A.R. Somnath Iyer, J.
1. In the village of Katabali in the District of Belgaum, there were four (sic) brothers and two sisters who lived either in different parts of the same house or in different houses. Shettappa. Yellappa and Erappa were the three brothers; Satyavva and Lakkavva were the two sisters.
2. In the same village, there lived two brothers accused 1 and 4. There were two other brothers accused 2 and 3. Accused 1 and 4 were the cousins of accused 2 and 3. They were living in separate houses very near one another. 1
3. Shettappa, Yellappa and Erappa belong to the first mentioned family and the four accused belong to the second. The four accused were charged before the Court of Session with more than one offence, Shettappa and Yellappa were killed, as the prosecution evidence discloses, in the night of August 3, 1963 in their village and in respect of those murders, the four accused were tried before the Court of Session not only in respect of those murders but also in respect of other charges. The first charge against all the four accused was that they murdered Shettappa and committed an offence punishable under Section 302 read with Section 34 of the Penal Code. The second charge was that they similarly murdered Yellappa his brother, and committed an offence punishable under those two section?. The third charge was that all the four accused caused hurt to Satyavva, sister of Shettappa and committed an offence punishable under Section 323 read with Section 34 of the Penal Code. The fourth charge was that they similarly caused hurt to yet another sister P. W. 15 and committed another offence punishable under those two sections. There was one other charge which was only against accused 4 and that was a charge under Section 27 of the Indian Arms Act the accusation being that he used his gun in violation of the conditions enumerated in the gun license granted to him.
4. The Sessions Judge entered convictions against all the four accused in respect of the first charge relating to the murder of Shettappa and sentenced them to imprisonment for life. In respect of the second charge he acquitted accused 2 and 3 but convicted accused 1 and 4 under Section 302 read with Section 34 of the Penal Code and sentenced both of them to imprisonment for life. In respect of the third and the fourth charges there was a conviction of accused 1 who was sentenced to rigorous imprisonment for three months and acquittal of the other accused. In respect of the 5th charge, accused was 0convicted of an offence punishable under Section 27 of the Arms Act and was sentenced to rigorous imprisonment for one year. These are the convictions which are questioned in this appeal.
5. There can be very little doubt that both Shettappa and Yellappa met with violent deaths on Augusts, 1963. That is what is clearly revealed by the evidence of P. W. 11, who was a Medical Officer at Rukheri at the relevant time. According to his evidence, the dead bodies of the two brothers Shettappa and Yellappa were brought to him at It p. m. on August 4, 1983 for postt.mottem examination. He found on the body of 8hettappa, four abrasions and thirteen incised wounds. Two of the incised wounds were either on the left arm or near the left knee joint. The other incised wounds were all on the right side of the body either on the right shoulder joint or shoulder blade or the right arm or the right elbow joint or the right palm or in the region of right arm. pit. The other incised wounds were on the right thigh right knee, right leg and the right foot. P, W. II was of the opinion that Shettappa died on account of shock and haemorrhage in consequence of multiple injuries.
6. The post-mortem conducted on the body of Yellappa revealed, according to the evidence of P. W. 11 the presence of an incised wound and two small abrasions in addition to a punctured wound 3' X 2' on the tight side of the abdomen accompanied by puncture of the small intestines in consequence of which the punctured parts of the small intestines were appearing outside: The opinion furnished by P. W. 11 was that Yellappa died in consequence of shock and haemorrhage produced by the abdominal injury caused by a gun-shot.
7. The prosecution case was that Shettappa and Yellappa were killed by the four accused and that they first killed Shettappa and then killed Yellappa. In regard to the charges concerning the hurt caused to P. Ws. 1 and 15 the prosecution case was that P. Ws. 1 and 15 were beaten by accused 1 after Shettappa was killed but before Yellappa was shot dead by accused 4.
8. According to the prosecution case, the background for the murder of the two brothers came into being sometime in the year 1949 when there was some kind of a bullock cart race between the members of the one group and those belonging to the other and that the success in that race of persons belonging to the group of the deceased persons caused bitterness in the minds of the accused. It was also said that the more immediate provocation for the commission of the murders was the fact that the first wife of accused 4 was the mistress of Shettappa.
9. The Sessions Judge not unnaturally discarded the theory of the prosecution that the cart race which was conducted in the year 1949 could have very little relevance for the commission of the murders in the year 1963. To our mind, it is surprising that the prosecution could have ever depended on a motive as fantastic as that, but the Sessions Judge thought that there was some kind of illicit amorous relationship between Kallavva, the first wife of accused 4 and Shetteppa, and, that that adulterous conduct on the part of Kallavva and Shettappa was what was responsible for the murder of Shettappa.
10. The evidence produced by the prosecution about the murders consisted of the direct evidence given by P. Ws. 1, 6 and 15 besides the other circumstantial evidence such as the recovery of incriminating articles. Evidence was also produced about Kallavva being the mistress of Shettappa and the probable ill-will in consequence of that relationship between accused 4 and Shettappa.
11. In regard to thee allegation that Kallavva had become the mistress of Shettappa there is no very -clear evidence that she had become his mistress. P. W. 1 herself did not give any evidence which could be regarded as based upon her personal knowledge or even upon very dependable information upon which her impression could be founded. From the discussion of the evidence which we shall presently make, it emerges that although it is not proved that Kallavva had become the mistress of Shettappa during any reasonable period of time, there are reasons to think that Shettappa did aspire to become the paramour of Kallavva and that his aspiration had been fulfilled just before he was killed or that his endeavours to secure the favour of Kallavva were only under progress.
12. But the prosecution produced evidence that at about 9 p. m. on August 3,1983, P. W. 1, one of the sisters of the two murdered persons heard cries of agony emanating from house of Kallavva and that P. W. 1 proceeded in the direction of that house. Her evidence was that she found in front of the house of Kallavva the second wife of accused 4, the wife of accused 1 and the mother of accused 1 and 4. Her evidence was that on being questioned, the second wife of accused 4 Siddavva imparted the information to P. W. 1 that her brother Shettppa had been killed inside Kallavva's house. She stated that before she imparted this information she heard the entreaties of her brother Shettappa from inside the house of Kallavva that he should not be 'cut.'
13. the evidence of the prosecution witnesses and particularly that given by P. W.1 was to the effect that accused 4 had two wives, the first of whom was Kallavva and the other, Siddavva. She stated that accused 4 had two establishments, one of which, was for the residence of Siddavva, and the other for the residence of Kallavva through whom accused 4 had three daughters.
