JUDGMENT : NUTAN D. SARDESSAI, J. 1. The appellant has challenged the judgment and order dated 07.08.2012 passed by the Additional Sessions Judge, Mapusa, in Sessions Case No.4/2010 pursuant to which he has been held guilty of the commission of offence punishable under Section 302 of I.P.C. and sentenced to undergo life imprisonment apart from payment of fine of Rs.5,000/- and in default to undergo rigorous imprisonment for a period of two months. Parties would be referred to as the accused and the State for brevity's sake hereinafter. 2. The case of the prosecution briefly was that on 15.11.2009 around 18.20 hours, the accused who was the brother of the first informant had assaulted his brother Ishwar Gawas with an axe on his head in order to kill him due to which he sustained injuries on his head on the right side and succumbed to his injuries while undergoing treatment at the G.M.C. Hospital Bambolim on 16.11.2009 attracting the offence punishable under Section 302 of I.P.C. 3. The accused had denied the case of the prosecution set out against him by the examination of 17 witnesses on behalf of the State, denied that he had sustained any injuries on his person as noted by the doctor on his arrest and broadly set up a case that he had been falsely implicated in the case. 4. Shri G. Agni, learned Advocate came to be heard on behalf of the accused who submitted that there was no basis in the case set out in the impugned judgment of the last seen together theory considering that the accused and the deceased were residing in the same house and there was nothing unusual in them being seen together. Some of the witnesses examined on behalf of the State were hostile to its case and they had failed to prove the case of the prosecution against the accused. The learned Additional Sessions Judge had not awaited the report from the forensic expert and besides the prosecution has failed to establish the motive for the crime. Some of the witnesses examined on behalf of the State were hostile to its case and they had failed to prove the case of the prosecution against the accused. The learned Additional Sessions Judge had not awaited the report from the forensic expert and besides the prosecution has failed to establish the motive for the crime. He placed reliance in Anjan Kumar Sarma & Ors vs State of Assam [ AIR 2017 SC 2617 ] in support of his case and particularly to buttress the contention that the Hon'ble Apex Court had held that the factors which were relevant to appreciate the case based on the circumstantial evidence, the theory of last seen together did not by itself lead to an inference that it was the accused who had committed the crime and there had to be something more connecting between the accused and the crime. Besides this, the Apex Court had also held that the absence of explanation on the part of the accused could not lead to a proof of guilt against him and therefore it was a fit case to reverse the judgment and pass an order of acquittal in his favour. 5. Shri M. Amonkar, learned Addl. Public Prosecutor on behalf of the State submitted that the evidence brought on record when weighed in its totality would indicate that the accused had not shown any concern or remorse even when his mother had raised an alarm on seeing the deceased. The accused had remained unshaken even on seeing the body of his brother with an axe embedded in his head. The Trial Court had rightly recorded its findings to that effect and therefore, there was no justification to reverse the findings recorded by the learned Additional Sessions Judge so as to acquit the accused. The appeal therefore had to be dismissed. 6. The first witness examined on behalf of the prosecution was the brother of the accused and the deceased who had revealed that there used to be fights between the accused and the deceased while they were under the influence of alcohol and otherwise they were maintaining good relations. On the stated date, he had come home after 6.00 p.m. from his work place and noticed blood on the floor of the hall apart from the blood on the mat and the body of his brother, Ishwar, since deceased, being carried in the 108 Ambulance. On the stated date, he had come home after 6.00 p.m. from his work place and noticed blood on the floor of the hall apart from the blood on the mat and the body of his brother, Ishwar, since deceased, being carried in the 108 Ambulance. He was a formal witness examined by the prosecution to set the law in motion who had only confirmed during the course of the cross examination that the accused and the deceased used to drink heavily and fight thereafter and sometime they used to suffer bleeding injuries in the course of such fights. 7. Dr. Sapeco, Pw2 who was the forensic surgeon examined by the State based on the request from the Old Goa Police Station had examined the dead body of Ishwar Gawas, upon a report that there was a history of assault with an axe as the foreign body got lodged in brain. He has narrated at length, the injuries noticed on person of the deceased which were all antemortem in nature and on his assessment the injury no.1 which was on the head was caused by an impact with a heavy cutting weapon and the injury nos.2 to 8(a) were caused by an impact with the edge of cutting weapon unlike the injury nos.8(b) to 13 were caused by blunt force or object. He had opined that the death was caused due to the damage to head and brain vide the injury no.1 which was caused by impact with heavy cutting weapon and associated with injuries on scalp and chest. The injury no.1 was fatal in the ordinary course of nature. There was no rebuttal of his testimony that the death was caused due to the cutting weapon found embedded in the head of the deceased and such an injury was caused by an impact with a heavy cutting weapon. He did not rule out that this injury was caused by an axe and denied all suggestions to the contrary. It is therefore