1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 15 OF 2007 Shri Shivayay Marihal S/o. Apayya Marihal, r/o Mugutkhan, Hubli, Tal. Bailhongal, Dist. Belgaum, Karnataka, presently undergoing sentence, at Central Jail, Aguada Goa. .... Appellant V/s State of Goa, Through Public Prosecutor, Panaji-Goa. .... Respondent Mr. M. Amonkar, Advocate under legal aid scheme for the Appellant. Ms. W. Coutinho, Public Prosecutor for the State. CORAM : S.A. BOBDE & N.A. BRITTO, JJ. DATE : 2nd APRIL, 2008 ORAL JUDGMENT : (Per N.A. BRITTO, J.) This appeal is by the accused who has been convicted for uxoricide and sentenced to undergo life imprisonment and fine of Rs. 5,000/- under Section 302 I.P.C. 2. The accused was residing with his wife Chanawwa at the house of Shanti Shet Durbhatkar/PW3 at Durbhat, Ponda. They were last seen on 8/12/2004 at about 6.30 p.m. waiting for a bus at the bus stop at Durbhat by 2 Dinesh V. Fadte/PW2. On the same day, Constable Kishor Prabhugaonkar/PW15 was returning home at about 9.00 p.m. from Mardol to Veling on his scooter and at Farmagudi he first noticed a pair of chappals fallen on the road and then one lady fallen by the side of the road. He slowed down his scooter and saw one lady fallen by the side of the road, whose age was about 25 to 30 years and there was a green colour long pant and a long sleeves shirt with stripes of blue colour fallen by the side of the said lady. On seeing the said dead body Constable Kishor Prabhugaonkar/PW15 returned to Mardol outpost and then went to the Ponda Police Station where he lodged the complaint for murder, against unknown person. P.I. Gaonkar/PW21 then proceeded to the spot, took photographs and shifted the dead body to G.M.C. for preservation. 3. On the next date at about 8.30 a.m. Shri Gaonkar conducted scene of offence panchanama and attached a rubble stone/M.O. 1 with blood stains, a wrist watch/M.O.5 amongst may other articles. 4. The autopsy was conducted by Dr. Madhu Ghodkirekar/PW17 on 9/12/2004. Dr. Ghodkirekar found that there were abrasions with a bruise in an area of 21cms. x 21 cms. on the entire right side of the face and the front right side neck and there were fractures on the base of the skull and there was also dislocation of the left shoulder. According to Dr. Ghodkirekar/PW17, 3 the cause of death was due to cranio facio cerebral damage, vide injury no.1 and damage for the liver vide injury no.2. He opined that the said injuries could have been caused with the rubble stone M.O. No.1. 5. On 12/12/2004, the accused went to Dharwad in search of his wife at the house of the wife's sister Sharava Bassaiya Yatevedmath/PW6 where his daughter aged 9 years was residing, only to be told that his wife had not come there and that he should go in search of her. As stated by her husband Basaya/PW9 the accused then telephoned Hubli to his mother-in-law to find out whether his wife had reached there only to be told that she had not reached there. After staying with them for four days, they sent their son Kallaya and one Gurushant along with the accused to Ponda to search for her and report to Police. When Kallaya/PW10 went to the police station, he was shown a photograph of a dead female who was identified as the Chanawwa, the deceased wife of the accused. Subsequently, they identified the dead body at the GMC Morgue. The accused was arrested on the next date i.e. on 18/12/2004. 6. In the course of the trial, the prosecution examined 21 witnesses. The learned Additional Sessions Judge after considering the evidence led by the prosecution, came to the conclusion that the prosecution had successfully established the last seen circumstance i.e. the accused and the deceased 4 having been seen together at the bus stop and also the extra judicial confession made by the accused to Dr. Ghodkirekar/PW17. The learned Additional Sessions Judge also referred to the conduct of the accused and ultimately held that the prosecution had proved its case beyond reasonable doubt and proceeded to convict and sentence the accused as aforesaid. The learned Additional Sessions Judge held the circumstance of the recovery of the watch strap as not proved. 