1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 8/2008. STATE OF GOA ... Appellant. Vs. 1. Dayanand Vishram Ghadi, s/o Vishram Ghadi, r/o H.No. 81, Chiknem, Kudnem – Goa. 2. Sanjay Vishram Ghadi, s/o Vishram Ghadi, r/o H. No. 81, Chiknem, Kudnem, Goa. 3. Gokuldas Vishram Ghadi, s/o Vishram Ghadi, r/o H.No. 81, Chiknem, Kudnem, Sanquelim, Goa. ... Respondents. Ms. Winnie Coutinho, P.P. For the Appellant. Mr. Auro Oliveira, Advocate for the Respondents. Coram: V.K. Tahilramani, J. N.A. Britto, J. DATE : 4th November, 2009. ORAL JUDGMENT (Per.Smt.V.K. Tahilramani,J.) Through this appeal the appellant- State of Goa has challenged the judgment and order dated 26.2.2007 passed by learned II Additional Sessions Judge, Panaji in Sessions Case No. 15/2005. By said judgment and order the learned Sessions Judge 2 acquitted the respondents, original accused Nos. 1, 2 and 3 of the offences under Section 302, 323 and 504 read with Section 34 of I.P.C. 2. The prosecution case briefly stated is as under: Gurudas Ghadi (deceased) was residing alongwith his wife P.w.23, Nalini Ghadi and his children P.w.10 Reshma Ghadi and P.w.14, Sandeep Ghadi at Chiknem, Bicholim, Goa. The accused persons were residing near the house of the deceased. It is the prosecution case that, on 18.1.2005 at about 7.15 p.m., the accused came near house of Gurudas and inquired with Gurudas about the whereabouts of his son Subash. Thereafter all the accused assaulted Gurudas with dandas and sticks. On seeing the incident P.w.10, Reshma Ghadi and P.w. 23, Nalini Ghadi shouted for help. They were assaulted by accused No. 1. Due to the assault, Gurudas Ghadi expired on 20.1.2005 at about 7.05 a.m. After his death, P.w.10, Reshma Ghadi lodged her F.I.R. (Exhibit 42). Thereafter investigation commenced. The body of Gurudas was sent for Post Mortem. P.w.19, Dr. Madhu Godkirekar, carried out the post mortem examination of the dead body of 3 Gurudas on 20.1.2005. He found 6 external injuries, namely one stitched contused lacerated wound on the right frontal parietal region (1) contusion on the right temporal region of the scalp; (2) abrasion on the tip of nose; (3) bruise on the left chin; (4) bruise on the left thigh; (5) and features of black eye for right eye; (6) Abrasion on tip of nose. According to the doctor all injuries were ante mortem in nature and could be caused by a blunt object. According to Dr. Godkirekar the cause of death was due to Cranio cerebral damage, vide injury No. 1 and 2, consequent to the blunt force impact by an object or surface, which was fatal in the ordinary course of nature. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against all the three accused persons under section 302 read with Section 34 of I.P.C. for causing the death of Gurudas Ghadi, Section 323 read with Section 34 of I.P.C. for causing hurt to Reshma Ghadi, Nalini Ghadi and Sandeep Ghadi. Charge was also framed under Section 504 read with Section 34 of I.P.C. for intentionally insulting and thereby giving 4 provocation to Gurudas Ghadi. All the accused pleaded not guilty to the said charge and claimed to be tried. The defence is that of denial and false implication. In addition thereto, accused No. 3 has taken the defence of alibi. It is his specific case that on the relevant day, he was working at Dignem mines and his shift was from 2.00 p.m. To 9.00 p.m. Hence, he was not present at the spot when the incident took place. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted all the respondents/accused of all the offences charged. Hence this appeal. 4. We have heard the learned Public Prosecutor and the learned counsel for the respondents-original accused. We have perused the evidence as well as the judgment and order passed by the learned Sessions Judge. After anxiously considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5. The prosecution has placed reliance on the evidence of 5 eye witnesses. The 5 eye witnesses 5 are P.w.10 Reshma Ghadi, P.w.14, Sandeep Ghadi, P.w. 16 Sucheeta Ghadi, P.w.20 Shantaram Ghadi, and P.w. 23 Nalini Ghadi. P.w.10 Reshma Ghadi is the star witness and also the complainant in the present case. She is the daughter of deceased Gurudas. The prosecution case is that she was also injured in the incident. Reshma has claimed that accused No. 1 Dayanand had assaulted her with danda. P.w.9 Dr. Kankonkar examined Reshma, he has categorically stated that on examination, no injuries at all were found on Reshma. This fact raises slight doubt in the mind about the veracity of the evidence of Reshma. 