-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 2 OF 2006 Pramil @ Premanand Rao s/o. Gajanan Rao, r/o. House No. 202, Bhutwadi, Pernem, Goa. ...... Appellant versus State of Goa, as Rep.by Officer in Charge, Anjuna Police Station. ...... Respondent Mr. S. Saudagar, Advocate for the Appellant. Mr. S. N. Sardessai, Public Prosecutor for the State. CORAM: A. P. LAVANDE, N. A. BRITTO, JJ. DATE: 5TH JUNE, 2006. JUDGMENT (Per N. A. BRITTO, J.) This appeal is by the accused, aged 24 years, who was charged -2- and tried under Sections 302, 394 and 201 I.P.C. and who has been convicted and sentenced under Sections 302 and 394 I.P.C. for having robbed and murdered Smt. Aneya @ Baby Kerkar, aged 42 years, to life imprisonment and to rigorous imprisonment of ten years and to pay a fine of Rs. 5,000/­ on each count in default to undergo further imprisonment of six months. 2. The case of the prosecution was based on circumstantial evidence. As per the prosecution, the accused and the deceased were known to one another and on 28.11.2002, the accused phoned the deceased twice, as stated by her daughter, and thereafter the deceased Aneya left the house after 10.00 a.m. and whilst going, took with her a telephone bill to be paid, and her daughter's slippers to be exchanged, and on her way to Pernem, she took a lift from Sudin Malik/P.W.13 at about 10.30 a.m. from Suke Kulan to Pernem, near Sandesh Printers, (and not near the watch shop, where according to her daughter Sweta Kerkar/P.W.1, the accused had promised to meet her) and that was the last seen of her. It appears that her husband Anant/P.W.4, searched for her on the same day by going about to several places as she had not come, and on 29.11.2002, gave a missing report at Pernem Police Station; it appears that the deceased Aneya as well -3- as the accused, resided within the jurisdiction of the Pernem Police Station but the said missing report has not been produced by the prosecution and what was produced at the eleventh hour was a format with inputs about the missing person (exhibit 81). On 30.11.2002, the Investigation Officer/PW22, who at the relevant time was in charge of the Anjuna Police Station, received information from his counterpart at Mapusa Police Station, stating that some mortal remains were seen at the hillock at Marna, Siolim, which area is presumably closer to the Mapusa Police Station, and pursuant thereto, P.W.22 Wilson D' Souza, visited the place and conducted the inquest/scene of offence panchanama. This he did after registering a case of U.D. and what he found there was a jaw bone and a skull, which was later opined to be that of an adult female in the age group of 40 to 45 years and also some hair regarding which no effort was made to find out whether it related to the same skull, assuming that such an exercise was possible, and besides the I.O. also found a white printed saree (exhibit 1), a black blouse (exhibit 2), black sandals (exhibit 3), a silver toe ring (exhibit 4), a ghagra (exhibit 5), white sandals (exhibit 6), shoulder bag (exhibit 7), which were later on 1­12­2002 were identified by her daughter, son and husband as belonging to the deceased and on the basis of the same, it was -4- presumed that the said mortal remains were those of the deceased Smt. Aneya. 3. After the deceased Aneya had not returned home on 28­11­2002, her husband PW4/Anant along with his brother­in­law Ramakant Tulaskar went in search of her and even went to the Pernem Police Station to find out whether his wife, the deceased Aneya, had met with an accident and on the next morning i.e. on 29­11­2002 PW4/Anant along with Panchayat Member Pradip along with a photograph lodged a missing report. On 1­12­2002 on being informed through P.I. Pernem Police Station the daughter(PW1), the husband(PW4) and the son(PW5) came to the Anjuna Police Station and the F.I.R. came to be lodged at about 9.00 hours by PW1/Sweta only after seeing the mortal remains and the clothes and other articles found at the scene. We have already stated that the missing report lodged by PW4/Anant at the Pernem Police Station has not been produced by the prosecution. The said report would have provided corroborative evidence not only as regards the circumstances in which the deceased Aneya had left the house but also the description of her clothes and her gold ornaments. Instead of producing the said missing report, what was produced by the Investigating Officer PW22/P.I. Wilson D'Souza was -5- the format with combined input of the missing person along with photograph and when PW22/P. I. Wilson D'Souza was questioned about the missing report he stated that the same(Exh.81) was sent to him later on after the registration of offence but could not give the exact date and that he also did not record the date of receipt of the same in his case diary. On further cross­examination he stated that when missing report is lodged the gist of information is recorded on the station diary but he had not verified the station diary of the Pernem Police Station nor he had asked the Police Inspector of Pernem Police Station to forward the extract of the station diary. It was clearly suggested to him that he had not produced the extract of the station diary because it gave the exact cause of disappearance and he did not produce it because it would go against the case of prosecution. We have no other option but to draw adverse inference for the non production of the missing report lodged by the husband of the deceased namely PW4/Anant Kerkar on 29­11­2002. 