1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NOS. 7, 12, 13 OF 2007 & 6 OF 2008. CRIMINAL APPEAL NO.7 OF 2007. 1. Sanjay Gadekar, S/o. Gurudas Gadekar, 19 years, Student, H.No.1314, Catarina, Daman, Raia, Salcete- Goa and originally from H.No.122, Gauthanwada, Bhom, Banastari, Ponda, Goa. 2. Shailesh Gadekar, S/o. Gurudas Gadekar, 21 years, Student, H.No.1314, Catarina, Daman, Raia, Salcete- Goa and originally from H.No.122, Gauthanwada, Bhom, Banastari, Ponda, Goa. .. Appellants (Both presently in Central Jail - Agauda) Versus 1. The State Through Public Prosecutor .. Respondent Mr. Gopal Kanekar, Advocate for the appellants. Ms. W. Coutinho, Public Prosecutor for the respondent. WITH 2 CRIMINAL APPEAL NO.12 OF 2007. 1. Valeriano Barretto, S/o Rojan Barretto, 37 years of age, driver, H. No.565, Colsar, Galjibag, Canacona and presently undergoing sentence at Central Jail Aguada. .. Appellant (Original Accused No.1.) Versus 1. The State Panaji, Goa. .. Respondent Mr. Arun Bras De Sa, Advocate for the appellant. Ms. W. Coutinho, Public Prosecutor for the respondent. WITH CRIMINAL APPEAL NO.13 OF 2007. 1. Subhash Krishnan, Age :26, presently in judicial custody at Fort Aguada Central Jail, Sinquerim, Goa. .. Appellant Versus 1. State of Goa (through the Public Prosecutor, High Court of Bo,mbay at Goa, Panaji, Goa. .. Respondent Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Vaidya, Advocate for the appellant. 3 Ms. W. Coutinho, Public Prosecutor for the respondent. WITH CRIMINAL APPEAL NO.6 OF 2008. STATE, Through P. I. attached to Canacona Police Station, Canacona – Goa. .. Appellant Versus 1. Valeriano Barretto, S/o Rojan Barretto, 37 years, Driver, H. No. 565, Colsar, Galjibag, Canacona. 2. Subhash Krishnan, S/o Late Subayya Krishnan, 23 years, private service, H.No.298, Manora, Raia, Salcete – Goa. 3. Sanjay Gadekar, S/o Gurudas Gadekar, 19 years, Student, H. No. 1314, C/o Catarina, Daman, Raia, Salcete, Goa & orginally from H.No.122, Gauthanwada, Bhom, Banastari, Ponda,Goa. 4. Shailesh Gadekar, S/o Gurudas Gadekar, 21 years, student, H.No.1314, C/o Catarina, Daman, Raia, Salcete, Goa and originally from H. No.122, Gauthanwada, Bhom, Banastari, Ponda,Goa. 5. Mrs. Sheela Barretto, W/o Valeriano Valent Barretto, 28 years, housewife, H.No. 4 565, Colsar, Galjibag, Canacona. 6. Smt. Vatsala Gadekar, W/o Gurudas Gadekar, 55 years, Housewife, H.No.1314, C/o Catarina, Daman, Raia, Salcete, Goa, & originally from H. No.122, Gauthanwada, Bhom, Banastari, Ponda, Goa. .. Respondents Mr. C. A. Ferreira, Public Prosecutor for the appellant. Mr. Arun Bras De Sa, Advocate for the respondent No.1. Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Vaidya, Advocate for the respondent No.2. Mr. Gopal Kanekar, Advocate for the respondent Nos. 3 and 4. Mr. S. G. Dessai, Senior Advocate with Mr. V. Parsekar, Advocate for the respondent Nos. 5 and 6. CORAM :- B. P. DHARMADHIKARI & U. D. SALVI,JJ. DATE OF RESERVING THE JUDGMENT : 1 st July, 2009 . DATE OF PRONOUNCING THE JUDGMENT : 17.12. 2009. JUDGMENT : 1. These are the group of appeals preferred by the aggrieved accused as well as the State against the judgment and order dated 13/14.11.2006 passed by the Additional 5 Sessions Judge-III, South Goa, Margao in Sessions Case No.2/2004. 2. The appellant accused No.1 Valeriano Barretto, the accused No.2 Subhash Krishnan, the accused No.3 Sanjay Gadekar, the accused No.4 Shailesh Gadekar have preferred the appeals being Criminal Appeal Nos.12/2007, 13/2007, and 7/2007 against the judgment and order of their conviction under Section 120-B read with Section 302 read with Section 34 of I.P.C.,1860 sentencing them to undergo life imprisonment and to pay fine of Rs.5,000/- and in default to undergo rigorous imprisonment for a further period of 3 months on each count. The State has preferred the Criminal Appeal No.6/2008 against the judgment and order of acquittal of the appellant accused from the crime punishable under Section 342, 504, 364 read with Section 34 of I.P.C. as well as against the acquittal of the accused No.5 Sheela Barretto and the accused No.6 Vatsala Gadekar in the said case lodged under Section 120-B read with Section 302, read with Section 34, 342, 504 and 364 read with Section 34 of I.P.C., 1860. 