6. As far as the incident is concerned Reshma has stated that on 18.1.2005 at about 7.30 p.m. When her father Gurudas was going from their house which is at the lower level to the house of her brother Subash which is at the higher level, all the accused persons came from their house which is in their neighbourhood. All the three accused persons were armed. Accused No. 1 and 2 were armed with dandas and accused No. 3 was armed with a stick. They asked her father about whereabouts of his son Subash. Her father questioned them as to why they 6 wanted his son. Thereafter all the accused persons started assaulting her father. As a result of the assault, Gurudas fell down in the courtyard of Shantaram. Even thereafter accused continued assaulting him. Reshma and her mother Nalini shouted for help. As they were shouting, accused No. 1 Dayanand assaulted her and her mother with danda. She was assaulted on her left hand and mother was assaulted on her back. Reshma also stated that her father was assaulted on his head, nose and stomach. On hearing their shouts, P.w.20 Shantaram came to the spot and questioned the accused as to what they were doing. Thereupon accused persons went to their house. Thereafter, her brother Sandeep and Shantaram took Gurudas to the hospital for treatment. During the cross examination of this witness, a large number of omissions were brought on record. The evidence of Reshma in her examination in chief that after Gurudas fell down in the courtyard of Shantaram, even thereafter the accused continued assaulting him is proved to be an ommission. So also her averments in examination in chief that after Gurudas fell down and the accused continued to assault, she and her mother Nalini shouted for help, as they were shouting, accused No. 7 1 Dayanand assaulted both of them with danda, She was assaulted on her left hand and her mother was assaulted on the back and her father was assaulted on his head, nose and stomach have been proved to be omissions. Thus, it is seen that as far as the incident is concerned, a major portion of her testimony in the examination in chief of Reshma have proved to be omissions. Many of these omissions are material omissions. Moreover, not finding any injury on her person also shakes the credibility of this witness a little. 7. P.w.23, Nalini Ghadi has stated that all the accused persons came in front of her house and they were shouting for Subash. They had dandas in their hand. Her husband left the house to call Subash. When he reached the courtyard of Subash, all accused assaulted her husband with dandas. She has also stated that accused No. 1 assaulted her as well as Reshma. She and Reshma had sustained injuries and they were examined by the doctor. As observed earlier by us the doctor did not find any injuries on Reshma. Whereas injury found on Nalini was according to Dr. Kankonkar simple in nature and was such as to be caused by fall on hard 8 surface. 8. P.w.20, Shantaram Ghadi has deposed that at about 7.15 p.m. he heard noise, he came out, he saw accused No. 1 and 2 were assaulting Gurudas with bamboo dandas on the head. This witness does not mention about any assault on Nalini and Reshma. As far as accused No. 3 Sanjay Ghadi is concerned, he has only stated that accused No. 3 was standing nearby and he was having danda in his hand. It is pertinent to note that this witness has not ascribed any role of assault to accused No. 3. The evidence of P.w.16 Sucheeta Ghadi and P.w.14 Sandeep Ghadi is on similar lines as that of Shantaram. They have also not ascribed any role of assault to accused No. 3. P.w.14 Sandeep is the son of the deceased. He has simply stated that accused No. 3 Sanjay was holding a stick. This witness in addition has stated that accused no. 2 Gokuldas came running behind him with bamboo danda. However, no other witness has stated that A-2 Gokuldas went running behind Sandeep with bamboo danda. 9. Thus, it is seen that as far as eye witnesses are concerned, there is no consistency in 9 relation to the roles assigned by them to the accused persons. P.w.20 Shantaram Ghadi, P.w.14 Sandeep Ghadi and P.w.16 Sucheeta Ghadi do not involve accused No. 3 as having assaulted the deceased. So also these three witnesses do not mention about any assault on Reshma or Nalini. We find that there is inconsistency even in respect of weapon held by the accused persons. P.w.23 Nalini and P.w.20 Shantaram have stated that A-3 Sanjay was holding danda, whereas P.w.10 Reshma, P.w.14 Sandeep and P.w.16 Sucheeta state that A-3 Sanjay was holding stick. Thus, as far as role of the accused and weapons are concerned, we find material discrepancy, which results in creating a cloud of doubt in the mind. 10. No doubt the eye witnesses have implicated the accused persons, however, it is noticed that the incident had occurred at about 7.15 p.m. in the month of January. P.w.14 Sandeep Ghadi has categorically stated that at the relevant time it was totally dark. So also P.w.16 Sucheeta has admitted that “It is true that it was totally dark at that time.” The learned Public Prosecutor in her arguments pointed out that infact the other 10 witnesses have stated that there was some light, and, in this context she has brought to our notice the evidence of P.w.10 Reshma who has stated that it was slightly dark at the time of the incident. However, the deposition of P.w.16 Sucheeta, P.w.14 Sandeep read with the site plan (exhibit 11) which clearly indicates that there were no tube lights or lamp posts around the spot of incident shows that there was no sufficient light at the scene of incident. In such