JUDGMENT : R. SUBBIAH, J. 1. The appellant is the sole accused in S.C. No. 253 of 2012, on the file of the II Additional District and Sessions Court, Thanjavur. He stood charged for the offence punishable under Section 302 I.P.C. By Judgment dated 17.04.2014, the trial Court has convicted the accused and sentenced him, as detailed below: Section of Law Sentence of imprisonment Fine amount 302 IPC To undergo imprisonment for life. Rs. 5,000/- in default to undergo simple imprisonment for six months. Challenging the said conviction and sentence, the appellant/accused has come up with this Criminal Appeal. 2. The case of the prosecution, as put forth by its witnesses, is consciously narrated below: 2.1. On 24.12.2010 at 05.15 p.m., the deceased Punniyamoorthy took the accused Sathiyaraj to his hut situated at Annal Agraharam, Kalimuthu Nagar Housing Colony and compelled him to have unnatural sex. When the accused refused, the deceased indulged in a fight, in which, the accused took a wooden stool and attacked the deceased indiscriminately and also picked up a grinding stone and hit him on his head, shoulder and thus, caused the death of the deceased and took the cell phone of the deceased and fled away from the scene of occurrence. 2.2. On 25.12.2010 at 09.30 a.m., P.W. 1 - Vivekanandan, who is the son of the deceased was informed by one Marimuthu that his father is lying dead in a pool of blood near Housing Board Colony, Kalimuthu Nagar. Immediately, P.W. 1 along with his mother - Tamilzharasi and his elder brother/P.W. 2 - Selvam rushed to the scene of occurrence between 10.00 a.m., and 10.15 a.m., and found the dead body of his father lying in a stagnated rain water. There were blood injuries on the hands, legs, forehead and eyebrows of the deceased and there was a deep cut injury near the eyebrow and a grinding stone was found on his head. They also found that the television, cycle and suit case in the house of the deceased were broken. A Samsung cell phone of the deceased was found missing. P.W. 1 and his elder brother - P.W. 2 shifted the dead body of the deceased from the stagnated rain water and informed about the death of their father to the Village Administrative Officer over phone. Thereafter, P.W. 1 went to the Patteswaram Police Station and lodged a complaint - Ex. P.W. 1 and his elder brother - P.W. 2 shifted the dead body of the deceased from the stagnated rain water and informed about the death of their father to the Village Administrative Officer over phone. Thereafter, P.W. 1 went to the Patteswaram Police Station and lodged a complaint - Ex. P.1 at about 11.00 a.m., on that day itself with P.W. 10 - Sub Inspector of Police. P.W. 10 on receipt of the complaint - Ex. P.1, registered a case in Cr. No. 315 of 2010 under Section 302 I.P.C. and forwarded the same to the Inspector of Police, East Police Station, Kumbakonam, who was in-charge of Patteswaram Police Station. 2.3. P.W. 8 - Velmurugan, Inspector of Police, took up the investigation and rushed to the scene of occurrence on 12.00 noon on 25.12.2010 and prepared an Observation Mahazar -Ex. P.6 and Rough Sketch - Ex. P.7 in the presence of the witnesses. Ex. P.8 was the printed F.I.R. Thereafter, he conducted inquest on the dead body of the deceased in the presence of Panchayatdars and the inquest report was Ex. P.9. Then, he forwarded the dead body of the deceased to the Government Hospital through P.W. 9 - Head Constable for postmortem. 2.4. P.W. 12 - Dr. Prabhu conducted the post-mortem on the dead body of the deceased on 26.12.2010 at 11.30 a.m., and he found the following injuries: "External Injuries: (1) Deep lacerated wound 4 x 3 x 3 cm present left fronto parietal region. (2) Deep lacerated wound 3 x 2 x 2 cm present right fronto parietal region. (3) Deep lacerated wound 4 x 3 x 2 cm present left parieto occipital region. (4) Deep lacerated wound 3 x 2 x 2 cm present occipital region (entering to both side of occiput). (5) Lacerated wound 2 x 1 x 1 cm present right parieto occipital region. (6) Lacerated wound just lateral to right eye of size 3 x 2 x 1 cm involving also the lateral aspects of right eye. (7) Abrasion 2 x 1 cm present right V finger. (8) Lacerated wound 2 x 1 x 1 cm present left II & III fingers. (9) Abrasion over the scrotal region & penis. (10) Multiple Abrasion present over the both shoulder/both Knees/left side of chest/entire Abdomen/left Thigh/Upper donal spine region of various dimensions brownish red in colour." [extracted as such] 2.5. (8) Lacerated wound 2 x 1 x 1 cm present left II & III fingers. (9) Abrasion over the scrotal region & penis. (10) Multiple Abrasion present over the both shoulder/both Knees/left side of chest/entire Abdomen/left Thigh/Upper donal spine region of various dimensions brownish red in colour." [extracted