Andhra HC (Pre-Telangana)
Arshad vs State Of Andhra Pradesh on 8 December, 1995
Equivalent citations: 1996(3)ALD410, 1996(2)ALD(CRI)264, 1996(2)ALT(CRI)433, 1996CRILJ2893
Author: K.B. Siddappa
Bench: K.B. Siddappa
JUDGMENT K.M. Agarwal, J.
1. The appellant was tried for an offence under S. 302, IPC in Sessions Case No. 399 of 1993 by the Additional Sessions Judge, Medak at Sangareddy and was found guilty and accordingly sentenced to undergo life imprisonment by the impugned judgment dated 8-3-1995. Being aggrieved, the appellant has preferred this Criminal Appeal.
2. The accused, the deceased and the material prosecution witnesses were residents of village Kohir. It was alleged that about 10 months before the date of incident, the deceased Nagarchi Khasim Ali had murdered the father of the accused over a land dispute and, therefore, on 14-12-1992 at about 5-15 p.m., the accused dealt a heavy blow on the head of the deceased by an iron rod in Saheen Hotel near Bus Stand, Kohir, which resulted in his death on way to the hospital. A report (Ex.p. 1), was lodged at about 6-00 p.m. on the very day by one P. Narsimlu (P.W. 1), who happened to be the village Administrative Officer. After the post-mortem report and completion of investigation, the accused was chargesheeted and tried for an offence under S. 302, IPC. He pleaded innocence, but was found guilty and accordingly convicted and sentenced as aforesaid. Hence he has preferred this Criminal Appeal.
3. Though the prosecution examined as many as 4 persons as eye-witnesses (P.Ws. 3 to 6), two turned hostile (P.Ws. 3 and 6) and on the basis of the evidence of the remaining two (P.Ws. 4 and 5), the Court below was pleased to find the accused guilty and accordingly to convict and sentence him as aforesaid. The learned counsel for the appellant, therefore, mainly concentrated on demonstrating that the evidence of P.Ws. 4 and 5 was not safe for basing a conviction due to various infirmities pointed out by him. Let us, therefore, examine the evidence of P.Ws. 4 and 5.
4. Dr. N. Ramesh (P.W. 13) performed the autopsy of the dead body and found 3 external injuries on the left side of the head and was definite that the "three injuries cannot be possible with one blow with M.O. 5." But according to Abdul Kareem (P.W. 4), the waiter, "the accused came there and beat the deceased with the iron rod on his head by giving one blow". Abdul Khaleem (P.W. 5), who was at the cash counter of the hotel, also said that "I saw the accused beating with an iron rod on the head of deceased". Though P.W. 4 said that after seeing the incident, he became afraid and went to call his proprietor, P.W. 5 appeared to be on the spot from the beginning to the end inspite of his statement that after one blow on the head of the deceased, he went away from the hotel, because in the same breath, he also stated to have seen the accused running away from the spot in an auto and to have washed the blood on the table after removal of the dead body. In Purushottam v. State of M.P., , the Supreme Court rejected the ocular evidence, which was in conflict with the medical evidence as to the number and nature of the injuries found on the person of the victim. We are, therefore, unable to accept the evidence of P.Ws. 4 and 5 that the deceased was dealt with only one blow by an iron rod by the accused as against the medical evidence that the deceased had three external injuries, which could not be caused by a single blow. The two cases of the Supreme Court, Chimanbhai Ukabhai v. State of Gujarat, and Mayur Panabhai Shah v. State of Gujarat, cited by the learned Public Prosecutor are quite distinguishable. Expert evidence consists of two parts; data evidence and opinion evidence. The first part of the evidence cannot ordinarily be rejected, whereas the second part may or may not be accepted by a Court. It is in reference to this second part of the evidence of the expert that the Supreme Court has said in the said cases that it is not always preferable to oral evidence of eye-witnesses.
