1 IN THE HIGH COURT OF BOMBAY AT GOA Criminal Appeal no.52 of 2009 Ramnath alias Sameer Verekar, Son of Sadanand Verekar, Aged 34 years, Resident of House No.F-132, Near Mahalaxmi Temple, Panaji-Goa. …. Appellant (presently in jail) V e r s u s State (through Panaji Police Station) ….. Respondent Mr. S.D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. Coram: A.P. Lavande & F.M. Reis, JJ. Reserved on : 11/3/2011. Pronounced on: 16 /9/2011. JUDGMENT: (Per A.P. Lavande, J). By this appeal, the appellant takes exception to 2 the judgment and order dated 2/6/2009 passed by the Additional Sessions Judge-I, Panaji in Sessions Case No.19/2006 convicting the appellant (hereinafter referred to as the accused) for the offence punishable under Section 302 I.P.C. and sentencing him to undergo life imprisonment and to pay fine of Rs.25,000/- and in default, to undergo two years rigorous imprisonment. The fine amount on being recovered has been ordered to be paid to Rashida Hussein, the wife of the deceased. 2. Briefly, the facts leading to filing of the present appeal are as under: On 5/6/2006 at about 13.35 hours telephonic information was received at Panaji Police Station that there was an incident of assault near Mahalaxmi Temple, Boca de Vaca Panaji. Accordingly, P.I., M.K. Gaonkar, P.S.I. S.S. Narvenkar and the staff rushed to the spot. At the spot which was near Vatsal Bhavan near Mahalaxmi 3 temple, Panaji they noticed Gulzar Hussein Laxmidhar lying in front of a building next to his residence in a pool of blood with injuries on his head and leg. He was immediately shifted at GMC Bambolim for treatment. The injured was found medically unfit for recording his statement and he expired on the same day at 3.35 p.m.. Idrish Gulzar Laxmidhar, PW 21, the son of the deceased lodged F.I.R against the accused vide Crime No.140/2006 for the offence punishable under Section 302 of I.P.C.. The scene of offence Panchanama and Inquest Panchanama were conducted. Post Mortem was also conducted on the dead body of the deceased and his clothes were also attached and sealed. The investigation revealed that the accused and deceased stayed in the same locality and the accused was friendly with Farhana, the daughter of the victim when she was going to school. On 25/11/2003, the accused registered his marriage with Farhana at Civil Registration office Tiswadi without the knowledge of 4 parents of Farhana. Subsequently, Farhana started ignoring and avoiding the accused on account of which the accused started harassing Farhana and her family members. During this time, Farhana consented to get married to a boy in Mumbai. The accused realized Farhana's intention and he started threatening Farhana and her family members of causing physical injuries. Pursuant to the report filed by Farhana's family members, a chapter case was registered against accused. It is the case of the prosecution that as Farhana and her parents were not responding to the attempts made by the accused to get Farhana as his legally wedded wife, the accused with premeditation assaulted Gulzar on 5/6/2006 with a base ball bat near his house when he was returning home for lunch, causing grievous injuries on his head and left leg leading to his death. It is further the case of the prosecution that the accused ran away from the spot and went to Arabo, Pernem on motorcycle bearing no.GA- 5 07-B-3110. The accused was arrested on the same day at 23.00 hours at Arabo, Pernem from the house of his sister. The clothes worn by the accused at the time of commission of the crime were attached and sealed under panchanama. The motorcycle was also attached. The base ball bat used by the accused in commission of the offence was discovered at the instance of the accused and the same was attached and sealed. After completion of the investigation, charge-sheet was filed against the accused for offences punishable under sections 302 and 201 of I.P.C. The case being exclusively triable by the Court of Sessions, was committed to the Sessions Court which was made over to the Court of Additional Sessions Judge-I, Panaji, which was registered as Sessions Case no.19 /2006. In Sessions case no.19/2006, the accused was charged for offence punishable under sections 302 and 201, I.P.C. In support of its case, the prosecution examined 32 witnesses and produced several documents. 