Govinda Menon, J: Appellant Narayanan Sukumaran has been convicted for the murder of a small child Vinod by name aged about 5 years by throttling him and for having robbed him of his gold chain. For the offence punishable under section 302, Indian Penal Code, he has been sentenced to the extreme penalty of law and for the offence under section 392, Indian Penal Code he has been sentenced to suffer rigorous imprisonment for ten years. Criminal Appeal No. 240 of 1964 is filed by the accused against the aforesaid conviction. Reference by the learned Sessions Judge under section 374, Criminal Procedure Code, for confirmation of the sentence of death is also before us. Deceased Vinod is the son of P.W. 2 and his wife P.W. 5. They were residing in the house in Neerananickal compound on the eastern side of Palai-Thodupuzha road. The property on the western side of this compound also belongs to P.W. 2 and there is a cinema theatre there. In between these twoproperties, there is an unused lane and on both sides of the lane there is a thick growth of shrubs and creepers. P.W. 2 is the contractor of a toddy shop situated on the western side of the road. Touching the toddy shop there is a bunk where P.W. 3 carries on his trade. On the morning of 19th July, 1964 when P.W. 2 was in his shop the boy Vinod went to the shop and after staying there for some time left the shop getting 6 paise from his father for purchasing lozenges. The boy went to P.W. 3’s bunk, got lozenges and a plantain fruit and proceeded northwards along the public road and turning towards the theatre compound. P.W. 4, a tapper of the toddy shop, accompanied the boy up till the theatre and afterwards went northwards for his tapping work. He then saw the accused on the north-eastern side of the theatre. Thereafter P.W. 9 met the boy on the eastern side of the theatre and she asked the child to go home but she saw the accused who was standing on the foot-path beckoning the boy and the boy going to the place where the accued was standing. P.W. 10 another witness saw the accused at about 10.30 A.M. emerging from the lane into the road in front of her house. P.W. 10 another witness saw the accused at about 10.30 A.M. emerging from the lane into the road in front of her house. He was in an agitated mood and she asked him what he was looking about. The accused replied there was nothing and enquired of her whether she had seen his father. The accused then proceeded towards Kollappally junction. In the meanwhile P.W. 5 the mother of Vinod finding that the boy had not returned home went to the toddy shop and enquired of P.W. 2. On being informed that the boy had already left the toddy shop both of them started in search of the boy. P.W. 3, the bunk man, said, that the boy had purchased lozenges and left the place. In the course of the search they learnt from P.W. 9 that the accused was seen beckoning the boy and that the boy had gone to him. By that time P.W. 4, the tapper, came and he also informed P.W. 2 about seeing the accused on the north eastern corner of the theatre compound. While the search was going on P.Ws.11 and 12 saw the dead body of Vinod in the unused lane. On information being received P.W. 2 hastened to the spot and found his son lying dead with mark; of violence on his throat. He found the gold chain which the boy was wearing that morning missing. The dead body was then removed to the house. The same day at about 1 p.m. P.W. 13, a newphew of P.W. 2, reached the Meenachil Police Station about five and a half miles away from the scene of occurrence and gave the first information statement Exhibit P-12 before the Sub-Inspector of Police, P.W. 17. A case was registered. The Sub-Inspector then proceeded to the house of P.W. 2 and held the inquest. After the inquest the dead body was sent for post-mortem. P.W. 6, the Civil Surgeon attached to the Taluk Hospital, Meenachil, conducted the autopsy. The same evening P.W. 18, the Circle Inspector, reached the scene and took over the investigation. The accused was absconding and on 22nd July, 1964, P.W. 16, a Police Constable, arrested the accused and produced him before P.W. 18. P.W. 6, the Civil Surgeon attached to the Taluk Hospital, Meenachil, conducted the autopsy. The same evening P.W. 18, the Circle Inspector, reached the scene and took over the investigation. The accused was absconding and on 22nd July, 1964, P.W. 16, a Police Constable, arrested the accused and produced him before P.W. 18. The accused was then questioned and on information furnished by him the gold chain M.O.3 was taken into custody from a bundle of rags kept inside the southern room of the accused’s house. The next day the accused was produced before the Additional First Class Magistrate, Meenachil, who remanded him to custody. A requisition was made for recording his confessional statement. P.W. 7, the Additional First Class Magistrate, after giving him time for reflection and after administering due warning recorded his confessional statement, Exhibit P-8. After completing the investigation the accused was charge-sheeted. No witnesses were examined in the committing Magistrate’s Court. On being questioned on the evidence of the witnesses and the documents produced under section 173, Criminal Procedure Code, the accused stated that he had nothing to say. Exhibit P-21 is the statement. In the Sessions Court he denied commission of the offence and stated that the confession was made by him as a result of police torture. He denied having given information leading to the discovery of M.O.3 gold chain from his house. He characterised the evidence of the witnesses as false. No witnesses were examined on his side. The death of Vinod due to asphyxia as a result of strangulation isamply proved by the medical evidence, in the case. P.W. 6, the Civil Surgeon of the Taluk Headquarters Hospital, Meenachil conducted the autopsy. He found (1) an abrasion ¾“X 1/8” below the angle of the