Case: Rajesh Mishra @ Mitra Vs. The State of Goa, Through Police Inspector

Oral Judgment: (Prithviraj K. Chavan, J.)1. By this appeal, the appellant challenges his conviction and sentence under Section 302 of the Indian Penal Code by the learned Sessions Judge, Margao on 27.7.2016 by which he is sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for three months.2. Facts in brief can be summarised as follows:-The incident in question occurred during night hours on 18.1.2011. The informant PW 4 Piedade Moniz approached the Police Station, Verna and informed that he received an information during early morning hours on 19.1.2011 from his neighbourer namely Hussain Mulla that a dead body was lying in a pool of blood in his property bearing Survey No.51/3 of Communidade of Verna. PW 4 Piedade Moniz is an owner of the said survey number and from where he used to remove laterite boulders. His neighbourer Hussain Mulla and his wife Raiman Bi were residing in a rented room at Poriebhat Verna. On receiving such an information, PW 4 Piedade Moniz rushed to the spot. He noticed a dead body of an unknown person wearing a short sleeves white coloured with black strips T-shirt and blue coloured jeans. There were injuries on his face and neck with sharp weapon.3. PW 43 Jivba Dalvi attached to the Police Station, Verna as P.I. and the Investigating Officer of this case registered a Crime No.10/2011 under Section 302 IPC. The F.I.R. is at Ex.24. PW 43 Jivba Dalvi rushed to the scene of occurrence. He pressed into service Fingers Print Expert as well as Dog Squad. He had also summoned panch witnesses PW 27 Babu Kolapte and Cw 3 Inacio. On reaching the spot, he noticed a dead body of the deceased lying in a pool of blood, which was also seen spread on dried grass. He noticed a pair of slippers, a bottle of alcohol and a handle of knife without blade. As a part of investigation, he had duly seized articles found on the spot in the presence of the panch witnesses. Meanwhile, the Handwriting Expert developed Chance Finger prints on the quarter alcohol bottle of `Honey Guide brandy. He drew a spot panchanama. He also recorded statements of the witnesses. An inquest panchanama was drawn, which is at Ex.163. The Police Photographer took photographs of the scene of offence. He thereafter referred the dead body to the Chief Medical Officer, Hospicio Hospital, Margao, for conducting autopsy. The Autopsy Report is proved at Ex.111, which was drawn by PW 32 Dr. Avinash Pujari.4. During investigation, it revealed that it was a dead body of one Rupesh Mitra. It also revealed that appellant Rajesh Mishra and the deceased were the resident of State of Jharkhand. The deceased was killed by the appellant Rajesh Mitra along with accused PraveshKumar Nand and Sudarshan Mishra. The trial Court has acquitted accused Pravesh Kumar Nand and Sudarshan Mishra.5. It is the case of the prosecution that accused nos.1 to 3 in furtherance of their common intention committed murder of deceased Rupesh Mitra for the reason that appellant Rajesh had a strong suspicion that his brother Rajendra had been shot dead by deceased Rupesh Mitra in the year 2010 within the jurisdiction of Kamdara Police Station, Jharkhand and thereafter he absconded from Jharkhand State and came to Goa. Thereafter, the Investigating Officer arrested all the accused. The Investigating Officer noticed a fresh cut injury on the right hand of the appellant between thumb and index finger. All the accused were referred for medical examination at Hospicio Hospital, Margao. After investigation, PW 43 Jivba Dalvi filed a chargesheet against all the three accused in the Court of JMFC, Margao, under Sections 302, 201 read with Section 34 IPC.6. On committal, the learned Sessions Judge, Margao after hearing the prosecution and the defence, framed a charge against the appellant and other two accused under Sections 302, 201 read with Section 34 IPC on 13.6.2011. All of them pleaded not guilty and claimed to be tried. Their defence was of denial of the commission of offence alleged. No defence evidence has been adduced on their behalf.7. The prosecution examined as many as 43 witnesses to substantiate the charge. The learned Sessions Judge, after hearing the prosecution and the defence by the impugned judgment acquitted the accused Pravesh Kumar Nand and Sudarshan Mishra, however, he convicted the appellant as above.8. Since the entire case revolves around circumstantial evidence, the learned Sessions Judge relied upon the following five circumstances to convict the appellant:Firstly, that the appellant had given an employment to the deceased on 17.1.2011;Secondly, a bottle of `Honey Guide brandy was found lying near the dead body during the scene of panchanama which bore chance finger print of the appellant;Thirdly, control finger print of the appellant was obtained by the Investigating Officer on 22.1.2011 which was sent to the Finger Print Expert PW 10 V. Rajakrishanan. The chance and control finger prints