7. We shall first deal with the admission or confession which is alleged to have been made by the accused to Dr. Ghodkirekar/PW17 which is one of the circumstances held as proved against the accused. In fact, the learned Additional Sessions Judge relying upon the case of Ammini V/s State of Kerala (AIR 1998 SC 260) held that what was recorded by Dr. Ghodkirekar/PW17 amounted to an admission and, therefore, was admissible in evidence and as such the same was not hit by any of the provisions of the Evidence Act. There is serious challenge raised as regards this finding of the learned Additional Sessions Judge by the learned Counsel appearing on behalf of the accused. The learned Counsel on behalf of the accused has submitted that the accused after his arrest on 18/12/2004, was examined by Dr. Gokuldas V. Sawant/PW7, pursuant to the letter of the Police Inspector dated 18/12/2004-Exhibit 23 and to him the accused had neither made an admission nor a confession. Learned Counsel has further pointed out that 5 subsequently the accused came to be examined by Dr. Ghodkirekar/PW17 pursuant to the letter dated 20/12/2004-Exhibit 60 at which time the accused is stated to have made an admission. Learned Counsel further points out that there was no apparent reason for the Investigating Officer to have sent the accused again for medical examination when he was earlier examined by Dr. Gokuldas V. Sawant/PW7 on 18/12/2004 and Dr. Sawant/PW7 had not only mentioned the injuries found on the person but had also given the duration of the same. Referring to the fifth para of the said letter dated 20/12/2004 at Exhibit 60, learned Counsel on behalf of the accused points out that the accused had allegedly admitted the injuries before the Investigating Officer that the same were caused to him at the time of the alleged offence during the scuffle with his wife, and, in order to get confirmation of this fact, by way of admission that the accused was sent to Dr. Ghodkirekar/PW17 at GMC for his examination and recording the said statement. In support of this submission, learned Counsel on behalf of the accused, has referred to the judgment of the Division Bench of this Court (to which one of us was a party) in the case of Sarvanand @ Soiru Gaonkar V/s. State of Goa (2007 (1) Bom. C.R. (Cri.) 234). On the other hand, Ms. Coutinho, the learned Public Prosecutor has not been able to give any convincing reason as to why the accused was sent for the second time to Dr. Ghodkirekar/PW17 for examination, when he was earlier examined by Dr. Sawant/PW7 on 18/12/2004, except to say that as the matter of practice, the accused who are 6 arrested, are first sent for medical examination as required by Supreme Court Guidelines and then again are sent to Goa Medical College for examination of injuries. Ms. Coutinho has also submitted that the second examination was required to know as regards the duration of the injuries. 8. We are unable to accept the submissions made by learned Public Prosecutor. Dr. Sawant/PW7 had already opined on 18/12/2004 about the number of injuries found on the person of accused and had also given their duration i.e. that they were more than 24 hrs. of duration. The letter dated 20/12/2004-Exhibit 60, makes it apparently clear that it was motivated and all that the Investigating Officer wanted to achieve by writing the said letter, is to get confirmation from Dr. Ghodkirekar/PW17 as regards the statement allegedly made by the accused to him that the injuries found on his person were caused to him at the time of the alleged offence during his scuffle. Nevertheless, it would be pertinent to reproduce as to what Dr. Ghodkirekar/PW17 has recorded in respect of the said injuries. After describing the injuries found on the person of the accused, he stated that the accused told him that injuries no. 1,2 and 3 were sustained about 2 to 3 weeks earlier when a piece of concrete fell on him along with three other people, in Belgaum. In respect of the injuries no. 4,5 & 6 that the accused stated to him that “he sustained injuries on 8th of the month i.e. 8/12/2004 when he had a fight with his wife on a hill next to Mardol when his wife made scratches on 7 him with her finger nails. Subsequently he threw a stone on the head of his wife resulting in her death”. From the above statement recorded by Dr. Ghodkirekar/PW17, it can be seen that there is not only an admission made by the accused in relation to explaining the injuries found on the person of the accused but a confession made by him that he had caused the death of his wife by throwing a stone on her head. As regards this aspect, in the case of Sarvanand @ Soiru Gaonkar (supra) referring to the case of Ammini V/s State of Kerala, it was observed that the Apex Court had held in the said case that an admission to a Doctor is admissible in evidence as an admission and it was not hit by any provisions of Evidence Act. However, it could be seen from what was recorded by Dr. Pujari/PW10, was nothing but a whole sale confession made by the accused to him and, under suspicious circumstances. What was true in that case is also true in this case as well. Section 26 of the Evidence Act, 1872, clearly prohibits that no confession made by any person whilst he is in the custody of a Police Officer, unless it be made immediate presence of a Magistrate, shall be proved as against such person. Admittedly, no