1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 27 OF 2007 Shri Shivaji Gaonkar, Major, r/o House No.287, Shirvoi, Kumbarwada, Quepem-Goa. ... Appellant versus State(Quepem Police Station) ... Respondent Mr. Ryan Menezes, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 20TH AUGUST, 2008. ORAL JUDGMENT This appeal is by the accused who was charged and tried under Sections 504, 307 I.P.C. but who has been convicted and sentenced under Sections 326 and 324 I.P.C. 2. The accused was charged and tried with the allegation that on 16-4-2005 at about 21.30 hours the accused first assaulted Suraj Chari/PW1 with a 2 broken sharp fanta bottle on his hand causing him bleeding injuries and thereafter the accused assaulted with the same bottle Ashok R. Zambaulikar/PW2 on his neck in an attempt to murder him. The accused was also charged for having abused the said Ashok Zambauklikar/PW2 with filthy words such as “chedyecha”, etc. In support of the charge prosecution had examined 15 witnesses and amongst them was Prashant/PW12, the owner of Prashant General Stores where the incident is stated to have taken place, and, his other two brothers, namely, Paresh/PW11 and Mahesh/PW14. 3. On the other hand, it was the case of the accused that on the said day he had gone to the said shop at about 7.45 p.m. and was standing near the corner of the said shop when about 8.10 p.m. Ashok/PW2 came there and inspite of having a distance, to go to the shop dashed against his shoulder, from the back and when Ashok/PW2 came out after purchasing something, the accused asked the said Ashok/PW2 as to why he had dashed him to which he replied that he could do whatever he wished which was followed by a verbal altercation and thereafter the said Prashant/PW12 and Sunil/PW15 separated them and thereafter Ashok/PW2 went away on his motor cycle and returned with Madhusudan/PW8 and his wife and Suraj/PW1 and one Sanjay Mesta and upon seeing them, Prashant/PW12 told him to go inside the shop and he went inside the shop and thereafter the said persons Madhusudan/PW8, Suraj/PW1 and Ashok/PW2 started calling him to come out of the shop and they were abusing him by bad words such as “Chedyeache bair yo tuka dakoita tu eklo asa”. The accused further stated that 3 he remained inside the shop and the said persons told Prashant/PW12 to send him out of the shop and the said Prashant/PW12 had told them not to fight and then the said persons told Prashant/PW12 that in case he did not send the accused out of the shop they would damage his shop and thereafter they started banging the steel roof of the shop and started breaking the crates containing empty soft drink bottles which were outside the shop and broke the tube light and then Prashant/PW12 told him to go out of the shop else the said persons would damage his shop and he came till about the counter of the said shop and seeing the said persons went again inside the shop and thereafter Prashant/PW12 told him to go out of the shop as he wanted to close the shop and the moment he went out all the said persons started attacking him and dragging him to the place where there was a pandal and on his right side there was Suraj Chari/PW1 and behind him was Madhusudan/PW8 and it is he who was carrying a broken glass bottle in his hand and while the said Madhusudan/PW8 attempted to assault him with the broken glass bottle he ducked down and the said broken glass bottle hit the right hand side of Suraj Chari/PW3 and the neck and then the left hand side of neck of Ashok/PW2. The accused stated that on that day he did not carry any glass bottle in his hand and the said persons also assaulted him with fist blows, kicks and with hands. Accused further stated that at the place where he was assaulted there was a pandal and it was dark there and it was dark because they had broken the tube light outside the shop and beyond the pandal there was a street light and thereafter Madhusudan/PW8 started shouting that the accused assaulted Suraj Chari/PW1 and Ashok/PW2 with broken glass bottle to which he told them that he 4 was not having any glass bottle in his hand and then Madhusudan/PW8 started to give the broken glass bottles in his hands in which he did not take and thereafter he rescued himself and proceeded with one Sandesh to the Police Station and when he reached there he narrated the incident to one havaldar who kept him waiting there for about half an hour till the arrival of the Police Inspector Siddhant Shirodkar/PW18 and when the Police Inspector/PW18 came there, he went in his cabin to meet him but Madhusudan/PW8 along with his wife were already there and the said Madhusudan/PW8 was having in his hand the same broken glass bottle and then upon the direction of P.I. Shirodkar/PW18 he was put in the lock-up. The accused told that he did not know at what time Suraj Chari/PW1 came to the Police Station. The accused also stated that he had suffered injury on the stomach and the skin of his stomach was peeled off and he had also suffered injuries on his knee with minor bleeding. The accused also stated that on the day of incident he was wearing a T shirt which was torn at the time of assault on the shoulder as well as at the waist level. The accused also stated that there was no enmity between him and the said Suraj Chari/PW1 or Ashok/PW2 or Madhusudan/PW8. The accused stated that he did not assault Suraj Chari/PW1 or Ashok/PW2. The accused examined himself in support of his defence and the above is the version given by him in his evidence. The accused also examined Sandesh Shelpekar/DW2 to corroborate his version i.e. that the latter had seen the said broken soda bottle in the hands of the said Madhusudan/PW8. 