1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 3 OF 2008 Ram Shankar Sahane, son of Tufani Sahane, r/o. House No. 34/C, Cana, Benaulim, native of Thakurai, Kamundera, Karata, Gorakpur, Zangaha, U.P., presently undergoing sentence at Central Jail, Aguada. .... Appellant V/s S T A T E .... Respondent Mr. S.G. Dessai, Senior Advocate with Mr. S. Kalshawkar and Ms. S. Rodrigues. Ms. W. Coutinho, Public Prosecutor for the Respondent. CORAM : P.B. MAJMUDAR & N.A. BRITTO, JJ. DATE : 30th JANUARY, 2009 JUDGMENT :(Per : N.A. BRITTO, J.) This appeal is filed by the accused who has been convicted for uxoricide under Section 302 IPC and has been sentenced, inter alia, to suffer life imprisonment, by judgment/order dated 5/06/2007 of the learned Sessions Judge, Margao, in Sessions Case No. 20/2005. 2. The accused and the deceased Rita, aged about 20 years, were natives of and married in Gorakpur in the State of U.P., about 7-8 years prior to the incident. The deceased had three more sisters, two of whom were married to 2 PW16/Lalji Sahani and PW17/Akhilesh Sahani, respectively. The accused and the deceased had two children. The first is PW8/Ragini, who was about three years of age and the second Nirjela who ought to have been of less than one year of age, as she was required to be carried, by the said PW8/Ragini. A third child appears to have been on the way. The accused, the deceased and the brother of the accused, namely, PW14/Harishankar were all residing in an outhouse, of the house of Engineer Achilees Gracias, the son of PW3/Sunamites Gracias at Cana, Benaulim. The deceased was found murdered at about 5 p.m. on 11/04/2005. That is also the time given by PW7/Dr. Sapeco as the probable time of death and which timing is also in consonance with the facts stated by other witnesses. Around that time PW8/Ragini came to the place where PW1/Ana Maria Rodrigues was drying her paddy, close to the said outhouse, and told her in hindi that her mother had expired and upon hearing that, the said PW1/Ana Maria Rodrigues was emotionally disturbed and went and met PW2/Sister Satornila D'Costa at the Divine Providence Convent Home which is close by, and told her about it whereupon both of them went to the outhouse and saw that the deceased was lying on the cemented floor with blood around her and they returned and reported the matter to another sister from the said convent by name Sister Delphine, who informed the police on telephone No.100. An FIR was lodged at about 6.30 p.m. on the same day by the said Sister Satornila and apparently no person was named in the said FIR. After recording the said FIR, the 3 Police Inspector Shri Albuquerque of Colva Police Station (I.O.) came to the said outhouse and prepared a scene of offence panchanama and an inquest panchanama in the presence of PW4/Ramakant Naik. Photographs of the scene of offence were taken by PW9/Sagun Gaude. No finger prints could be lifted. A dog squad was summoned but gave no clue whatsoever. 3. The body of the deceased was sent for post mortem examination which was conducted by PW7/Dr. Sapeco who found that there were 2 injuries on the person of the deceased namely a stab chop wound of 11 x 5 x 5 cms at the neck front directed from right to left with minimal tailing with cutting for trachea, strept muscle of neck, blood vessels, thyroid and neck structures which was 8 cms below chin and 6 cms above super sternal notch of neck. He also found another injury below 2 cms of the first injury, which was another stab chop wound of 10 x 5 x 5 cms, and, he opined that the deceased had died due to haemorrhogic shock as a result of impacts to the neck with sharp cutting weapon vide injuries no. 1 and 2, which were necessarily fatal to a pregnant woman. When the knife – Exhibit F was shown to him he opined that the injuries could have been caused with the said knife. Thus far, there is no contest to the case of the prosecution and otherwise also it is not disputed at the Bar, by the learned Senior Counsel appearing on behalf of the accused, that the death of the deceased was homicidal, and, it is proved to be so. 4 4. Although the I.O. Shri Albuquerque conducted the scene of offence panchanama at about 7.30 p.m., he did not send for the accused, and as stated by him, he suspected the accused as the accused, only late in the night on 12/04/2005 and arrested him on the next day i.e. on 13/04/2005 at 8.00 hrs. at Colva Police Station after the accused was brought from Sinquetim, Benaulim. Shri Albuquerque has not given any basis as to why he suspected the accused or for that matter, he did not suspect PW14/Harishankar, the brother of the accused, or the other two persons named by him as the persons, who according to the case of prosecution, were having frequent sexual intercourse with the deceased. Least which was expected from Shri Albuquerque, even in case he had not suspected the accused at the time of carrying out the scene of offence panchanama, was to send for the accused, as the wife of the accused was found murdered, and there was no one to look after their two minor children. 5. The accused was, therefore, charged and tried on the allegation that on 11/04/2005 at 17.00 hrs. the accused in the rented room (outhouse) of H.No. 34/C at Cana, Benaulim committed murder of his wife, the said Smt. Rita Sahani by slitting her throat with knife, suspecting her of having illicit relations with the brother of the accused, the said PW14/Harishankar, and, in support of the charge prosecution examined as many as 19 witnesses. The 5 case of the accused was one of denial simpliciter, and, in fact the accused stated that he was falsely implicated. The accused did not examine any witnesses. 