14. Now proceeding back to the account given by P. W. 1 as to what happened after she went to the house of Kallavva, P. W. 1 stated that when she heard the shocking news that her brother was killed inside the house of Kallavva, she observed all the four accused emerging from the house of Kallavva and that accused 4 had a gun in his hand, while accused 1 and 3 were having axes with them. She added that she then shouted, whereupon accused 1 reprimanded her for her so shouting, used foul language and beat her with the handle of the axe on the left fore-arm and on the left hip,
15. P. W. 1 proceeded to state that she then ran by the side of the road in front of the house of accused I and again came back towards the house of Kallavva and that by then her sister P. W. 15 Lakkavva had already arrived at the scene of occurrence and was shouting and weeping. She next stated that by then, her brother Yellappa was also arriving towards the house of Kallavva and that behind him, his wife P. W. 6 and another Mallavva were also coming.
16. P. W. I then proceeded to state that from the place where she was standing she shouted to her brother Yellappa that Shettappa had been killed and that Yellappa asked for further information about it and was proceeding towards the house of Kallavva when accused 4 discharged his gun at him, and that Yellappa then fell down crying in agony. What P.W. 2 next said was that accused 1 then stating that Yellappa had not yet died, gave him a blow on the right arm with his axe.
17. That all the four accused then disappeared from the scene of occurrence proceeding towards Belgaum Kolhapur road shouting and that thereafter she and the others who were present there bandaged the wound on the body of Yellappa and that however, yellappa succumbed to the injury, was what she added. According to her, the dead body of Shettappa was near the front door of the house of Kallavva.
18. P. W. 6 who is the wife of Yellappa and P. W. 15 who is the sister of P. W. 1 corroborated the testimony of P. W. 1 in regard to what happened after she went there on hearing from Satyavva -the information that Shettappa had been 'killed inside the house of Kallavva. They gave -evidence about their arrival at the scene of occurrence after hearing the shouts of P. W. 1 and the discharge of the gun by accused 4 at Yellappa who died in consequence. The two witnesses also gave evidence about accused 1 and 3 having axes in their hands and their exit ia manner stated by P. W. 1.
19. From the evidence of these three witnesses, whose evidence we cannot distrust since it is not demonstrated that they are not speaking the truth, what is established beyond doubt is that when P. W. 1 went to the house of Kallavva on hearing cries of agony irom Shetteppa, Shetteppa was inside the house of Kallavva and that by the time she went there, Shettappa had already been killed. What is established very clearly from the evidence of P. Ws. 1, 6 and 15 is that after P. W. 1 canoe back to the house of Kallavva having run for some time in some direction and after P. W 6 had arrived at the scene of occurrence and when P. W. 15 and Yellappa proceeded towards the direction of Kallavva's house, Yellappa was shot at by a gun which accused 4 fired in this direction.
20. Two questions which present themselves are, firstly, whether all the four accused or any one of them could be held to have committed the murder of Shettappa inside the house of Kallavva and whether on the basis of the evidence given by P. Ws. 1, 6 and 15, it could be said that accused 4 was the person who shot Yellappa and killed him.
21. Mr. Havanur, the learned Advocate for the accused presented before us the argument that we should not believe the evidence of P. Ws. 1,6 and 15 since they were interested witnesses and since the prosecution did not call any one of the thirteen independent witnesses who were admittedly residing in the neighborhood. In support of this argument, he asked attention to the evidence given by P. W. 1 in cross-examination that there were many houses in the vicinity of Kallavva's house and that the houses of one Rama and another Lingappa were adjacent to that house. Our attention was also asked to her evidence that those two houses were nearer the scene of occurrence than the house of P. W, 1.
22. Mr. Havanur also contended that according to F. W. 1 Mallavva was also one of the persons who accompanied Yellappa and P, W. I5 when they were proceeding in the direction of Kallavva's house and that Mallavva was not called to give evidence although she was admittedly an eye-witness. We were, therefore, asked to say that it would be quite hazardous to depend upon the interested testimony of P. Ws. 1, 6 and 15 by reason of the omission on the part of the prosecution to call others who could have either corroborated the story or could have given evidence which was above the reproach of being interested.
23. The Public Prosecutor gave a good reason for not examining Mallavva in the parishes which he produced before the Court of Session in which it was stated that Mallavva, during the trial before the Court of Session had given birth to a child and was too ill to give evidence. He also took the precaution of offering to tender Mallavva for cross-examination but that offer was not availed of by the defence. It cannot, therefore, lie in the mouth of the defence to contend that the prosecution desisted from calling Mallavva to give evidence although they were able to do so.
24. In regard to the omission to examine the other neighbours, what transpires from the evidence of P. W. 1 is not that all those other neighbours were living nearer the house of Kallavva than P, W, 1 Her evidence was that only the houses of Rama and Lingappa were adjacent to the scene of occurrence and therefore nearer the house of P. W. 1. But unless we can say that both Rama and Lingappa were, at the time of the murders inside their house or that they were able to hear the cries of Shettappa and in addition bad the disposition to venture out of their own house with a view to investigate, it cannot be asserted that there was any duty on the part of the prosecution to call those two witnesses or, that by reason of that not being done, any inference adverse to the prosecution could be drawn.
25. We must, in our opinion, dismiss the argument that P. Ws. 1, 6 and 15 could not be believed since they are related to the murdered persons. It is that relationship which, in our opinion, lends assurance to the evidence of P. W. 1 that on hearing the cries of her brother, she had the impulse to forthwith proceed to Kallavva's house and what fetched P. Ws.6 and 15 to the scene of occurrence was the shout emanating from P. W. 1 who was related to them. It cannot be asserted that the evidence of witnesses who are related to the murdered persons is always interested evidence. On the contrary, such evidence may be more trustworthy or acceptable than other evidence.
26. Since there are no good reasons for thinking that P. Ws. 1, 6 and 15 did not speak the truth, we are disposed to think that their evidence should be believed, If it is believed) what is established by the evidence of P. W. 1 is that when she went to the house of Kallavva, all the four accused were inside the house. What is next established is that when she went near the house, accused 1 to 4 came out and that accused 1 and 3 had axes in their hands, while accused 4 had a gun. It is not, however, necessary for us to depend upon the evidence given by P. W. 1 which was to the effect that when she went to the house of Kallavva, she was informed by Siddavva that her brother had been killed inside the house of Kallavva. Mr. Havanur asked us to say that it was extremely improbable that Siddavva would incriminate her husband in that way. Whether P. W. l's evidence on that matter is true or is not, is not a matter upon which anything turns.
