Satishkumar Vs State by Hadadi Police

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 27-10-2020 AND ORDER ON SENTENCE DATED 28-10-2020 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE, IN SESSIONS CASE NO.77 OF 2018, CONVICTING THE APPELLANTS/ACCUSED NOS.1 TO 3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC.

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THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard Sri Venkatesh R. Bhagat, learned counsel

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for appellant Nos.1 and 2, Sri Lethif B., learned counsel for

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appellant No.3, Smt. Rashmi Jadhav, Additional State Public Prosecutor for the respondent-State and perused the material on record.

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This appeal is filed by accused Nos.1 to 3

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against the judgment of conviction and sentence for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1960 (for short, 'IPC') and sentencing them to undergo imprisonment for life with fine of Rs.20,000/- each.

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The factual matrix of the case of the prosecution is that P.W.17-Chandramma, who is a resident of Davanagere, had gone to Chennai, Tamil Nadu, about 2-3 years back and stayed there for some period and at that time, she had developed illicit relationship with Ashok (hereinafter referred to as 'deceased') and both of them had lived together for about one and half-a-year as tenants in Changalpet. About 5-6 months prior to the complaint, P.W.17 returned from Chennai and stayed in Davanagere, but never returned to Chennai. P.W.17 and the deceased were in phone contact and the deceased was forcing P.W.17 to come back to Chennai and to meet him. P.W.17 did not go back to Chennai even after the request

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made by the deceased and their relationship was known to her son, accused No.1, and her nephew, accused No.2. On 11.09.2017, the deceased came from Chennai to Davangere and knowing about this, accused Nos.1 and 2 with their common intention to commit murder of the deceased, took the help of accused No.3, owner of autorickshaw, bearing Registration No.KA-17 A-3646, from Railway Station, Davangere, along with P.W.19, driver of autorickshaw, and went to a Wine Shop to take drinks and then proceeded to Karnataka Bank ATM and from the ATM card of the deceased, they withdrew Rs.1,000/- and thereafter, accused Nos.1 to 3 along with P.W.19 went to Naganur Village and near the channel beside the road, they took the deceased and abused him for having illicit relationship with his mother, due to which, the image of accused No.1 in the society has tarnished and also scolded the deceased for making frequent phone calls to his mother and assaulted him by hands on his face and pushed him on the ground. At that time, accused No.2

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caught hold of the deceased, accused No.1 took a stone and assaulted on the face, mouth and forehead of the deceased and with the same stone, accused No.2 also assaulted the deceased on face. Though P.W.19 called them back, accused Nos.1 and 2 did not yield to his words, but they assaulted the deceased by means of stone and murdered him. Thereafter, accused No.1 has taken the mobile phone and ATM card of the deceased and all of them went away in the autorickshaw of accused No.3.

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P.W.1-Ravindranath, who found the dead body of the deceased, lodged a complaint. On the basis of the complaint, Hadadi Police, Davanagere, registered a case in Crime No.158 of 2017 and thereafter, accused Nos.1 to 3 were apprehended, investigation was conducted by recording the statement of the witnesses and ultimately, filed the charge-sheet. These accused were secured, they did not plead guilty and claims to be tried. Hence, the prosecution examined P.W.s.1 to 42, got marked Exs.P1 to P65 and MOs.1 to 21. On closure of the prosecution

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evidence, the trial Court examined the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') and they denied the incriminating evidence, but did not lead defence evidence.

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The trial Court, considering the circumstantial evidence, convicted accused Nos.1 to 3 and imposed the sentence as mentioned above. Being aggrieved by the conviction and sentence, accused Nos.1 to 3 have filed the present appeal before this Court.

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The main contention of the learned counsel for

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accused No.3 is that in order to connect accused No.3 to the crime, there is no material before the Court. The case of the prosecution is that accused Nos.1 and 2 were having common intention to take away the life of the deceased. Though accused Nos.1 and 2 had common intention, but there is no conspiracy of accused Nos.1 and 2 with accused No.3. He also submits that Ex.P1 is the complaint and the complaint is lodged by Sri Ravindranath against unknown person after seeing the dead body of the

