EMPEROR Vs. SHIVPUTRAYA BASLINGAYA

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge, Belgaum, under Section 307 of the Criminal Procedure Code in a case he tried with a Jury in which the accused were charged with having committed offence under Secs.457 and 395 of the Indian Penal Code. The Jury returned an unanimous verdict of not guilty. The Sessions Judge differing from that verdict has made this reference and is of opinion that the accused could be convicted of offences under those sections.

(2.) The case for the prosecution rests upon the identification of accused Nos. 1, 3, 4 and 5 and upon the production of part of the stolen property by accused Nos. 1 to 4 jointly and by accused No. 2 from his own house.

(3.) There can be no doubt that an offence of house-breaking and theft was committed in the house of the complainant Adiveppa on the night of September 11, 1929. At that time the only occupant of the house was Adiveppa's daughter-in-law Basavanewa. The evidence of Basavanewa is that on that night her husband was absent from the house and as she was the only inmate she had closed all doors and had gone to sleep, that she had got up owing to a noise proceeding from the kitchen and had lighted her lamp. The persons who had made an entry into the house came up, blow out the lamp, and thereafter effected an entry into the God room of the house from which they removed a tin-box containing certain articles of value. According to her she saw and identified accused Nos. 1, 3 and 4 who were previously known to her and she also saw a dark tall man whom she subsequently identified as accused No. 5. Accused No. 2 was not mentioned by her as having been among the persons who had entered the house this night. The robbers chained up the door of the house from outside when they left it. The infirmity in this evidence is that the next morning when the house was opened from outside by a passer-by, a woman also of the name Basavanewa, in consequence of the witness Basavanewa calling out to her for help, Basavanewa gave out that thieves had entered her house and had chained the door from outside after having stolen property from the house, but she did not mention the names of the accused Nos. 1, 3 and 4 as having been among the dacoits. At 7 A.M. in the morning her father-in-law Adiveppa returned from his field and coming to the house was informed by Bisavanewa of what had occurred. On this occasion the evidence of both Adiveppa and Basavanewa is that Basavanewa told Adiveppa the names of accused Nos. 1, 3 and 4 and stated also that there was a dark tall man whom she could identify if she again saw him. At about 9 o clock the same morning Adiveppa gave the first Infermation to the Patil but the information was in general terms and he did not disclose the names of accused Nos. 1, 3 and 4 to the Patil. At this time a Police Jamadar Jangumiya was staying in the house of the Police Patil in connection with the Ganpati festival. Jangumiya assisted the Police Patil in the investigations which were started immediately after Adiveppa had given the information to the Police Patil. Certain Panchas were summoned and a Panchnama of the house was made in the presence of Jangumiya and the Police Patil. Adiveppa was present at the time the Panchnama was made. Even then the names of the dacoits were not disclosed. The Police Sub-Inspector arrived in the village at 4 or 4-30 p. m. of the same day, September 12. It was after the arrival of the Police Sub-Inspector that the names of accused Nos. 1, 3 and 4 were disclosed to him by Basavanewa and the complainant as persons who had taken part in the dacoity. The Sub-Inspector of Police gave instructions to the Police Patil to keep a watch on these three accused. The Police Patil did so and as the result of his following the three accused to a public meeting, which was held that night at 11 P.M. in the village, gathered certain information which he communicated to the Sub-Inspector of Police on the following day, September 13. The Police Sub-Inspector sent for accused Nos. 1 to 4 and in consequence of certain information he got from them they were taken to certain fields which did not belong to them where they individually and by turns pointed out places from which some of the stolen articles were recovered. The evidence does not show what statements each of the four accused made in consequence of which the discovery of the stolen articles was made. Later in the afternoon of the same day in consequence of information given by the accused Nos. 1 to 4 accused No. 5 was arrested, and an identification parade was held at which Basavanewa identified him as the fourth person who had entered her house and taken part in the dacoity on the night of September 11.