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2012 DIGILAW 863 (BOM)

Mohamud Shadab, s/o. Jaffer Sherif v. State

2012-04-26

A.P.LAVANDE, U.V.BAKRE

body2012
JUDGMENT A.P. Lavande, J. 1. By this appeal, the appellant (hereinafter referred to as “the accused”) takes exception to the Judgment and Order dated 1st February, 2010, passed by the Additional Sessions Judge-1, South Goa, at Margao in Sessions Case No.39/2000, convicting the accused for the offences punishable under Sections 302 and 394 of the Indian Penal Code (IPC) and sentencing him to undergo Imprisonment for Life and to pay a fine amount of Rs.25,000/- and in default, to undergo one year R.I. on the first count and to undergo R.I. for 10 years and to pay a fine of Rs.10,000/- and in default, to undergo one year imprisonment on the second count. Out of the fine amount recovered, the amount of Rs.25,000/- is ordered to be paid to PW.1 Rajashree Thorat, as compensation. Both the sentences have been ordered to run concurrently. 2. Briefly, the case of the prosecution is as under : On 5th May, 2000, between 18.30 hrs. and 20.30 hrs., at Fondia, Bogmalo, the accused assaulted Sanjay Thorat with kicks and a boulder, causing him serious injuries on his head, which resulted in his death. It is further the case of the prosecution that the accused caused hurt to Sanjay Thorat and committed robbery of his wrist watch, gold chain and finger ring, all worth Rs.14,000/-. On 6.5.2000, First Information Report (FIR) was lodged by PW.1 Rajashree Thorat, wife of the deceased Sanjay Thorat, which was registered at the Vasco Police Station. Pursuant to the said FIR, investigation was taken up. The dead body of the deceased was found in the property of PW.6 Rita Xavier which consists of cashew grove.The inquest panchanama was conducted on the dead body of Sanjay. Spot panchanama was also conducted and a boulder with blood stains was seized from the scene of offence. The dead body was referred for post mortem examination, which was conducted by PW.9 Dr. Avinash Pujari. The accused was also arrested on the same day i.e. 6th May, 2000 and was also referred for medical examination initially at Cottage Hospital and thereafter, he was examined by PW.9 Dr. Avinash Pujari, who issued hurt certificate. It is further the case of the prosecution that at the instance of the accused, a wrist watch and a gold chain belonging to the deceased were recovered. Avinash Pujari, who issued hurt certificate. It is further the case of the prosecution that at the instance of the accused, a wrist watch and a gold chain belonging to the deceased were recovered. Thereafter, at the instance of the accused, blood stained clothes i.e. a pant and a shirt of the accused were also recovered on the same day. All those articles seized were sent for chemical analysis to C.F.S.L. Hyderabad. The articles were received back by Vasco Police. However, it is the case of the prosecution that all the seized articles were missing and in that connection, an FIR was lodged by the Officer Incharge of Vasco Police Station. In the course of investigation, statements of several witnesses were recorded. After conclusion of the investigation, charge-sheet was filed against the accused for the offences punishable under Sections 302 and 394 of IPC. The offences being exclusively triable by the Court of Sessions, the case was committed by the learned JMFC, Vasco da Gama, to the learned Sessions Judge, South Goa, Margao, who made it over to the learned Additional Sessions Judge-1, Margao. 3. In Sessions Case No. 39/2000, the prosecution examined in all 17 witnesses and also relied upon several documents. Statement of the accused under Section 313 Cr.P.C. was recorded. Defence of the accused was of total denial. The accused did not lead any defence evidence. The learned Additional Sessions Judge-1, Margao on appreciation of the evidence led by the prosecution, held that both the offences were established beyond reasonable doubt against the accused and consequently, convicted and sentenced the accused as above. 4. Mr. A.B. De Sa, learned Counsel appearing for the appellant-accused submitted that the evidence led by the prosecution does not establish the offences punishable under Sections 302 and 394 IPC against the accused and, as such, the conviction of the accused is unsustainable in law. Learned Counsel further submitted that the circumstances which have been taken as proved by the learned Trial Judge have not been proved by legal evidence. Learned Counsel further submitted that there is absolutely no evidence of last seen or to prove the motive for the commission of the crime. Learned Counsel further submitted that the circumstances which have been taken as proved by the learned Trial Judge have not been proved by legal evidence. Learned Counsel further submitted that there is absolutely no evidence of last seen or to prove the motive for the commission of the crime. Learned Counsel further submitted that the alleged recoveries of the articles belonging to the deceased and the clothes of the accused at the instance of the accused, have not been proved by legal evidence and, in any case, since these articles and clothes were not produced before the learned Trial Judge, no reliance could have been placed on the alleged recovery at the instance of the accused. Learned Counsel further submitted that the circumstances relied upon by the prosecution have not been conclusively proved and, as such, no conviction could have been ordered by the Trial Court for the offences punishable under Sections 302 and 394 IPC on the basis of the evidence led by the prosecution. Learned Counsel further submitted