4. The learned Sessions Judge has come to the conclusion that the death of the deceased Aneya was homicidal and it has been submitted on behalf of the accused that despite of the cause of death having not been ascertained by the Police Surgeon PW16/Dr. Sapeco and despite -6- disbelieving the recovery of knife/MO.20 the learned Sessions Judge could not have come to the conclusion that the case was one of homicide. In our view, there was absolutely no acceptable legal evidence to conclude that the death of the deceased was homicidal. PW16/Dr. Sapeco had clearly opined that in the absence of flesh, vital organs, neck, chest, abdomen, upper and lower limbs no opinion as to the exact cause of death could be given inasmuch as no ante mortem fractures were seen on the parts which were available namely the skull and the jaw bone. If the Investigation Officer PW22/P.I.Wilson D'Souza ever believed that the accused had stabbed the deceased Aneya on her chest and abdomen then the blouse(Exh.2) and the gagra/saree(Exh.5 and Exh.1) would have corresponding cuts of the knife which could certainly have been ascertained from Central Forensic Science Laboratory and apparently this exercise was not done by the Investigating Officer. Therefore, it was difficult to come to the conclusion that the death of the deceased was homicidal in nature. The disappearance of most parts of the body of the deceased Aneya are sought to be explained by submitting that the dead body might have been eaten by animals but such a story militates against the manner in which the clothes of the deceased, referred to herein above, were found. It is quite probable that in case the body of the deceased was eaten by animals, as suggested, the clothes of the deceased -7- might have been found in shreds but that is not the case, and, again one does not know how a toe ring could be found without the toe being there. 5. Be that as it may, we shall now proceed to analyze the circumstantial evidence against the accused. 6. The first circumstance which has been considered by the learned Sessions Judge as proved is that the deceased had left the house to go to Pernem being called by the accused, on the basis what the deceased is stated to have told her daughter. Admittedly, nobody saw the accused and the deceased together on 28­11­2002. The learned Sessions Judge has accepted the evidence of PW1/Sweta, PW4/Anant and PW5/Hemant as convincing but we have our own reservations about the same. Their evidence does not appear to have been tested on the anvil of probabilities. It is quite possible that the accused was known to the deceased Aneya and her family members and the accused used to visit them as the brothers of the accused by names Lavu and Sanvlo were the classmates of her brother PW5/Hemant. However, the statement of PW1/Sweta that her mother, the deceased would hire the motorcycle of the accused to go to Mapusa, Pernem, etc. whenever she had work and her mother used to pay his hire -8- charges, is difficult to be accepted. The family of the deceased Aneya does not appear to have been very affluent so as to hire a motorcycle of the accused who was based at Pernem to come all the way to Nagzar and take her to Pernem, Mapusa, etc. on payment of hire charges, and again reach her back. Admittedly, PW1/Sweta was the only person at the house when her deceased mother left the house, and if the deceased Aneya had told PW1/Sweta that accused had telephoned her and called her to Pernem we do not see any reason why the deceased should not have told PW1/Sweta as to for what purpose the accused had called her, and if the deceased would avail of the motorcycle of the deceased on hire, as to why the deceased Aneya had to go by bus from Nagzar to Pernem on that day. If PW1/Sweta stated that her mother left the house because the accused called her, the deceased did not tell anything of this type to PW13/Sudin Naik who gave her a lift, half way. There is also no explanation as to why the deceased, if she had taken a bus to come from Nagzar to Mapusa had to get down at Sukekulan and take a lift from PW13/Sudin Naik and asked to be dropped not near the watch shop at Pernem, as deposed by PW1/Sweta, but at Sandesh Printers at Pernem, as deposed to by PW13/Sudin Naik. In case the missing report was produced by the Investigating Agency it might have given some corroboration to the story of PW1/Sweta as to what her -9- mother had told her namely that the accused had phoned and called her to Pernem, and in fact it was expected of PW1/Sweta, when her mother told her about it, if at all, to have asked her mother as to why the accused had called her all the way from Nagzar to Pernem and for what purpose and as to why he was not coming to Nagzar and taking her to Pernem. PW4/Anant, as stated by him, went first to the Police Station along with his brother­in­law Tulaskar to find out whether there was any accident involving his wife. That does not at all appear to be a normal conduct of a person, if he knew on being told by PW1/Sweta that his wife had gone along with the accused on being called by him. The first and the most normal thing which any person in the place of PW4/Anant would have done was to first straight come to Pernem at the motorcycle stand in search of the accused to find out as to where he was or at least go to his house and find out his whereabouts and consequently of his wife. Going to the Police Station first and later to their relations and friends does not appear to be a normal conduct of a person, if he knew that his wife had gone, on being called by a particular person. PW1/Sweta stated that her mother had a