EMPEROR Vs. CUNNA

JUDGEMENT

(1.) It will be convenient to give a brief statement of the facts relating to this case. The accused Cunna and the deceased Dev Naik went together from Halgeri to Byadgi. The purpose of the trip was to well the betelnuts belonging to the deceased Dev Naik. They returned from Byadgi to Halgeri on the morning of the 4th of January 1918. The deceased had with him nearly Rs. 400, being the proceeds of the sale of his betelnuts; and this fact was known to the accused. The deceased went in the afternoon of that day to Husur, an adjoining village, and returned in the evening back to the house of Cunna. The deceased left the house of the accused during the night for his native place Hukli, and on the way from Halgeri to Hukli he was murdered on the night of the 4th-5th of January 1918. The news of his death was received on Sunday the 6th of January. His body was found with a number of wounds, but the money was not found. A report was sent by the Police Patil. But that report was sent back for an entirely unsatisfactory reason. A second report was sent on the 7th, and the Sub-Inspector Malhar Bhatt arrived on the 7th. Thereafter the accused was arrested and he was sent up in due course to the Magistrate to have his confession recorded. The accused reached the Magistrate whose camp was at Sampkhand and made a confession on the 11th of January 1918. In this confession he implicated three persons, Narsappa, Abdul Ajij. and Faridbad, as being concerned in this murder, and briefly speaking he admitted that he was present, and saw the actual commission of the crime by these three persons. This confession is very long and full of details describing fully the first meeting of the deceased and the accused at Halgeri, the trip to Byadgi, the business done at Byadgi, the return journey from Byadgi to Halgeri, his movements at Halgeri on the 4th January, his journey from Halgeri at night towards Hukli, and the details connected with the occurrence of the murder of Dev Naik. Then, on the 1st of February 1918, the Committing Magistrate, to whom the case was sent up against the three persons named by him and the present accused, tendered a pardon to him under Section 337 of the Criminal Procedure Code; and he was specifically warned that the essential condition of the tender of the pardon was that he was to make a true and full disclosure of the whole of the circumstances within his knowledge relating to the murder of Dev Naik and that if he failed to fulfil that condition he would forfeit the pardon, that he would be liable to be tried on the charge of murder, and that his statement could be used in evidence against him. He accepted the pardon: and lie was then examined by the Committing Magistrate on the 1st and 2nd of February 1918. He substantially repeated the story told by him in his confession in the same detailed manner. Ultimately at the trial of Narsappa, Abdul Ajij and Faridsab, on the charge of murder of Dev Naik, he repeated the same statement in March 1918. This statement also is detailed and substantially a repetition (if the story told by him in the first confession. The result of the trial, however, was that the three accused who were then charged with the murder of Dev Naik were acquitted and the learned Sessions Judge suggested that the proper authorities should investigate into the conduct of the investigating Sub-Inspector Malhar Bhatt and various matters connected with the investigation. At the end of the trial apparently the present accused was allowed to go. There is no mention made in the judgment as to the opinion formed by the Judge about the effect of his view of the ease on the pardon tendered to Cunna.

(2.) Subsequently there was an investigation by a Sub-Inspector belonging to the C. I. D. apparently against Malhar Bhatt. There is no evidence in this case as to the details of this investigation, nor is there anything to show as to when exactly it was definitely realised by the Crown that the story told by Cunna at the murder trial was positively false. We find that proceedings were initiated against Malhar Bhait in the beginning of the year 1919. In January J919 the present accused was examined as a witness in the case before the Committing Magistrate when in effect he stated that the murder was committed by him and two others whose names he was not prepared to mention, and he gave detailed account as to how he was induced by Malhar Bhatt to put forward the detailed story which he had put forward in his confession and how Malhar Bhatt had promised to see him safe with reference to the charge of murder. He also narrated that he had given Rs. 850 as a bribe to Alalhar Bhatt in consideration of the favour which he had undertaken to show to the accused. Malhar Bhatt was in fact charged with giving and fabricating false evidence, with falsifying official records with a view to save Cunna from legal punishment, with receiving bribes from the accused Cunna and his father, and with extorting money from Bira, the brother of the deceased Dev Naik. Malhar Bhatt was committed to the Court of Session and at his trial the present accused made another statement in May 1919 in which he substantially adhered to the story which he had stated before the Committing Magistrate in that case. Malhar Bhatt was convicted of all the charges. The learned Judge observed at the end of his judgment that it would be obvious to all concerned that Cunna had not fulfilled the condition upon which his pardon depended.

(3.) Thereafter apparently proceedings were taken against the present accused on the charge of murder in December 1919, and as a result of those proceedings he was tried by the Sessions Judge of Kanara with the aid of Assessors, The Assessors were divided in opinion. One was of opinion that the accused was guilty: the other was of opinion that he was not guilty. The learned Sessions Judge came to the conclusion that the charge against the accused was established and sentenced him to death subject to continuation by this Court. We have considered the appeal preferred by accused as also the question of the continuation of sentence.