Basi Reddy, J.:— These two revisions, one arising out of a taken-up matter and the other filed by the public Prosecutor on behalf of the State, are directed against the manifestly illegal sentence passed by the learned Additional Sessions Judge of East Godavari in Sessions Case No. 17 of 1962 on his file. After finding the accused in that case (Ravada Mohan Rao) guilty of the offence of murder with which he was charged, the learned Judge proceeded to deal with the accused under Section 8 of the Madras Borstal Schools Act, 1926 (here in after referred to as the Act), and the operative portion of the order runs thus:—

“Now the question of sentence arises. The accused has stated that his age is 15 or 16 years and P.W 12 (doctor) after examining him in the Court, has given his opinion of age as 19 years on the basis of secondary sexual characteristics and the number of teeth. From the outward appearance also he appears to be 19 years old as has been recorded by me in the statement under S. 342 Cr. P.C Thus the accused comes under the definition of “adolescent offender” under S. 2(1) of the Madras Borstal Schools Act (Act V of 1926). In lieu of passing a sentence of imprisonment for life under S. 302 I.P.C in the absence of eye-witness to the actual occurrence, under Sec. 8 of the said Act I sentence the accused to detention in the Borstal School. Visakhapatnam, for a period of four years till he attains the age of 23 years. I declare his age to be 19 years on this day.”

2. It is urged by the Public Prosecutor that the learned Judge has fallen in to a grave error firstly, in applying section 8 at all to this case and secondly, in thinking that because the accused had satisfied the requirement as to age and there were no eye-witnesses to the actual occurrence, the provisions of the Act could be invoked. Since the notice given to the accused would amount to one calling upon him to show cause against the enhancement of sentence, we have heard the learned advocate for the accused on the merits and have gone through the evidence, to satisfy ourselves whether the conviction itself is correct. We have no doubt whatever that, on the evidence adduced in the case, the guilt of the accused has been proved beyond a shadow of doubt.

3. The facts of the case are briefly these:

The accused and the murdered man (Pathan Basheeruddin alias Baji) were working in the railway canteen at Anaparthi. The owners of the canteen were P.W 1 and his son, P.W 2. Baji was aged about 25 years at the time of his death while the accused, who gave his age as 15, was found by the doctor on medical examination to be 19 years of age, and the learned trial Judge has also found that that was the correct age on the date of conviction. The occurrence took place on 6-2-1962 at about 2-00 A.M Baji used to work in the canteen, preparing tea and refreshments and serving them to customers. On 6-2-1962, a little before 2-00 A.M the accused went there. P.W 1, the master of the accused and Baji, happened to be there and asked the accused why he had come at that part of the night. The accused told him that he had a severe head-ache and wanted some tea. P.W I told Baji to give some tea to the accused and he did so. After a little while, both Baji and the accused went out to fetch one Suryanarayana who had to relieve Baji at 3-00 A.M Some fifteen minutes thereafter. P.W 1 heard agonising cries coming from the kitchen, which is situated at a distance of about 50 yards from the canteen. P.W 1 recognised the cries as those of Baji and he could even make out that Baji was crying out that Mohan Rao (the accused) was killing him. On hearing the cries, P.W 1 woke up P.W 4, a servant of his, who was sleeping there and told him to go and find out what the matter was. P.W 4 went to the kitchen from where the cries were coming. He saw a country lamp burning there and noticed that Baji was lying in a pool of blood, with a number in inc???sed injuries. P.W 4 asked him how he got the injuries, to which Baji replied that the accused had brought him there saying that a girl was waiting for him and asked him for Rs. 2/- for having a drink, but when he refused, the accused had hacked him. Baji requested P.W 4 to bring P.W 1, P.W 4 went back and informed P.W 1. of what he had seen and learnt, and after taking P.Ws 2 and 3 with them, all of them went to the kitchen. On being questioned by them, Baji told them that the accused had stabbed him. Just then, P.W 2 and the others noticed the accused going at some distance towards Samalkota canal. P.Ws 2, 3 and 4 ran after the accused. After chasing him for some distance, P.W 2 overtook the accused and caught him. At that time, the accused was having a boold-stained Page: 482knife (M.O 1) in his hands. He was then marched off to the police station which was only a short distance away, and there he was handed over to the Sub-Inspector of Police.

[After referring to the other evidence and circumstances of the case, their Lordships proceeded to observe as follows:]

We have therefore no hesitation in agreeing with the learned trial judge that the accused is guilty of the murder of Baji. His conviction under section 302 I.P.C is correct and it is accordingly confirmed.

