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2011 DIGILAW 1220 (BOM)

State of Goa v. Manish Dhube

2011-09-28

A.P.LAVANDE, R.P.SONDURBALDOTA

body2011
Judgment R. P. SONDURBALDOTA, J. 1. This State appeal is directed against the Judgment and Order dated 17-11-2008 of the Sessions Court, South Goa, Margao acquitting the Respondents of the offence punishable under Section 302 r/w 34 I.P.C. The Respondents are alleged to have committed murder of Fr. Eusebio Ferrao, Parish Priest of St. Francis Xavier Church, Macazana on the night of 17/18-3-2006 between 23.00 hours to 06.30 hours in the residential premises of the Church. 2. Briefly stated the facts alleged by the prosecution are as follows: The deceased Father used to reside on the first floor of the Church. PW23/Sunil Rodrigues was working with him at the residence as well as in the Church. On 17-3-2006 the Father informed PW23 that there would be guests i.e. the Respondents for dinner. The Father had personally made purchases for the dinner. Respondent No.1 was an acquaintance of the deceased Father. On 17-3-2006, both the Respondents came to the Father's house at about 9.30 p.m. After arrival, Respondent No.2 had bath and was given a change of clothes by the Father. He then gave both the Respondents beer for drinking and he himself consumed whisky. All the four i.e. the Father, the Respondents and PW23 had dinner and around 11.00 p.m. the Father retired to his bedroom. PW23 also went to the storeroom for sleeping. The arrangements to sleep for the Respondents were made in the drawing room by placing mattresses on the floor. 3. Next morning i.e. on 18-3-2006 PW23 woke up at about 6.30 a.m. He found it strange that the Father had not woken him up, as usual, at 5.30 a.m. As he came out from the storeroom into the dining room he found that the door between the dining room and the drawing room was latched from outside. He also heard sounds of persons in the drawing room. When he knocked on the door somebody from the other side opened the latch. The persons gathered in the drawing room were looking for the Father. The Respondents were nowhere to be seen. It was also noticed that the door of the Father's bedroom was locked. The door was therefore broken open. It was found that the body of the Father was lying in the center of the bedroom, with a pillow on the face. The Respondents were nowhere to be seen. It was also noticed that the door of the Father's bedroom was locked. The door was therefore broken open. It was found that the body of the Father was lying in the center of the bedroom, with a pillow on the face. The only clothing seen on the body was a white colour banian which was also pulled up near the neck. Somebody then put a bedsheet on the body of the Father. PW9/Timothy Vaz who had arrived at the Church at about 7.15 a.m. called up the Police on his mobile and informed them of the incident. PW27/H. V. Madkaikar, the Investigating Officer reached the Church at about 8.30 a.m. after recording the F.I.R. at 8.20 a.m. on the basis of the statement of PW6/Fr. James Torres. PW27 got the scene of the offence panchanama drawn in the presence of PW9 Vaz and another pancha. During the panchanama, a pair of blue colour rubber slippers, a broken plastic orange colour piece, light blue colour bedsheet and a personal diary of deceased Father was attached. He also got the inquest panchanama drawn with PW9 and another pancha. On removal of the pillow on the face of the Father it was noticed that a hand towel was stuffed into his mouth. There was a stab injury on the left side of the abdomen through which the intestine was seen protruding. There were also about 25 visible injuries seen on the body of the deceased. The Investigating Officer requisitioned the services of dog squad and put that into service. A finger print expert was called who picked up some chance prints from the spot. After completion of all the panchanamas the body was sent for post-mortem examination. 4. On the same day PW27 learnt from PW2/P. C. Dilip that during the night patrolling both the Respondents were found at Curtorim market junction at about 3.00 a.m. On inquiry made by PW2 the Respondents stated that they had gone to Macazana to meet their friend PW8/Tiwari and they were going to railway station to catch a train. Both gave their own mobile numbers as also the mobile number of PW8. They also furnished the details of their employment. PW2 then tried to call up PW8 on his mobile. However, it was not picked up. Both gave their own mobile numbers as also the mobile number of PW8. They also furnished the details of their employment. PW2 then tried to call up PW8 on his mobile. However, it was not picked up. He then made a note of the Respondents and the information furnished by them in his diary and allowed both to leave. PW27 got the diary of PW2 attached under panchanama after verifying that PW2 was in fact on the night patrolling duty on the night between 17-3-2006 and 18-3-2006. He then recorded statements of both, PW8, the erstwhile employer of Respondent No.1 and PW10 his present employer Sharma. On the basis of the information received from them PW27 along with PW8 proceeded by air to Allahabad where the Respondents were to appear for some examination. PW25 and the other staff were to go to Allahabad by train. While PW27 was at Allahabad he learnt through a telephone call made by Respondent No.1 to PW8 that both the Respondents were at Nagpur. Therefore, PW25 was directed to proceed to Nagpur instead of Allahabad. 5. Accordingly, PW25 reached Nagpur on 21-3-2006. He was carrying a photograph of Respondent No.1. He was also provided with the address of the Respondents at Nagpur. He found both the Respondents in a tea stall close to the address. The Respondents were picked up from there and taken to their room where in the presence of PW18 and the second pancha arrest cum attachment panchanama was drawn. All the personal items of both the Respondents, the train tickets found with them and a long steel key with initials “PLAZA” printed on the grip and No.53 printed on the other side of the grip found with Respondent No.2 were attached. PW25 and the panchas noticed injuries on the fingers of both the Respondents. PW25 then brought both the Respondents to Goa by air. 6. At Goa another formal arrest panchanama was drawn, finger prints of both the Respondents were taken and they were sent for medical examination by PW22/Dr. Sapeco. While at Maina Curtorim Police Station, Respondent No.1 volunteered to disclose the place where the knife used in the assault was thrown. The disclosure statement of Respondent No.1 was recorded in the presence of PW16 and another pancha. Sapeco. While at Maina Curtorim Police Station, Respondent No.1 volunteered to disclose the place where the knife used in the assault was thrown. The disclosure statement of Respondent No.1 was recorded in the presence of PW16 and another pancha. Respondent No.1 directed PW25 and the panchas to a place on the back side of Macazana Church at a distance of around 300 metres from it. Respondent No.1 went into the bushes near electric pole No.S 79 and removed one knife having broken plastic handle of orange colour. The knife was then packed and sealed under panchanama. 