Shiv Dayal, J.
1. Gangaram, who appears to be a lad of 13 or 14 years, has been convicted of the offence under Section 302 of the Penal Code, by the Additional Sessions, Judge, Jagdalpur.
2. Gangaram appellant and Ghanshyam, the deceased, were nearly of the same age, both residents of village Bhanbeda. On November 1, 1961, they both went out from Bhanbeda village together. At that time the accused had a Pharsi, while the deceased had a Tangia. They did not return to their village that night, but stayed at the house of Cherku (P. W. 7) in village Dabkatta. Next day, Cherku asked Itwari (P. W. 5) to reach the boys to their village. On their way, the two boys slipped away. On the evening of Thursday, Gangaram accused alone returned to the village. When he was asked about Ghanshyam, he stated that he and Ghanshyam had been lifted in a truck by some Dandukaranyawalas, but he (Gangaram) could manage to jump out of the truck.
This answer was not satisfactory. Raghunath (P. W. 3), father of the accused asked him how it was that he did not receive any injury when he jumped out of the truck. Eventually, Gangaram confessed his guilt to his father the next morning. Raghunath took the accused to the house of Baldeo Patel (P. W. 2) where some inhabitants of the village had assembled in connection with Ghanshyam being not traced out. There, the accused confessed before them that he had killed Ghanshyam in the jungle. He then took them to Chamraguda forest and pointed out the dead body. Later on, he made a confession before a Magistrate and also admitted his guilt before the committing Magistrate. He retracted his confession before the trial Judge.
3. It is established by the evidence of Mst, Sagni (P. W. 9) that both the boys had started together from village Bhanbeda a day prior to the occurrence, It is proved by the evidence of Cherku (P. W. 7) that the two boys stayed at his bouse in village Dabkatta. Itwari (P. W. 5) is the witness who started with the boys from village Dabkatta on the day of the occurrence, that is, the 2nd November, Admittedly, Gangaram returned alone to the village.
4. There were a number of injuries caused by a sharp cutting weapon on the person of Ghanshyam, as proved by the medical evidence. His death, undoubtedly, was homicidal.
5. Premlal (P. W. 1), Baldoo (P. W. 2) and Raghunath (P. W. 3) prove the extra-judicial confession of the accused made on the morning of the 3rd November. Raghunath is the father of Gangaram. There is no reason why he would falsely implicate his own son.
6. It is proved by these three witnesses and Amersingh (P. W. 4) and Ratiram (P. W. 8) that the accused took them to the forest and pointed out the dead body. All this evidence was sufficient to hold the accused guilty of the offence of murder. Over and above this, there is the confessional statement (Ex. P-19) of the accused before a Magistrate, in which he stated that in the jungle Ghanshyam proposed to Gangaram to commit unnatural offence with him, but Gangaram did not agree. Ghanshyam resented this. Thereupon, the accused struck two blows with his axe on Ghanshyam's neck and two more blows on the hand. Before the committing Magistrate also, he admitted to have hit Ghanshyam with his axe and also gave the same cause, although the version is not exactly the same. In the Court of Session, the accused resiled from his earlier statement, and stated that Ghanshyam asked him to agree to the unnatural offence being committed, but the accused refused; thereupon, Ghanshyam wanted to assault him with his Tangia; and in self-defence, he dealt one blow to Ghanshyam with his Pharsi and ran away. The accused, no doubt, had been varying his statement on different occasions, but every time he admitted to have hit Ghanshyam with the axe.
7. It could be argued for the appellant (who is not represented by a counsel) that even if his statement which he made before the Committing Magistrate is accepted as true, he would be entitled to the benefit of the first exception to Section 300 of the Penal Code. We have considered this aspect of the matter. There are three statements of Gangaram on the record; (1) Confessions (Ex. P-19) recorded on 20-11-1961; (2) statement before the committing Court (Ex. P-23), dated 6-3-1962; and (3) statement in the Court of Sessions recorded on 21-6-1962. In all these statements he admits to have struck Pharsi to Ghanshyam.
8. In the Sessions Court he tried to make out a case of self-defence, i.e. Ghanshyam prepared himself to attack him with his Tangia, whereupon, in order to save himself, he assaulted Ghanshyam with his Pharsi. But this was an afterthought. He did not say so either in his confession (Ex. P-19) or before the committing Magistrate (Ex. P-23). Nor does this improvement in his story finds support in the record.
