JUDGMENT : (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. 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 Rs.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 IPC and to rigorous imprisonment for three years for the offence punishable under Section 379 IPC. 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 the appellant and Smt.Sheeba Thomas, the learned Public Prosecutor. 9. The prosecution case is that the accused committed the murder of the deceased by smothering her. PW21, the then C.I., Chavakkad, deposed that on 01/02/2013 he had taken over the investigation of the case. According to him, the dead body of the deceased was exhumed from the backside of the house of the accused by PW15. 9. The prosecution case is that the accused committed the murder of the deceased by smothering her. PW21, the then C.I., Chavakkad, deposed that on 01/02/2013 he had taken over the investigation of the case. According to him, the dead body of the deceased was exhumed from the backside of the house of the accused by PW15. He prepared Ext.P2 scene mahazar at which time he had seized MO.8 series, a pair of chappals and MO.8, a spade. As per Ext.P20 seizure mahazar, he had seized MO.1 to MO.3, MO.10 and MO.11, the dress worn by the deceased. PW15, the then Tahsildar and Executive Magistrate, Chavakkad, deposed that on 01/02/2013, he had visited the scene of occurrence and exhumed the body in the presence of the Police Surgeon, the Scientific Expert and the police. Ext.P9 is his report. On 02/02/2013 he had conducted the inquest at the Medical College Hospital, Thrissur, and had issued Ext.P6 inquest report. PW11 is an attestor to Ext.P6 inquest report. 9.1. PW17 Additional Professor and Police Surgeon, Government Medical College Hospital, Thrissur, deposed that on 02/02/2013 he had conducted postmortem examination of the deceased and issued Ext.P11 certificate bearing his signature and office seal. He noted the following five ante-mortem injuries - “B. INJURIES (ANTEMORTEM): 1. Lacerated wound 4x2x0.3 cm on the front of chin on midline. 2. Nail mark 1x0.2 cm on the front of chin 0.5 cm outer to midline. 3. Nail mark 1x0.2 cm on the front of chin 0.8 cm outer to the injury No.2. 4. Nail mark 1x0.2 cm on the front of chin 1cm outer to the injury No.3. 5. Lacerated wound 2x0.5x0.2 cm on the front of lower lip 1.5cm outer to midline. Other superficial injuries if any could not be noted due to decomposition changes. OPINION AS TO CAUSE OF DEATH THE DECEASED DIED DUE TO SMOTHERING.” The cause of death according to PW17, was due to smothering. To a question by the court as to how he had arrived at the conclusion regarding the cause of death, PW17 answered that the five injuries noted by him were suggestive of smothering since lacerated wounds and nail marks were found around the mouth and chin. The lungs of the deceased was congested and oedematous, which was suggestive of asphyxia, i.e., lack of oxygen. 10. The aforesaid evidence has not been discredited or disputed in any way. The lungs of the deceased was congested and oedematous, which was suggestive of asphyxia, i.e., lack of oxygen. 10. The aforesaid evidence has not been discredited or disputed in any way. Therefore, the said evidence would establish that this is a case of culpable homicide as contemplated under Section 299 IPC. 11. Now coming to the question as to whether it was the accused who committed the culpable homicide. It was submitted by the learned counsel for the accused that the evidence on record is lacking to connect the accused with the crime. This is a case of circumstantial evidence and hence it is the duty of the prosecution to prove that the circumstances from which inference of guilt is sought to be drawn, must be cogently and firmly established ; that the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused ; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else ; and that the circumstantial evidence in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis other than the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. According to the learned defence counsel, the evidence on record does not satisfy the aforesaid test. 11.1. Per contra, it was submitted by the learned Prosecutor that the evidence on record is more than sufficient to connect the accused with the crime. According to her, the testimony of PW2, PW4, PW5 and PW12 coupled with the recovery of MO.4 to MO.6 gold ornaments of the deceased, and the fact that the dead body of the deceased was exhumed from the property situated behind the house of the accused, would clinchingly establish the case of the prosecution. Let us examine the evidence on record to find out whether the case has been established by the prosecution based on the aforesaid principles referred to by the defence counsel. 12. PW1, the maternal uncle of the deceased, admitted giving Ext.P1 FIS to the police. In the FIS, he has stated thus -his sister and her daughter, the deceased, are residing near his house. 