State of Goa vs Kashinath Sawant Pereira

N.A. Britto, J.—This is a State''s appeal and is directed against Judgment dated 27-12-2007 of the learned J.M.F.C, Panaji, acquitting the accused under Sections 504, 325 and 506(ii) I.P.C.

Heard Shri C. A. Ferreira, the learned Public Prosecutor on behalf of the Appellant and Shri D. Gaonkar, the learned Counsel on behalf of the Respondent/Accused.

The complaint filed by Manguesh Sawant/PW1 was investigated by PSI Parab of Panaji Police Station, and a charge-sheet was filed against the accused with an allegation that on 22-8-2004 at about 13.00 hours at Odxel, Taleigao, the accused insulted the said Manguesh Sawant/PW1 by giving abuses and voluntarily caused grievous hurt to him with an iron rod and also threatened to kill him.

Charge was accordingly framed and explained to the accused. The accused pleaded not guilty and claimed to be tried. The case of the accused in his statement recorded u/s 313 Cr.P.C. (Code, for short) was that he was assaulted by Manguesh Sawant/PW1 and Rama Sawant/PW2 with fist blows and when he had lodged a complaint, it is he who was arrested and that both the said witnesses had lodged a false case against him. The accused produced no evidence in support of his case.

There is no dispute that Manguesh Sawant/PW1 and Rama Sawant/PW2 are cousins and the accused is their neighbour and their houses are situated on either side of a pathway regarding which there is a dispute between them. The accused has to pass by the said pathway to go further to his house. Both the parties have also not been on talking terms for about 10 years prior to the incident, on account of the said dispute regarding the pathway. Presumably, they are all mundkars in the property of their landlord and the said pathway in fact belongs to the landlord. The house of Manguesh Sawant/PW1 is on the right side of the said pathway and the house of the accused is on the left side of the pathway and the accused has to cross his house, to go to his residential house.

The prosecution examined the said Manguesh Sawant as PW1, his cousin Rama Sawant as PW2. As per the case of the prosecution, there were two eye witnesses to the incident, namely, one Janki and one Devaki. The latter was examined as PW3 but did not support the case of prosecution and therefore was cross-examined by the prosecution. The other was not examined. Prosecution also examined Ramnath as PW4, a relative of the said Manguesh Sawant/PW1 who was a panch witness.

The medical certificates were produced on record with no objection from the accused vide application u/s 294 Cr.P.C. dated 26-12-2007 and the said medical certificate shows that the said Mangeush Sawant had one CLW of 3 x 1 x .5 cms. on the left side upper lip and avulsion of upper left first tooth. The first injury was described as simple, and the second was described as grievous. In the remarks column, it was stated that the said Manguesh Sawant/PW1 was examined with history of assault on 27-8-2004 at 1.00 p.m. The said Rama Sawant had one CLW of 2.5 x 0.5 cms. on the left ear lobule, injury which was described as simple in nature. He too was examined with history of assault by rod on 22-8-04 at 1.00 p.m.

The learned trial Court acquitted the accused because Devaki/PW3 who was an independent witness from the locality had not supported the case of the prosecution. The learned Magistrate held that in the absence of independent witnesses she found the involvement of the accused doubtful. The learned Magistrate conceded that the medical certificate showed the injuries on the said complainant but further held that the involvement of the accused was doubtful. The learned Magistrate further held that merely on the basis of the evidence of interested witnesses the involvement of the accused could not have been proved. It appears that several cases were cited before the learned Magistrate and the learned Magistrate took note of the same and amongst those cases are the case of Devi Dutt and Others Vs. State of Uttaranchal, wherein it was held that the evidence of interested witnesses cannot be discarded on the ground that other witnesses from the locality were not examined. The other was the case of Abdul Rashid Abdul Rahiman Patel and Ors. v. State of Maharashtra 2007(5) AIR Bom R 177 wherein it was held that if evidence of witnesses is found credible, consistent and corroborated by medical evidence, their evidence cannot be discarded on the ground that they were interested persons but the learned Magistrate failed to draw any inspiration from the said cases. The learned Magistrate noted that the said cases were not applicable to the present case, as the present case was not regarding a serious offence u/s 302 of I.P.C. whereby it was for the accused to show how the injuries were inflicted on the accused.(sic. victim?)

