1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 2 OF 2005 Shri Sadanand Vishnu Shirodkar, Aged 32 years, R/o House No.59, Gawaswado, Ibrampur, Pernem­Goa. ... Appellant versus State through Public Prosecutor. ... Respondent Mr. R. Menezes, Advocate for the Appellant. Ms. W. Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE :10TH AUGUST, 2006. ORAL JUDGMENT This appeal is by the accused who was charged and tried under Section 302 I.P.C. but who has been convicted and sentenced under Section 304(I) I.P.C. 2 2. The accused, aged 34 years, and the deceased/Gurudas Gawas, aged 28 years, were residents of Gawaswaddo, Ibrampur in Pernem Taluka. The ward Gawaswaddo of Village Ibrampur, appears to be a locality having about 28 houses, including that of the accused as well as the deceased, within a radius of about 50 meters or so. The place of incident is a pathway in between the common well and a cowshed and beyond that there is the house of the accused at a distance of about 10.5 meters, as stated by Raghoba Naik/PW1 and as seen from the sketch­Exh.35 drawn by Satyavijay Parab/PW13. It appears that the relations between the families of the accused and the deceased were strained for about two months prior to the incident on account of complaints filed by the brother of the accused against the deceased and his family. In fact, the deceased and his family members were called by the Police for inquiry in the light of the said complaints on 8­5­2000 and the incident itself took place on 7­5­2000 at about 6.45 p.m. as the deceased/Gurudas was returning home from his field with a bundle of grass/leaves on his head. 3. According to the prosecution, when the deceased 3 reached near the said common well, the accused came with a pal koita in his hand and caught hold of the deceased and pushed him on the ground and then gave a blow of pal koita/MO6 with both his hands on his right thigh due to which the deceased sustained a bleeding injury. The news of assault upon the deceased spread immediately. Rajaram/PW2, the brother of the deceased, who was an Ex­Sarpanch and a panch of the Village at the time of the incident, came to know about the incident through Sainath Gauns/PW9 as he was sitting in a hotel/teashop of Vassant Gawas and he immediately requested Sainath Gauns/PW9 to arrange for a vehicle to take the deceased/Gurudas to the hospital and he along with others including Raghoba Naik/PW1 proceeded to lodge a complaint in a rickshaw, arranged by them. On their way to the Police Station, at Hankane they saw the Police jeep proceeding towards Ibrampur and they returned back along with the Police. It appears that the Police had received a message about the assault by the accused. Sainath Gauns/PW9 took the deceased/ Gurudas to Kasarwada Health Centre by a mini bus named Laxminarayan but the deceased was not admitted there and was directed to be taken to Goa Medical College where the doctor declared the 4 deceased as brought dead. Rajaram Gawas/PW2 in the meanwhile proceeded to Pernem Police Station by Tata Sumo where he came to know that his brother had expired and lodged a complaint which was recorded at about 10.00 p.m. whereupon the I.O.Shri Mapari/PW16 came back to the scene, but as stated by him, did not carry out the scene of offence panchanama due to darkness and directed A.S.I. Sawant and staff to guard the scene. Shri Mapari/PW16 did not find the accused at his house and therefore he secured the presence of the brother of the accused by name Naresh Shirodkar who was working as a Police Constable at Mapusa and proceeded in search of the accused at the houses of his relatives, and as stated by him, at about 3.30 a.m. or so, the accused was traced at Hadus. Shri Mapari/PW16 stated that the accused started running on hearing the noise of the jeep and as he was running the accused fell down and sustained minor injuries to his head. 4. The accused was brought to the Police Station and arrested. At the time of arrest of the accused, the clothes worn by the accused namely a short pant/MO7 and a towel/MO8 were attached by Shri Mapari/PW16 in the presence of Joaquim 5 Lobo/PW6 at about 4.30 a.m. or so on 8­5­2002. In the presence of Raghoba Naik/PW1 a scene of offence panchanama was drawn at about 9.00 a.m. on 8­5­2000. Needless to observe the scene of offence is near the said pathway in between the common well and the cowshed, from where Shri Mapari/PW16 attached one pair of rubber slippers/MO3 and a single slipper of right leg/MO4 and a 5 rupee coin. Shri Mapari/PW16 also took two samples of mud, one mixed with blood/Exh.1 and one without it/Exh.2. 