No Acts & Articles mentioned in this case
CRIA-9-2022.DOC
Maria S.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 9 OF 2022
Shri Aman Kavitiya
S/o Gopal Kavitiya
Aged 21 Years, Bachelor, Driver
R/o. C/O.Mrs. Maria Ibrahim Fernandes,
H.No.313/2, 4
th
Ward,
Colva, Salcete, Goa
(Presently in Central Jail Colvale) ...Appellant
Versus
State (through)
1. Public Prosecutor
High Court of Bombay at Goa
Porvorim-Goa
2. Police Inspector
Colva Police Station
Colva Goa
…Respondents
Mr. Rohan Desai, Advocate for the Appellant.
Mr. S. G. Bhobe, Public Prosecutor for the Respondents.
CORAM: M. S. SONAK &
BHARAT P. DESHPANDE,JJ.
DATE : 27
th
September 2022
ORAL JUDGMENT: ( Per Bharat P. Deshpande, J)
By way of present appeal under Section 374 of Cr.P.C., the
appellant/accused is challenging the Judgment and order dated
23/12/2021 arising out of Sessions Case No.10/2018 decided by
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the learned Additional Sessions Judge, Margao whereby the
appellant was found guilty for the offence punishable under
Section 302, 394 and 201 of I.P.C. and accordingly sentenced to
undergo imprisonment for life and fine of 1,00,000/- for the₹
offence punishable under Section 302 of IPC and in default to
undergo simple imprisonment for two years. Similarly, for the
offence punishable under Section 394 of IPC, the accused has
been sentenced to undergo rigorous imprisonment of 10 years
and to pay a fine of 25,000/- and in default to undergo simple₹
imprisonment for one year. For the offence punishable under
Section 201 of IPC, the accused is directed to undergo rigorous
imprisonment for two years and to pay a fine of 10,000/- and in₹
default to undergo simple imprisonment for six months. All the
above sentences are directed to run concurrently.
2.On 09/03/2022, the appeal was admitted and the Registry
was directed to prepare a paper book as early as possible and to
place the matter for final hearing. Records and proceedings were
also called. Accordingly, after the preparation of the paper book,
the matter was taken up for final disposal.
3.We have heard the learned Counsel Shri Rohan Desai,
appearing for the accused and learned Public Prosecutor Shri S.G.
Bhobe appearing for the State at length. With the assistance of the
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learned Counsels, we perused the record and more specifically
reasons of the learned Trial Court while convicting the accused on
all counts.
4. The learned Counsel Shri Rohan Desai strenuously urged
that the case of prosecution is entirely based on circumstances and
prosecution has miserably failed to prove the circumstances
linking the accused to the commission of the offence and forming
a chain so as to consider him guilty. He submitted that on all
counts prosecution has failed and evidence brought on record is
not admissible and unacceptable in the eyes of law. In spite of this
the accused is found guilty on the reasons which cannot be
forming any conclusion about the involvement of the accused in
such offence. While elaborating such arguments he submitted
that the only material which has been relied upon by the learned
Additional Sessions Judge is the so-called recovery at the instance
of the accused. According to him, recovery under Section 27 of
the Evidence Act at the instance of the accused has been totally
disproved. The witnesses who deposed before the Trial Court
nowhere disclosed the exact words uttered by the accused while
making such disclosure statements before the recovery could be
effected.
5.The learned Counsel Shri Rohan Desai then submitted that
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prosecution tried to implicate the accused on the basis of last seen
theory which is also unacceptable. The witnesses examined in this
respect are totally shaken during cross-examination and the
evidence of these witnesses
inter se is destroying the case of the
prosecution. He submitted that all pancha witnesses examined by
the prosecution in this matter are closely related to the deceased.
Even the recovery of the knife is highly doubtful. He invited
attention of this Court to the evidence of certain witnesses which
clearly goes to show that the accused was already in the police
station two days before his arrest shown in the matter. Therefore,
he submitted that conviction of the accused on these counts
cannot be sustained.
