JUDGMENT : RMT. TEEKAA RAMAN, J. Prayer: Criminal Appeal filed under Section 374 (2) of Cr.P.C. against the judgment passed by the learned I Additional District and Sessions Judge, Erode, in S.C. No. 18 of 2016, dated 29.09.2016, convicting the appellant under Section 302 of IPC to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for a period of 6 months. 1. Challenge is made to the judgment passed by the learned I Additional District and Sessions Judge, Erode, in S.C. No. 18 of 2016, dated 29.09.2016, whereby, the sole accused/appellant stood charged and tried under Section 302 IPC and on trial, he was found guilty under Section 302 IPC and awarded imprisonment for life along with fine and default sentence. 2. The case of the prosecution, in brief, is as follows:- (i) The respondent police filed charge sheet against the accused for the offence under Section 302 IPC alleging that the deceased Viswanathan, aged about 63 years, has served as a Commander in the Indian Navy for 17 years and retired. His wife Sundarambal and Son Sweendar are residing in America. The deceased Viswanathan alone was residing at Sengodampalayam, Erode. Four years back, the deceased Viswanathan was residing at Pandian Nagar near Kampuliyampatti at Door No. 4/281. The deceased Viswanathan was very much interested in homosexual sex and he called young boys to his house under the guise of getting job for them and gave them liquor and meat and have homosexual sex with them. (ii) The accused Bala alias Dhanapal was residing at Kollankadu Taluk, Pappampalayam, Tiruchengode. He completed 12th standard and obtained Auto Mechanic Course Certificate from KSR Polytechnic College at Tiruchengode. He wanted to join in the Army. The deceased Viswanathan used to go to the house of his brother Subramani at Pappampalayam. The accused contacted with the deceased Viswanathan and told the deceased Viswanathan his desire to join in the Army. The deceased Viswanathan asked the accused to come to his house at Sengodampalayam. (iii) After that, the deceased Viswanathan shifted his residence to Kampuliyampatti, Pandiyan Nagar and he told the accused that he will get a job for him in the Army and also gave him liquor and chicken and had homosexual sex with him. The deceased Viswanathan asked the accused to come to his house at Sengodampalayam. (iii) After that, the deceased Viswanathan shifted his residence to Kampuliyampatti, Pandiyan Nagar and he told the accused that he will get a job for him in the Army and also gave him liquor and chicken and had homosexual sex with him. The accused was also having homosexual sex with him under the impression that the deceased will get him a job in the Army. But the deceased Viswanathan not got him a job in the Army and hence, the accused was in angry against the deceased Viswanathan. (iv) On 26.08.2014, the deceased Viswanathan contacted over the cell phone of the accused bearing No. 8012145021 at about 12.30 hours, and told him to come to his house at about 8.30 p.m. The accused also came to the Vijayamangalam toll-gate and was waiting for the deceased Viswanathan. The deceased Viswanathan took the accused in his motorcycle. At that time, the deceased Viswanathan also brought the son of witness Alwin James Muthu and he gave tiffin to the accused in the Sakthi Bhavan Hotel near toll-gate and after that, the deceased Viswanathan took the accused to his house and after leaving the accused at his house, the deceased Viswanathan dropped the child at the house of the witness Alwin James Muthu. The accused planned to kill the deceased Viswanathan, since the deceased Viswanathan was not getting him job and only using him for the homosexual sex. After dropping the child at the house of Alwin James Muthu, the deceased Viswanathan returned to his house on 26.08.2014 at about 10.00 p.m. On the same day, at about 11.30 p.m. the deceased Viswanathan tried to have homosexual sex with the accused in his bed room. At that time, the accused asked the deceased Viswanathan why he is not taking any steps to get him job, enraged and attacked him with iron rod behind the left head and when the deceased Viswanathan tried to catch the accused, he also attacked the deceased Viswanathan at his neck. As a result of which, the deceased Viswanathan fallen down and died due to head injuries. Hence, the accused committed an offence punishable under Section 302 IPC. As a result of which, the deceased Viswanathan fallen down and died due to head injuries. Hence, the accused committed an offence punishable under Section 302 IPC. (v) The case was taken on file by the learned District Munsif-cum-Judicial Magistrate, Perundurai, and numbered as P.R.C. No. 15 of 2015 and after observing the formalities, the case was committed to the Court of Sessions and re-numbered as S.C. No. 18 of 2016 and made over to the learned I Additional District and Sessions Judge, Erode. (vi) After the case was committed to the Court of Sessions, necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 15 witnesses as PWs. 1 to 15 and marked 29 exhibits as Exs.P.1 to P.29 and also produced 10 Material Objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. procedurally as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witnesses were examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty under Section 302 IPC and awarded life imprisonment along with fine and default sentence. Hence, this appeal at the instance of the appellant. 