CoramThe Honourable Mr v. State

daughter in flames and at that time, he saw A1 and A2 dropping thekerosene container and running. When he asked his daughter as to what hadhappened, his daughter informed him that A1 poured kerosene on her and A2set fire to her. P.W.1 also informed him that he was assaulted by A3 andA4. He took his father/P.W.1 and his daughter/deceased to the hospital,where he was examined by the police.4. P.W.12 is the Head constable in the investigating police station.While he was on duty on 11.2.2002, he received information over wirelessfrom the Government Hospital at Salem intimating that P.W.1 andMuthulakshmi – since deceased have been admitted in the hospital.Immediately, he went to the hospital, where he found Muthulakshmi not in aposition to talk. He observed P.W.1 and then examined him. P.W.1 gave astatement, which he reduced into writing; read it over to him and then hetook his left thumb impression in it. He registered that complaint asEx.P.1 in his police station Crime No.148 of 2002 for offences underSections 294(b), 324, 341 and 307 I.P.C. Ex.P.2 is the printed firstinformation report prepared by him and he sent the express records to theCourt as well as to the higher officials. He received Ex.P.21, the deathintimation from the hospital that Muthulakshmi died at 11.20 p.m. on18.2.2002, which he handed over to the investigating officer. P.W.13 isthe investigating officer, who on receipt of the express records in thiscase, initially registered the case under Section 307 I.P.C., proceeded tothe scene of occurrence where in the presence of P.W.5 and another, heprepared the observation mahazar Ex.P.2 and the rough sketch Ex.P.22. At4.00 p.m. on the same day in the presence of P.W.5 and another, herecovered the plastic kerosene container; the match box and the sticksused by A3 and A4 under a mahazar attested by witnesses. Then he examinedP.W.1 and others by recording their statements. At 11.30 a.m. on12.2.2002, he arrested all the accused, brought them to the police stationat 1.00 p.m. and then he sent them for judicial remand. On receipt of thedeath intimation from the Government Hospital on 19.2.2002, he altered thesection of offence from one under Section 307 I.P.C. to one under Section302 I.P.C. and prepared the altered printed first information reportEx.P.23, which he sent to the Court as well as to the higher officials.5. P.W.11 is the duty medical officer in the Government Hospital atSalem. On 11.2.2002, P.W.1 was brought before him by his son P.W.2 forinjuries stated to have been sustained by him at 7.30 p.m. at the hands offive males. On examination, he found injuries on his person and issuedEx.P.16, the wound certificate. Ex.P.17 is the intimation sent by him tothe police. The symptoms noted by him are a contusion over the rightscalp parietal region and a bleeding right nose. Before P.W.11,Muthulakshmi – since deceased was brought on 10.2.2002 for injuries statedto have been sustained by her at 7.30 p.m. on that night, at the hands offour known persons, by pouring kerosene and then setting fire. Ex.P.18 isthe admission card and she had suffered 40% burn injuries. Ex.P.19 is theaccident register issued by him for her. P.W.10 is the police constable,who identified the dead body of Muthulakshmi in the hospital for post- https://hcservices.ecourts.gov.in/hcservices/ mortem. After post-mortem, he handed over the dead body to the relatives.P.W.8 is the duty medical officer in the Government Hospital at Salem, whoon receipt of Ex.P.13 the requistion for post-mortem, conducted post-mortem on the dead body of Muthulakshmi. During post-mortem, he foundvarious symptoms on her, as noted by him in Ex.P.14, the post-mortemreport. The symptoms noted by him are as here under:Injuries:Superficial infected burns wounds present over theface, and front and back of the neck, front of the chest,both shoulders, both elbow, and both lower arms and back ofthe trunk except abdomens and lower limb.Deep burns wounds are present over the face, neck frontof the chest, and both shoulders.The burns area reddish in colour, singing of eye browsand eye lashes. Head shaved.Other findings:Finger and toe nails intact, cyanosed. Peritonialcavity: empty. Pleural cavity: Empty, Heard: Chambers andvalves normal cavity contained fluid blood, coronary vesselsand great vessels normal. Lungs: C/s congested; Hyoid bone:Intact Stomach contained 30 gms of chyme present, nospecific smell Mucosa congested.Liver, Spleen, Kidneys: On C.s congested.Small intestine: Yellowish chyme present, no smell Mucosacongested.Bladder: empty; Uterus: empty; normal in size.Pelvis, Head, Membrane: Intact, Brain:C/s congested.Spinal coloumn: intact."Doctor opined that death would have occurred as a result of shock due toeffect of burns.6. P.W.6 is the Judicial Magistrate No.2 at Salem. At 2.00 p.m. on12.2.2002 when he was in his office, he received Ex.P.4, the requisitionfrom the hospital to record the dying declaration of Muthulakshmi.Accordingly, he reached the hospital at 2.30 p.m. and by examiningMuthulakshmi, got satisfied that she was in a fit and conscious state ofmind. He secured the presence of P.W.9, the duty doctor to be by his sidewhen he was testing the fit and conscious state of mind of Muthulakshmi.Before recording the dying declaration P.W.6 made an endorsement Ex.P.5stating that the patient is conscious and fit to give dying declaration.Then he proceeded to record the statement by examining her. She stated ashere under:- the translation in English is by us: https://hcservices.ecourts.gov.in/hcservices/ "My father is working as a coolie in Leigh Bazaar, Salem.At 7.00 p.m. on 10.2.2002, I was in my house; my father andgrand father were talking aloud near the house; A1 and A2entered my house and they found fault with me as to why Iinformed my house that A2 abusing me one week earlier; I waswatching television; A1 had a Kerosene container and pouredkerosene on me; A2 threw a lighted match stick and then they ranaway; the elders came and doused the fire."Ex.P.6 is the said dying declaration. At the foot of the dyingdeclaration P.W.9 had given a certificate Ex.P.15 stating that the patientis fully conscious and in a fit state of mind during recording the dyingdeclaration. Further down, P.W.6 had given his certificate stating thatafter recording the dying declaration, he read it over to her, sheadmitted the same as true and correct and that he was satisfied that thepatient is fully conscious and in fit state of mind during recording thedying declaration. P.W.9, the duty doctor present by the bed side ofMuthulakshmi, when P.W.6 was recording the dying declaration, had alsostated that he had given the certificate Ex.P.15 at the foot of the dyingdeclaration. P.W.7 is the Judicial Magistrate No.1, Salem. On receipt ofEx.P.8, the order from the Chief Judicial Magistrate, she proceeded toexamine Palani, Arumugam, Ammasi and Kalliappan under Section 164 of theCode of Criminal Procedure. Ex.P.8 order is passed on the basis of Ex.P.7the application filed by the investigation officer. The witnesses wereexamined by her on 27.3.2002 and those statements are Exs.P.9 to P.12.7. P.W.3 is a resident of the same place where P.Ws.1,2 and thedeceased were living. He would state that P.W.1 told him that his granddaughter (since deceased) complained to him of the incident that tookplace prior to the occurrence in question, during which she was abused;P.W.1 questioned accused 1 and 2 as to why they had done like that, forwhich, accused 1 and 2 responded stating that they would behave only likethat. However, he would admit that he had not seen that earlieroccurrence and he only heard about it. As far as the occurrence proper isconcerned, he would state that when he was in the tea shop at 7.30 p.m.,persons present there told him that there was a commotion in his brother'shouse and accordingly he went there, where he found Muthulakshmi standingoutside her house. He also saw the first accused pouring kerosene onMuthulakshmi from the container which he was having and A2 throwing alighted match stick on her. All of them went to the rescue ofMuthulakshmi and at that time, P.W.1 was also assaulted. P.W.1 andMuthulakshmi were taken to the hospital. P.W.4 is the mother of thedeceased. She would state that around 7.30 p.m. on the occurrence day, herdaughter was set fire to and her father-in-law was also assaulted. Shealso noticed that her daughter crying in pain. She also noticed the firstaccused throwing down the kerosene container and then running, while A2throwing down the match box and running. She tried to rescue her daughteralong with others. P.W.5 witnessed the preparation of Ex.P.2 theobservation mahazar and recovery of the incriminating objects under Ex.P.3 https://hcservices.ecourts.gov.in/hcservices/ as referred to earlier. P.W.13 conducted inquest over the dead body andprepared Ex.P.24 the inquest report. After completing all the legalformalities, P.W.13 filed the final report against the accused before theCourt on 30.4.2002 for offences under Sections 302 read with 34, 294 (b)and 307 I.P.C.8. When the accused were questioned under Section 313 of the Code ofCriminal Procedure based on the incriminating materials made availableagainst them, they denied each and every circumstance put up against themas false and contrary to facts. They examined one witness on their sideas D.W.1. But we find from the records that after the cross examinationof P.W.13, the investigating officer in this case, was completed at thefirst instance, the defence examined the very same officer on 20.12.2002by further cross examining him. In such further cross examination ofP.W.13 conducted on 20.12.2002, (characterised by the learned trial Judgeas D.W.1) had deposed as here under:"On 11.2.2002 I recorded the statement of Muthulakshmi;that was in the evening; Ex.D.1 is the said statement; Question: Has she told you that she was in a conscious state ofmind?Answer: Since I found her in a conscious state of mind, Iproceeded to record the statement as narrated by her;I did not record in the statement that she was in a fit andconscious state of mind; I deny that she was not in a fit andconscious state of mind while giving statement. But however,she was in a fit and conscious state of mind; Muthulakshmi toldthe doctor that in perpetrating the crime on her, four malesand two females took part.Question: Have you investigated the case from that angle?Answer: yes;In the investigation, it came to light only four accused, whoare before the Court, alone have committed the crime and nowitness spoke about the involvement of any women in the crime;Muthulakshmi – since deceased also do not say anything aboutthat in her statement and that is why I filed the final reportonly against the accused; it is true that P.W.1 had told thedoctor that he had suffered injuries at the hands of five knownpersons. However, during investigation, P.W.1 told me that A3and A4 alone attacked him and I accordingly proceeded furtherwith the investigation. I deny that Muthulakshmi-sincedeceased gave a statement during investigation as narrated byme. Ex.D.1 is the statement so recorded by P.W.13."9. Mr.R.Sankarasubbu, learned counsel appearing for the appellantswould submit that the evidence of P.W.s 1 and 3 do not establish theinvolvement of any of the accused in the crime and therefore rejectingtheir evidence, this Court can acquit all the accused. Assuming that theentire prosecution case, as spoken to by the witnesses, is true, yet in https://hcservices.ecourts.gov.in/hcservices/ the light of Ex.P.6, the Judicial dying declaration, the conviction underSection 302 read with 34 I.P.C. against all the four accused cannot belegally sustained, since the judicial dying declaration implicates only A1and A2. Without prejudice to the above, learned counsel would also submitthat recording of the dying declaration is not free from doubt andtherefore rejecting the judicial dying declaration, this Court can acquitall the accused from the crime. It is next submitted that in the evidenceof P.W.2 (cross examination), it appears that there was a quarrel forquite some time preceding the crime perpetrated on Muthulakshmi – sincedeceased and therefore, Exception 4 to Section 300 of the Indian PenalCode stands squarely attracted to the case on hand. On top of this and asthe last argument, learned counsel would submit that even if this Courtaccepts that the prosecution case stands fully established, then from theavailable materials it can be seen that both A1 and A2 are adolescentoffenders attracting the provisions of the Tamilnadu Borstal Schools Act.If that is so, even though this court could confirm the conviction on theevidence available, yet this Court has to necessarily set aside thesentence of imprisonment imposed on A1 and A2. Under the provisions ofThe Tamilnadu Borstal Schools Act, at the maximum, A1 and A2 could bedetained only up to their age of 23 and since each of them had alreadycrossed the upper age limit of 23, this Court can straight away quash thesentence and set them at liberty. It is then submitted by the learnedcounsel for the appellants that since appellants 1 and 2 had alreadycrossed the age of 23, assuming the Government alone has the power to dealwith a case where life imprisonment is the sentence imposed, yet theGovernment could not exercise the power in view of appellants 1 and 2having crossed the upper age limit prescribed under the above referred toAct. Therefore, his submission is that, assuming for a minute withoutconceding that this Court has no power to send appellants 1 and 2 to aBorstal School, in view of Section 8 of the said Act, yet in view of theGovernment not being in a position to exercise their power under Section10-A of the Act, as stated above, this Court can still extend theprovisions of the benevolent provision of Section 10-A of the Act infavour of A1 and A2 and quash the sentence. Learned counsel pressed intoservice Criminal M.P.No.1601 of 2006, already filed by appellants 1 and 2to determine their age. In sustaining his point based on the provisionsof the Tamilnadu Borstal Schools Act 1925, learned counsel relied upon anumber of judgments about which we will refer a little later in thisjudgment. Mr.N.R.Elango, learned Additional Public Prosecutor wouldcontend that on the merits of this case there cannot be any escape fromthe only conclusion that in any event A1 and A2 are guilty of the offenceof murder, though there may be some vagueness in the prosecution caseagainst A3 and A4 are concerned. As far as the application of theTamilnadu Borstal Schools Act 1925 is concerned, learned Additional PublicProsecutor would submit that going by the provisions of the Act, thisCourt would have power to deal with the case of an adolescent offenderunder the provisions of the Tamilnadu Borstal Schools Act only in caseswhere there is no imprisonment for life. According to him, whenever aCourt sentenced a person to imprisonment for life, then application of https://hcservices.ecourts.gov.in/hcservices/ Section 8 of the Tamilnadu Borstal Schools Act stands excluded. Accordingto him, even in such cases, where imprisonment for life is imposed on anadolescent offender, then under Section 10-A of the Tamilnadu BorstalSchools Act, the Government alone has the power to deal with such anadolescent offender. According to him, in all cases where imprisonmentfor life is given, it is only the Government and the Government aloneexercising power under Section 10-A of the Tamilnadu Borstal Act, take adecision as to whether the convict prisoner can be dealt with under theprovisions of the Tamilnadu Borstal Schools Act or not and it does not liewithin the purview of this Court. In support of his argument, learnedAdditional Public Prosecutor also relied upon a number of judgments, whichwe will discuss later in this judgment.10. In the light of the arguments advanced by the counsel on eitherside, we went through the entire materials on record giving our dueattention. As far as the merits of the case is concerned, besides theoral evidence of P.Ws. 1 and 3, we have the judicial dying declarationgiven by Muthulakshmi, while alive to P.W.6, the Judicial Magistrate.Ex.P.6 is the judicial dying declaration. Let us now find out, to startwith, whether there is any direct evidence regarding the crime and if itis so, is it acceptable? P.W.1 is the grand father of the deceased. Hehad also suffered an injury on his person and according to him, it is inthe course of the same transaction. Ex.P.16 is the wound certificateissued to him by P.W.11. P.W.1's evidence is that as he saw his granddaughter in flames due to the act perpetrated by A1 and A2, he ran torescue her and at that time, A3 and A4, each armed with a stick assaultedon his head, resulting in injuries to him. P.W.11 is the duty medicalofficer in the Government Hospital at Salem, who had examined P.W.1 on11.2.2002 for the injuries stated to have been sustained by him at 7.30p.m. on the previous night. Ex.P.16 is the accident register, which showsthat P.W.1 had suffered a contusion over the right scalp parietal regionand a bleeding right nose. It is seen from Ex.P.16 that P.W.1 had notsuffered any fracture. The injuries on the other hand are stated to besimple and the opinion is shown to be based on X-ray findings. ThoughP.W.1 had been cross examined at length on the manner in which he shown tohave suffered injuries, yet we do not find any material worth mentioningin his evidence to disbelieve him that he had also received injuries inthe course of the same