IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.6/2000 State (through P.P.) .... Appellant. V/s. 1) Satish Narayan Sawant, 2) Mohan Narayan Sawant, 3) Smt. Yeshoda Narayan Sawant, All resident of Banastari, Goa. .... Respondents/ Accused. Mr.V.P. Thali, Addl. Advocate General with Ms. S. Linhares, Addl. Govt. Advocate for the State. Mr. S.D. Lotlikar, Sr. Advocate with Mr. A.D. Bhobe, Advocate for the respondents/accused. CORAM CORAM CORAM : V.C. DAGA & : V.C. DAGA & : V.C. DAGA & P.V. P.V. P.V. HARDAS, JJ. HARDAS, JJ. HARDAS, JJ. DATE OF RESERVING THE JUDGMENT : JUNE 11, 2002. DATE OF PRONOUNCING THE JUDGMENT: JULY 1, 2002. J U D G M E N T : (Per HARDAS, J). The State being aggrieved by the acquittal of respondents No.1, 2 and 3 for the offences punishable under Sections 302, 323, 143, 147 and 149 of the Indian Penal Code, by the Addl. Sessions Judge, Panaji by Judgment dated 4.8.1998 in Sessions Case No.55/1988, has filed the present appeal challenging the acquittal of the said respondents. On 19.4.1988, Pw.21, who was attached to the Ponda Police Station as P.S.I., received a phone call at about 22.45 hours from P.S.I. K.K. Dessai of - 2 - the Panaji Police Station that person named Rauji Dulba Sawant had been brought in a police jeep by police constable Jaisingrao Rane and while he was being taken to the Goa Medical College, he expired. On receiving this message, Pw.21, P.S.I. Joaquim Dias along with A.S.I. Tabit Mamlekar, went to the scene of offence. Pw.21, PSI Joaquim Dias, reached the scene of offence at 11.30 p.m. and with the help of torch light, surveyed the scene of offence. He deputed constables on the front and rear doors and gave a call to the inmates of the house. But no one responded to the said call. In front of the house, he noticed some blood stains in the courtyard and noticed a pipe of length of about 1 foot or slightly less lying in the courtyard. The said pipe had blood stains. Pw.21, PSI Dias gave instructions to his subordinates not to allow anyone to disturb or touch the articles. He also noticed that there were blood stains on the wall in the verandah, as well as blood stains on the floor. He noticed a brass chain lying on the floor in the verandah. After some time, Dy. S.P. Shri Raikar and P.I. Shri Alan D’Sa reached the spot at about 1.30 a.m. Thereafter, Pw.21, along with P.I. D’Sa gave a call to the inmates of the house to open the door and on hearing their call, one lady opened the door. On entering, Pw.21, PSI, J. Dias found a lock of hair lying on the ground and he also noticed a brass lamp. The flooring of the room was of cowdung and he found floor to be in a disturbed state. He noticed that on the dinning table - 3 - there were two plates, containing some rice and the rice had been partly eaten. A pair of shoes was found on the dining table and a kerosene lamp was burning on the dining table. In the kitchen, Pw.21 noticed that rice had fallen and spread on the floor. Electric fuses were removed and were kept on the window sill. Pw.21 inquired with the lady who had opened the door and learnt that her name was ‘Yeshoda’ (respondent No.3). He also found that there were two girls by name Sarita and Sharmila in the house. In the meantime, Pw.2 Ashok and Pw.1, Baby who are the brother and sister of the deceased and Pw.8, Kunda who is widow of the deceased, returned to the house. He made some inquiries with the said persons and brought them along with Yeshoda and her two daughters, namely Sarita and Sharmila to the Police Station. Respondents No.1 and 2 were not found in the house and, therefore, Dy. S.P. Shri Raikar and P.I. Shri Alan D’Sa went in search of respondents No.1 and 2. Pw.12, ASI Tabit Mamlekar along with some police constables were asked to stay at the scene of offence. Pw.18, Laxmi and Pw.2, Ashok were allowed to remain inside the house. At the police station, a complaint at Exhibit Pw.1/A of Pw.1, Baby was recorded. On the basis of the said complaint, offences against the respondents and two juvenile offenders, namely Sarita and Sharmila were registered. Yeshoda, respondent No.3 and Sarita and Sharmila were arrested. Clothes of Sarita and Sharmila came to be attached. - 4 - 2. On the next day, Pw.21, PSI, J. Dias recorded the scene of offence panchanama vide Exhibit Pw.3/A at about 9.30 a.m. in the presence of Pw.3, Dilip G. Gaunkar and one Deu Ramdu Kavlekar. Lock of human hair, broken brass lamp, chain of brass lamp, blood stained earth, black thread, a green colour iron pipe, were attached. The