As already stated, the accused produced no evidence in support of his defence but at the time of arguments in this appeal, Shri Gaonkar, the learned Counsel appearing on his behalf, has submitted a case paper of Goa Medical College to support the case of the accused that he was assaulted. It is the submission of learned Counsel Shri Gaonkar that the said case paper be taken as additional evidence u/s 391 of Cr.P.C. There is no explanation from the accused why the case paper was not produced by the accused when the prosecution filed an application on 26-12-2007 to produce medical certificates of the injured. There is also no explanation from the accused as to why it was not produced by him along with his statement recorded u/s 313 of the Code. There is one entry made on the said case paper which shows that the patient was examined on 30-8-2004 with history of assault on 22-8-2004 with sharp object with injury to the right leg which was sutured in the casualty and the patient was in custody thereafter. However there is no record of 22-8-2004 inasmuch as the name of the patient mentioned on the case paper is Kashiram Sawal which also does not tally with the name of the accused. The said case paper shall form part of paper book, but for reasons stated, I am not inclined to give any credence to the said case paper produced at the time of argument.

Shri Ferreira, the learned Public Prosecutor has conceded, and in my view fairly, that the prosecution does not press for their case against the accused under Sections 504 and 506(ii) I.P.C. but learned Public Prosecutor submits that there was absolutely no reasons for the learned J.M.F.C. to have acquitted the accused u/s 325 I.P.C. when the evidence of both the witnesses examined by the prosecution, namely Manguesh Sawant/PW1 and Rama Sawant/PW2 was convincing and consistent and was sufficiently corroborated by medical evidence. Learned Public Prosecutor further submits that the fact that Devaki/PW3 had not supported the case of the prosecution, was not fatal to the case of the prosecution which was otherwise corroborated inter se by Manguesh Sawant/PW1 and Rama Sawant/PW2, and also by medical evidence.

On the other hand, Shri Gaonkar, learned Counsel appearing on behalf of the accused submits that the overall evidence led by the prosecution could not be believed inasmuch as no injuries as described by the said two witneses could have been caused in a manner stated by them. Learned Counsel further submits that in case the accused had hit the iron rod it would have been with some velocity and there would have been fracture at least of the jaw, and that there was no injury on the lips of Manguesh Sawant/PW1. Learned Counsel further submits that Devaki/PW3 having turned hostile to the case of the prosecution it was expected of the prosecution to have examined at least the said Janki. Learned Counsel submits that it is the accused who was assaulted by both the said witnesses and he had filed a complaint against the accused.

There is no doubt that there has been enemity between the families of both the injured witnesses and the accused for over 10 years on account of the dispute as regards the pathway. Enemity is always a double-edged weapon. Often it provides a motive for false implication. It also provides motive and incentive for making an attack. Merely because there is enemity between the witnesses, on the one hand and the accused, on the other hand, is not sufficient to throw over-board the testimony of the witnesses, who are stated to be on enemical terms unless there is further material to show on which the testimony of such witnesses can be doubted. Prudence requires that when there is enemity between the prosecution witnesses and the accused, the evidence of such witnesses has to be scrutinized with greater care, which means that the evidence has to be tested more fully on the crucible of probabilities. The same principle is followed when witnesses are related to one another. The evidence of such witnesses cannot be rejected because the witnesses were related to one another. The Court is certainly required to scrutinize their evidence closely and to find out whether they have deposed the true facts. Related witnesses would be certainly interested to see that the real offender is booked and are not expected to leave out real culprits and rope in innocent persons.

