IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI Criminal Appeal no.03 of 2010 Suresh Behra, s/o Dashrat Behra, r/o House No.382, Davorlim Housing Board, Margao Goa Presently at Central Jail Aguada) …. Appellant V e r s u s S T A T E through Public Prosecutor High Court at Panaji, Police Sub Inspector, Goa. …. Respondent Mr. D.P. Bhise, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. Coram: A. P. LAVANDE AND R. P. SONDURBALDOTA,JJ. Date of reserving judgment: 13/9/2011 Date of pronouncement: 29/9/2011 JUDGMENT (PER R. P. SONDURBALDOTA,J: This appeal is directed against the judgment and order dated 23/5/2008 convicting the appellant for the offence punishable under Section 302 of I.P.C. and punishing him with life imprisonment and with fine of Rs.5000/-. In default of payment of fine, the appellant is to undergo simple imprisonment for three 2 months. 2. Shorn of unnecessary details the facts alleged by the prosecution are as follows: The appellant, deceased Pratap, Daitari Shetty,(PW.4), Rukesh Behra (PW.8), one Sunil and one Guna were residing together in a room taken on rent from Shaikh Abdul Riyaz (PW.3) All these persons were employed as plumbers/helpers with one Banbihari Das,(PW.5) On 1/11/2005, the Diwali day at about 9.00p.m., PW.5 had visited the room and paid wages to everybody. Pratap then gave money to Sunil to buy beer which he did. All the persons except Ravi consumed beer. Pratap requested the appellant to put on music on his V.C.D system. The appellant refused by saying that it was too late in the night and it would disturb the neighbours. On this, Pratap got angry and slapped the appellant. With this, a fight ensued between the two. Then Ravi, Daytari, Sunil and Guna, one by one, left the room leaving the appellant and the deceased alone. All of them went to the room of PW.9 and spent the night there. 3 3. According to the prosecution, in the fight Pratap smashed the television and V.C.D belonging to the appellant. Therefore, the appellant assaulted him with a hammer which was in the room. After the assault the appellant went to the room of PW.9 and told him that he had hit Pratap with a hammer and asked PW.9 to inform PW.5. The appellant then smoked a beedi in the room of PW.9 before leaving. PW.9 had noticed that there were blood stains on the clothes of the appellant and also on his face. Ravi, Sukhdev and Nandakishor went to PW.5 to inform him about the incident. On the night of the incident police constable Govind Mandrekar,PW.6 attached to the Maina Curtorim police station was on the night patrolling duty along with police constable Mukesh, PW.18 in the area of Housing Board Davorlim. At around 4 a.m. when they were near the junction of four roads at Davorlim they noticed the appellant coming on foot. They saw that he had blood stains on his clothes and his face. When they sought to make inquiries with him he was not able to give proper answers. Therefore, they brought him to Maina Curtoim Police station and handed him over to P.S.I. Paresh Naik. 4 4. BanBihari Das, PW.5 on receiving information of the assault on Pratap from Ravi and others directly went to Maina Curtorim police station and lodged a complaint. Then PW.20 registered the F.I.R vide Crime No.76/2005 for the offence punishable under Section 302 of I.P.C. against the appellant. He visited the place of the offence along with PW.10, Suresh Ganjinkar and another pancha. At the place of the offence, he found the body of Pratap lying on the floor in a pool of blood. There was also a T.V set and V.C.D unit lying on the floor in smashed condition. Blood was seen on the walls and the door. There were glass pieces lying at the place. PW.20 then got the scene of offence panchanama (Exhibit 41) and Inquest panchanama (Exhibit 42) drawn and sent the body for post mortem examination. He got sample of blood taken by cotton gauze, sample of dried blood stains from the wall, glass pieces from the floor amongst other things and got the finger prints lifted. The appellant was shown arrested at about 9.15 a.m. 5. Dr. Andre V. Fernandes, PW.13 who had conducted the 5 post mortem examination on the body of Pratap found that it had eleven injuries, out of which, six were on the head and others on other parts of the body. The location of the injuries on the head were at (i )above medial end of left eyebrow (ii) near right ear (iii) over right temple (iv) 2 cms on the right of mid-line at the back of the head (v) left malar region to tragus of left ear. The last injury had glass pieces embedded within. As a consequence of injury no.1, the right eyeball had been displaced. There was fracture of skull with all the injuries to the head. The doctor opined that “the cause of death was due to cranio cerebral damage vide injuries nos.1 to 3 consequent to forceful impact by heavy blunt object.” As regards the time of death he opined that it was approximately within 24 hours prior to preservation in the morgue. 