1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.33 OF 2007. Ashish Mandal, S/o. Tarapada Mandal, R/o. Colony 3, Sinnur, Raichur, Karnataka. Presently residing at Central Jail Aguada. ... Appellant. Versus State ... Respondent Mr. Arun Bras De Sa, Advocate for the appellant. Mr. C. A. Ferreira, Public Prosecutor for the respondent. Coram :- S. A. BOBDE, & R. C. CHAVAN, JJ. Date : - 14 th July, 2008. ORAL JUDGMENT :( PER R. C. CHAVAN, J. ) 1. This appeal by a convict, takes exception to his conviction for the offences punishable under section 376 and 302 of the Indian Penal Code and sentence of Rigorous Imprisonment of 7 years with fine of Rs.5,000/- and imprisonment for life with fine of Rs.10,000/- respectively imposed upon him by the learned Additional Sessions 2 Judge, South Goa, Margao in Sessions Case No.3/2004. 2. The facts which led to the prosecution and conviction of the appellant are as under : The appellant, as also victim and her husband, hail from Raichur District in Karnataka State. They were working as migrant labourers at a construction site in Pedda Benaulim, where the construction was being undertaken by Kurtarkar Construction. It is the prosecution case that the appellant used to have his meals with the victim and her husband till a few days before to the incident. The appellant was alleged to have illicit intimacy with the victim Anita. One Deepak also developed illicit intimacy with Anita. Enraged thereby, the appellant procured a knife, called Anita on the evening of 11.10.2003, had forcible sexual intercourse with her at the point of knife, inflicted three incise wounds on her neck killing her, threw away the knife and went away. The appellant is then alleged to have had a bath and threw away his underwear before leaving the area in which all this occurred. 3. The victim's husband, Naresh Mandal came home in the evening of 11.10.2003 and found his wife missing. He claimed to have searched for her till late night but could not find her. He eventually gave report to police on the next day. The victim's dead body was found 3 about 30-40 meters from the residence of this Naresh Mandal. After an inquest, dead body was sent for postmortem examination. A knife found on the site was also seized. The postmortem examination did not reveal any marks of violence indicative of forcible sexual intercourse. However, it was noticed that there were three incise puncture wounds on the neck with clean cut margins, cutting the trachea as well as important blood vessels. The Medical Officer found that the injuries were sufficient in ordinary course of nature to cause death. He collected necessary samples from the person of the victim and sealed them for being sent to Forensic Science Laboratory for further analysis. 4. The appellant was arrested on 13.10.2003 from his native place by A.S.I. Bermu Patil, P.W.12. The appellant was also sent for medical examination and the Medical Officer collected necessary samples from the person of the appellant which were eventually sent to the forensic science laboratory. The conclusion in report from the Laboratory reads as under : “b) The alleles of the genotype profile of Mr. Ashish Mondal (source of Exhibit A1) are present in the genotype profile of the semen positive swab cuttings (Exhibit-A) at Loci D8S1179, D21S11, D3S1358, THO1, D13S317, D16S539, D2S1338, D19S433, Vwa, and TPOX. ” 5. In course of interrogation the appellant pointed to the spot, 4 where he had thrown his underwear. It was seized and sent to the Forensic Science Laboratory but did not yield anything to connect it with the crime. The police recorded statements of several witnesses and on completion of investigation sent the chargesheet to the learned Judicial Magistrate, First Class, Margao, who committed the case to the Court of Sessions at Margao. 6. The appellant was charged of the offences punishable under sections 376 and 302 of the Indian Penal Code by the learned Ad hoc Additional Session Judge, Margao. Trial commenced before the learned Ad hoc Additional Session Judge, Margao, who recorded the evidence of first 6 witnesses and the evidence of remaining 8 witnesses was recorded by the learned Additional Session Judge. The appellant had taken defence of denial and had even claimed that he was at his native place from 06/10/2003 till he was arrested and brought by the police. Upon consideration of the evidence tendered in the light of the arguments that were advanced, the learned Additional Session Judge convicted and sentenced the appellant as aforementioned. 