amply born out from the testimony of Dr. Sapeco, Pw2 that the death of Ishwar, since deceased, was caused due to the violent impact with a heavy cutting weapon like axe which was found embedded in his head and materially being an antemortem injury. From his examination, therefore, the prosecution had established that the death of Ishwar was homicidal. Sapeco, Pw2 that the death of Ishwar, since deceased, was caused due to the violent impact with a heavy cutting weapon like axe which was found embedded in his head and materially being an antemortem injury. From his examination, therefore, the prosecution had established that the death of Ishwar was homicidal. The presence of axe in the head also would eliminate any doubt in the case of the prosecution inasmuch as the non reference of sample for forensic examination would not be fatal to the case of the prosecution when the weapon of assault with blood was seen embedded in the wound in the head of the deceased. The contention therefore of Shri Agni, learned Advocate for the accused fails to inspire confidence that the absence of forensic report was fatal to the case of the prosecution. 8. Ganesh Pw3 had revealed in his evidence that when he came home in the evening around 6.00 to 7.00 p.m., he learnt that Ishwar was assaulted but did not know who had assaulted him. He had seen the body of Ishwar on entering the house. He was subjected to cross examination at the instance of the State being declared a hostile witness as he was found suppressing the truth. Nonetheless, the prosecution had not been able to drive a wedge in his testimony inasmuch as even if the statement was considered that he had heard that the accused assaulted Ishwar with an axe on his head, it was purely hearsay and that it could not do any damage to the case of the prosecution. The testimony of Dr. Mandar Kantak, Pw4 assumes significance who examined the accused on reference by the police. Pertinently, he revealed that the patient i.e. the accused had not given any history. Nonetheless, on the examination he found scratch abrasions on his chest, preserved the scalp hair sample including the nail clippings and referred him to the blood bank for blood report which was B-Rh positive. A stray suggestion was put to him that the accused was insane on that date but he categorically denied such suggestion and stated that his records did not suggest so. There was nothing in the conduct of the accused to indicate that he was not in senses at the time of his examination. He had particularly asked the accused about the history of injury on his person but he had not replied. There was nothing in the conduct of the accused to indicate that he was not in senses at the time of his examination. He had particularly asked the accused about the history of injury on his person but he had not replied. 9. Chundan Pw5, the cousin of the deceased and the accused stated that they resided in the same house but in different portion. He was outside his house in the courtyard on 15.11.2009 around 6.30 p.m. as he heard the shout of the mother of the accused named Pushpa raising an alarm and asking someone to help her. He had entered the house and noticed blood in the balcony. He too was cross examined since the Public Prosecutor at that time found that he was resiling from his previous statement and hostile to the case of the prosecution. During such time, he admitted that he saw the mother of the accused Pushpa crying and Ishwar lying on the mat in a pool of blood and the axe fixed on his head. He also denied having stated to the police that he had seen the accused sitting in the courtyard. Suffice it to say that this witness too had not deviated from the case of the prosecution nor had he made any statement damaging the case of the prosecution against the accused. Quite on the contrary, it was borne out that the deceased was consuming liquor and so too the accused. 10. Rajani Pw7 was another relation of the accused and the deceased who was residing in the same house but in a different portion. She claimed for want of knowledge if the accused had habit of drinking liquor and so too the deceased Ishwar. She had not seen the people gathered in the courtyard of their house nor had she seen the mother of the deceased. She was cross examined at the instance of the State but here too it must be said that she declined to toe the line of the prosecution qua her previous statement and denied the suggestion that she had learnt that the accused had assaulted Ishwar with an axe on his head. Her testimony too does not in any manner advance the case of the defence. 11. Her testimony too does not in any manner advance the case of the defence. 11. Pushpa Pw8 the mother of the accused and the deceased stated that they both were in the habit of consuming liquor and that they used to fight under the influence of alcohol. She came home in the evening of 15.11.2009 and saw the deceased lying on the floor of the balcony in a pool of blood and axe with a wooden danda embedded in his head. She had raised an alarm and noticed that the deceased had groaned and knew that he could not speak and found the accused sitting in the courtyard of the house. She had then contacted the neighbour and requested to call for a vehicle to take Ishwar to the hospital. Even at that point of time the accused continued sitting in the courtyard. There was a bare suggestion that the axe found embedded in the head of the deceased did not belong to them and which was denied by her. Nonetheless, her previous statement that they used to keep the axe in the hut meant for storing wood erases the effect of such suggestion at the instance of the defence. 