6. Admittedly, the case of the prosecution is based on circumstantial evidence and the law on this aspect is well settled with catena of decisions of the Apex Court: Firstly, the circumstances from which the conclusion of guilt is to be drawn should be established by proof beyond reasonable doubt; secondly, the circumstances proved must be consistent with the guilt of the accused and inconsistent with his innocence; and thirdly, all the circumstances proved cumulatively or when taken together should point out to the guilt of the accused i.e. sufficient to conclude that within all human probability it is the accused who committed the crime. 7. Since the case of the prosecution, is based on circumstantial evidence, it was expected of the learned trial Court to have picked up the circumstances one by one and after analysing the evidence produced in support of each to come to the conclusion whether they or any of them were proved beyond reasonable doubt and thereafter to come to a further conclusion whether all the circumstances proved beyond doubt taken together were sufficient in all probability to establish the guilt of the accused. This effort has not at all been done by the learned trial Court, but the learned trial Court proceeded to frame 6 only one point and discuss the entire evidence under that point and came to the conclusion that every circumstance unerringly pointed only to one hypothesis i.e. the guilt of the accused. 8. That takes us to the evidence of motive, to find out whether the same is proved by the prosecution. We are unable to agree with the submission of Shri Dessai, the learned Senior Counsel that the prosecution had alleged twin motive. As can be seen from the charge framed, the motive alleged by the prosecution is that the accused murdered the deceased suspecting her of having illicit relations with the brother of the accused. The motive that the accused had made a demand for a motorcycle at the time of marriage is a motive which was introduced for the first time during the course of evidence by the relatives of the deceased namely PW16/Lalji, PW17/Akhilesh and PW18/Degiri. In our view, the evidence of this motive has been rightly rejected by the learned trial Court. It is basic and well settled proposition of law that prosecution cannot reconstruct a story different from the one initially set up. It must prove the very story it alleges and nothing more. The learned trial Court held, and in our view rightly, that the demand for the said motorcycle was a later development and further observed that if one sees the entire tenor of cross-examination, particularly of PW18/Degiri, it could be gathered that the prosecution had later built up a case of demand for dowry by examination of the said PW16/Lalji, PW17/Akhilesh and PW18/Degiri 7 and that nowhere was it the case of the prosecution from the inception that the deceased was harassed by the accused for alleged non-fulfillment for his demand of dowry, ....etc. However, the learned trial Court rejected the contention raised on behalf of the accused, that the prosecution had failed to establish the motive of illicit relationship of PW14/Harishankar with the deceased, since the testimony of that witness was shown to be totally coloured to protect the accused, when the Special Judicial Magistrate PW15/Faria was not shaken on the material disclosure made before him by the said PW14/Harishankar. In other words, the learned trial Court appears to have relied upon the statement made by PW15/Faria when the maker thereof had himself resciled from it. The learned trial Court entirely lost sight of the fact that a statement recorded under Section 161 or for that matter 164 of the Code of Criminal Procedure, 1973 could not be considered as evidence. Such statements can be used only for contradiction, and, by way of corroboration in case of a statement made under Section 164 of the Code when it is adhered to by the witness whose evidence is recorded. That PW14/Harishankar, the brother of the accused, used to have illicit relations with the deceased is the statement given by him to the police as well as to the learned Special Judicial Magistrate which he did not adhere to when he was examined by the prosecution and in fact he was declared hostile and cross- examined. In fact, the decision of the Apex Court in the case of State of Rajasthan V/s. Kartar Singh (1970 Cr.L.J. 1144) was brought to the notice 8 of the trial Court wherein the Apex Court had held that statement under Section 164 of the Code of Criminal Procedure was no evidence, but was corroborative of what had been stated earlier. Learned trial Judge considered the matter from emotional point of view and not on the point of law. We all are required to follow the law. Obedientia est legis essentia. Way back in Mamand & Ors. V/s. Emperor (AIR 1946 PC 45) it was held that when the Court is of the view that the witness has been won over by the defence, his statement under Section 164 must be ignored. It is well settled that a statement recorded under Section 164 cannot be admitted as substantive evidence against an accused person but it can be used only for the purpose of corroborating or contradicting the maker of the said statement (see Sawal Das V/s. State of Bihar (AIR 1974 SC 778)). Since PW14/Harishankar had resciled from his earlier statement, there was no other evidence before the learned trial Court, to have come to the conclusion that the prosecution had proved the motive alleged against the accused. Thus prosecution has failed to prove the motive attributed to the accused. 