D. Dua, J.
(1) This appeal is directed against the order of the learned Additional Sessions Judge, Delhi, convicting Mohan Sing appellant under Section 302, India Penal Code, for the murder of Tirath Ram by giving him knife blow. He was liable to be sentenced to death or to imprisonment for life but the court below relying on Section 22 of the Bombay children Act (Bombay Act XIII of 1924) as extended to Delhi Administration under Section 26 of this act to pass such orders as the said Administration may thing fit and proper for the detention of the accused. Till the receipt of the orders of the Delhi Administration, Mohan Singh accused was directed to be kept in safe custody in the Remand House where he was kept during the trial. This order was passed on 24-5-61. On 28-9-1961 the learned Additional Session Judge in accordance with the direction of the Chief Commissioner ordered that the appellant be detained in Reformatory School, Hissar, till the attained the age of 18 years and thereafter to be detained in Borstal School Ferozepur till attained the age 21 years. It was necessary point out here that the accused was considered to be 15 years old on 16-8-1960. The offence will committed on 26-7-1960. He was therefore youthful offender as defined in Sec 3(c) of the Bombay Children Act, being under the age of years at the time of the commission of the fence. It is these circumstances that the present appeal has been preferred.
(2) To begin with the learned counsel for the appellant addressed arguments challenging Judge order of the learned Additional Sessions Judge directing the appellant's detention is the Borstal School Ferozepur after he attains the age of years. This argument has been addressed on the assumption that the assumption that the conviction is justified and the deed the learned counsel stared her contention by submitting that in case she failed to persuade us to agree with her on this point she would address arguments on the merits of the conviction. In support of this contention we have been referred to High Court Rules and Orders Vol. III Chapter 22-D which contains the instructions issued by the Punjab Government in its circular dated 4-2-1939 on the subject of Borstal Jail extracts. The learned counsel has contended that it is not proper for the appellant to be sent to Borstal Jail after he attains the age of 18 years because there he would be in the company of more hardened criminals which would have an more hardened criminals which would have any more hardened criminals which would have an more hardened criminals which would have an unwholesome effect on him and that he may come out of the Borstal Institution a more hardened criminal. She has emphasised that according to her information the appellant is behaving in the exemplary manner in the Reformatory School and that after three years there is every likelihood rather than kept in the Borstal Institute for another period of three years which may undo the good effect of his detention in the Reformatory School. In support of this contention she has referred us to the various passages in Chapter 22 D mentioned above. I am however unable to persuade myself to agree with this contention. In my opinion keeping in view the tendencies of the appellant at this young age it would be far better for him to remain in the Borstal Jail after the age of 18 years and to remain under certain discipline.
(3) The appellant's learned counsel has suggested to us to look at the report under Sec 27-A of the Bombay Children Act secured by the Court below in this case. Since she had not so far been shown this report she was not aware about its contents. We have accordingly looked at the report relating to appellant Mohan Singh. Report previous too the appellant had been arrested under a theft case but was acquitted. The Station House Officer Lajpat Nagar was also contacted who stated that except the theft case there was no other legal record against the appellant's. Regarding the family history the appellants father is one Balwant Singh 55 years old doing dairy worse and his mother Smt. Harbans Kaur aged 50 years also doing dairy work. then there are the following members of the family mentioned:--
1. Raj Kaur 35 years old married at Jhansi her husband being a clerk in Railways.
2. Inder Singh 33 years old married also working in the dairy with his father. He is read up to VII or VIII class.
3. Gurcharan Singh about 28 years old is a graduate and is married. He is serving in the Ministry of External Affairs as a clerk.
4. Mangal Singh 26 years old read up to Intermediate is married and is a Stenographer in Air Force.
5. Balbir Singh is 19 years old and is a Matriculate. He is learning typewriting and shorthand is married and is living with his father.
6. Sixth is the appellant who was preparing for Matriculation Examination through New Shining college (a Private institution in Lajpat Nagar) and
7. Harbhajan Singh 8/9 years old not reading anywhere and mentally weak.
The family is described to be religious-minded but the social and economic status is stated to the poor. Present living conditions have been described tot be satisfactory and they are stated to be living in rented quarters. It is finally stated that the appellant's parents or elder brothers did not care to look after this boy's activities at all and it seems that they always used to taken everything very lightly while sometimes some of his activities were of a publishable nature. It is also noted that thought the appellant's physical condition is normal he has every bad habit like gambling, smoking, frequent, cinema-going, stealing and is possessed of somewhat loose character. In so far his personal traits are concerned he has been described to be a very bold and fearless type his company has been found to be very undesirable such as that of vagabonds, delinquents and loafer etc. His school teacher. who were also contacted, were highly against the habits of this boy though there was noting concrete on the school records; his behavior was not good towards his fellow students. He was least interested in his studies and on the whole his teacher did not hold good opinion about him.