confessional statement of the accused was recorded as required under Section 164 of the Code. The distinction between an admission and a confession was noted by the Division Bench of this Court in Prakash Parab & etc. V/s. State (2006(1) AIR Bom R 775): 8 “Admissions can be proved as against the person who makes it, and Section 21 of the Evidence Act permits such admissions being proved. The contours of Section 21 are not bounded by limitations of the person being in the custody of a police officer. There is no doubt that if the admission amounts to “confession” it transgresses into the forbidden field designed in Section 26. What is a “confession”? Neither the Evidence Act nor other statutes on criminal law defines confession. Privy Council; way back in 1939 in Narayana Swami v. Emperor, AIR 1939 PC 47, made the endeavour to explain the word “confession” as used in the Evidence Act. Lord Atkin who delivered the famous judgment in that case stated thus:- “The word “confession” as used in Evidence Act cannot be construed as meaning a statement by an accused “suggesting the inference that he committed the crime”. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.” 9. The letter dated 20/12/2004-Exhibit 60 makes the intention of the Investigating Officer more than clear as already noted. The accused was already examined by Dr. Sawant/PW7 on 18/12/2004 who had noticed all the injuries found on the accused and had also given the age of the same being more than 24 hours of duration and, therefore, there was no necessity for the Investigating Officer to have sent the accused all over again to Dr. Ghodkirekar/PW17 to certify the nature and duration of the injuries. The intention of the Investigating Officer was only to get confirmation from Dr. Ghodkirekar/PW17 that what the accused had told the Investigating Officer that the same were caused during the scuffle with his wife. Considering the facts of the case, in our view, the statement recorded by Dr. 9 Ghodkirekar/PW17 would not have been used as a circumstance or a piece of evidence for the purpose of convicting the accused. It was a confession made by an accused while in custody and therefore inadmissible in evidence under Section 26 of the Evidence Act. 10. However, in our view, the other evidence on record is more than sufficient to uphold the conviction of the accused. Prosecution has convincingly proved the last seen circumstance against the accused as well as his conduct from which an irresistible conclusion can be drawn that the accused murdered his wife Chanawwa. 11. On 8/12/2004, the accused worked for Samir Fadte/PW18 and he was paid Rs. 200/- and the accused told him that he was going to Ponda with his wife to bring ration. Shanti Durbhatkar/PW3, in whose room the accused was residing, stated that on the date of incident she was at her house at Durbhat, though otherwise she resides at Vasco. She further stated that at about 7 p.m. the accused and his wife proceeded to Ponda and the wife of the accused told her that they are going to Ponda and when she questioned them as to what they would eat in the night, both replied that they would have their food in the hotel, and till about 9 p.m., the accused and his wife did not return. She further stated that on the next date at about 7 a.m. she found the accused was sleeping alone and when she asked about Sunanda, the wife of 10 the accused, the accused told her that Suandna was sent by him to their native place after giving her a sum of Rs. 3,000/- to Rs. 4,000/-. She further stated that thereafter the accused had his food and went to work and in the afternoon when he returned from work, she found him reading the newspaper, which otherwise, the accused never reads. She further stated that she was there at Durbhat for about three days and the accused was reading the newspaper and after some days she received a phone call from Premavati, her sister-in-law that Sunanda was missing. 12. Dinesh Fadte/PW2 stated that on 8/12/2004 at 6.30 p.m. he was sitting in one shop at Durbhat bazaar, when he saw the accused and his wife waiting for the bus at Durbhat and when he asked the accused as to where they were going, he replied that they were going to Ponda bazaar and when the wife of the accused started to return home because the bus was not coming, the accused brought her back and about 6.45 p.m. both of them boarded the bus and on 20/12/2004, he came to know from the police that the accused had murdered his wife. 13. The evidence of the aforesaid three witnesses and particularly Shanti Durbhatkar/PW3 and Dinesh Fadte/PW2 clearly indicates that the accused and the deceased were last seen boarding the bus at Durbhat bus stop at about 6.45 p.m. on 8/12/2004. The defence has not been able to bring anything in 11 their cross-examination so as to discredit them. Their evidence appears to be consistent and convincing. The accused gave no explanation as to what happened to his wife after both of them left to go to Ponda bazaar. The dead body of his wife was found at about 9 p.m. by Constable Kishor Prabhugaonkar/PW15 at Farmagudi. Therefore, it was obligatory on the part of the accused to satisfy the Court as to how, where and in what manner his wife parted his company. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he or she was last found has to explain the circumstances in which they parted company. The accused had failed to discharge this onus. The accused was the husband and he was responsible for her protection and well being but gave no explanation as to what happened to her after they left together to go to Ponda. His false answer to Shanti Durbhatkar/PW3 that she was sent to her native place can also be considered as an additional circumstance against the accused. It may be reiterated that once the prosecution proves that the missing person was last seen in the company of the accused then it is obligatory on his part to explain under what circumstances they parted their company. 14. In terms of Section 8 of the Evidence Act, 1872, conduct of an accused previous or subsequent, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. On 9/12/2004, the accused 12 went again to work for Samir Fadte/PW18 and was entrusted with some work. However, Samir Fadte/PW18 noticed the accused was nervous and was not doing the work properly. The accused was sitting down and on seeing him he was getting up and when he inquired with him as to what has happened he had replied that nothing had happened. It is obvious from the evidence of Samir Fadte/PW18 that the accused was in a disturbed state of mind, and obviously, for what he had done on the previous night. Shanti Durbhatkar/PW3 has stated that from the next date the accused was reading the newspaper. The only inference which could be drawn from this fact is that he was looking out to find out as to what had happened to the dead body of his wife who was murdered by him. If the accused had sent his wife to Hubli one fails to understand the reason why the accused chose to go to Dharwad to the house of his sister-in-law Sharava/PW6. The accused could have always phoned his mother-in-law in Hubli from Ponda and found out whether she had reached there. In fact, the accused did not at all state as to when he came to know that his wife had not reached Hubli in case he had sent her there with Rs. 3,000/- to Rs. 4,000/- on 8/01/2004. There is also no explanation from the accused as to why he waited till 17/12/2004 without giving a missing report of his wife in case he had realized that she had not reached Hubli where according to him she was sent. In fact, the accused did not give a missing report at any time and it appears that he went to the house of his sister-in-law, Sharava/PW6 only to give an impression of his innocence 13 or in other words to show that he was not involved in the murder of the deceased. 15. Lastly, learned Counsel Shri Amonkar has submitted that the prosecution has not proved motive in this case. Mr. Amonkar may be right. Normally, there is a motive behind every criminal act and that is why the investigating agency as well as the Courts while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. However, as stated by the Apex Court in the case of Sahadevan alias Sagadevan V/s. State rep. By Inspector of Police (AIR 2003 SC 215), motive would not hamper conviction if the circumstances relied upon by the prosecution are proved beyond doubt. As stated by this Court in Sarvanand @ Soiru Gaokar V/s. Stat of Goa (2007 (2) AIR Bom. R 29), motive is always relevant and bears a special significance in case which is based on circumstantial evidence. Absence of motive does not weaken a case but its existence certainly strengthens the case and assumes significance when there is doubt. It is of no consequence if the evidence is strong like in the present case. 16. Considering the aforesaid circumstances which have been well established by the prosecution, the only inference which arises therefrom is that it is the accused who murdered his wife by assaulting and causing 14 injuries on her face by throwing stone. In our view, the conclusion arrived at by the learned Additional Sessions Judge could not be faulted. 17. The learned Additional Sessions Judge has not specified the sentence which the accused is required to undergo in default of payment of fine. The accused shall undergo six months S.I. in default of payment of fine of Rs. 5,000/- 18. In view of the above, we find there is no merit in this appeal, and consequently, the same is hereby dismissed. S.A. BOBDE, J. N.A. BRITTO, J. NH/-