1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 59 OF 2009 State through P.I. Vasco Police Station, Vasco da Gama, Goa. 403 802. ... Appellant V e r s u s Pritika Borkar, w/o Pradeep Borkar, r/o H.No.611, Near Goa Shipyard Ltd., Vaddem Vasco. ... Respondent Mr. C. A. Ferreira, Public Prosecutor for the Appellant. Mr. E. Mendes, Advocate for the Respondent. CORAM: R. M. SAVANT, J. Judgment Reserved on : 21.01.2010. Judgment Pronounced on : 02.02.2010. 2 JUDGMENT: The State has filed the above Appeal against the Judgment and Order dated 26.2.2009 of the learned Judicial Magistrate First Class, Vasco-Da-Gama, Goa, by which the Respondent/Accused has been acquitted of the offences punishable under Sections 325, 504 and 506 of the Indian Penal Code. 2. The prosecution case is that the complainant one Shubhangi Palekar was putting glass pieces on the compound wall, at that time the accused came with a broom and cleared the glass pieces and that there was an altercation between the accused and the complainant and that the accused threw a stone on the complainant which hit the left eye of the complainant due to which she sustained injuries to the said left eye. It is also alleged that the accused also abused the complainant with filthy words 'Chedi, Randgye'. It is further alleged that the accused also threatened her with dire consequences so also the sons of the complainant who were near the scene of offence. A scene of offence panchanama was conducted. The charge-sheet was thereafter filed against the accused. 3 3. The charge came to be framed against the accused for the offences punishable under Sections 325, 504, 506 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 4. The prosecution in all examined six witnesses. PW1 Sanjay Kudav who was the pancha, the complainant herself Mrs. Shubhangi Palekar, PW3 one Custodio Sequeira, PW4 son of the complainant Suraj Palekar, PW5 ASI Sushma Bhamera and PW6 the Medical Officer Dr. Audrey Quadros D'Sa in support of its case. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code. The accused denied the charges in the said 313 statement. 5. The Trial Court on the basis of the evidence that was before it came to the conclusion that the prosecution has failed to prove the charge beyond reasonable doubt. The Trial Court observed that the evidence of the independent witness PW3 Custodio Sequeira could not be relied upon for convicting the accused for the offences alleged against her. Resultantly, by the impugned judgment and order dated 26.2.2009 the accused was 4 acquitted. 6. I have heard the learned Public Prosecutor Mr. C. A. Ferreira for the Appellant and learned Counsel Mr. E. Mendes for the Respondent/Accused. The thrust of the submissions of the learned Public Prosecutor in the Appeal was on the perversity of the findings recorded by the learned J.M.F.C. whereas the thrust of the submissions of the learned Counsel for the Respondent/Accused was on the loopholes in the prosecution cases and resultantly the justification of the findings recorded by the Trial Court acquitting the accused. The learned Public Prosecutor for the Appellant and the learned Counsel for the Respondent therefore advanced submissions, one in favour of conviction and the other in favour of confirming acquittal of the accused. In support of its case the prosecution as mentioned herein above examined six witnesses. The scene of offence panchanama was sought to be proved through pancha witness PW1. The said PW1 has stated that on 13.5.2005 he acted as a pancha witness at the request of the police along with another person by name Micheal. The said witness has stated that the 5 panchanama was conducted in the verandah of the house of the complainant. The spot was shown by the complainant Shubhangi so also by the police. He further stated that he saw stone pieces and that they were laterite stone pieces ( chire ) and that the police put the pieces in the bag. He has further stated that the panchanama began at 6.00 p.m. and got over at 6.30 p.m. The said PW1 was shown the M.O. and he has identified the same as the one attached under the panchanama. In so far as the said witness is concerned, it would be pertinent to note that the PW1 has stated that he saw laterite stone ( chire ) however in the cross examination he has stated that the M.O. was not chire but small piece of stone ( mud ). It would also be pertinent to note that the said witness has stated that the police were already at the scene of offence before PW1 reached the scene of offence. The said witness has stated that besides identifying the stone he has not done anything at the scene of offence. It is further stated by him that he reached the scene of offence when the police were already writing the panchanama. The said witness further stated that he and the other panch witness Micheal did not tell the police to record in the panchanama as to what was observed at the site. The said witness has stated that he has read the panchanama and he does 6 not know what was written in the panchanama at Exhibit 15. He has stated that the police told him what was written in the panchanama when he signed the panchanama but he did not recollect what was written in the panchanama. It has come in the evidence that when he reached the scene of offence, the panchanama had already started. He has stated that the pieces were of stone because all the pieces were on the ground. PW1 has identified his signature on the panchanama at point 'X'. The prosecution has not examined the other pancha witness who was one Micheal. The statements made by the said PW1 pancha witness in his evidence does not inspire confidence as to whether he was actually present when the panchanama was drawn or whether he reached the scene of offence after the panchanama. 