Anthony Fernandes vs Police Inspector And Anr

M.S. Sonak,J

This appeal is directed against Judgment and Order dated 20th December, 2018 made by the learned Sessions Judge, South Goa, at Margao in

Sessions Case (302) No.5/2016, convicting the appellant for offence under Sections 302 and 201 of the Indian Penal Code, 1860 (IPC) and sentencing

him to undergo imprisonment for life and to pay fine of Rs.20,000/- for the offence under Section 302 IPC and to undergo simple imprisonment for 3

years and pay fine of Rs.10,000/-for offence under Section 201 IPC.

The case of the Prosecution is that the appellant on 24.3.2016 at about 15,00 hours at Moti Dongor Margao, murdered his wife Fiona and in early

hours of 25.3.2016, chopped off her legs, packed her dead body along with the chopped legs in a traveller bag, took the same on a Honda Dio Scooter,

dumped the same in TB Hospital property at Monte Hill Margao and set it on fire to destroy evidence.

Since, the case turns on circumstantial evidence, the learned Sessions Judge, has basically relied upon the following circumstances:

(A) Last seen theory;

(B) Recovery of knife, bag and mobile phones under Section 27 of the Evidence Act;

(C) Injuries on the person of the accused; and

(D) Motive.

Before, we discuss and determine whether the prosecution has succeeded in proving beyond reasonable doubt the aforesaid circumstances, and

whether the aforesaid circumstances, if proved, are sufficient to sustain the conviction, it is necessary to advert to the important aspect of

identification of the dead body, which, prosecution claims, is of the appellant's wife Fiona.

On the issue of identification of the dead body, the prosecution relies almost entirely on the evidence of Thomas Fernandes, the brother of Fiona

who has been examined as PW.8. This witness, in his deposition recorded on 16.3.2017, spoke absolutely nothing about his presence at the time of the

inquest panchanama held on 28/3/2016 and consequently about the identification of the dead body as being that of Fiona. The prosecution examined

Shri Devanand Pereira PW.11 as the Pancha witness to the inquest panchanama. This witness has categorically deposed that only Damaciano

Fernandes, another brother of Fiona was present at the time of the panchanama and it is this Damciano who identified the dead body. This deposition

of PW.11 was recorded on 4.7.2017. This deposition of PW.11 is entirely consistent with the inquest panchanama which records the presence of only

Damacian and Felton Pereira, the son in law of Fiona. There is no mention of the presence of Thomas Fernandes, PW.8, much less any identification

by PW.8.

The prosecution has then examined PSI Ajit Umare as PW.19 in the context of the inquest panchanama and identification.

PW.19 has also categorically deposed that only Damacian and Felton were the two relatives present at the inquest panchanama who identified the

dead body as being that of Fiona. This deposition was recorded on 10.8.2017 and 26.10.2017.

The prosecution, has failed to examine Damaciano and Felton, the only two witnesses who were alleged to have identified the dead body as that of

Fiona. There is no explanation for the non-examination of these most material witnesses. Mr. Rivankar, learned P.P. did attempt to urge that the said

witnesses live abroad. However, there is nothing on record to substantiate this position or to even suggest that any efforts were made by the

prosecution to secure the presence of these most material witnesses. This was absolutely crucial, since PSI Ajit Umare PW.19, in his cross

examination had clearly admitted that the face and the body of the deceased was charred. The medical evidence also suggests that the face and the

body was charred. In such a situation, identification assumes great importance and the prosecution, could not have afforded not to examine, perhaps

the only two witnesses who are alleged to have made the identification at the time of inquest.

