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2012 DIGILAW 183 (BOM)

Angela Diniz v. State

2012-01-25

A.P.LAVANDE, U.V.BAKRE

body2012
Judgment :- U.V. BAKRE, J. 1. This Appeal is filed by the accused in Session Case no. 7 of 2004, against the Judgment dated 10/07/2008 and the final Order/sentence dated 18/07/2008, passed by the learned Session Judge, South Goa, Margao (“Trial Judge”) in the said case. 2. The accused was tried for the offence punishable under Sections 302 and 201 of the Indian Penal Code (I.P.C.). 3. Initially, on 16/12/2003, the death of Floriano Diniz was registered as Unnatural Death under U.D. no. 30/2003 under Section 174 of the Code of Criminal Procedure (Cr.P.C.). However, the prosecution case was set into motion on the basis of the Second Inquest Panchanama (Exhibit 23) conducted by the Deputy Collector and SDM (PW 1) on 19/12/2003 at the request of Dy. Supt. of Police of Quepem, and the complaints received by him on 20/12/2003 from the parents of the deceased and the villagers alleging foul play in the death of Floriano Diniz. The offence was registered on 20/12/2003. 4. The case of the prosecution, briefly stated in the charge sheet, was as follows:- On 16/12/2003 at about 19.30 hours, the accused, being the wife of Floriano Diniz and her son (name withheld) aged 17 years, in furtherance of their common intention, killed said Floriano Diniz by causing him bodily injuries and thereby both committed offence punishable under sections 302 and 201 r/w. Section 34 of I.P.C. It was specifically stated that the accused Angela Diniz assaulted the deceased with wooden danda and pulled and twisted his testicles, sat on his body, hit his head on the ground and thereby caused injuries on head, chest and testicles, etc. and her son (name withheld) assisted her by catching hold of his father at the time of assault. It was further alleged that both the accused burnt the blood stained cloths and the juvenile accused initially gave a false history about the death of his father and thereby both destroyed the evidence. 5. The said Juvenile (name withheld) was tried before the Juvenile Justice Board, Apna Ghar, Merces, Goa, separately in case No. 9/JJB/2004 . 6. The accused had pleaded not guilty to the charges framed by the Trial Judge. The prosecution examined altogether 25 witnesses in support of its case. 7. The case of the accused, as revealed from her statement under Section 313 of the Cr. P.C., is of denial simplicitor. 6. The accused had pleaded not guilty to the charges framed by the Trial Judge. The prosecution examined altogether 25 witnesses in support of its case. 7. The case of the accused, as revealed from her statement under Section 313 of the Cr. P.C., is of denial simplicitor. The accused did not examine any witness. 8. The learned Trial Judge, upon assessment of the entire evidence on record, has held that the prosecution has proved its case against the accused beyond all reasonable doubt. The accused has been convicted and sentenced of the offence punishable under Section 302 of I.P.C. to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default rigorous imprisonment for six months and of offence punishable under Section 201 of I.P.C. to undergo rigorous imprisonment for a term of two years and to pay fine of Rs. 5,000/-, in default to undergo two months rigorous imprisonment. The amount of fine, when recovered, has been ordered to be paid as compensation to the parents and daughter of the deceased. 9. Insofar as the juvenile (name withheld) is concerned, indisputably, vide Judgment and Order dated 29/8/2011 of the Juvenile Justice Board, Apna Ghar, Merces, Goa, he has been acquitted of the offence punishable under Sections 302 and 201 r/w. Section 34 of I.P.C.. 10. In the present appeal, Shri S. Dessai, learned senior counsel argued on behalf of the accused whereas the learned Public Prosecutor Mr. C. A. Ferreira argued on behalf of the State. 11. Shri S. Dessai, learned Senior Counsel, in the first place, argued that the learned Trial Judge has failed to enumerate the circumstances which were available from the prosecution case to hold the accused guilty and that this vitiates the impugned conviction. In answer to the same, Mr. C. A. Ferreira, learned Public Prosecutor submitted that the following circumstances have been proved by the prosecution: 1) The death of the deceased is homicidal; 2) Last seen together; 3) Motive; 4) Conduct of the accused at the spot; 5) Recovery of burnt pieces of cloth, blood stained stones and the wooden danda at the instance of accused; 6) Injuries present on the accused; 7) Report of the CFSL; 8) Weapon used and nature of assault; 9) Conduct of the accused during statement under Section 313 of Cr. P.C.; and 10) Role / conduct of the P.S.I. 12. Mr. P.C.; and 10) Role / conduct of the P.S.I. 12. Mr. S. Dessai, learned Senior Counsel, in support of the Appeal, has basically contended as follows: a) The case put up by the prosecution was the one under Section 304, Part II of I.P.C. and this point has not been considered by the Trial Judge due to which there is foundational error as a result of which the conviction under Section 302 of I.P.C., is vitiated. b) The Trial Judge has not considered and scored out the aspect of the possibility of accidental death. There is divergent medical evidence/opinion on record due to which the Trial Court could not have held that the death was homicidal and ought to have given benefit of doubt to the accused. c) The accused was not last seen together with the deceased when he was alive but the witnesses namely PW4, PW5 and PW9 had seen her along with others near the dead body of the deceased. d) There is no evidence to prove motive for the accused and the evidence of PW4, PW5, PW6, PW7, PW8, PW9 and PW10 does not at all establish the alleged motive. e) It is established law that motive is relevant in a case, wholly based on circumstantial evidence and if the same is not proved, it