7. On 19-3-2006 supplementary statement of PW23 had been recorded in which he revealed that the Father used to sexually abuse him and that he had not disclosed this fact to anybody. He also stated that Respondent No.1 had visited the Father two to three times prior to the date of the incident. The statement of PW20/Sachin also referred to the sexual exploits of the Father. Therefore, the Respondents along with PW20, PW23 and one Pravin were again medically examined by PW19 who had conducted post-mortem examination of the deceased. 8. During the course of investigation, PW27 drew panchanama of the door to the Father's bedroom which was broken open, got test identification parade conducted on 29-3-2006 through PW21, collected reports from the Chemical Analyser as also the post-mortem report, recorded statements of various witnesses, attached leave application of Respondent No.1 and on completion of the investigation, filed charge-sheet against the Respondents. 9. The Respondents had pleaded not guilty to the charge. The defence of the Respondents as disclosed in the cross-examination of the witnesses as also the statement under Section 313 Cr.P.C. shows that Respondent No.1 was acquainted with the Father and both the Respondents had visited the Father on 17-3-2006. They however claimed that they had met the deceased Father in the afternoon. Further details of the defence disclosed in the statement under Section 313 Cr.P.C. are that on 17-3-2006 both had gone to Macazana Church to meet the Father between 2.00 p.m. to 3.00 p.m. They had told the Father that they were going to their native place to answer some examination. The Father then served them with beer and cold drinks. They left the Macazana Church at 3.00 p.m. and went for shopping. Then both went to the Office of PW8. The Father then served them with beer and cold drinks. They left the Macazana Church at 3.00 p.m. and went for shopping. Then both went to the Office of PW8. They had dinner with PW8 in one hotel and left the hotel at about 9.00 p.m. They told PW8 that they were going to the railway station and then they would be catching the train leaving at 4.00 a.m. As there was no place to keep their luggage they had kept the same at the cloak room at the railway station. Both then Bombay by 4.00 a.m. train. On reaching Bombay while removing their luggage from underneath the seats in the train they suffered injuries to their fingers. In Bombay they stayed with one of their friends for a night and on the next day they left for Nagpur by train. At Nagpur they went to the place of the brother of Respondent No.2. Both the Respondents were supposed to go to Allahabad by bus on 21-3-2006 but at around 9.00 a.m. on that day while they were having tea in a restaurant PW25 arrested them. The Respondents allege in their statement under Section 313 Cr.P.C. that PW25 had brought one bag with him containing one T shirt with stains and one key. He put the T shirt and key in the bag of Respondent No.2. On reaching Goa both were taken to Harbour Police Station. On 22-3-2006, PW25 took Respondent No.1 to Macazana Church, picked up one knife on the dining table in the apartment of the Father and brought him back to Harbour Police Station. Thereafter, PW25 had brought PW23 thrice at Harbour Police Station to show the Respondents to him. Respondent No.2 claimed that he had come to Goa for the first time and had met the deceased Father for the first time when he visited him along with Respondent No.1. He further alleged that while at Nagpur PW25 had taken his wallet and placed one key in it. He also mixed up a white colour stained T shirt and blue colour short pant amongst his clothes in the bag and brought the bag to Goa. 10. The Sessions Court on appreciation of evidence disbelieved the prosecution case and found that the prosecution has failed to establish that the Respondents with their common intention had committed murder of the father. 10. The Sessions Court on appreciation of evidence disbelieved the prosecution case and found that the prosecution has failed to establish that the Respondents with their common intention had committed murder of the father. It noted that several links in the chain of circumstances relied upon by the prosecution were missing and acquitted the Respondents. 11. The entire case of the prosecution is seen to rest upon circumstantial evidence. Therefore, it would be convenient to set out at this stage itself, the principles laid down by the Supreme Court of appreciation of circumstantial evidence. The Supreme Court has stated that the Courts must adopt a cautious approach while appreciating circumstantial evidence. It must ensure and satisfy itself that all the links in the chain of circumstances are complete, pointing to the guilt of the accused and accused alone. The evidence must be such that every hypothesis of innocence of the accused is negatived. The circumstances relied upon must be fully established. And while evaluating the circumstantial evidence if any evidence is reasonably capable of two inferences, the one in favour of the accused must be accepted. Mr. Bhobe submits that the extent of caution to be exercised by the Court in appreciating circumstantial evidence has been described by the Supreme Court in its decision in Hanumant Govind Nargundkar and another v. State of M.P. reported in AIR 1952 SC 343 .The observations relied upon by him read as follows:- “In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge,(1838) 2 Lewin 227) where he said: “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” 12. The circumstances relied upon by the prosecution in this case to establish guilt of the Respondents can be enumerated as below: - (1) Death of the Father was homicidal, (2) The Respondents were last seen together with the Father, (3) Both the Respondents were seen at about 3.30 a.m. at a place closer to Macazana Church. (4) The conduct of the Respondents soon after the incident was unusual. (5) There were injuries on the fingers of the Respondents. (6) The key of the lock to Father's room was recovered from Respondent No.2. (7) The weapon of assault i.e. the knife was discovered at the instance of Respondent No.1, and (8) Motive. All these circumstances will have to be carefully looked into one by one on the touchstone of the principles mentioned above to bring home the guilt of the Respondents. 