5 4. As already stated, the prosecution has examined 18 witnesses in support of the charge against the accused. Ravindra Zambulkar/PW5 is the father of Ashok/PW2 and the latter is the maternal uncle of Suraj/PW1(Ravindra's wife's brother) while Madhusudan/PW8 is another brother-in-law of the said Ravindra/PW5. In other words, Suraj/PW1, Ashok/PW2, Ravindra/PW5 and Madhusudan/PW8 are all related to one another. The said Prashant/PW12, his brothers Paresh/PW11 and Mahesh/PW14 were declared hostile and cross- examined by the prosecution. Rajesh/PW6 who is the brother of Sanjay Mesta was examined partly on 2-11-2006 by the prosecution and after an adjournment was sought, his examination was not continued and later on 8-11-2006 he was dropped, and, it has been contended on behalf of the accused, that he was not further examined and dropped because he was not supporting the case of the prosecution. Similarly, the said Sanjay Mesta who was present both according to the prosecution as well as the accused was not examined by the prosecution. In other words, three witnesses who were natural and probable and in whose shop the incident had taken place had not supported the prosecution and as such were declared hostile by the prosecution. The other two, Rajesh Mesta/PW6 and Sanjay Mesta were not examined and the former in the background indicated herein above. 5. The learned trial Court did not accept the evidence of Datta Naik/PW13 as it did not inspire confidence. Nevertheless, the learned trial Court concluded that from the evidence on record it was clear that the accused while 6 coming out of the shop had carried in his hand a broken glass bottle and at that time Ashok/PW2, Suraj Chari/PW1, their family members, relations and others were waiting outside the shop for the accused to come out and when the accused came out of the shop with broken glass bottle in his hand, they all gheraoed him and a scuffle took place and in the scuffle the accused assaulted Suraj/PW1 and Ashok/PW2 with the broken glass bottle. The learned trial Court also observed that from the evidence of the relations of Ashok/PW2 who had gathered outside the shop, the only picture which emerged was that it was none other than the accused who assaulted Suraj/PW1 and Ashok/PW2 with the broken glass bottle. However, it may be stated that the conclusion arrived at by the learned trial Court that the accused was gheraoed by the said relations of Ashok/PW2 and in the scuffle which followed, the accused had assaulted Suraj Chari/PW1 and Ashok/PW2 was certainly not a version which came from the said related witnesses, namely, Suraj/PW1, Ashok/PW2, Ravindra/PW5 or Madhusudan/PW8 nor was it a version given by the persons who were admittedly present namely Prashant/PW12 and his two brothers Paresh/PW11 and Mahesh/PW14 nor of Sunil/PW15 who were present till the first part of the incident was over when Ashok/PW2 and the accused were separated by them. 6. The learned trial Court in arriving at the said conclusion has also relied extensively on the statement recorded of the accused under Section 313 of the Code of Criminal Procedure, 1973, forgetting for a moment that the accused had stepped into the witness box and had given evidence in support of his case 7 and whatever explanations were required from him could have been elicited from his cross-examination, and, it has been submitted on behalf of the accused, that the prosecution was unable to shake the credibility of the accused, in cross- examination and there was no reason why the version given by the accused ought not to have been accepted. The learned trial Court, after observing that Ashok/PW2 was the only witness who had deposed that the accused had broken the fanta bottle, further observed that the accused did not disclose anything in his statement recorded under Section 313, how the glass bottle was broken inside the shop, as to how many broken bottles there were and whether the bottle was broken against the wall or against the floor and since this fact was specially within the knowledge of the accused the burden was on him to prove the same. The learned trial Court entirely lost sight of the fact that the incident of breaking of the bottle was certainly not specially within the knowledge of the accused and it was certainly to the knowledge of Ashok/PW2 who claimed that it was broken by the accused in the manner as stated by him and so also to the knowledge of others who were present there particularly Prashant/PW12 and his brothers Paresh/PW11 and Mahesh/PW14 and there was nothing which the accused was required to explain. The learned trial Court lost sight of the fact that in law the accused is entitled to maintain profound silence and the question of Section 106 of the Evidence Act can be invoked only when there is a duty on the accused to speak. 7. In Shambhu Nath Mehra v. State of Ajmer(AIR 1956 SC 404) it is stated by the Apex Court that Section 101 of the Evidence Act lays down the 8 general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act was certainly not intended to relieve it of that duty but on the contrary it was designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which were specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “specially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. Considering the facts of the case there was nothing which was specially to the knowledge of the accused and only because no corroboration was forthcoming to the version given by Ashok/PW2 as regards the breaking of the bottle the same could not have been made good by placing the onus upon the accused stating that it was for the accused to prove that the bottle was broken by the accused in a manner stated by Ashok/PW2. This is an error committed by the learned trial Court. 