1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 58 OF 2009 State (Through Police Inspector, Quepem Police Station, Quepem-Goa). ... Appellant versus Pandurang Gaonkar, S/o Sukado Gaonkar, House No.111/1, Gaonkarwado, Amona, Quepem-Goa. ... Respondent Shri C. A. Ferreira, Public Prosecutor for the Appellant. Shri Arun Bras De Sa, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 6TH JULY, 2010. JUDGMENT This is a State's appeal and is directed against the acquittal of the accused under Sections 326 and 324, I.P.C. by Judgment dated 23-6-2008 of the learned Additional Sessions Judge, Margao. 2. The accused was charged and tried with the allegation that on 17-4-2005 at about 2.30 p.m. the accused had assaulted Complainant Smt. Roshan Gaonkar with a knife on her abdomen causing her serious 2 injuries and abused her in filthy language. In the trial, prosecution had examined eleven witnesses. The accused had examined none. The case of the accused was one of denial simpliciter. 3. The accused was charged and tried under Sections 326, 324 and 504 I.P.C. and was convicted by the learned J.M.F.C., (Magistrate, for short) Quepem, under Section 326 I.P.C. 4. The facts of the case show that the accused and PW4/Ramdas Gaonkar are brothers, and they reside in their father's house, but separately. The Complainant and injured PW1/Roshan Gaonkar is the wife of the said PW4/Ramdas Gaonkar. The relations between both the families were strained on account of the dispute in respect of the said house, almost a year prior to the incident. The accused is a Government servant. The incident took place on 17-4-2005 at about 2.30 hours. Prosecution examined the said Complainant PW1/Roshan Gaonkar, her husband PW4/Ramdas Gaonkar, their daughters PW5/Ratisha Gaonkar, aged about 17 years, PW6/Radhika Gaonkar, aged about 9 years, PW7/Rohita Ramdas Gaonkar, aged 17 years. PW8/Nilesh Naik was examined as an independent witness. PW4/Ramdas Gaonkar worked for him, and it was stated by him that at about 2.30 p.m. on 17-4-2005 he had gone to the house of PW4/Ramdas Gaonkar to inquire as to why he had not come for work. PW2/Oscar Travasso was the panch witness to the attachment 3 panchanama of the seizure of the knife with which PW1/Roshan Gaonkar was assaulted by the accused. PW3/Umesh Patekar was the panch witness to the scene of offence panchanama. PW9/Dr.Megha Kudchadar was the Medical Officer attached to PHC, Curchorem, and who had examined PW1/Roshan Gaonkar on being brought to her and who had found an injury on the said PW1/Roshan Gaonkar, at the center of the stomach above umblicus. PW10/Dr. Anant Ramani produced the report prepared by Dr. Smita A. Kutty who at the relevant time could not be examined as she had proceeded abroad. PW11/ASI Digambar Padwalkar had investigated the case. 6. The learned Magistrate found that there was absolutely no evidence as regards Section 504 I.P.C. She also found that Section 324 I.P.C. got merged into Section 326 I.P.C. Learned Magistrate proceeded to scrutinize with care and caution the evidence of PW1/Roshan Gaonkar, PW4/Ramdas Gaonkar, PW5/Ratisha Gaonkar, PW6/Radhika Gaonkar and PW7/Rohita Gaonkar as they were said to have been interested witnesses and after scrutinizing their evidence came to the conclusion that nothing adverse had come on record to disbelieve their versions, and observed that all the witnesses had clearly stated that the accused had stabbed PW1/Roshan Gaonkar and the nature of injury on her was dangerous as it was a gastric perforation. The learned Magistrate also relied on the evidence of the two Medical Officers, namely, PW9/Dr.Kudchadar and PW10/Dr.Ramani who had opined that the 4 injury on PW1/Roshan Gaonkar was an incised wound and which was caused by sharp weapon. According to the learned Magistrate, the knife used in the assault was a sharp weapon and could have caused an incised wound/stab injury gastric perforation. The learned Magistrate further observed that the accused assaulted PW1/Roshan Gaonkar without any reason. The learned Magistrate observed that PW2/Travasso had witnessed the seizure of the knife produced by the injured PW1/Roshan Gaonkar. The learned Magistrate also noted that PW2/Travasso had stood as panch witness to the seizure of the saree which was attached under panchanama in G.M.C., Bambolim, and concluded that the versions of PW2/Travasso as well as of PW3/Umesh Patekar supported the case of the prosecution and rejected the contention that both the said panch witnesses were stock witnesses of the Police. As regards the enmity, the learned Magistrate observed, and in my view rightly, that an enmity could be a double edged weapon. The learned Magistrate, in the facts of the case, came to the conclusion that the testimonies of the witnesses could not be disbelieved simply because they are interested witnesses in the absence of concrete materials showing that their evidence had to be rejected. Regarding the suggestion put to PW9/Dr. Kudchadkar and accepted by her that the injury on PW1/Roshan Gaonkar could be caused by a sharp edged utensil, the learned Magistrate noted that it was a remote and rare possibility inasmuch as no evidence was brought forward as to what type of utensil could have caused such an injury. 