as such] 2.5. During the course of the investigation, on 25.12.2010 at about 02.45 p.m., P.W. 8 recovered M.O. 1 to M.O. 12 and also collected the blood stained earth and sample earth in the presence of P.W. 3 and one Raju under the seizure mahazar - Ex. P.2. The blood stained earth, sample earth and three buttons were marked as M.O. 14 to M.O. 16. He also recovered a dark blue jeans pant, a polyester shirt and three buttons, a torn shirt, a lungi and a blood stained dhoti in the presence of the same witnesses which were marked as M.O. 17 to M.O. 20. Thereafter, P.W. 8 recorded the statements of P.W. 1, P.W. 2 and P.W. 3 and since he had been transferred, he handed over the investigation to P.W. 11-Sivakumar, Inspector of Police. 2.6. P.W. 11, on 30.01.2011 at about 06.00 p.m., while he was in regular vehicle check-up near Dharmakulam, Kumbakonam, found the accused moving in a suspicious manner and when he called the accused, he came and voluntarily gave a confession statement that he had murdered the deceased Punniyamoorthy and stolen his cell phone and gave it to a shop owner, namely, Ahamed Thabir. P.W. 11 proceeded to the said shop and recovered a Samsung - 1160 model cell phone in the presence of one Rajesh Kanna and Vijayakumar. Thereafter, he sent the accused for judicial custody. 2.7. Thereafter, P.W. 13 - Christopher, Inspector of Police took up the investigation and recorded the statement of P.W. 9, who handed over the dead body to the Doctor for conducting post-mortem and then, made a request to the learned Judicial Magistrate No. I, Kumbakonam, to record the statement of the accused and when the learned Judicial Magistrate informed the accused that it is not compulsory to give a statement, he expressed his unwillingness to give a statement. The request given by P.W. 13 - Inspector of Police as well as the Court proceedings were marked Ex. P.11. The request given by P.W. 13 - Inspector of Police as well as the Court proceedings were marked Ex. P.11. Thereafter, P.W. 13 - Inspector of Police made a request to the learned Judicial Magistrate on 31.01.2011 to conduct an identification parade and on 11.02.2011 at 11.00 a.m., the identification parade was conducted in Trichy Central Prison, in which, P.W. 5 and P.W. 6 identified the accused and then, P.W. 13 handed over the investigation to P.W. 15. 2.8. P.W. 15 took up the investigation and he recorded the statements of the forensic expert and the Doctor who conducted the post-mortem on the dead body of the deceased and on completion of the investigation, he laid the charge sheet against the accused under Section 302 I.P.C. 2.9. Based on the above materials, the trial Court had framed a charge under Section 302 I.P.C., against the accused. When the accused was questioned in respect of the charge, he pleaded innocence. In order to prove the charge, on the side of the prosecution, as many as 15 witnesses were examined as P.W. 1 to P.W. 15 and Exs. P.1 to P.12 were marked, besides twenty Material Objects (M.O. 1 to M.O. 20). 2.10. When the accused was questioned under Section 313 Cr.P.C., with reference to the incriminating materials adduced by the prosecution, the accused denied his complicity in the crime and pleaded innocence. However, on the side of the accused, neither oral nor documentary evidence was let in. 2.11. The trial Court, after considering the oral and documentary evidence, has found the accused guilty of the charge under Section 302 I.P.C., and accordingly, convicted and sentenced the accused, as stated supra. Challenging the said conviction and sentence, the appellant/accused has come forward with the present Criminal Appeal. 3. The learned Counsel for the appellant/accused submitted that as per the prosecution case, nobody had seen the commission of the offence and the entire case of the prosecution rests upon the circumstantial evidence. The prosecution has no direct evidence in order to prove the charge against the appellant/accused. As per the case of the prosecution, on 24.12.2010 at about 05.15 p.m., the deceased took the appellant/accused to his hut for having unnatural sex and since the appellant/accused refused for the same, there was a fight between them. The prosecution has no direct evidence in order to prove the charge against the appellant/accused. As per the case of the prosecution, on 24.12.2010 at about 05.15 p.m., the deceased took the appellant/accused to his hut for having unnatural sex and since the appellant/accused refused for the same, there was a fight between them. At the height of provocation and fury, the appellant/accused picked up a stool and attacked the deceased indiscriminately and also took a grinding stone and hit him on his head. Thereafter, he took the cell phone of the deceased and fled away from the scene of the occurrence and the said cell phone was given to P.W. 7 who is running a mobile shop, for repair. However, when the said cell phone - M.O. 13 was shown to P.W. 7, in his cross-examination, he stated that M.O. 13 is not the cell phone which was given by the deceased to him for repair. Therefore, though it is the case of the prosecution that the cell phone was taken by the appellant/accused, the said cell phone was not marked and the recovery of the same was not proved. 