1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 35 OF 2006 Deepesh Raiker, son of late Anand Raiker, presently undergoing sentence at Central Jail, Aguada. ... Appellant versus State ... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. S. Kalshawkar and Mr. P. Talaulikar, Advocates for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : R.M.S. KHANDEPARKAR & N. A. BRITTO, JJ. DATE : 2nd June, 2008 JUDGMENT(Per N.A. Britto, J.) This appeal is by the accused(i.e. accused no.1) in Sessions Case No.16/2004 who has been convicted and sentenced under Sections 302 and 201 I.P.C. for life imprisonment and R.I. of 7 years, respectively, and, in addition to pay a fine of Rs.5000/- on each count. 2 2. The accused got civilly married to the deceased Ms. Supriya Lotlikar on 24-11-2003. The deceased was working as a Laboratory Technician in the Pathology Laboratory of Dr. Raikar/PW5 and as the evidence shows she was a girl of good character and jovial in nature. The accused owns a jewellery shop. Theirs was an arranged marriage and a formal engagement as well as religious marriage were yet to take place for which no dates were fixed. It is common knowledge that until celebration of religious rites, civilly married couples do not reside together. On 12-12-2003 the accused along with his mother and a friend by name Amol Lotlikar visited the deceased on the occasion of her birthday and thereafter visited her on two or three occasions with his said friend Amol. On 23-2-2004 the accused took the deceased for a drive, from her work place, and this incident was narrated by her at home to her parents and sisters. That was after the deceased was called from her work place by a phone call that she should come down and meet him. That trip was a subject matter of discussion in the family of the deceased for about 2 to 3 days and there is nothing on record even to remotely suggest that the said trip between the accused and the deceased did not go well. On 26-2-2004 the deceased went to the Laboratory in the morning and left the same at about 2.45 p.m. after receiving a phone call in a happy mood, never to return again. 3. As the deceased did not return home by 7.30 p.m., her brother Sanjiv Lotlikar/PW2 contacted Dr. Raikar/PW5 in his Laboratory who confirmed that the deceased had left at about 2.45 p.m. by keeping her belongings. Thereafter 3 Sanjiv/PW2 went to the shop of the accused at about 8.15 p.m. only to find that the shop was closed. Sanjiv Lotlikar/PW2 then contacted the friend of the accused, namely, Amol Lotlikar and ultimately the accused, on telephone. At about 10.45 p.m. Dr. Raikar/PW5 was called to the house of the deceased and little later the accused also arrived there. Thereafter, Dr. Raikar/PW5, Sanjiv/PW2 and the father of the deceased Manohar/PW3 went in the car of Dr. Raikar/PW5 and the accused on his bike, in search of the deceased all over Margao but did not find her anywhere. Then, a decision was taken to file a missing report. As per Sanjiv Lotlikar/PW2 the accused was reluctant to come with them to the Police Station out of fear that he may be arrested but according to the accused he was told to go home. The missing report was lodged at about 1.40 hours on 27-2-2004. At this very stage, it must be stated that this missing report goes against the version given by Sanjiv Lotlikar/PW2 to which a reference in greater detail will be made hereinafter. As there was no headway in tracing the deceased, on 1-3-2004 upon legal advice, a complaint came to be filed by Sanjiv Lotlikar/PW2 under Section 365 r/w 34 I.P.C., and, this again inspite of the fact that the deceased was otherwise a legally wedded wife of the accused. The accused was arrested on 2-3-2004. Pursuant to the said complaint also, no headway was made in the investigations which were still being looked after by PSI Sudesh Naik/PW25. 4. All of a sudden the investigations were taken over by Police Inspector Shri Shirwaikar/PW30 on the evening of 6-3-2004 with the involvement of Bijay Singh/PW8 another accused involved in another murder case. 4 5. The case of the prosecution, as can be seen from the concise statement in the charge-sheet, is that on 26-2-2004 at about 14.30 hours accused no.1/Deepesh Raikar and accused no.2/Ms. Rajeshree Tarekar conspired to commit murder of Ms. Supriya Lotlikar with whom A-1/Deepesh was civilly married and in pursuance of the criminal conspiracy accused no.1/Deepesh took Supriya Lotlikar from her office in his Maruti Zen car bearing No.GA-02-J-9168 on the pretext of going to Sai