1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.40 OF 2009 Indrajeet Godbole, s/o. Parshuram Godbole, major of age, Painter, r/o. At. Khekdanala, Post-Khapa, Tal-Nagpur, Dist-Savneer, Maharashtra, presently undergoing a sentence at Central Jail, Aguada, Goa. ........ Appellant. V/s. State of Goa through Public Prosecutor, Panaji-Goa. ....... Respondent. Mr. J. Godinho, Advocate under Legal Aid Scheme for the appellant. Mr. C.A. Fereira, Public Prosecutor for the respondent. CORAM :- S.B. DESHMUKH & F.M. REIS, JJ. Date of reserving Judgment : 24/11/2010 Date of pronouncing Judgment. : 23/12/2010 J U D G M E N T (Per S.B. DESHMUKH, J. ) The appellant challenges the conviction and sentence recorded by the learned Addl. Sessions Judge -III, South Goa, Margao 2 in Sessions Case No.28/2006 whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo Life Imprisonment and further was directed to pay a fine of Rs.10,000/- and in default, to undergo Rigorous Imprisonment for a period of 3 months. An amount of Rs.5,000/- from the fine, if realised, was also directed to be paid to the complainant Smt. Sunita. This Judgment of conviction and sentence has been recorded by the learned Addl. Sessions Judge - III, South Goa, in case No.28/2006 on December 23, 2008. 2. The wife of the appellant Smt. Sunita is the complainant in the case at hand. According to the complainant, she had married to the appellant, 10/12 years prior to the date of the incident. The date of the incident is 22nd August, 2006. The appellant was unemployed. He was addicted to liquour, used to extend harassment and beatings to the complainant. The complainant and the appellant were blessed with two children. The complainant Smt. Sunita was working and managing the family. Except herself, there was no other family member to take care of their children. The complainant Smt. Sunita therefore requested her 3 mother to stay with herself and children. The complainant had shifted to a new residence at Kasai, Cuncolim somewhere on 14th August, 2006. On 21st August, the appellant visited the place of residence of the complainant. He tried to assault the deceased. Thus, around 1.30 noon, on 22nd August, 2006 the appellant had been to the residence of the complainant, demanded food and money to the deceased and on refusal, assaulted the deceased i.e. the mother of the complainant who was at the residence of the complainant. The assault by the appellant to the deceased was with fist blows, kicks, initially. The deceased fell down. The appellant allegedly assaulted the deceased with laterite stone. The alleged beating and assault by appellant was seen by P.W. 5, Suraj de Souza and one Mr. Sanjay, they chased the appellant, however, could not apprehend him. The deceased suffered multiple injuries and succumbed to those injuries. The appellant thereafter left the place and was absconding. Sunita, the complainant lodged a report to the police. Based on the report lodged by the complainant Sunita, an offence under Section 302 of the IPC was registered with Cuncolim Police Station, South Goa. It was registered under FIR No.44/2006. The Investigating Officer, after registration of 4 the offence, started investigation. Statements of various witnesses were recorded. Scene of offence panchanama was drawn. The appellant was arrested at Mangalore. After completion of the investigation, charge sheet was filed against the accused in the Court of Judicial Magistrate, First Class, South Goa, at Margao. The appellant was inducted for the offence punishable under Section 302 of the IPC, triable exclusively by the Court of Sessions. The learned Judicial Magistrate, First Class, therefore, in view of Section 207 of the Code of Criminal Procedure, passed an order committing the case to the Court of learned Sessions Judge, Margao. The case was made over to the learned Addl. Sessions Judge-III, South Goa, Margao. 3. The learned Addl. Sessions Judge framed charge for the offence under Section 302 of the IPC against the appellant. Order (Exhibit-7) passed by the learned Addl. Sessions Judge-III, /South Goa, Margao is part of the record. Charge was read over to the appellant on 5th February, 2007 who denied the same and claimed to be tried. 