3. Summary of the prosecution witnesses, in nutshell, is as under:- (i) PW-1 Alwin James Muthu, the informant, in his evidence, had deposed that he is residence of Pandiyan Nagar, Kampuliyampatti, Perundurai Taluk, Erode and he is Teacher and the deceased Viswanathan is his neighbour and he was a retired Commander of the Indian Navy and he was living alone and his son and wife are residing at America. On 26.08.2014, in the evening, his four year old son was taken by the deceased Viswanathan to his house but his son was not returned to his house after 9' clock and he called the deceased Viswanathan over the cell phone and the deceased Viswanathan told PW-1 that he will bring his son within 10 minutes and came to his house with his son. PW-1 asked the deceased Viswanathan to have food at his house but the deceased Viswanathan replied that a guest was at home. PW-1 asked the deceased Viswanathan to have food at his house but the deceased Viswanathan replied that a guest was at home. PW-1 had further deposed that on 27.08.2014 at about 9' clock, when he was going to School, the persons, who came for building work, standing outside the house of the deceased reported that the deceased Viswanathan not came out of the house even after a long time of their calling. The building workers jumped over the compound and went to the house of the deceased Viswanathan and found that the main door was not locked and found Viswanathan dead in his bed room and the bed room of the deceased Viswanathan was opened and the building workers came to PW-1 and told him that Viswanathan was lying in the bed room. Thereafter, PW-1 and one Singaram went inside the house of the said Viswanathan and found Viswanathan dead in the pool of blood with head injuries on the left head, he went and lodged the complaint-Ex.P.1. (ii) PW-2 Subramanian, in his evidence, had deposed that he is the brother of the deceased. On 27.08.2014 at about 11.00 to 11.15 p.m. he received an information that his brother Viswanathan was found dead in his house. Then, he went to the house of the deceased and saw the body in the pool of blood. (iii) PW-3 Mr. Murugesan, in his evidence, had deposed that he is the Panchayat President of Mettupudur and he also served as Naik in Army Communication Department. He is running a hotel in the name of Sakthi Bhavan at the toll-gate Vijayamangalam. He used to open his hotel in the morning 4.00 to 4.30 everyday and close it around night 11.00 p.m. He knew the deceased Viswanathan. PW-3 further deposed that on 26.08.2014 at about 8.30 p.m. the deceased Viswanathan came to his hotel with a 4 years old boy and also with the accused Dhanapal had coffee and the deceased Viswanathan introduced the accused to him and brought him for the purpose of getting him job and left. In the early morning 4.30 a.m. he saw the accused Dhanapal and when he enquired about Viswanathan the accused replied that Viswanathan is sleeping in his house and he alone returning to his home. In the early morning 4.30 a.m. he saw the accused Dhanapal and when he enquired about Viswanathan the accused replied that Viswanathan is sleeping in his house and he alone returning to his home. PW-3 had further deposed that on the same day morning 8' clock, he went to Coimbatore and on the next day, he came to know from Newspaper that Viswanathan was murdered. Immediately, he went to the Perundurai Police station and told that he saw the accused Dhanapal with the deceased Viswanathan on the night of 26.08.2014. (iv) PW-4 Mr. Govindasamy, could depose that he is working as a Driver in hire Van and the house of the deceased Viswanathan is situated West of his house. On 27.08.2014 at about 3.15 to 3.30 a.m. in the early morning, while he was going from the Tea Shop at Tollgate to his house and at that time, he saw the accused Bala @ Dhanapal was coming in opposite direction and on enquiry, the accused told him that he came to the house of Viswanathan and PW-4 retuned to his house on that night through his wife and came to known about the murder of Viswanathan. The police enquired him and he went to police station on 29.08.2014 at about 2.00 p.m. and identified the accused in the police station. (v) PW-5 Mrs. Bhuvaneswari, Village Administrative Officer of Pudupalayam Village could depose that on 29.08.2014, she received call over cell phone from the Inspector of Police, Perundurai and was informed that they arrested the accused in Crime No. 416 of 2014 and asked her to come there and she went there and in her presence the accused gave a statement to the Inspector of Police. The accused told the Inspector of Police that he will show the place where he was hidden the blood baniyan which he was wearing at the time of occurrence and the iron rod. PW-5 and the Vijayakumar attested the confession statement. The admissible portion of the confession statement is Ex.P.2 and the first signature in the confession statement is her signature Ex.P.3. The Inspector of Police took the accused to the residence of accused at Pappampalayam, Kollankodu while she and the Vijayakumar accompanied them. PW-5 and the Vijayakumar attested the confession statement. The admissible portion of the confession statement is Ex.P.2 and the first signature in the confession statement is her signature Ex.P.3. The Inspector of Police took the accused to the residence of accused at Pappampalayam, Kollankodu while she and the Vijayakumar accompanied them. The accused produced the bloodstained baniyan M.O.1 from the plantain garden situated behind his house and the Inspector of Police seized it under the seizure mahazar and Vijayakumar attested the seizure mahazar. After that, the Inspector of Police, took the accused to