IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL CRIMINAL CRIMINAL APPEAL NOS.48 AND 51 OF 2001 APPEAL NOS.48 AND 51 OF 2001 APPEAL NOS.48 AND 51 OF 2001 CRIMINAL APPEAL NO.48 OF 2001 CRIMINAL APPEAL NO.48 OF 2001 CRIMINAL APPEAL NO.48 OF 2001 Moses Fernandes, R/o H. No.147, Ravlo Band, St. Cruz, Ilhas, Goa, presently lodged in the Central Jail, Aguada. ... Appellant. versus State through Public Prosecutor. ... Respondent. Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Samant, Advocate for the Appellant. Mr. S. N. Sardessai, Public Prosecutor for the State. CRIMINAL APPEAL NO.51 OF 2001 CRIMINAL APPEAL NO.51 OF 2001 CRIMINAL APPEAL NO.51 OF 2001 Shri Gopal Sharma, West Bengal, Calcutta, preesently in custody at Central Jail, Aguada. ... Appellant. versus State through Public Prosecutor. ... Respondent. Mr. S. N.Joshi, Advocate under Legal Aid Scheme. Mr. S. N. Sardessai, Public Prosecutor for the State. - 2 - CORAM: S. J. VAZIFDAR & P. V. HARDAS, J. DATED: 30TH APRIL, 2003. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT(PER P. V. HARDAS, J.) The Appellants/Original Accused Nos.1 and 2, have filed the present Appeal challenging their conviction for an offence punishable under Sections 302, 394 and 449 of the Indian Penal Code and sentenced to suffer imprisonment for life, Rigorous Imprisonment for 5 years and fine of Rs.5000/-, in default Rigorous Imprisonment for 1 year and Rigorous Imprisonment for 5 years respectively. in Sessions Case No.43/98, passed by the Additional Sessions Judge at Panaji, by Judgment dated 23rd July, 2001. 2. The allegations against the Appellants/Original Accused Nos.1 and 2 is that on 13th April, 1998, between 8.00 a.m. to 11.30 a.m. at Glenvilla, Kharebhat, Chorao, the Appellants along with two other Accused who are said to be absconding, entered the house of Brazinho Pereira and Celina Pereira, an aged couple, killed Brazinho Pereira by stabbing him and stabbed and strangulated Celina Pereira, ransacked their house snd took away gold ornaments, VCR etc.. 3. The facts as are necessary for the decision of the Appeal are set out hereunder:- - 3 - In 1998, P.W.29,P.S.I. Anandu Naik, was attached to the Goa Police Station as a Police Sub Inspector. On 13th April, 1998, at about 7.40 p.m., he received a telephone call from P.W.22, Jane Sebastina Pereira, who had informed him about the murder of her father-in-law Brazinho Pereira and mother-in-law Celina Pereira. On receipt of the information, P.W.29, P.S.I. Anandu Naik, immediately rushed to the scene of the offence and reached at about 8.00 p.m. On entering the house, he noticed two dead bodies in the kitchen in a pool of blood. P.W.22, Jane Sebastiana Pereira, identified the bodies as that of Brazinho Pereira and Celina Pereira, her in laws. P.W.29, P.S.I. Anandu Naik, then recorded the complaint of P.W.22, Jane Sebastiana Pereira, at Exh.PW22/A. On the basis of the complaint, P.W.29, P.S.I. Anandu Naik, registered an offence vide Crime No. 14/98 under Sections 449, 302, 394 of the Indian Penal Code. After registration of the offence, P.W.29, P.S.I. Anandu Naik, returned to the scene of the offence and at about 10.30 p.m. conducted the inquest panchanama of the dead bodies. The inquest panchanama of Brazinho Pereira is at Exh. 10 and the inquest panchanama of Celina Pereira is at Exh.11. The inquest panchanama was conducted in the presence of P.W.1, Premanand P. Mahambre and another panch. The dead bodies were then referred to the Goa Medical College, Bambolim for post mortem. The post mortem on - 4 - the bodies were performed by P.W.15, Dr. Silvano Sapeco Dias. The post mortem report in respect of Brazinho Pereira is at Exh. PW15/A. The cause of death was due to haemorrhagic shock as a result of cumulative injuries 1 to 6 caused by impact of sharp pointed and cutting penetrating weapon. P.W.15, Dr. Silvano Sapeco Dias, noticed the