5 4. In support of the case of the prosecution, the prosecution has examined 23 witnesses. Antonio Fernandes (PW.2) is examined to prove the fact that complainant Sunita at the relevant time had rented a room from him. Suraj D'Souza (PW.5) is claimed to be an eye witness by the prosecution and has been examined. It appears that his statement was recorded by the Investigating Officer on August 25, 2006. Evidence of the complainant Sunita Godbole (PW.8) is adduced on behalf of the prosecution. FIR lodged by Sunita (PW.8) is at Exhibit- 26. Dr. Avinash Pujari (PW.10) a Surgeon is examined to establish the post-mortem report placed on record. Dr. Vasundra Dessai (PW.9) is examined to prove the blood grouping. Headmistress of the school Ms. Maya Zuvekar (PW.13) is examined to show timings of the school where the son of the appellant was admitted and taking education. Scene of offence panchanama (Exhibit-51) is placed on record. This scene of offence panchanama is duly exhibited by the pancha witness and the police officer. To establish discovery of the articles, pancha witnessTara Rajput (PW.19) is examined. Discovery Panchanama is at Exhibit 68A. To prove the inquest panchanama Exhibit 83, Sara Fernandes (PW.20) is examined. The appellant was arrested at 6 Mangalore. The arrest panchanama Exhibit P-53 is proved in the evidence of Krishna Narvekar, A.S.I. (PW.4). At the time of arrest of the accused, PW.4 was accompanied by a lady Head Constable Ms. Madhavi Dessai. Her evidence is also brought on record. She is prosecution witness No.11. PW.14 Suresh B. Naik is a dog trainer. According to the prosecution, the clothes on the person of the deceased Chavla were attached under a panchanama. Ramesh Lamani (PW.7) is examined on this point. The report of C.F.S.L has been placed on record under Section 293 of the Code of Criminal Procedure. This report is at Exhibit-54A. Injury Certificate (Hurt Certificate) is at Exhibit-54. According to the prosecution a test identification parade was held. PW.16 Agnelo Fernandes, Executive Magistrate who conducted the I.P. is examined in support of the test identification parade. PW.18 Smt. Vishranti Dessai was a teacher in Government Primary School, Veroda at the relevant time. Site plan or the sketch is placed on record and in support of the said sketch, Porby Dias (PW.23) is examined. PW.12 Satish Namshikar, Executive Engineer is also examined by the prosecution. 7 5. The trial Court has considered the evidence of PW.5 Suraj D'Souza and his status claimed is of an eye witness. The trial Court has also considered and accepted the evidence of PW.17 Arjun Godbole, son of the appellant and the complainant Sunita. Evidence of PW.21 Karan Godbole, another son of the appellant and complaint Sunita has been considered by the trial Court. The trial Court was of the view that PW.5 Suraj D'Souza and PW.21 Karan Godbole are the eye witnesses. Evidence of these two witnesses has been considered and accepted by the trial Court and upon considering the claim of the prosecution pertaining to the discovery under Section 27 of the Evidence Act, report of the C.F.S.L., and other material, reached to a conclusion that the appellant has committed offence under Section 302 of the IPC. 6. Mr. Godinho, learned Counsel appearing on behalf of the appellant would submit that PW.5 Suraj D'Souza cannot be said to be an eye witness. According to him, it is not conceivable that PW.5 being a contractor had been in search of labourers at noon time i.e. at the time of alleged occurrence. This witness, according to the Counsel appearing for the appellant, is a planted witness. Evidence of PW.21 8 Karan Godbole, son of the appellant and the complainant Sunita is also commented upon by the learned Counsel for the appellant. He drew our attention to the evidence of PW.21 Karan. According to him, the evidence of PW.21 Karan is insufficient to show that he had witnessed the alleged assault by the appellant to the deceased. Mr. Godinho, learned Counsel also drew our attention to the evidence of the Medical Officer examined on behalf of the prosecution. According to him, if the evidence is appreciated in its proper perspective, the injuries found on the body of the deceased could be sustained by a fall. He would submit that the deceased was a rag picker and in an attempt to jump over the compound wall, fell down and sustained injuries. According to him, the case of the prosecution that the appellant took a laterite stone from the compound wall and assaulted the deceased is unbelievable. He would submit that P.W. 8, Sunita admitted in cross examination that laterite stones which was used allegedly by the appellant was lying on the same place. He has shown the sketch for this purpose. The Counsel appearing for the appellant would submit that the conviction recorded is not supported by the evidence on record. He, therefore, seeks acquittal of the appellant. 