IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEALS NO.56 AND 65 OF 2003 AND 8/2004. CRIMINAL APPEAL NO. 56 OF 2003. Shri Prakash Parab, Central Jail, Aguada. ... Appellant. VERSUS S T A T E. ... Respondent. Shri S.G. Dessai, Senior Advocate with Shri Shivan Dessai, Advocate for the Appellant. Ms. W. Coutinho, Addl. Public Prosecutor for the State/Respondent. CRIMINAL APPEAL NO. 65 OF 2003. Shri Rupesh @ Topo Gawali. ... Appellant. VERSUS S T A T E. ... Respondent. Shri D. Pangam, Advocate under Legal Aid Scheme for the Appellant. Ms. W. Coutinho, Addl.Public Prosecutor for the State/Respondent. CRIMINAL APPEAL NO. 8 OF 2004. Shri Ramesh Jadav. ... Appellant VERSUS State. ... Respondent. Shri D. Pangam, Advocate under Legal Aid Scheme for the Appellant. Ms. W. Coutinho, Addl. Public Prosecutor for the State/Respondent. CORAM: CORAM: CORAM: S.A. BOBDE & S.A. BOBDE & S.A. BOBDE & N.A. N.A. N.A. BRITTO, JJ. BRITTO, JJ. BRITTO, JJ. -- 2 -- DATE OF RESERVING THE JUDGMENT; 27.07.2004 DATE OF PRONOUNCING THE JUDGMENT: 23.08.2004 J U D G M E N T: ( PER BRITTO, J. ) These appeals have been filed by the accused in Sessions Case No. 30/2001. The said accused have been tried, convicted and sentenced by the learned Addl. Sessions Judge (I), Panaji, under Sections 302, 392 r/w Section 34 I.P.C. by his Judgment and Order dated 31.7.2003. 2. A bare outline of the case of the prosecution is that the deceased Peter Pereira (Peter Uncle) aged about 55 years, was at the relevant time, residing alone in his house at Umtavado in Calangute, his two other brothers residing elsewhere in the same ward. He was visited last by his son P.W.3 Marcelino on 7.4.2001 at about 10 to 11 a.m. along with his own son aged about three years. P.W.3 Marcelino after having conversed with his said father Peter, went away. On the next day i.e. 8.4.2001 at about 3 p.m. one Sheila with another old lady went to see the deceased Peter. The said Sheila was one of the tenants of the deceased Peter and after having knocked at his door, found that there was no -- 3 -- response, and they reported the matter to P.W.5 Mumtaj and then they all reported the matter to the eldest daughter-in-law of the deceased and the latter informed P.W.3 Marcelino to go to the house of Peter. P.W.3 Marcelino then came to the house of the deceased Peter and found by seeing through the window that his father was lying on the bed in an awkward position with blood stains and also found that the clothes in the house were scattered all over. He tried to shout and wake up the deceased but that was of no use and then tried to push the door and found it locked from inside and therefore he took a ladder and entered the house through the roof and found that his father was cold with blood on his face and injury marks on his head. He also noticed the gold ornaments namely a chain, a pendant, two rings and a watch missing. P.W.3 Marcelino was followed to the house by one of the brothers of the deceased, namely, P.W.1 Alex who was informed by his nephew about the incident and who also saw his brother, the deceased, lying on the bed full of blood and he also saw that the torch which was being used by his brother, bent and with blood. He also found the gold ornaments worn by his deceased brother missing and therefore he proceeded to the Police Station where he lodged his complaint which was written down by P.W.31 P.I. Shri Banaulikar who was then the Inspector-in-charge of -- 4 -- the Calangute Police Station and who registered the same against unknown culprits under Sections 450, 302 and 392 I.P.C. Upon registering the said F.I.R. P.W.31 P.I. Banaulikar reached the scene accompanied by a dog squad, finger print expert and a photographer. He then prepared a scene of offence panchanama - Exh.PW2/A, in support of which P.W.2 Alex has been examined. P.W.2 Alex apart from describing as to what he saw at the scene had particularly stated that in the room where the body was found there was blood seen on the walls. He produced the sketch prepared by P.I. Shri Banaulikar at Exh.PW.2/B. Shri Banaulikar also prepared an inquest panchanama which is supported by P.W.2 Alex and thereafter sent the dead body for post mortem examination. It has been recorded in the scene of offence panchanama that the services of the dog squad and the finger print operator which were pressed into service did not give any clue. 25 photographs taken by the Police photographer P.W.21 Reginaldo have been produced at Exh.76. 