1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NOS. 70 OF 2003 AND 6 OF 2004. CRIMINAL APPEAL NO. 70 OF 2003 Wilson Agnel Fernandes, r/o H.No. Not known, Bhatiwada, Nerul,Bardez Goa, presently in Custody at Central Jail, Aguada Goa. ... Appellant V e r s u s STATE, through the Public Prosecutor. ... Respondent Mr. P. P. Singh, Advocate for the appellant. Mr. C. A. Ferreira, Public Prosecutor for the respondent. WITH CRIMINAL APPEAL NO. 6 OF 2004 Shri Suresh Krishna Nayar, Kekdal, Ambika Nagar, H.No. Nil, Dandeli, Karwar, Karnataka. .... Appellant V e r s u s STATE, through the Public Prosecutor. .... Respondent Mr. Nitin Sardessai, Advocate for the appellant. Mr. C.A. Ferreira, Public Prosecutor for the respondent. CORAM : B.P.DHARMADHIKARI & U.D.SALVI, JJ. Date of reserving 2 the Judgment : 17 th April, 2009 Date of pronouncing the Judgment: 10 th July,2009 JUDGMENT (PER U. D. SALVI,J.) These are the appeals challenging the judgment and order passed by the learned Sessions Judge, South Goa, Margao convicting the appellants/ Accused No.1 Suresh Nayar , Accused No.2 Wilson Fernandes for commission of the offences punishable under Sections 302 and 307 read with Section 34 of Indian Penal Code, 1860 in Sessions Case No. 14/1998 and further sentencing them on each count as under on 12.09.2003 : (i) for life imprisonment and payment of fine of Rs.5000/- each and in default thereof to undergo S.I. for six months on the first count i.e., for the offence punishable under Section 302 read with Section 34 of Indian Penal Code; (ii) and for three months rigorous imprisonment and payment of fine of Rs. 3000/- each and in default thereof to undergo S.I. for three months on the second count i.e., for an offence punishable under Section 307 read with Section 34 of Indian Penal Code. 2. According to the prosecution, one Vinit Bindal, 3 owner of super market situate at KTC Bus Stand at Panaji, and his driver Maruti Jadhav proceeding to Belgaum via Anmod Ghat in Tata Sumo vehicle bearing registration NO. GA-01-C-3976 in the morning of 29.3.1998 were waylaid and assaulted near Goa – Karnataka border in Anmod Ghat by the present appellants/accused and their accomplice one Videsh Malwankar with sharp edged weapons such as knives; and as a result of such assault the said Vinit Bindal was fatally wounded and robbed off his personal belongings namely ornaments, wrist watch and cash amount, and his body was thrown in a ravine and, thereafter, efforts were made to wipe out the evidence of the offence committed; and the driver of the jeep Maruti Jadhav, believing him to be dead, was left at the spot. Providentially, according to the prosecution, the driver of the jeep Maruti Jadhav managed to crawl out of the said Tata Sumo jeep for seeking help of the passers by, and was eventually brought to Morlem Check Post in the same jeep by three persons, namely Shrikant Dessai, his friend Dnyaneshwar Sawant and Vilas Varade; and on the way to Morlem Check Post the injured driver Maruti Jadhav had revealed such material facts to his savers Mr. Shrikant Dessai and his two friends; and thereafter the facts were reported to Head Constable Mhapsekar at Morlem Check Post and the 4 injured Maruti Jadhav was firstly removed to I.D. Hospital at Ponda and thereafter to Goa Medical College at Bambolim for medical treatment. 3. It is the prosecution case that Head Constable Mhapsekar reported the matter to PSI Manjunath Dessai at Colem Police Station, whereupon PSI Manjunath Dessai accompanied by Constable Chandrakant proceeded to the spot and had noticed Head Constable Naik of Ramnagar Police Out Post taking measurements at the spot; and this lead him to assume that the matter was being looked into by Ramnagar Police Out Post lying within the limits of Ganeshpuri Police Station, Karnataka, and as such on returning to Collem Police Station, PSI Manjunath Dessai flashed a wireless message to Ganeshpuri Police Station requesting for further action in the matter. On the same day, the prosecution revealed, the brother in law of the deceased and others went in search of the deceased Vinit Bindal but could not succeed in their mission due to darkness; and on the next day on resumption of the search in the morning could locate the dead body of the Vinit Bindal in ravine and had thereafter reported the said facts to Collem Police Station at about 1.00 p.m., on 30.3.1998. 5 4. At this point of time, the prosecution reveals, a complaint leading to the present case came to be registered by ASI Raut Dessai at Crime No. 18/1998 dated 30.3.1998 at Collem Police Station against the appellants/accused no.1 Suresh Nayar and two others. 