scene of offence panchanama concluded at about 10.30 a.m. Thereafter, Pw.21, PSI, Dias proceeded to the Goa Medical College were the post mortem on the dead body of the deceased Rauji was to be conducted. Pw.7, Dr. Purnanand Audi performed the post mortem on the dead body of the deceased. Pw.7, Dr. Audi noticed 16 injuries on the person of the deceased. Out of the 16 injuries, injury No.1 which was an incised penetrating stab wound of 4 x 1 cm. with depth of 12 cms. situated on the lower back of the chest on the right side on 11th inter-costal space was found to have penetrated through the right inter-costal space and penetrated through and through and the diaphragm on the right dome had cut and had entered into the abdominal cavity and had cut the liver. The other injuries which included two other incised wounds, one on the head and multiple bruises and abrasions were found to be superficial injuries. According to Pw.7, Dr.Audi, the death was due to haemorrhage and shock as a result of stab injury. Pw.7, Dr. Audi opined that the injury No.1 was sufficient to cause death in ordinary course of nature. The post-mortem report is at Exhibit Pw.7/A. - 5 - Pw.7 had also sent the blood of the deceased for groping and the blood group of the deceased was determined as A (Positive) vide Exhibit Pw.7/B. The report of the Chemical Analyser in respect of the examination of viscera of the deceased is at Exhibit Pw.7/C. 3. Pw.21, PSI, J. Dias had drawn the inquest panchanama in the presence of Pw.9, Manohar Chopdekar and one Naguesh Y. Lad and the inquest panchanama is at exhibit Pw.9/A. The underwear of the deceased which was stained with blood, came to be attached vide panchanama Exhibit Pw.6/B in the presence of Pw.6, Tulsidas T. Gaonkar and Gajanan Hari Kundaikar. At the instance of the juvenile accused Sharmila, the knife, article 8 came to be attached by disclosure panchanama under Section 27 of the Evidence Act vide Exhibit Pw.6/A in the presence of Pw.6, Tulsidas Gaonkar and Gajanan Kundaikar. The saree which was worn by respondent No.3, Yeshoda also came to be attached under a panchanama at the instance of the juvenile offender Sharmila. Similarly, the bush-shirt of respondent No.1 Satish also came to be attached at the instance of juvenile offender Sharmila. 4.On 21.4.1988, Pw.18, Laxmi, mother of the deceased produced a 11 inches long cement block like trunk of an elephant. The same was attached by Pw. 21 PSI, J. Dias vide Exhibit Pw.5/A in the presence of Gopinath Gawde and Anant Bhikaro Naik. On 22.4.1988, - 6 - statements of Pw.2, and Ashok Dulba Sawant, Pw.4, Eknath Naik were recorded. On 23.4.1988, statement of Parmeshwar L. Naik, and Pw.8, Kunda were recorded. On 28.4.1988, as the accused No.1, Satish and Accused No.2 Mohan had surrendered before Panaji Police, they were taken into custody. 5. The arrest panchanama of accused Nos.1 and 2 is at Exhibit Pw.10/A and was executed in the presence of Pw.10, Yeshwant G. Sawant and one Santosh N. Prabhu. Since the accused No.1 was found having an injury, he was referred for medical examination and was examined by Pw.14, Dr. B.N. Rana, who found the following injuries : (1) A wound of 1 inch x 3/4th inch, oval shape on left side of the back, covered with black scalp; (2) A wound of 1 inch x half an inch, oval in shape in the midline on back. The wound was almost healed which was covered with black scalp. Pw.14 found that the injuries were about 9 to 10 days old. The medical certificate of examination of respondents No.1 and 2 is at exhibit Pw.14/A. The blood groups of respondents No.1 and 2 were determined as A Positive and AB Positive, respectively, by Pw.16, Dr. Aleixo Martins vide Certificates at Exhibit Pw.16/A (colly). Pw.17, Ms. Nalini Madkaikar examined the blood of Yeshoda, respondent No.3 and determined her blood group to be B Negative vide Exhibit Pw.17/A. Meanwhile, Yeshoda, respondent No.3 was examined by Pw.15, Dr. Rajnand Dessai. She was found to have no external - 7 - injuries and the certificate of her examination is at Exhibit Pw.15/A. The sample of the scalp heir of the respondents was obtained and sent to the Forensic Science Laboratory. 6. Pw.21, P.S.I. J. Dias after completing the investigation filed the charge sheet against the present respondents on 3.2.1989. He had filed the charge sheet against two juvenile offenders, namely Sarita and Sharmila before the Juvenile Court in the month of February, 1989. Incidently, it may be stated here that from the facts emerging from the prosecution case, the two juvenile offenders, Sarita and Sharmila were acquitted of the offences with which they were charged. 