1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 26 OF 2005 Shiri @ Shrikant Gaunkar, S/o Ramchandra Gaonkar, House No.417, Shepem, Ambaulim, Quepem Goa, Presently in Central Jail, Aguada, Bardez, Goa. ... Appellant/Accused versus State of Goa Through Public Prosecutor, Panaji Goa. ... Respondent Mr. M. P. Amonkar, Advocate for the Appellant/Accused. Ms. W. Coutinho, Public Prosecutor for the Respondent/Complainant. CORAM : V. C. DAGA & N. A. BRITTO, JJ. DATE : 7TH AUGUST'06. J U D G M E N T(Per N. A. Britto, J.) This appeal is by the accused, aged 24 years, who has been convicted and sentenced under Section 302 I.P.C. to suffer life imprisonment and to pay a fine of Rs.10,000/­ in default to undergo S.I. for 6 months. 2 2. Mahadev G. Deikar, aged about 40 years, the deceased, and the accused were both residents of village Ambaulim in Quepem Taluka. It appears that the accused is from ward known as Shepem while the deceased is from a ward known as Kargegal, though the evidence on this aspect appears to be conflicting. The deceased was working as a loader on a tipper truck of one Kantu Dessai and used to go to work at 5 a.m. and return home at 8 p.m. On 21­3­2001, the deceased went for his work as usual but returned early at about 2 p.m., as the truck had to be kept for repairs in the garage. The deceased had lunch, rested for some time and left the house at about 6 p.m. The wife of the deceased, PW15/Madhuri Deikar waited for him till 10 p.m. and on the next day on 22­3­2001 got up at about 5 a.m. and went in search of the deceased. She visited her nephew Devidas who told her that the deceased was seen at about 7 p.m. in the bar of PW10/Prakash Gaonkar at Akamol, Ambaulim. She went in search of the deceased but could not find him. She contacted PW14/Vinanti Deikar, her neighbour and both went again in search of the deceased but not finding him returned for lunch and at about 2.30 p.m. started the search again and this time they took a path leading to a place known as 3 Vagdongor which according to PW15/Madhuri is at a distance of about half an hour's walk from her house, and, while searching they found the dead body of the deceased in the bushes on the said hillock, Vagdongor. They found that the face of the deceased was full of blood and there were injuries on his face. PW14/Vinanti Deikar rushed back and informed her husband and her uncle PW1/Surya Deikar, the elder brother of the deceased. According to PW14/Vinanti the accused is also her neighbour and they are residents of the same ward. According to PW14/Vinanti, the deceased was not found on the road leading to their house from Arcamol but was found at a distance of about 40 meters approximately. PW1/Surya Deikar lodged a complaint which was registered at about 5 p.m. 3. As a result of the said complaint PW25/I.O. summoned a dog squad and he proceeded to the scene where he recorded the scene of offence panchanama, prepared a sketch and an inquest panchanama. PW18/Manoj took photos of the scene of offence. PW6/Satish Sawant Dessai has narrated in detail as to the articles which were found near about the dead body of the deceased. According to PW6/Satish Sawant there 4 was a pathway near the body of the deceased. As per PW6/Satish Sawant near about the dead body they saw kurkure/crispies/MO.12, betel nut/MO.16, betel leaf/MO.13, a pen/MO.15, a cap/MO.14, two pairs of slippers, namely one pair of payal make of green colour/MO.17 and another pair of paragon make of blue colour/MOs.18 and 19. The green colour slippers/MO.17 were subsequently identified by PW15/Madhuri Deikar as belonging to the deceased. Upon the arrival of the dog squad headed by dog handler PW21/Krishnanath, the latter noticed only the green colour payal slippers and gave smell of one of the slippers to the Police dog by name Gama and the said Gama is stated to have gone at a distance of about half a kilometer and then stopped in front of a house which was stated to be that of the accused. The green colour slippers/MO.17 were shown to PW21/Krishnanath in Court and he identified the same. According to him, he had not seen any blue colour slippers/MOs.18 and 19. It is, therefore, obvious from the evidence of PW21/Krishnanath that the Police dog Gama barked at a wrong house for it barked in the direction of the house of the accused when it was given the smell of the slippers of the deceased. 