5. It is also to be seen that Smt. Beebi Pasha (P.W. 3) was the daughter of the deceased and Mohd. Osman (P.W. 6) was his son-in-law as also brother-in-law. Both were cited and examined as eye-witnesses by the prosecution, but they did not support the case of the prosecution. Further, P.Ws. 4 and 5 were bound to report to the police about the commission of a cognizable offence in their presence, but no explanation is given as to why they did not lodge the report. The report (Ex.P. 1) that was lodged with the police was by the Village Administrative Officer (P.W. 1), who had not seen the incident and as per his own admission, it was based on what he heard from others. He could also not name the person or persons from whom he had derived knowledge of the incident. In this state of affairs, we are unable to sustain the impugned conviction and sentence of the appellant for an offence under S. 302, IPC and in view of this, we do not consider it necessary to deal with other aspects of the case in reference to rule 98 of the Criminal Rules of Practice issued by the High Court, or in reference to any other piece of evidence on record.
6. For the foregoing reasons, this appeal succeeds and it is hereby allowed. The impugned conviction and sentence of the appellant for an offence under S. 302, IPC was set aside and he is directed to be released forthwith, if not wanted in connection with any other offence.
7. With due respect, I find it difficult for me to agree with the reasons and conclusions reached by my learned brother K. M. Agarwal, J. According to me and for the reasons I have to give subsequently, this appeal deserves to be dismissed.
8. Order of the Court :
As we have disagreed in our reasons and conclusions, we direct the papers to be placed before Hon'ble the Chief Justice to refer the matter to a third Judge.
K.B. Siddappa, J.
9. I have had the benefit of going through the judgment of my learned brother, K. M. Agarwal, J. in the above appeal. With great respect to my learned brother, I should express my inability to pursuade myself to agree with the manner of appreciation of evidence and also the conclusions arrived at thereon.
10. In this case the deceased Khasim Ali and the accused Arshad s/o Razack are residents of Kohir village. Accused is no other than the son of the elder brother (Razack) of the deceased. P.Ws. 2 and 3 are the wife and daughter respectively of the deceased. P.W. 6 is the son-in-law of the deceased.
11. The death of the deceased was homicidal. This is clearly established by the doctor, P.W. 13, who conducted post-mortem examination on the dead body of the deceased and issued Ex.P. 15. P.W. 13 found the following injuries on the head of the deceased :
(1) Lacerated injury 3" over the left frontal aspect of head;
(2) Lacerated injury 2" over the left temporal aspect of head; and (3) Lacerated injury over the left side of occipital and mastoid region of head measuring about 4".
P.W. 13 stated that all the injuries caused fracture of the cranial vault over the left side with depression of the fracture segments into the brain matter with collection of blood and crushed brain matter through fracture segments. He found no other injuries on the rest of the body. He opined that the cause of death is due to cerebral death resulting in the injuries on the head. The doctor stated that the injuries can be caused by a weapon like M.O. 5 (iron rod).
12. Apart from this medical evidence there is oral evidence of P.W. 2, who stated that her husband died in the hotel. P.W. 3 who is the daughter of the deceased also stated that she heard some beatings and then she saw that her father was beaten by somebody. That apart there is direct evidence of independent witnesses like P.Ws. 4 and 5. Both of them clearly stated that the accused came from behind and beat the deceased with iron rod. I shall deal in detail with the evidence of P.Ws. 4 and 5 at a later stage. P.W. 11 is the inquest panch, who observed two injuries on the head of the deceased and two more small injuries were also present on the head of the deceased. Ex.P. 9 is the panchanama in which all these particulars are mentioned. Thus it is proved beyond doubt that it was a homicidal death.
13. The case of the prosecution is that Khasim Ali died in Shaheen Hotel at Kohir village. The scene of offence is also well established by the prosecution. P.Ws. 2 and 3 in their evidence referred to the hotel in which the deceased died. P.W. 4 is the supplier in the Shaheen hotel, where the alleged offence took place. His evidence and the evidence of P.W. 4, who was at the cash counter of the hotel at that time clinchingly proves that the deceased was killed in Shaheen hotel. P.W. 6, son-in-law of the deceased also deposed that he and his father-in-law went to take tea in the hotel, which was at the bus-stand. Ex.P. 10 is the scene of observation report which clearly shows that the murder took place in Shaheen hotel. The presence of blood stains on the wall of the hotel is clearly mentioned by P.W. 11 who is punch witness for Ex.P. 10. The photographer, P.W. 12, stated that he took photographs at the Shaheen Hotel and also the photographs of the dead body of the deceased in his house. The investigation officers P.Ws. 15 prepared rough sketch of scene of offence, Ex.P. 16 inside the said hotel. P.W. 16 also clearly stated that the scene of offence is at the Shaheen hotel. As a matter of fact there is no dispute with regard to the scene of offence.