8. The learned trial Court accepted the statement made by Prashant/PW12 under Section 164 of the Code to the effect that the accused had come out of his shop with a broken glass bottle when otherwise Prashant/PW12 had not deposed to any such statement in his evidence before the Court. The learned trial Court accepted such a statement by placing reliance on the case of Sachin Shivaji Kadam and others v. State of Maharashtra(2000(2) Mah. L.R. 54). As far as this aspect is concerned the law on the use of statements recorded under Section 164 of the Code appears to be quite well settled in that the said 9 statements can be used only for the purpose of contradiction under Section 145 or for corroboration under Section 157 of the Evidence Act. Learned Counsel on behalf of the accused has placed reliance on the case of Gurjant Singh v. State of Rajasthan(AIR 1970 SC 1305) wherein the Apex Court has stated that the statements recorded under Section 164 of the Code could not be considered as evidence but were corroborative of what was stated earlier in the committal Court. Some other decisions on the same point could also be referred to. Generally, statements under Section 164 of the Code are recorded with the avowed hope that the witnesses will not resile from the earliest versions given by them in respect of an incident out of fear of punishment. The Apex Court in Ram Kishan Singh v. Harmit Kaur and another(AIR 1972 SC 468) has reiterated that the statement recorded under Section 164 of the Code is not a substantive evidence and it can be used only to corroborate or to contradict the witness. The same is also the view held by a learned Division Bench of Allahabad High Court in the case of Ram Lakhan Sheo Charan and others v. State of U.P.(1991 CRI. L.J. 2790) wherein the learned Division Bench after considering catena of cases(more particularly referred to in para 12 of the Judgment) came to the conclusion that the statements under Section 164 of the Code cannot be used as substantive piece of evidence. The learned trial Court therefore was not right on relying on any part of the statement of Prashant/PW12 as recorded earlier under Section 164 of the Code when such a statement was not adhered to by him in his evidence before the Court. Moreover, Prashant/PW12 had clearly stated that he had given such statement earlier because he was threatened by the Police. This is another error 10 committed by the learned trial Court. 9. The learned trial Court apart from the fact of coming to the conclusion that there was a scuffle after the accused was gheraoed and in that scuffle that Suraj/PW1 and Ashok/PW2 were assaulted also concluded that the accused had not taken the plea of self defence or the plea of grave and sudden provocation and hence the same could not be taken into consideration, as if to say that in case the accused had taken such a plea of self defence, the accused would be acquitted. As far as this aspect of the case is concerned the law is very clear. The Apex Court in Shivanna and others v. State of Karnataka(2007(1) Crimes 91) has held that whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case and no test in the abstract for determining such a question can be laid down and it is not necessary for the accused to plead in so many words that he acted in self defence, and, if the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea and in a given case, the Court could consider it, even if the accused has not taken it, if the same was available to be considered from the material on record. The Apex Court also noted that it is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined by the prosecution and the question in such a case is a question of assessing the true effect of the prosecution evidence and not a question of the 11 accused discharging any burden. This is yet another error committed by the learned trial Court. 9. Reverting to the case of the prosecution, and, the main version given by Ashok/PW2, it can be seen that he had stated that Suraj/PW1 was his maternal uncle and resides in his house. He had stated that after returning home at about 8.15 p.m. he was asked by his mother to bring milk packet and accordingly he came to Prashant General Stores and after parking his scooter he went inside the shop where he saw Prashant/PW12, Mahesh/PW14, Sunil/PW15 and Shivaji(accused) at the counter. According to him, as he was going inside the shop the accused dashed his shoulder against his and while he was coming out from the shop after purchasing the milk packet the accused gave him bad words and he listened to them and started his motor-cycle when the accused came there and caught hold of his neck tightly and was not allowing him to go away when Sunil/PW15 came there and told the accused to leave him and the accused left his neck. He stated that it is the said Sunil/PW15 who relieved him from the clutches of the accused and thereafter the accused ran inside the shop and after going inside the shop he broke a fanta glass bottle after removing the same from the fridge and he remained