JUDGMENT DHARMADHIKARI J.-This is an appeal filed by the accused against the judgment of the Sessions Judge, Amravati, in Session Case No.4 of 1975 convicting him for offences punishable under section 302 and 309 of the Indian Penal Code and sentencing him to undergo imprisonment for life for the offence under section 302 and simple imprisonment for three months for the offence under section 309 of the Indian Penal Code. 2. According to the prosecution, the accused, who is a young boy aged about 18 years, had assaulted the deceased Shila, daughter of Balaji Deshmukh, aged about 12 years, at about 6 or 7 a. m. on 8-10-1974. The girl Shila was a resident of the same village Bahada where the accused was also residing with his parents. The girl used to go to the school at village Jarud which is about two miles from Bahada. The deceased girl and other girl students about six in number, used to go daily from Bahada to Jarud in the morning for attending the school. On the day of the incident, as usual, the girls were going to the school at about 6 a. m. The accused went behind the girls and when the girls reached the spot near the garden land of Ghormade on the cart road between Bahada and Jarud, he caught the hand of P. W. 4 Shalini. He had an open knife in his right hand. The girl Shalini gave a jerk and slipped away. Thereafter, the accused caught hold of the hand of the deceased Shila and gave her repeated knife blows on her person as a result of which the girl suffered a number of injuries and died on the spot. After this, the accused ran towards Warud. According to the prosecution, thereafter he swallowed something which was a poisonous substance and thus he tried to end his own life. He was apprehended in Shaniwarpeth at Warud by the complainant Mahadeorao Chintuji Patankar who is a resident of village Babada. The accused was immediately taken to the Police Station at Warud. In the Police Station itself during his search, the knife used by him for attacking Shila was recovered from him among other things. He was immediately arrested and sent to the Medical Officer. The Medical Officer noticed symptoms of consumption of a poison similar to the poison for killing rats. In the Police Station itself during his search, the knife used by him for attacking Shila was recovered from him among other things. He was immediately arrested and sent to the Medical Officer. The Medical Officer noticed symptoms of consumption of a poison similar to the poison for killing rats. It also appears from the record that the clothes of the accused were also attached from his person and the Chemical Analyser's report indicates that the knife as well as the clothes seized from the person of the accused had human bloodstains. 3. During the course of investigation, the dead body of Shila was also sent for post-mortem examination to Dr. Vidyadhar Dhole (P. W.7). The doctor found as many as IS incised wounds on the person of the deceased. All these injuries were ante-mortem. According to the doctor, the probable -cause of death was shock caused by external and internal haemorrhage caused 'by the injury to the vessels, internal organs and multiple external injuries. According to him, the surface injury No. 12 taken along with the cut of external iliac vessel was indi-vid13ally sufficient in the ordinary course of nature to cause death. Similarly, injury No.9 taken with the injury to the intestines and injury to the left kidney was sufficient in the ordinary course 'of nature to cause death. He further opined that death could be instantaneous. After conducting the usual investigation into the matter, the accused was then prosecuted for the aforesaid offences. 4. In support of its case, the prosecution examined as many as 1'8 witnesses. According to the prosecution P. W. 4 Shailini, P. W. 5 Shamlata and P. W. 8 Sushila are the eye-witnesses. P. W. 2 Madhavrao is the person who had apprehended the accused and taken him to the Police Station. The report of the incident was also lodged by this witness. The prosecution has also examined P. W. 6 Dr. Mukund Sawji who examined the accused as well as Dr. Vidyadhar Dhole who conducted the post-mortem examination on the dead body of Shila. The other witnesses are either Panch witnesses or police officers. 5. The report of the incident was also lodged by this witness. The prosecution has also examined P. W. 6 Dr. Mukund Sawji who examined the accused as well as Dr. Vidyadhar Dhole who conducted the post-mortem examination on the dead body of Shila. The other witnesses are either Panch witnesses or police officers. 