1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.41 OF 2008 Mohandas Naik, S/o. Yeshwant Naik, 35 years, Occupation Private Service, r/o. H.No.42, Mirabag, Sanvordem, V.P. Sanvordem, Taluka Sanguem-Goa. And presently lodged in Central Jail, Aguada, Goa. …. Appellant V/s S T A T E (P.I. Curchorem Police Station). …. Respondent Mr. S.G. Dessai, Senior Advocate with Mr. Pavithran A.V. and Mr. S. Naik, Advocates for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : S.B. DESHMUKH & F.M. REIS, JJ. Reserved on : 13th JANUARY, 2011 Pronounced on : 5th MAY, 2011 JUDGMENT : (Per Justice F.M. REIS) The challenge in the appeal is to the judgment dated 4/07/2008 passed by the learned Sessions Judge, South Goa, Margao in Sessions Case No.8/2006, whereby the appellant was convicted and held guilty of an offence punishable under Section 302 and Section 506 of the Indian Penal Code and Section 3 r/w Section 25(1B)(a) of the Arms Act, 1959 and was sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/-, in 2 default to undergo rigorous imprisonment for a further period of three months, for an offence punishable under Section 302 and to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default to undergo one month rigorous imprisonment and to undergo simple imprisonment for one year and to pay a fine of Rs.500/-, in default to undergo fifteen days simple imprisonment for an offence under Section 3 r/w Section 25(1B)(a) of the Arms Act, 1959 and all the substantive sentences of imprisonment in respect of all the offences were ordered to run concurrently. 2. Background facts as projected by the prosecution to fasten the guilt of the appellant are as follows; It is the case of the prosecution that on 11/11/2005 at about 23 hours, the appellant went along with Nilu Gaonkar/PW4, Sudesh Naik/PW10, Suryakant @ Bapi Naik/PW11 and deceased Ankush @ Babu Naik to Deugatimol Dudhal, Kalay Sanguem for hunting. It is further their case that on 12/11/2005 at about 4.00 a.m., the appellant fired gun shot at the deceased from close proximity killing the deceased Ankush instantly and, thereafter, the appellant pointed the said gun to Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 and prevented 3 them from helping the deceased. The motive claimed by the prosecution is that there was previous enmity between the appellant and the said deceased. Thereafter, the FIR No.60/2005 under Section 302, 506 of the Indian Penal Code and Section 3 and Section 25(1B)(a) of the Arms Act came to be registered at the Curchorim police station. 3. In support of their case, the respondents examined thirty witnesses in order to establish the guilt of the accused in having committed the said offences. The prosecution case is that there was a meeting between the accused and all the said persons referred to herein above in a bar at Savordem wherein they planned to go for hunting. The said meeting is sought to be established on the basis of the evidence of Ms. Sulaksha Naik/PW2, Sudesh Naik/ PW10 and Suryakant @ Bapi Naik/PW11. It is further the case of the prosecution that after the said meeting, all the said persons proceeded to Chowgule canteen at Costi and bread was purchased by the appellant. The said aspect has been narrated by Satyawan Naik/PW9, Sudesh Naik/PW10 and Surayakant @ Bapi Naik/PW11. Thereafter, all the said persons proceeded to the house of Nilu Gaonkar/PW4, who was reluctant to proceed along with the appellant and the said two persons namely Sudesh 4 Naik/PW10 and Suryakant @ Bapi Naik/PW11 and the deceased, as he was not too well, but further he proceeded to join them and took along with him some curry. The spot at Dudhal, Kalay where all the said persons along with the appellant were supposed to carry on the hunting was shown by the said Nilu Gaonkar/PW4. The said facts have been narrated by Nilu Gaonkar/PW4 as well as Nandini Gaonkar/PW1 and Draupadi Gaonkar/PW3. All the said persons including the said Nilu, said Sudesh, said Suryakant, the appellant and the deceased sat under the cubic tree and ate the bread and the curry, as narrated by Nilu Gaonkar/PW4. Thereafter, Sudesh Naik/PW10 stated that the appellant tied the headlight to the forehead and assembled the dismantled gun and put a red coloured cartridge from his pocket into the gun. The said Sudesh, Suryakant and Nilu sat at a distance of 15 to 20 metres away from the appellant and the said deceased. Thereafter, it is the case of the prosecution that at about 4.00 a.m., there was an altercation between the appellant and the said deceased and, subsequently, the gun shot was heard in the direction where the appellant and the deceased were sitting. This