constitutes missing link in the circumstantial evidence. f) The finding of the Trial Judge on the conduct of the accused post event is not sustainable and even otherwise is not sufficient to prove the guilt. g) There is no evidence to establish that the burnt pieces of cloth and ash allegedly recovered at the instance of the accused were/was of the dress worn by the accused. The stones are not recovered at the instance of the accused and even otherwise it is not established that the blood detected on the stones was human blood. The said recoveries are otherwise belated recoveries and not in accordance with law. h) The injuries sustained by the accused are superficial and minor injuries and they do not relate to the date of offence or the alleged incident. i) Mere blood detected by CFSL on the stones does not constitute incriminating circumstance against the accused. j) The connection of the said wooden stick allegedly recovered at the instance of the accused or the said stones, with the accused/Crime is not at all established. i) Mere blood detected by CFSL on the stones does not constitute incriminating circumstance against the accused. j) The connection of the said wooden stick allegedly recovered at the instance of the accused or the said stones, with the accused/Crime is not at all established. k) Non-examination of Carmelin Mascarenhas cited as charge sheet witness no. 24 and Ms. Jeema Diniz, cited as charge sheet witness no. 32 gives rise to the adverse inference against the prosecution as these are material witnesses. l) There is evidence of political interference and the trend of investigation had changed after the minister interfered. m) The statement of juvenile (name withheld) recorded under Section 164 could not have been relied upon as the same was belatedly recorded and the prosecution has suppressed previous statements of juvenile (name withheld) recorded under Sections 161 and 164 of Cr. P.C., thereby absolving the accused. n) Nature of the injuries caused to the deceased are injuries which cannot be inflicted by a woman. o) The prosecution case has turned more doubtful or uncertain, in view of the acquittal of co-accused juvenile (name withheld) by Judgment and Order dated 29/08/2011 by a Competent Court, which acquittal has attained finality. p) The accused is certainly entitled for benefit of doubt. 13. Shri S. Dessai, learned Senior Counsel for accused, has relied upon following Judgments: 14. Per contra, Shri. C. A. Ferreira, learned Public Prosecutor, submitted that the conviction of the accused does not suffer from any infirmity. He argued that the medical evidence on record read with the statement of the neighbour of the deceased namely Antonette Fernandes (PW-5), who heard the shouts of deceased “Pai re, mai re” (calling father and mother), which shouts suddenly stopped, sufficiently proves that the death of the deceased is homicidal. He further argued that PW 4, PW 5 and PW 9 have seen the accused as well as the juvenile (name withheld) near the dead body and the conduct of the accused in pulling underwear of the deceased up and down and in informing PW 5 that the deceased banged his head to a tree, though there was no tree in the vicinity, makes a strong circumstance leading to the guilt of the accused. He further argued that the evidence of PW 11 and PW 13 sufficiently proves the recovery of burnt pieces of cloth, ash, blood stained stones and the wooden danda at the instance of the accused and there is no explanation from the accused, in her statement under Section 313 of Cr. P.C., for the same and therefore this circumstance is also crucial for proving the guilty of accused. According to learned Public Prosecutor, the conduct of the accused in simply denying everything, without giving any explanation to the circumstances put to her, in the statement under Section 313 of Cr. P.C., also goes against her. He pointed out that the accused and the juvenile had sustained some injuries for which there is no explanation. Learned Public Prosecutor, further argued that the evidence of the prosecution witnesses duly established frequent visits of Carmelin Mascarenhas to the house of the accused in the absence of her husband that is the deceased and therefore the conclusion arrived at by the Trial Judge about illicit relationship between said Carmelin Mascarenhas and the accused, is proper and sustainable. He pointed out that the death of the deceased took place soon after he returned back to his house, from abroad. He further argued that the said Carmelin Mascarenhas, being in illicit relationship with the accused, was bound to support the case of the accused and that the said Jeema Diniz, is the daughter of the accused and was only eight years old at the time of incident and was not an eye witness. According to learned Public Prosecutor, politician namely Micky Pacheco had only gone to the police station along with the people with a request to take action and therefore nothing like political interference could be attributed to him, in this regard. He pointed out various lapses in the investigation, committed by Police Sub Inspector, Mr. Nerlon Albuquerque, but contended that the said lapses will not enure to the benefit of the accused. He concluded by contending that there is no scope for interference with the impugned Judgment and Order. 15. Learned Public Prosecutor, in support of his submissions relied upon the following Judgments: I. Mulakh Raj etc. Vs. Satish Kumar and others [ AIR 1992, 1175]; II Brathi Alias Sukhdev Singh Vs. State of Punjab [ (1991) 1 SCC 519 ]; III Willie (William) Slaney Vs. 15. Learned Public Prosecutor, in support of his submissions relied upon the following Judgments: I. Mulakh Raj etc. Vs. Satish Kumar and others [ AIR 1992, 1175]; II Brathi Alias Sukhdev Singh Vs. State of Punjab [ (1991) 1 SCC 519 ]; III Willie (William) Slaney Vs. State of M.P. [ AIR 1956 SC 116 ], (Constitutional Bench); IV Ramji Singh and Ors Vs. State of Bihar [ 2001 (9) SCC 528 ], (paras 13 to 14); V Gurpreet Singh Vs. State of Punjab [ 2005(12) SCC 615 ], (paras 13 to 15); VI Rizan and others Vs. State of Chhattisgarh [ 2003(2) SCC 661 ], (para 12); VII Dilip Singh and others Vs. State of Punjab [ AIR 1953 SC 364 ] 16. We have gone through the entire material on record, in the light of the arguments advanced by the learned counsel and the citations relied upon by both the parties. I. Whether the death of the deceased is proved to be homicidal. 