Kompuliyampatti, Pandiyan Nagar water tank and the accused produced the iron rod M.O.2 hidden behind the water tank and the same was seized under seizure mahazar and she attested the said mahazar. (vi) PW-6 Mr. Dhineshkumar could depose that he and the accused were friends and they were worked together in Krishi Company and his brother one Thirunavukkarasu completed marine studies and he knew the deceased Viswanathan through Dhanapal and they asked Viswanathan to get a job for his brother Thirunavukkarasu but the Viswanathan asked them to come to his house and he along with Dhanapal went to the Viswanathan's house. At that time, Viswanathan gave him beer to drink. In the night, he and Dhanapal slept there in the house of the Viswanathan and at that time, Viswanathan came to him and lied by his side and was doing vulgar activities with him and he told Viswanathan that he would not like all these activities and they came to their house on the next day morning and Dhanapal told about the behaviour of Viswanathan. On 27.08.2014, in the morning, Dhanapal called him over phone. On the same day, at about 8.00 p.m. Dhanapal called him over phone and told him that military man was dead and when he enquired the accused as to what happened, the accused replied that when he went to Viswanathan house, he tried to misbehave with him and he attacked him with iron rod and hence, he told the accused not to talk to him any more. PW-7, the learned Magistrate deposed about the recording of 164 Cr.P.C. statement of the PW-6 Dinesh Kumar. (vii) PW-8 Dr. Ravichandran deposed regarding receiving of requisition and conduct the post-mortem on the body of the deceased. PW-7, the learned Magistrate deposed about the recording of 164 Cr.P.C. statement of the PW-6 Dinesh Kumar. (vii) PW-8 Dr. Ravichandran deposed regarding receiving of requisition and conduct the post-mortem on the body of the deceased. He found lacerated scalp wound measuring 8 x 2 x 3 c.m. over back of the left ear running transversely till mid line at the level occipital sulure line. Exposing skull margines and abrasion over left should area clavical measuring 1/2 x 1/2 c.m. and base of skull fracture and opined that the deceased would have died around 22 to 28 hours prior to autopsy and died due to multiple injuries causing shock and haemorrhage and issued Ex.P.8-Post mortem Certificate. (viii) PW-10 Mr. Gobinath, Village Administrative Officer of the Kampulliyampatti Village, had deposed in his evidence that on the date of occurrence, he went to the scene and police have prepared observation mahazar and attested the observation mahazar and further deposed that the Inspector of Police seized the blood of the deceased in one piece of cotton cloth and the bloodstained white and blue colour bed sheet in the seizure mahazar and he attested in the seizure mahazar and the bloodstained cloth and the cloth without blood and the bloodstained bed sheet are M.Os.5, 6 and 7. (PW-13 is the Head Constable who submitted the FIR and complaint to the Judicial Magistrate Court, Perundurai). (ix) PW-11 is the Head Clerk of the Judicial Magistrate Court deposed regarding the receipt of the material objects and forwarding the same to the Chemical Examination. PW-12 is the Head Constable, who has accompanied the dead body for post-mortem while PW-13 is the Head Constable, who received the complaint and prepared FIR and along with a copy of the complaint handed over the FIR to the Judicial Magistrate, Perundurai. PW-12 is the Head Constable, who has accompanied the dead body for post-mortem while PW-13 is the Head Constable, who received the complaint and prepared FIR and along with a copy of the complaint handed over the FIR to the Judicial Magistrate, Perundurai. PW-15 deposed regarding the registration of FIR in Crime No. 416 of 2014 and handing over the FIR to the Inspector of Police and he went to the scene of occurrence at Perundurai Kompuliyampatti, Pandiyan Nagar and prepared the observation mahazar and rough sketch in the presence of the witnesses Gobinath and Velusamy and informed for the sniffer dog and photographed the scene of occurrence through police photographers and seized the blood in a cotton cloth and white and blue colour bed sheet and prepared the inquest report and sent the dead body to postmortem through Head Constable Venkatachalam and recorded the statement of witnesses under Section 161 of Cr.P.C. and seized the material objects in the Form 95 and on 28.08.2014 recorded the statements of PW-3 and PW-4 and filing charge sheet after investigation. 4. When incriminating evidence against the accused were put to him under Section 313 Cr.P.C. the accused, in his statement, has stated that the Inspector of Police in order to escape from the Departmental action, since he is unable to trace out the culprit in this case, foisted this case on him with the help of witnesses of PW-1, PW-3, PW-4, PW-5 and PW-6 and the Dhineshkumar also deposed against him on the threat given by the Inspector of Police and he is nowhere connected with the case and the material objects are not recovered from him and he never seen the witness Dineshkumar, Murugesan, Govindaswamy and went to Pandiyan Nagar and he does now know the location of Pandiyan Nagar and the case was foisted on him. 5. On consideration of both oral and documentary evidence adduced before the Sessions Court, has held that the prosecution has let in complete chain of evidence to establish the charge under Section 302 IPC against the accused and accordingly, convicted the accused for the offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- in default to undergo imprisonment for a period of six months. Hence, the present appeal is preferred by the appellant/accused. 