JUDGMENT (Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passed by the learned IV Additional District and Sessions Judge, Madurai, made in S.C.No.339 of 2010 dated 30.09.2013.) R. Subramanian, J. & N. Sathish Kumar, J. 1. This Criminal Appeal has been filed by the appellant / sole accused as against the conviction and sentence, dated 30.09.2013, made in S.C.No.339 of 2010, by the learned IV Additional District and Sessions Judge, Madurai. 2. The appellant/sole accused stood convicted and sentenced to undergo imprisonment as detailed hereunder: Rank Conviction U/s. Sentence Fine amount Sole Accused 302 IPC To undergo life imprisonment To pay a fine of Rs.2,000/- each, in default, to undergo six months rigorous imprisonment. 3. The brief facts of the prosecution case, are as follows: (i) The deceased is the maternal aunt of the accused, mother of P.W.1 and 2 and mother-in-law of P.W.3. The accused was working as a Constable in Armed Reserve Police, Madurai City. On 08.09.2009, he was allotted duty in the Corporation Office along with P.W.4 and P.W.5 and at the time of para duty, he was entrusted with M.O.1- 303 rifle along with 10 cartridges (bullets). There was a dispute between the family of P.W.1 and accused over some property. On 08.09.2009, when the deceased came to the Corporation Office to get her pension, the accused fired a shot at the deceased with M.O.1- riffle. P.W.4, who was in the para room, immediately on hearing the gun shot, came outside and at the time, the accused rushed to the room in panic and immediately, P.W.4 has verified the cartridges given to the accused. At that time, only 9 rounds (bullet) were available and one round was missing. The accused also confessed that he had shot his aunt. (ii) P.W.1, on hearing the death of the deceased, rushed to the Corporation and also went to the para room and the accused confessed that he has fired a shot at his mother and P.W.1 lodged a complaint - Ex.P.1. P.W.2 who is the son of the deceased, also rushed to the spot and saw the dead body. P.W.3 daughter-in-law also rushed to the spot and saw the dead body. (iii) P.W.5 was also allotted the para duty at the relevant point of time. P.W.6 is a driver in the Corporation. P.W.2 who is the son of the deceased, also rushed to the spot and saw the dead body. P.W.3 daughter-in-law also rushed to the spot and saw the dead body. (iii) P.W.5 was also allotted the para duty at the relevant point of time. P.W.6 is a driver in the Corporation. On the date of occurrence, the deceased came to get pension at about 10.30 a.m. and at that time, he heard the gun shot and saw the dead body of the deceased. (iv) P.Ws.7, 8 and 9 also heard the gun shot and saw the dead body of the deceased. (v) P.W.11 - Sub-Inspector of Police in Armed Forces, Madurai stated that on the date of occurrence, the accused was given 10 cartridges and allotted work at Corporation Office. M.O.1 - rifle, M.O.2 - Cartridges and M.O.4 - Bayonet were entrusted to the accused at the relevant point of time. (vi) P.W.17 registered a case in Crime No.2068 of 2009 under Section 302 IPC and forwarded the complaint and First Information Report to the Judicial Magistrate Court, Periyakulam, through P.W.18 - Karuppiah and he has handed over the same to the learned Judicial Magistrate No.II, Madurai. (vii) P.W.19, Inspector of Police/ Investigation Officer, took up the case for investigation, went to the place of occurrence and prepared the Observation Mahazar-Ex.P.5 and Rough Sketch-Ex.P.11. Thereafter, he conducted inquest over the dead body of the deceased in the presence of Panchayathdars and prepared an inquest report – Ex.P.12 and thereafter, arrested the accused in the presence of witnesses, viz., P.W.10-Jeyaseelan and Ganesan and seized the 303 Model Rifle, 9 cartridges one empty shell and para duty book under Ex.P.2 - Athatchi. He also collected bloodstained earth and ordinary earth in the presence of witnesses and also sent the weapon to Ballistic expert. After completion of the inquest, he sent the dead body to Government Hospital for post-mortem with a requisition for conducting autopsy over the dead body, through the Police Constable - Pandi. (viii) P.W.14 - Medical Officer, conducted autopsy over the dead body of the deceased on 09.09.2009 at 01.05 p.m. and found the following injuries: 1. penetrating wound with 1 cm diameter with inverted and abraded margin, 1 cm above the medical end of right clavicle. (viii) P.W.14 - Medical Officer, conducted autopsy over the dead body of the deceased on 09.09.2009 at 01.05 p.m. and found the following injuries: 1. penetrating wound with 1 cm diameter with inverted and abraded margin, 1 cm above the medical end of right clavicle. On dissection, the wound passes obliquely backwards and medially piercing the upper lobe of right lung, 2 cms in diameter x through and through and comes out as an exit wound with everted and lacerated margin 3 cms in diameter noted on the upper part of back of right side of chest. Right pleural cavity contains 300 ml of blood with clots. Left pleural cavity contains 200 ml of blood with clots." and issued Ex.P.6 Post-mortem certificate and opined that the deceased would appear to