IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 18 OF 2002. Vinayak Anurlekar, Mason, r/o H. No. 13, Bendwada, Sanguem. ... Appellant. Versus State through Sanguem Police Station. ... Respondent. Mr. J.J. D’Souza, Advocate under L.A.S. for the Appellant. Mr. S.D. Lotlikar, Senior Advocate as Amicus Curiae. Mr. S.N. Sardessai, Public Prosecutor for the Respondent State. Coram: S.J. VAZIFDAR AND P.V. HARDAS, JJ. Date: 12th March 2003. ORAL JUDGMENT (PER HARDAS, J.) The Appellant, who stands convicted by the District and Sessions Judge, South Goa, Margao, for an offence punishable under Section 302 of the Indian Penal Code, by Judgment, dated 13th February 2002, and sentenced to suffer imprisonment for life, has filed this appeal challenging the aforesaid conviction and sentence. Since this appeal was presented by the appellant through jail, we had appointed Mr. D’Souza, as the counsel for the appellant. During the hearing of the appeal, we had requested Mr. Lotlikar, Senior Advocate, to assist the Court as Amicus Curiae. At the outset we record our appreciation for the efforts taken by Mr. Lotlikar, senior counsel, and the assistance - 2 - rendered to us to effectually decide this appeal. 2. The facts as are necessary, in brief, for the decision of the appeal, are set out hereunder: P.W.21 P.S.I. Manjunath Dessai, was attached to the Sanguem Police Station as an Officer-in-Charge. On 7th October 1999, at about 8.15 a.m., he recorded the complaint of P.W.1 Rajendra Naik, brother-in-law of the appellant/accused. The complainant suspected the appellant/accused of having committed the murder of his father, Uttam. The said complaint is at Exhibit 7. On the basis of the complaint at Exhibit 7, P.W.21 P.S.I. Dessai registered an offence under Section 302 of the Indian Penal Code. After registration of the offence, P.W.21 P.S.I. Dessai proceeded to the scene of offence and drew the scene of offence panchanama, at Exhibit 11, in the presence of P.W.3 Shaikh Nizamuddin. He also drew the sketch of the scene of offence, which is at Exhibit 12. From the scene of offence, P.W.21 attached a wooden stand (Addoli) without the blade. He also drew the sample of the blood mixed with earth and collected sample of plain earth. A plastic tube containing lime and a plastic bag having blood stains were also attached. The wooden stand (Addoli) is M.O.1, the plastic tube of lime is M.O.5 and the plastic bag is M.O.6. The Inquest Panchanama is at Exhibit 13, which - 3 - was conducted in the presence of P.W.3 Shaikh. 3. P.W.21 P.S.I. Dessai had also called for the Dog Squad. During the recording of the scene of offence panchanama the appellant/accused was present in the house but in his room which is near the room in which the deceased was found dead. On the arrival of the Dog Squad, the dog was given the smell of the plastic tube containing lime, M.O.5. The dog on sniffing the plastic tube went inside the room of the accused and barked at him. The appellant was brought outside and made to stand among the people who had gathered there. The dog again went near the appellant and barked at him and pounced on him. The dead body was sent for postmortem, vide requisition at Exhibit 19. The postmortem on the dead body was performed by P.W.5 Dr. Avinash Pujari. The postmortem report is at Exhibit 20. According to P.W.5 Dr. Pujari, deceased Uttam, who was about 60 years of age, died as a result of head injury in the form of fracture of skull bones, damage to brain and intra cranial haemorrhage, due to the impact by hard and blunt object. During investigation a piece of the ear was sent to him, vide letter at Exhibit 21. He found that the piece of ear was the missing piece of ear of the left ear of the deceased. During evidence he was shown a cricket bat M.O.10. He opined that the cricket bat at M.O.10 could cause the fatal injury. During the - 4 - postmortem examination, P.W.5 Dr. Pujari had noticed the following external and internal injuries:- "External Injuries 1. Contusion, red, fresh, longitudinal almost parallel-3 in number with outer margins diffused, inner margins mixed with that of adjoining contusions with a lacerated wound of 3 x 1 cms., at maximum, in centre at posterior end in central part. The said injury was over an area of 18 x 12 cms., bone deep on left side of face and head, on front it was from left cheek 5 cms., below lower eyelid and outer end of eyebrow on forehead, obliquely upwards and backwards over upper part of ear pinna