4. He further submitted that the case of the prosecution solely rests upon the circumstantial evidence and except the testimony of P.W. 5 and P.W. 6, who are said to have seen the deceased and the appellant/accused together prior to the commission of the offence, no other circumstances have been proved by the prosecution. There were lapses on the investigation and missing links in the theory propounded by the prosecution, thereby, creating serious doubts in the prosecution case and hence, the appellant/accused is entitled to benefit of doubt. 5. Moreover, the learned Counsel for the appellant/accused contended that the appellant/accused has neither acted with any prior motive nor armed with any deadly weapon to commit the crime on the deceased. Even according to the charge, the appellant/accused was compelled by the deceased to have unnatural sex and so, the appellant/accused attacked the deceased with a stool lying there. 6. He also submitted that the confession statement has clearly stated that the deceased compelled him to have an unnatural sex with him and since he refused for the same, there was a sudden fight and in the heat of the said fight, the appellant/accused attacked the deceased with a stool. 6. He also submitted that the confession statement has clearly stated that the deceased compelled him to have an unnatural sex with him and since he refused for the same, there was a sudden fight and in the heat of the said fight, the appellant/accused attacked the deceased with a stool. Therefore, even as per the charge, there was a fight and only due to the sudden provocation, the appellant/accused attacked the deceased and if any portion of the confession statement is in favour of the appellant/accused, the same can be used in his favour. In this regard, he placed reliance on the judgment in Mottai Thevar's case reported in AIR 1952 Mad 586 . 7. Further, the learned Counsel for the appellant/accused submitted that the motive for the offence has not been proved and when the case being based on circumstantial evidence, the aspect of proving the motive is must and in failure to prove the same, the last seen theory projected by the prosecution cannot be accepted and further, there are number of doubts and loopholes in the prosecution theory and thereby, benefit of doubt has to be extended to the appellant/accused and thereby, the appeal is to be allowed and conviction to be set aside. Alternately, he prayed for reduction of the sentence imposed on the appellant/accused. 8. Per contra, the learned Additional Public Prosecutor appearing for the State submitted that the case of the prosecution rests upon circumstantial evidence and the prosecution through overwhelming oral and documentary evidence, had proved the chain of circumstances without any missing link and the trial Court on proper consideration and appreciation of evidence available, had rightly convicted the appellant/accused. Further, he submitted that it is incorrect to state that the last seen theory was not proved by the prosecution and the identification parade was conducted and P.W. 5 and P.W. 6 had identified the appellant/accused who was in the company of the deceased on 24.12.2010 at 05.15 p.m., in the hut of the deceased and hence, the prosecution had proved its case beyond all reasonable doubts and therefore, prayed for the dismissal of this appeal. 9. We have heard Mr. M. Karunanithi, learned Counsel for the appellant/accused and Mr. K. Dinesh Babu, learned Additional Public Prosecutor appearing for the State. We have scrupulously and consciously examined the evidence and materials available on record with the onerous responsibility imposed on us. 9. We have heard Mr. M. Karunanithi, learned Counsel for the appellant/accused and Mr. K. Dinesh Babu, learned Additional Public Prosecutor appearing for the State. We have scrupulously and consciously examined the evidence and materials available on record with the onerous responsibility imposed on us. We have also gone through the judgment of the trial Court. 