John Beaumont, Kt., C.J.
1. These are an appeal and an application to confirm the death sentence passed on accused No. 2, and a reference under Section 307 of the Criminal Procedure Code, in a case from the Sessions Court of Belgaum.
2. The charge against the six accused was, first, that between January 1, 1938, and December. 31, 1938, they agreed to do an illegal act to wit the murder of Muchkandappa and thereby committed an offence under Section 120B of the Indian Penal Code. Then there is a charge against accused No. 2 that in furtherance of the conspiracy on December 11, 1938, he attempted to murder Muchkandappa by administering arsenic. Then there is a charge against accused No. 2 that on December 14, 1938, he kidnapped Muchkandappa in order that he should be murdered. Then there is a charge against accused Nos. 2, 3 and 6 that in furtherance of the conspiracy they in fact murdered Muchkandappa on December 14, 1938, by drowning. Then accused No. 1 is charged with abetment of the offence of murder. So also are accused Nos. 4 and 5. The charge under Section 120B and the charge of kidnapping, were tried by the learned Judge with a jury, the other charges being tried by the learned Judge with assessors. The jury convicted all the accused except accused No. 4, whom I need not refer to again. They convicted all the other accused of conspiracy under Section 120B, and the learned Judge differed from that verdict in so far as relates to accused Nos. 1, 3 and 6, and he has referred that matter to us under Section 307. Accused No. 2 was convicted of attempt to murder, of kidnapping in which charge, I think, there is no substance at all, and of murder by drowning. The learned Judge in agreement with the assessors convicted accused No. 2 of attempt to murder by poison and of murder by drowning. The learned Judge also convicted accused No. 5 of abetment of murder, but acquitted accused Nos. 1, 3 and 6 of the charge of abetment.
3. The foundation of the prosecution story is that the murdered Muchkandappa, who was aged not quite twelve years, had been born to his mother Nilgangawa eleven months after the death of her husband. Accused No. 1, who was a son of the husband by another wife claimed that Muchkandappa was illegitimate, and he started proceedings in the civil Courts to establishthat fact. The civil litigation proceeded for about ten years, and eventually, in December, 1937, this Court held that Muchkandappa was a legitimate son of the husband of Nilgangawa. It is said that thereupon accused No. 1 conceived the intention of getting this boy murdered, and there were three attempts to murder, the last of which was successful. The first attempt to murder was between January and August, 1938, by means of witchcraft. There is, I think, abundant evidence that all the accused (I exclude accused No. 4 who has been acquitted), did conspire together at the instance of accused No. 1 to murder Muchkandappa by means of a form of witchcraft known as bhanumati. I think that was the effect of the jury's verdict of guilty under Section 120B. The learned Judge, as I understand him, did not doubt that there was plenty of evidence of a conspiracy to murder Muchkandappa by means of witchcraft, but he thought that such a conspiracy was not a criminal offence and did not fall within Section 120B.
4. Now, Section 120B provides that whoever is a party to a criminal conspiracy to commit an offence shall be punished. Criminal conspiracy is defined in Section 120A in these terms:
When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
It is plain that an agreement to commit murder, being an agreement to commit an offence, falls within Section 120B, and none the less so, in my opinion, because the means by which the murder is to be perpetrated are not agreed upon, or the means which are agreed upon are such as are not likely to prove, and do not in fact prove, effective. If once there is a conspiracy to commit murder, the case falls within Section 120B, the offence under that Section being the conspiracy, and not the acts by which the subject-matter of the conspiracy is to be carried into effect. But if the conspiracy is merely to do an act which is not illegal, though in the hope and belief that that act may result in the death of or injury to some person, in my opinion that does not amount to a conspiracy to do an illegal act. To take an example: ' if A and B agree that they will induce ' Y ' to point his finger at X, believing that ' Y ' is endowed with some special power which will enable him to kill X by so doing, there is no agreement to do an illegal act, and no conspiracy to commit an offence.' But if the agreement is to commit the murder of X, and the first means to that end is to be to induce Y to point his finger at X, then I think the agreement, being in its essence to cause the death of X and the means being subsidiary, there is a conspiracy to commit an offence.
