1 IN THE HIGH COURT OF BOMBAY AT GOA. Criminal Appeal No. 36 of 2008 State of Goa .. Appellant v/s. Harischandra Manglo Rane r/o. Morle, Keri, Sattari Goa. .. Respondent. Ms. Winnie Coutinho, Public Prosecutor for the appellant. Ms. Asha Dessai, Advocate for the respondent. Coram: N.A. BRITTO, J Date: 31st July, 2009 ORAL JUDGMENT 1. Heard. 2. This is State’s appeal and is directed against the acquittal of the accused under section 325 I.P.C, by Judgment dated 29.10.2007 of the Learned J.M.F.C., Sattari at Valpoi. 2 3. The accused and Pw2 Harischandra Volvoicar come from the same village and it appears that the accused resides behind the house of the said Pw2 Harischandra Volvoikar and has to pass by their house on his way home. The said Harischandra Volvoikar has two dogs and it is quite probable that because the dogs used to bark at the accused, the accused threw stones at them and for about three days prior to the incident one of the dogs of the said Harischandra Volvoikar bit the accused and on that count there was strained relationship between them. 4. The incident took place on 18.7.2005 at about 2.30 p.m. and soon thereafter a complaint was filed by the said Pw2 Harischandra and the case was investigated by Pw7 Head Constable Laxman Gaonkar. The informant Pw2 Harischandra Volvoikar was sent for medical examination on the same day, and was examined by Pw6 Dr. Atul Pai Bir at about 5.30 p.m. and he found that Pw2 Harischandra had a superficial abrasion over posterior aspect of the left shoulder which was fresh in nature and he also had a CLW 3 cms x 0.5 cms s/c deep over the vertex of the scalp 3 which was also fresh in nature. 5. The panchanama of the scene was conducted on the next day in the presence of Subhash Gaonkar during which a “koita” was seized by the police. The said koita has been identified subsequently by said Pw2 Harischandra as the koita which was brought by the accused. The scene of offence was pointed out to the police by the said Pw2 Harischandra and the koita was pointed out to Pw1 Subhash Gaonkar by the police at the time of seizure. The said panchanama is proved through Subhash Gaonkar in whose property Pw2 Harischandra resides. 6. The accused came to be charged and tried with the allegation that on 18.7.2005 at about 13.45 hours the accused assaulted the said Harischandra with sharp weapon (Koita) on his hand and left shoulder thereby causing an offence under section 325 I.P.C. 7. The accused was also charged under section 506 (II) I.P.C. and it was conceded by the Learned A.P.P. before the Learned trial Court 4 that there was no evidence in that regard. 8. The prosecution examined in all seven witnesses. As already said, Pw1 Subhash Gaonkar is panch witness, Pw2 Harischandra Volvoikar is the injured, Pw3 Bindiya Volvoikar is his daughter-in-law, Pw4 Pandurang Naik is an independent witness who turned hostile and was cross examined by the prosecution, Pw5 Taramati Volvoikar is wife of the injured the said Harischandra Volvoikar and Pw6 Dr. Atul Pai Bir is the Medical Officer who had examined the said Harischandra. 9 The Learned trial Court found fault with the investigations conducted in the case. Learned trial Court observed that Pw4 Pandurang was tutored to depose in the present case before the Court, without trying to find out as to why he had turned hostile, and in case he was tutored why he did not entirely support the case of the prosecution. 10. The Learned trial Court also found that the koita was found in an open place and therefore no much reliance could be placed on the 5 recovery when it was not the case of the prosecution that the said koita was recovered at the instance of the accused. The Learned trial Court also found that non attachment of the clothes of the injured which were blood stained was fatal to the case of the prosecution and further observed that since the statements recorded were only of the persons whose names were given by the complainant, the investigations showed that they were not at all impartial, free or fair investigations. The Learned trial Court entirely lost sight of the fact that the version given by Pw2 Harischandra Volvoikar was not only substantially corroborated by his daughter-in-law and wife but was also corroborated by the medical evidence of Pw6 Dr. Atul Pai Bir. 11. Ms. Coutinho, Learned Public Prosecutor, has submitted that although Pw4 PandurangNaik, who was an independent witness had turned hostile, he had supported the case of the prosecution as far as the presence of the accused is concerned. Ms. Coutinho has further submitted that the evidence of the injured Pw2 Harischandra Volvoikar was corroborated by his daughter-in-law the said Pw3 Bindiya Volvoikar 6 and his wife Pw5 Taramati Volvoikar as well as Pw6 Dr. Atul Pai Bir and therefore the evidence of the said witnesses ought to have been accepted to convict the accused. The Learned Public Prosecutor has placed reliance on the case of Appabhai and another V/s. State of Gujarat (AIR 1988 SC 696) and has further submitted that the injured Pw2 Harischandra Volvoikar was an injured person and therefore ought to have been considered as the best witness and his evidence ought to be accepted. 