Criminal Appeal No.37 of 2012

18th December, 2013

Petitioner Counsel: Mr. C.A. FERREIRA with Ms. PREMA MATKAR
Respondent Counsel: Mr. S.R. RIVONKAR

Cases Cited:
State of Punjab Vs. Sucha Singh & Ors., 2003 ALL MR (Cri) 783 (S.C.)=2003(3) SCC 153 [Para 4,20]
R. Shaji Vs. State of Kerala, 2013 ALL MR (Cri) 1469 (S.C.) [Para 4,21]
Mohammad Shadab Vs. State of Goa, 2012 ALL MR (Cri) 2255=Criminal Appeal No.38/2010 [Para 5]
Sk. Yusuf Vs. State of West Bengal, 2011 ALL MR (Cri) 2365 (S.C.) [Para 5,23]
Trimbak Vs. State of Madhya Pradesh, AIR 1954 SC 39 [Para 6]
Wakkar & Anr. Vs. State of U.P., 2011 ALL MR (Cri) 1327 (S.C.)=2011 (3) SCC 306 [Para 6,24]
Kailash Raghunath Ambekar Vs. State of Maharashtra, 2004 ALL MR (Cri) 3257 [Para 6,25]
Raj Kumar Singh alias Batya Vs. State of Rajasthan, 2013 ALL MR (Cri) 2240 (S.C.)=2013(5) SCC 722 [Para 7,25]
Sharad Birdhichand Sarada Vs. State of Maharashtra, 2009 ALL SCR (O.C.C.) 281=(1984) 4 SCC 116 [Para 7]
Joseph s/o. Kooveli Poulo Vs. State of Kerala, 2000 ALL MR (Cri) 1920 (S.C.)=(2000) 5 SCC 197 [Para 8,26]
Rohtash Kumar Vs. State of Haryana, 2013 ALL MR (Cri) 2620 (S.C.) [Para 8,9]
Manjit Singh & Anr. Vs. State of Punjab & Anr., 2013 ALL SCR 3338=2013 AIR SCW 6049 [Para 17]
Dayal Singh & Ors. Vs. State of Uttaranchal, (2012) 8 SCC 263 [Para 28]

JUDGMENT

F. M. REIS, J. :- The above Appeal challenges the Judgment dated 04.08.2012 passed in Sessions Case no. 8 of 2010, whereby the appellant was convicted for offences punishable under Section 302 of the Indian Penal Code and sentenced to life imprisonment and to pay a fine of Rs.5,000/- or in default further one year rigorous imprisonment.

2. The appellant was charged under Section 302 of the Indian Penal Code on the ground that on 09.11.2009 at about 19.45 hours, at house no. 39, Torsawado, Nagoa, Verna, that the appellant had committed murder of Smt. Faustine Rebello. The learned Sessions Judge examined on behalf of the prosecution/respondents herein 20 witnesses including the Investigating Officer. After recording the statement of the appellant under Section 313 of Cr. P.C., the learned Sessions Judge by the impugned Judgment came to the conclusion that the prosecution had proved its case by clinching and reliable evidence.

3. Being aggrieved by the said Judgment and the sentence imposed upon the appellant, the present Appeal has been preferred by the appellant.

4. Shri C. A. Ferreira, learned Counsel appearing for the appellant, has strenuously objected the conviction and the sentence imposed by the learned Sessions Judge essentially on the ground that all the alleged circumstances relied by the prosecution do not in any way implicate the appellant in the alleged crime. The learned Counsel further pointed out that every attempt is made by the prosecution only to fabricate material to implicate the appellant in the alleged crime. The learned Counsel further pointed out that the first circumstance alleged against the accused is with regard to the previous enmity to establish the motive of the alleged crime. But, according to the learned Counsel, there is no reliable material on record to establish the said aspect. Learned Counsel has taken us through the evidence of Pw.1, Lavina Rebello, who is the Complainant and pointed out that she has admitted that there was no case pending between the parties since the year 1970. The learned Counsel further pointed out that Pw. 15, who is the Head Constable, Razak Madabhavi, has deposed about the complaint of the deceased on 04.08.2008 but, however, no entry is found in the station diary nor any register produced where such entry was made and further the depositions suggests that even the appellant was not aware about the said case. The learned Counsel has thereafter taken us through the deposition of Pw. 19, the Investigation Officer, and pointed out that he has admitted that no criminal case has been registered against the appellant but only a case under the Domestic Violence Act, which was not even referred to by the Complainant. The learned Counsel as such points out that this evidence establishes that the prosecution has failed to establish the previous enmity between the appellant and the Deceased. The learned Counsel further pointed out that as the motive of the crime itself has not been established, it weighs in favour of the appellant. In support of his submissions, the learned Counsel has relied upon the Judgments of the Apex Court reported in 2003(3) S.C.C. 153 : [2003 ALL MR (Cri) 783 (S.C.)] in the case of State of Punjab vs. Sucha Singh & Ors. and 2013 ALL MR (Cri) 1469 (S.C.) in the case of R. Shaji vs. State of Kerala.