Service at Verna, Goa, and upon reaching there assaulted her in the said car on her forehead causing her injury and thereafter pressed her nose, mouth and neck with his hands and killed her and thereafter buried the dead body at Gogol, Margao by the side of the compound wall, next to the eastern bye-pass highway destroying the evidence as the accused had illicit relations with Rajeshree Tarekar/A-2 and did not want to marry the deceased Supriya Lotlikar to whom he was legally married. It was also the case of the prosecution that Evaristo/A-3 who was in police custody at Margao along with the accused(in a theft case) upon the instruction of the accused knowingly agreed to dispose of the dead body of Supriya after his release on bail from the custody, and as per his instructions went to the place and covered the dead body by putting more mud and thereby tried to destroy the evidence and thus committed an offence punishable under Section 201 I.P.C. 6. By Order dated 12-8-2004 of the learned Additional Sessions Judge, Margao, Rajeshree Tarekar/A-2 came to be discharged. The said order was not challenged by the prosecution. Evaristo/A-3 who was charged under Section 120- 5 B and Section 201 I.P.C. along with the accused, came to be acquitted by the impugned Judgment. The prosecution has not challenged the order of acquittal of Evaristo/A-3. 7. In discharging Rajeshree Tarekar/A-2, the learned Additional Sessions Judge observed that the evidence on record did not even create reasonable doubt regarding the complicity of the said Rajeshree Tarekar/A-2 in any offence. The learned Additional Sessions Judge also observed that there was nothing on record to show as to where was Rajeshree Tarekar/A-2 between 13.30 hours to 16.00 hours on 26-2-2004 and the mere fact that the accused did not want to marry the deceased and liked Rajeshree Tarekar/A-2 could not be of any use as against Rajashree Tarekar/A-2 and that at the most might have been a motive to commit the offence. In acquitting Evaristo Pereira/A-3, the learned Sessions Judge observed that the prosecution had failed to prove the aspect of criminal conspiracy between the accused and Evaristo/A-3 as to the involvement of Evaristo/A-3 in destroying the evidence and therefore Evaristo/A-3 came to be acquitted under Sections 120-B and 201 I.P.C. 8. In the trial which followed against the accused(i.e. A-1) and Evaristo/A-3, prosecution examined 30 witnesses. 9. Upon consideration of evidence, the learned Sessions Judge found that the death of the deceased was homicidal in nature. The learned Sessions 6 Judge held that the extra judicial confession made by Bijay Singh/PW8 was inadmissible in evidence. This the learned Sessions Judge did by relying on the decision of this Court in Ganesh Tate and another v. State of Maharashtra(2001 Vol.2 Bom. C. R. 12); but on the basis of (i) the conduct of the accused prior to and after 26-2-2004, (ii) the evidence of recovery under Section 27 of the Evidence Act and (iii) the answers given by the accused under Section 313 Cr. P. C., proceeded to convict the accused as aforesaid. 10. The post mortem examination on the dead body was conducted by Dr. Pujari/PW20 on 8-3-2004, who found on the dead body, two injuries which have been described by him as follows:- 1. On dissection of the scalp there is evidence of blood infiltration in layers of scalp on frontal area on either side of midline upto hairline over an area of 10 x 4 to 6 cms. There was no evidence of any fresh ante mortem fracture of scalp bones and mandible. The blood infiltration was red, fresh and caused by hard and blunt object and either side lambroid point on parietal area, ante mortem in nature on right and left side respectively 4 x 5 and 4 x 2 cms. 2. On dissection of neck below chin and submendugularly on either side, there is evidence of extra vasitation of blood in underline tissue, muscles on upper part of the neck, defused and gross over an area of 4 x 5 cms and 4 x 3 cms. respectively on right and left side. The underlying hyoid bone and fractures at both the cornu with evidence of blood infiltration and staining effect in surrounding tissues. 7 and Dr. Pujari/PW20 opined that the death was due to violent compression of neck associated with head injury. 