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deceased and in the said complaint also, nothing is mentioned against accused No.3. He also submits that photo of P.W.17 and identity card were found and based on that, investigation was conducted. He submits that accused No.3 is the owner of the auto, which was seized and the same was purchased from P.W.15. He submits that it is the case of the prosecution that accused No.3 as well as P.W.19 were together and even in the voluntary statements of accused Nos.1 and 2, they have categorically revealed the same, but they were only mute spectators while committing the alleged murder of the deceased by accused Nos.1 and 2 and there was no role on the part of accused No.3 in committing the murder. He submits that P.W.19, eyewitness to the incident, has turned hostile and the benefit given to P.W.19 would have given to accused No.3 also, but the person who was very much present at the time of the incident was made as a witness and another person, with an intention, is made as one of the accused. In the absence of any material

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against accused No.3, there could not be any conviction, but the trial Court committed error in convicting accused No.3. He also submits that while framing of charge, no charge is framed against accused No.3. When the statement of P.W.19 under Section 164 of Cr.P.C. was recorded, he has not stated anything about accused No.3. Further, accused No.3 was also not aware of illicit relationship between P.W.17 and the deceased. Hence, on all these grounds, he prays for interference and to set aside the conviction order against accused No.3.

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Learned counsel for accused Nos.1 and 2 would submit that there is delay in lodging the complaint and the said delay has been used by the complainant and other interested person to concoct a false case against accused Nos.1 and 2. There is no eyewitness to the incident and the case rests on circumstantial evidence. Though the voluntary statements of accused Nos.1 and 2 were recorded and at their instance, mobile phone, ATM card and the clothes of the accused were seized, but P.W.41-

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Investigating Officer has not stated anything about seizure of mobile phone, ATM card and clothes. Though the prosecution relies on the evidence of P.W.3 and P.W.4 with regard to seizure, the same cannot be accepted. He submits that P.W.19, according to the prosecution, is an eyewitness to incident, but he has turned hostile and when

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the eyewitness turns hostile, the case rests on circumstantial evidence. He submits that the

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circumstances relied on by the prosecution requires the presence of the deceased and other circumstance relied on is accused No.3 accommodating accused Nos.1 and 2 and also purchase of liquors and drawing of Rs.1,000/- from the ATM and AB group blood found in MOs.11 to 14. He vehemently contended that no test identification parade was conducted to identify the accused and hence, the evidence of P.W.22, worker in the Bar, who has last seen the accused, cannot be relied on and hence, the evidence of P.W.22 will also not come to the help of the prosecution. He also submits that evidence of P.W.17 also

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does not come to aid of the prosecution since she turned hostile. Even P.W.13, son of the deceased, also not found any incriminating evidence against accused Nos.1 and 2. P.W.26 is the FSL Expert, who has received about 14 articles seized in this case, and these articles were chemically examined, and she has given the evidence that except Item No.6, all other 13 items were bloodstained and contained human origin blood of “AB” Group. He also relied on the judgment of this Court in the case of Chakravarthy v. State of Karnataka reported in ILR 2001 KAR 3203 , wherein mere making of a panchanama as an exhibit does not dispense with its proof and mere marking is no proof of its contents and he relied on paragraph No.22 of the same judgment that the Investigating Officer has not whispered the contents of mahazar. He also vehemently contented that except PWs.1, 6, 14, 15, 22 and 25, others prosecution witnesses have turned hostile. The evidence of P.W.1-complainant is very clear that he acted as a chance witness. In order to

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prove the illegal relationship between P.W.17 and the deceased, nothing is placed on record and none of the witnesses speaks about the same. He would contend that the clothes which were found in the CCTV as well as seized, i.e. shirt and pant, at the instance of accused Nos.1 and 2 creates doubt in the mind of the Court having used the same on the date of incident and recovery. Merely because the bloodstains were found in the clothes of the deceased and also the accused, the same cannot be a ground to convict the accused even though explanation is offered under Section 313 of Cr.P.C. He would vehemently contend that the trial Court failed to take note of the fact that the chain of circumstances has not been proved by the prosecution and even in spite of it, when there is no chain of circumstances, the trial Court committed error in convicting accused Nos.1 and 2. In the absence of linking the each chain of circumstance, the trial Court ought not to have convicted accused Nos.1 and 2. Hence, he prays to allow the appeal.

