-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 11 OF 2006 WITH CONFIRMATION CASE NO. 1 OF 2005 Sarvanand @ Soiru Gaonkar s/o. Purso Gaonkar, 35 years Occ. Labour, H. No. 65, Basrai, Khaddem, Quepem, Goa. ...... Appellant V e r s u s State of Goa (Through the Public Prosecutor High Court). ...... Respondent Mrs. Shanti Maria Fonseca, Advocate U/LAS for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM: J. N. PATEL, N. A. BRITTO, J.J. DATE: 28 th November, 2006. JUDGMENT (Per N. A. BRITTO, J.) This appeal is by the accused who has been convicted and sentenced, inter alia, to suffer death penalty under Section 302 I.P.C. by Judgment dated 19.11.2005 of the learned Additional Sessions Judge, Margao. -2- 2. As far as confirming the said death penalty is concerned, the learned Public Prosecutor has submitted, and in our view rightly, that the case does not call for the imposition of extreme penalty of death. 3. The accused was charged and tried under Sections 302, 392 I.P.C. and has been convicted and sentenced under Section 302 and 379 I.P.C. Under Section 302 I.P.C., in addition to the death penalty, the accused was sentenced to pay fine of Rs.25,000/- and in default to undergo RI for two years and under Section 379 I.P.C., the accused was sentenced to undergo RI for two years. 4. The undisputed facts are as follows: Raya Datta Fal Dessai, aged 65 years and his wife Smt. Saraswati @ Shantu Fal Dessai, aged 60 years, popularly known as 'Dada' and 'Ayee' respectively, (and we shall refer to them as such, herein after), were residing in an isolated house situated in a cashew grove in a forest area belonging to Manvar Audi, surveyed under nos. 30/1 and 32/1, situated in Village Tiloy, Fatorpa of Quepem Taluka. The said Dada had a stone quarry situated near the stone quarry of Srinivas/Pw1 and both the quarries are also situated in a forest area. The distance between both the quarries is about 400 metres and both the quarries are situated at a distance of about ten minutes walk from the house of Dada and Ayee. They had three sons including Surendra/Pw2, who is unmarried, but all of them were residing elsewhere. -3- 5. Dada was known to always wear a gold chain/exhibit 2-A, with a locket of Lord Ganesha/exhibit-2 and a bracelet/exhibit 20-A, having his name written on it while Ayee always used to wear a gold mangalsutra, earrings and a nose pin. Dada was a hot headed person and was a money lender of the locality. Dada used to run a distillery and also sell liquor in the said house and a lot of truck drivers used to come there to consume liquor so much so that Pw14/Shyamrao consumed lot of liquor on the fateful day of the incident and had slept in the verandah of his house till about 6.30 p.m. and returned to his hut near the quarries and again went back at about 7.30 p.m. when he saw Ayee lying with her face to the ground lying near the lime tree away from their house with bleeding injuries and when he called her, all that she answered was “hoo” and he called out to Dada but he was not found and as he was returning to his hut near the stone quarry, he met Dada's supervisor/mukaddam Pw13/Daku, who was informed about Ayee lying near the house and they returned back to the place and, thereafter, they informed P.w.1/Srinivas, a relation of the said Dada, and he in turn went to Balli in Fatorpa to the house of Narendra Fal Dessai, the son of Dada, and returned along with him to the scene where they saw the dead bodies of both the deceased lying on the ground with bleeding injuries and thereafter Pw1/Srinivas went to Cuncolim Police Station and lodged his complaint at about 21.15 hours, which was registered as Crime No.39/04 under Section 302 I.P.C. against unknown person and the Investigation -4- Officer PI Dessai/P.w.20 came to the scene and found that the body of the deceased Dada was in the courtyard while that of Ayee was near the lime tree with stab injuries. It appears that a dog squad was called but the dog gave no clue whatsoever to the IO and after photographs were taken and the position of the dead bodies was marked in the presence of P.w.12/Mandar and one Mohan, the dead bodies were removed for post mortem examination. It appears that the services of the finger print expert were also secured but he too could not provide any clue to the I.O. 6. The dead bodies were taken to the morgue of Hospicio Hospital at Margao at about 3.00 a.m. On 29.06.2004 autopsies were conducted on the said dead bodies by P.w.10/Dr. Pujari. At about 8.00 a.m. on 29.06.2004, a panchanama was conducted in the presence of P.w.12/Mandar and during the course of the said panchanama, three shirt buttons namely exhibits 3, 4 and 9 were found near the place where the dead bodies of the said Dada and Ayee were found and so also the locket with Lord Ganesha/Exhibit 2 was also found amongst other articles. The dead body of Dada was found at a distance of about 3.60 metres in the courtyard in front of the house while that of Ayee was found at a distance of about 18 metres near the lime tree from the body of Dada. The inquest panchanama was carried out in the presence of Pw12/Mandar and one Ashindra in the Hospicio hospital at about 13.00 hours on 29.06.2004. The autopsies were conducted by Pw10/Dr. Pujari at about 2.15 p.m. -5- 7. As per Pw10/Dr. Pujari, there were as many as 29 injuries on the body of Ayee which included several incised wounds, incised stab wounds and contusions which have been described by him in detail on page 4 of the autopsy