The last seen together theory alone is insufficient for conviction; a complete chain of circumstantial evidence must exclude all reasonable hypotheses of innocence.

JUDGMENT :

P.B.Suresh Kumar, J.

The sole accused in S.C.No.769 of 2013 on the files of the Court of the Additional Sessions Judge – I, Kollam is the appellant in the appeal. He stands convicted and sentenced for the offences punishable under Sections 449, 302 and 201 of the Indian Penal Code (IPC).

2. The victim was a boy aged 9 years. He was the maternal nephew of the appellant. At the time of occurrence, the victim, his parents and his younger sibling were residing in a building adjacent to the family house of the appellant where the appellant was residing with his parents, namely the maternal grandparents of the victim. The mother of the victim used to work under the Rural Employment Guarantee Scheme of the Government. On 23.06.2012, when the mother of the victim left for work, the victim was playing with the appellant in the courtyard of the house of the latter. At about noon on that day, the grandfather of the victim went to a nearby shop and when he returned after about 1½ hours, it was noticed that the victim who was playing with the appellant in their house, was not seen. The grandfather then informed the matter to the neighbours and one among them who started searching for the victim found the victim in his own house standing still on a cot with his neck tied to a shawl when she peered through the window of the said house. Having seen the victim in that position, the said person screamed and on hearing the scream, people in the neighbourhood gathered there. When one among them entered the house of the victim after breaking open the door, it was noticed that the other end of the shawl tied on the neck of the victim was tied to a metal pipe affixed to the roof of the building and that the victim had passed away.

3. On coming to know of the occurrence, a case was registered by Kottarakkara Police under Section 174 of the Code of Criminal Procedure (the Code) on the basis of the information furnished by the grandfather of the victim. Later, when it was revealed that the death is a homicide, the provision under which the case was registered was altered to Sections 377 and 302 IPC. In the investigation conducted in the case thereupon, it was revealed that it was the appellant who caused the death of the victim. A final report was accordingly filed in the case. The allegation against the accused in the final report is that when the victim resisted the attempt made by the appellant to indulge in carnal intercourse against the order of the nature with him, the appellant strangulated him to death, indulged in sexual intercourse with him and thereupon tied his body with a shawl to the metal pipe, in order to cause disappearance of the evidence of the crime.

4. On the appellant being committed to trial, the Court of Session framed charges against him under Sections 449, 302, 377 and 201 IPC to which he pleaded not guilty. The evidence let in by the prosecution thereupon consists of the oral evidence of 14 witnesses examined as PWs 1 to 14 and 19 documents proved through the witnesses namely, Exts.P1 to P19. Exts.D1 to D5 are the case diary statements of the witnesses examined as PWs 1 and 2. MO1 series are the material objects identified by the witnesses in the case. Inasmuch as the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the appellant was called upon to enter on his defence. The appellant himself gave evidence at that stage as DW1 and examined another person on his side as DW2. Thereupon, on an appreciation of the matters, the Court of Session found the appellant guilty of offences punishable under Sections 449, 302 and 201 IPC and sentenced him, among others, to imprisonment for life. The appellant was, however, found not guilty of the offence punishable under Section 377 IPC. The appellant is deeply aggrieved by his conviction and sentence, hence this appeal.

5. Heard the learned counsel for the appellant as also the learned Pu