he noticed that the ear-rings and the nose-ring that the boy had been accustomed to wear were missing. He made a report to the Village Munsif and in the report mentioned that the boy had been wearing jewels and that they had been torn off. The medical evidence leaves no room for doubt that the boy had been murdered. Six ribs on the left side of the chest had been fractured and the lower lobes of both the ears had been torn.

Except for the evidence of one witness P.W. 6 who says that he noticed the two accused following the boy Arjunamurti when he, the witness, saw him on the morning of the 17th on his way to his cattle shed and spoke to him, there is nothing which connects the two accused with the murder of the boy except their alleged possession the 1st accused of a red cloth and the 2nd accused of two ear-rings and a nose ring which belonged to the boy and the statements which, according to the prosecution, led to the recovery of these articles. The evidence is that the 2nd accused was first arrested on the 21st of October. When arrested, he made a statement in which he said that he and the 1st accused had dragged the boy into a shed and that there, while the 2nd accused held his legs, the 1st accused trampled on his neck and chest and killed him. After the boy had been killed the 1st accused forcibly removed the two gold ear-rings and the nose ring and kept them with him, while both of them took away the red cloth which Arjunamurti was wearing and hid it under a heap of manure. The 2nd accused took the police and the witnesses to this heap of manure and produced the cloth M.O.

1. The 1st accused was then arrested and he, after stating that he had forcibly removed the gold ear-rings and the nose-ring from Arjunamurti and had hidden them under a stone by the side of the house of a certain Pampanaboyina, took the police and witnesses to this place and produced the jewels. Both in the Committing Magistrates Court and in the Sessions Court the two accused denied all knowledge of the offence and asserted that they had made no confessions at all to the police. In face of the production of the cloth and the jewels these denials cannot be believed. There is no doubt that the jewels [M.Os. 2, 2(a) and 3] and the red cloth (M.O. 1) were the jewels and cloth worn by the child, when last seen since there was no cross-examination of the witnesses who spoke to the identification of the jewels and the ownership of them by the deceased boy. The learned Sessions Judge was therefore unquestionably right in accepting the evidence that the cloth and jewels were recovered in consequence of the statements made by the accused. Even, however, if the statements themselves are ignored, the evidence that the two accused were seen following the deceased that morning taken with the facts that a few days later a cloth belonging to the boy was found in the possession of the 1st accused and jewels which the boy had been wearing were found in the possession of the 2nd accused, in default of any reasonable explanation, would lead inevitably to the conclusion that the accused are guilty of the murder of the boy. There can be no doubt therefore that the conviction of both the accused for murder was correct.

The learned Sessions Judge sentenced both the accused to death. It has been pressed on us that in view of their ages we should take a merciful view and commute the sentence of death to a sentence of transportation for life. It will be as well here to refer to the evidence relating to the ages of the accused. The 1st accused appears himself to have given his age as 18 in the Magistrates Court and as 17 in the Sessions Court while the 2nd accused has given his age as 17 in the Magistrates Court and 17 again in the Sessions Court. The learned Sessions Judge was apparently not satisfied that the ages of the accused had been correctly given and he quite rightly had medical evidence on the subject taken. A witness examined as P.W. 1, the Radiologist attached to King George Hospital at Vizagapatam, gave it as his opinion that both accused 1 and 2 were between 16 and 17 years of age and that he was positive that they were above 16 years of age. He said he was positive that they were above 16 years of age because the fusion of the upper end of the ulna bone had taken place in the case of both the accused, a fusion which takes place on the completion of 16 years. In cross-examination he stated that in the case of both the accused bones which ought to fuse at 18 were beginning to fuse already, showing clearly that they were above 16 years of age. T he general effect of his evidence as a whole therefore seems to be that the two accused were both of them certainly over 16 years of age and that they might have been as much as 1

8. S. 22 of the Madras Childrens Act provides that no child or young person shall be sentenced to death. A child for the purpose of the Act is a person under the age of fourteen years and a young person is a person who is fourteen years of age and under the age of sixteen years. There is no provision of law that sentence of death shall not be passed on a person of or above sixteen but not more than 18 years of age. I had occasion a few days ago to say in a similar caseR.T. No. 82 of 1942that to commute a sentence of death in the absence of any mitigating circumstances purely on the ground of the age of the accused was in effect to lay it down that persons of a certain age should never be sentenced to death, even though that was not the law. In the present case, there are no mitigating circumstances at all, and to commute the sentence of death because the accused are only sixteen or seventeen years of age would in fact be to extend the Childrens Act beyond the age which was contemplated by the Legislature. The prerogative of mercy in individual cases lies with the Provincial Government; and it is for the Legislature to amend the Childrens Act, if an amendment seems required, and to fix the age below which sentence of death shall not be passed at a higher level. It is not for us to usurp the functions of the Legislature. The convictions of both the accused are therefore confirmed and the sentences of death passed on them. The appeal is dismissed.