7. We have heard Shri Arun Bras De Sa, learned Counsel for the appellant and Shri C.A. Ferreira, learned Public Prosecutor for the State. In this case, there are no eye-witnesses. The case rests entirely on circumstantial evidence, the circumstances being that the appellant 5 had illicit intimacy with victim; that the victim developed affinity with one Deepak as well; enraged thereby, the appellant called the victim on 11.10.2003 and had an intercourse with her ; killed her and made himself scarce ; appellant's underwear was recovered under a panchanama under section 27 of the Evidence Act; vaginal swab of the victim pointed to presence of sperms which have a DNA profile not excluding the possibility of intercourse by the appellant. We have gone through the evidence with the help of both the learned Counsel. P.W.1, Salvador was a panch at the scene of offence as well as inquest panchanama, which discloses 3 injuries on victim's neck which correspond to observations made by P.W.7, Dr. Rodrigues, who conducted postmortem examination. This evidence unmistakably points to the fact that victim met with homicidal death. 8. The evidence of P.W.1, Salvador and the panchanama of scene of occurrence, which is at Exh.21, would show that a knife was also found at the spot, which had been seized by the police. However, the knife was not shown to have any fingerprints of the appellant, or any marks which could connect the appellant to the crime. The prosecution has not led any evidence to show that the appellant had procured a knife before the crime, or was seen to be in possession of such a knife before the crime. 6 9. The most important circumstance on which the prosecution rests is that of appellant having a motive to kill the victim. It is sought to be brought on record from the evidence of P.W.2, Xavier and P.W.10, Francis that the appellant had made a statement which led to discovery of his underwear. In course of this statement, the appellant is alleged to have narrated about his illicit intimacy with the victim and victim's subsequently developing intimacy with Deepak. The learned Counsel for the appellant rightly pointed out that Section 27 of the Evidence Act would permit only that part of the confessional statement to be read in evidence, which actually leads to discovery of articles. The entire story allegedly given by the appellant, about his illicit intimacy with the victim, or victim's subsequently developed illicit intimacy with Deepak, therefore, should have been excluded from consideration by the learned trial Judge. 10. It is pertinent to note that even according to the victim's husband, P.W.3, Naresh Mandal, he had no knowledge that the appellant had any illicit intimacy with the victim. On the other hand, his story seems to be that the appellant used to have meals with them. The appellant had left their house about one and half week before the murder. The appellant had a fight with him about 15 days before the incident on account of non-payment for meals, which the appellant had at the house of the witness and that the appellant had warned the witness 7 of dire consequences. The witness states that he, therefore, suspected the complicity of the appellant. P.W.3, Naresh claimed that he had gone to the house of the appellant to enquire and was told by the appellant's brother that the appellant had gone to Sinnur. This enquiry was allegedly made by the P.W.3, Naresh immediately after he found his wife missing and he had been told by the appellant's brother that the appellant had gone to Sinnur. Another person in the same household had allegedly told P.W.3, Naresh that the appellant had gone to Bombay. Thus, the fact that the appellant had gone away when P.W.3, Naresh made enquiry, would corroborate the appellant's claim that he had gone his native place Sinnur from where he picked up by the police. It is pertinent to note that P.W.3, Naresh does not state that he learnt that the appellant had left for Sinnur at particular point of time. It is also pertinent to note that quarrel, which P.W.3, Naresh claimed to have had with the appellant, was 15 days old and could not have motivated the appellant to murder P.W.3, Naresh's wife. Further while the witness claimed that he had suspicion about the appellant, his report at Exh.30 makes no mention of any such suspicion. 11. P.W.3, Naresh categorically stated in his examination-in- chief itself that only after the death of his wife he came to know that the appellant was having illicit intimacy with his wife. He has not stated what was the basis of his knowledge. The possibility that this 8 knowledge dawned upon him only due to the police investigation, cannot be ruled out. Further though P.W.3, Naresh refers to one Deepak, who knew him and his wife, he stated nothing further about this Deepak. This Deepak has not at all surfaced in investigation, and was not examined as a witness at the trial. No other witness examined by the prosecution, states anything about the victim's illicit intimacy with the appellant or any Deepak so as to irritate the appellant and drive him to commit victim's murder. Thus, in the absence of any evidence to show that the appellant and victim had any such illicit intimacy or that the victim had developed any intimacy with Deepak, the motive suggested for commission of crime itself vanishes. At the costs of repetition, we may state that what is attributed to the appellant in his statement recorded under section 27 of the Evidence Act is, inadmissible since all these statements about illicit intimacy have not led to discovery of any article. 