Gangadhara Rao, J.
1. Criminal Appeals Nos. 362 of 1980 and 591 of 1980 are preferred by the the sole accused in Sessions Case No. 55 of 1979 on the file of the Sessions Judge Adilabad. While Criminal Appeal No. 591 of 1980 is preferred by him from jail, Criminal Appeal No. 362 of 1980 is preferred by an Advocate on instructions from his relatives. The appellant is thus common in both these appeals.
2. The appellant, Pasupula Narasaiah, is an young boy. He was convicted under S. 302, I.P.C. and sentenced to imprisonment for life. He was also convicted under S. 380 and sentenced to suffer rigorous imprisonment for two years by the learned Sessions Judge. Adilabad. The learned Judge directed that the two sentences should run concurrently.
3. The case of the prosecution is briefly as follows : The appellant is a resident of Sarangapur village. He was aged about 14 of 15 years. He was working as a farm servant under Sandu Nadipi Rajam. The deceased, Advala Ashamma, was an old woman aged over 50 years. She was living alone in her house at Sarangapur village. Her sons, who were married, were living separately in the same village.
4. On 9-9-1979 at about 11 p.m., Sandu Pochalu (P.W. 2), a resident of that village and a neighbour of the deceased, heard some cries coming from the direction of the house of the deceased and he saw the appellant running out of that house. He gave a chase. Meanwhile, on hearing the cries, Chepuri Chinnamma (P.W. 4), Gurram Devagoud (P.W. 5) and Advala Ramulu (P.W. 6) came there. They caught hold of the appellant and tied him to an electric pole in front of the house of P.W. 5. On being questioned, the appellant confessed before them that, in order to commit theft of the gold ornament, he had killed the deceased. He showed the gold padigalu (M.O. 3) which were with him. Thereupon, Padham Rajadu (P.W. 3), who is a village servant, was sent to bring the Police Patel. On the next day morning, Mamidi Lingareddy, Police Patel (P.W. 1) came to the village. He saw the deal body of Ashamma and after enquiring the witnesses, he sent a report (Ex. P-1) to the Police Station at Khanapur. The Sub-Inspector of Police, Khanapur (P.W. 9) registered the crime, issued express F.I.R. (Ex. P-5), came to the village and held inquest over the body of the deceased in the presence of P.W. 5 and other panchayatdars. Ex. P-2 is the inquest report. He sent the body of the deceased to the Medical Officer, Khanapur (P.W. 8) for post-mortem examination. He examined P.Ws. 1 to 6 and others in the village. The Inspector of Police (P.W. 10), who received the message about the offence, reached the village and took over investigation. He seized the gold padigalu (M.O. 3) from the appellant under a mahazarnama (Ex. P-3) in the presence of P.W. 5 and others. He arrested the appellant. The Woman Assistant Surgeon, Government Hospital at Khanapur (P.W. 8) conducted autopsy on the body of the deceased. She opined that the deceased died due to asphyxia and issued the post-mortem certificate (Ex. P-4). The Inspector of Police (P.W. 10) after completing the investigation, filed the charge-sheet.
5. The appellant pleaded innocent and stated that he was taken away in the morning while he was asleep. According to him, his date of birth was 8-3-1966 and he examined a purohit (D.W. 1), who had written his horoscope.
6. Believing the prosecution evidence, the learned Sessions Judge convicted the appellant.
7. In this appeal, it is submitted by Sri Ananda Rao, the learned counsel for the appellant that there is no direct evidence, that this was a case of circumstantial evidence, that the evidence adduced by the prosecution is not cogent and clinching and, therefore, the learned Sessions Judge erred in finding the appellant guilty. He further submitted that, in any event, the learned Sessions Judge erred in committing him to prison instead of sending him to the Junior Certified School under the Andhra Pradesh (Telangana Area) Children Act, 1951.
8. We were taken through the evidence. It is true that there is no direct evidence for the murder or with regard to the theft of the gold ornaments from the person of the deceased. But we have no reason to disbelieve the evidence of P.Ws. 2 to 5. According to them, the appellant was caught redhanded while running away from the direction of the house of the deceased. On enquiry, he confessed before them that, in order to commit theft of the gold ornament of the deceased, he had killed her by throtting, by putting a cloth into the mouth of the deceased and he had produced the gold padigalu (M.O. 3) from his bag P.W. 7 the wife of P.W. 6 and the daughter-in-law of the deceased, had identified the gold padigalu (M.O. 3) as belonging to the deceased. It is not shown to us as to why we should not believe their evidence. Consequently, we confirm his convictions under Ss. 302 and 380. I.P.C.
