1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.1 OF 2005. Shri Jose Pinto, r/o. H. No.727, Goechembhat, Velli, Salcete, Goa. ... Appellant. Versus State, through Cuncolim Police Station ... Respondent Mr. Nitin Sardessai , Advocate for the appellant. Ms W. Coutinho, Public Prosecutor for the respondent. Coram :- S. A. BOBDE, & R. C. CHAVAN, JJ. Date : - 18 th June, 2008. ORAL JUDGMENT :( PER R. C. CHAVAN, J. ) 1. This appeal is directed against the conviction of the appellant for the offence of murder punishable U/s.302 of the Indian Penal Code, recorded by the learned Additional Session Judge, South Goa, Margao in Sessions Case No.46/2001, and the sentence of imprisonment for life and fine of Rs.5,000/- imposed upon the appellant by the learned Judge. 2. Facts which led to prosecution and conviction of the appellant are indeed tragic. On 09.09.2001, the appellant's younger 2 brother Lourdes Pinto, the victim, went to a local feast wearing appellant's shirt. Infuriated on not being able to wear the shirt for going to feast, the appellant stabbed his younger brother Lourdes Pinto with a knife on the chest leading to death of Lourdes Pinto. The appellant's, as well as victim's father, Santan Pinto was informed of the incident, and on his report, an offence was registered in Police Station, Cuncolim. 3. The accused was arrested. Soon thereafter, the clothes which the accused was wearing at the time of offence were seized. After performing inquest on the dead body, the body was sent for postmortem examination, which revealed that the victim had died on account of 2 incise stab wounds which were sufficient in ordinary course of nature to cause death. Samples relating to victim were also collected and seized. All samples collected were sent to Forensic Science Laboratory, report wherefrom revealed that the clothes of accused were stained with blood of group A, which belongs to the victim. The blood group of accused had also been ascertained to be O positive. In the course of investigation, the police recorded statement of witnesses which included 2 eye-witnesses - Domacinha Fernandes and Gabrielino Pinto, who were examined at the trial as P.W.9 and 10. In the course of investigation, upon interrogation, the accused allegedly agreed to produce knife which was then seized from the house of the accused. On completion of investigation, a chargesheet was sent to the 3 Court of Judicial Magistrate, First Class, Margao who committed the case for trial before the Court of Sessions at Margao. 4. The appellant pleaded not guilty to the charge of murder framed by the learned Session Judge. At the trial, the prosecution examined in all 13 witnesses ( P.W.11 Head Constable Namshekar was examined again as P.W. 14 ). The vacillating defence of the accused was that of denial, as also about an altercation between him and his brother. Upon consideration of prosecution evidence, in light of the defence taken, the learned Session Judge convicted and sentenced the appellant as indicated above. Aggrieved thereby the convict has preferred this appeal. 5. We have heard Advocate Mr.Sardessai for the appellant and learned Public Prosecutor Ms Winnie Coutinho for the State. There is no dispute that the victim met with homicidal death and, therefore, it is not necessary to refer to the evidence of P.W.3, Lawrenco on inquest, and that of P.W.4 Dr. Pujari, who conducted postmortem examination on the dead body, the report whereof is at Exh.23. It may be, however, useful to mention that the postmortem examination disclosed the following 2 surface wounds, with corresponding internal injuries as described below. “ Surface wounds :- 1. Incised stabbed wound 4 elliptical (?), spindal (?) shaped, both angles acute with margins clean cut, regular, sharp well defined. No evidence of any abrasion around hilt mark. of size 1.5 cms. X 0.5 cms. (maximum at centre) x cavity deep, on chest front right side on the line joining both nipples. 1.5 cms right of mid line, 6 cms medial to right nipple, 13 cms below supra sternal notch almost horizontal.” 2. of similar nature as that of injury no.1, having size of 1.5 cms x 0.5 cms. (maximum at centre) x cavity deep,oblique, outer ends downwards on back of chest left side 2.5 cms below and medial to apex of posterior axiliary fold and 3 cms (4 cms?) below shoulder line and from mid line. Both these injuries were caused by sharp object and were ante mortem. Internal injuries :- “ On dissection (?) of external injury no.1 the weapon has pierced (?) the skin, sub cutaneous (?) tissue, pierced through the stomach in same plain came out in cavity through media sternum (?), pierced the pericardium (?) in same plain pierced the right ventricular (?) anterior (?) wall entered its chamber and after piercing the posterior wall came out in same plain as that of external injury. The pericardial cavity containing 150 cc of blood clots. Direction is from right to left, backwards, downwards. The approximate depth about 8 to 10 