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Bombay High Court · body

2014 DIGILAW 806 (BOM)

Nandkishore Naik v. State, Through PP

2014-03-26

U.V.BAKRE

body2014
JUDGMENT 1. Heard Mr Bhobe, learned Counsel appearing on behalf of the appellant and Ms. Milena Gomes Pinto, learned Additional Public Prosecutor (A.P.P.), on behalf of the State. 2. This appeal is directed against the judgment dated 27/04/2012 and further judgment, order and sentence dated 30/04/2012 passed by the learned Additional Sessions Judge-I, South Goa, Margao ('Trial Court') in Sessions Case No.17/2009. 3. The appellant was accused no. 2 in the said Sessions Case and he and one Vishwanath Gaonkar (accused no.1) were tried by the Trial Court for offences punishable under Sections 304 and 201 of the Indian Penal Code ('IPC') and Section 3 read with Section 25 of the Arms Act, 1959. 4. The case of the prosecution, in short, was that on 07/02/2009 at 8.00 p.m. at Temer Bandol Hill, the accused no. 2 committed culpable homicide not amounting to murder by causing death of Mohan Gaonkar by means of firearm and on the same day, at the same time and place, both the accused persons, with their common intention, knowing that the offence of murder was committed, gave wrong information to the complainant, Shri Vassudev Gaonkar (PW9) and villagers that the deceased had fallen down. Both the accused persons were alleged to be in possession of firearms without holding any valid licence. 5. Charge was framed and explained to both the accused persons and they pleaded not guilty. The prosecution examined in all 17 witnesses. The statement of accused persons, under Section 313 of Cr.P.C., came to be recorded. Case of the accused no. 2 was of denial simpliciter. He did not examine any witness in defence. 6. Upon consideration of the entire evidence on record, the Trial Court held that the prosecution proved beyond reasonable doubt that both the accused persons possessed firearm without holding any valid licence and on 07/02/2009, the accused no. 2 committed culpable homicide not amounting to murder by causing death of Mohan Gaonkar by means of the firearm. The prosecution, however, failed to prove that both the accused persons, after the death of Mohan Gaonkar, gave wrong information to the complainant, Shri Vassudev Gaonkar (PW9) and villagers regarding the cause of death of Mohan Gaonkar. Both the accused persons, therefore, were acquitted of the offence punishable under Section 201 of IPC. The prosecution, however, failed to prove that both the accused persons, after the death of Mohan Gaonkar, gave wrong information to the complainant, Shri Vassudev Gaonkar (PW9) and villagers regarding the cause of death of Mohan Gaonkar. Both the accused persons, therefore, were acquitted of the offence punishable under Section 201 of IPC. Both the accused persons were held guilty and convicted for offence under Section 3 read with section 25 of the Arms Act, and sentenced to undergo Rigorous Imprisonment for one year and to pay fine of Rs.5,000/- each and in default, to undergo Rigorous Imprisonment for one month. Under Section 304(II) of IPC, the accused no. 2 was sentenced to undergo Rigorous Imprisonment for four years and to pay fine of Rs.10,000/- and in default, to undergo Rigorous Imprisonment for three months. Both sentences have been ordered to run concurrently. The period, during which the accused no. 2 was in custody, has been set off under Section 428 of Cr.P.C. 7. The accused no. 1 had filed Criminal appeal No. 15/2013 against the impugned judgment, order and sentence and by Judgment dated 6th March, 2014, this Court allowed the same and acquitted the accused no. 1 of the offence under Section 3 read with Section 25 of the Arms Act. 8. The accused no. 2, aggrieved by the impugned judgment, order and sentence, as against him, has filed the present appeal. 9. Mr. Bhobe, learned Counsel appearing on behalf of the accused no.2 submitted that the entire case of the prosecution was based on circumstantial evidence. According to him, the prosecution case did not pass the test of requirements of circumstantial evidence. He pointed out various discrepancies and inconsistencies in the evidence of PW7, Shri Sameer Vast the panch witness and submitted that the testimony of PW7 does not at all inspire confidence and, therefore, the panchanama of disclosure with respect to firearm and recovery of the same, at the instance of the accused no. 2, had not been proved beyond reasonable doubt. He submitted that if the evidence of recovery of firearm at the instance of the accused no. 2 was discarded, then, evidence on record, pertaining to C.F.S.L. Report, even if proved beyond doubt, could not help the prosecution in proving the guilt of the accused no. 2. 2, had not been proved beyond reasonable doubt. He submitted that if the evidence of recovery of firearm at the instance of the accused no. 2 was discarded, then, evidence on record, pertaining to C.F.S.L. Report, even if proved beyond doubt, could not help the prosecution in proving the guilt of the accused no. 2. Without prejudice to the above, the learned Counsel submitted that the report of C.F.S.L. did not establish any connection of the firearm allegedly attached at the instance of the accused no. 2 with the death of the deceased Mohan Gaonkar. He pointed out from the evidence of PW2 that the prosecution failed to prove that the accused no. 2 had purchased any cartridges from PW2. He submitted that there is no evidence either to prove that the accused no. 2 was in possession of the cartridges or to prove that he was in possession of any firearm. He submitted that the evidence of PW13, Dr. Rodrigues reveals that the firearm was shot from a higher level. He submitted that as far as the cartridge which caused the entry wound on the chest is concerned, there was no exit which meant that the cartridge had remained in the body. He submitted that there was no evidence to link that cartridge which remained in the body of the deceased with the firearm, which was allegedly recovered at the instance of the accused no. 2. He invited my attention to the panchanama of the scene of offence and submitted that the articles namely slippers, Koyta etc. appear to have been rearranged nicely merely for the purpose of their attachment. Mr. Bhobe, learned Counsel further submitted that the statement of PW9 to the effect that the accused had stated that both the accused and his brother Mohan had gone for hunting at Temer and Mohan fell down, suffered injuries and was lying at the place and that it was the accused no. 2, who had fired the shot at the deceased, cannot be held to be admissible against the accused no. 2, since he appears to have made such a statement either under duress or merely to save his own skin. Learned Counsel further pointed out that PW10, who is father of the deceased, does not say that the accused no.1 had stated anything to them. 2, since he appears to have made such a statement either under duress or merely to save his own skin. Learned Counsel further pointed out that PW10, who is father of the deceased, does not say that the accused no.1 had stated anything to them. He pointed out that the statement made by the accused no.1 was after he was assaulted by the said witnesses. According to him, such an involuntary statement made by the accused no.1 could not have been used against the accused no. 2. He, therefore, urged that the evidence on record was not sufficient to prove the guilt of the accused no. 2 beyond reasonable doubt. He, therefore, submitted that the accused no. 2 is entitled to acquittal and, therefore, the appeal be allowed and the accused no. 2 be acquitted. 10. On the other hand, learned A.P.P. submitted that the accused no.1 had informed the witnesses, more particularly the complainant Shri Vassudev Gaonkar (PW9) that he, accused no. 2 and the deceased had gone for hunting and that the accused no. 2 had shot the firearm at the deceased. The learned A.P.P. further contended that the accused nos. 1 and 2 had taken the witnesses to the site where the dead body was found. According to her, the above was relevant under Section 8 of the Evidence Act. It was also submitted by the learned A.P.P. that the firearm was recovered at the instance of the accused no. 2 and there was evidence of C.F.S.L. establishing that the said firearm was used for firing. She lastly submitted that there was due sanction given by the District Magistrate for prosecuting the accused no. 2. She, therefore, urged that the impugned judgment and order is in accordance with the settled principles of Criminal Law and no interference with the same is required. 11. I have gone through the record and proceedings of the Sessions Case No.17/2009/I. I have considered the arguments advanced by the learned Counsel for both the parties. 