IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI Criminal Appeal No.11 of 2011 Kanuram Birua, 37 years, S/O Mohara Birua, Presently in Central Jail, Aguada, Sinquerim, Bardez, Goa. …. Appellant. V e r s u s 1. State of Goa, Through Office -in-Charge, Old Goa Police Station, Old Goa. 2. The Public Prosecutor, Panaji, Goa. ….. Respondents. Ms. Caroline Collasso, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondents. CORAM: A. P. LAVANDE AND U. V. BAKRE, JJ. DATE OF RESERVING JUDGMENT: 14/11/2011 DATE OF PRONOUNCEMENT: 23/11/ 2011. JUDGMENT - (PER U. V. BAKRE, J): This appeal is directed against the judgment dated 26/4/2006 and the order dated 28/4/2006 passed by the learned 2 Cria no.11 of 2011 Sessions Judge, Panaji in the Sessions Case No.28 of 2004, thereby convicting the appellant for offence punishable under Section 302 of the Indian Penal Code (I.P.C.) and sentencing him to undergo life imprisonment and to pay fine of Rs.5000/- in default to undergo simple imprisonment for six months. The appellant shall hereinafter be referred to as the accused. 2. The accused was tried for the offence punishable under section 302 of the I.P.C for having committed murder of one Shri Ashok Dessai. 3. The case of the prosecution, in short, is as follows: On 21/2/2004 at about 15.00 hours Shri Ashok Dessai, the Junior Technical Assistant of Indian Council of Agricultural Research, (ICAR) Old Goa and a labourer Praful Khandeparkar were in the cashew experimental plot situated at ICAR, KVK, Carambolim and said Praful was plucking cashew apples whereas said Ashok Dessai was supervising the said work. At that time, 3 Cria no.11 of 2011 the accused who was a contract labourer assigned with the duty of taking care of goats unit of the ICAR Research complex was grazing the goats in the said cashew plantation. Ashok Dessai, therefore told the accused to take the goats out of the cashew plantation and accordingly the accused left the place with the goats, but after sometime, he again came along with the goats to the same cashew plantation and he had a danda (bamboo stick) with him. When Ashok Dessai questioned the accused as to why he had again brought the goats to the cashew plantation, the accused assaulted Ashok Dessai by giving blows with that danda on his head. Ashok Dessai fell unconscious on the ground and he was taken to the Goa Medical College hospital. 4. On 21/2/2004, PW-25, Head Constable, Anant Sawal was deputed to the Goa Medical College hospital Bambolim (G.M.C.) by Assistant Sub-Inspector, R. N. Shetgaonkar, of Old Goa Police Station, since information was received about the admission of Ashok Dessai to the G.M.C. in a case of assault on 4 Cria no.11 of 2011 him by the accused at KVK cashew plantation. Upon receiving this information, PW-25 visited the G.M.C. but the injured Ashok was not in a fit condition to give statement. ASI Shetgaonkar made the station diary entries, in respect of this incident, the extracts of which are at Exhibit 58-colly. PW-26, P.I. Gurudas Gawde, upon receiving the information went to G.M.C. and learnt that the injured was shifted from ward no.120 to the operation theater for treatment. PW-1, Dr. V.S. Korikanthimath, the Director of ICAR lodged the complaint at the Old Goa Police Station which complaint is at Exhibit 10. Crime No.21/2004 was registered initially for the offence punishable under sections 333 and 307 of the Indian Penal Code against the accused by PW-26. 5. PW-26 then visited the place of the incident and drew the panchanama of the scene of offence and sketch which are at Exhibit 21-colly. The statement of other witnesses were recorded and the accused who was absconding was traced and arrested on 22/2/2004. On 23/2/2004, the accused made the disclosure 5 Cria no.11 of 2011 statement about the weapon of assault that is the danda which was recovered at his instance under section 27 of the Evidence Act, under the panchanama which is at Exhibit 24 in the presence of pancha witnesses namely PW-7, Mahesh Kumar Mulani and PW- 17, Dr. Avinash Nirmale. 6. The injured Ashok Dessai succumbed to the injuries on 25/2/2004, due to which PW-26 deleted Section 307 of the I.P.C and added Section 302 of the I.P.C. to the said crime No.21/2004. Inquest panchanama was drawn and the post mortem examination of the dead body of Ashok Dessai was done by PW-12, Dr. E.J. Rodrigues. The articles were forwarded to the Central Forensic Science Laboratory at Hyderabad and the charge sheet came to be filed upon completion of the investigation. 