have died of shock and haemorrhage due to fire arm injury 24-30 hours prior to autopsy. (ix) P.W.16, the Ballistic expert, has analysed the 303 Rifle- M.O.1, 9 live cartridges - M.O.2 and one used cartridges-M.O.3 and issued a report-Ex.P.9. He observed that the one cartridge (bullet) recovered was being shot through Rifle 303 - M.O.1. (x) The Scientific Officer of Regional Forensic Laboratory was examined as P.W.15. He found that the related blood item Nos.1, 3, 4 and 5 i.e., M.Os.5, 7 to 9- Bloodstained Soil, Jacket, Saree and Inskirt, which were sent for analysis, belonged to 'O' group and issued Ex.P7-Serological report in this regard. He also examined the material objects and issued Ex.P.8 Biological report. (xi) P.W.19, after examining the witnesses, completed his investigation and filed the final report against the accused. 4. The prosecution, in order to bring home the guilt of the accused, examined as many as 19 witnesses as P.W.1 to P.W.19, marked 14 documents as Exs.P1 to P14 and 9 material objects as M.O.1 to M.O.9. After analyzing the oral and documentary evidence, the trial Court has found the accused guilty under Section 302 IPC and convicted the accused as referred to above. Assailing the same, the present Criminal Appeal is filed. 5. It is the main contention of the learned counsel appearing for the appellant that there is no direct evidence to prove the murder by the accused. Further, there is no evidence to show that there was a previous enmity between the accused and the deceased. Assailing the same, the present Criminal Appeal is filed. 5. It is the main contention of the learned counsel appearing for the appellant that there is no direct evidence to prove the murder by the accused. Further, there is no evidence to show that there was a previous enmity between the accused and the deceased. The circumstances relied upon by the prosecution has not been established clinchingly and there may be other hypothesis which create serious doubt about the prosecution case. The learned counsel, therefore, submitted that the entire prosecution case has to fall on the ground as the prosecution has failed to establish all the links of the chain in the circumstances relied upon by them. The prosecution case is highly doubtful. Hence, she prays to allow this Criminal Appeal. 6. The learned Additional Public Prosecutor would submit that the accused was posted in Corporation for para duty at the relevant point of time. The evidence of P.W.2 and P.W.3 would clearly show that there was a family dispute between the accused and the deceased. The deceased is none other than the aunt of the accused. P.W.1, on hearing the death of his mother, immediately came to the place of occurrence and also met the accused in para duty room when the accused admitted killing the deceased. It is also stated that P.W.4 and P.W.5, who were working with the accused, had clearly spoken about the nature of the incident and there is no explanation forthcoming from the accused as to how one of the bullets was fired from 303 rifle - M.O.1 which has been clearly spoken to by the Ballistic expert. Therefore, he submitted that in the absence of any explanation by the accused, it will go against him. The serology report also proved the fact that all the material objects seized, which contain the human blood of 'O' group, belonged to the deceased. Therefore, the prosecution had established the case beyond the reasonable doubt and hence, he prays for dismissal of this Criminal Appeal. 7. We have heard the learned counsel on either side and perused the entire materials available on record. 8. The motive projected by the prosecution is that there was a dispute over the immovable property between the accused and the deceased. The deceased is none other than the aunt of the accused. 7. We have heard the learned counsel on either side and perused the entire materials available on record. 8. The motive projected by the prosecution is that there was a dispute over the immovable property between the accused and the deceased. The deceased is none other than the aunt of the accused. On 08.09.2009, the deceased went to the Corporation premises to get her pension, since she is a pensioner. This has been spoken to by P.W.1 to 3, the sons and also daughter-in-law of the deceased. 9. The evidence of P.W.4 clearly shows that the accused and P.W.5 were allotted para duty along with him at the relevant point of time. At the time of occurrence, while P.W.4 was in the Para room, he heard the gun shot and immediately, he came out, at that time, the accused came inside in a panic manner and told him that he had shot his aunt. Immediately on seeing the deceased, P.W.4 has checked the cartridges allotted to himself, P.W.5 and accused. He found that one of the cartridges out of 10 cartridges allotted to the accused, was missing. 