27. What is again established by the evidence of P. W. 1 which receives corroboration from the evidence of the other witnesses and also from the testimony given by the Doctor P. W. 11 is that the body of Shettappa was inside the house of Kallavva with a large number of extremely serious injuries. The Sessions Judge thought that if Shettappa was killed inside the house, as undoubtedly he was, and if the accused emerged from the house of Kallavva into the road three of them having weapons in their hands, nothing more was necessary to infer that those four persons had the common intention to kill Shettappa and that he had been killed pursuant to that common intention, and that, all the four accused were guilty of an offence of murder under Section 302 read withes. 34 of the Penal Code.
28. We are of the opinion that one thing which is clear beyond doubt is that Shettappa was alive when he entered the house of Kallavva which he must have entered some time before P. W, 1 heard him crying in agony. What is equally clear is that if he went into the house of Kallavva, he was killed by some one who inflicted the many injuries found on his person with a sharp instrument which can alone cause the incised injuries found on him. What is also to be believed is that after those injuries were inflicted upon him and after perhaps he had died in consequence of those injuries, the four accused came out of the house of Kallavva after P. W. 1 arrived there. The evidence of P. W. I receives corroboration from the evidence of P. Ws. 6 and 15 who also observed the presence of the four accused in front of Kallavva's house when they came there.
29. The question is whether we can, on the basis of these pieces of evidence, deduce the inference drawn by the Sessions Judge that there was complicity of the four accused in the murder of Shetteppa. Mr. Havanur presented the argument before us that the mere fact that all the four accused were inside the house of Kallavva when P. W. 1 came there does not lead to the inference that they were the killers. His submission was that in the same way in which P. W. 1 was attracted to the house of Kallavva by the cries of Shettappa, the four accused might have been similarly persuaded to go there in the same way in which the other three women be longing to the family of the accused had also assembled in front of the house of Kallavva. Mr. Havanur's other submission was that the infirmity in the prosecution case was that although accused 1 and 4 were full brothers and accused 2 and 3 were similarly full brothers as between accused 1 and 4 and accused 2 and 3 the relationship was only that of cousins and that it was improbable that accused 2 and 3 would have shared any common intention that Shettappa should be killed. His submission was that even if it be a fact that Shettappa was found in the house of Kallavva in compromising circumstances, the only person who would have felt annoyed or provoked was accused 4 and that there was no reason to think that his brother accused 1 or his consigns accused 2 and 3 would have taken it into their head to murder Shettappa for that reason.
30. It is of course, obvious that we cannot believe the theory constructed by Mr. Havanur that all the four accused went into the house of Kallavva only after hearing the cries emanating from Shettappa when he was in agony. It should be remembered that Shettappa was killed by some one inside the house of the first wife of accused 4 which he had set up for the residence of Kallavva. The theory that some one else killed Shettappa inside the house of Kallavva and that when he was being so killed he shouted in agony and that the four accused had, in consequence, entered the house of Kallavva is, to our mind too far-fetched. It seems to us that some one amongst the four accused was the person who killed Shetteppa and that he was killed because he had the audacity to enter the house of Kallavva in the late hours of the evening presumably for sexual intercourse with Kallavva.
31. We are not able to say on the evidence although P. W. 1 stated that Kallavva had become the mistress of Shettappa that she had in fact become such mistress.
32. But it is not improbable that Kallavva would have allowed Shettappa to enter her house at about 9 or about that time in the night unless Shetteppa had made some substantial progress in his suit for the favour of Kallavva.
33. However that may be, we have very little doubt in our minds that Shettappa and Kallavva were together inside the house and it seems to us very probable that accused 4, whether he was in the company of other accused or not was able to surprise them and witnessed either an endeavour on the part of Shettappa to seduce Kallavva or the two persons sleeping in the same bed. That, in our opinion, is the inference which the circumstantial evidence in the case clearly supports. No other inference can be drawn from the fact that Shettappa was inside the house of Kallavva and that be was in that house when he was killed. Since seduction or the attempted seduction by Shettappa was what concerned accused 4 more than anyone else, it is obvious that he was one of the persons who killed Shettappa That inference receives support from the fact that he came out of the house of Kallavva after P. W. I went in and that he had in his hand a gun, although it is obvious from the injuries found on Shettappa that that gun had not been used. But it is seen from the evidence of P. Ws. 5 and 20 and also from the inquest report that there was another sharp weapon described as a scythe inside the house of Kallavya and it is not improbable that that scythe was also used on Shettappa and that accused 4 was the person who used it.
34. That scythe M. O. 10 was sent to the serologist and to the Chemical Examiner who respectively reported that there was human blood and mammalian blood upon it. So the mere fact that when accused 4 emerged from the house he had a gun and not a sharp instrument in his hand can be of no assistance to accused 4 and cannot to any extent improbabillse the inference that he was one of the persons who inflicted the injuries upon Shettappa.
35. If therefore, the complicity of accused 4 in the murder of Shettappa is established beyond reasonable doubt, the question is whether the other three accused have been proved to have participated in the murder. To some extent the evidence of P. W. 1 that even those three other persons emerged from the house of Kallavva after P. W. 1 went there can be regarded as a circumstance sufficiently suspicious. But at the same time, we cannot rule out the possibility that accused 2 and 3 who were only cousins of accused 4 went into the house of Kallavva without their sharing the intention of accused 4 that Shettappa should be killed. Unless we can and sufficient material on the basis of which we can say that there was a meeting of the minds in that way and that there was therefore, the requisite common intention we should not be justified in concurring in the view taken by the Sessions Judge that accused 2 and 3 were as much guilty of the offence of murder as accused 4.
36. It should not be overlooked that accused 2 had no weapon in his hand and that although P. W. 1 stated that accused 3 had an axe and that evidence was corroborated by P. Ws. 6 and 15 and although the prosecution produced evidence that an axe M. O. 29 was recovered from accused 3 on August 5, 1983, that axe was not proved to contain human Wood or even mammalian blood. We are therefore of the opinion that on the slender fact that accused 2 and 3 came out of the house of Kallavva it would not be safe to deduce common intention on their part. We think that those two persons are entitled to the benefit of a very serious doubt which emerges in regard to their complicity and we should, therefore, state that we should exonerate them from the offence concerning the murder of Shettappa.