report/exhibit 28. As per him, all the injuries were fresh at the time of death and injuries nos. 16, 17, 18, 20, 22, 25, 26, 27, 28 and 29, along with internal injuries, were individually sufficient to cause death while all the injuries were collectively sufficient to cause death in the ordinary course of nature. Pw10/Dr. Pujari opined that the cause of death of Ayee was due to haemorrhage and shock due to damage to multiple vital organs caused by sharp and blunt weapons. As per him, injury no.16 was a incised stab wound with clear cut margins, obliquely on the abdomen on the left side and this injury was 4 cms in length, one cm in breadth and had pierced the liver and the interior surface of the stomach and the depth of the injury was 10 to 12 cms. Injury no.17 was also a incised stab wound, on the left abdomen and this injury had damaged the spleen from the upper border. Injury no. 18 was also a incised stabbed wound on the left of the abdomen and it had damaged the front of the spleen and left kidney. 8. Pw10/Dr. Pujari, also found 15 wounds on the dead body of Dada which were fresh at the time of death. He has described the said injuries and as per him, the external injuries nos. 3, 4, 6, 7, 8 and 9 were sufficient to cause death individually and all the injuries were sufficient to cause death in the ordinary course -6- of nature. As per him, the death of Dada was due to haemorrhage and shock due to the damage to the liver, spleen, left kidney, intestine by sharp edged weapon. Pw10/Dr. Pujari was shown an implement which has been referred to as a sickle/Exhibit 19, which admittedly, is not an implement used commonly in this State. The said sickle has a steel blade and sharpness of the blade is not on the inner (concave) aspect but on the outer (convex) aspect. According to him, injuries nos. 1, 14 and 15 on the dead body of Ayee, could have been caused by the wooden handle portion of the sickle, which is hard and blunt object and the remaining injuries could have been caused by the said sickle with the angular blade portion penetrating the body. Likewise, Pw10/Dr. Pujari opined that all the fifteen injuries on the dead body of Dada, could have been caused by the said sickle. In fact, there was no dispute that the death of both Dada and Ayee was homicidal in nature. The question was as to who was the author of the said injuries? 9. The case of the prosecution is based on circumstantial evidence. 10. Prosecution had examined 21 witnesses in support of its case whilst the accused chose to examine himself in support of his defence. We asked the learned Public Prosecutor as to what made PI Dessai/Pw20 to arrest the accused or why needle of suspicion was pointed out to him but she has not been able to provide any answer, much less a satisfactory answer. As per Pw19/Subash, he had seen the -7- accused near the huts near the stone quarry at about 6.45 p.m. on 28.06.2004 when he was about to leave the quarry. His statement was recorded on 04.07.2004 and yet the accused was not suspected. He claims that when he saw the dead bodies he had noticed that the gold chain and gold bracelet were missing. Yet Section 392 I.P.C. was not added to the crime registered u/s. 302 I.P.C. The accused was arrested on 06.07.2004. The statement of the wife of the accused was recorded on the next day i.e. on 07.07.2004. When P.I. Dessai/Pw20 was asked, he stated that on his interrogation of the wife of the accused, he came to know that the accused was on enemical terms with Dada as the accused suspected that Dada was having illicit relations with the wife of the accused. In other words, the involvement of the accused in the crime could not be suspected prior to 07.07.2004 and therefore the statement of P.I. Dessai/Pw20 that they were in search of the accused from 04.07.2004 cannot be accepted. The prosecution has not specifically alleged any motive for the crime allegedly committed by the accused and this aspect does not appear to have been considered in detail by the learned trial Court except to say that the evidence of Pw6/Swati had gone unchallenged. The learned trial Court ought to have closely scrutinised her evidence considering that her relations with the accused were strained. That there was no elaborate cross-examination of most of the prosecution witnesses is another matter. 11. As per the prosecution, the motive for the murder of both the deceased -8- by the accused was due to the fact that Dada had illicit relations with the wife of the accused and to prove the same, the prosecution examined no other witness but his wife the said Pw6/Swati and their daughter Pw7/Sapna, aged about 12 years. Admittedly, the accused was separated from his wife and was not residing with her and their three children for atleast 4½ years, as stated by him. There is no dispute that the accused was doing fishing on a canoe at Palolem, Canacona. As per Pw7/Sapna, about seven days prior to the death of the said Dada and Ayee, one day, her father, the accused, came and inquired about her mother and told her to inform her mother not to plant chillies near the house of Dada or else he would hit her and also to tell her mother that he would come on the following Saturday and that she should wait for him. Pw6/Swati was sometimes working at the house of the deceased, as stated by her and she also used to cultivate chillies near the house of the deceased but she was not the only person but there were several other women who were also cultivating chillies