12. Dilip Pw9, another brother of the deceased and the accused revealed another facet inasmuch as the accused and the deceased were not working on a regular basis and both used to be under the influence of alcohol with altercations between them when they were under the influence of alcohol. They also used to fight with each other as well as with the neighbours and for that reason he and three other brothers used to reside in separate houses. On the fateful evening, he had received a phone call from his cousin Chunda around 6.45 p.m. that a fight had taken place between the accused and the deceased and thereafter the deceased was taken in an 108 Ambulance to the GMC hospital, Bambolim. His cousin told him to report directly to the GMC hospital and on going there he had seen the deceased in a pool of blood and an axe stuck in his head. He had learnt from his mother who was at the hospital on inquiries that there was a quarrel between the accused and the deceased with no rebuttal of his testimony. He had learnt from his mother who was at the hospital on inquiries that there was a quarrel between the accused and the deceased with no rebuttal of his testimony. His testimony too confirms the case of the prosecution that the accused and the deceased used to be under the influence of alcohol now and again and that there used to be quarrel between them under such influence and materially that he had seen the axe embedded in the head of the deceased. 13. Vishnu Pw10, still another brother of the accused and the deceased too confirmed that the accused and the deceased used to drink alcohol and fight amongst themselves under the influence of alcohol. On 15.11.2009 he had received a phone call at around 7.15 p.m. from his brother Dilip Pw9 that something has been hit against the head of the deceased and he should come to GMC Bambolim. On going there he saw the deceased with an axe stuck in his head having a wooden danda and thereafter the deceased was taken to the operation theater. His testimony also corroborates the prosecution case further that the accused and the deceased used to be under the influence of alcohol and that there used to be fights between them under the influence of alcohol. Materially he too confirmed the prosecution case that an axe was stuck in the head of the deceased which was the cause of his death. 14. Surya Pw11, still another brother of the accused and the deceased corroborated their version that the accused and the deceased used to fight and abuse each other under the influence of the alcohol apart from abusing each other and the neighbours. He had received a phone call from his brother Bhavesh Pw1 on 15.11.2009 at around 09.30 p.m. while he was watching a movie in the theater and on coming home he learnt from his mother Pushpa Pw8 that there was a fight between the accused and the deceased and that the accused had assaulted the deceased who was now in GMC. His testimony is purely hearsay since it is otherwise borne out from the evidence that he did not pay much attention to it since the quarrels between the accused and the deceased were routine and under the influence of the alcohol. 15. His testimony is purely hearsay since it is otherwise borne out from the evidence that he did not pay much attention to it since the quarrels between the accused and the deceased were routine and under the influence of the alcohol. 15. Vinod Pw12 a neighbour of the accused and the deceased revealed that on the evening of 15.11.2009, Pushpa Pw8 had come to his house crying to come hospital and told him that there was a fight involving her two sons and to call an 108 Ambulance to take one of her sons to the GMC hospital who was badly injured. His unrebutted testimony lends credence to the prosecution case that he was instrumental in contacting the 108 vehicle and being informed by the mother of the deceased that there was fight between her two sons and that one of them was injured. 16. Ramesh Pw13 was the pancha to the attachment panchanama at the GMC hospital on 16.11.2009 when some clothes were produced of the deceased apart from a danda, banian having blood stains and being shown one blue colour short pant alongwith an underwear and packed and sealed after being shown to the pancha which had blood stains on it. He and the other pancha were also shown an axe which comprised of partly cut danda and the blade and there were blood stains on the blade of the axe which too was duly packed and sealed and attached under the panchanama. His un-rebutted testimony being that of an independent witness lends credibility to the case of the prosecution that the clothes of the deceased were having blood stains apart from the blade of the axe which were attached and duly packed and sealed under the panchanama. 17. Raja Pw14 was the pancha to the scene of offence panchanama drawn in the house of Pushpa Pw8 at Bandh, St. Cruz on 16.11.2009 alongwith one Dinesh. He had seen a nylon mat with blood stains on it. There was blood below the mat and a yellow colour T-shirt with blood stains. There were five cut marks and two big holes on the mat which appeared to be of a sharp edged weapon. The mat was removed and the floor beneath which was of clay also had five marks of sharp edged weapon corresponding to the marks found on the mat. There were five cut marks and two big holes on the mat which appeared to be of a sharp edged weapon. The mat was removed and the floor beneath which was of clay also had five marks of sharp edged weapon corresponding to the marks found on the mat. There was one pillow near the mat with blood stains on it and thereupon the mat, the yellow colour T-shirt, blood soaked soil from the floor, control sample of mud from the soil and pillow were attached and duly packed and sealed in five separate packets. Although it was brought on record that the muddemal property was not received from the Central Forensic Science Laboratory during the course of his examination and even till after the conclusion of the trial, nothing substantially turns on that aspect inasmuch as the injuries on the person of the deceased Ishwar being homicidal was not disputed and also the weapon of assault being found with its blade embedded in the skull of the deceased. 