14. In this case the prosecution established strong motive for the accused to kill the deceased. The accused is no other than the son of elder brother of the deceased. There is clear evidence to show that a Sessions Case is pending against the deceased on the allegation that he killed the father of the accused. That apart there are land disputes. This is spoken to by P.W. 1, who is the village Administrative Officer of Kohir village. P.W. 2, the wife of the deceased, clearly stated that there are disputes between her husband and Razack and that there is a murder case pending against the deceased for the death of the father of the accused i.e., Mr. Razack. She also stated that the deceased came to Sangareddy to attend the adjournments in that case. This aspect of the prosecution case cannot be doubted. It is true that P.Ws. 1 to 3 are declared hostile by the prosecution; but it is well established principle that the prosecution can take advantage of the evidence of the hostile witnesses which is in their favour.
15. According to the prosecution P.Ws. 3 to 6 are the eye-witnesses to the incident. Of them P.Ws. 3 and 6 turned hostile. They are related both to the accused and the deceased as indicated above. P.W. 2 (not eye-witness), the wife of the deceased, also turned hostile. However, their evidence established that P.W. 3 was going along with P.W. 6 to Sadasivapet to her in-laws house. For that purpose P.Ws. 3 and 6 went to bus stand at Kohir at about 4.00 p.m. on the day of incident. This is spoken by P.Ws. 2, 3 and 6. It is further established that the deceased and P.W. 6 went inside the hotel to take tea as there was time for the bus. According to the prosecution, at that time accused came from behind with M.O. 1 and gave blows on the head of the deceased. Consequently the deceased died. For the incident proper the prosecution relied upon the evidence of P.Ws. 4 and 5. P.W. 4 is a hotel supplier of Shaheen hotel. He stated that he supplied tea to the deceased at about 4.00 p.m. Another person was present along with the deceased in the hotel. The accused came there and beat the deceased with iron rod on his head by giving one blow. The deceased received bleeding injury on the head and fell down. After seeing the incident he was afraid and went to his proprietor's house to bring him to the hotel. He clearly stated that at that time P.W. 6 was present at the cash counter in the hotel. This evidence is fully corroborated with the evidence of P.W. 4, who clearly stated that P.W. 4 is working as supplier in their hotel. He was also present at the cash counter of the hotel on the day of incident, which took place one and half years ago at about 4 or 5 p.m. He further stated that the deceased and another person came and took tea in their hotel. He was getting water with glasses. P.W. 4 was coming from kitchen room to the hotel hall. Then he saw the accused beating on the head of the deceased with iron rod. The deceased received bleeding injury on the head. After giving of one blow by the accused with M.O. 5 this witness went away from the hotel. Afterwards the accused ran away by taking an auto rickshaw. He does not remember the Registration number of the auto. The blood had fallen on the table in the hotel and they washed away the blood on the table after the deceased was shifted to the hospital.
16. The presence of P.Ws. 4 and 5 in the hotel is quite natural. Their evidence corroborates each other on all material aspects. Of course there are certain discrepancies which are marked as Exs. D-1 to D-5. But the trial Court rightly held that they are not material discrepancies.
17. The learned counsel appearing for the appellant strongly contended that the evidence of P.Ws. 4 and 5 does not inspire confidence. They are planted witnesses. P.W. 4 stated that after the accused beat the deceased with iron rod he went to the house of his proprietor to bring him to the hotel. The proprietor, P.W. 5 was very much present in the hotel. Therefore there is no reason for him to go and bring the proprietor to the hotel. The objection of the learned counsel for accepting the evidence of P.W. 4 on the above ground cannot be sustained. P.W. 5 is a young boy. He may be the son of the proprietor of the hotel. This position is made clear when we scan the evidence of P.W. 4 in his cross-examination. He stated that the house of the proprietor is at a distance of half a kilometer and he took about half an hour to bring the proprietor to the hotel. Therefore it is clear that P.W. 5 belonged to the family of the proprietor and he was at the cash counter of the hotel at that time.
