-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 45 OF 2005 Vaman Jaidev Raval, presently in Central Jail Aguada. ...... Appellant V e r s u s The State of Goa ...... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. S. Dessai, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CRIMINAL APPEAL NO. 46 OF 2005 Shri Jaidev Vaman Raval @ Depeek P. Malvankar, presently in Central Jail Aguada. ...... Appellant V e r s u s The State of Goa ...... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. S. Dessai, Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CRIMINAL APPEAL NO. 47 OF 2005 Shri Prashant Vaman Raval @ Prashant L. Nail, presently in Central Jail Aguada. ...... Appellant V e r s u s -2- The State of Goa ...... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. S. Dessai,Advocate for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CRIMINAL APPEAL NO. 48 OF 2005 Shri Sanjeev @ Sanju Vaman Raval, presently in Central Jail Aguada. ...... Appellant V e r s u s The State of Goa ...... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. S. Dessai, Advocate for the Appellant. Ms. Coutinho, Public Prosecutor for the State/Respondent. CORAM : DR. S. RADHAKRISHNAN N. A. BRITTO, JJ. DATE: 11TH DECEMBER, 2006. JUDGMENT (Per N. A. BRITTO, J.) These appeals have been filed by the accused, who have been convicted and sentenced under Sections 302 and 307 read with Section 34 I.P.C. by the learned Sessions Judge, Panaji, vide Judgment dated 28.07.2005. -3- 2. The accused belong to one family. Vaman J. Raval/A1, is the father of Jaidev @ Depeek/A2, Prashant/A3 and Sanjeev/A4. All the accused reside in one of the mundkarial houses situated in the property known as Tolle at Narva of Bicholim Taluka, belonging to Srinivas Vaikunth Parab Lawande, father of Vasant Lawande/P.w.2. Pandurang @ Pandu Malvankar along with his wife Padmavati, reside in another house. The mother of Suresh Lawande/P.w.19 also resides in one of the said houses. The said Srinivas Lawande died in the year 1988. The said Pandurang Malvankar has four daughters, one of whom is married to Vaman/A1 and as they had no son, the said Pandurang and Padmavati have adopted Deepak @ Jaidev/A2 by deed of adoption dated 22.06.1993. During the lifetime of the said Pandurang, the lease, if we may use that expression, of cashew and mango trees of the said property was with the said Pandurang Malvankar, the father in law of Vaman/A1, who died on or about 22.09.1993. It appears that after the death of the said Pandurang Malvankar, a dispute arose between the family of Lawande and the family of the accused regarding the enjoyment of the said property as a result of which, the said Vasant/P.w.2 and his brothers filed Regular Civil Suit No. 45/64/A and obtained an exparte injunction against the accused on 11.03.1994, which was subsequently confirmed on 11.10.1994, restraining the accused from -4- interfering in the said property. In the said Civil Suit, Padmavati, the widow of Pandurang and Deepak/A2, have taken a plea that they are agricultural tenants of the said property and they have also filed a tenancy case bearing no. TNC 56/94 before the Mamlatdar against Vasant/P.w.2 and his brothers. Although Vasant Lawande/P.w.2 had obtained the said injunction order against the accused, the enjoyment of the property continued to be with the accused till the year 2002, when presumably the cashew and mango crops were taken by Ranganath Bhinge, (since deceased), pursuant to agreements dated 28.02.2002 and 10.03.2002 (Exhibit 19 and 20 respectively). Thereafter, the said Vasant Lawande/P.w.2, obtained a licence for cutting trees from the said property on or about 23.08.2002 and the period of licence was extended to 07.10.2002 and in between the said Vasant/P.w.2 entered into an agreement dated 16.09.2002, Exh. 22, with deceased Ranganath Bhinge, for the sale and cutting of the said trees and it does appear from the evidence of Vasant Lawande/P.w.2, that during the said cutting of the said trees by the said Ranganath Bhinge, there was interference with the said cutting of trees from some of the accused, and, thereafter the said Padmavati and Deepak/A2 filed an application in the said tenancy case and obtained an ex parte Order dated 26.11.2002 restraining the family of Vasant -5- Lawande/P.w.2 from interfering with the possession of the said Padmavati and Deepak/A2. Vasant Lawande/P.w.2 entered into another agreement with the deceased Ranganath Bhinge dated 24.02.2003, Exh. 23, by which he sold the cashew and mango crops of that year to the deceased Ranganath and the present incident of assault took place on 08.04.2003, when the deceased Ranganath Bhinge, went to pluck mangoes from the said property with the plucker Anil Morajkar/P.w.6 and Suresh/P.w.19 and four other migrant labourers namely Suresh and Laximi Lamani and Suresh and Laximi Rathod, who were not examined by the prosecution as they could not be traced. The incident took place after mangoes of one tree were plucked. 