3. A violent incident occurred in the vicinity of Saint 6 Anthony High School on the road from Galjibag– Poinguinim within the limits of Canacona Police Station, Canacona, District South Goa around 4.30. p.m. on 10.10.2003. Police were informed of the said incident and the crime at C.R.No.32/2003 under Section 302, 342, 504, 364, 120-B read with Section 34 of I.P.C. came to be registered against the accused No.1 Valeriano Barretto, his wife -the accused No.5 Sheela Barretto, her brother and others at Canacona Police Station in a complaint lodged by one Aveliono Viegas on the same day. The complainant Aveliano Viegas revealed that the accused No.1 Valeriano Barretto, his wife Sheela Barretto and four to five persons came to the garage of the deceased victim Shanu Komarpant in a white coloured Maruti van making enquiries about Shanu Komarpant, and Alex Viegas, his cousin had informed him of this fact. According to him, Alex Viegas also alerted him about the offensive mood of the persons in the said Maruti van. The complainant further revealed that he proceeded to the residence of the deceased Shanu and on the way to the residence of Shanu, he came across the said persons in the Maruti van. Thereafter, the complaint revealed, he went to the residence of Shanu, met Shanu, talked to him about the developments which had taken place and proceeded with him 7 to the residence of Valeriano on the motorcycle accompanied by Alex Viegas and other on another motorcycle. 4. According to the prosecution, the deceased Shanu was assaulted by the accused persons with sharp edged weapons like knife, stick (danda), fist and kick blows at the said place in the presence of local persons. The accused persons thereafter, the prosecution case reveals, put the injured Shanu in the Maruti van apparently in unconscious condition and left the place in the said Maruti van proceeding towards Talpona side. 5. It is the prosecution case that the said Maruti van was intercepted at Assolna around 5.45 p.m. or 6.00 p.m. on the same day by the police. The appellant / accused No.1 Valeriano was found driving the said van with all other appellant/ respondent accused persons in the van. Knife, sword, one bamboo stick (danda), the right foot chappal, blood were noticed in the said van. The appellant /accused No.4 Shailesh Gadekar with injury on his forehead was found in the van. The Maruti van was detained and the appellant / the accused No.4 Shailesh Gadekar was sent to Primary Health Centre, Bali in the company of the respondents / 8 accused No.5 Sheela and the accused No.6 Vastala Gadekar. The Accused No.4 Shailesh Gadekar was medically examined at P.H.C., Bali. 6. The accused No.1 Valeriano, the accused No.2 Krishnan, the accused No.3 Sanjay Gadekar were arrested and their personal belongings were seized between 00.30 and 2.00 hours on 11.10.2003 at Canacona Police Station. The accused No.1 Valeriano, according to the prosecution, made discovery of the dead body of the victim Shanu Komarpant in the morning of 11.10.2003. The deceased Shanu was found hanging to a branch of cashew tree at isolated place on the slope along side of the road at village Onshi. Blood stains were found in the vicinity of the said spot. A left foot chappal with the blood on it was also recovered from the said place. Blood stains, clothes of the deceased and his belongings along with the nylon rope with which the body was hanged by neck, were duly seized. 7. Inquest was held on the body of the victim at Onshi, Canacona and body was sent for postmortem examination. The accused No.4 Shailesh Gadekar, the accused No.5 Sheela Barretto and the accused No.6 Vatsala 9 Gadekar were arrested between 2.30 p.m. and 3.25 p.m. on 11.10.2003 at Canacona Police Station and their clothes were seized. 