5. The next contention of Shri Ferreira, learned Counsel appearing for the appellant, is that the prosecution is trying to take advantage of an alleged complaint lodged before the College by his mother in his absence on the relevant date. The learned Counsel has taken us through the evidence of Pw. 2, Bimal Zacharia, and pointed out that his evidence discloses that the deceased did not go to the college on 09.11.2009 and only the mother of the appellant went to the College. The learned Counsel has thereafter taken us through the evidence of Pw.13, the Principal of the College, and pointed out that considering the work timings of the appellant, the alleged incident occurred after he working hours and the mere absence of the appellant on the relevant date during the afternoon session would not in any way implicate the appellant. The learned Counsel further pointed out that even the alleged complaint was by the mother and not by the deceased and, in any event, no credence can be attached to such aspect as the mother herself has not been examined. The learned Counsel as such pointed out that the inconsistencies in the evidence of the said witnesses itself establishes that the alleged complaint by the mother in any event is of no consequence to implicate the appellant. The learned Counsel thereafter has taken us through the aspect as to whether the prosecution had established the pre-planning part of the appellant in commissioning the alleged crime. In support of the same, the prosecution has examined Pw.7, Alex Fernandes, to point out that the appellant had informed them that he would not come in the evening time to pick them up from the establishment. The learned Counsel further pointed out that the appellant was driving their car in addition to his duties at the college and it is difficult to assume that at 6.00 a.m., when the appellant had dropped Pw.7, he would visualise that his mother would lodge the complaint with the College against him. Thereafter, the learned Counsel has taken us through the evidence of Antonette Fernandes, and pointed out that the inconsistencies in the said deposition establish that such evidence has been fabricated at the Police Station to nail the appellant by the prosecution. The learned Counsel further pointed out that merely because he informed the said employers, that he would not attend to work in the evening does not lead to any conclusion that the appellant had pre-planned the commissioning of the alleged crime. Learned Counsel has thereafter taken us through the claim by the prosecution with regard to the purchase of the koita on the date of the incident. The learned Counsel has pointed out that in support of such conclusion, the prosecution has examined Peter Fernandes and pointed out that his evidence does not suggest that the appellant had purchased any koita on the relevant date and, in any event, it is stated by him that the appellant had purchased a koita from his brother. Learned Counsel has thereafter taken us through the evidence of Joaquim Fernandes, Pw.11, and pointed out that he had stated that he had seen the koita at the Police Station and wondered how he could do so if the said koita was recovered at the instance of the appellant and duly sealed as claimed by the prosecution. The learned Counsel, as such submits, that such evidence discloses that the respondents have failed to establish the said aspect as, considering the inconsistencies with regard to the handle of the koita, it can be safely assumed that the koita produced is not the koita which was purchased by the appellant. The learned Counsel has, thereafter, taken us through the circumstances alleged by the prosecution that the appellant was the last to go with the appellant. In this connection, the learned Counsel has pointed out, that on going through the evidence of Pw. 12, Steve Fernandes, he has only stated that he had seen the accused loitering around the house which was occupied by the deceased. Learned Counsel, as such submits that this evidence cannot establish that the appellant was seen in the company of the Accused nor anything to suggest that there was any fight between the appellant and the deceased nor have they stated that the appellant and the Accused had left the house together. The learned Counsel has taken us through the evidence of Pw.16, Maria Estela Fernandes, who has stated that the appellant had come to a bar and ordered for a beer during the evening time. The learned Counsel has pointed out that no details as to the time when he came to the bar nor any person examined to corroborate the said aspect. The learned Counsel has, thereafter, taken us through the evidence of Pw.18, Santan Mesquita, who has stated that she had seen the accused prior to the incident passing in front of the shop wearing a red T-shirt, pant and shoes. The learned Counsel has pointed out that there are no details of the time mentioned by the said witness nor anything to show that the appellant was seen in the company of the deceased. The learned Counsel further pointed out that merely being seen around the house cannot exclude the possibility of any other person interfering in between and, as such, the said circumstance has not at all been established by the prosecution. The learned Counsel in support of his submissions has relied upon the Judgment passed in Criminal Appeal no. 38 of 2010 : [2012 ALL MR (Cri) 2255] in the case of Mohammad Shadab vs. State of Goa and the Judgment of the Apex Court reported in 2011 ALL MR (Cri) 2365 (S.C.) in the case of Sk. Yusuf vs. State of West Bengal. The learned Counsel as such submits that the fact alleged that the appellant was seen in the company of the deceased, has not been established by the respondents by any material on record.

6. With regard to the recovery under Section 27 of the Evidence Act, the learned Counsel has pointed out that such recovery has not been established by the prosecution. The learned Counsel has taken us through the evidence of Pw. 8, Rosy Dias, and pointed out that she has deposed that the appellant had shown the koita lying in the bushes with a handle and a metalic ring in the middle of the koita and thread to the handle. He has further stated that the Police Inspector inserted this koita in one polythene bag which was in turn put in a brown colour envelope. The learned Counsel further pointed that there is nothing to suggest that any sealing material was carried by the prosecution where such alleged recovery was carried out. The learned Counsel has, thereafter, pointed out that he has admitted that the bushes where the said koita was recovered were in an open space. Learned Counsel has thereafter taken us through the evidence of the Investigating Officer Pw. 19, and pointed out that he has admitted that the koita was found in the open space in the bushes and that the koita was a new koita and that such koitas are easily available in the market. The learned Counsel has thereafter pointed out that the Police Inspector has got access to the seal whenever required and, as such, submitted that the panchanama was totally fabricated and not mentioning that the sealing material was taken to the site and the brown bag becoming blue when produced in the Court proceedings creates a doubt with regard to the alleged recovery. The learned Counsel in support of his submissions that the recovery has not been established, has relied upon the Judgment of the Apex Court reported in AIR 1954 SC 39 in the case of Trimbak vs. State of Madhya Pradesh, 2011 (3) SCC 306 : [2011 ALL MR (Cri) 1327 (S.C.)] in the case of Wakkar & anr. vs. State of UP and 2004 ALL MR (Cri) 3257 in the case of Kailash Raghunath Ambekar vs. State of Maharashtra.

