The main legal point established in the judgment is the application of circumstantial evidence and the burden of proof under Section 106 of the Indian Evidence Act in criminal cases.

JUDGMENT :

The sole accused in S.C.No.148 of 2011 on the files of the Court of the Additional Sessions Judge -III, Manjeri, is the appellant in the appeal. He stands convicted and sentenced for the offences punishable under Sections 302 and 392 of the Indian Penal Code (IPC).

2. The corpse of a young lady, aged 22 years was found on 16.05.2009 in the empty land of one Chekku by a person residing in the neighbourhood. On the basis of the information received from the person who saw the body, a case was registered by Kolathur Police. The investigation in the case revealed that the body is that of one Umaiba and that she was murdered by the accused. The final report was accordingly filed in the case alleging commission of offences punishable under Sections 302 and 392 IPC.

3. The accusation in the final report is that the accused named Sirajudheen established contact with Umaiba and promised to marry her, after making her believe that he is unmarried. Believing the promise given by the accused, Umaiba left home with her ornaments as also personal belongings, on the evening hours of 15.05.2009 to live with the accused, and the accused who met Umaiba at a place near the land where her body was later found, committed the offence of murder by strangulating her using the shawl worn by her then and further, committed robbery of her ornaments and personal belongings.

4. On the accused being committed to trial, the Court of Session framed charges against him to which he pleaded not guilty. Thereupon, the prosecution examined 36 witnesses as PW1 to 36 and proved through them 45 documents as Exts.P1 to P45. MOs 1 to 56 are the material objects in the case. Exts.D1 to D12 are portions of the statements of witnesses examined under Section 161 of the Code of Criminal Procedure (the Code), proved at the instance of the accused. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 of the Code, he denied the same and pleaded that he has been falsely implicated in the case. The Court of Session, thereupon, on a consideration of the evidence on record, held that the accused is guilty of the offences for which he is charged, convicted and sentenced him to undergo imprisonment for life for the offence punishable under Section 302 IPC and to undergo 10 years of rigorous imprisonment for the offence punishable under Section 392 IPC. The accused is aggrieved by his conviction and sentence and hence, this appeal.

5. Heard the learned Senior Counsel for the accused as also the learned Public Prosecutor.

6. There is no direct evidence to prove the alleged occurrence. The prosecution, therefore, attempted to prove the occurrence through circumstantial evidence and it was on a finding that the circumstances proved would establish the guilt of the accused, that the Court of Session convicted the accused. The point that arises for consideration therefore is whether the circumstances proved in the case would establish the guilt of the accused beyond reasonable doubt.

7. In order to consider the point formulated for decision, it is necessary to refer to the relevant evidence in the case. PW1 is the person who saw the body of the deceased first and informed the matter to the police. PW1 deposed the said facts in his evidence. In addition, it was also deposed by PW1 that when he saw the body, MO3 black shawl was found around the neck of the deceased. PW30 is the doctor who conducted the autopsy of the body of the deceased. PW30 deposed that the death was due to ligature strangulation and it is possible with MO3 shawl.

8. PW2 is the father of the deceased. PW2 deposed that Umaiba left home at about 4 p.m. on 15.05.2009 informing others at home that she was going to the house of her elder sister Hajira and it was only on 17.05.2009, they realised that Umaiba did not reach the house of Hajira. PW2 deposed that when they verified the belongings of Umaiba then at the house, it was found that her ornaments were missin