18. The learned counsel further submitted that there is major contradiction in the occular evidence of P.Ws. 4 and 5 and the medical evidence of P.W. 13. According to P.W. 4 the accused gave one blow on the head of the deceased. P.W. 5 also says that the accused beat the deceased with iron rod on the head. After giving one blow by the accused to the deceased he went away. But there are three head injuries on the deceased as per the evidence of P.W. 13 and Ex.P. 15, post-mortem certificate. This major discrepancy, according to the learned counsel, nullifies the evidence of P.Ws. 4 and 5. My learned brother accepted this submission of the learned counsel. But with great respect I beg to differ.
19. It is true that P.W. 4 stated that the accused beat the deceased with iron rod on his head by giving one blow and the deceased fell down. He became frightened and went to his proprietor's house. This indicates that he was not present through out the time of incident. It is not in his evidence that the accused gave only one blow and ran away. Likewise P.W. 5 stated that after the accused gave one blow on the head of the deceased he went away from the hotel. He was also not present inside the hotel where deceased was attacked throughout the time of incident i.e., till the accused ran away from the hotel. It is true that he stated that afterwords the accused ran away by taking an auto. Obviously he saw from outside the hotel, because he clearly stated that he went away after the accused gave one blow. Further it is pertinent to note that it would not take much time for the accused to give other blows and run away. This situation cannot be interpreted that the accused gave only one blow and none else. In all probability the accused gave other blows also. It is again pertinent to note that there were no other persons in the hotel except P.Ws. 4 and 5, deceased, the accused and P.W. 6, son-in-law of the deceased (hostile) at the time of incident. Therefore there is no scope to presume that the other two injuries on the head were received in some other transaction or no incident, as stated by the prosecution, has taken place. P.Ws. 4 and 5 honestly stated only the facts which they saw and did not venture to say that the other two blows were also given by the accused in their presence.
20. Further the evidence of P.W. 5 cannot be discarded on the ground that he saw the accused running away from the spot in an auto and he got the blood on the table washed after removal of the body. This piece of evidence also should not be taken to mean that P.W. 5 was present inside the hotel from the time the accused gave first blow and till the accused ran away in an auto. Further, according to P.W. 5, the blood on the table was washed by P.W. 4, who came to the hotel after half an hour along with the proprietor (vide evidence of P.W. 4). Thus, this piece of evidence of the P.W. 5 that he got the blood washed cannot be construed that P.W. 5 was inside the hotel through out the incident. P.Ws. 4 and 5 are independent witnesses. No motive is suggested to them to come forward to speak falsehood against the accused. Therefore their evidence cannot be disbelieved on the ground that the medical evidence did not support their version. The said discrepancy can satisfactorily be resolved.
21. The lower court rightly observed that P.Ws. 4 and 5 are not chance witnesses and they are proper persons to be present in the hotel. The learned Sessions Judge rightly observed that the defence counsel did not suggest anything in the cross-examination as to why they came forward to give false evidence leaving the real culprit.
22. The other ground indicated to disbelieve the evidence of P.Ws. 4 and 5 is that they did not report to the police about the commission of cognizable offence and that the prosecution did not give any explanation as to why he did not lodge a complaint. (This ground is accepted by my learned brother). As I have already observed, that P.Ws. 4 and 5 are independent witnesses. They are not related to either party. Further it is nobody's case and it is not the law that the evidence of P.Ws. 4 and 5 should be discarded on the ground that they did not give report to the police in respect of this cognizable offence. Thus, in my humble opinion it is not a ground on which the evidence of independent witness like P.Ws. 4 and 5 can be discarded. According to me their evidence inspires confidence.
23. Another point raised is that the evidence of P.W. 1 and the facts mentioned in Ex.P. 1 depend upon the information given by some other. Admittedly he had no personal knowledge about the facts. It is also stated that the person who gave information to P.W. 1 was also not examined. Therefore no credence can be given to the evidence of P.W. 5 and also the fact that he gave Ex.P-1 report to the police. It seems that giving of Ex.P. 1 is stated to be bad because P.W. 1 relied upon hear-say evidence. First of all the lower Court did not rely upon the evidence of P.W. 1 with regard to the incident proper. I am also not inclined to give any importance to his evidence except to the extent that he spoke about the disputes between deceased and his elder brother Razack who is the father of the accused. But the fact that he put the law into motion by giving Ex.P. 1 report to the police cannot be discarded. It is well established that the informant may not have the personal knowledge of the incident to give report (Hallu's case, ). Even the telephonic message received by officer incharge of the police station from anoymous person was held to be FIR (vide Randhir's case (1980 Cri LJ 1397) (Delhi). Even when police officer hears that there has been a riot and a person shot in the village, that information, though not reduced to writing, is held to be a FIR. In determining whether a report is or not a FIR regard should be had to the following :
(1) It should not be vague or indefinite, but information of facts showing commission of cognizable offence enabling the police or giving scene to take up investigation; (2) It should be given by any one, not necessarily a person aggrieved or by some one on his behalf; (3) It need not name any one as offender or witness; nor need it state the circumstances of the commission of crime.