and the part above it extending on parieto occipital area." 4. On further examination of the left ear pinna, he noticed that the part (cartilage) of upper part of ear pinna between 7 cms., from the ear lobule and 6 cms., from upper margin was missing. Internal Injuries "I found that there was extensive diffused effusion of blood in the layers of scalp and underneath from maxillary area on the left side forehead frontal area, squamous part of temporal bone, left parietal and occipital area near lambroid sutured the temporalis muscles underneath is lacerated, the frontal bone squamous part of temporal bone, wings of sphinoid bones parietal. Front of the left occipital bone fractured into multiple pieces of rectangular, irregular size and shape and they are embedded in the brain matter underneath and alongwith lacerated membranes involving supra orbital plates, middle cranial fossa orbital - 5 - cavity left petrous part of temporal bone and ethmoid bone, pituitary fossa and fracture lines extending in various directions." 5. The Appellant was arrested on 7th October 1999. On the next day, that is, 8th October 1999, P.W.21 P.S.I. Dessai interrogated the appellant/accused at 6.30 a.m., and he is alleged to have made a disclosure statement to point out the place where the weapon of assault was hidden and also to point out the place where his clothes as well as the missing piece of the ear of the deceased were kept. The memorandum of disclosure is at Exhibit 30. According to P.W.21 P.S.I. Dessai, he secured the presence of the panchas and the recovery was effected under Section 27 of the Evidence Act. P.W.9 Srinivas Kossambe is the panch witness. A cricket bat (M.O.10) was recovered at the instance of the appellant from his room. The clothes of the appellant (M.Os.11 and 12), namely, shirt and short pant, were recovered from below the cot of the appellant on being pointed out by the appellant. The appellant pointed out the missing piece of ear from the washing place in the kitchen. The clothes of the deceased were attached by panchanama at Exhibit 24 in the presence of P.W.6 Ulhas Naik. The clothes of the deceased are Dhoti (M.O.9) and sweater (M.O.8). The muddemal articles were sent to the Chemical Analyser and the report is on record. P.W.16 Dr. Vinod Naik had examined the accused and the certificate of examination is at Exhibit 45. - 6 - There were no visible injuries on the person of the accused. The appellant/accused was also examined by P.W.17 Dr.(Mrs.) Ujwala Prabhudessai, a Dentist. The certificate is at Exhibit 48. According to P.W.17 Dr.(Mrs.) Prabhudessai, the appellant/accused was using tobacco mixed with lime. P.W.13 Tito D’Cunha, a Surveyor in the Irrigation Department, on request by the police at Exhibit 39, had drawn the sketch of the scene of offence at Exhibit 40. Upon completion of the investigation, a charge-sheet against the appellant/accused came to be filed. 6. On committal of the case to the Court of Sessions, a charge, vide Exhibit 4, for offences punishable under Sections 302 and 201 of the Indian Penal Code were framed against the appellant. The appellant/accused denied his guilt and claimed to be tried. The prosecution in support of its case examined 21 witnesses. The defense of the appellant was of denial and false implication. 7. The learned trial Court found the following circumstances proved against the accused for convicting him for an offence punishable under Section 302 of the Indian Penal Code:- 1. Motive - 7 - 2. Recovery of Cricket bat, clothes of the appellant and the piece of the ear at the instance of the appellant. 3. Conduct of the appellant/accused post discovery of the dead body. The learned trial Court, however, acquitted the accused for an offence punishable under Section 201 of the Indian Penal Code. 8. The prosecution in order to establish the second circumstance, namely, the recovery of the cricket bat, clothes of the accused and the piece of ear of deceased, at the instance of the appellant/accused, has relied on the testimonies of (1) Srinivas Kossambe P.W.9 and P.S.I. Dessai P.W.21. 