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Per contra , the learned Additional State Public

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Prosecutor for the respondent-State submits that the PostMortem examination report-Ex.P39 is very clear that the deceased had sustained four external injuries and Ex.P40final opinion as to the cause of death is due to injury to vital organ brain sustained as a result of multiple blow to the skull with a hard heavy object. Hence, it is a case of homicidal. Cross-examination of the Doctor also not disputed with regard to nature of injuries as well cause of death is concerned and hence, the death of homicidal is proved. She also vehemently contended that P.W.1 gave the complaint as per Ex.P1 and no doubt, the same is registered against unknown person. Though the learned counsel for the appellants contended that the blood of the deceased was not seized, but it is very clear from Ex.P2seizure mahazar that at the time of conducting mahazar, it is stated that, blood of the deceased was collected and same was also sealed, packed and sent it to the FSL. Ex.P38-FSL report is very clear and the same is spoken by

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P.W.26-FSL Expert with regard to the linking of the accused, since the clothes of accused Nos.1 and 2 and the clothes of the deceased, were stained with AB blood of human origin. She also contended that the clothes, mobile and also ATM card of the deceased was recovered at the instance of accused Nos.1 and 2 and they have given statements as per Exs.P61 and P62, wherein, they categorically stated that if they are taken to the spot, they are going to produce the same. No doubt, it is a trite law that voluntary statement could be admitted only for the purpose of any recovery and remaining portion of the voluntary statement cannot be considered and the same is inadmissible. The fact that recovery is made at the instance of the accused is spoken by P.W.3 and P.W.4 with regard to seizure is concerned and when the witnesses speaks about the seizure of the same, and the very citation (stated supra) relied on by the learned counsel for the appellants does not come to the aid. She also submits that with regard to illicit relationship is concerned, direct

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evidence cannot be produced and only circumstantial evidence can be considered. She also submits P.W.22, worker of the Bar, has very clearly stated that the accused persons came to the Bar and Restaurant, wherein he was working and he also identified them and the same is not denied by him in the cross-examination. P.W.23, Security Guard of ATM, though turned hostile, but in the crossexamination categorically deposes withdrawal of amount of Rs.1,000/- from the ATM and with regard to withdrawing of amount also, no effective crossexamination was done. She also contended that Ex.P9seizure mahazar clearly shows that it bears ATM card No.607324100883181 with name Ashok (deceased). This card has been recovered by the Police under the mahazar and marked as MO9. The photographs-Exs.P10 to 12 goes to show that the pictures are taken by the Police while drawing the mahazar, specifically, while recovering the mobile phone and the ATM card from accused No.1. The ATM card seen in Ex.P12 clearly reads the same number

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as found in the ATM card-MO9 and as seen in the CCTV

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Footage-MOs.20 & 21, and that number is also visible in the photograph- Ex.P12. So it can be easily held that the ATM card and the Mobile phone recovered in the house of accused No.1 was shown by accused No.1 and it was in his exclusive possession and under the mahazar, they have recovered the ATM card and the Mobile phone. All these material connects accused Nos.1 and 2 to the crime.

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Learned Additional State Public Prosecutor also

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vehemently contended that the trial Court has taken note of the fact that accused No.3 was present along with accused Nos.1 and 2 and he did not question the act of accused Nos.1 and 2, but he was silent spectator while accused Nos.1 and 2 committing the murder of the deceased. Though there was no overt act against accused No.3, but there was common intention to eliminate the deceased.

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Having heard the learned counsel for the parties

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and considering the material available on record, the points that would arise for consideration of this Court are:

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i) Whether the trial Court committed error in convicting accused Nos.1 to 3 for the offence invoked against them?

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ii) Whether the findings of the trial Court require interference of this Court?

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iii) What order?

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Having considered both oral and documentary

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evidence available on record, this Court has to reappreciate the same. The case rests upon eye witness as well as circumstantial evidence. The eye witness is examined as P.W.19 and he turned hostile. P.W.19 in his chief evidence completely turned hostile stating that on 11.09.2017, he did not go along with accused Nos.3 and 4 and also did not come in the autorickshaw belonging to accused No.3 and also did not witness the person who was speaking Tamil language and evidence says that did not make any statement under Section 164 of Cr.P.C. before

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the learned Magistrate in terms of Ex.P31. However, he identifies the signature as Ex.P31(a) and categorically made the statement before the learned Magistrate. This witness was subjected to cross-examination. In the crossexamination, treating him as hostile, learned Public Prosecutor, cross examined him in detail in terms of the statement made before the police as well as statement made before the Court. Even in the cross-examination though he admits in the chief evidence making the statement under Section 164 of Cr.P.C., identifying his signature, but denies the same. Having considered the document of Ex.P.31, his statement was recorded by the JMFC II Court, Davangere in respect of the very same crime, wherein he has deposed that on 11.09.2017 at 6:30 when he was sitting along with accused No.1 and 3, the accused No.2 called and informed to take the autorickshaw to the railway station and accordingly went to railway station. The case of the prosecution is narrated before the learned Magistrate, but witness identifies his

