Dattaram Premanand Gawas vs State of Goa

R.P. Sondurbaldota, J.—This appeal is directed against the judgment and order dated 29th March, 2010 read with order dated 19th April, 2010 passed by the Sessions Court, North Goa, convicting the appellant for the offences punishable under Sections 302 and 392 Indian Penal Code. For the offence u/s 302, the appellant has been sentenced to undergo life imprisonment and to pay fine of Rs. 10,000/-. For the offence punishable u/s 392, he has been sentenced to undergo the imprisonment for a term of five years and pay fine of Rs. 5,000/-. In default of payment of fines, he is ordered to undergo simple imprisonment for a period of six months and two months respectively. On 18th November, 2007 at about 5.10 pm., Santosh s/o deceased Darshana complained to Pernem Police Station that on that day in the morning at about 9.30 hours, Darshana left the house for washing clothes at river/stream located at a distance of about half km. behind her house. At that time, the complainant and his brother were at home. Usually Darshana returned home after washing clothes in about half an hour. On that day, when she did not return till about 11 a.m., the complainant and his younger brother Sanil started searching for her. When they went to her usual place of washing of clothes, they found the bucket of soiled clothes on the steps of the river/stream without any trace of Darshana. Then husband of Darshana and neighbours also joined in the search. Later in the day, the complainant and his family learnt from the villagers that dead body of a woman was lying in the bushes on the bank of the stream at the place known as Devachi Panas, which is at a distance of about 100 to 150 mtrs. from Darshana''s usual place for washing clothes. On rushing to the place, the complainant and his family identified the dead body as that of Darshana. They also found that gold Mangalsutra around her neck and two bangles (Patli) from her hands, which she used to wear regularly, were missing.

After locating of the body, the police drew inquest panchanama and panchanama of place of offence. Thereafter the body was sent for post-mortem examination. The post-mortem examination was conducted by PW 7, Dr. Silvano Dias Sapeco. He found following external injuries on the dead body:

Red bruise of 8 x 5 c.m. (on Section it was 2 c.m. deep) was seen on left side of forehead and eye.

Red bruise of 2 and half x 3/4 c.m. (on Section half c.m. deep) was seen on left ear pinna.

Red bruise of 2 x 3/4 c.m. (on Section half c.m. deep) was seen on right side of upper lip.

Red bruise of 2 � x 3/4 c.m. On Section � c.m. deep was seen on right side of lower lip.

Abrasion of 3 and half x 1/8 c.m. With underline red bruise of 4 x 2 c.m. (on Section 4 c.m. deep) was seen on right side of neck just below sub mandibular region of jaw.

Red bruise of 6 x 2 c.m. (on Section 4 c.m. deep) was seen on left upper neck''s outer aspect.

7.3 red bruises, each of 1 x � c.m. And � to 3/4 c.m. apart from each other (on Section half c.m. deep) were seen at mid doxin of right palm.

The injuries on her face, head and brain were a result of blunt force impact by object or surface. The internal injuries corresponding to the external injuries No. 5 and 6 noted by P.W. 7 were as follows:

Neck has injuries No. 5 and 6. There is a fusion of blood measuring 4 x 2 c.ms. In the soft tissues at right sides of neck extending upto the right thyroid cartilage. There was a fusion of blood measuring 7 x 3 c.ms. Extending inwards into the soft tissues of left side neck upto the left thyroid cartilage with fracture dislocation of the left superior horn of the thyroid cartilage. There was a fusion of blood seen within thyroid membrane of both sides. There was extravasation of blood within striated muscles of neck at both sides. Petechial hemorrhages were present in the epiglottis. Blood stained muciod matter was present in the lumen to trachea and bronchi.

On the basis of the external and internal injuries found on the body, PW 7 opined as regards the cause of death that it was due to asphyxia as a result of manual strangulation, vide injuries No. 5 and 6, which were ante-mortem and fresh at the time of death and were necessarily fatal. The evidence of PW 7 supported by the report of post-mortem examination establishes the fact that the death of Darshana was a homicidal death.

