-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 5 OF 2009 STATE OF GOA ...... Appellant V e r s u s Chandrakant Rama Gawandi, s/o. Rama Gawandi, R/o. H. No. 240, near Nitin Bar, Headland Sada, Mormugao. (Registered Address) .….. Respondent Mr. Ryan Menezes, Advocate for the Petitioner. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CORAM: R. M. SAVANT, J. DATE : 16 th February, 2010. ORAL JUDGMENT The State has filed the above Criminal Appeal challenging the Judgment and Order dated 22.08.2008, passed by the learned J.M.F.C., Vasco da Gama, by which the Respondent-Accused has been acquitted of the offence punishable under Section 324 of the I.P.C. 2. The parties would be referred to as per their status in the Trial Court. 3. The case has arisen on account of the incident which took place on 29.03.2007. It is the case of the prosecution that the Complainant, one -2- Anand Gawandi, is residing at Headland Sada along with his family members and brothers, one of whom is the Accused and all of them are staying in one house but in separate rooms. It is the case of the prosecution that on 29.03.2007 at 00.30 hours when the Complainant entered his house, his younger brother Chandrakant, who was standing at the main door of the house, started heated discussions with him in respect of property matters and whilst the discussion was going on, he shouted at the Complainant stating that he will see how the Complainant stays in the house and suddenly started assaulting the Complainant with fist blows and thereafter assaulted with a knife on his left ear causing injury to the ear of the Complainant upon which, the Complainant shouted for help and on hearing the shout, his elder brother Ulhas, who was in his room, came at the spot and tried to rescue the Complainant and asked his younger brother Chandrakant, who is the Accused, as to why he was assaulting him and the said Chandrakant, without answering, pushed the elder brother and assaulted him on the left hand wrist causing injuries. Thereafter, the said Anand went to his room as blood was oozing from his ear on account of the injury, the brother of the Complainant, Ulhas, called the Police on phone, the police arrived and took them initially to the Chicalim Hospital at Vasco for treatment and thereafter to G.M.C. Bambolim. The Police has recorded the complaint for the assault on the Complainant with knife by the Accused Chandrakant and, accordingly charge was framed against the Accused for the offence punishable under Section 324 of the I.P.C. -3- 3. The prosecution in support of its case, examined in all eight witnesses, who were P.w.1/Anand Gawandi, Pw.2/Ulhas Gawandi, Pw3/Nitin Gawandi, Pw.4/Dr. Domnic Fernandes, Pw.5/Dr. Markandeya Tiwari, Pw.6/Damodar V.Korgaonkar, Pw.7/Babu Nedrapali and Pw8/Anand A. Parab. The statement of the Accused was recorded under Section 313 of the Cr.P.C. The Accused denied the charge and prayed for being tried. The Accused did not examine any witnesses in defence. 4. In the context of the prosecution story, it would be relevant to refer to the evidence of Pw.1 and Pw.2 as regards the manner in which the incident had occurred. Pw.1, Anand Gawandi, who is the Complainant and who lodged the complaint, has deposed that the Accused, who is his brother along with other brothers except Ulhas, reside in the same house but in separate rooms. He has deposed that on 29.03.2007, at about 00.30 hours, when he entered the house through the main door, the Accused started discussion with him and suddenly assaulted him with fist blows and then he some how opened the door of his room and after sometime came out when the Accused assaulted him with knife on his left ear causing injury to his ear upon which, he shouted for help and his elder brother Ulhas, who was in his house, came at the spot and asked the Accused why he has assaulted Anand and without answering, the Accused pushed his elder brother and assaulted him with a knife on his left hand near the wrist causing him injury. It has further come in the evidence of Pw.1 that thereafter, the family members had taken him to Chicalim Hospital and thereafter to the GMC Bambolim. It has -4- also come in the evidence of the said witness that there is previous enmity between him and the Accused since the year 1994. He has also admitted that he was under the influence of liquor on the said day. It has also come in evidence that there are several complaints and counter complaints filed against each other by them with the Police. However, he has deposed that prior to the said incident, there was no quarrel or fight and that there was a discussion between him and the Accused. In his evidence, he has further admitted that his elder brother Ulhas was not present when the fight took place and that his elder brother Ulhas stays in a separate house which is 80 to 100 metres away from the house wherein he and the Accused stay. He has deposed that when the incident occurred, his brother Ulhas was in his house and he came to the scene after hearing the shouts of the said Anand. 