( 1 ) THESE two appeals and the referred case arise out of the judgment dated 11-1-1988 of the Sessions Judge, Dharwad in Sessions Case No 79/85 on his file. ( 2 ) THEY arise in this way : babugouda alias Bapugouda son of balanagouda alias Balappagouda Patil of sutagatti village and Shankarappa s/o mahadevappa Yaliwal of Hirehonnalli village were accused Nos. 1 and 2 respectively in the said Sessions case and they will be hereinafter referred to as such. Accused No. 1 was tried for an offence punishable under Section 302 IPC and Section 25 of the Indian Arms Act. The charge against him was that on or about the 12th day of May 1985, at about 2 p. m. near the house of Kelgeri at hirehonnalli village he committed the murder of Arvinda gowda by intentionally causing his death by shooting him with a country pistol and that at that time he was in possession of the country pistol without a licence in contravention of section 3 of the Indian Arms Act. Accused No 2 was tried for an offence punishable under Sec. 302 IPC read with Sec. 109 IPC. The charge against him was that on the said date, time and place, he abetted Accused No. 1 10 commit the murder of Arvinda Gowda and the said offence was committed by accused No. 1 in consequence of his abetment. ( 3 ) BOTH the accused denied the commission of the said offences. P. Ws. 1 to 27 were examined and Exs. P. 1 to P 19 4 and M. Os. 1 to 14 were produced on behalf of the prosecution. Exs. D. 1 to d. 10 were got marked during the cross- examination of the prosecution witnesses. No defence evidence was adduced on behalf of the accused. ( 4 ) THE defence of both the accused was one of total denial. ( 5 ) ANALYSING the evidence carefully, the learned trial Judge held that the prosecution has failed to prove that accused no. No defence evidence was adduced on behalf of the accused. ( 4 ) THE defence of both the accused was one of total denial. ( 5 ) ANALYSING the evidence carefully, the learned trial Judge held that the prosecution has failed to prove that accused no. 2 had abetted the commission of the offence of murder of Arvinda Gowda and acquitted him of the said charge He also acquitted accused No. 1 although he was found in possession of the fire-arm and ammunition at the time of the incident without a valid licence in contravention of Section-3 of the Arms Act as there was no valid sanction to prosecute him fot the said offence on the date when the Committal Magistrate took cognizance of the said offence against him. But, he convicted accused No. 1 under section 302 IPC and sentenced him to be hanged by the neck till he is dead subject to the confirmation by this Court. The learned Sessions Judge has submitted the records and proceedings of the said cases to this Court for considering the question as to whether the sentence of death should be confirmed or not and that reference has been numbered as Referred case No. 1/88. Accused No. 1 has preferred Cr. A. No. 65/88 against the said conviction and sentence. The State has preferred Cr. A. No. 144/88 against the order of acquittal of accused No. 2. ( 6 ) AS all the three matters arise out of the same judgment, they were heard together and this judgment will dispose of all of them. ( 7 ) THE prosecution case may be briefly stated as follows: deceased Arvinda Gowda was the brother of Dr. Balachandra (P. W. 7) and vasantha Gowda (P. W. 16 ). Dr. Balachandra (P. W. 7) was working as Professor in Physiology in Karnataka Medical college, Hubli and was residing there. Deceased Arvinda Gowda and Vasantha gowda were staying in the village Hirehonnalli with their families attending to the cultivation of their lands of that village. Kiran (P. W. 5) and Bharathi (P. W. 6) who are the son and daughter respectively of deceased Arvinda Gowda were staying with Dr. Balachandra (P. W. 7) at Hubli for their education. Kiran (P. W. 5) was studying in the II year puc class and Bharathi (P. W. 6) was studying in the Vth class. Kiran (P. W. 5) and Bharathi (P. W. 6) who are the son and daughter respectively of deceased Arvinda Gowda were staying with Dr. Balachandra (P. W. 7) at Hubli for their education. Kiran (P. W. 5) was studying in the II year puc class and Bharathi (P. W. 6) was studying in the Vth class. Vasantha gowda (P. W. 16) and deceased Arvinda gowda who lived in Hirehonnalli village were taking active part in politics and were holding offices in the Co-operative institutions in their village and taluka. Deceased Arvinda Gowda was the Chairman of the Large Scale Multi-purpose cooperative society at Hirehonnalli (hereinafter referred to as the 'society') for about four years and Vasantha Gowda (P. W. 16) was its Chairman for the next four years. Accused No. 2 is also a resident of Hirehonnalli village and he too was taking active part in politics. For the election of Chairmanship of the society in 1979 there was a contest between deceased Arvinda Gowda and one sahadevappa Dhangowdar and both secured equal number of votes, then, the matter had been referred to accused no. 2, who suggested that deceased arvinda Gowda should be the Chairman for the first six months and Sahadevappa dhangowdar should be the Chairman for the next six months But, Arvinda Gowda who assumed the office as Chairman for the first six months, continued to be the chairman for the whole year and did not vacate the office after six months as suggested by accused No. 2 and on account of that, accused No. 2 was enraged against the deceased. ( 8 ) DURING 1980, the Society had been entrusted with the distribution of sugar and there were allegations of improper distribution. Accused-2 was suspected to be behind the allegations made against the deceased and p. W. 16. On account of the said allegations, it appears, deceased Arvinda gowda and Vasantha Gowda (P. W. 16) were arrested and detained in custody. Dr Balachandra (P. W. 7) filed a writ petition against the detention of his brothers in this Court and thereafter they were released. ( 9 ) IN about 1985, one Shankarappa son of Ningappa Kallappa Annigeri who was working in the house of accused No. 2 had been murdered in the pump house in the land of accused No. 2. Accused no 2 was saying that deceased Arvinda gowda was responsible for the said murder. ( 9 ) IN about 1985, one Shankarappa son of Ningappa Kallappa Annigeri who was working in the house of accused No. 2 had been murdered in the pump house in the land of accused No. 2. Accused no 2 was saying that deceased Arvinda gowda was responsible for the said murder. On account of the said reasons, accused No. 2 was on inimical terms with deceased Arvinda Gowda. ( 10 ) ACCUSED No. 1 is a native of sutagatti village in Bailhongal taluk and he was stranger to Hirehonnalli village. He had left Sutagatti village and was running a tea-shop on the station road near Horticultural office at Dharwad. Pandurang (P. W. 17) was working as his servant in the said tea-shop and he had seen accused No 2 coming on his (accused No. 2's) motor-cycle to the said tea- shop and talking with accused No. 1 and going away. ( 11 ) ABOUT 10 or 12 days prior to the incident, Shankarappa (P. W. 10) had seen accused No. 2 going on his motor-cycle with accused No. 1 on its pillion moving about in the village and going to Dharwad. At the time of the incident, there was summer vacation for the schools and colleges and so, Kiran (P. W. 5) and bharati (P. W. 6) had come to Hirehonnalli Sometime prior to the date of the incident, Dr. Balachandra (P. W. 7) had been operated upon for fissures and fistula and was convalescing in Hallikeri nursing Home at Hubli. ( 12 ) ON 12-5 85, deceased Arvinda gowda, went with his son Kiran (P. W. 5) and daughter Bharati (P. W. 6) and neice padmini, daughter of Vasantha Gowda (P W. 16) to Hubli by the morning bus to look up his brother Dr. Balachandra (P. W. 7) who had been admitted to Hallikeri Nursing Home. After seeing Dr. Balachandra (P. W. 7) in the said hospital, they went to the market and purchased two baskets of Mangoes and some flowers and proceeded to the KSRTC busstand at Hubli. They boarded the bus which left Hubli bus-stand