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2012 DIGILAW 1090 (BOM)

Anton Luis Piedade Fernandes v. State

2012-06-21

A.P.LAVANDE, U.V.BAKRE

body2012
Judgment :- A.P. Lavande, J. By this appeal, the appellant takes exception to the Judgment and Order dated 11th August, 2010, passed by the Additional Sessions Judge-1, South Goa, at Margao in Sessions Case No.18/2008, convicting the appellant (hereinafter referred to as “the accused”) for the offence punishable under Sections 302 of the Indian Penal Code (IPC) and sentencing him to undergo Life Imprisonment and to pay a fine amount of Rs.10,000/-. The accused has been convicted for committing murder of one Caitan Inas Fernandes on 28th April, 2008 between 2.00 to 3.00 p.m. at Bamnabhat, Ambaulim, Quepem, Goa 2. Briefly, the facts leading to filing of the present appeal, are as under: PW.6 Shantaram Gaonkar, Deputy Sarpanch of Ambaulim Panchayat lodged a report (Exhibit 28) at Quepem Police Station on 28th April, 2008 at about 7.10 p.m., stating therein that a person was killed at Bamnabhat Ambaulim at about 15.00 hours, near the residence of one Anton Fernandes. Pursuant to the said report, Crime No. 36/08, under Section 302 IPC was registered and investigation was taken up by PW12 PI Ramesh Gaonkar. PI Ramesh Gaonkar who was then holding additional charge of Quepem P.S. went to the spot and conducted scene of offence panchanama Exhibit 24. Sketch was also prepared. PW.5 Piedade Rocha was the panch witness to the scene of offence panchanama. Inquest Panchanama Exhibit 12 on the dead body of Caitan Inas Fernandes was conducted in which PW.1 Cruz Silva was a panch witness. Services of dog handler PW.4 Ramdas Naik were sought. PW.4 Ramdas Naik went to the spot along with dog who was made to sniff the foot print and mat, on which dead body of Caitan was found lying. The dog after sniffing said objects went into the hut which was by the side, at a distance of about 8 to 10 meters from the mat and the footprint and thereafter, the dog moved in the house and started barking. The dead body of Caitan was sent for postmortem which was conducted by PW.9 Dr. Avinash Pujari. The accused was arrested on 29th April, 2008 at about 1.45 a.m. pursuant to the panchanama exhibit 15 for which PW.2 Lawrente Joao Fernandes was a panch witness. The short pant of green colour with strips worn by the accused was seized under the very panchanama. Avinash Pujari. The accused was arrested on 29th April, 2008 at about 1.45 a.m. pursuant to the panchanama exhibit 15 for which PW.2 Lawrente Joao Fernandes was a panch witness. The short pant of green colour with strips worn by the accused was seized under the very panchanama. The statement of PW.11 Lourecinha Fernandes, wife of the accused was recorded on the same day. The accused was referred for medical examination, after his arrest and the blood grouping of the accused, as well as of the deceased was done by PW.7 Dr. (Mrs.) Vasundara Desai. Blood group of both, the accused and the deceased was 'A' Positive. Pursuant to the disclosure made by the accused, an axe (MO8) which was used in the commission of offence by the accused was seized from a hut, lying near room of the accused. The axe was having a bamboo danda, measuring 33 inches in length and the axe itself measured 9 inches in length and 3 inches in breadth at the sharp end. Thereafter on 14th May 2008, statement of PW.10 Melissa Fernandes, who is grand daughter of the accused, aged 6 years, who claimed to be an eye witness to the incident by the prosecution, was recorded. Although the prosecution attempted to get her statement under Section 164 recorded, the prosecution was not successful inasmuch as PW.10 Melissa Fernandes did not make any statement before the Magistrate when she was taken before him. Muddemal articles were sent for chemical analysis. The report of Chemical Analysis was received during the course of the trial. After completion of the investigation, chargesheet was filed against the accused for the offence punishable under Section 302 IPC before the Judicial Magistrate, First Class, at Quepem who committed the case to the Court of Sessions, South Goa, Margao. Sessions case was made over to the Additional Sessions Judge – 1, Margao. 3. In Sessions Case No.18 of 2008, the accused pleaded not guilty to the charge of murder. The prosecution examined 12 witnesses and produced several documents to prove the charge. The defence of the accused was of simple denial. The accused did not lead any defence evidence. Learned Trial Judge, upon appreciation of the evidence, held that the offence punishable under Section 302 IPC was proved against the accused beyond reasonable doubt and consequently, convicted and sentenced him as above. 