cms. On dissection (?) of injury no.2,it has pierced the skin sub cutaneous (?) tissue, muscles, the inter coastal (?) space, muscles of 3rd space, pierced the parietal pleura (?) entered chest cavity, pierced the lower lobe of left lunge at upper 5 part for about 4 cms. Left plural cavity was containing about 1450 cc of blood clots. The external injury and the corresponding internal injury were in same plain. Direction back to front, medially downwards. Approximate depth 8 to 10 cms. ” It is not necessary to refer the injury Nos.3 & 4 which were abrasions, and which could have been caused due to fall. Dr. Pujari seems to have also ascertained the blood group of the appellant and found it to be 'O' Rh positive according to the certificate at Exh.24. 6. According to learned Counsel for the appellant, the learned Session Judge should not have convicted the appellant considering several discrepancies in the prosecution case pointing out to a probability that the appellant was not the assailant, who inflicted stab wounds leading to death of Lourdes Pinto. He has submitted that exhibits seized in presence of P.W.2 Joaquim while arresting the accused, by making panchanama at Exh.17 were not sealed. P.W. 2 Joaquim was a panch at the arrest of the appellant and seizure of his clothes. At the end of his cross-examination, he stated that it was not true to suggest that the clothes were sealed in his presence. P.W.13, P.I., Desai, the Investigating Officer however, stated in his examination- in-chief itself that the clothes were duly sealed and claimed to have sent those clothes to the Forensic Science Laboratory. 6 7. The report of the Forensic Science Laboratory is at Exh.45. The report of the Laboratory shows that the victim's clothes had stains of blood group A which was of the same group of blood found on the T shirt seized from the accused vide Exh.17. According to the learned Counsel for the appellant, in view of the denial by P.W.2 Joaquim that the sample was sealed in his presence, this finding of the Forensic Science Laboratory loses all significance. He further submitted that the panchanama at Exh.17 itself does not make a reference to existence of any blood stains on the T shirt seized from the accused. As rightly countered by the learned Public Prosecutor, mere absence of reference in the panchanama to existence of blood stains on the T shirt cannot result in the conclusion that the shirt did not have stains of blood when seized. It may be a negligent omission on the part of the Investigating Officer. Further, the response of the P.W.2 Joaquim to the suggestion in cross-examination cannot result in an inference that the shirt was indeed not sealed. Slight deviation by a witness cannot lead to the conclusion that the evidence of Investigating Officer as regards the procedure followed by him is not correct. 8. The learned Counsel for the appellant next submitted that the prosecution evidence is extremely deficient and inconsistent as regards the location of the spot at which the victim was murdered. P.W.6, 7 Rosario, Panch on spot panchanama at Exh.29, created a doubt as to the person, who had shown the spot. Rosario stated in his examination-in- chief that one Santan Pinto was present at the place of incident. Santan Pinto, the father of the victim and the accused, who was examined as P.W.1, had not stated anything about his participation in that part of investigation where panchanama of spot was recorded. P.W.6, Rosario stated in his cross-examination that though the father of the accused is also Santan Pinto, the person, who showed the spot was another Santan Pinto and not the father of the accused. P.W.13, Uttam Raut Desai, P.I., Investigating Officer, however, stated that the spot was shown by P.W.1 Santan Pinto. 9. Rosario's claim that another Santan Pinto had shown the spot does not outweigh P.W.13, P.I. Desai's version that P.W.1, Santan had shown the spot, though Santan himself was silent, since evidence nowhere indicates possibility of another Santan Pinto knowing the spot. In any case, since even PW.1 Santan had not seen the incident, his showing the spot is a mere formality. Panchanama at Exh.29 is cryptic and does not indeed give a clear picture of the spot. It records, among other things, that a patch of dry blood on tar road was dug up and seized.. It too was subsequently sent to the Forensic Science Laboratory along with other samples. P.W.11 and 14, Head Constable, Namshekar claims that he was along with P.I. Desai on the date of incident and, 8 therefore, had in fact taken out some photographs of the spot which he proved when he reappeared as P.W.14. The photographs proved by him at Exh. 50 too are not of much help in getting clear idea of the scene of offence. P.W.11, Namshekar stated that in November 2001, as per the directions of Investigating Officer, he showed the spot to the draftsman for preparing a sketch. The draftsman P.W.7 Gurudas claims to have prepared the sketch as per spot shown by P.W.11, Head Constable Namshekar. This sketch is at Exh.32. While the sketch and evidence of these 2 witnesses would indicate existence of several structures along the road connecting Vellim-Nagdole and Cuncolim to Gotnam roads, the sketch and the evidence are deficient not indicating who are the owners of the house No.173 and some other houses shown in the sketch. The sketch shows that the road was about 3.30 metres wide and the offence took place by the side of the road at the distance of 3.50 metres from the house No.173. 