9. It is true that the accused consistently says that the deceased had proposed to commit unnatural offence on him to which he did not agree. In his confession he said that on his refusal Ghanshyam became angry; then they both sat down and Ghanshyam became quiet; thereafter, the accused dealt a blow on Ghanshyam's neck. To the committing Magistrate (Ex. P-23) he said that Ghanshyam's demand was met by him by a counter-demand, whereupon, Ghanshyam said that he would relate that matter to his father. The accused thought that Ghanshyam's father would beat him and that he would also be beaten by his own father and brother. This thought persuaded him to deal Pharsi blows on Ghanshyam which resulted in the letter's death.
Firstly, this story is not consistent with his earlier confessional statement which we have believed to be true. Secondly, these circumstances, assuming them to be true did not furnish to him any grave and sudden provocation within the meaning of the first exception to Section 300 of the Penal Code, For reasons we have already stated, we are relying on his statement before the committing Magistrate. We find him amply corroborated in his confession (Ex. P-19) and we have rejected the improvement introduced by him in the Court ofSession. The extra-judicial confession which he made to his father also supports this part of his statement before the committing Magistrate that it was he who assaulted Ghanshyam and that was the cause of his death. We do not believe the circumstances stated by Raghunath to have been narrated to him by his son as to what led him to commit murder.
10. In these circumstances, the conviction is well founded and is maintained.
11. The question is whether the offence under Section 302 of the Penal Code falls within the purview of Section 8 of the Reformatory Schools Act, 1897, which provides that whenever a youthful offender is sentenced to transportation or imprisonment, the Court may direct that instead of undergoing his sentence he shall be sent to a Reformatory School. 'Youthful offender is thus defined in Section 4(a) of the Reformatory Schools Act, 1897, (as amended by the local Act No. VI of 1935):
'4(a). 'Youthful offender' means any boy who has been convicted of any offence punishable with transportation or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who at the time of such conviction or sentence, was under the age of sixteen years.'
The offence under Section 302 of the Penal Code is punishable not only with transportation for life but also with death (for the sake of better understanding of the true interpretation of the definition, I am studiously using the word 'transportation' in this discussion). Is the offence, therefore, excluded from the purview of the above definition? To put it differently, is the above definition restricted to the offences which are punishable only with transportation or with imprisonment and is inapplicable to an offence which is also punishable with death?
12. The object of the enactment is obvious enough. Sending of youthful offenders to ordinary jails has the effect of making them hardened criminals. They were to be safeguarded against this evil irrespective of the term of imprisonment or transportation so that the definition is so widely worded as to bring within its scope every offence which is punishable with transportation or imprisonment irrespective of the term. The only offences to which the definition does not apply--and there is no point in applying it to them--are those for which the law does not provide for punishment with transportation or imprisonment at all. Section 53 of the Penal Code, as it was worded when the Reformatory Schools Act, 1897, was enacted, enumerated six kinds of punishments.
Then this evil which was intended to be safeguarded against by the Act was present only In the punishment with transportation or imprisonment but not in others, e.g., death sentence or sentence of forfeiture of property or fine. To an offence for which death penalty alone is provided (see Section 303 of the Penal Code), or where only fine can he imposed, application of this Act is meaningless. On a natural and plain meaning of Section 4(a), the very fact that an offence is punishable with transportation or imprisonment is sufficient. If the intention of the legislature were to exclude those offences which are punishable with death also, the wording would have been 'any offence not punishable with death', instead of 'any offence punishable with transportation or imprisonment'.
12a. On this analysis, the only questions to be asked are: (1) Is the offence punishable with transportation? and (2) Is the offence punishable with imprisonment? If the answer to either of them is in the affirmative, then it is within Section 4(a) of the Act, if the answers to both of them are in the negative, then only the offences will be outside the definition. Therefore, in my judgment, it is enough to bring an offence; under Section 8, read with Section 4(a) of the Reformatory Schools Act, 1897, that the offence is punishable with transportation or imprisonment and it is immaterial that it is also punishable with death or fine or any other kind of punishment. This view is supported in Ulla v. The King, AIR 1950 Orissa 261 where Mr. Justice Jagannadhadas, as his Lordship then was said:
'He is none the less so, though Section 302, Penal Code, is also punishable with death. It is enough to satisfy the definition of 'youthful offender' in the Act if the offence of which he is convicted is also punishable with transportation.'