5 7. Having heard learned Public Prosecutor and Shri Arun Bras De Sa, in my view, the conclusions arrived at by the learned Additional Sessions Judge in acquitting the accused cannot at all be accepted, and it is the reasoning and conclusion arrived at by the learned J.M.F.C. regarding the conviction of the accused which needs to be accepted. 8. This is a case where the accused was charged having assaulted his own sister-in-law, the said PW1/Roshan Gaonkar with a knife, perforating her intestine for which laparotomy was required to be done and was indeed done in the Goa Medical College by the said Dr. Smita A. Kutty. The version given by PW1/Roshan Gaonkar was not only supported by her husband PW4/ Ramdas Gaonkar but also her elder daughters, namely, PW5/Ratisha and PW7/ Rohita, and was substantially corroborated by medical evidence of PW9/Dr. Kudchadkar and PW10/Dr. Ramani, even for a moment the evidence of PW6/ Radhika who was about 9 years of age, and that of PW8/Nilesh who was stated to be an independent witness and who otherwise was a chance witness was to be kept out. 9. The said PW8/Nilesh appears to be a chance witness and not only that, his statement was recorded, as noticed by the learned Additional Sessions Judge only in September, 2005. However, the learned Additional Sessions Judge was not at all justified in coming to the conclusion that the 6 statements of the children of the said PW1/Roshan Gaonkar were recorded with delay in the absence of anything being brought on record from their cross-examination or for that matter from the cross-examination of PW11/ASI Padwalkar. In case there was delay in recording the statements of the said children, the same ought to have been brought to the notice of PW11/ASI Padwalkar who could have given some explanation or other, but, in my view, in the absence of anything being brought on record about the delay in recording the statements of the children of the said PW1/Roshan Gaonkar, the learned Additional Sessions Judge could not jump to the conclusion that, that amounted to serious infirmity in the case of the prosecution, and for that reason discard the evidence particularly of PW5/Ratisha and PW7/Rohita who had corroborated the version of her mother PW1/Roshan Gaonkar. In this context, reference could be made to Dr. Krishna Pal and another v. State of U.P.((1996) 7 SCC 194) wherein the Apex Court has held that simply because there was no explanation as to why the witnesses were not examined shortly after the incident the convincing and reliable evidences adduced cannot be discarded. The Apex Court referred to the case of Karnel Singh v. State of M.P.((1995) 5 SCC 518) and observed that in a case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. The Apex Court in the facts of the case noted that they did not find any reason to disbelieve the testimonies given 7 by the eye witnesses in that case, and, therefore proceeded not to interfere with the impugned Judgment. 9. PW1/Roshan Gaonkar had given a vivid description of the incident, and the complaint too was promptly lodged and she was examined soon thereafter by PW9/Dr.Kudchadkar. According to PW1/Roshan Gaonkar at about 2.30 p.m. on 17-4-2005 she had heard the accused, her brother-in-law abusing her daughter whereupon she had told him not to abuse her and at that time the accused came and stabbed her on her stomach with a knife causing her bleeding injury and she fell on the ground, and her husband came running and took her to the Police Station where she handed over the knife to the Police. She stated that her saree had blood stains. She further stated that from the Police Station she was taken to Cacora Health Centre. Her husband PW4/Ramdas Gaonkar has stated that at about 2.30 p.m. on 17-4-2005 the accused stabbed his wife with a knife on her stomach towards the right side and she fell unconscious and on the same day he took her to the Police Station. It is true, that neither PW1/Roshan Gaonkar now PW4/Ramdas Gaonkar have been able to state as to from where the accused took out the knife. PW6/Radhika who is of tender age had stated that the knife was in the pocket of the accused. Learned Counsel on behalf of the accused submits that this statement made by PW6/Radhika Gaonkar is an indication that PW1/Roshan Gaonkar and PW4/Ramdas Gaonkar are suppressing the truth. 