THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR CRIMINAL APPEAL No.1033 OF 2015 JUDGMENT: (per Hon’ble Sri Justice K.Surender)

1. The appellant/accused No.1 is the father and appellants/accused Nos.2 and 3 are the sons of accused No.1. All of them were sentenced to life imprisonment for the offence under Section 302 r/w. 34 of IPC, for committing murder of the deceased namely Azam Baba.

2. According to the case of prosecution, on 30.10.2012 around 08:30 P.M., there was a quarrel in between accused No.1 and the deceased. Accordingly, accused No.1 beat the deceased on his head, then accused Nos.2 and 3 came there and threw a boulder on the head of the deceased, resulting in his instantaneous death.

3. PWs.1 and 3 are eye witnesses to the incident. According to PW1, who is the brother of deceased, the deceased gave an advance amount of Rs.90,000/- to the accused for leasing out their house. Thereafter, the accused refused to give the house on lease and the deceased asked to return the said amount of Rs.90,000/-, however, the accused kept on postponing the same. On the date of the incident i.e., 30.10.2013, PW3 and the deceased went on a two wheeler to the tailor shop of accused No.1, where an argument took place between accused No.1 and deceased. According to PW3, accused No.1 refused to return the advance amount, as such, they quarreled. During the quarrel, accused No.1 took a stick and hit on the head of the deceased and when he fell down, accused Nos.2 and 3 threw boulder on the head of the deceased. Due to fear, PW3 went away from there.

4. PW1, brother of deceased who was also present at the scene, lodged a complaint at 10:00 P.M. According to PW1, an amount of Rs.90,000/- was due from the accused. While going to his house via his brother’s shop he saw that a quarrel took place between accused and the deceased. During the said quarrel, accused No.1 beat deceased with stick and thereafter accused Nos.2 and 3 hit the deceased with a boulder stone. PW1 had also stated that PW3 was present when the incident had taken place.

5. PW10 who is the Investigating Officer stated that after two hours, at 12:30 A.M., early hours of 31.10.2012, accused No.1 went to the Police Station along with a stick and surrendered before him. In the presence of independent witnesses i.e., PWs.7 and 8 who turned hostile, the confession of accused No.1 was recorded and MO.2/stick, MO.6/blood stained shirt and MO.7/blood stained pant of accused No.1 were seized. Later, he proceeded to the scene of offence and recorded the statements of PWs.2, 3 and others. On 07.11.2012, accused Nos.2 and 3 were arrested and their confession was recorded in the presence of PWs.8 and 9.

6. After the inquest proceedings on 01.11.2012, dead body was sent to post mortem examination and one Doctor by name Aarthi conducted the post mortem examination and issued Ex.P10/Post Mortem Examination Report. The Doctor who conducted post mortem examination has found the following injuries on the dead body of deceased: 1. “Crush injury involving forehead up to both eyes below and anterior part of skull 9 x 14 inches with fracture of frontal bone, anterior 1/3^rd both parietal bones and anterior 1/3^rd of both temporal bones.

2. Rupture brain beneath injury No.1 with explusion of brain matter and haemerhage.

3. Contusion 2 x 2 cm, right side chest.”

7. According to PW11, was examined to identify writing on the post mortem examination report issued by the said Doctor Aarthi. PW11 stated that the death was on account of the head injury and further, the injuries were caused by a hard and blunt object.

8. Charge sheet was filed against accused Nos.1 to 3 for the offence under Section 302 read with 34 of IPC. The learned Sessions Judge has mainly placed reliance on the evidence of PWs.1 and 3, who are eye witnesses to the incident. Basing on the evidence of PWs.1 and 3 as well as the corroborating evidence of Doctor, conviction was recorded.

9. Learned counsel appearing