at 12-45 p. m. or 1 p. m. to go back to Hirehonnalli village. The bus reached Hirehonnalli bus-stand at 2 p m. and deceased Arvinda gowda, Kiran (P W. 5) Bharathi (P. W. 6) and Padmini got down from the bus with two baskets of Mangoes. They boarded the bus which left Hubli bus-stand at 12-45 p. m. or 1 p. m. to go back to Hirehonnalli village. The bus reached Hirehonnalli bus-stand at 2 p m. and deceased Arvinda gowda, Kiran (P W. 5) Bharathi (P. W. 6) and Padmini got down from the bus with two baskets of Mangoes. At that time, basappa alias Basavanneppa (P. W. 9) and shankarappa (P. W. 10) were working in the land of the deceased near the bus-stand. On seeing them, deceased arvinda Gowda waived his hand and called Basappa alias Basavanneppa (P. W. 9 ). Accordingly, P. W. 9 went near the bus and carried two baskets of Mangoes on his head. Then, all of them started going towards the house of the deceased. At that time, accused No. 1 who was eating curds and beaten rice ^jj^odo ejote1*,) in the hotel of the father of sudhakar (P. W, 11) in the bus-stand, left of eating the same, paid the charges to p. W. 11 and went away in a hutry. Shankarappa (P. W. 10) who was wotking in the land along with P. W. 9 started proceeding towards his house for food as it was time for food. When the deceased and P. Ws. 5 and 6 were near the house of Kelgeri a Hirehonnalli, P. W 9 was ahead of them. At that time, P. W. 10 noticed a stranger sporting a beard and moustache wearing a Nehru shirt and a dhoti following them from behind and when they were near Kelgeri's house, the said stranger shot at Arvinda gowda with a country pistol Then, deceased Arvinda Gowda said Ayyo i am dead" and was about to fall down when P. Ws. 5 and 9 held him. P. W. 5 found that his father Arvinda gowda had sustained a gun-shot injury on the lower part of the back and put his hand on the hole with a view to prevent bleeding. At that time, Basavanneppa (P. W. 13) was sitting in front of the Panchayat office nearby and Shankarappa (P. W. 14) was sitting in front of the shop of Muktumsaheb nearby and they were attracted by the sound of gun-shot. They saw accused No. 1 running away and p. Ws. 9, 10, 13 and 14 chased him. At that time, Basavanneppa (P. W. 13) was sitting in front of the Panchayat office nearby and Shankarappa (P. W. 14) was sitting in front of the shop of Muktumsaheb nearby and they were attracted by the sound of gun-shot. They saw accused No. 1 running away and p. Ws. 9, 10, 13 and 14 chased him. Accused No. 1 ran into the backyard of the house occupied by the Gramasevak and hid himself in the cowdung cake's stack. The persons chasing him surrounded and shouted at him to come out. Accused No. 1 with a view to terrorise them, fired a shot in the air and started running from that place by jumping across some fences and ultimately he got into the shed attached to the house of accused no. , 2 through a gap between the roof and top-most plank and hid himself in the hay in it. But, the crowd of people who collected there, pulled out the planks of the shed and found accused No 1 hiding himself in the heap of hay and brought him out. At that time, he was found to be having with him the country pistol and two live 12 bore-cartridges. it appears, by then, the barrel of the pistol has become loose and got separated from the action block (M. O. 6 ). One empty case of a caitridge without the base got stuck up in the barrel (MO. 7 ). In the meantime, Arvinda Gowda was taken in a car by his nephew Sharatchandra (P W. 15) to K M. C. Hospital, Hubli at about 2-4g p. m. P. W. 5 who remained behind, went near the house of accused No. 2 where accused No. 1 had been detained by the crowd in which P. Ws. 9, 10, 13 and 14 were also there. Accused No. 1 told his name as Bapugowda Balanagouda of Sutagatti village to P. W. 5 on being asked by him. Soon after the incident, the post-master of Hirehonnalli gave a message over the telephone to the kalaghatgi police station at about 2-30 p. m. on that day Basavantappa, PSI (P. W. 26) on receiving the said phone message to the effect that somebody had shot at Arvinda Gowda in the village made an entry to that efftct in the Station house Dairy and went to Hirehonnalli village which is about 8 Kms. from Kalghatagi on his motor-cycle. His staff also followed him in a private vehicle. On reaching Hirehonnalli he found accused no. 1 having been detained with a country pistol and cartridges. He took him into his custody. He secured two panchas one of whom was Shivalingappa (P. W. 4) and seized a white sartridge (M. O. 4), a red cartridge (M. O. 5), action block (M. O. 6) of country pistol and its barrel (M. O. 7) which were held by accused No. 1 and the shirt (M. O. 8) and the dhoti (M. O. 9) worn by accused No. 1 under ex. P. 4. He then went with accused No. 1 to the village 'chavadi' and secured kiran (P. W. 5) who gave his complaint as per Ex. P. 10. The PSI (P. W. 26) went along with accused No. 1 and his staff to kalghatgi police station and registered a case in Crime No. 56/85 under Section 307 IPC and under Section 25 (1) of the indian Arms Act and sent Ex. P. 10 and the FIR (Ex. P. 15) to the J. M. F. C. II court, Dharwad and express reports to his superiors. Thereafter, the PSI (P. W. 26) went to Hirehonnalli village and inspected the scene of offence in the presence of panchayatdars including shivalingappa (P. W. 4) and seized the empty cartridge (M. O. 10) lying there under Ex. P. 5. Then, P. W. 26 proceeded to the K. M. C. Hospital, Hubli, to make enquiries about the condition of Arvinda gowda. By then Dr. Anant (P. W. 24) had admitted Arvinda Gowda to the emergency surgical ward and had treated him and had made a note in the case sheet (Ex. P. 14 ). Subsequently, Arvinda Gowda was treated by Dr. Bhavani Shankar (P. W. 25) and Dr. A. S. Vijayakant (P. W. 20 ). Between 0. 30 a. m. and 1 a. m. on 13-5-85 p. W. 26 seized the bush-shirt (M. O. 13) and the pant (M. O. 14) from the person of Arvinda Gowda under Ex. P. 9. A corresponding hole caused due to gunshot injury was found on the bush-shirt (M 0. 13) and both M. Os. 13 and 14 were bloodstained. They were packed and sealed. ( 13 ) DR. P. 9. A corresponding hole caused due to gunshot injury was found on the bush-shirt (M 0. 13) and both M. Os. 13 and 14 were bloodstained. They were packed and sealed. ( 13 ) DR. Balachandra (P. W. 7) and vasantha Gowda (P. W. 16) who had been to Nargund to attend the marriage of his brother-in-law, went to K. M. C. hospital hubli and saw their brother. ( 14 ) ON 13-5-85 PSI (P. W. 26) recorded the statement of Arvinda Gowda and a portion of it (Ex. P. 19) has been tendered in evidence, as dying declaration. ( 15 ) ARVINDA Gowda, ultimately, died on the morning of 14-5-85 at about 8-05 a. m. Information about it was given to vidyanagar police station, Hubli through a memo by the hospital authorities. The psi of Vidyanagar police station (P. W. 21) on receipt of that information, went to K. M. C. hospital and held inquest on the dead body of Arvinda Gowda as per Ex. P. 3 in the presence of Vijaya Kumar (P. W. 3) and another and handed over the dead body for post mortem examination to P. C. 1026. ( 16 ) ON 14-5-85, between 12-30 p. m. and 2-30 p. m. Dr. Bhaskar (P. W. 8) conducted the post mortem examination on the dead body of Arvinda Gowda. He found 30 pellets and a wad in the body and collected them in the bottle (M O. 11) and sealed it. He gave the post mortem report (Ex P. 11 ). According to him, arvinda Gowda had died due to haemorrhage from penetrating injury of the abdomen caused by pellets discharged from a smooth-bored fire arm weapon. P. W. 8 handed over M. O. 11 to the police. The under-wear (M. O. 3) and the bandaged cloth found on the dead body of Arvinda Gowda were seized by P. W. 21 on being produced by P. C. 1026 under ex P. 2 in the presence of P. W. 2 and another. ( 17 ) AT 10 a. m. on 10-5-85 on coming to know about the death of Arvinda gowda, P. W. 26 changed the offence to one under Section 302 IPC under intimation to the jurisdictional Magistrate. There he received information