THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1415 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellants/A.1 and A.2, who were tried for the offence under Section 302 r/w 34 I.P.C in S.C.No.226 of 2005 by the II Additional Sessions Judge, Karimnagar at Jagtial, were found guilty of the said offence, convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- each, in default, to suffer simple imprisonment for two months each, by judgment dated 18.09.2007. Challenging the conviction and sentence recorded against them, the appellants filed this appeal. 2. The gravaman of the charge against the accused is that on 06.09.2004 at about 11.30 hours at Bathikepalli Village, in furtherance of their common intention, they committed the murder of Enagandula Venkanna (hereinafter referred to as ‘the deceased’) by axing him on his right side neck. 3. The case of the prosecution, in nutshell, is as under: P.W.1 is the wife, P.W.2 is the daughter and P.W.4 is the nephew of the deceased. A.1 and the deceased are neighbours and there was a dispute between them regarding the partition wall. About two years prior to the date of incident, in the Gram Panchayat Elections the deceased contested as a Ward Member against A.1 and won the election. While so, on 06.09.2004 at about 7.00 a.m., the deceased left the house and did not return home till 11.30 a.m. Then, P.W.1 went in search of the deceased and found him near the bus stand and both of them while returning to home and when they reached near a neem tree, A.1 and A.2 came there and A.2 threw a cycle on the deceased and caught hold waist of the deceased firmly. Then A.1 hacked the deceased with an axe on his right neck thrice. P.W.1 went near the deceased and P.Ws.3 and 4 who were passing by also witnessed the same and they reached near the deceased, but the deceased died on the spot. On seeing them, the accused fled away. Thereafter, P.W.1 got the report (Ex.P.1) scribed by P.W.5, rushed to the police station and lodged the same. On 06.09.2004 at about 12.30 hours, on the basis of Ex.P.1, P.W.10-the then A.S.I of Police at Pegadapalli Police Station registered the same as a case in Crime No.97 of 2004 and issued Ex.P.5-F.I.R. P.W.11-the then C.I of Police took over further investigation and at about 1.30 p.m., he visited the scene of offence, prepared an observation report and held inquest over the dead body of the deceased in the presence of P.Ws.6 and 7 and thereafter, sent the dead body for post mortem examination. On the same day i.e., 06.09.2004, on receiving requisition, P.W.9-the then Civil Assistant Surgeon, Government Area Hospital held autopsy over the dead body of the deceased and issued Ex.P.4-post mortem certificate opining that the cause of death was due to haemorragic shock. On the same day at about 4.30 p.m., A.1 surrendered before the Police of Peddapalli Police Station. Then P.W.11 arrested the accused and in pursuance of his statement, M.O.5 (axe) was recovered in the presence of P.W.8. Subsequently, on 20.09.2004, A.2 was arrested. Then P.W.11 forwarded the material objects to Regional Forensic Science Laboratory and after completion of investigation and on receipt of relevant documents, he laid charge sheet. 4. On committal, the learned Sessions Judge framed charge against the accused for the offence under Section 302 r/w 34 I.P.C. When the said charge was read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the accusation made against the accused, the prosecution examined as many as 11 witnesses and got marked 15 documents, besides material objects 1 to 7. 6. After completion of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., with regard to incriminating material made against them by the prosecution, which they denied. However, though none were examined, Exs.D.1 and D.2- F.I.R. and copy of charge sheet in Crime No.51 of 1992 of Pegadapalli Police Station were marked on behalf of the accused. 7. The learned Sessions Judge, after appreciation of the oral and documentary evidence, particularly the evidence of P.Ws.1, 3 and 4, which was corroborated by the medical evidence, found the accused guilty of the offence under Section 302 r/w 34 I.P.C and accordingly, convicted and sentenced them as aforementioned. 8 . Learned counsel for the appellants contends that the presence of P.W.4, who was projected as eyewitness, at the scene of offence is doubtful, since P.W.4 has not stated about his witnessing P.W.1 at the scene of offence. Since P.W.1 being the wife of the deceased is the interested witness, there remains only one eyewitness i.e., P.W.3. The evidence of P.W.3 has not been corroborated with other evidence and therefore his presence is also doubtful. He further contends that in the absence of any motive attributed against A.2 in the commission of offence, he is entitled to acquittal. 9. On the other hand, the learned Public Prosecutor sought to sustain the impugned judgment. 