11. We do not propose to critically examine the evidence of Dr. Pujari/PW20 which has been considered by the learned Sessions Judge to come to the conclusion that the death of the deceased was homicidal. It had to be homicidal and certainly could not have been suicidal or accidental as the dead body was found buried. That would not have happened in case the death was suicidal or accidental. This aspect has been dealt in detail in paras 24 to 33 by the learned Additional Sessions Judge whilst considering point No.1 framed by him. 12. As far as the identification of the dead body is concerned, it has been noted by the learned Sessions Judge, and in our view rightly, that the missing report mentioned that the deceased was wearing purple churidar with embroidery and white dupatta. The learned Sessions Judge has also observed that the prosecution witnesses, namely Evita D'Silva/PW7, Aurea Correia/PW9 and Shanti Hegde/PW26 also confirmed about the clothes which the deceased was wearing on that fateful day and they had also disclosed about the hair band with wooden beads. Sanjiv Lotlikar/PW2 identified the dead body on the basis of the clothes the deceased was wearing, namely, the purple colour churidar with embroidery design which fact is corroborated by Anuradha/PW10 who was the panch witness to the 8 inquest panchanama. This identification was done at the morgue in Hospicio Hospital. The learned Sessions Judge also noted that the dead body was identified not only on the basis of the dress but also other items such as hair band with wooden beads and also took note that the sister of the deceased namely Yati Lotlikar/PW4 would have been in a better position to identify the said dead body with dress as they used to exchange their dresses and other items. A gold chain with pendant was found on the neck of the dead body. However, instead of attaching the same the Investigation Officer chose to hand over the same to the brother of the deceased, namely, Sanjiv Lotlikar/PW2, mention of which has been made in the inquest panchanama but no separate receipt was obtained from Sanjiv Lotlikar/PW2 by the Investigation Officer. Similar is the case of the ear studs. The ear studs were handed over to the brother of the deceased and a receipt was obtained to that effect. It was certainly expected of the Investigation Officer to have seized the said gold chain and the studs for the purpose of further investigations and not handed over the same to the brother of the deceased. These are but serious lapses on the part of the Investigation Officer. The body could have been identified and has been sufficiently identified as that of deceased Supriya Lotlikar, on the basis of churidhar and hair band with wooden beads. 13. Admittedly, the case of the prosecution is based on circumstantial evidence and as stated by the Apex Court in catena of decisions the law on this aspect is well settled. First, the circumstances from which the conclusions of guilt is to be drawn should be established by proof beyond reasonable doubt. Second, 9 the circumstances proved must be consistent with the guilt of the accused and inconsistent with his innocence. Third, all the circumstances proved when taken together should point out to the guilt of the accused i.e. sufficient to conclude that within all human probability it is the accused who committed the crime. In this case, none of the three circumstances sought to be proved to connect the accused to the murder of deceased, and held as proved by the learned Sessions Judge, are free from doubt. Before dealing with the said circumstances, we will refer to the story of motive. 14. The motive which was alleged by the prosecution is that the accused did not wish to marry the deceased Supriya Lotlikar because of his illicit relationship with Rajeshree Tarekar/A-2. It is nobody's case that the accused was forced to marry civilly the deceased Supriya Lotlikar and if that was the case there might have been room to suggest that the accused did away with the deceased because of his relationship with Rajeshree Tarekar/A-2. There is no doubt that there is a motive behind every crime and that is why the Investigating Agency as well as the Courts while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. Motive therefore is always relevant and in a case based on circumstantial evidence it is of special importance but is of no consequence if the evidence is strong. The proof of motive fell to the ground with the discharge of Rajeshree Tarekar/A-2. The evidence produced by the prosecution only shows that Rajeshree Tarekar/A-2 who was working for Sunil/PW15 came to be a friend of the accused as the latter 10 was a client of the said Sunil Shanbhag/PW15. Shanbhag/PW15 has clearly stated that he did not notice anything unusual regarding the relationship of the accused