37. Mr. Havanar presented the argument that we should take a similar view in regard to accused 1. fee urged that accused 1, 2 and 3 could have been present in the house of Kallavva when Shettappa was killed without sharing the intention of accused 4 that Shettappa should be killed. Unlike accused 2 and 3, accused 1 had a greater interest in punishing Sheltappa who was either attempting to seduce Kallavva or had already seduced her in the interest of honour of the family to which he belonged. But that by itself may not be considered sufficient to found a conviction of accused 1 in respect of the murder of Shettappa had there been no other reasons for reaching that conclusion.
38. Mr. Government Pleader urged that the complicity of accused 1 in the murder of Shettappa is established by his subsequent conduct. He asked attention to the evidence given by P. W. 1, which we see no reason to disbelieve, that when P. W. 1, began to shout after hearing the news that her brother had been killed, accused 1 who came out of the house of Kallavva gave two blows upon her left shoulder and upon her hip with the handle of his axe reprimanding her for shouting. This evidence given by P. W. 1 receives corroboration from the evidence of P. W. 11 who treated her for those injuries. According to his evidence P. W. 1 was brought to him at 3 p. m. on 5th August 1983 and on examining her, he found a contusion 1 1/2' India meter on the outer surface of the left shoulder and in addition a contusion of the same size on the left hip side. According to him, those injuries could be caused by a hard and blunt substance like the handle of an axe.
39. Mr. Government Pleader also called attention to the evidence of P. W. 15 that after she came there in the company of the deceased Yellappa, accused 1 rebuked her for her indulging in shouting and beat her twice near the joint of the left arm with the handle of an axe. Here again, her evidence receives corroboration from that given by P. W. 11, who, when he examined her on 5th August 1963, found a contusion 1' in diameter on the outer surface of the left fore-arm. His opinion was that that injury could have been caused by the handle of an axe. The certificates which are issued in respect of the injuries on P. Ws. 1 and 15 are Exhibits P. 22 and P. 23.
40. This is not all that should be said about this. It is as we have already observed established beyond doubt that when Yellappa ran to the scene of occurrence on hearing the shouts of P. W. 1, he was shot dead by accused 4 who discharged his gun in his direction. P. Ws. 1, 6 and 15 gave evidence that after the gun had been exploded in that way, accused 1 used his axe on Yellappa. P. W. 1 and P. W. 6 stated that he did so in consequence of a doubt in his mind that the gun shot might not have killed him. They stated that it was for that reason that accused 1 gave a blow with his axe on the right arm of Yellappa. P. W. 15 who did not give any evidence about accused 1 giving expression to a doubt that Yellappa was still not dead, nevertheless stated that she saw him giving a blow with his axe to Yellappa after he was shot by accused 4. Her evidence was that that blow was delivered by accused 1 near the right shoulder.
41. The evidence of these three witnesses receives corroboration from the evidence of P. W, 11 who discovered on the body of Yellappa an incised wound 4' X 1' X 2 3/4' on the outer surface of the right shoulder joint.
42. So, in the case of accused 1 we do not have the bare fact as we have in the case of accused 2 and 3, that he was one of the persons who emerged from the house of Kallavva in the company of accused 4 in addition to the fact that P. Ws. 1, 6 and 15 saw him emerging from the house with an axe in his hand and we have the very telling fact that after he so emerged, he indulged in acts of violence which were directed not only against P. Ws. 1 and 15 but also against Yellappa after he was shot by accused 4. This conduct indicates nothing but the complicity of accused 1 in the murder of Shettappa which, in our opinion had been committed inside the house of Kallavva.
43. Mr. Havanur however urged that we should not take that view since the axe which was recovered professedly by the prosecution from accused I on 5th August 1983, and which was marked M. O. 38 was not established to contain human blood ; according to the certificate of the Chemical Examiner it contained only mammalian blood and Mr. Havanur has. pointed out to us that the Sessions Judge mistakenly thought that that axe contained human blood and that this was a wrong supposition led to an en error in his judgment that accused 1 was as much a participant in the murder of Shettappa as accused 4..
44. It is true that Mr. Havanur is right in making this submission that the Sessions Judge did commit that mistake. It is also true that M. O. 36 which was the axe supposed to have been recovered from accused 1, 41 hours after Shettappa was killed contained mammalian blood and was not proved to contain human blood. But in the context of the discussion of the evidence pertaining to the alleged recovery of incriminating articles it would be demonstrated (hat it would be difficult as rightly contended by Mr. Havanur to depend upon the evidence concerning those recoveries. It should be enough to mention here that the prosecution evidence was that the four accused were apprehended near a null about a mile and a half away from Katabali at about 2-30 p. m. on 5th August 1083, forty one hours after the murders have been committed. The prosecution produced evidence that when they were so apprehended accused 1 and 3 had axes with bloodstains and that accused 4 had a gun, while accused 2 had none. The criticism to which this part of the prosecution story was subjected by Mr. Havanur was that it was incredible that forty one hours after the murders had been committed, the three accused namely accused 1, 3 and 4 would be still brandishing the weapons in their place of concealment with which the two murders had been committed. It appears to us that the criticism that the axes were seized from accused 1 and 3 forty one hours after the murders from the place of concealment is not without substance. There is evidence that the river Ghata Prabha was only at a very short distance from the village of Katabali. That being so nothing was easier for accused 1 and 3 than to throw away those axes into the river without resorting to the most foolish step of carrying with them those incriminating articles over a distance of a mile and a half where according to the prosecution, they had gone into hiding.
45. We are disposed to think that we should not believe that part of the prosecution case which concerns the recovery of axes from accused 1 and 3 although there is no reason to disbelieve the prosecution case that accused 4 was having his gun with him when he was apprehended.
46. Accused 4 might have felt persuaded to say that he did throw the gun into the river and even if he had done so, since it could be easily proved that be was granted a license for the gun accused 4 would have been under a duty to explain as to what he had done with that gun and so the gun perhaps was kept with him even when he ran away from the village in the direction of a nalla.
47. So, the fact that upon M. O. 36 which is supposed to be the axe recovered from accused 1, there was no human blood cannot be of much assistance to the argument constructed by Mr. Havanur.