17. PW 14, Dr. Silvano Dias Sapeco had conducted the postmortem examination of the dead body of Floriano Diniz on 17/12/2003 and he noticed altogether 22 external injuries which were mostly abrasions and contused lacerated wounds on various parts of the body, including at the root of the penis and at the scrotal sac. He had noticed extensive effusion of blood effect underneath scalp injuries. There were fractures for nasal bones, thin, sub-dural and sub-arachnoid haemorrhage present all over the brain, herniation of uncus and cerebellar tonsils. He noticed fracture to the right 8th to 10th ribs along the chondral aspect at mid axillary region. He also noticed lacerations at the base of penis and scrotal sac. As per the opinion of PW 14, the cause of death was due to damage for face and brain associated with fractures for ribs and nasal bones, as a result of blunt force or object or surface impact. The memorandum of autopsy, prepared and signed by PW 14 is at Exhibit 2. 54. 18. In his cross-examination, PW 14 has stated that in case of banging of head on a surface or on a wall or a tree, the injuries noted by him could have been caused. He has also stated that there existed consistency in the alleged history of the injuries being self-inflicted in nature in a mentally upset personality. 54. 18. In his cross-examination, PW 14 has stated that in case of banging of head on a surface or on a wall or a tree, the injuries noted by him could have been caused. He has also stated that there existed consistency in the alleged history of the injuries being self-inflicted in nature in a mentally upset personality. He has further stated that the injuries no.1 and 12, either individually or collectively, could have resulted in death of the victim in the ordinary course of nature. According to PW 14, he did not find that there was force used for squeezing of testicles. Most surprisingly, PW 14 had not examined the testicles by cutting the scrotum. The nature of injuries like fractures to the ribs, etc., do not support the opinion of causing injuries by banging the head on wall. The evidence on record reveals that there was no tree at the spot. PW 14 has otherwise stated that the injuries sustained by the deceased and which he has mentioned in his postmortem report could have been caused by any hard and blunt object, including wooden danda M.O. 9. When PW 14 was requested by the Police Inspector (PW 25), to give opinion about the discrepancies in the two P.M. Reports, vide his opinion at Exhibit 58, PW 14 stated that it is not impossible that the injuries on the deceased Floriano could be of homicidal nature. He also opined that if the deceased was incapacitated by facial and head injuries unexpectedly, there cannot exist possibility of defence injuries. He further stated that if the deceased did not possess history of earlier mental illness and did not consume hallucinogenic substances and/or alcohol and/or any common poisons, to be confirmed by the Chemical Analyser hereafter, there does not exist consistency to the alleged version of first Investigating Officer of Quepem P. S. of the injuries being self-inflicted in nature. As per the examination report of the CFSL, which is at Exhibit 129, ethyl alcohol and other common poisons could not be detected in the Viscera of the deceased. PW 14, vide the opinion at Exhibit 58, has further stated that in fact, strong probability confirms that the pattern of injuries could be as a sequel to homicidal assault in the person who had been incapacitated unexpectedly and thus absence of defence injuries existed. 19. PW 14, vide the opinion at Exhibit 58, has further stated that in fact, strong probability confirms that the pattern of injuries could be as a sequel to homicidal assault in the person who had been incapacitated unexpectedly and thus absence of defence injuries existed. 19. The second postmortem examination was conducted by a panel of three Doctors, headed by PW 19, Dr. E. J. Rodrigues. The Memorandum of autopsy is at Exhibit 73, which autopsy was done on 26/12/2003. The panel noted altogether 57 injuries on various parts of the body of the deceased which were caused by blunt force and which were ante-mortem and fresh at the time of death. On internal examination, PW 19 also noticed the extensive extravassation of blood in the tissues and beneath the scalp in the right frontal, temporal and parieto-occipital region and also on the left frontal and parieto-occipital region underneath the scalp injuries. There was extravassation of blood on the right side of neck and in the intercostal muscles and at fractured ribs sites on right 7th to 11th ribs and on left from 8th to 11th ribs along the mid axillary line on both sides. On incision of the scrotal sac, there was haematoma of both testes and surrounding area and in the substance of testes. The opinion of the panel on the cause of death is that it was due to head, chest and testicular injuries due to blunt force impact which were necessarily fatal and fresh at the time of death. 20. We have gone through the cross-examination of PW 14 and PW 19. There cannot be a dispute that the deceased had sustained various injuries and that he had died as a result of the said injuries. The nature of the injuries are such that they do not appear to be suicidal or accidental. The learned Trial Judge has observed that the other circumstances point to the death being otherwise than suicidal or accidental unlike the postmortem report of Dr. Sapeco. 