that the case, admittedly, rests on circumstantial evidence and having regard to the law laid down by the Apex Court, in so far as circumstantial evidence is concerned, the evidence led by the prosecution does not establish the complicity of the accused in the crime beyond reasonable doubt. Learned Counsel further submitted that learned Additional Sessions Judge has relied upon inadmissible evidence for the purpose of recording findings against the accused and, as such, the conviction is liable to be set aside. In support of his submissions, Mr. De Sa relied upon the following Judgments : (1) 2011 AllMR(Cri) 2365 (S.C.) (Sk. Yusuf vs. State of West Bengal); (2) 2011 AllMR(Cri) 2134 (Sau. Gita w/o. Ashok Kharkate & Ors. vs. State of Maharashtra); (3) (2010) 6 SCC 525 ; (Niranjan Panja vs. State of West Bengal); (4) (2008) 15 SCC 551 (State of Uttar Pradesh vs. Ram Balak & another); (5) (2003) 3 SCC 106 (Bharat vs. State of M.P.) and an unreported Judgment of this Court in (6) CRIA No.70/2009 (State of Goa vs. Shri Manish Dhube and anr.) dated 28.9.2011. 5. Per contra, Mr. 5. Per contra, Mr. Fereira, learned Public Prosecutor supported the impugned Judgment and Order and submitted that the circumstances relied upon by the prosecution have been proved by cogent evidence and, as such, the impugned Judgment and Order of conviction passed by the learned Trial Judge cannot be faulted. Learned Public Prosecutor further submitted that since the articles seized during the investigation which were received by Vasco Police were missing even before the trial started, the prosecution could not produce the muddemal articles and this cannot be treated as fatal to the prosecution case. Learned Public Prosecutor further submitted that the circumstances relied upon by the prosecution have been proved by cogent evidence, which clearly proves the commission of the offences for which the accused has been convicted by the learned Trial Judge. Learned Public Prosecutor placed reliance upon a Judgment of the Apex Court in the case of NiranjanPanja (supra), relied upon by Mr. De Sa, appearing for the appellant-accused, in support of his contentions. 6. We have carefully considered the rival submissions, perused the record and the judgments relied upon. 7. In order to prove the complicity of the accused in the commission of the offences, the learned Trial Judge has relied upon the following circumstances, but the learned Trial Judge has not made specific reference to the circumstance that the death of the deceased Sanjay was homicidal : (1) The accused was employed with the family of the deceased; (2) The accused had gone to the house of deceased Sanjay in his search on 5th May, 2000 in the evening; (3) The accused was last seen with the deceased just before the death of deceased Sanjay; (4) Recovery of watch and gold chain of the deceased at the instance of the accused; (5) Recovery of blood stained clothes (blue shirt and white pant) of the accused at his instance. (6) Seizure of blood stained boulder near the dead body; (7) Presence of injuries on the accused; (8) Admission by the accused to doctor that he had received injuries in the scuffle. (9) Conduct of the accused. Circumstance A-1: Death of Sanjay Thorat was homicidal. 8. In order to prove homicidal death of Sanjay Thorat, prosecution examined PW.9 Dr. (6) Seizure of blood stained boulder near the dead body; (7) Presence of injuries on the accused; (8) Admission by the accused to doctor that he had received injuries in the scuffle. (9) Conduct of the accused. Circumstance A-1: Death of Sanjay Thorat was homicidal. 8. In order to prove homicidal death of Sanjay Thorat, prosecution examined PW.9 Dr. Avinash Pujari who conducted postmortem on the dead body of Sanjay on 8th May, 2000 between 11.15 a.m. and 2.15 p.m. He deposed that he found 8 surface wounds, details of which are as under : (1) Contusion of 5 x 3.5 x 0.5 cms. on the right chest front, at the top below the middle of the collar bone; (2) Contusion over the area of 7 x 6 cms. x muscle deep on the chest left side below the collar bone middle third; (3) An abrasion of 1 x 1 cm. on the right knee; (4) An abrasion of 1 x 1 cm. on the right chin; (5) Another abrasion of 1 x 1 cm. on the right chin, 8 cms. above the ankle; (6) Another abrasion of 3 x 1.5 cm. on the left knee; (7) Multiple abrasions of irregular sizes of 1 x 0.5 cms. Up to 3 x 1 cm, which were red and fresh on the right side of the neck.PW.9 has deposed that all the above 7 injuries were caused by a hard and blunt object and were ante mortem. Injury No. 8 was a diagonal compressional crushed injury on the head and face, on the right side with two lacerated wounds having bruises under it on the forehead, one on the right side of the hair line and another on the left eyebrow. This injury was also having 17 pressure abrasions of irregular size from the right to the left side of the forehead. There were also red fresh contusions on the nose below the bridge and fracture of the nasal bone. Injury No.8 was ante mortem & caused by crushing impact by a heavy object of rough surface. In so far as internal injuries are concerned, there was extensive irregular extravassation of blood and laceration of soft tissues underneath the right side of the face. Injury No.8 was ante mortem & caused by crushing impact by a heavy object of rough surface. In so far as internal injuries are concerned, there was extensive irregular extravassation of blood and laceration of soft tissues underneath the right side of the face. He further deposed that injuries No.1 to 8 were fresh at the time of death and injury No.8 along with its internal injuries were individually