18. Evette Pw16 stated that she was attached to GMC Hospital Bambolim and presently to 108 in EMRI services since December, 2008. She had joined duty at 18.15 hours on 15.11.2009 and soon thereafter received a call from unknown caller that an assault had taken place at Bandh, St. Cruz and immediately proceeded to the spot. They reached at the spot at 18.54 hours and went to the house of Ishwar, since deceased, where they saw a body lying in a pool of blood. His mother had informed them the name of the injured and she noticed an axe entered in the skull and its blade was 5-6 inches inside the skull while the wooden handle was outside the skull. The condition of the injured was critical and the mother of the injured was shouting. She had shifted him in an 108 vehicle with the help of the people and took him to the GMC hospital. The weapon comprised of a danda of about one metre and its blade on one side was about 5-6 inches and that a part of the blade was seen outside the skull. She had shifted him in an 108 vehicle with the help of the people and took him to the GMC hospital. The weapon comprised of a danda of about one metre and its blade on one side was about 5-6 inches and that a part of the blade was seen outside the skull. The discrepancy brought during the course of her cross examination vis-a-vis the time for reporting for her duty not being reflected in the Duty Register and that there was an error in the name of her father in the statement recorded by the police are primarily inconsequential and do not depart from the case of the prosecution that the deceased Ishwar had been inflicted a violent blow on the head, a vital part of the body resulting in the blade of the axe being embedded in his skull. 19. Last but not the least, PI Shirodkar, Pw17 revealed that Bhavesh had lodged a complaint that the accused who was his brother had assaulted his other brother Ishwar with an axe on his head in order to kill him due to which he had sustained serious injuries on his head. Initially an offence was registered under Section 307 of IPC but it was later converted to Section 302 of IPC on receipt of the message from the Casualty Police that the victim had expired. He had conducted the scene of offence panchanama in the house of the deceased, the inquest panchanama in the GMC Morgue, attachment panchanama of the clothes of the deceased and the weapon of assault in the presence of the independent pancha witnesses and then placed the accused under arrest on 16.11.2009. He had recorded various statements including those of the family members of the deceased and the accused, forwarded exhibits for CFSL examination and on completion of his investigation had filed the charge sheet against the accused. 20. In Anjan Kumar (supra), the charge was for committing offence under Sections 302, 376(2)(g), 201 read with Section 34 of IPC. He had recorded various statements including those of the family members of the deceased and the accused, forwarded exhibits for CFSL examination and on completion of his investigation had filed the charge sheet against the accused. 20. In Anjan Kumar (supra), the charge was for committing offence under Sections 302, 376(2)(g), 201 read with Section 34 of IPC. A co-accused Jit was separately charged under Section 366-A of IPC and all the accused were acquitted of the charges framed against them while the High Court reversed the acquittal and convicted the appellants sentencing them to life imprisonment for the offences under Sections 302, 201 read with Section 34 of IPC and acquitting them of the offences under Sections 376(2)(g) read with Section 34 of IPC. The Apex Court was seized of the fact that it was a case of circumstantial evidence and in that view culled out the factors to be taken into account in adjudication of the cases based on circumstantial evidence as laid down by this Court and being 1 to 5 which read as under : (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. (See: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , M.G. Agarwal v State of Maharashtra, AIR 1963 SC 200 ). In Anjan Kumar (supra), the Apex Court also reiterated that suspicion cannot take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof and that inferences drawn by the Court have to be on the basis of established facts and not on conjectures. In Anjan Kumar (supra), the Apex Court also reiterated that suspicion cannot take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof and that inferences drawn by the Court have to be on the basis of established facts and not on conjectures. In the facts of the case at large, the Court also found that the circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence and by relying in Kanhaiya Lal v State of Rajasthan [ (2014) 4 SCC 715 ] and Arjun Marik v State of Bihar [1994 Supp (2) SCC 372]. The Apex Court for that matter by referring to its judgment in Bharat v State of M.P. [ (2003) 3 SCC 106 ], held that the failure of the accused to offer any explanation in his statement under Section 313 of Cr.P.C. alone was not sufficient to establish the charge against the accused and in the facts at large before it observed that the High Court had committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the accused stood un-rebutted and the appellants were liable to be convicted. The Apex Court for that matter observed at paragraph 21 that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain and that in the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. However, there can be no dispute with the observation of the Apex Court in Anjan Kumar (supra), and the reference to the settled proposition. In the instant case, it is not the circumstances of the accused being last seen with the deceased which alone had weighed with the learned Additional Sessions Judge to record a finding of guilt against him. However, there can be no dispute