9. P.W.9 Srinivas states that he alongwith the other panch Narcinva were requested to act as panchas. The time was 6.30 in the morning of 8th October 1999. He further states that the accused agreed to show the cricket bat, clothes and the piece of ear. He further states that the accused removed the cricket bat from beneath the bedsheet placed on the cot. The accused then removed the clothes placed beneath the cot. He further states that the accused went to the bathroom and - 8 - removed a piece of ear. In the cross-examination he has admitted that he has appeared as a panch in one or two cases. He further states that he does not remember whether he has appeared as a panch in many cases besides the two referred to by him. He has further admitted that the bat was on the plank and was covered by a bedsheet. He has also admitted that one could make out that something had been kept beneath the bedsheet. However, it could not be made out that a bat had been placed beneath the bedsheet. He has given the following admissions:- "(a) The room where murder took place is on the left as you enter the house. (b) The house had in all 6 rooms. The articles like bat were found in the second room, the murder having taken place in the first room. (c) I do not admit that 3 rooms are on either side. (d) Excluding the bathroom and the kitchen there were 4 rooms". 10. The statement of P.W.9 Srinivas is totally belied by the evidence on record and the sketch at - 9 - Exhibits 12 and 40. The evidence suggests that the deceased was killed in the first room on the left side of the house. The accused had occupied the third room on the left side. There was a room in between the room where the dead body was discovered and the room of the accused. The third room on the right side includes the kitchen and the bathroom. In fact in one corner of the room is the hearth and in the other corner a bathroom appears to have been constructed. If the bathroom is counted as a room, there are 7 rooms, otherwise 6 rooms. This witness is falsified in his assertion that 3 rooms are not on either side of the house. In such circumstances, it is difficult to accept that this witness was present when the articles were attached in pursuance of the statement of the accused. Moreover, this witness does not explain how he happened to be present in the police station at 6.30 in the morning. 11. P.W.21 P.S.I. Dessai states that the accused volunteered to point out the bat, clothes and the piece of ear. He then secured the panchas. Thus, according to him, the panchas were secured after the disclosure memorandum was recorded of the accused. P.W.9 Srinivas states that the panchas were present at the time of the disclosure by the accused. P.W.21 P.S.I. Dessai states that the bat and the clothes were recovered from the room of the accused, which obviously is the third room. - 10 - He further states that the piece of ear was recovered from the washing place in the kitchen. In the cross-examination he has admitted that he was at the scene of offence from 10.30 a.m. to 4.00 p.m. (on 7th October 1999). He has further admitted that he had suspected the accused on 7th itself. The scene of offence panchanama concluded at 1.45 p.m. and the inquest panchanama at 3.00 p.m.. 12. It is extremely difficult to accept the statement of P.W.21 P.S.I. Dessai that he had not searched the room of the accused on 7th. The articles like bat and clothes could have been noticed in a most cursory search. The piece of ear is not stated by anyone to have been hidden in such a way that it was not visible to anyone. The accused was present in his room when the tracker dog barked at the accused. The accused was the prime suspect and, therefore, it is difficult to accept that the police did not search the house and, particularly, the room of the accused. The discovery is difficult to accept for another reason. The accused, if he had committed the crime, would not keep the bat and the clothes in his own room without making any attempt in the dead of the night to stow the articles somewhere else as the discovery of the dead body was imminent and so also the finger of suspicion being pointed towards the accused. Curiously, if the accused had the bat and - 11 - the clothes in his room, neither P.W.8, P.W.12, nor the other people, who had gone in his room, noticed the bat. The accused was in fact sleeping when P.W.8 Radhabai had gone into his room. None of the witnesses have identified the clothes as those belonging to the accused. Mere finding of the hospital card in the pocket of the clothes would not indicate that the clothes belonged to the accused. On the contrary it is indicative of planting. The discovery of the bat, clothes and piece of ear at the instance of the accused, appears to us to be an attempt on the part of the prosecution to bolster its case. It has all the trappings of the articles having been planted and the discovery stagemanaged. We, therefore, hold that the prosecution has not been able to prove this circumstance against the accused. The evidence tendered by the prosecution does not inspire confidence. 