transaction. Therefore, for the present, weconclude that P.W.1 was present at the crime scene where the crime wasperpetrated on his grand daughter Muthulakshmi.11. P.W.1 is the grand father of the deceased and father of P.W.2.P.W.1 is aged about 75 years. His evidence shows that a few days prior tothe occurrence day, his grand daughter, namely the deceased, was made funof by A1 and A2, which she had brought to his notice and therefore hequestioned A1 and A2. We do not find anything unusual in the conduct ofP.W.1 in resorting to such action on his grand daughter bringing to hisnotice about the bullying by A1 and A2. His evidence shows that ten days https://hcservices.ecourts.gov.in/hcservices/ after the occurrence, namely, the occurrence day, A3 and A4 underintoxication came in front of his house and started creating a scene andthat resulted in a commotion opposite to his house. As the commotion wasgoing on, A1 and A2 had appeared there and A1 was having a kerosenecontainer in his hands. P.W.1 would state that A1 after pouring keroseneon his grand daughter, namely, Muthulakshmi set fire to her and A2 alsothrew a lighted match stick. He had struck to his evidence on theoccurrence proper in his evidence in cross and therefore his evidence inchief as to how his grand daughter had come to sustain burn injuries atthe hands of A1 and A2 remain intact. This evidence of P.W.1 iscorroborated by the oral evidence of P.W.3, who is another resident of thesame village. Apart from giving details of the earlier occurrence inwhich Muthulakshmi was bullied by A1 and A2, he would proceed to statethat on the occurrence day, he was at the tea shop at about 7.30 p.m. andon coming to know there was a commotion in his brother's house, namely,P.W.1, he ran to the place where he found Muthulakshmi standing outsideher house. He also saw the first accused pouring kerosene on Muthulakshmiand then A2 throwing a lighted match stick on Muthulakshmi, as a result ofwhich, Muthulakshmi was engulfed in flames. Once again we will have tostate that this witness though cross examined by the defence, did not giveany favourable answers in favour of the accused. Therefore, without anyhesitation, we hold that the evidence of P.W.s 1 and 3 individually aswell as in corroboration to each other establish the involvement of A1 andA2 in perpetrating the crime on Muthulakshmi. The evidence of P.Ws. 1 and3 also show as to how P.W.1 had sustained injuries. Therefore, theprosecution had definitely established by the direct/primary evidence ofP.Ws. 1 and 3 as to how P.W.1 had came to sustain injuries and as to howMuthulakshmi was set on fire. In addition to the above, we have theevidence of P.Ws. 2 and 4, who are none else than the father and mother ofMuthulakshmi. P.W.2's evidence as far as the occurrence proper isconcerned shows that on his daughter catching fire, he ran to the sceneand at that time, he saw A1 and A2, dropping the kerosene container andmatch box respectively, moving away from the scene and when he asked hisdaughter as to what had happened, his daughter told him that A1 pouredkerosene on her and A2 set fire to her. P.W.4's evidence is also to thesame effect, namely, as she ran towards her house, on hearing her daughtercrying in pain, she saw A1, dropping the kerosene container and A2dropping the match box, running. Therefore, the evidence of P.Ws.2 and 4,we have no hesitation to say, establish the presence of A1 and A2 at thecrime scene and moving away from the crime scene immediately after theoccurrence. Once again we will have to state that nothing worthmentioning had been elicited in their cross examination as to what theyspoke in their evidence in chief could not be true. 12. We sum up our discussions stating that there is direct/primaryevidence of P.Ws. 1 and 3 establishing the involvement of A1 and A2 in thecrime perpetrated on Muthulakshmi and the direct evidence of P.W.1 that hecame to sustain injuries at the hands of A3 and A4. The evidence of https://hcservices.ecourts.gov.in/hcservices/ P.Ws.2 and 4 lend support to the oral evidence of P.W.s1 and 3 to thelimited extent, namely, that immediately after the occurrence, A1 and A2were seen running away from the scene of occurrence after dropping thekerosene container and the match box.13. Let us now find out whether there are any other materials onrecord, which would connect the accused with the crime. We immediatelysay that there is a judicial dying declaration recorded by P.W.6 in thepresence of P.W.9, the duty medical officer. A perusal of the evidence ofP.W.s 6 and 9 show that Muthulakshmi was in a fit and conscious state ofmind when P.W.6 chose to record her dying declaration. P.W.6 would statethat on receipt of Ex.P.4, the intimation from the hospital to record thedying declaration of Muthulakshmi, she had reached the hospital at about2.30 p.m. and after satisfying himself that Muthulakshmi was in a fit andconscious state of mind, proceeded to record the dying declaration. Hisevidence also shows that he secured the presence of P.W.9, the duty doctorto be by his side. At the beginning of Ex.P.6, the dying declaration, theJudicial Magistrate had certified that the patient is conscious and fit togive dying declaration; at the foot of Ex.P.6, P.W.9 had certified aboutthe fit and conscious state of mind of Muthulakshmi and at the end of thedying declaration, the Judicial Magistrate had once again made anendorsement about the fit and conscious state of mind of Muthulakshmi.From the evidence of P.Ws.6 and 9, we do not find that when P.W.6 wasrecording the dying declaration, any of the relatives of Muthulakshmi wereby her bed side, and there is no chance to influence her mind. Thereforewe have no hesitation at all to conclude that there are no suspiciouscircumstances at all in recording of the judicial dying declaration.Though P.W.6 had deposed as to what Muthulakshmi told him during the dyingdeclaration, yet we have decided to look into the dying declarationitself. Ex.P.6 is the dying declaration, in which, Muthulakshmi in acrisp manner had implicated A1 and A2 in the crime perpetrated on her.She had stated in Ex.P.6, as she was watching television, A1 broughtkerosene and then poured it on her and A2 set fire to her by a lightedmatch stick and then both ran away. This dying declaration is consistentwith the oral evidence of P.W.s 1 and 3 as referred to earlier. Thisdying declaration unerringly implicates A1 and A2 with the crime.Therefore, in the light of our discussion referred to above, we have noreason to disbelieve the judicial dying declaration and accordingly, weare accepting it as a true and voluntary disclosure made by Muthulakshmito P.W.6, the Judicial Magistrate as to how she came to sustain burninjuries and at whose hands. This dying declaration, as already stated,establishes the involvement of A1 and A2 in the crime. Therefore, therecannot be any difficulty at all for us in holding that besides theevidence of P.W.s1 and 3 as direct/primary evidence, there is the evidenceof P.W.s 2 and 4 as corroborative evidence to the evidence of P.W.s1 and 3and Ex.P.6, the judicial dying declaration establishing the involvement ofaccused No.1 and No.2 in the crime. The further cross examination ofP.W.13 done by the accused and Ex.D.1 do not in any way improve the case https://hcservices.ecourts.gov.in/hcservices/ in favour of the accused. Even at this stage itself, we want to add thatin the judicial dying declaration, Muthulakshmi had not implicated A3 andA4 at all. It is not in the evidence of either P.W.1 or P.W.3 that A3 andA4 also in any manner participated in the crime perpetrated onMuthulakshmi by A1 and A2. The oral evidence of P.Ws. 1 to 4 do not inany way implicate A3 and A4 in the crime committed on Muthulakshmi – sincedeceased. In these circumstances, holding that the prosecution hadestablished the involvement of A1 and A2 alone in setting fire toMuthulakshmi, we hold that the prosecution had miserably failed toestablish that A3 and A4 also are responsible for the crime perpetrated byA1 and A2 on Muthulakshmi. There is medical evidence showing that deathis due to the effect of burns. The resultant position would be A3 and A4has to be acquitted forthwith and accordingly they are acquitted.14. A faint argument is advanced by the learned counsel for theappellants that the evidence on record shows that there was a quarrel infront of the house of P.W.1 before A1 and A2 committed the crime onMuthulakshmi. Therefore, we went though the entire materials in thatcontext. What are all available from the evidence, as we couldunderstand, is that A3 and A4 under intoxication went opposite to thehouse of P.W.1 and created a scene. There is no material at all to showthat Muthulakshmi was any where near the scene where there was a quarrel.The