6. Mr. 1000/- in default to undergo imprisonment for a period of six months. Hence, the present appeal is preferred by the appellant/accused. 6. Mr. R.C. Paul Kanagaraj, learned counsel appearing for the appellant/accused would contend that the learned trial Judge had failed to see that PW-3 Murugan is not a reliable witness and that his evidence cannot be taken into consideration as a witness to speak about the last seen theory. It is further contended that the learned trial Judge had failed to see that PW-1, in his evidence, had categorically stated that on the fateful day, the accused had informed him that there was a guest waiting at his home that the name of the appellant was not registered by PW-1. Further, the learned trial Judge had failed to see that the evidence of PW-4 Govindasamy, who is a tutored witness, in his evidence in chief and cross do not inspire the confidence to relay the same to fix the appellant. 7. Per contra, Mr. K. Prabakar, learned Additional Public Prosecutor made submissions in support of the judgment of the trial Court. 8. Points for consideration: (i) Whether the prosecution has proved the charge under Section 302 IPC beyond reasonable doubt. (ii) Whether the order of conviction passed by the Sessions Court is sustainable in law? (iii) Whether the quantum of sentence awarded therein is proper? 9. After hearing the rival submissions and after perusing the documents and records carefully, it is seen that the case of the prosecution rest on (i) circumstantial evidence since there was no direct evidence to the alleged occurrence and (ii) recovery of material objects. 10. In the decision reported in Padala Veera Reddy vs. State of Andhra Pradesh and Others, AIR 1990 SC 79 has held as follows:- 10. The Apex Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (ii) In the decision reported in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 has held as follows:- "Before a false explanation or false plea taken by the accused can be used as an additional link to the chain of circumstantial evidence, the following essential conditions must be satisfied:- (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance points to the guilt of the accused with reasonable definiteness. (3) the circumstance is in proximity to the time and situation. 11. Keeping the above ratio laid down by the Hon'ble Apex Court on the proving of the guilt of the accused, the prosecution entirely rest the evidence on circumstantial evidence. We find that the criminal law was set into motion by PW-1 Alwin James Muthu, who lodged the complaint with the respondent police alleging that on 27.08.2014 at about 9 hours, when the de facto complainant going to his work found the construction labours outside the house of the deceased banking the gate for a long time and one Singaram, who came by the side insisted the construction labour to jump over the compound wall and to knock the inside door and as per instruction one of the labour went inside and found the door open and thereafter when he entered the house, he found the deceased lying down in bedroom with injury on his left side. Narrating the above fact, a complaint was lodged before the respondent based on which a case in Crime No. 416 of 2016 was registered for the offence under Section 302 IPC. 12. After receipt of the complaint and the investigation, PW-15, Inspector of Police has laid the charge sheet against the accused for the offence under Section 302 IPC. 13. Narrating the above fact, a complaint was lodged before the respondent based on which a case in Crime No. 416 of 2016 was registered for the offence under Section 302 IPC. 12. After receipt of the complaint and the investigation, PW-15, Inspector of Police has laid the charge sheet against the accused for the offence under Section 302 IPC. 13. The prosecution theory, in brief, is that the deceased is a retired Navy Commander from Indian Navy and he was living alone in Door No. 4/281 at Pandian Nagar near Kampuliyampatti, Perundurai, Erode District and the accused Bala @ Dhanapaul is a residing at Tiruchengode. He completed 12th standard and obtained Auto Mechanic Course Certificate from KSR Polytechnic College at Tiruchengode. He wanted to join in the Army. The accused came in contact with the deceased Viswanathan when he used to visit the house of his brother Subramani at Pappampalayam and as the accused desired to join in the Army, the deceased Viswanathan invited to his home under the promise to set a job in Navy, the deceased had homosexual sex with accused many times. However, the accused had several times submitted himself for the said activity under the impression that the deceased will get him a job in the Army, the deceased Viswanathan did not get any job in the Army and due to the said act, the accused was totally in a frustrated mood. Homocide:- 14. As per the medical evidence of PW-8 Dr. Ravichandran, the deceased would have died around 22 to 28 hours prior to autopsy due to multiple injuries causing shock and haemorrhage and accordingly, the deceased Viswanathan died due to homicidal violence at his residence. Crime:- 15. To prove the charges, the prosecution, in the absence of direct evidence, has relied upon circumstantial evidence based upon (i) last seen theory and (ii) recovery of material objects to connect the accused with the crime. 