BASAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This is an appeal against the judgment in Shimoga Sessions Case 3 of 49-50 in which the appellants have been convicted of an offence under Section 302, Penal Code, and sentenced to transportation for life.

(2.) According to the prosecution case, the accused and others entered, on the night of 13-12-1948, a building known as Tudekoppada Mutt which is at a distance of a few miles from Sagar and committed offences of house-breaking and robbery, in the course of which one Puttasamiah an inmate of the house was murdered. P. W. 9 Shiviah, to whom the Mutt belongs, was residing in it with the other members of his family and a few relatives had also come in connection with some ceremony. On the night of 13-12-1948, P. W. 9 Shiviah and some of the members of his family had gone to Sagar to see a circus. He and one Karibasiah remained at Sagar, while the other members of the family returned to the Mutt. Early in the morning, his son-in-law Lingamurti came to Sagar and told him about the house-breaking, robbery and murder that had taken place in the night and a complaint Ex. P-13 was filed before the Police. P. W. 10 Lingamurthi himself is not aware of what happened that night as he was sleeping in the upstairs of the building, while the incident took place in the downstairs. P. W. 11 Gangadhariya who was also sleeping in another portion of the house was not also awake when the incident happened. The evidence of P. W. 20 Kalyanaiya son-in-law of Shiviah and of his wife P. W. 21 Annapoornamma are not of much help, as, though they refer to the jewels that she had kept under a pillow having been removed, the accused had left her room before they could see them. The evidence of P. W. 22 Gangamma and P. W. 23 Neelamma is of much more importance as they saw the culprits snatching away a suit case from the hands of Gangamma after a tussle. As they were using torchlight, Gangamma has been able to identify accused 1 and 2 as the persons who did so. It may be added that she identified the accused in an identification parade held, later on, by the Amildar P. W. 3. It has to be stated here that Gangamma has also deposed that just before the accused entered the hall in which she was sleeping she heard the sound of some ore being beaten outside. Pattasamiah was found with injuries on his forehead and neck and he died a little later. On the complaint to the police referred to above, the Police Officers came and an inquest was held over the dead body of the said Puttasamiah and the body was subjected to post mortem examination by the doctor P. W. 2. According to the evidence of this doctor, death was due to haemorrhage in the brain and injury to the brain and shock, as a result of severe injury and fractures of skull bones.

(3.) All that is necessary to add for consideration in this case is that there is some evidence of certain articles said to have been stolen, being traced to the possession of the accused. We do not like to express any opinion in respect of the offence of robbery, as the accused have yet to undergo a trial in respect of that offence, and it is particularly so as we find that the evidence on record does not justify the conviction of any of the accused or all of them of the offence of murder, even if all the evidence on record is accepted as true. It may be taken that accused 1 and 2 along with others entered the building and removed some of the valuable articles and that one or more of them caused the death of Puttasamiah. The point for consideration is whether there is any evidence to show whether all the accused or any one or more of them can be convicted of the offence of murder. There is no direct evidence to show who out of the accused and their companions committed the murder. It is contended that as the accused 1 and 2 at any rate, were seen entering the hall in which P. Ws 22 and 23 were sleeping and actually assaulted them and committed the offence of robbery by snatching away the small suit case held by Gangamma, it must be taken that it is they who murdered Puttaeamiah. This does not necessarily follow. Circumstantial evidence must be such as to lead only to one possible inference leading to the conviction of the accused and if any other inference consistent with the innocence of the accused on that point is possible, a conviction cannot be based on such circumstantial evidence. In this case, it is quite possible that a person other than accused 1 and 2 be laboured Puttasamiah, while accused 1 and 2 were engaged in committing theft. There is neither circumstantial nor direct evidence to show, who it is that committed the murder of Puttasamiah. Assuming that some of the stolen articles are traced to the possession of any of the accused, it does not follow that he murdered the deceased. As observed in Pattamudasetty v. Govt. of Mysore: