REPORTABLE

      IN THE SUPREME COURT OF INDIA       CRIMINAL APPELLATE JURISDICTION        

                    CRIMINAL APPEAL NO. 1399 OF 2004      

  Ramachami       .....      Appellant

VERSUS

  State rep. By State Prosecutor          .....      Respondent

 J U D G M E N T

DR.ARIJIT PASAYAT,J.

1. Heard learned counsel for the parties.

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 the Indian Penal Code, 1860 (for short 'IPC').  He faced

trial for  offence  punishable  under Section

   ..2/-

.2.

324 IPC, but he was found to be not guilty of that charge.   Life imprisonment and fine of

Rs.10,000 were imposed.  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 '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 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 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.

5. Learned  counsel  for  the  respondent,  on  the  other  hand,  supported  the

judgment of the High Court.  

 ..3/-

.3.

6. The circumstances,  which  were  pressed into  service  by  the  prosecution to

connect the accused with the offences, are 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 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 (the version of PW1 and PW2).

(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 deposition of PW1 and

PW2).

(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 PW3).

                                   ..4/-

.4.

(v) the police were able to recover M.O.I.  (the wooden stick

allegedly used for beating the deceased Kuttappan) from a

particular place in the hotel 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  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 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.   

8. However,  considering  nature  of  the  injuries,  we  are  of  the  view  that  the

appropriate conviction under Section 304 Part II 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 7½ years.   

  ..5/-

.5.

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 IPC shall run concurrently.    

10. The appeal is allowed to the aforesaid extent.   

          ......................J.

[DR. ARIJIT PASAYAT]

    ......................J.        [C.K. THAKKER]

    ......................J.      [LOKESHWAR SINGH PANTA]

NEW DELHI October 22,2008.