were identical;Fourthly, there was a motive to commit murder of the deceased as the brother of the appellant namely Rajendra was murdered in the month of November 2010 by the deceased; andFifthly, an injury near right thumb of accused no.1 (appellant) was noticed at 22.30 hours on 18.1.2011.9. The learned Sessions Judge, however, disbelieved last seen together theory, Extra Judicial Confession of the appellant about the injury near his thumb, recovery at the instance of the appellant and other accused, the C.F.S.L.report as well as human blood of the deceased on the objects recovered from the appellant and other accused.10. We heard Shri Ryan Menezes, learned counsel appearing for the appellant. With the assistance of the learned counsel, we have minutely scrutinized the evidence of the prosecution witnesses and the impugned judgment.11. The learned counsel for the appellant argued that recovery of `Honey Guide Brandy bottle at the scene of occurrence could not have been a circumstance for the reason that the dead body was noticed by the police at 8.00 hours, however, the panchanama commenced at 11.00 hours. During this interval of time, there is a possibility of placing the bottle at the site and also there is discrepancy insofar as the distance at which the said bottle was noticed from the dead body. The panchanama indicates that it was 12 mts. away from the dead body whereas the Finger Prints Expert PW 8 Umanath Naik states that it was about 65-70 mts. away from the dead body. The learned counsel has also strongly argued as regards motive behind the commission of the offence for the reason that there is no material indicating that the brother of the appellant was murdered by the deceased. Moreover, the record, more particularly, the evidence of the prosecution witnesses indicate that the relations between the deceased and the appellant were quite friendly and cordial. According to learned counsel, giving employment to the deceased by the appellant would not, by any stretch of imagination, be a circumstance indicating involvement of the appellant in the murder of the deceased. He, therefore, urged to set aside the conviction and sentence awarded to the appellant by the trial Court.12. The learned Public Prosecutor, however, supported the impugned judgment.13. As the case revolves around the circumstantial evidence, such evidence must satisfy the well known tests which are as follows:-(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) The circumstances, taken cumulatively, should form a chain so compete that there is no 8 escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.14. There is no dispute that deceased Rupesh died a homicidal death, which is evident from the testimony of PW 32 Dr. Avinash Pujari. He conducted autopsy on the dead body on 20.1.2011. The autopsy report is proved at Ex.111. According to Dr. Pujari, there was one incised wound with clean, clear cut margins behind the right ear. The wound was 16 cms. in length 4 cms at the centre and 4 cms. deep. He also noticed several incised wounds and abrasions on the dead body. Injury nos.1 to 12 were antemortem in nature and fresh at the time of death. He also opined that injury nos.1 to 5 and 7 to 10 were caused by a sharp edged weapon while injury nos.6, 11 and 12 were caused by a hard and blunt object. Injury no.1 was sufficient in the ordinary course of nature to cause death and injury nos.1 to 12 collectively were sufficient to cause death in the ordinary course of nature and have been described pictorially at internal page no.4 of the report. According to this witness, the cause of death is hemorrhagic shock due to deep incised wound on the neck front by a sharp edged weapon. The witness was shown a knife with black handle under Ex.29 and a steel blade of knife under Ex.31 whereupon he testified that the sharp edges of those knife blade can cause injury nos.1 to 5 and 7 to 12. This witness was not cross-examined by the defence and, therefore, his evidence remained unchallenged. Thus, there is no dispute about the fact that deceased Rupesh died by a homicidal death.15. Coming to the aspect of motive, it is settled principle that whenever cases are based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take place of proof. In the case at hand, there is a suspicion as regards the motive which is evident from the testimonies of following few witnesses examined by the prosecution during trial.16. PW 2 Shiv Kumar Mishra is working in Cipla Company at Verna where, admittedly, the appellant was also working. Deceased Rupesh was his relative. He testified that the deceased Rupesh came to his room on 13.1.2011 from Jharkhand in search of work. No prosecution witnesses has testified that it was the appellant who invited the deceased all the way from Jharkhand to Goa for giving him employment. The evidence of Shiv Mishra further reveals that deceased Rupesh started residing with him in his room. On 15.1.2011 the deceased phoned appellant Rajesh in connection