5 4. After the inquest, the body of the deceased was sent for post mortem examination to Hospicio Hospital at Margao where autopsy was conducted by PW4/Dr. Avinash Pujari and he found as many as 10 injuries, or rather injuries grouped under 10 heads. We do not think it is necessary to reproduce all the injuries found by PW4/Dr. Pujari. We would only like to refer to injury nos.1, 5, 6 and 9. Injury No.5 was a contusion which was red, fresh with diffused margins on left side of the skull parieto temporal area above earpinna of 12 x 10 cms. x bone deep, with underlying bones fractured. Injury No.6 was also a contusion with similar characteristics on the chest, front left side supra mammary area, below the collar bone, over an area of 12 x 10 x rib deep. Injury No.9 were multiple contusions of the size of 6 x 4 cms. x muscle deep, 2 to 10cms. x 7 cms. on the lower part of back at T­12 to L­3 spine area on either side(6 in numbers) overlapping with diffused margin, raised, red and fresh. According to PW4/Dr. Pujari, the injuries could have been caused by a rock or a laterite stone, hard and blunt in nature. Regarding injury no.1 which was a contusion of 5 x 4 cms. on the left side of the head, PW4/Dr. Pujari stated that it could be caused by any object which came into contact with surface area 6 of 5 x 4 cms. PW4/Dr. Pujari stated that injury nos.1 to 8 could not have necessarily been caused by one blow each and he could not say specifically which injuries from 1 to 8 could have been caused by a single blow. At the same time, he stated that injury nos.3, 4 and 5 were caused by separate blows. No weapon or any rock or any laterite stone was shown to PW4/Dr. Pujari and in fact PW4/Dr. Pujari admitted that no weapon was sent to him for giving a weapon report. 5. The prosecution had examined 25 witnesses. There was no eye witness to the incident of murder. The case of the prosecution was solely based on circumstantial evidence. The learned Sessions Judge picked up 11 circumstances and held them as proved against the accused except circumstance(vii) evidence about dog tracking and proceeded to convict and sentence him as stated hereinabove. The learned Additional Sessions Judge held that the evidence of dog tracking was not reliable. 6. The circumstances highlighted to fasten the guilt of the accused could be summarized as follows:­ 7 a). Motive, b). Last seen, c). Recovery of weapon, namely a blood stained stone/MO.11 at the instance of the accused. d).Recovery of the clothes worn by the accused at the time of commission of offence. e). Recovery of the articles belonging to the accused namely a pen/MO.15 and a cap/MO.14 near the dead body of the deceased. 7. We shall first refer to the evidence of motive. According to the prosecution the accused was on enemical terms with the deceased because the latter was having illicit relationship with the mother of the accused, by name Kamal, and in order to prove the said motive the prosecution examined several witnesses. PW1/Surya Deikar is the elder brother of the deceased and he should have known the best about the relationship of the deceased with the mother of the accused, if any, and if there was one he should have certainly mentioned about it in the FIR lodged by him soon after the dead body was found. It is interesting to note that PW1/Surya Deikar did not even suspect the accused as the person who might have 8 assaulted his younger brother, the deceased, and on the contrary PW1/Surya Deikar suspected his cousin Balkrishna since he was on enemical terms with them. It appears that although the Police dog Gama, according to the Investigating Officer and PW21/Krishnanath had barked at the house of the accused from a distance, without entering the same, it is the said PW17/Balkrishna Deikar who came to be arrested, first. He was examined by the prosecution as PW17, declared hostile and cross­examined but without any benefit to the prosecution. As stated by him, he was taken to the Police Station on 24­3­2001 at about 1.00 a.m., badly beaten and dropped back at his residence on the same day during evening hours. It is also interesting to note that PW1/Surya Deikar did not suspect the accused even on the second or the third day of the incident but he was summoned by PW25/I.O. only on 24­3­2001 after the I. O arrested the accused. PW25/I.O. has admitted in cross­ examination that after the arrest of the accused on 24­3­2001 he called PW1/Surya Deikar and recorded his supplementary statement. PW1/Surya Deikar stated that about 19 years back, his brother, the deceased