8. Scene of offence panchanama was duly drawn on 11.10.2003 in the presence of panchas. The police collected blood stained grass, glass pieces with film and rubber tube from the place of incident in the vicinity of Saint Anthony School at Galjibag-Poinguinim. Maruti van bearing registration No.GA02-J-7230 along with the Articles noticed therein, was seized at Canacona Police Station on 11.10.2003. The Police recorded the statements of the local witnesses and sent the seized Articles for further scientific investigation to Forensic Science Laboratory. The accused No.2 Subhash Krishnan, the accused No.3 Sanjay Gadekar, the accused No.4 Shailesh Gadekar and the accused No.6 Vatsala Gadekar were identified by the local witnesses in the T.I. Parade conducted by Mr. Suresh Audi, the Special Executive Magistrate on 03.11.2003, 05.11.2003 and 06.11.2003. 9. Autopsy report dated 12.10.2003 gave the cause of death of the deceased Shanu Komarpant as asphyxia due 10 to hanging by nylon rope. Human blood was detected on the clothes of the appellants / accused as well as on the weapons and articles recovered from the Maruti van used by the accused persons. Human blood was also found at the place of incident as well as the place where the body of the deceased Shanu Komarpant was found hanging. Human blood of group - A, which was detected on the clothes of the deceased and chappal found at Onshi the place where the body was found hanging was also detected on the clothes of the accused No.1 Valeriano, the accused No.2 Krishnan and the accused No.3 Sanjay Gadekar. In the course of the investigation, the police found involvement of two more absconding accused. On completion of the investigation, the chargesheet was duly lodged against the appellants/ accused as well as the absconding accused in the Court of the Judicial Magistrate, First Class at Canacona. In due course, the case was committed to the Court of the District and Sessions Judge, South Goa, Margao. 10. The charges were framed under Section 120-B, 342, 504, 364, 302 read with Section 34 of the I.P.C., 1860 against the appellants/ accused and the accused No.5 Sheela Baretto and the accused No.6 Vatsala Gadekar on 28.01.2005 11 vide Exh.79/C by First Additional Sessions Judge, South Goa, Margao. The prosecution examined in all 35 witnesses including the complainant Aveliano Viegas, the other eye- witnesses, panchas, Medical Officers and investigating officers. None was examined on behalf of the defence. 11. Generally, the appellants/ respondents accused denied their involvement in the crime. The appellant/ accused No.4 Shailesh Gadekar disclosed in his examination under Section 313 of Criminal Procedure Code that four to five persons and two motorcyclists assaulted him with swords while he was waiting for a bus at Canacona for going to the house of the accused No.5 Sheela at about 4.30.p.m. on 10.10.2003 and as a result of sword blow on head, he fell unconscious at the spot and regained consciousness at Hospicio Hospital at Margao. The accused No.3 Sanjay Gadekar, the accused No.5 Sheela and the accused No.6 Vatsala revealed in their examination under Section 313 of Criminal Procedure Code that on knowing about the assault on the accused No.4 Shailesh Gadekar in the evening on 10.10.2003, they went to see the accused No.4 Shailesh Gadekar at Hospicio Hospital and the Police had accosted them at the hospital and took them in their custody to be 12 involved in the present crime. 12. Learned Advocate Lotlikar for the appellant in Criminal Appeal No.13/2007 took the Court through all material evidence to say that incongruities between the evidence of so called eye witnesses betrayed non-occurrence of the incident as deposed by them or their inability to witness the facts as deposed. He further pointed out from the medical evidence of P.W.9 - Dr. Fernandes, who had performed postmortem examination of the deceased Shanu, that the death was caused due to asphyxia as result of hanging and not as a result of the assault as deposed by the prosecution witnesses. In his view, the evidence of P.W.9 - Dr. Fernandes did not disclose any injuries on the body of the deceased with sharp weapons and, therefore, the story put up by the prosecution was concocted. 