with his work. Admittedly, accused Pravesh Kumar and Sudarshan were also from Jharkhand. He further deposed that on 15.1.2011 the appellant asked the deceased to join duties with effect from 17.1.2011 at Cipla Company in second shift. Accordingly, the deceased left for duty at 3.00 p.m. on 17.1.2011 and returned to the room at 12.00 in the midnight. On 18.1.2011 the deceased left the room of this witness to join morning shift at 8.00 a.m. However, the deceased did not return on that day at night. However, according to this witness, he had sent his tiffin through one Bella, who informed this witness that the deceased had gone to Birla for snapping a photograph and he would return late. The deceased thereafter found dead in the morning on 19.1.2011.17. During his cross-examination, PW 2 Shiv Kumar clearly admits that it was the deceased who had called the appellant requesting him to provide an employment. They had a conversion on phone on the very night. There was no enmity between the deceased and the appellant. It is also testified by this witness that the deceased and the appellant were friends. This witness has no reason to depose falsely, more particularly, in the light of the fact that he is relative of the deceased.18. Similarly, PW 5 Kulleshwar Mishra, who is also a native of Jharkhand and was working in Cipla Company at Verna testified that the deceased Rupesh was his nephew. On 9.1.2011 he met the deceased on the way at around 6.00 p.m. at Consua when he was going to buy kerosene. According to this witness, deceased Rupesh told him that he had come to Goa 4 to 5 days back in search of job. His evidence indicates that when he was inquired with by the police about the murder of the deceased, he informed that one Rajendra Mishra - brother of the appellant was murdered at Jharkhand and that the family members of deceased Rajendra were suspecting Rupesh as the culprit. According to this witness, the alleged suspicion of the family members of the appellant is based on an information given to him by the father of the appellant, who was working with him in Cipla III in the second shift. As such, the evidence of this witness as regards the information of family members of the appellant suspecting deceased Rupesh in the murder of Rajendra is hearsay. He clearly admits that this fact was not based on his personal knowledge.19. PW 20 Rajkumar Mishra, who also works in the same company, testified that the relations between deceased Rupesh and the appellant were cordial and that he had seen them moving together. Thus, it is clear from the evidence discussed hereinabove that there was no motive in committing the offence. Had there been any intention to eliminate the deceased, the appellant would have done it in a clandestine manner and not by giving him an employment in the same Company. The prosecution has thus, failed to establish motive, as a circumstance which is very essence of a case based on circumstantial evidence. It is pertinent to note that the prosecution has tendered copy of the complaint lodged with Kamdara, Post Rampur, Gumla, State of Jharkhand by Smt. Laxmidevi, mother of deceased Rajendra. It reveals that on 7.11.2010 her son Rajendra left the house after dinner at 6.00 p.m. Around 7.30 to 8.00 p.m. there was a sound of fire arm and after some time the daughter of Laxmidevi and others who gathered at her house informed that dead body of Rajendra was found lying half kms.away in a field. Smt. Laxmidevi had clearly stated in the complaint that her son was not on inimical terms against anybody and that he was shot dead by some unknown persons. That being so, there is no question of family members of the deceased Rajendra, especially, appellant Rajesh suspecting the deceased Rupesh in the murder of his brother Rajendra.20. On the aspect of finger prints, the prosecution has examined PW 7 Vasudev Pednekar, PW 8 Umanath Naik, PW 10 V.Rajakrishanan Menon and PW 27 Babu Kolapte. PW 7 Vasudeo Pednekar is the Head Constable who works as a Chance Finger Print Photographer. His evidence indicates that on 19.1.2011 after receiving a message from Verna Police Station, he reached the scene of occurrence along with PW 8 Umakant Naik and Head Constable Gurudas Mayenkar. An empty bottle of `Honey Guard Brandy was found lying on the spot. PW 8 Umaklant Naik, the Searcher developed a chance finger print on the said bottle. PW 7 Vasudeo clicked photographs of the said chance print which he forwarded to the Classic Lab at Panaji for the purpose of developing the same. He testified that he used the Digital camera of Nikon Company with 10 mega pixel. He admits that he did not forward memory card of the said camera to PW 10 V. Rajkrishnan who is a Finger Print Expert. What PW 7 Vasudev did is that he simply downloaded the picture from the computer which was taken with the help of digital camera and then forwarded its prints to PW 10 V.Ramkrishnan. PW 7 Vasudev does not remember the date on which he received finger prints slips from