sufficient to cause death in the ordinary course of nature. So also injuries No.1 to 8 were collectively sufficient to cause death in the ordinary course of nature. Approximate time since the death was within 24 hours of the preservation of the dead body in the cold storage of the morgue. PW.9 opined that the cause of the death was due to head injury in the form of fracture of the skull bones, damage to the brain and intra cranial haemorrhage with fracture of the facial bones. He produced the memorandum of autopsy Exhibit 99 and identified his signature on the same. 9. In the cross examination, PW.9 deposed that the accused was not habituated to anal sex as a passive agent and he did not find any evidence that he was habituated to anal sex. He further deposed that two injuries that were found on the accused could be caused by a finger nail. But he did not find any foreign particles, such as mud on these injuries. He further deposed that he had not found any signs that the deceased was an active agent, involved in anal sex. He further deposed that injuries No.1 to 7 on the deceased were not fatal & could not individually cause death in the ordinary course of nature. He maintained that injury No.8 must have been caused by multiple impact. The above evidence of PW.9 which has not been shaken in the cross examination, clearly proves that the death of deceased Sanjay was on account of the injuries suffered by him and, as such, we have no hesitation to hold that the death of Sanjay Thorat was homicidal. Further, the postmortem report also stands corroborated by the inquest report (Exhibit 104-B), which clearly proves that at the time of inquest, several injuries were found on the dead body of Sanjay Thorat. Thus, in our opinion, the prosecution has been able to establish that the death of Sanjay Thorat was homicidal. Further, the postmortem report also stands corroborated by the inquest report (Exhibit 104-B), which clearly proves that at the time of inquest, several injuries were found on the dead body of Sanjay Thorat. Thus, in our opinion, the prosecution has been able to establish that the death of Sanjay Thorat was homicidal. Circumstance No.(1) :- The accused was employed with the family of the deceased : 10. Although, the accused in the course of the trial, has disputed his employment with the family of the deceased, there is cogent evidence on record to prove that the accused was employed by the family of the deceased Sanjay Thorat. The evidence, in this regard comes from PW.2 Shankar Thorat, father of the deceased Sanjay Thorat, who deposed that the accused had worked as a helper with him on 29th April, 2000 and again on 30th April, 2000 for half day and on 1st May, 2000 for half day. According to the witness, the accused was brought for work by one of his carpenters by name Dayanand to work as a helper on temporary basis. This evidence has not been shaken in the cross examination. Evidence of PW.3 Ajay Thorat is also on similar lines and his evidence also has not been shaken in the cross examination. PW.8 Basavraj Basappa who is also a carpenter by profession and was working with PW.2 Shankar Thorat, deposed that he knew the accused as he had also come to work as helper with Shankar Thorat PW.2. He deposed that the accused joined his work on 29th April, 2000, when he was not there, but on 30th April, 2000, he returned from his native place and went to Park Plaza, where he saw Dayanand with one helper, i.e. the accused. Thus, the evidence of these three witnesses clearly establishes that the accused was employed with the family of the deceased. Circumstance No.(2) :- The accused had gone to the house of deceased Sanjay in his search on 5 th May, 2000 in the evening. 11. To prove this circumstance, the prosecution has led evidence of PW.1 Rajastree Thorat, who deposed that on 5th June, 2000 at about 6.15 p.m. when they were in the house, she heard someone calling out to her husband by saying “Sanjay, Sanjay”. 11. To prove this circumstance, the prosecution has led evidence of PW.1 Rajastree Thorat, who deposed that on 5th June, 2000 at about 6.15 p.m. when they were in the house, she heard someone calling out to her husband by saying “Sanjay, Sanjay”. She came out of the house and saw a boy who had earlier come in the morning on 30th April, 2000 along with one more carpenter for meeting her husband regarding the work. She identified the accused as the said person & stated that she came to know that his name was Mohammad Sadab after the incident. She further deposed that when she came out of the house, the accused asked her about Sanjay and she told him that Sanjay had gone to Vasco. On further inquiry, she told him that he had gone by bus, whereupon the accused asked whether Sanjay was expected soon and she told him that Sanjay would be coming soon. The witness claims that the accused had conversation with her for about 3 to 4 minutes. PW.2 Shankar Thorat also corroborates the version of PW.1 Rajashree regarding the visit of the accused to their house in search of Sanjay in the evening of 5th May, 2000 at about 6.15 p.m. Thus, the evidence of these two witnesses which has also not been shaken in the cross examination, establishes that the accused had gone to the house of the deceased Sanjay in search of deceased Sanjay on that day. Circumstance No.(3) :- The accused was last seen with the deceased just before the death of deceased Sanjay. 