12. Before going to the evidence of analysis of various exhibits by the Forensic Science Laboratory, we may briefly refer to other evidence tendered on behalf of the prosecution. P.W.4, Magbool Nabisab, who was also working for Kurtarkar Construction and resided just 10 meters away from victim's house, refused to support the prosecution. He stated that appellant left the work of Kurkarkar Construction about 2 weeks prior to the incident, corroborating the 9 appellant's story that he had left for his native village. P.W.11, Devidas Mandal is another construction worker, who knew the victim and her husband P.W.3, Naresh. He claims that at about 8.00 p.m. on 11.10.2003, when he had gone to P.W.3's house, he learnt that P.W.3, Naresh's children were crying as their mother was not present. He, therefore, tried to pacify those children. At about 9.00 p.m., P.W.3, Naresh came and they started searching for his wife. This witness was declared hostile by the prosecution and cross-examined by the Public Prosecutor, but it did not bring out anything against the appellant. P.W.13, Nishid Mandal is brother of the appellant himself. He too stated that the appellant had in fact gone to his native place when the incident took place. He too was declared hostile and did not support the prosecution. He denied that there was illicit intimacy between his brother, the appellant and the victim. 13. The evidence of P.W.8, photographer, Sheldekar, who took photographs and proved them, is unhelpful to connect the appellant to the crime. It is not necessary to again recount the evidence relating to discovery under section 27 of Evidence Act furnished by panchanama at Exh.26 and proved by P.W.2 Xavier and P.W.10 Francis Cardoz. Even if the fact of seizure of underwear at the instance of the appellant is held as proved, the underwear itself does not bear any marks which would connect it to the crime. The report in respect of this underwear is 10 at page No.90 of the paper book, marked as a part of Exh.36. This report shows that no blood was seen on it. In any case, as rightly contended by the learned Counsel for the appellant, this type of evidence of seizure, upon discovery under section 27 of Evidence Act is of extremely weak character and in the absence of any tell-tale marks which would connect the article seized to the crime, the discovery itself would be meaningless. The learned Public Prosecutor submitted that the fact that the appellant led the police to this underwear is significant. However, the possibility that the underwear was unnecessarily shown to have been seized at the instance of the appellant to create some connection, cannot be ruled out. It is also pertinent to note that while P.W.2, Xavier stated that the pant was allegedly thrown by the accused on the bank of river and it was seized from the bushes along the bank of river, P.W.10, Francis Cardoz stated that the appellant had led them to bushes near a rail-way track. This deviation in the version given by the two witnesses would create a doubt about the truthfulness of the entire exercise itself. 14. The evidence of P.W.12, A.S.I., Patil would only show that the appellant was picked up at his native place on 13.10.2003. The witness tried to add a touch of drama by stating that the appellant tried to run away on seeing police vehicle and was caught after giving him a chess. In the absence of contemporaneous record to show that such a 11 thing happened, no weight need be attached to this statement. P.W.12, Patil admitted that he had not recorded any arrest panchanama. 15. P.W.9, S.D.P.O. Govekar, P.W.14, Tony Camara are police officers, who conducted parts of investigation, and do not add anything which would connect appellant to crime. P.W.5, Dr. Rao of the Central Forensic Science Laboratory, Hyderabad had examined various exhibits sent to him and his reports do not point out anything to connect the appellant to crime. 