evidence only shows that Muthulakshmi was standing and she was a girlaged about 19 years. Her dying declaration is that she was inside herhouse and watching television and the accused set fire to her as indicatedearlier. Therefore, assuming there was a commotion at the crime scene, ithas nothing to do with the act of A1 and A2 committing the crime on theinnocent Muthulakshmi, who was just there watching television. Thereforewe deny any relief to A1 and A2 based on Exception 4 to Section 300 of theIndian Penal Code. 15. Now let us address ourselves to the question of law argued byMr.R.Sankarasubbu, learned counsel, who appeared to have done enormoushome work to sustain his point. We must also place on record thatMr.N.R.Elango, learned Additional Public Prosecutor had also takenconsiderable efforts in meeting the legal points raised by the learnedcounsel for the appellants. Having regard to the legal point involved, wehave also decided to have the assistance of a learned member of the barand accordingly, we appointed Mr.Abudukumar Rajarathinam, a learned memberof the Bar to assist this Court. We must also record that he also left nostones unturned in assisting this Court.16. In C.M.P.No.1601 of 2006 a request is made to this Court thatthis Court should take additional evidence by referring appellants 1 and 2for radiological examination for the purpose of fixing their age. Thispetition is supported by an affidavit sworn to by one Ayammal, the mother https://hcservices.ecourts.gov.in/hcservices/ of the petitioners/appellants 1 and 2. It is a short affidavit. Nowhereshe states in the affidavit the respective date of births of her sons,namely, A1 and A2. In the affidavit filed in support of this petition,she relies upon the judicial dying declaration. In the judicial dyingdeclaration, Muthulakshmi – since deceased had given the age of A1 as 18and the age of A2 as 15. This material is relied upon in support ofC.M.P.No.1601 of 2006. In our considered opinion, Muthulakshmi is not acompetent person to speak about the age of the assailants, in particularreference A1 and A2. She herself is shown to be aged 19 years. The onlyperson competent to speak about the date of birth of A1 and A2 is theirmother only. Their mother had sworn to the affidavit, as already stated,in which she has not chosen to give the date of births of her sons. Acounter affidavit to the C.M.P. is filed and sworn to by the Inspector ofPolice. In that counter, in paragraph 3, it is stated that on the date ofoccurrence, appellant No.1 was aged 23 years and the second appellant wasaged 20 years. A certificate from the Headmaster of Government HigherSecondary School, Sukkampatti, Salem – 636 122 is produced by the learnedAdditional Public Prosecutor, which shows that Sasi (A2) was born on7.3.1983. The said certificate shall form part of the records. In ourconsidered opinion, we see no reason at all from the materials noted aboveas to why we must probe further to fix the age of appellants 1 and 2.There is one thing certain, namely, A2/appellant No.2 was born on7.3.1983. If the age of A1 has to be fixed by conducting an enquiry, thena duty is cast upon the person, who is trying to get the age so fixed, toplace at least reasonable acceptable material before this Court so thatthis Court can exercise the power in favour of the person, who is makingsuch a request. Even during trial or even during the time when theaccused was questioned under Section 313 of the Code of CriminalProcedure, he had not taken any stand at all based on his age. In fact hehad given his age in the 313 answer as 23. A2 had given his age as 19.The questioning was done on 17.12.2002. Under these circumstances, we areof the firm opinion that A1 (appellant No.1) has not made out any case atall for conducting any enquiry to fix his age. Accordingly, we reject theC.M.P.No.1601 of 2006 as far as the first petitioner, namely, appellantNo.1 is concerned. However the said petition stands answered in favour ofpetitioner No.2/appellant No.2, since as per the certificate produced bythe learned Additional Public Prosecutor, it is seen that the secondappellant was born on 7.3.1983. The occurrence was on 10.2.2002. On thatday, the second appellant had completed 18 years, 11 months and a fewdays. The trial was commenced on 11.2.2002. On that day, two enactmentsalone were in force, which can be taken into account. One is the JuvenileJustice (care and protection of Children) Act 2000 and the other is theTamilnadu Borstal Schools Act 1925. Tamilnadu Children Act stood repealedby Juvenile Justice Act, 1986. To apply the provisions of the JuvenileJustice Act, which is admittedly in force on the date when the trialcommenced, under Section 2(k) of the above referred to Act, "juvenile" or"child" is defined as a person, who has not completed 18 years of age.Since the second appellant is shown to have completed 18 years of age, wehave no hesitation at all to hold that the second appellant is not https://hcservices.ecourts.gov.in/hcservices/ entitled to the protection of Juvenile Justice Act (care and protection ofChildren) Act, 2000 This does not mean that the second appellant has noother enactment to fall upon. In fact, he could be governed by theTamilnadu Borstal Schools Act 1925, provided he satisfied the requirementsof that Act. The question is even if the Act applies to him, namely, asan adolescent offender, yet is he entitled to the benefit of theprovisions of the said Act.17. In the context of the argument advanced by the learned counselfor the appellants basing the claim of appellants 1 and 2 under theprovisions of the Tamilnadu Borstal Schools Act 1925 itself, we now gointo the relevant provisions of the said Act. Section 2(1) defines anadolescent offender as here under:"(1) "Adolescent Offender" means any person who has beenconvicted of any offence punishable with imprisonment or whohaving been ordered to give security under Section 118 of theCode of Criminal Procedure has failed to do so and who at thetime of such conviction or failure to give security is not lessthan 16 in the case of a boy and not less than 18 in the caseof a girl, but not more than 21 years of age in either case."The trial Court pronounced the judgment in this case on 20.2.2003. Goingby the date of birth, namely, 7.3.1983, even on the date of which thejudgment was pronounced by the trial Court, there cannot be any difficultythat he was under 21 years of age. Therefore, without any hesitation, weconclude that appellant No.2 is an adolescent offender. It must benoticed that to attract the provisions of the Tamilnadu Borstal SchoolsAct, the crucial date to be taken into account is the date of convictionand not the date on which the crime was committed. We have already noted,even on the date of conviction, appellant No.2 was less than 21 years ofage and therefore he is definitely an adolescent offender. At this stage,we note that besides being within the age limit, namely, not less than 16years and not more than 21 years in the case of a boy to come within thedefinition of an adolescent offender, the said adolescent offender shouldhave been convicted of any offence punishable with imprisonment. Weelaborate on the last noted point later on. Section 8(1) of the TamilnaduBorstal Schools Act 1925 reads as here under:"8. Power of Court to pass sentence of detention inBorstal School - (1) When it appears to a Court havingjurisdiction under this Act that an adolescent offender shouldby reason of his criminal habits or tendencies or associationwith persons of bad character, be subjected to detention forsuch term and under such instruction and discipline as appearsmost conducive to his reformation and the repression of crime,it shall be lawful for the Court, in lieu of passing asentence of imprisonment, to pass a sentence of detention in a https://hcservices.ecourts.gov.in/hcservices/ Borstal School for a term which shall not be less than twoyears and shall not exceed five years, but in no caseextending beyond the date on which the adolescent offenderwill, in the opinion of the Court, attain the age of twentythree years."We are not extracting Sub-section 2 and 3 of the said section 8 for thepresent. Section 10-A of the Tamilnadu Borstal Schools Act reads as hereunder:"10-A. Power of State Government to transfer offenderssentenced to transportation of Borstal Schools – The StateGovernment may, if satisfied that any offender who has beensentenced to transportation either before or after the passingof the Madras Borstal Schools (Amendment) Act, 1939, and who atthe time of conviction was not less than 16 in the case of a boyand not less than 18 in the case of a girl, but not more than 21years of age in either case might with advantage to be detainedin a Borstal School, direct that such offender