13. There is no dispute that the Father met with homicidal death. Even then it would be necessary, in the facts of the present case, to take note of the injuries found on the body of the Father and the cause of death opined by the medical expert in order to properly appreciate other circumstances alleged by the prosecution. There were in all 41 injuries found on the body of the Father. Injury No.1 was a bruise, injuries nos.2 to 17 and 38 to 41 were abrasions and injuries no.18 to 37 incised wounds. PW19 has opined that Injury No.1 is caused by a blunt object. Injuries No.2 to 7 are caused by finger nail mark and injuries no.8 to 13 are caused by a blunt object. All the above injuries were ante mortem. Injuries no.14 to 17 are caused by blunt object and are ante mortem. Injury No.18 is caused by sharp, pointed, penetrating cutting weapon and is post mortem. Injuries No.19 to 22 are caused by sharp cutting weapon and are post mortem. Injuries No.23 to 34 are caused by sharp cutting weapon and are post mortem injuries. Injuries No.35 to 41 are caused by sharp cutting weapon and are post mortem injuries. The Doctor has further stated that Injuries no.1 to 4, injuries to buccal surfaces of both the cheeks on page 5 and mucosal surface bruises to upper and lower lip are due to smothering. Injuries no.5 to 7 are due to manual strangulation. Injuries No.35 to 41 are caused by sharp cutting weapon and are post mortem injuries. The Doctor has further stated that Injuries no.1 to 4, injuries to buccal surfaces of both the cheeks on page 5 and mucosal surface bruises to upper and lower lip are due to smothering. Injuries no.5 to 7 are due to manual strangulation. As regards the cause of death of the Father according to PW19 the same is due to “violent asphysia as a result of combined effect of manual strangulation and smothering which is ante mortem and fresh at the time of death and necessarily fatal in the person with postmortem incised penetrating wound and multiple post-mortem incised injuries”. 14. The circumstance heavily relied upon by the prosecution is that of the Father being last seen with the Respondents. Shri Joshi, the learned Special Public Prosecutor submits that there is sufficient evidence produced by the prosecution to establish beyond reasonable doubt that deceased Father was last seen in the company of the Respondents and since the death of the Father has taken place, as per the evidence of the medical expert, within 24 hours from the time of post mortem i.e. 4.50 p.m. on 18-3-2006 the Respondents alone could have committed the murder of the Father. According to him, there is no possibility of any person other than the Respondents having committed the murder. He further submits that the circumstance of the Respondents being accosted by PW2 at the odd time of 3.00 a.m., not far away from the Church of Macazana, must also be considered along with the circumstance of being last seen together. According to Shri Joshi the explanation offered by the Respondents in their statement under Section 313 Cr.P.C. regarding their presence at the house of the Father and also in the Curtorim market is not just not satisfactory but also falsified by the evidence on record. 15. Mr. Bhobe, the learned Counsel for Respondent No.1 and Shri Arun Bras De Sa, the learned Counsel for Respondent No.2 submit, on the other hand, that the evidence on record establishes that PW23 was also with the Father until 11.00 p.m. and, therefore, the needle of suspicion is drawn to him also. Shri Bhobe argues that unless the prosecution gives satisfactory explanation of every circumstance appearing on record against PW23, it cannot be said that the Respondents were responsible for the murder. Shri Bhobe argues that unless the prosecution gives satisfactory explanation of every circumstance appearing on record against PW23, it cannot be said that the Respondents were responsible for the murder. His further submission is that the circumstance of last seen together does not by itself necessarily lead to the inference that it is the Respondents who had committed the crime. In this connection, he relies upon a decision of the Division Bench of this Court in the case of SatishHirudkar and another v. State of Maharashtra reported in 2009 ALL MR (Cri) 1986. 16. The evidence relevant for this circumstance is of PW23, PW2 and PW8. PW23 stated that on 17-3-2006 at about 5.30 p.m. the Father told him that he was going to have two friends from U.P. for dinner and asked him to cook more food. The Father then personally went to market to purchase eggs, vegetables and grocery. He had also mentioned that the friends had visited him during the afternoon. According to PW23, the Respondents arrived at about 9.45 p.m. They sat in the drawing room/TV room. They were speaking to the Father in Hindi and English. Respondent No.2 had his bath and the Father gave him a set of clothes. The Father then served both with beer. At about 10.00 p.m., all the four sat down for dinner. Then at about 11.00 p.m. the Respondents went to the drawing room for sleeping, where the arrangement of mattresses had been made for them. The Father went to his room and PW23 went to sleep in the storeroom. It is the evidence of PW23 that normally Father used to wake him up at 5.30 a.m. to ring the bell. However, on 18-3-2006 he did not wake up PW23. He got up at 6.20 a.m. and heard people talking in the TV room. When he came to the dining room he found that the door of the dining room was latched from outside. He knocked at the door and it was opened by the people in the TV room. PW23 noticed that the Respondents were nowhere to be seen. He informed the people that two friends of the