5. The investigations continued and after completion a chargesheet was filed against the accused under Section 302 I.P.C. 6. In the trial, the prosecution examined 16 witnesses to prove its case. The accused examined 3 witnesses, all Medical Officers, in defence. 7. As already stated, the scene of offence panchanama was conducted in the presence of Raghoba/PW1 at about 9.00 a.m. on 8­5­2000. According to Raghoba/PW1, Ajit/PW4 is a 6 resident of the same ward who was present and had shown the place of incident as between the places where there was a cowshed and a well. Ajit/PW4 has confirmed that he had shown the place of incident to the Police. Although he has stated that he did not recollect the names of the panch witnesses, one Mohan Naik and Deelip Halarnkar were present at that time. At the same time, he stated that he went away after showing the place of incident to the Police and he was not even present when the photographs were taken. In fact, the photographs were produced through Raghoba/PW1. Ajit/PW4 in his cross­ examination stated that the accused was present at the place of incident along with the Police when he reached there. It is submitted on behalf of the accused, that in case the accused was present to show the scene to the Police there was no question of Ajit/PW4 being called there to show the scene of offence, as stated by Raghoba/PW1. There is nothing in the evidence of Raghoba/PW1 or for that matter in the evidence of Shri Mapari/PW16 even to remotely suggest that at the time when the panchanama was drawn the accused was present along with the Police party at the scene of offence and therefore one need not place much significance on the statement of Ajit/PW4 7 regarding the presence of accused, to disbelieve Raghoba/PW1 or Shri Mapari/PW16. The said statement of Ajit/PW4 appears to be an improvement in his version and otherwise does not sound to be probable, considering the other facts of the case. It is also pointed out on behalf of the accused that if two samples of mud were taken from the scene, one with blood and the other without blood, both the samples could not have been found, when sent to CFSL, Hyderabad, with human blood. It is contended that the fact that both the said samples of mud have been found with blood creates sufficient doubt as to the veracity of the case of the prosecution, the same having been taken from the scene of offence. It is quite probable that considering the injuries suffered by the deceased the blood was all over the place where the body of the deceased was found and it is also quite probable that the sample of mud which according to the I.O. Shri Mapari/PW16 he took as plain sample was indeed having stains of blood in it and for that reason both the samples were found with blood when sent to CFSL, Hyderabad. The accused is entitled to only a reasonable doubt. The fact that both the samples were in fact found with human blood is not sufficient to create any doubt as regards the scene of offence panchanama 8 and the evidence of Raghoba/PW1 and the I.O. Shri Mapari/PW16. In fact, there was no dispute at all as regards the place of the incident. 8. The case of the prosecution is based on the evidence of 3 eye witnesses, namely Ajit/PW4, Dattaram/PW5 and Santosh/PW7. The case of the prosecution is also based on circumstantial evidence namely the recovery of the pal koita/MO6 at the instance of the accused and the towel/MO8 having been found with human blood regarding which the accused has offered no explanation. The case of the prosecution is also based on the evidence of other witnesses which we may call supporting evidence, which further corroborates the evidence of the said 3 eye witnesses, referred to hereinabove. 