5. The prosecution case further unfolds the facts that after having set the law in motion with the registration of the crime at the crime No. 18/1998 under Section 302 read with Section 34 against the appellant/accused no.1 Suresh Nayar and two others on 30.3.98 at Collem Police Station, the police visited the spot of offence and made observations, drew the sketch of the spot of offence and collected therefrom blood soaked soil, plain soil, blue colour shirt, three buttons, visiting cards, black colour knife handle, yellow pen and spanner. Body of the deceased Vinit Bindal with several injuries was found lying in the ravine at about 84 feet away from the Goa – Karnataka high way. Inquest over the body of the deceased was held at the spot. Tyre marks of the sumo vehicle were also noticed. 6. In the meantime PSI Manjunath Dessai had made 6 entry in the station diary at about 9.15 a.m., on 29.3.98 at Collem Police Station regarding the facts reported to him by HC Chandrakant Gawas, which reflected the name of the appellant/accused no.1 Suresh Nayar , driver of sumo No. GA-01-C-6695 as an assailant of the injured victim Maruti Jadhav, driver of the sumo jeep GA-01-C-3516. Search for the assailants and the jeep involved in the crime was commenced. This led the police to sumo jeep used in the crime and its owner Mr. Petricio D’Souza who was running a lodge under name and style of Lavista Lodge at Panaji. 7. Statements of Mr. Petricio D’Souza, injured victim Maruti Jadhav and others were recorded. Post mortem examination of the body of the deceased Vinit Bindal was performed. The clothes of the deceased Vinit Bindal, injured victim Maruti Jadhav were duly seized. Blood scrappings and blood soaked seat covers were seized from Tata sumo vehicle registration NO. GA-01-C-6695 used in crime and the vehicle was attached. Blade of knife stained with blood were recovered from the Sumo jeep No. GA-01-C-3976 driven by the injured victim Maruti Jadhav. This vehicle was also attached. 7 8. Search for the culprits initially led to arrest of the appellant/accused no.1 Suresh Nayar on 13.4.98. According to the prosecution, 15 days old injury was found on the left knee of the accused no.1 Suresh Nayar ; and in course of his interrogation the appellant/accused no.1 Suresh Nair made a statement and in pursuance thereto had made discovery of blood stained clothes namely pant and T-shirt and cash amount of Rs. 4,900/- as the booty in the crime. Two letters purportedly written to one Maya and Rajan ( Rajath ) were produced by the appellant/accused no.1 Suresh Nair before the police. 9. Eventually, the appellant/accused no.2 Wilson Fernandes was apprehended by the police on 5.6.98. He too, the prosecution revealed, was found with old injury mark on his right leg and had made discovery of (1) blood stained knife with its blade embedded in the heap of mud near one Matti tree ( jungle tree ) standing at some distance away from a right side road going to Mollem some three kms from Mollem check post and (2) blood stained red T-shirt worn by him at the time of the crime. Gold ornaments, Vespa Scooter bearing No. GDD – 9648 purchased from the booty in the crime, the prosecution further revealed, were also recovered 8 in the course of the investigation. A letter purportedly written by A-2 Wilson Fernandes to his fiancée Fatima was recovered from the dicky of the scooter. 10. Specimen hand writing of A-1 Suresh Nayar and A-2 Wilson Fernandes were collected and sent to the hand writing expert along with documents recovered in the course of evidence for fixing the identity of the author of handwriting/s noticed in the documents recovered in the course of investigation. Seized articles were also sent to CFSL for further scientific investigation. The injured victim identified the accused no.2 Wilson Fernandes and the co- accused Videsh Malwankar in T.I. Parades conducted by the Special Judicial Magistrate, Faria on 27.6.1998 and 16.11.1998 respectively. 11. After completion of the investigation the appellant/accused along with the co-accused Videsh Malwankar were charge sheeted for the commission of the offence under Section 302, 307, 201 IPC r/w 34 of IPC, 1860 before J.M.F.C., Sanguem. In due course, the case was committed to the Court of Sessions, South Goa,at Margao. 9 12. Learned Additional Sessions Judge, south Goa, Margao, duly framed the charges against the appellant/accused and co-accused Videsh Malwankar under Section 302, 307, 201 r/w Section 34 of I.P.C., 1860 on 1.6.99- vide charges Exhibit 26, accused pleaded not guilty to the charges and claimed to be tried. 