... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.25 OF 2006 Anthony Rosario Rebello, s/o Bernard Rebello, r/o 1/25, Karuna Building, Dhobi Ghat, Byculla, Mumbai – 8, presently lodged as Convict No.719/05, at Central Jail, Aguada, Goa. ... Appellant v e r s u s State of Goa, through P.S.I., Margao Police Station. ... Respondent Shri M. S. Sonak, Advocate under Legal Aid Scheme for the Appellant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM: S. A. BOBDE, J. R. C. CHAVAN, J. Date of reserving the judgment: 24.06.2008. Date of pronouncing the judgment: 04.07.2008. ... 2 ... JUDGMENT: (Per R. C. CHAVAN, J.) This appeal is directed against the appellant's conviction by the learned Sessions Judge, South Goa, Margao in Sessions Case No.25/2000 for the offence punishable under sections 302, 392, 201 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.10,000/-, in default rigorous imprisonment for 3 years; rigorous imprisonment for 5 years and fine of Rs.5000/-, in default, rigorous imprisonment for 2 years and rigorous imprisonment for 3 years and fine of Rs.3000/-, in default rigorous imprisonment for 1 years imposed upon the appellant on three counts. 2. The facts which which led to the prosecution and conviction of the appellant are as under: The appellant is the husband of sister of sister-in-law of one Maria Rodrigues. The victims are Maria Rodrigues' mother and daughter. The appellant, alongwith his wife Mrs. Brenda, ... 3 ... who was tried as accused no.2 before the Court of Sessions, came to reside with one of the victims, Smt. Ernestina Fernandes, who was residing alone in a flat which belonged to her son Lawrence Fernandes. Lawrence and his wife Andresia were working in Kuwait. The appellant and his wife came to reside at Ernestina's house in April, 1999. At that time the appellant's wife was carrying a pregnancy of seven months and delivered a baby girl two months thereafter. Ernestina looked after the appellant's wife during her confinement. Inspite of this the appellant used to harass Ernestina. 3. On 23.10.1999, Ernestina visited her daughter Maria and while going back to her house, took Maria's daughter Lydia with her. On 25.10.1999 when Maria went to her mother's house and found a lock from outside, she went back and rang her mother up without getting any response from her. On 26.10.1999, she again went to her mother's house and found it locked. Since her inquiries did not yield any positive response and since she also gathered that the appellant and his wife were not there, she ... 4 ... suspected that the appellant might have killed her mother. Foul smell was also coming from a sump well. Police were informed who called the Fire Brigade and fished out the bodies of Ernestina and Lydia from the sump. On a report filed by Maria, an offence was registered. 4. The police sent the dead bodies for post mortem examination after performing the inquest. They broke open the lock of the flat. It was found that some gold ornaments were missing. The necessary panchanama was drawn up. Police started search for the appellant who was arrested by Police Inspector Shri Vinod Sawant at Nagpada Police Station at Mumbai on 29.12.1999. Their custody was made over to Margao Police, where upon interrogation, the appellant disclosed that he had sold the gold ornaments to one Suresh Shah, a jeweler in Mumbai, and agreed to show the shop of said Shah. Some ornaments were seized from the shop of Shah on 13.1.2000. In the meantime, the police had also collected evidence of the whereabouts of the appellant and his wife since 24.10.1999 and had found that the appellant and his ... 5 ... wife had gone to one Armindo, from whose house the appellants had proceeded to Mumbai after booking tickets on a train going from Goa to Mumbai. The ornaments were recovered and duly identified by Pw.1/Maria Rodrigues as belonging to her mother. On completion of the investigation, police sent a charge sheet. 5. On commitment of the case by the learned Judicial Magistrate, First Class, Margao, the learned Sessions Judge, charged the appellant and his wife for the offences punishable under section 302, 392, 201 r/o 34 of the Indian Penal Code. Since the appellants pleaded “not guilty” they were put on trial. The prosecution examined 24 witnesses to bring home the guilt of the appellant and his wife. The learned Sessions Judge gave benefit of doubt to the appellant's wife, accused no.2, and proceeded to convict and sentenced the appellant for the offences charged as indicated above. Aggrieved thereby, the appellant has filed this appeal. 6. We have heard Shri Sonak, learned counsel for the ... 