9. To prove its case that the death of the deceased was homicidal, the prosecution examined Dr. Sapeco/PW11. According to the accused, the death of the deceased was accidental. As far as the injuries on the accused are concerned, according to the prosecution they were sustained by him, as the accused in an attempt to run, fell down and sustained the same. 9 However, as per the accused he had sustained the said injuries when he was assaulted by the family of the deceased. As far as the defence of the accused goes, the accused chose to remain silent when he was examined under Section 313 of the Code of Criminal Procedure, 1973(Code, for short) as regards the injuries on him. The defence of the accused, as can be gathered from the cross­examination and suggestions put to the prosecution witnesses is that there was an enmity between both the families, of the accused and the deceased. The accused and his brothers had lodged several complaints against the deceased and his family members and no action was taken by the Police. It was the case of the accused that on the relevant date about 25 to 30 members of the Gawas family, which includes the deceased, came to his house armed with dandas and stones and damaged his house and one of the members of the Gawas family assaulted the accused by giving a blow of danda on his head and the accused managed to run away from the house after which his sister was locked inside the house and thereafter there was some noise and upon hearing the noise the members of the Gawas family came running in all directions and the deceased/Gurudas who was returning home with a bundle of grass/leaves on his 10 head also started running in the said direction, he slipped and fell on the koita which was in the bundle of grass and as a result sustained the said injury on his thigh. The accused stated that he was falsely implicated. As far as the enmity between both the families is concerned there appears to be no dispute as regards the same as the families of the accused and the deceased had a dispute as regards a right of way and about two complaints were previously filed against the family of the deceased and not only that the Police had called some of the members of the family of the deceased for inquiry on the next date. The accused did not even specify as to which of the members of the Gawas family had assaulted him to cause the said injury and gave no explanation whatsoever as to why he did not even lodge a complaint as regards the said incident of assault upon him or upon his house. The medical evidence produced on behalf of both the parties namely of Dr. Sapeco/PW11 as well as the medical evidence produced on behalf of the accused namely of Dr. Ram Swamy/DW1, Dr.Deelip/DW2 and Dr.Rajan/DW3, shows that the accused was examined prior to 11.35 a.m. on 8­5­2002 by Dr. Satish Pednekar at the upgraded Primary Health Centre at Pernem. The accused did not summon and examine the said 11 Dr. Satish Pednekar but the Medical Certificate­Exh.55 produced through Dr. Swamy/DW1 shows that the accused was examined on 8­5­2002 but at the time of examination no history of any sort given by the accused was recorded on the said Medical Certificate­Exh.55. Dr. Deelip/DW2 examined the accused on 10­5­2002 and at that time he noticed a haematoma on the right thumb and another haematoma on the right mid thigh and a sutured CLW which according to Dr. Deelip/DW2 was sutured by Dr. Satish Pednekar. Dr. Sapeco/PW11 examined the accused on 8­5­2002 but at about 1.30 p.m. Dr. Swamy/DW1 has not been able to state as to who had referred the accused to the upgraded Primary Health Centre at Pernem either on 8­5­2002 or 10­5­2002 but Dr. Sapeco/PW11 has produced a letter written by Shri Mapari/PW16 at Exh.27 to show that he had examined the accused at the request of the said Police Inspector. According to Dr. Sapeco/PW11 he found that the accused was of robust athletic built. He also found that the accused was having a stitched lacerated wound on the frontal eminence of the scalp and according to Dr. Sapeco/PW11 the accused told him that after assaulting his neighbour Gurudas M. Gawas he ran away to Hadus at Goa­Maharashtra border and when Police jeep stopped 12 near the hiding place he ran away and thus sustained the injuries due to the violent fall at about 3.30 a.m. of 8­5­2002. There is no doubt that the accused on being examined by Dr. Deelip/DW2 on 10­5­2002 gave history of assault with danda on 7­5­2002 at around 7.30 p.m. It is submitted on behalf of the accused that the explanation of Dr. Deelip/DW2 be accepted as sufficient explanation to falsify the case of the prosecution. In my view, such an explanation cannot at all be accepted, for as already stated, the accused himself when he was examined under Section 313 of the Code did not even whisper anything as to the cause of the injuries on him. Not only that, the accused did not lodge any complaint at any time as regards the alleged incident. The accused also did not give the history of the said injury to Dr. Satish Pednekar when the accused was examined on 8­5­2002, and if any history the accused had given, the