following injuries on the dead body of Brazinho Pereira.:- 1. Stabbed penetrating injury of 1 x 3 4 cms was seen on right upper chest and was placed obliquely 6 and half cms above right nipple from lower end of the injury. Both angles are acute with tailing downwards and inwards for half centimeter. On internal examination there was a fusion of blood for right pectoral muscles and it was directed from above downwards and inwards between 4th and 5th interpostal spaces and pierced the right inner boarder of lip for one and half centimeters thus having a total depth of 7 and half cms. 2. Stabbed penetrating injury of 1 x 3/4 cms was seen on eppigestrium at front of abdomen just to right of middle line, 9 cms above naval, directed obluquely outwards with acute angles bilaterally with half cms ntailing upwards. On internal examination, there was a fusion of blood within the right rectii muscles and had a fusion of blood and had penetrating into the - 5 - peritorium at 3 sides and had pierced the mizentri and had also pierced the loop of small intestines at jejunum 14 cms from duodinal cap at two sites at a distance of 2 cms besides the other. It was directed from front to back and inwards with a total depth of 8 3/4 cms. 3. Stabbed penetrating injury of 1/4 cms x 33/4 cms was seen on the left side of epigestrium at front of abdomen to the left of mid line placed obliquely. The lower end was 5 cms from naval. Both angles are acute and there was tailing for half cms upwards and outwards. The distance between injuries no.2 and 3 was 8 cms a part from each other. On internal examinateion, there was a fusion for left rectii muscles and head pebnetrated the peritorium at two sites and head pierced the misentrory and head also pierced the mizentory. Blood vessels at greater curvateure of the stomach, the pancreas blend at its distant third and the posterior peritorium had rectoperinotim blood clots. It was directed from front to back and left and was directed inwards with a total depth of 8/ 1/4 cms. 4. Stabbed penetrating injury of 1/4 x 3/4 cms was seen on right side of abdomen with 1 cm tailing inwards and placed transversely. The inner end was 15 cms from naval and was perpendicular to naval. This injury has acute angles bilaterally. On internal examination, there was a fusion of blood within the right flank of abdominal muscles, peritonial fat and head pierced the peritonium - 6 - and head cut the dizentory at 2 places and had punctured the seacum. It was directed from left to right and inwards with a total depth of 8 and half cms. 5. Stabbed penetrating injury of 1 1/4 x 3/4 cms was seen on right lower front of abdomen placed obliquely with half cms tailing inwards. The inner end was 11 cms from naval. The distance between injuries no.4 and 5 was 4 and half cms. On internal examination, it was directed from front to back and inwards and head pierced the misentric blood vessels at 2 places and head pierced the small intestines at Illum 11 cms from seacum once, thus having a t4otal depth of 7 /3/4 cms. 6. Stabbed penetrating injury of 1 1/4 x 3 x 4 cms was seen on left loin and was placed obliquely with tailing of half cms outwards with acute angles bilaterally. The lower end was 8 cms above the illiac crust. On internal examination, there was a fusion of blood within abdominal rectii muscles and abdominal fat. It had pierced the peritonium and head cut the renal (kidney) blood vessels and urethar just below the lower pole of kidney. It was directed from left to right and inwards and a little downwards with a d/ total depth of 8 1/4 cms. 7. Abrasion of 3 x 1 cm with contusion of 4 x 2 cms was seen on left shoulder. 