48. It should not be overlooked that the evidence of P. W. 1 receives good corroboration from the first information Exhibit P-l which she gave to F. W. 2 who was the police patil of the village Biranholi two miles away from the village of Katabali. In that report, she mentioned all the material facts about which she gave evidence before Court. But Mr. Havanur urged that the first information Exhibit P-l was transmitted much too late to be entitled to any weight. He pointed out to us that although the murders were committed at 9 p. m. and Biranholi is only two miles away the evidence of P. W. 1 was that she and her brother P. Ws. 17 Erappa performed the journey to Biranholi only the next morning at 7 a. m. and the delay in making that journey was what produces suspicion. P. W. 1 explained that since what delayed the journey to Biranholi was the fear in her mind that if they travelled by night to Biranholi, they might be-attacked by the accused who had disappeared from the scene of occurrence and that this fear of physical violence was that deterred them from performing their journey earlier. Although Mr. Havanur has suggested to us that P. Ws. 14, 16 and 17 were alt male adults who could have gathered the courage to perform the journey even during the night, we do not find it possible to think that there is any reason for discarding the explanation given by P. W, 1 that what delayed their journey was the fear in the mind of herself and P. W. 16 about the dangers of a night journey when the accused had disappeared from the scene of occurrence with weapons in their hands and particularly since there was the possibility of the informants being ambushed on their way to the village of the police patil.
49. P. W. 2 gave evidence that the information about the murders was transmitted to him at 7 a. m. on the morning of August 4, 1965 and that he sent that information Exhibit P-l which he wrote along with his own report Exhibit P-2 to a place known as. Yamakanamardi five miles from Katabali where P. W. 20 the investigating officer received it at 10 a. m.
50. We do not think that there is any unexplained delay in the transmission of the first information.
51. We were asked, however, to say that Exhibit P-l was not sent to the concerned Magistrate when the first information report was despatched to-him. This argument was founded upon the fact that upon Exhibit P-l the Magistrate did not affix his. initials but affixed them only on a very inconvenient part of the first information report. But the first information report which reached the Magistrate clearly recites that the original report namely Exhibit P-l was despatched to the Magistrate and although the Magistrate by a very curious mistake did not, as he should have done, affix his initials on Exhibit P-l which accompanied the first information report, we are thoroughly satisfied that Exhibit P-l was indeed sent to him. In a case where the first information recorded by a person like P. W. 2 accompanied a first information report sent by a police officer what the Magistrate should do is to affix his initials both upon the first information and upon the first information report in order to protect the first information against the reproach that it was subsequently fabricated. Why this precaution was not taken by the Magistrate in this case, we do not understand.
52. Fortunately, unlike many other Magistrates, who forget to record the exact hour of the receipt of the first information report by them, the Magistrate in the present case did record the time as 7 P. M. of August 4, 1983.
53. However that may be the charge that Ex. P. 1 must have been subsequently fabricated stands dissolved and answered by the fact that the first information report upon which the Magistrate affixed his initials contains a verbatim reproduction of all that is contained in Exhibit P. 1 and so, even if as-contended by Mr. Havanur that Exhi. P. 1 was not sent along with the first information report the fact that the contents of Exhi. P. 1 were fully and completely incorporated in the first information report is what saves it from the criticism preferred against it.
54. It was, however urged that the prosecution had not eliminated one possibility. It was said that Kallavva who must have been in her house when Shetteppa entered it might have herself been a participant in the offence to the exclusion of accused 1. It was suggested by Mr. Havanur that she and accused 4 if at all, must have been responsible for the infliction of the injuries on Shetteppa, and that, accused 1, like accused 2 and 3 must have entered the house of Kallavva only subsequently. The criticism made was that Kallavva was not called to give evidence although she was examined during the investigation and that the omission on the part of the prosecution to produce the most material evidence which Kallavva would have been able to give since she was the person who undoubtedly must have been present when Shetteppa was killed constituted a very serious infirmity in the prosecution case.
55. It is not disputed that Kallavva was examined during the investigation. But Mr. Government Pleader explained that the prosecution did not examine Kallavva since it was clear to the prosecution that she would not support the prosecution case and would not give evidence against her husband accused 4 or against her brother in law accused 1. The fact that it is admitted that Kallavva was not included as a witness in the charge-sheet and the non-inclusion, as rightly explained by Mr. Government Pleader, is attributable to the fact that it bad become known to the prosecution by then that Kallavva would not support the prosecution case. We are, therefore, not prepared to say that the non-examination of Kallavva damages the prosecution case if it is otherwise true.
56. One other argument which was presented to us was that since the thirteen incised injuries were all found on the right side of the body of Shetteppa and since there was no abrasions or other injuries on the left side of the body, it was not possible to think that someone had held Shetteppa when some one else inflicted the injuries on Shetteppa.lt is not correct to say that there are no injuries on the left portion of Shettepa's body. There are at least two. Secondly, Shetteppa must have been held by accused 1 or accused 4 when one of them was inflicting injuries upon him and it is not necessary that there should be any abrasions on the left portion of Shetteppa's body. The very fact that many of the injuries are found on the right side of the body is what proves the complicity of at least two persons in the murder of Shetteppa.
57. What we have said so far makes it clear that the Sessions Judge was right in coming to the conclusion that accused 1 and 4 were the two persons who killed Shetteppa and they did so with the common intention of Killing him.
58. Before proceeding to consider the argument whether the offence committed by accused 1 and 4 in that way is an offence punishable under Section 302 read with Section 34 of the Penal Code or whether the offence can be considered to be a less serious olleuce, it would be convenient to discuss the evidence touching the murder of Yellappa. The evidence touching that charge has already been discussed and consists of that given by P. Ws. 1, 6 and 15 whose evidence, as already observed by us, is entitled to acceptance, corroborated as the evidence of P. W. 1 is by the first information Exhibit P. 1. All the three witnesses gave evidence that when Yellappa was proceeding in the direction of Kallavva's house, he asked for particulars on being informed by P. W. 1 that Shetteppa had been killed, accused 4 discharged his gun in his direction and that Yellappa fell down and succumbed to the injuries. According to the evidence of P.W. 6, Yellappa was shot when he was at a distance of two or three cubits from accused 4 and the argument constructed by Mr. Havanur was that if that was how, according to P. W. 6, Yellappa was shot, the injury observed by P, W. 11 on Yallappa could not be the injury caused by the explosion of a Run in such close proximity. Mr. Havanur in support of this submission depended upon the opinion of the Ballistic expert P. W. 12 who stated that he could not assert that the pellets found in the body of Yellappa and which were taken out from his body by P. W, 11 came out of the gun of accused 4.
59. We shall now consider the effect of the evidence of the expert P. W. 12. His evidence was that in the gun seized from accused 4 and which admittedly belongs to him, there was one empty cartridge. That empty cartridge was removed by P. W, 12 and he stated that from the chamber in which that cartridge was contained, smell of some kind was exuding. What he next stated was that he could not assert that the fourteen lead pellets or the air-cushion wad, or the cardboard disk which the cartridge contained, had been, fired from the shot gun belonging to accused 4, which is marked as M. O. 30-
60. On this evidence the argument maintained by Mr. Havanur was that very material proof which the prosecution was bound to produce was not produced and the prosecution had failed to establish that the -pellets which entered the body of Yellappa emerged from the gun of accused 4. This submission in our opinion, overlooks that no expert in ballistic forensics can assert that lead pellets emerging from a gun emerged from a particular gun.
