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2012 DIGILAW 591 (BOM)

State of Goa v. Shri Laxman J. Naik

2012-03-19

S.C.DHARMADHIKARI, U.V.BAKR

body2012
Judgment :- U.V. Bakre,J. This is State appeal against acquittal. 2. The respondents (accused persons) were tried for the offence punishable under Sections 342 and 302 read with Section 34 of the Indian Penal Code (IPC). 3. The case of the prosecution, in short, was that on 07/10/2006 between 07.45 hours and 14.00 hours, at Ramnathi, Ponda, the accused persons, in furtherance of their common intention, wrongfully confined Shri Ajit Bhikaji Dangui, the husband of the accused no.3, in his room by tying both his hands at the back and also by tying both his legs with a nylon rope and assaulting him with kicks, fist blows, slaps, dandas, etc. thereby causing injuries to his head, chest, limbs, etc., which resulted in his death on the same afternoon. 4. The prosecution, in order to bring home the charges, examined altogether 26 witnesses. PW1Prakash Dharwatkar is the complainant and the complaint lodged by him with Ponda Police is at Exhibit 13. PW9- Anil Gupta and PW20-Sukhdev Dabade are the labourers and are alleged to be eye-witnesses. PW3-Shambhu Gawade, PW7- Remy Fernandes, PW10- Sharmila Lotlikar, PW11Ramdas Ramnathkar, and PW17- Santosh Ramnathkar are all neighbours of the deceased and of the accused no. 3. PW2- Manjula Shenoy, PW4-Aparna Islur and PW5-Anusaya Thorve are the employees of the Primary School in which the accused no. 3 was working. PW18- Asha Naik is the clerk of Adarsh Co-operative Society. PW6-Dr. Smita Parsekar is the Medical Officer, who was then working at Community Health Centre and she initially examined the deceased. PW24- Dr. Edmund Rodrigues, the Police Surgeon, conducted the postmortem examination of the dead body of the deceased. PW14- Dinesh Raikar, PW16- Agnelo Pereira, PW19- Virendra Kognur, PW22-Dinesh Naik and PW23- Shekhar Naik acted as pancha witnesses for various panchanamas. PW8-Minguel Pereira is the draughtsman of PWD who drew the sketch of the scene of offence, which is at Exhibit 33. PW21-Shri Jayant Tanksali is the Special Judicial Magistrate, who conducted the test identification parade in respect of the accused persons. PW12-Mamta Dessai, PW13- Shyamrao Dessai and PW15- Tulshidas Gaonkar are the police personnel, who have helped the Investigating Officer. PW25- PSI, V. B. Veluskar had registered the unnatural death. Lastly, PW26- Manjunath Dessai, Police Inspector, carried out the entire investigation. 5. The case of each of the accused persons was of denial simpliciter. The accused no. PW12-Mamta Dessai, PW13- Shyamrao Dessai and PW15- Tulshidas Gaonkar are the police personnel, who have helped the Investigating Officer. PW25- PSI, V. B. Veluskar had registered the unnatural death. Lastly, PW26- Manjunath Dessai, Police Inspector, carried out the entire investigation. 5. The case of each of the accused persons was of denial simpliciter. The accused no. 3 examined her elder daughter, Mugda Dangui as A3-W1. 6. Upon consideration of the entire evidence on record, the learned Additional Sessions Judge, Panaji (Trial Judge) came to the conclusion that the prosecution has failed to prove the guilt of any of the three accused persons and that there is neither direct evidence nor circumstantial evidence linking any of them with the death of late Ajit Dangui and his confinement in the room. Holding that the prosecution has miserably failed to bring out the involvement of the accused persons in the crime, the learned Trial Judge acquitted all the accused persons. 7. Mr. C. A. Ferreira, learned Public Prosecutor on behalf of the State, contended that there are two eyewitnesses to the incident of assault on the deceased, namely PW9 and PW20 and these witnesses have identified the accused persons in the test identification parade carried out by a competent Magistrate. He further argued that there are various injuries sustained by the deceased which correspond with the type of assault as stated by the eye-witnesses. He invited our attention to the evidence of PW3 and PW7 and argued that their evidence shows the previous conduct of the accused, in assaulting the deceased. He pointed out that PW10 and PW11 have heard the shouts of the deceased. From the evidence of PW2, PW4 and PW5, learned Public Prosecutor pointed out that the accused no.3 was absent from the school at the time of incident. He has contended that the conduct of the accused no. 3 in not attending to the deceased husband on arrival from the school and subsequently giving false statement to the Doctor, sufficiently establishes her involvement in the crime. He also submitted that the evidence of PW5 proves the recovery of nylon rope and danda at the instance of the accused no. 3 and as per the CFSL report, human blood was detected on the nylon rope. He also submitted that