1. The learned Public Prosecutor has brought up in revision the order passed by the learned Sessions judge of Chittoor in S. C. No. 14 of 1940. In that case the accused Venkatasubramanyam was charged with abetment of murder (Ss. 302 and 114 of the Indian Penal Code). The assessors unanimously expressed the opinion that he was guilty and the learned Sessions Judge found him guilty under Sections 302 and 114 but the learned Judge, instead of passing any sentence upon the accused, has reported the case to Government for orders under Section 27 of the Madras Children Act (IV of 1920). Pending the orders of the Government the learned Judge has ordered the accused to be detained in the Senior Certified School at Chingleput.
2. The order of the learned Sessions Judge is based upon the fact that the accused was under 16 years on the 8th of February, 1940, when this dreadful crime, as the learned Judge properly calls it, was committed. The learned Judge says that the accused was a 'young person' as defined in Section 3 of the Madras Children Act (IV of 1920) and therefore he cannot be sentenced to death or transportation for life--vide Section 22 of the same Act. The learned Judge has however failed to notice that the point of time that is material in considering whether an offender is a 'young person' or not is the time at which the sentence is to be pronounced, Section 22 says:
Notwithstanding anything to the contrary contained in any law, no child or young person shall be sentenced to death, transportation or imprisonment...
3. Now, on the 17th of July, 1940, when the learned Sessions Judge had concluded this trial and was in a position to pass sentence, the accused in this case was no longer a 'young person.' The learned Judge's finding is that the accused may be taken to have been born on the 10th of June, 1924. The learned Judge has pointed out that there has been some alteration of the final figure in the Sanskrit College Register, which he treated as evidence for purposes of the case, but even if the figure is properly recorded as 1924, it is clear that the accused was over 16 at the time of the trial of the case. He was not therefore a 'young person' and Section 22 did not impose any bar against sentencing him to death or transportation. This is made clear by a reference to the definition of 'youthful offender' in Section 3 of the Act. It is there stated that a 'youthful offender' means any person who has been convicted of an offence punishable with transportation or imprisonment and who at the time of such conviction was under the age of sixteen years. It is therefore the time of the conviction and not the time of the commission of the offence that is important.
4. The order of the learned Judge must therefore be set aside. In considering the sentence that ought to be passed in this case we are obliged to note that the crime was a peculiarly despicable one. The person murdered was a very old and infirm lady and she was murdered for the sake of her valuable gold chain that she was wearing round her neck and a ring that she wore on her hand. She was murdered by strangulation, the actual strangling being done by one Raghavalu at the instigation of the accused, Venkatasubramanyam. Why Raghavalu was tendered a pardon and thereby enabled to get off scot-free we do not know. Learned Counsel for the respondent in this case has pointed out the great disparity in fortune between Raghavalu and the respondent. Raghavalu who did the actual murder gets off wholly free. The respondent who conceived and instigated the murder but did not commit it is in danger of being hanged. That however by itself is not of course a reason for mitigating the punishment of this respondent. We have frequently stated that youth alone is not a reason for mitigating punishment in murder cases, but those cases have usually been cases of offenders above the age of 18. It is very rarely that young murderers under 18 are sentenced to death. We shall therefore sentence the respondent in this case to transportation for life. It is not a case in which we are able to make any recommendation on his behalf to the Provincial Government.