13. The prosecution in order to examine the first and third circumstance has examined the following witnesses;- 1. P.W.1 Rajendra 2) P.W.4 Mithu Naik 3) P.W.8 Radhabai 5) P.W.10 Manoj Naik 6) P.W.11 Megna Naik 7) P.W.12 Rajesh Anulekar 8) P.W.15 Shobha Kauntankar 9) P.W.19 Francisca D’Silva 10) P.W.20 Chandraleka Anulekar. 14. P.W.1 Rajendra, who is the brother-in-law of - 12 - the appellant, states that in October his wife, sister of the appellant, had gone to her parents as she was pregnant. He further states that on 6th October 1999, he had gone to the house of his in-laws and on going there he learnt that his wife had gone to her sister’s house, which was near the house of the deceased. The name of the sister of his wife is Prema. He, therefore, went to the house of Prema for spending the night there. In the house of Prema, his mother-in-law Radhabai, his wife, Prema’s son were there. According to P.W.1 Rajendra, the deceased used to spend the nights in his own house. He further states that on 7th October 1999, at about 7.30 in the morning, he left the house of Prema for going to his own house. On reaching near the house of the deceased he called out to his father-in-law, the deceased. Since he did not receive any response he went inside the house. He did not find the deceased sleeping in his usual place but found the deceased sleeping a little away from his usual place. He called out to the deceased but there was no reply. He noticed blood underneath the face and ear of the deceased. The deceased was noticed sleeping on a mat. On seeing this, P.W.1 Rajendra went to the house of Prema and informed the inmates of what he had seen. He states that thereafter he went to the Sanguem police station and lodged his complaint at Exhibit 7. P.W.1 Rajendra further states that the relations between the - 13 - appellant/accused and his parents were not cordial. The appellant was trying to assault them and had also threatened that he would kill them. P.W.8 Radhabai had gone to Prema’s house on the night of 6th October 1999 due to "fright" of the accused. 15. In the cross-examination he has admitted that he had not seen the deceased Uttam on the night preceding the incident. He has further clarified by saying that when he was going to the house of Prema, the deceased was not in the house. He has also admitted that he had not seen the accused on the night of the incident and had seen the accused at 10.00 a.m. after he had lodged the complaint. He has also admitted that he does not know if the accused was in the house of the deceased during that night of the incident. He has stated that the deceased used to have his supper at the house of the sister of P.W.8 Radhabai and return to his house in the night. He further states that P.W.12 Rajesh had told him that he had night duty. He also states "there were complaints lodged by the deceased, by my mother-in-law, by Prema’s daughter, against the accused on account of threats and assaults". He denied the suggestions that he had lodged a false complaint or that the accused was not harassing them. 16. P.W.4 Mithu Naik, nephew of the appellant and - 14 - son of Prema, states that P.W.8 Radhabai, his grandmother, had come to his house because the accused was assaulting her. He further states that the house of deceased Uttam was under construction and it had no doors. He further states that on 6th October 1999 he had gone to the house of his grandfather, deceased Uttam, at about 7.45 p.m.. At that time P.W.12 Rajesh had gone to take bath and P.W.8 Radhabai was in the house. At about 8.15 p.m. the accused came and pinched his cheeks and asked him to bring water. He then refers to seeing the body of the deceased on the next day and the tracker dog barking at the accused. He also states that: "the accused used to fight with Uttam. He used to assault him. I know that my grandfather has been murdered by the accused and I say so because the accused had told that he would murder him". 17. In the cross examination he states that he does not know whether the accused was in the house when he and Rajesh left the house. Omission was brought out in respect of the accused threatening to murder the deceased. He has further stated: "the accused was saying so to everyone and he was assaulting me". 