7. The learned Counsel has, thereafter, taken us through the alleged circumstances about the clothes worn by the appellant at the relevant time. The learned Counsel pointed out that Pw. 6, John Pereira, in his cross examination has stated that he was contacted about half an hour prior to the panchanama and that it was 1.30 a.m. The learned Counsel has thereafter pointed out that he had also stated that the police had asked the family members of the appellant to bring the clothes from his residence. The learned Counsel further pointed out that the said witness has not named the person who had called him nor the person who had brought the clothes and this itself shows that the items have been planted by the prosecution. The learned Counsel has thereafter taken us through the investigation of Pw. 19, and pointed out that not informing the relatives of the appellant about his arrest and not recording of the clothes worn and what items he carried, itself shows that the evidence on that aspect is not to be considered. The learned Counsel also pointed out that though the appellant was allegedly picked up from the KTC, Ponda, nevertheless, there was nothing to show that he was arrested or detained at the same place. The learned Counsel has thereafter pointed out that the entire arrest formalities are vitiated and the recovery of the items under the panchanama are of no consequence. The learned Counsel thereafter points out that the evidence shows that factually, the appellant was not at the said place and as such that he was arrested from Ponda KTC has not been established. The learned Counsel in support of the said submission has relied upon the Judgment of the Apex Court reported in 2013(5) SCC 722 : [2013 ALL MR (Cri) 2240 (S.C.)] in the case of Raj Kumar Singh alias Batya vs. State of Rajasthan and pointed out that alibi is relevant only in case in which the prosecution has fundamental incriminating material. The learned Counsel has thereafter taken us through the material on record and pointed out that the items were not sent with due dispatch to the CTSL, Hyderabad and the tampering, itself suggests that such material cannot in any way implicate the appellant. The learned Counsel further pointed out that there is nothing to suggest that the items were kept in the police karkhana nor that they have been duly sealed and the seal movement has also not been produced. The learned Counsel has also pointed out that the appellant has been sent for medical examination belatedly which is a violation of the fundamental rights. The learned counsel has also pointed out that material witnesses have not been examined to establish the alleged chain of circumstances to implicate the appellant. The learned Counsel further pointed out that even assuming the evidence on record are taken into consideration, such evidence can at the most create a suspicion against the appellant and it is well settled that suspicion cannot take place of proof. The learned Counsel has further pointed out that the prosecution is relying upon circumstantial evidence and that there is no direct evidence to implicate the appellant and, according to him, it is well settled that the prosecution has to establish each and every circumstance beyond reasonable down and such circumstances point to the guilt of the appellant and no one else. The learned Counsel as such has pointed out that the alleged circumstances have not been established and, in any event, such circumstances do not point to the guilt of the appellant. In support of the submissions, the learned Counsel has relied upon the Judgment of the Apex Court reported in (1984) 4 SCC 116 : [2009 ALL SCR (O.C.C.) 281] in the case of Sharad Birdhichand Sarada vs. State of Maharashtra. The learned Counsel, as such, submits that on going through the impugned Judgment passed by the learned Sessions Judge, it is evident that the learned Judge has misdirected itself to come to the conclusion that the prosecution has established the charge beyond reasonable doubt when, on the contrary, the evidence establishes that the prosecution failed to prove the guilt of the appellant under any circumstances and, as such, the impugned judgment deserves to be quashed and set aside and the appellant be acquitted of the charge against him.

8. On the other hand, Shri S. R. Rivonkar, learned Public Prosecutor, appearing for the State-respondents, has supported the impugned Judgment. Learned Public Prosecutor further pointed out that the respondents-prosecution established beyond reasonable doubt the guilt of the appellant and, as such, there is no case made out for any interference. Learned Public Prosecutor further pointed out that mere discrepancies in the evidence do not in any way vitiate the evidence adduced by the respondents to establish that the appellant had committed offences punishable under Section 302 of the Indian Penal Code. Learned Public Prosecutor further pointed out that the contention of Shri C. A. Ferreira, learned Counsel appearing for the appellants, to the effect that the prosecution has failed to establish the motive of the crime, cannot be accepted as, according to him, the appellant on the relevant date had sought leave for the afternoon session and apart from that, he had also informed the other persons for whom he was driving the vehicle during his spare time, that he would not be available in the evening session. Learned Public Prosecutor thereafter pointed out that the evidence discloses that the deceased along with the mother of the appellant had gone to the Carmel College two days prior to the incidence to submit a complaint against the appellant and, thereafter, the mother had also visited the said College on the relevant date. The Learned Public Prosecutor has taken us through the copy of the said complaint and pointed out that the entry therein clearly establishes that the same was made on 09.11.2009. Learned Public Prosecutor pointed out that the prosecution has examined 20 witnesses. Learned Public Prosecutor has first taken us through the evidence of Pw. 1, who is the Complainant, and pointed out that she had clearly mentioned in the complaint that there was enmity between the families and further that the deceased as well as the appellant were residing in the same house. Learned Public Prosecutor further pointed out that the appellant is the brother of the husband of the deceased and they were residing in the same house in separate portions. Learned Public Prosecutor further pointed out that Pw. 1 had even name the appellant of having committed the crime in her complaint which was lodged immediately after the incident. Learned Public Prosecutor further pointed out that Pw. 2, Bimal Zacaria, also stated that he had visited the site on 09.11.2009. Learned Public Prosecutor has taken us through the evidence and pointed out that after the incident occurred, the said witness was informed by one of the brothers of the appellant that such incident occurred at the instance of the appellant. Learned Public Prosecutor has thereafter taken us through the evidence of Pw. 3, who conducted the blood groupings. Learned Public Prosecutor has also taken us through the evidence of Pw. 4, Peter Fernandes, who had stated that the appellant had taken the koita from his brother Joaquim Fernandes. Learned Public Prosecutor has also taken us through the evidence of Pw. 6, who was a pancha witness to the arrest panchanama. The learned Public Prosecutor has thereafter taken us through the evidence of Pw. 10, Dr. Silvano Dias Sapeco, who stated that he conducted the post mortem of the deceased and has produced the post mortem report. The Learned Public Prosecutor has pointed out that he has stated that the injuries sustained by the deceased could be inflicted by the said koita. The learned Counsel has thereafter taken us through the evidence of Joaquim Fernandes, who had sold the koita to the appellant on 09.11.2011. The learned Counsel has thereafter taken us through the evidence of Principal of Carmel College, who has stated that on the relevant date, the appellant had worked only during the morning session and thereafter was absent. Learned Public Prosecutor has also taken us through the evidence of the other employers namely Pw. 14, who has stated that on the relevant date, the appellant had informed them that he would not report for duties in the evening session. The Learned Public Prosecutor has taken us through the evidence of Pw. 17, who is an UDC in the College, who has stated that one lady had come to see the Principal on 07.11.2009 and as she was not there, she came thereafter on Monday i.e. 09.11.2009. Learned Public Prosecutor has thereafter taken us through the evidence of Pw. 19, the Investigating Officers, as well as P.w. 20, P. Jayakrishna, who is the Senior Scientific Officer, CFSL, Hyderabad. The learned Public Prosecutor as such points out that the material on record clearly establishes that the appellant was in inimical terms with the deceased and that the appellant failed to report for duty in the afternoon session on the relevant date. Learned Public Prosecutor further pointed out that the appellant had purchased the koita on the relevant date during the noon session from Pw. 11 and the appellant was wearing the same clothes as pointed out by Pw. 8. The handkerchief recovered from the appellant was having blood stains which matched those of the deceased. The T-shirt worn by the appellant also had blood stains. The Learned Public Prosecutor further pointed out that the plea of alibi taken by the appellant in 313 statement that he was at his in-laws place at Vasco-da-Gama, has not been proved by any material on record. The Learned Public Prosecutor in that connection has relied upon the Judgment reported in (2000) 5 SCC 197 : [2000 ALL MR (Cri) 1920 (S.C.)] in the case of Joseph s/o. Kooveli Poulo vs. State of Kerala. The learned Public Prosecutor also pointed out that each and every incriminating circumstance has been duly established by the prosecution against the appellant to prove the chain of events to prove the guilt of the appellant. The Learned Public Prosecutor pointed out that the nature of the injuries sustained by the deceased clearly show that the appellant had intention of killing the deceased and, as such, committed offences punishable under Section 302 of the Indian Penal Code. The learned Public Prosecutor in support of his submissions has relied upon the Judgment of the Apex Court reported in 2013 ALL MR (Cri) 2620 (S.C.) in the case of Rohtash Kumar vs. State of Haryana. The learned Public Prosecutor has taken us through the Judgment of the learned Sessions Judge and pointed out that the learned Sessions Judge has rightly come to the conclusion that all the incriminating circumstances have been duly established by the prosecution beyond reasonable doubt. Learned Public Prosecutor as such submits that the Appeal deserves to be rejected.