5. After appreciating the evidence on record, the learned Sessions Judge came to the conclusion that the deceased Shila was attacked by the accused by means of a knife and it was the accused who had inflicted the various injuries on her person, which had resulted in her death. In view of this finding, the learned Sessions Judge found him guilty of the offence punishable under section 302 of the Indian Penal Code. He also came to the conclusion that the accused consumed some poisonous substance after the incident with an intention to commit suicide and, therefore, he also found him guilty of the offence punishable under section 309 of the Indian Penal Code. 6. At the trial, the defence of the accused was one of the denial. To the questions put to him in his examination under section 313 of the Code of Criminal Procedure, he stated that he did not remember as to how the incident took place. In reply to question No. 27 he stated as under: "I was suffering from cough. My mother suffered from asthma. My mother told me that she had kept opium pill in the window. I consumed it I thereafter consumed tea. There was upsetting in my stomach, I immediately went out for stools. Thereafter I had a sensation of reeling in head. I fell down due to giddiness. I do not know what happened thereafter. I don't know where fell down. I became unconscious. I don't know what 'happened thereafter. I don't want to add anything else." From this statement made by the accused it appears that the accused had raised a specific plea in his defence which, according to the learned counsel for the accused is wholly covered by section 84 of the Indian Penal Code. On appraisal of the evidence in record, the learned Sessions Judge found that the accused had failed to discharge the burden placed upon him in this behalf and, therefore, ultimately he has convicted for the aforesaid offences. 7. While arguing the appeal before us, Mr. On appraisal of the evidence in record, the learned Sessions Judge found that the accused had failed to discharge the burden placed upon him in this behalf and, therefore, ultimately he has convicted for the aforesaid offences. 7. While arguing the appeal before us, Mr. Khare, learned counsel for the appellant-accused, has not disputed the factum of incident or the fact that the accused had assaulted the deceased Shila with a knife. However, according to Mr. Khare, at the relevant time, the accused was suffering from unsoundness of mind, though temporary in nature and, therefore, was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. According to him, from the evidence of Dr. Sawji (P. W. 6), it is quite obvious that the accused had consumed some poisonous drug or substance. From the symptoms stated by the doctor, it is further clear that at the relevant time the accused was incapable of understanding or knowing the nature of the act or that what he was doing was either wrong or contrary to law. According to Mr. Khare, the medical evidence on record further supports the plea of the accused raised by him in his statement under section 313 of the Code of Criminal Procedure and, therefore, the learned Sessions Judge committed an error in holding the accused guilty of the offence punishable under section 302 of the Indian Penal Code. He further contended that the prosecution has failed to prove that the accused had consumed a poisonous substance or drug after the commission of the offence. According to him, there is no material on record from which an inference could be drawn that the accused consumed such a substance with an intention to commit suicide. According to the learned counsel, the conviction of the accused under section 309 of the Indian Penal Code is wholly based on conjectures and inferences which are not supported by the evidence and material on record. Mr. Khare has further contended that in any case the learned Sessions Judge committed an error in not giving the accused the benefit of the provisions of the Bombay Borstal Schools Act, 1929 8. On the other hand, it is contended by Mr. Mor. Mr. Khare has further contended that in any case the learned Sessions Judge committed an error in not giving the accused the benefit of the provisions of the Bombay Borstal Schools Act, 1929 8. On the other hand, it is contended by Mr. Mor. learned Assistant Government Pleader, that from the evidence on record it is quite obvious that on previous Saturday an incident took place in which the accused and the deceased were involved. On that day, the accused filthily abused the deceased and other girls. On this the girls also abused him in return and, therefore, the accused had given a threat to the deceased that be would see her. According to Mr. Mor, the previous and subsequent conduct of the accused further makes it clear that the assault on the deceased with the knife by the accused was a deliberate and intentional act. In this view of the matter, according to Mr. Mor, the learned Sessions Judge was right in rejecting the defence raised by the accused. He further contended that from the evidence of Dr. Sawji it is further clear that the accused must have consumed a poisonous substance after the incident. The factum of consumption of a poisonous is proved by the prosecution beyond reasonable doubt from the evidence of P. W. 6 Dr. Sawji. From the medical evidence it is further clear that the substance which was consumed by the accused was poisonous one which could have resulted in his death. If this is so, then according to the learned Assistant Government Pleader, the learned Sessions Judge was also right in convicting the accused for the offence under section 309 of the Indian Penal Code. He further contended that the provisions of section 6 of the Bombay Borstal Schools Act, 1929, are not applicable to the facts and circumstances of the present case and the learned Sessions Judge was right in coming to the conclusion that the accused was not entitled to the benefit of the said provision. In substance, therefore, the learned Assistant Government Pleader has supported the finding recorded by the learned Sessions Judge. 