18. P.W.7 Shyam is the nephew of P.W.8 Radhabai. He states that deceased Uttam used to come to his house to look after his daughter. He states that Uttam had - 15 - dinner at his house and returned to his house at about 9 or 9.30 p.m.. He further states that: "accused used to drink sometimes and there used to be quarrels between the accused and his father, Uttam. I was told by the said Uttam that the accused sometimes used to threaten him." 19. P.W.8 Radhabai, widow of deceased Uttam and mother of appellant states that the accused was residing separately but in the same house. The house did not have doors and at night a plastic sheet was hung. She further states that the accused used to daily harass the deceased and because of the harassment the deceased used to go to the house of P.W.7 Shyam. She further states that on the evening of 6th the accused started giving "bad words" and, therefore, she went to Prema’s house. She then states of P.W 1 Rajendra informing her about finding Uttam dead. P.W.8 Radhabai further states that she saw the dead body of her husband and went inside and questioned the accused whether the accused had killed his father. At that time the accused was sleeping on the cot and had covered himself with a bedsheet upto his neck. According to her, P.W.12 Rajesh, younger brother of the accused, came and slapped the accused. The accused got up and came outside and asked who had killed his father. She then speaks about the tracker dog barking at the accused. She further states that the - 16 - accused was demanding his share in the house but the deceased used to advice the accused to live peacefully in the house with his brother. She has also stated that some boys used to keep a cricket bat in the house. She used to hide the same apprehending that the appellant/accused may use it to assault them. On 6th October 1999, she had not hidden the bat. She also states that a number of complaints had been lodged against the accused because the accused was assaulting them. She had produced letters at Exhibit 28 written by the accused from the jail requesting her to depose in his favour. 20. In the cross examination she has denied the suggestion that the boys of the locality never used to keep the cricket bat in the house. She has also denied the suggestion that the accused never threatened them or assaulted them. 21. P.W.10 Manoj Naik and P.W.11 Megna Naik are the nephew and niece of the accused and children of Prema. Both of them refer to the accused who used to consume alcohol and fight with the deceased. P.W.14 Dinesh Naik has identified the cricket bat as the one which used to be kept in the house of the deceased every day after play. P.W.15 Shobha also speaks about the ill-temper of the accused when dealing with his parents. - 17 - P.W.19 Francisca, a neighbour of the accused, states that the accused used to always assault his wife and his parents and there was no peace in the house. P.W.20 Chandralekha, wife of accused, also speaks about the ill-treatment of the accused and the physical beating which the accused had given her. She also speaks about the accused assaulting his parents and his sister. 22. From the evidence of the witnesses referred to above it clearly emerges that the accused was a cantankerous person with a quarrelsome nature and an extremely short temper. In his anger he spared no one including his parents and his sister. He was always demanding his share in the house and possibly on that count he used to physically assault his father, deceased Uttam. He had often threatened his parents and his parents used to take succour in the house of others in order to escape the wrath of his anger. These circumstances, according to us, do not even remotely suggest that the accused had a motive to commit the crime. These circumstances may suggest that the accused was likely to have committed the crime. Motive is the reason behind committing the crime. The events preceding the crime should be such as to impel the accused to commit the crime. Ofcourse what really goes on in the mind of an accused is difficult either for the Court or the prosecution to fathom. May be the accused - 18 - in a fit of rage may have struck the deceased. To hold so would be to enter into the arena of conjectures and surmises. Suffice it to say that these circumstances do raise a suspicion against the accused as the likely person to have committed the crime but these circumstances cannot be used as