IN IN IN THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 42 OF 2003 APPEAL NO. 42 OF 2003 APPEAL NO. 42 OF 2003 State through Public Prosecutor, High Court of Bombay, At Panaji. ... Appellant. versus 1. Joao @ Badgi Fernandes, H.No. 50, Madda - Wado, Calangute, Bardez - Goa. 2. Mansukh Gujarati @ Mansukh Merabai Karkodia, R/o. Natwargad Vagharivas, Limbdi Police Station, Surendranagar District, Tal : Limbdi, Gujarat, at present Khobra-wado, Calangute - Goa(absconding) ... Respondents. Mr. S. N. Sardessai, Public Prosecutor for the State. Mr. A. P. Lawande, Advocate for Respondent No.1. CORAM : A. M. KHANWILKAR & P. V. HARDAS, JJ. DATED : 15TH DECEMBER, 2003. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT(PER P. V. HARDAS, J.) The State being aggrieved by the Judgment of the learned Sessions Judge, Panaji, dated 28th - 2 - February, 2003, in Sessions Case No. 40 of 2001, acquitting the Respondent No.1/Accused for an offence punishable under Sections 302 and 307 of the Indian Penal Code, has filed the present Appeal challenging the aforesaid Judgment. 2. The facts, as are necessary for the decision of this Appeal are set out hereunder:- P.W.12, P.I. Gundu Naik, who was attached to the Calangute Police Station referred P.W.4, Sanjay Kumar Singh and injured Ajay Pal Singh to the Goa Medical College on 10th May, 2001. At about 00.45 hours of 11th May, 2001, P.W.4, Sanjay Kumar Singh returned back to the Police Station and filed a complaint at Exh.20. The complaint was filed against the present Respondent No.1 and one Mansukh Gujarati, who was absconding and was never put to trial. On the basis of the said complaint, an offence came to be registered and the scene of the offence panchanama came to be drawn at Exh.36 in the presence of the witnesses. Exh.44 is the sketch of the scene of the offence. Sample of control mud and blood mixed with mud was attached. Since the deceased had succumbed to his injury, Inquest Panchanama at Exh.37 was drawn. The Post Mortem on the dead body of deceased Ajay Pal Singh was conducted by P.W.7, Dr. E. J. Rodrigues, - 3 - who found one incised wound of 3 x 0.5 cms. obliquely placed, 75 cms. above right heel and 22 cms. below right anterior superior ilias spine, situated in upper portion of middle front of right thigh. He found that the wound had made a corresponding cut in sub-cutaneous tissue thigh muscle and the fumoral vessel at that level with extensive extra vassation of blood all along the track of wound. He opined that the injury was caused by sharp pointed penetrating weapon and was ante-mortem in nature. He, therefore, opined that death was due to haemorrhage and shock as a result of the said injury. The Post Mortem Report is at Exh.27. A motor-cycle bearing registration No.GA-01-Q-0070 which was found at the scene of the offence was attached under a panchanama and during the trial came to be released to Respondent No.1 herein vide an Order of the Trial Court dated 2nd January, 2002. 3. On 12th May, 2001, Respondent No.1 herein came to be arrested. The Arrest Panchanama, Exh.10, was drawn in the presence of P.W.1, Manoprasad Poudal. On 13th May, 2002, the Accused was sent for medical examination and was examined by P.W.7, Dr. E. J. Rodrigues. The finger nail clippings and the scalp hair of the Accused were preserved. He did not notice any other injury on the person of the Accused. The - 4 - Report in respect of the examination of the Accused is at Exh.30. The Blood Group of the Accused vide Exh.31 was O Rh Positive while that of the deceased vide Exh.28 was O Rh Negative. On 15th May, 2001, Respondent No.1/Accused is alleged to have volunteered to discover the weapon of the assault which came to be recovered in the presence of P.W.5, Francis Fernandes. The panchanama of the Disclosure Statement and the recovery is at Exh.45. 4. On 23rd May, 2001, P.W.9, Yogesh Singh, was examined and his Certificate is at Exh.41. The said Certificate discloses that P.W.9, Yogesh Singh, had a scar(healed) 2 x 3 cms. on right side chest wall. On 28th May, 2001, P.W.9, Yogesh Singh, was examined by P.W.7, Dr. E. J. Rodrigues, who also noticed a healed linear scar of 3 cms. obliquely placed with tailing outwards. The Certificate is at Exh.29. On 29th June, 2001, P.W.2, Vinayak Alornekar, Special Judicial Magistrate, was requested to hold a test identification parade. P.W.2, Vinayak Alornekar, held the test identification parade on 5th July, 2001 and on 26th July, 2001. The Memorandums of the test identification parade are at Exhs. 13 and 14. On 7th August, 2001, the muddemal articles were forwarded to the Central Forensic Science Laboratory at Hyderabad for examination. The Report of the Chemical Analyser - 5 - is at Exh.42 colly. Blood was detected on the knife which came to be seized at the instance of Respondent No.1. After completion of the investigation, a charge-sheet against the present Respondent No.1 came to be filed. 