13. The word 'transportation' in the above definition must now be deemed to have been omitted by virtue of Section 53A(4)(b) of the Penal Code, which was enacted under the Schedule to Section 117 of the Code of Criminal Procedure (Amendment) Act, No. 26 of 1955.
14. In the result, the conviction and sentence of the appellant are maintained. The case is sent back to the trial Judge to enquire into the question of the age of the accused and record a finding thereon stating the age as nearly as may be. If it is found that on June 22, 1962, (the date on which the appellant was convicted by the trial Judge), the appellant was under the age of 16 years, he shall be sent to a Reformatory School under Sections 8 and 13(2) of the Reformatory Schools Act, and be detained there for 7 years or until he attained the age of 18 years whichever is earlier.
15. I agree with the order proposed, except with the direction that this is a fit case for the exercise of the powers conferred on this Court under the Reformatory Schools Act, 1897 (hereinafter called 'the Act'). In my opinion, in the first place, the offence under Section 302 of the Indian Penal Code is outside the jurisdiction of that Act, and, secondly, on the facts and circumstances of the case, the accused-appellant is not a proper person in whose favour the powers, even if available, should be exercised.
16. The Act applies to a 'youthful offender'. Section 8 of the Act, which empowers Courts to direct youthful offenders to be sent to Reformatory Schools, says--
'Whenever any youthful offender is sentenced to imprisonment, and is, in the judgment of the Court by which he is sentenced, a proper person to be an inmate of a Reformatory School, the Court may, subject to any rules made by the State Government, direct that, instead of undergoing his sentence, he shall be sent to such a school, and be there detained for a period which shall be not less than three or more than seven years.'
The expression 'youthful offender' is defined in Section 4(a) of the Act. According to that definition read along with the Central Provinces and Berar Act X of 1928, as amended by Act VI of 1935, and Section 53A of the Indian Penal Code, a 'youthful offender' means--
'Any boy who has been convicted of any offence punishable with imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years'.
The question, therefore, arises whether the accused appellant is a 'youthful offender' within the meaning of the Act. This in turn raises the question whether an offence under Section 302 of the Indian Penal Code can be said to be 'any offence punishable with imprisonment' within the meaning of the aforesaid definition.
17. Section 53 of the Indian Penal Code tells us that there are five kinds of punishments to which offenders are liable under the provisions of the Code,--first, Death; secondly, Imprisonment for life; thirdly Imprisonment (rigorous or simple); fourthly, Forfeiture of Property; and fifthly, Fine. It is also the scheme of the Code that generally maximum punishments are prescribed leaving the minimum to the discretion of the Judge who would have the means in each case of forming an opinion as to what sentence would meet the ends of justice in that particular case. However, in offences of the gravest nature, it has prescribed both the maximum and the minimum punishments.
Keeping this scheme in view, I am of opinion that in any attempt at a classification of offences with reference to punishments prescribed for them, it would be more in consonance with the aforesaid principle to understand the classification as implying that the offences Lave been classified with reference to the maximum punishments to which an offender may be liable in respect of them. Thus, when we speak of a capital offence, we imply that an offender committing it is liable to be sentenced to death, not that he must necessarily be sentenced to death, for in most cases imprisonment for life has been also prescribed as an alternative sentence to the sentence of death. In my opinion, the word 'punishable' when used in the phrase 'punishable with imprisonment', as categorising offences with reference to punishments, itself implies a liability to punishment which is the highest in the hirearchy of punishments for that class of offences.
18. The expression 'offences punishable with imprisonment' ordinarily has two meanings. It may mean offences in which imprisonment is one of the permissible punishments prescribed, or it may mean offences, the commission of which exposes the offender to imprisonment as its highest penalty, though, in fact, he may be sentenced to any prescribed sentence short of that. What meaning the expression bears in a particular context would depend on its use in that context; and in my opinion, when used to categorise offences so that offenders committing them are to be differently sentenced, then it must bear the latter meaning.