5. In so far as the evidence of Pw.2/Ulhas is concerned, he has deposed that when he reached the common or ancestral house, he saw his brother Anand having a bleeding injury from his left ear and blood was oozing from his left ear. He has further deposed that the Accused was present in the corridor with a knife in his hand and he asked Anand as to what had happened and Anand told him that the Accused had assaulted him with a knife. It has come in his deposition that he went towards the Accused and asked him as to why he assaulted Anand with a knife, at that time, the Accused pushed him and assaulted him for which he sustained injury. The said witness admitted that there are fights in the house since last 20 years and that his brother Anand is taking alcohol but he has stated that he did know whether his brother -5- had consumed alcohol on the said day. He has further deposed that it is possible that both the Accused and the Complainant might have consumed alcohol on the said day. He has further admitted that he is not in talking terms with the Accused for the last 15 years. He has admitted that he has stated before the Police that he is living in a separate house, however, the Police have not recorded the same. He has also admitted that he was running a bar attached to the common house and that he always keeps a watch on the said bar. He has also deposed that he did not state to the Police that he had heard someone shouting and thought that there was some fight in the bar and ran towards the bar. Therefore, it is pertinent that in so far as the evidence of Pw.1 and Pw.2 is concerned, the enmity between the Accused and the Complainant has been deposed by both the said witnesses. It is further pertinent to note that the incident of assault on Pw.1 alleged by the prosecution was not witnessed by anyone as Pw.2 had reached the spot only after the incident. There are various discrepancies in the version as regards the manner in which the offence has occurred. The initial version of the Complainant is that the Accused assaulted him with fist blows and thereafter with knife whereas in the evidence he has deposed that the Accused assaulted him with fist blows upon which he opened the door and went into the room and on coming out of the room after sometime, the Accused assaulted him with knife. The Complainant being confronted with the said statement, stated that he could not explain. In so far as the arrival of Pw.2 at the scene of offence is concerned, it is the version of the Pw.1 that the Pw.2 who came in to the room and asked the Accused why he was assaulting the -6- Accused. Whereas, it is the version of the Pw.1 in the complaint that the Pw.2 tried to rescue him and then asked the Accused as to why he was assaulting him. In so far as the version of the Pw.2 is concerned as regards his entry, he has stated that he had first come in and asked Pw.1 as what had happened and thereafter as a elder brother, he asked the Accused as to what has happened. In his statement under Section 161 Cr. P.C., he has stated that on hearing the shouts of Anand, that he came at the scene of offence whereas in his examination in chief he has stated that on account of the noise in the bar, he came to check, and at that time he saw Accused assaulting Pw.1. Therefore, there is no consistency on the aforesaid aspects as regards the manner in which the incident has taken place in the evidence of the witnesses. It would be pertinent to note that though the Pw.2 claimed that his house was 25 metres away from his common or ancestral house and he came down to the scene of offence which was the ancestral house on hearing the shouts of Anand, the question arises as to why nobody else heard the said sound and why there was no other witness to the assault being committed on the said Anand as the bar run by Nitin, son of said Ulhas, was barely 25 metres away. 6. P.w.3, Nitin Gawandi, is the nephew of the Complainant and the Accused. He has deposed that he had gone to sleep and after sometime, he heard somebody talking and fighting and he thought that it was the daily quarrel of his uncles and, therefore, did not come out of the room and after sometime, since someone knocked the room, he opened the door and saw his father Ulhas, who informed him that his uncles were fighting with each other. -7- It has come in his evidence that he did not go out and went to sleep and does not know anything about the incident. The said witness, therefore, does not take the case of the prosecution any further. However, what can be gathered from the evidence of Pw.2 is that there are constant quarrels between his uncles. 