Subba Rao, J.
1.This is an appeal by the Crown against the acquittal of accused l to 3 under Section 302, Penal Code. The learned Public Prosecutor argued that on the facts accused I should have been convicted under Part 1 of Section 304. But on the facts as found by us he rightly conceded that the offence should fall more appropriately under Section 335, There is no particular reason why a differentiation should be made between accused 1 and accused 2 and 3. They combined together and beat the deceased, and the evidence does not Bhow that accused 1 gave any particular blows which caused the death of the deceased. Indeed the evidence shows that he beat the deceased on the head whereas the medical evi-dence shows that the deceased did not die of the wounds on the head. Further it is also in evidence that the rice-pounder M. o. 3 was broken into two pieces, and it is impossible to say who used the other bit and with which bit the major wounds were caused. We therefore modify the sentence of acoused 1 also and convict him under Section 335, Penal Code, and sentence him to the period already undergone.
2. Before we close the judgment, it is neees-sary to make an observation in regard to the view expressed by the Sessions Judge on the scope of Section 8, Madras be rstal Schools Act. The learned Judge observed as follows:
Accused 1 is a lad who, according to his own statement, la aged 16 years, and according to the medical evidence is aged between 16 and 18. There is no evidence that he has criminal tendencies or bad associations. He evidently committed the offence under provocation and in the heat of passion and not on account of any criminal tendencies. I do not consider, therefore, that Section 8 of the Madras be retal Schools Act can be properly applied to him.
The condition precedent to the application of Section 8 is that the adolescent offender should have criminal habits or tendencies or association with persons of bad character. If the learned Judge's interpretation of that section were to be accept-ed, it would mean that a person who has no criminal tendencies would be sent; to the ordinary jai whereas a person with criminal tendencies' will be sent to the be rstal School. This interpretation would defeat the object of the Act itself. If a person without criminal tendencies is sent to a jail there is a greater danger of his contamination by his association with hardened criminals, whereas the object of the Act is to send such people to a be rstal School, so that they may have good training and come out of it to become useful citizens. The words 'criminal tendencies' should not be given a narrow interpretation. If a be y had no criminal tendencies he would not be convicted of any crime at all. The fact that a be y is convicted for one offence or other under the Indian Penal Code shows in the view of the Court convicting him that he has criminal tendencies. We would interpret the section to mean that whenever an adolescent was convicted of an offence ordinarily he should be given the advantage of being put in the be rstal school so that by long association and training he would come out after the termination of the stay as a useful citizen of the country. The appeal is dismissed.
3. Mack J.- I should like to add -a word while in substantial agreement with my learned brother about the scope of Section 8, Madras be rstal Schools Act. I share his opinion that there has been a tendency to narrow down the scope of -the Act to adolescents who have been shown to have previous criminal tendencies or bad asso. ciations. A criminal tendency does not manifest itself only in acts involving dishonesty such as theft or cheating. A person who, owing to lack of self-control or as the result of his environment, is unable to restrain himself and commits an offence of either grievous hurt or homicide by using a deadly weapon without regard to consequences exhibits a criminal tendency just as much as a person who steals. The alterna-tive to applying the be rstal Schools Act to cases such as these,-as my learned brother has said, is to send him for a long period to an ordinary jail. It is difficult to lay down hard and fast conditions as to the type of adolescents who should be sent to a be rstal school. We can think of no cases in which an adolescent should be sent for a long period to an ordinary jail in which he cannot with better advantage to himself and the community at large be sent to a be rstal institution.