that accused no. ( 17 ) AT 10 a. m. on 10-5-85 on coming to know about the death of Arvinda gowda, P. W. 26 changed the offence to one under Section 302 IPC under intimation to the jurisdictional Magistrate. There he received information that accused no. 2 was near Banagitti Gudihal cross on Dharwad-Kalaghatagi road, went there and arrested accused No 2 at about 4 p. m. on that day. He did not find anything incriminating on the person of accused No. 2. Further investigation was taken up by the CPI (P. W. 27), ( 18 ) ON 15-6-85 P. W. 27 searched the house of accused No. 2 in the presence of P. W. 4 and another and found 3 red coloured live cartridges, (M. O. 1), 3 white coloured live cartridges (M. O. 2), SBBL gun (M. O. 12) and the licence (Ex. P. 16) in the name of accused No. 2 for possessing the gun and seized them under Ex. P. 8. ( 19 ) ON 10 7-1985, after obtaining necessary permission from the J. M F C , he opened the seals of the packets containing cartridges in the presence of panchayatdars and removed one white cartridge and one red cartridge and repacked them and sealed them separately under Ex. P. 1 for the purpose of sending them to the Ballestic expert. ( 20 ) P. W. 27 send the action block of the pistol (M. O. 6), barrel (M. O. 7) and the cartridges and bloodstained clothes to the Forensic Laboratory at Bangalore. The Ballestic Expert (P. W. 18) gave his report (Ex. P. 12) to the effect that the barrel (M. O. 7) bore signs of discharge as the presence of smokeless gun powder residue and lead were detected in U; that the action block (M. O. 5) was not in working order; that the bairel (M. O. 7) r. 14 is an integral part of the action block (M. O. 6); that the barrel (M 0. 7) can accommodate 12-bore cartridges"? 7) can accommodate 12-bore cartridges"? that the presence of tattooing marks were found around the hole on the back side of the shirt (M. O. 13) and so the approximate range of firing was within six feet from the muzzle end of the country pistol that the hole in the shirt was caused due to the passage of lead shorts and that it is not possible to opine as to whether the cartridge case in M. O. 10 had been fired from the parts of the country pistol made up of M. O. s. 6 and 7 since the same was not in working condition. ( 21 ) ON 12-8-1985 P. W. 27 after completing the investigation submitted the charge-sheet against both the accused for the said offences. ( 22 ) THAT deceased Arvinda Gowda died due to a gun-shot injury admits of nodoubt in view of the material on record and the said fact is no Ionger in dispute before us. Dr. Anant (P. W. 24) has stated that he examined Arvinda Gowda on 12-5-85 at 2. 40 pm in the emergency surgical ward of the Karnataka Medical college Hospital, Hubli, and noted his condition in the case-sheet (Ex P. 14 ). Dr. T. P. Bhavani Shankar (P. W. 25) on receipt of a call from the emergency surgical ward at about 3-30 p. m. on that day went there and examined Arvinda Gowda. He found an injury in the back of Arvinda gowda with a wound of entry at para- vertebrae region and there was bleeding still. He was being treated for that injury. Dr. A. S. Vijayakant (P. W. 20), who was on leave on 12-5-85 examined arvinda Gowda on 13-5-85 and found that his condition was not fit to undertake any surgery. On 14-585 at about 8. 05 a m. Arvinda Gowda died in the k. M C. Hospital. Then inquest was held as per Ex. P. 3 in the presence of P. W. 3. Dr. Bhaskar (P. W. 8) conducted the postmortem examination over the dead body of Arvinda Gowda on 14-5-85 between 12-30 and 2-30 p. m. and noticed the following external injury: an irregularly circular lacerated penetrating wound 1. 5 cms. in diameter, surrounded by abrasion 1 to 1. 5 cms. P. 3 in the presence of P. W. 3. Dr. Bhaskar (P. W. 8) conducted the postmortem examination over the dead body of Arvinda Gowda on 14-5-85 between 12-30 and 2-30 p. m. and noticed the following external injury: an irregularly circular lacerated penetrating wound 1. 5 cms. in diameter, surrounded by abrasion 1 to 1. 5 cms. wide on the right side of the lower part of the back at the level of the 5th lumbar vertebrae and 2 cms to the right of the mid-line. On dissection he found the following internal injuries:1) The right transverse processess of 4th and 5th lumbar veitebrae were fractured. 2) The peritonial cavity was congested and contained about one litre of blood mixed with intestinal contents. In the peritonial cavity, 22 pellets and one wad, was found. There was an irregular circular tear about 3 cm in diameter in the area near ascending colon and its mesocolon. Six pellets were present in ilio pscas muscle. The stomach contained about 50 ml. of altered blood and bile ; 3) Diodinal ulcer was present. There were two holes about 0. 5 cms. in diameter in the terminal ileum, from the end. The mesentery was contused. Two pellets were inside. The intestines contained altered blood and bile. 4) The liver was pale. There was an upward directed tear 5 cms long of the right lobe of liver 5) The kidneys were pale. There was bleeding around the lower pole of the right kidney. According to him, Arvinda Gowda had died due to haemorrhage from penetrating injury of the abdomen caused by pellets discharged from smooth bored fire arm weapon. Ex. P. 11 is his post mortem examination report. On seeing Ex. P. 12, the report of the Ballestic Expert, he says that it shows tattooing marks were found around the hole on the backside of the shirt of Arvinda Gowda. He has stated that the fire arm had been fired from adance of about 1 metre from the victim. The fact that there was only one entry also indicated that the weapon should have been fired from within a range of one , metre according to him. He recovered 30 pellets and the wad from the body of arvinda Gowda, and preserved them in a bottle, and sent it to the I. O. for sending the same to the Ballestic expert. He recovered 30 pellets and the wad from the body of arvinda Gowda, and preserved them in a bottle, and sent it to the I. O. for sending the same to the Ballestic expert. There is nothing elicited in the cross-examination of P. W. 8 which would cast doubt on his evidence regarding the injuries sustained by the deceased and the cause of death stated by him. ( 23 ) ACCORDING to the prosecution, the incident took place at about 2 p. m. On coming to know about the same, sharatchandra (P. W. 15) secured a car at the bus-stand of Hirehonnalli village and in that car he removed the injured Arvinda gowda to K M. C. Hospital, Hubli. Dr. Anant (P W. 24) has stated that he admitted Arvinda Gowda in the Emergency Surgical word of K. M. C. Hospital, hubli, at about 2p. m. making allowance for the time required to cover the distance of about 25 Kms of Hirehonnalli to Hubli in the car it is probable that the incident must have taken place at about 2 p. m. as stated by the prosecution and the eyewitnesses. ( 24 ) ACCORDING to the prosecution, the incident took place near the house of kelgeri at Horehonnalli on the road leading to the house of the deceased. The prosecution witnesses to the incident, namely, P. Ws. 5, 6, 9, 10, 13 and 14 have stated so. The learned Advocate for the accused urged that as no bloodstains were found on the spot, it is doubtful whether at all the incident took place there. But, P. W. 5 has stated that immediately after the deceased who shot at he held him and put his hand on the wound to prevent the bleeding and thereafter they bandaged the wound and so no blood fell on the spot. Regard being had to the nature of the injury, there must have been internal bleeding. That fact is also evident from the medical evidence of Dr. Bhaskar (P. W. 8) who conducted the post-mortem examination. The finding of the empty cartridge (M 0. 10) as stated by P Ws. 4 and 26 and as noted in the panchanama of the scene of offence (Ex. P. 5) probabilises that the incident must have taken place there. It is also not suggested by the defence that the incident took place elsewhere. The finding of the empty cartridge (M 0. 