10. No doubt, the case on hand is one of circumstantial evidence resting on the evidence of P.W. 5 and P.W. 6 and the recovery of articles at the behest of the appellant/accused. We shall at the threshold point out that there is no eyewitness to the commission of murder and as such, the prosecution case rests solely on the circumstantial evidence. The Honourable Apex Court as well as our High Court in series of decisions have held that when a case rests upon the circumstantial evidence, the evidence let in by the prosecution must satisfy the following tests: "(i) Circumstances should be fully proved; (ii) Circumstances should be conclusive in nature; (iii) All the facts established should be consistent only with the hypothesis of guilt; (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused and that suspicion, however grave, cannot be taken place of legal proof and the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be compatible with the innocence of the accused or the guilt of any other person." 11. It is the first and foremost submission of the learned Counsel for the appellant/accused that the prosecution has miserably failed to prove the case of the circumstantial evidence as there are missing links in the chain of circumstances and thus, the same is incomplete. 12. However, on a careful scrutiny of the evidence of P.W. 5 and P.W. 6, we find that the evidence of P.W. 5 and P.W. 6 would clearly prove the last seen theory and they have seen the appellant/accused in the company of the deceased. P.W. 5 had stated that on 24.12.2010 in the evening hours, when he went to the hut of the deceased to ask him as to whether he was in need of tea powder, he saw the accused along with the deceased and the deceased informed him that the appellant/accused came from Pattukottai. P.W. 5 had stated that on 24.12.2010 in the evening hours, when he went to the hut of the deceased to ask him as to whether he was in need of tea powder, he saw the accused along with the deceased and the deceased informed him that the appellant/accused came from Pattukottai. When P.W. 5 enquired the deceased with regard to the presence of the appellant/accused, he had stated that the appellant/accused came from Pattukottai and he did not eat for two days. Since the deceased stated that he was not in need of tea powder, P.W. 5 went out of the place. 13. Similarly, P.W. 6 stated that on 24.12.2010 at 05.15 p.m., he saw the appellant/accused in the company of the deceased. When the deceased enquired the appellant/accused as to what for he had come, he stated that he wanted to meet one Vathu Ravi, who is at Patteeswaram. The deceased informed the appellant/accused that since it was very late, he can go by next morning. This was witnessed by P.W. 6 and on the next day morning, at about 09.30 a.m., the body of the deceased was found near the stagnated rain water and further, it is clearly established that the appellant/accused stayed along with the deceased in his hut and on the next day, the deceased was found dead and thus, the last seen theory projected by the prosecution is undoubtedly proved through the evidence of P.W. 5 and P.W. 6. Further, P.W. 5 and P.W. 6 had identified the appellant/accused for three times in the identification parade conducted by the learned II Additional District Munsif cum Judicial Magistrate No. 1, Kumbakonam. P.W. 5 and P.W. 6 had no axe to grind against the appellant/accused to depose falsely. Thus, from the evidence of P.W. 5 and P.W. 6, it has been clearly established that the appellant/accused stayed along with the deceased in his hut. But, the appellant/accused has failed to offer any probable and satisfactory explanation on the basis of the facts within his knowledge and hence, it is to be construed that he failed to discharge the burden cast upon him under Section 106 of the Indian Evidence Act. As the appellant/accused has failed to offer a reasonable and plausible explanation in discharge of his burden placed on him, that itself provides an additional link in the chain of circumstances against him. 14. As the appellant/accused has failed to offer a reasonable and plausible explanation in discharge of his burden placed on him, that itself provides an additional link in the chain of circumstances against him. 14. However, it is the specific contention of the learned Counsel for the appellant/accused that a portion of the confession statement given by the appellant/accused was to the effect that since the appellant/accused was compelled by the deceased to have an unnatural sex, there was a fight and in the height of the said fight, he assaulted the deceased with a stool and the same can be used in favour of the appellant/accused. In support of the same, he placed reliance on the judgment of this Court in Mottai Thevar's case reported in AIR 1952 Mad 586 . 15. In Mottai Thevar's case (cited supra), after commission of the crime, the accused surrendered to the Police and gave a statement which was confession in nature, based on which the F.I.R was registered and only thereafter, the investigation commenced and considering the same, the Division Bench of this Court has clearly held that under Section 25 of the Evidence Act, a Police confession cannot be proved as against the accused person, but it can be used in favour of the accused person. 