mandible; (2) another abrasion 1“X 1/8”, half below injury No. 1; (3) another abrasion ¾“X 1/8”, half below injury No.2; (4) yet another abrasion ½“X 1/8” half an inch below and outside injury No.3; (5) there was a contusion on the right side of neck at its middle; (6) an abrasion ½“X ½” on the right side of the face in front of the right angle of the mandible. All the injuries, according to the doctor, were ante mortem. All the injuries, according to the doctor, were ante mortem. On dissection the subcutaneous tissues of the neck underneath the abrasions on the left side and contusion on the right side were found to be discoloured reddish black with extravaction of blood under the subcutaneous tissues and this according to the doctor was the result of throttling. Internal examination revealed that pleura, pericardium, lungs, heart and other internal organs were congested. According to the doctor the deceased would appear to have died of asphyxia due to strangulation as seen from the injuries on the neck and congestion of all the internal organs. This fact is not disputed by the defence. The next question is whether the prosecution has succeeded in proving that it was the accused who was responsible for causing the death of the boy Vinod and robbing the gold chain M.O.3 from him. There is no direct evidence and the whole case depends upon circumstantial evidence. But the circumstantial evidence afforded in this case is so clinching that there is no escape from the conclusion that it was the accused and accused alone who is responsible for the murder. That morning the boy had left his house and gone to the toddy shop. After remaining there for some time he took a few paise from his father and from P.W. 3’s shop purchased lozenges and a plantain fruit and left his shop towards his house. The evidence of P.Ws.4 and 9 would establish beyond doubt that the boy was last seen alive in the company of the accused in the precincts of the cinema theatre near the house of P.W. 2. There is no reason to doubt these two witnesses, P.W. 4, saw the accused near the cinema theatre while going for his tapping work and immediately afterwards P.W. 9 met the boy and found the accused beckoning him and the child going towards the accused. Not long after this another witness P.W. 10 saw the accused emerging to the road from the lane where subsequently the dead body of the boy was detected. The accused was then in an agitated mood and was looking here and there and the witness questioned him. There is no reason to doubt her evidence also. All these are witnesses against whom no enmity is even suggested. The accused was then in an agitated mood and was looking here and there and the witness questioned him. There is no reason to doubt her evidence also. All these are witnesses against whom no enmity is even suggested. We have then the evidence of the father and mother of the deceased and the bunk man, P.W. 3, that on that day the boy was wearing a gold chain on his neck and that chain was found missing when the dead body was discovered. The other articles worn by the boy M.O.1 slippers, was lying near the dead body, his shorts is No.2 and on the dead body was the gold ring M.O.4. The accused with whom the boy was seen last alive was not available anywhere in the village and was in hiding. He was arrested by P.W. 16, a Police Constable, in the early hours of 22nd July, 1964, and was produced before P.W. 18, the Circle Inspector. P.W. 18 questioned the accused and on information furnished by him, the Inspector accompanied him to the accused’s house and from the southern room of his house the accused took out a bundle of rags and untied it and produced therefrom a gold chain. It was taken into custody under a mahazar Exhibit P-11. P.W. 8, one of the persons who was present at the time the chain was produced by the accused, has attested the list. The gold chain is marked as M.O.3 and it is identified not only by the father and mother but by the other witnesses as the chain which was worn by the boy on that morning before he was found missing and later discovered dead as a result of throttling. M.O.3 chain was made by the goldsmith, P.W. 15, at the instance of P.W. 14. the sister of P.W. 5, the mother of the deceased and both P.Ws.14 and 15 have identified the chain in an identification parade conducted by the Magistrate, P.W. 7. So the chain properly identified as belonging to the deceased and which the boy was wearing at the time of his death had been traced to the possession of the accused. Beyond denying the evidence of P.W. 18 and the attestor P.W. 8 the accused has not chosen to offer any explanation as to how he came by the possession of the jewel. Beyond denying the evidence of P.W. 18 and the attestor P.W. 8 the accused has not chosen to offer any explanation as to how he came by the possession of the jewel. It is well settled, that in cases where robbery and murder are so connected as to form part of the same transaction the recent and unexplained possession of the stolen property is not only presumptive evidence against the accused on the charge of robbery but also on the charge of murder. To lend further assurance to the other evidence we have Exhibit P-8 the confessional statement made by the accused before the First Class Magistrate, P.W. 7. In that confessional statement the accused has admitted taking the boy Vinod to the lane, throttling him and when he fell down dead removing the gold chain and secreting it in his house and later when he was arrested giving information to the police and producing the chain before them. A reading of the evidence of P.W. 7 would show that he had observed all the formalities, warning him and giving him time for reflection and it was only after he was completely satisfied that it was a voluntary statement that he recorded the statement of the accused. It is true that the confession has been retracted, but there is sufficient corroboration