Father had come from U.P. and they were sleeping in the TV room. The people found that Father's room was locked. They therefore broke the door of Father's bedroom and found his body lying inside. PW23 noticed that the Respondents were nowhere to be seen. He informed the people that two friends of the Father had come from U.P. and they were sleeping in the TV room. The people found that Father's room was locked. They therefore broke the door of Father's bedroom and found his body lying inside. Strangely there is no cross-examination of PW23 on the events deposed by him till 6.20 a.m. on 18-3-2006. It has not even been suggested to him that the Respondents had visited the Father only in the afternoon between 2.00 p.m. and not at night as stated by him. There is also no categorical assertion made in the statement under Section 313 Cr.P.C. of both the Respondents that they had not visited the Father at about 9.45 p.m. or had food with him. The claim made by the Respondents in their Statement under Section 313 Cr. P.C. that they had food with PW8 is falsified by the evidence of PW8. He deposed that on 17-3-2006 the Respondents had visited him in his Office at around 7.30 p.m. to 8.00 p.m. Both had informed him that they were going to the native place for appearing for some exams. They had only tea with him and left. This evidence of PW8 has withstood the cross-examination on behalf of the Respondents. PW2, the Police Constable at night patrolling duty on 17-3-2006 stated that on the night of 17-3-2006 at about 2.45 hours he along with P. C. Santan Dias left for night patrolling duty on a motorcycle. When they were in Curtorim market area around 3.00 a.m. on 18-3-2006 they found the Respondents walking on the road coming from Macazana side. PW2 and the Constable accompanying him stopped both the Respondents to make inquiries. Both the Respondents disclosed their names and stated that they had gone to their friend's place at Macazana and were proceeding to the railway station to catch the early morning train. They had left their baggages in the cloak room at the station. The Respondents disclosed the name of their friend and also furnished his mobile number. PW2 then had tried to call up the number given by the Respondents which was of PW8 but the phone was not picked up. PW8 admitted in his evidence that he had noted a missed call made early in the morning. The Respondents disclosed the name of their friend and also furnished his mobile number. PW2 then had tried to call up the number given by the Respondents which was of PW8 but the phone was not picked up. PW8 admitted in his evidence that he had noted a missed call made early in the morning. Thus the evidence of PW2 is not only unshaken in cross-examination but is corroborated to an extent by PW8. The evidence of PW2 is further borne out by the entries made in the diary by him which was attached during investigation and produced in evidence before the trial Court. It is also not the case of the Respondents that there was any reason for any of the three witnesses to depose falsely against them. The evidence of PW23, PW2 and PW8, the question put to them in the cross-examination and the statement of the Respondents recorded under Section 313 Cr.P.C. establishes beyond reasonable doubt that the Respondents were present in the house of the Father until 11.00 p.m. on 17-3-2006 and were found by PW2 in the Curtorim market area at about 3.00 a.m. It is undisputed position that Curtorim market area is closer to Macazana. The Respondents have not disclosed where they were between 11.00 a.m. on 17-3-2006 and 3.00 a.m. on 18-3-2006. The diary of PW2 shows the notes made therein by PW2 about the information supplied by the Respondents. However, as has been rightly submitted by Shri Bhobe, this circumstance cannot by itself be conclusive of the guilt of the Respondents unless the possibility of any other person having committed the crime is completely ruled out. Undisputedly, PW23 was present in the house throughout. Therefore, the Father must be last seen to have been in the company of three persons i.e. the Respondents and PW23. It is his own evidence that all had separated for going to sleep at about 11.00 p.m. The Father had gone to his bedroom, PW23 to the storeroom and the Respondents to the TV room where mattresses were laid for them. It is his own evidence that all had separated for going to sleep at about 11.00 p.m. The Father had gone to his bedroom, PW23 to the storeroom and the Respondents to the TV room where mattresses were laid for them. Shri Bhobe points out that an attempt has been made by PW23 to save himself from the scrutiny or to escape from the suspicion by saying that at 6.20 a.m. when he got up and came to the dining room he found that the door between the dining room and the TV room was latched from outside, thereby suggesting that he had no excess to the Father's bedroom. As per the sketch/map of the Father's premises the access to his bedroom was through the TV room and there was no access from the dining room to his bedroom. Shri Bhobe, points out that the cross-examination of PW23 shows that there was another access available to PW23 to the Father's bedroom and that access was not closed. PW23 admitted in his cross-examination that there is a staircase for going down from the balcony attached to the kitchen and the door of the balcony was open on that night. Shri Bhobe, therefore submits that it was possible for PW23 to come down from the rear side staircase and come to the drawing room by the regular staircase to have access to the Father's bedroom. In that circumstance, he submits that it was possible for PW23 to latch the door of the dining room from outside then return to the storeroom by taking the rear side staircase. He submits that in fact the evidence on record to establish that the door of the dining room was latched from outside is not sufficient. PW23 being one of the persons present in the company of the Father till 11.00 p.m. his evidence requires stricter scrutiny. It would be risky to accept his word by itself as the evidence is of a fact. The evidence of PW23 that the door to the dining room was latched from outside and that it was opened after he knocked on the door in the morning is not corroborated by anybody or any circumstance. During the course of investigation, the prosecution could have found out the person who had opened the latch from outside and also