Eyewitness testimony can support conviction despite doubts on motive and witness credibility when clear evidence of guilt exists.

JUDGMENT :

N.MALA, J.

The above Criminal Appeal is preferred by the appellant / accused No.1 against judgment of conviction and sentence dated 31.01.2017 made in S.C.No.51 of 2016 by the learned IV Additional Sessions Judge, Madurai, convicting the appellant/A1 for the offences punishable under Sections 304 (2) and 294(b) IPC and sentencing him to undergo rigorous imprisonment of 10 years with a fine of Rs.5000/-, in default, to undergo 3 years simple imprisonment for the offence under Section 304 (2) and to undergo three months simple imprisonment for the offence under Section 294 (b) .

2. The factual scenario as unfolded during the course of trial is as follows:-

(a)The case of the prosecution, in brief was that, on 26.07.2015, at about 5.00 p.m, there was a wordy quarrel between the deceased, the appellant/A1 and the second accused in a Bar regarding the loss of a cell phone, which belonged to the appellant/A1. On the same day at 9.00 p.m, when the deceased Dinesh was standing near the house of one Thalayari Subramani, at Pasumalai Krishnapuram, Tirupparankundram Taluk, the accused 1 and 2 demanded the cell phone and by uttering filthy language, they indiscriminately beat him. In the scuffle, the first accused slit the neck of the deceased Dinesh using a blade. He was immediately rushed to the Government Rajaji Hospital, Madurai, and on the next day at about 4.00 a.m., he succumbed to the injuries.

(b)Based on the complaint (Ex.P.1), FIR came to be filed in Crime No.268 of 2015 by P.W.26, the Sub-Inspector of Police, All Women Police Station, Tirupparankundram. On completion of investigation, a charge sheet was filed. The first accused was charged for the offences under Sections 294 (b) and 302 IPC and the second accused was charged for the offences under Sections 323 , 302 r/w 34 .

(c)The Charge Sheet was taken cognizance by the learned Judicial Magistrate No.6, Madurai in P.R.C.No.87 of 2015. Thereafter, the case was committed to the learned Principal Sessions Judge, Madurai, as contemplated under Section 209 Cr.P.C. The case was thereafter made over by the learned Principal Sessions Judge, Madurai, to the file of the learned IV Additional Sessions Judge, Madurai, in S.C.No.51 of 2016. The charges were framed against the appellant/accused No.1 for the offences aforementioned. The appellant/accused No.1 denied the charges and pleaded not guilty.

3. The prosecution in order to bring home the guilt of the accused, examined 27 witnesses as P.W.1 to P.W.27 and marked 21 documents as Ex.P.1 to Ex.P.21 and marked 6 Material Objects were marked as M.O.1 to M.O.6. On the side of the defense, no oral or documentary evidence was adduced.

4. The Trial Court, on completion of trial, found the appellant/ accused No.1 guilty of the aforesaid offences and convicted and sentenced him as follows:-

5. Aggrieved by the aforesaid conviction and sentence, the appellant has preferred the above Criminal Appeal for the aforesaid relief.

6. The learned counsel appearing for the appellant/A1 submitted that as per the prosecution case, the loss of cell phone was the only motive for the crime, which motive was neither believable nor proved. The learned counsel submitted that in the absence of any evidence regarding the loss of the cell phone, the motive stood unproved. The learned counsel for the appellant submitted that the trial court failed to note that not only the presence of the ocular