9. Before we proceed to appreciate the rival contentions advanced by the learned counsel appearing for the appellant and the learned Public Prosecutor, it would be relevant to record the observations at paras 18, 21, 22, 23 & 25 of the Apex Court in the case of Rohtash Kumar (supra):

"18. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (See: State of U.P. v. M.K. Anthony : AIR 1985 SC 48; State rep. by Inspector of Police v. Saravanan and Anr. : AIR 2009 SC 152; [2009 ALL MR (Cri) 580 (S.C.)]; and Vijay @ Chinee v. State of M.P. : (2010) 8 SCC 191)[2010 ALL MR (Cri) 3326 (S.C.)].

21. The evidence regarding the existence of a motive which operates in the mind of the accused is very often very limited, and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. In a case of circumstantial evidence, motive may be a very relevant factor. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggests adequately, the existence of the necessary motive required to commit a crime, it may be conceived that the accused has in fact, committed the same. (Vide: Subedar Tewari v. State of U.P. and Ors. : AIR 1989 SC 733; Suresh Chandra Bahri v. State of Bihar : AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of Punjab : (2012) 11 SCC 205) : [2012 ALL SCR 2940].

22. It is obligatory on the part of the accused while being examined Under Section 313 Code of Criminal Procedure, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not, the chain of circumstances is complete. [Vide: Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh : AIR 2010 SC 762; [2010 ALL MR (Cri) 933 (S.C.)]; and Dr. Sunil Clifford Daniel, [2012 ALL SCR 2940 ](supra)].

22. It is obligatory on the part of the accused while being examined Under Section 313 Code of Criminal Procedure, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not, the chain of circumstances is complete. [Vide: Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh : AIR 2010 SC 762; [2010 ALL MR (Cri) 933 (S.C.)]; and Dr. Sunil Clifford Daniel, [2012 ALL SCR 2940 ](supra)].

"When the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances."

Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which has come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances.

25. In Trimukh Maroti Kirkan v. State of Maharashtra : (2006) 10 SCC 681: [2006 ALL MR (Cri) 3510 (S.C.): 2007 ALL SCR 237], this Court held as under:

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

(See also: Prithipal Singh and Ors. v. State of Punjab and Anr. : (2012) 1 SCC 10) : [2011 ALL MR (Cri) 3931 (S.C.)]

Thus, the doctrine of "last seen together" shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him"

