1. In the Court of the learned Sessions Judge of Bijapur four persons were charged with having committed an offence under Section 302 read with Section. 34, I. P. C. The case against them was that on the night between the 27th and 28th of April 1955, at about 3 or 4 a. m., the four accused persons committed the murder of Tippanna Mangaleppa Madar in the Municipal office at Guledgud and that this murder was committed in furtherance of their common intention. The prosecution alleged that accused Nos. 3 and 4 facilitated the commission of this offence by standing near the two witnesses Durgappa and Kariyappa.
Accused No. 3 is further alleged to have facilitated the commission of the offence by kicking and silencing the said Kariyappa, and accused No. 4 by instigating accused Nos. 1 and 2 to finish up Tippanna without delay. In the act of committing this murder, accused No. 2 held the legs of the deceased and accused No. 1 caused his death by inflicting injuries on his person with an axe. The accused denied the charge.
The case against them was tried by the learned Sessions Judge with the aid of assessors. Out of four assessors who assisted the learned Judge, three were of the opinion that the case had not been proved while one was of the opinion that the charge had been established. The learned Judge agreed with the minority opinion and convicted all the accused of the offence charged.
Accused No. 1 has been ordered by the learned Judge to pay the maximum penalty for the offence of murder, whilst the remaining three accused have been ordered to suffer transportation for life. The sentence of death imposed by the learned Judge on accused No. 1 has been submitted to this Court and it gives rise to Confirmation Case No. 24 of 1955. An appeal has been preferred by the accused persons challenging the order of conviction and sentence and that appeal is Criminal Appeal No. 1414 of 1955.
2. The material facts leading to the prosecution can be set out very briefly. It appears that there is a colony of Madars within the Municipal limits of Guledgud town. The area where this colony is situated is known as Hardolli area. This area is at a distance of about 5 furlongs from the Municipality. Most of the males and females belonging to this community are employed in the Municipality as sweepers.
The deceased Tippanna however was serving in the Municipality as a peon for the last 4 or 5 years before his death. He stayed in the colony with his wife Laxmawwa, his younger brother Sareppa and his mother Durgawwa. All, the four accused are likewise residents of Hardolli and they belong to the Madar community. It would appear that another Madar by the name of. Tippanna Nagappa was an influential person in this community and between him and the deceased the relations were bitter.
The deceased did not like the conduct of the other Tippanna, in that he collected from the sweepers a certain percentage from their emoluments. This other Tippanna was a Municipal councillor and he abused his position by exacting levy from the ignorant sweepers. Since the deceased protested against the conduct of the other Tippanna, bitterness had increased between them and Chapter proceedings had in fact been commenced against the deceased person at the instance of the said Tippanna.
That is the background of the prosecution case. It was the practice of the Municipality to appoint two sweepers for the nightwatch duty every day and this watch duty had to be done by the sweepers for 10 days at a stretch. On the night of 27-4-1955 Yalgurdappa and Kariyappa were to do the nightwatch duty as watchmen.
Yalgurdappa however was indisposed and he sent his younger brother Durgappa as a substitute for him. It was the duty of the deceased to be in the Municipal office at night. Accordingly- the deceased had slept in front of the Chief Officer's office in the Municipal building. In due course Kariyappa and Durgappa joined their duties and they were lying asleep within the precincts of the Municipal building.
At about 2 or 3 hours before daybreak, the four accused entered the Municipal Office. The electric light outside the building was burning as usual. Accused No. 3 stood near the feet of Kariyappa and accused No. 4 near the feet of Durgappa so as to prevent them from going to the rescue of Tippanna. The noise of the footsteps of these accused apparently woke up Kariyappa. Kariyappa saw that accused Nos. 1 and 2 went near Tippanna.
Accused No. 2 held the legs of Tippanna and accused No. l inflicted injuries on his neck. Tippanna shouted in agony and that woke up Durgappa. After committing the offence of murder the assailants ran away. Kariyappa and Durgappa then proceeded to the hut of the relatives of the deceased Tippanna. The relatives accompanied by the two witnesses then returned to the Municipal Office.
Meanwhile the news about this offence had reached the Sanitary Inspector who had contacted the police officer at the outpost, and the head constable had come to the Municipal office with 5 or 6 constables. Subsequently a complaint wa3 filed by Sareppa the younger brother of the deceased Tippanna, and the police officer from Badsmi police station came to the scene of the offence late in the evening and the investigation then commenced.