6 The statement of the accused under Section 313, Cr. P.C was recorded. The defence of the accused was of bare denial and false implantation. The accused also took up a defence that he was not present at the scene of offence at the relevant time and that he was at Arabo Pernem. In support of his case, the accused examined one defence witness Nikhil Naik as DW.1, who also produced documents. The learned Additional Sessions Judge upon appreciation of the evidence, oral and documentary, held that the offence under Section 302 of I.P.C. was proved against the accused but the offence under Section 201 of I.P.C was not proved and consequently convicted and sentenced the accused as above. 3. Mr. Lotlikar, leaned Senior Counsel appearing on behalf of the accused submitted that the circumstantial evidence led by the prosecution is not sufficient to bring home the guilt of the accused. According to the learned 7 counsel, the evidence led by the prosecution at the most raises suspicion against the accused, but suspicion however strong, by itself is not sufficient to hold the accused guilty. According to the learned counsel, the reliance placed by the Trial Judge on the evidence of the witnesses examined by the prosecution is wholly unreliable. According to the learned counsel, the prosecution witnesses particularly the version of Idrish, PW.21 and Farhana, PW.28 who claim to have seen the accused near the deceased at the time of the incident is wholly unreliable in as much as these witnesses could not have seen the accused near the dead body having regard to the location of the flat from which they claim to have seen the accused. According to the learned counsel, the evidence of Sidhart Redkar, PW.10 and Yogesh Naik, PW.11 who the prosecution claims to be the friends of the accused is wholly unreliable and having regard to the delay in recording their statements, it is evident that they 8 are planted witnesses. Learned counsel further submitted that the version of Yogesh Naik, PW.11 that he received telephone calls from the accused is not corroborated in as much as the prosecution had not deliberately taken steps to get from the telephone company the details of the telephone calls made by the accused at about 1.30 p.m. on 5/6/2006. According to the learned counsel,the extra judicial confessions alleged to have been made by the accused are also unbelievable and as such no reliance could have been placed on the alleged extra judicial confessions alleged to have been made by the accused. According to learned counsel, presence of the accused at the time of the alleged commission of the offence has not been established and a deliberate attempt has been made by the investigating agency to establish that the accused was seen running away from the spot after the alleged assault on the accused. According to the learned counsel, the evidence of the two witnesses Jyotendra Shah, PW4, 9 Milind Ramani, PW6 is quite natural and the same clearly belies the version of family members of the deceased. Learned counsel further submitted that the prosecution has chosen not to examine Amlani, the owner of the flat in which the informant claims to have been present at the time of commission of the offence. According to the learned counsel, the prosecution case that the accused had given a call to PW.11 is un-reliable in as much as PW.11 is a planted witness. Learned counsel further submitted that the alleged discovery of the weapon at the instance of the accused cannot be accepted and the same is fabricated in as much as the panchas are related to deceased and the prosecution has not disclosed as to in what manner the panchas for the recovery were procured. According to the learned counsel, the panchanama in respect of the discovery of the weapon has been fabricated to falsely implicate the accused and having regard to the fact that the pancha had not deposed regarding the statement made by 10 the accused, the entire discovery becomes suspicious and unreliable. Learned counsel further submitted that the alleged discovery was from the open space and having regard to the fact that the pancha was not knowing the language in which the statement was allegedly made by the accused, the alleged discovery relied upon by the prosecution cannot be believed. According to the learned counsel, the evidence of the doctor also does not advance the case of the prosecution in as much as the weapon was shown to him for the first time in the Court and not during the course of investigation. Learned counsel further submitted that the prosecution did not seek any report in respect of the hair found on the weapon which was seized and the C.A. Report also discloses that the blood group found on the weapon could not be ascertained. Learned counsel further submitted that merely because the relations between the