7. Now coming to the evidence of the complainant Shubhangi Palekar who was PW2 at whose instance the FIR was recorded on 13.5.2005. According to the PW2, the incident occurred on 13.5.2005 at 12.30 hours. PW2 has stated that they had planted glass pieces on their compound wall meaning thereby that she and her son Sandesh and that the accused started abusing them and the accused came with a broom and cleared the glass 7 pieces. The complainant and her two sons namely Sandesh and Suraj were in the verandah. PW2 states that the accused threw a stone at her which hit her left eye due to which she sustained injury to her eye. It is further stated by PW2 that first she went to Vasco Police Station and then to Chicalim hospital and from Chicalim hospital to G.M.C., Bambolim. The M.O. contained in a brown envelope with the signature of ASI Sushma Chopde and two panchas was opened and in the envelope there was a newspaper in which the pieces of stone were wrapped and pieces of stone were attached under the panchanama. PW2 has stated that the stones were in the verandah. It is the case of the accused that PW2 was giving bad words to the accused while she was clearing the glass pieces from the compound wall and while the accused was clearing the glass pieces, PW2 started quarreling with the accused and in the course of the quarrel PW2 snatched the broom from the accused resulting in a tussle for the broom. Further, it is the case of the accused that in the tussle PW2 lost her balance with her glasses falling from her face and she injured herself by hitting the glass pieces on the compound wall. It is also the case of the accused that the M.O's are mud stones collected from the flower pot. In so far as the complaint is concerned the PW2 initially 8 stated in the cross examination that she lodged a complaint and that she read the complaint and thereafter she has stated that she did not read the complaint and it was read by her children. PW2 has further stated that without spectacles she cannot see the object. Though she has stated that she could read the complaint with one eye and at the time of signing the complaint she was not wearing spectacles. It has come in the evidence of PW2 that the accused picked up a stone in her hand and threw it at her which hit her left eye. PW2 has identified her signature on the complaint which is marked at Exhibit 14 at the point marked 'X'. PW2 has also stated that the panchanama commenced at 6.00 p.m. and got over at 6.30 p.m. 8. Before coming to the evidence of one Custodio Sequeira who can be said to be a star witness for the prosecution. It would be relevant to see the evidence of PW4 who is son of the complainant as regards the manner in which the incident has occurred. According to the PW4 Suraj, his brother Sandesh Palekar was putting the glass pieces on the compound wall. PW4 has stated that the accused threw a stone at his mother which hit her left eye and she sustained injury. PW4 has stated that 9 between two compound walls of the accused and the complainant there is a space sufficient to allow one person to pass. PW4 has stated that the stone where it landed became powder. PW4 has stated that prior to the present incident there was a quarrel between the family of the accused and the family of complainant on account of the compound wall. PW4 has stated that they had shown cement and glass pieces fallen near the compound wall to the police and glass pieces were not attached by the police. The glass pieces were put on the cement of the compound wall. According to the PW4 there is a previous enmity between the family of the complainant and the family of the accused. From the evidence of PW4 what can be summarized is that his brother Sandesh was putting glass pieces on the compound wall and that the accused had thrown a stone at the complainant who is his mother hitting her on the eye and that the relations between the complainant and the accused were strained. 9. Now coming to the evidence of PW3 Custodio Sequeira. The said PW3 knows the family of the complainant as the son of the complainant Sandesh is his friend. It is the evidence of PW3 that on 13.5.2005 at about 12.15 hours he had gone to the house 10 of the complainant to meet Sandesh Palekar and at that time Sandesh was putting glass pieces on the compound wall of his house. It is further his statement that PW2 and her two sons namely Sandesh and Suraj were there in the verandah at the relevant time and according to PW3 Sandesh was putting glass pieces on the compound wall. According to PW3, the accused brought a broom and cleared the glass pieces from the compound wall and the accused picked up a stone and threw it on the complainant which hit the complainant on the left eye and that the eye of the complainant was swollen with injury. According to the said witness the stone was having a girth of four inches and the stone fell on the ground and broke into pieces. PW2 has stated that the stone was of mud. Between the house of the complainant and the accused there are two compound walls, one of the complainant and other of the accused and that the house of the complainant and the accused is at a distance of about one metre respectively from the compound wall. In the cross examination it has been stated by him that he reached the house of