10. P.W.1, who is none other than the wife of the deceased and who lodged Ex.P.1 complaint before the Police, deposed that A.1’s house is adjacent to their house; that there was a quarrel between them and A.1 with regard to the partition wall; that on the date of incident, at about 7.00 a.m., her husband left the house and did not return; that in search of her husband, she went towards bus stand to get him back since it was 11.30 a.m., and lunch time was reaching; that she find her husband near the bus stand and both of them were returning home; that her husband was proceeding 10 yards ahead of her; that when her husband reached neem tree on the way, A.2 hurled a cycle on him; that immediately thereafter, A.2 caught hold the waist of the deceased and then A.1 came to the deceased and beat him with an axe on the right of his neck thrice; that when she reached near the dead body, P.Ws.3 and 4 and L.W.6-Venu also came near the deceased, but her husband died on the spot; that on seeing them, the accused fled away from the scene along with the axe, by leaving the cycle there and that she gave Ex.P.1-complaint at Pegadapalli Police Station. 11. P.W.3, who is an eyewitness to the incident and who is a toddy tapper by profession, deposed that on the date of incident while he was returning to the village from toddy tope, at about 11.00 p.m., he reached the village, by following P.W.1 keeping a distance of 3 to 4 yards; that ahead of P.W.1 the deceased was proceeding and that when the deceased reached neem trees, A.2 had thrown a cycle on the deceased and caught hold of his waist tightly and then A.1 axed the deceased on the right side of his neck thrice. 12. P.W.4, who is the niece of the deceased and who is also eyewitness, deposed that on the date of incident at about 8.00 a.m., he went to the house of the deceased and at about 10.00 a.m., he had food in the house of the deceased and went to Kirana Shop to purchase cigarette; that while he was standing on the road in between neem trees and bus stand, after purchasing cigarette, the deceased was coming from bus stand to the village; that when the deceased reached near neem tree, A.2 had thrown a cycle on the deceased and A.1 came from behind the deceased and axed him on his right side of the neck thrice, due to which the deceased fell down and died and that P.W.3 and L.W.6-Venu were coming from bus stand side from toddy tope and on seeing them, the accused fled away from the scene leaving the cycle. 13. P.W.5, who drafted the complaint-Ex.P.1, deposed that about one year prior to the date of his giving deposition, P.W.1 came and informed him that both the accused killed the deceased and requested him to prepare a complaint and that he prepared Ex.P.1 and P.W.1 gave the same to the police by affixing her thumb impression on it. 14. P.Ws.6 and 7 are the inquestdars, whereas P.W.8 is the mediator for seizure of M.O.5. 15. P.W.9- the doctor, who conducted autopsy over the dead body of the deceased, found the following injuries: “1. Lacerated wound on the right side of the neck 2”x ½”x3” exposing the lacerated grate vessels of the neck. 2. Lacerated wound on the right side of the neck 2”x ½”x 1” below wound No.1 muscle deep. 3. Lacerated wound on the base of right neck 2 x ½” muscle deep.” He issued Ex.P.4 - post mortem certificate opining that the deceased died 6 to 12 hours prior to the post mortem examination and that the cause of death was haemorrhagic shock on account of the injuries to major vessels in the neck. In the cross examination he admitted that the blood stained clothes were available on the dead body when he conducted post mortem examination. 16. Though nothing was elicited in the cross examination of P.Ws.1, 3 and 4 to discredit their evidence, P.W.3 in his cross examination stated that immediately after the cycle was thrown, the deceased had not fallen down; that the deceased fell down after A.1 delivered blows; that since A.1 was armed with an axe, they did not venture to save the deceased and that A.1 delivered blows by standing just behind the deceased and at that time they were at a distance of 10 yards. Further, the evidence of P.W.1 also discloses that there was a dispute between the family of A.1 and themselves and that A.1 contested against the deceased in the Gram Panchayat Elections and the deceased won in that elections and in that regard also there was dispute between them. 17. A perusal of Exs.D.1 and D.2-copies of F.I.R and charge sheet in another crime vide Crime No.51 of 1992 on the file of Pegadapalli Police Station, which were marked on behalf of the accused, would disclose that the said crime was registered against the deceased, P.W.6 and three others. 18. After going through the entire evidence of the prosecution, it is clear that A.2 had thrown the cycle on the deceased and caught hold of his waist and then A.1 hacked on the right side of his neck thrice. Hence, it is clear that A.2 assisted A.1 in the commission of offence and shared his common intention. Therefore, we do not see any merit in the contention advanced by the learned counsel for the appellants that A.2 is entitled to acquittal. Further, there is no delay in lodging the complaint and therefore there is no possibility to implead A.2 in the commission of offence. In view of the same, we are of the opinion that the prosecution could able to prove the guilt of the accused beyond all reasonable doubts and the judgment under appeal needs no interference. 19. In the circumstances, the appeal is dismissed confirming the judgment dated 18.09.2007 passed by the learned II Additional Sessions Judge, Karimnagar at Jagtial in S.C.No.226 of 2005. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Date 27.06.2011 va