12. The Apex Court in the aforesaid decision has stated that “it must not be forgotten that he was a victim of the assault. Fortunately, he has survived. He must, therefore, be considered as the best eye witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience 7 of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only, unless it goes to the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their versions perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy”. The Apex Court also referred to the decision in the case of Sohrab and another V/s. State of Madhya Pradesh (AIR 1972 SC 2020) wherein it was stated as follows:- “This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not 8 necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered”. 13. On the other hand, Ms. Asha Dessai, the Learned Counsel appearing on behalf of the accused submits that the injured as well as two other witnesses did not state that after the alleged incident the accused had left the koita in the courtyard and therefore the seizure of the said koita on the next day is of no significance. Learned Counsel further submits that the said koita was also not found with blood stains and also such seizure of the said koita is of no significance. Learned Counsel further submits that Pw3 Bindiya did not identify the said koita and in case it was used in the assault, blood would have been found on the said koita. Learned Counsel further submits that the incident has been made out by the said Harischandra on account of enmity and all that happened 9 at the time of the incident was that the incident of the pelting stones by the accused on the dogs of the said Harischandra and nothing more. Learned Counsel further submits that the witnesses who have been examined are all related and have made up a case against the accused on account of the enmity between Pw2 Harischandra and the accused. Learned Counsel further submits that the view arrived at by the Learned trial Court is a plausible view and being so the Appellate Court ought not to interfere with the view arrived at by the Learned trial Court. 14. There cannot be two opinions and it is well settled by a catena of decisions of the Apex Court that if the trial Court’s view is reasonably plausible, the High Court will not reverse the order of acquittal of the trial Court merely on the ground that a different view is possible on the evidence produced but at the same time it is also well settled that this Court is entitled to review the entire evidence upon which an order of acquittal is based and arrive at is own conclusion, moreso, when the findings given by the Learned trial Court are perverse, and, that is the case at hand. 10 15. Pw2 Harischandra Volvoikar has stated that after collecting the firewood on his bicycle he reached home and he was removing the firewood at about 2.30 hours on 18.7.2005 when he saw the accused come walking towards the direction of his house with stones and koita in his hand and the accused started pelting stones at his dogs and his wife who was present in front of him asked the accused as to why he was pelting stones at their dogs for the last four days whereupon the accused caught hold of the neck of his wife and when he went to rescue his wife, the accused hit the koita on the back side shoulder due to which he fell on the ground and as he was trying to get up, the accused assaulted him again with the tip of the koita on his head as a result of which blood started oozing out. He stated that Pandurang Naik was present at that time and thereafter he went to the police station and lodged the complaint. He identified the said koita – Exhibit 10, shown to him. In cross examination he stated that he knows the accused from the beginning. He stated that the said Pandurang was friend of the accused who was present at the time of the incident. He admitted that the accused 11 had cattle and had to pass with the cattle by the side of his house. He also admitted that three days prior to the incident the accused had threatened his dogs by pelting stones and he had kept quiet. He admitted that his dogs barked but did not bite but further admitted that three days prior to the incident when the accused had pelted stones at his dog, his dog had bit the accused. He also admitted that he was not in talking terms with the accused. He had also admitted that when the accused hit the tip of the koita on his head, the collar of his shirt was wet with blood but at the relevant time he did not realize about it and so he had not shown it to the police. 