SERAJE NARAYANA BHATTA Vs. STATE

JUDGEMENT

(1.) IN Sessions case No. 36 of 1947 in the Court of Session, South Kanara Division, there were four accused. Accused 1 was charged for an offence under Section 302, Penal Code. Accused 1 to 3 were charged for an offence under Section 201, Penal Code, and accused for an offence under Section 201 read with Section 109, Penal Code. The learned Sessions Judge acquitted accused 1 of the offence under Section 302 but convicted him of an offence under Section 326, Penal Code, and sentenced him to rigorous imprisonment for five years. He found accused 1 to 3 guilty under Section 201 and sentenced each of them to rigorous imprisonment for 18 months, the sentences on accused l to run concurrently. Accused 4 was acquitted. C. A. NO. 683 of 1947 is by accused 1 and 0. A. Nos. 627 of 1947 and 664 of 1947 are by accused 2 and 3 respectively. C. A. no, 91 of 1948 is by the Crown against the acquittal of accused 1 of the offence under Section 302, Penal Code.

(2.) WHEN these appeals first came on for hearing before Horwill and Mack JJ. an objection was taken on behalf of accused 1 that the trial was illegal because of a misjoinder of charges. It was contended that the offence under Section 201 was altogether independent of the offence under Section 302. The learned Judges thought that the case raised a point of considerable importance and that it was desirable that it should be disposed of by a Full Bench.

(3.) AS the objection raised relates to a misjoinder of charges it is necessary to state the charges as framed. They ran as follows: Firstly,?that you, accused 1 (Mambady Krishna Bhatta) on 18th December 1946 at about 7-80 p. m. at Padyana in Korepady village did commit murder by intentionally causing the death of Thyampa Shetty, son of Sankar Shetty of Korepady village, Puttui taluk, by beating him with an iron rod and thereby committed an offence punishable under Section 302, Penal Code, and within my cognizance. Secondly. ? That you, accused 1 to 3 at the said place and in the course of the same transaction during the later hours of the same night and the early hours of the following morning knowing or having reason to believe that the offence of murder has been committed by accused 1, caused the disappearance of the evidence of the commission of the said offence of murder by accused 1 by secretely cremating the body of the said Thyampa Shetty in Padyana on a hill, behind the house of the deceased, with intention of screening accused from legal punishment and thereby committed an offence punishable under Section 201, Penal Code, and within my cognizance. Thirdly That you, accused 4 on the said day, time and place and in the course of the same translation abetted the commission of the offence under Section 201, Penal Code, by accused 1 to 3 mentioned in charge 2 which was committed in consequence of your abetment and that you have thereby committed an offence punishable under Section 201, Penal Code, read with Section 109, Penal Code and within my cognisance. The case foe the prosecution on which the above charges were framed was shortly as follows. The deceased Thyampa Shetty was a cooly working in the areca gardens in Korapadi Tillage. He was living there with his wife and three children. Shortly before his death, he heard that accused 1 who is a Brahmin resident of the same village, had been complaining that his (the deceased's) children were stealing cocoanuts from accused l's garden. On the evening of the day of occurrence, the deceased was told about the complaint of accused l and the deceased is said to have remarked that accused 1 would not say such things unless he had seen the same personally if he was born of a true father. Accused 1 on hearing this went to the residence of the deceased at about 7-30 p. m, that night and asked the deceased as to what he had been saying. The deceased reiterated that accused 1 should not have been saying that the children were stealing cocoanuts from big garden unless he had seen the same with his own eyes if he had been born to a true father. Accused 1 saying that the reply was an insolent one, caught hold of the deceased and gave him two or three blows with an iron rod. The deceased dropped down and expired soon after. Subsequently, sometime after midnight, accused 1, 2 and 3 went to the house of the deceased and removed the body, accused 1 and 3 carrying the body and accused 2 following with a lantern. The body was cremated a short distance behind the house of the deceased.