10) as stated by P Ws. 4 and 26 and as noted in the panchanama of the scene of offence (Ex. P. 5) probabilises that the incident must have taken place there. It is also not suggested by the defence that the incident took place elsewhere. Hence, we have no hesitation in holding that the incident took place on the road near the house of Kelgeri leading to the house of the deceased. ( 25 ) REGARD being had to the nature of the injuries caused to the deceased, the dangerous fire arm used for causing the same, the intention of the assailant of Arvinda Gowda must have been to cause his death and he who caused the injuries to Arvinda Gowda would be guilty of an offence punishable under section 302 IPC. ( 26 ) THE first point that arises for determination is whether on the evidence produced by the prosecution it can be said that accused No. 2 abetted the commission of murder of Arvinda Gowda by accused No. 1 and that accused No. 1 committed the said offence in consequence of such abetment. in the absence of direct evidence to prove the same, the prosecution mainly rely on the evidence regarding the following circumstances ;1) that there was ill-will between accused No. 2 and the deceased ; 2) that he was seen moving with accused No. 1 on his motor-cycle ; 3) that the deceased made a dying declaration as per Ex. P. 19 implicating accused No. 2. 4) that accused No. 2 was holding a licence to possess the SBBL gun (M. O. 2) and that he had purchased five cartridges on 7-5-85 and the cartridges (M. Os. 4 and 5) found with accused No. 1 were similar to the cartridges found in the house of accused No. 2 and 5) that accused No. 1 after the incident ran towards the cattle shed of accused No. 2 situate by the side of his house and hid himself there. So, it has to be seen whether the said circumstances have been fully established by the prosecution and whether the established circumstances are consistent and consistent only with the guilt of the accused and wholly inconsistent with his innocence. So, it has to be seen whether the said circumstances have been fully established by the prosecution and whether the established circumstances are consistent and consistent only with the guilt of the accused and wholly inconsistent with his innocence. ( 27 ) CIRCUMSTANCE No. 1 : Motive : the first reason for the il!-will between the deceased and accused No. 2 given by the prosecution is that during the election to the office of the Chairman of the Society of the said village deceased arvinda Gowda and one Sahadevappa dhangowdar had polled equal votes and when that matter was referred to accused no. 2, accused No. 2 suggested that arvinda Gowda should be the Chairman for the first six months and Sahadevappa dhangowdar should be the Chairman for the next six months and inspite of that, arvinda Gowda did not give up the office after the expiry of his six months term and that had infuriated accused No. 2. P Ws. 5, 7, 10 and 16 have spoken about but, P. W 16 in his cross-examination had admitted that in the election to the post of the Chairman, Arvinda Gowda had not contested and the contest was bet- ween him and Sahadevappa Dhangowdar. So, his evidence in examination-in-chief and the evidence of the other said witnesses that there was contest between deceased Arvinda Gowda and Sahadevappa Dhangowdar in 1979 and that they had polled equal votes and accused No. 2 had intervened must not be true. When the deceased had not at all contested to the post of the Chairman of the Society along with Sahadevappa Dhangowdar, there was no reason for accused No. 2 to bear grude against the deceased. The second reason for the ill-will etween them according to the prosecuon was that accused No 2 by himself or through others had sent false complaints against P. W. 16 and deceased Arvinda gowda regarding improper distribution of sugar of the Society and due to that P. W. 18 and Arvinda Gowda had been arrested and detained. The prosecution has not produced the complaint alleged to have beerfiled by accused No. 2 or by somebody at his instance. P. W. 16 has stated that on account of complaint by accused no. The prosecution has not produced the complaint alleged to have beerfiled by accused No. 2 or by somebody at his instance. P. W. 16 has stated that on account of complaint by accused no. 2 that he was not properly distributing sugar and that Arvinda Gowda was also involved in it, himself and Arvinda gowda had been arrested and detained and they were subsequently released in pursuance of the order of the High Court. In the absence of the complaint, it cannot be said that accused No. 2 had given the said complaint or that somebody else had given the complaint at his instance. The prosecution has also not examined the persons who had filed the complaints to say that they had filed such complaints at the instance of accused No 2. Hence, se wee no substance in this ground also. The third reason alleged about the ill-will between the two is that in 1985 one Shankarappa Annigeri who had been working as servant of accused No. 2 had been murdered in the pump-house in the iand of accused No. 2 and that accused no. 2 had been saying that Arvinda gowda was responsible for that murder. On this aspect, P. W. 5 in his crossexamination has clearly admitted that he had not whispered about it either in his complaint or in his statement made before the police that Shivalingappa brother of accused No. 2 had threatened him on that court. He has also admitted that except hearing that Shankarappa Annigeri had been murdered in the pump-house of accused No. 2 he has no personal knowledge of any of the details of the incident. Arvinda Gowda was not at all charge- sheeted in connection with the murder of said Shankarappa Annigeri. Dr. Bala- chandra (P. W. 7) has admitted that he had heard that police had filed a case alleging Shankarappa Annigeri had been murdered by his brothers because of land dispute. Even the evidence of Vasantha gowda (P. W. 16) is also vague in this regard. Moreover, Vasantha gowda (P. W. 16) has stated in his statement before the police as per Ex. D. 10 to the effect that in the last Loksabha elections arvinda Gowda and accused No 2 had canvassed for the Cong (I) party. This shows that there must not have been any ill-will between the two as alleged by the prosecution. Moreover, Vasantha gowda (P. W. 16) has stated in his statement before the police as per Ex. D. 10 to the effect that in the last Loksabha elections arvinda Gowda and accused No 2 had canvassed for the Cong (I) party. This shows that there must not have been any ill-will between the two as alleged by the prosecution. It is also significant to note that there was no whisper against accused No. 2 in the complaint (Ex P. 10) filed by the son of the deceased (P. W. 5) immediately after the incident. That shows that some crude attempt has been made by the prosecution to implicate accused No. 2 later, as observed by the learned trial Judge. ( 28 ) CIRCUMSTANCE No. 2 Regarding movements of the accused : pandurang (P. W. 17) was working in the tea-shop on the station road at Dharwad of accused No. 1. He has stated that accused No. 2 used to visit that teashop and meet accused No. 1 and that he was going to the tea-shop on his motor-cycle. The statement of this witness was recorded by P. W. 27 on 4-7 85 ie. , about 1 months after the incident and no explanation is offered by the prosecution for the delay in recording his statement. Hence, the said witness must be a got up witness and it would be unsafe to rely on his said testimony in view of the decision in Bhagawan v. State of M. P. ( AIR 1980 SC 1750 ). Moreover, even assuming that his ev'dence is true, it would not lead the prosecution any further as there is nothing unnttural in accused No. 2 visiting the tea-shop for taking tea. Shankarappa (P W. 10) has stated that about 10 or 12 days prior to the incident he had seen accused No. 2 moving in the company of accused No. 1 on his motor cycle at Hirehonnalli and going towards Dharwad and returning to Hirehonnalli and that he had told about it to vasantha Gowda (P. W. 16 ). P. W. 16 has supported him by stating that P. W. 10 had told him