examined him in court. During the course of investigation, the prosecution could have found out the person who had opened the latch from outside and also examined him in court. There is no explanation offered by the prosecution for not examining the person who opened the latch for PW23. Such a person has not even been named anywhere on record. This failure on the part of the prosecution coupled with another access available to PW23 would indicate that the possibility of PW23 having committed the murder cannot be ruled out completely. As per the prosecution case, the Police had taken help of a sniffer dog at the initial stage. The dog was made to sniff the articles from the place of offence. Thereafter, the dog had straightaway headed towards the kitchen. The prosecution has not produced the report of the dog squad though collected during the course of investigation. PW27, the Investigating Officer stated that he was of the opinion that it was not material for the decision of the case. He however admitted that after the smell of the mat and pillow was given to the sniffer dog the dog had gone to the back door i.e. the kitchen side. 17. It is the case of the prosecution that both the Respondents had sufficient motive to commit the crime as according to it during the night between 17-3-2006 and 18-3-2006, after PW23 went to the storeroom for sleeping the Father had called the Respondents one by one to the bedroom and sexually exploited them. It is the theory of the prosecution that this alleged act of the Father must have upset the Respondents and provoked them to commit the Father's murder. Shri Bhobe submits that if sexual exploitation of the Father is to be considered as motive for its murder then the same motive was available to PW23 also. It is the evidence of PW23 also that he had been similarly sexually exploited by the Father. Thus, the material on record shows that the three persons for whom the possible motive to kill the Father was available were in the presence of the company of the father till 11.00 p.m. Access to the Father's bedroom was available to all the three. In these facts, we find it difficult to hold that the evidence on record points to the guilt of Respondents alone. In these facts, we find it difficult to hold that the evidence on record points to the guilt of Respondents alone. The prosecution has not been able to explain the circumstances against PW23. 18. It is the prosecution case that on the night of 17-3-2006 deceased Father had sexually exploited the Respondents. The only evidence to support this case is the alleged statements made by the Respondents to PW19, the doctor to whom they were sent for second medical examination. There is no proper explanation on record for sending the Respondents for the second medical examination. On their arrest on 21-3-2006, the Respondents had already been medically examined by PW22/Dr. Sapeco. The cross-examination of PW27 shows that PW23 and PW20 had been sent by him for examination by PW19 with a specific request vide letter dated 23-3-2006 to find out whether they had been sexually assaulted(Anal intercourse) and whether they were habitual to anal intercourse as passive agent. Though the letter does not refer to the Respondents, the fact that the Respondents had been sent for second medical examination on the same day as PW23 and PW20 cannot be lost sight of. PW19 has deposed that the Respondents are neither active agents nor passive agents for such intercourse. According to PW19 when the Respondents were brought to him for the medical examination they made certain revelations to him which revelations are the only evidence on record to substantiate the motive attributed to the Respondents. The revelations read as follows: Respondent No.2's statement Told to me written in English. Father called me to his room and told me to masturbate him, since he did not get erection told me apply coconut oil to the penis. Then performed fellatio and then Father performed fellatio on me. Later he tried to have oral intercourse but he was not getting erection. He got fed up told me to go out and to send Manish. Respondent No.1's statement Manish tells in Hindi written in English. Father forced us to have beer. First Amit went to Father's room where Father performed fellatio on Amit and vice versa and Amit masturbated Father. Then Father called me to his room he kissed me in the mouth and told me to masturbate him but he was not getting erection so he got angry and took out a knife telling he is going to cut my penis. 19. Mr. Then Father called me to his room he kissed me in the mouth and told me to masturbate him but he was not getting erection so he got angry and took out a knife telling he is going to cut my penis. 19. Mr. Joshi on one hand submits that this evidence must be treated as extra judicial confession on the part of the Respondents whereas Shri Bhobe strongly urges, on the other hand, that this evidence is completely inadmissible in evidence. According to him, there was no occasion for PW19 to make any inquiries with the Respondents as to what had happened on the night of 17-3-2006. It is to be noted that the information was not given by the Respondents by way of history of the injuries on their person. The injuries were found to be only on the fingers of the Respondents and hence completely unconnected to any sexual activity. In the circumstances, it is a mystery as to how the statements came to be made to PW19. In our opinion the alleged disclosure cannot be treated as extra judicial confession in view of the fact that the Respondents were already under arrest at the relevant time. They were taken to PW19 by the Police. Therefore, it cannot be said that they were not under police surveillance. PW19 was a total stranger to them. The Respondents in their statement under Section 313 Cr.P.C. deny the confession. Therefore in the absence some material corroborating the confessional statement in our opinion it would not be without risk to accept that as an established link in the chain of events alleged. 