JUDGMENT :

M.S. Sonak, J.

1. Heard Ms. B. Andrade, learned Counsel appointed under the Legal Aid Scheme on behalf of the Appellant, and Mr. Nikhil Vaze learned Additional Public Prosecutor for the State.

2. This appeal is directed against the judgment and order dated 30.11.2017, by which the Appellant was convicted for an offense under Section 302 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/-and in default to undergo three months simple imprisonment. The Appellant was also convicted for an offense under Section 201 of IPC and sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs.10,000/-and, in default, undergo simple imprisonment for one month.

3. On 19.11.2015, the Learned Additional Sessions Judge framed a charge against the Appellant alleging therein that on 06.07.2015 at about 00.30 hours at D'Costa Restaurant, IDC, Verna, Goa, the Appellant intentionally and knowingly murdered one Shiva Bhakti thereby committing an offense under Section 302 of IPC. The charge also states that the Appellant caused certain evidence concerning the said offense to disappear to screen himself from legal punishment and thereby committed a crime punishable under Section 201 of IPC. The Appellant refused to plead guilty and claimed to be tried.

4. The prosecution examined fifteen witnesses and produced documentary evidence. The Appellant was examined under Section 313 of the Code of Criminal Procedure (CrPC) but did not examine himself or lead any defense evidence. Accordingly, the learned Sessions Judge has convicted and sentenced the Appellant as above by the impugned judgment and order. Hence, this appeal.

5. Admittedly, there is no eyewitness to the incident, and the prosecution relies on circumstantial evidence. Learned Sessions Judge has not listed each of the circumstances that it has referred to or relied on, but from the evaluation of the impugned judgment and order, it is apparent that the learned Sessions Judge has relied upon the following circumstances to convict the Appellant:-

(a) That the death of Shiva Bhakti (victim) was homicidal;

(b) That the Appellant and the victim were last seen together on 05.07.2015, some hours before the incident;

(c) The extra-judicial confession of the Appellant to PW1, PW2, and PW3;

(d) The presence of human blood on the clothes which the Appellant was wearing at the time of or a little after the incident;

(e) The presence of the victim's blood on the koyta and gas cylinder with which the victim was struck. The presence of some brain portions of the victim on the gas cylinder with which he was hit;

(f) The previous fights between the Appellant and the victim that afford a motive for the crime;

6. Ms. Andrade, learned Counsel for the Appellant, submitted that the tests prescribed in a case based upon circumstantial evidence in Sharad Birdhichand Sarda Vs. State of Maharashtra-(1984) 4 SCC116 were not fulfilled in this case and, therefore, the Appellant should not have been convicted. She submitted that most of the circumstances had not been proved by the prosecution and, in any case, the proved circumstances are not sufficient to sustain the conviction.

7. Ms. Andrade pointed out a severe discrepancy between the blood group of the deceased and the Appellant. She pointed out the circumstance of last seen as not at all been proved by the prosecution. The learned Sessions Judge completely overlooks the presence of Rora Singh (PW3) and his suspicious testimony. She submitted that no fingerprints of the Appellant were found either on the koyta or cylinder. There is a discrepancy about the keys and the consequent entry and exit of the Appellant into the premises where the incident took place. There are discrepancies in time and visibility. She submitted that Motilal's (PW2) and Rora Singh's (PW3) versions are inherently improbable and contrary to normal human conduct. She submitted that the learned Sessions Judge has not even adver