The prosecution, perhaps realising its predicament, applied after almost 18 months under Section 311 of Cr.P.C. for leave to reexamine Thomas

Fernandes PW.8, who, in his examination on 16.3.2017 had not even uttered a word about his presence at the inquest panchanama and the consequent

identification of the dead body as being that of Fiona. PW.8 was reexamined on 26.7.2018 and on this occasion claimed to have been present at the

morgue at the time of the inquest panchanama. It is obvious that the prosecution has attempted to plug a serious loophole and that too in a manner

which is far from satisfactory. The alleged presence of PW.8 at the time of the inquest is unsupported by the inquest panchanama, the pancha to the

inquest (PW.11) and the PSI in who presence the inquest took place (PW.19). None of these witnesses spoke of even the presence of PW.8 at the

time of inquest. Accordingly, it is not possible to accept the sole testimony of PW.8 on the aspect of identification in the aforesaid circumstances.

Curiously, in this case, the prosecution has failed to undertake any blood tests or DNA Profiling in order to identify the dead body. This was easily

possible and there is no explanation as to why this was not done. The two witnesses who are alleged to have identified the dead body were also not

examined by the prosecution without there being any reasonable ground or excuse even placed on record. In this state of evidence, we are

constrained to hold that there is no legal evidence on record to establish that the dead body was indeed that of Fiona. This is more so because there is

ample evidence on record that Fiona was working at Cyprus since 4 years prior to her alleged demise and the prosecution has not even bothered to

investigate into the status of her passport or visa details, which, would have perhaps given a clue as to her presence in Goa. The learned Sessions

Judge has also observed that this is a lacunae in the case of the prosecution, but, ultimately, has chosen to go by certain other material on record. In

these circumstances, identification was vital and since the prosecution has failed, it will be unsafe to sustain the conviction recorded by the learned

Sessions Judge in this matter.

Before, we consider the circumstances relied upon by the prosecution, it is necessary to advert to the decision in Sharad Birdhichand Sarda vs.

State of Maharashtra (1984) 4 SCC 116 in which the Hon'ble Apex Court has laid down the following principles in relation to circumstantial evidence:

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must†or

“shouldâ€​ and not “may beâ€​ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on

any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused. (See Sharad Birdhichand Sarda v. State of

Maharashtra (1984) 4 SCC 116, SCC p. 185, para 153; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200. AIR SC para 18.)â€​

Applying the aforesaid principles to the material on record in the present case, we are satisfied that the prosecution has failed to prove, beyond

reasonable doubt, the complicity of the appellant into the crime alleged.

The circumstance arising out of the last seen theory can hardly be said to have been proved by the prosecution beyond reasonable doubt. The

prosecution has itself relied upon the recordings of the telephonic conversation between Fiona and her alleged paramour in Cyprus in which, even as

on 23rd March, 2016 she says that her husband the appellant is not aware that she is in Goa. In the conversation, she says that she has not seen him

still. Yet, her sister Fatima Cardozo (PW.6) says that Fiona and the appellant used to regularly visit Fatima's and their mother's house regularly from

16.3.2016 to 20.3.2016. Significantly, the mother has not been examined as the prosecution witness. To the same effect is the evidence of PW.8, the

brother of Fiona who says that Fiona and the appellant visited them till 20.3.2016. The depositions of PW.6 and PW.7 hardly inspire confidence,

particularly if the recorded conversation relied upon by the prosecution itself is to be taken into account. In any case, these witnesses speak about

Fiona and the appellant visiting them upto 20.3.2016. According to the prosecution, the crime was committed only on 24.3.2016 in the home of Fiona

and the appellant. The time gap, in such circumstances, cannot be said to be so small that the responsibility of any person other than the appellant

being the author of the crime becomes impossible. Besides, in a recent decision in Smt. Gargi vs. State of Haryana 2019 STPL 10857 SC the Hon'ble

Supreme Court has explained the effect of last seen theory involving husband and wife. Applying these principles to the facts of the present case, we

do not think that the prosecution has established the circumstances sufficient for invoking the last seen theory beyond reasonable doubt.

The second circumstance relates to alleged recovery of the knife, bag and the mobile phones. Again, the prosecution, has failed to make out any

case consistent with the requirements of Section 27 of the Evidence Act regards these recoveries.