12. In order to prove this circumstance, the prosecution has relied upon evidence of PW.2 Shankar Thorat and PW.12 Angelina Fernandes, owner of a bar under the name and style “Michael Bar & Restaurant” at Alto Bogmalo. PW.2 Shankar Thorat, after referring to the visit of the accused, deposed that on 5th May, 2000 at about 6.30 p.m. Sanjay returned home with two bags and kept them in the hall and immediately went out of the house. Since he thought that Sanjay might have gone to get more bags, he walked towards the road to help Sanjay. When the witness came on the road, he saw Sanjay and accused were walking towards Bogmalo. He deposed that the accused was wearing a dark blue colour full sleeves shirt and a white colour pant. Since he thought that Sanjay might have gone to get more bags, he walked towards the road to help Sanjay. When the witness came on the road, he saw Sanjay and accused were walking towards Bogmalo. He deposed that the accused was wearing a dark blue colour full sleeves shirt and a white colour pant. He called out to Sanjay as to where he was going and he replied that he would come back soon and started walking and he returned home. He further deposed that on the same day at about 8.00 p.m., he went for a stroll and when he reached near Ruby bar, he saw the accused standing opposite Park Plaza gate. 13. PW.12 Angelina Fernandes was running a bar at Alto Bogmalo. She deposed that on 5th May, 2000 at about 6.40 p.m. one boy came to her bar and gave her Rs.2/- and asked for one 'Four Square' cigarette. She gave him one cigarette and returned 50 paise to him. She further claimed that on 7th May, 2000, in the morning time, Vasco Police brought one boy to her bar and she identified that he was the same boy who had bought one cigarette from her on 5th May, 2000. She was informed that the boy was arrested in the murder of Sanjay Thorat. She identified the accused present in the Court. In cross examination, she stated that she did not remember what clothes the accused was wearing on 5th May, 2000. 14. Evidence of PW.2 Shankar Thorat proves that at about 6.30 p.m. on 5th May, 2000, the deceased and the accused went together after the deceased kept bags brought by him in the house and that he saw the accused standing opposite Park Plaza gate at about 8 p.m. on the same day. What emerges from the evidence of PW.12 is that the accused was seen alone at the bar of her at Bogmalo and he had bought a cigarette from her. PW.12 does not make any reference to the presence of the deceased with him or for that matter of any other person present along with the accused at that time. Therefore, evidence of PW.12 is of not much help to the prosecution to prove that the deceased and the accused were last seen before the death of the deceased Sanjay. PW.12 does not make any reference to the presence of the deceased with him or for that matter of any other person present along with the accused at that time. Therefore, evidence of PW.12 is of not much help to the prosecution to prove that the deceased and the accused were last seen before the death of the deceased Sanjay. In the case of Ram Balak (supra), the Apex Court in paragraphs 12 & 13 has observed thus : “12. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish15 it was noted as follows: (SCC p. 123, para 22) “22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive & when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” “13.In Ramreddy Rajesh Khanna Reddy v. State of A.P.16it was noted as follows: (SCC p. 181, para 27) “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.”. (See also Bodhraj v. State of J&K 17)” 15. Even in such a case the courts should look for some corroboration.”. (See also Bodhraj v. State of J&K 17)” 15. Having regard to the observations made by the Apex Court in the aforesaid Judgment, it is evident that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The Apex Court further observed that even in such a case, the Courts should look for some corroboration. In the present case, as stated above, the evidence of PW.12 does not establish that the accused and the deceased had gone to the bar together. Since PW.12 Angelina Fernandes claimed that the accused had come alone asking for a cigarette. It is pertinent to note that the dead body of deceased Sanjay was found on the next day i.e. 6th May, 2000 and PW.9 Dr. Avinash Pujari who conducted the post mortem on the dead body of Sanjay has deposed that the approximate time since the death was within 24 hours of the preservation of the dead body in the cold storage of the morgue. Therefore, the prosecution has not been able to establish the exact time of death. This being the position, we find extremely difficult to place reliance upon the circumstance of last seen together. No doubt, the accused either in the cross examination of the witnesses or in his statement under Section 313 Cr.P.C. has not stated as to when he left the company of the deceased, after they left the house of the deceased. But, this fact, by itself, would not be sufficient to hold that the accused owes an explanation for homicidal death of the deceased Sanjay and in the absence of the explanation coming from the accused, the circumstance of “last seen together” stands proved against the accused. Therefore, in our considered opinion, the prosecution has not been able to establish this circumstance. Circumstance No. (4) :- Recovery of watch and gold chain of the deceased at the instance of the accused. 16. In order to prove this circumstance, the prosecution has relied upon evidence of PW.2 Shankar Thorat, PW.3 Ajay Thorat, PW.4 Longinho Fernandes, and PW.7 Ermina Rodrigues. Circumstance No. (4) :- Recovery of watch and gold chain of the deceased at the instance of the accused. 