16. D.N.A. fingerprinting was done by P.W.6 Shri S. Sathyan, who was working as Senior Scientific Officer in Forensic Science Laboratory at Calcutta, where the samples were sent for DNA examination. The conclusion drawn by him in his report are to the following effect. “b) The alleles of the genotype profile of Mr. Ashish Mondal (source of Exhibit A1) are present in the genotype profile of the semen positive swab cuttings (Exhibit-A) at Loci D8S1179, D21S11, D3S1358, THO1, D13S317, D16S539, D2S1338, D19S433, Vwa, and TPOX. ” The witness stated in his examination-in-chief that on the basis of test conducted by him, the appellant could not be excluded from being 12 contributor of semen found in the vaginal swab of the victim. In the course of cross-examination he stated that he could not “say anything to the suggestion that it would be possible for DNA of the accused to be found on the victim if there was consensual sexual intercourse between the accused and the victim few days prior to the date of incident.” The learned Counsel for the appellant submitted that even if for a while the theory that the appellant and the victim had an affair were to be accepted, the failure of the witness to rule out the possibility that DNA of the accused could be found in the vaginal swab, even if the intercourse has taken place few days ago, would indicate that it is not necessary that the appellant had sexual intercourse with the victim soon before her death. The learned Public Prosecutor contended that in that case vaginal swab would not have shown presence of spermatozoa. If that were so the witness could have so stated. 17. The learned Counsel for the appellant further submitted that in this case, the appellant as well as victim's husband are both Mandals, hailing from same area in Karnataka, and may be kinsmen, though a specific suggestion to that effect has not been given to the witness. He submitted that in the absence of examination of DNA prints of P.W.3, victim's husband, and matching them with what was found in the victim's vaginal swab, it may not be permissible to conclude that what was found in the vaginal swab of victim was DNA print of the 13 appellant, and appellant alone. It may be recalled that the expert merely does not exclude appellant from being contributor of semen in the vaginal swab. 18. The learned Public Prosecutor submitted that once the prosecution established that DNA print found in the vaginal swab of the victim compared well with that of the appellant, it was for the appellant to explain this circumstance, and since no explanation was forthcoming, it was reasonable to infer that the accused had sexual intercourse with the victim before victim's death. As rightly countered by the learned Counsel for the appellant, it is not enough for the prosecution to create a probability. The prosecution has to prove the offence to the hilt and has to travel the distance from what may have happened to what did actually happen. Suspicion, howsoever strong, can not take the place of proof. The learned Counsel also rightly submitted that the evidence tendered leaves the possibility open that the appellant had in fact no illicit intimacy with the victim. The only piece of evidence which could said to connect the appellant to the victim in some way is the DNA report prepared by P.W.6, Shri S. Sathyan, and the evidence of Shri S. Sathyan himself was that he concluded that the appellant could not be excluded from being contributor of semen found on the vaginal swab of the victim, indicating the possibility that there could be anyone else as well. The report does not unmistakably point to the fact that the appellant 14 and the appellant alone was the contributor of the semen found in the vaginal swab. 19. In this view of the matter, we find that the prosecution has failed to prove a chain of circumstances, which would unmistakably point to the appellant's guilt. We may recapitulate that there is absolutely no admissible evidence that the appellant had any illicit intimacy with the victim. Even if such illicit intimacy is presumed for a while, it does not explain the motive for the appellant to murder the victim. It could even be husband of the victim, P.W.3, Naresh, who could have finished the victim upon such illicit intimacy being discovered. It may be recalled that P.W.3, Naresh had categorically stated that before the incident he did not know of any such intimacy. It is also worthy of note that though P.W.3 Naresh claimed to have searched for his wife here and there, he admits that the body was found just 40-50 meters from his dwelling. One Deepak, who is alleged to have subsequently developed illicit intimacy with the victim was not at all examined. The motive suggested was thus, not established. 20. In view of this, we hold that the learned Additional Session Judge erred in holding the appellant guilty of the offence of rape and murder and convicting and sentencing him. We, therefore, allow the appeal, set aside the conviction of the appellant for the offence punishable under section 376 and 302 of the Indian Penal Code, and the 15 sentences imposed upon him. We acquit the appellant of the above charges and direct him to be released forthwith, if not wanted in any other case. S. A. BOBDE, J. R. C. CHAVAN, J. SMA