7. The prosecution, in support of its case, examined altogether 26 witnesses. As already stated above, PW-1, Dr. V.S. Korikanthimath lodged the complaint Exhibit 10. He is not an 6 Cria no.11 of 2011 eye witness. PW-2, Maulla Suleman Balbatti was informed by one Suresh Naik about the incident and he in turn informed the same to PW-1. PW-3, Shailesh Faldessai is one of the panch witnesses for the inquest panchanama (Exhibit 13-C), over the dead body of Ashok Dessai. PW-4, Praful Anil Khandeparkar is the sole eye witness to the incident. PW-5 Ravindra G. Hegde is the Junior Engineer of P.W.D, W.D-V, Panaji who has drawn the sketch of the spot of the incident, which sketch is at Exhibit 17 colly. PW-6, Kusta Salelkar is one of the panch witnesses for the panchanama of the scene of offence which is at Exhibit 21 colly. PW-7, Mahesh Kumar Mulani and PW-17, Dr. Avinash Nirmale acted as panch witnesses for the disclosure statement made by the accused and the recovery of the danda at the instance of the accused and the said disclosure statement/recovery panchanama is at Exhibit 24. PW-8, Mohan Korgaonkar is one of the panch witnesses for the panchanama of the seizure of the clothes of the deceased, which panchanama is at Exhibit 26. PW-9, Gokuldas Kaskar was working as a gardener in ICAR at Old Goa. PW-10, 7 Cria no.11 of 2011 Amol Naik is one of the panch witnesses for the arrest panchanama in respect of the accused. The clothes worn by the accused were attached under this panchanama which is at Exhibit 29. PW-11, Yoganand Gaude was working as an electrician in ICAR at Old Goa. PW-12, Dr. E.J. Rodrigues conducted the post mortem examination on the dead body of Ashok Dessai. The memorandum of autopsy is at Exhibit 32- colly. PW-13, Hirappa Chalwadi was working as a driver for ICAR at Old Goa. PW-14, Dr. Rosario Colaco was working as Junior Resident in Neurosurgery Department of G.M.C at the relevant time and he had informed the police that Ashok Dessai was not in a fit condition to give statement. The certificate was issued by Dr. Anthony Gomes, which is at Exhibit 40. PW-15, Suresh Waman Naik was also working as a driver in said ICAR at Old Goa. PW- 16, Dr. Richa Saxena was the Senior Resident, Casualty, G.M.C, Bambolim and she had examined Ashok Dessai on 21/2/2004 at about 4.05 p.m. The certificate issued by her is at Exhibit 45. PW-18, Shraddha Nirmale is the wife of PW-17. PW-19,Vinayak 8 Cria no.11 of 2011 Kulkarni was working as a Technical Officer at ICAR Old Goa. PW-20, Advirao Dessai was working as a Scientist at ICAR Old Goa. PW-21, Libania Estrocio is the house wife who had rented out one of the rooms close to her house to the accused. PW-22, Shushant Shantran Sawant was a constable attached to the Old Goa Police Station. PW-23, J.R. Faleiro was working as a Junior Scientist at ICAR, Old Goa. PW-24, Vishwesh Karpe was then working as P.I. at Old Goa, police station. PW-25, Anant Sawal was working as Head Constable at Old Goa Police Station at the relevant time. Lastly, PW-26, Gurudas Gawde is the Police Inspector of Old Goa Police Station, who investigated the case and filed the charge-sheet. 8. Case of the accused was of denial simpliciter. He did not examine any defence witness. 9. Upon consideration of the entire evidence on record, 9 Cria no.11 of 2011 the learned trial judge came to the conclusion that the prosecution has proved beyond reasonable doubt that the accused has committed the offence of murder of Ashok Dessai. The accused has been convicted and sentenced for the said offence, as stated in the opening paragraph. The accused was in custody from the date of his arrest that is from 22/2/2004 and the sentence has been deemed to have commenced from that date. 10. Heard arguments. Learned Advocate Ms. Caroline Collasso argued on behalf of the accused whereas learned Public Prosecutor Mr. C.A. Ferreira argued on behalf of the State. 11. Perused the entire record and proceedings. 