the evidence of PW5 proves the recovery of nylon rope and danda at the instance of the accused no. 3 and as per the CFSL report, human blood was detected on the nylon rope. It is the assertion of the learned Public Prosecutor that the evidence on record was sufficient to prove the guilt of the accused, if not, for Section 302 of I.P.C. at least for Section 304 (Part I) of I.P.C. 8. Percontra, Mr. Gaurish Agni, learned Counsel for the accused nos.1 and 2 and Mr. V. A. Lawande, learned Counsel for the accused no.3 supported the judgment of the Trial Judge and argued that the evidence of eye-witnesses namely PW9 and PW20 does not inspire confidence as these witnesses have not corroborated each other and further since there are omissions and contradictions as compared to their police statements. They further argued that according to PW9 and PW20, they had seen the assault on Ajit through the window of the house. They invited our attention to the other evidence, which establishes that there was no window to the room of the deceased Ajit. They also pointed out that neither PW9 nor PW20 had told the accused no.3 about the assault on her husband Ajit, after she came home. According to them, this conduct of the alleged eye-witnesses is suspicious. According to the learned Counsel for the accused no. 3, there is absolutely no evidence at all as against her and merely because she allegedly gave some statements to the Doctor, that is not sufficient to hold that she is involved in the crime. The learned counsel pointed out that the evidence on record shows that the accused no. 3 used to take care of her husband, who otherwise was a drunkard. They have invited our attention to the evidence of Mugda Dangui (A3-W1), the daughter of the deceased and of the accused no.3. They have contended that her evidence is trustworthy. The learned counsel further argued that mere detection of human blood on the nylon rope, attached by the police, which was not found on the dead body, without the blood group having been detected, is not sufficient. Learned Counsel for the accused persons, therefore, contend that the accused persons have been rightly acquitted by the Trail Judge and no interference is called for. 9. We have gone through the entire material on record. Learned Counsel for the accused persons, therefore, contend that the accused persons have been rightly acquitted by the Trail Judge and no interference is called for. 9. We have gone through the entire material on record. 10. The point that arises for determination is whether the prosecution has proved beyond reasonable doubt that the accused persons, in furtherance of their common intention, had wrongfully confined the deceased in his room and had committed his murder. 11. It is seen from the records that there were three daughters of the deceased and two labourers in the house at the time of the incident and there are several people residing in the neighbourhood. The deceased has brothers. No one came forward to lodge complaint with the police. PW1, Prakash Dharwatkar is the husband of sister of the deceased and he was not interested in getting involved and otherwise also he did not know anything. The complaint (Exhibit 13) allegedly lodged by PW1 is dated 07/10/2006 and it is mentioned in this complaint that at about 5.00 p.m., he received a phone call from his wife Smt. Shailera Dharwatkar that her brother Ajit is brought dead to I.D. Hospital at Ponda at 3.00 pm It is further recorded in this complaint that PW1 directly went to I.D. Hospital where his wife also joined him and he saw the dead body of Ajit and noticed injuries on his body which appeared to be homicidal and he also noticed the ligature marks on both the wrists showing that he was tied with rope. However, in his deposition, PW1 has specifically stated that he had not visited the house of the deceased on 07/10/2006 but had visited the same on 08/10/2006 to attend the last rites and at that time, he saw the dead body of late Ajit Dangui which was covered. According to PW1, he had not seen any injury on the dead body. PW1 has also stated that on 07/10/2006 at around 11.45 pm, Ponda Police had come to his house and had told him that they want a complaint from the relative of the deceased, Ajit Dangui. According to PW1, he had not seen any injury on the dead body. PW1 has also stated that on 07/10/2006 at around 11.45 pm, Ponda Police had come to his house and had told him that they want a complaint from the relative of the deceased, Ajit Dangui. PW1 has stated that he was not interested in giving the complaint but as the police insisted, he signed on a blank paper and gave it to the Police Inspector on condition that the police would only record that the deceased is his brother in- law and was residing with his family at Ramnathi, Ponda. PW1 has stated that after 10 days he received a phone call from his elder brother-in-law namely Avinash Dangui and he came to know that he was shown as the complainant. 