JUDGMENT S. Velu Pillai, J. 1. This appeal is directed against the conviction of the appellant by the Sessions Judge at Palghat, under S.302, I. P. C, for having caused the death of his elder brother Chami on the night of the 17th March 1958, by cutting him on his neck with a chopper, called also a tapping knife; he has been sentenced to undergo rigorous imprisonment for life. The appellant was living with his father pw. 1, his mother pw. 4 and his brothers Chami and pw. 3 and Chami's wife pw. 2, in their house till about a week before the occurrence, when he and pw. 4 removed themselves to the house of a neighbour pw. 5. The case for the prosecution was, that the appellant was on terms of ill will towards Chami for various reasons which may be mentioned later, and that, on the night in question, when Chami and pw. 3 were sleeping on two benches placed in the front courtyard of their house, the appellant came there after midnight, and cut Chami with M. O. 1 chopper, used for tapping palmyra trees, on the neck and also on the left upper arm and on the dorsum of the left hand. pw. 1 was sleeping on the front verandha of the house not far away from where Chami lay. pw. 2, the widow of Chami, was sleeping in the inner verandha. Both pws. 1 & 2 were roused by Chami's cries, and they witnessed the appellant inflicting the cuts on him, and escaping from the scene. pw. 3 also was roused from sleep and witnessed the act. 2. The alarm raised by pws. 1, 2 & 3 brought pw. 5, followed by pw. 4, to the scene. Chami, who was struggling, had been laid on the ground, and pw. 5 gave him some water to drink. Chami expired shortly after. On the next morning, pw. 1 gave information about the occurrence to pw. 13, the amsom Adhikari, implicating the appellant for the murder. The statement which was recorded by pw. 13 and which has been proved to be Ext. P. 1 was forwarded by pw. 13 to the Palghat Cusba Police Station, where pw. Chami expired shortly after. On the next morning, pw. 1 gave information about the occurrence to pw. 13, the amsom Adhikari, implicating the appellant for the murder. The statement which was recorded by pw. 13 and which has been proved to be Ext. P. 1 was forwarded by pw. 13 to the Palghat Cusba Police Station, where pw. 17, the Sub-Inspector of Police, received it at 11 A.M., and registered a case under S.302, I. P. C. At about 11-15 A. M., the appellant presented himself at the Police Station, and was taken into custody. pw. 18, the Circle Inspector of Police, who had been intimated, proceeded to the scene of occurrence, and held an inquest over the dead body. On the same day, pursuant to information furnished by the appellant, the chopper M. O.1 was recovered from a channel, about two furlongs away from the scene, where it had been buried. On the next day, the post mortem examination was conducted, when it was disclosed that Chami had a gaping incised wound, about 6" in length 2" in width and 4" in depth on the left side of the neck, which cut through the left jugular vein and the carotid artery. The incised wound on the left upper arm was 5" x 3"x 1/2" and that on the dorsum of the hand was a minor one. After investigation was completed, a charge against the accused was laid by the Police in the court of the Sub-Magistrate at Palghat, on the first April 1958. 3. There is no doubt that Chami died, and that the injury on the neck, which cut through the vital arteries, was necessarily fatal. This accounted for his death. There is abundant evidence in the case to establish, that the appellant had been inimical towards Chami. It would appear that about three weeks before the occurrence, the appellant made an attempt to remove cattle, which belonged to his father pw. 1, to the market, to be disposed of there, and that he was foiled in the attempt by pw. 1 and Chami. Later, that is about two weeks before Chami's death, the appellant entered into an agreement with pw. 12 for the sale of a she-buffalo which belonged to pw. 1, and received a sum of Rs. 50/ from him. On account of the obstruction offered by pw. 1 and Chami. Later, that is about two weeks before Chami's death, the appellant entered into an agreement with pw. 12 for the sale of a she-buffalo which belonged to pw. 1, and received a sum of Rs. 50/ from him. On account of the obstruction offered by pw. 1 and Chami, the sale did not materialise and the appellant had to refund the money to pw. 12. All this appears from the testimony of pws. 1, 2 and 4. pw. 12 has also deposed to the later incident. It is seen further, that pw. 4 the mother and the appellant, started cooking their food separately in their house, to which Chami took exception and this led to their separate living for a week. pw. 5 has confirmed this, as well as the ill feeling between the appellant and Chami. Pw.4.has explained that pw. 1 had not given the promised Stridhanam to his daughter, which was not appreciated by the appellant and it is more than probable, that this was the reason for the appellant's trying to dispose of cattle which belonged to pw. 1 to raise funds for payment towards the Stridhanam. In this, the mother P.W. 4, had made common cause with the appellant and this explains why she removed herself with the appellant to the neighbour's residence. There is no reason to discard the evidence adduced by the prosecution on this part of the case. The appellant himself, in his statement under S.342, Crl. P. C admitted substantially these incidents, though he seemed to suggest, that there was not so much of a quarrel or estrangements between them. The incidents disclosed above, must be found to be proved. If so, it must follow, that there was bitter ill feling between the appellant and Chami. 