3. Lavu Malwankar/P.w.4, an uncle of Vaman/A1 came to know about the incident upon hearing the noise in the direction of the house of Jairam Malvankar, who is his nephew, and, Premanand Malvankar/P.w.5 came to know about the incident through the labourers who came running to his house and informed him that somebody was assaulted. Both Lavu/P.w.4 and Premanand/P.w.5, went to the place and saw Ranganath Bhinge(since deceased) and Suresh Malvankar/P.w.19, with bleeding injuries and both were continuously asking for water. There, Lavu/P.w.4 -6- was told by Suresh/P.w.19 that he was assaulted by Vaman/A1 with “danda” and by others, by iron rods. Premanand/P.w.5 telephoned the police who arrived at the scene and thereafter Lavu/P.w.4 informed about the incident to Narayan/P.w.7, the younger brother of Suresh/P.w.19. Lavu/P.w.4 and Premanand/P.w.5, both cousins of Suresh/P.w.19, accompanied the police along with the deceased and injured Suresh/P.w.19 to Primary Health Centre, Bicholim, where they were examined by Dr. Mascarenhas/P.w.24 and then sent to Goa Medical College at Bambolim. Narayan/P.w.7 first went to Primary Health Centre at Bicholim and then went to the Police Station where he lodged his complaint giving the names of all the accused having brutally assaulted the said Ranganath and Suresh. The said complaint came to be registered under Sections 307, 504, 506 read with 34 I.P.C. Ranganath Bhinge died on his way to Goa Medical College and subsequently Section 302 I.P.C. was added to the crime registered against the accused. 4. At the Primary Health Centre at Bicholim, when Suresh/P.w.19 was examined by Dr. Mascarenhas/P.w.24, he was found with the following injuries:­ -7- (1) Multiple lacerations with profused bleeding from each laceration. The laceration on the scalp was 8 cms in size; the laceration on the left thigh was 2.5 cms; the laceration on the leg shin was also 2.5 cms. There were multiple abrasions of various sizes all over the body, ranging from 5 to 10 cms. There was also a large haemotoma over the left lower thigh at the back; fracture of left upper tibia was suspected but it does not appear that it was ever confirmed. Suresh/P.w.19 was referred to Goa Medical College and the opinion as regards the nature of injuries was reserved. The prosecution produced a medical certificate­exhibit 92, issued by the Goa Medical College, through the investigation officer, and, relying upon the decision in the case of Pretichand v. State of Himachal Pradesh, (AIR 1989 SC 702), the learned Sessions Judge held that the contents of the said certificate were proved. It may be noted that the said certificate­exhibit 92 was signed by two Medical Officers namely a Senior Resident in Neuro Surgery and an Associate Professor in the Department of the Neuro Surgery, G.M.C., Bambolim. The names of either of the said two doctors were not cited in the chargesheet and presumably as a result of which, they were not summoned and -8- examined in support of the said Medical Certificate­exhibit 92. The said Medico Legal Certificate­Exhibit 92 shows that a C.T. Scan taken of Suresh/P.w.19 had shown a linear fracture of right high parietal but the said C.T. Scan report was also not produced. The said Certificate­exhibit 92 was also not produced in terms of Section 294 of the Code of Criminal Procedure, 1973, (Code, for short) nor any other doctor was examined to identify the signature of the Senior Resident or the Associate Professor, who had signed the same. In the case of Pretichand v. State of Himachal Pradesh (supra), the doctor who had given the Medical Certificate was not available for giving evidence and another doctor was called for to identify the signature of the doctor who had issued the said medical certificate, but, that is not the case herein. It is well settled that a medical certificate or a post mortem report is not substantive evidence, it is only a previous statement based on the examination of the patient. It is only a statement given by medical officer in Court that it is substantive evidence and the certificate can be used only to corroborate his statement under Section 157 or to refresh his memory under Section 169 or to contradict the statement of the witness