On 8th December, 2007, PW 3 had been to Upper Bazar, Bedshi Market area in Dodamarg. He saw three persons in the age group of 43 to 45 years talking to each other. One of them stated that he had murdered a women and removed gold mangalsutra and patli from her body and hidden it somewhere. The other two persons then advised that the third person should surrender to the Police. But the third person did not pay any heed to the advise. On 9th December, 2007, on learning from a relative that a lady had been murdered in Chandel village, PW 3 disclosed the conversation heard by him to the police. He identified, from the photograph shown to him by the police, the appellant as the person disclosing that he had committed a murder. PW 28, the investigating officer arrested the appellant on 10th December, 2007. On the next day, i.e. on 11th December, 2007, the appellant made a voluntarily disclosure in the presence of PW 9 and another panch witness that he would show the place where he had concealed (i) gold ornaments stolen by him from the house of deceased, 8 to 10 days prior to the murder, (ii) the lock and key of the pump house and (iii) gold ornaments worn by the deceased at the time of her death. The appellant led the police to his room and from a hole in the corner pillar of the room, he removed a plastic packet. The plastic packet contained two gold chains, four gold bangles, two gold necklaces and one gold dawal. The gold ornaments were duly seized after sealing the same. The appellant then took everybody to the pump house. From a tree located at the distance of about 30 mtrs. from the pump house he removed a lock. That lock was also seized by the police by following the usual procedure. Thereafter the appellant took everybody to a place near canal. He stopped near one Rumod tree and took out a handkerchief bundle from under dry leaves. The bundle contained mangalsutra and bangles (path). The same were also duly sealed and seized by the Police. The ornaments of mangalsutra and bangles (path) recovered had been identified by PW 4, the son, PW 15, the husband, PW 18, the son and PW 19, the goldsmith as those belonging to the deceased and worn by her at the time of her death.

During the course of trial against the appellant, the prosecution examined in all 28 (sic) out of which, seven are panch witnesses and four are police witnesses. The statement of the appellant u/s 313 Code of Criminal Procedure was recorded. The appellant examined three defence witnesses to establish his defence of alibi.

There are no eye-witnesses to the incident of murder. In the absence of any eyewitness, the entire case of the prosecution rested on circumstantial evidence. The Sessions Court, on appreciation of the evidence led by the prosecution accepted the prosecution case and found that the appellant had committed murder of the deceased. According to it, the motive to commit murder was robbery of gold ornaments.

Since the case of the prosecution rests upon the circumstantial evidence, it would be convenient to refer at this place to the decision of the Apex Court in State of Goa Vs. Sanjay Thakran and Another, relied upon by Mr. D''Souza, the counsel for the appellant. Relying on this decision, Mr. D''Souza submits that when the case rests upon the circumstantial evidence, such evidence must satisfy following tests:

(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.

The circumstances relied upon by the prosecution in the case on hand to establish guilt of the appellant can be enumerated as follows:

(i) Death of Darshana was homicidal,

(ii) On 18th November, 2007, the appellant was missing after about 9.30 hours from near the temple, where he was working.

(iii) Gold ornaments from the body of the deceased i.e. Mangalsutra and two bangles were recovered at the instance of the appellant.

(iv) The conduct of the appellant prior to incident was unusual.

(v) After the incident, the appellant was missing.

(vi) The motive for commission of crime was robbery of the gold.

(vii) His subsequent conduct of suppressing the fact within his knowledge of his conviction for the offence of housebreaking and theft from the house of the deceased is indicative of his guilt.

The evidence on these circumstances led by the prosecution, will now have to be subjected to the tests reproduced above from the decision of the Apex Court. It will have to be seen whether the circumstances relied upon by the prosecution have been cogently and firmly established, whether they unerringly point to the guilt of the appellant by forming a complete chain, and whether the circumstances are incapable of explanation by the appellant.

There is no dispute that Darshana met with a homicidal death. There is also no dispute as regards the cause of death as opined by of PW 7. The circumstance most stressed upon by the prosecution was of recovery of gold ornaments belonging to Darshana at the instance of the appellant. The ornaments consist of two sets. The first set is of the ornaments belonging to the deceased stolen from her house prior to the incident of murder and the second set is of the ornaments from the body of her person at the time of her death. The evidence relevant on this circumstance is of PW 9 the pancha for recovery panchanama, PW 8 the photographer, PW 26 the police constable accompanying the police team and PW 28, the investigating officer. The ornaments recovered were identified by the two sons of the deceased (PW 4 and PW 18), her husband (PW 15) and the goldsmith who made the ornaments (PW 19).