Meanwhile the Police Patil and the head constable of the police outpost had done work by way of making, an inquest report and keeping a watch on the movements of the four accused. At 10 p.m. the four accused were arrested and at the end of the investigation they were charge-sheeted for the offence of murder under Section 302 read with Section 34, I. P. C. That, shortly stated, is the prosecution case.
3. In support of their case the prosecution examined the two witnesses Kariyappa and Durgappa, They also relied upon the fact that from the toes of accused Nos. 1 and 2 blood-stained earth was taken out and the Chemical Analyser's report showed that the blood was human blood. The axe alleged to be used and which was apparently broken was produced by accused No. 1.
The handle of the axe is reported to have human blood but on the axe-head the blood was decomposed and it was impossible to say whether it was Human or not. A towel alleged to have been worn by accused No. 4 was also produced and the case of the prosecution was that it fell from the head of accused No. 4 while they were running away.
4. It is clear from the medical evidence that whoever inflicted the injuries on the victim would be guilty of murder. The number of injuries is no doubt small, but according to the medical opinion they are so serious that they could have ordinarily led to the death of the victim. All the structures of the neck were completely severed till the vertebral column as shown in injury No. 1. These injuries are thus described by the doctor:
1. An incised wound starting 3' below the left ear going across the neck and ending 2' posterior to the right ear line at same level (10' x 4' x 4').
2. An incised wound 4' x 2'' x 1' in the right shoulder and arm.
3. An incised wound 4' x 2' x 1/2' starting from injury No. 1 and going downwards to the right axile.
All the structures are completely severed till vertebral column in injury No. 1; Fracture of the third cervical vertebra. If in inflicting these injuries the assailant was assisted by any other persons, by their presence and by their instigation and other acts intended to facilitate the commission of the assault, it would not be difficult to hold that these other persons also entertained a common intention and were guilty of the offence under Section 302 read with Section 34, I. P. C. This position is not disputed by Mr. Patwardhan before us.
5. The real point of dispute in this appeal is whether the prosecution evidence really proves the charge against the appellants on the merits beyond a reasonable doubt. After carefully considering the evidence, we have come to the conclusion that it would be difficult to hold that the evidence adduced by the prosecution establishes the charge against the appellants beyond a reasonable doubt.
6. In dealing with this evidence it would be relevant to decide at what point of time during the night this offence was committed. The doctor has stated that the age of the injuries was about 8 to 10 hours at the time of the post-mortem examination and the post-mortem examination commenced at about 11-30 a.m. on the 28th. He has also stated that the death might have been caused 5 or 6 hours after the last meal.
Reading the two statements together it would not be unreasonable to hold that the victim was murdered after midnight between 1 to 3 a. m, If that be the true position, it is difficult to understand why the two eye-witnesses who had seen the commission of the offence did not stir about until the early hours of the morning. It is their common story that it was a little before day break that they rushed to the house of the victim and informed his relatives about the tragedy.
Indeed the witnesses described the said time as about the time when the sweepers were getting themselves ready to report for the work of sweeping at the Municipal Office. This time goes nearer day break than midnight and that leaves a gap of time for which no reasonable explanation is available on the record.
Besides, the conduct of the two eye-witnesses in not reporting this incident to the police outpost, which was about the same distance from the Municipal building as the residence of the deceased, also needs to be explained. The two eye-witnesses had seen a murderous assault on Tippanna and it would be the normal conduct of the witnesses to rush to the police station nearby. Even though the whole of the locality knew according to the prosecution case that the four appellants were the murderers, neither the Police Patil nor the Jamadar took any steps to arrest them.
The accused were arrested at about 10 p.m. on the 28th of April. It is the prosecution case that the four accused were playing mischief with Municipal property and had in fact put out the electric light burning in front of the Municipal Building. If that be true, it is not clear why they should have kept the Municipal light full burning when they committed the offence of murder at night.
The object of committing the offence of murder at night obviously was not to let anybody see the dastardly act and if that was the intention, then the four accused who had already put out the electric light in the past would have taken the same precaution on this night.
7. Between the two eye-witnesses Kariyappa is a more elderly witness and in fact it was he who woke up on hearing the noise of foot-steps and saw the assault. We will assume that Kariappa and Durgappa were sleeping in the Municipal building on this night; but we find it rather difficult to believe that the assailants who were determined to murder Tippanna would make such sound as to wake up Kariyappa in the middle of the night or soon thereafter.