Sandesh at 12.15 hours when Sandesh told him to wait as he continued to fix glass pieces to their compound wall for about 15 minutes and then he came. He has further stated in the cross examination that he 11 was standing and waiting for Sandesh near door of his house and that prior to the abuses mentioned in the examination in chief, he had heard the discussion between the complainant and the accused on fixing glass pieces on the compound wall. Thereafter, he has immediately stated that when there was discussion, the complainant was inside the house and thereafter she came out upon hearing the noise. He has further stated that he had not told the police that he had heard the discussion between the accused and the complainant before the accused gave abuses. He has further stated that the complainant was not wearing glasses but now she is wearing glasses after the incident. 10. A reading of the evidence of said PW3 shows that he has not corroborated the story put up by the complainant PW2 and her son PW4 Suraj as regards the manner in which the incident had occurred. It can further seen from the evidence that he has contradicted himself firstly by stating that the discussion took place between the accused and the complainant and thereafter in the cross examination stated that the complainant came out after hearing the noise. This is in my view a material contradiction, apart from the fact that he has not corroborated the incident as 12 narrated by PW2 and PW3 in as much as he stated that the complainant PW2 came out in the verandah after she heard the noise on account of the discussion which took place between the accused and Sandesh. Therefore, there is a material contradiction in the evidence of the PW3 who is supposedly an independent witness as regards the manner of the occurrence of the incident, apart from the fact that he has not corroborated the story put up by the complainant PW2 and PW3. 11. Now coming to the evidence of the Investigating Officer Sushma Bhamera who is PW5. She has reiterated that the incident had taken place on 13.5.2005. In her evidence she has given details about the investigation carried out by her. She has stated that she has recorded the statement of PW3 Custodio Sequeira on 12.7.2005 and she has recorded the supplementary statement of the complainant on 7.12.2005. The reason given for the same is that she has not met the said complainant until 7.12.2005. She has further stated in her cross examination that whenever she used to get time she used to visit the house of the complainant. She has further stated that she has called the witnesses many times at the Police Station to record their statements but they did not 13 remain present and as such she had to go to their houses to record their statements. Here it would be pertinent to note that PW2 has also stated that after the incident the police were coming to her house after every alternate day. From the aforesaid evidence, therefore, it can be seen that the witnesses were available but their statements were not recorded immediately. The statement of the PW5, therefore, for recording the supplementary statement of PW2 on 7.12.2005 on the ground she was not available, therefore, cannot be believed. There is obviously inordinate delay in recording the statement of the witnesses which in my view is detrimental to the case of the prosecution. 12. In so far as the aspect of injury is concerned the prosecution has examined PW6 Dr. Audrey Quadros D'Sa. The said witness was examined pursuant to an application filed by the prosecution which came to be allowed by the learned J.M.F.C., and the said statement of PW5 was recorded after recording of 313 statement of the accused. The said PW6 had medically examined the complainant Shubhangi Palekar. PW6 has mentioned the injuries sustained by the complainant. She has produced the certificate issued by the Bambolim hospital which is marked at 14 Exhibit 39. PW6 in her evidence mentions that the injury mentioned in her certificate could be caused if hit by a stone. M.O. was shown to the PW6 and a question was asked to her if a person is hit with such an M.O. whether the injury suffered by the complainant could be caused to which the PW6 answered that if the stone is hit with great velocity the injury mentioned in the certificate can be caused. PW6 has further given the explanation that the injury mentioned in the certificate is classified as grievous because the patient could have lost sight as a result of the injury. Now coming to her cross examination, it has been stated by PW6 that the injury mentioned in the certificate at Exhibit 39 could be caused by any blunt object and the blunt object could not only be a stone. She has further stated in her cross examination that the injury which was suffered by the complainant was between 28 to 48 hours ecohymosis i.e. bleeding around the eye and it could be caused after six hours of the injury and that ecohymosis can last one to two weeks. The witness has further stated that the right vision of the complainant that she has mentioned in her certificate at Exhibit 39 at point 5 would require prescription glasses and in respect of the left eye which she has received the injury could gauge the vision of that eye prior to its injury. 