12. PW1, the maternal uncle of the deceased, admitted giving Ext.P1 FIS to the police. In the FIS, he has stated thus -his sister and her daughter, the deceased, are residing near his house. The deceased has been missing from her home since last Tuesday 09:00 p.m. On enquiry it was learnt that the deceased was in close terms with the accused and that she must have eloped with him. He asked the accused about the same. However he denied any involvement. Today morning people informed him that some smell was coming from behind the house of the accused. Hearing this, he went there and looked. He saw loose soil there. When he removed some soil from the loose soil, he saw the red churidhar which the deceased normally wears. He is sure that the accused killed her and buried the body. He also heard people saying that from morning, the accused is not to be seen. PW1 when examined stands by his version in Ext.P1. PW1 denied having stated to the Crime Branch that on 06/02/2014, the accused and PW2-Mustafa had been roaming around drinking the whole day and so he entertains doubts about PW2 also and that persons other than the accused involved have been excluded due to their political influence. This portion of his 161 statement has been marked as Ext.D1. He identified the accused in the dock. PW1 identified MO.1 to MO.3 the dress of the deceased. In the cross examination he deposed that even before he had given Ext.P1, he had given a missing complaint. The investigation was taken up by the Crime Branch as there was complaints that the investigation conducted by the Vadekkekkad police was unsatisfactory. They had demanded investigation by the Crime Branch on the premise that other persons were also involved in the crime. 12.1. PW3, the brother of the deceased, deposed that the latter was missing from home since 29/01/2013 between 09:00 to 10:00 p.m. at which time there was power-cut. On 01/02/2013 her body was found buried on the rear side of the house of the accused. He identified the accused in the dock. He also identified MO.1 to MO.3 dress and MO.4 to MO.6 ornaments of the deceased. In the cross-examination he deposed that he does not remember having seen the accused on 29/01/2013. He heard that the accused had been arrested on 31/01/2013. He identified the accused in the dock. He also identified MO.1 to MO.3 dress and MO.4 to MO.6 ornaments of the deceased. In the cross-examination he deposed that he does not remember having seen the accused on 29/01/2013. He heard that the accused had been arrested on 31/01/2013. When PW3 was asked whether agitation had been conducted alleging that it was not the accused who was the real culprit, he answered that they entertained doubts regarding the involvement of another person also. 12.2. PW10, the father of the deceased deposed that his daughter went missing on 29/01/2013 at about 10:00 p.m., relating to which he had orally complained to the police. Her body was later found buried behind the house of the accused. He identified the accused in the dock. He also identified MO.1 to MO.3 dress worn by the deceased and MO.4 to MO.6 series gold ornaments worn by her. In the cross-examination PW10 deposed that he had moved this court, alleging that the investigation by the police was not satisfactory. In the said proceedings he did not say that he doubted anybody. In the re-examination he was asked whether initially the police after taking the accused, had released him, he answered in the affirmative. It was thereafter, he had approached this Court. 13. The testimony of the father, brother and maternal uncle of the deceased shows that the deceased went missing on 29/01/2013 between 09:30 and 10:00 p.m. The testimony of PW18, Assistant Engineer, Punayoorkulam Substation, would establish that there was no power supply in the area in which the house of the deceased is situated on 29/01/2013 between 09:30 and 10:00 p.m. due to load-shedding. Therefore, the fact that there was load-shedding or power failure between 09:30 and 10:00 p.m. and that the deceased went missing on 29/01/2013 is established by the aforesaid evidence. Now coming to the testimony of the other witnesses relied on by the prosecution. 14. PW4, a neighbour of the deceased, deposed that the latter went missing on 29/01/2013. On the said day at about 06:30 p.m. she had seen the deceased along with the accused at the rear side of the house of the deceased. According to her, at that time the deceased was wearing MO.1 to MO.3 dress. She identified the accused in the dock. On the said day at about 06:30 p.m. she had seen the deceased along with the accused at the rear side of the house of the deceased. According to her, at that time the deceased was wearing MO.1 to MO.3 dress. She identified the accused in the dock. In the cross-examination PW3 deposed that on the said day she had seen the deceased and the accused talking to each other. They were standing close to each other. She did not hear their conversation. PW2 admitted that she had no prior acquaintance with the accused and that on the said day, she was seeing the accused for the first time. She also admitted that she did know the name or other details of the person she had seen in the company of the deceased. After 29/01/2013 she has never seen the man she had seen with the deceased. In the re-examination PW3 deposed that during 2013, she was studying in the 9th standard. To a question by the prosecutor as to how she understood that the person she had seen with the deceased was the accused, she replied that everybody had said that it was the accused who had taken away the deceased. 