6. The appellant was also sent for medical examination. He was examined by PW.14 Dr. E.J. Rodrigues. PW.14 found two injuries on the body of the appellant consisting of abrasion of 3 x 2 cms x 4 cms above medial end of left eyebrow over forehead 6 and another abrasion of 5 x 2 mm, 6.5 cms above medial end of left eyebrow over the forehead. There was edema and swelling with tenderness in the area of 5 x 4 cms on the forehead. He opined that the injuries were caused by blunt surface. 7. After completing the other investigation into the offence, the police filed charge-sheet against the appellant. The appellant had pleaded not guilty to the charge framed against him. The prosecution examined twenty witnesses in support of its case, out of which, ten are formal witnesses that is the panchas, medical experts, person from Central Forensic Science Laboratory(CFSL) and the police personnel. The case of the prosecution was based on circumstantial evidence. The learned Sessions Judge on appreciation of the evidence led before him was of the opinion that the prosecution had established all the circumstances and established guilt of the appellant beyond reasonable doubt. With this finding, he convicted the appellant and awarded the sentence to him mentioned hereinabove. 7 8. Mr. Bhise, the learned counsel for the appellant takes exception to the judgment and order contending that the circumstances alleged against the appellant were not conclusively proved and therefore, the appellant deserves to be acquitted. Mr. Ferreira, the learned Public Prosecutor submitted on the other hand that considering the number of blows inflicted upon the deceased, the location of the blows, the nature of injury caused and the tool/object used in inflicting the injuries, the Trial Court was correct in holding that the appellant had caused murder of Pratap. 9) The fact of homicidal death of Pratap is not in dispute. But there is no direct evidence to the act of murder. The entire case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the prosecution to cumulatively establish the guilt of the appellant are as follows: i ) Pratap was last seen in the company of the appellant and there was a fight between the two. (ii) The appellant had made extra judicial confession to Mangulli Swail, PW.9 and 8 Nandakishor Rana, PW.11. (iii) The injuries inflicted upon Pratap were extremely grave in nature. (iv) The minor injuries found on the body of the appellant are consistent with the case of the prosecution and not otherwise explained by the appellant. (v) Soon after the incident that is at 4.00a.m.the appellant was found by PW.6 and PW.18 with blood on his clothes and face. (vi) The failure on the part of the appellant to explain blood on his clothes and the face and falsity of the plea taken by him. 10. The fact that the appellant, Pratap, Daitari,PW.4 Rukesh,PW.8, one Sunil and Guna were residing together in the room taken on rent from Shaikh Abdul Riyaz, PW.3 is not disputed. It is also not disputed that all these persons were employed as plumbers/helpers with BanBihari Das. PW.4 Daitari deposed that after receiving the wages on 1/11/2005 at about 9p.m. Pratap gave money to Sunil to buy beer. Sunil accordingly went to Leo bar at Davorlim and purchased initially six beer 9 bottles and after sometime another set of six beer bottles. PW.1, Francis Vaz is an employee of Leo bar who has deposed as to the sale of twelve beer bottles on the Diwali day. Though, PW.1 has not been able to give the name of the person purchasing the beer bottles, the fact of purchase of beer bottles stood established by the further evidence on record that all the above-named persons except Ravi had consumed beer including the appellant and the deceased. There is also material to show that the broken pieces of beer bottles were found at the place of the incident and some pieces embedded in the injury to the head of the deceased. It is the case of the prosecution that on 1/11/2005 just prior to the incident the persons present in the room were the appellant, PW.4, PW.8, Guna, Sunil, Ravi and Pratap. This fact is established by the depositions of PW.4 and PW.8. It is the evidence of these two witnesses that the beer brought by Sunil at the instance of Pratap was consumed by everybody except Ravi, who had prepared food for everybody. After consuming the food, Ravi left the room and went to the room of Mangulli, PW.9, which apart from PW.9, was occupied by Nandakishor Rana,PW.11, Sukdev Swali,PW.12, one 10 Amulya, Pagha and Bhaya. PW.4 and PW.8 deposed that Pratap had asked the appellant to put on music on the V.C.D belonging to the appellant. He, however, refused saying that it was too late in the night to put on music and the neighbours would get disturbed. On this Pratap had slapped the appellant. This led to the fight between the two. PW.4 had tried to intervene in the fight to convince the appellant, however, the appellant told him to keep away. Then, PW.4 left the room and went to the room of PW.9 leaving Guna, Sunil, the appellant and Pratap in the room. The evidence of PW.8 is that on consuming beer he fell asleep under its influence. After sometime, the appellant woke him up and asked him to run away from the room. When, PW.8 woke up he saw that there were pieces of broken T.V. and V.C.D player lying on the floor. Therefore, he ran away from the