shall betransferred to a Borstal School, there to serve the whole or anypart of the unexpired residue of the sentence. The provisionsof this Act shall apply to such offender as if he had beenoriginally sentenced to detention in a Borstal School.An order may be made under this section notwithstandingthat the sentence of transportation has been subsequentlycommuted into a sentence of imprisonment."Therefore for the Act to apply the person convicted, if he is a boy,should not be less than 16 years and not more than 21 years of age on thedate of his conviction and he should have been convicted of any offencepunishable with "imprisonment." If he comes within the definition of anadolescent offender, then under Section 8, the Court is given the power inlieu of passing a sentence of imprisonment, to pass a sentence ofdetention in a Borstal School. What is the period of detention is alsomentioned in the said section.18. Having regard to the expression used in Section 2(1), namely,any offence punishable with "imprisonment"; " and in lieu of passing a"sentence of imprisonment" under Section 8, the question that comes up forconsideration is whether the term imprisonment mentioned in the above twosections would include "imprisonment for life" or "imprisonmentsimpliciter". Mr.R.Sankarasubbu, learned counsel appearing for theappellants by relying upon the judgment of the Supreme Court reported in1985 SCC (Crl.) 280 (Bhagirathi Vs. Delhi Administration) would contendthat the term "imprisonment" found under Section 2(1) and Section 8 of theTamilnadu Borstal Schools Act would include sentence of "imprisonment forlife" and therefore, in this case though appellant No.2 stands sentencedto undergo imprisonment for life, having regard to the law laid down inthe above referred to judgment, this Court would be in a position to https://hcservices.ecourts.gov.in/hcservices/ exercise the power available under Section 8 of the Tamilnadu BorstalSchools Act in favour of Appellant No.2. The judgment of the SupremeCourt is by a Constitution Bench. We carefully went through the abovereferred to judgment. A question arose before the Supreme Court in thatjudgment as to whether "set off" provided under Section 428 of the Code ofCriminal Procedure is available only to a person, who has been sentencedto "imprisonment for a term" or would it include a person, who had beensentenced to "imprisonment for life". In other words the question thatwas called upon to be decided by the Supreme Court was whether theexpression "imprisonment for a term" found in section 428 of the Code ofCriminal Procedure would include "imprisonment for life" as well. Inthe case before the Supreme Court, the facts are as here under:-"In one of the cases, a convict prisoner moved the Delhi High Courtto refer his case to the Delhi Administration for an appropriate relief ashe, as a person sentenced to life imprisonment had been in jail forfourteen years together with the remissions earned by him and thereforehis release must be considered. The Delhi High Court rejected hispetition on the ground that Section 428 of the Code of Criminal Procedureon the face of it apply only to a case where there is imprisonment for aterm and that sentence of life imprisonment is not imprisonment for aterm. In the connected case, another convict prisoner would contend thatin computing the period of fourteen years of imprisonment he must be giventhe benefit of remissions earned by him must be given credit. On theabove factual scenario, the Supreme Court analysed the entire argumentsand ultimately it was held that "imprisonment for a term" mentioned inSection 428 of the Code of Criminal Procedure would include "imprisonmentfor life" and therefore set off is permissible. The Hon'ble Supreme Courtof India in the judgment referred to supra, as already stated, wasconsidering the ambit of section 428 of the Code of Criminal Procedure.The expression "imprisonment for a term" was found to include in itself"imprisonment for life" as well. The court went on to hold that a readingof section 428 of the Code of Criminal Procedure does not convey anyrestrictive meaning to be given to the expression "imprisonment for aterm" found mentioned in that section. As noted earlier, the issue raisedbefore the Supreme Court was whether persons serving imprisonment for lifewould be entitled to have to their credit the remissions earned by them inhaving the benefit of set off provided under section 428 of the Code?19. In support of his submission, that once it is found that A2 isan adolescent offender, the court trying him cannot sentence him to anyimprisonment including life imprisonment but only send him to a BorstalSchool and for that proposition though the Government under Section 10-Aof the Tamil Nadu Borstal Schools Act may have the power, yet, it havinglost it due to the appellant crossing the upper age limit of 23 years ason date, this court can still exercise that power taking the role of theGovernment, learned counsel relied upon the following judgments, namely, https://hcservices.ecourts.gov.in/hcservices/

1. 1981 SCC (Cri.) 809 (Jayendra and another V. State of Uttar Pradesh)2. 1984 SCC (Cri.) 635 (State of Andhra Pradesh V. Vallabhapuram Ravi)3. 1989 SCC (Cri.) 486 (Bhoop Ram V. Stateof U.P.)4. 1993 (Vol.37) Madras Law Journal Report (Cri.) 257 (Rajan alias Thiruvengada Karthigeyan V. State)5. 1997 (1) Law Weekly (Cri.) 15 (Karupayee etc. V. State, etc.6. 2000(1) Law Weekly (Cri.) 142 (Ramasamy V. State) Let us now go through each one of the judgments carefully to find outwhether it helps to advance the cause of the second appellant. InJayendra's case, referred to supra, Uttar Pradesh Children Act was underconsideration before the Supreme Court. Appellant No.1 was claiming thebenefit of the above referred to Act. The Supreme Court noticed from theRadiologist's examination and report on appellant No.1 that he was 23years of age on the date of that report which means on the date ofevidence he would have been 16 years and four months old. The crime wascommitted on 17.6.1974. Appellant No.1 had given his age as 15 years.Having the above facts in mind, the Supreme Court analysed the provisionsof the Uttar Pradesh Children Act. Section 2(4) of the Act defines a"child" to mean a person under the age of 16 years. Having regard to thevarious circumstances, the Supreme Court had concluded that Appellant No.1was a child within the meaning of the provisions of that Act on the dateof the occurrence. That judgment noted that under Section 27 of the UttarPradesh Children Act that notwithstanding anything to the contrary in anylaw, no court shall sentence a child to "imprisonment for life" or to any"term of imprisonment". Therefore it is clear that there was a total barunder the Uttar Pradesh Children Act to sentence a child to any term ofimprisonment. Under Section 29 of the Act, as could be seen, from thejudgment of the Supreme Court itself, whenever a child is found to havecommitted an offence punishable with imprisonment, the Court may order himto be sent to an approved school for such period of stay as will notexceed the attainment by the child of the age of 18 years. Therefore, itmust be remembered that there was a total bar on the part of any Courtexercising power in the State of Uttar Pradesh from sending any child, onbeing found guilty of an offence to any form of imprisonment and in such asituation, he shall be sent only to an approved school where his staywould not be beyond the age of 18. On those facts, the Supreme Courtproceeded to state that though in the normal course they could directappellant No.1 to be sent to an approved school, yet they could not do it,since appellant No.1 was aged 23 years as on the date. In our respectfulopinion that judgment must be understood in the face of the provisions oflaw which the Honourable Judges of the Supreme Court were dealing. We https://hcservices.ecourts.gov.in/hcservices/ have already noted the relevant sections in that Act, which imposed atotal bar on a Court from sentencing a child, if found guilty, to any formof imprisonment. That is not the position as far as the Tamilnadu BorstalSchools Act is concerned, which we will elaborate later.20. In Vallabhapuram Ravi's case, referred to supra, a similarprovision like Tamilnadu Borstal Schools Act, namely, AndhraPradeshBorstal Schools Act was under consideration. It is not in dispute thatthe provisions of Andhra Act are in pari-materia with the Tamilnadu Act.The facts available in that case are the convict prisoner, on being foundguilty of the offence of murder was sentenced to undergo imprisonment forlife. The Supreme Court had dealt with in that judgment in great detailas to how Law to protect children, on being found guilty of offence, wasevolved. The State