Decided on April 11,1969


Cited Judgements :-



K.Bhimiah, J. - (1.)The State has filed the above appeal against the order of acquittal of the respondent passed by the Sessions Judge, Coorg Mercara, in S.C. No. 2 of 1967, The respondent was tried for offences under Sections 302 and 201, Penal Code. There is a criminal petition also filed by the State under Section 561 A of the Code of Criminal Procedure for expunging adverse remarks passed by the Sessions Judge in paragraphs 16, 19, 20, 45, 46 and 48 of the judgment under appeal. As both these matters are connected, they are clubbed and heard together and disposed of by common judgment.
(2.)The allegation against the respondent (accused) is that on 11-8.1966 at 5 P. M. at Mcolegadde in Charangala village, he caused the death of his brother, Montana Mallayya by inflicting injuries with a bill hook and knowing that an offence under Section 302, Penal Code punishable with death or imprisonment for life was committed, caused the evidence of the said offence disappear by concealing the dead body of Motana Mallayya inside bushes with an intention to screen himself from legal punishment.
(3.)The learned Sessions Judge who tried the accused for offences under Sections 802 and 201 of the Penal Code, or want of legal evidence though he was morally convinced that the accused was mainly responsible for the murder of his younger brother, Mallayya, with a view to usurping the entire ancestral property for himself, acquitted him. The State has challenged the judgment and the order passed by the learned Sessions Judge. Facts are: The deceased and the accused were brothers. There was a misunderstanding between the brothers regarding the division of ancestral property and also about the enjoyment of the property. In 1965, the elders of the family wanted to effect a settlement, which, according to the prosecution, was resented by the accused. The accused wanted the entire property for himself to the exclusion of the deceased. It is also alleged that the deceased did not heed to the advice of the accused to marry a girl of the choice of the accused. Therefore, the accused wanted to get rid of his brother and usurp the entire property to himself. According to the prosecution, the deceased was last seen in the company of the accused on 11-8-1966 and thereafter his whereabouts were not known. On 15-8.66 a human hand was found in Dodda Gadde in Charangala village. A report as per Ex. P-l was made by P. W. 1 to P. W. 29 Madappa, Head constable, who was attached to Bhagamandala Outpost, and who took that report to the Police Head Constable, P. W. 28 Motayya, attached to Napoklu Police Station, who in turn, took the report to the Circle Inspector of Police, P. W. 44 Dinkar Uchil. They all went to the spot, seized the human hand as per Ex. P-2 on 17-8-1966. It was sent to the local doctor for opinion. Later on, it was sent to the Chemical Examiner, but on the advice of the Chemical Examiner, it was sent to the Forensic Expert who opined that it was a human hand. In the meanwhile, P. W. 28 had received a report from the patel of Charangala on 7-9-1966 informing the Police about the disappearance of Motanna Mallayya. It was converted into F.I.R. as concerning a man missing under Crime No. 126 of 1966 of Napoklu police station. Thereafter, he sent the F.I.R., for investigation to Madappa, Head Constable, P. W. 29, who was attached to Bhagamandala outpost. The Forensic Expert, as already stated, opined that it was a human hand. Then, a case under Section 174, Criminal P.C. was registered in Crime No. 154/66 and F.I.R. was sent to the District Magistrate and official superiors by P. W. 41, Muddurangayya, Sub-Inspector of Police.

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