1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.57 OF 2007 Shri. Suresh Minz @ Dadi Native of Bosuoumba, Tal Lulkidi dist. Sundargarh, Orissa, presently lodged at Central jail Aguada-Goa ... Appellant. Versus State (through the Public - -Prosecutor) ... Respondent Ms Asha Dessai, Advocate under Legal Aid Scheme for the appellant. Ms W. Coutinho, Public Prosecutor for the respondent. Coram :- S. A. BOBDE, & R. C. CHAVAN, JJ. Date : - 25 th June, 2008. ORAL JUDGMENT :( PER R. C. CHAVAN, J. ) 1. The appellant challenges his conviction for the offence of murder punishable under section 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.5,000/- imposed upon him by the learned Session Judge, South Goa, Margao in Session Trial No.11/2006. Facts which led the prosecution and conviction of the appellant are as under : 2 2. The appellant was working as a sailor and victim Ganju Ikka was working as a cook on fishing trawler owned by P.W.6, Vincent. On 20.11.2005, both the victim as well as the appellant were drunk and had a quarrel. On the same night, the appellant lifted a cement concrete block and hit the victim on his head, when the victim was sleeping, leading to the victim's death. On the report by one Stanley, an offence was registered and investigation commenced. In the course of investigation, the police performed inquest on the body and sent the body for postmortem examination. During the course of investigation, police performed panchanama of spot, arrested the accused and seized his clothes. The police collected medico-legal exhibits from the medical officer, who conducted postmortem examination, recorded statements of witnesses and on completion of investigation, chargesheeted the appellant. 3. Upon commitment of the case by the learned Judicial Magistrate,First Class, Vasco, the learned Session Judge charged the appellant for the offence punishable under section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. The prosecution examined in all 19 witnesses, including eye-witness P.W.8, Nirmal Tirki. Upon consideration of evidence tendered before her, the learned Session Judge convicted and sentenced the appellant as afore mentioned. 3 4. Aggrieved thereby, the appellant has preferred this appeal. We have heard Advocate Ms Asha Dessai for the appellant and Ms Winnie Coutinho, Public Prosecutor for the State. The evidence of P.W.4, Devidas Mardolkar on inquest panchanama Exh.33 and P.W. 15 Dr. Silvano, who conducted postmortem examination, leave no doubt that the victim met with homicidal death. According to the P.W.15, Dr. Silvano, the victim had suffered the following surface wounds : “ Surface Wounds : 1) Grazed abraission of 13 x 8 cms which was directed from the face (?) back ward along right side of the face ear and back of the head. 2) Pressure abraission of 8 x 5 cms on the left temple. 3) Red Burise 2 x 1cms (on section 1 cms deep) on mid lower lip. 4) Pressure abraission of 4 x 2 cms was seen on left pronated (?) upper third of forearm. 5) Abraission ¾ x ½ cms on the right back of the shoulder. 6) Abraission ½ x ¼ cms on the left buttock. 7) Abraission 1 x ¾ cms on the left knee cap. 8) Abraission ½ x ¼ cms on left lower and outer fourth of the lower leg.” 5. Upon dissection, the medical officer found that right temporal bone had fractured radiating into sphenoid bone at the base of 4 the scalp. There was a linear fracture to left temporal bone. The medical officer opined that death was due to the damage to the head and brain, as a result of which, first injuries noticed by him. 6. It is not necessary to go into the evidence in respect of panchanama of spot, sketch of spot, photographs taken and dog tracking tendered by P.W.2 Premiano, P.W.3 Rajesh Kolvekar, P.W.10, Bhanudas and P.W.11 Umesh, since there is no dispute in respect of spot at which the offence took place. In any case, it has no relevance to the injuries leading to the death of the victim. It is not necessary to refer the evidence of P.W.13, Dr. Korgaonkar, who did blood grouping of the victim and the appellant vide Exh.66 and 68, since the blood groups of appellant and victim both is A Rh positive. For the same reason, the evidence of PW.5, Elvis Gonsalves on arrest of the accused and seizure of the clothes of the accused vide Exh.35,is not material, since it can be said that stains of blood on the clothes of accused, were of his own. Same can be said about the evidence of P.W.19, Senior Scientific Officer of Central Forensic Science Laborator, which does not help in connecting the appellant to the crime. The evidence of P.W.9, Baliappa Ambir is likewise of no use since he states about the events after the incident. 7. P.W.7, Nirantar is the nephew of the victim. He stated 5 that on 20.11.2005, at about 5 p.m., he returned to the jetty from trawler. He found both the victim as well as the appellant drunk and quarreling with each other. He claimed to have intervened and made them stop quarreling. He stated that he accompanied with one Rajesh and appellant took his uncle and laid his uncle on a cement platform, since his uncle could not walk properly. He stated that thereafter, he, Rajesh as well as appellant went away and later at night, he learnt that his uncle had been killed. There is no suggestion in the cross-examination that there was no quarrel between the victim and the appellant. 