16. In order to prove this circumstance, the prosecution has relied upon evidence of PW.2 Shankar Thorat, PW.3 Ajay Thorat, PW.4 Longinho Fernandes, and PW.7 Ermina Rodrigues. PW.2 Shankar Thorat, in his evidence, has stated that he was informed by his son Ajay Thorat that the dead body of Sanjay was found in a cashew grove at Fondia, Bogmalo and gold chain, finger ring and wrist watch which were being used by Sanjay were missing. Similarly, Ajay Thorat PW.3 deposed that on 6th May, 2000, he along with one Damiao from Chicalim, went to a cashew grove situated at Fondia, Bogmalo & found the dead body of his brother Sanjay. He also noticed that the gold chain, wrist watch and the gold finger ring were missing from his body. In order to prove recovery of the said articles, the prosecution has relied upon the evidence of PW.4 Longinho Fernandes, who was a panch witness to recovery of the gold chain and wrist watch. He deposed that on 7th May, 2000, upon disclosure made by the accused, the accused led the driver of Vasco Police Station to Baina at Taliwado. Thereafter, all of them were taken to one house which was seen dilapidated. The accused led them to the house and took them to the kitchen. There were leaves fallen around the house. He removed some leaves and removed one chain and one wrist watch and handed over to P.S.I. The gold chain was measured with tape and was found to be 63 cms. in length. The wrist watch was having gold colour dial with brown colour belt with name “Swiss Star'. Both the said articles were put in an envelope, packed and sealed. He has identified his signature on the panchanama Exhibit 94. The articles seized were not before the Court since they were reported to be misplaced at the police station. in length. The wrist watch was having gold colour dial with brown colour belt with name “Swiss Star'. Both the said articles were put in an envelope, packed and sealed. He has identified his signature on the panchanama Exhibit 94. The articles seized were not before the Court since they were reported to be misplaced at the police station. Though, nothing tangible has been brought on record in the cross examination of this witness, it is, admittedly, the case of the prosecution that both the muddemal articles are missing from Vasco Police Station and in that connection, an FIR No. 127/09 dated 1/10/2009 under Sections 406, 465, 466, and 468 of IPC has been lodged at Vasco Police Station against HC Mario Vaz, PC S.M. Naik, and PC Chandrakant Azrekar. Since the articles were seized pursuant to the said panchanama which, according to the prosecution, were belonging to the deceased have not been identified in the Court, in our considered opinion, the recovery of these two articles, at the instance of the accused, does not advance the case of the prosecution. Unless the articles which are seized during the investigation, either at the instance of the accused or otherwise, are brought before the Court & are duly identified by the witness, mere seizure or recovery of such articles is of no help to the prosecution. Therefore, the evidence of the above witnesses, led by the prosecution to prove that the articles belonging to the deceased were recovered at the instance of the accused, is of no assistance to the prosecution, in the absence of identification of the said articles before the Court by the prosecution witnesses. 17. The prosecution has relied upon the evidence regarding identification of the wrist watch and the gold chain of the deceased, which, according to the prosecution, were recovered at the instance of the accused. PW.1 Rajashree Thorat, in her evidence, deposed that on 10th May, 2000, she was called to the Vasco Police Station by PSI B.G. Dessai and he opened one sealed envelope in her presence and in the presence of two witnesses. From the said envelope, one gold chain and a wrist watch make “Swiss Star” were removed. She identified both these articles as belonging to her late husband. She further claimed that thereafter, both these articles were put in another envelope and sealed. From the said envelope, one gold chain and a wrist watch make “Swiss Star” were removed. She identified both these articles as belonging to her late husband. She further claimed that thereafter, both these articles were put in another envelope and sealed. PW.11 PSI Bhanudas Dessai, Investigating Officer, deposed that on 10th May, 2000, he carried out a panchanama at Vasco Police Station of the opening of earlier sealed envelope marked Exhibit 13, which was shown to the complainant and then again sealed & packed in two envelopes marked Exhibits 6 and 7. He produced the panchanama Exhibit 123 and he identified his signature on reverse of page 1. The prosecution has also relied upon the evidence of PW.13 Dattaram Pednekar, who was running a shop under the name “Leena Jewellers”, near hotel Annapurna at Vasco. He deposed that on 10th May, 2000 at about 4 p.m. he was called at Vasco Police Station by the then PSI B.G. Dessai, along with his weighing machine for weighing some gold and he went to the police station. The PSI had brought one sealed envelope which was opened and from the said envelope, one gold chain and one wrist watch were removed. He was shown the earlier sealed envelope (Exhibit 13) which was open. He identified the said envelope as the one which was opened in his presence and from it the gold chain and the wrist watch had been removed. He further deposed that he weighed the same and found that it was weighing 17.485 grams and its length was 63 cms. He further deposed that the said chain and the watch were then again put in another envelope in the presence of two panch witnesses and was again sealed. There was one woman present when he was called at the police station, but he did not know her name. The witness deposed that he would be able to identify the said gold chain if it was shown to him. But, since the muddemal articles were not received from the police station, the gold chain could not be shown to the witness. Since the gold chain and the wrist watch were not produced before the Court for identification, no reliance can be placed on the identification of the said articles by PW.1 Rajashreee Thorat at the police Station. 