12. It is true that PW1 was cross-examined by the learned Public Prosecutor since he has resiled from the contents of the complaint which is at Exhibit 13. It is also true that according to the Investigating officer (PW26), PW1 had come to the police station and had lodged the complaint, Exhibit 13. However, it is difficult to believe that PW1, who is otherwise a relative of the deceased and who has no reason to tell lies, has turned hostile, looking at the answers given by him in his cross-examination. The wife of PW1 has not been examined. In the circumstances above, as has been rightly held by the learned Trial Judge, the foundation of the prosecution case which is the First Information Report, is shaken. 13. PW9- Anil Gupta is a labourer working for Sukhdev Dabade (PW20), who is himself a mason. They were doing some repair work in the house of the deceased and the accused no. 3. PW9 has deposed that on the 7th day of month about 8 to 9 months back at about 10.00 a.m., he saw Ajit Dangui whose both hands were tied behind with a nylon rope and he also saw Vinayak assaulting Ajit with blows, slaps and with the knee. He has stated that he saw the said assault through one window and that Ajit Dangui was tied to one cot. According to PW9, however, even after seeing that, they continued doing the work and Vinayak continued assaulting Ajit, who was crying and pleading to leave him and was also asking for water. He has stated that he saw the said assault through one window and that Ajit Dangui was tied to one cot. According to PW9, however, even after seeing that, they continued doing the work and Vinayak continued assaulting Ajit, who was crying and pleading to leave him and was also asking for water. PW9 has stated that he and Sukhdev requested Vinayak to release Ajit, but Vinayak did not listen to them and, therefore, they continued with their work. PW9 has stated that at around 11.45 a.m., the accused no. 3, Sunita came home and he heard Ajit Dangui calling out Sunita and asking to give him water, but she did not give water to him. According to PW9, later on, three daughters of Sunita had come home and at that time Ajit Dangui was gasping for breathe as he was not given water and Sukhdev told Sunita to take Ajit to Hospital after which the accused no.1 Laxman untied the ropes from the body of Ajit, changed clothes of Ajit and thereafter, Ajit was put in the Maruti Van of Sunita and was taken to Hospital. According to PW9, subsequently, he had identified all the three accused persons in Ponda Court. 14. PW20- Sukhdev Dabade has deposed that on 07/10/2006 at about 9.00 a.m. he and Anil Gupta had gone to the house of Dangui for doing the work and the accused no. 2 Vinayak told them to start the work. He has further stated that at about 10.30 a.m., he saw Patrao Dangui lying on the cot with his hands and legs tied behind with a nylon rope of blue colour. PW20 has also stated that he saw the same through a window. He saw that the accused no. 2 Vinayak was assaulting Dangui on various parts of the body with slaps, fist blows, kicks and that he and Anil Gupta pleaded with Vinayak not to assault Patrao and thereafter, Vinayak stopped assaulting Dangui. He has further stated that earlier he had heard Dangui shouting for help saying “soda soda” at the time of his assault. PW20 has stated that at about 11.00 a.m., younger daughter of Dangui came home and at about 11.45 a.m., the accused no. 3 came home. PW20 has further stated that he heard Dangui requesting Sunita (the accused no. 3) to give him water and he told the accused no. PW20 has stated that at about 11.00 a.m., younger daughter of Dangui came home and at about 11.45 a.m., the accused no. 3 came home. PW20 has further stated that he heard Dangui requesting Sunita (the accused no. 3) to give him water and he told the accused no. 3 to give water to Dangui and to release him, but the accused no. 3 did not respond to his request. He has stated that at about 1.00 p.m., Vasudev came home and after taking lunch, they were resting in the verandah and at that time all the three accused, the three daughters of the accused no. 3 and Vasudev were inside the house and at about 2.00 p.m. he and Anil Gupta restarted their work. PW20 has stated that he saw the accused no. 3 going to the room of Dangui to wake him up for having lunch, but she found him unconscious and she then called out to him and Anil Gupta to help her to shift Ajit to the Hospital and they accordingly went there and saw that Ajit was gasping for breathe. He has stated that rope was untied and thereafter Laxman changed the short pant of Ajit Dangui and different short pant and T Shirt were put on the body of Dangui, who was then lifted and put in Maruti van and the said Maruti van was driven by Vasudev and then all the three accused also went by the said van along with Dangui. PW20 has stated that at about 3.30 p.m., Vasudev came back and told them to continue with work and at about 4.30 p.m., the accused no. 3 made a phone call and told them to leave. 