Judgement

BHAGWATI J.: This Appeal with special leave is directed against a judgment of the High Court of Mysore reversing the acquittal of the appellant by the Sessions Judge, Bangalore on a charge under section 302, Indian Penal Code.

2. The appellant, accused No. 1 was charged that he, on the night of 9th March 1949, at about 10 p. m. in the village of Kodihalli, Kankanahalli Taluk, shot one Abdul Lateef Sab with a gun and caused his death and thus committed an offence under section 302, Indian Penal Code. Accused No. 2 was his son and accused No. 3 his son s friend and the charge against them was that they were present and actively participated in the commission of that offence and were thus guilty under section 302 read with section 34, Indian Penal Code.

The learned Sessions Judge acquitted all the accused being of the opinion that the prosecution evidence was too insufficient to base of conviction thereupon. The State of Mysore took an appeal to the High Court and the High Court reversed the acquittal of accused No. 1 and convicted him of the offence with which he had been charged but in view of his old age coupled with peculiar circumstances of the case inflicted upon him a punishment of transportation for life. The acquittal of the accused Nos. 2 and 3 was confirmed.

3. There was very little direct evidence against the accused No. 1 but the prosecution relied upon circumstantial evidence which, according to it., pointed inevitably to the conclusion that the offence had been committed by him.

These circumstances were that there was ill-will between the accused No. 1 and the deceased, that accused No.1 was seen by several disinterested witnesses at the time and the place of the incident, that immediately after the incident the accused No. 1 was seen running away from the spot, that he was absconding and did not make his appearance till three months later, that the deceased made a dying declaration though incomplete at about 11-45 p.m. the same day, about an hour and a half after the incident, that this dying declaration was corroborated by the evidence of P. W. 20 Range Gowds, P. Ws. 14, 15 and 16, that a rag, M. O. 5 which was said to be smelling of gun-power, was picked up near about the hedge close to the scene of the incident and that they all led to the conclusion that the deceased sustained an injury by a gun-shot and that shot was fired by the accused No. 1 that night.

4. The learned, Sessions Judge accepted the evidence in regard to the ill-will subsisting between the deceased and the accused No. 1 but was of the opinion that in cases of murder the motive for murder was in itself not sufficient though it may form one of the grounds.

The evidence of the witnesses was not felt by him to be conclusive enough to prove that the accused No. 1 must have shot the deceased and the dying declaration also was not considered by him as sufficient to base a conviction inasmuch as in his opinion that dying declaration had not been corroborated by any independent evidence. He was very much impressed by the fact that the gun itself which was alleged to have been used by the accused No. 1 was not traced, nor were any other articles used to shoot a beyond a small bit of cloth M. O. 5 said to have been smelling of gun-powder.

There was no evidence that the accused No.1 had ever touched a gun in his life-time or that he had the necessary skill, courage and capacity to shoot at the deceased from a distance of more than 4 to 6 feet behind a hedge and aim at him when he was moving on the road and thus shoot him accurately causing the injuries in question.

There was also the statement of the doctor who performed the post-mortem examination which showed that the injuries inflicted upon the person of the deceased proceeded from below upwards and in the absence of any evidence of a ballistic expert the learned Sessions Judge found it difficult to come to a conclusion that the accused No. 1 fired the shot from behind the hedge which was about three