IMPORTANT POINT
The last seen theory requires a close time connection between the accused and the deceased's death, and mere presence is insufficient for conviction without additional evidence linking the accused to the crime.

JUDGMENT :

P.V.BALA KRISHNAN, J.

This appeal is filed by the first accused in SC No.363/2018 on the files of the Additional Sessions Court-II, Kasaragod challenging his conviction and sentence passed under Section 302 IPC .

2. The prosecution case is that on 6/8/2017 at about 6.30 pm the accused two in number, in furtherance of their common intention to murder Rangappagaji, hit him on his chest using a laterite stone causing fractures on his ribs and resulting in his death. It is alleged that the motive for committing the act is the deceased demanding back the money borrowed by the first accused. It is also alleged that after commission of the crime, the first accused misappropriated the mobile phone of the deceased. Hence, the prosecution alleged that the accused have committed the offences punishable under Sections 302 & 404 read with section 34 IPC .

3. On appearance of the accused before the trial court, charges were framed against them for afore offences, to which they pleaded not guilty. Thereafter, from the side of the prosecution, PW1 to PW24 were examined and Exhibits P1 to P31 documents and MO1 to MO27 were marked. On questioning under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against them in evidence and contended that they are innocent. The first accused stated that he is not having any connection with the alleged murder and he has been falsely implicated in the case. Even though the accused were called upon to enter their defence, no evidence was adduced from their side. The trial court, on an appreciation of the evidence on record, found the second accused not guilty of the offences alleged against him and acquitted him. The trial court also acquitted the first accused of the offence punishable under section 404 read with section 34 IPC . But, it found the first accused guilty of committing an offence punishable under Section 302 IPC and convicted him thereunder. The first accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- under Section 302 IPC . In case of default, he was ordered to undergo rigorous imprisonment for a period of one year.

4. The learned Counsel for the appellant Adv. V.A.Johnson contended that the prosecution has not proved the entire chain of circumstances relied on by it to reach a conclusion of guilt against the accused. He submitted that the trial court has also erred in applying the last seen theory to the present case since, the prosecution has not even established the exact date and time when Rangappagaji died. He contended that the evidence of PW 11 and PW16 are mutually contradictory and are not reliable at all. He argued that the prosecution has not proved the recovery of MO5 and that it belonged to the deceased. Hence, he prayed that this appeal may be allowed.

5. Per contra, learned Public Prosecutor Adv.Ranjith T.R. contended that, prosecution has proved its case beyond reasonable doubt. He argued that the evidence of PW8,PW11 and PW16 would clearly show that the deceased was last seen with the accused just before his death and the appellant has not offered any explanation as to how the deceased sustained injuries and died. He submitted that from the evidence of PW12 coupled with Exts.P7 and P8, the date and time of death of Rangappagaji can be deduced to be around 6.30 pm on 6/8/2017, the time when the afore witnesses have seen the accused and the deceased together. He argued that the recovery of MO5 mobile phone belonging to the deceased at the instance of the appellant also clinches the case against him. Hence, he prayed that this appeal may be dismissed.

6. Before delving into the evidence let in by the prosecution, it would be apt to discuss the material evidence in this case. PW2 is the Panchayat member, who discovered the decomposed body of the deceased in a lonely