contact telephone number of the accused and she telephoned the said contact telephone number of the neighbour of the accused only to be told that the accused had telephoned the said neighbour stating that the accused -10- had informed him to inform his house that he was not coming home. On the same aspect, PW4/Anant has stated that after lodging the missing report it is Pradip who telephoned the neighbour of the accused whether the accused Pramil was at home only to be told that the accused was not at home. It is obvious that there is material variance in the versons given by PW1/Sweta and PW4/Anant as to who exactly phoned the accused at his neighbour's house. PW22/P.I. Wilson D'Souza when questioned on this aspect, stated that he had verified the said phone/contact number of the accused but on further cross­examination he stated that he did not recollect the name of the said neighbour nor did he record his said statement. Admittedly, PW1/Sweta had herself not taken the phone either at 8.00 a.m. or 10.00 a.m., on both the occasions the telephone having been attended to by her mother and it is also quite possible that the mother was called by someone else and the mother gave the name of the accused or this part of the story has been introduced by PW1/Sweta subsequently since as we have already noted in case PW1/Sweta knew that her mother, the deceased had gone to Pernem on being called by the accused that PW4/Anant would not have gone in search of his wife, the deceased either at the Police Station to find out whether she had met with an accident or at the house of their friends or relatives. This story does not appear to have been thought of prior to -11- 29­11­2002 i.e. prior to search and lodging of missing report. The case of the prosecution as narrated by PW1/Sweta that her mother told her that accused had called her is a circumstance which in our view is not proved beyond doubt and, therefore, could not be held as proved against the accused. 7. The next circumstance which has been considered by the learned Sessions Judge is that the shirt of the accused was found with human blood on both the folded sleeves when the accused was arrested on 1­12­2002 at 12 noon. In this regard PW22/P.I. Wilson D'Souza stated that he arrested the accused on 1­12­2002 and attached the clothes worn by the accused namely a shirt, a jean pant and shoes and it has been stated by PW7/Rajendra who was a panch witness to the attachment, that the accused was wearing a black pant(Exh.A/MO.12), a long sleeves light blue shirt(Exh.D/MO13) and leather shoes(Exh.D/MO15) and the accused was asked to remove the same. He stated that the said articles were packed separately and the packets were sealed and the shirt was dirty and where the sleeves were folded there was blood on the said folds. He also stated that there was a receipt of Mac Auto Service Station dated 29­11­2002 indicating that the vehicle was washed. However, when -12- he was cross­examined he stated that the accused was brought from inside the Police Station and that he did not know as to from where the accused was brought to the Police Station nor was he told about the same. PW22/P.I.Wilson D'Souza in his cross­examination stated that he had seen the accused for the first time at the time of his arrest on 1­12­2002 when he was brought by his staff from Pernem Police Station but he did not know the names or the buckle numbers of the staff who had brought the accused to the Police Station nor had he mentioned their names in the case diary. He stated that he had contacted the P.I. of Pernem Police Station and had requested him to send the accused to Anjuna Police Station and thereafter the accused was sent to Anjuna Police Station at about 12 p.m. but he did not recollect whether there was any entry on the station diary to the effect that the staff from the Anjuna Police Station had gone to Pernem Police Station. It was suggested to him that the accused was brought to Anjuna Police Station on 30­11­2002 during night time, a suggestion which he denied. According to the accused, when the accused came home on 29­11­2002 in the night, his father Gajanan told him that he was called at Pernem Police Station and upon questioning his father he had come to know that the Police had visited his residence but had not given any reason as to why the accused was called at Pernem Police Station and since it was -13- late he decided to come to Pernem Police Station on the next date and accordingly on 30­11­2002 he went to Pernem Police Station to find out why he was called and when he saw that many persons from Nagzar village were present along with the family members and relatives of the deceased and the said persons were arguing with the Police and demanding the arrest of the accused and, therefore, the accused was detained at Pernem Police Station on the whole day and in the night was brought to Mapusa and given in custody of Anjuna Police Station and has been falsely shown as arrested by Anjuna Police Station on 1­12­2002. If at all the accused had blood stains on the folds of the sleeves of his shirt, the same ought to have been seen by PW14/Tanko Parloskar when both of them went to Vasco da Gama on the motorcycle of the accused and later by PW15/Manoj Thakur when he met the accused and the said Tanko at the house of Kiran Thakur. It has been admitted by PW1/Sweta that the accused was present at Pernem Police Station on 30­11­2002 when she had gone there between 9 a.m. to 4.30 p.m. where she and her family members and some villagers were also present and it is difficult to believe