STATE OF MYSORE Vs. SUBHAPPA

JUDGEMENT

(1.) The respondents before us, five in number, were tried by the Additional Sessions Judge, Mysore, in Mysore Sessions Case No. 3 of 1958, for offences punishable under Sections 143, 147 and 302 read with Section 149 of the Indian Penal Code. They were all acquitted by the order dated 19th day of April, 1958. This appeal is by the State against the said order of acquittal.

(2.) The case for the prosecution was that early in the morning of 2nd December, 1957, Puttaswamappa, a resident of Chandravadi village, had been to the neighbouring village of Nellithalapurada Hosur to fetch some jute seeds for himself and a small pup for his 9 year-old child Mallesh, and was returning to his village Chandravadi accompanied by Varadanaika carrying jute seeds in a gunny bag and Mada carrying the pup in a basket, and that at that time the 5 accused acting with the common object of murdering the said Puttaswamappa did commit his murder; the first 3 accused are said to have taken actual part in the assault, the first of them piercing the neck of Puttaswamappa with a dagger and the 3rd cutting it with a chopper on his being felled to the ground by the second while the 4th and the 5th accused were present on the scene and actively instigated the commission of the offence. The defence was one of total denial, with the suggestion that the entire case has been foisted upon the accused by one Madappa, the patel of Kuru-bundi village by putting up persons inimically disposed towards them as witnesses in support of the prosecution.

(3.) The prosecution examined as many as 35 witnesses. A considerable portion of the evidence bears upon the alleged enmity between the accused on the one hand, and the deceased on the other-Among the witnesses examined on this subject is I.W. 25 Subbanna, the patel of Nellithalapura. There is also the evidence of 6 OF 7 witnesses be-sides the investigating officer relating to the discovery of a dagger M.O. 1, allegedly at the instance of the first accused, and the recovery of a chopper M.O. 2, blood-stained baniyan M.O. 21, a Silver Karadige M.O. 11, 3 gold shirt-buttons M.O. 12 and a gold ring M.O. 13, allegedly at the instance of the third accused; M.Os. 11, 12 and 13 are said to have been on the person of the deceased Puttaswamappa at the time of the offence. The really substantial evidence however, on which the prosecution case in our opinion, rests, consists of the evidence of Varadanaika and Mada examined as P.Ws. 17 and 18 respectively who, according to the prosecution, were in the company of the deceased at the time of the offence and had actually witnessed the fatal assault on him. Certain other witnesses have been examined to probabalise the presence of the eye-witnesses at the time of the occurrence, viz., P. W. 19 Devamma, the mother of Varadanaika, and P.W. 20 Malaya, the father of Mada and certain others who met them or to whom they narrated the details very shortly after the incident, such as P. W. 24 Machasetty alias Dose, P.W.' 31 Channaveerachari and P.W. 32 Nagappa, the shanbhog of Nellithalapura.