1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 344 OF 2009 State (through Ponda Police Station). ... Applicant versus Shri Govind Khutkar s/o Dholo Khutkar, aged 32 years, r/o Talsai, Dharbandora, Sanguem, Goa. ... Respondent Ms. Winnie Coutinho, Public Prosecutor for the Applicant. CORAM : NARESH H. PATIL & N. A. BRITTO, JJ. DATE : 24TH FEBRUARY, 2010. ORAL ORDER The Complainant-State has sought leave to appeal against the acquittal of the accused by Judgment/Order dated 3-8-2009 of the learned Additional Sessions Judge-I, Margao. 2. PW5/Gomati Waghekar had two daughters, named Amita(since deceased) and Sumitra, and one son i.e. PW3/Umesh. On 8-7-2007, Amita left to the spring to fetch water with a steel tub and a plastic pot. PW3/Umesh returned home from the Sanjavini Factory at Dharbandora where he worked, 2 after her departure, and asked his mother PW/Gomati as to where his two sisters had gone. Thereafter, PW6/Kalpana Kutkar who is related to them, came to their house and told them that the accused had assaulted Amita with a bamboo “cudgel”(danda) and they all went near the scene, which is stated to be near the house of the accused, and saw their sister lying on the spot with bleeding injuries on the back side of her head and the accused with the said danda in his hands, running away. Nobody went after the accused. They took Amita in a Tata Sumo vehicle to Ponda Police Station where PW13/Head Constable Talekar was on duty, and, he sent them to ID hospital at Ponda, and from there the deceased Amita was taken to Goa Medical College at Bambolim where she expired at about 12.15 p.m. whereupon PW10/ PSI Veluskar proceeded to Goa Medical College and recorded the FIR of PW3/Umesh Waghekar at about 12.30 p.m. 3. The post mortem examination of deceased Amita was conducted by PW9/Dr. Dias Sapeco who found on the deceased two external injuries, namely, (1) oblique stitched contused lacerated wound admeasuring 5 cms. x stitch up x bone deep on the left side top of her scalp and (2) transverse stitched contused lacerated wound of 5 cms. x stitch up x bone deep along the lower back of scalp. The internal injuries have also been described by him in his post mortem report as well as in his deposition before the Court, and according to him, the deceased died due to the said two injuries which were 3 individually and collectively fatal in the ordinary course of nature. 4. Needless to say, the prosecution did prove that the death of the deceased Amita was homicidal in nature. 5. The accused was apprehended by PW12/Police Inspector Manoj Mardolkar and a formal panchanama of arrest was drawn in the presence of PW2/Rajendra Naik at about 16.10 hours on the same day. 6. After investigations the accused came to be charged and tried with the allegation that on 8-7-2007 at 7.25 a.m. near the water tank at Talsai, Dharbandora the accused had committed the murder of the said Amita and had also insulted the said Amita as well as her mother Gomati with filthy words and had threatened them with injuries to their person. Charge was framed under Sections 302, 504 and 506(ii) IPC. 7. During the course of the trial, prosecution examined 15 witnesses. The case of the accused was that he was falsely implicated in the case, as he was not mentally sound. 8. The case of the prosecution rested on ocular evidence of PW6/Kalpana whom the prosecution claimed as their star witness and also on 4 circumstantial evidence. The prosecution examined 15 witnesses. The learned trial Court after assessing the evidence produced came to the conclusion that there was neither direct ocular evidence linking the accused with the crime nor there was any chain of circumstances, consistent only with the guilt of the accused, and inconsistent with his innocence. As regards the ocular evidence of PW6/Kalpana, the learned trial Court came to the conclusion that she was a got-up witness introduced to falsely support the case of the prosecution and as far as that conclusion is concerned, we have no doubt in our mind that the same is correctly arrived at. 9. PW6/Kalpana is a resident of the locality and the deceased was the daughter of her husband's sister. She was also related to the accused but admittedly there were strained relations between her family and that of the accused from the time of her marriage and inspite of the fact that she was a resident of the locality her statement was recorded after four days and that too without explanation for the delay. According to her, as she was going to the water tank to fetch water, the deceased Amita was returning to her house with a steel tub on her head and a plastic pot in her hand and the accused assaulted her on the back side of her head and as she shouted “aiye ghe” and she fell on the ground and then she went to her house and told PW7/Gurudas, her brother- in-law, about the incident, and then went to the house of the deceased and told PW3/Umesh about the incident and thereafter she, Umesh, Gurudas, Gomati 5 and Anil went to the spot of the incident. In her cross-examination, she has not at all come out as a truthful witness. As rightly pointed out by the learned trial Court, she initially did not state that after the deceased had fallen down, that the accused had again assaulted the deceased on the forehead for the second time. This has been considered by the learned trial Court as an improvement in her version, and it is rightly so, because she also admitted that there is no mention of two blows given by the accused to the deceased in her statement to the Police. Moreover, PW7/Gurudas who is the maternal uncle of the deceased, who claims to have gone to the spot of incident along with others, claims to have seen the deceased lying down facing downwards, and, if that be the case PW6/Kalpana could not have seen the accused giving a hit with the danda on the forehead of the deceased. Moreover, the injury on the back of the head is in transverse direction as described by PW9/Dr. Dias Sapeco, and it is difficult to accept that the accused could have come behind the deceased and caused such an injury in transverse position. PW6/Kalpana also stated that she saw the accused only assaulting the deceased thereby implying that she had not seen the accused prior to the assault. In our view, the learned trial Court has rightly refused to place reliance on the testimony of PW6/Kalpana as that of a truthful witness. Her evidence is contrary to the version given by PW5/Gomati. 6 10. Ms. Winnie Coutinho, learned Public Prosecutor submits that PW6/Kalpana being a rustic witness some allowance ought to have been made in appreciating her evidence but we are not able to accept the submission in the light of the facts stated by her and which are contrary to the versions given by other witnesses, as well. 11. The learned trial Court has also rightly rejected the evidence of dying declarations. Some of the prosecution witnesses particularly PW3/Umesh and PW5/Gomati had stated that the deceased whilst being taken to the hospital was saying “Govinda sod re maka, etc.”. Firstly, it was not their case that at that time the deceased was conscious. Secondly, it is not the case of the prosecution that the deceased had seen the accused assaulting her and according to PW6/Kalpana the accused had assaulted the deceased from her back and as such the deceased would not have been in a position to see the accused, and, therefore the statements attributed by PW3/Umesh and PW5/Gomati to the deceased can be considered only as a figment of their imagination. The evidence of recovery of cudgel(danda) has also been rejected by the learned trial Court in view of material contradictions in the evidence of PW4/Gawas who was a panch witness and PW12/PSI Manoj Mardolkar. Moreover, it is not the case of the prosecution that the said cudgel(danda) was found with any blood stains. 7 12 . Considering the nature of the evidence produced by the prosecution, the acquittal of the accused could not be faulted. We find that this is not a fit case to grant leave to appeal. Application therefore is hereby dismissed. NARESH H. PATIL, J. N. A. BRITTO, J. RD