24-25. It is the first information which sets the police in motion. Therefore Ex.P. 1 given by P.W. 1 intimating the cognizable offence cannot be called bad at law. Further the facts mentioned by P.W. 1 in Ex.P. 1 do not entirely depend on hearsay. P.W. 1 clearly stated that he saw the dead body being taken by his daughter in a rickshaw and this was not contradicted by the defence. I have already held that the case of the prosecution is proved beyond doubt even if we eschew the oral evidence of P.W. 1.
26. That apart the recovery part of the case is also well established by the prosecution. P.W. 11 is the panch witness for recovery of M.O. 5, iron rod and recovery of M.O. 6 auto rickshaw. P.W. 15 clearly stated that he sent search party and that party located the auto rickshaw which was used in the crime. Therefore he seized the auto rickshaw in the presence of mediators. At the same time, he also seized M.O. 5 which was in the auto.
27. Further there is no delay in giving the complaint, the incident occurred at about 5-00 p.m. on 14-12-1992. P.W. 1 gave report Ex.P. 1 at 6-00 p.m. on the same day. This is clearly spoken to by P.W. 1. This was supported by the evidence of P.W. 16 (S.I. of Police) who clearly stated that on 14-12-1992 at 10.00 hours he received complaint by P.W. 1 who is the Village Administrate Officer of Kohir village and registered the case. P.W. 16 also stated that he rushed to the scene of offence at about 6.00 p.m. on 14-12-1992 itself. Therefore, virtually there is no delay in lodging the complaint. More over the material prosecution witnesses examined by the prosecution are against the prosecution. Therefore it cannot be said that there was conspiracy to foist the false case against the accused, leaving the real culprit.
28. Another important circumstance which strengthens the prosecution case is that the accused himself surrendered before the Court after two or three days. This was clearly spoken by P.W. 15, C.I. of Police. There is no suggestion to P.W. 15 that the accused did not voluntarily surrender before the court and that he illegally arrested him etc. Therefore the prosecution brought home the guilt of the accused for the offence punishable u/S. 302 of the Indian Penal Code and the lower court is right in passing the sentence of imprisonment for life.
29. The learned Sessions Judge, who had advantage of observing the demeanour of the witnesses and other circumstances in this case has given cogent reasons for coming to the conclusion. It is well settled that it cannot lightly be disturbed unless the findings are perverse and are based on unacceptable evidence.
30. In the result the criminal appeal fails and it is accordingly dismissed.
Lingarajarath, J.
31. This appeal has been referred to me since difference arose between the two learned Judges of the Division Bench as regards the appreciation of evidence so as to bring home the charge under S. 302, IPC against the appellant. The facts relating to the case are stated in detail in the two orders passed by the two learned Judges and need not be repeated here except so far as barely necessary.
32. It is the prosecution case that about 10 months before the date of occurrence, 14-12-1992 the deceased killed the father of the accused for which he bore grudge against him. On 14-12-1992 at about 5-15 p.m. while the deceased was taking tea in one Saheen Hotel near the bus stand, Kohir the appellant came inside the hotel and hit the deceased with an iron bar of about 2' length and 1 1/2" diameter, on account of which he fell down sustaining fatal injuries. The death was instantaneous. Information was lodged at 6 p.m. by P.W. 1 the Village Administrative Officer. Investigation was taken up, postmortem was conducted, the appellant was apprehended and on chargesheet being submitted he was charged under S. 302, IPC for which he stood trial, and the prosecution case having been found to have been established, the appellant was sentenced to imprisonment for life.