6 ... appellant at considerable length, since the learned counsel spared no effort to persuade us to accept his theory that his client was innocent. We have also heard the learned Public Prosecutor for the State. With the help of both the learned counsel, we have gone through the entire evidence and records. 7. The evidence of Pw.4/Dr. Pujari who conducted the post mortem examination on the bodies of the victims, would show that both the victims died on account of several ante-mortem injuries inflicted upon them, which were sufficient in ordinary course of nature to cause death. Dr. Pujari also proved the notes of post mortem examination, which have been marked as Exh.A and B proved by Pw.4/Dr. Pujari. 8. The bodies of the victims were found in the sump well in the campus where Ernestina's flat was situated and they had been fished out in the presence of the pancha witness Pw.6/Lourencio Esteves in whose presence the scene of offence panchanama was drawn up. The fact that the bodies of the two ... 7 ... victims had been thrown in the sump well would indicate that the offender had attempted to cause disappearance of evidence. Therefore, the question would be as to whether the appellant is the offender who inflicted injuries which led to the death of the two victims, robbed the victims of their valuables and caused the evidence of the crime to disappear. 9. Since there are no eye witnesses, the case rests solely on circumstantial evidence. The circumstances which were sought to be proved by the prosecution in order to bring home the guilt of the appellant have been enumerated by the Sessions Judge in paragraph 6 of his judgment as under: 1. Ernestina Fernandes was residing alone in the flat at Fatorda and had allowed the appellant and his wife to reside with her from April, 1999. 2. On 23.10.1999 Ernestina had taken her grand daughter Lydia Rodrigues alongwith her in the said flat. 3. The appellant and his wife were found missing from the flat ... 8 ... from the time of the incident. 4. The dead bodies of Ernestina and Lydia were found floating in the sump well. 5. The gold ornaments were recovered from the jeweller at Mumbai. 6. The keys of the flat were recovered at the instance of the appellant. 10. The learned counsel for the appellant submitted first that none of these circumstances have been established beyond reasonable doubt. He submitted, secondly, that these circumstances are inadequate to complete the chain required for unmistakably pointing to the guilt of the appellant. Therefore, according to him, the appellant could not have been convicted by the learned Sessions Judge. It has not been disputed that the appellant had come to reside with the victim in April, 1999, but according to the learned counsel for the appellant, the appellant had left the victim's house long before the incident. Pw.1/Maria had stated that the appellant had come to reside with her mother ... 9 ... Ernestina in April, 1999. According to this witness since Ernestina had to undergo some surgery in 1999, she had requested her relations to see if somebody could stay with her and this is how the appellant came to reside with her. It is further seen from her evidence that the surgical operation was performed in 1998 itself. It was suggested to this witness on behalf of the acquitted accused that the acquitted accused had delivered a baby girl in September, 1999, and not two months after she came to reside with Ernestina. The discrepancy about time when Ernestina had undergone surgery and consequently need for a companion need not detain us in view of the fact that the appellant and accused no.2 do not dispute having come to reside with Ernestina in April, 1999. 11. Pw.9/Nicolau Fernandes stated that he was working as driver cum sales man for a marketing company whose office is situated in the same building near the flat of the victim. He stated that he had not seen anybody residing with Ernestina but had been told that a couple was residing with her. Thus his evidence is of no use to support the prosecution case that the appellant was ... 10 ... residing with Ernestina. 12. Pw.10/Pascoela Diniz stated that she had seen a couple residing with Ernestina and identified the appellant as the man who looked like the man who was seen in the flat of Ernestina. Pw.12/Joana D'souza claims to be running a bar nearby. She claimed that she knew the victim as residing in Merilyn Apartments though she not knew Pw.1/Maria as the daughter of the elderly woman. According to her, the appellant used to come to her bar though she did not know where the appellant was residing previously. She had seen him residing with Ernestina and coming to her bar from Ernestina's house. According to this witness, the appellant used to consume Royal Stag Whiskey whenever he came to the bar. At times the victim Ernestina came to her bar to take whiskey of the said brand for Tony i.e. the appellant. The learned counsel for the appellant submitted that the entire evidence of this witness is inferential and that the appellant had not actually seen the appellant residing with the victim. ... 