61. M. O. 33 is the gun from which the cartridge which contained the lead pellets was fired. It is net disputed that what the cartridge would first contain would be gun powder; what it would next contain would be the pellets; then there would be a cardboard disk, and at the other extremity would be the air cushion wad. If a cartridge of that description is fired the pellets after emerging from the barrel would proceed in a group up to a particular point and thereafter would disperse and enter the target in an area which would depend upon the distance from which the cartridge is fired. It is therefore, obvious that no one, whatever may be his special skill in ballistic forensics, could assert without doubt the pellets found on a person who was the target of ap gun shot, came out of a particular gun. If be made any such assertion, no one would believe him.
62. So, the principle that the prosecution has duty to establish that a bullet which was found in the body of a murdered person emerged from a particular lethal weapon, where the evidence establishes that there was more than one lethal weapon in the hands of those who were present at the scene of occurrence can have no application to the case before us and so it is unreasonable to say that the prosecution should have produced evidence that the pellets found in the body of Yellappa came out of the gun of accused 4, which was impracticable.
63. All that may be said about the evidence of P. W, 12 is that he is unable to say that the pellet' came out of the guin of accused 4. But so long as it is clear and he did not say that the pellets did not come out of the gun of accused 4 and so long as there is direct and unmistakable evidence of P. Ws. 1, 6 and 15, which we believe, that Yellappa was shot at by accused 4 with his gun, the intelligible inability' on the part of P. W. 12 to identify the pellets in the body of Yellappa as those which came out of the gun of accused 4, can have very little significance.
64. The prosecution, it is clear, examined P. W . 12, lest it should be said that there was failure on its part to examine a ballistic expert, who should generally be examined as a witness for the prosecution in all cases where the murder is by the discharge of a gun.
65. Now therefore, what we should next proceed to consider is the argument founded upon the description of the injury on the abdomen of Yellappa by P. W. .11. That injury, according to him, was a punctured wound 3 inches by 2 inches on the right side of the abdomen, It was said that as P, W. 6 gave evidence that the gun was fired from a distance of two or three cubits the injury would have been an irregular injury such as the one to be found on p. 239 of Modi's book of Jurisprudence, surrounded by small punctures around it. It is true that on that page of Modi's book of Jurisprudence (1963 Edition) it is said that if a twelve bore shot gun like the one which belonged to accused 4 had been discharged from a distance of three feet, the injury would be such as mentioned by Mr. Havanur. But there are two reasons why we should say that the injury -described by P. W. 11 cannot assist the argument firstly his evidence was that the intestines had also been punctured which is attributable to the fact that some of the pellets punctured the intestines round the wound referred to by P. W. 11. Secondly we should not understand P. W. 6 very literally and say that accused 4 discharged his gun only from a distance of two or three cubits. It is obvious that P. W. 6 would not have been able to observe correctly the distance from which accused discharged his gun. It is not improbable that accused 4 discharged his gun either from a closer range or from a distance in excess of two or three cubits. It is seen from p. 238 of Modi's book that if the gun shot was discharged from a distance of twelve inches, an injury similar to the injury found on Yellappa would be caused. It is also seen from p. 239 that if the gun was discharged from a distance of twelve feet there would be a similar injury.
66. But it was said that the chamber of the muzzle of the gun was only less than one inch, but that the injury measured three inches by two inches. The answer to this submission is that although the muzzle of M. O. 33 had a diameter of less than one inch, the pellets after emerging from the barrel of the gun would proceed only up to a point in a group [and then distribute themselves such distribution being proportionate to the distance which they traverse. So, there is nothing surprising in the diameter of the injury being greater than the diameter of the muzzle of the gun.
67. What in this casein in our opinion, should decide the complicity of accused 4 is the evidence of P. Ws, 1, 6 and 15. If we believe their evidence, there can be no doubt that accused 4 was the person who shot at Yellappa. We see no reason why we should not believe it and we believe it and reach the conclusion that it is proved beyond doubt that accused 4 discharged his gun against Yellappa when he was walking towards Kallavvas house and killed bi
68. We should) at this stage, observe a sub-mission made on behalf of the appellants. It was said that from the evidence of P. W. 1 and tram the evidence of P. W. 6 it emerges that a. short time before Shettappa was killed, he was taken from his house by a certain Ningappa 'Naik. In Exhibit P, 1 there is a statement that Ningappa Naik had taken Shettappa from the house in that manner. P. W. 6 however gave no evidence that he was so taken. But it appears from Exhibit P. 1 which she made during the investigation that she told the police that Shettappa had been so taken and that when Gangavva wife of Shettappa was informed that her husband had been killed, she exclaimed that Ningappa Naik had taken her husband out of her house and got the murder committed.
69. We cannot of course depend on Exhibit P. 1 as substantive evidence. It was said that what is stated in Exhibit P. 1 probabilises the theory that some one else was responsible for the murder of Shettappa and Yellappa and not accused 1 or 4. But we do not think that even if we come to the conclusion that Ningappa Naik was the person who took Shettappa from his house a short time before he was killed, and it emerges from the evidence of P. W. 13 that Ningappa Naik took him away at about 7 P. M. We should say that Ningappa Naik was the murderer of either Shetlappa or Yellappa, and not accused 1 and 4, We should say so since Ningappa Naiki according to the evidence, took Shettappa two hours before he was killed and it may be that Ningappa Naik was the person who was employed as a decoy by accused 4 or accused 1 to lure him away from his house in order to inveigle bis entry into the house of Kallavva where he may be surprised. Even if that theory is plausible, although there is no evidence supporting that theory, accused 1 and 4 who were the persons who were last seen in the house of Kallavva just before Shettappa was murdered could not escape from the effect of the evidence of P. Ws. l, 6 and 15 to which we have already referred and which so clearly incriminates both accused 1 and 4. It may be that Ningappa also had something to do with the murder either in the form of assistance which he rendered in bringing Shettappa to the house of Kallavva or in some other form. But so long as there is nothing on record to show what exactly he did it would not be possible for us to accede to the contention of Mr. Havanur that it is more probable that Ningappa Naik was the murderer and not accused 1 or accused 4.