5. On committal of the case to the Court of Sessions, the learned Sessions Judge, Panaji, vide Exh.6 framed a charge against Respondent No.1/Accused for an offence punishable under Section 302 r/w 34 of the Indian Penal Code. Respondent No.1/Accused denied his guilt and claimed to be tried. The prosecution in support of its case examined 12 witnesses. The learned Sessions Judge, Panaji, disbelieving the prosecution case, for reasons which we shall shortly advert to, acquitted Respondent No.1. The State being aggrieved by the acquittal of Respondent No.1/Accused has filed the present Appeal. 6. Mr. S. N. Sardessai, learned Public Prosecutor appearing on behalf of the State has submitted that the learned Trial Court has rejected the evidence of material witnesses on pure conjectures and surmises and the view taken by the learned Trial Court is not a possible view on the basis of the evidence and, therefore, prays that the acquittal of Respondent No.1 be reversed. - 6 - 7. Mr. A. P. Lawande, learned Counsel appearing on behalf of Respondent No.1/Accused has submitted that the view taken by the learned Trial Court is a possible view on the basis of the evidence on record and merely because two views are possible, the acquittal need not be interfered with. In the alternative, he has submitted that the offence alleged against Respondent No.1/Accused would not be an offence punishable under Section 302 of the Indian Penal Code but would be an offence punishable under Section 304(Part II) of the Indian Penal Code. 8. The pivot of the prosecution case is the evidence of P.W.4, Sanjay Kumar Singh. P.W.4, Sanjay Kumar Singh, states that deceased Ajay Pal Singh was his brother and they were four brothers residing at Calangute in a rented house at the time of the incident. At the time of the incident, his father, P.W.6, Rotan Singh, had come from Agra and was staying with them at Calangute. They run a Bar and Restaurant and a Punjabi Dabba. He further states that on 10th May, 2001, at about 10.30 p.m., deceased Ajay Pal Singh closed the Punjabi Dabba and went to the Bar and Restaurant named Sher e Punjab. At that time, P.W.4, Sanjay Kumar Singh was in the Sher e Punjab Hotel attending to the customers. Deceased Ajay Pal Singh took the keys of a Sumo jeep and proceeded to the - 7 - residence which was at a distance of about 2 1/2 kms. Within 5 to 10 minutes thereafter, he received a telephone message from P.W.8, Asha Pal Singh, wife of Ajay Pal Singh, informing P.W.4, Sanjay Kumar Singh, that he should immediately come to the residence as some thief had entered the house. On getting the said message, P.W.4, Sanjay Kumar Singh, immediately proceeded towards his residence on his scooter. When he was at a distance of about 20 to 25 metres from his house, he crossed two persons who were running in the opposite direction i.e. coming from the direction of his house. He had identified the said two persons as the present Respondent No.1/Accused and one Mansukh. He also saw the Sumo jeep parked near the gate of the house and saw that his brother Ajay Pal Singh had fallen on the ground near the door of the driver’s side. He also saw his father P.W.6, Rotan Singh and P.W.9, Yogesh Singh trying to lift his brother Ajay Pal Singh. He, therefore, asked his brother Ajay Pal Singh as to what had happened and Ajay Pal Singh replied stating that he had been assaulted with a knife on his thigh on the right side. Ajay Pal Singh had also stated that two persons suddenly came near him when he was alighting from the jeep and had assaulted him. P.W.4, Sanjay Kumar Singh, tied a cloth in order to stem the flow of blood. P.W.4, Sanjay Kumar Singh, has further stated that he saw a - 8 - bullet motor-cycle bearing registration No.GA-01-Q-0070 lying in front of the Sumo jeep. P.W.6, Rotan Singh, also informed P.W.4, Sanjay Kumar Singh that in their attempt to stop Respondent No.1 and the other person from running away, Respondent No.1 herein had assaulted P.W.9, Yogesh Singh with stones and had assaulted P.W.6, Rotan Singh, with a knife. P.W.4, Sanjay Kumar Singh, further states that he had seen a knife in the hand of Respondent No.1 while he was running. He states that there