said Dr. Satish Pednekar would have certainly recorded the same on Certificate­Exh.55. On the contrary, the accused at the earliest opportunity explained the cause of the said injuries to Dr. Sapeco/PW11 namely that they were caused as he fell down when he attempted to run on seeing the Police jeep. The said version of the accused as given by him to Dr. Sapeco/PW11 is 13 sufficiently corroborated by Shri Mapari/PW16 and has got to be accepted. The evidence of Dr. Rajan/DW3 is of no use to the case of defence. All that Dr. Rajan/DW3 stated is that the deceased was brought to Goa Medical College on 7­5­2002 at 7.10 p.m. and he was declared as brought dead, and, therefore was transferred to the Forensic Department. Dr. Sapeco/PW11 upon the post mortem examination found that the deceased was having a chop cut injury of 13 x 8 x 8 cms. on the right lower fourth back of thigh directed medially and downwards, 8 cms. above the crease of knee joint with protrusion of chopped hem muscles, directed obliquely from inner to outer aspect and from left to right and upwards. According to Dr. Sapeco/PW11 the death of the deceased was caused due to hemorrhagic shock vide the said injury which was caused by impact of chopped weapon and which was fresh at the time of death and was fatal in the ordinary course of nature. Dr. Sapeco/PW11 also stated that the said injury was at the back side of the right thigh and it was a stabbed injury. Dr. Sapeco also opined that in case a person with a heap of grass on his head along with pal koita on the said heap of grass falls on his back side, the said injury could not have been caused. In other words, the evidence of 14 Dr. Sapeco/PW11 is in conformity with the versions given by Ajit/PW4 as well as Dattaram/PW5 and militates against the defence put forward by the accused. The medical evidence led on behalf of both the parties therefore supports the case of the prosecution rather than the case of the accused, as put forward by the accused in the cross­examination of the prosecution witnesses. 10. That takes us to the evidence of the eye witnesses examined by the prosecution. Ajit/PW4 is no doubt a cousin of the deceased. According to him, on 7­5­2000 at about 6.30 p.m. he was returning with his cattle and when he reached near the common well, he saw the deceased also returning from his chilli plantation and was proceeding towards his house, with a bundle of grass on his head and Dattaram/PW5 was walking behind the deceased/Gurudas at a distance of about 25 to 30 meters and when the deceased/Gurudas reached near the said common well the accused came in front of him with a pal koita in his hand. According to him, the deceased had a towel wrapped on his waist and he asked the deceased "Kai re madan zalla" and pushed him and the deceased/Gurudas fell down and then the 15 accused lifted the pal koita with both his hands and gave a blow on the right thigh of the deceased/Gurudas. He also stated that when the accused pushed the deceased/Gurudas, the deceased/Gurudas asked him as to why he had pushed him down. According to him, the accused gave a forceful blow of pal koita on the thigh of the deceased/Gurudas and ran away towards his house after assaulting the deceased. According to him, Dattaram/PW5 and Santosh/PW7 went near the deceased/Gurudas and lifted him. He identified the slipper of the right leg/MO4 as belonging to the deceased/Gurudas and a pair of slippers/MO3 as belonging to the accused being the slippers which were lying at the place of incident. In cross­ examination, he admitted that about two months prior to the incident there were disputes between the Gawas family and the family of the accused and prior to that their relations were cordial and although after filing of the complaints both the families were not visiting each other, they were in talking terms. Dattaram/PW5 stated that he was returning home at about 6.45 p.m. and had seen the deceased/Gurudas walking ahead of him at a distance of about 25 to 30 meters and the deceased/Gurudas was carrying a bunch of chillies and fresh grass on his head. 16 According to him, Ajit/PW4 was near the common well with his cattle and the accused came from the opposite direction, wearing a shirt and a towel around his waist and he was having a pal koita in his right hand and when the deceased reached near the well the accused also reached near him and they were in front of one another and at that time the accused caught hold of the deceased/Gurudas by