case it would be difficult for the witnesses to identify the accused persons in the dark. 11. Another aspect of this case is that though the incident has occurred on 18.1.2005, the F.I.R. Has been lodged by Reshma on 20.1.2005. No reasonable or plausible explanation has been furnished by prosecution as to why F.I.R. was recorded after a delay of two days. 12. The prosecution has tried to rely on the dying declaration (exhibit 89) recorded by P.w.27 ASI, Vithal Gawas. P.w.27 has deposed that on 18.1.2005 at PHC Sanquelim he recorded the statement of Gurudas. He has deposed that he had inquired 11 with the doctor on duty and the doctor allowed him to record the statement of the injured victim. But he has admitted that the doctor has not given him any written note that the patient was fit to give statement nor any endorsement of the doctor was obtained by him on the statement of said injured person that the person was in a fit state to give his dying declaration. 13. P.w.8, Dr. Talash Kundaikar was at the P.H.C. when Gurudas came to be admitted. He examined Gurudas. The Doctor has not whispered a word that at the P.H.C. statement of Gurudas was recorded by any policeman or that he had given any permission to any policeman to record statement of Gurudas. The endorsement of the doctor that the patient was in fit condition to make a statement was necessary in the facts and circumstances of the present case, especially in view of the evidence of P.w.20 Shantaram who moved the patient to the hospital. Shantaram has stated that when he rushed to the spot Gurudas Ghadi who was bleeding fell unconscious. In view of the evidence on record which shows that Gurudas was unconscious, it was necessary that the doctor certified that the patient 12 was fit to give a statement. 14. If at all Gurudas was conscious, Gurudas was admitted in the hospital on 18.1.2005 and he expired on 20.1.2005. In such case it was very much possible to call the Special Judicial Magistrate and to get the dying declaration of the deceased recorded. However, it was not done. P.w.27 A.S.I. Gawas has admitted that there are Special Judicial Magistrates appointed in Goa for recording statements of witnesses. However, he did not try to contact any Special Judicial Magistrate before he recorded any statement of Gurudas. So also on the next day he did not contact any Special Judicial Magistrate. In fact, though Gurudas expired after two days, no attempt was made to call any Special Judicial Magistrate to record the statement of Gurudas. 15. In respect of the dying declaration, it is further admitted by A.S.I. Gawas that while recording statement of Gurudas, P.w.2 Shantaram Ghadi and the son of Gurudas were present. Moreover, on the dying declaration (Exhibit 89) the thumb impression does not mention whether it is of 13 the left thumb or of the right thumb nor does it mention whose thumb impression it is. Looking to all these facts, we are in total agreement with the learned Sessions Judge that no reliance can be placed on the dying declaration (Exhibit 89) recorded by P.w.27, ASI Shri Gawas. 16. Firstly, in this case, there is delay in lodging the F.I.R. According to the prosecution, there was enmity between the accused and the family of the deceased. Enmity is a double edged weapon. On account of enimical relations between the parties, there is tendency to implicate the other side falsely. From the evidence on record, we find that some attempt has been made to implicate the accused persons falsely. From the C.A. Report (Exhibit 68 colly) it is seen that blood group of the deceased was “AB” Rh positive. The blood group of all the accused persons was “A” negative. It is the prosecution case that on account of the assault, the deceased sustained bleeding injuries and due to these injuries his clothes were stained with blood. These clothes came to be seized under panchanama (Exhibit 44). So also sample of mud from the scene of offence was seized and sent to 14 Forensic Scientific Laboratory. As per the Forensic Scientific Laboratory Report, this mud was found to have blood of “B” group. So also banyan worn by the deceased was found to have blood stains of “B” group. No explanation has been furnished by the prosecution in respect of finding of blood of “B” group. As none of the accused or the deceased had blood of “B” group, the finding of blood of “B” group raises a serious doubt in our mind about the authenticity of the prosecution case. 17. It is the specific case of accused No. 3 Sanjay Ghadi that he did not participate in the incident and infact, at the relevant time he was on duty at Dignem mines. He has examined two witnesses in support of his defence of “Alibi”. The first witness is his wife, A.W.1 Shaila Ghadi. We are not inclined to solely rely on the evidence of Shaila as being the wife of the accused, she would be interested in saving her husband. Hence in such case she may have stated that on the relevant day her husband had left in the morning for work at about 6.00 a.m. and returned home in the night only after 8.30 p.m. However, we have noticed that despite searching cross-examination, nothing has 15 been elicited in her cross-examination so as to disbelieve her testimony. 