accused and the deceased and his family were strained, this by itself would not be sufficient to hold the 11 accused guilty of the charge of murder in the absence of any cogent evidence having been led by the prosecution in support of the charge. Learned counsel further submitted that the prosecution has suppressed material documents, more particularly the statement of calls from Idea Celluar Company. According to the learned counsel the delay in lodging the F.I.R certainly creates doubt in the prosecution case and supports the case of the accused that he has been falsely implicated on account of the fact that he had got married with the daughter of the deceased and the deceased and his family members opposed the marriage. According to the learned counsel, the delay in recording the statements of the two witnesses under Section 164, Cr.P.C. viz. PW.10 and PW.11 is fatal to the prosecution case and creates doubt about the versions of these two witnesses. Learned counsel further submitted that group of the blood present on the pant of the accused has not 12 been identified and as such, mere presence of the blood does not establish the complicity of the accused in the commission of the crime. Learned counsel, therefore submitted that the accused is entitled to benefit of doubt and consequently deserves to be acquitted for the offence for which he has been convicted and sentenced by the learned Sessions Judge. 4. In support of his submissions, Mr. Lotlikar relied upon the following judgments: (i ) Sattatiya alias Satish Rajanna Kartalla Vs State of Maharashtra (2008) 3 SCC 210. (ii) Musheer Khan alias Badshah Khan and anr. Vs. State of Madhya Pradesh (2010) 2 SCC 748. (iii) Mani Vs. State of Tamil Nadu, 2008, AIR SCW 576. (iv) Jaswant Gir Vs. State of Punjab, (2005) 13 12 SCC 438. 5. Per contra, Mr. Ferreira, learned Public Prosecutor supported the impugned judgment and order and submitted that the circumstantial evidence led by the prosecution clearly proves the complicity of the accused in the commission of the murder of the deceased Shri Gulzar. Learned Public Prosecutor submitted that the prosecution has been able to establish strong motive on the part of the accused and the strained relations between the accused and deceased on account of opposition of the deceased and his family members to the marriage of the accused with the daughter of the deceased. According to the learned Public Prosecutor, the findings recorded by the learned Sessions Judge for convicting the accused cannot be faulted since they are borne out from the evidence on record. Mr. Ferreira further submitted that the evidence of the informant, his sister and mother is natural and as such,inspires confidence. Learned Public Prosecutor 14 further submitted that the evidence of Mr. J. Shah, PW.4 and Milind Ramani, PW.6 does not efface the evidence of the informant, Idrish Laxmidhar,PW.21, Farhana Laxmidhar, PW.28 and Rashida Hussein,PW.15. Learned Public Prosecutor further submitted that the accused has taken a false defence that he was not at Panaji in the morning of 5/6/2006, which is clearly belied by the telephone calls statement produced by the prosecution which establishes that the accused had made calls from Panaji till 10.19 a.m. on 5/6/2006. According to the learned Public Prosecutor, the prosecution has been able to establish discovery of the weapon at the instance of the accused and the same cannot be said to be unreliable. According to the learned Public Prosecutor, non- examination of Amlani, the owner of the flat in which the informant was present at the time of commission of the crime, cannot be said to be fatal. He further submitted that considering the fact that the deceased was in hospital, 15 there was no delay in lodging the F.I.R by son of the deceased and the delay of few hours in lodging the F.I.R is quite natural, considering the factual situation at the relevant time. According to the Public Prosecutor, the evidence led by the prosecution proves beyond reasonable doubt the complicity of the accused in commission of the murder of the deceased and therefore no interference is warranted with impugned judgment and order. 6. In support of his submissions, Mr. Ferreira placed reliance upon the following judgments: i) State of Rajasthan Vs. Teja Ram and Ors. AIR (99) SCC 1776 ii) Sucha Singh and anr. Vs. State of Punjab (2003) 7 SCC 643. iii) State of Orissa Vs. Dibakar Naik and ors., 2002 (5) SCC 323. iv) State of H.P. Vs. Lekh Raj and anr 2000 (1)SCC 247. v) Sukhar Vs. State of U.P., (1999) 9 SCC 507. 16 vi) Sitaram Marandi Vs. State of Jharkand, 2011 CRI L.J. 147. 