4. pws. 1 and 2 have furnished direct evidence as to the occurrence. As observed, they were sleeping on the outer and inner verandhas very near the benches on which Chami and pw. 3 were sleeping. Chami's little child was ailing on that night, and so a kerosene lamp, placed over the parapet of the verandha, was burning all the time. The lamp was noted, at the time the Police officer visited the scene on the dext day, to hold the inquest. Even if it was a dark flight, there was sufficient visibility for pws. 1, 2 and 3 to identify the assailant. The lamp was noted, at the time the Police officer visited the scene on the dext day, to hold the inquest. Even if it was a dark flight, there was sufficient visibility for pws. 1, 2 and 3 to identify the assailant. A few discrepancies in the evidence of pw. 1 were brought to our notice. Ho deposed in court that one Vellakutty was not present at the time he gave Ext. P1 statement to pw. 13; but he was an attestor. He did not specify the nature of the weapon employed by the assailant as a tapping knife in Ext. P1 and further referred to it as a chopper, in his statement, Ext. B1 under S.164, Crl. P. C. which was not admitted by him. A third discrepancy was, that pws. 4, 5 and 6 were referred to as eyewitnesses by him in Ext. PI while in truth they arrived there only after the deed was committed. pw. 9 further testified to two cuts on the neck, while there was one injury only as disclosed on post mortem examination. These discrepancies, in our opinion, are not so important or so material as to induce Us to hold, that pw. I is an untruthful witness. Whatever ill feeling there had been between him and the appellant, we find it impossible to believe that pw. 1 would have falsely implicated his son, if he had not seen him committing the act, or as was suggested, by the appellant in his statement under S.342, Crl. P. C., if somebody else have had committed the act. pw. 1 stands corroborated not only by Ext. P1, but also by the statements which he made to pws. 5 and 6 immediately after their arrival, that the appellant was the assailant. When pws. 5 and 6 rushed to the scene on hearing the alarm, they noticed the assailant escaping; but no much weight can be attributed to their identification. pw. 1 was said to have made the same statement about the identity of the assailant to pw. 4 when she came; but in the box, she prevaricated a good deal and was contradicted in material parts of her testimony. It is obvious that she was only trying to shield the appellant from the consequences of the crime he had committed. pw. 4 when she came; but in the box, she prevaricated a good deal and was contradicted in material parts of her testimony. It is obvious that she was only trying to shield the appellant from the consequences of the crime he had committed. pw. 2 also gave clear evidence as to the identity of the assailant whom she saw, and her testimony cannot be ruled out on the ground, that she is an interested witness, being the widow of the deceased. pw. 3 was a boy about 12 years of age; but the Sessions Judge was satisfied, that he understood the questions put to him and was capable of giving rational answers to them. In this court, he did not stand by his former statements recorded under S.164, Crl. P. C., and his deposition in the committal court. He was contradicted with these statements on material parts, and the learned Judge felt satisfied, that in the circumstances of the case, his former deposition Ext. P5 could be transferred to the records of the case under S.288, Crl. P. C. and relied on as substantive evidence. As noticed by the learned Judge, we feel no hesitation in thinking that pw. 3 is now under the influence of the mother whose present attitude was hostile to the prosecution. It cannot be too readily supposed, that pw. 3 was under the influence of the father in making his previous statements, as it seems to us, that the father would not have such vindictiveness-towards his son, if he had not seen him actually committing the act. We see no reason to disbelieve pws. 1 and 2, or to reject Ext. P5; on the other hand, we accept this evidence. 