that none of them saw the blood stains on the folds of the sleeves of the accused at that time. It is also very difficult to believe that none of the Officers of Pernem Police Station also saw the said blood stains when the family members and other neighbours were -14- demanding the arrest of the accused. We may safely conclude that the accused was first at Pernem Police Station from 9 a.m. onwards of 30­11­2002. He was arrested by Anjuna Police Station at around noon of 1­12­2002. The Arrest Panchanama was certainly not made when the accused was arrested but when the accused was already in custody of the Police and in such a situation we would be constrained to observe that if at all blood stains were found while the accused was in custody of the Police it was for the Investigating Officer to explain the same and the accused owed no duty to give an explanation. That apart, if it is the case of the prosecution that the accused got his motorcycle washed at Margao, it is difficult to accept that the accused would have gone with the same shirt which he might have used on 28­11­2002 when the message was kept for him to come to Pernem Police Station. The accused being a motorcycle pilot might not have been in the habit of changing his shirt daily, but certainly, the accused when called by the Police would not have gone with the same shirt. In this context the observations of the Apex Court in the case of Yamnappa Shirgumpi v. State of Karnataka(1981 SCC(Cri.) 271) referred to by the learned Sessions Judge were very much relevant. The Supreme Court observed that when the accused had appeared before the Police as an innocent person, he would not have done so after wearing blood stained -15- clothes so as to entangle himself in a murder case, specially when he had sufficient time to destroy those clothes or the stains of blood on them. The motorcycle washing receipt(Exh.56) in support of which PW18/Sabia Sheikh was examined and which was found with the accused along with a wrist watch, motorcycle driving licence and cash was put in a transparent polythene bag and was marked as Exh.D. On this aspect, PW22/P.I.Wilson D'Souza was cross­examined and he stated that he had taken the said article Exh.D from Head Constable Shetgaonkar whenever required and the said receipt was shown to PW18/Sabia Sheikh. He stated that the said receipt (Exh.56) and other items were packed in a transparent polythene bag and the said polythene bag was put in envelope which was sealed in front of panchas and at the time of showing the said receipt to PW18/Sabia Sheikh he had opened the said sealed envelope but had not opened the said polythene bag which was also sealed and he had prepared a memorandum at the time of opening of the said envelope which was recorded in the muddemal register but he did not recollect of having made any entry to that effect in the station diary and that he had resealed the said envelope after showing the receipt to the witness and a memorandum was also prepared and the said envelope was opened and resealed at the Police Station. Here it may be noted that PW7/Rajendra Shetye had stated only as regards articles -16- being put in plastic bag and being sealed. He did not refer to the plastic bag being put in an envelope and being sealed. We are unable to understand how a plastic bag after heat sealing could be sealed with wax seals which would not stick to plastic. It is only PW22/P.I. Wilson D'Souza who has stated that the plastic bags were put in envelopes which were sealed. If that is so, that is how sealing had to be done. However, the cross­examination of PW22/P.I. Wilson D'Souza shows that he had interfered with the seals of the envelope at his whim and fancy, and not in presence of any pancha witnesses and in such a situation the possibility that Exh.B in which the shirt was packed, was also tampered with could not be ruled out. This circumstance is not proved beyond reasonable doubt against the accused. 8. The third circumstance which has been considered by the learned Sessions Judge is the attachment of Rs.5,800/­ from the house of the accused which in the opinion of the learned Sessions Judge represents the money paid on the sale of the bangles/patlis. If the Investigating Officer is to be believed, it is PW2/Suresh Vernekar who told him that he had purchased the said gold bangles for Rs.8000/­ on 2­12­2002 and if that is so the immediate question which the Investigating Officer ought to have addressed, was to ask the accused as to where was the amount received by -17- him upon the sale of the said bangles/patlis but nothing of that sort appears to have happened on 2­12­2002 and the seizure is made on 3­12­2002 and all that has been stated by the Investigating Officer is that he recovered from the house of the accused under panchanama Exh.36 a sum of Rs.5,800/­. Admittedly, it is not the case of the prosecution that the said amount was attached pursuant to any information given by the accused. PW11/Mahadev Naik who was examined by the prosecution in support of the said panchanama stated that he was called to the house of the accused at Butawadi, Pernem on 3­12­2002 at about 5­15 p.m. and at that time the father of the accused as well as the accused were present and the father of the accused named Gajanan Rao stated that on 30­11­2002 his son gave him a parcel and he handed over the same to the I.O. and on opening the same it was found to contain Rs.5,800/­ in the denominations of 3 x Rs.500, 36 x Rs.100 and 14 x Rs.50. It was pointed out on behalf of the defence before the learned Sessions Judge as well as