4. The defence of the accused was of simple denial. The accused did not lead any defence evidence. Learned Trial Judge, upon appreciation of the evidence, held that the offence punishable under Section 302 IPC was proved against the accused beyond reasonable doubt and consequently, convicted and sentenced him as above. 4. Miss Mathkar, learned Counsel appearing for the accused, after taking us through the entire evidence led by the prosecution, submitted that the prosecution has not been able to prove the offence of murder against the accused. Learned Counsel further submitted that PW.10 Melissa Fernandes cannot be belied as an eye witness, since her testimony is full of inconsistencies and having regard to the fact that her statement was recorded on 14th May, 2008, possibility of she being tutored cannot be ruled out. “Learned Counsel next submitted that the recovery of danda at the instance of the accused also cannot be believed inasmuch as the same was recovered from open place and it is difficult to believe that on the previous day of the recovery the police did not notice the blood stained axe which the prosecution claims to have been discovered and seized on 29th April, 2008. Learned Counsel further submitted that the evidence led by prosecution regarding presence of blood on the pant of the accused, as well as the weapon i.e. the axe MO. Exh.8. is difficult to be accepted. Learned Counsel then submitted that the prosecution has not proved the motive for commission of the offence which assumes much importance having regard to the evidence led by the prosecution. Learned Counsel further submitted that it is the case of the prosecution itself that both, the accused and the deceased, were drunk and, as such, even if it is held that the accused assaulted the deceased, at the most offence under Section 304(II) IPC and not Section 302 IPC is made out against the accused. Learned Counsel lastly submitted that the evidence led by the prosecution is not sufficient to hold the accused guilty of murder of Caitan. Learned Counsel lastly submitted that the evidence led by the prosecution is not sufficient to hold the accused guilty of murder of Caitan. In support of her submissions, learned Counsel placed reliance upon the following judgments: (1) JalwantiLodhin vs. The State, (AIR 1953 Patna 246); (2) Shankar vs. State of Madhya Pradesh, ( AIR 1979 SC 1532 ); (3) Muthuvs. State by Inspector of Police, Tamil Nadu, ( (2009) 17 SCC 433 ); and (4) YamanappaRamappa Ibrahimpure vs. State of Maharashtra, (2011 Vol. 113(3) Bom. L.R. 1492);” 5. Per contra, Ms. Sardinha, learned Public Prosecutor, appearing on behalf of the respondents-State, submitted that the evidence of PW.10 Melissa Fernandes inspires confidence and she has absolutely no reason to depose against her own grandfather. According to learned Public Prosecutor, the accused has not denied his presence and it is settled law that in a case where there is an eye witness, the motive pales into insignificance. “Learned Public Prosecutor further submitted that the evidence of PW.10 Melissa stands corroborated by the evidence regarding discovery of the axe at the instance of the accused, as well as seizure of blood stained pant of the accused. According to learned Public Prosecutor, in the absence of plausible explanation to the incriminating circumstances appearing against the accused in his statement under Section 313 Cr. P.C., the prosecution evidence which clearly points out to the guilt of the accused has to be accepted and, as such, no fault can be found with the findings recorded by the learned Trial Judge who held the accused guilty of charge of murder. According to the learned Public Prosecutor, delay in recording the statement of PW.10 Melissa Fernandes is not fatal inasmuch as the accused has not sought any explanation from the investigating officer for the delay in recording her statement. Learned Public Prosecutor further submitted that having regard to the nature of the injury and the weapon used, the intention on the part of the accused to commit murder of the deceased has to be presumed and, therefore, learned Trial Judge is justified in convicting the accused of the offence of murder. Learned Public Prosecutor further submitted that having regard to the nature of the injury and the weapon used, the intention on the part of the accused to commit murder of the deceased has to be presumed and, therefore, learned Trial Judge is justified in convicting the accused of the offence of murder. In support of her submission that the delay in recording the statement of the witness is not fatal, learned Public Prosecutor placed reliance upon the Judgment of the Supreme Court in the case of GunnanaPentayya alias Pentadu and ors., vs. State of Andhra Pradesh, (2009) 16 SCC 59 ).” 6. We have carefully considered the rival submissions, perused the record and the judgments relied upon by both sides. 