15 13. Now coming to the incident on the basis of which the offence under aforesaid Sections came to be registered against the accused. In so far as the said incident is concerned as mentioned herein above, there is a material contradiction in the evidence of PW3 who is supposedly a star witness of the prosecution. Apart from the said contradiction the evidence of the said PW3 does not corroborate the story put up by the complainant and her son PW4. The contradiction in the evidence of PW3 is as regards a very material circumstance which is as regards the point at which the complainant was present in the verandah. At the cost of repetition, it is required to be noted that in the examination in chief, PW3 has stated that a discussion took place between the accused and the complainant as regards the glass pieces and all three were in the verandah i.e. two sons of the complainant and the complainant whereas in the cross examination he has stated that the complainant came out on hearing noises on account of the discussion. This according to me is a material contradiction in the evidence of PW3 and therefore gives a dent to the prosecution story as regards the manner in which the incident had occurred. It would further have to be noted that the complainant in her statement as well as in her evidence has stated that “ we were 16 putting glass pieces” meaning thereby that she and her son Sandesh were putting glass pieces. This can be seen also from the evidence of PW4 Sandesh. This case is not supported by PW3 as PW3 states that only Sandesh was putting the glass pieces when he arrived at Sandesh's house at 12.15 hours. Therefore, the said evidence of PW3 would also be a circumstance against the prosecution. Now coming to the aspect of the object which was used namely the stone. The pancha witness Sanjay Kudav has stated that the stones which were put in the bag were chire and they were the M.Os. Whereas the stones which could be seen after the envelope containing the M.Os were opened were stones of mud. This is another circumstance which would have to be taken into consideration as there is a world of difference between a laterite stone like chire and stone in the nature of mud balls. 14. In so far as the injury is concerned PW3 has stated that the stone which was thrown on the complainant was having a girth of four inches. It is impossible to believe that the stone having a girth of four inches would cause injury in the nature of the one 17 suffered by the complainant as the stone of that size would virtually damage the eye completely and not cause only injury. It would further have to be seen that though it is the case of the prosecution that the complainant was referred firstly to the Chicalim hospital and thereafter to the Bambolim hospital on the same day i.e. 13.5.2005. No record in so far as Bambolim hospital for the said date i.e. 13.5.2005 has been produced. It would also be pertinent to note that PW6 who is a Doctor who has examined the complainant has stated that ecohymosis can have a effect of one or two weeks. She has further stated that the injury can be by a blunt object and that the injury caused to the complainant can be caused by a stone of the nature of the M.O if thrown at a great velocity. The aforesaid circumstances, therefore, in my view, create a doubt as regards the prosecution story in respect of the injury caused to the complainant as regards whether it was caused on account of the alleged incident. 15. The Trial Court, therefore, has rightly held that the evidence of PW3 is not consistent and corroborative to the evidence of the complainant and her son and conviction cannot be based on the evidence of PW3. The Trial Court has further recorded a finding 18 that PW3 was shaken in the cross. This finding has been recorded in view of the fact that there has been contradiction in the evidence of PW3 as well as in view of the fact that he has not corroborated the case of PW2 and PW4. 16. Now coming to the case of the accused. It is the case of the accused that she was clearing the glass pieces near the compound wall and so there were glass pieces on the compound wall and there was a tussle between the complainant and the accused and in the course of the said tussle the complainant fell on the ground on her face and she got injured as she hit herself against the glass pieces of the compound wall. Though the Trial Court has not disbelieved the evidence of DW1, in my view, the evidence of DW1 for the facts mentioned in the judgment wherein the DW1 has suffered a decree at the hands of the complainant, as a suit filed by the said DW1 against the complainant has been dismissed can be a circumstance against the DW1 and therefore, his evidence does not inspire confidence. However, the acquittal of the accused in my view, will have to be upheld in view of the fact that the prosecution has not able to prove the offence alleged against the accused under Section 325 of I.P.C. beyond reasonable 19 doubt. In so far as the other offences under Sections 504 and 506 of I.P.C. are concerned, the learned Public Prosecutor has fairly conceded that the finding of the Trial Court in respect of the said offences in the light of the material on record cannot be faulted with. I have perused the evidence in so far as the said offences are concerned and in my view, the Trial Court was justified in acquitting the accused of the said offences also. 17. The learned Public Prosecutor relied upon the judgment of the Apex Court reported in 2000 (8) SCC page 382 in the matter of State of W.B. V/s Mir Mohammad Omar and others in support of his submission that merely because there was delay in recording the statement that cannot be a ground against the prosecution for acquitting the accused. In my view, apart from the said delay in view of the evidence of