7. The learned Addl. Sessions Judge to whom the case was committed, vide Exhibit 4, framed the charge against the present respondents for the offences punishable under Sections 302, 323, 143, 147 and 149 of the IPC. Respondents No.1, 2 and 3 claimed to be tried by denying their guilt. The prosecution, in support of its case, examined in all 21 witnesses which included Pw.1, Baby, Pw.2, Ashok, Pw.8, Kunda, Pw.18, Laxmi and Pw.4, Eknath as eye witnesses. The respondents in their statements under Section 313 Cr.P.C. have taken the following defence : "On 19.4.88 Raoji came home at about 6.30 p.m. and within 5 minutes left the house. At about - 8 - 8.30 p.m. Raoji came back and he was drunk. At this time, I was serving food to my sons namely A-1 and A-2. He removed his clothes and went to take bath in the underwear itself. He came inside the house after taking bath and while entering the house he put off the light. I uttered the following "Bebdea light paloili moren" and so saying I told my son that I will bring kerosene lamp and I was going to bring kerosene lamp. At this time Raoji caught hold of my hair. I was holding rice pot on which Raoji gave a kick as a result of which the rice pot fell on the floor and the cooked rice fell on the floor. My son Satish (A1) caught hold of Raoji. At this time Raoji pushed Satish. thereafter, he pulled Laman dio (hanging Oil Lamp) which was hanging and gave a blow with the said laman dio on the back of A-2 Mohan. Someone removed the fuse of the light and there was darkness in the house. My son Satish and Raoji fell on the floor. The members of the group of Raoji came on the spot. They dragged Raoji to the courtyard. One of the members of the group of Raoji stabbed Raoji thinking that they were stabbing Satish. One of the members of the group of Raoji stabbed Raoji thinking that they were stabbing Satish" - 9 - 8. The learned Addl. Sessions Judge, before whom the offences were tried, by Judgment dated 4.8.1998 acquitted the respondents on the ground principally that by virtue of the various contradictions and omissions, the version of the eye witnesses lost all its credibility. 9. During the trial, reliance was placed by the prosecution on the report of the Forensic Science Laboratory, which is at Exhibit Pw.21/A. Perusal of the said report shows that the blood stained earth, brass chain, iron pipe, underwear of the deceased, knife, article 8, saree worn by respondent No.3, Yeshoda, bush-shirt of respondent No.1, Satish and the frocks of the juvenile offenders, Sarita and Sharmila were stained with human blood. Out of them, the underwear of the deceased, the saree worn by respondent No.3, bush-shirt of respondent No.1 and one of the frocks, was stained with blood of A group. The knife article 8 was found to have stained with blood on the blade and handle. 10. The prosecution evidence begins with the examination of Pw.1, Baby, sister of the deceased Raoji. Respondents No.1 and 2 Satish and Mohan are the sons of one Narayan, brother of Baby and of the deceased. Juvenile offenders, Sarita and Sharmila are the sisters of respondents No.1 and 2. Respondent No.3, Yeshoda is the wife of said Narayan and mother of respondent No.1 - 10 - Satish and respondent No.2, Mohan. From the evidence of the prosecution witnesses, it emerges that the deceased Raoji and his brother Narayan were residing in one house, in Banastari. They used to share a common kitchen between them. Pw.1, Baby was residing in the same house with her brother, deceased Raoji. Pw.18, Laxmi, mother of the deceased, Pw.1 Baby and of said Narayan were also residing with the deceased, Raoji. The deceased Raoji was working as Driver in the firm "Mandovi Plastics". Two or three days before the Ganesh Festival, Raoji had informed Narayan that Raoji would install statue of Lord Ganesh in the house and accordingly, had purchased the same. Religious ceremony was performed by installing the statue of Lord Ganesh in the house. While it was being performed, respondent No.2, Mohan started uttering insults while standing in the kitchen. Raoji had invited respondent No.1, Satish to sit along with Rauji when the priest was performing the religious ceremony. Respondent No.3, Yeshoda told Satish, respondent No.1 not to do anything in the ceremony and insulted the family members of Raoji. There was some bickering on the next day when statue of Lord Ganesh was being immersed. The bickering was between respondent No.1, Satish and deceased Raoji. On the next day, Raoji is alleged to have complained to Narayan regarding bickering of Satish and from that day i.e. from 30.8.1987, the two families began to cook separately though in the same kitchen. It also appears from the prosecution witnesses that the relation between - 11 - the family members of Narayan and the family members of Raoji were strained on account of sharing of the electricity and water bills. 