9 7. Mr. Ferreira, the learned Public Prosecutor drew our attention to the evidence brought on record. At the relevant time, the complainant along with her two children was staying in a rented premises, along with her mother, deceased Chavla. Suraj D'Souza (PW.5) is an eye witness. Evidence of PW.5 Suraj remained unshattered despite the intense cross examination carried out on behalf of the appellant. He would submit that the trial Court has properly appreciated the evidence of PW.5 Suraj D'Souza, and PW.21 Karan. According to him, both these witnesses are eye witnesses. He relied on a Judgment of the Supreme Court in support of his submissions in the matter of Siddhartha Varshisht @ Manu Sharma vs. State, (2010) 6 SCC 1 and also drew our attention to the statement of the appellant under Section 313 of the Code of Criminal Procedure. According to him, the Judgment of the trial Court is based on the evidence, well reasoned and, therefore, the appeal be dismissed. 8. The case of the prosecution principally is based on the evidence of three witnesses i.e. PW.5 Suraj, PW.21 Karan and PW.17 Arjun The submissions of the learned Counsel for the appellant 10 revolves around the evidence of these three witnesses. Before adverting to the evidence of these two witnesses, we shall consider the evidence of the complainant Sunita (PW.8). Sunita (PW.8) in her oral evidence claimed that she was living with her husband at Cuncolim in a rented premises. They had two children, eldest Arjun 7 years old and the younger Karan i.e. PW.21, 6 years old. From her evidence, it appears that prior to the marriage of the appellant and the complainant Sunita, the appellant was in employment as a security person. However, after the marriage, he was unemployed. Harassment and beating was meted out to her by the appellant. She was residing separately, working and maintaining her family. There was no other member in the family to look after her minor children and that is how she requested her mother to stay with her. From the evidence of PW.8 Sunita and the evidence of PW.1 Alsiton Fernandes, son of the landlord, PW.2 Antonio Fernandes, landlord, it has been proved that PW.8 Sunita was staying in a rented premises of PW.2 Antonio Fernandes, with her children and the deceased mother Chavla on the date of the occurrence. Thus, the claim of the prosecution that on the date of occurrence, PW.8 Sunita with her children and the mother were residing in a rented 11 room, stands established. 9. The date of the incident is 22nd August, 2006. For the occurrence as alleged by the prosecution, evidence of witnesses i.e. PW.5 Suraj and PW.17 Arjun is important. From the evidence of PW.5, we have noticed that Suraj PW.5, at the relevant time, had been in search of labourers and had witnessed the assault to the deceased Chavla by his hands and kicks. He has described the assaulter as a man could be around 25-26 years old and the victim i.e. the lady in between 40 to 50 years of age. According to him, the assaulter was wearing whitish brown shirt and black long pant. The lady i.e. the victim, according to him, appeared to be a Lamani and was wearing a dress of mirrors. He has specified the assault by the man to the victim with kicks on her stomach. He also testified that the lady fell down. The man removed a laterite stone from the adjoining compound wall and hit the stone on the stomach of the lady. In his examination in chief, he claimed that he was at a distance of about 25 to 30 metres from both of them. From the evidence of this witness, it appears that he had tried to chase the assaulter who, according to him, after assault, ran away. 12 However, he could not succeed in apprehending the assaulter. He also has testified that one more person by name Sanjay resident of Cuncolim tried to apprehend by chasing the assaulter. We have noticed and it is not disputed that this Sanjay, resident of Cuncolim is not examined on behalf of the prosecution. This witness Suraj also states that after failure in apprehending the assaulter, he returned to the spot and found that the lady was sitting near the deceased person with the two children. According to him, the lady told him that the person who ran away was her husband and the lady fallen on the ground and died was her mother. She also disclosed her name as Sunita and the name of her two children as Karan and Arjun who were sitting there. He claims that his statement was recorded by the police on August 25, after about 3 days of the occurrence of the incident. He is also a witness on the point of identification of the appellant. The test identification parade was held on 1st November, 2006. He identified the appellant-accused