9. As already observed, the evidence on record so far as it relates to the actual-assault is not seriously challenged before us. 10. In substance, therefore, the learned Assistant Government Pleader has supported the finding recorded by the learned Sessions Judge. 9. As already observed, the evidence on record so far as it relates to the actual-assault is not seriously challenged before us. 10. From the evidence of P. W. 4 Shalini itself, it is quite obvious that on the date of incident when she was going to the school with the deceased, they saw the accused Nago and one Sukhdeo. Sukhdeo and Nago were talking with each other. When the girls reached upto the garden of Ghodmare, the accused came from behind and caught hold of her hand. He had an open knife in his right hand. The witness Shalini gave him a jerk and escaped and Tan away in the direction of Jarud. Thereafter, according to the girl, she looked back and saw that the accused had caught hold of the left hand of deceased Sheela and was giving her stab blows with a knife. After Sheela fell down, the accused started running towards the witness with the open knife. The witness, therefore, ran towards Jarud. At that time, Nago was perusing her. On the way the witness came across a bullock-cart in which there were two persons, She told the cart-men that Nago was assaulting Sheela with knife. Seeing the bullock-cart, the accused ran towards the left. The witness also deposed that on the previous Saturday, the accused had uttered obscene words obviously addressed to these girls. At that time the witness and the deceased scolded him and abused in return. Thereafter the accused had given a threat to Sheela saying "I will see". It was suggested in her cross-examination that initially in her first statement recorded by the police, she had not deposed a bout the previous Saturday incident. The witness has given an explanation for this. Further, it is quite clear from her deposition that when her statement was again recorded by the P. S. I., she told about the said incident. This statement was recorded the next day. But for making this suggestion in her cross-examination nothing useful has been brought out in her cross-examination. 11 The evidence of this witness finds substantial corroboration in the deposition of Shamalata (P. W. 5) and Sushila (P. W. 8). These girls have also deposed that when they reached the garden of Ghodmare, the accused came from behind. But for making this suggestion in her cross-examination nothing useful has been brought out in her cross-examination. 11 The evidence of this witness finds substantial corroboration in the deposition of Shamalata (P. W. 5) and Sushila (P. W. 8). These girls have also deposed that when they reached the garden of Ghodmare, the accused came from behind. After going near Shalini, he caught her hand. He had an open knife in his right hand. Shalini gave him a jerk and ran away. Thereafter he caught the left hand of deceased Sheela and started giving her strokes by knife. Sushila (P. W. 8) also speaks about the previous meeting between the deceased and Nago on Saturday last. The evidence of these girls further finds substantial corroboration in the deposition of Madhavrao (P. W. 2). According to this witness Sushila (P. W. 8) came to his house at about 7 a. m. She appeared frightened and told him that Nago was pricking Sheela with a knife. Thereafter this witness went towards the spot. Then this witness went towards Warud to make a report. When he was going towards Warud, in a truck, he saw the accused near Panchayat Office. Seeing Nago, the witness asked the driver to stop the truck. He got down and pursued Nago. Seeing him, Nago started running and, therefore, he also ran after him. In this manner, he pursued Nago upto Shanwar Peth. Then he created a row. People prevented Nago from proceeding further and with the help of other people, he caught him by holding both his hands. Then this witness and Krishnaji took the accused to the police station at Warud and informed the police that Nago had murdered Sheela. The clothes on the person of the accused were searched. From the Pocket of his pant, one knife was recovered. It was stained with blood. Similarly, there were stains of brood on the pocket of his pant. Then usual Panchanamas etc. were drawn. In, the cross-examination it was suggested to this witness that the accused was showing some symptoms of fainting sensation. He denied this suggestion and stated that the accused did not exhibit any signs of fainting nor he (witness) noticed any other symptoms of illness in him. It appears from the report of the Chemical Analyser (Ex. 4) that the knife and the clothes of the accused had human blood. 