5. Now, it is argued here that the agreement between the parties was to cause the death of Muchkandappa by means of bhanumati, and by no other means. The actual bhanumati, which was practised by the witness Machendra as a result of this conspiracy, was certainly not witchcraft which could in the ordinary course of nature cause death. It consisted of acquiring a pig's leg, some earth wetted by his urine and a piece of cloth worn by the threatened boy, burying them in front of his house, and reciting incantations over the concoction. I agree that if the only agreement between the accused was to perform this curious act, me mere fact that accused No. 1, and possiblysome of the others, might have anticipated that the death of Muchkandappa would ensue, would not constitute an offence under Section 120B. But I think there was ample evidence on which the jury could find, and that they in fact did find, that the real agreement was to cause the death of Muchkandappa, the means to be tried in the first instance being a form of witchcraft the nature of which, as the evidence makes clear, none of the accused understood, when they entered into this conspiracy. As I think that the jury were entitled to find that there was a conspiracy to murder Muchkandappa, I am not prepared to accept the reference of the learned Judge, and interfere with the verdict of the jury under Section 120B.
6. [At this point the judgment dealt with the question of attempt to murder and concluded as follows:]
7. Then I come to the actual killing of the boy by drowning on December 14. The evidence as to that consists of that of the mother and Balappa, who both say that the boy went out with accused No. 2 for swimming on that day. The boy seems to have hired a bicycle, and the dealer from whom he hired it is exhibit 17, who saw the deceased and accused No. 2 together and accused No. 2 alone brought the cycle back about an hour after. There is also exhibit 112, who says that he saw accused Nos. 2, 4 and 6 at Athni on December 14. Accused No. 2 was standing with a bicycle in his hand, and the witness subsequently drove them in his bus. There is also exhibit 14, which is a letter in the handwriting of accused No. 2, though he denies having written it, addressed to Balappa explaining that Muchkandappa had been drowned by accident and the accused had run away because he did not like to go and tell the mother. I do not know why the accused denies having written that letter. If there really was an accident, it would be a natural letter to write. Accused No. 2 in his confession admits that the boy went to a tank, but he says that he was killed in the tank by accused No. 3 who pretended to teach him swimming and let him drown. But apart from the statement of accused No. 2, there is no evidence that accused No. 3 was in Athni on December 14. There is evidence that accused Nos. 4 and 6 were with accused No. 2, but no evidence about accused No. 3. Of course, there is always a possibility, when a boy of twelve gets drowned in a tank, that there has been an accident. In considering whether the Judge and assessors were right in drawing the inference that the boy must have been drowned by accused No. 2, one is certainly entitled to take into account the previous attempts on the life of the boy. Apart from the fact that they are all alleged as part of the same conspiracy, previous attempts to kill the boy would be admissible to rebut a suggestion of accidental drowning. I have no doubt that accused No. 2 did enter into a conspiracy to cause the] death of this boy by witchcraft, and that he did afterwards administer a drug with the intention of poisoning the boy, and I think that the Judge and assessors were abundantly justified in drawing the inference that he murdered the boy by drowning on December 14. It is perfectly clear that he was in Athni and the boy was in his company on the morning in question and that he was drowned, and I think the Judge and assessors were entitled to take the view that it was a case of deliberate murder by accused No. 2. In my opinion, therefore, the appeal of accused No. 2 against his convictionsunder Section s 302, 307 and 120B must be dismissed. For what it is worth I think his conviction under Section 364 should be set aside. This being a very deliberate murder the death sentence passed on him must be confirmed. We confirm the other sentences passed on accused No. 2, namely, seven years' rigorous imprisonment under Section 307 and transportation for life under Section 120B, and set aside the sentence of five years' rigorous imprisonment under Section 364.
9. With regard to accused Nos. 1, 2, 3, 5 and 6, we think the jury were right in convicting them under Section 120B. We have no doubt that the man at the back of the conspiracy was accused No. 1, and we sentence him to the maximum sentence allowed under Section 120B read with Section 115, namely, to seven years' rigorous imprisonment. Accused Nos. 3, 5 and 6 were underlings, and we think that a sentence on each of them of one year's rigorous imprisonment will be sufficient. We think they were not very serious in their attempt to murder.