8. Abrasional laceration of 2 x 2 x 1/4 cms was seen on right chin front and upper force of right lower leg. - 7 - P.W.15, Dr. Silvano Sapeco Dias, also conducted the post mortem on the dead body of Mrs. Celina Pereira. The post mortem report is at Exh.PW15/B. P.W.15, Dr. Silvano Sapeco Dias, noticed the following injuries on Mrs.Celina Pereira:- 1. Stabbed penetrating injury of 1 1/4 x 1/2 cms on the right lowest chrest front, placed obliquely at the right outer aspect of abdomen 20 cms below axilary fold. It was 15 cms from right nipple. On internal examination there was a fusion of blood underneath the right flank of abdominal muscles. It had pierced the abdominal cavity’s peritoneal sac and had penetrated the right lobe of lever for 2 cms. It was directed from right to left and inwards having a total depth of 8 1/4 cms. Both angles of the iujury were acute. 2. Stabbed penetrating injury of 1 1/4 cm x 1/2 cm with acute angles was seen at right loin, placed obliquely with 1/2 cms tailing outwards. Its lower end was 10 cms above illiac crust. It was directed from right to left, inwards upto the right renal blood vessels, uretha and psoas muscle. It had a total depth of 8 and half cms. 3. Stabbed penetrating injury of 1 1/4 x half cms with acute angles was seen at left loin, placed obliquely with 1 cm tailing upwards and outwards. Its lower end was 6 cms above illiac crust. It was directed from left to right and inwards upto the left - 8 - renal blood vessels, uretha and psoas muscle. It had a total depth of 8 3/4 cms. 4. Incides wound of 1 1/4 x 1/2 cms on left lower chest front along 8th and 9th intercoastal places at mid clavicular line. Its upper end was 12 cms below left nipple and lower end was 16 cms from naval. 5. Vertical defence incised wound of 5 cms parameter into 1 x 1/2 cm was seen along left thumb thumb’s pulp and distal and proximal phalangalial aspects directed inwards. 6. Abrasion 3 x 1 cm on mid nose front. 7. Abrasion 3 x 2 cm on left cheek. 8. Abrasion with wounds of 3 x 1 cm on right side of upper lip. 9. Abrasion with bruise with 1/8th x 1/cm on left side of chin. 10. Abrasion with bruise of 1 x 1 cm on left chin angle of face. 11. Abrasion with bruise of 1 x 1/2 cm on right mid outer aspect of neck. 12. Abrasion 1 x 1/2 cm on right ear lobule. 13. Abrasion 3 x 2 cms on right outer aspect of elbow. 4. The cause of death was due to manual strangulation which was necessarily fatal because of the injuries 1 to 3 which by themselves were fatal in the - 9 - ordinary course of nature. The blood group of Brazinho Pereira could not be determined while the blood group of Celina Pereira was "AB" positive. The certificates regarding the blood group of the deceased is at Exh. PW15/C and PW15/D. 5. P.W.29, P.S.I. Anandu Naik, recorded the scene of the offence panchanama which is at Exh.PW6/A. The scene of the offence panchanama was recorded in the presence of P.W.6, Pandurang Bandodkar, and another panch. At the time of recording of the scene of offence panchanama apart from the panch witnesses, P.W.23, R. K. Remedios, a photographer and P.W.24, Manohar D. Joshi,, Scientific Assistant were also present. P.W.24, Manohar D. Joshi, examined the glasses, wall clock and took finger prints from the same. From the scene of offence, a pair of chappal, one gold chain with cross(M.O.4), one chappal of left leg(M.O.5) and one chappal(M.O.6) of right leg, one coin of two rupees(M.O.8), one ferry boat ticket(M.O.9), a string type clock(M.O.10), two glasses(M.O.14) and a wall clock(M.O.15) were attached. 6. On the next day, the clothes of the deceased(M.O.12) were attached vide attachment panchanama at Exh.PW3/A in the presence of P.W.3, Mohan K. Korgaonkar. The sketch at Exh.PW15/A was drawn by - 10 - P.W,25, R. C. Hegde, a Junior Engineer in the P.W.D. Thereafter, on 17th April, 1998, P.W.29, P.S.I. Anandu Naik, handed over the investigation to P.W.30, P.I. Mohan Karekar. Original Accused No.2, Gopal Sharma, came to be arrested on 1st September, 1998 by P.W.30, P.I. Mohan Karekar at Calcutta. As per the evidence of P.W.29, P.S.I. Anandu Naik, during the interrogation of Accused No.2, Gopal Sharma, the name of Accused No.1, Moses Fernandes, transpired. Accused No.1, Moses Fernandes, was ultimately arrested from the house of his mother-in-law where he was found to be hiding in a cupboard. 