standing in a row at serial no.6. We have minutely perused the cross examination of PW.5. In cross examination, he has stated that he had seen the appellant hitting the stone on the deceased as the appellant-accused was facing to him. This material is 13 brought on record in the cross examination on behalf of the appellant- accused. He further claimed in the cross examination that he might have run after the accused for about 3 minutes and thereafter searched for the accused 10 minutes in the trees and the bushes around and returned back. To a pointed question he replied that on 22nd August, 2006 i.e. on the date of the incident itself, after finishing the work he went to the Cuncolim Police Station and informed that he had witnessed the incident. It is true that this witness could not state the timing of his visit to the police station with precision, but then he was firm on his stand that he might have visited the police station around 6 to 6.30 p.m. Till that time, even he was not aware as to whether the complaint was lodged with the police station or not. Fairly he stated in the cross examination that the police wanted to record his statement on that day itself, but he was busy and could not wait at the police station. So far as association of Sanjay, the person who is not examined by the prosecution and who according to PW.5 has also chased the appellant-accused, Suraj states that he was known to him only at the time of chasing and searching the accused in the trees/bushes. He states that at that time said Sanjay told him that he 14 was resident of Gauthan and that is how he came to know about the other person i.e. Sanjay. A suggestion put to this witness on behalf of the appellant that he was not present on the spot of the incident at the relevant time has been denied by him. He also denied the suggestion that he is a stock witness of the police. On the point of clothes or recognition of the accused, he states in the cross examination that he had seen the appellant-accused in the said area prior to the incident as he used to go there in search of labourers. After the incident, according to him, he had seen the accused during the identification parade only. On the point of identification parade he has also been cross examined. We have also seen that part of the cross examination. He states that apart from himself, Sanjay and the other witness Cristo Pereira were also present at the Mamlatdar's Office. He has denied the suggestion that the police had showed the appellant-accused to him prior to the holding of the identification parade. A suggestion that he is giving a false evidence is also denied by him. We have given anxious consideration to the evidence of this witness. This witness is considered as a chance witness by the trial Court. From the evidence of this witness, we found that even it is not 15 suggested to this witness as to why he is depositing against the appellant-accused. There seems to be no animosity alleged by the defence amongst this witness and the appellant-accused. It is also not suggested that this witness is either related to the complainant Sunita or her deceased mother Chavla. Search of labourers by 1.30 p.m., according to the Counsel appearing for the appellant, is inconceivable. PW.5 in his examination-in-chief claims to be a contractor by profession without any office. He claims in his evidence i.e. examination-in-chief that on 22nd August, 2006 at around 1.30 p.m. he had gone to Veroda in search of labourers. In his cross examination, PW.5 states that though the labourers go for work in the morning and returned only in the evening, since the labourers in whose search he had gone were his labourers, he knew that they would be available at 1.30 p.m. PW.5 Suraj had explained in his cross examination as to why he had gone in search of labourers at such unusual time i.e. at 1.30 p.m.. There is no further cross examination on behalf of the appellant. Thus, the claim of PW.5 Suraj that he had gone in search of the labourers which he knew would be available at such a time, cannot be disbelieved on the contrary is credible. In our opinion, there is no 16 material brought in the cross examination of this witness to doubt or disbelieve the presence of this witness at the time of occurrence. In our opinion, evidence of this witness can be said to be important and trust worthy, from two view points. Firstly, he had seen the appellant- accused assaulting the deceased by hands, kicks, and with a laterite stone on the stomach of the victim when the victim fell on the ground. Evidence of this witness is also important from the