16. To buttress the charges, the prosecution heavily relied upon the evidence of PW-1, the informant, who set the criminal law into motion. To prove the charges, the prosecution, in the absence of direct evidence, has relied upon circumstantial evidence based upon (i) last seen theory and (ii) recovery of material objects to connect the accused with the crime. 16. To buttress the charges, the prosecution heavily relied upon the evidence of PW-1, the informant, who set the criminal law into motion. All the witnesses PW-3, PW-4 and PW-6 are the independent witnesses while PW-5 is the revenue witness and attestor of the seizure mahazar and confession statement and PW-10 Revenue Witness, who is the attestor of the observation mahazar and the seizure mahazure at the scene of the crime while the PW-7 is the Judicial Officer, who had recorded the statement of independent witness PW-6 under Section 164 of Cr.P.C. while the police witnesses have deposed regarding the receipt of the complaint and registration of the FIR and filing of the charge sheet after investigation. 17. PW-1 is the person, who set the criminal law into motion, is the last person to see the deceased as alive, around 9.00 clock on 26.08.2014 when the deceased came to his house along with his son to drop his son and also the deceased conveyed him that a guest was waiting at home. While PW-3 Murugesan, Panchayat President and Ex-Service man worked in the Army communication department had deposed about the seeing the accused in the company of the deceased along with the child of PW-1 on the previous night and thereafter also seen the accused at early morning at 4.30 a.m. on the following day and his version in the chief examination assumes significance as the same is not impeached in the cross-examination except formal denial. His evidence is to the effect that on the previous night at about 8.30 p.m. the deceased and the accused and the child of PW-1 came and had coffee and also had food parcel and returned and subsequently on early morning, and he has also seen the accused and made enquiries about the deceased also assumes significance. In the absence of anything in the cross-examination to discredit his evidence, we find that the version of both PW-1, PW-3 are clear and cogent and mutually corroborates with each other and lends support to the prosecution theory. 18. In the absence of anything in the cross-examination to discredit his evidence, we find that the version of both PW-1, PW-3 are clear and cogent and mutually corroborates with each other and lends support to the prosecution theory. 18. It is seen from the evidence of PW-4, who is the independent witness, who could clearly depose that on 27.08.2014 at about 3.15 to 3.30 a.m. (in the early morning) he saw the accused near the tea shop at toll-gate and on suspicion when he enquired, the accused said to have replied that he came to the house of the deceased. In the absence of anything in the cross examination to discredit the evidence of PW-3 and PW-4 on an cumulative examination of the private prosecution witnesses viz. PWs. 1, 3 and 4, who are independent person, we find that on the fateful day on 26.08.2014 at about 8.30 p.m. the deceased was seen in the company of the accused along with the child of PW-1 in his hotel. Thereafter, around 9.00 p.m. when the deceased dropped the son of PW-1 in his house, PW-1 is the last person to see the deceased as alive and in the following morning he was found to be in the pool of blood by PW-1. Moreover, the accused was first seen in the close neighbourhood of the residence of the deceased, viz. scene of the crime by PW-4 around 3.30 a.m. followed by PW-3 around 4.30 a.m. also assumes significance and lend a chain in the link of event. Thus, this Court finds that PW-3 and PW-4 are independent witnesses and their version as to seeing the accused leaving the area around 3.30 a.m. and from the conversation they had enquired about the deceased with whose company the accused was seen in the previous night in the said locality, clearly lends support to the prosecution theory. 19. Thus, this Court finds that PW-3 and PW-4 are independent witnesses and their version as to seeing the accused leaving the area around 3.30 a.m. and from the conversation they had enquired about the deceased with whose company the accused was seen in the previous night in the said locality, clearly lends support to the prosecution theory. 19. On considering the evidence of PW-6 whose brother Thirunavukarasar completed Diploma in Marine studies was introduced to the deceased through the accused Dhanapaul to seek a job for his brother in Navy, from his version it could be seen that the deceased Viswanathan, who was a retired officer, under the guise of getting employment for his brother in the Marine services has misbehaved with him resultantly he left the house also told the accused not to have any association-ship with the accused and the version of the private prosecution witness PW-6 is clear and cogent and the same remains un-impeached in the cross-examination. 20. On considering the entire evidence of PW-6 (whose brother Thirunavukkarasu completed Marine studies) was introduced to the deceased Viswanathan through Dhanapaul to seek a job for his brother in the Army and he has also deposed about the advances made by the deceased under the guise of getting employment for his brother in the Marine has been clearly spoken and the evidence of PW-6 is clear and cogent and the same remains un-impeached in the cross-examination. 