8. P.W.8, Nirmal Tirki is the eye-witness. He was also working as a sailor on the fishing trawler of P.W.1, Stanley. He stated that on 20.11.2005, he had learnt that his mother expired about 2-3 days earlier and therefore, he wanted to return his native place Chattisgad. Therefore, he had not gone for fishing in a trawler. He claimed that when he was taking rest in a room at about 5 p.m., 2-3 persons brought the victim in drunken condition and threw him on the ground near the platform. He identified the appellant, as one of the two persons, who dropped the victim on the platform. These persons then went away. Thus, to this extent, he corroborates the version of P.W.7, Nirantar. P.W.8, Nirmal, further stated that at about 9 p.m., the appellant came to the platform and kicked the victim four times. The appellant lifted a cement concrete slab, which was lying nearby, and dashed it against the 6 head of the victim, which led to bleeding injury. He then claims to have gone and informed his master Stanlay about the incident. Stanlay came and saw the situation. 9. P.W. 1, Stanlay stated that he was informed of the incident by P.W.8, Nirmal. He saw the situation and then contacted the police. Thus, he too corroborates the version of the P.W.8, Nirmal. 10. The police had caused the statements of Nirmal and another witness to be recorded by Special Judicial Magistrate, P.W.16, Shri Suresh Audi under section 164 of the Criminal Procedure Code. However, there is no need to have recourse of those statements, since the witnesses stuck to their story which they had deposed before the Special Judicial Magistrate. The cross-examination of PW.8, Nirmal on behalf of the appellant, does not disclose any infirmity so as to discard his evidence. Learned Counsel for the appellant submitted that P.W.8, Nirmal could not have watched the incident from the place, where he was lying. However, it does not appear to have been suggested to the witness in the cross-examination that he could not have seen the incident. Also it cannot be said that merely because the police had caused his statement to be recorded under section 164 of Criminal Procedure Code, he was under any pressure to depose accordingly in the Court. The police cannot be faulted for having the statement of this 7 witness recorded under section 164 of Criminal Procedure Code, considering that he was a migrant from Chhattisgad and, therefore, the precaution taken was appropriate. 11. The learned Counsel for the appellant submitted that the prosecution story is improbable, since there is no reason why the appellant would murder the victim or hit him with a cement concrete block. As rightly pointed out by the learned Public Prosecutor the reasons why the appellant smashed the head of the victim with a concrete block, may be known to the appellant himself and this deficiency does not affect the eye-witness account given by P.W.8, Nirmal. The learned Counsel for the appellant next submitted that eye- witness account is not in conformity with what P.W.15, Dr. Silvano observed. Dr.Silvano had stated in his cross-examination that there ought to be minimum six contacts with the weapon like a concrete block, in order to cause eight ante mortem injury, noticed by him on the deceased. However, learned Counsel overlooked the fact that the Doctor had added that injury Nos. 1 & 2 alone, could be caused by the slab, and not injury Nos.3 to 8, which could be caused by blunt object like fist blows and friction of the body on any rough surface including ground. It may be, thus, seen that the medical officer was not referring to the six contacts by the concrete block, in order to cause injuries. He was referring to necessity of six contacts, in order to cause 8 injuries and had 8 clarified that only injury Nos. 1 & 2 could have been caused by the concrete block. As far as these two injuries are concerned, even one contact would have been enough to cause an injury on one side of the skull of the victim, by the impact of the concrete block, and the other side of the skull would also suffer an injury due to the impact, since the victim was lying at that time on a concrete slab. As for the other injuries, the eye-witness had already stated that the appellant had kicked the victim several times. Therefore, there is no discrepancy in the account of the incident given by the eye-witness so as to reject it. 12. In view of this unimpeachable evidence indicating the complicity of the appellant in assault, which led to death of the victim, and considering the nature of the injuries suffered, and the object used for inflicting such injuries, the learned Session Judge rightly held the appellant guilty of murder. The learned Session Judge could not have inflicted any other sentence. The appeal is, therefore, dismissed. S. A. BOBDE, J. R. C. CHAVAN, J. SMA