10. In the light of the said observations, we shall now proceed to consider the contentions advanced by the learned counsel in support of their respective submissions. The first circumstance sought to be relied upon by the prosecution to implicate the appellant is the previous enmity between the appellant and the deceased. It is the contention of Mr. Ferreira, learned counsel appearing for the appellant that such previous enmity has not been established. In this connection, on perusal of the evidence of PW1 Lavina, there is a specific averment in the complaint filed immediately after the incident occurred that there was some dispute between her mother who was the deceased and the appellant. In the evidence of PW15 Razak Madabhavi, who is the Head Constable he has stated that a complaint was lodged by the deceased on 04.08.2008. It is also on record that there was an endorsement by the police inspector to proceed under Section 107 of the Criminal Procedure Code. The evidence also discloses that the mother of the deceased had gone to the place of work of the appellant to seek information about the appellant two days before the incident under the Right to Information. In this connection, the respondents have also examined PW17 Sunita Pereira, who has stated that on 07.11.2009 one lady approached and inquired about the Principal and that the same lady had come on Monday i.e. on 09.11.2009. Apart from that, it is also to be noted that the fact that the mother of the appellant and the deceased were taken to the College by PW2 Bimal Zacharia to present a complaint against the appellant on 07.11.2009 as well as on Monday i.e. on 09.11.2009 has been duly established. On perusal of the letter produced by the Principal of the College, the endorsement therein clearly shows that such complaint was lodged on the day of the incident to seek information about the date of birth and the educational qualifications of the appellant shown in his application for employment as he was not qualified for the job. The fact that the person had come to file such complaint with the Principal against the appellant has also been established by the evidence of the employee of the college PW17 Sunita Pereira. Though it was admitted in the cross examination by PW1 that no case pertaining to any property dispute was pending in any Court, but, however, the fact that the Appellant was having estranged relationship with the deceased, is further corroborated by the evidence of PW15, Head Constable, who has produced a complaint dated 04.08.2008 at exhibit 72. The complaint shows that the deceased had claimed that the Appellant had become a terror in the house and was trying to put poison in their food creating nuisance and even chasing his mother who was 75 years old and harassing the children and the husband of the deceased. The only contention of the Appellant was that the filing of the chapter case against the Appellant and the proceedings under Section 107 of the Cr. P.C. were defective and suffered from irregularity. All these facts which have been duly established by the respondents lead to the conclusion that there were disputes between the appellant and the deceased before the incident occurred and the relationship was strained though they were residing in the same house separately. Even in the complaint lodged by PW1, she had even named the appellant therein. In the background of such facts which have been duly established by the respondents, we find that the contention of Mr. Ferreira, learned counsel appearing for the appellant that the motive of the crime has not been established cannot be accepted. The minor discrepancies highlighted by the learned counsel cannot come in the way of coming to the conclusion that the respondents have duly established the motive and/or previous enmity which led to commit the crime.

11. Another circumstance relied upon by the prosecution is that the appellant was absent from duties during the afternoon session of the day of the incident to show that the incident was pre-planned. In support thereof, the respondents have examined the Principal PW13 Sr. Maria Aradinha who has stated that the working hours were from 8.30 a.m. to 4.30 p.m. Though it is the contention of Mr. Ferreira, learned counsel appearing for the appellant that not attending the work on the said day is irrelevant, considering that the incident occurred only after 7.00 p.m and the records reveal that his duties get over at 4.30 p.m., nevertheless, considering that it is the contention of the respondents that the appellant was preparing for the crime during the said period, the said aspect becomes relevant. The evidence further discloses that the appellant was also doing some part time job by driving the vehicle for Mr. Alex Fernandes, PW7. He has stated that after dropping them at 6.00 a.m. on the said date i.e. 09.11.2009, the appellant had stated that he would not come in the evening time to pick them up. PW14 has also stated that the appellant informed that he would not come in the evening to drive the car on the day of the incident. These facts which have been duly established by the respondents coupled with the statement of the Principal of the College and the attendance register at Exhibit 68 establish that the appellant was absent from duties during the afternoon session and read with the other circumstances stated below show that the appellant was planning to commission the crime. The contention of Mr. Ferreira, learned counsel that the said evidence has been fabricated by the respondents cannot be accepted. There is no evidence on record to draw any inference that the appellant was falsely implicated in the case as contended by the learned counsel appearing for the appellant. Hence, the said circumstance has also been duly established by the respondents.

12. Next incriminating circumstance relied upon by the respondents is the fact that the appellant had purchased the weapon/koita on the day of the incident. In support of the said aspect, the respondents have examined PW4 Peter Fernandes who has stated that the appellant used to come for sharpening koitas and that he was working for Carmel College. He has also stated that the appellant had taken a koita on 09.11.2009 at about 1.00 p.m., from his brother Sebastian alias Joaquim Fernandes. Another witness examined is PW11 Joaquim Fernandes who has stated that he had fixed an old wooden handle to the koita since the appellant was in need of such koita and sold it to the appellant for Rs.300/-. The evidence of the said two witnesses which is reliable conclusively establish that on the day of the incident, the appellant had purchased the koita from PW11. The identity of the appellant has also been duly established by PW4 and PW11 who have inter-alia stated that the appellant used to visit their work place to sharpen koitas of Carmel College. The evidence of the said witnesses has not been shaken in the cross examination and as such, it conclusively establishes that the appellant had purchased the koita on the day of incident. The doubt sought to be drawn by Mr. Ferreira, as there were holes to the handle which were not made by PW11 has been rightly rejected by the learned Sessions Judge in the impugned judgment. Thus, the aforesaid circumstance is duly established by the respondents which discloses that the appellant had preplanned the crime on the day of the incident by purchasing the koita.

13. Next circumstance relied upon by the respondents is that on the day of the incident, the appellant/accused was seen inside the residential house prior to the crime where the deceased was also present. Mr. Ferreira, learned counsel appearing for the appellant has pointed out that merely because the appellant was seen in the house which was being occupied by the appellant as well as the deceased on the relevant day cannot by itself establish that the appellant was last seen along with the deceased. It was further the contention of the appellant that the evidence discloses that the appellant was seen in and around the house where the deceased was thereafter found murdered but there is no evidence on record to establish that the appellant was last seen along with the deceased and no one else which is a prerequisite requirement to contend that the appellant/accused was last seen with the deceased. The learned counsel has taken us through the evidence of the complainant as well as the evidence of the other witnesses in support of the said contention. On perusal of the evidence of Steve Fernandes PW12, we find that he has stated that he went to the house of PW1 on the relevant date at about 5.00 p.m. He has also stated that besides PW1, her younger sister, her mother and the appellant were in the house. He has further stated that he had left the house at around 7.25 p.m. He has also stated that he saw the appellant in the house of PW1 from 5.00 p.m. to 7.25 p.m. when he left the house. PW1 has also stated that before she went for bath, she had seen her mother as well as the appellant in the said house. PW18 Santan Mesquita who has a shop nearby identified the clothes worn by the appellant and also stated that she had seen him while passing in front of the shop at the time of the incident. In this connection when these facts were put to the appellant while recording the statement under Section 313 of the Criminal Procedure Code, the appellant has stated that he was at Vasco during the said period. This aspect has not been established by the appellant on the basis of any material on record. Considering the said fact, the evidence of the said witness coupled with the evidence of PW1 conclusively establish that on the date and time of the incident, the appellant was in the house which was also being occupied by the deceased. It is to be noted that the deceased was murdered in the compound of the house and found 10 -15 metres away near the telephone booth on the relevant date. The evidence of Steve Fernandes PW12 further corroborates the evidence of PW1 to show that the appellant was at the common house at the relevant time and was wearing a maroon coloured T-shirt, dark blue pant and white shoes. There is no reason to disbelieve the said witness as his version has not been shaken in the cross examination. Considering the alibi taken by the appellant which has not been established, we find that the respondents have conclusively established that as on the date and time of the incident, the appellant was last seen in the company of the deceased. The contention of Mr. Ferreira, learned counsel that such circumstance has to be established by disclosing that there was no probability of any person being in the company of the deceased cannot be accepted in view of clinching evidence on record which clearly establishes that the appellant was in the company of the deceased in their residential house little prior to commissioning of the crime. In this connection, it is now well settled by the Apex Court that when the prosecution has been able to establish that the appellant/accused was seen in the company of the deceased prior to the incident, it becomes the duty of the accused/appellant herein to explain the circumstance under which the death of the victim had occurred. Thus, the doctrine of "last seen together" shifts the burden of proof on the appellant/accused requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard would give rise to a very strong presumption against the accused. In the present case, considering that the respondents/prosecution have established that prior to the incident the appellant was seen in the company of the deceased victim and as the appellant has failed to adduce any evidence to explain the incident, we find that the respondents have duly established such circumstance against the appellant herein.