18. There is yet another factor which goes against the prosecution. Since the gold chain and the wrist watch were not produced before the Court for identification, no reliance can be placed on the identification of the said articles by PW.1 Rajashreee Thorat at the police Station. 18. There is yet another factor which goes against the prosecution. It is case of the prosecution itself that the gold chain & the wrist watch which were recovered at the instance of the accused, were identified by PW.1 Rajashree Thorat at the police station in the presence of panchas. This identification is clearly hit by Section 162 of Cr.P.C. In the case of RamkishanMithanlal Sharma and ors., v/s. State of Bombay, AIR 1955 SC 104 , the Apex Court has held that in the case of a test identification parade arranged by the Police and held in the presence of panch witnesses, the statements involved in the process of identification would be the statements made by the identifying witnesses to the panch witnesses and would be outside the purview of Section 162 of Cr.P.C., provided the process of identification is carried out under the exclusive direction & supervision of the panch witnesses and the police had completely obliterated themselves from the parade. The Apex Court further held that where the test identification parade is carried out by the police in their presence, no distinction can be made between the statements made to the police officers and the statements made to the panch witnesses called by the police officers when conducting the test identification. Although, the Apex Court was dealing with identification of the accused in the said case, the ratio of the Judgment would apply in the case of identification of muddemal articles in the test identification parade. Therefore, the evidence led by the prosecution regarding identification of the articles belonging to the deceased by PW.1 Rajashree is squarely hit by Section 162 of Cr.P.C. In our considered opinion, the ratio of the said Judgment is squarely applicable in the present case and, as such, the evidence led by the prosecution regarding identification of the articles by PW.1 Rajashree is inadmissible in law. Therefore, this circumstance also does not stand proved. Circumstance No.(5) : Recovery of blood stained clothes (blue shirt and white pant) at his instance. 19. In order to prove this circumstance, the prosecution has relied upon the evidence of PW. Therefore, this circumstance also does not stand proved. Circumstance No.(5) : Recovery of blood stained clothes (blue shirt and white pant) at his instance. 19. In order to prove this circumstance, the prosecution has relied upon the evidence of PW. 1 Rajashree Thorat, wife of the deceased Sanjay Thorat who deposed that when the accused had come to their house in the evening asking for Sanjay, the accused was wearing a dark blue long sleeves T Shirt and a white colour long pant. This part of evidence of this witness which stands corroborated by the FIR Exhibit 87, has not been shaken in the cross examination. Prosecution has also relied upon the evidence of PW.5 Tulsidas Naik, who was a panch witness for the recovery of blue colour T Shirt & white colour long pant with green colour strips at the instance of the accused on 7th May, 2000. He identified his signature on the panchanama Exhibit 93, pursuant to which, upon disclosure made by the accused, the above referred two clothes were recovered from one room in Madhavi Gulli at Baina beach and, thereafter, the witness claimed that inside the room, there was one wooden bed and from the side of the bed, the accused removed one blue colour T shirt and one white colour long pant with green strips and handed over the same to the police. It is the case of the prosecution that human blood was found on the said clothes in terms of CFSL report dated 29th September, 2000. These articles were also not available for identification by the witnesses in the Court. In the absence of identification of the clothes before the Court, the evidence led by the prosecution regarding recovery of the said clothes, at the instance of the accused and presence of human blood on the clothes, do not stand proved for the reasons already stated herein above. Therefore, this circumstance also does not stand proved by the prosecution. Circumstances No.(6): Seizure of blood stained boulder near the dead body. 20. In order to prove this circumstance, prosecution has examined PW. 10 Pradeep Talkatkar who was a pancha witness to the scene of offence panchanama. Therefore, this circumstance also does not stand proved by the prosecution. Circumstances No.(6): Seizure of blood stained boulder near the dead body. 20. In order to prove this circumstance, prosecution has examined PW. 10 Pradeep Talkatkar who was a pancha witness to the scene of offence panchanama. His evidence establishes that on 6th May, 2000 at about 3.00 p.m., at the instance of the police, he along with another panch witness proceeded to a place at Fondia, Bogmalo, which was about 30 to 40 metres away from the tar road proceeding from Vasco to Bogmalo beach. At that place, there was a dead body which was identified by Ajay Thorat as that of his brother Sanjay Thorat. The head was in a pool of blood and the face was covered with dry blood. There was a boulder towards the left side of the body, about two feet from the head and there were blood stains on the stone. In the cross examination nothing tangible has been brought on record to disbelieve his evidence. His evidence also stands corroborated by the panchanama and the sketch Exhibit 103 colly. The prosecution has also relied upon CFSL report which discloses that on the said boulder human blood was found. However, since the boulder has not been produced before the Court, this circumstance also does not stand proved by the prosecution for the reasons stated herein above. Circumstance No.