6.The learned Public Prosecutor Shri S.G. Bhobe appearing
for the State though tried to submit that circumstantial evidence
has been brought on record by the prosecution, fairly accepted
that investigation in the present matter is shaky and doubtful.
7.He submitted that the statement of Anthony who actually
informed the Police on seeing the dead body was not recorded
and such witness was not examined for the reasons best known to
them. Articles found near the dead body as claimed in the
panchanama nowhere shows any fingerprint either of the deceased
or that of the accused so as to link him with the said offence. He
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then submitted that arrest of the accused is without any disclosure
and the investigating agency failed to show what was the material
collected against the accused for arresting him.
8.The submissions advanced by the learned counsel for the
parties fall for our consideration. The point for determination is
as under together with our findings on it.
Whether the circumstances brought on record by the
prosecution are forming unbroken link thereby pointing
finger only against the accused?
9.In all, 28 witnesses were examined by the prosecution. The
First Information Report was lodged against unknown persons. In
short, it is the case of the prosecution that on 20.01.2018 from
22:30hrs up to 07:15hrs on 21.01.2018 at Lover's Beach
Betalbatim, some unknown person committed murder of Shri
Baptista @ Batista Roy @ Batu D'Costa, son of Minguel Jose
D'Costa, aged 51 years, resident of Colva, by slitting his neck
with sharp object/weapon.
10.The wife of the deceased, Santana D'Costa/PW1 lodged a
missing report at 07:15hrs on 21.01.2018 at Colva Police Station
vide Exhibit-15 wherein she disclosed that on 20.01.2018 at
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around 15:30hrs her husband Batu left the house for his work as
usual. She contacted Batu on his mobile phone at 21:00hrs and
he assured her that he will be coming home shortly at around
22:00hrs. Since he did not return and after calling him on several
occasions on his mobile phone, she tried to search for him
alongwith her relatives all over Colva but could not find him.
The said Batu left home in his Maruti Van bearing No.GA-08-E-
2152 of white colour.
11.PW-23 Shri Anand Shirodkar, P.I. at Colva Police Station
received a phone call at around 11:00am from Deputy Sarpanch,
Village Panchayat Betalbatim Shri Anthony Fernandes who
informed that a dead body of a male person is seen lying at
Lover's Beach at Betalbatim in a pool of blood. He informed P.I.
Colva Shri Filomeno D'Costa/PW26 and thereafter proceeded to
the spot alongwith the staff. He then contacted Shri Anthony
Fernandes, Deputy Sarpanch who remained present at the spot
and pointed out the dead body of a male person lying below a
pine tree. Upon inquiry at the Police Station, it was revealed that
the said person by name Baptista alias Batu was missing from the
previous night. Since the body was found in an injured condition
suspected to be homicidal, he deputed staff to guard the scene
and returned to the police station and registered UD. No.5 of
2018 under Section 174 of Cr.P.C and after verifying the missing
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person report No.1/2018 together with the description of the
missing person it was found to tally with the description of the
dead body of the deceased. Accordingly, he contacted relatives
and proceeded to the spot for the purpose of conducting
panchanama.
12.Admittedly, Anthony Fernandes who spotted the dead body
at Lover's Beach Betalbtaim, is not examined before the trial
Court by the prosecution and there is no explanation about it,
though his name is figuring as CW8.
13.PW23, P.I. Shirodkar then conducted scene of offence
panchanama in presence of PW2-Joaquim D'Costa and Prince
Fernandes and attached various articles which were found around
the dead body, which include two empty “Budweiser” beer
bottles,(MO-1, Exhibit-I), small “Teachers” plastic water bottle
containing some greenish colour liquid (MO-2, Exhibit-2), silver
foil container with 2 blue colour polythene bags (MO-3, Exhibit-
3), navy blue colour cover having words as 'LORD' 'Stainless
rostfreilnox' (MO-4, Exhibit-4), two pieces of old nylon strings of
blue colour (Exhibit-5), one white colour small plastic empty
bottle having words 'Clinic spirit'(MO-6, Exhibit-6), a control
sample of soil (Exhibit-7), blood-stained soil sample collected
near the dead body (Exhibit-8), one Micromax mobile phone of
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black colour having 2 SIM cards (MO-9, Exhibit-9).