his collar from the front asking him "Madan zalla?" and pushed the deceased/Gurudas who fell on the ground with his face touching the ground and thereafter the accused assaulted the deceased/Gurudas with the pal koita holding it with both his hands on his right thigh and the accused then ran with the said pal koita into his house which is about 15 to 20 meters from the place of incident. According to him, Ajit/PW4 rushed near the deceased/Gurudas and shouted for help and Santosh/PW7 came there and all three of them lifted the deceased/Gurudas and by that time people gathered. He identified the towel/MO8 of the accused but stated that he could not identify the pal koita of the accused. He identified the single slipper/MO4 as that of the accused and the pair of slippers/MO3 as those of the deceased. In his cross­examination it was brought to his notice that he had not stated in his 17 statement to the Police that the accused had caught hold of the collar of the deceased/Gurudas from the front and he could not give any explanation as to the said omission. It was also brought to his notice that he had not stated to the Police that the deceased had fallen down with his face to the ground and was unable to give any explanation as to the said omission. He denied the suggestion that anyone from the house of the deceased/Gurudas had hit a danda on the accused. Santosh/PW7 stated that he was in their cowshed putting grass to their cattle and he saw the deceased carrying a bunch of grass over his head returning from chilli plantation and when the deceased/Gurudas had reached near the well the accused came and said "kai re mandan zalla" and pushed him down by holding a bunch of grass and pulling it and whilst the deceased/Gurudas fell down, the accused assaulted the deceased/Gurudas on his right thigh back side and the deceased/Gurudas fell down and sustained bleeding injury and became unconscious. He further stated that the accused was wearing a short pant and a towel around his waist and was not wearing anything above and thereafter the accused went to his house from the back side door. He further stated that Ajit/PW4 and Dattaram/PW5 came 18 there and called other people and the deceased/Gurudas was shifted from the place to the main road and was taken by Laxminarayan bus and the deceased/Gurudas died on the same night. In cross­examination he admitted that his statement was recorded on 9­5­2002 and it was also brought to his notice that in his statement to the Police, he had not stated that the accused had pushed the deceased/Gurudas down by catching a bundle of grass and he could not give any explanation as to the said omission. In further cross­examination he admitted that he had told the Police that the deceased/Gurudas was assaulted by the accused with a koita when he was lying on the ground and the deceased/Gurudas had fallen down with his face upwards. He also stated that at Ibrampur, people who go to the fields carry a pal koita. He also admitted that the accused and his family members had lodged various complaints against them at Pernem Police Station. 11. Firstly, it is submitted on behalf of the accused that the statements of Ajit/PW4 and Dattaram/PW5 were recorded on 8­5­2002 whilst that of Santosh/PW7 was recorded on 9­5­2002 and therefore they have been recorded with delay when 19 otherwise they could have been recorded on the same day. It is further submitted that according to Ajit/PW4 himself, he had gone to the Police Station with his own clothes stained with blood and there is no reason why his statement could not have been recorded on that day. There is no doubt that the statement of Ajit/PW4 could have been recorded on 8­5­2002 but that by itself is not sufficient to discard the evidence either of Ajit/PW4 or for that matter Dattaram/PW5 or Santosh/PW7 whose statement was recorded on the next date i.e. on 9­5­2002. On this aspect reference could be made to the case of Dr. Krishna Pal and another v. State of U.P. ((1996) 7 SCC 194) wherein the Supreme Court has stated that in cases of inordinate delay in examining witnesses the convincing and reliable evidences adduced cannot be discarded. The Supreme Court also referred to the case of Karnel Singh v. State of M.P.((1995) 5 SCC 518) and observed that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. Considering that the statements of Ajit/PW4 and Dattaram/PW5 were recorded on 8­5­2002 i.e. almost on the 20 same day, if I may say so, and that of Santosh/PW7 on