7. During investigation, Accused No.2, Gopal Sharma, is alleged to have made a statement that he would show the place where he had kept the Video Cassette Recorder. The recovery was made in the presence of P.W.3, Mohan K. Korgaonkar. The recovery panchanama is at Exh.PW3/A. The VCR was ultimately found in the house belonging to P.W.27, K. Sunder, who is the father of the other absconding Accused. The said VCR was attached under a panchanama and the VCR is M.O.23. Certain gold ornaments were attached by one Narayan Shetty. These ornaments were weighed in the presence of a goldsmith Ramesh Archarya. The ornaments attached were 8 gold bangles(M.O.24) and 2 bangles with rose petal(M.O.25). - 11 - 8. P.W.30, P.I. Mohan Karekar, visited the scene of offence and in the presence of the panchas attached a cigarette butt.and took clippings of blood stains from the bedroom of the house of the deceased. The proceedings were recorded in the panchanama at Exh.PW7/A in the presence of P.W.7, Narayan G. Kerkar. P.W.30, P.I. Mohan Karekar, also attached the Provident Fund record of Accused No.2, Gopal Sharma, at Exh.PW29/B. P.W.30, P.I. Mohan Karekar, attached the register of Udipi Hotel where Accused No.2, Gopal Sharma, was residing earlier. The said register(M.O.26) was attached in the presence of P.W.5, Romeo Dias. On 1st September, 1998, Accused No.2, Gopal Sharma, came to be arrested by P.W.30, P.I. Mohan Karekar, at Calcutta. The Original Accused No.1, Moses Fernandes, came to be arrested on 8th September, 1998 from the house of his mother-in-law. The Accused No.1, Moses Fernandes, is alleged to have made a disclosure statement in respect of two scooters which is at Exh.PW2/A in the presence of P.W.2, Kanta P. Parvatkar. The Accused No.1, Moses Fernandes is also alleged to have made a disclosure statement at Exh.PW2/B that he would point out the gold ornaments and accordingly, the wife of the Accused No.1, Moses Fernandes had produced four gold bangles(M.O.19), one gold chain(M.O.20), three pairs of earrings(M.O.22) and two gold finger rings(M.O.21. The Accused No.1, - 12 - Moses Fernandes, is also alleged to have made a disclosure statement at Exh.PW4/A in the presence of P.W.4, Pandurang de Sa volunteering to discover the weapon and the clothes. Accordingly, knife(M.O.16) was found in the rafter of the ceiling of the house and knife(M.O.16A) was found wrapped in the clothes namely bushirt(M.O.16) and shirt(M.O.16D). The muddemal articles were sent to the Chemical Analyser with the forwarding letter Exh.PW30/E. 9. According to prosecution, specimen finger impressions of Accused No.2, Gopal Sharma, were obtained during the investigation and the specimen finger impressions of Accused No.2, Gopal Sharma, were examined by the Finger Print Expert, P.W.28, G. M. Patil, who by his report at Exh.PW24/D opined that the finger prints developed on the wall clock and glasses are identical with the left thumb right index and finger impression of Accused No.2, Gopal Sharma. The reasonings for the finding is at Exh.PW26/C and the enlarged photographs are at Exh.PW28/C colly. The negatives of the photographs is at Exh.PW28/C colly. After completion of the investigation, a charge-sheet against the Appellants came to be filed. 10. The learned Sessions Judge, Panaji, vide Exh.4 - 13 - framed a charge against the Appellants for an offence punishable under Sections 302, 449, 394 r/w 34 of the Indian Penal Code. The Appellants/Accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 30 witnesses. 