13. Trial against the said accused was concluded after recording of the evidence of 62 witnesses out of 162 cited witnesses. Plea of the accused in defence was one of denial. In addition to this plea co-accused Videsh Malwankar took plea of alibi and chose to examine his brother Vinod Malwankar and General Manager of V. M. Salgaonkar Pvt. Ltd., to substantiate his plea of alibi. 14. Learned Trial Court rejected the plea of alibi but chose to acquit the co-accused Videsh Malwankar for want of convincing evidence as against him. However, learned Trial Court, believed ocular version of the crime and found the circumstantial evidence pitted against the present appellant- accused so complete and cogent as to record his findings that the complete chain of circumstances as required by the law to be proved against the appellant – accused stood proved. It 10 is against this background that the learned Trial Court proceeded to convict and sentence the accused as aforesaid. The appellants being aggrieved by these findings of the learned Trial Court have now taken exception to every such finding and have urged before us that complete chain of circumstances as required by the law to be established in proof of the commission of the crime has not been established with complete and cogent evidence by the prosecution. 15. Really speaking the evidence before us is both direct and circumstantial; and the learned Trial Court has considered both these pieces of evidence to arrive at the conclusion objected to by the appellants. The most important among this body of evidence is the evidence of the injured victim PW30 Maruti Jadhav. As regards the circumstantial evidence, learned Trial Court has found corroborative strength therein in order to actuate him to believe in the credibility of the ocular version of the crime given by PW30 Maruti Jadhav. 16. Among the least debatable circumstances in the present case is finding of body of the deceased Vinit Bindal 11 with several injuries on his person in one of the ravines of Anmod Ghat in the proximity of high way leading to Goa – Karnataka border on 30.3.1998. The relations of the deceased Vinit Bindal, namely father in law PW1 Roldao Vaz and wife PW29 Priya Bindal, undisputably identified the body of the deceased Vinit Bindal. The evidence of PW2 Sebastiao Braganza, a Government servant from St. Cruz provides view of the facts and circumstances noticed by him at the spot of offence. 17. PW2 Sebastiao Braganza reveals that the place of crime was found situated near the board put up by Lions Club on the high way leading to Goa- Karnataka border and was so proximate to the border so as to pose a question to PW2 Braganza as to where it actually fell whether in the State of Goa or Karnataka; and for that purpose, after finding the body of the deceased Vinit Bindal, they brought the Karnataka police to the site and got confirmation from them that the site fell within geographical limits of State of Goa and, thereafter, they had approached Collem Police Station and got the observations recorded in form of a spot panchanama and sketch Exh. PW2/A Colly. PW2 Braganza further revealed that on detecting the blood on the main road 12 at a distance of about 3 or 4 metres from Lions Club Board, they followed the trail of the blood which led them to the body of the deceased Vinit Bindal lying in ravine; and in the process of following trail of the blood they came across visiting cards, pen, three buttons, spanner, blue colour shirt, black colour handle of knife, vehicle tyre marks. All the aforesaid articles found lying at the said place along with blood soaked soil and plain soil were duly collected, packed and sealed in separate envelopes by the Collem Police at the spot on the same day. He identified the said articles and further identified the record of the event made under his signature at the spot in form of the panchanama and sketch Exh. PW2A Colly. 18. Cross examination of PW2 Braganza in fact brings out more details of the proceedings and the observations made at the said spot by PW2 Braganza and the police and adds colour to the testimony of PW2 Braganza with a fact that the photographs of the said event were taken in their presence. Except empty suggestions which were denied by PW2 Braganza there is nothing much to discredit the version of PW2 Braganza. An effort to challenge the testimony of PW2 Braganza has been made on the basis of a fact that he had 13 gone with PW1 Ronaldo Vaz to the spot and happened to discover the body of the deceased Vinit Bindal. It is further suggested that he had signed the panchanama at the police station in order to please PW1 Vaz. It is however not demonstrated through cross examination either of PW1 Vaz or PW2 Braganza, what interest they had in the making the panchanama at the police station and then deposing something contrary to it before the Court. As a matter of fact, the testimony of P.W.2 Braganza reveals that he is a Government servant, who was on leave on 30.3.98. His evidence, therefore, deserves to be trusted. 