about it. P. W. 16 has supported him by stating that P. W. 10 had told him about it. On coming to know about it, P. W. 16 would have naturally filed a complaint to the police if he apprehended danger to the life of his brother and if he had asked him to be careful after hearing from P. W. 10. It is also improbable that if accused No 2 had thought of getting the deceased murdered by hiring accused No. 1 he would openly move with him in the village as stated by p. W. 10. Moreover, P. W. 10 would have been the first person to declare immediately, after accused No. 1 was caught by himself and others, that he had seen him moving along with accused No. 2. He would not have failed to fell about it to p. W. 5 who is the son of the deceased and P. W. 5 would not have failed to mention about it in his complaint- (Ex P. 10 ). This shows that the evidence of p. W. 10 must not be true. It is also significant to note that P. W. 10 did not tell about his seeing accused No. 1 moving with accused No. 2 when accused no. 1 was handed over to the PSI (P. W. 26) In the remand application filed by p W. 26 before the J. M. F. C. on 13-5-85 it is significant to note that he has not mentioned about the hand of accused No. 2 in the murder of Arvinda Gowda although he had recorded the statement of p. W. 10 and others. This circumstance also shows that the dying declaration- (Ex. P. 19) of Arvinda Gowda also must not have been recorded by P. W. 26 on 13-5-85 at about 7 a. m. because he would not have failed to mention about it in the remand application filed by him at 6 p. m. on 13-5-85. Hence, the learned trial judge was justified in rejecting the evidence of P. W. 10 regarding the movements of accused No. 2 with accused no. 1. ( 29 ) CIRCUMSTANCE No. 3 : Dying declaration : the dying declaration (Ex. P. 19) is alleged to have been recorded by P W. 26 at 7 a. m. on 13-5-85. Hence, the learned trial judge was justified in rejecting the evidence of P. W. 10 regarding the movements of accused No. 2 with accused no. 1. ( 29 ) CIRCUMSTANCE No. 3 : Dying declaration : the dying declaration (Ex. P. 19) is alleged to have been recorded by P W. 26 at 7 a. m. on 13-5-85. If it had been recorded at that time, then, he would not have failed to mention it in the remand application filed before the Magistrate at 6 a m on 13-5-85 and he would not have failed to mention in it that accused No. 2 had a hand in the commission of the murder of the deceased. ( 30 ) SHARATCHANDRA (P. W. 15) who is the son of the brother of the deceased and who carried his uncle in the car to k. M C. Hospital, Hubli, has stated as per ex. D. 18 in his statement before the I. O. that his uncle Arvinda Gowda was not in a condition to speak then. Dr. Balachandra (P. W. 7) who visited his brother at 8 p. m. on 12-5-85 has stated as per ex D. 1 in his statement before the police to the effect that Arvinda Gowda was not in a condition to speak. Vasantha gowda (P. W. 16; who went to K M. C. Hospital, Hubli at about 10 p. m. to see his brother, has stated that Arvinda gowda told him that accused No. 2 got him shot at by his wellwisher Bapugowda and took revenge. But, P. W. 16 has not stated so in his statement recorded by p. W. 26. He has also admitted in his statement before the police that on going to the hospital he found his brother lying with injuries with bandage and that he was not in a condition to speak. In the statement there is no certificate by any doctor that deceased was in a fit condition to make the statement. The deceased has not signed the said statement and there is no guarantee that it is the statement of the deceased. At Hubli, magistrates were available and no reason is given by the prosecution as to why the magistrate was not secured for recording his dying declaration. The deceased has not signed the said statement and there is no guarantee that it is the statement of the deceased. At Hubli, magistrates were available and no reason is given by the prosecution as to why the magistrate was not secured for recording his dying declaration. The deceased did not know accused No. 1 and so, he could not have given the name of accused No. 1 before P. W. 26. But, Ex. P. 19 shows that he gave the name of accused No. 1. in view of the said reasons, we are not satisfied that Ex. P. 19 is the dying declaration of the deceased and it appears to be a got up statement by P. W. 26. Therefore, the learned trial Judge was justified in discarding Ex. P. 19. ( 31 ) CIRCUMSTANCE No. 4: nodoubt, P. W. 27 has stated that he seized three red coloured live cartridges 'm. O. 1), three white coloured live cartridges (M. O. 2) and the SBBL gun (M. O. 5) under Ex. P. 8 which has been attested by P. W. 4. The gun licence (Ex. P. 16) which was also seized shows that accused no. 2 had a licence to possess M. O. 12 and that it was valid upto 31-12-85. The endorsement on Ex. P. 16 shows that accused No. 2 had purchased five cartridges on 7-5 85. But, the fact that six cartridges were found in his house shows that he must not have supplied four cartridges to accused No. 1. Moreover, there is no evidence to show that it was accused No. 2 who had given the cartridges (M. Os 4 and 5) and the two cartridges which were fired. Merely because the cartridges (M. Os. 4 and 5) are similar to m Os. 1 and 2, it cannot be said that accused No. 2 had supplied them to accused No. 2. ( 32 ) CIRCUMSTNCE No. 5: admittedly, accused No. 1 had entered the backyard of the house of -Gramasevak' before running towards the shed which is by the side of the house of accused No. 2 and hiding himself there. This only shows that accused No. 1 finding that the crowd was close on his heels to catch him was trying to escape by entering into any place that was available. This only shows that accused No. 1 finding that the crowd was close on his heels to catch him was trying to escape by entering into any place that was available. Hence, merely because accused No. 2 happened to enter the shed which is by the side of the house of accused No. 2 and hid himself there, it cannot be said that accused No. 2 had abetted accused no. 1. Therefore, we are of the view that the circumstances against accused no. 2 have not been fully established by the prosecution and they are not consistent and consistent only with the guilt of the accused and wholly inconsistent with his innocence. If that is so, the acquittal of accused No. 2 is proper. ( 33 ) THE next point that arises for determination is whether the prosecution has establiseed beyond all reasonable doubt that it is accused No. 1 who shot at Arvinda Gowda and caused the injury due to which he died subsequently. In order to prove the same, the prosecution lely on the direct evidence of P. Ws. 5, 6, 9 and 10 and the evidence regarding the following circumstances :a) that the person who shot at arvinda Gowda was sporting a beard and moustache and was wearing Nehru shirt and Dhoti and he started running away with the pistol in his hand ; b) that P Ws. 9,10,13,14 and other villagers chased him upto the backyard of the house of 'gramsevak' where he entered and hid himself in the cowdung stack. c) that he fired a shot in the air to scare away the persons who were pelting stones at the cowdung stack in which he was hiding d) that he started running through the backyards and jumping fences and ultimately got into the shed by the side of the house of accused No. 2 through the opening in between the roof and the plank ; e) that the persons chasing him removed the planks and found him hiding in the hay stored in it and caught him; f) that the accused was holding the action block of the country pistol (M. O. 6) and its barrel (M. O. 7), white coloured live cartridge (M 0. 4) and the red coloured live cartride (M 0. 4) and the red coloured live cartride (M 0. 