there. As per Pw6/Swati, the accused had come to her house about eight days prior to the murder, in her absence, when she had gone for work and met her daughter Pw7/Sapna. According to her, the accused had kept a message with her daughter that she should not go to the house of Dada and that somebody would kill Dada and the blame would come on her and had also told her daughter that if she went to the house of Dada, he would teach her a lesson. Admittedly, if at all accused went to her house, she did not meet him. She could not have come to know more than what the accused had told her daughter. What has -9- been stated by Pw6/Swati, has not been at all corroborated by Pw7/Sapna. Pw6/Swati has stated that she was not having any illicit relations with Dada and has further stated that for about two to three months, she had not visited the house of Dada, and if that is so, Pw6/Swati's version that the accused had threatened her to teach a lesson, could not have been accepted. The motive for the alleged crime has not been convincingly proved by the prosecution. 12. The learned trial Court ought to have scrutinised the evidence of Pw6/Swati more closely considering that she had strained relationship with the accused. Her evidence was not at all supported by Pw7/Sapna, her daughter and it appears that there was no love lost between them, though theirs was a love marriage as she had not visited the accused even once after he was arrested. If they were separated for 4½ years and as stated by her, and she was disowned by the accused, we do not see any reason why the accused ought to have visited her and told her that he would teach a lesson to her in case she went to the house of Dada and we also fail to understand that in case the accused threatened her to teach her lesson, why the accused should have taught a lesson to both the deceased when she had already stopped going to the house of the deceased, about three months previously. Motive, as stated by the Apex Court in the case of Sahadevan v. State (2003 (1) S.C.C. 534), would not hamper conviction if the circumstances relied upon by the prosecution are proved beyond doubt. There is no doubt that motive is always relevant and bears a -10- special significance in cases which are based on circumstantial evidence. Absence of motive does not weaken a case but its existence certainly strengthens the case and it assumes significance when there is a doubt. It may be of no consequence if the evidence is strong but in a case of this nature where the evidence is very weak, as we shall see a little later, the motive was of special significance to the prosecution and the prosecution having alleged it but having failed to prove the same, certainly it does break one link in the chain of circumstances. 13. The next circumstance sought to be proved by the prosecution is that the accused was seen near the quarry at about 6.30 p.m. on 28.06.2004. As regards this aspect, Pw19/Subhash has stated that he had gone to the stone quarry and at that time, he saw the accused who is a resident of Basrai (in Village Balli) and at about 6.45 p.m., when he was about to leave the stone quarry, he saw the accused near the huts of the labourers, and at that time, he was wearing a white colour short pant and a long sleeves greenish colour short pant and was having a white colour towel on his shoulder. One does not know as to what happened to the said white colour towel, assuming Pw19/Subhash had really seen the accused prior to the commission of murders. However, it is interesting to note that the statement of this witness was recorded on 04.07.2004 prior to the arrest of the accused on 06.07.2004. The fact that the accused was seen by Pw19/Subhash near the stone quarry, could not connect the accused with the murder of any of the deceased. This circumstance is of no -11- assistance to the case of the prosecution. It is not the case of the prosecution that the accused and any of the deceased were last seen together. It is only then that the accused might have been expected to offer an explanation. 14. The next circumstance is that the accused was found with blood stained pant/Exh.17 when he was arrested. P.w.20/P.I. Dessai stated that he effected the arrest of the accused on 06.07.2004 and at that time, the accused was found having old and partly healed injuries on his face. As per him, after his arrest on 06.07.2004, a panchanama was drawn and the white short pant/Exh.17 worn by the accused was attached. Pw16/Sashank is the witness for the said panchanama. He stated that a person apprehended by the police was produced before them on 06.07.2004 and he was wearing a short pant of white colour and a blue shirt with white and yellow checks. As per him, some reddish spot like blood was seen on the said short pant. According to him, the accused had injuries on his face, nose, forehead, lips, right hand thumb and so on and when the accused was questioned as to the said injuries, he could not give any answers as the accused was nervous and the said short pant was removed and was handed over to them. On the same aspect, Pw21/H.C. Narulkar has stated that when the accused was asked about healed injuries, the accused had told them that he had sustained the injuries while ploughing the field, when a bullock kicked him. P.w.16/Sashank, has not stated as to at what time, the panchanama of attachment of the short pant/exhibit 17, was done on 06.07.2004 and -12- in fact he has admitted that he did not know how long before he