4. Now we come to the sentence passed by the learned judge. Having convicted the accused of murder, he proceeded to apply the provisions of section 8 of the Act to this case. Holding that the age of the accused was 19 years and there were no eye-witnesses to the occurrence, the learned Judge, in lieu of passing a sentence of death or imprisonment for life under section 302 I.P.C, sentenced the accused under Section 8 of the Act to detention in the Borstal School, Visakhapatnam, for a period of four years till he attains the age of 23 years.

5. We are clearly of opinion that the Additional Sessions Judge has misconceived the scope of section 8 of the Act and was in error in thinking that the accused in the instant case comes under the definition of “adolescent offender” within the meaning of Section 2(1) of the Act. Section 2(1) of the Act defines what an “adolescent offender” is. It says:

“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 16 nor more than 21 years of age”. Section 8 provides:

“Where it appears to a court having jurisdiction under the Act that an adolescent offered 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:

Provided that, before passing such sentence, the Court shall consider any report of representantation which may be made to it (including any report or representation made by the probation officer of the area in which the offender permanently resided at the time when he committed the offence) 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 the circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid.”

6. So that, to attract section 8 of the Act, it must be established first, that the person concerned is an “adoloscent offender”, that is to say, that he has been convicted of an offence punishable with imprisonment and is not less than 16 Page: 483nor more than 21 years of age; and secondly, that such an adolescent offender by reason of his criminal habits or tendencies or association with persons of bad character, could profitably be placed under detention for such term and under such instruction and discipline as appear most conducive to his reformation and the repression of crime. If these two conditions are satisfied, the Court may, in lieu of passing a sentence of imprisonment, 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 of which the adolescent offender would attain the age of twenty-three years.

7. Therefore the first question that arises in this case is whether the accused, who has been convicted of an offence punishable under section 302 I.P.C can be deemed to be an adolescent offender. As already noticed an “adolescent offender” means a person who has been convicted of any offence punishable with imprisonment besides his being above 16 and below 21 years of age. But under section 302 I.P.C, the lawful sentence that can be passed on a convicted person is death or imprisonment for life. Imprisonment for life is not the same as imprisonment simpliciter. This would be apparent if reference is made to section 53 of the Indian Penal Code, which categorises the various types of punishment to which offenders are liable under the provisions of the Indian Penal Code.

(i) Death:

(ii) Imprisonment for life;

(iv) Imprisonment, which is of two descriptions, namely:—

(1) Rigorous, that is with hard labour:

(2) Simple.

(v) Forfeiture of property; and (vi) Fine.

8. It will be seen that “imprisonment for life”, which has been substituted for “transportation for life” by section 117 of the Code of Criminal Procedure (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 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 had been convicted of murder, that is to say, of an offence punishable with imprisonment for life.

9. In this connection, it is necessary to notice section 10-A of the Act, which specifically provides for cases in which offenders have been sentenced to transportation. Section 10-A reads thus:

“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, 1930, and who at the Page: 484time of conviction was not less than 16nor 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 School.

10. An order may be made under this section notwithstanding that the sentence of transportation has been subsequently commuted into a sentence of imprisonment.”

11. Now, section 10-A of the Act has to be read with section 53-A of the Indian Penal Code, which was inserted by section 117 of the Code of Criminal Procedure (Amendment), Act, 1955. Sub-section (4) of section 53-A, which is relevant for the present purpose, provides:

“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 a reference to imprisonment for life;

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

12. The result is that the word “transportation” occurring in section 10-A of the Act, would mean “imprisonment for life” where a person has been convicted of murder, which is punishable with death or imprisonment for life under section 302 I.P.C

13. It follows that the learned trial judge was in error in treating the accused in this case as an “adolescent offender” within the meaning of section 2(1) of the Act.

14. Even more startling is the other consideration which weighed with the learned Judge in sending the accused to a Borstal School, and that is that there were no eye-witnesses to the occurrence and this was only a case of circumstantial evidence. Had the learned Judge read section 8 of the Act, a little more carefully, it would have been evident to him that what he was doing, was not warranted by the terms of that section.

15. As we are satisfied that the order of detention in a Borstal School passed by the learned trial judge in the instant case is illegal. We have no option but to set it aside and sentence the accused to imprisonment for life.

16. We are, however, firmly of the view that this is a fit and proper case in which Section 10-A of the Act may be applied by the State Government and the accused be detained in a Borstal School for the unexpired residue of the sentence or part thereof. We may also point out that for over a year from the date of conviction, the accused has been detained in the Borstal School at Visakhapatnam, albeit under an invalid order. The facts and circumstances of the case clearly justify the application of the beneficent provisions of section 10-A of the Act with a view to reform and rehabilitate the offender.

17. In the result, the revision petitions are allowed with the above recommendation to the State Government.

18. Revisions Allowed.