12. He denied this suggestion and stated that the accused did not exhibit any signs of fainting nor he (witness) noticed any other symptoms of illness in him. It appears from the report of the Chemical Analyser (Ex. 4) that the knife and the clothes of the accused had human blood. 12. Further from the evidence of Sitaram (P. W. 9} it is clear that Shalini (P. W. 4) had told him when they were going towards the spot that on Saturday accused Nago had uttered bad words to them and said that he would murder them within a day or two. This corroborates the version given by the girl Shalini (P. W. 4). Therefore, if all this evidence is read together, it is quite obvious that on Saturday prior to the incident, the accused had abused filthily the deceased and Shalini (P. W. 4). The girls also abused him in return and at that time the accused had given a threat to deceased Sheela saying that he would see her. It is further clear from this evidence that on the date of the incident, the accused came from behind the girls with a knife in his hand. He initially tried to catch hold of Shalini, who, after giving a jerk escaped. Then the accused caught hold of the deceased Sheela and gave her several blows with the knife in his hand. As a result of these blows, the girl had received as many as 15 incised wounds on her person. Immediately after the incident Madhaorao (Po W. 2) came to know about this incident from Shalini (P. W. 4). Therefore, he went to the spot. When he was going to make a report to the police station, he saw the accused Nago also going towards Warud. Seeing him the accused tried to run away. Ultimately he was apprehended with the help of other persons. From there he was taken to the police station. A report of the incident was lodged and the knife was also seized from the person of the accused. The injuries found on the person of the deceased were serious injuries and, according to the doctor, they were sufficient, in the ordinary course of nature, to cause death. In this view of the matter, in our opinion, the learned Sessions Judge was right in coming to the conclusion that the accused had committed murder of deceased Sheela. The injuries found on the person of the deceased were serious injuries and, according to the doctor, they were sufficient, in the ordinary course of nature, to cause death. In this view of the matter, in our opinion, the learned Sessions Judge was right in coming to the conclusion that the accused had committed murder of deceased Sheela. 13. However, it was contended on behalf of the accused that because of the certain pills taken by him, on the advice of his mother, he had a reeling sensation. Thereafter he fell down due to giddiness and he does not know what happened thereafter. According to the learned counsel for the appellant, from this statement of the accused, coupled with the medical evidence of Dr. Saoji, it is quite clear that at the relevant time by reason of unsoundness of mind, the accused was incapable of knowing the nature of the act, or that what he was doing was either wrong or contrary to law. In substance, therefore, the learned counsel for the appellant has relied upon the provisions of section 84 of the Indian Penal Code. He further contented that no motive bas been attributed to the accused for committing such a heinous crime. n is also clear from the material placed on record that the accused had inflicted several injuries on the person of the deceased. He also tried to assault Shalini (P. W. 4) without any rhyme or reason. This clearly indicates that the relevant time the accused must be suffering from unsoundness of mind which was the result of some poisonous substance consumed by him. It is not possible for us to accept this contention. It is pertinent to note that but for making a bare statement when he was examined under section 313 of the Code of Criminal Procedure, no material has been brought on record by the accused from which an inference of temporary insanity could be drawn. Even the mother of the accused, at whose instance according to the accused he had consumed poisonous substance, is not examined. Even the story told by the accused in his examination under section 313 of the Code of Criminal Procedure was not suggested to Dr. Saoji when he was in the witness-box. Therefore, the plea now raised by the accused will have to be considered in this background. 14. Even the story told by the accused in his examination under section 313 of the Code of Criminal Procedure was not suggested to Dr. Saoji when he was in the witness-box. Therefore, the plea now raised by the accused will have to be considered in this background. 