1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.68 OF 2007 Choddu Dungdung Son of Fatar Dungdung R/o Khadgao, Post- Tapkara, Dist. Gumla, Jharkhand, presently, lodged at Aguada Central Jail, Sinquerim, Goa. ... Appellant. Versus State (through the Public - -Prosecutor) High Court of Bombay at Goa Panaji, Goa. ... Respondent Mr. N. Da Costa Frias, Advocate for the appellant. Ms Winnie Coutinho, Public Prosecutor for the respondent. Coram :- S. A. BOBDE, & R. C. CHAVAN, JJ. Date : - 27 th June, 2008. ORAL JUDGMENT :( PER R. C. CHAVAN, J. ) 1. Being aggrieved by his conviction for offence of murder punishable under section 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.5,000/- imposed upon him by the learned IIIrd Additional Session Judge, South Goa, Margao, the convict has preferred this appeal. 2 2. The appellant was residing with his wife in the farm of P.W.3, Brian, who had employed the appellant. The appellant and the victim, his wife had five daughters. One of whom is P.W.6, Viju. On the night of 5.11.2004, the appellant had altercation with his wife and beat up her with a stalk of palm leave. His wife died. The appellant told neibouring labourer that he was going to inform the boss about the incident but absconded. On being informed of the incident, P.W.3, Brian informed the police and the police reached the spot. On report by victim's brother, Sukhram, who was gardener and who had reached the spot, an offence was registered and investigation commenced. The appellant was arrested by the police patrol person, P.W.16, Head Constable, Surendra on 8.11.2004 and was taken to the police station. The appellant's clothes were seized while performing panchanama of his arrest in presence of P.W.2, Bhamto Velip. In the course of interrogation, in presence of the same witness, the appellant agreed to produce the stalk of palm leave, which he had used in commission of the offence. It was then seized under a panchanama by the Investigating Officer, P.W.18, P.I., Manjunath Dessai. 3. The police had already caused inquest to be performed on the dead body and sent it for postmortem examination. The police had also seized blood stained clothes of the victim and had caused medico- legal exhibits to be collected. Sealed property seized was sent to the 3 Central Forensic Science Laboratory, Hyderabad. The police had caused a sketch of the spot to be drawn and had also taken photographs. After recording statements of relevant witnesses and finding that there was enough material to send the chargesheet against the appellant, they filed chargesheet before the learned Judicial Magistrate, First Class, Qupem, who committed the case to the Court of Sessions at Margao. 4. After considering the material before him, the learned IIIrd Additional Session Judge to whom the accused was assigned, charged the appellant under section 302 of the Indian Penal Code vide Exh.8. The appellant pleaded not guilty to the said charge and hence, was put on trial, in the course of which the prosecution examined in all 18 witnesses to bring home the guilt of the appellant. Upon consideration of the evidence tendered, the learned IIIrd Additional Session Judge, Margao held the appellant guilty and convicted and sentenced him as aforementioned, which conviction and sentence is challenged by the appellant by the present appeal. 5. We have heard learned Counsel Mr. Nigel Da Costa Frias for the appellant and learned Public Prosecutor Ms Winnie Coutinho for the State. With the help of both the learned Counsel, we have gone through the entire evidence on record. The fact that the victim met with homicidal death, cannot be disputed in view of the evidence of P.W.10, 4 Fondu son of Bhamto in whose presence inquest was performed, which indicated that the victim had sever bleeding injuries on the head and face. P.W.13, Dr. Pujari conducted postmortem examination on the dead body of the victim and observed that the victim had as many as 15 surface wounds, which could have caused by hard and blunt object and were ante mortem in nature. Upon dissection, he had found that there was a crack fracture of the bones of the skull with extensive subdural and sub arachnoid haemorrhage. The cause of death certified by the Dr. Pujari in his notice of postmortem examination at Exh.33, was head injury as a result of impact of hard and blunt object. The viscera had been preserved and the report dated 26.5.2005 received from the laboratory which is at page No.166-167 at Exh.49 shows that the ethyl alcohol was detected in contents of stomach. In view of this evidence, the fact that the victim met with homicidal death, cannot be disputed. 6. The learned Counsel for the appellant submitted that the case rests solely on the circumstantial evidence comprising of evidence that the appellant and the victim were last seen together, that the weapon of offence was recovered at the instance of the appellant, and that the appellant had been absconding since the incident till his arrest on 8.11.2004. All of which, in view of the learned Counsel, are insufficient to unmistakably point out to the guilt the appellant. P.W.8 Belinder Mani, who is also migrant labourer stays in a room near about 5 a Kilo Meter where from that of the appellant. He stated that on 5.11.2004, at about 7 p.m., the appellant assaulted the victim near his house, since the victim had come to his room earlier out of fear that the appellant may assault her. Further, he states that the appellant did not heed the entities of victim not to beat up her. According to him Santosh and Roshan were also present, when this occurred. Roshan has been examined as P.W.9. This witness resides near the house of the accused. He states that on 5.11.2004 at about, 6.30 p.m., the appellant told him that his wife has run away and, therefore, he accompanied the appellant in search of the appellant's wife, who was found in