1 cria no.70 of 2009 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 70 OF 2009 State of Goa ... Appellant versus 1. Shri Manish Dhube, s/o Shivagar, 20 years., Occ. Pvt. Service, r/o 145/B/13 Chandpur Salori, Allahabad, Uttar Pradesh. 2. Amit Shukla, s/o Laltaprasad Shukla, 21 years, student, r/o 136/2-C Chandpur Salro, Allahabad, Uttar Pradesh ... Respondents Shri M. S. Joshi, Special Public Prosecutor for the Appellant. Shri S. G. Bhobe and Ms. N. Pimenta, Advocates for Respondent No.1. Shri Arun Bras De Sa and Shri S. Shet, Advocates for Respondent No.2. 2 cria no.70 of 2009 CORAM : A. P. LAVANDE & SMT. R. P. SONDURBALDOTA,JJ. DATE OF RESERVING THE JUDGMENT : 7TH SEPTEMBER, 2011. DATE OF PRONOUNCING THE JUDGMENT :28TH SEPTEMBER, 2011. JUDGMENT(Per R. P. SONDURBALDOTA, J.) This State appeal is directed against the Judgment and Order dated 17-11-2008 of the Sessions Court, South Goa, Margao acquitting the Respondents of the offence punishable under Section 302 r/w 34 I.P.C. The Respondents are alleged to have committed murder of Fr. Eusebio Ferrao, Parish Priest of St. Francis Xavier Church, Macazana on the night of 17/18-3-2006 between 23.00 hours to 06.30 hours in the residential premises of the Church. 2. Briefly stated the facts alleged by the prosecution are as follows: The deceased Father used to reside on the first floor of 3 cria no.70 of 2009 the Church. PW23/Sunil Rodrigues was working with him at the residence as well as in the Church. On 17-3-2006 the Father informed PW23 that there would be guests i.e. the Respondents for dinner. The Father had personally made purchases for the dinner. Respondent No.1 was an acquaintance of the deceased Father. On 17-3-2006, both the Respondents came to the Father's house at about 9.30 p.m. After arrival, Respondent No.2 had bath and was given a change of clothes by the Father. He then gave both the Respondents beer for drinking and he himself consumed whisky. All the four i.e. the Father, the Respondents and PW23 had dinner and around 11.00 p.m. the Father retired to his bedroom. PW23 also went to the storeroom for sleeping. The arrangements to sleep for the Respondents were made in the drawing room by placing mattresses on the floor. 3. Next morning i.e. on 18-3-2006 PW23 woke up at about 6.30 a.m. He found it strange that the Father had not woken him up, 4 cria no.70 of 2009 as usual, at 5.30 a.m. As he came out from the storeroom into the dining room he found that the door between the dining room and the drawing room was latched from outside. He also heard sounds of persons in the drawing room. When he knocked on the door somebody from the other side opened the latch. The persons gathered in the drawing room were looking for the Father. The Respondents were nowhere to be seen. It was also noticed that the door of the Father's bedroom was locked. The door was therefore broken open. It was found that the body of the Father was lying in the center of the bedroom, with a pillow on the face. The only clothing seen on the body was a white colour banian which was also pulled up near the neck. Somebody then put a bedsheet on the body of the Father. PW9/Timothy Vaz who had arrived at the Church at about 7.15 a.m. called up the Police on his mobile and informed them of the incident. PW27/H. V. Madkaikar, the Investigating Officer reached the Church at about 8.30 a.m. after recording the F.I.R. at 8.20 a.m. on the basis of the statement of PW6/Fr. James 5 cria no.70 of 2009 Torres. PW27 got the scene of the offence panchanama drawn in the presence of PW9 Vaz and another pancha. During the panchanama, a pair of blue colour rubber slippers, a broken plastic orange colour piece, light blue colour bedsheet and a personal diary of deceased Father was attached. He also got the inquest panchanama drawn with PW9 and another pancha. On removal of the pillow on the face of the Father it was noticed that a hand towel was stuffed into his mouth. There was a stab injury on the left side of the abdomen through which the intestine was seen protruding. There were also about 25 visible injuries seen on the body of the deceased. The Investigating Officer requisitioned the services of dog squad and put that into service. A finger print expert was called who picked up some chance prints from the spot. After completion of all the panchanamas the body was sent for post-mortem examination. 