15. It was pointed out by the learned defence counsel that the testimony of PW4 identifying the accused, cannot be relied on in the light of her admissions that she had no prior acquaintance with the accused and that she had never seen him thereafter. It is true that no test identification parade had been conducted to enable PW4 to identify the accused as the person she had seen with the deceased on 29/01/2013. PW4 is stated to have seen the accused in 2013. Thereafter, she identifies the accused before the court after a lapse of nine years or so, that is, in 2022. In addition to this, from the answer given by PW4 to the question put by the prosecutor in the re-examination that she concluded that the person she had seen with the deceased was the accused on the basis of what others had told her. Therefore, as pointed out by the defence counsel it may not be safe to rely on the testimony of PW4 regarding the identity of the person she is stated to have seen on the said day with the deceased. 16. Therefore, as pointed out by the defence counsel it may not be safe to rely on the testimony of PW4 regarding the identity of the person she is stated to have seen on the said day with the deceased. 16. PW5, another neighbour of the deceased, deposed that the father of the deceased used to conduct a shop inside their house. On 29/01/2013 at 09:45 p.m. she had gone to the said shop to buy biscuits for her daughter. She then saw the accused standing on the back of the house. On the said day there was power-cut at 09:30 p.m. PW5 deposed that she knows the accused since the day she was married and brought to the said place. In the cross-examination she deposed that her house is situated behind the house of the deceased. Her marriage was in the year 2003 and since then she knows the accused. When PW5 was asked whether she knows the family name of the accused, she answered that they are known as 'dubaikkar' . She had seen the accused before 29/01/2013 also. On 29/01/2013 she had seen the accused during day time. She admitted that she had stated to the police that it was when one 'Itha' told her she realized that it was the accused she had seen on the said day. 17. PW12, is another neighbour of the deceased. PW12 deposed that she knows the deceased since her childhood days. The deceased went missing on 29/01/2013. On the said day at about 09:00 p.m. as usual, the deceased had come to her house. The deceased asked her whether she knows the accused to which she answered in the negative. The deceased further told her that the accused had come to the house of one Jakir Aboobacker and that he had asked the deceased to join him. She advised the deceased not to go with the accused. It was thereafter the deceased went missing. PW12 identified MO.1 to MO.3 dress as well as MO.4 to MO.6 series gold ornaments worn by the deceased on the said day. In the cross-examination PW12 deposed that on 29/01/2013, the deceased had come to her house before 09:00 p.m. and that the deceased had spent about 10 to 15 minutes with her. The deceased left her house on hearing the former's mother calling her by which time the power supply had been restored. 18. In the cross-examination PW12 deposed that on 29/01/2013, the deceased had come to her house before 09:00 p.m. and that the deceased had spent about 10 to 15 minutes with her. The deceased left her house on hearing the former's mother calling her by which time the power supply had been restored. 18. It was submitted by the learned defence counsel that the testimony of PW12 would make it clear that it was after the power supply had been restored, the deceased had gone back to her residence on being called by her mother and therefore the prosecution case of the deceased going missing during the course of the power-cut cannot be believed. We have already referred to the testimony of PW1, PW3 and PW10, none other than the maternal uncle, brother and father of the deceased, whose testimony we find no reasons to disbelieve. The testimony of PW5 and PW12 has also not been discredited in any way. The testimony of PW5 will show that the deceased was seen in the company of the accused on 29/01/2013, that is the day on which she went missing. As pointed out by the learned prosecutor, the testimony of PW12 regarding what the deceased had told her shortly before she went missing, is relevant under Section 32(1) of the Evidence Act. The said sub-section shows that any statement made by a person as to the cause of his death or as to the circumstances of the transaction which resulted in his/her death, in cases in which the cause of that person's death comes into question, is relevant. Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death. 19. The prosecution case is that on the premise of marriage, he had persuaded the deceased to join him and that after she joined him, he repeatedly had sexual intercourse with her and then asked her to return home. When the deceased refused, the accused, a married man, realising that she would become a burden/liability, smothered her to death. Therefore the statements made by the deceased to PW12 immediately before she went missing, is a circumstance which had some proximate relation to her death and her statement to PW12 which indicates her intention to join the accused, is admissible under Section 32(1) of the Evidence Act. Therefore the statements made by the deceased to PW12 immediately before she went missing, is a circumstance which had some proximate relation to her death and her statement to PW12 which indicates her intention to join the accused, is admissible under Section 32(1) of the Evidence Act. This would be a circumstance of the transaction that led to her death and so the statement is admissible in evidence (See Retnakaran v. State, 1954 KHC 224 ; Ravindran Nair v. State of Kerala, 1997 KHC266 and Rattan Singh v. State of H.P., AIR 1997 SC 768 ). After the deceased went missing from her home, her dead body was found buried behind the house of the accused. According to the prosecution, the place of occurrence that is, the place from where the body of the deceased was exhumed is situated behind the house of the accused. This is spoken to by PWs.1, 3, 6, 10 and PW21. PW21 has prepared Ext.P2 scene mahazar. PW6, an attestor to Ext.P2 scene mahazar deposed that he had attested the mahazar on 02/02/2013 at the place where the body of the deceased had been exhumed. In the cross examination PW6 deposed that though the mahazar had been read over to him before he attested the same, he does not remember its contents. He also deposed that hearing that the body had been buried behind the house of the accused, he had also gone to the spot. He was there right from the beginning and he had rendered all help to the police in exhuming the body. 19.1. PW13, the Village Assistant, Punnayur Village Office has visited the place of occurrence and prepared Ext.P7 site plan. PW14, the then Village Officer, Punnayur deposed that on the requisition of the police he had issued Ext.P8 possession certificate certifying that 5.196 ares of property in survey no.72/9 stands in the name of one Jubairia (wife of CW32 Mustafa). As per records, the property stands in the name of another person. No evidence has also been adduced by the prosecution to show that the accused was residing in the house, from the back side of which the body had been exhumed. However, as rightly pointed out by the learned Prosecutor, the accused does not dispute the scene of occurrence. As per records, the property stands in the name of another person. No evidence has also been adduced by the prosecution to show that the accused was residing in the house, from the back side of which the body had been exhumed. However, as rightly pointed out by the learned Prosecutor, the accused does not dispute the scene of occurrence. Infact, the suggestion put to PW2, the approver, on behalf of the accused is that it was PW2 who had murdered the deceased and buried her behind the house of the accused. Therefore, the fact that the dead body of the deceased was found buried behind the house where the accused was residing after she went missing has also been established by the prosecution. 20. The learned prosecutor also refers to the testimony of PW2 and submitted that the accused had made an extra judicial confession to PW2. This extra judicial confession according to her will also establish the prosecution case. In this case initially the police had submitted a final report in which the accused herein was the sole accused. The relatives of the deceased moved this court, in which proceedings further investigation was ordered. Thereafter, further investigation was conducted and a supplementary charge sheet filed. In the further investigation, PW2 was arrested and arrayed as second accused (A2). PW25, the I.O., applied for grant of pardon to A2 under Section 306 Cr.P.C., which request was granted. Pursuant to the grant of pardon, A2 was made a prosecution witness and examined as PW2. The learned trial judge found that PW2 had not made any confession and that his statement does not reveal his complicity in the crime and therefore, he could not be treated as an approver. PW2 was also disbelieved for the reasons stated in the impugned judgment. Before us the argument advanced is not that the testimony of PW2 must be considered in his capacity as an approver, but the argument is that the testimony of PW2 would reveal that the accused had made an extra judicial confession to him, which would also corroborate the prosecution case. 21. The Code of Criminal Procedure does not use the word 'approver' in any of the provisions. An approver is a person who offers proof. He is a criminal who confesses and testifies against one or more accomplices. 