was an electric bulb of 100 watts which was burning in their balcony and had also seen Respondent No.1 and Mansukh in the head light of his scooter. He states that he was knowing Respondent No.1 since about 2 to 3 years prior to the incident. He states that he put Ajay Pal Singh in the Sumo jeep and took him to the Calangute Police Station from where Ajay Pal Singh was taken to the Goa Medical College. After Ajay Pal Singh had succumbed to his injury, P.W.4, Sanjay Kumar Singh, returned back to the Police Station and filed a complaint at Exh.20. He has identified the knife M.O.12 as the same knife which he had seen in the hand of Respondent No.1. In the cross-examination, he has admitted that P.W.8, Asha Pal Singh, was descending the stair case when he was about to reach the house. He further states that she was present when he asked his brother Ajay Pal Singh as to what had happened to - 9 - him. He has also stated that he had seen something like a stone in the hand of Mansukh when he was running away from the spot. He has further stated in the cross-examination that the knife which Respondent No.1 was having in the hand was glinting in the headlight of his scooter. Omission has been brought out in respect of his complaint that he had not stated that his father had told him that they were trying to stop Respondent No.1/Accused and at that time, Respondent No.1/Accused had assaulted his father with a knife and his younger brother Yogesh Singh was assaulted with stone. He has denied to have stated in his complaint that when his father and brother Yogesh Singh went to rescue his brother, the assailants were trying to attempt to assault him with a knife. He has also denied to have stated in his complaint that the assailants also threw stones at his younger brother Yogesh Singh. He has further admitted in the cross-examination that Respondent No.1/Accused used to pass by the side of his hotel frequently and this is how he was knowing Respondent No.1/Accused. There is no effective cross-examination in respect of the statement of this witness that he had seen Respondent No.1/Accused running with a knife in his hand and that his brother Ajay Pal Singh had told him about the assault. - 10 - 9. The evidence of P.W.4, Sanjay Kumar Singh, is amply corroborated by his complaint at Exh.20. In the complaint at Exh.20, he has stated about seeing Respondent No.1/Accused and the other person Mansukh running with knives in their hands. In Exh.20, there is also recital about deceased Ajay Pal Singh informing him that it was Respondent No.1 and Mansukh who had attacked him with knives and caused injury without any provocation. In the F.I.R., there is no mention about any injury sustained by P.W.9, Yogesh Singh. 10. The learned Trial Court in paragraph 5 of the Judgment has disbelieved the evidence of this witness on the ground that (1) slight discrepancy in respect of what P.W.8, Asha Pal Singh, actually informed him on telephone and (2) that it must have taken P.W.4, Sanjay Kumar Singh some time to reach his residence and it was unlikely that the Respondent would remain at the scene of the offence. (3) According to P.W.4, Sanjay Kumar Singh, he had seen P.W.8, Asha Pal Singh descending from the stair case, which is contrary to the statement of P.W.8, Asha Pal Singh. (4) P.W.4, Sanjay Kumar Singh, stated that he had seen a stone in the hand of Mansukh and since he had stated that Mansukh also had a knife in his hand, it was incredible that he would see a stone in the - 11 - hand of Mansukh and (5) there were material contradictions which impelled the learned Trial Court to reject the evidence of P.W.4, Sanjay Kumar Singh. 11. P.W.8, Asha Pal Singh, wife of Ajay Pal Singh states that she and her brother-in-law Bajrang were in the house. A theft had taken place in her house on 30th April, 2001 and after about two days thereafter, she had received an anonymous call telling her that she should keep all her gold ornaments "ready" without informing anyone. She was also threatened that in case she divulged this information, she would be killed. According to her, she informed about this incident to her husband and P.W.4, Sanjay Kumar Singh. Her husband had reported this matter to the Police. On the day of the incident i.e. on 10th May, 2001, at about 9.30 p.m. P.W.6, Rotan Singh and P.W.9, Yogesh Singh had come home from the hotel. She along with her brother-in-law Bajrang sat for having their dinner and after dinner were watching T.V. programmes. At about 10.00 p.m. she heard some noise of a vehicle near her house and