PW 9, the pancha for recovery of ornaments deposed that on 11th February, 2007, he was called by Pernem Police to act as panch. The other panch was one Sanjay Kambli. PW 9 narrated in his evidence not just the facts relating to volunteering by the appellant to recover the ornaments of the deceased kept at two places, but also extensively upon the inculpatory statements allegedly made by the appellant during the course of the recovery statement. Despite the established legal position that inculpatory statements by an accused is not admissible in the evidence, the learned Sessions Judge is seen to have extensively recorded the same. Needless to say that such statements from the deposition of PW 9 must be ignored while appreciating it. After ignoring such inculpatory statements, the evidence of PW 9 establishes that on 11th December, 2007, the appellant led him, the other pancha and police personnel, first to his own house. The appellant took everybody inside his room and removed the ornaments concealed in a hole to the pillar of the room. The ornaments recovered were two chains, four bangles, two necklaces and one dawal. PW 21, the goldsmith accompanying the police weighed the ornaments before the same were sealed. The appellant, then took everybody to the pump house and to a tree located at a distance of about 30 mtrs. from the pump house. He removed a lock of silver colour from above the tree, which lock was seized and sealed by the police. Thereafter the appellant took everybody to the canal side. He stopped near a Rumod tree and removed a bundle of handkerchief of green colour from under the dry leaves at a distance of about 1 mtr. from the Rumod tree. The bundle of handkerchief contained a mangalsutra and two bangles. These ornaments were also weighed by PW 21 before the same were seized by the Police. PW 8, the photographer had accompanied the police team and the panchas at the time of recovery. He had taken the photographs at the time of recovery of ornaments from both the places. The photographs are at Exhibit 23 collectively. PW 9 identified before the Court the ornaments recovered at the instance of the appellant as also the lock. His evidence in this regard has been supported by PW 21, the goldsmith and PW 28, the investigating officer by identifying the very ornaments, during the course of their evidence.

Mr. D''Souza, the learned counsel for the appellant submits that the evidence of the prosecution of recovery should be disbelieved entirely. According to him the recovery has been made in a slipshod manner and there are several loopholes in the evidence. He submits that the identity of ornaments produced before the Court as the very ornaments recovered at the instance of the appellant has not been established. Mr. D''Souza refers to the cross-examination of PW 9 to point out that the witness does not even remember whether the panchanama mentions that kit box containing packing and sealing material, was taken along by the police. Therefore according to him, the ornaments produced before the Court can not be said to be the same ornaments as recovered. Perusal of the deposition of this witness shows that despite extensive cross-examination, he has maintained his evidence as regards recovery of the ornaments from two places and a lock from the third place. This evidence has been supported by the evidence of PW 28, the investigating officer, PW 26, the Constable who had accompanied the police team and PW 8, the photographer. Therefore, we find no substance in the argument of Mr. D''Souza that the evidence before the Court on recovery by the appellant is not sufficient. At the same time, we are constrained to observe that the evidence of PW 9 is much in the wanting in another sense. It includes several statements that are inadmissible in evidence i.e. the inculpatory statements allegedly made by the appellant at the time he volunteered for recovery. The Sessions Court ought to have been careful while recording the evidence and ensured that no statement inadmissible in evidence came on record.

The next enquiry would be to find out whether the ornaments recovered at the instance of the appellant and produced before the Court belonged to the deceased. In other words, the identification of the ornaments as those of the deceased. The material witnesses for this are the two sons of the deceased (PW 4 and PW 18), her husband (PW 15) and the goldsmith who made the ornaments (PW 19) PW 4 and PW 18 during their examination-in-chief were shown the gold bangles (patli) and mangalsutra. They identified the ornaments as those belonging to their mother. PW 15, the husband also identified the mangalsutra, and bangles as those of the deceased. He further stated that she was always wearing those ornaments and on 18th November, 2007 he had seen her wearing them while she was near Santosh Bar. Perusal of the cross-examination of these witnesses shows that PW 15 and PW 18 were not even cross-examined on their identification of seized ornaments. As regards PW 4, there was a bald suggestion given to him that the mangalsutra and patlis shown to him did not belong to his mother. PW 4 denied that suggestion.