one of the rooms near the crusher, where some other persons were present (presumably P.W.8) He corroborates the version of P.W.8 about victim being beaten up. He states that the victim came along with the appellant to their own room. He claims to have gone to his own room. At 1.00 a.m. on 6.11.2004, the appellant came to him and told him that the victim had died adding that the witness should not tell the boss or anyone else and that he was himself going to telephone the boss. According to this witness, P.W.9, Roshan Dungdung, at that time, the appellant was having a red coloured bed sheet over his shoulder and was wearing a khaki short pant. The learned Counsel for the appellant submitted that there is a suitable gap in the time at which P.W.9, Roshan saw the appellant with the victim last i.e. about 7 p.m. and the time of death of the victim. He submitted that during this period anyone else 6 could have murdered the victim and, therefore, the circumstances of last seen together was not proved. 7. The fact that the victim and the appellant were together in the house on the incidental evening, has been deposed to by P.W.9, Roshan, who has also stated that at about 1 a.m. on the next morning the appellant told the witness that his wife had died. In response to a question No.63, in the statement under section 313 of Criminal procedure Code, the appellant denied that he told P.W.9, Roshan that his wife was died. However, there is another witness, whom the appellant met on the same night. P.W.4, Police Constable Ramesh Velip, who was on nakabandi duty on that night. He states that on 2.15 a.m., on 6.11.2006 the appellant was walking on road from Cancona to Margao and on being stopped, the appellant told the witness that he was going to telephone the employer because a jersey cow of his employer was sick. The witness states that since the appellant was known to him, he had allowed the appellant to go back. It was suggested to this witness that he had falsely deposed having met the appellant at 2.15 a.m. on 6.11.2004, however, when this circumstance was put up to the appellant in question No.34 of statement under section 313 of Criminal Procedure Code, the appellant replied that he had met police and told that his wife was dead and he wanted to phone Brian. Thus, apart from P.W.9, Roshan even P.W.4, Police Constable Ramesh had seen the appellant on 7 the incidental night and on police's own explanation, he had told P.W.4 about the death of his wife. 8. Now if the appellant and his wife had gone to their room in presence of P.W.9 on the incidental evening and shortly after midnight, the appellant tells P.W.9 Roshan and thereafter, P.W.4 Ramesh that his wife was died, there can be no other inference but that the appellant and his wife were together and the appellant knew as to how his wife met with her death. The contention of the learned Public Prosecutor that, therefore, the appellant had exclusive knowledge of the manner in which his wife died, which he was expected to clear up in view of provision of section 106 of the Evidence Act, however, does not comment to us. Section 106 of the Evidence Act would be attracted when the appellant wants to raise the defence based upon the facts within his special knowledge. Here the appellant does not claim any knowledge as to how his wife met with her death and has not raised any specific defence in that regard. All the same, the evidence clearly points out to that fact that the appellant and his wife were together on the incidental night, when his wife met with her death. 9. The learned Counsel for the appellant assailed the evidence as to recovery of weapon of offence, stalk of palm leave. It seems that the appellant was interrogated in presence of P.W.2 Bhamto 8 Velip by P.W.18, P.I. Manjunath Dessai. On 8.11.2004, P.W.2, Bhamto stated that the appellant was speaking in Hindi and told the officer that he would show the stalk of palm leave, which he had thrown near the house, where he was staying. The witness had admitted in his cross- examination that he did not understand what the accused was saying, but it was explained to him by P.I. Dessai, since he did not understand Hindi language. The learned Counsel for the appellant submitted that in view of this, it could not be said that P.W.2, Bhamto had heard the statement made by the accused leading to discovery. As rightly pointed out by the learned Public Prosecutor, P.W.2, Bhamto, is Sarpanch of the village and, therefore, as a respectable person, was taken as a panch. His candid admission that he did not understand Hindi and that the version of the appellant was explained to him by P.W.18, P.I., Dessai, cannot lead an inference that the appellant had in fact not made such a statement. She submitted that apart from the fact that the witness had trivially stated that he did not understand Hindi and the appellant's statement was interrogated by the P.I., the evidence of P.W.18, P.I., is worthy of belief that the appellant did make such a statement. She submitted that there is nothing to indicate that P.I., Dessai had any motive to implicate the appellant. The learned Counsel for the appellant submitted that since the appellant is eager to solve the case speedily, he choose easy targets and, therefore, P.I., Dessai first choose the appellant as easy target and this showed that the evidence supports the 9 hypotheses as narrated. The learned Public Prosecutor countered by submitting that under section 114(e) of Evidence Act official acts are presumed to have done properly and, therefore, the acts of P.I. Dessai also fall in that category. This contention has to be rejected because had it been so, the legislature could have founded unnecessary to enact sections 25 and 26 of the Evidence Act, which subsequently make confessional statements made while in custody of police or made to police officers, inadmissible. As far as