(7) : Presence of injuries on the accused and Circumstance No. (8) : Admission by the accused to doctor that he had received injuries in the scuffle. 21. Both these circumstances are taken up together. The prosecution has relied upon the evidence of PW.11 Bhanudas Dessai, Investigating Officer who claimed that on 6th May, 2000 at about 22 hours, he apprehended the accused and brought to the Police Station and placed him under arrest. He has identified his signature on the arrest panchanama Exhibit 120. The arrest panchanama discloses that there were injuries i.e. abrasions at the back of the accused. The accused was also referred for medical examination by PW.11 and he was examined at Cottage Hospital, Chicalim. The report given by Dr. V. Nadkarni, Medical Officer, attached to Cottage Hospital at Chicalim which has been admitted by the accused, discloses that when Dr. The arrest panchanama discloses that there were injuries i.e. abrasions at the back of the accused. The accused was also referred for medical examination by PW.11 and he was examined at Cottage Hospital, Chicalim. The report given by Dr. V. Nadkarni, Medical Officer, attached to Cottage Hospital at Chicalim which has been admitted by the accused, discloses that when Dr. Nadkarni examined the accused on 6th May, 2000, at 11.50 p.m., the accused had 3 abrasions, one above the other of 3 x 1 cm. on left side of chest posterior. He opined that the said injuries were simple, caused by sharp object and all the said injuries were caused 24 hours before examination. The prosecution has also relied upon evidence of PW.9 Dr. Avinash Pujari, who had examined the accused on 7th May, 2000 at 1.50 p.m. He deposed that he found scratch/linear abrasion with brownish scabs on the back of the chest on right side, 4 cms. from the mid line. He also found three scratches/linear abrasions on the back of the chest on the left side over area of 6 x 5 cms. He opined that injuries 1 and 2 on the accused could be caused by pointed end/tip of a pointed weapon, by perpendicular friction by a linear object. He stated that the age of the injuries was consistent with the history of a scuffle & within 24 to 48 hours of examination. 22. The learned Trial Judge has relied upon both these circumstances in order to convict the accused. In our considered opinion, all the injuries on the person of the accused are proved by the certificate issued by Dr. Nadkarni and the evidence of PW.9 Dr. Avinash Pujari. However, the finding given by learned Trial Judge that there was scuffle between the accused and the deceased is patently unsustainable in law in the absence of any substantive evidence coming from PW.9 Dr. Pujari. No doubt, Dr. Pujari has identified his signature on page 3 of the report (Exhibit 101) regarding injuries on the accused, but it is pertinent to note that he has not deposed about the history given by the accused regarding the injuries caused to him. Mere production of the report which contains history is not sufficient to read history in the evidence of the witness. Mere production of the report which contains history is not sufficient to read history in the evidence of the witness. If the prosecution wanted to rely upon the history given by the accused regarding injuries found on him, it was necessary for PW.9 Dr. Pujari to depose regarding the history given by the accused. In the absence of any substantive evidence coming from the prosecution regarding the incident resulting in injuries on the deceased, in our considered opinion, the learned Trial Judge could not have placed reliance upon the same and accepted the theory of scuffle. Therefore, in our considered opinion, though the prosecution has been able to establish that the injuries were found on the person of the accused at the time of his examination by the two doctors, the prosecution has not been able to establish that the said injuries were caused in the scuffle between the accused and the deceased as held by the learned Trial Judge. Circumstance No. (9): Conduct of the accused. 23. The prosecution has relied upon the conduct of the accused, that the accused has taken a false defence that he did not know Sanjay Thorat which is belied by several prosecution witnesses examined by the prosecution, namely PW.1 Rajashree Thorat, PW.2 Shankar Thorat, and PW.3 Ajay Thorat who have consistently deposed that accused had worked as a helper on 29th April, 2000, 30th April, 2000 and for a half day on 1st May, 2000. However, a false defence by the accused can be used in favour of the prosecution if there are circumstances pointing out to the guilt of the accused and mere fact that the accused has taken a false defence cannot, by itself, be sufficient to convict the accused, having regard to the settled law that the prosecution has to stand on its own legs in order to prove the offence against the accused. Thus, the evidence led by the prosecution is sufficient to prove Circumstances (A-1), (1), (2), (7) and (9). The prosecution case against the accused, admittedly, rests on