7. In order to prove the guilt of the accused, prosecution has relied upon the statement of eye witness PW.10 Melissa Fernandes and the following circumstantial evidence. “(i) Homicidal death of Caitan Inas Fernandes (ii) Recovery of weapon i.e. axe, at the instance of the accused; (iii) Presence of human blood on the axe. (iv) Presence of human blood on the short pant of the accused (v) Evidence of dog handler; (vi) Scene of offence panchanama.” 8. Before dealing with the evidence of PW.10 who claims to be the sole eye witness, we deem it appropriate to deal with the first circumstance i.e. regarding homicidal death of Caitan Inas Fernandes. In order to prove that the death of Caitan was homicidal, the prosecution has relied upon evidence of PW.9 Dr. Avinash Pujari who conducted postmortem on the dead body of Caitan on 29th April, 2008. He noticed the following injuries on the person of Caitan. “(1) Grazed abrasion red and fresh of size 6.0 x 1.5 to 2.5 cms. on the top of right shoulder outer aspect backwards and outwards 9 cms. from root of neck caused by hard and blunt object. (2) Contused abrasion red and fresh 3.0 x 1.5 to 2.0 cms. On top of left shoulder 7.5 cms. from root of the neck caused by hard and blunt object. (3) Frictional grazed abrasion red and fresh 3.5 x 1.5 to 2 cms. on left side neck below ventricular order near angle caused by frictional force hard blunt rough object. (4) Contused abrasion red and fresh on left side neck 7.0 cms. below the midway 5.0 cms. from midline 5.0 cms. (3) Frictional grazed abrasion red and fresh 3.5 x 1.5 to 2 cms. on left side neck below ventricular order near angle caused by frictional force hard blunt rough object. (4) Contused abrasion red and fresh on left side neck 7.0 cms. below the midway 5.0 cms. from midline 5.0 cms. above collar bone caused by hard and blunt object. (5) Linear abrasion red and fresh on left side neck 12.0 cms. from midline front at the root of neck 12.0 cms. below fibula 4.0 x 0.2 cms. to 0.5 cms. caused by sharp and pointed object. (6) Incised chop wound fresh with blood clot within broader and deeper with well defined clean cut sharp margins both angles acute flat sharply cut/divided of size 7.5 cms. x 1.0 cms. (at maximum) x vertebra deep situated on left side upper part of neck 1.5 cms. below ioq (anterior end) 9 cms. From midline front/upwards and backwards with evidence of grazing on upper margin/edge caused by sharp edged cavy/moderate cavy.” All these injuries were antemortem in nature. He noticed that external injury no.6 had cut slain, subcutaneous tissue, fascia, sterol, cleida, masdoid and muscles and also severed veins, nerves, internal and external caroeid arteries with jugular vain, subtissues. There was evidence of blood infiltration in soft tissues cut along the track. Front part of the injury deeper than back portion and approximate depth was 3.0 to 3.5 cms. All the injuries were fresh at the time of death and were ante-mortem in nature. He opined that external injury No.6 along with its underlined internal injury was individually sufficient to cause death in ordinary course of nature. He further opined that injuries no.1 to 6 were collectively sufficient to cause death in ordinary course of nature. He also opined that the cause of death was on account of haemorrhage and fracture of survival vertebra due to incised chocked wound on left side neck by impact of sharp edged heavy/moderate weapon. He further stated that he had not seen any injury on the body of the accused and that he had not examined the accused in that direction. He further stated that on 30.4.2008, he was asked by police to ascertain the blood group of the accused. He sent the accused for blood groping. He further stated that he had not seen any injury on the body of the accused and that he had not examined the accused in that direction. He further stated that on 30.4.2008, he was asked by police to ascertain the blood group of the accused. He sent the accused for blood groping. He further stated that he had given opinion vide letter dated 16.7.2008 that injury No.6 could have been caused by such weapon having sharp edge. He further categorically opined that injury No.6 could have been caused by axe Exhibit-8 which was shown to him. He identified his signature on the postmortem report Exhibit 42. In the cross examination, nothing tangible was brought on record, except that stomach was containing 90 CC fluid imparting strong alcoholic smell. He admitted that the weapon was shown to him for the first time in Court and he had no opportunity to see the said weapon on earlier occasion. 9. A close scrutiny of the above evidence clearly discloses that the deceased Caitan died on account of injury No.6 which was sufficient to cause his death in ordinary course of nature. 