During the evidence of PW 15, the prosecution produced for the first time a bill allegedly issued by PW 19, which was taken on record and marked as Exhibit 52. PW 15 stated that the mangalsutra had been purchased by him from PW 19 along with two gold chains. His evidence finds corroboration in the deposition of PW 19 who stated that on 4th August 2006, PW 15 placed an order with him for making 2 golden chains and one gold mangalsutra. He identified the writing at Exhibit 52 as the bill given by him to PW 15. He also identified the mangalsutra as the one made by him at the instance of PW 15. Since the mangalsutra had been made to order, we find no difficulty in accepting it''s identification by PW 15 and PW 19, A grievance has been made on behalf of the appellant that the writing at Exhibit 52 was never part of the charge-sheet and that it had suddenly been introduced into the evidence directly during examination-in-chief of PW 15. Mr. D''Souza submits that such course is not permissible in law. Undoubtedly the prosecution has not followed the correct procedure while producing Exhibit 52 in evidence. The document could not have been produced in such manner. However, in our opinion even if the document is excluded from consideration, it would make no difference to the finding on identification of the ornaments. The identification by witnesses in the Court is substantive evidence which only would have got corroborated by the document.

Mr. D''Souza submits that bare identification of ornaments by PW 4, PW 15 and PW 18 in the Court cannot be accepted in the absence of any specific or peculiar mark thereon. In this connection, he relies upon the observations of the Apex Court in Bharat Vs. State of M.P., . The relevant observations read as follows:

Reverting now to the circumstances of recovery of the aforesaid ornaments from the house of the appellant and the identification of those ornaments, the High Court has committed a serious illegality in relying upon the factum of recovery as a circumstance against the appellant despite coming to the conclusion that the ornaments had not been duly identified. It stands established that the ornaments Toda and Khagwari were not of any peculiar design, Similar Toda and Khagwari were with every family in the village. In the cross-examination of PW 18 in whose presence those ornaments were alleged to have been identified by PW 8 and PW 15, it has come that ornaments of that design were available in the market and ladies of the village have them.

Mr. D''Souza also points out that there was no test identification done during investigation.

Mr. Rivonkar, the learned A.P.P. submits per contra that the substantive evidence is the evidence of identification in Court and test identification only provides corroboration to the identification by witness in the Court, if required. He seeks to draw support from the decisions of the Apex Court in (i) Malkhansingh and Others Vs. State of Madhya Pradesh, and (ii) Vijay @ Chinee Vs. State of Madhya Pradesh, .

In the case of Malkhansingh and Others Vs. State of Madhya Pradesh, , the Apex Court at paragraph 16 holds:

It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case, the Courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable.

The relevant observations from the Vijay''s case (AIR 2011 SC (Cri) 940) (supra) are as under:

Holding of the test identification parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the test identification parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness to the complainant. (Vide State of Himachal Pradesh Vs. Lekh Raj and Another, ).

In Mulla and Another Vs. State of Uttar Pradesh, this Court (one of us, Hon''ble P. Sathasivam, J.) placed reliance on Matru alias Girish Chandra Vs. The State of Uttar Pradesh, and Santokh Singh Vs. Izhar Hussain and Another, wherein it had been held that the test identification parades do not constitute substantive evidence. They are primarily meant for the purpose of providing the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. The test identification parade can only be used as corroboration of the statement in Court. The necessity for holding the test identification parade can arise only when the accused persons are not previously known to the witnesses. The test is done to check the veracity of the witnesses. The Court further observed as under: (SCC pp. 521-22, para 41) (p. 951, para 20 of AIR)

41.... The evidence of test identification is admissible u/s 9 of the Evidence Act, 1872. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused as an identification parade is only a circumstance corroborative of the identification in Court.

Thus it is evident from the above, that the test identification is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It is used only to corroborate the evidence recorded in the Court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the Court.

It would also be convenient to note herein the observations of the Apex Court in Earabhadrappa Vs. State of Karnataka, . The Apex Court viewed identification of property of ornaments and sarees by the witnesses as follows:

Our attention was drawn to the testimony of PW 13 Narayanareddy who, during his cross-examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use. Nothing really turns on this because PW 2 Smt. Bayamma, mother-in-law of the deceased, her husband PW 3 Makarappa and son, PW 4 G.M. Prakash have categorically stated that the seized ornaments belonged to the deceased Smt. Bachamma. There is no reason why the testimony of these witnesses should not be relied upon particularly when PW 2 Smt. Bayamma was not cross-examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. Even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sarees (M.Os. 10 to 15). It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.