under Section 145 of the Evidence Act. One does not know on what basis the I.O./P.w.31 had made a statement that the Doctor who had issued the certificate was no longer in Goa Medical College. There is -9- absolutely no explanation from the prosecution, as to why the Associate Professor could not be summoned or for that matter the medical officer, who had taken the C.T. Scan. In the absence of the said Medical Certificate­ exhibit 92, being duly proved by the prosecution, the injuries which Suresh/P.w.19 was found with, when examined by Dr. Mascarenhas/P.w.24, had to be considered only as simple in nature, in as much as there was no fracture proved in respect of the injuries, opinion of which was reserved. We may reiterate that a hurt certificate or a post mortem report is not substantive evidence unless the doctor who has issued the same is examined in support thereof and in case he is dead or not available, then it is necessary to get such certificate or report proved through persons who knew the handwriting/signature of the doctor who had issued the same. 5. The Post Mortem of the deceased was conducted by Dr. Sapeco/P.w.22, who found the following injuries on him:­ 1) Stitched lacerated wound 6 cm x 6 stitched on along right parital eminece of scalp. -10- 2) Stitched lacerated wounds 2 cms x 2 stitches wounds for left ear pinna. 3) Stitched lacerated wound 2 cms x 2 stitches on along right outer aspect of lower leg at its upper forth region. 4) Stitched lacerated wounds 1 2/4 cms x stitched up along right mid shin front. 5) Stitched lacerated wound 1 1/2 cms x stitched along right lower 3rd at shin front. 6) Stitched lacerated wounds 1 1/4 cms x stitched up along right lower 4th at shin front. 7) Stitched lacerated wound 1 2/4 cms x stitched up along left mid shin front. 8) Stitched lacerated wound 1 1/4 cms x stitched up along left lower third shin front. 9) Stitched lacerated wound 3 1/4 cms x 3 stitches on along left inner back of right upper arm. -11- 10) Swelling and deformity with CREPITUS of fractured tibia and fibula bones at right upper forth of lower leg with 3 cms stitched up lacerated wound. 11) Abrasion of 2 x 3/4 cms with dried blood on was seen at right outer back of upper arm. 12) Transverse gapping contused lacerated wound of 7 x 1/2 cms along lower left back of scalp region. 13) Transverse gapping contused lacerated wound of 8 x 1/2 cms along occipital region of scalp at mid line. 14) Vertical gapping contused lacerated wound of 8 x 1/2 cms along occipital region of scalp at mid line. 15) Abrasion with dried blood of 3 x 1/2 cms on right mid back of upper arm. 16) Abrasion with dried blood on of 2 3/4 cms on right supinated aspect of forearm. -12- 17) Oblique abrasion of 7 x 4 cms along left lower front of thigh at lower aspect. 18) Oblique abrasion of 8 x 1/4 cms along left knee cap region. 19) Parellel/railrod paterned red bruise of 9 x 1 cms along left outer aspect of lower leg at its upper forth. 20) Parellel/railrod paterned red bruise of 8 x 1 cm. Along left mid outer aspect of lower leg. 21) Parellel/railrod paternod red bruise of 7 x 1 cm. Along left lower forth of outer aspect of lower leg. 22) Parellel/railrod paterned red bruise of 6 x 1 cm. Along left mid back of upper arm. It can be seen from the said description of the injuries and the report prepared by Dr. Sapeco that five of the injuries were located on the head, five were located on the hands and twelve injuries were located on the lower limbs. Dr. Sapeco opined that the death of the deceased was caused -13- due to haemorrhagic shock associated with fracture for right lower leg bones as a result of cumulative effect of injuries nos. 1 to 22 caused by hard or blunt force or object or surface impact, which were fresh at the time of death and were fatal in the ordinary course of nature. 6. In the above background, the accused came to be charged and tried under Section 504, 506(ii), 307 and 302 I.P.C. read with Section 34 I.P.C. with the allegation that on the aforesaid date and place at about 17.00 hours, the accused in furtherance of their common intention, abused, threatened and assaulted Ranganath Bhinge and the said Suresh G. Malvankar, while they had gone to pluck the mangoes, with deadly weapons like a bamboo and iron rods, thereby killing the said Ranganath Bhinge (deceased) and attempting to kill Suresh G. Malvankar/P.w.19. In support of the charge, prosecution examined 31 witnesses while the accused examined none. Although at one stage it was suggested to one of the prosecution witnesses that the deceased and Suresh/P.w.19 had assaulted one another because of differences between them over the right to pluck the fruits of the trees, the case of the accused in their statements under Section 313 of the Code, was one of denial simpliciter. The accused came to be acquitted under Section 504 and 506(ii) read with Section 34 I.P.C., -14- (though there is no specific mention to Section 506(ii) I.P.C.), and convicted as aforesaid. 