21. The evidence of PW 5, Antonette Fernandes, who is the neighbour of the deceased and the accused reveals that at the relevant time of the death of the deceased, she heard shouts of the deceased like “ Pai re, mai re” (calling father and mother) which shouts suddenly stopped and there was complete silence. Sapeco. 21. The evidence of PW 5, Antonette Fernandes, who is the neighbour of the deceased and the accused reveals that at the relevant time of the death of the deceased, she heard shouts of the deceased like “ Pai re, mai re” (calling father and mother) which shouts suddenly stopped and there was complete silence. Immediately there after, PW5 heard the voice of the father of the deceased who was saying “Kodnium danvum iea re, mukelo put kabar zalo” (come running my son is no more). 22. We do not feel it necessary to critically examine the evidence of the two autopsies. The nature of the injuries sustained by the deceased coupled with the above evidence of PW5 is sufficient to conclude that the death of the deceased is homicidal. 23. However the matter does not end here. The prosecution is bound to prove beyond reasonable doubt that the accused along with her juvenile son (name withheld) was the author of the said injuries. 24. Admittedly, the prosecution has not brought on record any direct evidence against the accused. The case of the prosecution is entirely based on circumstantial evidence. In the case of “Sanjay Thakran and another” (supra), the Hon'ble Apex Court has reiterated the test to be satisfied for basing conviction on circumstantial evidence, while holding that it is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. The tests enumerated by the Apex Court are: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. II. Last seen together. 25. II. Last seen together. 25. As has been rightly argued by Shri. S. Dessai, learned senior counsel, the doctrine of “Last seen together” envisages the situation where the accused is seen last in the company of the deceased, prior to his death. PW 4, Shri Benedict Rodrigues, who is the neighbour of the accused has stated that on 16/12/2003 at about 7.00 p.m., Antonette Fernandes came near their house and asked him whether he heard any cries and in the meantime father of the deceased Floriano shouted and requested them to come to his house stating that his son was dead. According to PW 4, he and Antonette went near the place where the cries were heard. PW 4 has stated that they saw Floriano at a distance of about 30-40 metres from his house near stream which was on the lower side as compared to the house of Floriano and they also saw wife, sister and son of the deceased near him and that the wife and son were sitting near the said Floriano. PW 5, Antonette has not fully corroborated PW 4. According to PW 5, she saw wife, son, sister and also father of the deceased near the said place. She has added that the father of Floriano was there before they arrived. Lastly, PW 9, Menin Diniz who is the father-in-law of the accused and father of the deceased has stated that he saw the accused and her son near the body of Floriano. 26. The accused and her Juvenile son (name withheld) were not seen by PW 4, PW 5 and PW 9 inside the house of the accused along with Floriano, prior to his death. They were seen near the dead body of Floriano which was at a distance of about 30-40 metres from the house, which place is an open space and accessible to any one, and where there is stream of water (nalla). The circumstantial evidence of “last seen together” would be relevant if the prosecution establishes that the accused was last seen in the company of the deceased and that the time gap between the said company of the deceased with the accused and his death was so small that possibility of any other person being with the deceased could completely be ruled out. It would also be relevant, even if there is a long time gap, if the prosecution establishes that in intervening period there was no possibility of any other person meeting or approaching the deceased, at the place of incidence or before the commission of crime. (See “Sanjay Thakran and another”,supra). From the above, it is clear that there is no evidence on record to say that the doctrine of “last seen together” is available to the prosecution. III. Conduct of the accused. 27. PW 5, Antonette Fernandes has deposed that after going to the place where the deceased was lying unconscious, she asked the accused as to what had happened and the accused told her that her husband Floriano had gone to take bath outside the house and suddenly disappeared and therefore she along with her son followed Floriano and that they tried to stop Floriano from proceeding further and that her husband went ahead and banged his head on the tree. PW 5 has further stated that the accused told her that she did not shout for help because on the previous night there was a fight in her house and she had shouted for help but nobody came. PW 5 has further stated that the accused was seen taking the underwear of Floriano down and upward while she was crying. 28. PW 9, Menin Diniz, the father of the deceased has deposed that he saw the accused pulling the underwear upward and downward. PW 9, however, does not say that PW 5 had questioned the accused as to what had happened and that the accused had stated certain facts, which are narrated by PW 5. PW 9 says that he asked his grandson, [juvenile (name withheld)] as to how Floriano died and that his grandson (name withheld) replied that Floriano banged his head on tree. According to PW 9, there was no tree around the place. Then, PW 10, Henriquita Gonsalves, sister of the deceased, has deposed that she had seen the accused pulling the underwear of the deceased to put it in order and the accused was crying along with her son [juvenile (name withheld)]. No doubt, the medical evidence of PW 19 reveals that the deceased had sustained injuries to the penis and also scrotal sac and there was haematomma at both testes and surrounding area and in the substance of testes. No doubt, the medical evidence of PW 19 reveals that the deceased had sustained injuries to the penis and also scrotal sac and there was haematomma at both testes and surrounding area and in the substance of testes. Without any supporting evidence, it would be very harsh to hold that the conduct of the accused in pulling the underwear of the deceased upward and downward proves that it was she who had caused the injury to the testicles of her husband. Even otherwise, the above witnesses have not fully corroborated each other. The circumstance about the alleged conduct of the accused in pulling the underwear of the deceased upward and downward is rendered doubtful by the version of PW10 who says that the same was done in order to put it in proper place. 