1. This is an appeal from Jail by the appellant-accused from an order of conviction and sentence under Sections 302 and 392, Penal Code by the Sessions Judge, Junagadh, for murder of one Popat a boy of four years old and robbery of ornaments worth about Rs. 72 from the person of the deceased. (After discussing facts and evidence, His Lordship proceeded:) We entirely agree with the finding of the Sessions Judge that the prosecution has successfully made out a case against the appellant for the offences of murder and robbery.
2. As regards the sentence, we would like to make a few observations. The case reveals the commission of a very heinous offence of murdering a boy aged about four years for the sake of committing robbery of ornaments worth about Rs. 72, Ordinarily in such cases the extreme penalty of death should have been the appropriate sentence, The learned Sessions Judge has however taken into consideration the youth of the accused and imposed the lesser penalty of transportation for life. Before the committing Magistrate's Court the accused had given his age as eighteen, while in the Sessions Court he reduced it to fifteen or sixteen. Some of witnesses have deposed that the accused must be 22 or 24 years old. The learned Sessions Judge himself observes 'In appearance the accused looks like a boy of about eighteen or twenty.' In such cases where the age of the accused becomes a material question for the purpose of sentence, it is desirable that the lower Courts should see that adequate evidence including expert evidence of a doctor, wherever necessary, is placed on the record and a definite conclusion is arrived at by the lower Courts as to the age. The age of the accused is no doubt a relevant factor to be taken into consideration in awarding the sentence; but in such cases as the present one where the age itself is in doubt, there should be adequate evidence including expert evidence if necessary and a definite finding as to it.
3. The Government have not chosen to file an appeal for enhancement of the sentence Taking into consideration the views of the learned Sessions Judge, we see no reason to issue ourselves a notice for enhancement of the sentence. Accordingly, we confirm the conviction of the accused under Sections 302 and 392, Penal Code and the sentence imposed by the Sessions Court and dismiss this appeal.