It is well established position that identification in the Court is the substantive evidence. If that evidence is found to be trustworthy in the facts of the case, merely because there is no test identification conducted, that evidence cannot be discarded. As observed by the Apex Court, test identification is a part of investigation and is used to only corroborate the substantive evidence. The Sessions Court has found PW 4, PW 15, PW 18 and PW 19 to be creditworthy witnesses. We have carefully gone through the deposition of these witnesses and find that there is nothing in their deposition to doubt their integrity. They have withstood the cross-examination. As already observed above, identification of PW 15 and PW 18 is not disputed at all. There is no question put to them on identification during their cross-examination. As regards PW 4, there is a bald suggestion given to him that the mangalsutra and patlis did not belong to his mother. PW 4 denied the suggestion. The decision in Bharat Vs. State of M.P., relied upon by Mr. D''Souza is therefore distinct from the present case on facts. In that case, the material on record showed that the two ornaments described therein were with every family in the village. The ornaments were not of any particular design and ornaments of that design were available in the market and the ladies of the village had them. Similar material has not come on record in the case on hand. On the contrary, at least one ornament i.e. the mangalsutra was made to order by PW 19. The order had been placed by PW 15. In these circumstances, we find no infirmity in the finding of the Sessions Court that the prosecution has established the fact of recovery the ornaments of the deceased at the instance of the appellant.

The next circumstances is of the movements of the appellant at the relevant time. PW 16, the neighbour stated that on 16th November, 2007, he along with his family and others had planned the cleaning around Shree Devi Sateri temple at Chandel by way of preparation for Kartiki Ekadashi on 21st November, 2007. On 18th November, 2007, a Sunday at 8.30 to 9.00 a.m., about 35 to 40 villagers gathered around the temple. The appellant was one of them. At 9.10 a.m., everybody was provided with Nashta (breakfast) inside the temple. At that time, the appellant was missing. PW 16 had seen him going towards direction to the canal. Around 12 noon, PW 16 saw him on the motorcycle of his brother both coming from the direction of the house of PW 16, which is next to the house of the deceased. In the cross-examination, PW 16 stated that the appellant did not do any work of cleaning but just waited near the temple for 5-10 minutes before going away. DW 2 and DW 3 were examined by the appellant in order to establish that at the relevant time, he was at the temple participating in the cleaning operation till about 12 noon. DW 2 stated that the appellant had come to the temple at about 8 a.m. and worked there till about 9 a.m. DW 3 stated that the appellant had continued to work till about 8.45 a.m. Thus the two witnesses examined by the appellant have also not supported his claim. After the incident, as seen from the record, the appellant was missing until his arrest on 10th December, 2007 i.e. for almost a month. Thus the conduct of the appellant around the time of the incident and thereafter is seen to be consistent with his guilt.

According to the prosecution, the motive for commission of the crime was robbery of the gold. Mr. Rivonkar points out that not just the ornaments from the person of the deceased, but the ornaments and cash from her house had also been stolen by the appellant. He has been tried for the offence of housebreaking and theft from the house of the deceased and has been convicted by the judgment and order dated 18th November, 2007 by the Court of Judicial Magistrate, First Class at Pernem in Criminal Case No. 1415 of 2008. The appellant examined himself in support of his case. In his examination-in-chief, he denied that he had committed theft of gold ornaments of the deceased. He also denied that it was kept in his house and it was recovered at his instance. This denial is of no consequence in view of the evidence led by the prosecution which establishes the fact of recovery. In his cross-examination, he admitted that he was tried at the instance of Pernem Police for effecting entry into the house of the deceased and for committing theft of gold ornaments and cash of Rs. 17,000/-. Though he feigned ignorance of his conviction, the fact is established by the certified copy of the judgment and order of conviction produced in evidence by the prosecution. The prosecution has thus succeeded establishing the motive for the appellant to murder the deceased.

PW 3 is the witness who had led the police to the accused. He is a chance witness. On 8th December, 2007 at about 10.30 a.m., he was at Upper Bazar, Bedshi Market area at Dodamarg. He saw three persons near him talking to each other. They were strangers to him. The appellant was one of them. He heard the appellant telling others that he had murdered a woman and removed gold ornaments from her body and hidden them. PW 3 later identified the appellant from the photographs shown by the police. The witness is seen to be a truthful witness and has withstood cross-examination. Besides, there is no reason even suggested to him for falsely implicating the appellant into the offence. For the above reasons, we are satisfied that the prosecution has brought home the guilt of the appellant by establishing every circumstance pointing out to his guilt. The sentence awarded to him is also proper considering the facts of the case. Hence, the appeal is dismissed.