14. The scope of section 84 of the Indian Penal Code is by now well settled. In this context a reference could usefully be made to a decision of the Supreme Court in Oyami Ayatu v. The State of Madhya Pradesh1, and particularly to the following observations in para. 6 of the judgment: "According to section 84, Indian Penal Code, nothing is an offence which has been done by a person who at the time of doing it by reason of unsoundness of mind, is incapable, of knowing the nature of the act, or that he doing what is either wrong or contrary to law. While dealing with this provision, this Court observed in the case of Dahyabhai Chhaganbhai Thakker v. State of Guiarat 2 that there is a rebuttable presumption that the accused was not insane when he committed the crime in the sense laid down by section 84, Indian Penal Code. The accused may rebut it by placing before the Court all the relevant evidence, oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings In the case of Bhikari v. State of Uttar Pradesh3, this Court held that the burden of proving the intention of the accused person, where intention is an ingredient of the offence is on the prosecution and this burden never shifts. But intention can sometimes be only proved from circumstances and therefore it is sufficient for the prosecution to prove the acts of the accused and the circumstances in which they were committed. If from these an inference of the requisite intention can be reasonably drawn, the prosecution must be deemed to have discharged its burden. Dealing with section 84, Indian Penal Code, this Court observed that the aforesaid section could be invoked by a person for nullifying the evidence adduced by prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law, because these are matters of presumption. Everyone is presumed to know the natural consequences of his act. Similarly, everyone is presumed to know the law. It is for this reason that section 105, Indian Evidence Act places upon the accused person the burden of proving the exception on which he relies." From these observations of the Supreme Court, it is quite obvious that there is a rebuttable presumption that the accused was not insane when he committed the crime. The accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial. The provisions of section 84 of the Indian Penal Code could be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law, because these are matters of presumption. Everyone is presumed to know the natural consequences of his act. As already observed, from the evidence on record, it is quite obvious that on the previous Saturday, an incident took place in which accused Nago had filthily abused the girls including the deceased. The girls also abused in return and at that time the accused had given a threat. The incident of assault by knife by the accused Nago will have to be considered in the context of this incident which took place on the previous Saturday. On the day of incident also according to the witness, he was initially seen talking with one Sukhdeo. Thereafter he followed the girls and initially tried to assault Shalini (P. W. 4) who escaped and, thereafter he assaulted deceased Sheela with knife. After seeing the people coming towards the spot, he ran away. As soon as he saw Madhaorao (P. W. 2), he tried to run away towards Warud. Madhaorao followed him and ultimately he was apprehended. The conduct of the accused at the relevant time in catching the hand of Shalini (P. W. 4) and assaulting the deceased Sheela clearly indicates that he wanted to assault these two girls. His further conduct in running away from the spot and also trying to escape when he was spotted out by Madhaorao (P. W. 2) clearly indicates that he wanted to run away to save himself because he very well knew that what he had done was wrong and was contrary to law. His further conduct in running away from the spot and also trying to escape when he was spotted out by Madhaorao (P. W. 2) clearly indicates that he wanted to run away to save himself because he very well knew that what he had done was wrong and was contrary to law. The previous and subsequent conduct of the accused, therefore, clearly indicates that he was capable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. In this view of the matter, in our opinion, the learned Sessions Judge was right in rejecting the defence raised by the accused in this behalf. Once the plea raised by the accused based on his temporary insanity is rejected, then it is quite obvious that the conviction of the accused under section 302 of the Indian Penal Code is wholly justified. 