12. PW1, Dr. Siddhartha Bandodkar had examined the accused no. 2 on 09/02/2009. However, no injuries were found on the body of the accused no.2. His scalp hair and finger nail clippings were retained and blood was also retained for blood group examination. 12. PW1, Dr. Siddhartha Bandodkar had examined the accused no. 2 on 09/02/2009. However, no injuries were found on the body of the accused no.2. His scalp hair and finger nail clippings were retained and blood was also retained for blood group examination. However, nothing turned out from the examination of said scalp hair or finger nail clippings or the blood, which could assist the prosecution in proving the guilt of the accused no. 2. 13. PW2, Shri Caitan D'Souza was examined by the prosecution to establish that the accused no. 2 had received two cartridges from PW2. However, as has been rightly held by the learned Additional Sessions Judge, no credence at all can be given to the testimony of PW2. PW2 did not produce any licence for possessing firearm. There was no reason as to why PW2 would provide cartridges to the accused no.2 when the accused no.2 was neither related to him nor was known to him prior to the first meeting and that also free of cost. PW2 otherwise knew that providing cartridges to someone else is an offence. In such circumstances, the question arises as to why PW2 would provide cartridges to accused no. 2. The testimony of PW2 did not at all inspire confidence. Hence, first of all it was not at all proved that the accused no. 2 was in possession of cartridges to be used for firing shots through firearm. 14. There was no direct evidence of any person, who had seen the accused no. 2 with the firearm or accused nos. 1 and 2 along with deceased going to Temer, Bandol for hunting or at the said spot or accused no. 2 having fired the shot. The possession of firearm by the accused no. 2 is sought to be proved by the prosecution by means of the evidence of recovery of firearm, under section 27 of the Evidence Act, at his instance. Let us therefore, scrutinize the evidence of PW7. 15. PW7, Sameer Vast, acted as one of the panch witnesses for the panchanama of arrest of the accused no. 1 on 08/02/2009 and also for the alleged recovery of firearm at the instance of the accused no. 2, on 09/02/2009. He deposed that the recovery panchanama was drawn on 09/02/2009 and that the other panch witness was one Shrikant. 15. PW7, Sameer Vast, acted as one of the panch witnesses for the panchanama of arrest of the accused no. 1 on 08/02/2009 and also for the alleged recovery of firearm at the instance of the accused no. 2, on 09/02/2009. He deposed that the recovery panchanama was drawn on 09/02/2009 and that the other panch witness was one Shrikant. According to him, he was informed that the accused had been arrested and a statement was made by him and he should accompany to the place as directed by the accused. PW7 stated that the accused no. 2 was then produced before them and he disclosed that he had hidden gun arm and his clothes and that he would show the said hidden items. First of all, PW7, in his deposition, did not state that the accused had disclosed the places as to where he had hidden the firearm and the clothes. A perusal of the disclosure/recovery panchanama (Exhibit 36), however, reveals that the accused no. 2 had specifically disclosed the places where he had thrown the said articles. Thus, PW7 did not corroborate the Panchanama. According to PW7, the accused no. 2 took them to a pathway leading to his house and after proceeding to a distance of about 150 metres, he took them inside the wooden fence, removed the firearm from heap of dry grass and handed over the same to P.I. Raut Dessai. The arrest panchanama (Exhibit 35) in respect of the accused no. 2 was drawn on 08/02/2009. In his cross-examination, PW7 specifically stated that on the next day (i.e. on 09/02/2009), the Police Constable had informed him that they had to proceed with the accused to Bandoli. The above shows that the police already knew as to where the accused would take them and that the said place was Bandoli. This aspect was not considered by the learned Trial Court. It is, therefore, difficult to place reliance on the panchanama of recovery of firearm at the instance of the accused no. 2. 16. According to PW7, the accused no. 2, thereafter, took them to a private water tap and showed a T Shirt saying that he was wearing the same. The said T Shirt was just picked up by accused no. 2 from the side of that water tap. It was easily visible and the place was accessible to all and sundry. 