with the observation of the Apex Court in Anjan Kumar (supra), and the reference to the settled proposition. In the instant case, it is not the circumstances of the accused being last seen with the deceased which alone had weighed with the learned Additional Sessions Judge to record a finding of guilt against him. The learned Trial Judge had considered the various circumstances in the case of the prosecution which unerringly pointed out to the guilt of the accused and besides also laid emphasis of the accused being last seen in the company of the deceased to confirm the finding of guilt against him. What also played on the mind of the learned Trial Judge was that the accused had not only failed to account for the injuries on his person which were coinciding with the date of the incident qua his examination by an independent doctor but that he had given a false explanation denying the very essence of his injuries to be a material circumstance against him. The learned Judge for that matter had also given due weightage to the conduct of the accused who had remained at the spot unaffected by the alarm raised by his mother on seeing the body of her son lying in a pool of blood with an axe embedded in his head and further that he had not volunteered or done anything to render assistance to shift the injured Ishwar, since deceased, to the hospital. The learned Judge had also found that there was a motive for the accused to do away with the deceased and that there was no remorse of his action even after it dawned on him that the violence of his action had left Ishwar with a critical wound in his head inflicted with a heavy weapon like an axe and its blade continuing to be embedded in his head. Non availability of the CFSL report had also been considered by the Trial Court which would not affect the quality of the evidence brought on record to drive home the guilt of the accused in the commission of the crime. The findings rendered by the learned Trial Judge are therefore consistent with the sole hypothesis of the guilt of the accused eliminating any reasonable doubt to the contrary. 21. The findings rendered by the learned Trial Judge are therefore consistent with the sole hypothesis of the guilt of the accused eliminating any reasonable doubt to the contrary. 21. On the basis of all this evidence on record, the learned Additional Sessions Judge had clearly held that the prosecution had established that the death of Ishwar, since deceased, was homicidal, that the accused was the perpetrator of the crime on an analysis of evidence brought on record and examined as before and recorded a finding of guilt against the accused being proved beyond all reasonable doubt. The learned Additional Sessions Judge for that matter had also concluded and rightly so that the accused and the deceased as borne out from the testimony of the relatives indicated that they used to work only when some work was available to them, spent their earnings in consuming alcohol and after consuming alcohol used to engage in fights between themselves including abusing each other and the neighbours. 22. The learned Additional Sessions Judge for that matter had also clearly recorded a finding on the demeanour of the accused who had not reacted even when his mother Pushpa Pw8 had shouted for help on seeing Ishwar lying in a pool of blood with an axe embedded in his head. The learned Judge for that matter had taken due note of the conduct of the accused and had drawn an adverse inference against him when despite hearing the cries of his mother and knowing that his brother was on the death bed, he had not reacted in any manner whatsoever and remained glued to the place where he was sitting after the incident. The accused for that matter had also not given any cogent explanation to account for the injuries on his person which were barely 3 to 4 days old at the time of the examination coinciding with the date of incident and instead put a false defence that he had not sustained any such injuries. These facts were within his special knowledge and it was for him to account for the injuries which he failed to do. For that matter, the doctor who had examined him had no reason to record his finding on the presence of injuries and there was no reason for him to depose against the accused. These facts were within his special knowledge and it was for him to account for the injuries which he failed to do. For that matter, the doctor who had examined him had no reason to record his finding on the presence of injuries and there was no reason for him to depose against the accused. The learned Additional Sessions Judge had thus on the basis of the evidence of the family members and the pancha witnesses held that the relation between the accused and the deceased were strained and that there used to be fights between them under the influence of alcohol. The prosecution as recorded by the learned Judge had also established that the accused was only the person present at the time of the incident of assault and that his behaviour immediately after the incident was unnatural and moreover he had injuries on his person which coincided with the time of the occurrence of the incident and unaccounted by him. The learned Judge had therefore rightly concluded that the link in the chain of the prosecution case was amply established in a case based on the circumstantial evidence. For that matter the learned Judge was equally seized of the fact that though the CFSL report was not received, there was ample independent material on record to establish the guilt of the accused and in that view of the matter held against him. This judgment of the Trial Court does not suffer from any illegality or improper appreciation of the material on record as to justify the interference in the appeal. 23. In the result, we find that there is no merit in the appeal and hence we pass the following order: ORDER The appeal stands dismissed.