70. We must, therefore, take the view that the Sessions Judge was right in coming to the conclusion that what killed Yellappa was the gun which accused 4 fired in his direction as stated by P. Ws. 1, 6 and 15.
71. But Mr. Havanur urged before as that even if we come to the conclusion that Shettappa was killed by accused 1 and 4 and that they had the common intention to kill him we would not be justified in saying that accused 1 or accused 4 was guilty of an offence of culpable homicide amounting to murder though they killed Shettappa or that accused 1, 2 and 3 were guilty of the murder of Yellappa. It was also urged by Mr. Havanur that even accused 4 could not be convicted of the offence of murdering Yellappa and that the offence committed by him was a smaller offence.
72. We may at once state that we are surprised that the Sessions Judge convicted both accused 1 and 4 or the offence of murdering Yallappa under Section 302 read with Section 34. The appearance of Yallappa on the scene was what none or the four accused could have either anticipated or foreseen. Between Yallappa and the accused there was no kind of hostility. There was no motive whatsoever which impelled the murder of Yallappa. Yallappa was killed only when he was attempting to reach the scene of occurrence on hearing the shouts of P. W. 1 and accused 4 who became panicky on seeing Yallappa coming in his direction discharged his gun in his direction and killed him. Accused 1, 2 and 3 who were merely present there had nothing to do with the killing of Yallappa and indeed the Sessions Judge himself was fully convinced that accused 2 and 3 had no concern in that murder. So he acquitted accused 2 and 3 of that offence. But what ne did most illogically was to convict accused 1 along with accused 4 of the offence of murdering Yallappa. Although we have no doubt that in the murder of Shettappa there was complicity on the port of accused 1 we have no doubt that he had no such, complicity in the murdering of Yallappa. So the only person who could be convicted of the murder of Yallappa is accused 4 and we are not disposed to accede to the argument that accused 4 discharged his gun in the direction of Yallappa without intending to kill him. It was explained to us by Mr. Yavanur that it was not the intention of accused 4 to murder Yallappa but that accused 4 who merely intended to deter Yallappa from further approach in the direction of Kallavva's house accidentally shot at Yallappa in a vital part of the body and killed him. If any one discharges a gun in the direction of another and kills him, he must be taken to have intended to kill him. If a person empties his shot gun into the belly of another, it is too much to suggest that he merely intended to maim him. However accused 4 did not say that the shooting by him was accidental shooting.
73. Now there can thus be no doubt that the only person who can be convicted of the offence of murdering Yallappa is accused 4 and that accused 1 is entitled to be acquitted of that offence. The Sessions fudge however convicted both accused 1 and 4 of that offence and convicted them under Section 302 read with Section 34. It is obvious that the conviction of accused 4 which alone can be supported in respect of the offence should be under Section 302 simpliciter. Therefore we confirm the conviction of accused 4 under Section 302 Penal Code and also confirm the sentence of imprisonment for life imposed upon him in respect of that offence. Accused 1 is not guilty of the offence of murdering Yallappa and he is acquitted of that offence. His conviction, in respect thereof and the sentence imposed upon him are both set aside.
74. What we should now consider is as to what we should do in regard to the murder of Shettappa. We have already said that Shettappa was killed by accused 1 and 4 who had the common intention to kill him and that they did so in furtherance of that common intention. The question is whether the offence committed by them is an offence of murder or whether it is an offence of culpable homicide not amounting to murder punishable under the first part of Section 304 of the Penal Code.
75. Mr. Havanur has pleaded before us that in the circumstances in which Shettappa was killed the offence would not amount to an offence of murder but only to an offence of culpable homicide not amounting to murder (ailing within the scope of exception 1 to Section 300 of the Penal Code. It was urged that both accused 1 and 4 who became infuriated and gravely and suddenly provoked in consequence of the embarrassing and compromising situation in which Shettappa was found inside the house of Kallavva, killed Shettappa in order to visit upon him the punishment for the act of wife stealing which he had either committed or was about to commit and that therefore the offence does not amount to murder.
76. Our discussion of the evidence touching the part played by Shettappa in his pursuit for the seduction of Kallavva establishes that either Kallavva had already become the mistress of Shettappa or in any event Shettappa had almost succeeded in his endeavour to make her his mistress. Any other view does not fit into the fact that Shettappa was allowed by Kallavva at 9 P. M. or a little earlier to enter into her house where she was staying with her three daughters. There is no evidence that there was any long-standing illicit intimacy between Kallavva and Shettappa. Even in Exhibit P. 1 it was stated by IP. W. 1 that there was a rumour circulating in the village that Kallavva had become the mistress of Shettaopa. If really there was established illicit intimacy between the two persons, that fact would have been known very well in a small village like Katabali. The fact that there was only a mere rumour, shows that Shettappa had commenced his pursuit for winning the affections of Kallavva and that Kallavva had perhaps either repulsed his advances or was disposed to encourage it. In any view of the matter, accused 4 and accused I when they found Shettappa in Kallavva's house, as they must have found, on the night of the murders, would have become suddenly and gravely provoked. It is that sudden and grave provocation that was obviously responsible for the severe punishment to which Shettappa was subjected. The fact that there is no evidence that Kallavva was punished in that way or in any other form is perhaps attributable to the fact that accused 1 and 4 were satisfied that Kallavva had not yet succumbed to the suit of Shettappa. It is not howevever, necessary for us to speculate upon the reasons why accused 4 did not subject Kallavva to any such punishment.
77. Mr. Government Pleader urged that the theory of grave and sudden provocation was not pleaded by accused 1 or accused 4 and that what excludes the theory is the fact that there were fifteen injuries on the body of Shettappa and that the infliction of that large number of injuries which must have occupied some considerable time was inconsistent with the hypothesis of either graveness or suddenness of the provocation even if there was one. We have already observed that the provocation must have been sudden because there is no evidence that accused 1 or accused 4 had earlier knowledge of the designs of Shettappa on the wife of accused 4. They might have had some kind of suspicion at the worst. So when they found Shettappa in the house of Kallavva, as they must have found him, it is reasonable to think that they felt unboundedly provoked and that that provocation was not only grave but also sudden. If in that frame of mind Shettappa was attacked with an axe or scythe, it is unreasonable to suggest that the number of injuries which could have been inflicted by the two accused so as to fall outside exception 1 of Section 300, Penal Code, should have been weighed by them with that accuracy which Mr. Government Pleader suggests. The very fact that a large number of injuries were inflicted itself demonstrates the graveness of the provocation. It is obvious that the greater the provocation the larger the number of injuries.
