JUDGMENT
1. This case discloses a callousness and disregard for human life, which are absolutely horrifying. The appellant and his co-accused have been convicted of the murder of a little boy called Naganna. He was as usual, engaged in tending his father’s goats. The accused were in need of money to spend at a fair and decided to steal some of the goats. They stole one, squeezed its throat and killed it. When they caught another, it bleated and Naganna ran up and threatened to tell his father. The appellant then knocked him down, held him fast and told the other accused to draw a knife from his waist and cut the boy’s throat. This accused 2 proceeded to do with as little compunction as if he had been cutting the throat of a goat. They then hid the body till night when they dropped it into a well and made off with the living goat, which they left with P. W. 7. Naganna’s father found in the evening that his son and two of his goats were missing. Learning from P. W. 4 that he had seen the accused at the place where his son had been and talking to him he made a search and eventually found one of the goats lying dead and some traces of blood. He communicated with the authorities and the police came. Having information that the accused were in hiding in a cave, the Sub-Inspector and others arrested them, after which they pointed out the well into which the body had been thrown and it was recovered. They also gave information about the goats entrusted by them to P. W. 7, and it was identified by Naganna’s father as his missing goat. Some that later, both of them made full confessions to the Sub-Magistrate. They have retracted those confessions, but every precaution was taken to ensure that they were voluntarily made and we can find no ground for concluding that they were the result of pressure. There is therefore a complete and conclusive case. We think that the Judge and three of the assessors were right in finding that the accused were guilty. The fourth assessor differed from them because there were no eyewitnesses which was of course, no reason at all. We must confirm the conviction of the appellant. The sentence is the only possible sentence and that also is confirmed.
2. The other accused has not appealed, the Judge finding that he was only fourteen years of age and therefore committed him to a Senior Certified School for a period of four years. We think it our duty to point out that this finding was arrived at on quite inadequate evidence. The Doctor was asked, in the course of his cross-examination, what he thought the age of accused 2 was and he replied: “Fourteen.” Asked further for his reason, the only reason he gave was that he had not cut his wisdom teeth. That was by itself, a quite insufficient basis for his opinion, as on statistics, wisdom teeth are at least as likely to be cut after as before sixteen years of age. In addition to which accused 2 had himself given his age as seventeen. It is quite clear that Section 37, Children Act, requires that a due inquiry” into age shall be made and that evidence shall be taken. We have noticed a tendency among Judges land Magistrates to be content with the most perfunctory enquiry and to find that an accused is a young person on most inadequate evidence. The burden of proof in such a matter must be on the accused, though naturally, in any case of doubt, the pudge would be careful to give him the benefit of the doubt. But the doubt must be real. It is obviously most desirable from several points of view that a declaration of age Under Section 37 should not be made except on adequate and proper evidence. In the first place, it is important from the point of view of the public interest, that criminals should suffer the legal penalty for their offences and not escape on an unduly lenient finding as to age. In the next, a proper inquiry and finding are essential, for the declaration of age is final and cannot be interfered with in appeal or revision. Lastly there is the question of the length of detention in the Certified School. In this particular case, the doctor, in re-examination, was ready to put the age up to 15 and yet the Judge committed the accused for four years–a year longer than was necessary.
