JUDGMENT/ORDER

BHARAT P.DESHPANDE, J. - Appellant/Accused preferred present appeal thereby challenging the judgment and conviction dtd. 28/7/2022 in Sessions Case No.9/2019 passed by Additional Sessions Judge, Margao thereby holding the Appellant as guilty for the offences punishable under Sec. 302 and 394 of IPC.

2. Ms Gina Maria Almeida, learned Counsel appeared for the Appellant (appointed under Legal Aid Scheme) and learned Additional Public Prosecutor Mr Nikhil Vaze appeared for the State

3. Accused was charged for the offences punishable under Sec. 302 and 394 of IPC wherein it was alleged that on 12/2/2019 at around 02:30 hours, he assaulted the waiter by name Ranjit s/o Hari Singh, aged 33 years, resident of Hawana Cuba, Palolem, Canacona, Goa with wooden rib on his head, face and committed murder and decamped with cash and mobile of the deceased. On explaining the charge, Accused pleaded not guilty and claimed to be tried. Prosecution examined in all 20 witnesses. No witness in support of defence was examined. The Statement of Accused under Sec. 313 of Cr.P.C. was recorded wherein he denied the entire case of the Prosecution.

4. Admittedly, entire case of Prosecution is based on circumstantial evidence. The Trial Court in this impugned judgment carved out the circumstances which are found in para No.8 itself. However, we would like to consider the circumstances which according to us are relevant for the Prosecution to prove the guilt of the Accused beyond all reasonable doubt.

5. Learned Trial Court while deciding the case based on circumstantial evidence, rightly placed reliance in the case of Sharad Birdhichand Sarda vs. State of Maharashtra ; (1984) 4 SCC 116.

6. The points for determination are as under together with our findings against it:-

i. Whether the Prosecution succeeded in proving that Accused committed murder of the deceased?

ii. Whether Prosecution succeeded in proving that the Accused committed robbery while committing murder of the deceased?

7. The complaint was lodged by Francis Xavier Dourado/PW1 who is the owner of the Restaurant known as Hawana Cuba situated at Palolem, Canacona. In all, 8 employees were working with him and the business was managed by one employee known as Janak. On 11/2/2019, he closed the restaurant at around 11:00 p.m. and went to his residence. At around 2:45 hours, on 12/2/2019, his employee Janak came to his residence and informed that his employee i.e. Accused assaulted other employee by name Ranjeet Singh. Accordingly, he went to the restaurant and found Ranjeet Singh fallen on the rear side of the kitchen door with blood on his person. The ambulance was called and said Ranjeet Singh was taken to the hospital. However Said Ranjeet Singh expired while he was taken to Hospicio Hospital. PW1 specifically stated that the Accused was not present at the restaurant when he reached there on the information of assault on Ranjeet. Accordingly, he lodged the complaint against Accused for committing murder. The complaint is at Exhibit 14. He then deposed that deceased Ranjeet had injuries on his head, fact, which were bleeding. He then claimed that the Accused was of aggressive nature. The panchanama was conducted by the police of the scene of offence during which they collected various exhibits including blood samples, three pieces of wood and a pair of slippers. He categorically disclosed in the cross examination that when he reached the spot, all other employees except the Accused were present.

8. PW2/Hemant Dessai actes as a pancha witness on 12/2/2019 which was conducted at Canacona Police Station. Between 8:30 a.m. to 10:00 a.m. At that time, the Accused wa