8 10. In my view, no such inference can be drawn. It is quite possible that PW1/Roshan Gaonkar and PW4/Ramdas Gaonkar had not seen the knife prior to the accused assaulting PW1/Roshan Gaonkar. It is quite possible that PW6/Radhika Gaonkar being of tender age, stated that the accused took the knife from his pocket, out of her imagination or otherwise but on that count alone the versions given by PW1/Roshan Gaonkar or for that matter PW4/Ramdas Gaonkar could not be disbelieved. Moreover, the versions given by PW1/Roshan Gaonkar and PW4/Ramdas Gaonkar have been sufficiently corroborated by their daughters PW5/Ratisha Gaonkar and PW7/Rohita Gaonkar, and that apart by the evidence of PW9/Dr.Kudchadkar and PW10/Dr.Ramani. It is well settled that when the witnesses are related their testimony cannot be altogether discarded on that ground and has got to pass the test of close and severe scrutiny before it can be safely acted upon. It is well said that relations are not likely to leave off the real culprit and name another person as the assailant of the victim or the deceased. In other words, a related witness would not shield the real culprit because of his affinity with the victim, and, therefore the evidence of a related witness is much more reliable than the evidence of an interested or inimical witness. Close relations are always anxious to see that the true culprit is punished. In the case at hand, the evidence of PW1/Roshan Gaonkar was amply corroborated by the evidence of her husband and two daughters and other circumstantial evidence including that of the Medical Officers, and, therefore there was no reason at all for the 9 learned Additional Sessions Judge not to have accepted the same and acquit the accused. There was nothing in the evidence of PW1/Roshan Gaonkar or for that matter in the evidence of her husband and two daughters which made their evidence inherently improbable or intrinsically unreliable and there was no reason why their evidence was not accepted for the purpose of basing the conviction of the accused, as was otherwise rightly done by the learned Magistrate. It is well settled that when evidence of even a sole witness is found cogent and trustworthy and corroborated by medical evidence, a conviction can be based on such evidence. (See AIR 1989 SC 236). 12. The learned Additional Sessions Judge has come to the conclusion that the medical evidence brought on record did not establish that the injury sustained by the Respondent was possible with the M.O.-knife when in fact the evidence was corroborated both by PW9/Dr. Kudchadkar and PW10/Dr. Ramani. There was another incident on 29-3-2005 which had resulted into arrest of the accused under Section 151, and proceedings under Section 107 I.P.C. but that was not a ground to disbelieve the versions given by the prosecution witnesses. The learned Additional Sessions Judge has concluded that the certificate Exh.29 issued by Dr. Smita A. Kutty could not be read in evidence. The learned Additional Sessions Judge lost sight of the fact that PW10/Dr. Ramani was called only after the Court was informed that Dr. Smita A. Kutty was unavailable as she had proceeded abroad. The 10 evidence given by PW10/Dr.Ramani was both relevant and admissible under Section 32 of the Evidence Act. (See AIR 1989 SC 702). 13. Both the Courts below have come to the conclusion that offence under Section 326 was made out. Learned Additional Sessions Judge has further observed that the hurt certificate-Exh.24 issued by PW9/Dr. Kudchadkar showed that the injury was dangerous which came under clause eighthly of Section 320, I.P.C. i.e. a hurt which endangers life which in the opinion of PW9/Dr. Kudchadkar was dangerous. Considering the facts of the case, therefore, in my view, the Judgment of the learned Additional Sessions Judge is required to be disturbed and set aside and that of the learned Magistrate restored. 14. Shri Bras De Sa, learned Counsel on behalf of the accused has submitted that the accused is a Government servant and that in case he is sent to prison as ordered by the learned Magistrate the accused is likely to lose his job. Learned Counsel, therefore, has submitted that the accused be dealt with under the Probation of Offenders Act, 1958. At the same time, learned Counsel has fairly conceded that such a plea was not put forward before the learned trial Court. I am also not inclined to consider the same, firstly considering the facts of the case where the accused inflicted a dangerous injury on his sister- in-law, the said PW1/Roshan Gaonkar, and secondly such a plea cannot be 11 considered because Section 326 I.P.C. is punishable with life imprisonment. (See AIR 1983 SC 359 and 1972(3) SCR 497). Considering the facts of the case, in my view, the sentence imposed upon the accused by the learned Magistrate appears to be appropriate and would meet the ends of justice. 15. As a result of the above discussion, the appeal is allowed. The Judgment dated 23-6-2008 of the learned Additional Sessions Judge is hereby set aside, and that of the learned Magistrate dated 21/22-2-2008 is hereby restored. Accused to surrender before the learned J.M.F.C. to undergo the sentence within a period of three weeks. Bail Bonds, if any, shall stand cancelled. N. A. BRITTO, J. RD