Several of his immediate neighbours were also contacted but they were hesitant in saying anything about him. From their impression and gestures it was gathered that they were not at all holding a good opinion about this boy. The parents were in the end again stated never to have tried to check the growing bad habits of their son. In so far as his final analysis is concerned it has been stated that the boy's parents and his brother s are educated well placed and gentle in nature but his boy has from the very beginning been averse to studies and had got into bad company and with growing age got into bad habits. his parents and elder brothers never tried to pay any attention to him or to check him in his undesirable activities with the result that he has become not only a spoiled child but has also become somewhat bold and fearless. It has thus been considered to be essential to remove the boy away form his present society which is stated to be highly undesirable. It is thus recommended that he may be sent to some institution where he may be death with psychologically so as to improve his bad habits and prepare him for an hones and industries life. This report its dated 7-2-1961.
(4) This report as is obvious fully justifies the order of the Court below.
(5) The contention that the Bombay Children Act does not postulate the impugned order of detention in the Reformatory School up to the age of 18 and thereafter in the Borstal Jail appears to me to be without sound basis and indeed out attention has not been drawn to any provision of this Act which would support the contention.
(6) The learned counsel has placed considerable reliance on Chapter 22-D of Vol. III High Court Rules an Orders of this Court laying down broad instruction in respect of sentences suitable for different kinds of youthful offenders and in which the distinguishing features of Borstal treatment from an ordinary imprisonment have been prominently brought out but this Chapter does not in any way show that the order passed by the Court below is either contrary to law or other-wise improper. On the other had on the facts of this case, I entertain little doubt that the detention in Borstal Jail after the appellant attains the age of 18 years and is on that account released from the Reformatory School would not him immense good. Reference to Sec 8 of the Reformatory Schools Act (8 of 1897) is also unavailing to the learned counsel for it does not as is suggested rule out the possibility of an inmate of the Reformatory School to be directed to b sent over to a Borstal Jail after he attains the age of 18 years.
(7) Having failed in her attempt to persuade us to quash the order relating to the detention of the appellant in the Borstal Jail the learned counsel tried to challenge the merits of the conviction and took us through the evidence on the record. The eye-witnesses of the occurrence are Shri Radhey Sham P. w. 5. a student of Government Higher Secondary School Lajpat Nagar and Harbans Lal P. W. 7. The former was 14 years of age at the time when he appeared as a witness and was described by the learned Additional Sessions Judge to be intelligent and capable of understanding the questions put to him and of giving intelligible and capable of understanding the questions put to him and of giving intelligent and capable of understanding the questions put to home and of giving intelligible answers thereto. He has in clear terms deposed that on the date of the occurrence he and Harbans Lal P. W. 7 were going to the school and Karan Singh) were standing near the National Bank Lajpat Nagar Tirath Ram was following the witness and Harbans Lal at some distance. Both the accused called the witness and Harbans Lal and Mohan Singh put his had in his dub (waistband of the party). Suspecting that Mohan Singh had a knife with him he and Harbans Lal both ran away and stopped at a distance of 10 or 12 paces. Mohan Singh according to this witness previously also used to similarly called him near them. Mohan Singh asked Triath Ram to pay back his money. Tirath Ram enquired from him as to which money he was demanding back. Thereupon Mohan Singh asked him to return to piece which he had taken the other day. Tirath Ram replied that he did not possess any money at that moment. At this Karan Singh caught hold of Tirath Ram by the neck from behind and Mohan Singh taking out the knife from his dub gave the deceased a blow on his chest. Thereafter both the accused ran away.
In cross-examination nothing serious has been elicited which would discredit the version given by him. He and Harbans Lal P. W. 7 thereafter went to Ram Nath, brother of the deceased, and informed him of the occurrence. Ram Nath took a taxi and came to the place of occurrence along with these boys. when they reached back, Tikken Lal P. W. was present at the spot To same effect is the testimony of Harbans Lal, 10 years old student of the 6th class, Government Model Higher Secondary School Lajpat Nagar. This witness has also been described by the court to be intelligent and capable of understanding questions put to him and giving intelligent replies. He substantially corroborates the version given by the earlier eye-witness. In cross-examination of this witness, again noting serious has been brought out which should discredit his testimony. Tikkan Lal P. W. 8 who arrived at the spot immediately after the injuries inflicted on Tirath Ram has also deposed about what he saw. It is true that he has also stated that Tirath Ram at the time of his arrival was conscious and when he lifted the injured boy's head. he told the witness that Mohan Singh and Karan Singh had given him the knife blow. This oral extra judicial confession may conveniently be ruled out of consideration because such confessions are usually evidence of a very weak character and can scarcely inspire confidence of the courts without compelling reasons. No such compiling reasons have made out in this case.
Be that as it may, the testimony of the tow eye-witnesses who have not been shown to be inspired by any felling of enmity towards the appellant is, in my opinion, sufficiently impressive and fully justifies and supports the conviction. The minor discrepancies about the brother of the deceased having reached the spot in a taxi along with the two boys or without the two boys as the taxi-driver is shown to have deposed are in my opinion discrepancies of truth rather than a badge of falsehood. The taxi-driver who was giving evidence after such a along time could obviously not be implicitly relied upon in this respect and indeed it seems to be more natural and likely that the brother of the deceased came back to the spot with his informants in the taxi.