11 ... 13. Pw.17/Vikas Karekar who claims to be the owner and resident of a bungalow nearby stated that he knew the victim Ernestina whom he used to refer to as 'Mai'. He also knew her son Lourence and daughter Maria. He stated that about 5 to 6 months prior to the death of the old lady, a couple came to reside with the old lady and the accused before the Trial Court were the said couple. He added that the old lady used to complain to him that the couple harassed her. It was suggested to this witness that the appellant did not reside in the said flat, which suggestion the witness denied. There are some omissions in his evidence but they are minor in nature, and do not deserve a notice. There is no reason why this witness would falsely depose that the appellants were staying with the victim. 14. Apart from the evidence of Pw.1/Maria, Pw.17/Vikas too has stated that he saw the appellant staying with the old lady, whom he saw last on 23rd October, 1999 around 6.00 p.m. returning to the flat with her grand daughter. This corroborates Pw.1/Maria's version. He also corroborates Maria's version about ... 12 ... subsequent events when Maria found the flat closed. In cross examination, Pw.17/Vikas stated that he had seen the appellant going to the flat, mostly in the mornings. Except for a small contradiction as to whether he had described the appellant as drunkard in his police station, there is no reason to disbelieve his version. 15. Pw.7/Joseph too claimed to have seen the appellant in the flat of Ernestina about 15 days prior to the incident. There is nothing in the cross examination of this witness to discredit his testimony. Pw.8/Edwin claims that he used to visit Ernestina to collect water and electricity bills of his own flat in the same building. He has seen the appellant in the flat in June 1999 and when he again went on receiving telephone call from Ernestina in August-September 1999, he inquired about appellant and his wife, who were not seen, and was told by Ernestina that they were sleeping. Even in the cross examination, the witness told having met the appellant in the flat. ... 13 ... 16. Pw.9/Nicolau had not seen anyone, but had merely heard from Ernestina's flat sounds of a man shouting and a woman crying on 24.10.1999 at about 4.00 p.m. He admitted in his cross examination that he had not seen a man and a woman staying in the flat. Pw.10/Pascoela stated that he had seen a couple residing with Ernestina and that the appellant looked like the man he had seen. However, he did not go along with the prosecution in remaining part of the prosecution story. 17. Pw.14/Armindo stated that for about 4 days in August 1999, he stayed in a first floor flat in a building near the petrol pump in Fatorda. According to him, an aunty resided on the ground floor flat and at that time both the accused were residing with the said aunty in the ground floor flat. Pw.15/Filomena, sister of Pw.14/Armindo too states having seen appellant and family with the victim in a flat at Fatorda. 18. According to the learned counsel for the appellant, this evidence does not point to appellant's residence with the victim ... 14 ... around the time of incident and therefore, does not establish that the victims were last seen with the appellant. As rightly pointed out by the learned Public Prosecutor first, there is no reason to disbelieve the word of Pw.1/Maria, who had lost her mother as well as her child. She proved her FIR at Exh. Pw.1/A in which she had specifically named the appellant and his wife, and had also stated that they were residing with Ernestina. There is no reason as to why she would name wrong persons, or name appellant as the miscreant as early as on 26.10.1999. Secondly, even Pw.17/Vikas has no reason to falsely state that he had seen appellant and appellant's wife in Ernestina's flat. 19. Having admitted in reply to question no.1 in the statement under section 313 of the Criminal Procedure Code that he started residing with Ernestina in Marilyn Apartments at Fatorda in April, 1999, it was for the appellant to state when this arrangement terminated. The contention of the learned counsel for the appellant that other witnesses had not deposed about resident of the appellant in Ernestina's house in October, 1999, just before ... 