29. The conduct of the accused in pulling the underwear of the deceased up and down and telling witnesses that the deceased had banged his head against a tree, no doubt, raises a suspicion. Suspicion, however strong, cannot substitute proof. In our considered opinion, therefore this conduct of the accused, in itself, would not be a sufficient circumstance to hold the accused guilty of murder of her husband. IV. Recovery of burnt pieces of cloths and blood stained stones and the wooden danda, at the instance of the accused. 30. PW 10, Henriquita Gonsalves has deposed that when they saw Angela (accused) and her son near the deceased, Angela was wearing an orange colour nightie and a blue colour blouse on the top. However, no such cloths have been recovered. What is recovered is burnt pieces of cloth and ash. The connection between the said burnt pieces of cloth and the ash with the orange colour nightie and blue colour blouse worn by the accused is not at all established. No one had seen the present accused or her juvenile son (name withheld) with the stones or wooden danda. The accused was arrested on 20/12/2003 but the panchnama (Exhibit 48) of the disclosure made by the accused and the recovery of the burnt pieces of the cloth, ash and two stones with blood stains was drawn on 27/12/2003. There is delay in conducting the panchanama. The accused was arrested on 20/12/2003 but the panchnama (Exhibit 48) of the disclosure made by the accused and the recovery of the burnt pieces of the cloth, ash and two stones with blood stains was drawn on 27/12/2003. There is delay in conducting the panchanama. The evidence of PW 11, as well as the Panchanama which is at Exhibit 48 reveals that the accused had volunteered only to show the place where she had burnt the cloths. Insofar as , the two stones with blood stains are concerned, there was no disclosure statement made by the accused. Therefore, the said two stones with blood stains could not be said to be recovered at the instance of the accused under Section 27 of the Evidence Act. It is pertinent to note that as per the examination report (Exhibit 131), of CFSL, Hyderabad, no blood was detected in the burnt pieces of cloths as well as in the ash. Though, blood was detected on the two stones, however, it was not confirmed to be human blood. The said stones were recovered from the open place near a nalla and the possibility of the animal blood falling on them, cannot be ruled out. 31. PW13, Ulhas Dessai acted as one of the pancha witnesses in the panchanama (Exhibit 52) of the recovery of the danda and pieces of the danda, at the instance of the accused. His evidence reveals that the accused first showed to them the place of the incidence, at Sukatemol, Molcornem, Quepem, which was at a distance of about 8-10 metres from the nalla. This is the place where the dead body of the deceased was found and this fact was already known to the Investigating Officer. The evidence of PW 13 and the recovery panchanama at Exhibit 52 further reveals that at a distance of about 8 – 10 metres from that nalla, there were some bushes and these bushes were only about 5 to 10 metres away from the place of incidence and at this place, the danda was allegedly found. This was on 31/12/2003 that is about 11 days after the arrest of the accused. Beside the above, on 17/12/2003, itself a panchanama of the scene of the occurrence was drawn at Sukatemol, Molcornem, Quepem, for which PW 6 Shri Sandeep Malcornekar had acted as one of the pancha witnesses. This was on 31/12/2003 that is about 11 days after the arrest of the accused. Beside the above, on 17/12/2003, itself a panchanama of the scene of the occurrence was drawn at Sukatemol, Molcornem, Quepem, for which PW 6 Shri Sandeep Malcornekar had acted as one of the pancha witnesses. From this panchanama, which is a part of Exhibit 35(colly), it can be understood that the location surrounding the dead body was checked. Even four stones with stains which looked like blood were allegedly seen near the dead body of the deceased, but surprisingly were not attached. It is not understood as to how the articles like said wooden danda with dried blood stains, pieces of danda, etc., were not found there on that day itself. The recovery of the wooden danda and pieces of wood, is not beyond suspicion. As per the report of CFSL, which is at Exhibit 131, no blood was detected on the wooden danda or piece of wood. 32. Thus, it cannot be said that the alleged recovery of burnt pieces of cloth and blood stained stones and wooden danda along with wooden pieces, at the instance of the accused, have been proved by the prosecution beyond reasonable doubt. Even otherwise, since the nexus of the said articles with the accused and also with the crime is not established, this circumstance is of no use to the prosecution. V. Injuries on accused. 