aspect has been narrated by Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Surayakant @ Bapi Naik/PW11. Having heard the said sound, said Sudesh, Nilu and Suryakant rushed to the spot and saw the deceased lying in pain 5 and shouting and the appellant holding the gun pointing towards the said deceased. It is further contended that the appellant threatened the said three persons and asked them if they are not going home and pointed the gun to them. After the said incident, it is the case of the prosecution that the said Nilu Gaonkar returned to his house. The said Sudesh and Suryakant also returned and collected their motorcycles. The appellant, thereafter, returned to the house of Nilu Gaonkar/PW4. Vinod Gaonkar/PW17 and Draupadi Gaonkar/PW3 further stated in their deposition that the appellant made a phone call saying “Havem Babucher Far Mallo to maka gadi gheun shalekaden vorunk yo”. Vinod Gaonkar/PW17 further stated that the appellant had stated that due to a quarrel he had shot the said deceased. It is further the case of the prosecution that the said Sudesh and Suryakant went to the house of Sudhakar and informed him about the incident. The said Sudhakar, who is PW8 thereafter went with them to the police station and a complaint was lodged by the said Sudesh Naik/PW10 at the police station with regard to the said incident. The prosecution has also examined several witnesses to establish that the appellant was seen with the said weapon prior to the incident. The said aspect has been narrated by Nilu Gaonkar/PW4, who also identified the weapon and Meena Ankush Naik/PW6 also identified the said 6 weapon. The gun was also described by Mr. Sudhakar Naik/PW8 and Vinod Naik/PW15. The existence of the gun at the site was sought to be established on the basis of the evidence of Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Surayakant @ Bapi Naik/PW11. The said gun was also spotted after the incident by Nandini Gaonkar/PW1 and Vinod Gaonkar/PW17. The said weapon was recovered pursuant to a recovery under Section 27 of the Indian Evidence Act at the instance of the appellant. The prosecution has also examined Dr. Avinash Pujari/PW24, who had prepared the autopsy report, as well as the ballistics expert Dr. Gourhari Kamila/PW18. After conducting the investigations, the charge sheet came to be filed before the concerned Court and the learned Sessions Judge framed the charge on 19/06/2006. The plea of the accused was recorded on 19/06/2006 and the appellant pleaded not guilty and claimed to be tried. Thereafter the prosecution examined all the said witnesses and produced the evidence on record. The statement of the appellant under Section 313 of the Criminal Procedure Code was recorded and after hearing the prosecution as well as the appellant, the learned Sessions Judge came to the conclusion that the prosecution had established beyond reasonable doubt that the appellant had committed the offences punishable under Section 302, 506 of the 7 IPC and Section 25(1B)(a) of the Arms Act and sentenced the appellant to life imprisonment as well as the payment of fine by the judgment dated 4/07/2008. 4. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 5. Shri S.G. Dessai, the learned Senior Counsel appearing for the appellant has submitted that the learned Sessions Judge has wrongly and illegally appreciated the evidence of Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11, who were not eye witnesses and has wrongly and illegally accepted their evidence as direct evidence of eye witnesses. It is further his submission that this foundation itself has vitiated the impugned judgment and the judgment deserves to be quashed and set aside. The learned Senior Counsel further submitted that the learned Sessions Judge has not at all appreciated the case in the manner that it seeks to implicate the appellant on the basis of circumstantial case and has not enumerated various links in the chain of evidence led by the respondent have not been spelt out to establish the guilt of the appellant in the commission of the crime. The learned Senior Counsel further took us through the 8 evidence on record and pointed out the inconsistencies in the version given by the witnesses and pointed out that the appellant is entitled to a clear acquittal as the respondents have failed to establish the guilt of the appellant beyond reasonable doubt. The learned Senior Counsel further submitted, without prejudice to the earlier contentions, that as per the prosecution story itself there was an altercation between the appellant and the deceased before the alleged gun shot was fired. This aspect itself comes within the