20. The next circumstance relied upon by the prosecution is of the conduct of the Respondents soon after the incident. Shri Joshi points out that though it was the claim of the Respondents that they were to go to Allahabad for appearing for some examination and Respondent No.1 had taken leave for the specific purpose, both first went to Bombay and from there to Nagpur. He also points out that the Respondents have not disclosed the particulars of the examination that they were supposed to take. He points out that the Respondents do not dispute that they were apprehended at Nagpur on 21-3-2006. Firstly, there is no claim made by the Respondents that they were to go directly to Allahabad. He also points out that the Respondents have not disclosed the particulars of the examination that they were supposed to take. He points out that the Respondents do not dispute that they were apprehended at Nagpur on 21-3-2006. Firstly, there is no claim made by the Respondents that they were to go directly to Allahabad. Besides, it is their claim that on 21-3-2006 they were to travel to Allahabad but came to be arrested before they could leave. As has been rightly pointed out by Shri Bhobe, the Respondents have not suppressed or concealed any information or even their whereabouts. When PW2 confronted them in Curtorim market they had given their mobile numbers as also of the number of PW8. They were also in contact with PW8. This conduct of the Respondents would be consistent with innocence rather than the guilt. Therefore, in our considered opinion, the conduct of the Respondents of going first to Bombay and then to Nagpur instead of going directly to Allahabad is of no consequence. 21. The other link in the chain of circumstances alleged by the prosecution is discovery of knife allegedly used for causing injuries to the Father at the instance of Respondent No.1. The material for establishing this fact is the deposition of PW16, the panch witness, PW25, one of the Investigating Officers and the discovery panchanama. Respondent No.1 in his statement under Section 313 Cr.P.C. has denied having made any statement to the Police while in custody. According to him, the knife produced in evidence had been picked up by PW27 from the residence of the Father. PW16 deposed that on 21-3-2006 he was called by PW25 to act as a panch. PW16 accordingly attended Maina Curtorim Police Station where Respondent No.1 disclosed in Hindi language that he would show the place where he had thrown the knife used in assault on the Father by both the Respondents. Respondent No.1 disclosed that while running away from the place he had thrown the knife in the bushes on the left side of the road. The disclosure made by Respondent No.1 was written in Hindi language on the panchanama. Thereafter, Respondent No.1 led the panchas and Police to a place near electric pole No. S.79 at a distance of 300 metres behind Macazana Church. Respondent No.1 went into the bushes and removed a knife having broken plastic handle of orange colour. The disclosure made by Respondent No.1 was written in Hindi language on the panchanama. Thereafter, Respondent No.1 led the panchas and Police to a place near electric pole No. S.79 at a distance of 300 metres behind Macazana Church. Respondent No.1 went into the bushes and removed a knife having broken plastic handle of orange colour. The panchanama of discovery of the knife was recorded and the knife was seized after sealing. This evidence of PW16 is supported by the deposition of PW25. However, the cross-examination of PW16 brings out material which throws some doubt as regards the circumstance of discovery. PW16 admitted in his cross-examination that he is not very familiar with Hindi language. He stated “I slightly understand spoken Hindi. PSI Paresh Naik also explained to me the statement made by A-1 in Hindi”. This would mean that there was involvement of the Police in interpreting the disclosure made by Respondent No.2 in Hindi. This ought to have been completely avoided by the Police considering the importance of the disclosure. Since the entire case rests upon circumstantial evidence, we are constrained to hold that the circumstance of discovery of the knife has not been established beyond reasonable doubt by the Police. Besides, it was necessary for the prosecution to establish the connection between the knife and the death of the Father. The Supreme Court in its decision in Mustkeemalias Sirajudeen v. State of Rajasthan (2011 AIR SCW 4410) has held that discovery of a material object at the disclosure of the accused alone would not automatically lead to the conclusion that the offence was also committed by the accused. After discovery of the material object, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Evidence Act is the information leading to discovery and not any opinion on it by the prosecution. It has already been seen that death of Father was caused by strangulation and smothering with a pillow. The knife was allegedly used by the accused person to cause post mortem injuries upon the body of the Father. Therefore, the knife is not the murder weapon at all. It has already been seen that death of Father was caused by strangulation and smothering with a pillow. The knife was allegedly used by the accused person to cause post mortem injuries upon the body of the Father. Therefore, the knife is not the murder weapon at all. It is the case of the prosecution that the Respondents were so upset with the Father that they caused him injuries with the knife even after his death. Therefore, even if the circumstance of discovery of the knife is held to have been proved by the prosecution, for the sake of argument, the discovery would be a very weak piece of evidence to connect the Respondents to the offence of murder. 22. It is the prosecution case that while the Respondents were arrested at Nagpur PW25 found the key to the door of the Father's bedroom with Respondent No.2. The key was seized by him during drawing of arrest cum attachment panchanama. Respondent No.2 alleges that this key was planted upon him by PW25. In our opinion, it may not be necessary for us to go into these disputed facts since the Police, admittedly have not even tried the key on the lock to the door of the Father's bedroom. The Police have undoubtedly drawn panchanama of the door to the bedroom of the Father which door had been removed and kept aside after it was broken. This panchanama was drawn after arrest of the Respondents and the recovery of the key from Respondent No.2. However, surprisingly the Police did not try the key on the lock in order to confirm that it was the right key. Shri Joshi has made an attempt to submit that the key recovered has words “PLAZA” written on its head on one side and No.53 on the other side. He points out that the lock to the door of the Father was also of “PLAZA” Company and is of No. 53. Even if that is so, the Police ought to have ensured that the key is of the same lock as fixed to the Father's bedroom for the Court to hold that this circumstance has been established beyond a reasonable doubt by the Police. Therefore, we are not inclined to hold that the Police have established this circumstance beyond reasonable doubt. 