4. On the same day PW27 learnt from PW2/P. C. Dilip that during the night patrolling both the Respondents were found at 6 cria no.70 of 2009 Curtorim market junction at about 3.00 a.m. On inquiry made by PW2 the Respondents stated that they had gone to Macazana to meet their friend PW8/Tiwari and they were going to railway station to catch a train. Both gave their own mobile numbers as also the mobile number of PW8. They also furnished the details of their employment. PW2 then tried to call up PW8 on his mobile. However, it was not picked up. He then made a note of the Respondents and the information furnished by them in his diary and allowed both to leave. PW27 got the diary of PW2 attached under panchanama after verifying that PW2 was in fact on the night patrolling duty on the night between 17-3-2006 and 18-3-2006. He then recorded statements of both, PW8, the erstwhile employer of Respondent No.1 and PW10 his present employer Sharma. On the basis of the information received from them PW27 along with PW8 proceeded by air to Allahabad where the Respondents were to appear for some examination. PW25 and the other staff were to go to Allahabad by train. While PW27 was at 7 cria no.70 of 2009 Allahabad he learnt through a telephone call made by Respondent No.1 to PW8 that both the Respondents were at Nagpur. Therefore, PW25 was directed to proceed to Nagpur instead of Allahabad. 5. Accordingly, PW25 reached Nagpur on 21-3-2006. He was carrying a photograph of Respondent No.1. He was also provided with the address of the Respondents at Nagpur. He found both the Respondents in a tea stall close to the address. The Respondents were picked up from there and taken to their room where in the presence of PW18 and the second pancha arrest cum attachment panchanama was drawn. All the personal items of both the Respondents, the train tickets found with them and a long steel key with initials “PLAZA” printed on the grip and No.53 printed on the other side of the grip found with Respondent No.2 were attached. PW25 and the panchas noticed injuries on the fingers of both the Respondents. PW25 then brought both the Respondents to Goa by air. 8 cria no.70 of 2009 6. At Goa another formal arrest panchanama was drawn, finger prints of both the Respondents were taken and they were sent for medical examination by PW22/Dr. Sapeco. While at Maina Curtorim Police Station, Respondent No.1 volunteered to disclose the place where the knife used in the assault was thrown. The disclosure statement of Respondent No.1 was recorded in the presence of PW16 and another pancha. Respondent No.1 directed PW25 and the panchas to a place on the back side of Macazana Church at a distance of around 300 metres from it. Respondent No.1 went into the bushes near electric pole No.S 79 and removed one knife having broken plastic handle of orange colour. The knife was then packed and sealed under panchanama. 7. On 19-3-2006 supplementary statement of PW23 had been recorded in which he revealed that the Father used to sexually abuse him and that he had not disclosed this fact to anybody. He also stated that Respondent No.1 had visited the Father two to three 9 cria no.70 of 2009 times prior to the date of the incident. The statement of PW20/Sachin also referred to the sexual exploits of the Father. Therefore, the Respondents along with PW20, PW23 and one Pravin were again medically examined by PW19 who had conducted post-mortem examination of the deceased. 8. During the course of investigation, PW27 drew panchanama of the door to the Father's bedroom which was broken open, got test identification parade conducted on 29-3-2006 through PW21, collected reports from the Chemical Analyser as also the post-mortem report, recorded statements of various witnesses, attached leave application of Respondent No.1 and on completion of the investigation, filed charge-sheet against the Respondents. 