7. We have carefully considered the rival submissions, perused the record and the judgments relied upon by both sides. 8. In order to prove the complicity of the accused in the commission of the murder of the deceased Gulzar, the prosecution has relied upon the following circumstances: i) The motive. ii) The presence of the accused at the scene of offence just before and after the incident. iii) Conduct of the accused i.e. running towards Altinho slope with a weapon in his hand. iv)The discovery of the weapon at the 17 instance of the accused. v) The extra judicial confessions made by the accused. vi) The attachment of the blood stained jeans pant from the accused. vii) The death of the deceased was homicidal. viii) False plea taken by the accused. ix) Spot panchanama, Arrest panchanama, Inquest panchanama, C. A. Report.etc.. 9. In so far as the first circumstance i.e. motive is concerned, the prosecution primarily relied upon the evidence of the three witnesses namely, Idrish Laxmidhar PW.21, Rashida Hussein,PW.15 and Farhana Gulzar, PW.28. The evidence of Idrish PW.21 discloses that on 9.5.2006, in the evening the accused threatened his mother when she was returning home saying that if his sister did not come home, the accused would kill his father. He 18 further deposed that Farhana had filed a suit for annulment of marriage in the Court at Panaji and the accused had sent him one s.m.s on his mobile. The said message was to the effect that “ 20/5/2006 is your birthday and 25th last day anything can happen and all this blame come on you don't blame me. All in your hand we can make our love successful or you will lose your own who you love the most. Your promise.” He produced report (Exhibit 56) dated 9/5/2006 and deposed that it was filed at Panaji police station by late Gulzar on 10.5.2006. He further deposed that in respect a s.m.s received on 19/3/2006 threatening them to kill, they did not take it seriously. He further deposed that on 22/5/2006 when his father was returning home in the evening the accused saw his father and said to him that he would surely kill his father if his sister is not allowed to join him. These threats were given to his father below their house. On hearing his shouts, he and sister came out of their house on the first floor into the 19 gallery and on seeing his sister the accused got more angry and removed a tube light and hit the same on his forehead and threatened in a loud voice that he would kill Gulzar. He further deposed that the accused gave ultimatum to Farhana that she had to return to him or he would kill his father. 10. Farhana Gulzar, PW.28 in her deposition corroborated the version of her brother Idrish and produced the report dated 22/5/2006 lodged at Panaji Police Station in respect of the above incident which was marked as Exhibit 77. The evidence of both these witnesses in so far as incident of 22/5/2006 is concerned, is corroborated by the report dated 22/5/2006 which is a contemporaneous document. 11. Rashida Hussein, PW.15, the mother of Farhana, deposed that in May 2006 when the accused 20 came near their house and asked her to bring her daughter and if she did not come, the accused threatened her that he would kill her husband. She further deposed about threats given by the accused on 22/5/2006 when she was outside her residence with her husband, son and daughter. She deposed that the accused came there with a tube light in his hand and broke the same on his forehead and again threatened them to decide within seven days. 12. The evidence of the above three witnesses also stands corroborated by the evidence of P.I. Mahesh Gaonkar,PW32 and of P.S.I. Brandon D'Souza PW.30 who had registered report dated 9/5/2006, (Exhibit 56) lodged by Gulzar. The evidence of Brandon D'Souza further discloses that pursuant to the report he had registered N.C case no.315/06 under Section 504 I.P.C on 30/5/2006 against the accused as per Exhibit 85 and he had forwarded the case to the Court of Sub-Divisional 21 Magistrate for taking action under section 107, Cr.P.C against the accused. 13. The evidence of the above witnesses which has not been shaken on the material aspects in the cross examination clearly proves that the accused agitated that the deceased and his family members were not ready to send Farhana to him, although he civilly married her in the year 2003. 14. It is well settled that in a case based on circumstantial evidence, motive plays an important role. but mere proof of motive would not be a ground to hold the accused guilty and enmity is a double edged weapon. 