10. Evidence of PW.9 Dr. Avinash Pujari also stands corroborated by inquest panchanama Exhibit 12, which has been duly proved by the evidence of PW.1 Cruz Silva. Thus, we have no hesitation to hold that the death of Caitan was homicidal. 11. We shall now deal with the evidence of PW.10 Melissa Fernandes who, according to the prosecution, was the sole eye witness to the incident of assault by the accused on the deceased which resulted in his death. Before recording evidence of PW.10 Melissa, learned Trial Judge put certain questions to her and after satisfying himself that she was in a position to understand the questions put to her, recorded her statement. 12. PW.10 Melissa deposed that she has younger sister by name Swizel. She was also schooling. Her mother had gone abroad. But she could not say for how long her mother was abroad. She was living with her maternal grandmother at Bamnabhat. But she did not know the name of her grandmother. Name of her grandfather is Anton. Her grandfather Anton was also staying with them at Bamnabhat. She did not know about the incident that had taken place involving her grandfather or in which month or year it had occurred. She was living with her maternal grandmother at Bamnabhat. But she did not know the name of her grandmother. Name of her grandfather is Anton. Her grandfather Anton was also staying with them at Bamnabhat. She did not know about the incident that had taken place involving her grandfather or in which month or year it had occurred. She stated that the accused was a drunkard and under influence of alcohol he used to commit assaults. She did not recollect of the accused assaulting anyone under influence of alcohol. She further deposed that the police had recorded her statement, but it was not read over to her. At this stage, the witness was allowed to be cross examined on the ground that she was resciling from her statement. In the cross examination by learned Public Prosecutor, she stated that she did not recollect that PI Santosh had recorded her statement on 14.5.08. She further deposed that in her statement to the police she had stated that the accused had come consuming alcohol and her mother had asked him to request the person who had come, to go away. She denied the suggestion that she had stated to the police that thereafter, the accused went out with a mattress and slept under a cashew tree. She deposed that her mother had informed her that her grandmother went away crying as she was assaulted by the accused. She admitted that at that time she and her sister were playing outside the house. She admitted to have stated to the police that thereafter, the other man returned and slept on the said mattress. She admitted that thereafter the accused went inside the house, came out with an axe and assaulted said man with said axe. She did not know whether the blow was given on the neck of the said man. She did not know that the accused then went away on a cycle. In the cross examination by the advocate for the accused, she stated that on the day of the incident, she had not witnessed what Anton had done. She further stated that they were playing at long distance from the house. They were playing behind the house. She stated that they were occupying the same house and that her maternal grandmother had accompanied her that day to the Court. She further stated that they were playing at long distance from the house. They were playing behind the house. She stated that they were occupying the same house and that her maternal grandmother had accompanied her that day to the Court. She was living with her grandmother and police had made inquiries with her at home. To the question whether at that time the witness had told police that she was ignorant, the witness answered that she did not know anything. She further stated that the police did not record anything in her presence. Later on she was taken to the police station, but she could not say when. Thereafter she stated that on the previous day police had gone to their house and her grandmother had instructed her what to depose. 13. Admittedly, statement of this witness was recorded on 14th May, 2008. From a close scrutiny of the evidence of this witness what transpires is, initially, the witness did not support the prosecution, but during the cross examination by learned Public Prosecutor, the witness stated that she along with her sister were playing outside house and at that time accused went inside the house, came out with an axe and assaulted the man who had slept on the mattress kept by the accused under a cashew tree. However, she did not know whether the blow was given on the neck of the said man. However, resciling from her earlier statement made, in the cross examination by learned P.P., stated that she had not witnessed what Anton had done on the day of the incident and further stated that