7. The prosecution has tried to prove the scene of offence panchanama and the recovery panchanama through P.w.6 and P.w.7 i.e. the Panch witnesses. In so far as Pw.6 is concerned, he has deposed that the panchanama was conducted on 02.04.2007. He has further deposed that he was not taken to the spot by the Police and that Ulhas Gawandi did not show any house to him. He has further deposed that the Accused took them to a house which is near Luizin bar and he went inside the house i.e. the Accused and removed the knife which was underneath the cupboard and handed over the same to ASI Parab and the said knife was attached under a panchanama and sealed. The said panch witness has been declared as hostile by the APP but all the suggestions put to him have been denied by him. It has further come in his deposition that he has acted as a panch witness in 25 to 30 cases. He has also admitted that in many of the panchanamas, the Police ask him to sign and he goes to the Police Station and signs the panchanamas. It would be significant to note that the said panch witness does not depose in specific terms that the other panch was present at the time of panchanama but has stated that two Police Constables, ASI Parab and one more person were there in the jeep. What is pertinent to note is that he has denied that he has acted as a panch in the panchanama along with Babu Nadrapali, who is the other -8- panch witness. 8. Now coming to the evidence of Pw.7/Babu Nadrapali, who is the other panch witness, the said witness has deposed that the panchanama was conducted in Nitin bar, at the house of Chandrakant Gawandi and that the police had showed him the scene of offence. He has deposed that he cannot give the description of the house. He has also deposed that after conducting the panchanama, another panchanama was conducted, after about 4 to 5 days as the Accused disclosed that he is ready to show the knife which was kept by him and took them to his house, which is near Nitin Bar and they proceeded in a jeep. He has further deposed that the Police had taken them to the house. He has further deposed that the Accused went inside and brought the knife. He has also deposed that he has acted as a panch witness in 10 to 15 cases. He has deposed that he had seen the house earlier and the Police had not read over and explained the panchanama to him. He has also deposed that the Police had told him that the Accused had disclosed in Konkanni language, which shows that the disclosure was made by the Accused to the Police and not to the Pancha. It would be pertinent to note that the said Pw.7 has not deposed about the knife being removed which was under the cupboard which was deposed by the other panch witness. Further, the said Panchas deposed that the Police had taken them to the house and shown the room which shows that the recovery panchanama was not done at the instance of the Accused. There is, therefore, material contradiction between the deposition of the two Panch witnesses as regards the recovery -9- panchanama. From the evidence on record, it can be seen that both the panchas have acted as panchas in large number of cases and, therefore, the Trial Court has dubbed them as stock Panchas. There is also material contradiction between the two Panchas as regards the scene of offence whereas one of the Panchas states that the house of the said Chandrakant is near Luizin Bar. The other Panch witness states that it is near Nitin Bar. Their evidence, therefore, creates a serious doubt as regards the fact whether they were actually present when the scene of offence panchanama was recorded and at the time of recovery. The evidence of the said witnesses, therefore, is not credible and cannot be relied upon. 9. In so far as the weapon of assault is concerned, the discrepancy or the contradictions between the panch witnesses has already being referred to in the above paragraph. It is pertinent to note that Pw.1 and Pw.2 have not identified the knife as being the same as contained in M.O.1. This causes a severe dent to the case of the prosecution as the injured have failed to identify the weapon of assault. 