15. The test identification was conducted by PW21 on 26/12/2006, in which allegedly the accused persons were identified by PW9 and PW20. However, the evidence of PW20 reveals that on 7/10/2006, his statement was recorded at Ponda Police station and at about 8.00 p.m., the police had shown to him the accused nos.1 and 2. Thus, the test identification parade has no value. 16. However, the evidence of PW20 reveals that on 7/10/2006, his statement was recorded at Ponda Police station and at about 8.00 p.m., the police had shown to him the accused nos.1 and 2. Thus, the test identification parade has no value. 16. The conduct of PW9 and PW20 in quietly watching their master being assaulted by the accused no.2; in not resisting the accused no.2; in not helping the deceased; even not raising shouts and continuing to do the work, is not at all normal and persuades this court not to place reliance in them. Even after the arrival of the accused no.3, who is the wife of the deceased, they did not tell her that her husband was assaulted by the accused no.2. It is pertinent to note that according to both PW9 and PW20, they had seen the accused no.2 assaulting the deceased Ajit through the window. However, the panchanama of the scene of offence and the sketch which are in Exhibit 61-colly, proved by PW22, reveals that there was no window to the bedroom in which the deceased Ajit was allegedly tied. Even the sketch of the scene of offence drawn by the draughtsman namely Minguel Pereira (PW8) and which sketch is at Exhibit 33, does not show any window to the said bedroom in which Ajit was allegedly tied. Photograph no.9 in Exhibit 62-colly is of the room of Ajit Dangui. No window is seen to this room. Therefore, it is doubtful whether PW9 and PW20 had really seen the incident of assault on the deceased by the accused no.2. Neither PW9 nor PW20 says that they had seen either the accused no.1 or the accused no.3 doing anything bad to the deceased. It is noticed that there are certain omissions in the police statements of PW9 and PW20, which have been brought on record and proved. These witnesses have not corroborated each other. They have also not corroborated the story narrated by them to the Special Judicial Magistrate (PW21), under section 164 of the Code Of Criminal Procedure. Besides the above, the injuries sustained by the deceased do not tally with the nature of the assault as described by PW9 and PW20. Hence, the testimonies of PW9 and PW20 do not inspire confidence. 17. Three daughters of the deceased were present in the house. They were all cited as eyewitnesses. Besides the above, the injuries sustained by the deceased do not tally with the nature of the assault as described by PW9 and PW20. Hence, the testimonies of PW9 and PW20 do not inspire confidence. 17. Three daughters of the deceased were present in the house. They were all cited as eyewitnesses. However, two daughters namely, Karishma and Shambhavi are not examined whereas the third daughter namely Mugdha has not supported the prosecution and on the contrary, she has supported the accused no.3. Shri Vassudev Ramdas Prabhu has not been examined by the prosecution. 18. During the postmortem examination of the deceased, no ligature material was found on his body. Not even fibers of rope were found on any of the injuries sustained by the deceased. During the panchanama of the scene of offence, no rope or piece of rope or fibers of rope were found on the cot or at the scene. 19. In the circumstances above, PW9 and PW20 who are primarily labourers, and who can be pressurised by the police, cannot be relied upon. There is nothing else on record to prove that there was anything wrong with or suspicious about the conduct of the accused no.3. 20. PW6, Dr. Smita Parsekar was Medical Health Officer attached to Community Health Centre, Ponda on 07/10/2006. She has stated that at about 2.30 p.m., Ajit Dangui was brought to the said I. D. Hospital at Ponda by Mrs. Archana Dangui, who claimed to be the wife of said Ajit and she was accompanied by three male persons. She has stated that the patient was examined by her in casualty and was found to be dead. According to PW6, multiple injuries were noticed on the dead body and that the wife of the deceased informed her that the patient was chronic alcoholic and probably fallen in a gutter and had sustained injuries. She found injuries on the forearms, both shoulders, both ankles, multiple abrasions on the chest, face and on the legs. She found that right middle finger was bleeding and there were ligature marks on both wrists and on the legs. According to PW6, the history given by the wife was unreliable and, therefore, at about 3.00 p.m. she sent a written note to the Police Inspector of Ponda Police Station informing that the dead body of Mr. She found that right middle finger was bleeding and there were ligature marks on both wrists and on the legs. According to PW6, the history given by the wife was unreliable and, therefore, at about 3.00 p.m. she sent a written note to the Police Inspector of Ponda Police Station informing that the dead body of Mr. Ajit Bhikaji Dangui was brought by Archana Dangui to I. D. Hospital, Ponda and that the cause of death was not known. 