14.P.I. Shri Shirodkar then conducted an inquest panchanama
(Exhibit 21) during which he observed a sharp, deep and broad
injury on the right side of the neck of the deceased. On the basis
of above observations, he found that it was homicidal case and
therefore he lodged a complaint against unknown persons for
committing the murder of Batista alias Batu by slitting his neck
with a sharp object/weapon which was registered under Crime
No.11 of 2018.
15.PW26 Filomeno Costa, P.I. Of Colva Police Station then
took over the investigation, recorded the statement of some of the
witnesses and on 23.01.2018 arrested the accused under arrest
panchanama at Exhibit 32. He then deposed that during an
interrogation of the accused, he voluntarily disclosed in Konkani
that he is ready to show the place where he concealed the alleged
knife, articles of deceased Batu alongwith cash, gold ornaments,
his clothes used at the time of the commission of the alleged
offence, as well as the vehicle used by him. Accordingly, he
secured presence of two panch witnesses and in their presence, the
accused made a disclosure which was recorded under the
panchanama under Section 27 of Evidence Act and thereafter
accused led them to three different places. First of all, the knife
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with blood stains was recovered at the instance of accused which
was kept in an envelope and sealed. Thereafter, accused took
them to a place and after digging, removed one polythene bag
containing 3 gold finger rings, one gold chain and one gold
bracelet alongwith cash which belonged to the deceased. All these
articles were attached. Thereafter, accused led them to another
place where he had thrown his clothes. The accused pointed out
said place and showed the clothes which were found to have
blood stains and thereafter attached under the panchanama.
Finally, the accused took them to another place wherein he had
shown the bike which he had used allegedly at the time of the
commission of the offence. All these articles were attached during
the panchanama. The accused was then sent for medical
examination and his blood group was found as B Rh (negative)
whereas that of the deceased was found as A Rh (positive). It is
also claimed that the knife and clothes of the accused were sent
for chemical examination and the report from the laboratory
shows the presence of human blood on it and on conducting
DNA examination, it was matching with the blood group of
Batu, i.e. deceased.
16.On these counts, charge-sheet was filed before the learned
Magistrate who committed it to the Sessions Court.
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17.Charges were framed against the accused (Exhibit-11) and
upon explaining, the accused pleaded not guilty and claimed to
be tried. Prosecution examined in all 28 witnesses in support of
the said charges. The accused denied the evidence led against him
under Section 313 Cr.P.C and claimed that he had been falsely
implicated by two other persons who were close to the deceased.
The accused did not step into the witness box. Learned Sessions
Judge found that the circumstances brought on record by the
prosecution are all proved against the accused and accordingly, he
has been found guilty on all counts.
18.The circumstances which are considered by the learned
Additional Sessions Judge as found in the discussions are as
under:-
I)Homicidal death.
II)Missing of deceased Baptista alias Batu
III)Scene of occurrence panchanama
IV) Recovery of dead body and its identification.
V) Arrest of accused.
VI) Recovery of knife, bag containing gold ornament and
mobiles of the deceased and clothes of the accused and Dio
scooter at the instance of the accused.
VII) Presence of blood of deceased on the clothes of
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accused as well as on the knife.
VIII) Purchase of knife by the accused.
IX) Recovery of Sim card, pan card, Aadhar card, voter
card of the deceased at the instance of the accused.
X) Last seen together.
XI) Motive to commit crime.
XII) Statement of accused under Section 313 CrPC.
