RAMACHAMIversusSTATE REP. BY STATE PROSECUTOR

                         [2008] 15 S.C.R. 46
                                                                       r
A                           RAMACHAMI
                                  v.           ..
              STATE REP. BY STATE PROSECUTOR
                (Criminal Appeal No.1399 of 2004)
                                                                             :
B                       OCTOBER 22, 2008
           [DR. ARIJIT PASAYAT, C.K. THAKKER AND                       ~

                LOKESHWAR SINGH PANTA, JJ.]

        Penal Code, 1860:
c
          ss. 304 (part II) and 392 - Conviction of accused ulss 302
     and 392 on the basis of circumstantial evidence - Upheld by
     High Court - HELD: The circumstances established are
    sufficient to hold the accused guilty - However, considering
D the nature of injuries, accused convicted u/s 304(par:t II) -        f

     Custodial sentence of 8 years would meet-the ends of justice
    - Conviction and sentence uls 392 need no interf.erence -
    Both the sentences to run concurrently - Circumstantial
    evidence.
E
          Appellant-accused was convicted ulss 302 and 392
    IPC by the trial court on the basis of the circumstances
    that he was seen along with the deceased, his co-                  )-
                                                                            ).




    worker, on the night of occurrence and they were alone
F in the hotel; that the accused knew where the deceased .
  . kept his money; that the following morning the deceased,
    sustaining injuries was found on the floor of the hotel
    near the cash counter; that the accused was absconding
    till his arrest; that the police recovered the weapon of
G crime (a stick) from hotel premises at the instance of the
    accused. The conviction was upheld by the High Court.
    Aggrieved, the accused filed the appeal.

        Partly allowing ·the appeal, the Court
H                                 46
 RAMACHAMI v. STATE REP. BY STATE PROSECUTOR               47


     HELD: 1.1. The circumstances clearly establish that A
the accused was employed in the hotel and used to sleep
in the hotel, and on the night ·of occurrence both the
deceased and the accused were alone in the hotel. The
evidence of PW1, PW2 and PW3 in this regard is clear,
cogent and credible. Additionally, the accused and the B
deceased were last seen together on the previous night.
The appellant was absconding and was arrested long
after the incident. The circumstances are sufficient to
hold the accused guilty. [Para 7] (49-E-G]
                                                                 c
      1.2. However, considering nature of the injuries, the
appropriate conviction would be under Section 304 (Part
II) IPC and custodial sentence of 8 years would meet the
ends of justice. Conviction and sentence u/s 392 IPC
need no interference. Both the sentences u/ss. 304 and           o
392 IPC shall run concurrently. [Para 8 and 9] [49-G-H; 50-
A, B]
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1399 of 2004.
                                                                 E
     From the final Judgment and Order dated 3.10.2003 of the
High Court of Kerala at Ernakulam in Criminal Appeal No. 436
of 2001.

     V.N. Raghupathy for the Appellant.
                                                                 F
     G. Prakash for the Respondent.

     The Judgment of the Court was delivered by

     DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the
parties.                                                         G

     2. Challenge in this appeal is to the judgment of the
Division Bench of the Kerala High Court upholding the
conviction of the appellant for offences punishable under
Sections 392 and 302 of th~ Indian Penal Code, 1860 (for short   H
    48           SUPREME COURT REPORTS              [2008] 15 S.C.R.


A   'IPC'). He faced trial for offence punishable under Section 324
    IPC, but he was found to be not guilty of that charge. Life
    imprisonment and fine of Rs.10,000 were im!losed. It was
    directed that in case the fine was collected, the same was to
    be paid to the widow of Kuttappan (hereinafter referred to as
B   'the deceased').

          3. The prosecution version essentially rested on
    circumstances. The trial court found that the circumstances were
    sufficient to hold the accused guilty. Accordingly, conviction, as
c   noted above, was recorded. In appeal, the High Court did not
    find any substance in the plea of the appellant and upheld the
    conviction.

        4. In support of the appeal, learned counsel for the
    appellant submitted that the prosecution has not proved that the
0
    appellant was, at any point of time, employed at the hotel and
    present case is one where the wrong person has been picked
    up and has been convicted. Alternatively, it was submitted that
    an offence under Section 302 IPC is not made out.
E       5. Learned counsel for the respondent, on the other hand,
    supported the judgment of the High Court.

         6. The circumstances, which were pressed into service by
    the prosecution to connect the accused with the offences, are
F   as follows:

          (i)     the deceased Kuttappan and the accused
                  Ramachamy used to sleep in the hotel itself in the
                  night and on 3.2.1998 in the night they two were
G                 alone in the hotel (the evidence of PW1, PW2 and
                  PW3).

          (ii)    The deceased used to keep his money in the
                  pocket of his brief and this fact was known to the
                  other inmates of the hotel, including the accused
H
      RAMACHAMI v. STATE REP. BY STATE PROSECUTOR                   49
                  [DR ARIJIT PASAYAT, J.]
 "                 (the version of PW1 and PW2).                          A

           (iii)   On 4.2.1998 early in the morning by 6 O'clock when
                   PW1 and PW2 reached the hotel as usual for work,
                   they saw Kuttappan lying down sustaining injuries
                   on the floor of the hotel near the cash counter (the   B
                   deposition of PW1 and PW2).
7l
           (iv)    The accused who was along with the deceased in
                   the hotel on the"prevision night was not seen
                   anywhere near there and he had been absconding
                   since then till his arrest (evidence of PW1, PW2 and
                                                                          c
                   F'W3).

           (v)     the police were able to recover M.0.1. (the wooden
                   stick allegedly used for beating the de'ceased
 \                 Kuttappan) from a particular place in the hotel D
                   premises on the basis of the statement of the
                   accused while he was in custody (the evidence of
                   PW1, PW2 and PW3 and PW12).

           7. The circumstances clearly establish that the accused        E
     was employed in the hotel and used to sleep in the hotel and
     on the night of occurrence, both the deceased and the accused
     were alone in the hotel. The evidence of PW1, PW2 and PW3
     in this regard are clear, cogent and credible. Additionally, the
     accused and the deceased were last seen together on the              F
     previous night. The appellant was arrested long after the
     incident, i.e., on 29.11.1998 and was absconding during the
     aforesaid period. The circumstances, according to us, are
     sufficient to hold the accused guilty.
                                                                          G
          8. However, considering nature of the injuries, we are of
     the view that the appropriate conviction under Section 304 Part
     11 IPC and custodial sentence of 8 years would meet the ends
     of justice. It is stated that the appellant has already suffered
     custody of more than 71/2 years.                                     H
    50          SUPREME COURT REPORTS              [2008] 15 S.C.R.


A      . 9. So far as the conviction under Section 392 IPC and the
    sentence imposed are concerned, there is no infirmity therein
    to warrant interference. Both the sentences in respect of
    Section 304 Part II IPC and Section 392-_JPC shall run
    concurrently.
B
           10. The appeal is allowed to the aforesaid extent.

    R.P.                                     Appeal Partly allowed.