Decided on March 08,1968

Sankappa Raiv Appellant


Isaac, J. - (1.) THIS reference and the appeal arise out of the judgment of the Sessions Court, Tellicherry in Sessions Case No. 57 of 1957. The accused was convicted by the learned Judge for the offence of murder, and sentenced to be hanged under Section 302 I.P.C. The learned Judge has submitted the proceedings to this court under Section 374 Criminal Procedure Code for confirmation of the sentence; and the accused has filed the appeal against the conviction and sentence. The occurrence took place at about 8.00 A.M. on 14 -4 -1967 in Kumbadji Village within the jurisdiction of the Badiadka Police Station in Kasaragod Taluk. The accused is a managed about 54 years, and the deceased is his sister's son aged about 30 years. P.Ws. 1 and 2 are his younger brothers, and Pw. 7 is a younger brother of the accused. Ext. P -12 is a plan of the scene of occurrence. The deceased with his brothers Pws.1 and 2 and their parents lived in a house marked H4 in the plan. Pw.7 was also living in a part of the same house. The accused lived in the house marked H9, which is about 385 feet to the west of the deceased's house. About the same distance to the north of the deceased's house, his family has got an arecanut garden. The relation between the accused on the one part and the deceased, his brothers and their parents on the other hand had been extremely hostile for the past few years. There is a well in front of the house of the deceased; and it appears that there was also dispute about drawing water from this well.
(2.) ON the morning of 14 -4 -1967, the deceased along with the brothers Pw. 1 and Pw2 started from their house to their arecanut garden for watering the arecanut trees. They met the accused in front of their house by the side of the well; and there was an unpleasant exchange of words between the accused and the deceased. The accused went to his house; and the deceased went to their arecanut garden along with his brothers, where they got themselves engaged in the process of watering the trees. Sometime later, the accused came to the southern boundary of their coconut garden with a loaded double -barrelled gun, and shot the deceased at his chest from a distance of 28 feet. The accused fell down, crying that he was killed; and he expired within five minutes. The accused ran away with the gun towards his house. The occurrence was witnessed by P.Ws. 1, 2 and 6. Pw. 6 is a common relation of the accused and the deceased; he is aged 19 years. He has a paddy field about 50 feet to the south of the arecanut garden of the deceased; and Pw.6 was watering his betel - pepper in the above filed at the time of the occurrence. Pw.7 was then in his house. He heard the sound of the shot, and came out to the place of occurrence, when he saw the accused running away with the gun, and the deceased breathing his last in a pool of blood. Pw. 8 is another neighbor, who was attracted by the sound of the gun shot, and the death - cry of the deceased. He also saw the accused running away with the gun, and the deceased breathing his last. The Police Station is seven miles away from the scene of occurrence. Pw. 7 went to the station, and lodged an information. His statement was recorded at 11.00 A.M. by Pw. 15, the Sub -Inspector of Police, who registered a crime against the accused for the offence under Section 302 I. P. C. Ex. P -13 is the Statement, and Ex. P -33 is the First Information Report. He immediately reported the matter to Pw. 16, the Circle Inspector of Police, proceeded to the place of occurrence, and conducted an inquest on the body of the deceased. Ex. P -15 is the inquest report. The material objects found at the scene of occurrence were also taken into custody. The accused was arrested from his house at 7 P.M. on the same day by P.W. 15. Two pellets were recovered from the pocket of the shirt which the accused was then wearing. Pw. 15 also recovered a double -barrelled gun, some gun - powder and other materials along with the license for the said gun issued in the name of the accused from the house of the accused. Mahazars were prepared for all these matters. The dead - body was sent to the Government Hospital for examination, which was conducted by Pw. 3, an Assistant Surgeon. Ex. P -1 is the post -mortem certificate. After completing the investigation, Pw. 16 submitted final report before the Second Class Magistrate, Kasaragod, charging the accused for the offence of murder. In the meanwhile, the necessary material objects were sent for the chemical examination, and the certificate of the Chemical Examiner was obtained. The pellets recovered from the pocket of the accused and the gun and other materials recovered from his house, as well as the pellets found in the body of the deceased on post -mortem examination were sent through the Court to the Fire Arm Expert for examination. His reports were also obtained; and they are Ex. P -31 and P -32. The learned Magistrate committed the accused for trial to the Court of Session; and he was convicted and sentenced as stated above.
(3.) BOTH in the Committal Court and in the Court of Session, the accused denied the whole occurrence. Ex. P -34 is the statement of the accused in the Committal Court under Section 342 of the Criminal Procedure Code. He stated therein that he heard the sound of a gunshot, while he was sleeping in his house; that he walked towards the place where from the shot was heard, but did not go to that place; that the deceased and Pw. 1 had guns; that he heard people talking that the deceased and Pw. 1 shot doves and that one shot accidentally hit the deceased, and he died; and that the witnesses were giving false evidence due to enmity. He denied that the deceased and his brothers Pw. 1 and Pw.2 met the accused on that day in front of their house, and any exchange of words took place between him and the deceased. He admitted the recovery of the double -barreled gun, M.O. 1 and other objects from his house. He also admitted that there was enmity between him and the deceased and the members of his family; but he added that it was compromised. In his examination in the Court of Session, the accused stated that he had no idea about the incident that this was a false charge foisted against him by the father of the deceased and others due to enmity. He gave the go -by to the dove shooting story; and in other respects he stuck to his version in the Committal Court,;

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