14. Next circumstance is with regard to the clothes worn by the appellant and the recovery. To establish the said aspect, the respondents have examined PW6 John Pereira, who has stated that he was called to the Police Station at about 1.30 am. He has also stated that the Police Inspector had informed him that he had asked the family members of the appellant to bring the clothes from his residence. The said witness has clearly deposed about the recovery of the clothes from the appellant on the said date. Mr. Ferreira, learned counsel appearing for the appellant has pointed out that the evidence has been fabricated, but however, we are afraid that the said contention cannot be accepted. The clothes have been duly recovered under the panchanama which has been duly proved. It is pertinent to note that this recovery was done immediately after the appellant was detained. Mr. Ferreira, learned counsel has pointed out that no arrest or detention memo or panchanama has been prepared by the respondents at Ponda. The learned counsel has also pointed out that the Constable who was dispatched to check on the appellant has not been examined. The learned counsel has also pointed out that the panchanama has been fabricated by the respondents and according to him, the respondents can easily procure some clothes from the house and get then rubbed in blood and complete the formality. We are afraid that the said contention of Mr. Ferreira, learned counsel cannot be accepted as it is not borne out from the records. It is to be noted that the clothes which were found on the accused had blood stains. Apart from that, a handkerchief which was also recovered had blood stains matching those of the deceased. Hence, the question of getting blood mingled with the clothes of the appellant as contended by Mr. Ferreira, is farfetched in the facts and circumstances of the case. The panchanama has been drawn immediately after the arrest of the appellant and as such the question of indulging in any such exercise as contended by Mr. Ferreira, learned counsel cannot be accepted. The learned counsel has also taken a strong objection to the manner in which the appellant has been arrested at Verna Police Station. On the basis of the material on record, we find that after receipt of information, that the appellant was apparently in Usgao, the Police Inspector Gawas was deputed to search for the appellant. It appears that the appellant was found near the bus stand at Ponda and was brought to Verna Police Station which led to his subsequent arrest. We find no illegality in the said process. The arrest panchanama at Exhibit 22 has been duly proved by the respondents on the basis of the reliable evidence on record. The contention of Mr. Ferreira, learned counsel that there is no panchanama drawn of his detention at Ponda would not in any way affect the case put forward by the respondents which has been duly established.

15. Next incriminating circumstance relied upon by the prosecution is with regard to the recovery of the koita at the instance of the appellant under Section 27 of the Indian Evidence Act. PW8 stood as a pancha witness for such recovery. It is to be noted that such recovery was carried out immediately on the following day after the date of the incident. We have carefully perused the evidence of PW8 Rosy Dias and we find that the testimony of the said witness is very reliable considering that it has remained unshaken in the cross examination. The said witness has deposed that the appellant had given the direction to the driver of the jeep and that he had led them to the house bearing No. 39. She has also stated that the appellant went towards the northern side of the house where there were bushes and one toilet and he had shown all of them one koita which was lying in the bushes. She has also given the description of the said koita. She has also stated that the koita as well as the branches of the green leaves on which the koita was lying were attached and sealed by the police. The learned counsel appearing for the appellant was raising the contention that it is not mentioned in the panchanama that the accused was brought with his face mask. In the cross examination of the said witness, she has stated that the mask from the face of the accused was removed before the appellant could point out to the koita. Hence, the said omission is irrelevant and as such does not vitiate the recovery. So also the contention of Mr. Ferreira, that the said koita was removed and recovered from an open space cannot be accepted as the witness has clearly stated that it was recovered from the bushes near one of the toilets and the said bushes were on the hill behind the house no.39. Considering that the spot was behind the house, it can safely assumed that the appellant was the only person who could otherwise have accessible to the said spot. Considering the location of the said spot in the bushes and on the hill area, it cannot be construed that such spot is an open space as sought to be contended by the learned counsel appearing for the appellant. It is also to be noted that the said witness has further stated that the koita was wet at one side and mud and blood was on the other side. The contention of Mr. Ferreira, learned counsel appearing for the appellant that there is no evidence to suggest that sealing material was carried by the prosecution cannot be accepted. The said witness has categorically stated that after the koita was recovered, it was duly sealed and she has also identified the signature on the envelope which was sent for chemical analysis. Considering the material on record and the evidence adduced by the respondents, we find that the recovery of the koita at the instance of the appellant from the bushes located behind the house of the appellant in a secluded place has been duly established by the respondent. Such recovery of the koita is a very material circumstance to establish the chain of events suggesting the involvement of the appellant in the commissioning of the crime. Another contention of Mr. Ferreira, learned counsel is that the photographs which have been produced have not been exhibited and that the existence of the koita at the place of recovery has not been established. We find on perusal of the evidence of PW8 that the said witness was shown the photographs in the cross examination at Nos. 12 and 13 and asked whether the koita seen in these photos are two different koitas and the witness has stated that it is one and the same koita. When this question was put to the witness in cross examination by the appellant, such photographs can be read in evidence as they form part of the record. The said aspect further corroborates that the koita was recovered from the place identified in the panchanama. It is also to be noted that the learned Public Prosecutor during the course of his submissions has pointed out that the photographs were taken by the Investigating Officer on a digital camera and as such, the negatives were not available. But however, it was incumbent upon the prosecution to prove all the other photographs by producing the memory card etc., of the camera in accordance with law. As such, the contention of Mr. Ferreira, learned counsel appearing for the appellant that such recovery of the koita has not been established cannot be accepted as the respondents have duly established the recovery of the koita at the instance of the appellant.