10. P.W.1, Santan Pinto had stated that when he returned after receiving message about the incident, he saw his son fallen on the road in front of his house. The learned Counsel for the appellant submitted that since the house No.727 of the deceased is away from the asphalted road, it is obvious that the spot where P.W.1 Santan found his son was different from the spot shown in the sketch at Exh.32. We are afraid that such inference cannot be drawn since no other road is shown in the 9 sketch to be around the house of the deceased. In order to draw such an inference it would have been necessary for the defence to draw the attention of the witness to the sketch and ascertain from him as to where he had seen his son lying. 11. P.W. 9, eye-witness Domacinha Fernandes had stated that the house of the accused is at the distance about 200 to 300 metres from her house. This does not appear to be an incorrect statement since the other house near the road shown in the sketch at Exh.32 appears to be at considerable distance from the house of the deceased. She stated that her house was situated very close to the main road and, therefore, it is probable that the house No.173 is her house. P.W.13, Investigating Officer, P.I. Desai had stated in his cross-examination that the house of the accused was 100 to 200 metres away from the scene of offence. The learned Counsel for the appellant submitted that this is contrary to the statement of P.W.9, Domacinha Fernandes that the house of the accused was 200 to 300 metres from her house ( since the incident had taken place in front of her house). It may be seen that when the witnesses are referring to the distances with a margin as wide as 100 metres, it would be inappropriate to infer on the basis of such evidence that the spot of incident indicated by them is different. In our view, this discrepancy is thoroughly insignificant. Consequently, the argument of the learned Counsel for the appellant that the police have deliberately shifted the 10 spot of incident to suit a particular inference, has to be rejected. 12. The learned Counsel for the appellant next submitted that the evidence on record, particularly that of P.W.13, P.I. Desai, shows that the appellant himself had not run away and was very much present in the vicinity of the spot of incident. This conduct, according to the learned Counsel, is inconsistent with guilt of the appellant and was consistent with his innocence. The appellant had been picked up on the same day. P.I. Desai stated in his cross-examination that he did not find the appellant to be drunk at the time of his arrest. P.I. Desai stated that he had not personally gone to the house of the accused to arrest the appellant but his staff has brought the appellant to the police station from one liquor bar. 13. The learned Counsel for the appellant next submitted that the motive assigned for this murder, that appellant's brother had worn appellant's shirt for going to feast, is extremely weak and when considered with the presence of the appellant in the vicinity of house even after the incident, points to his innocence. First, it is not necessary that after committing a crime a person would necessarily flee. Every person reacts to an incident differently and it could either be that the consequences of his action had not sunk in the mind of the appellant leading him to stay where he was, or he felt that there was nowhere to 11 go or no way to escape from consequences which made him stay there. In any case, as rightly pointed out by the learned Public Prosecutor, this question would have assumed significance had the case rested entirely on circumstantial evidence. The learned Counsel for the appellant is undoubtedly right in relying on observations of the Apex Court in paragraph Nos. 179 and 180 of the judgment in Sharad Sarda Versus State of Maharashtra, reported in (1984) 4 SCC 116 to the following effect : “179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well established rule of criminal justice is that “fouler the crime higher the proof. ” In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.” However, it cannot be overlooked that Sharad's case rested on circumstantial evidence, whereas we are confronted here with a case based on ocular testimony of P.W.9 Domacinha. Even so, the principle “fouler the crime higher the proof ”, would be borne in mind by us. 12 14. Apart from the evidence discussed above the case rests on the testimony