16. Pw3 Bindiya Volvoikar, daughter-in-law of Pw2 Harischandra, stated that on 18.7.05 she was in front of the main door of their house with her child and the accused came and started pelting stones on their dog for which the dog started barking and her child got scared and started crying and at that time her father-in-law the said Harischandra who was present in the house asked the accused as to why he was pelting stones on their dog, when the accused was in front of the courtyard with a koita 12 in his hand. She stated that the accused thereafter assaulted her father-in law-with back side of koita on right hand side shoulder as a result of which her father-in-law collapsed on the ground and as he was trying to get up, the accused again assaulted him with the tip of the koita on the back side of the head as result of which blood started oozing out from his head. Although she stated that she was in a position to identify the koita, but when the said koita – Exhibit 10 was shown to her she was not in a position to identify the same. In cross examination she stated that the accused passes in front of her house occasionally. She admitted that earlier when the accused had been there, their two dogs used to bark at the accused, but denied the suggestion that two days prior to the incident their dogs had bitten the accused. She also denied the suggestion that on the date of the incident their dog was about to bite the accused. She also stated that after the assault many people had gathered at the spot whom she knew. She denied the suggestion that her father-in-law had brought firewood from the property of the accused. When a specific question was put to her whether the said koita - Exhibit 10 was of her father-in-law, she denied the same. 13 17. Pw4 Pandurang admitted that his statement was recorded on 19.7.2005. He stated that the accused was present in front of the house of Harischandra Volvoikar on 18.7.05 at about 4 p.m. and was pelting stones on the dogs of the said Harischandra and thereafter arguments took place between the accused and said Harischandra. He stated that thereafter he left the place and he does not know what happened thereafter. This witness was cross examined by the prosecution and in the cross examination he admitted that he had told the accused not to pelt stones on the dogs of Harischandra. He also admitted that he was in talking terms with the accused. 18. Pw5 Taramati, the wife of Harischandra, stated that on 18th July at about 3.45 p.m., her husband was removing the firewood which was tied to his bicycle and she was in the courtyard and the accused was passing by the side of their house with koita and stones in his hand. The accused pelted stones at their dog and she asked the accused as to why he was pelting stones at their dog and further told the accused to kill their 14 dog, as he was frequently pelting stones on their dog and at that time the accused gave bad words to her and came on her person and caught hold of her neck and at that time he was having a koita in his hand, and when her husband came to her rescue, the accused assaulted her husband with the koita on the left shoulder due to which her husband fell on the ground and as he was trying to get up, the accused again assaulted her husband with the front tip of the koita on his head due to which blood started oozing from the head of her husband and when she asked the accused as to why he assaulted her husband the accused replied that he will finish her husband. She identified the said koita which was shown to her. In cross examination she admitted that the accused was from her village and often passes by their house. She also admitted that the accused has his property at the back side of their house and the accused also has cattle. She also admitted that their dogs bark at the accused whenever he passes by the side of their house but denied the suggestion that their dog had bitten the accused two to three days prior to the incident. She also admitted that blood had fallen on the clothes of her husband. 15 19. Pw6 Dr. Atul confirmed having examined Harischandra Volvoikar on 18.7.05 at 5.30 pm and described the injuries in detail as noted by him on the hurt certificate which was produced at Exhibit 16. The koita – Exhibit 10, being shown to him, he opined that the injuries on the head of Harischandra Volvoikar could be caused with the tip of the said koita. In cross examination he stated that he could not recollect whether he had seen the blood stains on the injured. Regarding first injury i.e. CLW 3 cms x 0.5 cms s/c deep over vertex, he firmly opined that it cannot be sustained on account of a fall of a person on a sharp object as it is caused on the vertex as the vertex does not come in contact with the surface in case of a fall. In other words, Pw6 Dr. Atul confirmed that there was no other way by which the injury on vertex could be caused, other than in the manner described by Pw2 Harischandra and his family members. 