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signature in Ex.P.31, but not supports the case of prosecution when he was examined before the Court, but it is not in dispute that his statement was recorded in terms of Ex.P.31 though he says that he did not make such statement, but this statement was made before the learned Magistrate, but the fact is that 164 statement is not the substantive piece of evidence, however Court can look into the same for corroboration, whether the evidence of P.W.19 gives aid to the case of the prosecution and in

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view of this eye witness who was present at the time of incident has turned hostile. The Court has to take note of the validity of the statement made before the learned Magistrate. The statement recorded by the Learned Magistrate is not substantiated. When such being the case, this Court has to consider the other circumstantial evidence before the Court.

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Before considering the other circumstantial evidence, this Court would like to make it clear with regard to whether death is on account of homicidal. The

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document at Ex.P.39 - post mortem report discloses the nature of injuries i.e., external injuries 4 in number and so also opinion given at the first instance kept pending for want of chemical analysis report of FSL and having received the report, final opinion was given in terms of Ex.P.40 and the death is due to injury to vital organ brain sustained as a result of multiple blow to the skull with a heavy object and hence, Court has to take note of the evidence of the Doctor who has been examined as P.W.27. The P.W.27 deposes with regard to the nature of injuries and final opinion is that death is due to injury to vital organ brain sustained as a result of multiple blow to the skull with a heavy object. In the cross examination of this witness, only suggestion was made that a person under the influence of alcohol if falls on the ground may sustain such injuries and the same was denied. However, he admits that the stone-MO.4 weighs about 1,375 grams. Further suggestion was made that only if assaulted by a stone weighing about 5 to 6 kg such injury shown in the

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report could be caused and the same was denied, except these suggestions, nothing is suggested that it is not a case of homicidal. Having considered the PM report which is marked as Ex.P.39 and also the evidence of P.W.27, it is very clear that it is a case of homicidal and hence, we accept the evidence of the Doctor that it is a case of homicidal as accepted by the Trial Court.

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Now coming to the connecting the accused is concerned, the main case of the prosecution is that at the body of the deceased, found the xerox copy of identity card of the P.W.17 - Voter ID and having considered the Voter ID, P.W.30 in his evidence categorically deposes that he had approached the P.W.17 and P.W.17 informed about the deceased person is one Ashok and on enquiry, she revealed that accused No.1, 2 and 3 went along with him and hence, accused persons are apprehended and produced before the I.O and identifies the accused persons. It is also the evidence that by the side of the dead body, found the purse and photo that is MO.1 and

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MO.1(a) and photo belongs to the Chandramma and accordingly, went and investigated, but this witness was cross examined by the counsel for accused and except eliciting that MO.1(b)-xerox ID card was not clear and even not suggested to the witness P.W.30 that the P.W.17 did not make any statement that accused No.1 to 3 did not accompany the deceased and no cross-examination to that effect. Based on the statement of P.W.17, the law was set in motion for investigating to identify the accused persons and accused No.1 to 3 were apprehended. Now this Court has to see the evidence of P.W.17. Since it is the case of P.W.30 that she gave only the information. But P.W.17 who has been examined before the Court turned hostile, even gone to the extent of denying that she is not aware of the deceased. But, this witness was treated as hostile and cross examined this witness by way of question and answer. When the question was put to the witness that why the deceased took the passport photo of her, only answer was given that her sister's daughter in a

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summer holidays while taken the photo that may be lost and the same may be gone to the hands of the deceased and no proper reason was given. When further question was put to her that why election identity card was given to him and once again says that sister's daughter taken the same and might have gone to the hands of deceased. When further question was put to the witness, calls are received by her from the deceased on several occasions, but says that she did not receive the same, but in an ingenious method she says that wrong numbers are received and with regard to the accused No.2 is residing along with them and the same is admitted, but in the cross examination, says that she is not aware of the said Ashok and children were not knowing the call which she was receiving, but in further cross examination, categorically admits that on 11.09.2017 when the question was put that Ashok i.e., deceased came to Davanagere and witness volunteers that she is not aware of the same. However, categorically admits that when she went to see

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the deceased to Davanagere railway station in an auto belongs to accused No.3 along with her, accused No.1 and 2 are also accompanied her and hence, it is very clear that the P.W.17 has turned hostile in order to protect her son accused No.1 and also the sister’s son accused No.2 and not telling the truth. Hence, it is clear that on the date of committing the murder, all of them were together and met the deceased in the Davanagere railway station. This evidence of admission given by P.W.17 also not controverted by the counsel appearing for the accused while cross examining this witness. Hence, it is very clear that this witness is a last seen witness of the deceased and all of them were together including accused No.1 to 3 and P.W.22 evidence is consistent.