(8)The learned counsel very eloquently and perhaps properly directed her next challenge to the confession of Karan Singh co-accused who has been convicted by the Court below under Section 323/109, Indian Penal Code and has been released on probation of good conduct for committed to the care of him care of his brother Jagdish Chander on his executing a bond in the sum of Rs. 1000/- with one surety in the like amount to be responsible for the good conduct of the boy. It has been urged with certain amount of force that the learned Magistrate recording Karan Singh's confession did not take all the requisite precautions for satisfying himself that the confession was voluntary and free from any undue influence or inducement or from the influence of the police. The child so argued the counsel being about 12 years age the learned Magistrate should have afforded him an opportunity to see his parents and his counsel or at least should have taken greater care than the case of an adult accused may demand in seeing that the child has not been either seduced or coerced into making a confession.
(9) Here, I consider it proper to point out that a confession by a co-accused is not evidence within the contemplation of Section 3 of the Indian Evidence Act which defined 'evidence' to mean and include:--
'1. All statements which the Court permits or requires to be made before it by witnesses in relation to matter of fact under enquiry such statements being called oral evidence and
2. All document s produced for the inspection of the Court:-Such documents are called documentary evidence.'
It is evidence only in the sense in which a Court is empowered under Sec 30 Indian Evidence Act to take it into consideration against the person making the confession as well as against such other person who may be jointly tried with him for the same offence. The legal position therefore in respect of such a confession is that the Court cannot deal with the examination of such confessional statement; the stage of considering it arises only after the other evidence has been considered and found to be satisfactory. Ram Parkash v. State of Punjab, AIR 1959 SC 1, on which the Court below appears to have placed reliance for relying on this confession if corroborated in material particulars does not in my opinion constitute an authority for this view. The context in which the observations were made by Imam J. in the reported case seem to show that no such broad proposition was intended to be laid down for in reality the other evidence against Ram Parkas was of so strong a character that the Court agreed with the conclusions of the High Court holding such evidence to be satisfactory and sufficient for the conviction of the accused. It was only in that background that the confession statement was taken into consideration Ram Parkash's case if I may say so with respect did not purport to strike a discordant note from the settled principles relating to the admissibility and effect of confessional statements made by co-accused persons. In this connection it must never be forgotten that even when the Court takes it into consideration such a confessional statement is a material of a very weak type for the statement is not made in the presence of the accused persons and has not been subjected to cross-examination--factory which are of vital importance in our criminal jurisprudence.
(10) Before parting with this subject I should like to point out to the learned Magistrate the importance of the instructions contained. In High Court Rules and Orders Vol. III Chapter. These instructions do not deal with a solemn matter of form. They truly deal with a solemn matter of substances and call for a sense of responsibility on the part of the Magistrate regarding the confession to satisfy his conscience that the confession is truly voluntary and free from the vitiating defects against which the Legislature has expressed its clear anxiety to provide safeguards agency in our country has not yet acquired the reputation of being proof against the temptation of attempting to secure confessions by questionable methods; the Magistrates recording attention to all the safeguards provided for ensuring their truly voluntary character. In the case of a child like Karan Singh it was accordingly incumbent on the learned Magistrate to have taken full precautions to satisfy himself that the child was making a true confession voluntarily and was not under the influence of whatever may have transpired between him and the police during the custody with them. In this connection the observation in Sarwan Singh v. State of Punjab (S) AIR 1957 SC 637 may be kept in view. The judicial officer administering criminal law should also not ignore that in a civilized and free society it is largely through the standards of the administration of criminal justice that the position of the liberty of the subject and of the rule of law is measure.
(11) But even excluding the confession in my opinion the evidence on the record is sufficiently cogent and convincing to justify the appellant's conviction. It may be pointed out that Karan Singh's case is not before us in this appeal.
(12) As a last resort he learned counsel argued that the offence prove does not amount to murder because there was no intention to kill and it was just by chance that the injury inflicted happened to be on a vulnerable part of Tirath Ram's body. The argument has merely to be stated to be rejected on the present record. May be that he appellant in a spirit of reckless bravado wanted to try his hand on the use of the knife on a vulnerable part of an innocent child but that can be no means take the case out of the offence of murder. He has however already been dealt with under the Bombay Children Act and therefore no question of any further leniency arises. It is in my opinion in the interest of the appellant himself that he spends some time in Reformatory School and later in the Borstal School so as to learn to live under the litter more self-discipline and realise that in a civilized democratic society like ours, where all citizens are equal before law the right that he claims for himself he must also yield and accede to all other fellow-citizens. It will also impress upon him that the life of crime in this Republic does by no means pay.
(13) For the foregoing reasons this appeal fails and is dismissed.
D.K. Mahajan, J.
(14) I agree.
(15) Appeal dismissed.