21. There is ample evidence on record to prove that the deceased used to consume alcohol. It has come on record through the cross-examination of PW3 that it was well known in the village of Ramnathi that the deceased used to be agitated, when he used to consume alcohol. The brothers and other family members, who were earlier staying with the deceased had left him. The cross-examination of PW7 reveals that on some nights the deceased used to come late at night and sleep on the open terrace of the house of PW7. The evidence of PW24- Dr. Rodrigues, reveals that the deceased was a chronic alcoholic. The lever of the deceased was found to be fatty. A3-W1- Miss Mugdha, the daughter of the deceased, has stated that after consuming liquor, her father used to fall in the gutters on the side of road and about a year back had met with an accident after consuming alcohol and had once even fallen in a well at Dhavli-Ponda and was rescued by the fire brigade. It is seen from the evidence on record that the deceased had not received bleeding injuries. It cannot be expected that the accused no. 3 knew that there were internal fractures sustained by the deceased. Hence, when the accused no. 3, who herself had taken the deceased to I. D. Hospital, told the doctor (PW6) that her husband had probably fallen in a gutter and had sustained injuries, her conduct need not be doubted, by holding that she told false things to the doctor. She had only given a probability. 22. PW24- Dr. Edmund Rodrigues had conducted the postmortem examination on the dead body of the deceased on 08/10/2006 between 2.50 p.m. and 5.00 p.m. According to PW24, there was no ligature material present except pressure abrasional marks on both forearms and both legs. PW24 has stated as under: “I found 32 external injuries on the body. 22. PW24- Dr. Edmund Rodrigues had conducted the postmortem examination on the dead body of the deceased on 08/10/2006 between 2.50 p.m. and 5.00 p.m. According to PW24, there was no ligature material present except pressure abrasional marks on both forearms and both legs. PW24 has stated as under: “I found 32 external injuries on the body. The first one was an abrasion, reddish, in an area of 3 x 2 cms. on the left temple region. The second one was an abrasion, reddish, in an area of 4 x 2 cms. on the right temple region. The third one bwas an abrasion, reddish, in an area of 2 x 1 cms. on the right eye brow. The fourth one was an abrasion, reddish, in an area of 3 x 2 cms. on the right mid mandibular border. The fifth was a bruise, reddish, 3 x 3 cms. on the upper half of the left ear. The sixth was a bruise, reddish, 4 x 3 cms. on the upper half of the right ear. The seventh one was an abrasion, reddish, in an area of 4 x 3 cms. on the upper front of left shoulder. The eighth was a bruise, reddish, 3 x 2 cms. On the upper lower back of the left arm. The ninth was a bruise, reddish, 4 x 2 cms. on the upper back of the left forearm. The tenth was a bruise, reddish, 3 x 2 cms. on the upper outer aspect of the left arm. The eleventh was a bruise, reddish, 1 x 1 cms. on the mid back of the left palm. The twelth one was an abrasion, reddish, in an area of 4 x 3 cms. on the upper front of the right shoulder. The thirteenth one was an abrasion, reddish, in an area of 3 x 2 cms. on the upper outer aspect of the right arm. The fourteenth one was an abrasion, reddish, in an area of 0.5 x 0.5 cms. on the medial aspect of the right elbow The fifteenth was a bruise reddish, with swelling and with extensive extra vassation underneath, in an area of 30 x 25 cms, on the left thigh. The sixteenth was an abrasion, reddish, in an area of 2 x 1 cms. on the right spine. The seventeenth was an abrasion reddish in an area 2 x 1 cms. The sixteenth was an abrasion, reddish, in an area of 2 x 1 cms. on the right spine. The seventeenth was an abrasion reddish in an area 2 x 1 cms. on the outer aspect of right elbow. The eighteenth was a bruise, reddish, 0.5 x 0.5 cms. on the medial aspect of the right elbow. The nineteenth was a bruise, with swelling in 10 x 8 cms. on the back of the right palm. The twenteeth was an abrasion, reddish, in an area of 2 x 1 cms. on the outer aspect of the right thigh. The twenty first one was an abrasion, reddish, in an area of 0.5 x 0.5 cms. On the right ring finger. The twenty second was an abrasion, reddish, in