9. We are of the opinion that the learned Sessions Judge committed a grave error in committing a grave error in committing the appellant to the regular prison. He himself had stated in paragraph is (sic) of his judgment that the appellant is an young person aged about 14 or 15 years. The appellant contended that he was born on 8-3-1966. He examined K. Gangaram (D.W. 1), the purohit of the village. D.W. 1 deposed that he had written the horoscope of the appellant and according to it, the date of birth of the appellant is 8-3-1966. Practically, there was no cross-examination. In these circumstances, we hold that the appellant was born on 8-3-1966. If so, he was under fourteen years of age when he committed the offences on 9-9-1979 and he could not have been sent to the prison. The Andhra Pradesh (Telengana Area) Children Act, 1951 squarely applies to him. Section 2(d) defines 'Child' as meaning a person under the age of sixteen years and, when used with reference to a child sent to a Certified School, applies to that child during the whole period of his detention notwithstanding that the child may have attained the age of sixteen years. Section 21 of the Act provides that notwithstanding anything to the contrary contained in any law, no child shall be sentenced to death or transportation or committed to prison, provided that a child who is fourteen years of age or upwards may be committed to prison where the Court certifies that he is of so unruly or of so depraved a character that he is not a fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable. According to S. 23, where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on enquiry that it is expedient so to deal with the child, may order him to be sent to a certified school.
10. In the light of these provisions, the appellant should have been sent to a certified school. It is rather surprising that the Sessions Judge or the Counsel for the appellant or the Public Prosecutor has completely ignored this fact. At least, having seen the child in the Court, if they had made a little effort and enquiry, they would have realised that the appellant could not have been sent to a prison. The lower Court has also overlooked the provisions of S. 361, Cr.P.C. It provides that, if an accused person could not be tried under the Probation of Offenders Act or the Children Act or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, the Court shall record in its judgment the special reasons for not having done so.
11. The Courts should bear in mind that there are : (1) The Probation of Offenders Act, 1958; (2) The Andhra Pradesh Borstal Schools Act, 1925; (3) The Andhra Pradesh (Andhra Area) Children Act, 1920; (4) The Andhra Pradesh (Telangana Area) Children Act, 1951; and (5) The Andhra Pradesh (Telangana Area) Children Protection Act (IX of 1343 Fasli) for dealing with children and adolescent offenders. The provisions of those beneficial enactments should be scrupulously invoked while dealing with such offenders.
12. It was brought to our notice that the Andhra Pradesh Legislature had passed the Andhra Pradesh Children Act, 1979 (Act 26 of 1979). It extends to the whole of the State of Andhra Pradesh. Sub-section (3) of S. 1 of that Act provides that it shall come into force on such date as the State Government may, by notification, published in the Andhra Pradesh Gazette, appoint. We are informed by the learned Public Prosecutor that till today the Andhra Pradesh Children Act, 1979 had not been brought into operation by the State Government by issuing a notification under sub-section (3) of S. 1. It is rather strange and unfortunate. It is a beneficial enactment designed to protect the children and we are at a loss to understand that the State Government should be so indifferent till today as not to bring it in force. We hope and trust that the Government will at least now bring the Act into force by issuing a notification under subsection (3) of S. 1 of the Act.
13. In the case on hand, we hold that the appellant's date of birth is 8-3-1966. He will be completing 18 years only be 7-3-1984. We, therefore, direct that the appellant should be sent to the Senior Certified School at Yakutpura, Hyderabad. He should be detained there till 7-3-1984. We are informed by the learned counsel for the appellant that the appellant was released on bail on 29-4-1980. He shall surrender before the Superintendent, District Jail, Nizamabad, from which he was released on bail and that superintendent shall immediately transfer him to the Senior Certified School at Yakutpura, Hyderabad. Accordingly, both the appeals are allowed.
14. Appeals allowed.