15 ... the incident, has to be rejected. Pw.7 to Pw.10 are persons who had a casual contract and were not expected to take a roll call, as a school master would do, to note as to who was present where. Same holds good about Pw.14/Armindo and Pw.15/Filomena. Their evidence lends corroboration to the words of Pw.1/Maria and Pw.17 which, in fact, needs no corroboration. Even Pw.12/Joana's version lends credence to this story. We therefore, hold that the learned Sessions Judge, rightly held this circumstance as proved. 20. The learned counsel for the appellant next submitted that further part of the prosecution story about travel of appellant to Mumbai is incredible and the prosecution in fact wants the Court to believe that the appellant was leaving a deliberate trail behind him instead of giving a quiet slip, if he had indeed committed the crime. He submitted that the evidence tendered is unreliable possibly fabricated and if it were to be accepted as it is, since the appellant did not slip away quietly, it was consistent with his innocence. ... 16 ... 21. Pw.13/Mahadev, as taxi driver, claimed that on 24.11.1999, he was approached by appellant to take him to Ponda. This date seems to be wrong and ought to be 24.10.1999, as per a calender at Exh.65 proved by him. This calender of religious events would indicate that the date was 24.10.1999 and not 24.11.1999. This witness gave a detailed account of his carrying the appellant, his wife and a child as also a dog from a house in Fatorda to Ponda. He states that on the next day he saw news in press about murder and also photograph of the house from where he had picked up the appellant. He claims to have gone and informed Police Inspector, Gaonkar. He admitted that he saw the appellant for the first time in the Court after the incident. Though a Test Identification Parade should have been ideally held by the police, even without it, evidence of Pw.13 does not strike as unbelievable. His elaborate cross examination does not bring out any inconsistencies. 22. Pw.14/Armindo, who had already seen the appellant at the victim's flat in August 1999, gave an account of his ... 17 ... whereabouts first and then stated that on Sunday the 24th of October, 1999 about 10.00 a.m. appellant and his family suddenly came to his house at Valpoi and told him that they were to proceed to Mumbai. Appellant stayed with them for that day and a night. Next morning he accompanied appellant to Tivim railway station to purchase tickets for Mumbai. Since tickets for Monday were not available, tickets for Tuesday afternoon were purchased. On Tuesday, the witness reached the appellant and his family by bus and they then proceeded to Mumbai by train. On the same night, he claims to have been informed telephonically about murders, as also that a man and woman staying with 'aunty' in Fatorda were not there. In about 5-6 days police recorded his statement. He stated in his cross examination that he was also kept in lock up and had to be bailed out. He stated that the appellant purchased two second class tickets for Rs.156/-. (Sleeper class tickets could not obviously be purchased as it was a day time train). 23. Pw.15/Filomena, sister of Pw.14/Armindo corroborates the version of Pw.14 substantially. Cross examination of both ... 18 ... these witnesses does not result in impeaching their testimonies. The learned counsel for the appellant submitted that while Pw.13/Mahadev claimed to have left the appellant and his family at Ponda, Pw.14/Armindo and Pw.15/Filomena stay at Valpoi, about 40 kms. Away, and there is no evidence to explain movements of the appellant from Ponda to Valpoi. In our view, it is not necessary for prosecution to give a complete account of journey by appellant or to produce evidence for this purpose, so long as the appellant does not show that it was impossible to start from Fatorda at 7.15 a.m. and reach Valpoi via Ponda by 10.00 a.m. Since this has not been done, no fault can be found with the evidence of these witnesses. 24. Pw.25/Dy.S.P. Shri Umesh Gaonkar produced record of railway reservation, including original requisition allegedly made by the appellant for reservation, which is at page 367 of the paper book. It shows that one Anthony Rebello on 5.10.1999 had sought reservation on train no.104 Up for Anthony Rebello and Brenda Rebello for 26.10.1999. The reservation chart for 26.10.1999 at ... 