both, she and her sister were playing at a long distance behind the house. We find it extremely difficult to place reliance upon the testimony of PW.10 Melissa for several reasons. Firstly, her evidence is not consistent and though initially the witness did not support the prosecution, supported the prosecution to a certain extent during the cross examination by learned P.P. and thereafter again in cross-examination by the advocate for the accused, did not support the prosecution. Firstly, her evidence is not consistent and though initially the witness did not support the prosecution, supported the prosecution to a certain extent during the cross examination by learned P.P. and thereafter again in cross-examination by the advocate for the accused, did not support the prosecution. Having regard to the nature of the evidence of this witness, and having regard to the fact that her statement was recorded on 14th May, 2008 i.e. almost after a period of two weeks from the date of incident, we find it extremely difficult to place any reliance upon her statement made supporting the prosecution case during the course of cross examination by learned P.P. No doubt, learned P.P. is justified in placing reliance upon the Judgment of the Apex Court in the case of GunnanaPentayya (supra), in support of the proposition that mere delay in recording statement of a witness is not fatal, unless a specific question is put to the Investigating Officer regarding the reason for delay. However, in the present case, the Investigating Officer, who recorded the statement of PW.10, has not even stated as to what made him to record the statement of this witness only on 14th May, 2008 and why not on the same day or on the next day of the incident, more particularly having regard to the fact that he recorded the statement of wife of the accused i.e. PW.11 Lourecinha Fernandes who turned hostile on the very same day i.e. 29th April, 2008. It was expected of the I.O. to record the statement of PW.10 who was a child, at the earliest. Moreover, the witness is not consistent and does not even state as to on which part the accused assaulted the deceased. Therefore, we find it extremely difficult to place implicit reliance upon the testimony of PW.10 Melissa and to hold that she had witnessed the incident of assault by the accused on the deceased Caitan by the axe. 14. The next circumstance relied upon by the prosecution is in respect of recovery of weapon i.e. axe at the instance of the accused. To prove this fact, prosecution examined PW.8 Anthony Castinho who deposed that on 29th April, 2008, PI Gaonkar from Qupem Police Station requested him to act as panch witness. There was one more panch witness, but he did not know his name. To prove this fact, prosecution examined PW.8 Anthony Castinho who deposed that on 29th April, 2008, PI Gaonkar from Qupem Police Station requested him to act as panch witness. There was one more panch witness, but he did not know his name. The accused, in their presence, disclosed his name as Anton Fernandes and stated that he would show the axe which he had used. This disclosure was made in Konkani which was recorded and their signatures were obtained on the statement. Thereafter, they proceeded in police vehicle. The accused showed them the direction. When they reached Cuncolim junction, the accused asked to take vehicle to the right side. They, then proceeded on a katcha road to the house of the accused, which was situated in the locality known as Bamnawado. They got down from the vehicle. At that place there were two houses and a hut. Accused disclosed that both the houses as well as the hut belonged to him. The accused then showed the hut. In the hut, there were one axe, a pickaxe and a spade. There were blood stains on the sharp edge of the axe. The police took measurements of the axe. The measurements were recorded in the panchanama. The police then wrapped iron part of the axe in the cloth and obtained their signatures on a piece of paper and affixed the same on the axe. The axe was then wrapped in a cloth. Panchanama was written and their signatures were obtained on the panchanama. Both the panch witnesses signed the panchanama and accused put is thumb impression on the same. He identified his signature on the panchanama Exhibit 38 at point A. In the cross examination, except for a suggestion that the axe was not attached at the instance of the accused, nothing tangible has been brought on record. Evidence of this witness also stands corroborated by the evidence of PW.12 Investigating Officer Ramesh Gaonkar, whose evidence is also on similar line. 15. The evidence of PW.8 Anthony Castanha and the evidence of PW.12 Investigating Officer Ramesh Gaonkar is beyond reasonable doubt that at the instance of the accused axe (MO Exh. 8) was recovered and seized on 29/04/2008. 