THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.1225 of 2017

JUDGMENT:

(Per Hon’ble Sri Justice K.Surender)

This Criminal Appeal is filed by the appellants/accused Nos.1 and 2, aggrieved by the judgment and sentence dated 25.07.2017 in S.C.No.434 of 2016, on the file of the Principal Sessions Judge, Mahabubnagar. Accused No.1 was found guilty for the offence under Section 302 of IPC and accused No.2 was found guilty of the offence punishable under Section 302 read with 34 of IPC.

2. Heard learned counsel for the appellants and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for respondent – State. Perused the record.

3. Accused No.1 is the elder brother of Chinna Lingappa (hereinafter referred to as ‘deceased No.1’). Deceased No.1 was married to Padmamma (hereinafter referred to as ‘deceased No.2’). The marriage of deceased Nos.1 and 2 was performed 12 years prior to the incident. PW.2 is their son and Maheshwari is the daughter of the deceased. PW.1, who is the brother of deceased No.2, lodged a complaint/Ex.P1. In the complaint, it is narrated that on 19.05.2016, during the night time, PW.6 informed him that the appellants killed both deceased Nos.1 and 2 with an axe. On receiving information, PW.1 went to the scene along with others and found deceased No.1 dead outside the house while deceased No.2 was found dead in the house.

4. Having received the complaint, PW.15, who is the Investigating Officer, went to the scene of offence and conducted the scene of offence panchanama in the presence of PWs.9 and 11. Thereafter, the dead bodies were sent for autopsy. The autopsy was conducted by PW.13.

5. PW.13 conducted the postmortem of the dead body of Padmamma (deceased No.2), female aged about 35 years, and found the following anti-mortem injuries:

“1) Deep lacerated wound present over right side of neck 6 cm x 5 cm x 2 cm;

2) Hyoid bone separated (not found);

3) Large vessels jugular vein carotid artery were ligated; and

4) Neck muscles crush injury (sternocleidomastoid).”

6. PW.13 conducted the autopsy over the dead body of Chinna Lingappa (deceased No.1) and found the following anti-mortem injuries:

“1) Two large lacerated wounds present over left side of neck measuring about 5 x 4 x 4 cm and over right shoulder extending to neck region measuring 5 x

2 x 3.

2) Hyoid bone fracture found.

Ex.P12 is PME report containing 4 sheets of Chinna Lingappa.”

7. According to PW.13, the cause of the death of deceased No.1 was due to cardio respiratory arrest due to hypovolaemie shock due to deep lacerated wound over neck caused by a sharp edged weapon, and the cause of the death of deceased No.2 was due to cardio respiratory arrest due to hypovolaemie shock due to deep lacerated wound over neck caused by a sharp edged weapon.

8. PW.14, on credible information, apprehended the appellants on 20.05.2016, i.e., 4 days after the incident. Thereafter, having concluded the investigation, the charge- sheet was laid against the appellants for the offences punishable under Section 302 read with Section 34 of IPC.

9. The learned Sessions Judge placed reliance on the eye witness account of PW.11 and other circumstances. The motive for murder is the alleged belief of the appellants that the deceased were involved in sorcery/black magic.

10. The learned counsel appearing for the appellants would submit that the solitary testimony of PW.2 formed the basis for conviction. However, PW.2 witnessing the incident, when accused No.2 was holding a torch light, was not mentioned in the complaint/Ex.P1. Further PW.2 is aged about 12 years, and as per Section 4 of Oaths Act, 1969, the learned Sessions Judge ought to have recorded his satisfaction about the capability of PW.2 to depose before the Court. However, there are no questions recorded by the learned Sessions Judge which were asked to PW.2 to satisfy himself about the evidence of PW.2 being competent to understand the Court proceedings.

11. The learned counsel f