Government in that case exercising power under Section10-A of that Act (in parimateria to the Tamilnadu Act) directed thedetention of the convict prisoner in a school. Though he has crossed theupper age limit prescribed under the Act, he was not released from theschool and therefore he moved the High Court of Andhra Pradesh for anappropriate relief and a writ was issued directing his release. The Stateof Andhra Pradesh went up in appeal to the Supreme Court. The point whichweighed with the State Government in not releasing the convict prisonerfrom the school, though he has crossed the upper age limit, was the impactof Section 433-A of the Code of Criminal Procedure. Considering the scopeand impact of Section 433-A of the Code of Criminal Procedure on thebenevolent provision of the Andhra Pradesh Borstal Schools Act 1925, theSupreme Court held that despite the introduction of Section 433-A of theCode of Criminal Procedure, yet the right, which an adolescent offendergets under the Andhra Pradesh Borstal Schools Act, would not be taken awayand therefore it sustained the order of the Andhra Pradesh High Court indirecting the release of the adolescent offender. It must be noticed herethat in the above referred to case decided by the Supreme Court, there wasan order in favour of the adolescent offender passed by the StateGovernment exercising their power under Section 10-A of the Andhra PradeshBorstal Schools Act. Of course, this judgment overrules the judgment ofthis Court reported in 1982 Law Weekly (Cri.) 217 (Ganapathy, In re). Inthe context of the above, we immediately went through the judgment of thisCourt in Ganapathi's case to find out on what point of law, this Court'sjudgment was reversed by the Supreme Court. This Court in the abovereferred to judgment held that an adolescent offender sent to a BorstalSchool under the Tamilnadu Borstal Schools Act, after the expiry of hisdetention in the Borstal School, must serve the residue of imprisonment inthe prison. This conclusion was based on Section 433-A of the Code ofCriminal Procedure. Only to that extent, the Supreme Court inVallabhapuram Ravi's case overruled the judgment of this Court. We willrefer in great detail at a later stage in this judgment what is the Lawlaid down by this Court in Ganapathi's case and it's effect on the issuepending before us. In Bhoop Ram's case referred to supra, once again wefind that Uttar Pradesh Children Act was under consideration. We hadalready noted the provisions of Uttar Pradesh Children Act in one of the https://hcservices.ecourts.gov.in/hcservices/ earlier cases of the Supreme Court referred to above. In Bhoop Ram's casealso it was found that the convict prisoner was a child and therefore heought not to have been sentenced to imprisonment but ought to have beensent only to an approved school. The Court proceeded to hold that sincethe convict prisoner had crossed the upper age limit/the maximum period ofdetention in the approved school, it had no other go except to quash thesentence and release the convict prisoner forthwith. Jayendra's case wasnoted in this judgment. On facts we will have to state that theprovisions of the Tamilnadu Borstal Schools Act are totally different fromthe provisions of the Uttar Pradesh Children Act. 21. In Rajan @ Thiruvengada Karthigeyan's case, the TamilnaduChildren Act and Juvenile Justice Act 1986 was under consideration. ThisCourt found on the facts of that case, the Tamilnadu Children Act alonewould apply and not the Juvenile Justice Act 1986. In that case also, onbeing found guilty of the offence of murder, the appellant was sentencedto undergo imprisonment for life. The conviction was confirmed. However,this Court found, on an argument advanced by the learned senior counsel inthat case, based on the provisions of the Tamilnadu Children Act that theappellant in that appeal was 16 years and 9 months old on the date ofoccurrence, namely 1.11.1984 and his conviction was on 14.3.1986, on whichdate, he had completed 18 years one month and 13 days. The learned Judgesreferred to Sections 3(2) and 3(3) of the Act, where "Young person" and"Youthful offender" were defined to mean a person, who is 14 years of ageor upwards and under the age of 18 years and a person, who has beenconvicted of an offence punishable with imprisonment and who at the timeof such conviction was under the age of 18 years respectively. The Courtthen referred to Section 22 of the Act, which states "notwithstandinganything to the contrary contained in any law no child or young personshall be sentenced to death, or imprisonment or committed to prison indefault of payment of fine etc." Even in this context itself we wouldlike to draw a difference between this Act and the UttarPradesh ChildrenAct. Under Section 27 of the UttarPradesh Children Act, the Court's powerto sentence any form of imprisonment on a child is totally taken away.But in the Tamilnadu Children Act, there is no absolute bar in sendingpersons covered under the Act to imprisonment, since the proviso toSection 22 provides for sending young person to imprisonment. Section 23(1) of the Act says that sending a person covered under that sub-sectionto a senior approved school is in addition to or in lieu of sentencing himaccording to Law to other punishment. In this context, we refer Section 8of the Tamilnadu Borstal Schools Act under which, after deep considerationwe say, there is no automatic and vested right in an adolescent offenderto be sent to a Borstal School for detention. A reading of Section 8(1)and the entirety of Sub-Section 2 shows that before a person can be givena sentence of detention in a Borstal School in lieu of passing a sentenceof imprisonment, the Court must be satisfied that it must appear for theCourt it is most conducive for the reformation of the person found guiltyand the repression of crime. In arriving at such a satisfaction, theCourt has to call for a report from the Probation Officer and consider https://hcservices.ecourts.gov.in/hcservices/ such report in addition to any other report or representation, which itmay receive. Sub-clause (c) to Sub-Section (2) to Section 8 of the Actcontemplates a further enquiry, as the Court thinks fit, be made. Thenafter completing all such exercise, the Court decides the suitability ofthe case for treatment in a Borstal School and it shall also be satisfiedwith the character, state of health and mental condition of the offenderand the other circumstances of the case, from which the Court must holdthat the offender is likely to be profited by such a treatment anddiscipline as aforesaid. In other words in one word we can say that underSection 8 of the Tamilnadu Borstal Schools Act, no adolescent offenderfound guilty of an offence, gets an absolute right to get transferred to aBorstal School for detention in lieu of a sentence of imprisonment. Whywe are referring to Section 8 even at this stage is the judgment renderedby this Court in Rajan's case, which is under the Tamilnadu Children Act,has to be read in the context of the provision available in that Act.This Court in Rajan's case was fully conscious of the proviso to Section22 of the Tamilnadu Children Act. However, going by the letter and spiritof Section 22 of the Tamilnadu Children Act and without going into theproviso to the section, this Court on the facts found in that case, heldthat the person found guilty in that case ought to have been dealt withunder Section 23 (1) of the above referred to Act and the period ofdetention is to be as per Section 24 of the said Act. It cannot be out ofcontext to mention here that the Tamilnadu Children Act was repealed byJuvenile Justice Act 1986. Then finding that the convict prisoner in thatcase ought to have been dealt with only under the provisions of theTamilnadu Children Act, (the court did not express any opinion on theproviso to Section 22 of the Act probably for want of materials), thisCourt proceeded to quash the sentence following the judgment of theSupreme Court in Jayendra's case. Under Section 24 of the TamilnaduChildren Act, the period of detention would not exceed the age of 21.Since in that case, the youthful offender was already beyond the age of 21on the date of judgment, this Court, while confirming the conviction,quashed the sentence. 