was friendly with the mother of the accused and in this connection the accused and his brother 9 Gokuldas had threatened to kill his brother Mahadev. He admitted that in his FIR he had not stated that his brother, the deceased, was friendly with the mother of the accused and admitted that such a fact he had stated only in his supplementary statement. He also admitted that initially he had suspected his cousin PW17/Balkrishna and his family since they were on enemical terms with them. According to him, the accused and his brother had given such threats to his brother in May, 2002. Needless to say that the version given by PW1/Surya Deikar as regards the enemity between the accused and the deceased is nothing but an effort in weaving a story subsequent to the arrest of the accused. If the accused was friendly with the mother of the accused about 19 years back, at that time the accused might have been only 4 to 5 years of age and if that is so one fails to understand as to how the accused could ever have a grudge against the deceased. PW1/Surya Deikar stated that the accused and his brother Gokuldas had threatened his brother the deceased in May, 2002, forgetting that the deceased was already murdered on 22­2­2001. He was not re­examined to explain the said statement. Therefore, the version of PW1/Surya Deikar that the accused was on enemical 10 terms or for that matter the accused had given threats to the deceased deserves to be rejected as an attempt to create a motive where there was none. Every subsequent witness examined by the prosecution has given their own versions which are again not compatible with the version given by PW1/Surya Deikar. For example, PW9/Kushali Sonu Deikar, to whose evidence we shall refer to a little later in more detail, stated that about 10 years back prior to the incident the deceased was having illicit relationship with the mother of the accused and once the father of the accused had caught Mahadev when he was with the mother of the accused and the father of the accused had assaulted Mahadev because of this illicit relationship. If there was any such incident, PW1/Surya Deikar would have certainly known about the same and would have deposed before the Court. According to PW9/Kushali Deikar the relations between deceased Mahadev and the accused were strained on account of the said incident. PW16/Vithoba Deikar is the uncle of the deceased and he stated that his uncle had illicit relationship with the mother of the accused and because of the said illicit relationship between the accused and the deceased their relations were strained. PW16/Vithoba Deikar gave 11 another dimension to the story by stating that the accused and the deceased used to fight with each other over the said incident and many a times used to abuse each other near Prakash Bar. PW19/Gokul Raghoba Deikar, the mother of PW16/Vithoba Deikar stated that Kamal Gaonkar, the mother of the accused was in friendly terms with the deceased and on one day about 6 years back the deceased was caught red handed by the husband of Kamal when the accused was in company of Kamal and had assaulted the deceased very badly and that she had told the deceased that he was a bachelor and Kamal was a married woman and he should not go and spoil her home but the deceased did not listen to her and continued to visit Kamal at her house and accused was against Mahadev since he did not like Mahadev coming to the house of Kamal. The discrepancies in the evidence of PW1/Surya Deikar, PW16/Vithoba Deikar and PW19/Gokul Deikar, all closely related to the deceased, were brought to the notice of the learned Additional Sessions Judge and it was argued before him that PW1/Surya Deikar had talked about the illicit relationship between the deceased and the mother of the accused which was 19 years old, PW9/Kushali Deikar having stated that it was 10 years old and PW19/Gokul 12 Raghoba Deikar having stated it to be of 6 years old, and in the absence of corroboration, their evidence ought not to have been believed and even otherwise such an old incident could not have been the motive behind the commission of murder. The learned Additional Sessions Judge proceeded to discard the said infirmities in the evidence of the said witnesses on the assumption that the accused might have remembered about the said illicit relationship and might have got excited after taking liquor. In our view, the evidence of PW1/Surya Deikar, PW9/Kushali Deikar, PW16/Vithoba Deikar