21. The Code of Criminal Procedure does not use the word 'approver' in any of the provisions. An approver is a person who offers proof. He is a criminal who confesses and testifies against one or more accomplices. An approver, is thus a person who while confessing the crime committed by himself, accuses others to be guilty of the same crime. An accomplice who is prepared to confess his own guilt as well as the guilt of his associate in the crime, is an approver. (Tendering pardon to an Accomplice by Justice V. Ramkumar, 2023 Edition Page 2). The charge against A2 was that he had committed the offence punishable under Section 201 IPC. However, his statement does not in any way reveal that he had committed the said offence. Therefore the trial judge was certainly right in holding that PW2 cannot be considered as an approver. 22. Then the question that remains is whether the extra-judicial confession alleged to have been made by the accused herein to PW2 can be believed. The learned trial judge has given cogent reasons for disbelieving the testimony of PW2, who had made substantial improvements in the story when he deposed before the court. His explanation for not revealing all those facts when he gave the statement before the magistrate is that he was afraid of revealing everything as he had feared that he would be made an accused in the case. But on going through his testimony, we do not think that the explanation given by PW2 for not revealing the entire facts which he knew, was for the reasons stated by him in the court. An approver is on his own admission, a man of bad character who took part in the offence and afterwards to save himself, betray his former associates. (Bhuboni Sahu v. The King, AIR 1949 PC 257 ). An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. (Ravinder Singh v. State of Haryana, AIR 1975 SC 856 ). The learned prosecutor was unable to point out in what manner the reasonings given by the learned trial judge in disbelieving PW2 is wrong. Therefore we find that the learned trial judge had rightly rejected the testimony of PW2 as not credible. (Ravinder Singh v. State of Haryana, AIR 1975 SC 856 ). The learned prosecutor was unable to point out in what manner the reasonings given by the learned trial judge in disbelieving PW2 is wrong. Therefore we find that the learned trial judge had rightly rejected the testimony of PW2 as not credible. Hence, the prosecution cannot rely on the so-called extra judicial confession alleged to have been made by the accused to PW2. 23. Now coming to the recovery of ornaments, that is, MO.4 to MO.6 worn by the deceased at the time when she went missing. MO.4 to MO.6 ornaments have been identified by PW1, PW3, PW10 as well as PW12 as that of the deceased. The accused does not have a case that these ornaments do not belong to the deceased. PW21 deposed that on the basis of Ext.P3(a) disclosure statement of the accused, he had seized MO.4 to MO.6 gold ornaments from the business concern of PW8 as per Ext.P3 seizure mahazar. PW7 is an attestor to Ext.P3 seizure mahazar. PW7 deposed that on 04/02/2013 at about 10.00 a.m, he had attested the mahazar at Palathinkal Bankers, Panchavady. He saw MO.4 to MO.6 series ornaments kept on the table. At that time, the accused was also present. He understood that the ornaments had been pledged by the accused. 23.1. PW8, the owner of Palathinkal Bankers, deposed that he is conducting a money lending business. He advances loan on gold pledged with him. The accused used to pledge gold at his business concern. He identified the accused in the dock. On 31/01/2013 around 03.30 p.m, the accused came to his business concern for pledging gold. The accused said that he is going to gulf and hence needed money. When the gold ornaments were pledged, the accused said that the money advanced was not sufficient and since he is leaving for gulf, he would not be able to redeem it soon. So the accused requested the ornaments to be taken on sale. Therefore he purchased Mo.4 and MO.6 series from the accused, which if his memory serves right, weighed 13.600 gms. The ornaments were purchased at the rate of Rs.2,500/-per gram. On 21/12/2012, the accused had pledged a locket weighing 4 gram, which was redeemed on 31/01/2013. So the accused requested the ornaments to be taken on sale. Therefore he purchased Mo.4 and MO.6 series from the accused, which if his memory serves right, weighed 13.600 gms. The ornaments were purchased at the rate of Rs.2,500/-per gram. On 21/12/2012, the accused had pledged a locket weighing 4 gram, which was redeemed on 31/01/2013. Ext.P4 is the page in the ledger book containing the relevant entry which would show that the pledge had been redeemed on 31/01/2013. Before