19. On this view, broadly speaking, there can be offences punishable with death, i.e., offences for which the maximum penalty to which an offender can be subjected is death; offences punishable with imprisonment for life, i.e., offences for which the maximum penalty can be imprisonment for life; offences punishable with imprisonment, i.e., offences for which the maximum penalty can be imprisonment, short of imprisonment for life; and lastly, offences punishable with fine, i.e., offences for which the maximum penalty can be a sentence of fine only. It would thus be seen that 'imprisonment for life' is a form of punishment distinct from imprisonment simpliciter and both are distinct and different from the sentence of death; and, in my opinion, 'offences punishable with imprisonment for life', which must be treated as offences of a separate category. For, whereas the former, viz., 'imprisonment', can be of two categories--simple and rigorous--, the latter, viz., 'imprisonment for life' can only be rigorous; and, again, whereas 'imprisonment' can be for any period from twenty four hours to fourteen years in accordance with the period prescribed in the Penal Code, the sentence of 'imprisonment for life' can mean but one thing, namely, rigorous imprisonment for twenty years.
20. An offence under Section 302 of the Penal Code is punishable with death, or imprisonment for life, and also with fine. The law thus prescribes for that offence a maximum as well as a minimum punishment. The minimum punishment prescribed is, no doubt, imprisonment for life; but, as explained above, it cannot be said that it is a form of punishment which is included in the expression 'imprisonment' as used in Section 53 of the Code or Section 4(a) of the Act. In any ease, it cannot be said that murder is an offence which is 'punishable with imprisonment'. To so describe it would be a mis-description of that offence.
21. Some help in the interpretation of the phrase can also be derived from the phraseology in Section 4(a) of the Act. It makes a distinction between an offender who has been convicted of any 'offence punishable with imprisonment' and an offender who has been 'sentenced to imprisonment'; and I think that this distinct ton is not without substance. 'Liability to punishment for an offence' is something different from the actual sentence awarded therefor. While, the first implies the limit to which a sentence can go, the second implies that which the justice of the case warrants or requires under the fads and circumstances of any particular case. The fact, therefore, that a sentence of 'imprisonment for life' can he awarded for an offence under Section 302 of the Penal Code cannot warrant its being called an offence 'punishable with imprisonment'. If it were the intention of the Act to include within the ambit of the expression 'punishable with imprisonment' all offenders against whom a sentence of imprisonment bad been passed irrespective of the nature and gravity of the offence of which they had been convicted, it could well have more, simply defined the expression 'youthful offender' under Section 4(a) by saying as 'any boy who has been convicted of any offence and sentenced to imprisonment therefor &c;'.
If the mere fact of having been sentenced to a term of imprisonment for any offence were the criterion to attract the provisions of the Act, it would not have been necessary to co-relate the conviction with an offence 'punishable with imprisonment'. On the other hand, the fact that the Legislature has attempted to co-relate convictions with the offences and not with the sentence of imprisonment, and at the same time classifying the offences with reference to punishment, shows that the mere fact that an offender was sentenced to a term of imprisonment was not enough as it was further necessary that the offence was of a class which was 'punishable with imprisonment'. So that, if the offence was punishable with something more than imprisonment, viz., with death or imprisonment for life, then it was not meant to be included amongst the offences to which reference was made in Section 4(a) of the Act.
22. I am aware that in AIR 1950 Orissa 261, a contrary view has been taken. But, with due deference to the learned Judges who decided that case, I do not agree that it was enough to satisfy the definition of 'youthful offender' in the Act if the offence of which the accused had been convicted was also punishable with imprisonment. In my opinion, an offender committing an offence may be punished with imprisonment and yet the offence of which he has been convicted may not belong to that class or category of offences which are punishable with death or with imprisonment for life in the sense explained by me above.
23. I am also of opinion that looking to the gravity of the offence and the circumstances and the manner in which it was committed by the accused-appellant, this is not a fit case in which he can be given the benefit of Section 8 of the Act.
24. I, therefore, differing from my learned brother, uphold the conviction and sentence of the accused-appellant Gangaram and dismiss the appeal.
ORDER OF REFERENCE
T.P. Naik and Shiv Dayal, JJ.