PW 10 V.Ramakrishnan. His categorical admission that photograph clicked on the digital camera could be edited on computer itself indicates that there was a possibility of tampering with the said photograph for the reason that this witness did not 14 care to forward the memory card of the camera directly to PW 10 V. Radhakrishnan. The excuse put forth by this witness for not sending memory card to the Finger Print Expert is that the Department has only such card, which is unacceptable. It can, thus, be seen that no proper procedure has been followed by the Investigating Agency in collecting the evidence in the form of photographic prints of the appellant as it suffers from various discrepancies.21. PW 8 Umakant Naik is posted at Porvorium Finger Print Bureau as Finger Print searcher. The sum and substance of his evidence is that on 19.1.2011 after reaching the scene of occurrence, he searched for finger prints and noticed an empty quarter bottle of `Honey Guide Brandy lying near the spot. He developed chance print with the help of brush and powder. He encircled the chance print on the bottle with the help of a black marker and thereafter PW 7 Vasudev Pednekar took the photograph. In cross, he admits that the bottle was found by the police at the scene before he could reach the spot. He could notice only one chance finger print on the bottle. He testified that the bottle was at distance of 65 to 70 mts. away from the dead body. The learned counsel for the appellant has, therefore, rightly placed reliance on a judgment of the Supreme Court in a case of Mohd.Aman Babu Khan Vs. State of Rajasthan reported in 1997 (10) SCC 44. The Honble Supreme observed thus:The only incriminating circumstance against one of the accused was that the finger prints were found on a brass jug in the house of the deceased. The brass jug and other articles were seized, sealed and forwarded to finger print bureau. According to the report of bureau, the finger prints found on the brass jug were similar to the specimen finger print of the accused, but the prosecution could not establish that the seized articles were not or could not tampered with before it reached the bureau for examination. In such circumstances, the conviction could not be based on the report of such finger expert only.22. So far as the evidence of PW 10 V.Rajakrishanan is concerned, he testified that he has passed All India Board Examination of Finger Print Expert and has 20 years of experience in the said field. According to this witness, he received a letter from P.I.Verna Police Station on 28.1.2011 i.e. more than 10 days after the incident requesting him to compare the finger prints of the appellant with that of chance prints developed at the scene of offence. The Investigating Officer had forwarded finger impression slips of all the accused along with photographs of developed chance prints for comparison. He testified that he compared the developed chance prints forwarded to him along with finger print impression slips and noticed that chance print is identical to left middle finger impression of appellant Rajesh and accordingly, he gave his opinion in writing. In cross, he admits that only photograph of chance print was forwarded to him by PW 7 Vasudeo Pednekar. He was not supplied with the memory card or CD containing the photographs. Thus, it is clear that there is every possibility of tampering with the said evidence in the light of admission by PW 7 Vasudeo Pednekar that the memory card of the said camera was not forwarded to the Expert but a CD prepared from the said computer was sent for comparing the chance and control finger print. The Supreme Court in the case of Anwar P.V. Bs. P.K.Basheer and others (cited supra) held in paras 13 and 14 of the judgment thus:13 - Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65 (B) (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:(a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;(c) The certificate must furnish the particulars of the device involved in the production of that record;(d) The certificate must deal with the applicable conditions mentioned under Section 65 B (2) of the Evidence Act; and(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.23. There is no compliance of Section 65 B (4) of the Evidence Act as above and, therefore, this circumstance has not been proved by the prosecution.24. As far as the injuries on the person of the appellant is concerned, the relevant evidence is found in the testimonies of PW 6 Vinay Miniz, PW 12 Harankumar Das, PW 19 Dr. Oscar Lourence and PW 42 Bishamber Singh. PW 12 Harankumar Das, PW 6 Vinay Miniz and PW 12 Bishamber Singh are the employees of Cipla Company.25. According to Vinay Miniz PW 6, the appellant had offered him job in Cipla Company. On 18.1.2011 when he joined the duties in the second shift, the appellant as a Supervisor put him inside the Company at about 2.45 p.m. He did not notice anything on his hands, however, while leaving the Company at 11.00 p.m. When