16. Further, the Division Bench of this Court in Sudalaimani v. State reported in 2014-2-L.W. (Crl.) 372 : 2014 (4) CTC 593 , while distinguishing the ratio laid down in Mottai Thevar's case (cited supra), held that "If a confession is given to the Police Officer before the start of investigation, then it can be used in favour of the accused as held in Mottai Thevar's case. If it is given after the commencement of the investigation, its use even in favour of the accused is barred by Section 162 Cr.P.C." 17. Insofar as the present case is concerned, the appellant/accused gave a confession statement after commencement of the investigation and therefore, the submission of the learned Counsel for the appellant/accused that a portion of the confession statement made by the appellant/accused can be used in his favour, cannot be accepted. 18. At the same time, the very charge itself shows that the deceased compelled the appellant/accused to have an unnatural sex. 18. At the same time, the very charge itself shows that the deceased compelled the appellant/accused to have an unnatural sex. In that event, had the appellant/accused taken a defence before the trial Court that he had assaulted the deceased in the course of private defence, this Court will not have any hesitation to hold that the act of the appellant/accused will come under the purview of "Private Defence", but no such defence had been taken by the appellant/accused before the trial Court. On the other hand, the appellant/accused totally denied the offence. Therefore, this Court has no other option except to come to the conclusion that the guilt had been proved against the appellant/accused. 19. However, the charge itself will not attract the provisions of Section 302 I.P.C. Having come to the conclusion that it was the appellant/accused, who caused the death of the deceased by attacking him with a stool and a grinding stone, now we have to examine as to what was the offence that was committed by the appellant/accused. The appellant/accused was not armed with any weapon and it was not a premeditated one. The deceased sought the indulgence of the appellant/accused to engage in an unnatural sex to yield his cranial desire and when the deceased compelled the appellant/accused to have an unnatural sex, the appellant/accused attacked the deceased with a stool and hit the head of the deceased with a grinding stone and thus, in the height of the fight, the appellant/accused assaulted the deceased and such an action was not an intended one. Thus, though the act of the appellant/accused would fall within the fourth limb of Section 300 I.P.C., his act would squarely fall under Exception 4 to Section 300 I.P.C. Therefore, the appellant/accused is liable to be punished only under Section 304(i) I.P.C. 20. Now coming to the quantum of punishment, as we have already pointed out, there was no premeditation and the appellant/accused did not use any weapon and when the deceased compelled the appellant/accused to have an unnatural sex, the appellant/accused assaulted the deceased with a stool and hit the head of the deceased with a grinding stone. Due to the sudden fight between the deceased and the appellant/accused, the occurrence took place. Due to the sudden fight between the deceased and the appellant/accused, the occurrence took place. Having regard to all these mitigating as well as aggravating circumstances, we are of the view that sentencing the appellant/accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- (Rupees Five Thousand only) in default, to undergo simple imprisonment for six months, for the offence under Section 304 (i) I.P.C., would meet the ends of justice. 21. In the result, (i) This Criminal Appeal is partly allowed; (ii) The conviction and sentence imposed on the appellant/accused in S.C. No. 253 of 2012 by the learned II Additional District and Sessions Judge, Thanjavur, for the offence under Section 302 I.P.C., are set aside; (iii) The appellant/accused is convicted under Section 304(i) I.P.C., and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- (Rupees Five Thousand only), in default, to undergo simple imprisonment for six months. (iv) The period of sentence already undergone by the appellant/accused shall be given set off under Section 428 Cr.P.C. (v) Fine amount, if any, paid by the appellant/accused shall be duly adjusted; (vi) The bail bond, if any, executed by the appellant/accused shall stand cancelled and the respondent police is directed to secure the appellant/accused and produce him before the trial Court to undergo the remaining period of sentence.