23. Therefore, we are not inclined to hold that the Police have established this circumstance beyond reasonable doubt. 23. Much stress has been relied upon by the prosecution on the injuries to the person of the Respondents. These injuries are in fact very minor injuries. PW22, the doctor who had first examined the Respondents deposed about the injuries found by him on the Respondents during the medical examination conducted by him. He stated that there were three incised cut injuries on Respondent No.1 i.e. (i) an incised cut of 1 ½ cms. on the right thumb, (ii) incised cut of half cm. on the tip of left middle finger, (iii) two incised cuts of half cm. and one cm. each on the left ring finger. On the left index finger of Respondent No.2 he found an incised cut of 1.3 x 4 cms. He opined that the injuries on both the Respondents were caused within 3 to 5 days duration and were caused by tip of sharp weapon. The explanation given on behalf of the Respondents to the injuries is that on reaching Bombay by train when they were removing their luggage from below the seats they had received minor cut injuries. Considering all the facts and circumstances of the case and the nature of proof produced by the prosecution, we are inclined to accept the explanation given by the Respondents to the injuries. Further even if the explanation given is rejected the fact of the injuries found on the persons of the Respondents will not by itself be sufficient to connect them to the crime. Therefore, this circumstance will not be available to the prosecution to establish the offence alleged against them. 24. According to the prosecution there was sufficient motive available for the Respondents to commit murder of the Father. Shri Joshi submits that on the night of the incident, the Father had subjected both the Respondents to sexual abuse. The disclosure made by the Respondents to PW19 would show that the Father was not particularly happy with the performance by the Respondents and had in fact threatened them. This must have upset the Respondents who had then with common intention killed the Father. The disclosure made by the Respondents to PW19 would show that the Father was not particularly happy with the performance by the Respondents and had in fact threatened them. This must have upset the Respondents who had then with common intention killed the Father. Firstly, it has already been held that the evidence of disclosure by the Respondents to PW19 about the sexual abuse by the Father on the night of the incident has not been established by the prosecution. In that case, the entire case of the prosecution of availability of motive to the Respondents falls to the ground. The evidence also shows that according to the prosecution the Respondents were so upset with the Father that they caused as many as 40 injuries upon his body with the knife after causing his death. There is no material whatsoever on record to indicate that this was the state of mind of the Respondents. It is to be noted that both the Respondents had come to the Father's house at his invitation. They had dinner and drinks with him. Had there been any struggle and show of heat or anger by the Respondents the same would obviously have been heard by PW23. The evidence on record shows that the storeroom is adjoining to the Father's bedroom with only a wooden partition separating the two. The floor of the Father's bedroom is a wooden floor. Therefore, any struggle would naturally have caused some sounds which would have been heard by PW23 in the storeroom. PW23 has stated in his cross-examination that he heard no sounds whatsoever during the night. 25. It is to be noted that the prosecution has not assigned any specific role to the Respondents in commission of the crime. Considering the medical evidence and the injuries found on the body of the Father the murderer had subjected the Father to 4 types of injuries i.e. strangulation, smothering, injury by blunt object and injuries with a sharp weapon like a knife. It was necessary for the prosecution to set out in its case as to which of the injuries were caused by which Respondent. It was necessary for the prosecution to set out in its case as to which of the injuries were caused by which Respondent. Since the allegations made by the prosecution and charge framed based thereon is under Section 34 IPC i.e. of the act in furtherance of common intention and not under Section 120-B i.e. of an act done pursuant to criminal conspiracy, this aspect of the matter assumes significance. Therefore, it was necessary by the prosecution to show the role played by each Respondent either from the conduct or from the circumstances. 26. Shri Bhobe has taken pains to argue that the entire case of the prosecution has to be discarded for a fundamental flaw which would go to the root of the case. He submits that the statement of PW6 which has been treated by the Police as the first information report was not in fact the first information received by the Police in response to which the investigation had commenced. He submits that the record shows that the first information of commission of the offence given to the Police was by PW9, but for some reason known only to the Police, they have chosen to record the statement of PW6 and treat the same as the FIR. Shri Bhobe points out that there is also substantial difference in the time of the information given by PW9 and PW6. According to the prosecution and also the evidence of PW6 and PW27, the statement of PW6 was recorded at 8.20 a.m. at the Police Station. Whereas it has been brought on record during the cross-examination of PW9 that he was at the Church at 7.15 a.m. and had gone to the first floor to the residence of the Father along with other persons. He had then come down and given a call to the Police on his mobile. Thereafter, the Police had come to the spot. PW6 deposed that on 18-3-2006 at about 7.30 a.m. he had received a phone call from Arch Bishop Filip Rodrigues that the Father of Macazana Church has been murdered. The Arch