an area of 1 x 0.5 cms. On the right middle finger. The twenty third was an abrasion, reddish, in an area of 0.5 x 0.5 cms. On the right index finger. The twenty fourth was a laceration, of 1.5 x 0.5 cms. on the right middle finger, with fracture of distal Phalanx.. The twenty fifth was an abrasion, reddish, in an area of 2 x 1 cms. on the medial aspect of right knee. The twenty sixth was an abrasion, reddish, in an area of 0.5 x 0.5 cms. on the mid front of the right leg. The twenty seventh was an abrasion, reddish, in an area of 0.5 x 0.5 cms. On the left leg. The twenty eighth injury was a faint pressure abrasional mark of 3 x 1 cms. on the outer aspect of the left forearm, 3 cms., above the left wrist front and reddish. The twenty nineth injury was a faint pressure abrasional mark of 4.5 x 1 cms. on the outer aspect of the right forearm, 7 cms. above the right wrist front and reddish. The thirtieth injury was a faint pressure abrasional mark of 4 x 5 cms. two in number with a gap of 2 cms. and width of one cm., on the mid outer aspect of both legs. The thirty first was a bruise, reddish, 2 x 2 cms. on the medial aspect of the left wrist joint with dislocation. The thirty second was a bruise, with swelling in 8 x 6 cms. on the left temporo parietal scalp region.” 23. and width of one cm., on the mid outer aspect of both legs. The thirty first was a bruise, reddish, 2 x 2 cms. on the medial aspect of the left wrist joint with dislocation. The thirty second was a bruise, with swelling in 8 x 6 cms. on the left temporo parietal scalp region.” 23. PW24 has stated that injuries no.1 to 27, 31 and 32 were caused by blunt force whereas injuries no.28, 29 and 30 were caused by ligature material and all the 32 injuries were ante-mortem in nature. Internally, PW24 found that there was extra vassation of blood present under the injuries no.1, 2 and 32 and there was subarachnoid haemorrhage present on the left side of the brain. There were pinpoint haemorrhages in the white matter of the brain, which was edematous. He also found that there was herniation of tonsils and hipocampal gyrus i.e. edema or swelling of the brain. PW24 states that in the thorax region, there was a fracture of third to sixth ribs at the left side with inward displacement of fracture fragment. He also found fracture on the left side of fourth and fifth ribs in para-vertebral lines. There was laceration of the pleurae at the fracture fragment side and there were multiple lacerations in the left lung at fracture fragment sides. Left cavity of the lungs was containing 300 cc of blood fluid and there was extra vassation of blood present in inter-coastal muscles of left side chest. The cause of death, according to PW24, was due to injuries to the head, chest, limbs, consequent to blunt force impact which were individually and collectively fatal in ordinary course of nature, with evidence of restraining the deceased by ligature material tied around both forearms and both legs as shown by the pressure abrasional marks. The autopsy report prepared by PW24 is at exhibit 67. 24. According to PW24, the said external injuries no. 1 to 27 and 31 and 32 could have been caused by the bamboo danda(M.O. 14) and they could also result from fist blows and kicks. However, in our view, injuries as above with corresponding internal fracture injuries are not possible as a result of assault by only one person by means of slaps, fist blows and kicks. 25. 1 to 27 and 31 and 32 could have been caused by the bamboo danda(M.O. 14) and they could also result from fist blows and kicks. However, in our view, injuries as above with corresponding internal fracture injuries are not possible as a result of assault by only one person by means of slaps, fist blows and kicks. 25. PW26- P.I., Manjunath Dessai has deposed that his investigation revealed that the incident of assault with the danda had taken place on 6/10/2006 at 10.00 p.m., at night. A suggestion has been put to A3-W1 by the learned Public Prosecutor that on 6/10/2006, the accused no.3 had assaulted the deceased with danda on his head, chest and other parts of the body and had locked him inside a room. However, there is no charge against the accused no.3, independently, of having assaulted the deceased on 6/10/2006, with a danda. There is absolutely no evidence on record to prove that the accused persons or any of them had assaulted the deceased with danda on any day. This is a major jolt to the prosecution case. 26. All the three accused were examined by PW24-Dr. Rodrigues, on 9/10/2006. No external injuries were found on the person of the accused nos. 1 and 3. Thus, the accused nos.1 and 3 had no reason to make any statement to PW24 regarding any incident nor PW24 had any reason to ask them anything. However, the accused no.2 had three abrasions, one on the right shoulder, second on the left shoulder and the third on the upper