9. The Respondents had pleaded not guilty to the charge. The defence of the Respondents as disclosed in the cross- examination of the witnesses as also the statement under Section 10 cria no.70 of 2009 313 Cr.P.C. shows that Respondent No.1 was acquainted with the Father and both the Respondents had visited the Father on 17-3-2006. They however claimed that they had met the deceased Father in the afternoon. Further details of the defence disclosed in the statement under Section 313 Cr.P.C. are that on 17-3-2006 both had gone to Macazana Church to meet the Father between 2.00 p.m. to 3.00 p.m. They had told the Father that they were going to their native place to answer some examination. The Father then served them with beer and cold drinks. They left the Macazana Church at 3.00 p.m. and went for shopping. Then both went to the Office of PW8. They had dinner with PW8 in one hotel and left the hotel at about 9.00 p.m. They told PW8 that they were going to the railway station and then they would be catching the train leaving at 4.00 a.m. As there was no place to keep their luggage they had kept the same at the cloak room at the railway station. Both then Bombay by 4.00 a.m. train. On reaching Bombay while removing their luggage from underneath the seats in the train they suffered injuries to their fingers. In Bombay they stayed with one of their friends for a night 11 cria no.70 of 2009 and on the next day they left for Nagpur by train. At Nagpur they went to the place of the brother of Respondent No.2. Both the Respondents were supposed to go to Allahabad by bus on 21-3-2006 but at around 9.00 a.m. on that day while they were having tea in a restaurant PW25 arrested them. The Respondents allege in their statement under Section 313 Cr.P.C. that PW25 had brought one bag with him containing one T shirt with stains and one key. He put the T shirt and key in the bag of Respondent No.2. On reaching Goa both were taken to Harbour Police Station. On 22-3-2006, PW25 took Respondent No.1 to Macazana Church, picked up one knife on the dining table in the apartment of the Father and brought him back to Harbour Police Station. Thereafter, PW25 had brought PW23 thrice at Harbour Police Station to show the Respondents to him. Respondent No.2 claimed that he had come to Goa for the first time and had met the deceased Father for the first time when he visited him along with Respondent No.1. He further alleged that while at Nagpur PW25 had taken his wallet and placed one key in it. He also mixed up a white colour stained T shirt 12 cria no.70 of 2009 and blue colour short pant amongst his clothes in the bag and brought the bag to Goa. 10. The Sessions Court on appreciation of evidence disbelieved the prosecution case and found that the prosecution has failed to establish that the Respondents with their common intention had committed murder of the father. It noted that several links in the chain of circumstances relied upon by the prosecution were missing and acquitted the Respondents. 11. The entire case of the prosecution is seen to rest upon circumstantial evidence. Therefore, it would be convenient to set out at this stage itself, the principles laid down by the Supreme Court of appreciation of circumstantial evidence. The Supreme Court has stated that the Courts must adopt a cautious approach while appreciating circumstantial evidence. It must ensure and satisfy itself that all the links in the chain of circumstances are complete, pointing to the guilt of the accused and accused alone. 13 cria no.70 of 2009 The evidence must be such that every hypothesis of innocence of the accused is negatived. The circumstances relied upon must be fully established. And while evaluating the circumstantial evidence if any evidence is reasonably capable of two inferences, the one in favour of the accused must be accepted. Mr. Bhobe submits that the extent of caution to be exercised by the Court in appreciating circumstantial evidence has been described by the Supreme Court in its decision in Hanumant Govind Nargundkar and another v. State of M.P. reported in AIR 1952 SC 343. The observations relied upon by him read as follows:- “In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge,(1838) 2 Lewin 227) where he said: “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take 14 cria no.70 of 2009 for granted some fact consistent with its previous theories and necessary to render them complete.” 12. The circumstances relied upon by the prosecution in this case to establish guilt of the Respondents can be enumerated as below: - (1) Death of the Father was homicidal, (2) The Respondents were last seen together with the Father, (3) Both the Respondents were seen at about 3.30 a.m. at a place closer to Macazana Church. (4) The conduct of the Respondents soon after the incident was unusual. (5) There were injuries on the fingers of the Respondents. (6) The key of the lock to Father's room was recovered from Respondent No.2. (7) The weapon of assault i.e. the knife was discovered at the instance of Respondent No.1, and (8) motive. 