exception four to Section 300 of the Indian Penal Code which lays down that culpable homicide is not murder if the offender while being deprived of power of self control by grave and sudden provocation causes the death of the person who gave the provocation. The learned Senior Counsel has taken us through the evidence of Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 to point out that the provocation has been spelt out from the evidence of the said witnesses. The learned Senior Counsel, as such, submitted that even assuming the story put forward by the respondent/prosecution is to be accepted, by no stretch of imagination, the accused can be found guilty of an offence under Section 302 of the Indian Penal Code in view of the exception four to Section 300 of the Indian Penal Code. The learned Senior Counsel further contended that the appellant could 9 not be convicted for murder, but under Section 304 part 1 or part 2 of the Indian Penal Code. The learned Senior Counsel pointed out that this aspect has not at all been considered by the Sessions Judge while passing the impugned judgment. The learned Senior Counsel has minutely and exhaustively taken us through the evidence of the prosecution witnesses Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 and pointed out that the alleged offence would fall under part 2 of Section 304 of the Indian Penal Code and punishable with imprisonment which could extend to ten years or fine or with both. In support of his submissions, the learned Senior Counsel has relied upon the judgment of the Apex Court reported in 1984 (4) SCC 116 in the case of Sharad Birdhi Chand Sarda Vs. State Of Maharashtra and submitted that the prosecution has failed to establish the chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and show that in all human probability the act must have been done by the accused. The learned Senior Counsel has taken us through the evidence of the witnesses of the prosecution and pointed out that the alleged motive sought to be attributed to the appellant about some previous enmity is too remote to say that it can even be a motive and by no stretch of imagination can such alleged motive be the cause of the 10 present alleged incident. In support of the submissions he has relied upon the judgment of the Apex Court reported in 2010 (6) SCC 525 in the case of Niranjan Panja v. State of W.B. The learned Senior Counsel has further submitted that the ownership of the gun has not been established; that the fact that the cartridge was purchased from Purshottam Naik/PW22 has also not been duly established. The learned Senior Counsel has taken us through the evidence of Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 and pointed out that there was no premeditation or any preplan on the part of the appellant to proceed for hunting on the relevant date, as the evidence discloses that said plan to go for hunting was agreed upon when all of them met casually at the bar. The learned Senior Counsel has also submitted that the recovery of the weapon under Section 27 of the Evidence Act has not been duly established, and that the alleged extra judicial confessions made by Draupadi Gaonkar/PW3 and Vinod Gaonkar/PW17 have not been proved. The learned Senior Counsel has also submitted that the offence under Section 506 of the Indian Penal Code has also not been established as the only statement made by Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 is that the appellant had pointed the gun towards them and had asked them to go home, which cannot be construed to be 11 any threat. The learned Counsel also pointed out that the offences under Section 3 r/w Section 25(1B)(a) have also not been duly established. The learned Senior Counsel has taken us through the evidence on record and pointed out that the conduct of the appellant of himself going to the police station and surrendering before the police is also a circumstance to be considered to absolve him from commission of the offence. The learned Senior Counsel pointed out that the very fact that the appellant and the deceased were together from 11.00 p.m. on 11/11/2005 up to 4.00 a.m. on 12/11/2005 itself discloses that the appellant did not have any plans or intentions to kill the deceased. In support of his submissions, the learned Senior Counsel has relied upon the judgment of the Apex Court in 2003(9) SCC 67 in the case of Anil Kumar Singh v. State of Bihar, as well as the judgment of this Court reported in 2007 (2) AIR Bom. R 29 in the case of Sarvanand @ Soiru Gaonkar Vs. State of Goa and 2006 ALL MR (Cri) N.O.C. 25 in the case of Noor Mohamed Sher Ali Ansari @ Ramu Ramraj Varma @ Avinash Maikulal Varma Vs. State of Maharashtra and 2004 (11) SCC 282 in the case of Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of A.P. The learned Senior Counsel, as such, pointed out that the learned Sessions Judge has not at all appreciated the evidence on record and failed to notice 12 that the prosecution had failed to discharge the burden caste on them to establish beyond reasonable doubt that the appellant had committed the offence punishable under Section 302 of the Indian Penal Code. The learned Senior Counsel, as such, pleaded that the impugned judgment and conviction be quashed and set aside. 