20. Although the clothes of the injured whether they were washed or not, ought to have been seized by the Investigating Officer, non seizure of the said clothes could not have been fatal to the case of the 16 prosecution. It is now well settled in the catena of decisions of this Court as well as of the Apex Court that certain defects in the investigations cannot come in the way of appreciation of the evidence of the case and the case of the prosecution has to be examined independently on its own merits. The Apex Court in State of U.P. V/s. Hari Mohan (AIR 2001 SC 142) has stated that defective investigations cannot be made basis of acquitting the accused, if despite such defects and failures, a case is made out against all or any of the accused. Moreover, it is not permissible in law to discard the evidence by labelling the witnesses as related, enimical or interested, etc. and it is necessary to closely scrutinize their testimony, indicating the reasons for accepting or rejecting their testimony. This much was expected of the Learned trial Court. Witnesses are also interested to see that the real offender of crime is booked and punished. It is also true that none of the said three witnesses have said that the accused had left the said koita in the courtyard and went away and that could be because they had not seen the same, having been busy in attending to Pw2 Harischandra which is normal course of human conduct but there is nothing either in their 17 examination in chief or in cross examination to suggest that the accused had not left the said koita at the time of going away from the scene of the offence. They did not state that the accused had gone away with the koita. The said koita which was seized on the next day was subsequently identified by Pw2 Harischandra as belonging to the accused and there is no reason as to why the said identification could not have been accepted. As a villager Pw2 Harischandra would have certainly known to identify his own koita from the one used by a co-villager. It was also identified by Pw5 Taramati. Pw3 could not identify it and that reflects the truth of her version. Nothing had prevented her in identifying the same even if she was not sure that it belonged to the accused. True, in case blood stains were found on the koita it could have provided additional corroboration to the evidence of identification of Pw2 but identification by him and his wife was sufficient to prove that the said koita was used in the assault by the accused. We must always remember that although the prosecution is required to prove the case beyond reasonable doubt, more serious the offence, the higher is the degree of proof which is required. This was just an ordinary case of assault. This was a case 18 where all the three witnesses though related had consistently given their versions which were in conformity with their previous statements and also in conformity with the versions given by one another on all material aspects, except on the fact that the accused was bitten earlier by their dog and not only that, they were corroborated by medical evidence and in such a situation there was absolutely no reason for the Learned Magistrate to come to the conclusion that because there was enmity that their versions were required to be rejected. Enmity is always a double edged weapon which can cut both ways and because of the dog incident, it is more than probable that the accused had thrown stones at the dog and when questioned, assaulted Pw5 Taramati and the said Pw2 Harischandra. It is certainly not abnormal for the Investigating Officer to find out from the complainant as to who were the witnesses who were present and take the names from him, and, only because the names are given by the complainant, it cannot mean that the investigations are not free or impartial. If at all the only independent witness did not support the case of the prosecution fully it is because as stated by said Harischandra, he was friend of the accused but he had supported the case 19 of the prosecution partly as far as the presence of the accused is concerned and as already said the rest of the versions given by said Pw2 Harischandra is not only convincing but it also corroborated by medical evidence and when such was the case there was no place for acquittal of the accused. 21. Consequently, the appeal deserves to succeed. The impugned Judgment is hereby set aside and the accused convicted under section 324 I.P.C. for which the accused was charged. 22. The accused has been heard on the point of sentence. Ms Asha Dessai submits that the accused is first offender and therefore the accused be extended the benefit of probation. Ld. Counsel further submits that the accused is newly married. She further submits that the injuries were also of simple in nature and fine if at all would be sufficient sentence to be imposed on the accused. On the other hand, Learned Public Prosecutor submits that atleast a fine of Rs.5.000/- should be imposed on the accused. 20 23. Considering the facts of the case including the fact that the accused was earlier bitten by the dog of said Harischandra Volvoikar, in my opinion, ends of justice will be met by imposing the following sentence against the accused. 24. The accused is hereby sentenced to undergo simple imprisonment for one day i.e. till the rising of the Court and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for one month. In case the fine is paid, same shall be given to Pw2 Harischandra Volvoikar by way of compensation. The Court Assistant to certify the imprisonment till rising of the Court, to the trial Court. Fine be paid before the Learned trial Court within a period of two weeks. The Learned trial Court is directed to pay the same to Pw2 Harischandra Volvoikar, soon thereafter by way of compensation. N. A. BRITTO, J. oc. 21