15. So far as the conviction 0f the accused under section 309 of the Indian Penal Code is concerned, but for the evidence of Dr. Saoji (P. W. 6), no material has been placed on record by the prosecution to establish as to when the accused had consumed the poisonous substance. From the subsequent conduct of the accused also, viz., his running away etc., it is difficult to draw an inference that the accused wanted to commit suicide. There is no evidence on record from which an inference could be drawn that the accused intended or attempted to commit suicide and for that purpose and voluntarily consumed the poisonous substance. In the absence of any such positive evidence on record, in our opinion, in any case, the accused is entitled to a benefit of doubt in that behalf. Therefore, it is not possible for us to sustain the conviction of the accused for an offence under section 309 of the Indian Penal Code. Therefore, the conviction as well as the sentence of the accused for an offence punishable under section 309 of the Indian Penal Code will have to be set aside. 16. Therefore, it is not possible for us to sustain the conviction of the accused for an offence under section 309 of the Indian Penal Code. Therefore, the conviction as well as the sentence of the accused for an offence punishable under section 309 of the Indian Penal Code will have to be set aside. 16. So far as the question of sentence is concerned, it is contended by Shri Khare, the learned counsel for the appellant that from the material placed on record, it appears that the accused is a person who is not less than 16 and not more than 20 years of age, and, therefore, the accused is entitled to the benefit of section 6 of the Bombay Borstal Schools Act, 1929. Such a contention was also raised before the learned Sessions Judge. However, the learned Sessions Judge came to the conclusion that this provision is not applicable to the present case as in this case the offence for which the accused is convicted is punishable with death. In our opinion, the view taken by the learned Sessions Judge is perfectly legal. Such a contention was also raised before the learned Sessions Judge. However, the learned Sessions Judge came to the conclusion that this provision is not applicable to the present case as in this case the offence for which the accused is convicted is punishable with death. In our opinion, the view taken by the learned Sessions Judge is perfectly legal. Section 6 of the Bombay Borstal Schools Act, 1929 reads as under: "When 81) offender is found guilty of an offence for which he is liable to be sentenced to transportation or imprisonment or is liable to imprisonment, for failure to furnish security under Chapter VIU of the Code of Criminal Procedure, 1898, whether any previous conviction is proved against him or not, and it appears to the Court- (a) that the offender is not less than sixteen or, in any district or place in which the Bombay Children Act, 1948, the Central Provinces and Berar Children Act, 1928 or the Hyderabad Children Act, 1951, is not in operation less than fifteen, nor more than twenty-one years of age, and (b) that by reason of his criminal habits or tendencies or association with persons of bad character it is expedient that he should be subjected to detention for such term and under such instruction and discipline as appears most conductive to his reformation, it shall be lawful for the Court, if empowered in this behalf, to pass, in lieu of a sentence of transportation or imprisonment, or of an order of imprisonment under section 123 of the Code of Criminal Procedure, 1898, an order for the detention of the offender in a Borstal school established under this Act or subject to the provisions of section 13.A, in Borstal school in any other State in India for such term, not being less-than three years nor more than five years, as the Court subject to rules made under this Act, thinks fit: Provided that before passing such an order the Court shall give an opportunity to the parents or guardians of the said offender to be heard and shall consider any report or representation which may be made to it as to the suitability of the case for treatment in such Borstal school, and shall be satisfied that the character, state of health and mental condition of the offender and the other circumstances of the case are such that the offender is likely to profit by such instruction and discipline as aforesaid." From the bare reading of this section, it is quite clear that the section applies when an offender is found guilty of an offence for which he is liable to be sentenced to transportation or imprisonment, etc. The provisions of this Act will have to be read with sections 53 and 53-A of the Indian Penal Code. Section 53 of the Indian Penal Code reads as under: "53 The punishments to which offenders are liable under the provisions of this Code are- First-Death: (Secondly -Imprisonment for life:) (Fourthly.