5) and they handed him over to the PSI (P W. 26) who went there on receiving phone message from the post-master about the firing incident in the village ; g) that M. Os. 4 to 9 were seized from the person of accused No. 1 under ex. P. 4 in the presence of P. W. 4 and another by P. W. 26 after taking him into custody; and h) that barrel (M. O. 7) was the integral part of the action block and both of them together formed a country pistol according to the Ballestic expert (P W. 18) and he also noticed signs of recent discharge from the barrel and the empty cartridge case stuck up in it. ( 34 ) BEFORE dealing with the evidence, it would be useful to bear in mind the circumstances under which the complaint (Ex. P. 10) came into existence. P,w. 26 was the PSI of Kalghatgi police station then. Kalghatgi is about 8 Kms away from Hirehonnalli village where the incident took place. P. W 26 has stated that on 12-5-85 at about 2. 30 p. m. he received a phone message from the postmaster of hirehonnalli and was told that some person had shot at Arvinda Gowda there; that he made an entry regarding the same in the Station House Diary and then proceeded on his motor bicycle to hirehonnalli; that his staff also proceeded to Hirehonnalli in a private vehicle and that when he went to Hirehonnalli, p. W. 5 and others had apprehended accused No. 1 near the house of accused No. 2; that he apprehended him at about 3-15 p. m ; that at that time accused No. 1 was having a country pistol and two cartridges in his hands; that he secured panchas, one of whom was P W. 4 and in their presence, searched the person of accused No. 1 and seized M. Os. 4, to 9 under Ex. P. 4 and that thereafter he recorded the complaint of P. W 5 as per ex. P. 10. 4, to 9 under Ex. P. 4 and that thereafter he recorded the complaint of P. W 5 as per ex. P. 10. ( 35 ) THE learned counsel for the accused urged that as the prosecution has not examined the post-master of hirehonnalli to show that he had phoned up the police station and conveyed the message of shooting of Arvinda Gowda in the village and as the Station House diary has not been produced, the said evidence of P. S. I. (P. W. 26) cannot be accepted as true. !t is true that the prosecution has not examined the postmaster. The prosecution also has not produced the Station House Dairy containing the entry made by the PSI regarding the receipt of the phone message. But, at our request, the learned State public Prosecutor secured the Station house Diary and made it available to us. We perused it and found that an entry had been made regarding the same. The learned Advocate for the accused also saw it. That apart, there is no reason to disbelieve the testimony of the PSI (P. W. 26) regarding the same regard being had to the facts and circumstances of the case. The PSI, after going to the village, arrested accused No. 1 who had been detained by the crowd in the village, seized M. Os. 4 to 9 from his person under ex. P. 4 and thereafter recorded the complaint (Ex. P. 10) of P. W 5. Therefore, it is clear that he had started investigation before recording the complaint (Ex. P. 10) and so, it would be a statement of p. W. 5 recorded during investigation and it would he hit by Section 162 Cr. P. C. Even if it is left out of consideration, the other evidence adduced by the prosecution against accused No. 1 would be sufficient to bring home the guilt to him. ( 36 ) P Ws. 5, 6, 9 and 10 have given evidence in terms of the prosecution case as stated above. P. Ws. 5 and 6 are the son and daughter of the deceased respectively. P. Ws. 9 and 10 must be working as servants in the agricultural establishment of the deceased in view of their previous statements-Exs. D. 5 and d. 6 respectively. Hence, it can be said that they are interested in the deceased. P. Ws. 5 and 6 are the son and daughter of the deceased respectively. P. Ws. 9 and 10 must be working as servants in the agricultural establishment of the deceased in view of their previous statements-Exs. D. 5 and d. 6 respectively. Hence, it can be said that they are interested in the deceased. But, that by itself is no ground to discard their evidence but the court has ro scrutinise their evidence with utmost care and caution. ( 37 ) THE learned counsel for the accused urged that the evidence of P. Ws. 5 and 6 that they travelled along with the deceased from Hubli to the village in that bus ; that they got down from the bus and that they were proceeding to their house cannot be accepted as true because of the fact that the prosecution has not seized the bus tickets from them ; that no passenger in the bus has been examined to support their version and that the conductor and driver of the said bus have also not been examined by the prosecution. ( 38 ) NODOUBT, it would have been better if the prosecution had seized the bus tickets from P. Ws. 5 and 6 and had examined the passengers in the bus or the conductor and driver of the bus. According to P Ws 5 and 6 they had accompanied the deceased along with padmini to Hubli to see their uncle Dr. Balachandra who had been operated upon for fissures and fistula and who was undergoing treatement in Hallikeri nurshing Home. P. W. 7 has stated that deceased, his daughter, and the son and daughter of the deceased had been to the nursing Home on 12-5-85 at about 10 a. m. to look him up. The said evidence of P. W. 7 has not been challenged in his cross-examination. It was during May and so it is probable that schools and colleges of P. Ws. 5 and 6 must have been closed then and ihey must have gone to hirehonnalli as stated by them. After seeing, P. W. 7, when the deceased was returning, P. Ws. 5 and 6 and Padmini must have accompanied him to the village as stated by them. Hence, we see no force in the said contention of the learned counsel for accused No. 1. After seeing, P. W. 7, when the deceased was returning, P. Ws. 5 and 6 and Padmini must have accompanied him to the village as stated by them. Hence, we see no force in the said contention of the learned counsel for accused No. 1. ( 39 ) THE learned Advocate for accused No. 1 urged that as no mango baskets have been seized from the spot, P. W. 9 must not have accompanied the deceased carrying mango baskets as stated by him. He also urged that P. W. 10 could have gone by another route to his house and he had no reason to be present near the scene. P. Ws. 9 and 10 were working in the field of the deceased situate near the bus-stand. Both of them have stated that at about 2 p. m. on that day, P Ws. 5, 6 and deceased got down from the bus that the deceased signalled to p. W. 9 to go over there by waiving his hand and that P W. 9 went there and he was proceeding with the mango baskets on his head ahead of deceased, P. Ws. 5, 6 and padmini. P. Ws. 5 and 6 have also stated that the deceased had purchased two mango baskets and flowers at Rubli and after getting down from the bus at Hirehonnalli he called P. W. 9 and P. W. 9 was carrying the mango baskets. According to them, immediately after the incident, P. W. 9 dropped down the mango baskets on the scene and after holding the deceased for some time, he started chasing accused no. 1. Neither the prosecution nor the defence has questioned the said witnesses as to what happened to mango baskets after the incident. The incident look place at about 2 or 2-30 p. m. The panchanama of the scene of offence was drawn up at about 5 or 5-30 p. m. on that day. So, the possibility of somebody removing the said mango baskets from the spot cannot be excluded Hence, because mango baskets are not seized, their evidence cannot be disbelieved, especially, in view of the facts and circumstances in this case as accused No. 1 was chased and caught red-handed. So, the possibility of somebody removing the said mango baskets from the spot cannot be excluded Hence, because mango baskets are not seized, their evidence cannot be disbelieved, especially, in view of the facts and circumstances in this case as accused No. 1 was chased and caught red-handed. It is true that P. W. 10 could have gone by another route to his house for taking food but, there is no material elicited in his evidence to show that the route by which he was proceeding to his house is a circuitous or longer than the other route. P. W. 10 has also not been asked about it and given an opportunity to explain it. R. 15 hence, we see no force in the said contention. ( 