back of the right shoulder. PW24 has stated that the accused no.2 had given to him the history of assault by the deceased and that he in turn had given kicks and blows on the deceased. The above is not believable because as per the prosecution case, the hands as well as the legs of the deceased were tied with nylon rope. Hence, it was not possible for the deceased to assault the accused no. 2. The accused persons were arrested on 7/10/2006. Hence, they should have been taken to the medical officer, for their examination, on that day itself. The minor injuries, found on the body of the accused no. 2, might have been sustained by him, due to some other reasons. We are unable to believe that the accused no. 2. The accused persons were arrested on 7/10/2006. Hence, they should have been taken to the medical officer, for their examination, on that day itself. The minor injuries, found on the body of the accused no. 2, might have been sustained by him, due to some other reasons. We are unable to believe that the accused no. 2 had told the doctor that he had assaulted the deceased. Even otherwise, the above statement allegedly made by the accused no. 2 to PW24 and also the alleged statement made by the accused no. 1 to PW24 to the effect that Archana had brought the rope and that he along with Vinayak Prabhu and Archana had tied the hands and legs of the deceased, are liable to be excluded from evidence, they being confessions and such evidence being barred by section 26 of the Evidence Act. 27. A suggestion has also been put to A3-W1, by the learned Public Prosecutor that her mother, the accused no. 3 had illicit relations with Vasudev Prabhu, accused no. 1, Laxman Naik and accused no. 2 Vinayak Prabhu. However, the Investigating Officer(PW26) nowhere states that his investigations revealed that the accused no. 3 had illicit relations with the accused nos. 1 and 2 and Vasudev Prabhu and that the murder took place on account of the same. Motive for the offence is not at all established. 28. The evidence of PW2 and PW4, the teachers working in the Lions K. G. and Primary school, at Ponda reveals that the accused no. 3 was working as a teacher in-charge of the said school. The evidence of PW5, the helper working in that school, proves that the accused no. 3, on 07/10/2006, had come to the school at about 9.00 a.m. and had left the school at about 11.00 a.m. Even if it is taken for granted that on this day the accused no. 3 had come home early, that cannot prove her involvement in the incident of assault over her husband. That way, the accused no. 3 used to come home every day in the afternoon. According to PW2 and PW5, even they used to leave the school by 12.00 noon. 29. PW3, who resides in front of the house of the deceased has deposed that the deceased used to often visit his house and tell him that his wife and one Prabhu were assaulting him. 3 used to come home every day in the afternoon. According to PW2 and PW5, even they used to leave the school by 12.00 noon. 29. PW3, who resides in front of the house of the deceased has deposed that the deceased used to often visit his house and tell him that his wife and one Prabhu were assaulting him. He has further stated that on the day prior to his death, at around 7.30 a.m., in the morning, the deceased had come to his house and had told him that he was assaulted by his wife and Prabhu. However, PW3 does not know the said Prabhu. He has not identified the accused no. 2 as the said Prabhu. There is one person by name Vassudev Prabhu, who has been referred to but not examined by the prosecution. Most surprisingly, though PW3 is the front door neighbour of the deceased, however, he has not stated that any incidents had taken place on 6/10/2006 or on 7/10/2006, in the house of the deceased. He has not stated anything about the death of the deceased. 30. PW7, another neighbour of the deceased, has deposed that in the morning of 7/10/2006, the deceased met him near the temple pond of Ramnathi Devasthan and told him that one driver and cook have assaulted him and to help him. He has further deposed that he could hear constant fights from the house of the deceased probably between the husband and the wife. He has further stated that about 15 days earlier, the deceased had requested him to help him out as he is being assaulted by one driver and the cook as there was something going on between the driver and his wife. We do not know as to who are these driver and cook. PW7 does not say that the accused no. 3 independently or along with others used to assault the deceased. 31. PW10, one more neighbour of the deceased has deposed that on 7/10/2006, he was at her house and at around 8.30 a.m., she heard the cries of Ajit Dangui saying “Sunita apleak marnaka apleak sodd”. However, in her crossexamination, PW10 has stated that she never saw the accused no. 3 assaulting her husband. 32. 