19 ... page 369 of the paper book show their names against seat no.73 and 74. It is difficult to believe that the police could have persuaded even authorities in Konkan Railway to fabricate documents, which were requisitioned by police by letter dated 2.11.1999. Curiously, on behalf of the appellant the following suggestions were made in the cross examination to Pw.25/Dy.S.P. Shri Gaonkar: “It is not true to suggest that the accused had not left in sleeper class. It is not true to suggest that the accused had left by train in 2nd class by paying fare of Rs.156/- each. It is not true to suggest that the said tickets were purchased by the said Armindo Andrade, for the accused. It is not true to suggest that the extract for the tickets produced by me in the Court do not pertain to the travel by the accused. It is not true to suggest that no reservation was made in the name of Anthony Rebello and Brenda Rebello.” Thus what is suggested is that appellant and his family did travel but not on tickets in respect of which evidence is tendered. It ... 20 ... seems that appellant vacillated in taking the defence that Pw.14/Armindo booked tickets, but did not take it to logical end referring to Armindo's arrest and similarity of signature on reservation requisition with those on the bill books of jeweler Pw.20/Suresh Shah. Hence even this evidence about appellant and family leaving victim's flat and reaching Mumbai on 26.10.1999 had to be accepted. 25. This takes us to the question of recovery of ornaments at the instance of the appellant from the shop of Pw.20/Suresh Shah. The learned counsel for the appellant pointed out that Pw.2/Jose Fernandes in whose presence the inquest panchanama was drawn up does not refer to any ornaments found on the person of Ernestina. He however stated that one bangle was seen in the left hand of Lydia which has entered the skin because the body was swollen. This is also mentioned in the panchanama. Pw.4/Dr. Pujari who performed autopsies on the bodies of the dead bodies had however found that there was a yellow metal chain with a pendant in the neck of Ernestina which he claimed to have ... 21 ... removed and handed over to the Police Inspector. He also found one yellow metal bangle each on right and left wrist of Lydia which he removed and handed over to the Police Inspector. 26. The learned counsel for the appellant submitted that these articles which were handed over by the medical officer to the investigating officer have not at all surfaced in the further investigation or at the trial. He submitted that this assumes importance because it is perfectly possible that these very ornaments were shown to have been recovered at the instance of his client in the later part of the investigation. He also submitted that if the motive of the crime was robbery, these ornaments could not have been left on the victims' body. 27. The learned Public Prosecutor submitted that these ornaments have been shown to be yellow metal articles and it is not known if they were gold ornaments. Therefore, non removal of the articles by a robber need not result in doubting the motive for commission of the crime. She further submitted that there can be ... 22 ... no doubt that the police ought to have accounted for these ornaments, and some record as to their description, weight and how they have been disposed off ought to have been tendered. However, absence of this evidence should not lead to rejection of the other evidence tendered by the prosecution in respect of the recovery. 28. The learned counsel for the appellant also pointed out that the charge framed by the learned Sessions Judge includes all gold ornaments including those found on the dead bodies. In fact, the charge also refers to pass book and cheque book which undisputedly belonged to the appellant. It seems that the charge was framed without examining as to which were the articles robbed. Instead, the learned Sessions Judge seems to have enumerated in the charge framed all the articles seized. However, this lapse does not indicate that the appellant was misled by the charge as to the case which he was required to meet. 29. The appellant was arrested by Pw.19/Vinod Sawant on ... 23 ... 29.12.1999 at Mumbai since Mumbai police had been alerted that the appellant was possibly in Mumbai. Thereafter, the appellant's custody was transferred to Margao Police. According to Pw.26/Police Inspector Shri Uttam Dessai after the custody of the appellant was received by him, he brought the appellant to Goa. As regards recovery effected by him, upon disclosure by the appellant, the version of Pw.26/ P.I. Dessai is to the following effect: “On 12.1.2000, I recorded the statement of Miss Philomena Andrade at