22. In Karupayee's case there were two suo motu revisions. In boththe cases, juveniles were convicted and sentenced the first one to lifeand the other rigorous imprisonment for five years. However, in view ofimprisonment, they were directed to be detained in an approved school upto the age of 20 in the case of the girl and upto the age of 18 in thecase of the boy with a direction that after the expiry of their detentionin the School, they must be brought back to the prison. The Suo Mutorevisions were at the instance of the Director of Social Defence.Juvenile Justice Act 1986 was in consideration. In that judgment,reliance was placed on the judgment of the Supreme Court in VallabhapuramRavi's case and by this Court in Rajan's case. Finding that the convictprisoners cannot be allowed to be brought back before the regular prisonafter the expiry of their period of detention in the School (VallabhapuramRavi's case), this Court quashed the sentence. Once again we will have tostate that Karupayee's case, on facts, do not get attracted to the case on https://hcservices.ecourts.gov.in/hcservices/ hand. In Ramasamy's case, the Tamilnadu Borstal Schools Act itself wasunder consideration. It was a judgment by a Division Bench of this Court.Ramasamy was a prisoner was tried for the offence of murder. On beingfound guilty, he was sentenced to life imprisonment. His conviction wasconfirmed. An argument was advanced that he being an adolescent offender,he ought not to have been sentenced to imprisonment. This Court acceptedthat on the date of the crime as also on the date of conviction, theconvict prisoner was below 21 years of age. The argument advanced beforethis Court on behalf of the convict prisoner on the above issue is foundin paragraph 15 of the judgment and for clarity sake we extract paragraph15 here under:-"15. Learned counsel appearing for the appellant/accusedcontends that the learned Sessions Judge was justified insentencing the accused to imprisonment for life sinceadmittedly, the accused was an adolescent offender as at thetime of incident and also on the date of conviction he was below21 years of age. According to him, under Section 10-A of theTamilnadu Nadu Borstal Schools Act, if an adolescent offender isconvicted for capital punishment, he can be detained in aborstal school and he cannot be sentenced to imprisonment forlife. We find every force in the contention."In answering this issue, this Court referred to Vallabhapuram Ravi's case,Elumalai's case, Bhoop Ram's case and Karupayee's case (in paragraph 16 to19). Then this Court in paragraph 20 held as here under:"In view of the above, we are of the view that though theconviction of the appellant is sustained, his sentence isquashed as was ordered by the Supreme Court. In the result, theappeal is disposed of in the above terms."In the earlier portion of this judgment we have already found what are thefacts in Vallabhapuram Ravi's case, Bhoop Ram's case and Karupayee's case.In the first case, there was an order under Section 10-A of theAndrapradesh Borstal Schools Act. In Elumalai's case, the Supreme Courtwas considering the case of an adolescent offender, who had an order inhis favour under section 10-A of the Tamil Nadu Borstal Schools Act. Thequestion that came up before the Supreme Court in that case was, after theexpiry of the period of detention in the Borstal school, should theadolescent offender be brought back to the prison to serve the reminder ofthe imprisonment. In disposing of that appeal, the court directed theState of Tamil Nadu to release all inmates of the Borstal schools in TamilNadu who have attained 23 years of age – forthwith. It also held thatthe appellant before the Supreme Court, if he satisfies the upper agelimit prescribed under the Act, shall also be released forthwith. In thethird case, Uttar Pradesh Children Act was under consideration. InKarupayee's case, Juvenile Justice Act 1986 was under consideration. https://hcservices.ecourts.gov.in/hcservices/ Under Section 22 of the Juvenile Justice Act 1986 with which this Courtwas concerned in Karupayee's case, there is a total bar on the power ofthe Court to sentence any juvenile found guilty of an offence toimprisonment. Section 21 indicates the orders that can be passed by aJuvenile Court regarding delinquent juveniles and it excludes sentence ofimprisonment. Such is not the provision in the Tamilnadu Borstal SchoolsAct. In any event, we find that this Court in Ramasamy's case did nottake up the issue, namely, whether under the provisions of the TamilnaduBorstal Schools Act a person sentenced to imprisonment for life can bebrought under the purview of Section 8 of the said Act or not. Unless aspecific issue is raised and answered, any judgment, assuming it touchesupon the issue peripherally, cannot be said, we say with great respect, tohave laid down any law on the subject. From a reading of paragraph 20 ofthe judgment in Ramasamy's case, we find that the learned Judgesconstituting a Division Bench of this Court have simply followed fourcases referred to in paragraph 16 to 19 and held that whenever the outerperiod of detention in a school is exceeded, the sentence of imprisonmentmust be quashed, while in fact the four judgments relied upon by theDivision Bench are in different context; different facts and on differentprovisions of law. As already stated, with greatest respect to thelearned judges, we state in all humility that in Ramasamy's case, thisCourt has not laid down any law that any adolescent offender, who issentenced to imprisonment for life would, as a matter of right, beentitled to the benefit of Section 8 of the Tamilnadu Borstal Schools Act.23. Let us now go through the case law submitted before us by thelearned Additional Public Prosecutor. Just to refresh our memory at thisstage, the argument of the learned Public Prosecutor is that theprovisions of the Tamilnadu Borstal Schools Act 1925 would not apply to aperson, who is found guilty and sentenced to imprisonment for life. Wemay not hesitate also to say that in none of the judgments brought to ournotice by the learned counsel for the appellants this point was raised;argued and then decided. In Vallabhapuram Ravi's case, which arose underthe Andhra Pradesh Borstal Schools Act, this issue was not raised andanswered. What was in issue in that case was whether despite an orderpassed by the Government under Section 10-A of the Andhra Act and afterthe expiry of the period of detention prescribed under that Act can aconvict prisoner be brought before the regular prison or not to serve thereminder of the sentence and the Supreme Court answered in favour of theconvict prisoner. In Jayendra's case and Bhoop Ram's case, UttarpradeshChildren Act alone were under consideration, where under Section 27 of thesaid Act, there was a total bar on the part of any Court in the State ofUttar Pradesh to send any person to any type of imprisonment on he beingfound guilty. In Elumalai's case, there was an order under Section 10-Aof the Tamilnadu Borstal Schools Act, while in Karupayee's case, there wasno such order under Section 10-A of the Act. We have already madeourselves clear in the earlier portion of the judgment, while dealing withRamasamy's case, the Division Bench, which dealt with that case, aftertaking note of Vallabhapuram Ravi's case; Elumalai's case; Bhoop Ram's https://hcservices.ecourts.gov.in/hcservices/ case; and Karupayee's case, had come to a conclusion that the sentence ofimprisonment imposed on that appellant must be quashed. LearnedAdditional Public Prosecutor brought to our notice a direct judgment ofthis Court on the point reported in 1982 Law Weekly (Cri.) 217 (GanapathyIn re). No doubt in one of the judgments of the Supreme Court referred toearlier, this judgment is indicated to be overruled. On going through thejudgment of the Supreme Court, we have already found that overruling ofthis judgment is only to the limited extent, namely, Law laid down thatafter the expiry of the detention in the Borstal School, the convictprisoner must go back to the regular prison to serve the rest of hisimprisonment. Therefore, at the risk of repetition, we state that thejudgment of this Court in Ganapathi's case so far as it relates to theimpact of Section 8 of the Tamilnadu Borstal Schools Act, on a person, whois found guilty and sentenced to imprisonment for life stands good even ason date. To say in other words, Law laid down by this Court in the abovereferred to judgment is that a person convicted and sentenced to undergoimprisonment for life would not be covered by Section 8 of the TamilnaduBorstal Schools Act.24. The question raised in Ganapathi's case before a Division Benchof this Court is as here under:"18. A pertinent question arises in this context, whether anaccused, who stands convicted of an offence punishable underS.302, I.P.C. can be deemed to be an adolescent offender withinthe meaning of S.2(1) of the Act, so that S.8 of the Act can beinvoked in his case ans his detention in a Borstal Schoolordered....."The accused in that case was shown to be 18 years of age on 23.1.1980 whenhe was questioned under Section 313 of the Code of Criminal Procedure.The Court also found that on the date of conviction, the accused was notless than 18 years of age and not more than 21 years of age. Then theCourt referred to Section 2(1) and Section 8(1) of the Tamilnadu BorstalSchools Act and laid down the law that the term "imprisonment" occurringin the above referred to two sections would not include within its ambitthe sentence of "imprisonment for life". Learned Additional PublicProsecutor even before bringing to our notice this judgment, by referringus to Section 53 of the Indian Penal Code would contend that "imprisonmentfor life" would not come within the term "imprisonment" occurring in theabove referred to two sections. We find that even the Division Bench ofthis Court having regard to the expression "Imprisonment" found in theabove referred to two sections and Section 53 of the Indian Penal Codecategorically laid down as here under:"Therefore, a Court having jurisdiction under this Act canorder borstal detention of an adolescent offender under S.8 ofthe act only in cases where the offender would have been, in theopinion of the Court, otherwise liable for imprisonment https://hcservices.ecourts.gov.in/hcservices/ simpliciter falling within Cl.