15. We shall now proceed to find out whether the prosecution has been able to establish the second and third circumstance for which the prosecution has examined 22 several witnesses whose evidence is overlapping. 16. Idrish, PW.21 who lodged the First Information Report deposed that on 5/6/2006, at around 1.30p.m., when he was studying in the room of their neighbour one D.V. Amlani, whose flat is on the same floor as their flat, he heard a shout from the accused saying “Farhana bahir yo, Tujea Bapaik hanvem marlo”. He got up and went to the gallery of the room where he was studying and when he looked down, he saw his father lying on the ground badly hurt and in a bleeding condition. He deposed that he saw the accused running away towards Altinho slope and carrying a fat danda in his hand and that his sister had also come in their gallery. He further deposed that he was in a state of shock and told his sister that their father was lying on the ground on the road side and the accused had hit him and on hearing his sister shouting, their mother came out of the house and they rushed down to the place where their 23 father was lying on the road side. He further deposed that he saw that his father was badly inured. Thereafter, the police were called and they shifted his father to Goa Medical College hospital,where he expired on the same date. He lodged the report Exhibit 57 on the same date. He identified the base ball bat, M.O.10 as the danda which was seen in the hand of the accused. He further deposed that the accused was wearing a T-shirt and a bluish jeans pant when he was running away, but he was not able to identify the said clothes. In cross examination, he admitted that he had not stated in his complaint that around 1.30p.m.on 5/6/2006 he was sitting and studying in the room of the flat of Amlani. He deposed that he was always using the said room of Amlani from around 2002 when he was in Xth Std. In cross examination he stated that he had seen the accused leaving the place holding a fat danda in his hand. He further stated that since his father had died and he was in a state of shock, he might 24 not have mentioned every detail. He further deposed that when he came out of the flat of Amlani and had seen the accused running, at that time he had noticed his father fallen on the ground but he had not noticed anyone near the spot. He deposed that when he had gone down, he had seen Jyotendra Shah , PW4 near his father and later wife of PW4 came there with ice. He also deposed that he had seen one Milind Ramani, PW.6 where his father was lying and there were some neighbours around but he had not paid any attention to them. He deposed that his mother had gone down first, followed by his sister and him and the police had reached there in 10 to 15 minutes. He further deposed that he had not given the size and colour of the danda which he had seen with the accused in his report Exhibit 57 or in his subsequent statements under Exhibits 58 and 59. He further despised that the danda was never shown to him by the Investigating Officer. 25 17. Farhana, PW.28 deposed that on 5/6/2006 she and her mother were in the house and her brother was studying in the adjacent room of Mr. Amlani. At around 1.30p.m., when she was in the house, she heard a loud shout from the accused saying that “Farhana bair yo Tujea Bapaik hanvem marlo”, and at that time she came in the balcony and saw the accused running towards Altinho slope holding one fat danda in his hand. Her brother Idrish who was also in the balcony was shocked and shivering and told her that the accused had assaulted their father who was lying besides the house on the ground in a bleeding condition. In cross-examination she deposed that on going up the staircase and coming to the common balcony outside and facing the entrance door of her flat, on the left side of the balcony is the entry door of the flat of Amlani and this common balcony faces the tar road going from the Sai Baba temple to Altinho. She further deposed that the 26 flat of Amlani also has a balcony towards the west and facing Pioneer building and this balcony can be entered only from the flat of Amlani. 18 Rashida Hussein, PW.15 deposed that on hearing the screams of her son, Idrish, PW.21 she went down and saw her husband lying in a pool of blood and her son told her that Sameer had assaulted her husband and had run away. 19. Jyotendra Shah, PW4 who was residing on the ground floor of Vatsal Bhavan i.e. the same building in which the informant and her family members were residing in one of the two flats on