3. The post mortem examination of the dead body was conducted by P.W.7 Dr. Sapeco on 9.4.01 and the autopsy report has been produced by him at Exh.P.W.7/B. Dr. Sapeco found on the person of the deceased about 11 external injuries which have been -- 5 -- described by him on page 3 of his report. The said injuries were (i) A CLW with dried blood around the bridge of the nose; (ii) A CLW with dried blood around and between the eye brows; (iii) A CLW with dried blood around the left eye brow along inner 2/3rds. (iv) Bruise at frontal region of scalp beyond area between eye brows. (v) red bruises on the right cheek; (vi) red bruise on the upper lip’s mucosa; (vii) red bruise on lower lip’s mucosa; (viii) Oblique abrasion on the left outer aspect of neck; (ix) CLW with dried blood around with red bruises on left upper eyelid; (x) red bruise on the dorsal aspect of left ring finger’s base; and (xi) contused lacerated wounds with blood on palmar aspect of left ring finger’s lowest crease region. Dr. Sapeco also noticed that every bruise had 1 cm. deep effusion of blood within its tissues. The dimensions of the said injuries have been given by Dr. Sapeco, which we consider unnecessary to be mentioned here. As regards the internal injuries Dr. Sapeco has stated that upon dissection of scalp he had found effusion of blood under injuries no.2, 3 and 4 and that there were fractures for the roof of both orbital plates and that there were fractures of nasal bones underneath external injury No.1. He also stated that there was diffusion of subdural and subarchanoid blod clots at frontal and occipital -- 6 -- regions of brain. Dr. Sapeco opined that the death was caused within 48 hours of preservation of the dead body in the morgue and that the death was caused due to facial and cerebral damage caused due to impact of blunt force or object due to cumulative effect of injuries (i) to (vii) and (ix) which were ante mortem in nature and within six hours prior to the death and which were fatal in the ordinary course of nature. According to Dr. Sapeco the said injuries could have been caused by a metal torch (MO.1). The said torch was shown to be of six cells. Dr. Sapeco was not cross-examined by the defence regarding the opinion given by him. 4. However, we are rather surprised to note that what Dr. Sapeco as a medico-legal expert could not see was seen by PW.31 P.I. Shri Banaulikar and P.W.2 Alex. P.W.2 Alex stated that there were injuries on the legs. The inquest panchanama mentions 3 injuries on left foot and another injury on the right heel. The relevant photo also shows injury on the leg. 5. The needle of suspicion was probably first pointed towards A.2 Rupesh as he was ex-tenant of the deceased and had left the place without telling anybody and as a result a wireless message was sent on 9.4.01 showing that he was strongly suspected in -- 7 -- the commission of the offence. That wireless message was produced at Exh.103 Colly. On the same day another wireless message was sent regarding A.1 Prakash and A.3 Ramesh, that they too were strongly suspected in the commission of the offence. This wireless message was also produced as Exh.103 Colly. According to P.I. Shri Banaulikar he received information from the brother of A.2 Rupesh that A.2 Rupesh was in judicial lock-up and was released on 21.3.2001 and prior to that when A.1 Prakash and A.2 Rupesh were in judicial lock-up they had become good friends and were always seen together in the lock-up and he was also informed that the A.3 Ramesh was visiting them and therefore search of their respective houses were taken but they could not be found until A.1 Prakash was arrested on 10.4.01 when he came with black colour scooter and who later admitted having committed the murder along with A.2 Rupesh and A.3 Ramesh. 6. The case of the prosecution is based on circumstantial evidence. 7. The learned Trial Court, after considering the various circumstances, has come to the conclusion that the prosecution has proved its case beyond reasonable doubt against the accused. -- 8 -- 8. Amongst the circumstances proved by the prosecution against the accused, the first is the last seen circumstance. 