K V M PARAMESWARAYYA Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the District Magistrate at South Kanara requesting this Court to set aside the conviction of the accused under B. 387, Penal Code, by the Stationary Sub-Magistrate, Puttur, in o. o. no. 352 of 1948 and to order a further enquiry against the accused foe an offence under Section 307, Penal Code, which according to the evidence adduced, is, in the opinion of the District Magistrate, the offence committed by the accused. My learned brother Bajagopalan J. in issuing notice to the Public Prosecutor, made the following observation: Rule 269, Criminal Rules of Practice hag not been complied with. There was no call for an explanation from the Sub-Magistrate by the District Magistrate. No doubt it is unlikely the Sub-Magistrate will have anything to add to the lengthy explanation he furnished to the Sub-Divisional Magistrate. It is virtually a question of appreciation of evidence-mainly of oral evidence. Notice may be ordered to the Public Prosecutor and the ease posted before a single Judge. After the entire records were translated, the matter now comes up for passing orders.

(2.) THE charge sheet filed against the accused was for an offence under Section 307, Penal Code, in that he attempted to murder his son p. W. l by shooting him with a single barelled muzzle loading gun at a distance of 8 yards with such intention or with such knowledge and under such circumstances that if, by that act, he had caused the death of p. W. 1, the act would have amount-ed to murder.

(3.) 15 witnesses were examined on the side of the prosecution and two for the defence. Though the inquiry originally began as a preliminary register case, during its progress, the Sub-Magistrate was of opinion that the only offence that was committed on the evidence placed before him was under B. 337, Penal Code, and thereafter a charge was framed under that provision of law and the accused further questioned. Accepting in particle the statement of the accused and the evidence of the two witnesses examined for him, the Court of first instance convicted him of an offence as stated above and sentenced him to pay a fine of Rs. 200. The Sub-Divisional Magistrate of Puttur, on perusing the calendar of this case in his administrative capacity called for a report from the Sub-Magistrate on the various questions raised by him and wanted the Sub-Magistrate to state why the case was converted as a calendar case and the accused convicted only of a minor offence. In answer to this, the Sub-Magistrate submitted a lengthy explanation stating the reasons for the course adopted by him. He also expressed his conclusion regarding the credibility of various portions of the prosecution evidence and why the whole of it should not be accepted. The Sub-Divisional Magistrate was not satisfied with the explanation and, therefore, submitted the papers to the District Magistrate who, after expressing his view, has referred the whole matter to this Court.