PSI Shreedhar Kamat PW.23 has deposed that on 25.3.2016, consequent upon complaint by Flyza and Shelton, the daughter and son-in-law of

Fiona and the appellant, he visited the flat where the appellant resided and the appellant locked the flat and accompanied him to the police station

where he was arrested. There is an arrest panchanama which records that all the belongings on the person of the appellant were attached and a

panchanama drawn out. There is no reference to any key by which the flat was locked. However, Mr. De Sa is right in his submission that only the

key could not have remained with the appellant post his arrest. The recovery of the knife and the mobile phone is on the next date i.e. 26.3.2016, on

which occasion, it is alleged by the prosecution that the appellant took out the key from his pocket and opened the flat door. That apart, what is

recovered is really a kitchen knife without any blood stains to connect the knife to the crime. It is the case of the prosecution that the knife was

washed by the appellant. Yet, the prosecution claims to have found a finger print of the appellant on the knife. There are pictures produced on record

by the prosecution which show the appellant handing over this very knife to the P.I. yet, no finger prints of the P.I. find place on the knife. There is no

explanation as to how the blood stains were washed away but the finger prints remained on the knife. In the absence of any credible material to

connect the knife to the crime, the recovery can hardly be some incriminating circumstance. The same is the position of the bag said to have been

recovered from PW.1 and PW.2. There is absolutely no evidence about the contents of this bag which is alleged to have contained some blood soaked

clothes. Besides, PW.1 and PW.2 distinctly speak about the bag being locked, but PW. 21 (IO) says that the bag was not locked. In these

circumstances, we cannot say that even the second so called incriminating circumstance is proved by the prosecution beyond reasonable doubt.

The third circumstances is of the injury on the left palm of the appellant. PW.14, the Doctor has deposed that the appellant came to him along with

another person stating that he had suffered these injuries on account of fall from the bike and cut by a metal sheet. PW.14 has said that such cut

injury could be caused by any sharp object including metal edge part of a scooter. This circumstance is really not sufficient to connect the appellant to

the crime.

The fourth and the last circumstance is of the motive. For this the prosecution relies upon the recordings of conversation between Fiona and her

paramour at Cyprus. There is, however, no evidence about the appellant having discovered such conversations. In any case, even assuming that there

may have been some motive, since, the mobile phones were registered in the name of the appellant, the same is really not sufficient to sustain the

conviction in the present matter.

As noted earlier, it is also the case of the prosecution that the appellant had stated that he had committed the crime to Flyza and Shelton, his

daughter and son-in-law. There is no evidence to this effect because even PW.23 merely stated that Flyza and Shelton had come to lodge a missing

complaint. That apart, if this was really so, then, Flyza and Shelton were the most material witnesses, who were never examined in this case by the

prosecution. There was no proper examination of blood or DNA profiling. Damaciano, the brother of Fiona who is alleged to have identified the dead

body was also not examined by the prosecution. In this state of the evidence, conviction cannot be sustained merely on the basis of creating some sort

of suspicion about the involvement of the appellant in the crime. It is quite well settled that suspicion, however, grave, can never be a substitute for

legal proof in such matters.

In Mohd. Faizan Ahmad Vs State of Bihar 2013(2) SCC 13 1the Hon'ble Supreme Court held that the High Court erred above being carried away

by the heinous nature of the crime and losing sight of the basic principle underlying criminal jurisprudence that suspicion, however grave cannot take

the place of proof and that Courts recognize only legally admissible evidence and not some conjectures and surmises.

In Narendra Singh Vs State of M.P. 2004(10) SCC 699, the Hon'ble Apex Court held that it is trite that suspicion, however grave may be, cannot

take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. In this case, the Hon'ble Supreme Court

has held that presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed.

In Babu Singh Vs State of Punjab, 1963 (3) SCR 74 9the Hon'ble Apex Court held that probabilities however strong and suspicion however grave

can never take the place of proof.

For all the aforesaid reasons, we set aside the impugned Judgment and order dated 20.12.2018 and the conviction of the appellant recorded

therein. The appellant shall be set at liberty, in case he is not required in relation to any other crime. The Registry to do the needful.

All concerned to act on basis of authenticated copy of this order.