11. On 19.4.1988, the deceased Raoji returned from his duty at about 6.30 p.m. and thereafter, went to purchase some articles. On his return, he went to have his bath. After having his bath, he went and switched off the light in the room. As soon as the deceased switched off the light, respondent No.1, Satish came from the room and started abusing Raoji. There was a heated exchange of words in between Raoji and Satish and Satish switched on the light, which was again switched off by Raoji. Thereupon Satish, respondent No.1 went and removed the fuse of the said light. Respondent No.3, Yeshoda had then lit a kerosene lamp and had brought the same in the hall. In the hall there was already an oil lamp burning, which was attached to the ceiling by a brass chain. Meanwhile, respondent No.3, Yeshoda, started abusing Pw.8, Kunda, Pw.18, Laxmi, Pw.1, Baby and the deceased Raoji. Thereafter, the three respondents and the two juvenile offenders all gathered in the hall to assault Raoji, Pw.1, Baby and Pw.8, Kunda. According to Pw.1, Baby, in order to avoid the assault by all of them, they went to "bulcao" (balcony). According to Pw.1, Baby when they had gone to ‘bulcao’, respondent No.1, Satish went to his room and came to ‘bulcao’ with a knife and hit several blows with the knife on Raoji’s - 12 - back portion of his chest. Pw.1, Baby corrected herself by saying that Satish went to his mother’s room and brought the knife and assaulted Raoji. After Raoji received stab injuries by knife, Raoji fell down saying to Pw.1, Baby that he was dying. According to Pw.1, Baby, at that time respondent No.1, Satish and all other respondents were in the ‘bulcao’. After the deceased, Raoji fell down on the ground, according to Pw.1, Baby, Yeshoda, respondent No.3 kicked Raoji. She had also squeezed the private part of the deceased. At that time, respondent No.1, Satish who was holding knife in his hand, handed over the same to respondent No.3, and respondent No.3 then assaulted Kunda with the said knife, but Pw.8, Kunda caught the knife in her hand, which caused injury to her right palm. Thereafter, according to Pw.1, Baby, respondent No.3, Yeshoda handed back the knife to respondent No.1, Satish and respondent No.2, Mohan brought the oil lamp which was hung in the room by a brass chain and hit the oil lamp on the head of Raoji. When Pw.8, Kunda tried to intervene, the other three respondents started assaulting her with fists and slaps. Pw.2, Ashok, according to Pw.1, Baby came there and questioned the respondents as to what they were doing. Respondents No.1 and 2 then started assaulting Ashok also. According to Pw.1, Baby, respondent No.3, Yeshoda, told respondent No.1 Satish and respondent No.2, Mohan not to assault Ashok, but to finish of Raoji. Pw.8, Kunda, Pw.18, Laxmi and Pw.1, Baby then lifted Raoji and - 13 - brought him to the courtyard. In the meanwhile residents of the locality had gathered in the courtyard and had told the respondents not to assault Raoji. According to Pw.1, Baby, respondent No.1, Satish had told the persons that they have already committed murder of one person and in case anyone interfered, they would murder two more persons, meaning thereby Pw.8, Kunda and Pw.1, Baby. The juvenile offender, Sarita went inside the house and brought out one iron pipe which she handed over to respondent No.1, Satish. Respondent No.1 then hit the said pipe on the right leg of Pw.1, Baby and also gave a blow with the said pipe on Raoji’s right hand. Juvenile offender, Sharmila brought a cement block shaped like an elephant trunk, which she handed over to respondent No.3, Yeshoda. Yeshoda, then started assaulting Raoji with the said cement block. Pw.1, Baby removed the said piece of cement block from Yeshoda’s hand and Yeshoda, respondent No.3 picked up one stone in order to throw it on Raoji by saying that she was going to kill him with that stone. However, Pw.1, Baby intervened and removed the stone from Yeshowda’s hand. Pw.18, Laxmi rushed to the rescue of