reached the Police Station, the accused was brought at the Police Station. Apparently, Pw16/Sashank was also not told as to what time, the accused was arrested and that was the least expected from PI Dessai when he called Pw16/Sashank to witness the panchanama of the seizure of the pant of the accused. It appears that the accused was arrested at 7.00 a.m. as stated by Pw21/Head Constable Narulkar and if one goes by the panchanama/exhibit 42, it appears that it was apparently made at about 9.00 a.m. and thus it appears that the accused was in police custody for about two hours prior to the said attachment and, in such a situation, any finding of blood of which group is unknown, would not carry much conviction. The said short pant was sent to C.F.S.L. and the report shows that human blood was detected on it but its blood group could not be ascertained. As already stated, in the absence of the blood group being determined and the presence of the injuries found on the accused himself, it could not be said that the blood found on exhibit 17/short pant, was that of any of the deceased. Moreover, it is to be noted that it is difficult to accept that the accused would have been wearing the same white short pant for nearly eight days and if he had hidden his shirt, to which we shall refer to a little later, we are unable to find any reason why he would not have hidden his white pant. The Apex Court, in a slightly different context, observed in Yamanappa Goolappa Shirgumpi & 3 ors. v. State of Karnataka (1981 S.C.C,. (Cri) 271), that when the accused had appeared before the police, as a innocent person, he would not have done so after wearing blood stained -13- clothes so as to entangle himself in a murder case especially when he had sufficient time to destroy the clothes or the stains of blood on them. In the case of Khalil Khan v. State of Madhya Pradesh (AIR 2003 S.C. 4670) the incident had taken place on 6.4.86 and the accused was arrested on 11.04.1986, nearly four days thereafter and the Hon'ble Supreme Court observed that they found it extremely difficult to believe that a person who is involved in such a serious crime, like murder, would still be wearing clothes which are blood stained even four days after the murder which fact they found was opposed to normal human conduct. It is to be noted that Exh.17 is a pant of white colour and any blood on it the accused himself would have seen for eight days he was wearing and would not have remained wearing the same pant till he was arrested. In our view, from whatever angle one looks at it, the fact that some blood stains were found on the short pant worn by the accused would not connect the accused with the alleged crime in the overall circumstances of the case. 15. The recovery of the chain/exhibit 2A and the bracelet/exhibit 20 A is another circumstance by which the prosecution has sought to connect the accused with the alleged crimes. As per Pw2/P.I. Dessai, on 12.07.2004, the accused volunteered to make a further disclosure statement and pursuant to it, the accused led them near the house of the deceased at Tiloy and from the heap of sand, he removed one polythene bag containing one gold chain and one gold bracelet and to -14- support the said recovery, prosecution has examined Pw17/Narayan, who has stated that the accused told them that he would show the bracelet and the chain, which he had hidden in the sand at Tiloy. According to him, the accused led them to the house of the deceased after walking a distance of about eight minutes, stating that it was the house of the deceased (Rayu Fal Dessai) and then led them to a distance of about twelve minutes from the house towards the north and pointed out one heap of sand covered with palm leaves and then lifted the dried palm leaves and shifted the sand with his right hand removed the polythene bag, which was buried one foot deep in the sand and from the bag removed the gold chain/exhibit 2A, and the bracelet with letters Rayu F.D./exhibit 20 A. 16. Admittedly, the deceased had a gold finger ring, which was not touched by the accused, so also the locket which had fallen on the ground. Similarly, the accused had not taken away the mangalsutra, the nose ring and the earrings from the body of Ayee, which ornaments were removed and handed over to Ulhas Fal Dessai, a relative of the deceased, at the time of the panchanama. The accused similarly had not taken cash of Rs.1,82,328/-, which was found in the drawers of the table and cash of Rs.60,395/- and four gold bangles which were found in the cupboard and which were again given to the said Ulhas Fal Dessai. The learned Trial Court had rightly observed that the motive of the accused in committing the murders was not to commit the theft, nor in order to commit the theft and if that is so, one fails to -15- understand as to why the accused had to remove only two ornaments namely the chain and the bracelet and hide them of all places near the house of he deceased and not anywhere else. This has also to be seen in the background of the fact that according to the prosecution the accused carried the sickle to his house walking a distance of about 10 kms. This recovery appears to be of doubtful character, apart from the fact that it was allegedly made after six days of the arrest of the accused. The delay in recovery certainly diminishes the value to be attached to it. This has been held by two Division Benches of this Court. First, in the case of Ahmed@ Ahmed Chakri & Ors. v. State of