7. The evidence led by the prosecution could be summarized as follows:­ (a) Evidence of three witnesses who are stated to be the eye witnesses to the incident, namely Anil/PW6, Suresh/PW19 and Nitesh/PW21. (b) Circumstantial evidence of the recovery of weapons from each of the accused. (c) Circumstantial evidence of abscondence of the accused from the date of incident till they were made to surrender by Digambar/PW11, the brother­in­law of Jaidev/A­2 on 16­4­2003. (d) Recovery of the clothes of the accused, the evidence of which has been disbelieved, and in our view rightly,s by the learned Sessions Judge. -15- 8. If the attachment of the clothes of the accused was to be given any credibility the clothes of the accused ought to have been attached at the time when they were arrested and not after several days, after they were placed in custody. Although the accused were arrested on 16­4­2003, the pant/MO17 and the shirt/MO18 of Jaidev/A­2 were attached on 21­4­2003 while the banian/MO19 and the short/MO20 of Prashant/A­3 were attached on 22­4­2002 while those of Sanjeev/A­4 were attached on 23­4­2003. The green shirt of Jaidev/A­2(MO18) was recovered from the house of his sister Latika/PW10. She did not support the said story of recovery, and that apart, as per the report of CFSL no blood was detected on the said shirt(Exh.22­ A). The fact that the other clothes of the accused were found to be blood stained would be of no significance whatsoever when the said clothes were not attached at the time of their arrest and were attached with much delay after they were arrested. 9. The learned Sessions Judge has considered the aforesaid three witnesses as truthful, though in our view that could be said only of Suresh/PW19 and Nitesh/PW21. -16- 10. Anil/PW6 was taken by the deceased as a plucker to pluck the mangoes and before the Court he had so stated. He had further stated that the deceased had shown to him the tree from which the mangoes were to be plucked and after he had plucked the mangoes from one tree he climbed the other tree when the daughter of A­1/Vaman came to the property and suspecting that there might be a fight, he got down from the tree and at that time Jaidev/A­2 and Sanjeev/A­4 came there with iron rods and they ran towards the deceased and started assaulting him and he also saw Vaman/A­1 behind him who had raised a danda to hit him and he managed to dodge and ran away from the place of incident. In cross­examination he had admitted that he was aware that there was enmity between the accused persons and the landlord and therefore he was frightened on seeing the said daughter of Vaman/A­1. This witness was taken before Shri Usgaonkar/PW27 for the purpose of recording his statement under Section 164 of the Code and Shri Usgaonkar/PW27 in his evidence had stated that he was requested by the Police to record his statement but he had not recorded his statement as he had stated that he had no -17- knowledge of the incident which had taken place at Talewada and he had only stated that he had plucked the mangoes and as he came down from the tree, Vaman/A­1 tried to hit him, and as such he ran away from the place of incident. This position was brought to his notice in the course of his cross­examination and he stated that he had not made any such statement before the Special Judicial Magistrate Shri Usgaonkar/PW27. The learned Sessions Judge did take note of the fact that this witness was silent on the role played by Prashant/A­3 but has tried to explain this situation by observing that this witness had not witnessed the entire incident and he had ran away as soon Vaman/A­1 had tried to assault him and as such it was possible that he had not seen Prashant/A­3 and had left the place even before Prashant/A­3 had arrived at the place of incident and therefore his testimony could not be disbelieved either because he had not seen Prashant/A­3 or because he was silent on the role played by Prashant/A­3. The learned Sessions Judge also observed that Shri Usgaonkar/PW27 had not recorded his statement but had merely passed an Order and that he ought to have recorded his statement under Section 164 of the Code and what he had stated -18- before Shri Usgaonkar/PW27 could not be