16. According to PW7, the accused no. 2, thereafter, took them to a private water tap and showed a T Shirt saying that he was wearing the same. The said T Shirt was just picked up by accused no. 2 from the side of that water tap. It was easily visible and the place was accessible to all and sundry. Similarly, the firearm was also visible on the grass. Therefore, the said recovery of the firearm and the T Shirt was from open public place accessible to all and sundry. 17. What is more surprising is that it is written in the recovery panchanama, Exhibit 36 and is also seen in the photographs, Exhibit PW7-colly, that the firearm was found wrapped in a blue coloured long pant which was full of mud. However, in his deposition, PW7 nowhere says that the fire arm was found wrapped in a blue coloured mud stained pant. According to PW7, the accused no. 2 removed the firearm, itself, from the dry grass. The above is not a minor discrepancy to be simply discarded. The Trial Court has not considered this aspect. 18. Photographs, which are at exhibit PW7/A Colly were allegedly clicked at the time of said recovery. However, it is pertinent to note that P.I. Raju Raut Dessai, who allegedly conducted the said panchanama which is at exhibit 36, is not seen in the said photographs. In his cross-examination, PW7 has stated that P.I. Raut Dessai was not present when they had visited the spot for the recovery panchanama. He does not know as when P.I. Raut Dessai affixed his signatures on the panchanama. PW7 further stated that the signature of the accused was not affixed on the panchanama, in his presence. If P.I. Raut Dessai was not present, the question arises as to how he could sign the panchanama as if he was present for the entire panchanama and as to when the signature of the accused was taken on the same. PW16 is the said P.I. Raut Dessai. P.I. Raut Dessai has stated in his examination-in-chief that one policeman, whose name he does not remember, had taken out photographs at the time of recovery panchanama and also at the time of panchanama of scene of offence with a digital camera. PW16 is the said P.I. Raut Dessai. P.I. Raut Dessai has stated in his examination-in-chief that one policeman, whose name he does not remember, had taken out photographs at the time of recovery panchanama and also at the time of panchanama of scene of offence with a digital camera. However, in his cross-examination, he changed his version and stated that he himself had clicked the photographs and, therefore, he is not seen in the photographs. It can be understood that this change in version is specially to explain because P.I. Raut Dessai is not seen in the photographs. In view of the above, there was reasonable doubt insofar as the genuineness of the panchanama of recovery of the firearm at the instance of the accused no. 2 is concerned. PW7 stated in his cross-examination that he had to take care of police since he was carrying out business illegally. This aspect was not at all considered by the Trial Court. Though certain infirmities in the testimony of PW7, vis-a-vis the panchanama were pinpointed to the Trial Court, however, the Trial Court observed that they are not material and not sufficient to discredit his ocular testimony. The above attitude of the Trial court was not proper. Though there was no evidence on record to suggest that P.I. Raut Dessai went to the spot separately in another vehicle, however, the Trial Court appears to have taken for granted that even if he did not accompany the panch witnesses and accused no. 2 in the police jeep, he went to the spot separately in another vehicle and therefore the same does not have any bearing on the panchanama. The above exercise was not permissible. PW16, P.I. Raju Raut Dessai simply deposed that on 09/02/2009, in the presence of two panch witnesses namely Sameer Vast and Shrikant Naik, at the instance of accused Nandkishore Naik, he recovered one firearm having empty cartridge wrapped in blue colour pant and one khaki colour T-shirt, under Section 27 of the Evidence Act. PW16 did not bother to give full account of the alleged disclosure and resultant recovery. The infirmities were such which rendered the testimony of PW7 and consequently the recovery panchanama, unreliable. 19. PW16 did not bother to give full account of the alleged disclosure and resultant recovery. The infirmities were such which rendered the testimony of PW7 and consequently the recovery panchanama, unreliable. 