immediately thereafter heard the noise of quarrel. At that time, she was on the first floor of the house and saw that two persons had caught her husband and were assaulting him with a knife. She immediately informed P.W.6, Rotan Singh and P.W.9, Yogesh Singh. P.W.6, Rotan Singh and - 12 - P.W.9, Yogesh Singh went downstairs to see what was happening. P.W.6, Rotan Singh and P.W.9, Yogesh Singh, went to separate the said persons who were fighting with her husband. She saw that her husband had fallen on the ground. She also saw that her brother-in-law P.W.9, Yogesh Singh, had fallen on the ground. P.W.6, Rotan Singh, told her to inform the incident to P.W.4, Sanjay Kumar Singh, who was at the hotel and she informed P.W.4, Sanjay Kumar Singh about the incident requesting him to come home immediately on account of fight. According to her, she had asked the person who had assaulted her husband as to why he had assaulted her husband. According to her, the other person i.e. Mansukh had covered his face partly with a white cloth. Respondent No.1/Accused had also given threats for assaulting her. The two assailants had come on a bullet motor-cycle and she along with P.W.6, Rotan Singh tried to stop the motor-cycle. Respondent No.1/Accused tried to assault P.W.6, Rotan Singh with a knife but P.W.6, Rotan Singh successfully evaded the attack of knife. In the meantime, she saw her brother-in-law coming on a scooter and at that moment, Respondent No.1/Accused and the other person went away. In the cross-examination, she has admitted that she had come to the gallery of the house on the first floor and had partly seen the incident from that place. The place of the incident was just below the - 13 - first floor of her house. She has also admitted in the cross-examination that she followed her father-in-law to the place of the incident immediately and P.W.4, Sanjay Kumar Singh had come to the place of the incident after about 10 minutes of the telephone call. According to her, Respondent No.1/Accused on seeing P.W.4, Sanjay Kumar Singh coming to the place of the incident went by another route. 12. It is true that according to P.W.8, Asha Pal Singh, she was already near her husband when P.W.4, Sanjay Kumar Singh had come. According to her, she had informed P.W.4, Sanjay Kumar Singh about the fight. The evidence of P.W.4, Sanjay Kumar Singh, is that P.W.8, Asha Pal Singh, had informed him that some thief had entered the house and when he was nearing his house, he had seen P.W.8, Asha Pal Singh descending the stair case. The fact however remains that P.W.4, Sanjay Kumar Singh, had reached the house because of the telephone call of P.W.8, Asha Pal Singh. Different people on perceiving an incident/quarrel react differently. P.W.8, Asha Pal Singh, had witnessed the incident, at least a part of the incident from the balcony of the house. Thereafter, according to her, she had informed P.W.6, Rotan Singh and P.W.9, Yogesh Singh. It was P.W.6, Rotan Singh, who suggested to her to inform P.W.4, - 14 - Sanjay Kumar Singh. In that background, no importance at all can be attached to the discrepancy regarding informing P.W.4, Sanjay Kumar Singh about either "fight" or "thieves". Even otherwise, anticipating some unto incident, persons are prone to make either incoherent or unintelligible statements. It is not surprising, therefore, in that state of mind and specially in a hurry to summon P.W.4, Sanjay Kumar Singh, that she may not have informed him about the fight with Ajay Pal Singh but had only informed him about some thieves entering the house. Apart from that, the discrepancy in what P.W.8, Asha Pal Singh informed P.W.4, Sanjay Kumar Singh, according to us, firstly is not the discrepancy of a nature which would render the presence of P.W.4, Sanjay Kumar Singh at the scene of offence doubtful and secondly, the alleged discrepancy is not on a vital aspect of the prosecution case which would have rendered their versions doubtful. The presence of P.W.8, Asha Pal Singh, at the scene of offence is not rendered doubtful at all. Presence of P.W.8, Asha Pal Singh, is amply corroborated by the presence of P.W.6, Rotan Singh and P.W.9, Yogesh Singh as well as by P.W.4, Sanjay Kumar Singh. Therefore, what P.W.8, Asha Pal Singh narrated to P.W.4, Sanjay Kumar Singh is, therefore, unimportant for judging the presence of P.W.4, Sanjay Kumar Singh at the scene of offence. - 15 - P.W.4, Sanjay Kumar Singh, noticed the two Accused running and has positively identified Respondent No.1 herein. His presence at the scene of offence cannot be doubted