12. The fact that the deceased Ashok Dessai died homicidal death is not seriously disputed by the accused. Even otherwise, the evidence of PW-16, Dr. R. Saxena who first examined the injured Ashok Dessai on 21/2/2004 at about 10 Cria no.11 of 2011 4.05p.m. reveals that she found a contused lacerated wound of 7.5 cms. x 2 cms. x 1 cm. on the left side forehead and another wound of 6 cms. x 2 cms. x 1 cm. on left side forehead. The hurt certificate is at Exhibit 45. There is evidence on record which reveals that the deceased expired while undergoing treatment at the G.M.C. The evidence of PW-12, Dr. E.J. Rodrigues read with the memorandum of autopsy which is at Exhibit 32- colly also reveals that there was a stitched laceration of 7.5 cms. on the left forehead and another stitched laceration of 6 cms. on the left side forehead of the deceased Ashok Dessai. There was extra vassation of blood present in the said two injuries and there was a fissure fracture of 8 cms. on right side frontal bone horizontal and craniectomy of 11 x 5 cms. area in left fronto temporo parietal bones with foam gel in situ. Dura was seen stitched at multiple places. There was left frontal craniectomy of 11cms. x 5cms. Sub-arechnoid haemorrhage was present all over the brain. The opinion given by PW.12 is that the cause of death was head injury vide the said injuries no. 1 and 2, which were caused due to blunt 11 Cria no.11 of 2011 force impact by object and which were fatal in ordinary course of nature. The evidence of PW-12 also convincingly shows that the said injuries could not have occurred by a fall. From the nature of injuries and the parts of the body where they were inflicted and from the opinion of PW.12 that such injuries cannot be caused by a fall, we hold that the learned trial judge has rightly held that the death of Ashok Dessai was homicidal. 13. It is now to be seen as to whether the prosecution has proved beyond reasonable doubt that the accused is the author of the injuries sustained by Ashok Dessai, which resulted into his death. 14. From the evidence on record, which has been minutely scrutinized by us, the following undisputed facts emerge: (i) The deceased Ashok Dessi was working as a Junior Technical Assistant and was attached to Horticulture section of ICAR at Old Goa at 12 Cria no.11 of 2011 Krishi Vigyan Kendra (KVK), Carambolim under the Scientist PW-20, Advirao Dessai; (ii) The accused was a contract labourer at ICAR Old Goa and was assigned the duty of taking care of goats unit under the guidance of PW-17, Dr. A. Nirmale at (KVC) Carambolim; (iii) Grazing goats was one of the duties of the accused; (iv) There was experimental cashew plantation at KVK Carmbolim; (v) Praful Khandeparkar, PW-4 was also employed as a labourer in ICAR Old Goa and was working for the Horticulture unit and cashew plantation of KVK Carambolim was one of the units where she used to work; (vi) The accused had gone to the said cashew plantation at KVK Carambolim on the relevant day of the incident at about 2.20 p.m. along with 13 Cria no.11 of 2011 the goats for grazing and the deceased had told him to take the goats in the forest area where there is no cashew plantation and as per the instructions of the deceased the accused had taken away the goats to the forest area; (vii) The accused always used to carry the said danda /bamboo stick whenever he used to take the goats for grazing. 15. The evidence of PW-4, Praful Khandeparkar inter-alia reveals as follows: (i) On the day of the incident, she had gone to the said cashew plantation along with deceased Ashok Dessai and it was found that the accused was grazing goats in the cashew plantation due to which the deceased told him not to bring the goats in the cashew plantation and to take them towards the jungle side where there is no cashew plantation; (ii) There was some discussion between the accused and the deceased over the said issue after which 14 Cria no.11 of 2011 the accused took the goats out of the cashew plantation and PW-4 and the deceased started collecting cashew nuts; (iii) After sometime, the accused once again came to the cashew plantation with the goats and the deceased once again questioned as to why he had come again with the goats at which time the accused went behind the deceased with a bamboo stick and assaulted the deceased by giving a blow of the said bamboo stick on the rear part of his head, as a result of which Ashok Dessai fell down and thereafter the accused continued giving blows of the bamboo stick on the head of the deceased; (iv) The deceased sustained bleeding head injuries and was unconscious and when he was being assaulted, PW-4 had shouted for help by saying “Masterak marlo, marlo Dhava Dhava yeyat yeyat (supervisor is assaulted come running); (v) PW-4 called out to Gokuldas, Suresh, Kanchan and Prakash and when they came to the scene of offence, the accused ran away with the goats and the bamboo stick; (vi) PW-4 told Gokuldas that the accused had 15 Cria no.11 of 2011 assaulted Ashok Dessai with bamboo stick; (vii) Ashok Dessai was taken to G.M.C. 16. Ms Caroline Collasso, the learned