BHIMAPPA LAXMAPPA GANIYAL AND Vs. STATE

JUDGEMENT

(1.) We do not think that the material on record justifies the conviction of the appellants. The trial Court, i.e., the Court of Session Belgaum in Sessions Case No. 141 of 1959 convicted both the appellants under Section 302 read with Section 149 I.P.C. and sentenced each one of them to suffer imprisonment for Me. It also convicted them under Section 148 I.P.C. and for that offence sentenced each one of them to suffer 18 months R.I. In that court there were as many as 5 accused; all of them were charged under Section 302 read with Section 149 as well as under Section 148 I.P.C. But A-3 to A-5 were acquitted on the ground that their presence at the time of the, occurrence was not satisfactorily established. Curiously enough, the learned Sessions Judge thought that in spite of the acquittal of those accused, he could still convict the appellants under Section 302 read with Section 149 as well as under Section 148 I.P.C. as in his view, for which there is no basis, five persons took part in the attack on the deceased.

(2.) The prosecution case is that the deceased Tirthappa was in terms of illicit intimacy with Dyamawwa, wife of the first accused; therefore, the appellants who are cousins, along with their friends, the acquitted accused, formed themselves into an unlawful assembly and in prosecution of the common object of that assembly, the members of that assembly hacked the deceased to death On the morning of 30.9.1959 in front of the house of P.W. 7 Chandrawwa, the sister of the deceased.

(3.) There is no doubt that the deceased sas hacked to death at the time and place mentioned in the charge. He had sustained as many as 13 injuries of which 12 were incised; his neck was almost severed.