9. As far as the motive is concerned, it is now well settled that motive is always relevant in criminal cases and in case based on circumstantial evidence, it is of special importance, but is of no consequence, if the evidence is strong. There is no doubt that there is motive behind every crime and that is why the investigation agency as well as the Courts while examining the 9 complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. This is a clear case where motive was alleged by the prosecution and the prosecution has failed to prove the same. In a case based on circumstantial evidence and where the evidence is very weak, motive is of special significance to the prosecution and prosecution having alleged it but having failed to prove the same certainly it does break one link in the chain of circumstance. This is a view held by a Division Bench of this Court in Shri alias Shrikant Ramchandra Gaonkar V/s. State of Goa (2006 (2) Bom.Cr.R. (Cri.) 353) and followed in the case of Deepesh Raiker V/s. State (Criminal Appeal No. 35/2006) decided on 2/06/2008 to which one of us (N.A. Britto, J.) was a party. 10. The learned trial Court has considered the evidence of PW1/Ana Maria as evidence of resgestae and that of PW3/Sunamites, PW10/Auda Viegas and PW13/Querobina as if their evidence was of eye witnesses, with a view to convict the accused at the same time taking note of the fact that PW8/Ragini had lent no support to the case of prosecution and further observing that that would not be fatal for the case of the prosecution as it was the accused who had motive to eliminate his wife. Curious reasoning indeed! The learned trial Court has further observed that the said witnesses had no reasons to make statements against the accused and therefore had no reason to depose falsely against the accused. Ms. Coutinho, the learned Public 10 Prosecutor concedes that the evidence of the aforesaid witnesses was hearsay but stops at that without making a further submission that being hearsay it was inadmissible and therefore unreliable and could not be the basis for recording a conviction. 11. Before dealing with the evidence of the said witnesses, it is necessary to take note of another decision which was cited before the learned trial Court, in the case of Himachal Pradesh Administration V/s. Om Prakash (AIR 1972 SC 975) wherein the Apex Court had stated that in appreciating the evidence against the accused the prime duty of a Court was firstly, to ensure that the evidence is legally admissible, that the witnesses who speak to it are credible and have no interest in implicating the accused or have ulterior motive (emphasis supplied). All that PW1/Ana Maria had stated is that PW8/Ragini came and told her at about 5 p.m. that her mother had expired. The story of the I.O. and that of PW3 Sunamites and PW10/Auda Viegas that PW8/Ragini was so shocked that she could tell the truth without much coaxing, has been demolished by PW13/Querobina. According to her, when she was taken by the Police to the tenement to see the dead body at that time PW8/Ragini came running to her and caught hold of her and embraced her and when she inquired with her as to what had happened to her mother, she told her that her father had killed her mother by poking the knife in the throat by making an action to that effect. As per the version of PW3/Sunamites, it 11 is at the request of the nun of the Divine Providence Convent that the said two minor children came to be given in her custody and were looked after by her maids. She stated that PW8/Ragini was totally shocked when she was brought to her house on 11/04/2005 and was not speaking to any person and although she brought them at about 6.30 p.m. PW8/Ragini was unable to sleep and on the next date i.e on 12/04/2005 at about 6 p.m. she was playing with Ragini in the courtyard and when she questioned her in Hindi as to who had killed her mother, she disclosed to her that her father had killed her mother with a knife. She also stated that PW8/Ragini had told her that she was frightened and had picked up her sister from the ground and ran towards aunty’s house and told the aunty that her mother was killed and the said aunty had taken them to the convent. PW10/Auda Viegas had yet another story to tell. As per her, on 13/04/2005, the I.O. had called her on phone and was asked to talk to PW8/Ragini and she was told that Ram Shankar Sahane (the accused) had murdered Rita Sahane (the deceased) and accordingly she went to the residence of engineer Achilles Gracias and saw that the girl was traumatized and it took her lot of coaxing to win her confidence and she was with her for about 5 hours and after that she told her that two days before, her father had come home and fought with her mother and she also informed her that father was boxing the mother and the mother was crying and giving bad words to her father and then her father poked her mother on the neck with something and she told her father not to beat her mother. She also stated that 12 she wanted to know what particular item was used to poke her mother’s neck and as such she showed her a steel patti, a knife and one more item which she did not recollect and PW8/Ragini pointed out to the knife and stated that her father had used the object which resembled the knife to poke the neck of her mother and therefore she took her sister Nirjela and went to her neighbours’s house and informed her that her mother was dead. 12. As already stated, the statement of PW8/Ragini was not recorded by the IO and it appears that he abdicated his duty in favour of PW10/Auda Viegas. Certainly, it was his duty to have recorded a statement of PW8/Ragini in the course of investigations and in case he wanted any assistance he could have certainly obtained the same from a social worker like PW10/Auda Viegas. 