(3) of S.53, I.P.C. In otherwords, if the offender is, in the opinion of the court, liable tobe sentenced to imprisonment for life for the offence committedby him, then the Court cannot apply S.8 of the Act and order hisborstal detention. In such cases, the power is given only to theState Government under S.10-A of the Act."Therefore it is clear that this Court has laid down the law on the issueraised before us by Mr.R.Sankarasubbu, learned counsel for the appellantsagainst appellant No.2. Mr.R.Sankarasubbu, learned counsel, as alreadystated, made strenuous efforts to convince us that the expression"imprisonment" occurring in Sections 2(1) and 8(1) of the TamilnaduBorstal Schools Act would include within itself "life imprisonment". Forthis, he heavily relied upon the judgment of the Supreme Court reported in1985 SCC (Cri.) 280 (Bhagirathi's case) referred to supra. In that case,the Honourable Judges of the Supreme Court were interpreting theexpression "imprisonment for a term" found in Section 428 of the Code ofCriminal Procedure. The argument was that the said expression"imprisonment" would include "Imprisonment for life". The HonourableSupreme Court noted in paragraph 9 of the said judgment the arguments andthe counter arguments advanced before them on the basis of the provisionscontained in Section 53, 53-A (4) (a) and (b), 57,65 and 511 of the IndianPenal Code. On going through the judgment, we find, that the HonourableJudges in that case held that the above referred to sections do notmilitate against the view which have taken. We also hold with greatestrespect, that since on the point in issue raised on the very sameprovision of law with which we are concerned, a Division Bench of thisCourt had answered that issue against the accused, we are inclined tofollow the said judgment of this Court rendered in Ganapathi's case. Asalready noted, only a portion in the judgment of this Court in Ganapathi'scase, which declared that after the expiry of the detention in the BorstalSchool, the life convict prisoner must go back to the regular prison toserve the rest of the imprisonment alone, was reversed by the SupremeCourt in one of the cases referred to earlier. In this case, all theappellants have been convicted and sentenced to undergo imprisonment forlife. Though appellant No.2 is an adolescent offender, having regard tothe punishment to which he had been sentenced, namely, life imprisonment,we have no hesitation in the face of the judgment of this Court inGanapathi's case referred to supra, the argument advanced by Mr.R.SankaraSubbu, learned counsel for the appellants, that this Court should extendthe benefit of Section 8 of the Tamilnadu Borstal Schools Act to thesecond appellant; since appellant No.2 had already crossed the upper agelimit of 23 prescribed under the above referred to Act for his detentionin the Borstal School, his sentence must be quashed, has to be rejected.In all the cases, namely, Vallabhapuram Ravi's case and Elumalai's case,there was an order under Section 10-A of the respective State BorstalSchools Act. In Bhoop Ram's case and and Jayendra's case, Uttar PradeshChildren Act alone was under consideration. Only in Ramasamy's case, aDivision Bench of this Court quashed the sentence following the above https://hcservices.ecourts.gov.in/hcservices/ referred to judgments. Since we find that there is a direct judgment ofthis Court (a judgment of a Division Bench) on the issue and since thereis no other direct judgment on the point in issue, following the judgmentof this Court in Ganapathi's case, we reject the argument advanced by thelearned counsel for the appellants. Mr.Sankara Subbu, learned counsel forthe appellants made a submission that under Section 10-A of the TamilnaduBorstal Schools Act the Government has the power, in fact this Court inGanapathi's case said that in all cases where life imprisonment is thesentence given, then only the State Government has the power under Section10-A of the Tamilnadu Borstal Schools Act. Therefore we do not want toenter the domain of the Government under Section 10-A of the Act.25. In AIR 1949 Madras 109 (In re Krishnaswami alias Kittan), theappellant was found guilty of the offence of murder and sentenced totransportation for life, which is equivalent to imprisonment for life. Itwas conceded before the Bench that Section 8 of the Tamilnadu BorstalSchools Act would not apply and the only power available is under Section10-A of the said Act. That is a concession given before the DivisionBench. We find that the Division Bench recommended the case of theconvict prisoner to the Government's consideration under Section 10-A ofthe Tamilnadu Borstal Schools Act. In AIR 1955 Andhra 118 (In reT.Munirathnam Reddi), after confirming the conviction and sentence of lifeimprisonment and on the facts noted therein, the Andhra Pradesh High Courtreferred the prisoner's case to the Government for consideration underSection 10-A of the Andhra Pradesh Borstal Schools Act. In those twocases, when recommendations were made to the Government, the Court hadenough materials on record. For the Government to exercise the powerunder Section 10-A of the Tamilnadu Borstal Schools Act, the requirementsmentioned therein must be satisfied. Therefore, what would weigh theGovernment in testing whether it would be advantageous to detain thedetenu in the Borstal School or not is a matter which lies purely withintheir domain. Under these circumstances, we are not inclined to give apositive recommendation to the Government to consider the case of thesecond appellant under Section 10-A of the Tamilnadu Borstal Schools Act.But however, we say, if the second appellant makes any request to theGovernment to consider his case under Section 10-A of the TamilnaduBorstal Schools Act, it is for them to decide the issue in a manner knownto law without in any way being influenced by anything said by us in thisjudgment. 26. If any request is made by the second appellant to the Governmentto exercise their power under Section 10-A of the Tamilnadu BorstalSchools Act, then the Government is directed to consider the said requestas indicated earlier and take a decision there on, in any event, not morethan three months from the date of receipt of such a request. https://hcservices.ecourts.gov.in/hcservices/

27. Consequently, the appeal stands disposed of as here under:The judgment under challenge so far as appellants 1 and 2are concerned convicting them for offences under Sections 294(b)I.P.C. and 302 read with 34 I.P.C. is confirmed. The judgmentof conviction convicting A3 and A4 for the offence under Section302 read with 34 I.P.C. is set aside and they are accordinglyacquitted. Fine amount, if any, paid by them for the saidoffence shall be refunded forthwith. The judgment of convictionconvicting A3 and A4 for the offence under Section 324 I.P.C.stands confirmed. If A3 and A4 had suffered the sentence ofimprisonment imposed on them for the conviction under Section 324I.P.C., then they are directed to be set at liberty forthwithunless their detention is required in any other case.slSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional District and Sessions Judge, Fast Track Court-II, Salem.2. -Do-Through The Principal Sessions Judge, Salem.3. The District Collector, Salem District, Salem.4. The Director General of Police, Mylapore, Chennai-4.5. The Superintendent of Central Prison, Coimbatore.(with 3 copies for communication to the accused)6. The public Prosecutor, High Court, Madras.7. The Inspector of Police,Veeranam Police Station, Salem District.1 cc To Mr.R.Sankarasubbu, Advocate, SR.31768.Crl.A.No.1308 of 2003& C.M.P.No.1601/2006HPR(CO)RVL 08.08.2006