19. If the evidence of PW2 regarding handing over of cartridges to the accused no.2 and the evidence of PW7 and PW16 regarding the recovery of firearm at the instance of the accused no.2 is ignored, there is no use of the evidence of C.F.S.L. 20. PW13, Dr. E. J. Rodrigues had conducted postmortem examination on the dead body of the deceased Mohan Gaonkar. According to him, the cause of death was haemorrhage and shock vide injury no. 1 to chest associated with facial injury no. 2, consequent to a fire arm injury. The injury no. 1 was necessarily fatal. Pw13 deposed that on dissecting the said first injury, the same had penetrated the skin, the subcutaneous tissue and intercostal muscle and had passed through and through the left apical lobe of lung, 3 cms from the apex and then passed through mediastinum and then through the right apical lobe of the lung, 4 cms from the apex and had ended at the back of the right shoulder joint. In his cross-examination, PW13 has specifically stated that there was no exit wound corresponding to the entry point at injury no.1. He has further stated that the fragments of the projectile recovered from injury no.1 were preserved as exhibit-I and were sent for chemical analysis. However, the examination report (Exhibit 47) of C.F.S.L. does not reveal that the said projectile, which was found in the body of the deceased, was fired from the said firearm which was allegedly recovered at the instance of the accused no. 2. The result of the examination issued by C.F.S.L. only shows that there was empty cartridge case in the said Single Barrel Breech Loading Gun and that the said firearm was used for firing. However, there is no finding that the projectile found in the body of the deceased was fired through the same firearm. In such circumstances, the C.F.S.L. report does not prove any nexus between the firearm and the injury caused to the deceased. 21. PW9, Shri Vassudev Gaonkar is the complainant. The complaint lodged by him is at exhibit 41. However, there is no finding that the projectile found in the body of the deceased was fired through the same firearm. In such circumstances, the C.F.S.L. report does not prove any nexus between the firearm and the injury caused to the deceased. 21. PW9, Shri Vassudev Gaonkar is the complainant. The complaint lodged by him is at exhibit 41. According to him, when they asked the accused no.1 as to what had happened, he informed them that both the accused and his brother Mohan Gaonkar (i.e. brother of PW9) had gone for hunting at Temer and that Mohan fell down and suffered injuries and was lying at the place. He deposed that both the accused led them to the said place and they saw Mohan lying under a cashew tree. According to PW9, upon seeing injury on the face of Mohan, they again enquired with the accused no.1 as to what had happened and the accused no.1 then told them that the accused no. 2 had fired a shot at the deceased and that the deceased was then shifted under cashew tree at the place where he was found. PW9, stated that Sanjiv, Ashok and Premanand were present when this information was given to them. Said Premanand has not been examined by the prosecution. 22. PW10, Shri Gopi Gaonkar is the father of the deceased. He deposed that the accused no. 1 is the son of his brother and the accused no. 2 is his neighbour. He deposed that both the accused came to his house and they went with the accused persons to the spot where they saw deceased lying on the ground. PW10 deposed that after seeing hole in the left chick of the deceased and blood over his body, they enquired with the accused no.1 as to what had happened and the accused no.1 informed that the accused no. 2 had fired a gun shot. 23. PW11, Sanju Gaonkar is the cousin brother of the deceased. According to PW11, the incident occurred on 07/02/2009. He deposed that they enquired with the accused as to why the mother of Vassudev was crying when the accused no.1 told them that Mohan is lying injured at Temer and that they had gone for hunting. 23. PW11, Sanju Gaonkar is the cousin brother of the deceased. According to PW11, the incident occurred on 07/02/2009. He deposed that they enquired with the accused as to why the mother of Vassudev was crying when the accused no.1 told them that Mohan is lying injured at Temer and that they had gone for hunting. PW11 stated that thereafter, both the accused, Vassudev, his father, Ashok, Premanand and he proceeded towards Temer as per the direction given by the accused and they saw Mohan lying under a cashew tree with injury on left side of cheek. PW11 deposed that accused no.1 informed them that when they had gone for hunting, the accused no. 2 fired a shot at the deceased. 