JUDGMENT :

M.S. Sonak, J.

Heard Mr. Paulekar, learned Counsel for the appellant and Mr. S.R.Rivankar, learned Public Prosecutor for the respondent/State.

2. This appeal is directed against the judgment and order dated 20.01.2017 in Sessions Case (302) No. 35 of 2015 made by the Sessions Judge, South Goa at Margao convicting the appellant for the offences punishable under Section 302 and 201 of the Indian Penal Code (IPC) and sentencing the appellant to life imprisonment for the offence under Section 302 and for payment of fine of Rs. 10,000/- or in default three months simple imprisonment and simple imprisonment for three years and payment of fine of Rs. 5000/- or in default three months simple imprisonment for also offence under Section 201 of IPC.

3. We have heard Mr. Paulekar, learned Counsel for the appellant and Mr. S. R. Rivankar, learned Public Prosecutor for the State.

4. The charge framed against the appellant was that on or about 05.05.2015, in the afternoon at Newvada, Telegao, Sirvoi, Quepem Goa, the appellant committed murder by intentionally causing death of Shanul son of Shajaan Sharif, resident of Pedamol, Sirvoi, Quepem thereby committing offence punishable under Section 302 of IPC. The charge further states that on the said date, place and time, the appellant caused destruction of evidence by burying the dead body in the soak pit and covering it with mud, banana leaves and branches of jungle trees in order to destroy evidence thereby committing offence under Section 201 of IPC.

5. At the trial, the prosecution examined 14 witnesses. The appellant was questioned under Section 313 of the Code of Criminal Procedure (Cr.P.C.). The appellant neither examined himself nor led any defence evidence. By the impugned judgment and order dated 20.01.2017, the learned Sessions Judge convicted the appellant and sentenced him, in the aforesaid terms. Hence the present appeal.

6. Mr. Paulekar, the learned Counsel for the appellant submits that in the present case, the identity of the dead body has not at all been established. The tawiz, on the basis of which, Pw5 claims to have identified the dead body, was never attached and the so called stitch marks on the left hand were no where to be found on the dead body. He submits that in the absence of any identification that the dead body was indeed that of Shanul, the charge could never be said to have been proved. He submits that there is no cogent evidence to establish that this was a case of homicidal death. In any case, there is absolutely no evidence to link the appellant with the death of the person whose body was discovered in the soak pit.

7. Mr. Paulekar, learned Counsel submits that in the present case, the prosecution has relied upon only three circumstances i.e. the last seen theory, recoveries under Section 27 of the Evidence Act and the motive. He submits that each of these circumstances have not at all been proved by the prosecution beyond reasonable doubt. He submits that in any case, this circumstances are not sufficient for conviction of the appellant on the basis of circumstantial evidence. He submits that there are inherent improbabilities in the case of the prosecution which have not been duly appreciated by the learned Sessions Judge. For all these reasons, he submits that the impugned judgment and order warrants interference.

8. Mr. Paulekar, learned counsel submits that the principles relating to establishment of last seen theory have not been appreciated by the learned Sessions Judge. He submits that even the recoveries in this case are found in the open space and articles which have no nexus with the alleged crime. He submits that even the motive have not been established. He relied upon certain decisions and on the basis of the same, submits that the conviction against the appellant may be set aside.

9. Mr. Rivankar, learned Public Prosecutor defended the impugned judgment and order on the basis of the reasoning referred to therein. He refers to the deposition of