13. Learned Advocate Lotlikar for the appellant/ accused No.2 Subhash Krishnan further submitted that the evidence of the complainant P.W.2 - Avelino Viegas remained incomplete in as much as the prosecution did not offer witness for cross-examination and made no sincere efforts to bring him before the Trial Court for the purpose of cross- 13 examination. This failure to produce the material evidence styled by the prosecution as an eye-witness account left gaping loopholes in the prosecution case and on this count alone, the prosecution case deserved to be thrown out. 14. Referring to the evidence of P.W.11 - Joaquim Dias, he further submitted, the witness exhibited incredible conduct in as much as he left his residence immediately without knowing where the incident was going on and yet claimed to have witnessed the incident. His testimony, he submitted, made no specific allegations qua individual accused and weapons except the allegation of the accused No.2 Krishnan the appellant making assault on the victim on Shanu with big knife. This allegation pinpointing the accused No.2 Krishnan, he submitted, was not to be found in a statement recorded by the police and as such his testimony lost credibility. In context with the sketch of the place of offence annexed to the scene of offence panchanama Exh.131 collectively, he argued that the distances between the alleged place of offence and the witnesses allegedly witnessing the incident from the vicinity of the Mariano Stores, Bela's House were sufficient to reveal the fact that the incident could not have been witnessed by the witnesses 14 muchless the accused persons. From the testimony of P.W.14 - Sebastiano Fernandes, he pointed out that the witness was making reference to 12 persons at the spot assaulting the victim and yet, who were those six more persons other than those figuring in the present case had remained a mystery. Equally mysterious, he further submitted, was the cause of bleeding injuries sustained by the accused No.4 Shailesh Gadekar. He further submitted that P.W.14 - Sebastiano Fernandes made improvements in her testimony regarding the place of incident simply to involve the accused No.2 Krishnan. No other witness, he argued, made reference to 12 assailants. The Story revealed by the P.W.14 - Fernandes regarding the assault on the victim with knife and danda, he submitted, found no corroboration in the medical evidence. According to him, 12 persons to whom P.W.14 - Fernandes referred in her testimony may be the supporters of the deceased and the truth regarding how the incident had started was not brought out by the prosecution in the evidence. 15. As regards P.W.16 - Raju Bhandari, learned Advocate Lotlikar for the accused No.2 Krishnan submitted that his presence at the place of incident was doubtful. 15 Looking to the working hours as disclosed by P.W.16 - Bhandari, and the material omission in the statement regarding the reason for his presence at the spot, learned Advocate Lotlikar submitted, made the testimony of P.W.16 - Bhandari incredible. Referring to the testimony of P.W.23 - Anita Pinto, he submitted that her testimony revealed improvements in her deposition as regards the accused No.3 Sanjay Gadekar, accused No.4 Shailesh Gadekar, accused No.5 Sheela Barretto, accused No.6 Vatsala Gadekar and offered no explanation regarding the material omissions in her statement. Her evidence too, he argued, found no support in the medical evidence. He further submitted that P.W.23 - Anita Pinto could not explain as to how the accused No.2 Krishnan had sustained injuries and her evidence showed that she had been to the spot belatedly and could not have witnessed the actual incident. P.W.26 - Charles Fernandes, learned Advocate Lotlikar for the accused No.2 Krishnan pointed out, had not given description of the accused before the police and from the distance of 70 meters as claimed by him, he could not have witnessed the incident. No explanation regarding the