spot and went to the room of PW.9. It is the evidence of PW.9 that on the night of the incident when he was sleeping in his room, sometime late in the night Ravi came to the room. He informed PW.9 that there was some fight between the appellant and Pratap on account of V.C.D. Thereafter, PW.4, Guna, Sunil also came into the room. 11 According to him, Daitari,and Guna were so intoxicated that they fell in the bathroom and slept there only. The evidence of PW.9 is supported by the evidence of PW.11 who was in the room when PW.4, PW.8, Sunil, Guna and Ravi came. Thus, the evidence of PW.4, PW8, PW.9 and PW.11 which has withstood extensive cross examination establishes that the appellant and Pratap were last seen together on the night of 1/11/2005 and the fact of fight between the appellant and Pratap. 11. It is the evidence of PW.9 and PW.11 that sometime after the other persons came into their room, the appellant also came there. There was blood on his clothes and his face. He told PW.9 and PW.11 that he had assaulted Pratap with a hammer since Pratap had broken the V.C.D. The appellant had smoked a beedi in the room before leaving. He had also requested PW.9 to inform about the incident to PW.5, the employer. Accordingly, Ravi, Sukha and PW.11 went to PW.5 to inform him about the incident. PW.5 in his evidence has stated that Ravi had come to his house with along with others informing him about the incident. The 12 evidence of these witnesses is seen to be not shaken in the cross- examination. Therefore, the same is rightly accepted by the learned Sessions Judge. Thus, the second circumstance of extra judicial confession made by the appellant stands established. 12. The evidence of PW.10, the pancha for Inquest panchanama, the Inquest panchanama (Exhibit 42), the deposition of police surgeon, PW.13 and the autopsy report establishes that Pratap had following injuries amongst others: Injury no.1- Laceration with contused abrated margin placed horizontally oblique 7 x 5 cms into right orbital cavity deep extending from outer angle of right eye to 1.5cms above medial end of left eyebrow with surrounding bruising in an area of 9.5 x 8cms, reddish and fresh over right malar region, tip and both alae of nose,bridge of of nose, right eyebrow with underlying nasal and right maxilla bone fractures fragmented and collapsed inwards with inward displacement of the right eyeball. Injury no.2- Laceration with contused abraded margin placed vertically oblique measuring 10 x 3cms x cranial cavity deep with 13 avulsion of right ear with surrounding bruising, reddish and fresh of 9 x 8cms over the right emperor parietal occipital region involving the whole right ear pinna and lobule. The underlying skull bones are fractured, fragmented and are displaced inwards. Injury no.3- Laceration with contused abraded margins placed vertically oblique measuring 7 x 5cms in cranial cavity deep placed over right temple with surrounding oozing, reddish and fresh of 7 x 5cms over the right fronto parietal and zygoma regions. The underlying skull bones were fractured, fragmented and displaced inwards. Injury no.4- Laceration with contused abraded margins placed vertically placed measuring 4 x 1cm x 5mm thickness placed just two cms to the right of mid line at the back of head with surrounding bruises reddish and fresh of 5 x 4 cms with depressed fracture to the outer table of the occipital bone measuring 4 x 3cms with depression with 5 mm at the central point. Injury no.5- Laceration with contused margins, reddish and fresh, horizontally placed measuring 6x 1x 1cms expanding from outer aspect of left malar region to tragus of left ear with laceration 14 horizontally for the left ear pinna with green colour minute glass pieces embedded within, with surrounding lacerations to the skin of left side face and neck ranging from 5mm x 2mm to 3 mm x 1mm multiple in number in an area of 32cms x 20 cms. Injury no.6- Bruises, reddish and fresh 3 x 2cms on front outer aspect of left frontal prominence. PW.14 opined in his evidence that the injuries nos. 1 to 3 which were fatal in nature could be caused by the hammer (M.O.1) recovered from the place of offence. He further stated that injury no.4 is definitely caused by hammer as the dimension of depression of the outer table of the occipital bone measuring 4 x 3 cms corresponded with the circumference of M.O.1. He further stated that injury no.5 could be caused by more than one glass bottle, one of a green colour. This opinion was given in view of the presence of glass pieces of green colour embedded in the skin of Pratap at the place of injury no.5. It was also the opinion of PW.14 that the other injuries i.e. injury nos. 6 to 10 are also caused by the hammer (M.O.1). This evidence on the part of PW.14 is not touched in the cross examination. 15 Therefore, the same must be deemed to have been accepted by the appellant. The evidence shows that injuries found on the body of Pratap had been inflicted with the hammer (M.O1). This was a hammer used by the persons occupying the room with Pratap for doing the plumbing work. The hammer is seen to be a very heavy hammer capable of forming a formidable weapon. The injuries no.1 to 6 inflicted on the head of Pratap have resulted into not just the fracture but fragmentation of the skull. There is also dislocation of right eye. Thus the nature of injuries is proved to be extremely grave. 