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The other witness is P.W.22 to connect the accused persons and he says that he was working in a spirit bar and identifies the accused No.1 to 3 that he had witnessed them in a spirit bar and they came to bar at around 7:00 p.m., to 8:00 p.m., in order to purchase the

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liquor and there were 3 to 4 persons, one more person was there he was aged and police brought one of the accused to the bar. In the cross examination of this witness, when P.W.22 gives the evidence that he identified the accused persons as well as all the three came along with one person in the cross examination of this witness also, nothing is elicited with regard to identifying the accused along with another person in the cross examination and the evidence of P.W.22 is not controverted while cross examining this witness and hence, it is very clear that the P.W.17 though turned hostile and P.W.22 was cross examined, in both the evidence of witnesses, it is very clear that on the particular day, deceased came to Davangere and accused No.1 to 3 went and met the deceased and the evidence of P.W.30 categorically deposes before the Court that on enquiry, P.W.17 revealed that these accused No.1 to 3 went along with the deceased Ashok.

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The other witness P.W.23-ATM security guard in

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his evidence also says that an amount of Rs.1,000/- was drawn and found the accused No.1 and also the deceased while drawing the money and this witness was examined with the help of CCTV footage. Though he says that he cannot identify the deceased person, but he categorically says that on the date of drawing of the amount, he was on duty. But, he was cross examined and in the cross examination, he says that CCTV footage is in respect of the ATM in which he works and in the further cross examination, he categorically admits that on the particular date, accused No.1 to 3 came along with other two persons and drawn the money for an amount of Rs.1,000/- and at around 10:20, they left the ATM, but when this answer was elicited from the witness who has turned hostile by this learned Public Prosecutor. In the cross examination of this witness also the accused persons did not controvert the evidence which was admitted in the cross examination when the Public Prosecutor elicited the

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answer and all these materials discloses that accused persons were there along with the deceased on the particular date.

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Now coming to the evidence of spot mahazar is concerned, Ex.P.2, no doubt Ex.P.1 is the complaint given by P.W.1, but he gave the complaint only against the unknown persons, but Ex.P.2-spot mahazar was conducted and the same is spoken by P.W.1 and P.W.2 and both of them support the case with regard to the conducting of the spot mahazar and witness I.O-P.W.41 also categorically deposes before the Court that spot mahazar was conducted in terms of Ex.P.2. The P.W.1 and P.W.2 also identifies the said signature and specifically P.W.1 and P.W.2 says that MO.1 to MO.8 were seized at the spot. The counsel appearing for accused No.1 and 2 says that not specifically deposed regarding seizure of MO.1 to MO.8, but MO.1 to MO.8 is spoken by the I.O even though not specifically mentioned the name of MO.1 to MO.8, but evidence of P.W.41 is very clear.

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No doubt, learned counsel appearing for the

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appellant relying upon the judgment referred supra contend that the evidence of P.W.41 cannot be accepted and the said contention cannot be accepted I.O as well as P.W.1 and P.W.2 spoken about the seizure of the article at the spot i.e., MO.1 to MO.8 and also FSL report is very clear that the blood which was found at the spot is human origin of ‘AB’ blood group.

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Now coming to the seizure of the incriminating articles at the instance of the accused that is mobile of the deceased, ATM card of the deceased and also autorickshaw in which they proceeded and also the blood stained cloth of accused No.1 and 2 were seized and witnesses P.W.3 and P.W.4 speaks about the recovery at the instance of the accused and also it has to be noted that the pant and shirt belongs to the accused No.1 and 2 are marked as MO.11 to MO.14 and FSL is also positive that all these MOs that is MO.11 to MO.14 belongs to accused also stained with blood. The main argument of

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counsel appearing for appellant No.1 and 2 that there is no