treated as a statement under Section 164 of the Code and in the absence of any such statement being recorded it could not be said that the said witness had in fact made such a statement before the SJM/PW27 or that he had resiled from his previous statement or that his testimony was inconsistent with the statement made under Section 164 of the Code. On behalf of the accused it has been submitted by the learned Senior Counsel that Anil/PW6 has not made any reference to the presence of Nitesh/PW21 or to all the accused inasmuch as he has not given the description of the injuries suffered by the deceased and therefore it is doubtful that he had at all seen the incident. It is also submitted that Anil/PW6 also made no reference to the presence of Suresh/PW19. In our view, the submission made on behalf of the accused deserves consideration. It is the very case of the prosecution that all the four accused came running at one time and also went away together and therefore Anil/PW6 could not have missed to mention the presence of Prashant/A­3. That apart he makes no reference to either Suresh/PW19 or for that matter Nitesh/PW21. In case he had seen the entire incident he would -19- have certainly narrated the same when he was taken to Shri Usgaonkar/PW27, the SJM. In between Anil/PW6 and Shri Usgaonkar/PW27 it is the latter who deserves more credence to be given, and whether Shri Usgaonkar/PW27 had recorded the statement of Anil/PW6 as required under Section 164(5) of the Code or whether what he had stated was recorded in the form of an order, the fact remains that Anil/PW6 had stated before the said SJM/PW27 that the moment he came down from the trees and Vaman/A­1 tried to hit him, he ran away from the place of incident. The subsequent version given by him before the Court as regards the assault on the deceased has got to be considered as an improvement. Nevertheless his evidence could be accepted to a limited extent as regards the presence of Vaman/A­1 reaching the scene and attempting to assault him. 11. Suresh/PW19 is the cousin of the wife of Vaman/A­1 and otherwise it appears that he was not on talking and visiting terms with the family of the accused for about ten years. It appears that he had an interest in the lease of plucking of the fruits given to the deceased Ranganath Bhinge by Vasant/PW2 -20- for he had earlier stated before the SJM/PW27, when his statement was recorded under Section 164 of the Code, that he had taken the mango trees on hire on partnership basis. Otherwise one does not know what sort of assistance he had gone to give to the deceased in plucking the mangoes. Moreover, Vasant/PW2 has admitted the possibility that Suresh/PW19 might have been a partner of the deceased though at the same time he has reiterated that his agreement was only with the deceased. Suresh/PW19 is an injured witness whose injuries have been proved by the prosecution through the evidence of Dr. Mascarenhas/PW24 and it is difficult to believe that he would falsely implicate his own relations in order to shield the actual culprits. He stated that on 8­4­2003 at about 10.00 a.m. he went to Talewada at Narva to see his mother by his scooter. He also stated that the said Ranganath, the deceased, had requested him to assist in the plucking and the deceased had arranged Anil/PW6 for plucking the mangoes and there were other labourers and when Anil/PW6 was plucking the mangoes he had moved away when he heard the deceased Ranganath shouting for help and calling him and when he went near the mango tree -21- which was being plucked by Anil/PW6, he saw all the accused, Vaman/A­1 holding a danda and Jaidev/A­2, Prashant/A­3 and Sanjeev/A­4 holding iron rods and were abusing the deceased who had fallen near the branch of the trees and all of them were assaulting him with the said danda and the iron rods and the deceased had sustained several injuries and his clothes were stained with blood and as soon as the accused saw him they left the deceased Ranganath and rushed towards him and Jaidev/A­2 assaulted him by giving a blow of iron rod on his head and thereafter all the accused assaulted him with iron rods and dandas. He stated that the accused gave three blows of iron rods on his head and they assaulted him mostly on the left side of the body and on the right leg and threatened to kill him. He stated that he did not know as to why the accused had assaulted him. The learned Sessions Judge has discussed the evidence of this witness in para 11 of the Judgment. It has been submitted on behalf of the accused by their learned Senior Counsel that this witness has a tendency