The last seen theory establishes that when an accused is the last person with the deceased, they are burdened to explain the circumstances of death. Circumstantial evidence must be compelling to confirm guilt.

JUDGMENT :

JOBIN SEBASTIAN, J.

1. Crl.Appeal No.491/2019 and Crl.Appeal No.716/2020 arise out of the judgment in Sessions Case No. 413/2014 on the file of the Additional Sessions Court, North Paravur. Out of the said appeals, Crl.Appeal No.491/2019 is one filed by the 1st accused in the above-said Sessions case, challenging the judgment of conviction and order of sentence passed against her for an offence punishable under Section 302 of the Indian Penal Code, whereas, Crl.Appeal No. 716/2020 is an appeal filed by the State under Section 378 (1)(b) of the Code of Criminal Procedure, challenging the order of acquittal of the 2nd accused in the said Sessions case.

2. The prosecution case in brief is as follows:-

The 1st accused, who is the wife of the deceased Paul Varghese @ Kuttan, was maintaining an illicit relationship with the 2nd accused. Believing that the husband of the 1st accused would be a hindrance to continue the said relationship, both the accused together hatched a criminal conspiracy to murder Paul Varghese. In pursuance of the said conspiracy, the 2nd accused came to the house of the 1st accused and concealed himself in one of the rooms of the said house as arranged by the 1st accused. Thereafter, at around 10 p.m., when Paul Varghese returned home, the 1st accused mixed powdered sleeping pills in the food and served the same to him. However, realising that the overdose of the sleeping pills might not be sufficient to cause death of Paul Varghese, in the early morning of of 23.12.2011 at 2.00 a.m., while Paul Varghese was in deep sleep, the 1st accused wrapped a towel around his neck and the 2nd accused tightened the said towel forcefully and in the meantime, the 2nd accused pressed a pillow on his face and caused suffocation and thereby committed murder of Paul Varghese. Thus, the accused are alleged to have committed the offences punishable under Sections 120B and 302 of the Indian Penal Code.

3. On completion of the investigation of this case, the final report was submitted before the Judicial First Class Magistrate Court-I, Aluva. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Ernakulam, under Section 209 of the Criminal Procedure Code. The learned Sessions Judge, having taken cognizance of the offences, made over the case for trial and disposal to the Additional Sessions Court, North Paravur. On appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for offences punishable under Sections 120 B and 302 r/w 34 of IPC. When the charge was read over and explained to the accused, both of them pleaded not gu