33. Four witnesses, P.Ws. 3 to 6, were examined as eye-witnesses to the occurrence, but P.Ws. 3 & 6, were permitted to be cross-examined by the prosecution, they having been gone back on their earlier version. Of P.Ws. 4 and 5, the former was a waiter in the hotel whereas P.W. 5 was a supplier and was incharge of the cash counter. P.W. 13 was the Medical Officer who conducted the autopsy in which he found the deceased to have suffered three lacerated injuries of the following description.
1. Lacerated injury 3" over the left frontal aspect of head.
2. Lacerated injury 2" over the left temporal aspect of head.
3. Lacerated injury over the left side of occipital and mastoid region of head measuring about 4".
It was his evidence that the three injuries were not possible with one blow with M.O. 5 the iron bar. Because of such medical evidence, Hon'ble Justice K. M. Agarwal presiding over the Division Bench which heard the appeal, was of the view that as the evidence of P.Ws. 4 and 5 disclosed only one blow to have been given by the appellant, he could not have been taken to have inflicted all the injuries and it being not known as to who is or are the author (s) of the other injuries, the conviction under S. 302, IPC cannot be sustained. Hon'ble Justice K. B. Siddappa, the other member of the Division Bench took the view, disagreeing, that the appellant had a very strong motive to commit the offence, the direct ocular statement of P.Ws. 4 and 5 pointed to him as the only person who had inflicted the injuries and that there was no conflict between the medical evidence and the ocular statement.
34. As was rightly observed by Hon'ble Justice K. M. Agarwal, expert evidence has two aspects, the data evidence and the opinion evidence. While it is undoubtedly true that data evidence cannot be rejected if it is inconsistent to oral evidence, yet, so far as opinion evidence is concerned, it is only an inference drawn from the data and that evidence would not get precedence over the direct eye-witness testimony unless of course the inconsistency between the two is so great as to obviously falsify the oral evidence. In Chimanbhai Ukabhai v. State of Gujarat, the question was answered in brief words (para 12) :
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
35. But, so far as the present case is concerned, it is not necessary to dwell upon the opinion of P.W. 13 that the injuries were not possible by one blow at great length since there is no inherent incompatibility between the evidence of P.Ws. 4 and 5 and that of P.W. 13. Both the witnesses did never say that the accused gave only one blow. All that they said was that they had seen the accused as inflicting one blow and after that both of them had run away. While P.W. 4 stated that he immediately ran away after seeing the blow given. P.W. 5 stated that seeing the accused inflicting the blow he challenged him, but being threatened by him he also ran away and that after some time the deceased (accused) went away in an auto. Both the witnesses unmistakably say some time to have been lapsed between their departure and that of the appellant and hence it is perfectly possible that the appellant might have given second or third blow to the deceased before leaving the scene. Since that is so, it has to be held that the conviction of the appellant under S. 302, IPC is based upon direct and cogent evidence and is not liable to be interfered with particularly when P. Ws. 4 and 5 have been accepted as utterly independent witnesses.
36. Mr. Padmanabha Reddy, the learned counsel appearing for the appellant next urges the submission that since the appellant was aged 19 years at the time of passing of the judgment by the learned Additional Sessions Judge, he should have been dealt with under Rule 98 of the Criminal Rules of Practice & Circular Orders, 1990 and the learned Judge should have considered whether to make a recommendation for his detention in the Borstal School under the provisions of the Andhra Pradesh Borstal School Act 1925 (for short 'the Act'). Except the judgment, the age of the appellant nowhere else appears as 19 or as any other age. Both, the statements recorded under S. 313 Code of Criminal Procedure and the charge itself, have been left blank so far as the column regarding age is concerned. There is thus no authoritative recording of the age of the appellant. Besides making the consideration and recommendation, the factors necessary to be considered can be better appreciated only by the Addl. Sessions Judge. It is the submission of Mr. Reddy that the Court can only make recommendation in the matter to the Government, but cannot direct detention itself, as under S. 8 of the Act, but in making the consideration and recommendation, the same factors as are indicated in S. 8 of the Act are to be taken into account.
37. I would, hence, while dismissing the appeal, permit the appellant to present an application, if so desired, before the Additional Sessions Judge, Medak at Sangareddy to consider the applicability of the Borstal School Act and the question whether any recommendation is to be made in his case to the Government for his detention in the Borstal School. If such an application is presented, it should be disposed of within a period of one month.
38. Appeal dismissed.