40 ) P. W. 11 is the son of Seenappa shetty, who is running a hotel under the name and style of 'manjunatha Cafe' near the bus-stand at Hirehonnalli. P. W. 11 has stated that at about 1-30 p m. on that day, accused No. 1 had been to his hotel; that he had supplied a plate of curds and beaten rice to him ; that when he had eaten half the plate, a bus from hubli came to the bus-stand and that on seeing the bus, accused No. 1 left eating curds and beaten rice, paid the charges and went away. Nodoubt, no identification parade has been held to afford an opportunity to this witness to identify accused No. 1. According to P. W. 11, he saw accused No. 1 being caught after the shooting of Arvinda Gowda in the village and he saw him in the custody of police in the jeep. In view of the fact that accused No. 1 was seen by him in the custody of police on the same day and that there was a unusual occasion for him to remember it, his evidence cannot be disbelieved, especially, as accused No. 1 was stranger to the village and the witness had no reason to falsely depose against him. ( 41 ) MR. A. B. Patil, learned counsel for the accused, urged that accused No. 1 could not have seen the bus from inside the hotel as stated by P. W. 11. But, there is no material elicited in the cross- examination of P. W. 11 to show that accused No. 1 could not have seen the bus. ( 41 ) MR. A. B. Patil, learned counsel for the accused, urged that accused No. 1 could not have seen the bus from inside the hotel as stated by P. W. 11. But, there is no material elicited in the cross- examination of P. W. 11 to show that accused No. 1 could not have seen the bus. Hence, we see no force in the said contention of Mr. Patil. ( 42 ) P. WS. 5, and 6 were going along with the deceased while P. W. 9 was going ahead of them carrying mango baskets. According to P. W. 10 he was following them from behind and he saw a person sporting a beard and moustache and wearing Nehru shirt and a Dhoti in between him and the deceased. He also saw accused No. 1 firing a shot at deceased Arvinda Gowda with the pistol. On hearing the sound of 'dum' P. Ws. 5, 6, and 9 turned round and saw the person sporting beard and moustache and wearing Nehru shirt and a Dhoti running away with the pistol in his hand. P. Ws. 9 and 10 chased him while P. W. 5 was engaged in attending to the deceased. P. W. 13 was then sitting in front of the old panchayat office along with others then as the blacksmith who was to repair his agricultural instruments had gone to take food. According to P. W. 15 he was sitting in the shop of Muktumsab which is opposite to the house of kelgeri family along with others and on hearing the sound of 'dum' he saw arvinda Gowda injured and the person sporting beard and moustache and wearing Nehru shirt and a Dhoti running away with the pistol in his hand. Then, P. Ws. 9, 10, 13 and 14 and other villagers chased accused No. 1 and ultimately caught him in the shed by the side of the house of accused No. 2, hiding himself in the hay-stack and at that time, he was holding M. Os. 4 to 7 in his hand. We see, nothing unnatural in the evidence of p. Ws. 13 and 14 as they were sitting on front of the o!d Panchayat office and in the shop of Muktumsab near the scene then. Their conduct in chasing accused no. 1 is most natural. When accused no. 4 to 7 in his hand. We see, nothing unnatural in the evidence of p. Ws. 13 and 14 as they were sitting on front of the o!d Panchayat office and in the shop of Muktumsab near the scene then. Their conduct in chasing accused no. 1 is most natural. When accused no. 1 has been caught red-handed by them and other villagers, the holding of identification parade would have been a mere farce. P. Ws. 5, 6, 9, 10,13and 14 have absolutely no reason to give false evidence against the accused as he was stranger to them. Accused No. 1 has not given any satisfactory explanation about his going to the village on that cay and about his being caught with the pistol and cartridges M Os. 4 to 7 after being chased by the witnesses and other villagers, in his statement under Section 313 Cr. P. C. Hence, the suggestion on behalf of the defence to P. Ws. 10 and 16 that one Sunanda, daughter of Basa- lingappa Kelgeri had married a person from Sutgatti, the native place of accused no. 1 and that accused No. 1 had been to their house and when he came running on hearing the sound of 'dum' he was chased and caught, has no force, especially, as he had no reason to be in possession of M. Os. 4 to 7. ( 43 ) THE finding of the empty cartridge (M. O. 10) on the spot and finding another empty cartridge case stuck up in the barrel (M. O. 7) probabilises the evidence of the prosecution that accused no. 1 had fired a shot at Arvinda Gowda once and thereafter fired another shot while he was hiding in the cowdung stack in the backyard of the house of 'gramsevak. ' The possibility of the barrel in the action block getting separated due to bad welding and due to it coming in contact with hard substance as stated by the Ballestic expert (P. W. 18) is there. There was possibility of the pistol coming in contact with hard substance at the time when accused No. 1 was jumping the fences and backyards and ultimately at the time when he got into the shed by the side of the house of accused No. 2 through the opening in between the roof and the topmost woodden plank. There was possibility of the pistol coming in contact with hard substance at the time when accused No. 1 was jumping the fences and backyards and ultimately at the time when he got into the shed by the side of the house of accused No. 2 through the opening in between the roof and the topmost woodden plank. The medical evidence of P. W. 8 who found 30 pellets and a wad in the body of the deceased and he has stated that the injury he noticed on the deceased could be caused by a pellet's discharge from smooth board fire-arm weapon, probabilises the evidence of the prosecution witnesses, P. Ws. 5, 6, 9 and 10. The seizure of M. Os. 4 to 7 from accused no. 1 immediately after he was chased and caught also probabilises the evidence of the prosecution witnesses. There is also no evidence to disbelieve the evidence of P. Ws. 4 and 26 that M. Os. 4 to 7, 8 and 9 were seized from the person of accused No. 1 under Ex. P. 4. Nodoubt, p. W. 4 has stated that there was one pistol in the house of accused No. 2 at the time when his house was searched. No attempt has been made by the prosecution to clear the said aspect. The prosecution ought to have put leading questions of P. W. 4 on that aspect after obtaining permission of the Court as that aspect has been introduced by him in the cross-examination and as it had not been mentioned in the panchanama (Ex. P. 4 ). Even assuming that it was true, it would not in any way affect the prosecution case, especially, as accused No. 1 was caught red handed by the prosecution witnesses and the villagers immediately after the occurrence. It is true that Ex. P. 5 was drawn between 5 or 5-30 p. m. It is also true that P. W. 4 has stated that he went to Hubli on that day at about 4 p. m. In view of the said fact, Mr. A B. Patil, learned counsel for the accused, urged that P W. 4 could not have been present at the time of the panchanama of the scene of offence (Ex. A B. Patil, learned counsel for the accused, urged that P W. 4 could not have been present at the time of the panchanama of the scene of offence (Ex. P. 5) which was drawn in the village when he had been to hubli at 4 p m. But, P. W. 4 has not been asked about it and he has not been given an opportunity to explain the said circumstances. Looking to the short distance between Hubli and Hirehonnalli, the possibility of the witness going back to Hirehonnalli and returning to Hubli cannot be excluded. Therefore, we see no force in the said contention of Mr. A. B. Patil. Hence, after re-assessing the prosecution evidence carefully in the light of the contentions of the Advocates for the accused, we are satisfied that the evidence of P. Ws. 5, 6, 9, 10, 13 and 14 substantially represents the truth. The trial Judge