EMPEROR Vs. SHANKARAYA GURUSHIDDAYYA HIREMATH

JUDGEMENT

(1.) THESE are an appeal and an application to confirm the death sentence passed on accused No.2, and a reference under Section 307 of the Criminal Procedure Code, in a case from the Sessions Court of Belgaum.

(2.) THE charge against the six accused was, first, that between January 1, 1938, and December. 31, 1938, they agreed to do an illegal act to wit the murder of Muchkandappa and thereby committed an offence under Section 120B of the Indian Penal Code. THEn there is a charge against accused No.2 that in furtherance of the conspiracy on December 11, 1938, he attempted to murder Muchkandappa by administering arsenic. THEn there is a charge against accused No.2 that on December 14, 1938, he kidnapped Muchkandappa in order that he should be murdered. THEn there is a charge against accused Nos. 2, 3 and 6 that in furtherance of the conspiracy they in fact murdered Muchkandappa on December 14, 1938, by drowning. THEn accused No.1 is charged with abetment of the offence of murder. So also are accused Nos. 4 and5. THE charge under Section 120B and the charge of kidnapping, were tried by the learned Judge with a jury, the other charges being tried by the learned Judge with assessors. THE jury convicted all the accused except accused No.4, whom I need not refer to again. THEy convicted all the other accused of conspiracy under Section 120B, and the learned Judge differed from that verdict in so far as relates to accused Nos. 1, 3 and 6, and he has referred that matter to us under Section 307. Accused No.2 was convicted of attempt to murder, of kidnapping in which charge, I think, there is no substance at all, and of murder by drowning. THE learned Judge in agreement with the assessors convicted accused No.2 of attempt to murder by poison and of murder by drowning. THE learned Judge also convicted accused No.5 of abetment of murder, but acquitted accused Nos. 1, 3 and 6 of the charge of abetment.

(3.) NOW, it is argued here that the agreement between the parties was to cause the death of Muchkandappa by means of bhanumati, and by no other means. The actual bhanumati, which was practised by the witness Machendra as a result of this conspiracy, was certainly not witchcraft which could in the ordinary course of nature cause death. It consisted of acquiring a pig's leg, some earth wetted by his urine and a piece of cloth worn by the threatened boy, burying them in front of his house, and reciting incantations over the concoction. I agree that if the only agreement between the accused was to perform this curious act, me mere fact that accused No.1, and possiblysome of the others, might have anticipated that the death of Muchkandappa would ensue, would not constitute an offence under Section 120B. But I think there was ample evidence on which the jury could find, and that they in fact did find, that the real agreement was to cause the death of Muchkandappa, the means to be tried in the first instance being a form of witchcraft the nature of which, as the evidence makes clear, none of the accused understood, when they entered into this conspiracy. As I think that the jury were entitled to find that there was a conspiracy to murder Muchkandappa, I am not prepared to accept the reference of the learned Judge, and interfere with the verdict of the jury under Section 120B.