injuries on the accused, he argued, was forthcoming from the testimony of P.W.26 - Charles Fernandes. Commenting on the testimony of P.W.27 16 – Bela Rebello, learned Advocate Lotlikar for the accused No.2 Krishnan submitted that her evidence was sketchy, evasive and vague about the assault and offered no explanation about the injuries sustained by the accused despite claiming to have witnessed incident for 5 minutes. He argued, P.W.27 - Rebello could only name the accused No.1 Valeriano Barretto and accused No.5 Sheela Barretto before the police and had referred to accused No.2 Krishnan as a person with red shirt and sword in the hand. In his view, the witnesses were selective about the assault and their testimonies deserved to be disbelieved. As regards P.W.31- D'Costa, he submitted, the witness had merely referred to taking of victim in the Maruti Van. Likewise, he submitted, P.W.33 – Munna Rebello, P.W.34 - Afonso despite claiming to be an eye-witnesses failed to throw light on the facts relating to the genesis of the incident. 16. Learned Advocate Lotlikar for the accused No.2 Krishnan further argued, with reference to the testimony of P.W.4 - Agnes, wife of the victim Shanu Komarpant that it was unlikely for the victim to have gone unarmed in the background of strife between him and the accused No.1 Valeriano Barretto to accost him and others. He further 17 pointed out from the testimony of P.W.4 - Agnes that despite the claim being made by Alex, Avelino to having witnessed the incident of assault and taking away of the victim Shanu in unconscious state, there was no whisper in her testimony regarding they telling her the said facts. These facts revealed in the testimony of P.W.4 - Agnes, according to learned Advocate Lotlikar, make it unreliable. According to him, witnesses were not disclosing the truth. 17. Learned Advocate Lotlikar for the accused No.2 Krishnan further submitted that failure of the police to draw panchanama immediately upon the seizure of the Maruti Van at Asslona check post around 23-30 hours on 10.10.2003 denuded the relevant evidence of its reliability. Lack of complete version due to non-examination of material witnesses and non-explanation of injuries on the accused persons in the evidence divested the prosecution witnesses of credibility. To further his arguments, he relied upon the judgments reported in 2009 All M R (Cri)1581 (S.C.) - State of U.P. Versus Gajey Singh and another, 2008(3) SCC 709 – Babu Eam and others Versus State of Punjab, 2003 Criminal Law Journal 4186 - Shivraman @ Gopi Versus State of Kerala, 2006 Criminal Law Journal 1109 - Siddique and others 18 Versus State of Kerala, 2005(3) BCRC 459 - Parshuram Biva Patil and others Versus State of Maharashtra, AIR 2009 SC 1262 – Ravishwar Manji and others Versus State of Zharkhand. 18. Relying on the judgment reported in AIR 1969 Gujrat 69 – Koli Trikam Jivraj Versus State of Gujrat, learned Advocate Lotlikar for the accused No.2 Krishnan sounded a note of caution regarding the use of suggestion put in the cross-examination to fill in the gaps in the prosecution evidence. As regards the force of circumstantial evidence in the present case, he submitted that onus to prove the complete chain of circumstances incompatible with the innocence of the accused was on the prosecution. In this connection, he relied on the judgment reported in 2007(6) SCC 32 Sujoy Sen Versus State of West Bengal, 2009 All M R (Cri) 936 (S.C.) Chattarsing and another Versus State of Haryana, (2006)10 SCC 172 Ramreddy Rajesh Khanna Reddy and another Versus State of A.P. 19. Citing judgment reported in AIR 2004 SC 26 Badamsing Versus State of M.P., learned Advocate Lotlikar for the accused No.2 Krishnan argued that consistency of the 19 testimonies as regards the material incident is not a sure guarantee of their truthfulness and it is open to the Court to reject their evidence if the Court comes to the conclusion that conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye-witnesses is suspect. 