10. P.W.5 also stated that at the relevant point of time, he along with P.W.4 and accused were allotted duty at the Corporation premises and he has also stated that all of them were given separate rifles with 10 cartridges each. His evidence also shows that the deceased was shot dead within 50 mts. from the para room. The evidence of P.W.4 that hearing the gun shot and seeing the deceased dead body in the same vicinity and seeing the accused coming into the room in a panic manner, is certainly relevant under Section 8 of the Indian Evidence Act. The evidence that the accused rushed into the room in a panic manner, is relevant as one of the conduct against the accused and P.W.4, not stopping with that, checked the cartridges and found that one of the cartridges out of 10 cartridges was missing from the rifle of the accused. 11. P.W.1 has also enquired the accused at the relevant point of time. He has also stated that he shot the deceased. Such evidence is also relevant. 11. P.W.1 has also enquired the accused at the relevant point of time. He has also stated that he shot the deceased. Such evidence is also relevant. Though his statement given before P.W.4 as a confession cannot be admissible, since there is a bar under Section 25 of the Indian Evidence Act, at the same time, the evidence of P.W.4 about the behaviour of the accused at the relevant point of time, is certainly relevant under Section 8 of the Indian Evidence Act. P.W.5 has also stated that the accused was in para duty at the relevant point of time. P.Ws.6. 7 and 8 have spoken that they have heard the gun shot and found the dead body of the deceased. P.W.10 states that in his presence, 303 rifle and cartridges were seized from the accused. Besides, bloodstained earth and ordinary earth were also recovered. 12. P.W.11 the Sub-Inspector of Police in Armed Reserve Police has stated that on the date of occurrence, the accused was entrusted with 303 rifle, 10 cartridges and one bayonet and also given passport (flt[r;rPl;L). P.W.16 the Ballistic expert has clearly stated that after analyzing the objects, he issued a report observing that the used one cartridge (bullet) was shot through rifle 303-M.O.1, which was given to the accused at the relevant point of time. 13. The evidence of the Medical Officer - P.W.14 also clearly shows the nature of the injury caused by the gun shot. There is also an exit injury. Out of 10 cartridges given to the accused, one cartridge was used which was missing from his gun, which has been seen by P.W.4 immediately, after hearing the gun shot and on seeing the dead body of the deceased. There was no explanation from the accused as to how one cartridge went missing from his weapon. 14. When the prosecution has shown the foundation facts, it is for the accused to explain as to what has been transpired and the burden lies on him to prove the facts which are exclusively within his knowledge. As per Section 106 of Indian Evidence Act, it is for him to explain as to how one of the cartridges went missing from his service rifle. Absolutely, there is no explanation forthcoming. The used cartridge is fired through M.O.1 -303 Rifle, which has been spoken to by the expert. This also is a proof against the accused. As per Section 106 of Indian Evidence Act, it is for him to explain as to how one of the cartridges went missing from his service rifle. Absolutely, there is no explanation forthcoming. The used cartridge is fired through M.O.1 -303 Rifle, which has been spoken to by the expert. This also is a proof against the accused. That apart, the accused immediately after the gun shot, rushed to the para room in a panic manner, where P.W.4 was also there and thereafter, he remains there. When P.W.1 came there on hearing the death of his mother, the accused has also admitted his guilt. There was no reason to reject the evidence of P.W.1 also. Therefore, when the prosecution has established handing over the rifle with 10 cartridges to the accused and one of the cartridges fired from the accused's service rifle and the Ballistic expert's report also proves the above fact and the accused failed to explain as to how one of the cartridges was missing from his service rifle, it can be safely concluded that it is only the accused committed the offence and the previous motive was also spoken to by P.W.1 to P.W.3. 15. In such view of the matter, we do not find any reason to suspect the entire case of the prosecution. The weapon was seized from the accused himself from the para room. P.W.4 the Police Constable working with the accused clearly established the presence of the accused and the gun shot and missing of one of the cartridges (bullet) from the possession of the accused. The evidence of the Ballistic expert's also proves the fact that the empty cartridge was fired from M.O.1 which was in possession of the accused. 16. As the accused failed to offer any explanation, this Court is of the view that there are strong circumstances which clearly proved the complicity of the accused into crime. Accordingly, we do not find any reason to interfere with the conviction and sentence recorded by the trial Court, as the prosecution has also proved the homicidal death of the deceased. 17. In the result, this Criminal Appeal stands dismissed and the conviction and sentence imposed on the appellant/sole accused, by judgment dated 30.09.2013, made in S.C.No.339 of 2010, on the file of the IV Additional District and Sessions Court, Madurai, are confirmed. Consequently, connected miscellaneous petition is closed.