31. PW10, one more neighbour of the deceased has deposed that on 7/10/2006, he was at her house and at around 8.30 a.m., she heard the cries of Ajit Dangui saying “Sunita apleak marnaka apleak sodd”. However, in her crossexamination, PW10 has stated that she never saw the accused no. 3 assaulting her husband. 32. PW11, one more neighbour of the deceased has deposed that on 7/10/2006, at 7.45 a.m., he saw Ajit Dangui returning to his house and at that time he was wearing a grey and blue short pant and no clothes on the top of his body. PW11 has further stated that at around 8.30 am, he heard shouts of Ajit Dangui in Konkani and he was saying “do not hit me, leave me”. PW11 does not attribute these words to any particular person. 33. Lastly, PW17 is another neighbour of the deceased examined by the prosecution. He has, however, stated that he has seen Ajit Dangui in the village prior to his death but Ajit had not told him anything, at any time. 34. Thus, PW3, PW7, PW10 and PW11, all have given different versions about what the deceased spoke to them or as to what they heard from the house of the deceased. There is no corroboration. PW7, PW11 and PW17 have not implicated any of the accused persons. PW3 and PW10 do not speak about the accused nos. 1 and 2. The nature of the evidence of the above witnesses is such that the same cannot inspire confidence and is not wholly reliable. 35. According to PW20, the accused no. 3 used to take good care of Ajit Dangui by attending to all his needs. He has stated that she used to serve him tea, food and so on and used to keep hot water for bath and give him clothes after they were washed. Therefore, even if sometimes there used to be quarrels between the accused no. 3 and the deceased, they could be normal domestic quarrels between husband and wife, and possibly could be on account of the drinking habits of the deceased. 36. PW23 acted as one of the panch witnesses for the panchanama of disclosure statement of the accused no. 3 and consequent recovery of the nylon rope and bamboo danda, at her instance, alleged to be under section 27 of the Evidence Act. 36. PW23 acted as one of the panch witnesses for the panchanama of disclosure statement of the accused no. 3 and consequent recovery of the nylon rope and bamboo danda, at her instance, alleged to be under section 27 of the Evidence Act. This panchanama dated 10/10/2006 is at Exhibit 64. The said nylon rope and the bamboo danda were recovered from the same house of the deceased, in which previously, on 8/10/2006, the panchanama of the scene of offence and sketch (Exhibit 61-colly) were drawn by the same Investigating Officer. Entire house was searched on 8/10/2006. But no rope or danda having blood stains were found. Thus, the subsequent recovery panchanama drawn on 10/10/2006, in the same house, is not beyond suspicion. The nexus of the bamboo danda with the Crime is not at all established. Though the nylon rope has been identified by PW9 and PW20 as the same rope with which the deceased was tied, this identification cannot be beyond doubt because such ropes are available anywhere in the market and there was not special identification mark on the same. Merely because human blood was detected on this rope by C.F.S.L., this has no significance since the blood group is not known and, therefore, it cannot be concluded that this was the rope tied to the hands and legs of the deceased. 37. The evidence of other witnesses is not of much relevance and hence need not be discussed. 38. The Trial Judge has rightly concluded that the prosecution has failed to prove the guilt of the accused persons. No other view is possible and even if two views are possible from the evidence on record: one in favour of the prosecution and the other in favour of the accused, this being an appeal from acquittal, it is not permissible to substitute our view in place of the one taken by the trial judge, the same being in favour of the accused. In the case of “State of Rajasthan Vs. Shera Ram @ Vishnu Dutta”, [JT 2011(13) S.C. 467], the Hon'ble Apex Court has held that in an appeal against the acquittal, presumption of innocence in favour of the accused is fortified by his acquittal and if the view taken by the Court is cogent and reasonable one, it may not be interfered with. Shera Ram @ Vishnu Dutta”, [JT 2011(13) S.C. 467], the Hon'ble Apex Court has held that in an appeal against the acquittal, presumption of innocence in favour of the accused is fortified by his acquittal and if the view taken by the Court is cogent and reasonable one, it may not be interfered with. The Apex Court has held that in an appeal against acquittal, interference is needed only when it is contrary to evidence, palpably erroneous or view taken is not a possible view. The findings of the Trial Judge cannot be called as perverse. No interference is called for. 39. In the result, the appeal is dismissed.