21. It remains to be stated that on 27.08.2014, the accused Dhanapaul has called over the phone and on the same day at about 8.00 p.m., the accused has called PW-6 and conveyed that the deceased Viswanathan died and on enquiry it was replied by the accused that on the previous night, the deceased Viswanathan tried to misbehave with the accused and hence, he attacked the deceased Viswanathan with iron road. PW-6-Dinesh Kumar, an independent witness had deposed regarding the nature of attitude and behaviour of the deceased with the accused on the premise to secure him job in Marine/Navy, he had invited PW-6 to get a job. PW-6-Dinesh Kumar, an independent witness had deposed regarding the nature of attitude and behaviour of the deceased with the accused on the premise to secure him job in Marine/Navy, he had invited PW-6 to get a job. Nothing in the cross examination to discredit the version of the independent witness PW-6 clearly lends support of the case of the prosecution and it is pertinent to note that the statement of PW-6 under Section 164 of Cr.P.C. recorded by PW-7 Judicial Magistrate marked as Ex.P.6 found to be in full consonance with the version of PW-6 in the witness box also provides the vital link between the accused and the occurrence. 22. It remains to be stated that PW-5 Village Administrative Officer attester of the confession statement-Ex.P.2 and also the seizure mahazars-Exs.P.4 and P.5. Based upon the admissible portion of the confession statement of the accused bloodstained Paniyan- M.O.1 was recovered from the bloodstained garden behind the house of the accused and M.O.2-Iron rod were recovered near the water tank at Pandiyan Nagar which was also attested by PW-5. Furthermore, on a combined reading of Chemical Examination Reports-Exs.P.26, 27 and Ex.P.28-Serological Report, blood was deducted on each item of 1 and 3 to 8 (both inclusive) but not on item No. 2. Item No. 4 is the banian seized under M.O.1 tallied with stain in M.O.1. 23. It is pertinent to note that the statement of PW-6 under Section 164 of Cr.P.C. recorded by PW-7 Judicial Magistrate marked as Ex.P.6 found to be in full consonance with the version in the witness box and thus, this Court finds that the prosecution has successfully demonstrated the "last scene theory" based upon the chain of circumstantial evidence as narrated above. Hence, the finding rendered by the trial Court that the guilt of the accused is proved in the manner known to law does not suffer from any infirmity warranting interference by this Court at this appellate stage and hence, the said finding are hereby confirmed. Accordingly, this Court holds that the accused has committed the crime. The prosecution has let in many legal acceptable evidence providing chain of links to point the guilt of the accused and nexus of the accused with the crime. 24. Mr. Accordingly, this Court holds that the accused has committed the crime. The prosecution has let in many legal acceptable evidence providing chain of links to point the guilt of the accused and nexus of the accused with the crime. 24. Mr. R.C. Paul Kanagaraj, learned counsel appearing for the appellant would submit that the deceased Viswanathan exploited the socio-Economic condition of the accused as he was looking for a job in Indian Navy and the deceased Viswanathan was the retired Commander of the Indian Navy. The learned counsel also drawn our attention to the document Ex.P.2-confession statement said to have been given by the accused to the police stating that there was no pre meditation for committing the alleged crime. As per Ex.P.2, the accused was not willing to have homosexual sex with the deceased Viswanathan and when the deceased Viswanathan made such an activity, the accused had attacked the deceased Viswanathan withiron rod which was lying inside the house and hence, the charge under Section 302 IPC is not made out. 25. We have heard the submissions made by the learned counsel appearing for the appellant. Legal position on Homosexuality:- 26. In the decision reported in Navtej Singh Johar and Others vs. Union of India, (2018) 10 SCC 1 , the Hon'ble Supreme Court has held as follows:- "A cursory reading of Section 375 IPC divulges that it is a gender specific provision for the protection of women as only a man can commit the offence of rape. The Section has been divided into two parts. The former part, comprising of Clauses (a) to (d), simply 132 describes what acts committed by a man with a woman would amount to rape provided that the said acts are committed in the circumstances falling under any of the seven descriptions as stipulated by the latter part of the Section. Section 377 IPC, unlike Section 375, is a gender-neutral provision as it uses the word whoever. (Emphasis supplied by us) Section 377 criminalises even voluntary carnal intercourse not only between homosexuals but also between heterosexuals. The major difference between the language of Section 377 and Section 375 is that of the element of absence consent which has been elaborately incorporated in the seven descriptions contained in the latter part of Section 375 IPC. (Emphasis supplied by us) Section 377 criminalises even voluntary carnal intercourse not only between homosexuals but also between heterosexuals. The major difference between the language of Section 377 and Section 375 is that of the element of absence consent which has been elaborately incorporated in the seven descriptions contained in the latter part of Section 375 IPC. It is the absence of willful and informed consent embodied in the seven descriptions to Section 375 which makes the offence of rape criminal. If consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labelled