that on 19/12/2011, the accused had pledged gold and Ext.P5 is the relevant page of the ledger book showing that the said pledge had been redeemed on 21/12/2012. PW8 in the cross examination admitted that he has no license to purchase gold. On 31/01/2013 it was after 03.30 p.m, the accused had come. The accused had come alone. He stated that he does not remember the amount he had given more than the amount that the accused would have got had he pledged the ornaments. The accused on the said day did not tell him that he wanted any particular amount. The accused had not signed in the ledger. PW8 deposed that he does not remember the total amount that he had given to the accused. The records maintained in his business concern will not reveal the amount given by him to the accused. He denied the suggestion that the accused had not sold any ornaments to him on the said day. PW8 also deposed that he buys gold only from persons with whom he is acquainted with. In the re-examination, he deposed that the records maintained do not show any entry because he had purchased the gold from the accused. The accused has no explanation as to how the ornaments of the deceased came in his possession. This is yet another incriminating circumstance against the accused. 24. Further, the learned Prosecutor also drew our attention to the conduct of the accused in destroying his mobile phone and abandoning it immediately after the incident. This according to her is a conduct relevant under section 8 of the Evidence Act. PW21 deposed that on the basis of Ext.P24(a) disclosure statement of the accused, MO.13 broken pieces of mobile phone were recovered from the flush tank of a toilet in the KSRTC bus stand, Angamaly. MO.13 had been seized as per Ext.P24 mahazar. This according to her is a conduct relevant under section 8 of the Evidence Act. PW21 deposed that on the basis of Ext.P24(a) disclosure statement of the accused, MO.13 broken pieces of mobile phone were recovered from the flush tank of a toilet in the KSRTC bus stand, Angamaly. MO.13 had been seized as per Ext.P24 mahazar. PW20 deposed that he is an attestor to the said mahazar. As per Section 8 of the Evidence Act, the previous or subsequent conduct of any person, an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. Here the accused does not give any explanation as to why he had destroyed the mobile phone he was using and had concealed them in the place from which it was recovered. This conduct of the accused is certainly relevant as it appears that he was trying to wipe out all traces of evidence which would indicate his presence near the place of crime. In addition to that the prosecution has also brought in evidence to show that after destroying the said phone the accused had purchased a new phone. PW21 deposed that on the basis of Ext.P25 (a) confession statement given by the accused he had proceeded to a shop named Cell City at Angamaly – Aluva road and seized a note book which contained entries regarding sale of a mobile phone to the accused. The note book according to PW21 was returned to the shop owner as per Ext.P32 Kaicheet. It is doubtful whether this is a 'discovery' as contemplated under Section 27 of the Evidence Act. Even if this part of the prosecution evidence is ignored, there is still the evidence that the accused did destroy the phone that he had earlier been using. 25. Further, according to the prosecution, an amount of Rs.19,130/-had been recovered on the basis of the confession statement given by the accused. PW21 deposed that on the basis of Ext.P5(a) confession statement given by the accused and as led by the accused he had recovered MO.7 purse and amount of Rs.19,130/-from the said purse which was kept inside the right pocket of a pant of the accused, which pant was inside a building taken on rent by the accused. PW21 deposed that on the basis of Ext.P5(a) confession statement given by the accused and as led by the accused he had recovered MO.7 purse and amount of Rs.19,130/-from the said purse which was kept inside the right pocket of a pant of the accused, which pant was inside a building taken on rent by the accused. To establish the same, the prosecution relies on the testimony of PW9, who deposed that he is an attestor to Ext.P9 rental deed by which the building of one Nabeesa had been taken on lease by the accused. On 07/02/2013, the police along with the accused came to the said building, broke open the lock and recovered MO.7 purse which contained an amount of Rs.19,130/-. The purse was recovered from the pocket of a pant hung inside the house. PW9 is an attestor to Ext.P5 seizure mahazar prepared by PW21. PW9 identified the accused in the dock. This money according to the prosecution is the amount that the accused received as proceeds from the sale of MO.4 to MO.6 series ornaments of the deceased. It is true that evidence has not come on record as to what exactly was the amount that was given by PW8 to the accused when he purchased MO.4 to MO.6 series ornaments from the accused. However, the accused does not seem to have a case that the money recovered belongs to him. This coupled with the testimony of PW8, PW21 and PW7, would establish that the gold ornaments of the deceased had been seized at the instance of the accused from the business concern of PW8. 