11. The evidence against the Appellants consists of circumstantial evidence. The learned Trial Court in para 12 of the Judgment has stated that the prosecution case rests on circumstantial evidence and the circumstances are (1) Accused Nos.1 and 2, Moses Fernandes and Gopal Sharma, were working in the restaurant of P.W.21, Gasper Moraes and they were acquainted with the deceased Brazinho Pereira and Celina Pereira. (2) Recovery of the scooters, knife and gold ornaments at the instance of Accused No.1, Moses Fernandes. (3) Recovery of VCR at the instance of Accused No.2, Gopal Sharma and (4) Finger print of the Accused found on the glass at the scene of the offence. 12. In respect of the first circumstance, the learned Trial Court found that the prosecution had been able to prove the first circumstance namely that the Appellants were acquainted with the deceased. In respect of the second circumstance namely recovery of the scooters, the learned Trial Court found that the recovery of the scooters cannot be linked with the - 14 - commission of the crime. Moreover, the learned Trial Court held that it could not be said that the scooters were recovered at the instance of Accused No.1, Moses Fernandes, since they were found parked in the usual place meant for parking. The learned Trial Court in respect of the circumstance No.2 namely recovery of the two knives and the clothes has held that the prosecution has been able to prove the recovery of knives and clothes attached vide panchanama Exh.PW4/A. Again, in respect of circumstance No.2 namely recovery of the gold ornaments at the instance of Accused No.1, Moses Fernandes, the learned Trial Court has accepted the recoveries and the identification thereof by P.W.22, Jane Sebastiana Pereira, that the ornaments belonged to the deceased. In respect of circumstance No.3 namely recovery of VCR at the instance of Accused No.2, Gopal Sharma, the learned Trial Court relying on the evidence of P.W.22, Jane Sebastiana Pereira, P.W.23, R. K. Remedios and P.W.27, K. Sunder, has held that the prosecution has proved the recovery of the VCR and the identification thereof as belonging to the deceased. In respect of the circumstance No.4 namely the finding of the finger print of Accused No.2, Gopal Sharma, on the glass at the scene of offence, the learned Trial Court has held the circumstance as proved against Accused No.2, Gopal Sharma. The learned Trial Court, therefore, came to the conclusion that the prosecution had been - 15 - able to establish and prove the charges against the Appellants and accordingly convicted and sentenced them as aforestated. 13. Mr. S. D. Lotlikar, learned Senior Counsel appearing for Original Accused No.1, Moses Fernandes, has urged before us that the prosecution, in so far as Accused Bo.1, Moses Fernandes, is concerned has not been able to establish the second circumstance, namely the recovery of the ornaments, the knives and clothes at the instance of the Appellant No.1. The learned Senior Counsel appearing for the Original Accused No.1, Moses Fernandes, has further urged that identification of the ornaments has not been proved by the prosecution as the ornaments of similar design are available in the market and the Police had not mixed these said ornaments with other similar ornaments and, therefore, the identification by P.W.20, Joyce Moraes, and P.W.22, Jane Sebastiana Pereira has not been proved. Thus, according to the learned Senior Counsel appearing for Accused No.1, Moses Fernandes, the Accused No.1, Moses Fernandes, is entitled to be acquitted. 