REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

       CRIMINAL APPEAL NO. 1107 OF 2002

STATE OF GOA   .......APPELLANT/(S)   

VERSUS

SUBHASH GHOGLE    ......RESPONDENT/(S)

JUDGMENT

DR. ARIJIT PASAYAT,J.

Challenge in this appeal is to the judgement of acquittal passed by a

Division Bench of Bombay High Court at Goa.   

The  Learned  Additional  Session  Judge,  Mapusa  had  convicted  the

respondent for offence punishable  under Section 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 Perriera (hereinafter referred to as 'the

deceased') by strangulation. The prosecution relied upon circumstantial evidence to

further its version. The 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.   

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In appeal,  the  High  Court  found that the circumstances highlighted were not

sufficient to hold the accused guilty and, therefore, directed 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.  

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:

“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 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. 9 and 10.

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

5. The  appellant/accused  has  not  offered  any explanation regarding his presence at 11.30 P.M. 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 committing the crime.

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7. Death is homicidal.

8. Injury  on  the  accused  is  consistent  with  the 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.

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.”

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) 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:

“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  and  during  night  time  he  presumed that you and her were staying in the said restaurant on the first floor.  What do you want to say?

Q.45:- It is in the evidence of PW.9 that at mid 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 she was calling him John.  He heard her shouts “John help me”. What do you want to say?

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They do not in any way relate to any incriminating material against the

accused.

So far as PW-10 is concerned  his evidence is really of no assistance to

the  prosecution.   They  related  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.

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 from infirmity to warrant interference.

The appeal is dismissed.

                                                                        ..................J.   [DR.ARIJIT PASAYAT]

                 ..................J.

 [C.K. THAKKER]

NEW DELHI 21ST OCTOBER, 2008   ...................J.

[LOKESHWAR SINGH PANTA]