33. PW 16, Dr. Vinod Naik had examined the accused on 20/12/2003 and he found the following injuries: i) abrasion on right forearm; ii) abrasion of left hand; iii) bruises on the right forearm; iv) bruise on left cheek; PW 16, has stated that all the said injuries were simple in nature and caused by hard and blunt object. The hurt certificate issued by PW 16 is at Exhibit 62. In his cross-examination, PW 16 has stated that he did not mention the duration of the above injuries. Therefore, it is not known as to when prior to 20/12/2003, the accused had sustained the said simple injuries. Even otherwise, these are negligible type of minor injuries which cannot be related to the incidence in which various injuries with different kinds of weapons were caused to the deceased. Hence, this cannot be a circumstance which can lead us anywhere towards the guilt of the accused. 34. PW15, Dr. Even otherwise, these are negligible type of minor injuries which cannot be related to the incidence in which various injuries with different kinds of weapons were caused to the deceased. Hence, this cannot be a circumstance which can lead us anywhere towards the guilt of the accused. 34. PW15, Dr. Poonam Verenkar had examined the Juvenile son of the accused (name withheld), on 30/12/2003. She noticed following injuries: i) pinkish white scar, 1 cm. x 0.25cms., on the neck near the chin; ii) pinkish white scar, 2cms. x 0.5cms. on the left forearm near the elbow, dorsal aspect: iii) pinkish scar , 1cm. x 0,25 cms. on the left hand at the base of thumb; and iv) tenderness on the left hand at the base of the middle finger. According to PW 15, all the above injuries were simple in nature and caused by hard and blunt object having duration of 10 to 15 days. Thus, the injuries sustained by the juvenile were also minor and cannot be related to the various serious injuries sustained by the deceased. Besides the above, the juvenile was not before the trial court, to defend his case and to give any explanation about the said injuries. Even otherwise, the juvenile has been acquitted by the Competent Court. This circumstance, cannot, therefore, help the prosecution to prove the guilt of the accused. VI. Conduct of the accused during the statement under Section 313 of Cr. P.C. 35. When there was nothing to be especially explained about any circumstance, and which need not be called as incriminating, the question of accused giving explanation to them and more particularly to the injuries sustained by her or by her son or for her conduct, etc., does not arise. The fact remains that the accused has denied all the questions that have been put to her in her statement under Section 313 of Cr. P.C. There is nothing odd in the conduct of the accused, in giving the answers, as given, during the recording of her statement under Section 313 of the Cr. P.C. VII. Motive. 36. The last and most important circumstance, which is relied upon by the learned Trial Judge, is the motive attributed to the accused. P.C. There is nothing odd in the conduct of the accused, in giving the answers, as given, during the recording of her statement under Section 313 of the Cr. P.C. VII. Motive. 36. The last and most important circumstance, which is relied upon by the learned Trial Judge, is the motive attributed to the accused. The learned Trial Judge has observed, in paragraph 8 of the impugned judgment, that the death of Floriano, husband of the accused in the late evening hours of 16.12.2003 has set the prosecution case rolling against the accused, the motive being that the deceased had learnt of her illicit relations with Carmelin who was visiting her in his absence while he was employed overseas and the quarrels between the accused and the deceased within 2 to 3 days of his arrival from his overseas employment and the spat prior to the time of the incident. The Trial Judge, in paragraph 22 of the impugned judgment, has held that there was enough motive for the accused to do the deceased to death, his presence being a source of distress on account of her parallel life in his absence. At one end, the Trial Judge has held that the motive for the accused to kill the deceased is established and on the other hand has observed that in any event, motive lies embedded in the heart of the accused person and the prosecution case would not fall flat in the event it does not establish the motive. We have minutely scrutinized the evidence on record to find out whether there is evidence regarding illicit relationship between the accused and one Carmelin Mascarenhas and whether the deceased had learnt about it and the same was the cause for the accused to commit murder of the deceased. In our considered view, the evidence on record is not even sufficient to suggest that such relationship ever existed. 37. In column no. 12 of the First Information Report dated 20/12/2003, it has been stated that the motive is not disclosed in the complaint and will be established during the course of investigation. However, after completion of the investigation, when the Final Form Report (charge-sheet) came to be filed on 18/3/2004, there is no mention anywhere in that charge-sheet that there was any motive established. However, after completion of the investigation, when the Final Form Report (charge-sheet) came to be filed on 18/3/2004, there is no mention anywhere in that charge-sheet that there was any motive established. PW 25, who completed the investigation, says that his investigation revealed that the accused and the minor (name withheld) were last seen near the body of the deceased. He does not say that his investigation revealed that there was illicit relationship between the accused and Carmelin Mascarenhas and that the presence of the deceased was a source of distress and hence this was the motive for the accused to do the deceased to death. It should further be noted that the above cannot be motive for the juvenile to kill his father. 