he met the appellant and noticed bandage on his right hand thumb. Similarly, PW 12 also testified that he noticed bandage on right thumb of the appellant on 18.1.2011 at 10.30 p.m. when Harankumar Das PW 12 asked the appellant as to what had happened upon which the appellant is said to have informed him that he had met with an accident. Merely because there was a bandage on the right hand thumb of the appellant noticed by these witnesses would not ifso facto mean that while assaulting the deceased he sustained injuries. It is significant to note that PW 19 Dr. Oxcar Lourence who examined the appellant on 20.1.2011 deposed that the appellant had a wound on his thumb. The injury certificate issued by the doctor is at Ex.63.When the doctor was cross-examined, he gave material admissions that the accused were examined by him in the casualty in the presence of policemen and that all of them were tied with ropes. The doctor further admits that he did not record the age and dimension in the injury certificate nor mentioned anything about the cause of injuries. He unequivocally admits that the injuries on the person of the appellant could have been caused due to a fall. He also admits that usually incised would is caused due to a knife, however, no incise wound was noticed on the person of the appellant. This totally negates the prosecution case and also the circumstance that the appellant had sustained injuries while eliminating the deceased at the relevant time with a knife.26. We are unable to concur with the finding of the learned Sessions Judge that the circumstances, relied upon are individually proved and even assuming to be proved, are sufficient to return a finding of guilt of the appellant. The circumstances on the basis of which the learned trial Judge has returned his finding are not in consonance with the evidence on record. It, therefore, follows that the prosecution has failed to establish a complete chain of circumstances proving the complicity of the appellant in the murder of deceased Rupesh. As such, after having closely scrutinized the evidence on record, it is apparent that none of the aforesaid circumstances if taken together, would show that the appellant was involved in the crime. None of the circumstances are consistent and conclusive in nature since there are many fragments in the chain.

Decision:
1[ds]25. According to Vinay Miniz PW 6, the appellant had offered him job in Cipla Company. On 18.1.2011 when he joined the duties in the second shift, the appellant as a Supervisor put him inside the Company at about 2.45 p.m. He did not notice anything on his hands, however, while leaving the Company at 11.00 p.m. When he met the appellant and noticed bandage on his right hand thumb. Similarly, PW 12 also testified that he noticed bandage on right thumb of the appellant on 18.1.2011 at 10.30 p.m. when Harankumar Das PW 12 asked the appellant as to what had happened upon which the appellant is said to have informed him that he had met with an accident. Merely because there was a bandage on the right hand thumb of the appellant noticed by these witnesses would not ifso facto mean that while assaulting the deceased he sustained injuries. It is significant to note that PW 19 Dr. Oxcar Lourence who examined the appellant on 20.1.2011 deposed that the appellant had a wound on his thumb. The injury certificate issued by the doctor is at Ex.63.When the doctor washe gave material admissions that the accused were examined by him in the casualty in the presence of policemen and that all of them were tied with ropes. The doctor further admits that he did not record the age and dimension in the injury certificate nor mentioned anything about the cause of injuries. He unequivocally admits that the injuries on the person of the appellant could have been caused due to a fall. He also admits that usually incised would is caused due to a knife, however, no incise wound was noticed on the person of the appellant. This totally negates the prosecution case and also the circumstance that the appellant had sustained injuries while eliminating the deceased at the relevant time with a knife.26. We are unable to concur with the finding of the learned Sessions Judge that the circumstances, relied upon are individually proved and even assuming to be proved, are sufficient to return a finding of guilt of the appellant. The circumstances on the basis of which the learned trial Judge has returned his finding are not in consonance with the evidence on record. It, therefore, follows that the prosecution has failed to establish a complete chain of circumstances proving the complicity of the appellant in the murder of deceased Rupesh. As such, after having closely scrutinized the evidence on record, it is apparent that none of the aforesaid circumstances if taken together, would show that the appellant was involved in the crime. None of the circumstances are consistent and conclusive in nature since there are many fragments in the chain.