9. P.W.5 Mumtaj stated that on 5.4.2001 at about 2p.m. she was washing utensils outside her room when she saw accused no.2 Rupesh standing behind her room and another person with curly hair with him whom she had identified as A.3 Ramesh. According to her, the said A.3 Ramesh came near her and asked her whether one lady by name Rosie was staying in the same locality and that she told him that the said Rosie had left the place. According to her, the said Rosie is the wife of A.2 Rupesh and while she was talking to accused No.3 Ramesh, A.2 came near her and asked her whether any room was vacant as A.3 Ramesh was looking out for a room on rent and she told him that all the rooms were full and further told him that Peter (deceased) had slept and should not be disturbed and inspite of telling them to go, they did not leave the place and she found their conduct to be suspicious. On the basis of her evidence, the learned trial Court found that A.2 Rupesh was found moving suspiciously but found that the identification of A.3 Ramesh by P.W.5 was doubtful, but what could flow from that evidence was that A.2 Rupesh was accompanied by another person and their movement was -- 9 -- suspicious. Apparently, A.2 Rupesh was a well known person to P.W.5 Mumtaj as previously A.2 Rupesh was residing in the locality and he being found there would not take the prosecution anywhere. P.W.5 Mumtaj had failed to identify A.3 Ramesh in the test identification parade held by P.W.22 Shri Alornekar. Therefore her identification of A.3 Ramesh before the Court, was rightly not accepted. However, the same thing could not be said regarding the evidence of her son P.W.4 Yousuf. P.W.4 Yousuf had deposed that at about 11 a.m. on 7.4.2001 he saw A.2 also known as Abhi proceeding towards the beach and he saw A.1 and A.3 near the door of Peter Pereira talking loudly to him who was inside his room, but he did not hear the exact words. He clarified himself by stating that when he came out of his room he saw all the three accused and then saw A.1 and A.3 proceeding towards the door of Peter and Accused No.2 proceeding towards the beach. He stated that subseqeuntly he was called upon to identify the said persons on 6.5.2001 and he identified the said persons. In his cross examination he had stated that he had seen A.1 on that day with full sleeves shirt and a long pant and had seen him for the first time and thereafter at the parade. He categorically stated that he had not seen A.1 on any day after -- 10 -- 7.4.2001 and before the said I.D. parade. He had denied the suggestion that he had seen A.1 at the Police Station or that he was shown the photographs of A.1. As regards A.2 also he had stated that he had seen him 5 metres away, and as regards A.1 and A.3 he stated that he had not seen them before he was taken to the room in which the I.D. parade was held. 10. The evidence of P.W.4 Yousuf is sought to be assailed by submitting that if the motive for the offence was robbery as alleged by the prosecution, there was no question of the accused creating evidence against thesmelves by loudly talking to the deceased by standing outside the house of the deceased and therefore the evidence of P.W.4 Yousuf is inherently improbable. It is also submitted on behalf of the accused that the identification parade was held belatedly on 6.5.2001 and when A.1 Prakash was arrested earlier on 10.4.2001 and a doctored identification was therefore possible. In our view, the said submissions cannot be accepted at all. P.W.4 Yousuf was a student and might have been a one time neighbour of A.2 Rupesh when he was residing in the locality as a tenant of the deceased. P.W.4 Yousuf has consistently identified A.1 Prakash and A.3 Ramesh as the persons seen by him talking to the deceased not only at the test identification -- 11 -- parade but also before the Court. No reason has been assigned on behalf of the defence as to why P.W.4 Yousuf deposed in a manner he did. P.W.4 Yousuf was at the relevant time a student and his evidence has been found acceptable by the learned trial Court. We do not find it infirm to be rejected. As regards the test identification parade, there is no doubt that the same was not immediately held, but that in itself would not be a reason good enough to reject the identification of the said accused by P.W.4 Yousuf. Identification