38. PW 4, Benedict Rodrigues has deposed that he knows one Carmelin Mascarenhas who is the owner of the goods rickshaw and that he had seen said Carmelin Mascarenhas visiting the house of the accused on several occasions. He has further deposed that he also saw rickshaw of Carmelin Mascarenhas many time near the house of the accused. However, PW 4 has added that he does not know the reason for the said Carmelin Mascarenhas, for visiting the accused. PW 4 has further stated that the said Carmelin Mascarenhas was seen visiting the house of the accused about a year prior to the incidence. Merely because PW 4 has stated that in the absence of Floriano, when he was abroad, the accused and her children were residing in the house, we cannot jump to the conclusion that about one year prior to the incident, Carmelin Mascarenhas was visiting the house of the accused, with ulterior motive of keeping illicit relations with the accused. 39. PW 5, Antonette Fernandes has deposed that she knows one Carmelin Mascarenhas who is having goods riskshaw, and that she had seen said Carmelin Mascarenhas visiting the house of the accused on several occasions for about one year prior to the incident and that she had also seen goods rickshaw of Carmelin Mascarenhas parked near the house of the accused during that period. Thus, the above evidence also does not suggest, in any manner, that there could be any illicit relationship between the said Carmelin Mascarenhas and the accused. 40. Thus, the above evidence also does not suggest, in any manner, that there could be any illicit relationship between the said Carmelin Mascarenhas and the accused. 40. PW 7, Pascoal Dias has stated that one person whose name is not known to him used to come in the house of the accused Angela, during night time. But, PW 7 has further stated that on Saturday one Carmelin whom he knows had come to the house of the accused. Thus, the person who used to come to the house at night time was not Carmelin. Then, PW 7 has added that the said Carmelin whose name he was not recollecting is the same person who was coming to the house of the accused when her husband was abroad. PW 7, sometimes used to go to the house of the accused to do the work as a labourer. In his cross-examination, PW 7 has stated that he does not know whether the said Carmelin was visiting the house of the accused daily. He has further stated that he does not know whether Fulao had requested Carmelin to take care of his wife and children during his absence. PW 7 has not stated that there were illicit relations between the accused and Carmelin. The shaky evidence of PW 7 is not sufficient to prove any illicit relations between the accused and said Carmelin. 41. PW8, Bernadin Diniz, the mother of the deceased, has given a clean chit to said Carmelin. She has stated that she knows Carmelin who is from their village. She has categorically stated that she had not seen Carmelin visiting the house of the accused. 42. PW 9, Menin Diniz who is the father of the deceased has deposed that he knows one Carmelin Mascarenhas and that he was coming to the house of his son Floriano and that the accused was calling Carmelin Mascarenhas to the house. PW 9 has stated that during the absence of his son Floriano in Goa the accused was residing in the house along with two children. PW 9 does not say that during the absence of his son Floriano in Goa, Carmelin Mascarenhas was coming to the house. 43. In her statement under Section 313 of the Cr. P.C., the accused has not denied the visits of said Carmelin Mascarenhas to her house. PW 9 does not say that during the absence of his son Floriano in Goa, Carmelin Mascarenhas was coming to the house. 43. In her statement under Section 313 of the Cr. P.C., the accused has not denied the visits of said Carmelin Mascarenhas to her house. However, according to her, he used to visit her sometimes and that he used to come whenever her father-in-law used to call him. 44. Non-examination of said Carmelin Mascarenhas, who was cited as charge-sheet witness no. 24 has not been explained and it has weakened the prosecution case, to a large extent. 45. Mere visits to somebody's house cannot automatically lead to an inference of illicit relations. Shri S. Dessai, the learned senior counsel, has rightly argued that the finding on illicit relationship between the accused and Carmelin is uncalled for, in view of the absence of evidence. Therefore, there is absolutely no evidence on record to hold that there was any motive for the accused to cause death of the deceased, his presence being a source of distress on account of her parallel life, in his absence. The finding of the learned trial judge, in this regard, in our view, is erroneous and unsustainable. 46. In the case of “MulakhRaj” (supra), relied upon by the learned Public Prosecutor, it has been held thus: “Undoubtedly, in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.” 47. In the case of “Mulakh Raj”, supra, the facts were so clear that absence of motive was not fatal to the prosecution case. In the case before us, such is not the position. The circumstantial evidence is shaky and not sufficient. In the case of “Pannayar Vs. In the case of “Mulakh Raj”, supra, the facts were so clear that absence of motive was not fatal to the prosecution case. In the case before us, such is not the position. The circumstantial evidence is shaky and not sufficient. In the case of “Pannayar Vs. State of Tamil Nadu by Inspector Of Police”, [ (2009) 9 SCC 152 ], the Apex Court has held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. If a case is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is settled law that the motive loses all its importance in a case where direct evidence of eye witnesses is available. [See “State of Uttar Pradesh Vs. Kishan Pal & ors.”,(2008 16 SCC 7300)]. In the case of “Babu Vs State of Kerala” [2010 ALL MR (Cri) 3342 (S.C.)], the Hon'ble Supreme Court has reiterated the principle that absence of motive is a factor that weighs in favour of the accused. In the case of “Deepesh Raikar Vs. State” [2008 ALL MR (Cri) 2251], a Division Bench of this court has held that in a case based on circumstantial evidence and where the evidence is very weak, motive was of special significance to the prosecution and where the prosecution, having alleged, but having failed to prove the same, certainly it does break one link in the chain of circumstances. 