with Rajeshree Tarekar/A-2. It is not anybody's case that the accused went to meet the said Rajeshree Tarekar/A-2 any time other than when the accused went to meet the said Sunil Shanbhag/PW15. The prosecution has not produced any evidence even to remotely suggest that the accused had any special relationship much less an affair or illicit relationship with Rajeshree Tarekar/A-2 inasmuch as the prosecution also did not produce any evidence to prove that the relationship between the accused and the deceased were strained. On the contrary there is sufficient evidence to conclude, and as stated by Sanjiv/PW2, that everything had gone very well when the accused and deceased went out for a ride on 23-2-2004 and even on that fateful day assuming the deceased went after she received a call from the accused, she went in a happy mood. Assuming that the accused wanted to marry Rajeshree Tarekar/A-2, the accused could have always got his marriage with the deceased annulled and we see no reason why the accused had to take the extreme step of strangulating and murdering the deceased, as alleged by the prosecution. This is a clear case where motive was alleged by the prosecution and the prosecution has failed to prove the same. In a case based on circumstantial evidence and where the evidence is very weak motive was of special significance to the prosecution and the prosecution having alleged it but having failed to prove the same, certainly it does break one link in the chain of the circumstances. This is a view held by a Division Bench of this Court in the case of Shiri alias Shrikant Ramchand Gaonkar v. State of Goa(2006(2) Bom.C.R.(Cri.) 353) and needs to 11 be followed in this case as well. 15. The first circumstance held as proved against the accused, by the learned trial Court is the conduct of the accused. There is no doubt that in terms of Section 8 of the Indian Evidence Act, 1872, conduct of an accused is relevant if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. Conduct must have nexus with the crime committed. The learned trial Court has extensively relied on the Judgment of the Apex Court in the case of Maharashtra v. Suresh(2000(1) Crimes page 1/2000(1) SCC 471) to come to the conclusion that denial of what has been stated by the prosecution witnesses could be considered as one of the missing links in the chain of circumstances. That was a case where certain injuries were found on the person of the accused which were noted by the doctor who had examined him. The Apex Court observed that the significant impact of the said incriminating circumstance was that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he had not sustained any injury at all and in such a situation the Apex Court held that a false answer offered by the accused, when his attention was drawn to the aforesaid circumstance, renders that circumstance capable of inculpating him, and, in such a situation like that a false answer could also be counted as providing a missing link for completing the chain. Those observations could hardly be of any relevance as far as the facts of the case are concerned, when none of the circumstances connecting the accused with the crime were proved by the prosecution beyond reasonable 12 doubt. The learned trial Court entirely lost sight of the fact that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that if there is any infirmity in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court. 16. The only conduct which could be considered against the accused is that he did not go to the Police Station to lodge the complaint. There is no last seen circumstance proved in this case. Admittedly no one saw the accused and the deceased going together on 26-2-2004. As per the case of the prosecution, particularly as stated by Aurea/PW9, the deceased is stated to have left her office in a happy mood after she received a telephone call which was taken by her colleague Evita da Silva/PW7. In her evidence, Evita/PW7 stated that on 26-2-2004 at about 2.45 p.m. she attended the phone call and the person from the other side had asked for Supriya/deceased and the said Supriya at that time was in the neighbouring office and she was called and she attended the call and told her that she was going out and would be back within half an hour. Admittedly, Supriya/deceased did not tell her with whom she was going. Evita/PW7 also categorically stated that she did not know where and with whom Supriya went on that day as she did not disclose anything to her. Admittedly, the Investigation Officer for best reasons known to him chose not to verify the identity of the caller who had called Supriya. Evita/PW7 further stated that in the same evening she received a call at her residence from the sister of the deceased inquiring about the 13 deceased and she told her that she had gone out stating that she would be back within half an hour. In other words, the evidence of Evita/PW7 does not prove any conduct on the part of the accused which could connect the accused with the crime. 