and PW19/Gokul Deikar was not at all corroborative as regards the time of the said illicit relationship and it was nothing but an attempt to fabricate the story after the arrest of the accused. This is also evident from the fact that the statements of the said witnesses came to be recorded subsequent to the arrest of the accused. Moreover, the versions of PW1/Surya Deikar, PW9/Kushali Deikar, PW16/Vithoba Deikar and PW19/Gokul Deikar have been sufficiently nailed as untrue by PW3/Sambhaji Velip who was present in the bar of PW10/Prakash Gaonkar and who is also a labourer from Ambaulim and who stated that the accused and the deceased were talking normally when they were in the bar 13 and also by PW11/Shrikant Gaonkar who was another customer in the said bar and who stated that there was no quarrel between the deceased and the accused while he was present there. PW10/Prakash Gaonkar has not at all supported the version of PW16/Vithoba Deikar that many a times the accused and the deceased used to abuse each other near Prakash Bar. In fact, if at all such incidents were taking place, PW10/Prakash Gaonkar, PW3/Sambhaji Velip and PW11/Shrikant Gaonkar would have known about the same and would have deposed against the accused. Hence, we are of the view that no motive as alleged has been proved by the prosecution. On behalf of the accused it is contended that absence of proof of motive is sufficient to break the chain of circumstances. In this context, the learned Counsel for the accused Mr. M. P. Amonkar, has placed reliance on two Judgments of this Court. The first is in the case of Basawraj Tukaram Isran v. State of Goa(2002 ALL MR(Cri) 1348) and the other is in the case of State of Maharashtra v. Bhalchandra Nemgonda Chougule and another (2003 ALL MAR(Cri) 1896). In the latter case, a Division Bench of this Court observed that ordinarily, failure of the prosecution to establish the motive does not necessarily mean that the entire 14 prosecution case has to be thrown over board, particularly when the evidence of eye­witness is truthful and trustworthy. However, in a case of circumstantial evidence the motive goes a long way to prove the guilt of the accused. Motive forms one of the main links in the chain of circumstantial evidence and absence of motive or failure on the part of the prosecution to prove alleged motive would be fatal in the case of circumstantial evidence and if it is not proved, the chain of the circumstances cannot be said to have been complete. The Supreme Court in Mulakh Raj v. Satish Kumar and others(AIR 1992 SC 1175) stated that the failure to discover the motive of an offence does not signify its non existence. The failure to prove motive is not fatal as a matter of law. When facts are clear it is immaterial that no motive has been proved. Absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. Again, the Supreme Court in the case of Sahadevan alias Sagadevan v. State((2003) 1 SCC 534) has held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper conviction. There is no doubt that 15 motive is always relevant and bears a special significance in cases which are based on circumstantial evidence. Motive does not weaken a case but its existence certainly strengthens it and it assumes significance when there is a doubt. It may be of no consequence if the evidence is strong but in a case of this nature where the evidence is very weak motive was of a special significance to the prosecution and the prosecution having alleged it but having failed to prove the same certainly it does break one link in the chain of the circumstances. 8. We take next the last seen circumstance. In fact, what is relevant in criminal trials is a circumstance which is commonly known as last seen together circumstance and this is on the principle that a person who is last found in the company of another, if the latter is found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the case at hand, there has been no such circumstance at all. PW10/Prakash Gaonkar is the bar owner who has a bar at Akamol. The evidence of PW10/Prakash Gaonkar, PW3/Sambhaji Velip and PW11/Shrikant Gaonkar shows that there were 4 customers in the bar of PW10/Prakash 16 Gaonkar on 21­3­2001 around 6.15 p.m. including PW3/Sambhaji Velip, PW11/Shrikant Gaonkar, the accused and the deceased. PW3/Sambhaji Velip and PW11/Shrikant Gaonkar came to the bar first and ordered liquor and sat in the said bar. Later, the deceased came to the bar and ordered