Bishop asked PW6 to visit the Macazana Church since he was the Dean. Therefore, PW6 rushed to Macazana Church and reached there at about 7.45 a.m. He found that a lot of people had gathered at the Church. The Arch Bishop asked PW6 to visit the Macazana Church since he was the Dean. Therefore, PW6 rushed to Macazana Church and reached there at about 7.45 a.m. He found that a lot of people had gathered at the Church. When he went up to the residence of the Father he found that the door of the bedroom was already broken open and that a Police photographer was already present at the spot. This would mean that the photographer was present at the place of the offence even prior to recording of the statement of PW6 at about 8.20 a.m. 27. The term “First Information Report” is not mentioned in the Criminal Procedure Code. But it means, information recorded under Section 154 of the Code. It is the information given to the Police of a crime with the object of setting the investigation into the crime in motion. It is well established that the first information need not contain all the details and that it is sufficient if it indicates that an offence has been committed. It is true that any sort of information vague or indefinite given first in point of time is not the First Information Report. It must be information relating to commission of a cognizable offence. Since the purpose of the FIR is to set the investigation into the crime by the Police machinery into motion, obviously a statement recorded after commencement of the investigation cannot be an FIR. The record shows that PW9 was amongst the first group of persons visiting the Father's residence and was present when the door to the bedroom was broken. There is material on record to indicate that PW9 had immediately given the information of the crime to the Police over his mobile. As regards PW6, from the prosecution evidence, it appears that he was taken by the Police from the place of the offence to the Police Station for recording his statement. It is the evidence of PW6 that after receiving the phone call from the Arch Bishop he had first rushed to Macazana Church. In these facts of the case the Police ought to have treated the information given by PW9 as the FIR. It is the evidence of PW6 that after receiving the phone call from the Arch Bishop he had first rushed to Macazana Church. In these facts of the case the Police ought to have treated the information given by PW9 as the FIR. The other reason for not treating the statement of PW6 as the FIR is that the prosecution evidence shows that the investigation into the crime of murder of the Father had already commenced since the Police were already at the place of offence along with the photographer. Therefore, we find substance in the argument of Shri Bhobe that the first information received by the Police of commission of the offence was from PW9 and not the statement of PW6. In that case, the statement of PW6 will attract the provision of Section 161 Cr.P.C. Such a statement then can be put to very limited use as provided under the Section 162 Cr.P.C.. 28. The last contention of Shri Bhobe relates to the arrest of the Respondents. The Respondents have been formally shown arrested at Goa after they were brought here from Nagpur. Shri Bhobe submits that the Police had in fact arrested the Respondents at Nagpur itself. The record of the case also confirm this. After the Respondents were picked up by the Police, PW25 had got arrest-cum-attachment panchanama recorded in the presence of PW18/Dr.Garajkar and another pancha. The deposition of PW25 also refers to the arrest of the Respondents at Nagpur. Despite that the Police have shown the Respondents as having been arrested at Goa by drawing a formal arrest panchanama at Goa. Such arrest would not be in conformity with the requirement laid down given by the Supreme Court in its decision in D. K. Basu v. State of West Bengal reported in ((1997) 1 SCC page 416).In that case while considering the issue of deaths in Police lock-ups and custody the Supreme Court felt that the two possible safeguards to check the abuse of police power are transparency of action and accountability. It observed that in addition to the existing statutory and constitutional requirements it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It therefore issued 11 directions to be followed in all cases of arrest or detention as preventive measures. It observed that in addition to the existing statutory and constitutional requirements it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It therefore issued 11 directions to be followed in all cases of arrest or detention as preventive measures. The directions include an entry to be made in the diary at the place of detention regarding the arrest, information to be provided to the concerned Police Control Room, immediate preparation of inspection memo, forwarding copies of all the documents including the memo of arrest to the Illaqa Magistrate for his record. It is not the case of the prosecution that the requirements laid down by the Supreme Court were complied with by the Police at Nagpur. The consequences of failure to comply with the requirement have been stated at para 36 of the Judgment. The same read as follows: “36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter”. Therefore a notice is required to be issued to PW25/Paresh Naik to show cause as to why action for Contempt of Court be not initiated against them. 29. Careful perusal of the entire record shows that none of the ingredients essential for proving guilt by circumstantial evidence are present in this case. Some circumstances are not fully proved, some are not conclusive, the chain of circumstances is not complete and some circumstances do not exclude possibility of guilt of a person other than the Respondents. Therefore, the Sessions Court has rightly acquitted the Respondents. Resultantly the appeal fails. 30. Office to issue notice calling upon PW25/Paresh Naik to show cause as to why action for Contempt of Court be not taken against them for failure to comply with the directions given by the Supreme Court in D. K. Basu v. State of West Bengal(supra) in the matter of arrest of Manish Dhube and Amit Shukla on 21-3-2006 at Nagpur in connection with Crime No.21 of 2006 registered with Maina, Curtorim Police Station, South Goa, returnable on 8-11-2011. The bail bonds of both the Respondents stand discharged.