25. As we have differed in our opinions as to the applicability of the Reformatory Schools Act to, the facts and circumstances of this case, we hereby direct that the case shall now be laid before My Lord the Chief Justice for constituting a Bench which shall deliver its opinion in accordance with the provisions of Section 429 of the Code of Criminal Procedure.
26. This appeal has been laid before me on a difference of opinion between Naik, J. and Shivdayal, J., mainly on the question whether the appellant Gangaram, a boy of 13 or 14, who they agree is guilty of an offence punishable under Section 302 of the Indian Penal Code, can be regarded as a youthful offender within the meaning of Section 4(a) of the Reformatory Schools Act, 1897, which will hereinafter be called the Act.
27. The facts of the case are set out in paragraph 2 of the opinion recorded by Shivdayal, J. For the reasons therein given, with which Naik, J. concurred, I agree that the evidence conclusively establishes that Gangaram cruelly killed his companion Ghanshyam (11 or 12 years) by means of an axe only because he refused to submit to carnal intercourse against the order of nature. In my opinion, his conviction under Section 302 of the Indian Penal Code should be upheld.
28. On the main point of difference, Shivdayal, J. is of the opinion that an offence punishable with transportation within the meaning of Section 4(a) of the Act does not exclude an offence, which is also punishable with death in the alternative. There is some support for this view in Rama v. Emperor, 4 Nag LR 180, Daljit Singh v. Emperor, AIR 1987 Nag 274 and also in AIR 1950 Orissa 261. This view is grounded upon an interpretation of Clause (a) of Section 4 of the Act which read as follows:
'4(a) 'Youthtul offender means any boy who has been convicted of any offence punishable with transportation or imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years.'
That clause must be regarded as amended by Section 53A of the Indian Penal Code which was enacted by the Code of Criminal Procedure (Amendment) Act, XXVI of 1955. As pointed out by Naik, J., now it reads:
' 'Youthful offender' means any boy who has been convicted of any offence punishable with imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years.' The question, therefore, is whether murder, the lesser penalty for which is imprisonment for life, is an offence punishable with imprisonment. I am of the view that murder cannot be called an offence punishable with imprisonment only because the lesser penalty for that offence is imprisonment for life. As provided by Section 53 of the Indian Penal Code, the punishment of imprisonment for life is in a category different from the one providing for the punishment of imprisonment, rigorous or simple. Secondly, it is usual to describe an offence with reference to the maximum punishment provided therefor. An example is Section 497, Criminal Procedure Code. Under that section, bail cannot be granted if there are reasonable grounds for believing that the accused has been guilty 'of any offence punishable with death or imprisonment for life.'
This expression has been interpreted disjunctively as including offences like those under Section 307 of the Indian Penal Code, the maximum sentence for which is imprisonment for life: Emperor v. Nga San Htwa, ILR 5 Rang 276: (AIR 1927 Rang 205) (FB), Naranji Premji v. Emperor, AIR 1928 Bom 244 and Emperor v. Mst. Janki, 28 Nag LR 260: (AIR 1932 Nag 130). Finally, I do not consider it right to interpret Clause (a) of Section 4 of the Act as if it did not take into account the gravity of the offence and merely provided for substituting in all cases the sentence of imprisonment by a term in the Reformatory School. If it were so, that could have been more easily provided as follows;
' 'Youthful offender' means any boy who has been convicted of any offence and sentenced to imprisonment or who has been sentenced to imprisonment under Section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence, was under the age of sixteen years.'
In my opinion the offence of murder, which is punishable with death or imprisonment for life, is not included in the offences referred to in Clause (a) of Section 4 of the Act As pointed out in 4 Nag LR 180 and AIR 1937 Nag 274, a youthful offender convicted of murder should not ordinarily be sent to the Reformatory School. This is the more so, when the conduct of Gangaram, besides being extremely cruel, exhibits great depravity. It is also implicit in the rules framed by the State Government under Section 8 of the Act that boys habituated to committing unnatural offence should not be sent to the Reformatory School. I, therefore, agree with Naik, J. that, having regard to the cruelty which Gangaram exhibited in committing the crime and the attending circumstances, the benefit of Section 8 of the Act should not be extended to him. In this view, I am of opinion that the sentence of imprisonment for life awarded to Gangaram should be affirmed