-Imprisonment, which is of two descriptions, namely: (1) Rigorous, that, with hard labour; (2) Simple; Fifthly -Forfeiture of property; Sixthly - Fine." The punishment of death is distinct and separate than the punishment of transportation. Now, in view of the provisions of section 53A, Indian Penal Code, any reference to the term "Transportation for life" in any other law for the time being in force" will have to be construed as having reference to ‘imprisonment for life'. According to section 302 of the Indian Penal Code. "Whoever commits murder shall be punished with death, or - imprisonment for life, and shall also be liable to fine." The term used in section 6 of the Borstal Schools Act, viz., an offence for which he is liable to be sentenced to transportation clearly indicates that the emphasis is not on the factum of punishment but the emphasis is on the 'liability' to be sentenced. Section 6 of the Bombay Borstal Schools Act, 1929 uses the expression 'liable' with reference to the maximum sentence provided for the offence. In the cases where the maximum sentence provided for the offence is either transportation or imprisonment etc. then alone section 6 of the Bombay Borstal Schools Act, 1929 can apply to such a case. The word 'liable' is normally interpreted to mean, exposed to a certain contingency or casuality. In other words, it means a future possibility, probability, happening which mayor may not actually occur. It deals with the liability and not with the actual order as to sentence. Normally an offence is described with reference to maximum sentence provided therefore. Therefore the offence for which a death penalty is provided for, is not covered by section 6 of the Bombay Borstal Schools Act, 1929. 17. Somewhat similar question also fell for consideration of the Madhya Pradesh High Court in Gangaram Raghunath v. State of M. P.4 and that too in the context of the Reformatory Schools Act, 1897. On a difference of opinion between the two Judges, ultimately the matter was referred to a third Judge, viz. 17. Somewhat similar question also fell for consideration of the Madhya Pradesh High Court in Gangaram Raghunath v. State of M. P.4 and that too in the context of the Reformatory Schools Act, 1897. On a difference of opinion between the two Judges, ultimately the matter was referred to a third Judge, viz. Pandey J. The provision which fell for consideration of the Madhya Pradesh High Court was clause (a) of section 4 of the said act which dealt with the youthful offender. After making a reference to the said provision, the Madhya Pradesh High Court ultimately observed as follows ;- "The question, therefore, is whether murder, the lesser penalty for which is imprisonment for life, is an offence punishable with imprisonment. I am of the view that murder cannot be cal1ed an offence punishable with imprisonment only because the lesser penalty for that offence is imprisonment for life. As provided by section 53 of the Indian Penal Code, the punishment of imprisonment for life is in a category different from the one providing for the punishment of imprisonment, rigorous or simple. Secondly, it is usual to describe an offence with reference to the maximum punishment provided therefore. An example is section 497, Criminal Procedure Code. Under that section, bail cannot be granted if there are reasonable grounds for believing that the accused has been guilty" of any offence punishable with death or imprisonment for life." The expression has been interpreted disjunctively as including offences like those under section 307 of the Indian Penal Code, the maximum sentence for which is imprisonment for life: Emperor v. Nga San Htwa5, Naranji Premji v. Emperor6 and Emperor v. Mst. Janki7. Finally, I do not consider it right to interprete clause (a) of section 4 of the Act as if it did not take into account the gravity of the offence and merely provided for substituting in all cases the sentence of imprisonment by a term in the Reformatory School. If it were so, that could have been more easily provided as follows: "Youthful offender" means any boy who has been convicted of any offence and sentenced to imprisonment or who has been sentenced to imprisonment under section 123 of the Code of Criminal Procedure, 1898, and who, at the time of such conviction or sentence was under the age of sixteen years. In my opinion, the offence of murder, which is punishable with death or imprisonment for life, is not included in the offences referred to in clause (a) of section 4 of the Act. As pointed out in 4 Nag. L R 180 and AIR 1937 Nag. 274, a youthful offender convicted of murder should not ordinarily be sent to the Reformatory School." From these observations of the Madhya Pradesh High Court, it appears that the offence of murder which is punishable with death or imprisonment for life is not included in the offences referred to in clause (a) of section 4 of the Reformatory Schools Act, because it stands on a different footing. So far as the offence of murder is concerned, the offender is liable to be sentenced to death or imprisonment for life. Therefore, it cannot be said that it is an offence for which the offender is liable to be sentenced to transportation or imprisonment alone. The penalty of sentence of death is distinct and separate than the