18. Accused No. 3 has also examined A.W.2 James D'Souza who at the relevant time was the Deputy Mines Manager at Dignem mines. He has stated that the accused Sanjay Ghadi was working at the mines on 18.1.2005 from 8.00 a.m. to 1.00 p.m. being overtime duty and thereafter Sanjay continued the normal duty in the second shift from 2.00 p.m. to 9.00 p.m. He has also produced the attendance register of Dignem mines. The extract of the attendance register is at Exhibit 109. The extract from the register shows that on 18.1.2005 at the relevant time accused No. 3 was on duty at Dignem Mines. This witness has also been subjected to searching cross examination however no dent could be created in his testimony. The evidence of both these witnesses shows that on 18.1.2005 at the relevant time accused was on duty at Dignem Mines. This would clearly show that he has been falsely implicated by the witnesses. If the witnesses could falsely implicate accused No. 3, reasonable doubt arises in the mind that they have falsely implicated accused No. 1 and 2. Given the background of the strained relationship between the 16 two families it cannot be ruled out that the accused persons may have been falsely implicated in this case on account of enmity. It is also noted that all witnesses were related to the deceased as such only interested witnesses have been examined. Though the prosecution witnesses have stated that a number of persons had gathered at the spot, however, no independent witness has been examined by the prosecution. 19. The learned Public Prosecutor stated that there is one more piece of incriminating evidence against all the three accused persons i.e. the weapons have been recovered at their instance. We are not inclined to place any reliance on the recovery panchanamas in view of the statement by pancha witness that they were told by P.I. Shri Gaonkar that the panchanama was of attachment of the danda which was to be attached by going to the house of the accused. Moreover, it is pertinent to note that none of the eye witnesses had given any description of the weapon of assault. All the witnesses were totally silent on this aspect. Moreover, no human blood was found on any of these three dandas as per F.S.L. Report. (Exhibit 95 17 colly). From the F.S.L. Report the weapons cannot be connected with the present crime. Looking to all these aspects we are of the opinion that the learned Sessions Judge was right in not placing any reliance on evidence of recovery of weapons. 20. No doubt, P.w.19 Dr. Godkirekar who conducted the post mortem has stated that the injuries were possible by dandas. However, in his cross examination Dr. Godkirekar has admitted that the injuries on Gurudas could have resulted from a fall and were not necessarily due to an assault. In the cross examination of the photographer, P.w.2 Sriniwas Naik, it has been brought on record that there was a Tulshi Vrundhavan in the courtyard of deceased. It was built of cement and the edges of the upper portion of the Tulshi Vrundhavan were sharp. This is also seen from the photographs i.e. exhibit 19 colly which show that the Tulshi Vrundhavan had sharp edges. With the darkness in the area and due to the uneven level of the land, the defence version that Gurudas had a fall, and sustained injuries seems very much probable. It appears that taking advantage of these injuries on account of enmity, the accused persons have been 18 falsely implicated. 21. The learned Sessions Judge has considered all these aspects and thereafter he has reached the conclusion and in our opinion rightly so, that the prosecution has not been able to prove beyond all reasonable doubt that it was the respondents who had caused injuries to Gurudas. On going through the evidence on record, we find that the view taken by learned Sessions Judge is a reasonable and possible view. 22. The Supreme Court in the case of Khedu Mohton and others Vs. State of Bihar reported in 1970 (2) SCC 450 has observed that in a case of appeal against acquittal if two reasonable conclusions can be reached on the basis of evidence on record, then, the view in support of acquittal of the accused should be preferred. It further observed that the fact that the High Court is inclined to take a different view on the basis of the evidence on record is not sufficient to interfere with an order of acquittal. 23. The plenitude of power available to the 19 Court, hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal will not interfere solely because a different plausible view may arise on the evidence. This has been so observed by the Supreme Court in K. Ramakrishnan Unnithan Vs. State of Kerala, AIR 1999 SC 1428. 24. So also, the Supreme Court in the case of C. Anthony Vs. K. G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence we are not inclined to interfere in the judgment and order of acquittal. 25. Appeal is dismissed. V.K. TAHILRAMANI, J. N.A. BRITTO, J. 20 MF/