of sole eye-witness P.W.9, Domacinha. The other eye- witness, P.W.10, Gabrielino Pinto, has turned hostile. P.W.10 Gabrielino, however, categorically stated that she had seen P.W.9 Domacinha at the scene of offence. To this extent, she lends corroboration to the word of P.W.9 Domacinha, which, however, does not require any corroboration in view of the fact that the appellant had himself not disputed the presence of P.W.9 Domacinha at the time of incident. The following two suggestions to this witness towards the end of her cross-examination would show that the presence of P.W.9 Domacinha is not disputed by the appellant. “It is not true to sugg(suggest) that after I told the accd(accused) and the deceased not to fight in front of my house, both of them went far away and I was inside my house and does not know what happened thereafter. It is not true to sugg(suggest) that the deceased and my son came together from the feast and both had consumed the liquor, and that the accd (accused) questioned them as to why they removed his shirt and therefore,my son and the deceased started assaulting the accd (accused) in front of my house.” 15. P.W.9 Domacinha states that she was standing outside her house and talking with P.W.10 Gabrielino. The victim returned from the feast. The appellant caught hold the collar of the victim and started fighting. She told them not to fight in front of her house. Whereupon, 13 the appellant pulled his brother on the road and then stabbed the victim with a knife on his back. The appellant then inflicted one more blow of knife on the chest of the victim. She claimed to have cried for help, whereupon people gathered. She claimed to have given a piece of saree to tie the wound of the victim. It may be useful to indicate here that the panchanama of seizure of clothes of the deceased at Exh.20 refers to this piece of saree which had been identified by P.W.9, Domacinha as one which had been used for tying the wound of the victim. 16. The cross-examination of this witness does not indicate anything to disbelieve her word that she had seen the incident. She denied repeatedly that she had gone inside the house after talking the victim and the accused not to fight in front of her house. It was suggested to her that her son Valeiriano was a friend of the deceased and that Valeiriano and the deceased had taken out the shirt of the accused with the help of a stick (presumably from a window). These suggestions to this witness on behalf of the appellant not only indicate that the cause of quarrel between victim and the appellant was a shirt which victim had worn but also that the witness was very much present when the stabbing took place. There is no reason attributed to this witness as to why she would be falsely implicating the appellant in the incident. 14 17. The learned Public Prosecutor, relying on the judgment of Supreme Court in Kapoor sing Versus State of Punjab reported in 1995, SCC (Cri) 944, submitted that the testimonies of eye-witnesses cannot be discarded merely because they cannot speak with mathematicaly precision. We have gone through the testimony of P.W.9 Domacinha Fernandes very carefully and find that it has a ring of truth which rightly led the learned Session Judge to accept it as trustworthy. Had there been any doubt, the appellant would have been entitled to its benefit, but such doubt has to be doubt of reasonable mind and not one of a weak and vacillating mind. 18. “The 13th chime of a crazy clock” which the learned Counsel for the appellant wanted us to hear from this evidence was thus not to be heard and, therefore, we do not find that the conclusion drawn by the learned Session Judge that the appellant was the author of the two injuries inflicted on the victim which led to victim's death, was incorrect. 19. The learned Counsel for the appellant made feeble attempt to suggest that the incident was not premeditated and assault was a result of quarrel which might have erupted between brothers and, therefore, the appellant could be given a benefit of lesser sentence U/s.304 of Indian Penal Code. First, the defence has not laid any 15 foundation for such a course at the trial. Secondly, presence or absence of premeditation in launching murderous assault would be of no consequence when the blows inflicted themselves are indicative of a clear intention to cause death. At the cost of repetition, we may point out that P.W.4 Dr. Pujari had observed that the weapon had pierced the skin, sub cutaneous tissue, stomach, entered cavity through media sternum, pierced the pericardium, right ventricular anterior wall, entered heart's chamber and after piercing the posterior wall came out in the same plain. The force with which this injury was caused would leave no doubt as to the intention of the appellant. In this view of the matter, we find that the appellant cannot claim that he was not guilty of murder but homicide. 20. The appeal is, therefore, dismissed. S. A. BOBDE, J. R. C. CHAVAN, J. SMA