16. Next aspect to be considered is the medical evidence relied upon by the respondents. With regard to such evidence, the respondents/prosecution have examined PW10 Dr. S. D. Sapeco who has conducted the postmortem examination on the dead body of Smt. Faustin Rebello. After stating minutely, the injuries which were seen on the body he has inter-alia stated that there was a transverse 6 cms long cut injury seen along left outer aspect of neck front. He has also given minutely the injuries found on such count and stated that the injury was 10 cms below ear lobule and right side of injury 9.5 cms below mid chin front. He has further stated that the injury was caused by impact of sharp cutting weapon and was antemortem and fresh at the time of death and was necessarily fatal. He has also stated that the blood group of the deceased as per the blood group report was 'O' Rh positive whereas the blood group of the appellant/accused is 'AB' Rh positive. He has also stated that according to his opinion the death was due to hemorrhagic shock as a result of cut throat injury. He has further stated that he has also carried out the report to rule out the possibility of self inflicted injury. The CFSL report dated 30.10.2010 at Exhibit 100 shows that the blood was detected on three stain cotton left rubber chappal, half hand T-shirt (of the appellant/accused) handkerchief of the appellant/accused, stained rusty koita, stained dried leaves etc. From the report of CFSL, one can safely conclude that the blood of the deceased was found on the handkerchief and the koita belonging to the appellant and the aforesaid DNA result is another circumstance which discloses the involvement of the appellant in the crime. As pointed out herein above, half hand T-shirt of the appellant/accused also had blood stains. As observed herein above, the respondents have duly established that the said clothes were worn by the appellant at the time of the incident and that the said koita was recovered at the instance of the appellant. The handkerchief was also recovered from the appellant. All the incriminating circumstances enumerated above lead to an unmistakable and inevitably lead to the guilt of the appellant and nothing has been established which would lead to his innocence. The fatal blow on the chest of the deceased by the appellant was with the intention to kill the victim.

17. Mr. Ferreira, learned counsel appearing for the appellant has also raised an objection to the delay in dispatching the items to CFSL. However, we find no such extra ordinary delay on the part of the prosecution which would in any way affect the final conclusion drawn in the said report. Mr. Ferreira, learned counsel has also raised a strong objection for not examining some witnesses specially a lady who had held the deceased and helped her when she was found collapsed at the site. The learned counsel has also pointed out that Rosy Dias has been examined only to establish the panchanama and not the statement under Section 164 of Criminal Procedure Code. He has also submitted that other persons who were incharge of the bar which was visited by the appellant have also not been examined. The learned counsel has also taken objection for not examining Police Inspector Gawas and other staff who were sent on receipt of the information about the whereabouts of the appellant. We are afraid that merely not examining such witnesses does not in any way vitiate the case of the prosecution as in any event such witnesses are not material witnesses in the facts and circumstances of the case. In this connection, the Apex Court in the judgment reported in 2013 AIR SCW 6049 : [2013 ALL SCR 3338] in the case of Manjit Singh & Anr. V/s State of Punjab & Anr., has observed at para 24 thus :

"24. From the aforesaid exposition of law, it is quite clear that it is not the number and quantity, but the quality that is material. It is the duty of the Court to consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non-examination of other witnesses. That apart, it is also to be seen whether such non-examination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness (see: State of U. P. V/s Iftikhar Khan and others)".

Considering the observations of the Apex Court in the said judgment, we find that merely not examining all the witnesses does not by itself vitiate the case of the prosecution as they are not material witnesses. In the present case, there is nothing to suggest that such witnesses have been deliberately suppressed by the prosecution nor any question put to the Investigating Officer with that regard.

18. It is not in dispute that during the course of the statement under Section 313 of Criminal Procedure Code, the appellant has raised an alibi to the effect that he was not present at the residential house but was in Vasco at his in law's place which has not been established by any material on record and as such, the stand is a false alibi and as such, takes one of the circumstances going against the appellant.

19. Thus, the fact that on the clothes worn by the appellant human blood stains were found and the blood stains on the handkerchief of the appellant match that of the deceased have been duly established by the respondents. The recovery of the blood stained weapon which is a koita used by the appellant for commission of the crime was duly proved by the respondents. Even the Doctor examined by the respondents has clearly stated that the injuries sustained by the deceased could be inflicted by such weapon. All these and other circumstances which have been duly proved by the respondents establish beyond reasonable doubt that appellant has committed the crime.

20. Now we shall deal with the Judgments relied upon by Shri Ferreira, learned Counsel appearing for the Appellant. In the Judgment in the case of State of Punjab vs. Sucha Singh & Ors., [2003 ALL MR (Cri) 783 (S.C.)] (supra), the motive of the crime on facts was not established by the prosecution. There were discrepancies between the evidence of the witnesses and the fact of their presence was also not established. In such circumstances, it was held that suspicion cannot establish proof of guilt. It has however been held therein that previous enmity could also be a ground for assault. In the present case, the enmity between the Appellant and the deceased has been duly established by the prosecution and as such the said Judgment is not applicable to the facts of the present case.