afforded by the other evidence in the case. Thus on a careful and anxious consideration of the entire evidence and the circumstances of the case we entertain no doubt that it was the accused who was responsible for the murder and robbing the child; of the gold chain. The conviction should have been under section 397, Indian Penal Code rather than under section 392, Indian Penal Code. However, the conviction of the accused under sections 302 and 392 Indian Penal Code, is well justified and is confirmed. The conviction should have been under section 397, Indian Penal Code rather than under section 392, Indian Penal Code. However, the conviction of the accused under sections 302 and 392 Indian Penal Code, is well justified and is confirmed. Now the question that remains to be considered is about the sentence Learned Counsel appearing for the accused contends that the learned Judge has gone wrong in relying solely on Exhibit P-1 the application form for admission to the school for fixing the age of the accused, that in fact the accused is less than 16 years of age and therefore is a ‘child’ within the meaning of the term in the Travancore Children Act and under section 26 of the Act the Court cannot sentence such a person either to death or imprisonment for life even if the accused is found guilty of the offence of murder and so the accused ought to be sent to a certified school. In the absence of a provision similar to section 37(2) of the Madras Children Act which provides that no Court shall in appeal or revision interfere with any presumption or declaration as to age made under section 37(1), we agreed to go into the question whether the finding of the learned Judge that the accused was not a child is correct. Under section 2(a) “child” means a person under the age of sixteen years. In proof of the age of the accused the Headmaster of Government L.P. School, Antheenad was examined as P.W. 1. He gave evidence that he knew the father and mother of the accused, that the mother came to the school to have the accused admitted, that he gave her an application form, that on her instructions Gopalan Nair, a teacher in the school filled up the form, that the mother gave the date of birth of the accused according to the Malayalam era, that he gave the corresponding English date as 1st March, 1948 which was entered in the application form and that the mother signed the application form in his presence and Exhibit P-1 is that application form. Neither Gopalan Nair who wrote out the application nor the then Headmaster K. Pappan has been examined. It has been brought out that the mother of the accused is an illiterate lady. Neither Gopalan Nair who wrote out the application nor the then Headmaster K. Pappan has been examined. It has been brought out that the mother of the accused is an illiterate lady. Wherefrom she got the Malayalam date and whether the date, month and year has been noted down, anywhere by her has not been brought out in the evidence. Exhibit P-2 is the admission register wherein the date shown in Exhibit P-1 has been entered. Learned Judge accepted the evidence and as according to that the accused was 16 years, 4 months and 18 days old, he held that the accused is clearly not a child and the provision of the Children Act is not attracted. The accused had been produced in Court and on seeing him, we felt a genuine doubt whether the boy was really past 16 years of age. The person who gave the information regarding the date being an illiterate woman we thought that it was necessary in the interests of justice to have the boy examined by a qualified doctor. The accused was, therefore, examined by the Radiologist of the District Hospital, Ernakulam and the doctor was examined as a Court witness. The certificate given by him is Exhibit C-1 and there he has stated the age of the accused is. only 15 years. When examined he deposed that he had taken X-ray photograph of the joints and has given reasons for his opinion and has categorically stated that the accused is less than 15 years of age. We are tempted to agree with the opinion given by the Court witness and we fix the age of the accused as below 16 years and hold that the Children Act would apply. Section 26 of the Act says that notwithstanding anything to the contrary contained in any law no child shall be sentenced to death or imprisonment for life or committed to prison unless he is certified by the Judge who tries him as of so unruly or of so depraved a character that he is not a fit person to be sent to a Certified School and that none of the other methods in which the case may be legally dealt with is suitable. As suggested by the learned Public Prosecutor the more appropriate section for dealing with the accused under the Children Act is section 33. As suggested by the learned Public Prosecutor the more appropriate section for dealing with the accused under the Children Act is section 33. Under that section when a child is convicted of an offence of a serious nature and the Court is of opinion that no punishment which under the Act it is authorised to inflict is sufficient, the Court shall report the case for the orders of the State Government. There can be no doubt that the offence committed by the accused here is of a very serious nature and in our opinion mere detention in a Certified School will be no adequate punishment for the offence and we agree with the State Prosecutor that recourse should be had to section 33. Support for the view that we take can be had in the decision of the Madras High Court in the case in Mulleriparambil Kanaran v. Emperor1. We, therefore, set aside the sentence passed on the appellant and order that under section 33 (1) of the Travancore Children Act, the accused be detained in the Central Jail, Trivandrum and we report the case for the orders of the State Government. The reference is rejected and the appeal is disposed of as above. M.C.M. ----- Reference rejected.