parades are held with twofold objectives. Firstly, to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them either in the commission of the offence or at a particular place. The second is to satisfy the investigating authority that the suspect is the real person whom the witnesses had seen in connection with the occurrence of the crime. The case of Joginder Singh Joginder Singh Joginder Singh @ Jaggi v. State @ Jaggi v. State @ Jaggi v. State (1990 Cri.L.J. NOC 30) is of no assistance to the accused. It was a case where the complainant had not given any physical features of accused but had identified him for the first time before the Court and it was therefore held that the accused could not be convicted on the basis of that evidence. In the case of Sarwan Singh v. State of Sarwan Singh v. State of Sarwan Singh v. State of Punjab Punjab Punjab [(2003) 1 SCC 240] the Supreme Court has -- 12 -- stated that ordinarily identification of an accused for the first time in Court by a witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration since identification for the first time in Court cannot possibly be termed to be non-admissible but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration since otherwise justice delivery system may stand affected. The purpose of a proper test identification has always been to test and strengthen the trustworthiness of that evidence and it is generally considered as a safe rule of prudence to look for corroboration of the sworn testimony of a witness in court as to the identity of an accused who are otherwise strangers to them in the form of earlier identification proceedings. The Supreme Court in the case of Malkha Singh Malkha Singh Malkha Singh [(2003) 5 SCC 746] has held that in appropriate cases the Court may accept the evidence of identification in court even without insisting on corroboration. We are unable to accept that only because P.W.4 Yousuf saw A.1 Prakash and A.3 Ramesh talking loudly, that his evidence deserves to be discarded. One really does not know what made A.1 Prakash and A.3 Ramesh to talk loudly to the deceased. Probably it was because the deceased was refusing their entry to the house. All -- 13 -- criminals, however carefully they may plan a crime, are always known to leave some clues behind. Only because the said accused were found talking loudly does not mean that the evidence of P.W.4 Yousuf should be discarded. We are unable to accept the contention that A.2 Rupesh had moved away from the place towards the sea shore. It is quite probable that A.2 Rupesh, on seeing P.W.4 Yousuf, who was otherwise known to him, only pretended to move away since the other circumstances which will be referred to later, show his presence at the scene. The evidence of PW.4 Yousuf cannot be rejected because his version was not supported by his mother. There was no cross-examination to find out whether PW.5 Mumtaz was at all present, when PW.4 Yousuf saw all the accused near the house of the deceased. Therefore, there are no inherent contradictions in their versions, as submitted. The accused have given no explanation regarding this circumstance proved by the prosecution against them. This ciricumstance, in our view was duly proved by the prosecution as rightly held by the learned Trial Court. In our opinion, it was necessary for the accused and particularly A.1 Prakash and A.3 Ramesh to have explained under what circumstance they parted company of the deceased when they were last seen talking to him. In the case of Sahadevan v. State Sahadevan v. State Sahadevan v. State [(2003) 1 -- 14 -- SCC 534] the Supreme Court has held that in more than one case they have held that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstance in which the missing person and the accused parted company. This is a fit case therefore to draw an adverse inference against the accused in the death of the deceased because they were last seen with him. 11. The second circumstance sought to be proved are admissions by the accused. These admissions did not find favour with the learned trial Court who found that the admissions by the accused were hit by Section 26 of the Evidence Act. This circumstance requires a little closer examination. All the accused after they were arrested were sent by the I.O. Shri Banaulikar for medical examination and were examined by P.W.8 Dr. Rodrigues on 10.4.01 and 14.4.01, respectively. The certificates on their examination have been produced. According to Dr. Rodrigues, A.1 Prakash had multiple horizontal to oblique linear scratches abrasions in an area of 10 x 6 cms on middle front of left forearm; horizontal scratches abrasions of 3 cms. linear over middle front outer aspect of right forearm; abrasion with -- 15 -- scab separation on middle back of left shoulder and linear scratches abrasions 3 cms. on upper back of right shoulder. 