10. Now coming to the aspect of injury, the prosecution has examined P.w.4, Dr. Domnic Fernandes and Pw.5, Dr. Markandeya Tiwari. Though Pw.4 has stated that the nature of injury suffered by Pw.1 and Pw.2 could be caused with the weapon, of the nature of the M.O., Pw.1 and Pw.2 have failed to identify the said weapon of assault. There is no material corroboration to the evidence of Pw.4 in so far as the weapon of assault is -10- concerned. In so far as the evidence of Dr. Markandeya Tiwari is concerned, he has deposed that the injuries suffered by P.w.1 and P.w.2 are possible with a sharp weapon like a knife. He has also deposed that the injuries were caused to the external part of the ear and that there as no blood oozing from the ear. However, in juxtaposition, if the said evidence is considered with the evidence of P.w.2 who came to the scene of offence immediately after the assault and who has deposed that Pw.1 was bleeding profusely, there is a contradiction or inconsistency between the evidence of Pw.5 and the evidence of Pw.2 as regards the injury. Though it has been stated by the said witness that P.w.1 was admitted to the Hospital, the material particulars as regards the admission of the Pw.1 in the hospital, have not been deposed by the said Pw.5. This, in my view, is one of the circumstance which was required to be proved by the prosecution to bring home the charge against the Accused beyond reasonable doubt. 11. Now coming to the evidence of the Investigating Officer i.e. Pw.8, if the evidence of Pw.8 is considered in the context of the evidence of the two Panchas Pw.6 and Pw.7, his deposition is contrary to what has been stated by the Panchas. The scene of offence shown by Ulhas Gawandi is contrary to the evidence of the Panchas that the scene of offence was pointed out to them by the Police. There is a contradiction as also to the disclosure statement made by the Accused. It has come in the evidence of one of the Panch witnesses that the Police told him that the Accused told them in Konkanni language as regards the knife which was kept in the house. Therefore, the -11- deposition of Pw.8 that the disclosure was made in the presence of the Panchas is contrary to the evidence of Pw.7. In so far as the weapon of assault is concerned, though the Investigating Officer identifies the knife being the M.O. in the absence of Pw.1 and Pw.2, identify the said weapon, the said evidence of Pw.8 does not find corroboration from the evidence of the other witnesses. The evidence of Pw.8 that both the panchas were present at the time of panchanama, is difficult to accept in view of the evidence of the Panchas and their admission that they have acted as Panchas in the past in number of cases and that they are called to the Police Station and they sign the panchanamas. Considering the evidence on record of Pw.6 and Pw.7, the Panch witnesses, it cannot be said that the recovery was at the instance of the Accused. The evidence of Pw.8, therefore, does not find any corroboration from the evidence of the other witnesses. It, therefore, creates a serious doubt as regards the weapon of assault and, therefore, a dent in the prosecution story. 12. No doubt, that the evidence of Pw.1 and Pw.2, who are the injured, cannot be brushed aside only on the ground that they have deposed that there is previous enmity between the parties. Nevertheless, the said evidence cannot be solely relied upon for basing the conviction against the Accused in the absence of corroboration. Moreso, in the background, facts of the present case wherein there is a plethora of evidence that there were property disputes between the parties and the parties were on inimical terms since the last 20 years and there were frequent complaints and counter -12- complaints lodged by the parties with the Police. The prosecution was required to establish, the chain of circumstances by proving each circumstance beyond reasonable doubt by clear and convincing evidence, the cumulative effect of the established circumstances must lead to an irresistible conclusion that it is the Accused and the Accused alone who has committed the offence. In my view, the evidence on record does not prove the guilt of the Accused beyond reasonable doubt. 13. On behalf of the Respondent-Accused, reliance is placed on the Judgment of the Apex Court reported in (2007) 4 S.C.C. 415 in the matter of Chandrappa & Ors. vs. State of Karnataka, wherein the general principles regarding powers of the Appellate Court whilst dealing with an Appeal from acquittal have been culled out. Paragraph 42 of the said report is material and is re-produced herein under : “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence -13- before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on -14- record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 14. Considering the evidence on record, in my view, the view taken by the learned J.M.F.C., can be said to be probable view in the facts and circumstances of the case. This Court, therefore, is not required to interfere in its appellate jurisdiction as regards the acquittal of the Accused merely because another view is possible. 15. In that view of the matter, there is no merit in the Appeal, which is accordingly dismissed. R. M. SAVANT, J. arp/*