inside the shop and after getting the information regarding the fight, Madhusudan/PW8, his wife and daughter came on the spot and he told Madhusudan/PW8 to ask the accused as to why he was fighting with him and following them, his maternal uncle, Suraj/PW1 and Sanjay Mesta also came there and he also asked them to ask the accused as to why he was fighting with him and 12 thereafter his mother, sisters and aunty came to the spot and he told them also to ask the accused as to why he was fighting with him and thereafter his father(Ravindra/PW5) and Madhusudan/PW8 told the accused to come out of the shop and to tell them as to what had happened and as to why the accused was fighting with him and the accused was not ready to come out of the shop and was behind the counter. Thereafter, Prashant/PW12 who was standing outside the counter told the accused to come out and told him that he would see what would happen and thereafter the accused came running out of the shop and came charging towards him and at that time Suraj/PW1 who was standing in front of him, tried to stop the accused by holding his hand in which he had held the said broken glass bottle and then the accused assaulted Suraj Chari/PW1 with the said broken glass bottle on his right hand and thereafter he assaulted him on the left hand side of the neck. In cross-examination he stated that the accused had broken the said bottle against the wall but he did not remember whether it was the left or the right wall. He further stated that he did not know whether any liquid fanta fell on the wall but stated that the fridge was next to the wall where the bottle was broken. According to him when the bottle was broken Paresh/PW11, Prashant/PW12, Mahesh/PW14 and Sunil/PW15 were present in the shop and the other persons came after breaking the bottle. He also stated that he had not seen the liquid fanta fallen inside the shop. He also stated that he did not know where the bottom part of the broken bottle had fallen but the bottle had remained in his hands which he saw till he was assaulted by the accused. Thereafter a number of omissions, in relation to his statement recorded earlier have been brought on 13 record, on behalf of the accused. 10. As regards the first part of the incident, namely the accused dashing the shoulder of Ashok/PW2 the learned trial Court has observed that there are conflicting versions and that it was not clear from the deposition as to who had dashed against whom or whether the dash was intentional or accidental. As already seen, the accused has stated in his evidence that the dash was given by Ashok/PW2 to the accused inspite of the fact that there was sufficient distance for him to go to the shop. The prosecution was unable to shake the credibility of the accused, at least on the said version, and it appears that Ashok/PW2 twisted the facts and has put the blame on the accused as the person who gave a dash on his shoulder when in fact what happened is on the contrary. Prashant/PW12 in his statement recorded under Section 164, assuming it could be looked into, had stated that it is the accused who had questioned Ashok/PW2 as to why he had given a dash to him and thereafter they had started abusing one another. Pravin Shetkar/PW10 had categorically admitted in his cross-examination, and without any murmur or demur from the prosecution, that it was Ashok/PW2 who had dashed his shoulder against his shoulder of the accused. That was also the version given by Paresh/PW11, Mahesh/PW14 and Sunil/PW15 who were admittedly present at the shop. That was also the version given by Sunil/PW15 in his statement recorded under Section 164 of the Code. Even Ravindra/PW5, father of Ashok/PW2 accepted this position when he stated that Ashok/PW2 had told him that as per accused Ashok/PW2 had given him a dash. It was therefore obvious 14 that it was Ashok/PW2 who provoked the accused and although nothing has come on record, that certainly must have been due to some strange relations between them for there can be no other explanation as to why Ashok/PW2 should have dashed the shoulder of the accused on purpose when otherwise there was sufficient place for him to go to the counter of the said shop. It is therefore obvious that it is Ashok/PW2 who gave the dash to the accused on his shoulder and has turned the tables against the accused and therefore the first part of his version has to be considered as false and could not have been accepted. 11. The learned trial Court has not accepted the second part of Ashok/PW2's version as regards the accused giving abuses. The learned trial Court after considering the evidence of Prashant/PW12, Mahesh/PW14 and Sunil/PW15 wherein they had stated that both Ashok/PW2 and the accused had abused each other, held that the accused could not have been held guilty of abusing Ashok/PW2. The version of Ashok/PW2 considering the overall evidence on record could not have been said as free from doubt. 12. As regards, the breaking of bottle, the learned trial Court had rightly observed that except for Ashok/PW2 no other person had deposed as regards the accused breaking the bottle inside the shop, and, in fact had placed the onus on the accused to prove the same. The learned trial Court had gone to the extent of observing that there was some discrepancy as to the fact whether the bottle was broken by the accused on the floor or on the wall and even if Ashok/PW2 stated 15 that he did not remember whether it was the left wall or the right wall and further that