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any blood grouping of accused as well as deceased, but counsel appearing for the State brought to notice of this Court that while conducting the spot mahazar in terms of Ex.P.2, blood was found at the spot and same was seized and sent to the FSL and FSL report is also very clear that except article 6, all MOs are stained with blood i.e., ‘AB’ blood group. Both found in the cloth of the deceased as well as the cloth of the accused. When such being the case and no injuries on the part of the accused No.1 and 2 that they have sustained. The very contention of the counsel appearing for the appellant No.1 and 2 that FSL report also will not comes to the aid of the prosecution cannot be accepted. When there is no any explanation on the part of the accused in 313 statement, how the blood stains of the deceased found in their cloth, nothing is stated. The spot mahazar Ex.P.2 is very clear that where the dead body was lying of the deceased blood was collected from the spot. When such being the case, it is very clear that blood

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was collected from the body of the deceased and the same was subjected to examination and hence, the contention of the counsel appearing for appellant No.1 and 2 in the absence of blood group, the said contention cannot be accepted.

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The other material available before the Court is the evidence of P.W.13 who is the son of the deceased and though he says that he came to Bangalore and the information received of committing the murder of his father along with his mother and the younger brother and witness was also confronted the document of CD – MO.20 and identify his father and the person with him as the accused No.1 who is before the Court and in MO.1(a) the photograph of a lady and her identity as Chandramma and categorically says that she was doing cleaning and sweeping work in the temple in which her father was a priest. Even mahazar was conducted in terms of Ex.P.25 stating that both his father and mother were staying in that house. But, in the cross examination also even

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defence itself has elicited that he had only heard that his father was residing in a house with Chandramma, but he had not seen the house during his lifetime, but also defence got elicited the answer that people living in Thimmavaram told him about they are living together and also he volunteers that he had seen her before temple in Chennai. It is also not in dispute that the deceased was also a priest in the several temple at Chennai and Court has to take note of the evidence of P.W.17 and in chief evidence, she completely turned hostile, but in the crossexamination answers are elicited before the Court that receiving telephone call from the deceased and also the election identity card belongs to her with Ashok, but only in an ingenious method answer is given that she has given the card and passport size photo to his sister's daughter and might have gone to the custody of the said Ashok and also answer elicited from the mouth of the P.W.17 that she went and met the deceased on the particular date at Davangere, went along with accused No.1 and 2 in an

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autorickshaw belongs to the accused No.3 is not controverted and when all this material discloses with regard to the illicit relationship between the P.W.17 and deceased and he came to know about the deceased and the same was came to his knowledge and the said deceased passed away and having witnessed the TV, came to know that accused No.1 and 2 committed the murder. The deceased was resident of Tamilnadu and also he speaks that he came to know that mother of accused No.1 and also the deceased were together and they came to house 20 days back and hence, not having any document. He categorically admits that he came to know about the same only through the TV, but the fact is that P.W.13-son of the deceased also categorically says that both of the deceased as well as the P.W.17 were living together in Chennai for a period of one and half years and when such being the case, it clearly discloses connection of the P.W.17 and deceased that they were in illicit relationship.

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The other witness is P.W.15-owner of the

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autorickshaw. In his evidence he says that he came to know about both of them having illicit relationship and murder was taken place for that reason and also says that other two persons were there along with the driver of the autorickshaw. In the cross examination, no doubt he says that he came to know about through the Police, but overall taking into note of the evidence, it is very clear that the deceased was working as a priest and also having contact with P.W.17. The P.W.17 was also working in the very same temple as a Coolie. When such being the case, the motive is attributed against the accused persons that they took the life of the deceased only on the ground that in order to prevent the illicit relationship with P.W.17 and the deceased, the murder was committed. The motive for committing the murder is with regard to the illicit relationship between P.W.17 and also the deceased. The fact that accused No.2 was also staying along with the P.W.17 is admitted clearly by P.W.17 and P.W.17 also

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admits that accused No.1 is her son. The witnesses also spoken with regard to the recovery of mobile belongs to the deceased and ATM card and ATM also used on the very particular date on the date of the incident was spoken by the bank officials that the ATM card was used and also drawn the amount of Rs.1,000/- and in the voluntary statement also says that having remaining amount of Rs.300/- with them and going to produce the same and when MO.9-ATM card was seized at the instance of the accused and also the mobile was seized at the instance of the accused and CCTV footage also clearly discloses with regard to the drawing of the amount. All these circumstances goes against the accused persons. The voluntary statement of Ex.P.61 and Ex.P.62 is very clear with regard to the recovery at the instance of the accused and the portion of the voluntary statement is admissible, but remaining voluntary statement is not admissible.