5. As noted, the appellant presented-himself at the Police Station, immediately after the case was registered. His learned counsel argued that he may have gone there to give information about his brother's death. This cannot be too readily accepted. It was pw. 1 who was the first to give information on the morning. When questioned under S.342; Crl. P. C., the appellant's explanation for this conduct was that it was a case where he was actually seized by the Police, and not, as may be inferred, that he voluntarily appeared to lodge information. This cannot be too readily accepted. It was pw. 1 who was the first to give information on the morning. When questioned under S.342; Crl. P. C., the appellant's explanation for this conduct was that it was a case where he was actually seized by the Police, and not, as may be inferred, that he voluntarily appeared to lodge information. When questioned again on some aspects of the evidence against the appellant, his case was, that on hearing the cry, he also came to the scene of occurrence, a version which is palpably false and impossible to accept. Pws. 1 to 3 saw the appellant escaping from the scene. Pws. 5 and 6 saw someone going away. Pw. 1 declared the identity of the assailant to Pws. 5 and 6, if not to Pw. 4 also. There was no suggestion in the cross examination of these witnesses that the appellant was one of those who came there, or that he was present. It is seen from the judgment of the learned Judge, Para.5, that a senior Advocate had been appointed to defend the appellant at the trial under the Kerala Legal Aid to the Poor R.1957. Far from having been present at the scene, the appellant was conspicuous by his absence there. This, as well as his voluntary appearance before the Police Station on the next day, probably overtaken by remorse, constitute a circumstance against the appellant. 6. The recovery of M. O. 1 chopper pursuant to information furnished by the appellant, from the place at which it had been buried, is another incriminating circumstance. The recovery has been proved by Pws. 13 and 14, two independent witnesses, and by Ext. P11, the seizure list, not to mention the evidence of the Circle Inspector of Police, Pw. 18. Pw. 13 was not cross examined. The chopper M. O. 1 has blade of sufficient width and this could be employed by the assailant to cause two of the injuries of stated dimensions. The third injury could have been caused when the deceased tried to ward off the attack. 7. In Ext. 18. Pw. 13 was not cross examined. The chopper M. O. 1 has blade of sufficient width and this could be employed by the assailant to cause two of the injuries of stated dimensions. The third injury could have been caused when the deceased tried to ward off the attack. 7. In Ext. P. 16, his statement in the committal court, the appellant pretended ignorance of the whole incident; but in his statement before the learned Sessions Judge, while he did not negative the evidence adduced by the prosecution as regards the ill feeling, he suggested a theory that somebody else, who was ill disposed towards Chami, might have done the deed. As regards the recovery of M. O. 1, his statement was evasive and he contended himself with observing that he did not know the attestors in the seizure list, Ext. P. 11. If the recovery was not true, that fact would have been uppermost in his mind in answering the question. 8. Acting on the above evidence and the circumstances, we are satisfied that the learned Sessions Judge was right in holding that the appellant caused the death of Chami by cutting him on his neck with M. O.1. The offence was premeditated; but the learned Judge was induced to award the lesser sentence under S.302, I. P. C., for the reason, that the appellant was only 19 years of age. The prosecutor had not moved for enhancement of the sentence and we do not think, that the discretion in awarding the sentence, has been improperly exercised by the learned Judge. 9. The appellant had made a prayer by way of a supplementary memorandum, that he may be confined to the Borstal School. The Public Prosecutor assured us that the law applicable is that contained in the Madras Borstal Schools Act, 1926, S.8 of which prescribed the power of the court to pass a sentence of detention in a Borstal School. Clearly, the provision has no application, except in cases, where the antecedent history of the offender, as regards his criminal habits or tendencies or association with persons of bad character justifies such defention, for the purpose of his reformation and correction. The present case does not fulfil these conditions; this is a case of premeditated murder. Clearly, the provision has no application, except in cases, where the antecedent history of the offender, as regards his criminal habits or tendencies or association with persons of bad character justifies such defention, for the purpose of his reformation and correction. The present case does not fulfil these conditions; this is a case of premeditated murder. On the broad circumstances, appearing in the case, the appellant does not appear to have developed criminal habits and tendencies or associations with persons of bad character, such as could be remedied by the'corrective influence and the atmosphere of a Borstal School. Where the conditions of applicability of S.8 are not to be found, the order of detention in a Borstal School, under the provisions of the Statute referred to above, would be plainly illegal. This view has been held also by the Madras High Court in Sellappa Gounden v. Emperor, AIR 1931 Madras 771. 10. The result is that the conviction of the appellant as well as the sentence imposed on him are hereby confirmed and this appeal is dismissed.