13. The next circumstance is of unexplained injuries on the appellant. The injuries which have been described in paragraph no.6 have not been explained by the appellant. Considering the evidence of PW.14 that those injuries could have been caused by the hammer (M.O.1) in our opinion, the same would connect the appellant to the murder of Pratap. The only person who could explain those injuries was the appellant himself. Therefore, lack of explanation by the appellant of the injuries would be a circumstance in favour of the prosecution. 16 14. The last circumstance relied upon by the prosecution is the conduct of the appellant in raising a false plea in his statement under Section 313 of Cr.P.C and failure on his part to explain the blood stains on his clothes and on his face. We will first deal with the explanation regarding the blood stains. The presence of the blood stains has been established by PW.4,PW.11, PW.6, PW.18 and panchanama of the clothes of the appellant in the presence of pancha Azam Khan, PW.7. The appellant was found at Davorilim at 4a.m. On 2/11/2005, i.e. soon after the murder of Pratap. Coincidentally the blood group of both Pratap and the appellant is the same i.e. ORh+ve. The blood on stained gauze pieces was found to be of group “O”. The stains on the hammer and the broken glass pieces were found to be of human blood, but the blood group was inconclusive. The blood on the clothes of the appellant was human blood of group “O”. Since the appellant did not have any bleeding injury it was necessary for him to explain the blood stains on his clothes and on his face. The unexplained presence of blood stains would support the 17 prosecution and be a relevant link in the chain of circumstances. 15. In his statement under Section 313 Cr.P.C, the appellant denied the blood stains on his clothes and his face the photograph of his room and also the injuries on his body. In view of the nature of the evidence before the Court this denial must be treated as false denial. In reply to the last question, the appellant has attempted to raise a defence that on the night of 1/11/2005 and 2/11/2005 he was not present in the room at all. He stated that he had gone to watch an orchestra. PW.4 Daitari had accompanied him to the orchestra. While watching the orchestra, the appellant claims to have fallen asleep there only. The police had woken him up from there and taken him to the police station. In other words, it is the defence of the appellant that at the time of commission of the murder he was elsewhere. There is no material whatsoever brought on record either during the course of cross examination of any of the witnesses or by way of other positive evidence in support of this claim. PW.4 Daitari in his cross examination admits that he and the appellant had gone to see the 18 orchestra at 7p.m. But according to him that was in the evening time and both had returned well within time. In the absence of any material in support of this claim made must be held to be a false claim. We thus find that the evidence led by the prosecution on all the above circumstances is plausible and acceptable. It does not suffer from any infirmity. Therefore, in our opinion the Sessions Court has rightly held that the appellant was the author of the injuries upon Pratap as a consequence of which injuries Pratap died. Now the next question to be considered by us is what is the offence disclosed by the facts alleged. Is it the offence of murder or the offence of culpable homicide not amounting to murder? 16. While considering a similar question the Supreme Court in its decision in the case of Pulicherla Nagaraju alias Nagaraja Reddy Vs. State of A.P. reported in (2006) 11 SCC 444 referred to its earlier decision in Virsa Singh V/s. State of Punjab (1958 Cr.L.J,818) in following manner: 19 “In Virsa Singh (supra), this Court held that a culpable homicide is a murder under Section 300 clause Thirdly, if the prosecution should establish four elements # (i) the presence of a bodily injury, (ii) nature of such bodily injury, (iii) intention on the part of the accused to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; and (iv) the injury was sufficient to cause death in the ordinary course of nature (this part of enquiry being purely objective and inferential, nothing to do with the intention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated : "In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted x x x x The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended some consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the 20 injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question." 17. The Supreme Court then summed up the circumstances from which intention to cause death can be generally gathered. It said: “Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre- meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to