26. The aforesaid evidence establishes the following aspects namely, (i) death of the deceased was infact a case of culpable homicide amounting to murder; (ii) the accused was seen near the house of the deceased before she went missing; (iii) the accused was seen in the company of the deceased before she went missing; (iv) the deceased before she went missing discussed with PW12 the invitation made by accused to join him; (v) after the deceased went missing, her dead body is found buried behind the house of the accused and (vi) the recovery of MO.4 to MO.6 series gold ornaments worn by the deceased when she went missing from the business concern of PW8 based on the disclosure statement given by the accused to PW21. Therefore, the prosecution case of commission of murder and removal of valuables from the body of the deceased has been established to be part of the same transaction and that the accused is the person who has committed the same. The accused apart from a bald denial, has not been able to give any explanation whatsoever regarding the incriminating circumstances brought on record by the prosecution. Therefore we find that the entire chain of circumstances has been established and the same leads to the irresistible conclusion that it was the accused who committed the murder and had taken away the gold ornaments of the deceased. 27. The trial court has acquitted the accused of the offences punishable under Section 376 and 366 IPC from which there is no appeal by the State. Therefore, we are not looking into the said aspect at all. The learned trial judge has found the accused guilty for the offence under Section 302 IPC as well as under Section 379 IPC. It was pointed out by the learned defence counsel that the offence under Section 379 IPC would not be made out because as per Section 378 IPC, it is when a person intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property, the offence of theft would be made out. Here even according to the prosecution, the deceased was dead when the accused is alleged to have removed the ornaments from her body. Therefore, it cannot be stated that it was taken without the consent of the deceased and hence the offence under Section 379 IPC is not made out. On the other hand, the learned Prosecutor drew our attention to Section 404 IPC which says that whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person’s decease, and has not since been in the possession of any person legally entitled to such possession, is liable to be punished. 28. Admittedly, the accused in this case has not been charged for the offence under Section 404 IPC. The general rule is that an accused person cannot be convicted of an offence in the absence of a specific charge in that respect. Sections 221 and 222 Cr.P.C. are the two exceptions to the said rule. 28. Admittedly, the accused in this case has not been charged for the offence under Section 404 IPC. The general rule is that an accused person cannot be convicted of an offence in the absence of a specific charge in that respect. Sections 221 and 222 Cr.P.C. are the two exceptions to the said rule. The minor offence contemplated under sub Section (2) to Section 222 Cr.P.C. must be a cognate offence in relation to the main offence. In a case where the minor offence disclosed the evidence is one, the ingredients of which are entirely different from the main offence with which the accused was charged, he cannot be convicted in the absence of a specific charge for the minor offence proved by invoking the aid of sub Section (2) of Section 222 Cr.P.C. The major and the minor offences must have been the main ingredients in common. An accused charged with one offence which is entirely of a different type from the offence which is proved to have been committed, cannot in the absence of a proper charge be convicted of that offence merely on the ground that the facts proved constitute a minor offence. Where two offences involve different elements and different questions of fact, one offence cannot be said to be minor to the other. It is with reference to the main major offence referred to in Section 222 Cr.P.C that an offence has to be treated as minor within the meaning of sub-section (2) of the Section (Thomachan v. State of Kerala, 1978 KHC 91). That being the position, the accused cannot be found guilty or convicted for the offence under Section 404 IPC. In these circumstances, the appeal is partly allowed. The conviction and sentence passed against the accused for the offence punishable under Section 379 IPC is set aside. The conviction and sentence of the accused for the offence punishable under Section 302 IPC is confirmed. Interlocutory applications, if any pending, shall stand closed.