16. The next circumstance is presence of human blood on the axe which was seized. The same stands proved by the CFSL report Exhibit 44. 17. 8) was recovered and seized on 29/04/2008. 16. The next circumstance is presence of human blood on the axe which was seized. The same stands proved by the CFSL report Exhibit 44. 17. The next circumstance relied upon by the prosecution is presence of human blood on the short pant of the accused. No doubt, the panchanama Exhibit - 15 pursuant to which the accused was arrested and his short pant of green colour with strips was seized. No doubt, CFSL report exhibit 44 discloses that human blood was found on the short pant worn by the accused. PW2 Lawrente Fernandes, who was the panch for seizure of half pant of the accused stated that there were blood stains on the T shirt. However, there is absolutely no evidence to establish that half pant on which human blood was found was worn by the accused at the time of commission of the offence. Curiously, the pant worn by the accused has not been got identified through PW.10 Melissa, who according to the prosecution was an eye witness to the incident of assault. Therefore, we find it extremely difficult to use this circumstance against the accused. 18. So far as evidence of dog handler PW.4 Ramdas Naik is concerned, his evidence only points out that the dog moved in the hut and thereafter in the house and thereafter, he barked. It is now well settled that the evidence of dog handler can only be used for the purpose of investigation and cannot be treated on par with substantive evidence against the accused. The scene of offence panchanama no doubt discloses that a dead body of a male was found at the spot on a nylon mattress and there was a cut injury on the left side of the neck. There were also blood stains near the injury. Thus, the prosecution has been able to prove circumstances (v) and (vi). 19. The next question which arises for consideration is whether the circumstances which have been proved are sufficient to hold the accused guilty of the offence of murder of Caitan Fernandes. In the present case, we have held that PW.10 Melissa Fernandes cannot be believed as an eye witness. Therefore, the case now rests on circumstantial evidence led by prosecution. 19. The next question which arises for consideration is whether the circumstances which have been proved are sufficient to hold the accused guilty of the offence of murder of Caitan Fernandes. In the present case, we have held that PW.10 Melissa Fernandes cannot be believed as an eye witness. Therefore, the case now rests on circumstantial evidence led by prosecution. It is well settled that in order to convict an accused based on circumstantial evidence, the following tests have to be satisfied, as has been held by the Apex Court in SharadBirdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 : “(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused and must show that in all human probability the act must have been done by the accused.” 20. From the above discussion, it is evident that circumstances at serial nos. (i) to (iii), (v) and (vi) stand proved by the prosecution. The question, therefore, is whether all these circumstances taken together are sufficient to hold the accused guilty of murder of Caitan Fernandes. In our considered opinion, all the above circumstances which stand proved by the prosecution are not sufficient to hold the accused guilty. The above circumstances which are proved raise strong suspicion against the accused. But it is settled law that suspicion, howsoever grave, cannot take the place of proof. Therefore, in our considered opinion, the accused is entitled to the benefit of doubt. 21. In view of the above discussion, we are of the considered opinion that the evidence led by the prosecution is not sufficient to prove that the accused committed murder of Caitan Inas Fernandes. The accused is, therefore, entitled to benefit of doubt and consequently, to be acquitted. 22. 21. In view of the above discussion, we are of the considered opinion that the evidence led by the prosecution is not sufficient to prove that the accused committed murder of Caitan Inas Fernandes. The accused is, therefore, entitled to benefit of doubt and consequently, to be acquitted. 22. In the result, therefore, the appeal is allowed. The conviction of the appellant/accused for the offence punishable under Section 302 IPC and the sentence imposed on him is quashed and set aside and the accused is acquitted of the offence punishable under Section 302 IPC. Fine amount, if paid by the accused shall be returned to him. The order passed by the learned Trial Judge, in so far as disposal of the property is concerned, is maintained. The accused is ordered to be set at liberty forthwith, if not required in any other case.