deceased Raoji. The respondents as well as Sarita and Sharmila started assaulting her and Pw.8, Kunda with slaps. Respondent No.1, Satish was brandishing the knife before the people who had gathered. In the meantime, police jeep arrived at the scene and on seeing the police jeep, all the accused ran away from the courtyard and went inside. Pw.1, Baby and others asked the police to - 14 - take Raoji to the Hospital. Raoji was taken in the police jeep to the hospital along with Pw.1, Baby, Pw.2, Ashok, and Pw.8, Kunda. Pw.1, Baby returned to the police station, where she lodged her complaint which is at Exhibit Pw.1/A. On the basis of this complaint, offences came to be registered and the accused came to be arrested. 12. Pw.1, Baby in her evidence states that 8 days prior to the incident, Narayan, the father of respondents No.1 and 2 was heard talking loudly to respondent No.3 that on 19th April, he would be going to Ghataprabha and the accused should do what they like. Narayan had left for Ghatprabha on 19th April, at about 12.00 to 12.30 noon. However, he returned on 20th April. Pw.1, Baby has identified knife article 8, iron pipe, article 6, the oil lamp, article 5, the brass chain, article 4, saree of Yeshoda, article 9, the bush-shirt of respondent No.1, article 10 and the frocks worn by Sarita and Sharmila. 13. In the cross examination, Pw.1, Baby states that on 19th April, 1988, after leaving the house at 6.30 p.m. for going to the grocery shop, Raoji returned home within about 5 minutes. She further states that as soon as he took his bath, after returning, he came into the hall. This witness states that she is unable to tell how much time Raoji took to take bath. She states that it - 15 - was about quarter to seven when Raoji put off the light on coming after taking the bath that evening. She admits that when Raoji put off the light, Satish was in the room of his mother. Pw.1 was questioned regarding the sketch. She denied the suggestion that the distance between parapet of the balcony and the roof of the balcony is less than a metre. She also states that she does not remember to whom the dining table which is shown in the said hall belongs. She admitted with reference to photograph Exhibit D-1 that there were two rice plates seen kept on the table. She however states that she does not know whose they were. So also in respect of the pair of shoes, she does not know to whom they belong. She further states that when Raoji first put off the light, she was standing near the door of the room and her sister-in-law, Kunda was also in the hall. Her mother, Pw.18, was in the kitchen and her brother, Pw.2, Ashok was sitting in the verandah. She further states that at the time Satish, respondent No.1 went to get the knife, he was in the hall, which is identified in the sketch as ‘C’. She also states that when respondent No.1, Satish inflicted stab blows on the deceased, he inflicted them by bringing his hands down, i.e. the blade of the knife was brought downwards on the back of the deceased, Raoji. She also states that respondent No.1, Satish inflicted several knife blows, at least two to four times. She also states that when the deceased was being stabbed, she was in front of him and very close to him. She admits - 16 - that after Satish received back the knife from his mother, the same remained with Satish till the end. She denied the suggestion that when Narayan came to reside in the house, gambling was going on in the house every night and that Rauji, Ashok and some other villagers were taking part in the gambling. She denied the suggestion that it was because of this that the relations between Narayan and Raoji were strained. She admits that Satish, respondent No.1 was not in the house 8 days prior to the incident and he returned on the very day of the incident at about 5.30 p.m. She admits that Satish had gone to Delhi some days prior to the incident, but could not say whether he had gone on 2nd April, 1988. She denied the suggestion as false that respondent no.1 got up only at 8.30 p.m. She also denied the suggestion that two plates which were seen in the photograph D-1, one was meant for respondent No.1, Satish and the other for respondent No.2, Mohan. She asserted "No kind of assault at all took place in the hall, till the last. The only reason we left the hall and went to the balcony was to avoid the assault by the accused." She admits that Yeshoda did not attempt to assault Raoji with knife, but she went to assault Kunda with it. She further