liquor and sat along with PW3/Sambhaji Velip and PW11/Shrikant Gaonkar. The accused came next and sat opposite the bench where PW3/Sambhaji Velip was drinking liquor and after some time the accused went out of the bar and again returned after about half a hour and started talking to them. PW11/Shrikant Gaonkar left the bar first followed by the deceased and after about 5 to 15 minutes or so the accused left the bar. In fact, it has been stated by PW3/Sambhaji Velip that the accused left the bar after about 15 minutes of the deceased left the bar. He also stated that the houses of the accused and the deceased were at a walking distance of about 30 minutes and they had to take the same route. It is quite probable that if the deceased had left the bar first by about 15 minutes before the accused, it would have been difficult for the latter to catch up with the deceased anywhere on their way to their respective houses whether they were in the same direction or otherwise. It appears that according to 17 PW3/Sambhaji Velip the accused as well as the deceased had to take the same route but it appears to us, as explained by the learned Public Prosecutor Ms. W. Coutinho that the houses of the deceased and the accused are in two different directions, in relation to the bar of PW10/Prakash Gaonkar. To complete the trail of the deceased after leaving the bar of PW10/Prakash Gaonkar, prosecution examined PW13/Piedade Carvalho who stated that at about 7.30 p.m. on 21­3­2001 the deceased came to her shop and spent Rs.5/­ on betel leaves, betel nuts and Kurkure/crispies and went away. To prove further trail of the deceased and the accused after leaving the shop of PW10/Prakash Gaonkar prosecution has examined PW9/Kushali Deikar. According to PW9/Kushali Deikar at about 5.30 p.m. on 21­3­2000 he went to the canal which is near the house of Ashok Dessai in order to have bath and after having bath he sat there for some time and after some time the deceased came near the canal and was having betel leaves and betel nuts in one hand and kurkure/crispies in the other hand. PW9/Kushali Deikar stated that the accused removed two beedi leaves and gave one beedi to him and the other he put in his mouth and thereafter he went further and told him that he was proceeding to his 18 residence. PW9/Kushali Deikar stated that the accused came near the canal and was wearing a cap similar to the caps usually worn by muslims. According to him, the accused came near the canal with a cap on his head similar to the caps usually worn by muslims and the accused proceeded in the same direction the deceased had proceeded and after some time he went back to his house and on the next day after he had returned back from work he went to the bar of PW10/Prakash Gaonkar and learnt about the death of the deceased. Firstly, it must be noted that PW9/Kushali Deikar has not seen the deceased and accused together but he saw them after a gap of about 5 minutes. If PW9/Kushali Deikar had seen the accused proceeding in the same direction of the deceased, PW9/Kushali Deikar would have certainly asked the accused as to why he was going in that direction, at that time if the house of accused was in opposite direction as stated by the learned Public Prosecutor. In fact, it was explained by the learned Public Prosecutor that the house of the deceased is in north­east direction at Kargegal while the house of the accused is in north­west direction at a place known as Shepem in relation to the place where dead body was found. PW9/Kushali Deikar stated that he had gone to the canal at 19 6.00 p.m. and he had met the deceased at that time. He had categorically stated that he did not meet Mahadev after about 7.30 p.m. and again insisted that he had met him at 6.00 p.m. and he was confronted with the statement before the Police where he had stated that he had met the deceased at about 7.40 p.m. and the only explanation which PW9/Kushali Deikar could provide is by way of denial that he had stated that he had not met the deceased at 7.40 p.m. PW9/Kushali Deikar could not have certainly met the deceased at 6.00 p.m. for around that time the deceased might have been either on his way to the bar of PW10/Prakash Gaonkar or in the said bar having drinks. He has admitted that his statement was recorded by the Police on 30­3­2000 and no explanation has been given by the prosecution for the delay in recording of his statement. If PW9/Kushali Deikar had gone to the canal to take bath