6. On the other hand, Shri C.A. Ferriera, the learned Public Prosecutor appearing for the State has supported the impugned judgment. The learned Counsel has taken us through the sequence of the events and pointed out that the prosecution has established beyond reasonable doubt that there was a history of previous enmity between the appellant and the deceased as well as the fact that the appellant had collected his gun and gone along with the accused and the said persons for hunting. The learned Public Prosecutor had further submitted that the case of the appellant is of total denial and, as such, the evidence of Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 is to be considered in such background and the same conclusively establishes that the claim of the appellant of his absence at the site is to be disbelieved. The learned Public Prosecutor further submitted that after hearing the gun shot, the witnesses of the prosecution Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 13 had clearly stated that they had seen the appellant pointing the gun at the deceased when they went to the spot which establishes that the appellant had committed an offence of murder. The learned Prosecutor has disputed the contention of the learned Senior Counsel that there was any defect for the recovery of the weapon under Section 27 of the Evidence Act. The learned Public Prosecutor pointed out that from the evidence on record that the fact that the weapon was with the appellant has been established through the witnesses namely Nilu Gaonkar/PW4, Meena Ankush Naik/PW6 and Sudhakat Naik/PW8, who have specifically described the gun. The learned Public Prosecutor further pointed out that the fact that the gun was with the appellant at the time of the incident has been established through the witnesses such as Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11. The contention of the appellant that the ownership of the gun has not been established has been disputed by the learned Public Prosecutor as according to him the fundamental issue that the weapon was in possession of the appellant at the time of the commission of the offence has been duly established and in such an event the source or the origin from where the appellant had bought the gun or borrowed the gun are not at all relevant. The contentions of the learned Senior Counsel appearing for the 14 appellant that the recovery under Section 27 of the Evidence Act was vitiated on account of non compliance with sub-section 4 of Section 100 of the Criminal Procedure Code has also been disputed by the learned Public Prosecutor by submitting that it is not mandatory to have panch witness only from the locality in as much as the new code of criminal procedure permits any inhabitant of any locality to be called as panch witness and non inclusion of any local inhabitant would not vitiate such recovery. The learned Public Prosecutor further pointed out that the prosecution had duly established the motive by examining the witnesses namely Smt. Shali Naik/PW7. The learned Public Prosecutor further pointed out that even assuming the motive has not been established the same does not render the guilt of the accused untrustworthy or unreliable as in some case the perpetrator of the crime himself knows what promoted him to do a certain course of action leading to the commission of the crime. In support of his submissions, he has relied upon the judgment of the Apex Court reported in AIR 1994 SC 2420 in the case of Suresh Chandra Behri V/s. State of Bihar. The learned Public Prosecution further pointed out that the appellant has set up a case of total denial right from the meeting at the bar at Mirabag, up to including visiting Chowgule canteen and subsequently going for hunting and being with the victim with the 15 gun pointing towards him and any missing link, in any circumstances to establish the guilt of the appellant was proved by the blunt and outright denial of everything which was otherwise an opportunity for the appellant to explain on being