14. Mr. S. N. Joshi, learned Counsel appearing for Accused No.2, Gopal Sharma, has submitted that the VCR alleged to have been attached on the basis of the - 16 - information given by the Accused No.2, Gopal Sharma, has not been established to be the VCR which was stolen. He has submitted that in the FIR, no description of the VCR is given and also the witnesses do not claim to have identified the VCR on the basis of any particular identifying mark. He has further submited that there is no evidence that specimen finger impressions of Accused No.2, Gopal Sharma, had been taken and, therefore, the finding of the Finger Print Expert that the glass which was found at the scene of the offence which bore the finger impression of Accused No.2, Gopal Sharma, cannot be relied upon. 15. Mr. S. D. Lotlikar, learned Senior Counsel appearing for the Accused No.1, Moses Fernandes,, has placed reliance on a Division Bench Judgment of this Court in Pandurang Mohite Pandurang Mohite Pandurang Mohite v. State of Goa State of Goa State of Goa reported in 2002 All MR(Cri.) 1733. The reliance is placed at para 65 of the report. 16. Mr. S. N. Sardessai, learned Public Prosecutor appearing for the State has urged that the circumstances appearing against the Appellants has been proved by the prosecution and, therefore, according to him, the conviction and sentence can be sustained. 17. Mr. S. N. Sardessai, learned Public - 17 - Prosecutor appearing for the State has also maintained that the circumstances as are enumerated by the learned Trial Court in para 12 of the Judgment are the only circumstances on which the prosecution has placed reliance. We, therefore, propose to examine the evidence to determine whether the prosecution has proved all the circumstances and whether the circumstances so proved unerringly point to the guilt of the Accused and exclude every hypothesis of the innocence of the Accused. 18. In respect of the first circumstance namely that the Accused Nos.1 and 2 were acquainted with deceased Brazinho and Celina Pereira, the evidence material for proving this circumstance is the evidence of P.W.21, Gasper Moraes, P.W.20, Joyce Moraes and P.W.22, Jane Sebastiana Pereira. 19. P.W.22, Jane Sebastiana Pereira, states that she was married to Glen Pereira on 3rd January, 1998. P.W.20, Joyce Moraes, is her sister and P.W.21, Gasper Moraes, is the husband of P.W.20, Joyce Moraes. P.W.21, Gasper Moraes, runs a restaurant where both the Accused were employed as cooks. The evidence of P.W.22, Jane Sebastiana Pereira suggests that Accused No.1, Moses Fernandes, was present on the day of her engagement and Accused No.2, Gopal Sharma was present in the car when - 18 - P.W.22, Jane Sebastiana Pereira along with her in laws had gone to the Baga Beach for an outing. The evidence also suggests that at her wedding, Accused Nos.1 and 2, Moses Fernandes and Gopal Sharma, were present. She states that after her marriage, she started residing with her in laws in the house at Chorao. Her husband had gone to Kuwait somewhere at the end of February, 1998. She was working in the Global Trust Bank at the Panaji Branch. On 30th April, 1998, at about 6.20 p.m., her sister, P.W.20, Joyce Moraes informed her on telephone that P.W.20, Joyce Moraes, had received a call from Chorao informing her that the house of the deceased was in darkness and the neighbours were suspecting something. P.W.22, Jane Sebastiana Pereira, therefore, immediately went to the beauty parlour of P.W.20, Joyce Moraes, which is situated in the Cardozo Building above the restaurant runned by P.W.21, Gasper Moraes. After crossing the ferry at Ribandar, they reached the house of the deceased and saw that the house was in darkness as no lines had been switched on. They went upto the varandah gate and found that the varandah gate which is otherwise variably locked had no lock. They opened the gate and went inside while the people who had gathered remained outside. On opening the door, they found a big pool of blood on the floor and apprehending that the assailants may be inside the house, both of them ran out of the house. P.W.20, Joyce Moraes, and P.W.22, Jane - 19 - Sebastiana Pereira, thereafter went to the house of a neighbour and informed the Police. One policeman had come to the scene of the offence and P.W.20, Joyce Moraes, and P.W.22, Jane