The main legal point established in the judgment is the application of circumstantial evidence and the conditions for granting the benefit of set off under Section 428 of the CrPC.

JUDGMENT :

M.S. Sonak, J.

This appeal is directed against the Judgment, Order and sentence dated 31st March, 2017/1st April, 2017, made by the Additional Sessions Judge, at Mapusa, by which the Appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for three years. Relying upon Kartar Singh vs. State of Haryana, 1982 AIR SC 1433 the learned Additional Sessions Judge has directed that the benefit of set off under Section 428 of the Code of Criminal Procedure (CrPC) is not to be extended to the Appellant.

2. In this case, the Appellant was charged of having committed the murder of his own wife Sneha, to which he pleaded 'not guilty' and claimed to be tried. Accordingly, the Prosecution examined 32 witnesses in support of the charge. Upon completion of the Prosecution evidence, the statement of the Appellant under Section 313 of the CrPC came to be recorded. In fact, the Appellant in the present case, filed a written statement under Section 313 of the CrPC, as well in response to the question as to whether he had anything further to say in the matter. The Appellant, however, chose to lead no defence evidence. The learned Additional Sessions Judge, vide impugned Judgment and Order dated 31.3.2017, convicted the Appellant for the offence under Section 302 of the IPC. Further by a separate order dated 1.4.2017, the Appellant was sentenced to undergo life imprisonment, as aforesaid. Hence, the present Appeal.

3. Mr. Deepak Girme, learned Counsel for the Appellant, at the very outset, submits that this is a case based almost entirely upon circumstantial evidence and, therefore, the principles relating to appreciation of circumstantial evidence, as laid down in several cases by the Hon'ble Apex Court, were required to be followed by the leaned Additional Sessions Judge. He submits, however, that such principles have been ignored and the conviction recorded against the Appellant is, therefore, required to be set aside.

4. Mr. Girme has, thereafter, proceeded to point out the contradictions and omissions in the depositions of the Prosecution witnesses, in order to urge that such depositions be discarded. Mr. Girme has also proceeded to demonstrate how, according to him, the circumstances listed out by the learned Additional Sessions Judge have not been proved by the Prosecution, beyond reasonable doubt and, how, in any case, proved circumstances failed to form the chain of evidence so complete as not to leave any reasonable ground for the conclusion inconsistent with the innocence of the Appellant. Mr. Girme, on the basis of this, submits that this is a case where the Prosecution has attempted to fabricate the evidence and consequently adverse inference will have to be drawn against the Prosecution. For all these reasons, Mr. Girme submits that the conviction recorded against the Appellant warrants interference.

5. Mr. Girme, in the context of the evidence of Dilip Pednekar (PW.1), who is the father of the deceased Sneha, pointed out that PW.1 was informed by the police at about 8.00 p.m. on 26.4.2011 about the murder and, yet PW.1 failed to inform PW.3, his wife and the mother of the deceased about the same even up to 9.00 p.m. Mr. Girme submits that this is unnatural conduct, which renders the testimony of PW.1 quite unbelievable. He pointed out that the deposition as to the alleged quarrel between the Appellant and the deceased, 15 days prior to the incident was not even referred to in the FIR and constitutes material omission. There are discrepancies with regard to the SMSs allegedly sent by the deceased to PW.3 and the deposition of PW.1, on this issue is hear-say evidence. For all these reasons, Mr. Girme submits that the deposition of PW.1 is required to be discarded. Upon such discarded evidence, Mr. Girme submits that there is no evidence to sustain the convi