The Apex Court in the case of Abdul Rashid Abdul Rahiman Patel and Ors. v. State of Maharashtra (supra) had stated that in a criminal trial merely because a witness is interested, his evidence cannot be discarded if the same is otherwise found to be credible. The Court had further stated that when the evidence of interested witnesses was consistent and corroborated by medical evidence, it was not possible to discard the same on the ground that they were interested persons. The learned trial Court ought to have followed the above principle in this case as well more so because the offence committed by the accused was not of a high degree like murder but u/s 325 I.P.C. only. It is true that in all criminal cases the prosecution is expected to prove its case beyond reasonable doubt but in cases of this nature, a higher degree of proof cannot be called for, which is required in more serious offences.

Manguesh Sawant/PW1 had stated that he knew Rama Sawant/PW2 who was his cousin brother and that they were using the said pathway from ancestral times. He had stated that on 22-8-2004 at about 1.00 p.m. the accused was heavily drunk and was abusing him with bad words such as Chedeacha. He stated that he could not utter the other abuses as they were very filthy. He stated that he started his motor-cycle to bring his mother from Taleigao and at that time the accused brought an iron rod and attempted to assault him and at that time he took his head back in order to save himself from the blow of the iron rod which then hit against his upper jaw and he lost his front tooth and blood started oozing from the jaw. He stated that he then got down from the motor-cycle and parked it, and Rama Sawant/PW2 reached at that place and tried to separate him from the accused and when Rama Sawant/PW2 was attempting to separate them, the accused assaulted Rama Sawant/PW2 with iron rod on his left ear due to which the said Rama sustained a cut injury to his ear and blood started oozing out. He also stated that at that time the accused threatened him that he will kill him and then he and Rama Sawant/PW2 came to Panaji Police Station, and from there they were sent for medical treatment at GMC, Bambolim, and then he came back to the Police Station and lodged the complaint. He identified the signature on the said complaint. He also identified the iron rod which was used in the assault and which was found on the spot and which was attached by the Police under a panchanama on the same evening. In cross-examination he admitted about the enemity. He also admitted that Ramnath who was subsequently examined as PW4 was the father of Tulsidas who was his cousin brother and further admitted that the relations between the said Ramnath and the accused were strained as the accused abuses the said persons under influence of liquor. In further cross-examination he stated that as he was passing by that side the accused was giving bad words but without taking his name, and at that time there were family members in his house and in the neighbouring houses also there were people. Regarding the said Janki and Devaki, he stated that he was not aware whether they were on talking terms with the accused but stated that they had witnessed the incident. In further cross-examination he stated that the accused had threatened to kill him or Rama Sawant/PW2 and further stated that there were number of persons present when the alleged incident took place and the said Janki and Devaki had gone to the Police Station and given their statements. He denied the suggestions that the accused had not assaulted him or that he had deposed falsely.

Rama Sawant/PW2 had stated that the accused resides in the same ward where he resides and that on 22-8-2004 at 1.00 p.m. when he was in his house, he heard some quarrel going on near his house between Manguesh and the accused, and when he came out to see what was happening, the accused was having an iron rod in his hand and with it the accused assaulted his brother. He stated that he went to the rescue of his brother and at that time the accused said chedechea tucca jito martolo, sodchona, and the accused lifted the iron rod to hit him and in order to save himself, he turned and at that time the iron rod hit his ear and he suffered an injury. He also stated that Manguesh had suffered injury to his mouth and one of his teeth got dislocated. He also stated that the wife of the accused came on the spot and took him away to his house and the accused was abusing and threatening them saying jito martolo, while he was going away towards his house. He admitted about the dispute regarding the pathway and further stated that his left ear lobe was sutured at GMC, Bambolim. He identified the said iron rod shown to him before the Court. In cross-examination he stated that the accused was abusing them, by referring to their names. He further stated that the threats to kill were addressed to him and his cousin brother. He was confronted with the police statement where such a statement was not recorded and he gave no explanation for the said omission. He stated that when he was assaulted by the iron rod, the accused was in front of him, to his right side. He denied the suggestion that the said iron rod was produced by him and his cousin brother, to the police.