counsel for the accused, argued that there is exaggeration in the evidence of PW- 4 who says in her cross-examination that the accused had inflicted 10-12 blows on the head of the deceased. She pointed out that as per the medical evidence there are only two injuries sustained by the deceased and both are on the left frontal side of the head. According to her, if the blows were given from the back side of the deceased, the injury had to be on the rear side of the head. She further contended that if 10 to 12 blows were given than there had to be more injuries on the head. She contended that the sole testimony of PW-4, on account of the above, could not have been relied upon by the trial judge. In this regard the evidence of PW- 12, Dr. E.J. Rodrigues read with the memorandum of autopsy (Exhibit 32- colly) reveals that the deceased had also sustained a fissure fracture of 8cms. length on right side frontal bone which goes to indicate that the blow/s was/were also given on the right 16 Cria no.11 of 2011 side of the head of the deceased. Further, the evidence of PW-12 read with the memorandum of autopsy also reveals that craniectomy was performed on the deceased by the neurosurgeon since the skull bones were fractured and were in pieces. Therefore, the above suggests that there were multiple injuries besides the said two injuries, and the fissure fracture,as has been rightly pointed out by the learned trial Judge. Thus, it is difficult to believe that the evidence of PW-4 is inconsistent with the medical evidence or that there is exaggeration in her deposition. 17. Learned Advocate Ms. Collasso further argued that there is inconsistency in the medical evidence given by PW-12 and PW-16. PW-16, in her cross examination, has stated that the injuries no. 1 and 2 could be caused due to violent fall on any hard surface, whereas PW-12 has stated that the said two injuries could not have been caused due to fall on a stone and has further denied the suggestion that the said injuries could be caused by violent fall on the stone. In this regard, it should be kept in mind 17 Cria no.11 of 2011 that PW-16 was only a Senior Resident of Casualty Department of G.M.C. and she had only carried out the superficial examination of the injured Ashok Dessai. PW-12 is the Associate Professor of Forensic Medicine, M.D. (Bom.), G.M.C and thus an expert and he had conducted the post mortem examination which included external as well as internal examination. Therefore, it is the opinion given by PW-12 which would prevail over that given by PW-16. Be that as it may, PW-16 has herself answered to the Court question that Dr. E.J. Rodrigues would be in a better position to state whether the injuries no.1 and 2 could be caused due to a fall or not since he had done the post mortem of the deceased. In the circumstances above, PW-4 has rightly denied the suggestion that Ashok Dessai had sustained injuries due to fall or that he had climbed cashew tree and slipped and fallen down. In our opinion, there is no discrepancy in the medical evidence of the two medical officers. The medical evidence fully supports the testimony of PW-4. 18 Cria no.11 of 2011 18. It was further argued by the learned counsel for the accused that PW-4 has been wrongly considered by the learned trial Judge as an independent witness though she was a labourer of ICAR at Old Goa. That way, the deceased was a Junior Technical Assistant of ICAR Old Goa and the accused was also a contract labourer working for ICAR Old Goa. The evidence of PW-4 and for that matter the entire evidence on record, does not reveal any reason for her to falsely implicate the accused in such a serious crime. There was no enmity between PW-4 and the accused nor there was any friendship between PW-4 and the deceased. 19. Learned Advocate Ms Collasso pointed out that PW-4, Praful Khandeparkar was cross-examined on 9/3/2005 that is after about two years from the date of the incident. According to the learned counsel, PW-4 could not have identified the danda/bamboo stick after two years as the same by which the accused had assaulted the deceased. In this regard, no 19 Cria no.11 of 2011 explanation has been sought from PW-4, in her cross- examination, as to how she could identify the bamboo stick at M.O.8 even after two years. Intelligence and memory differs from person to person and unless the same is tested in cross- examination, nothing can be commented. In any case in the further cross-examination of PW-4 done on 13/1/2006, it is admitted that the accused always used