1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 207/09 with STAMP NUMBER MAIN NO.2069 OF 2009 State (Cuncolim Police Station) .......... Applicant. V/s Manguesh Mainath s/o. Rama Mainath, 37 years, labour, r/o. H.No.356, Dabem, Morpirla, Quepem, Goa. ........... Respondent. Ms. W. Coutinho, Public Prosecutor for the State. CORAM :- SMT. V.K. TAHILRAMANI & N.A. BRITTO, JJ. Date :- 25th November, 2009. ORAL ORDER : (Per SMT. V.K. TAHILRAMANI, J.) 1. The applicant-State has preferred this application for special leave to appeal, against the Judgment and Order dated 25.3.2009 passed by the learned Addl. Sessions Judge, South Goa, Margao in 2 Sessions Case No.5/2007. By the said Judgment and Order, the learned Sessions Judge, acquitted the respondent-original accused of the offence punishable under Section 302 I.P.C. 2. The prosecution case, briefly stated, is as under : Complainant PW.1 Rohidas Laxman Mainath is residing along with his family at Dabem, Morpirla, Quepem. His mother Satyawati (deceased) used to work in a cashew plantation. On 26.4.2007, as usual, she went at about 9.30 a.m. to the cashew plantation. At about 7.00 p.m., the complainant returned home. He saw that his wife Smt. Roma and brother Promod were weeping. On an inquiry, the complainant came to know that his brother Promod had seen his mother lying in a pool of blood in the cashew plantation at about 6.30 p.m. According to the complainant, the accused had threatened the complainant and his family about 8 days prior to the incident in relation to a palm tree hut. The complainant suspected that the accused had killed his mother. Hence, he lodged FIR. Investigation commenced. The dead body was sent for post mortem. Five incised wounds were found on the dead body of Satyawati. Four of the injuries 3 were found on the neck and the last injury was found on the hand. According to Dr. Pujari, injuries No.1, 2 and 3 were sufficient to cause death in the ordinary course of nature. After completion of investigation, charge-sheet came to be filed. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the respondent, hence, this application for leave to file appeal. 3. We have heard learned Public Prosecutor for the Applicant -State of Goa. We have also perused the entire record of this case. After hearing the learned PP and on going through the record, for the reasons stated below, we find that no case is made out for interference. 4. In the present case, there is no eye witness to the incident of murder of Satyawati. The prosecution case rests solely on circumstantial evidence. In order to prove the guilt of the accused, the prosecution has mainly relied on circumstance of recovery of weapon i.e. koita (sickle); and seizure of clothes of the accused which, according to the prosecution bore blood stains. As far as weapon is concerned, we find that the learned Sessions Judge was right in observing that the weapon which was recovered could not have caused 4 the injuries on Satyawati. PW. 2 Dr. Pujari conducted autopsy on the dead body of Satyawati. He has observed that the injuries had sharply defined margins which were even. He stated that the injuries were well defined, with cleanly cut and sharp injuries. He found that the injuries were even, regular, sharp, well defined, with clean cut clear margins, and elliptical both angles. A koita does not have sharp edge on both sides. It has a sharp edge only on one side and as such, a koita would not cause injuries which had clean cut clear margins, which were regular, sharp, well defined and elliptical both angles. Learned P.P. placed reliance on the evidence of Dr. Pujari, wherein he has stated that the injuries were possible by a koita. However, looking to the injuries found on the dead body of Satyawati, we are of the opinion that the learned Sessions Judge was right in observing that such injuries were possible only by a sharp double edged weapon. 5. Learned P.P. has placed reliance on the circumstance of recovery of weapon i.e. sickle at the instance of the respondent- accused. She also submitted that the said weapon was having blood stains. From the evidence of the panch witness and the Investigating Officer, it is seen that the weapon was found just one metre away from 5 the dead body. The panchanama (Exhibit 76) and the sketch (Exhibit 77) along with the evidence of the panch witness, further show that the spot of incident is situated near a pathway which is starting from the main road and goes to various fields. The evidence on record shows that the said path way is being used by the villagers. This shows that the place from where the weapon was produced is accessible to all. The learned P.P. submitted that though the weapon was found near the pathway, it was hidden below a heap of mud and leaves and as such, it could not have been visible. On going through the evidence of I.O., it is noticed that on the next day of the incident, the police officials took search in the area of 400 sq. metres, radius of the dead body. The IO has also deposed that they noticed heap of leaves within a radius of one metre from the dead body. IO in his testimony has stated that when the search was taken in the area of 400 sq. metres, no weapon was found within the radius, despite search by the police officials. We have also noticed the photographs taken of the spot of incident. The photographs show the dead body and an area of about 10 metres around the dead body is visible in the photographs. The photographs do not show any heap of leaves or mud in the area within a radius of one metre from the dead body. All these facts raise doubt in our mind about the 6 genuineness of the recovery panchanama. The Chemical Analyser's report also does not show that the blood stains found on the weapon are of the blood group of the deceased Satyawati. Moreover, we have already observed that we do not find that the injuries could have been caused by the weapon, which was recovered at the instance of the accused. 