EMPEROR Vs. SUBBAPPA CHANNAPPA

JUDGEMENT

(1.) In this case we have had a careful and thorough argument from Mr. Kelkar, but he has not succeeded in satisfying us that there is any good ground for supposing that the learned Sessions Judge s judgment is in any particular wrong with regard to the conviction of these two appellants. The conviction of them which now concerns us was of the offence of murder under Section 302 of the Indian Penal Code, each appellant being sentenced to transportation for life. We desire at the outset to express our entire concurrence with the learned Judge s action in altering the charge as originally framed to a charge of murder, and with the reasons which the learned Judge has given for that action. We think he is quite right in saying that where culpable homicide has been committed, prima facie the principal issue is : whether that culpable homicide does not amount to murder, and in all ordinary cases that issue ought to be tried, and ought not to be prejudged, by any authority less than the authority of a Court of Session.

(2.) With regard to this offence itself the evidence is overwhelming that the deceased Subapgauda s death was caused by these two appellants. It is urged that some of the witnesses who depose to this fact should be regarded as partisans of one of the two village factions. The evidence, however, does not establish that, nor do we believe it to be the case; but even if it were the case, the same fact is put beyond doubt by the two Police Constables who are clearly independent of these disastrous village factions. These witnesses prove that the manner of Subapgauda s death was this, that as he stood unarmed and bareheaded, protesting against the use of violence, the two appellants rushed at him, No. 1 striking him savagely on the head with a heavy stick held in both hands, and No. 2 smashing in his skull by a blow dealt with a heavy stone, not thrown as a missile, but held firmly in the second appellant s hands.

(3.) On the evidence it is further established that the two appellants were acting in concert in the sense that their attack was a single indivisible thing, so that both of them would be liable for the result which ensued. That is the consequence of the provisions of Section 37 of the Penal Code which enacts that when an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. On the evidence we are satisfied, as the learned Judge was satisfied, that the first appellant, who used the stick intentionally co-operated in the commission of the murder with the second appellant, who used the still more cruel weapon, the stone.