examined under Section 313 of the Criminal Procedure Code. In support of the submissions he relied upon the judgment reported in 2000 (5) SCC 197 in the case of Joseph V/s. State of Kerala. The learned Public Prosecutor has further pointed out that the prosecution has also established the ingredients under Section 506 of the Indian Penal Code as they had established the threats put forward by the appellant to Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 who were the cohunters. The learned Public Prosecutor has also pointed out that the evidence adduced by the prosecution conclusively establishes that the accused was last seen with the appellant which is a relevant circumstance to establish that the accused had commissioned the crime. The learned Public Prosecutor, as such, pointed out that the prosecution has proved the presence of the appellant before and soon after the incident are circumstances which reveal that the appellant alone and no other could have committed the murder, specially given the span of time the appellant was last seen in the company of the deceased as the shot was heard and the cohunters Nilu Gaonkar/PW4, Sudesh 16 Naik/PW10 and Suryakant @ Bapi Naik/PW11 rushed to the spot who were barely 15 metres away and saw the appellant with the gun in his hand pointed towards the victim lying on the ground. He has further pointed out that the extra judicial confessions and the motive of the commissioning of the crime has also been pointed out and submitted that considering that the prosecution has established from the material on record beyond reasonable doubt that the appellant had commissioned the offence, there is no infirmity committed by the learned Sessions Judge in convicting the accused for the offence punishable under Section 302, 506 and Section 3 r/w Section (1B)(a) of the Arms Act. The learned Public Prosecutor, as such, submitted that there is no case made out for interference in the present appeal. 7. Having heard the learned Counsel and with their assistance having perused minutely the evidence on record, we find that on examining the evidence of Nilu Gaonkar/PW4, Sudesh Naik/P10 and Suryakant @ Bapi Naik/PW11, the facts conclusively established that the accused was present at the seen of the offence on the relevant date. Though the case of the appellant is that of total denial of his presence on all the sites as sought to be established by the prosecution, the evidence adduced by the 17 prosecution proves otherwise. Sudesh Naik/PW10 in his deposition has stated that on 11/11/2005 at around 8.00 p.m. he visited Sarita Bar at Mirabag, Sanvordem and at that time, the appellant Mohandas and one Babu @ Ankush and other local people were in the said bar. The said Ankush is his maternal uncle. The appellant and the said Ankush were having liquor at the bar. Thereafter Surayakant had entered the bar a little before him. He further stated that he sat along with Babi on the table which was close to the table on which the appellant and Ankush were sitting. He further stated that around 8.30 p.m. the appellant and Ankush requested them to accompany them to go for hunting at Dudhal, Kalay. They agreed and, accordingly, left the bar at about 9.30 p.m. Ankush had purchased half bottle of Royal Stag whisky. Ankush and the said appellant left on the vespa scooter belonging to Ankush and they left to get the gun from the house of the appellant. They also asked them to proceed to Dudhal Kalay and accordingly he along with Babu proceeded on a pulsor which he had brought from his friend. When they reached Chowgule canteen they saw the appellant and Ankush there and hence they stopped. They purchased bread from the said canteen and he saw dismantled gun with the said appellant. Thereafter they went to the house of Nilu Gaonkar at the request of the appellant as the said 18 Nilu was his friend. They reached the house of said Nilu and thereafter he also accompanied them to go for hunting. These facts have also been corroborated by Suryakant @ Bapi Naik/PW11 . In the Cross examination of the said two witnesses there is nothing which was brought on record to establish that the said version given by the said witnesses is to be disbelieved. From the foregoing events, what is evident is that the plan to go for hunting was not premeditated. The appellant proceeded to the spot on the vespa scooter belonging to the deceased. The appellant along with the cohunters decided to proceed for hunting at that spur of moment, as they casually met at the said Sarita bar. The version of Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 stands further corroborated about the subsequent events by