10. The learned Judge sentenced accused No. 5 to transportation for life for abetment of murder and under Section 120B, but there seems to have been some misapprehension there. There was some evidence connecting accused No. 5 with the attempt to poison, but the evidence is, in our view, not sufficient to justify a conviction. There is no evidence that accused No. 5 was in Athni on December 14 or took any part in the drowning of the boy. Therefore the conviction and sentence of accused No. 5 to transportation for life under Section 302 read with Section 109 and under Section 120B will be set aside.
11. I concur. Upon the appeal of accused No. 2 Shankaraya, I entirely agree that the evidence is sufficient to hold that he was present at Athni at the time of the murder. The principal evidence as to his participation in the act in question consists in this case of circumstances and conduct. There is direct evidence of his association with the witch-doctor and accused No. 1 and others showing that he actually aided the performance of witchcraft. Assuming that some of that evidence is tainted, there is sufficient independent and reliable corroboration to hold that he had poisoned the victim and was in company of the boy when he was drowned. Coupled with that evidence, there is the confession of the accused. I have carefully read that confession in the light of the other evidence and I am satisfied that it is voluntary and true. Upon the accused's own showing he had absconded soon after the boy was murdered. I therefore think that the assessors and the Judge were right in holding him guilty of murder.
12. The question that has been argued upon the reference by the Sessions Judge, who has disagreed with the verdict of the jury, is not free from difficulty. It seems to have been assumed by the learned Judge that a criminal conspiracy to commit murder by means of witchcraft does not constitute an offence punishable under Section 120B of the Indian Penal Code. That point has been the subject of considerable argument before us. The argument presented to us is of a two-fold character. It is said, first, that there is no sufficient and convincing material to go to the jury upon which a conspiracy to commit murder could be held proved, and, secondly, that assuming that the evidence is sufficient, the offence of criminal conspiracy under Section 120B would not follow, if the principal or rather the only means agreed upon ofattaining the object was bhanumati or witchcraft. It is urged that an agreement to commit murder by witchcraft, which according to the superstitious belief of some is efficacious for the purpose, but which in its consequence cannot result in any corporal damage, cannot amount to a criminal conspiracy within the meaning of Section 120B, for, according to the definitions of culpable homicide and murder, a violent act is an ingredient in the offence of murder, and, if the means agreed upon are incapable of causing violence or make damage impossible, the agreement will not be an agreement to commit an offence of murder. It seems to me possible to say that a case in which the commission of the offence agreed upon is rendered impossible by reason of the quality of the means adopted, is distinguishable from one in which the act if completed according to the agreement is no offence at all. If the act intended or agreed upon does not lack the essential element of the offence of murder, in my opinion, it is immaterial whether the means adopted in the first instance are ineffective to carry out the act. It would, however, be different if no criminal liability could be incurred under the Code by doing the act intended to be done, for, in that event the agreement to do that act would not be an agreement to commit an offence under the Code. That would be essentially a question of fact to be decided upon the evidence. If, as the defence suggest, the only reasonable conclusion upon the evidence is that the parties had agreed to practise witchcraft and nothing more, perhaps the charge of criminal conspiracy to murder would fail. But as I read the evidence, I am impressed by the view, which perhaps the jury took, that the object of the conspirators was essentially to cause the death of their victim and not merely to experiment on the efficacy of the art of witchcraft. It would be different, as I pointed out in argument, if the act intended to be done was no offence at all. For instance, if the person intended to be murdered was not in existence at the time of the agreement or conspiracy, then it is perfectly clear that an agreement to commit murder of that individual would not amount to criminal conspiracy. The supposition underlying the defence argument however is that according to the definition of criminal conspiracy the ultimate illegal act must necessarily involve the means adopted for carrying out or executing the agreement, and that if those means prosecuted to their fulfilment do not result in the carrying out of the agreement, the offence of criminal conspiracy could not be committed. In other words, it is suggested that the feasibility of attaining the ultimate object is the principal ingredient in the offence of criminal conspiracy. That would be a consideration in a charge of attempt to murder and, in my opinion, the argument overlooks the plain provisions of Section 120A of the Indian Penal Code. The offence of criminal conspiracy is a highly technical one and the essential ingredient is the agreement to commit an offence, irrespective of the means decided upon to carry out the object of the conspiracy. Whether those means are legal or innocuous, would not affect the question of criminality.