circumstantial evidence. In the case of SharadBirdhichand Sarda vs. State of Mahrashtra (1984) 4 SCC 116 ), the Apex Court has held that the infirmity or lacuna in prosecution cannot be cured by false defence. The prosecution case against the accused, admittedly, rests on circumstantial evidence. In the case of SharadBirdhichand Sarda vs. State of Mahrashtra (1984) 4 SCC 116 ), the Apex Court has held that the infirmity or lacuna in prosecution cannot be cured by false defence. The Apex Court further held that before the conviction could be based on circumstantial evidence, the following tests must be satisfied by the prosecution : (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 24. Having regard to the above referred tests laid down by the Apex Court in a case of circumstantial evidence, we find it extremely difficult to hold that the circumstances proved by the prosecution are sufficient to hold the accused guilty of the offences for which he has been convicted. Even if all the circumstances which are proved against the accused are taken into consideration, in our considered view, the same do not complete the chain as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. All these circumstances taken together into consideration, do not establish beyond reasonable doubt that it was the accused and the accused alone who was the author of the crime. No doubt, the circumstances proved by the prosecution raise suspicion about the complicity of the accused in the commission of the crime. But, as held by a catena of decisions of the Apex Court suspicion, however grave, cannot take the place of proof. 25. There is one more aspect which goes in favour of the accused and that is the prosecution has not been able to establish the motive for the commission of the crime. But, as held by a catena of decisions of the Apex Court suspicion, however grave, cannot take the place of proof. 25. There is one more aspect which goes in favour of the accused and that is the prosecution has not been able to establish the motive for the commission of the crime. It has been faintly suggested by the prosecution witnesses that some amount was due by the family members of the deceased Sanjay Thorat to the accused who had worked for them on two and half days. However, there is absolutely no evidence on record as to the exact amount due to the accused for the work done by him. Therefore, in the absence of any cogent evidence regarding the amount due to the accused by the family of Sanjay Thorat, it is difficult to hold that on account of dispute as to payment by the family of Thorat to the accused, the accused committed murder of Sanjay Thorat. It is well settled that in a case based on circumstantial evidence motive assumes importance, however, if the circumstantial evidence led by the prosecution is cogent & convincing and proves the offence against the accused beyond reasonable doubt, the mere fact that the motive is not proved, by itself is not sufficient to acquit the accused. In the present case, having regard to the circumstances proved against the accused, we find it extremely difficult to hold the accused guilty for the murder of Sanjay Thorat, more particularly in the absence of proof of motive for the commission of the crime. 26. Another aspect which also goes in favour of the accused is that the murder of Sanjay Thorat was committed in a cashew grove, situated at about 30 to 40 metres away from the main road. It is difficult to accept the prosecution case that the accused and the deceased would go to a place full of cashew trees, away from the main road to discuss about the payment of amount due to the accused by the family members of Sanjay Thorat. Admittedly, the accused and the deceased were not friends, but the accused was employed by the father of deceased Sanjay Thorat, a few days before the incident and that too for a period of about two and half days. Admittedly, the accused and the deceased were not friends, but the accused was employed by the father of deceased Sanjay Thorat, a few days before the incident and that too for a period of about two and half days. Thus, having regard to the probability factor, we find it extremely difficult to hold that the accused committed murder of Sanjay Thorat in the property of PW6 Rita Xavier, some distance away from the main road. 27. Thus, upon re-appreciation of the entire evidence, we are of the considered opinion that the circumstances proved by the prosecution which have been referred to herein above, do not establish beyond reasonable doubt that the accused committed robbery & murder of Sanjay Thorat on 5th May, 2000 between 18.30 hrs. & 20.30 hrs., at Fondia, Bogmalo, The accused is, therefore, entitled to be acquitted by giving benefit of doubt. 28. We have taken into consideration the ratio of the Judgments relied upon by the learned Counsel for the appellant accused. However, we do not deem it necessary to refer threadbare to each of the Judgments cited. 29. In the result, therefore, the conviction of the accused in terms of the Judgment and Order dated 1st February, 2010, passed by the Additional Sessions Judge-1, South Goa, at Margao in Sessions Case No.39/2000, for the offences punishable under Sections 302 & 394 of IPC and sentences imposed on him are quashed and set aside and the accused is acquitted of both these offences. Fine amount, if paid, by the accused-appellant shall be refunded to him. Order passed by the learned Trial Judge, in so far as disposal of the property is concerned, is maintained. The accused is ordered to be set at liberty forthwith, if not required in any other case. 30. The appeal stands disposed of accordingly.