17. Aurea Correia/PW9 was working in the adjoining office of a Chartered Accountant and according to her the deceased was her good friend. As regards the incident of 23-2-2004 she stated that Supriya had told her that she had gone to Verna along with Deepesh/Accused to meet his friend and came back without meeting the said friend. As regards the incident of 26-2-2004 she stated that she met Supriya at 1.15 hours and when they were talking Deepesh/Accused came near her office, peeped and went away even before she could say anything about it to Supriya and thereafter they continued to talk and at about 2.30 p.m. Deepesh/Accused came near her office and he talked with Supriya for about 5 to 10 minutes and Supriya returned back to her office and after about 10 minutes Evita/PW7 came to the office and informed that there was a call for her and Supriya went to attend the said call and returned back and told her that the call was from “him” which she understood as a call from Deepesh and thereafter she went down the stairs after informing Shanti/PW26 who was working in another adjacent office of Advocate Shri Bale. She also stated that Shanti/PW26 told Supriya “Best of Luck” and while going down the steps Supriya was in a happy mood and thereafter she and Shanti/PW26 went to the window to peep outside and saw Supriya walking on the road going up to the main road. In cross-examination 14 she stated that Supriya did not disclose to her the name of the person who had called her and who was waiting for her. 18. Shanti Hegde/PW26 stated that on 26-2-2004 she had opportunity to meet Supriya between 2.30 and 3.00 p.m. and at that time she was going down the stairs from the building and she was going to meet her fiance but did not disclose the name of her fiance. As per her, she along with Aurea Correia/PW9 went towards the window to watch the said Supriya going downstairs and saw her reaching up to the main road and then she went towards the left and then they could not see her. In cross-examination she stated that Supriya did not tell her as to where she was going to meet her fiance nor did she disclose where her fiance was waiting for her. Admittedly and as stated by Shanti/PW26 Supriya was a girl of good character and very jovial in nature. The evidence of Aurea Correira/PW9 shows that earlier the said Supriya had referred to the accused by his name i.e. Deepesh. The learned trial Court noted that there were discrepancies in the evidence of Aurea Correira/PW9 and Shanti/PW26 but they were of minor character and on that count their testimonies could not be viewed with suspicion or discarded. We are unable to accept this line of reasoning. Already stated, nothing had prevented Supriya from telling either Aurea Correira/PW9 or for that matter Shanti/PW26 and particularly Evita/PW7 who was working in her office itself that she was going with Deepesh(i.e. accused). In the circumstances of the case, it is difficult to accept that Supriya/deceased referred to the accused to Aurea Correia/PW9 as “him” and to Shanti/PW26 as “fiance” as the person she was 15 going to meet and it is more than probable that these two witnesses have improved their versions subsequently. Nothing prevented the Investigation Officer to track down the source of the call and get the identity of the caller established. None of the said three witnesses, Evita/PW7, Aurea Correia/PW9 and Shanti Hegde/PW26 had seen the deceased going with the accused. The deceased had not told them that she was going with Deepesh/Accused. The contradiction in the evidence of Aurea Correia/PW9 and Shanti/PW26 as to how the deceased referred to the accused was a material contradiction, and in such a situation it is difficult to believe that Aurea/PW9 and Shanti/PW26 knew that the deceased had gone with the accused appears to be an improvement in their versions. That the deceased went with the accused and this fact was known either to Aurea Correia/PW9 or Shanti/PW26 stands further falsified by the evidence of Sanjiv Lotlikar/PW2 who gave a missing report and which