as a surmise that it would have taken him 5 to 10 minutes to reach the scene of offence and the Appellant would not wait that long at the scene of offence. Reliable and cogent evidence of witnesses cannot be disbelieved on mere surmises unless the Court finds the version of a witness to be inherently doubtful. At the close of the cross-examination, P.W.4, Sanjay Kumar Singh, emerges as a truthful witness and, therefore, his evidence can safely be accepted. Reasons given by the learned Trial Court, which have been referred to above, are wholly unsustainable. It is the duty of a Court to separate the exaggerations made by a witness on non vital aspects of the case and if after separation of the exaggerations and the embelishments, the Court should endeavour to find out if the evidence of a witness is believable and if the core of the evidence of the witness on the vital aspect of the prosecution case remains unaffected by cross-examination the Court should not jettison the evidence of such witness on fanciful grounds and surmises. Therefore, according to us, the evidence of P.W.4, Sanjay Kumar Singh, can be relied upon to the extent that he on receiving a - 16 - telephonic message from P.W.8, Asha Pal Singh, rushed to his residence and when he was at a distance of about 20 to 25 metres from his house, he saw Respondent No.1/Accused and the other Accused running towards him armed with a knife. At the scene of offence, he found his brother deceased Ajay Pal Singh lying on the ground with a bleeding injury and Ajay Pal Singh had disclosed to him that two persons had attacked him with knives. P.W.4, Sanjay Kumar Singh, has unerringly identified Respondent No.1/Accused as the person who was seen running. A motor-cycle was lying at the scene of offence which is said to be belonging to Respondent No.1 and which came to be released in his favour during the trial. 13. P.W.6, Rotan Singh, father of deceased Ajay Pal Singh states that he along with his son P.W.9, Yogesh Singh, daughter-in-law, P.W.8, Asha Pal Singh and another son named Bajrang were present in the house on the day of the incident. At about 11.00 p.m., deceased Ajay Pal Singh had come home from the hotel in a Sumo jeep. P.W.6, Rotan Singh and P.W.9, Yogesh Singh had come prior to the arrival of Ajay Pal Singh as P.W.9, Yogesh Singh was having stomach-ache. His son Bajrang saw that Ajay Pal Singh was being attacked and Bajrang informed P.W.6, Rotan Singh accordingly. At that time, Bajrang and P.W.8, Asha - 17 - Pal Singh were on the first floor. He, P.W.9, Yogesh Singh and P.W.8, Asha Pal Singh, went to the scene of offence. P.W.9, Yogesh Singh, was sitting on the ground with deceased Ajay Pal Singh in his arms. Ajay Pal Singh had sustained a bleeding injury on his right thigh. On being asked, Ajay Pal Singh had disclosed the names of the assailants as Joao @ Badgi and Mansukh. P.W.6, Rotan Singh, further states that he had seen Respondent No.1/Accused with a knife who had come on a bullet motor-cycle. When he reached the scene of offence, he saw that Respondent No.1/Accused was about to leave on his motor-cycle and, therefore, he pushed Respondent No.1 and Respondent No.1 in turn pushed him. He requested P.W.8, Asha Singh to inform P.W.4, Sanjay Kumar Singh about the incident. When P.W.4, Sanjay Pal Singh arrived, Respondent No.1 and Mansukh were going away from the scene of the incident. In the cross-examination, he has admitted that when his son came to inform him about the attack on Ajay Pal Singh, he was lying on a cot. Omission was brought out in respect of Bajrang seeing the attack on Ajay Pal Singh. Omission was also brought out in respect of Ajay Pal Singh disclosing the names of the assailants. He has admitted that though he had seen Respondent No.1, he could not identify Respondent No.1 before the Special Judicial Magistrate in a test identification parade as four other persons in the - 18 - parade were having similar features. The learned Trial Court has rejected the evidence of P.W.6, Rotan Singh, on the ground that there were discrepancies in the evidence of P.W.6, Rotan Singh and P.W.8, Asha Singh. The learned Trial Court also found that the evidence of P.W.6, Rotan Singh was recorded on 23rd May, 2001 i.e. after 13 days of the incident. In the absence of satisfactory explanation, the learned Trial Court did not place reliance on the evidence of P.W.6, Rotan Singh. Presence of P.W.6, Rotan Singh, in the house on the day of the incident, is not rendered doubtful despite searching. There is nothing inherent in his testimony which