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It is also important to note that in the cross examination of witnesses P.W.30 and P.W.32 regarding

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photo of the Chandramma was found and Chandramma given the details about the accused No.1 and 2 is not controverted. In the cross examination of P.W.32, not denied the ATM card belongs to the deceased as well as how the ATM card belongs to the deceased, came to the custody of the accused and there was no any explanation in 313 statement and incriminating articles were found at the instance of the accused. When such being the case, having considered the material available on record with regard to the motive and also last seen theory as well as recovery of articles belongs to the deceased at the instance of the accused as well as blood stains clothes of the accused found the blood grouping of the deceased and only contention that there was no any TI parade to identify the accused persons by P.W.22 cannot be accepted. Immediately after the incident, on the very next day accused was arrested and the P.W.22 immediately identified the accused because the incident was taken place on the previous date of 11.09.2017. When such

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being the case, the very contention that TI parade is conducted cannot be accepted. Having considered all these materials available on record, it is very clear that incriminating materials were recovered at the instance of the accused No.1 and 2 and also the evidence available before the Court point out the role of the accused No.1 and 2.

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No doubt accused No.3 took the autorickshaw to the railway station to see the deceased, but there is no any overt act allegation against accused No.3 and also with regard to the sharing of common intention, nothing is found and only the accused No.3 was present at the time of the incident and unless any role played by the accused, invoking of offence under Section 302 against the accused No.3 cannot be accepted. No doubt Trial Court committed an error in convicting the accused No.3. It was not the case of prosecution that accused No.3 had the knowledge of the conspiracy between the accused No.1 and 2. It is the case of the prosecution that accused No.1 and 2 only

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having common intention to eliminate the deceased in view of the illicit relationship and also it has to be noted that P.W.19 though he is an eye witness, he was also along with the accused No.1 to 3 and he was cited as a witness and Investigating officer, when the role of the accused No.3 is also similar to the P.W.19, who was also very much present at the time of the incident but not arrayed as an accused and eventhough arrayed as an accused as A3, but nothing is found to connect the accused No.3 that he was having a common intention to invoke Section 34 of IPC to convict him along with accused No.1 and 2. The material clearly discloses the role of accused No.1 and 2 to connect the accused in the crime and all these circumstances goes against accused No.1 and 2 and not against accused No.3 and merely because he was present, he cannot be termed as he was also having the common intention unless common intention is brought out in the evidence of the prosecution witnesses. When such being the case, we do not find any error on the

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part of the Trial Court in convicting the accused No.1 and

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2, but we find the error on the part of the Trial Court in convicting the accused No.3 in coming to the conclusion that he was very much present at the incident and he was also shared the common intention, but the voluntary statement of the accused is also very clear that both accused No.3 as well as P.W.19 were threatened not to reveal the same to anybody and when such being the case, convicting the accused No.3 for the offence under Section 302, invoking Section 34 of IPC is erroneous and the same leads to the miscarriage of justice.

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The learned counsel for the appellant would submits that it is the case of bringing the same to the Section 304 part I that there was no any intention and no preparation and hence, the Court has to reduce the sentence. The counsel appearing for the respondent-State would submits that it is a case of brutal murder and he was taken to a lonely place and dropped the stone on the

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head and the same has resulted in instantaneous death at

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the spot and hence, not a case for invoking 304 Part I.

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Having heard the learned counsel for the appellant and also the counsel appearing for the Staterespondent and also considering the material available on record, it is very clear that accused No.1 and 2 accompanied with their mother to the railway station and thereafter, both of them took the deceased along with them in an autorickshaw belongs to the accused No.3 and not only taken, even made him to consume the liquor by purchasing the same from the bar and the same is spoken by P.W.22 and after making him to consume the liquor, dropped the stone on the head which is marked as MO and also Court has to take note of M.O weighs about 1,375 grams and if the same is dropped on the vital part of the head, it likely to cause death and hence, the contention of the counsel appearing for the appellant that there was no intention cannot be accepted when the victim was made to fall on the ground and thereafter, accused No.2 held him

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and accused No.1 dropped the stone on the head. When such being the case, the very contention that there was no any intention to commit the murder cannot be accepted and hence, it is not a case to bring the case within the purview of Section 304 part I as contended by the appellant’s counsel and hence, we answered the point accordingly.

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