12. The history given by A.1 was recorded by P.W.8 as follows:- " That on Saturday the 7th April, 2001 at 11 a.m., in the morning, Mr. Topo, r/o Gaunswadi and Jadhav, r/o Shelpem, Mapusa enticed me to kill one old uncle who was known to both of them as they were known to him and accordingly all three of them went to the house of the uncle. Mr. Jadhav knocked at the door and when uncle opened the door, Jadhav and both of us caught the neck of uncle and put him on the bed and he became unconscious and Topo hit him on the head with the torch found nearby then Jadhav removed the ring from Uncle’s finger and also chain and locket from showcase and handed over to me which I sold to goldsmith in Vasco for Rs.10,350/- and then all three of us stayed in Baina with the prostitutes for two days". 13. The history given by A.2 Rupesh was recorded as follows :- " That on Friday the 6th April, 2001 at noon -- 16 -- time I along with Prakash alias Tutu decided to kill Uncle and rob him of money and ornaments. I also hit uncle with torch and also pressed his neck. Then all three of us went to Baina for a few days. I was given Rs.3500/- by Prakash". 14. The history given by A.3 Ramesh was recorded as follows :- " I along with Prakash and Rupesh decided to kill Uncle and rob him of money and other ornaments which we all executed together and then we went to Baina and stayed there for few days ". 14A. On behalf of the State, it has been submitted that the admissions by the accused before the Medical Officer are relevant and is one of the circumstances proved by the prosecution against the accused. On the other hand, it has been submitted on behalf of the accused that the extra judicial confession of the accused was rightly rejected by the Trial Court as being hit by Section 26 of the Evidence Act which stipulates that confessions by accused while in custody of police are inadmissible unless they are made in the immediate presence of a Magistrate. On behalf of A.2 Prakash and A.3 Ramesh, reliance has been placed on the case of Aghnoo Nagesia v.State Aghnoo Nagesia v.State Aghnoo Nagesia v.State of of of -- 17 -- Bihar Bihar Bihar (A.I.R. 1966 S.C., 119). On behalf of the State, reliance has been placed on the cases of State State State of Kerala v. Amini and ors. of Kerala v. Amini and ors. of Kerala v. Amini and ors. (1988 Cr.L.J. 107) and the case reported in Ammini and others v. State of Ammini and others v. State of Ammini and others v. State of Kerala Kerala Kerala (A.I.R. 1998 S.C. 260). 15. In the case of Aghnoo Nagesia v. State of Bihar (supra) the Supreme Court, inter alia, observed that:- " If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only." .... " But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused ". The Supreme Court further observed that sometimes a single sentence in a statement may not amount to a confession at all, but the statement read as a whole can amount to a confession and it would not be permissible to admit in evidence each sentence separately as a non-confessional statement. 16. The case of Aghnoo Nagesia Aghnoo Nagesia Aghnoo Nagesia (supra) along with the case of Kanda Padayachi v. State of Tamil Nadu Kanda Padayachi v. State of Tamil Nadu Kanda Padayachi v. State of Tamil Nadu (A.I.R. 1972 S.C. 66) came up for consideration -- 18 -- before the Full Bench of the Kerala High Court in the case of State of Kerala v. Ammini and others State of Kerala v. Ammini and others State of Kerala v. Ammini and others (1988 Cri.L.J.107). In this case the Doctor had noticed three wounds on the right fingers of the third accused and the said third accused when questioned as to the cause of the said injuries had told the Doctor that: "These small injuries were caused by biting when I closed Merly’s mouth to silence her at 7.30 p.m. on Monday