STATE OF GOAversusSUBHASH GHOGLE

                         [2008] 15 S.C.R. 33
i

                          STATE OF GOA                                A
                                  II.
                       SUBHASH GHOGLE
                (Criminal Appeal No. 1107 of 2002)

                        OCTOBER 21, 2008
                                                                      B
           [DR. ARIJIT PASAYAT, C.K. THAKKER AND
                LOKESHWAR SINGH PANTA, JJ.]

         Penal Code, 1860 - s. 302 - Murder- Prosecution case
    that death by strangulation - Reliance on circum~tantial          c
    evidence - Conviction uls. 302 and imposition of life
    imprisonment - However, acquitted by High Court -On
    appeal, held: High Court rightly held that the evidence was
    insufficient, thus, prosecution failed to establish accusations
    - Evidence - Circumstantial evidence.                             D
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1107 of 2002.

        From the final Judgment and Order dated 1.7.2002 of the
    High Court of Bombay at Goa in Criminal Appeal No. 70 of          E
    2000.

        A. Subhashini for the Appellant.
       J.K. Mahapatra, Amit Singh, Aruneshwar Gupta, Prashant
                                                                      F
    Kumar and Triveni Potekar for the Respondent.

        The Judgment of the Court was delivered by

         DR. ARIJIT PASAYAT, J. Challenge in this appeal is to
    the judgement of acquittal passed by a Division Bench of          G
    Bombay High Court at Goa.

        The Learned Additional Session Judge, Mapusa had
    convicted the respondent for offence punishable under Section

                                  33                                  H
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A 302 of the Indian Penal Code, 1860 (for short 'IPC'). The
  allegation was that on the night of 4th January, 1999 the
  respondent herein had killed Smt. Bendita Parriera (hereinafter
  referred to as 'the deceased') by strangulation. The prosecution
  relied upon circumstantial evidence to further its version. The
B Trial Court found that the circumstances were sufficient to fasten
  the guilt on the accused and accordingly convicted him and
  sentenced him to undergo imprisonment for life. In appeal, the
  High Court found thatthe circumstances highlighted were not
  sufficient to hold the accused guilty 'and, therefore, directed
c acquittal.
          Learned counsel for the appellant submitted with reference
    to the evidence of PWs 5 and 9, that their evidence was
    sufficient to hold the respondent guilty.

D       Learned counsel for the respondent on the other hand
    supported the judgement of the High Court.

         The circumstances highlighted by the prosecution are as
    follows:
E         "1.   The relations between the appellant/accused and
                the deceased were strained and the strained
                relations furnishes a motive.

          2.     The appellant/accused used to usually stay in the
F                company of the deceased on the first floor of the
                 hotel.

          3.    The appellant/accused and the deceased were
                alone on the first floor at about 11.30 P.M. This
                circumstances emerges from the evidence of P.ws·.
G               9 and 10.

         4.     Shouts of quarrels were heard from the first floor by
                               1
                P.Ws. 5, 9arid 10.

H         5.    The appellant/accused has not offered any
                     STATE OF GOA v. SUBHASH GHOGLE                        35
                           [DR. ARIJIT PASAYAT, J.)

                      explanation regarding his presence at 11.30 P.M.           A
                      on the first floor .
                       .
               6.     Both the doors were initially found closed by the
                      witnesses and later on P.W.9 noticed the rear door
                      to be opened. Thus an inference can be drawn that
                      the accused had escaped from the rear door after
                                                                         8
                      committing the crime.

               7.      Death is homicidal.

               8.     Injury on the accused is consistent with the               c
                      prosecution case and which is not explained by the
                      accused.

               9.     Statement made by the accused to P.W.1 when he
                      was being examined.
                                                                                 D
               10.    Blood of 'B' group found on the wristwatch, which
                      was identified to be that of the appellant/accused.

               11.    The false defence taken by the accused furnishes
                      the additional link."
                                                                                 E
                So far as some of the circumstances are concerned they
          have no relevance to be question as to whether the respondent
_.. .   . was guilty of the charged offence. The prosecution primarily
          relied on the evidence of PWs 5,9 and 10. So far as the
          evidence of these witnesses are concerned the only question(s)         F
          of any remote substance out of the questions which were put
          to the accused in the examination under Section 313 of the
          Code of Criminal Procedure 1973 (in short the Code) are as
          follows:
                                                                                 G
              "Q.35:-      It is in evidence of PW5 that in front of his STD
                           booth there is Lobster pot bar and restaurant run
                           by you and one Bernadette ~nd during night time
                           he presumed that you and her were staying in
                           the said restaurant on the first floor. What do you   H
    36         SUPREME COURT REPORTS                  [2008] 15 S.C.R.
                                                                            r
A                    want to say?

           Q.45:-    It is in the evidence of PW.9 that at l]lid night at
                     12.30 he heard the noise of fights between you
                     and Madam Pereira and Madam Pereira
                     shouting and calling him as John. He stated that
B                    she was calling him John. He heard her shouts
                     "John help me". What do you want to say?

        They do not in any way relate to any incriminating material
    against the accused.
c
         So far as PW-10 is concerned his evidence is really of
    no assistance to the prosecution. They relat_ed primarily to the
    engagement of persons in the restaurant. He has only stated
    that he heard some noise from outside and heard gagging
    sound of the deceased on the first floor of the restaurant.             ·~
D
         In view of the insufficiency of the evidence, as rightly noted
    by the High Court, the prosecution has failed to establish the
    accusations, so far as the respondent is concerned. The
    judgment of acquittal passed by the High Court does not suffer
E   from infirmity to warrant interference.

           The appeal is dismissed.

    N.J.                                           Appeal dismissed.            >-