15 cria no.70 of 2009 All these circumstances will have to be carefully looked into one by one on the touchstone of the principles mentioned above to bring home the guilt of the Respondents. 13. There is no dispute that the Father met with homicidal death. Even then it would be necessary, in the facts of the present case, to take note of the injuries found on the body of the Father and the cause of death opined by the medical expert in order to properly appreciate other circumstances alleged by the prosecution. There were in all 41 injuries found on the body of the Father. Injury No.1 was a bruise, injuries nos.2 to 17 and 38 to 41 were abrasions and injuries no.18 to 37 incised wounds. PW19 has opined that Injury No.1 is caused by a blunt object. Injuries No.2 to 7 are caused by finger nail mark and injuries no.8 to 13 are caused by a blunt object. All the above injuries were ante mortem. Injuries no.14 to 17 are caused by blunt object and are ante mortem. Injury No.18 is caused by sharp, pointed, penetrating cutting weapon and is post mortem. 16 cria no.70 of 2009 Injuries No.19 to 22 are caused by sharp cutting weapon and are post mortem. Injuries No.23 to 34 are caused by sharp cutting weapon and are post mortem injuries. Injuries No.35 to 41 are caused by sharp cutting weapon and are post mortem injuries. The Doctor has further stated that Injuries no.1 to 4, injuries to buccal surfaces of both the cheeks on page 5 and mucosal surface bruises to upper and lower lip are due to smothering. Injuries no.5 to 7 are due to manual strangulation. As regards the cause of death of the Father according to PW19 the same is due to “violent asphysia as a result of combined effect of manual strangulation and smothering which is ante mortem and fresh at the time of death and necessarily fatal in the person with post-mortem incised penetrating wound and multiple post-mortem incised injuries”. 14. The circumstance heavily relied upon by the prosecution is that of the Father being last seen with the Respondents. Shri Joshi, the learned Special Public Prosecutor submits that there is sufficient evidence produced by the 17 cria no.70 of 2009 prosecution to establish beyond reasonable doubt that deceased Father was last seen in the company of the Respondents and since the death of the Father has taken place, as per the evidence of the medical expert, within 24 hours from the time of post mortem i.e. 4.50 p.m. on 18-3-2006 the Respondents alone could have committed the murder of the Father. According to him, there is no possibility of any person other than the Respondents having committed the murder. He further submits that the circumstance of the Respondents being accosted by PW2 at the odd time of 3.00 a.m., not far away from the Church of Macazana, must also be considered along with the circumstance of being last seen together. According to Shri Joshi the explanation offered by the Respondents in their statement under Section 313 Cr.P.C. regarding their presence at the house of the Father and also in the Curtorim market is not just not satisfactory but also falsified by the evidence on record. 18 cria no.70 of 2009 15. Mr. Bhobe, the learned Counsel for Respondent No.1 and Shri Arun Bras De Sa, the learned Counsel for Respondent No.2 submit, on the other hand, that the evidence on record establishes that PW23 was also with the Father until 11.00 p.m. and, therefore, the needle of suspicion is drawn to him also. Shri Bhobe argues that unless the prosecution gives satisfactory explanation of every circumstance appearing on record against PW23, it cannot be said that the Respondents were responsible for the murder. His further submission is that the circumstance of last seen together does not by itself necessarily lead to the inference that it is the Respondents who had committed the crime. In this connection, he relies upon a decision of the Division Bench of this Court in the case of Satish Hirudkar and another v. State of Maharashtra reported in 2009 ALL MR(Cri) 1986. 