Ramnath/PW4 stated that he had acted as a panch witness for the scene of offence panchanama on 22-8-2004 at Odxel Taleigao at the request of Police, and, Sanjay Kuncolienkar was the other pancha. He stated that the panchanama was conducted on the pathway in front of the house of the accused. He stated that he saw a motor-cycle parked on the pathway but did not recollect its registration number. He stated that an iron rod was recovered from the mud and the bushes and the same was attached by the Police. He identified the said iron rod. However in cross-examination he stated that he usually returns home at about 6.00 p.m. He further stated that the panchanama was in progress when he reached the spot. He further stated that he was not aware of the contents of the panchanama but it was read to him though he did not remember about it, then. He identified his thumb impression on the said panchanama and stated that he did not know who had signed at the place where there was a signature on the said panchanama. P.S.I. Parab/PW5 confirmed the registration of the complaint from Manguesh Sawant/PW1. He also confirmed conducting the scene of offence panchanama in the presence of Ramnath/PW4 and Sanjay Kuncolienkar and further stated that it is the said complainant who had shown the place where he was assaulted, which was a pathway, in front of the house of the accused, where there was a motor-cycle parked bearing No. GA-01-0913, and the complainant had pointed out to the iron rod which was seen fallen in the bushes and mud on the said pathway, by the side.

That the accused was assaulted either by Manguesh Sawant/PW1 or Rama Sawant/PW2, is not a case put by the accused to either of them. The explanation given by the accused to the injuries on Manguesh/PW1 and Rama/PW2 can be seen in the cross-examination of ASI Parab/PW5 and that is that they were caused in the scuffle when Manguesh/PW1 and Rama/PW2 assaulted him. I am unable to accept the submission of learned Counsel for the defence that Rama Sawant/PW2 could not have seen the accused assaulting Manguesh Sawant/PW1, if he was inside his house, as stated by him. It needs to be noted that there were bad words given by the accused to Manguesh Sawant/PW1, and on hearing those bad words, Rama Sawant/PW2 could have come out of the house and seen the assault on Manguesh Sawant/PW1. I am also not able to accept the submission of learned Counsel that there was no outer injuries on the said Manguesh Sawant/PW1. In fact, the medical certificate shows that there was a CLW on the left side of upper lip, and then there was an avulsion of the left upper first tooth. The evidence of Manguesh Sawant/PW1 and Rama Sawant/PW2 as far as the main assault is concerned was in conformity with the earlier versions given by them and both of them had corroborated one another''s versions. Moreover their versions were fully corroborated by medical evidence. It may be true that either of them have not stated as to what the accused did with the iron rod with which they were assaulted, but the fact remains that it was attached from the scene of offence and has been sufficiently identified by them as the weapon used by the accused. The panchanama of attachment of the said iron rod is substantially corroborated by the said Ramnath/PW4 who is otherwise related to the said injured. Devaki and Janki were the neighbours of the parties. It is not unknown that when incidents like this take place in villages, the neighbours do not prefer to take sides and it is for that reason that Devaki did not wish to support the prosecution case, and probably Janki was not examined for that very reason. The Apex Court way back in State of U.P. Vs. Anil Singh, had noted that public are generally reluctant to come forward to depose before the Court and that it was not correct to reject prosecution version only on the ground that all witnesses to the occurrence were not examined or there was no corroboration by independent witnesses if the case made out was otherwise true and acceptable.

Suffice it to observe that the versions given by both the injured witnesses were consistent and corroborated by medical evidence. The injuries found on them were also compatible with the versions given by them and incompatible with the explanation given by the accused and that was more than sufficient evidence for the prosecution to prove its case beyond reasonable doubt against the accused u/s 325 I.P.C.

Consequently, the appeal succeeds. The impugned Judgment is hereby set aside and the accused convicted u/s 325 I.P.C.