who had an opportunity of seeing the witnesses and marking their demeanour, has chosen to accept their evidence as regards the part played by accused No. 1 in shooting at deceased arvinda Gowda and we see no reason to dis-agree with him, especially in view of the aforementioned reasons. Hence, we hold that accused No. 1 shot at Arvinda gowda and killed him. So, his conviction under Section 302 IPC is proper. ( 44 ) AS there was no valid sanction to prosecute accused No. 1 for the offence under Section 25 (1) of the Indian Arms act at the time when the Committing court took cognizance of the same, the acquittal of accused No. 1 for the said offence is proper. ( 45 ) THIS brings us to the question as to whether the sentence of death imposed on accused No. 1 by the trial Court should be confirmed or not. Mr. A. B. Patil, learned counsel for the accused, urged that accused No. 1 is aged about 30 years and he has an young wife and two young children to be maintained ; that no previous conviction is alleged against him; that the murder committed by him cannot be said to be brutal or diabolical or that it was for gain and so, the lesser sentence of imprisonment for life would meet the ends of justice. He relied upon the decision in (1) Rajendra prasad v. State of Uttar Pradesh ( AIR 1979 SC 916 ; (2) Bachan Singh v. State of Punjab ( AIR 1980 SC 898 ); and (3) earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ). The learned State public Prosecutor urged that accused No. 1 was a stranger to Hirehonnalli village and he had no reason to murder the deceased that he has shot at the deceased from a close range after lying in wait in the hotel of P. W. 11; that therefore, the murder committed by him is pre-planned, calculated and cold blooded and he appears to have no regard for human life and therefore, the sentence of death awarded by the trial Court is proper. ( 46 ) THE learned trial Judge has held that this is one of the rarest of rare cases regard being had to the fact that accused no. 1 shot at Arvinda Gowda while he was going along with his children and killed him and as the murder was calculated and cold blooded and therefore accused No. 1 deserves the extreme penalty of death. ( 47 ) IN Bachan Singh v. State of punjab (AIR 1980 SC 998) the Supreme court has ruled that for persons convicted of murder, life imprisonment is the rule and death sentence an exception, that a real and abiding concern for the dignity of human life postulates resistence to taking a life through law's instrumentality, and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably fore closed. in the said case, it is stated that the following are the 'aggrevating' circumstances justifying imposition of death sentence: (A) if the murder has been committed after previous planning and involves extreme brutality; (b) if the murder involves exceptional depravity; (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty 'as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or d) if the member is of a person who had acted in the lawful discharge of his duty under seciion 43 of the Code of criminal Procedure 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and section 129 of the said Code". It is also stated therein that the 'mitigating' circumstances while considering the question of sentence are as follows : (1) That the offence was committed under the influence of extreme mental or emotional disturbance; (2) The age of the accused if the accused is young or old he shall not be sentenced to death; (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; (4) The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above; (5) That the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; (6) That the accused acted under the duress or domination of another person; (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired the capacity to appreciate the criminality of his conduct". in this case, there is no evidence let in by the prosecution to prove that the accused does not satisfy the conditions (3) and (4) stated above. in this case, there is no evidence let in by the prosecution to prove that the accused does not satisfy the conditions (3) and (4) stated above. ( 48 ) IN Earabhadrappa's case, the accused had murdered the wife of his master by throttling her to death and had robbed her of her jewels. Under the circumstances, the death sentence imposedon him by the trial court and confirmed by the High Court was reduced to imprisonment for life. ( 49 ) IN Rajendra Prasad v State of u. P. ( AIR 1979 SC 916 ), the majority said:''it is Constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Art. 19 (2) to (6)". In the said case His Lordship Krishna iyer, J. speaking for the majority was pleased to observe:"so, we search for guidelines within s. 302 IPC read with S. 354 Cr P. Code and find that, ordinarily, for murder a. life-term is appropriate save where 'special reasons' are found for resort to total extinction of the right to life and farewell to fundamental rights Public order and social security must demand it. That is to say, the sacrifice of a life is sanctioned only if otherwise public interest, social defence and public order would be smashed irretrivably. Social justice is rooted in spiritual justice and regards individual dignity and human divinity with sensivity So, such extraordinary grounds alone constitutionally qualify as 'special reasons' as leave no option to the court but to execute the offender if State and Society are to survive. One stroke of murder hardly qualifies for this drastic require- ment, however gruesome the killing or pathetic the situation, unless inherent testimony cozing from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life, in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a blood thirsty tiger, he has to quit his terrestrial tenancy. Exceptional circumstances beyond easy visualisation are needed to fill this bill". If he is an irredeemable murderer, like a blood thirsty tiger, he has to quit his terrestrial tenancy. Exceptional circumstances beyond easy visualisation are needed to fill this bill". Nodoubt, in this case, accused No 1 was a stranger to Hirehonnalli village and it is not even suggested that he had any reason to murder deceased Arvindagowda. But, we have disbelieved the prosecution case that accused No. 2 abetted accused no. 1 to commit the murder of the deceased. It may be that accused-1 had his own reason to murder the deceased and the said reason might not be known to the prosecution. The accused is about 30 years old and he has wife and children to be looked after. He has also an avocation in life namely, running a hotel. His conduct and behaviour in the Jail which is evident from the report of the Jail authorities are satisfactory during the period of inconcertion. The report of the Probation Officer does not show that he is a congental criminal and that it is not possible to improve him or that he is an irredeemable murderer like a blood thirsty tiger. The prosecution also has not adduced evidence to show that the accused does not specify the following conditions namely, (1) the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society ; (2) the probability that the accused can be reformed and rehabilitated, as observed in BACHAN SINGH's case. Therefore, the test laid down in BACHAN SINGH's case is unfortunately not fulfilled in this case and therefore we think it proper to commute the sentence of death passed on accused No. 1 by the trial Court to one of imprisonment for life and give him a chance to improve. ( 50 ) IN the result. Criminal Appeal no. 144/88 is dismissed and the reference made by the trial Judge for confirmation of death sentence imposed on accused no. 1 is rejected. The conviction of accused No. 1-appellant in Criminal appeal No. 65/88 (accused No. 1 in the trial court) under Section 302 IPC is confirmed. But, the sentence of death imposed on accused No. 1 by the lower court is commuted to one of imprisonment for life. With the said modification in the sentence, Criminal Appeal No. 65/ 88 is dismissed. --- *** --- .