view point of his claim that he identified the appellant as the person who assaulted the deceased at the relevant time. 10. PW.17 Arjun is the son of the appellant and the complainant Sunita. From the evidence of PW.17 Arjun, it appears that on the date of the incident, he was dropped at the school by his grandmother, the deceased Chavla. He claims that he had returned home at about 1.00 p.m. Counsel appearing for the appellant points out the examination-in-chief of the witness that he did not see assault on his grandmother. What is seen by this witness is that his grand mother was lying on the ground by the side of the house and the appellant -accused went at the rear side. It is true that PW.17 Arjun cannot be 17 said to be an eye witness on the point of alleged assault by the appellant-accused by hands, kicks and the laterite stone to the deceased Chavla. From the evidence of this witness, presence of the appellant- accused at the time of the incident, according to the learned Prosecutor, is established. For this purpose, he points out the statement made by this witness in the examination-in-chief, which reads : “I returned home at about 1.00 p.m. I removed the clothes and went inside the house. After I went inside, I heard some commotion. There was a quarrel going on outside. When I came outside, my father and brother were present.” This witness further states fairly that I did not see assault on my grand mother. Thereafter, he also states that the accused went at the rear side and two persons had followed apprehending him. We have considered the cross examination of this witness on behalf of the appellant. From his entire evidence, it can be said that this witness had not seen the alleged assault by the appellant by hands, kicks and the laterite stone on the stomach of the deceased person. But then his claim that his father and the brother were present at the time of incident and his father went at the rear side cannot be disbelieved. Presence of the father, his disappearance from the spot and his father, 18 the appellant, being chased by two persons, this part of the prosecution story, can be said to have been established in the evidence of this witness. This witness also talks about the clothes put on by the appellant at the time of the incident i.e. black pant and a shirt. Fairly he has conceded that “I do not remember the details of the shirt.” In cross examination, a suggestion was put to him that at the time of assault he was in the school which he has denied. The suggestion that he did not witness grand mother lying on the ground and that he did not hear commotion is also denied by him. His claim that he had not seen two persons allegedly chasing his father to apprehend him is also denied by him. After considering the entire evidence of this witness, in our opinion, this witness supports the case of the prosecution to the extent that, at the relevant time the appellant had been to the place of residence of the complainant Sunita, their children and the deceased Chavla, disappearance of the appellant after occurrence of the incident, lying on the ground of the deceased Chavla. To this extent, the case of the prosecution and the evidence of PW.5 has been corroborated by this witness. We make it clear that only a part of the assault by hands, kicks and laterite stone on the stomach is not corroborated by this witness. 19 In his evidence, we have seen truth of ring to this part of the prosecution story. 11. We have seen the evidence of PW.13 Maya Zuvekar, Headmistress of the Government Primary School. Evidence of this witness is not helpful either to the prosecution or the appellant. Photocopy of the attendance (Exhibit 47) is produced on record by this witness. That is of attendance roll. Vishranti Dessai has been examined as PW.18. We have also considered the evidence of PW.18, the other teacher of the Government Primary School, Veroda. She states that on 22nd August, 2006, she started classes at 8 a.m. and relieved the student at 1.00 p.m. We have also considered the cross examination and the time of occurrence of the incident. 12. The claim of the witness PW.21 Karan that he was present at the time of the incident needs to be considered in the light of his own evidence, the evidence of PW.5 Suraj and the other material on record. We may recall that PW.5 Suraj says that the lady i.e. the complainant was sitting near the deceased with two children. We have considered 20 the evidence of PW.21 Karan and, in our opinion, evidence if appreciated in proper perspective, it is worth to the extent that the appellant had been to the place