6. Thereafter, the learned PP has placed reliance on the circumstance of seizure of blood stained clothes which were on the person of the accused. The incident had taken place on 26.4.2007 before 6.30 p.m.; whereas the accused came to be arrested on 27.4.2007 at about 2.00 p.m. It appears extremely improbable that for about 18 hours after the incident the accused would have been moving about in blood stained clothes. Moreover, on going through the CA report, we find no evidence to establish nexus between the blood stains found on the clothes of the accused and the blood group of the deceased. 7. The learned PP relied on a circumstance that on the day of the incident, the accused had not reported for work to support her contention that the accused has committed the crime. In support of this 7 contention, she has placed reliance on the evidence of PW.3 Felix Almeida. Felix Almeida has stated that he employed labourers, including the accused on his property for plucking of coconuts. He has stated that on 25.4.2007, the accused had come for work of plucking coconuts from his property at Quitol. On the next day, he was to undertake work of plucking of coconuts on a property at Velim. However, the accused refused to come for work on 26.4.07. It is seen that the incident had taken place in the evening time of 26.4.07; whereas the accused had refused to come for work on 26.4.07, obviously from the morning for the work of plucking of coconut was to take place at a different place. The reason for the accused refusing to come for work on 26.4.07 appears to be that the accused did not want to work at some other place. To our mind, this circumstance of the accused not coming to work on 26.4.07 cannot, by itself, be said to be such as to incriminate the accused. 8. Lastly, the learned PP has submitted that there were strained relations between the accused on the one hand and the family of the complainant on the other hand due to some dispute over palm tree hut. Enmity is a double edged weapon. Due to enmity, a person may 8 commit an offence or on the other hand, even if the person has not committed the offence, the family of the deceased on account of enmity can falsely involve a person. Thus, we find in the facts of this case that the learned Sessions was right in not placing much reliance on this aspect. 9. We have also observed earlier that there are no eye witnesses in the present case. The case is based totally on circumstantial evidence. We do not find the chain of evidence to be so complete as to show that in all human probability the act must have been done by the accused. From the circumstantial evidence which has been brought on record, we do not find that the facts established are only consistent with the hypothesis of the guilt of the accused and that the facts exclude every other hypothesis except that the accused is guilty. In our opinion, the circumstantial evidence in this case, is not of such conclusive nature. 10. Indisputably charges can be proved on the basis of the circumstantial evidence when direct evidence is not available. It is well settled that a conviction can be based on circumstantial evidence, 9 however, the prosecution must prove that in all human probability the act must have been done by the accused. It is also necessary for the Courts to remember that there is a long gap between “may be true” and “must be true”. The prosecution must prove its case by leading cogent, plausible and credible evidence. The prosecution case, thus, must be judged in its entirety, having regard to the totality of the circumstances. The approach of the Court should be an integrated one and not truncated or isolated. The Court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the one in favour of the accused should be accepted. 11. The learned Sessions Judge has considered all the aspects of the matter and thereafter has acquitted the respondent-accused. On going through the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. 12 The plenitude of power available to the Court, hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court 10 hearing an appeal against acquittal will not interfere solely because a different plausible view may arise on the evidence. This has been so observed by the Supreme Court in K. Ramakrishnan Unnithan Vs. State of Kerala, AIR 1999 SC 1428. 13. So also, the Supreme Court in the case of C. Anthony Vs. K. G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence we are not inclined to interfere in the judgment and order of acquittal. 14. In this view of the matter, leave to file appeal is rejected. Consequently, the appeal does not survive and is disposed of as such. SMT. V.K. TAHILRAMANI, J. N.A. BRITTO, J. ssm.