21. The next Judgment of the Apex Court relied upon in the case of R. Shaji vs. State of Kerala (supra), is in connection with the fact that the absence of motive is a fact or that weighs in favour of the accused. But, however, in the said Judgment, it is held that once the recovery under Section 27 of the Evidence Act is made in pursuance to a disclosure statement made by the Accused, the matching or non-matching of blood group loses significance. As pointed out herein above, the recovery under Section 27 of the Evidence Act of the said weapon (koita), has been duly established by the Respondents.

22. The next Judgment of the Division Bench of this Court passed in Criminal Appeal no. 38 of 2010, is not at all applicable to the facts of the present case as it has been established that prior to the commissioning of the crime, the Appellant was last seen in the house where the Accused was also living and the incident occurred outside in the compound of the house leaving a trail of blood where the deceased collapsed near the telephone booth.

23. The next Judgment of the Apex Court in the case of Sk. Yusuf vs. State of West Bengal (supra), was in the context wherein there was no evidence produced by the prosecution that both the accused and the deceased were seen together at the place of the occurrence or nearby in close proximity of time. In the present case, on the contrary, the material shows that sometime prior to the occurrence of the incident, he Appellant was seen in the house where the deceased was also residing. So also, in the present case, the Respondents have duly established by evidence on record to connect the koita with the crime.

24. The Judgment in the case of Wakkar & Anr. vs. State of UP, [2011 ALL MR (Cri) 1327 (S.C.)] (supra) is on the proposition that recovery of an incriminating article at the instance of the accused under Section 27 of the Evidence Act, by itself cannot form the basis for conviction. In the present case, apart from the recovery of the said koita, there is other corroborative material adduced by the Respondents to establish that the Appellant has committed the crime. The observations of the Apex Court at para 12 of the said Judgment which deals with a conviction on the basis of circumstantial evidence, would be relevant to the facts of the present case, where the Apex Court has observed thus :

"12. It is well settled and needs no restatement at our hands that the principle for basing a conviction on the basis of circumstantial evidence is that "each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible".

It is also well settled as held by this Court in more than one decision that the courts have to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof, for sometime, unconsciously it may happen to be a short step between moral certainty and legal proof.

"45. ... that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions." (emphasis in original) (See Tanviben Pankajkumar Divetia v. State of Gujarat, SCC p. 185, para 45.)"

25. The Judgment of the Apex Court in the case of Kailash Raghunath Ambekar vs. State of Maharashtra (supra), is also in the context of absence of proper sealing of attached articles. In the present case, there is nothing on record which would draw an inference that there was no proper sealing of the Articles which were sent for chemical analysis. The Judgment of the Apex Court in the case of Raj Kumar Singh alias Batya vs. State of Rajasthan, [2013 ALL MR (Cri) 2240 (S.C.)] (supra), was in the context of denials in the course of the explanation given by the Accused under Section 313 of the Criminal Procedure Code in connection with the incriminating circumstances, wherein it has been held that since rest of the prosecution case was highly unreliable and full of contradictions, no adverse inference could be drawn by such denials alone against the accused. In the present case, the case of the prosecution has been duly established beyond reasonable doubt and the denials by the Appellant in the course of its statement under Section 313 of Cr. P.C., would naturally draw an inference against the Accused.

26. The Apex Court in the case of Joseph s/o. Kooveli Poulo vs. State of Kerala, [2000 ALL MR (Cri) 1920 (S.C.)] (supra), has held at Paras 10 and 14, thus :

"10. As far as the homicidal fact is concerned, there is only circumstantial evidence. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant. The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the Convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that the jewels of the deceased, which were sold to PW 11 by the appellant, were seized under Ex. P-5 duly attested by PW 12 and that PWs 5 and 6 were categorical in their evidence that those jewels were worn by the deceased at the time when she left the Convent with the appellant.

14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh). That missing link to connect the accused-appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless woman. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376."

27. Taking note of the ratio laid down therein, we find that the missing link to connect the Appellant-Accused in this case was provided by the blunt and outright denial of everyone and all of the incriminating circumstances pointed out which with a sufficient and reasonable certainty on the facts proved, connect the Appellant with the cause and death of the deceased.

28. The Apex Court in the Judgment reported in (2012) 8 S.C.C. 263 in the case of Dayal Singh and Ors. vs. State of Uttaranchal, has observed at paras 30, 33 and 34, thus :

"30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.

31. ...

32. ...

33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that: (Ram Bali case, SCC p. 604, para 12)

"12. ... In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective."

34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", the Court should leave no stone unturned to do justice and protect the interest of the society as well."

Taking note of the said observations of the Apex Court, a criminal trial is meant to do justice to all, the accused, the society and a fair chance to prove to the prosecution. Thus in the present case considering the ratio laid down therein, we find that the respondents/prosecution have availed of the fair chance to establish beyond reasonable doubt all the incriminating circumstances as otherwise it would be in breach and in violation of the public rights which affect the community as a whole and is harmful to the society in general.

29. For the aforesaid reasons and considering the material on record, we find that the prosecution-Respondents have clearly established each and every piece of incriminating circumstances by reliable and clinching evidence and the circumstances so proved form such a chain of events, as would permit no conclusion other than the one of the guilt of the Accused-Appellant and the circumstances cannot be explained on any hypothesis other than the guilt of the Appellant. The circumstances established by the prosecution have been clearly enumerated herein above and we find that the learned Sessions Judge has rightly appreciated the material on record that the Appellant stands convicted for offences under Section 300 of Indian Penal Code for murdering Faustina Rebello, which is punishable under Section 302 of the Indian Penal Code and thereby imposing a sentence of life imprisonment and to pay a fine.

30. Hence, for the aforesaid reasons, the Appeal stands dismissed.

Appeal dismissed.