and designated as unnatural offence under Section 377 IPC. In view of the law laid down in Shayara Bano (supra) and given the fact that Section 377 criminalises even consensual sexual acts between adults, it fails to make a distinction between consensual and non-consensual sexual acts between competent 148 adults. Needless to say, the Section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation. Thus analysed, Section 377 IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered 156 under Section 377 IPC done between the individuals without the consent of any one of them would invite penal liability under Section 377 IPC. A cursory reading of both Sections 375 IPC and 377 IPC reveals that although the former Section gives due recognition to the absence of wilful and informed consent‘ for an act to be termed as rape, per contra, Section 377 does not contain any such qualification embodying in itself the absence of wilful and informed consent to criminalize carnal intercourse which consequently results in criminalizing even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and trans-genders. Section 375 IPC, after the coming into force of the Criminal Law (Amendment) Act, 2013, has not used the words subject to any other provision of the IPC. This indicates that Section 375 IPC is not subject to Section 377 IPC. Ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC." (Emphasis supplied us) 27......(a) Thus, after the judgment of the Hon'ble Apex Court in the case of Navtej Singh Johar and Others vs. Union of India, (cited supra) in the matter of homosexuality "consent to" and "refusal for" are stands at miles apart in the diametrically opposite direction. The accused had refused to submit himself to the advance made by the deceased, dehors his earlier consensual, for the said act. In the matters of sexual offence against the woman, certain legal protection are given for woman, on such circumstances, so as to protect her body, from, committing the offence against her body on the ground of grave and sudden provocation. When, the law gives legal protection for woman in safeguarding her body against commission of an sexual offence, on an akin analysis, so too for man. (b) The Army Act is a separate Act altogether and homosexuality is an offence under Section 46, which deals with unbecoming conduct. It has already been held by the Supreme Court that homosexuality is not unnatural. The Supreme Court has not stuck down Section 377 but has merely read it down and interpreted it. Bestiality will continue to be "unnatural" under Section 377 as per the judgment and hence, would remain an offence under Section 46(a) AA as well. (c) The position of partner in homosexuality is as that of woman, in case of offence under Section 375 IPC. Bestiality will continue to be "unnatural" under Section 377 as per the judgment and hence, would remain an offence under Section 46(a) AA as well. (c) The position of partner in homosexuality is as that of woman, in case of offence under Section 375 IPC. On legal pronouncement, certain inference of such conduct, in the nature of legal protection are provided to woman in the case of commission of offence of her body, and akin to and applying the same analogy are applicable. In other words, so too for man (d) In other words, a erstwhile partner in homosexuality cannot be denied of his self dignity due to submission on an earlier occasion, as con-sexual party, still and dehors, earlier con-sexual Submission, either voluntarily or on false promise, (as in the instance case of getting job in Marine Force Service) is entitled to refuse and on such refusal, as held in case cited supra, the offence is made out and when such being the case, the ex-partner (as in the instant case accused) is entitled to protect his body from commission of offence by the other partner (as in this case deceased). (e) Thus, on consensual, homosexuality was decriminized and however, in case of refusal, it still hold the ground of offence. 28. On a close scanning and careful scrutiny of above evidence in the proper perspective we find that: The prosecution has successful demonstrated the following circumstances in the manner known to law:- (a) On 26.08.2014 around 12.30 noon, the deceased from his cellphone (8012145021) had called accused cell phone (8760513822) invited him to his house [as per Ex.P4 (statement of nodal officer), Ex.P4 call sheet history and Tower post details]. (b) On 26.08.2014 around 8.30 p.m. Independent witness PW-3 had seen the accused in the company of deceased along with child of PW-1 at his hotel. (c) On 26.08.2014 around 9.00 p.m. PW-1 seen the deceased while he dropped PW-1 sons at his residence (d) Accused declined the offer of PW-1 to have food at his residence on the premises that he had a guest at home to have parcelled food (e) On the next day early morning, viz. (c) On 26.08.2014 around 9.00 p.m. PW-1 seen the deceased while he dropped PW-1 sons at his residence (d) Accused declined the offer of PW-1 to have food at his residence on the premises that he had a guest at home to have parcelled food (e) On the next day early morning, viz. 27.08.2014 around 3.30 a.m. PW-4 saw the accused in the close neighbourhood of the house of the deceased (viz) place of crime and accused told him he is returning home after visiting military man (deceased) (f) On 27.08.2014 early morning around 4.30 a.m. PW-3 had seen the accused around the area of the house of the deceased house and accused answered regarding his presence with deceased on the previous night. (g) On 