If Kariyappa's story that he woke up on hearing the noise of the foot-steps is not believed then the whole of his claim that he saw the assault will have to be rejected. It does appear that between the deceased and his friends and the Municipal Councillor Tippanna there was enmity. Kariyappa and Durgappa were disposed to deny the existence of factions in the community. That indicates that the witnesses were partisans in giving answers.
It is true that Kariyappa describes the part played by the four accused in terms of the prosecution case. But when we turn to his cross-examination it is remarkable that on almost every material point he has been contradicted. About the factions his denial in the Sessions Court is inconsistent with his prior statement.
Reference to the towel worn by accused No. 4 has been made by both the eye-witnesses for the first time in the Sessions Court. Both the witnesses for the first time in the Sessions Court stated that on their way back to the Municipal office they saw Yalgudrappa and they told him what had happened. It is not without significance that this deliberate improvement should have been made by both the witnesses.
The cross-examination shows that this part of the story had not been disclosed by them on the prior occasion. This point cannot be dismissed as amounting merely to an omission, because Yalgudrappa also has shown a similar tendency to improve his own account. First he supported the evidence of the two eye-witnesses and stated that he was told about this tragedy by them.
In cross-examination he admitted that at the prior stage he had stated that he learnt about this murder for the first time when he went to the Municipal building. If these three improvements are considered together, it would appear that the witnesses though they are unsophisticated were clever enough to make an improvement on a point which they thought material, and that is a very serious infirmity particularly in a case of murder.
8. Durgappa may be assumed to have acted as a substitute for his brother. But in this behalf he has given such details that it is impossible to accept this part of his evidence as true. He begins by saying that he was asked by Tippanna how his brother was, suggesting thereby that his brother's illness was well known. This part of the story has been effectively contradicted in the cross-examination. This young lad of 17 has purported to give picturesque details about the three occasions on which he met the accused that night.
That again is an incredible part of the story. If he woke up on hearing the sound made by the victim, it is not certain that he would have seen the assault as he describes it. After all, only three blows have been given to the victim and that could not have taken very long. It is very likely on the medical evidence that the first blow was fatal and that the victim may have made no movement either physical or vocal thereafter.
9. Therefore, having carefully considered the evidence given by these two eye-witnesses we are not satisfied that it is evidence which can be accepted as true beyond a reasonable doubt. Besides, it is rather surprising that these four accused should have made themselves so conspicuous by meeting Durgappa the same night when they were determined to commit the offence of murder that night, and the fact that only one was armed with an axe does not help to make the prosecution case easier to accept.
If the direct evidence given by the two eyewitnesses does not appear to us to be wholly satisfactory, the subsidiary facts on which the prosecution relies cannot carry the prosecution case any further. The allegation that bloodstained earth was sticking to the toes of the two accused persons cannot, in our opinion, be seriously considered against the accused and production of the axe, with its wooden portion stained with blood, though suspicious cannot take the place of substantive proof against the accused.
Two witnesses attempted to give evidence that they saw the accused moving about suspiciously about midnight. These are Durgappa Balappa (Ex. 14) and Pandappa (Ex. 15). Durgappa's account strikes us as very unreliable. He meets the accused NOS. 1 and 2 about midnight, inquires from them why they were moving about and he was told that they had gone for a cinema show.
But it is remarkable that he meets only accused Nos. 1 and 2 and not Nos. 3 and 4. A similar comment has to be made about the evidence of Pandappa. Pandappa who is a bit hard of hearing managed to hear the conversation between Durgappa and accused Nos. 1 and 2 and inquisitively asked him what it was about. In our opinion, such evidence cannot play an important part in a murder case.
10. Therefore we are not satisfied that the charge framed against the appellants has been proved beyond a reasonable doubt. The view taken by the learned Judge that the evidence given by Pandappa and Durgappa would lead to the inference that the accused had concealed the axe appears to us to be far-fetched. But, as I have just mentioned, the discovery of the axe, however suspicious, cannot cure the infirmity in the oral evidence to which I have already referred.
11. In the result, the appeal preferred by the appellants must be allowed, the order of conviction and sentence passed against them must be set aside and the appellants ordered to be acquitted and discharged forthwith.
12. Appeal allowed.