19. On this background learned Trial Court has examined the evidence of PW30 Maruti Jadhav who provides answers to the facts and circumstances noticed at the scene of crime. The evidence of PW30 Maruti Jadhav reveals that around 5.30 a.m., on 29.3.98 he and his employer the deceased Vinit Bindal left St.Cruz in a Tata Sumo jeep bearing registration No. GA-01-C-3976 for Belgaum and Hubli via Ponda – Mollem; and as they were proceeding in Anmod Ghat, the accused no.1 Suresh Nayar and two more persons in Tata sumo jeep bearing registration NO. GA-01-C- 6695 overtook them; and somewhere at a distance of about 14 100 to 120 metres from Goa – Karnataka border he was signalled to stop by the A-1 Suresh Nayar for getting spanner, and as he bent down to take spanner from the back, one person with black complexion i.e. A-2 Wilson Fernandes besides him slashed out a knife and assaulted him on his neck; and this was followed by further assault with knife both by appellant-A-1 Suresh Nayar and A-2 Wilson Fernandes resulting in knife injuries on his left hand, fore arm front side, back side, left back, front side, back and thumb as well as on shoulder and front right side above knee. He further deposed that when he tried to snatch the knife from the hand of the A-2 Wilson Fernandes, the blade of the knife got detached from its handle with the handle remaining with the appellant/A-2 Wilson Fernandes. He further deposed that when he was being assaulted, the deceased Vinit Bindal out of fear had gone to the corner of the seat on the cleaner's side and he had seen a third person with fair complexion trying to open the cleaner's side door of the sumo, and his employer Vinit Bindal being dragged out of the car and assaulted by A-1 Suresh Nayar and A-2 Wilson Fernandes. As a result of this assault, the evidence reveals, he became unconscious, and after regaining consciousness he came out of the vehicle and started asking for help from the passers by, 15 and after sometime he could get the help from some persons, who removed him initially in his Tata Sumo vehicle to Mollem Out Post and thereafter to Ponda hospital and finally to G.M.C., Bambolim hospital. PW30 Maruti Jadhav revealed in his evidence that on way to Mollem Outpost he had responded to the questions put by his rescuers and narrated the facts briefly giving the name of A-1 Suresh Nayar and number of Tata Sumo jeep used in the crime. Likewise he added that he had also responded to the questioning at Mollem Out Post. PW30 Maruti Jadhav testified that his employer Vinit Bindal was proceeding to Belgao in the vehicle driven by him with a cash amount for making purchases; and from his observations regarding past habit of making heavy purchases every time, he had feeling that deceased Vinit Bindal was carrying sum of rupees one lakh or two in a black coloured bag with him. PW30 Maruti Jadhav further described clothes and ornaments worn by the deceased Vinit Bindal at the material time and proceeded to identify blue colour shirt, Art-3, and personal belongings of the deceased Vinit Bindal. Pant, Art-21 as the clothes on the person of the deceased Vinit Bindal at the material time. He also identified spanner, Art-7a, black plastic handle, Art-4 and its blade, Art-30, together as one knife seen in the hand of 16 the A-2 Wilson Fernandes. He further testified the fact of identification of A-2 Wilson Fernandes and A-3 in T.I. Parades. PW30 Maruti Jadhav described and identified the clothes which he had noticed on the person of the appellant – accused at the material time. 20. Cross examination of PW30 Maruti Jadhav reveals that his statements were recorded by the police while he was brought to the hospital and thereafter at the hospital. Physical condition of PW30 Maruti Jadhav is made as a backbone of an argument that he could not have made disclosure about the crime, as sought to be projected by the prosecution. In this context, it would be worthwhile to refer to the testimony of PW3 Shrikant Dessai, PW4 Ramakant Mhapsekar, HC Collem Out Post and PW5 Chandrakant Gawas, police constable, Collem Police Station. PW3 Shrikant Dessai, as his evidence reveals was the first person to go to help of injured victim PW30 Maruti Jadhav. His testimony further reveals that he is complete stranger to PW30 Maruti Jadhav and had no interest except giving help to PW30 Maruti Jadhav purely out of