24. PW14, Shri Ashok Gaonkar is the cousin brother of the deceased. PW14 deposed that on 07/02/2009 at about 8.30 p.m., Mohan's mother told them that Mohan had fallen at Temer in village Bandoli. He further stated that both the accused also told them that Mohan had fallen at Temer and that they would show the place. He further stated that the accused no.1 stated that Mohan had gone there for hunting. According to him, both the accused showed to them the way to jungle at Temer and the body of Mohan was shown to them which was under a cashew tree. PW14 further deposed that since the accused no.1 was not telling them anything, they beat him and then he told that the accused no. 2 Nandkishore Naik fired from gun, due to which, Mohan was killed. 25. Accused no. 1 is the cousin brother of the deceased whereas accused no. 2 is a neighbour. From the above, it can be said that all the said witnesses, who are close relatives of the deceased, have not corroborated each other. They have given different versions. In any case, what the said witnesses stated was about some statement made by the accused no. 1, the cousin brother of the deceased, thereby putting the blame on the accused no. 2, who is not related to the deceased and to those witnesses. The said statement of the accused no.1 was not a confession, since he did not confess of having committed any guilt, but stated that the accused no. 2 had fired a shot at the deceased. 2, who is not related to the deceased and to those witnesses. The said statement of the accused no.1 was not a confession, since he did not confess of having committed any guilt, but stated that the accused no. 2 had fired a shot at the deceased. It is not known as to why the said witnesses did not choose to get confirmation from the accused no. 2. It is not the case of the prosecution that the accused no. 2 had made an extra-judicial confession that he had fired the shot due to which Mohan died. 26. Section 30 of the Indian Evidence Act lays down as under: “30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.-When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.” 27. The object of above Section 30 is that where an accused person unreservedly confesses his own guilt and at the same time, implicates another person, who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself. It is well settled that Section 30 of the Indian Evidence Act has to be very strictly construed. Unless the maker implicates himself substantially to the same extent as the other accused, the confession cannot go in evidence against the other accused. Besides the above, if really only one shot was fired the question is how the deceased had sustained two injuries one on the chest and the other on the cheek. Therefore, the statement of all the above witnesses to the effect that the accused no.1 told them that the accused no.2 had fired a gun shot at the deceased is hearsay and not admissible in evidence and, therefore, no value can be given to the same. 28. The other witnesses namely PW3, Dr. Vinod Naik, PW4, Dr. Sanjay Korgaonkar, PW5, Dheeraj Naik, PW 6, Dinesh Tari, PW8, Mohan Gaonkar, PW12 PSI Vinayak Patil, and PW15 Gokuldas Naik are not of much relevance. 29. 28. The other witnesses namely PW3, Dr. Vinod Naik, PW4, Dr. Sanjay Korgaonkar, PW5, Dheeraj Naik, PW 6, Dinesh Tari, PW8, Mohan Gaonkar, PW12 PSI Vinayak Patil, and PW15 Gokuldas Naik are not of much relevance. 29. In the circumstances above, the learned Trial Court has erred in holding the accused no. 2 guilty of the offence under Section 3 read with Section 25 of the Arms Act and Section 304(II) of I.P.C. In my considered view, the evidence on record is not sufficient to prove the guilt of the accused no. 2 beyond reasonable doubt. The accused no. 2 is entitled to benefit of doubt. The impugned judgment and order is, therefore, not sustainable. 30. Hence, the appeal is allowed. (a) The impugned judgment, order and sentence, as (b) The bail bonds of the accused no.2 and his surety are against accused no. 2, is quashed and set aside, cancelled. 31. The appeal stands disposed of accordingly. Appeal allowed.