to carry the same danda/bamboo stick in his hand whenever he used to take the goats for grazing. The identification of the danda at M.O.8 by PW-4 cannot therefore be faulted with. 20. The said danda/bamboo stick at M.O.8 was recovered at the instance of the accused. In this regard, there is on record the evidence of PW-7, Mahesh Kumar Mulani who acted as one of the panch witnesses in the panchanama of the disclosure made by the accused regarding the said danda and of the recovery of the said danda at the instance of the accused, which panchanama is at (Exhibit 24). There is on record the evidence of the second panch 20 Cria no.11 of 2011 witness namely PW-17, Dr. Avinash Nirmale and lastly there is evidence of the Investigating Officer namely PW-26, Shri Gurudas Gawde. The evidence of these witnesses reveals that on 23/2/2004 when the accused was in police custody he disclosed that he had kept the wooden danda under the ladder/staircase leading to the goat shed. The evidence of the said witnesses further reveals that the accused volunteered to show the same and thereafter, the accused took them to the goat shed and removed the bamboo stick which was under the ladder and handed over the same to PW-26. PW-7 has categorically stated that the said bamboo stick was not visible till the accused had removed the same. The evidence of PW-17 and PW-26 reveals that there were stains on the said danda which looked like blood stains. The evidence further reveals that the said danda was duly packed and sealed. 21. The evidence on record reveals that the same danda attached under the panchanama (Exhibit 24) was forwarded to 21 Cria no.11 of 2011 C.F.S.L., Hyderabad and the report of C.F.S.L. which is at (Exhibit 64) shows that blood was detected on the said danda, though the origin of the blood could not be detected due to disintegration. It is seen from the records that the learned A.P.P. had filed an application under Section 293 of Cr.P.C. before the learned trial Judge for taking on record the said C.F.S.L. report for which the learned advocate for the accused had given no objection. Accordingly, the C.F.S.L report was admitted in evidence as Exhibit 64. 22. It is true that it is not known whether the blood detected on the said danda was human blood or not and the blood group is also not known. However, that does not mean that the recovery of the said danda has no relevance at all. In the present case, the same danda has been identified by PW-4 as the weapon of assault used by the accused and PW-12, Dr. E. Rodrigues has opined that the injuries no. 1 and 2 could be caused by the said danda which is at Exhibit 8. 22 Cria no.11 of 2011 23. It was argued by the learned advocate Ms Collasso that admittedly the accused used to carry the danda/bamboo stick for the purpose of grazing goats and he used to keep the danda at the usual place that is below the ladder and used to close the goat unit and hand over the keys of that unit to PW-17 or PW-18. She pointed out that PW-7 has stated in his cross-examination that there were one or two small dandas near the ladder. In such circumstances, according to the learned counsel for the accused, it cannot be held that the danda was hidden by the accused. The evidence on record does not point out that it was known to anyone that the accused had kept the danda/bamboo stick which is the subject matter of the present case at the same place where he usually used to keep the same. In fact, the evidence on record reveals that the said danda was not visible until it was lifted by the accused. There is no scope to doubt the evidence regarding the recovery of the said weapon of assault at the instance of the accused. We have no reason to disagree with the findings of the 23 Cria no.11 of 2011 learned trial Judge with regard to the recovery of the said weapon of assault at the instance of the accused. 24. The evidence of PW-23, Mr. J.R. Faleiro reveals that at about 3.15p.m., Dr. Ramchandra and Shri Balbatti told PW.1 that the accused had assaulted Ashok Dessai with danda. Assistant Sub Inspector Shetgaonkar had made station diary entry at the Old Goa police station to the effect that Shri J.R. Faleiro stated that Ashok Dessai, Junior Technical Assistant at ICAR was assaulted by the accused. Extract of the said station diary is at Exhibit 58- colly and it shows that Shri Faleiro had stated that the accused had assaulted Ashok Dessai by giving blow on his head and that this incident was witnessed by Praful Khandeparkar. 25. PW-11, Yoganand Gaude who was