20. Learned Advocate Arun Bras De Sa for the accused No.1 Valeriano Barretto the appellant in Criminal Appeal No.12/2007 at the outset adopted the arguments made on behalf of the appellant/ accused No.2 Krishnan. According to him the role ascribed to the accused No.1 Valeriano Barretto of catching the Alex did not spell out any common intention to participate in the culpable act. According to him, P.W.35 - Serafin, I.O. before calling the panchas was aware of the fact allegedly disclosed by the accused No.1 Valeriano Barretto and, therefore, the statement allegedly made by the accused No.1 Valeriano Barretto before the Pancha did not lead to any discovery as envisaged by law. In support of these submissions he relied on the judgment reported in (1999) 8 SCC 555 Ramshishi Yadav and others Versus State of Bihar and 2003 SCC 106 20 Bharat Versus State of M.P. 21. Learned Advocate Kanekar for the appellant/ accused No.3 Sanjay Gadekar and accused No.4 Shailesh Gadekar in Criminal Appeal No.7/2007 besides adopting the submissions made on behalf of the accused No.2 Krishnan and accused No.1 Valeriano Barretto made further submissions that the failure of the prosecution to furnish explanation regarding injuries on the person of the accused generated serious doubt about the prosecution case. Non- examination of eye-witnesses referred to by P.W.35 - Serafin in his cross-examination namely Alex Viegas, Pedro Fernandes, Carmina Barretto, Seby Carvalho, Milagres Fernandes further compounded this doubt as a result of adverse inference that can be drawn by such non- examination. He further submitted that non-description of the clothes of the accused in the arrest panchanama resulted in missing links in the prosecution case and the question as to what happened to other accused also remained unanswered due to lack of further investigation in the case. According to him, it was inconceivable even to imagine that the accused No.5 Sheela Barretto, a pregnant lady, and accused No.6 Vatsala Gadekar, a old lady of 55 years, could 21 have possibly participated in the alleged crime. He, therefore, vehemently urged for the acquittal of all the accused persons. 22. Initially, learned Public Prosecutor Coutinho made brief submissions referring to the testimonies of the eye-witnesses. She commented that the eye-witnesses not only had seen the accused, identified their clothes and weapons wielded by them but had also corroborated each other. Reins of the prosecution were then taken over by learned Public Prosecutor C.A. Ferreira. He opened his arguments with the fact concerning the motive of the crime disclosed through testimony of P.W.4 - Agnes. He thereafter proceeded to make submissions as regards the testimonies of the eye-witnesses. He submitted that the witnesses were villagers and their expressions regarding the crime in question need not be construed literally. According to him, the prosecution case was one of group assault and in such eventuality even the victim would not have been in position to exactly narrate the role of every assailant muchless of the assailants from the distance. He further submitted that nobody was keeping a watch with anticipation of the incident; and the attention of the local witnesses was drawn 22 on hearing the commotion and as such it was not expected of these witnesses to have narrated the genesis of the incident. In his view, the genesis of the incident thus lost its importance. Likewise, he argued, it was not possible for the witnesses to have witnessed how the accused No.4 Shailesh Gadekar had received injury. However, he submitted, the material assertions made by the witnesses regarding the assault on the victim Shanu Komarpant remains unshaken in the cross-examination. 23. Learned Public Prosecutor Ferreira further pointed out from the evidence of P.W.10 - Dalal that the scene of offence panchanama Exh.131 was duly recorded and a sketch Exh.131 collectively recording the situation obtaining at the scene of offence in terms of actual measurements taken at the spot was duly proved in the evidence. Circumstances thus furnished corroboration to