16. The evidence relevant for this circumstance is of PW23, PW2 and PW8. PW23 stated that on 17-3-2006 at about 5.30 p.m. the Father told him that he was going to have two friends 19 cria no.70 of 2009 from U.P. for dinner and asked him to cook more food. The Father then personally went to market to purchase eggs, vegetables and grocery. He had also mentioned that the friends had visited him during the afternoon. According to PW23, the Respondents arrived at about 9.45 p.m. They sat in the drawing room/TV room. They were speaking to the Father in Hindi and English. Respondent No.2 had his bath and the Father gave him a set of clothes. The Father then served both with beer. At about 10.00 p.m., all the four sat down for dinner. Then at about 11.00 p.m. the Respondents went to the drawing room for sleeping, where the arrangement of mattresses had been made for them. The Father went to his room and PW23 went to sleep in the storeroom. It is the evidence of PW23 that normally Father used to wake him up at 5.30 a.m. to ring the bell. However, on 18-3-2006 he did not wake up PW23. He got up at 6.20 a.m. and heard people talking in the TV room. When he came to the dining room he found that the door of the dining room was latched from outside. He knocked at the door and it was opened by the people in the TV room. PW23 noticed that the Respondents 20 cria no.70 of 2009 were nowhere to be seen. He informed the people that two friends of the Father had come from U.P. and they were sleeping in the TV room. The people found that Father's room was locked. They therefore broke the door of Father's bedroom and found his body lying inside. Strangely there is no cross-examination of PW23 on the events deposed by him till 6.20 a.m. on 18-3-2006. It has not even been suggested to him that the Respondents had visited the Father only in the afternoon between 2.00 p.m. and not at night as stated by him. There is also no categorical assertion made in the statement under Section 313 Cr.P.C. of both the Respondents that they had not visited the Father at about 9.45 p.m. or had food with him. The claim made by the Respondents in their Statement under Section 313 Cr. P.C. that they had food with PW8 is falsified by the evidence of PW8. He deposed that on 17-3-2006 the Respondents had visited him in his Office at around 7.30 p.m. to 8.00 p.m. Both had informed him that they were going to the native place for appearing for some exams. They had only tea with him and left. This evidence of PW8 has withstood the cross-examination on 21 cria no.70 of 2009 behalf of the Respondents. PW2, the Police Constable at night patrolling duty on 17-3-2006 stated that on the night of 17-3-2006 at about 2.45 hours he along with P. C. Santan Dias left for night patrolling duty on a motorcycle. When they were in Curtorim market area around 3.00 a.m. on 18-3-2006 they found the Respondents walking on the road coming from Macazana side. PW2 and the Constable accompanying him stopped both the Respondents to make inquiries. Both the Respondents disclosed their names and stated that they had gone to their friend's place at Macazana and were proceeding to the railway station to catch the early morning train. They had left their baggages in the cloak room at the station. The Respondents disclosed the name of their friend and also furnished his mobile number. PW2 then had tried to call up the number given by the Respondents which was of PW8 but the phone was not picked up. PW8 admitted in his evidence that he had noted a missed call made early in the morning. Thus the evidence of PW2 is not only unshaken in cross-examination but is corroborated to an extent by PW8. The evidence of PW2 is further borne out by 22 cria no.70 of 2009 the entries made in the diary by him which was attached during investigation and produced in evidence before the trial Court. It is also not the case of the Respondents that there was any reason for any of the three witnesses to depose falsely against them. The evidence of PW23, PW2 and PW8, the question put to them in the cross-examination and the statement of the Respondents recorded under Section 313 Cr.P.C. establishes beyond reasonable doubt that the Respondents were present in the house of the Father until 11.00 p.m. on 17-3-2006 and were found by PW2 in the Curtorim market area at about 3.00 a.m. It is undisputed position that Curtorim market area is closer to Macazana. The Respondents have not disclosed where they were between 11.00 a.m. on 17-3-2006 and 3.00 a.m. on 18-3-2006. The diary of PW2 shows the notes made therein by PW2 about the information supplied by the Respondents. However, as has been rightly submitted by Shri Bhobe, this circumstance cannot by itself be conclusive of the guilt of the Respondents unless the possibility of any other person having committed the crime is completely ruled out. Undisputedly, PW23 23 cria no.70 of 2009 was