78. So we take the view that the offence com. matted by accused 1 and 4 when they killed Shettappa was no more than culpable homicide not amounting to murder punishable under the first part of Section 304 of the Penal Code. We, therefore, convict both accused 1 and 4 of that offence punishable under the first part of Section 304 read with Section 34 of the Penal Code in alteration of the conviction under Section 302 read with Section 34 of the Penal Code. For that offence we sentence both accused 1 and 4 to rigorous imprisonment for a period of seven years.
79. What we should now consider is the conviction under Section 27 of the Arms Act. As we have already said, the charge was that accused 4 violated the conditions of his license when he used his gun against Yellappa. Very strangely, the charge against him was that he committed an offence punishable under Section 27 of the Arms Act which does not speak of any violation of the condition of the gun license but only speaks of being in possession of a gun for unlawful purposes. The charge against accused 4 did not speak of any unlawful purpose. It spoke only of violation of the conditions of the license and therefore the charge should have been one under Section 30 of the Arms Act and not one under Section 27. But it is obvious that accused 4 very well knew what the charge was against him and the fact that a wrong section crept into the charge, should not vitiate the conviction under the correct provisions of the Act when the charge expressly stated that the offence committed by him was the violation of the conditions of the license which was granted to him. Since the conditions of the license did not authorize accused 4 to murder any one, and since he did murder Yellappa, there can be no doubt that he broke the conditions of the license. Neither the fact that the wrong section was mentioned in the charge, nor the fact that by a very curious error on the part of the Sessions Judge it was not put to him in his examination under Section 342 or the Criminal P.C. when he had to answer the charge that he had violated one of the conditions of the license, could be a ground for thinking that any prejudice would be caused to accused 4 if we now convict him of an offence punishable under Section SO of the Arms: Act in alteration of the conviction under Section 27. We, therefore, convict accused 4 of an offence punishable under Section 30 and since the maximum period of imprisonment which can be imposed under that section is only three months in contrast with Section 27 which prescribes seven years imprisonment, it would be enough if we reduce the sentence of one year's rigorous imprisonment imposed for the fifth charge to imprisonment for a period of two months. We order accordingly.
80. In regard to charges 3 and 4 which speak of the offence of hurt caused to P. Ws. 1 and 15 it is enough to state that the evidence discussed makes it abundantly clear that those oftenest were committed by accused 1. Although those charges were against all the four accused, the Sessions Judge very properly convicted only accused 1 of that offence. These convictions cannot be disturbed and will remain. So also the sentence imposed in respect thereof.
81. Before concluding we should observe that the interrogation made by the Sessions Judge under Section 342 of the Criminal P.C. strikes us as somewhat strange. In interrogating every one of the four accused, drawing their attention to the incriminating pieces of evidence against each one of them, what the Session! Judge did was to refer to something done by the accused interrogated, is an act done by some one else. To illustrate) the ninth question put to accused I which is similar to the other questions put to each one of the accused reads--
It is also in the evidence of P. W. 1 Sattavva that A 1 to A 4 then came out from the house of Kallavva. What have you to say.
If one reads this question, it gives an impression that the person interrogated was some one other than accused 1 whereas the person interrogated was accused 1 himself. This question should have read thus:
It is also in the evidence of P. W. 1 Sattavva that you and A. 2 to A. 4 then came out from the house of Kallavva. What have you to say ?
82. It is not proper to suggest to accused 1 in the course of the interrogation that accused 1 who was referred to in the question was some one other than himself as was done by the Sessions Judge.
83. One other thing which we wish to condemn is the fact that three eye witnesses P. Ws. 1, 6 and 15 were act called by the prosecution in succession. Between the examination of P. W. 1 and the examination of P. W. 6, four witnesses were examined and P. W. 6 was examined two days after P. W. 1 was examined. Similarly, after P. W. 6 was called to give evidence, eight other witnesses were examined, and P. W. 15 was examined two days afterwards. Not unnaturally the argument constructed upon this surprising procedure is that the intention of the prosecution was to prepare the second eye-witness on the evidence of the first eye-witness and to similarly prepare the third eye-witness on the basis of the evidence given by the other two witnesses. The sessions Judge should not have allowed the prosecute ion to introduce an interregnum between the recording of the evidence of two eye-witnesses. What the Sessions Judge should have done was to insist upon the prosecution to examine one eye-witness after another without the interposition of the evidence of some other description.
84. The result is that this appeal succeeds in part and fails in regard to the remainder:
(a) Accused 1 and 4 are convicted in respect of the murder of Shettappa which is the subject-matter of the first charge under the first part of Section 304 read with Section 34 of the Penal Code, and they are sentenced to rigorous imprisonment for a period of seven years;
(b) In respect of the murder of Yellappa which is the subject-matter of the second charge, accused 4 is convicted of the offence punishable under Section 302 of the Penal Code, and is sentenced to imprisonment for life;
(c) Accused I is convicted under Section 323 of the Penal Code of under both the charges three and four and the sentences imposed upon him in respect of those offences are confirmed;
(d) Accused 1 is acquitted of the offence of murdering Yellappa which is the subject-matter of the second charge;
(e) Accused 2 and 3 are acquitted of all the-offences of which they were convicted and their convictions for those offences and the sentences imposed upon them are set aside.
(f) Accused 4 is convicted of an offence under Section 30 of the Indian Arms Act, and we sentence him. to rigorous imprisonment for a period of two months. The sentence imposed upon Accused 1 and 4 as. above shall run concurrently. Accused 2 and 3 shall forthwith be set at liberty. The direction for confiscation of the gun and the cartridges will remain undisturbed.
85. There is an application made by the State-Government for the enhancement of the sentence imposed upon accused 1 to 4 in respect of the offences relating to the murders of Shettappa and Yellaopa. The State Government ask us to impose upon them sentence of death in enhancement of the sentence of imprisonment for life.
86. In respect of the matter of Shettappa we have formed the opinion, as we have stated in the judgment, that the offence committed is not an offence of murder and so the enhancement prayed for is not possible.
87. In respect of the murder of Yellappa we do not think that in the circumstances of the case, we should enhance the sentence imposed upon by the Sessions Judge in the exercise of his discretion which in our opinion was not exercised arbitrarily. The source of the tragedy being the base and ignominious desire on the part of Shettappa to steal the wife of accused 4, it can hardly be suggested that the extreme penalty of the law should be paid by the husband who was or was about to be cuckolded in that way.
88. The application for enhancement is therefore dismissed.