19.From the material brought on record and as argued by the
learned counsel Shri Rohan Desai for the accused, first of all, we
clearly observe and record our anguish about the manner in which
investigation in the present matter has been carried out and that
too without collecting proper evidence and examining the
witnesses. The record itself goes to show and as deposed by
PW26 – Filomeno Costa that the accused was placed under arrest
on 23.01.2018 around the morning. At page 30 of the cross-
examination of PW26, he deposed that the accused was brought
to the police station as a suspect on 23.01.2018 at around
08:45am by the staff of the police station. He instructed the said
staff to get suspect persons and accordingly the staff brought the
accused alongwith other suspected persons. Upon interrogation,
accused confessed his crime and as such he was arrested. This
statement of the I.O. is found contrary to the prosecution witness
who was examined as PW20 by the name Attar Allabaksh. The
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said Attar deposed that he is in the construction business and he
is owning one Tata Ace rickshaw bearing no.GA-08-U-9043. He
identified the accused and claimed that on 10.01.2018 he
requested the accused to take his rickshaw to the RTO office at
Arlem for the passing of the said vehicle as his driver was not
available. On 20.01.2018 the accused contacted him and
requested him to engage him as a driver and accordingly he
agreed.
20.On 21.01.2018 at around 08:30am accused requested him
for some amount for filling diesel in the rickshaw to drop some
caterer from Sernabatim to Verna and thereafter accused parked
the rickshaw at his construction site. When he tried to call the
accused on phone at around 02:30-3:00PM on 21.01.2018 he
was informed by the police that the accused was at the police
station and to collect the keys from the police station.
Accordingly, he went to the police station and collected the keys
of his vehicle. This is the prosecution witness who deposed that
on 21.01.2018 accused was at Colva Police Station and he
collected the keys of his vehicle from the accused after visiting the
Colva Police Station. Thus, it is clear from the record that the
accused was at the police station detained by the police on
21.01.2018. However, his arrest is shown as only on 23.01.2018.
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21.In the missing report lodged by PW-1 dated 21.01.2018,
she has described the details of her husband alongwith the clothes
he was wearing and the gold ornaments. She disclosed that the
deceased Batista was wearing a T-shirt, blue Jeans pants and shoes.
Similarly, he was wearing two finger rings, one gold chain and one
gold bracelet. It is interesting to note that PW-6 Alex Dias who
acted as panch witness at the instance of the police deposed that
on 23.01.2018 accused was produced before him and voluntarily
stated that he has taken gold ornaments of the deceased which he
is ready to show. PW-6 Alex Dias then claimed that the accused
took them to Majorda and then to Utorda and thereafter accused
led them to an inside place. Thereafter, the accused dug a place in
the field by the side of the road and removed a plastic bag of
white colour. The bag was given to P.I. who opened it and
thereafter they saw two mobiles, three gold rings, one bracelet,
one chain and one dollar. All these articles were packed and
sealed.
22.The interesting thing is that instead of two gold finger
rings, they found three finger rings. The prosecution has failed to
explain how the third finger ring appeared specifically when PW-
1 claimed that the deceased was wearing two finger rings.
23.Another interesting aspect with regard to the so-called
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recovery of weapon, i.e. knife, PW-6 deposed that accused after
making a disclosure about commission of the crime, voluntarily
agreed to show the place where he threw the knife. Accordingly,
accused led them to Betalbatim and from that place they took left
and went to the place of the incident. He then deposed that from
there, they went ahead by walking a distance of 100mts where the
accused showed a place where he threw the knife. The accused
searched for the knife at the said place and then found it. The
accused removed the knife which was having blood stains and it
was handed over to the P.I. After measuring the knife, it was
packed in an envelope and sealed.
24.In normal circumstances, when a knife is packed by placing
it in an envelope and sealed, it is not possible to see such a knife
unless the seals of the packet or the envelope are broken and the
envelope is opened by cutting. It is not the case of the
investigating agency that the said envelope was opened at any
point in time till it was forwarded to the laboratory for the
purpose of examination.
25.However, prosecution witness examined as PW13 Sainath
Bandodkar, deposed that he is the owner of a general store known
as “Sai General Store” situated near crossroad at Colva. He
deposed of knowing the accused as his customer as the accused
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used to visit his shop. He then deposed that on 18.01.2018 at
around 4:30PM accused came to his shop and asked for a knife.