punishment for life or mere imprisonment. The same view seems to have been taken by the Mysore High Court in Ningappa Prabhu v. The State of Mysore8. A contention similar to one now raised before us was also raised before the Mysore High Court. While repelling the arguments advanced in this behalf, the Mysore High Court, observed thus: "Lastly, it was argued by Sri Desai that this is a case in which we could take action under section 6 of the Bombay Borstal Schools Act, 1929. We do not think that the provisions of section 6 would be applicable to the present case; because action under -section 6 would be permissible where an offender is found guilty of an offence for which be is liable to be sentenced to transportation or imprisonment, or is liable to imprisonment for failure to furnish security under Chapter VIII of the Code of Criminal Procedure. In the present case, there cannot be any doubt that the accused is guilty of an offence punishable under section 302 of the Indian Penal Code. Under section 302, the convicted person would be liable to the punishment not merely of imprisonment for life but also for the punishment of death, whichever of the two punishments it may be that the Court, in its discretion, may impose in the circumstances of any particular case. Under section 302, the convicted person would be liable to the punishment not merely of imprisonment for life but also for the punishment of death, whichever of the two punishments it may be that the Court, in its discretion, may impose in the circumstances of any particular case. Therefore, the provisions of section 6 of the Bombay Borstal Schools Act, 1929, in our opinion, will not be applicable to the present case." 18. We respectfully agree with these observations. However during the course of arguments a reference was also made to a decision of the Supreme Court in Saikh Rajjak v. The State of Maharashra9. However, from the bare reading of the said judgment, it is quite obvious that on the basis of a concession made by the State of Maharashtra, the matter was remitted back to the Sessions Court for holding an enquiry far finding out as to whether the Case of the accused in that case was covered by section 6 of the Bombay Borstal Schools Act, 1929. Therefore, it is quite obvious that the question as to where the provisions of section 6 of the Bombay Borstal Schools Act, 1929, will apply to a case of murder or not was neither argued before the Supreme Court nor it was considered nor decided. 19. Therefore, from the provisions of section 6 of the Bombay Borstal Schools Act, 1929, it is quite obvious, that the said provision is not applicable to a case where the offender is convicted of an offence punishable under section 302, Indian Penal Code. 20. Apart from this, even otherwise, in our opinion, this is not a fit case wherein the present appellant could be given a benefit of section 6 of the Bombay Borstal Schools Act, 1929. So far as the factum of age is concerned, no material has been placed on record to prove the age of the accused. Further no material is also placed on record to indicate that by reason of his criminal habits or tendency or association with persons of bad character, it is expedient that the accused should be subject to the detention far such term and under such instruction and discipline as contemplated by the Bombay Borstal Schools Act, 1929. In fact, but for the arguments advanced at the Bar no other material is placed on record. In fact, but for the arguments advanced at the Bar no other material is placed on record. Even an application for invoking these provisions is not filed either by the accused or his parents or guardians. Na material is also placed on record, regarding the character state of health and the mental condition of the accused to indicate that the accused is likely to profit by such instruction and discipline. Further from the mature of the crime it is quite clear that the conduct of the accused was extremely cruel. Because of the insult caused, the accused wanted to take revenge of the girls and, therefore, he inflicted as many as 15 injuries on the person of the deceased. The accused assaulted a defenceless girl and that too cruelly. The offence of murder committed by the accused is not only heinous, but is brutal in nature. Therefore, having regard to the nature of the crime and its brutality, in our opinion, the sentence awarded to the accused leans on the side of leniency. In these Circumstances, in our opinion, no useful purpose will served by invoking the provisions of the Bombay Borstal Schools Act, 1929 even if it is assumed that they are applicable to the present case. 21. In the result, therefore, the appeal is partly allowed. The conviction as well as the sentence of the accused so far as the offence under section 309 of' the Indian Penal Code is concerned is set aside. However, the conviction and sentence of the accused under section 302 of the Indian Penal Code is confirmed. Appeal partly allowed.