27.08.2014 around 9.10 a.m. PW-1 found the Viswanathan in the pool of blood in the house of deceased which was unlocked. (h) On 27.08.2014 around 11.00 a.m. PW-1 lodged Ex.P1 complainant (i) On 27.08.2014 evening 8.00 p.m. the accused spoke to PW-6 and stated about the murder of military man. (j) On 28.08.2014 PW-6 was examined by Investigation Officer. (k) On 29.08.2014 police arrested the accused, and based upon admissible portion of confession statement, MO1 and MO2 was recovered and his confession statement which lead to discover of fact of M.O.1 Blood stain cloth and M.O.2 weapon of crime at two different places. (l) scientific reports are to the effect that Blood Stain at Soc and M.O.1 (accused banian) and M.O.2 weapon of crime and on the dress of deceased are mutually tallied. From the above circumstances, this Court finds that the prosecution has let in the circumstances to prove the guilt of accused and to prove the nexus between crime and the accused. 29......(i) Now what remains is only what is the offence proved. It was argued that an offence punishable under the second part of S.304 of the Indian Penal Code alone is made out since Exceptions 1 and 4 to S.300 are attracted. (ii) All murders are culpable homicides, but all culpable homicides are not murders. An act resulting in death done intending to cause death is culpable homicide under the first part of S.299 amounting to murder under the first part of S.300. It will get reduced to culpable homicide not amounting to murder only if any one of the exceptions is attracted. An act resulting in death done intending to cause death is culpable homicide under the first part of S.299 amounting to murder under the first part of S.300. It will get reduced to culpable homicide not amounting to murder only if any one of the exceptions is attracted. (iii) Even then only the first part of S.304 which requires intention to cause death or intention to cause such bodily injury, as is likely to cause death will apply. The second part of S.304 is applicable only when there is no intention and there is only the knowledge that the act is likely to cause death. (iv) An offence coming under the second part of S.299 involves only intention to cause bodily injury which is likely to cause death and death resulted. That will become murder only if the second part of S.300 is attracted and injury is inflicted on a person whose special physical condition was known to him. The only other likelihood in S.300 is in part 4. (v) Parts 1 and 3 of S.300 require intention, for the former to cause death and for the latter to cause that particular injury which is found to be sufficient in the ordinary course of nature to cause death. (vi) Sufficiency in the ordinary course of nature is of a higher degree than likelihood. 30. In order to attract the first exception, there must have been such a high degree of grave and sudden provocation from the deceased, which was capable of depriving the appellant of his power of self-control to cause death under its influence. Deprivation of self control is the mitigating factor there. It is co-related with the gravity and suddenness of the provocation. 31. The provocations are the first and last requests for homosexuality. The repetition of such a request could have given any graver provocation. 32. Deprivation of self control is the mitigating factor there. It is co-related with the gravity and suddenness of the provocation. 31. The provocations are the first and last requests for homosexuality. The repetition of such a request could have given any graver provocation. 32. From the records available, the prosecution has not let in any evidence for premeditation of committing the crime by the accused and in the case on hand, the pre-meditation for commission of the crime by the accused is totally missing and on evidence, the act was committed by the accused in a sudden and grave provocation he gave a blow on the neck and when the blow was given by the appellant, he was completely enraged loosing his medical balance and further when the offence is committed by the accused suddenly, we find that the accused has lost his control while committing the offence due to grave and sudden provocation. 33. In the case of Indra Deva vs. State, 1991 Cr. L.J. 2598 : 1991 All Cri. R. 350, it is observed that Part-I applies only in two circumstances, if the act by which the death is caused is done (i) with the intention of causing death or (ii) of causing such bodily injury as is likely to cause death. In the case of Sital Singh vs. State of Punjab, 1983 Crl. L.J. 1042 : 1983 AIR (SC) 65, it is observed that where pre-meditation for commission of crime is not established, accused can be convicted only under Section 304 Part I IPC. Hence, following the ratio laid down in the Hon'ble Apex Court in Madhani vs. State of Rajasthan, AIR 1990 SC 713, the conviction is altered to one under Section 304(i) IPC. 34. Thus, on an cumulative reading of circumstances, placed on record, we are of considered view that the action of the accused on the body of the deceased falls under Section 304(i) I.P.C. and hence, the conviction under Section 302 I.P.C. is modified to that of Section 304(i) I.P.C. and sentence is accordingly reduced to 8 years Rigorous Imprisonment and to pay a fine of Rs. 1000/- in default, to undergo Simple Imprisonment for three months. In this regard, the Trial Court is directed to issue Non-Bailable Warrant to secure the accused to undergo the remaining period of sentence if any. This Criminal Appeal is partly allowed to the extent indicated above.