48. Therefore, in the present case, the observation of the Trial Judge and the contention of the learned Public Prosecutor, that the prosecution case would not fall flat in the event it does not establish the motive, is not correct. 49. PW 7, Pascoal Dias has deposed that about three days prior to his death, the deceased who is also known as Fulao had came to his house ( house of the deceased), from abroad. He has stated that Fulao had came on Sunday and that on previous day i.e. on Saturday he (PW 7) was in the house of the accused on account of the arrival of the statue of Our Lady in the house of the accused. PW 7 has further stated that one Carmelin Mascarenhas had also come to the house of the accused on that Saturday. PW 7 has further stated that one Carmelin Mascarenhas had also come to the house of the accused on that Saturday. He has further stated that on Sunday the said Fulao had reached home at about 8.00 p.m. and he had heard some discussion between the accused and her husband (Fulao) on account of the fact that husband of the accused (Fulao) was not sending money to her for maintenance. Thus, there was absolutely no quarrel between the deceased and the accused on the ground of alleged visits of Carmelin Mascarenhas to their house. The said quarrel was a trivial quarrel which normally occurs between the husband and wife and that cannot at all be taken as motive for killing husband after about 18 years of marriage. 50. We have already seen that motive does play an important role in a case where there is only circumstantial evidence on record and if the said circumstances are not very strong enough to lead to the conclusion that it is only the accused who has committed murder. In the present case, the motive has not been established and this fact goes to the benefit of the accused. 51. In the present case, Kumari Jeema Diniz, the charge-sheet witness no. 32, who was staying with the accused, deceased and the juvenile son, in the same house,, could have been a material witness for the prosecution to unfold the truth. But she has not been examined and no explanation has been given for her non-examination. This has also weakened the case of the prosecution. 52. The diversity in the medical evidence and the flaws in the investigation, in the present case, do affect the prosecution. 53. The contention of the learned counsel for the accused that the Trial Judge has relied upon statement of the juvenile recorded under Section 164 of Cr.P.C., does not appear to be correct. In paragraph 77 of the impugned judgment, the learned Trial Judge has observed that PW 21, Mr. Faria, then Special Judicial Magistrate, had narrated in detail the steps taken by him to ensure privacy while recording the statement of the minor (name withheld), which is at Exhibit 87(colly). In paragraph 77 of the impugned judgment, the learned Trial Judge has observed that PW 21, Mr. Faria, then Special Judicial Magistrate, had narrated in detail the steps taken by him to ensure privacy while recording the statement of the minor (name withheld), which is at Exhibit 87(colly). However, the Trial Judge has held that no much significance is attached to his testimony one way or the other as the minor (name withheld) is not facing trial before her court and the statement made by him thus cannot be used in evidence against the accused. No fault can be found with the finding given by the Trial Judge. 54. The fact remains that in respect of the same incidence, the Juvenile in conflict of law (name withheld) has been already acquitted by the Juvenile Justice Board, Apna Ghar, Merces, Goa for offence punishable under Sections 302, 201 read with Section 34 of I.P.C. In the present case, though the charge sheet was filed for offence punishable under Sections 302 and 201 read with Section 34 of I.P.C., however the charge was framed only in respect of Sections 302 and 201 of I.P.C. Second point for determination, framed by the Trial Judge is whether the prosecution had established that the accused along with the minor (name withheld) had inflicted injuries on the vital parts of the body of the deceased in the near vicinity to the house in the late evening hours on 16/12/2003 with knowledge and intention to cause his death. The said point is answered by the Trial Judge in the affirmative vis-à-vis the accused saying that the minor (name withheld) is tried by the another Court. Therefore, the acquittal of the co-accused, for the same offences, though it is by some other Court, affects the case of the prosecution, in respect of the present accused also. 55. In view of the discussion supra, we do not deem it necessary to refer to the depositions of some other witnesses examined by the prosecution and also several other authorities cited by both the parties, though we have perused and considered them. 56. In the circumstances above, in our considered view, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. The accused is entitled to be given benefit of doubt and acquitted. 56. In the circumstances above, in our considered view, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. The accused is entitled to be given benefit of doubt and acquitted. The Judgment and order of conviction and sentence by the learned Trial Judge cannot therefore be sustained. The accused is, therefore, entitled to acquittal. The appeal is allowed. 57. In the result: (a) The impugned Judgment and Order dated 10/07/2008 and sentence dated 18/07/2008 are quashed and set aside. (b) The accused is acquitted of the offences punishable under Sections 302 and 201 of the I.P.C. (c) The accused is directed to be set at liberty forthwith, in case she is not required in any other case. (d) The muddemal property shall be destroyed, after the period of ninety days. (e) Appeal stands disposed of accordingly.