13. PW8/Ragini was subsequently examined before the trial Court on 20/01/2006 and in order to verify whether she was competent to depose, various questions were put to her by the then learned presiding officer who at the end of it recorded a certificate which reads as follows: “On the basis of questions and answers given by the witness, I am of the opinion that witness has not developed sufficient understanding. She does not understand the duty of speaking in the Court. On noticing her manner, outlook she lacks matured understanding. She was asked the questions in very conducive atmosphere and without the presence of police and any other authority. Hence, I am of the opinion that she is not a competent witness and therefore 13 question of recording her statement does not arise.” It may be observed that PW8/Ragini did not even respond when she was asked about her own name or that of her mother. The learned trial Court therefore proceeded to observe that, he was of the opinion, that PW8/Ragini was not competent witness and therefore the question of recording her statement did not arise. In other words, PW8/Ragini did not support what the aforesaid witnesses alleged, she had told them. 14. The main question which ought to have been answered by the learned trial Court is whether the evidence of PW1/Ana Maria, PW13/Querobina, PW3/Sunamites and PW10/Auda Viegas could at all have been accepted as legal evidence to convict the accused. 15. Chapter 4 of the Evidence Act deals with oral evidence, and Section 59 appearing therein states that all facts, except contents of documents or electronic records, may be proved by oral evidence. Section 60 of the Evidence Act further requires that oral evidence must, in all cases whatever, be direct; and, inter alia, it states that if it refers to a fact which could be seen, or be heard, it must be the evidence of a witness who says he saw it or heard it. Direct evidence is the best evidence. Derivative or second hand evidence is always excluded owing to its infirmity as compared with the original source. It is the cardinal rule of law of evidence that the best evidence should 14 be brought before the Court. Hearsay evidence which is not based on personal knowledge but which is based on what is heard from others is always inadmissible except in cases where it has been so made admissible by the relevant provisions of the Evidence Act, Section 6 being one of them i.e. evidence of resgestae. A statement of a witness not based on his personal knowledge but what he heard from others is clearly inadmissible. Section 6 provides that facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places. The rationale behind making certain statements of facts admissible under Section 6 is on account of spontaneity and immediacy of such statement or fact in relation to the fact in issue and it is necessary that such fact or statement must have been made contemporaneously with the act which constitute the offence or atleast immediately thereafter. It would be interesting to note what Sir John Woodroffe and Syed Amir Ali have got to say in their Law of Evidence at page 2789. Thus say the learned Authors: “The rule against hearsay is one of the most important and commonly applied rules of the law of evidence, and yet at the same time, the least understood by students, the profession and the judiciary. Many definitions of hearsay have been advanced. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.” As per Peter Murphy, at page 2789 (supra) “Hearsay evidence is evidence from any witness which consists of what another person stated (whether verbally, in 15 writing, or by any other method of assertion such as gesture) on any prior occasion, is inadmissible, if it is only relevant purpose is to prove that any fact so stated by that person on that prior occasion is true. Such a statement may, however, be admitted for any relevant purpose other than proving the truth of facts stated in it.” Stephen in his report on the Indian Evidence Act has this to say: “The word “hearsay” is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by some one else; sometimes it is treated as nearly synonymous with “irrelevant” (see page 597 of C.D. Field's Law of Evidence, 12th Edition).” In this context by way of illustration, we may refer to the case of Vijender V/s. State of Delhi (1997 SCC (Cri) 857). In this case PW5 had stated that Raju gave him the number of the vehicle and the names of three appellants as the miscreants. The said Raju who was examined as PW4 had not stated that he had seen the three appellants kidnapping Khurshid nor had given the number of the vehicle in which Khurshid was taken away and it was held that in the absence of such direct evidence of Raju/PW4, the testimony of PW5 to that extent would be hit by Section 60 of the Evidence Act. The Apex Court noted the facts which could be seen were that Kurshid was kidnapped, that the appellants kidnapped him and that he was kidnapped in car no. DDB 5067 and therefore PW4/Raju was the only person (in the absence of any other eye witness) who was legally competent to testify about this fact and since PW4/Raju did not testify