proof of confessional statement is concerned, the presumption under section 114(e), would not apply and it would be necessary to prove it by tendering proper evidence. All the same, we do not see that the evidence about discloser made by the appellant to P.W.18 in presence of P.W.2, is in any manner deficient, in order to reject the same. 10. The learned Counsel for the appellant next submitted that the stalk of palm leave was in fact lying in open and, therefore, it could not be said to have been concealed and consequently there could be no statement leading to discovery of such a fact. It does not appear from the evidence of P.W.2 and 18 that the stalk was not concealed under leave etc. or that it was visible. It also does not appear that the stalk was at a place which was inaccessible. All the same, when such an inconspicuous object which may commonly form a part of rubbish, is thrown at a particular place known to the appellant alone himself, 10 feasibility or accessibility of the place, where it is placed would not matter. The fact that the appellant alone knew where the stalk was kept, would be the fact discovered and would satisfy the requirement in paragraph No.21 to 23 of the judgment of the Apex Court in Gijaganda Somaiah Versus State of Karnataka, reported in AIR 2007, SUPREME COURT 1355. The fact discovered is that the stalk was kept by the appellant at a particular place in consequence of which the object was produced. 11. The learned Counsel for the appellant next submitted that this stalk cannot be connected to the crime, since the report of the Forensic Science Laboratory at page No.171 merely mentions that blood was detected on this stalk, but it could not be detected whether it was of human or not, even blood group could not be ascertained due to disintegration of blood group. The appellant ought to have done D.N.A. testing. Considering the costs involved in D.N.A. testing and the fact that D.N.A. testing has not become common, no fault could be found with the prosecution for not carrying out D.N.A. testing. It is not the case of the appellant that blood of some other animal was found at Exh.19. It must be borne in mind that the object was thrown in open and since almost two days after the incident, if the blood on the object has disintegrated so as to make detection of blood group or its origin, the presence of blood stains themselves does not become it 11 insignificant. In this view of the matter, we held that the evidence tendered by the prosecution was rightly accepted by the learned IIIrd Additional Session Judge who, held that the stalk was seized at the open discloser by the appellant. 12. P.W.9, Roshan had stated about the clothes, which the appellant was wearing, when he left the place after victim's death. He states that the appellant was carrying a red bed sheet on his shoulder and was wearing khaki short. He had identified both items i.e. article Nos.15 & 17, which were seized in presence of P.W.2 at the time of arrest of the appellant. P.W.4, Constable, Ramesh Velip, whom the appellant had met at 2.15. a.m. at the incidental night, had also identified article Nos. 15 & 17 as the clothes which the accused was wearing at the relevant time. The fact that the appellant had made himself scares after the incident on the night of 5.1.2004 till he was arrested by the police on 8.11.2004 also points out to his guilty mind. In response to question No.106 of the statement under section 313 of Criminal Procedure Code, the appellant had stated that he had seen the victim dead, on the morning of 6.11.2004 but did not know as to how she died. Thus, he knew the death of his wife. He had done nothing to report her death. The fact that he was absconding for 2 days is indicative of his guilty mind. 12 13. In a case, raising a circumstantial evidence, motive is relevant. In this case, the appellant's daughter P.W.6, Viju Kerkatta has stated that the appellant and the victim used to have a frequent quarrels because the victim had delivered only female children. She stated that her mother used to be regularly assaulted by the appellant and used to come to her many a times. There is no reason to disbelieve the word of appellant's own daughter. Her husband, who has been examined as P.W.5, Purna Kerkatta also states that the victim used to be beaten up by the appellant. This conduct cannot qualify exactly as motive for murder but explained as to why the appellant might have beaten up his wife. 14. The learned Counsel for the appellant placed reliance on the judgment in the case of Kansa Behra Versus Stte of Orissa, reported in AIR 1987 SUPREME COURT 1507 and O. Kullabi Singh Versus State of Manipur, reported 1998 (3) Crimes 367. He relying on the judgment in O.Kullabi Singh's case submitted that mere fact that the accused was absconding, could not be used as a circumstance to conclude that he was guilty. In that case, the accused was absconding from 8.10.1985 to 25.10.85, but the F.I.R. in that case itself, was lodged about 18 days after the incident i.e. on 26.10.1985. In the present case, the police had been promptly informed and though the formal F.I.R. was drawn on 8.11.2004, the police action had already commenced the action as may be seen from inquest panchanama dated 6.11.2004 and 13 panchanama of scene of offence at Exh.39 of the same date. 15. In view of this, though the learned Counsel for the appellant strenuously urged that the appellant is not the author of injury, which led to death of his wife, the evidence unmistakably points out to his complicity in the crime. We, therefore, hold that the learned IIIrd Additional Session Judge rightly held the appellant guilty and convicted him for the offence punishable under section 302 of Indian Penal Code. The sentence imposed to, does not call for any interference. The appeal is, therefore, dismissed. S. A. BOBDE, J. R. C. CHAVAN, J. SMA