A deceased person's property cannot be considered stolen if taken from their body post-mortem, as there is no consent.

J U D G M E N T

C.S.Sudha, J.

This appeal under Section 374(2) Cr.P.C. has been filed by the accused in S.C.No.720/2013 on the file of the Court of Session, Thrissur, challenging the conviction entered and sentence passed against him for the offences punishable under Sections 302 and 379 IPC .

2. The prosecution case as stated in the charge sheet is as follows –

the accused, husband of two women and father of three children, with the knowledge of PW2, the approver, his friend, under the false promise that he would marry the deceased, enticed her from her parental home situated in Beach colony, Ottayini, pursuant to which on 29/01/2013 after 08.45 p.m., the deceased joined him. The accused took her behind the house of his brother Musthafa, bearing no.XVI/17, Punnayur panchayath and after all the inhabitants of the house had slept, after 10.30 p.m., had sexual intercourse with her several times. Thereafter the accused asked the deceased to return home, which she refused. Realising that she would become a liability to him, the accused smothered her to death, stole gold ornaments weighing 13.670 gms worn by her and buried her. Thus the accused is alleged to have committed the offences punishable under Sections 364, 376, 302, 392 and

201 IPC .

3. Based on Ext.P1 FIS of PW1 recorded on 01/02/2013 at 10 a.m., by PW22, the then Additional Sub Inspector, Vadakkekadu Police Station, Crime No.100/2013, i.e., Ext.P31 FIR was registered. After completion of the investigation, PW21 the then Circle Inspector, Chavakkad, submitted the charge sheet against the accused before the court. The case was taken on file as C.P.No.43/2013. After complying with the procedural formalities, the jurisdictional magistrate committed the case to the Court of Session, Thrissur. The accused continued to be in judicial custody when the case was committed to the Court of Session. Thereafter, further investigation was conducted by the CBCID, Thrissur, and a supplementary final report filed. PWs.23 to PW27, PW29 and PW30 are the officers of Crime Branch, Thrissur who conducted the further investigation had submitted the final report.

4. On appearance of the accused before the Court of Session, he was furnished with copies of all the prosecution records. On 18/06/2020 the trial court framed a charge for the offences punishable under Sections 366, 376, 302 and 379 IPC , which was read over and explained to the accused, to which he pleaded not guilty. On the side of the prosecution, PW1 to PW30 were examined and Exts.P1 to P42 and MO.1 to MO.13 were got marked. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has been adduced by the accused.

6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court acquitted the accused for the offences punishable under Sections 366 and 376 IPC . The accused has been found guilty and sentenced to undergo imprisonment for life and to a fine of ₹1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 302 and to rigorous imprisonment for three years for the offence punishable under Section 379 . It has been further directed that if the fine amount is realised, the same shall be paid to the legal heirs of the deceased under Section 357(1)(b) Cr.P.C.

7. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused by the trial court is sustainable or not.

8. Heard Ms.Rajee P.Mathew, the learned counsel for t