humanitarian constraints. His testimony, therefore, assumes a great importance. PW3 Dessai revealed in his testimony that 17 around 7.45 a.m. On 29.3.1998 on hearing about the condition of the injured person lying on the border of the Goa-Karnataka in Anmod Ghat he accompanied by Dnyaneshwar Sawant and Vilas Varade rushed to the spot, and had found PW30 Maruti Jadhav bleeding profusely and a sumo jeep by the side of the road. He further deposed that in response to their questions as to the happening at the spot PW30 Maruti Jadhav had given the name and narrated the fact of assault by one Suresh Nayar and two more accomplices with knife on him and his employer accompanying him in the sumo jeep. Such facts PW3 Dessai averred, were narrated by injured PW30 Maruti Jadhav to PW4 Mhapsekar when the victim was removed in the said sumo jeep by them to Mollem Police Station. He further testified the fact of removal of the victim to ID hospital, Ponda and thereafter to GMC, hospital at Bambolim. His evidence thus answers for absence of such Sumo jeep at the spot of offence on the date of panchanama Exh. P.W.2A Coll. 21. Cross-examination of PW3 Dessai does not throw any material challenge to the fact of he and his companions going to the rescue of the injured victim PW30 Maruti Jadhav and bringing him to Mollem Out Post and removing him 18 thereafter to the hospital at Ponda and Bambolim. A fact therefore remains that he was natural witness to the facts asserted by him in the evidence. It might have been that the detailed facts about the A1 Suresh Nayar and the manner of assault with knife were not narrated by PW30 Maruti Jadhav to him. However, a concrete fact emerges from the evidence of PW3 Dessai that PW30 Maruti Jadhav did name the appellant- accused no.1 Suresh Nayar and indicate two others as the assailants at the spot. Pertinently, PW3 Dessai in his cross examination revealed that PW30 Maruti Jadhav was not bleeding much while he was being taken to ID hospital or GMC, hospital but was bleeding more at the scene of offence. There is no whisper in the cross examination of PW3 Shrikant Dessai that PW30 Maruti Jadhav was unconscious or was not in condition to narrate any facts about the incident at the material time. On the contrary, there is evidence of the fact that during the journey to ID hospital, Ponda and GMC, Bambolim. PW30 Maruti Jadhav was in his senses and was asking for water and prior to this he did give statements and narrate the facts. PW3 S.Dessai on material aspect of physical condition of PW30 Maruti Jadhav finds corroboration in the testimonies of PW4 Mhapsekar and PW5 Gawas. The evidence shows that PW58 Dilip Amonkar, Asst. 19 Professor of Surgery in GMC had supervised the surgical procedure undertaken to save the injured victim PW30 Maruti Jadhav at surgical unit of G.M.C., on 29.3.1998. PW58 Amonkar averred that when the patient was brought to the hospital he was conscious. In his cross examination this fact was brought on record in reference to the history recorded in Medico Legal Certificate dated 16.6.1998 Exhibit PW58/A as under :- “There was history of assault with sharp weapon; H/O loss of consciousness”. It is true that Dr. Shailesh Kamat, Senior Resident, Surgery Department issued certificate Exhibit PW58/A was not examined by the prosecution. However, a fact remains that the certificate Exhibit PW58/A nowhere makes a reference that PW30 Maruti Jadhav was unconscious when brought to the hospital. PW30 Maruti Jadhav did state about some spell of unconsciousness and the moments of his consciousness. Normally, the medical history is obtained by a Doctor from the patient examined by him. In the given facts and circumstances one can necessarily presume unless rebutted by any other cogent evidence that it was PW30 Maruti Jadhav, the victim himself, who had given history of assault and narrated the fact about loss of his consciousness. 20 PW58 Amonkar did give parameters such as B.P., pulse rate, nature of injuries sustained thereby defining the physical condition of PW30 Maruti Jadhav. NO use of these parameters have been made in the cross examination of PW58 Amonkar to probe deeper and bring on record a probability regarding the fact of unconsciousness of PW30 Maruti Jadhav. In absence of any living facts or circumstances on record regarding this aspect, it would be folly for judicial mind to give up to the imagination and to doubt the prosecution evidence firmly routed in the facts and circumstances obtaining from the evidence. 22. The evidence of PW58 Amonkar and PW62 Manjunath Dessai shows that the statement of PW30 Maruti Jadhav was recorded by PW62 Manjunath Dessai on 3.4.1998 and