He showed two varieties of knives out of which accused took one
having black handle, costing 75/-. The said knife was having₹
stainless steel blade and covered with a plastic pouch. He then
stated that he will be able to identify the said knife and the pouch
if shown to him in the Court. Again, interestingly, when MO
No.22 was shown, PW13 Sainath identified said knife as the one
purchased by the accused from his shop. Similarly, he identified
the pouch as MO No.4. The question that the prosecution failed
to answer is about the cover of the said knife as it is not the case
of the panch witness/PW6 that the knife was recovered alongwith
its pouch.
26.The matter does not end here as far as PW13 Sainath is
concerned as during cross-examination, he made certain
statements which clearly go to show that there was tampering
with the so-called knife recovered at the instance of the accused.
He admitted on page 3 of his deposition as under:-
“The police had come to my shop to record my statement.
The police did not give any prior intimation that they
would visit my shop to record my statement. The police
showed me the knife and asked me if I has sold it and I
answered in the affirmative. I say that before I answered
the police, I verified from my stock if I was selling the same
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type of knives. I do not have any record of the customers
to whom I had sold the knives. I say that I had compared
the knife with the knives in my stock and as they were
identical, I answered the police in the affirmative. The
police then told me that Batu was murdered with the said
knife. I was aware prior to that time that Batu was
murdered with a knife.”
27.Such deposition of PW13-Sainath, which has not been
disputed by the prosecution by conducting re-examination,
clearly goes to show that the modus adopted by the police is to
carry the knife to the said shop and by showing it to the so-called
owner of the shop and then asking him as to whether he sold it to
anyone. This means the knife was taken out of the sealed
envelope and shown to the witness by taking it to his shop. He
compared the said knife with the stock available in his shop and
when found similar, answered in the affirmative. This procedure
adopted by the Investigating Officer is clearly unheard of and
shocking, as the prosecution is supposed to keep the weapon in
sealed container for forwarding it to the laboratory as it was
referred by the panch witness-PW6 that such knife was having
some blood stains when it was recovered at the instance of
accused. When such knife is taken out from the sealed envelope
subsequently, tampering with it is more evident. Therefore, the
so-called blood report which the prosecution is heavily relying
upon as far as said knife is concerned, is of no substance at all, in
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view of clear case of tampering with the said knife before it was
forwarded to the laboratory for testing.
28.Evidence of PW13 Sainath is also unbelievable as it is
humanly impossible to remember the faces of the customers when
he admitted during the cross-examination that around 400-500
customer per day visit his shop. It is again interesting to note that
PW13-Sainath gives a specific date and time when the accused
allegedly visited his shop and purchased the so-called knife. The
presence of the pouch over the knife and identified by PW-13 in
the Court as MO No.4 is again highly suspicious as it is not the
case of the investigating agency that such pouch was also
recovered alongwith the knife at the instance of the accused.
29.However, it is the case of the prosecution that such pouch
was found near the dead body alongwith other articles. For this
purpose PW2-Joaquim D'Costa disclosed that he acted as panch
witness for the scene of offence panchanama on 21.01.2018 and
at that time apart from the dead body, they found beer bottles,
plastic bottles, empty silver foil container, blue colour cover
having words Lord Stainless rustfree inox, one water bottle
containing greenish liquid, one small plastic bottle with label
clinical spirit, 2 nylon ropes, 3 Kingfisher beer bottles, 2
Budweiser beer bottles and one Micromax mobile with 2 SIM
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cards. Thus, it is clear that the so-called pouch at MO no.4 was
not recovered at the instance of the accused but it was found near
the dead body of the deceased. The prosecution tried to link the
testimony of PW13 by trying to identify such pouch and also by
showing the knife to him, which clearly goes to show that there
was clear-cut tampering of the sealed envelope in which knife was
packed and sealed on 23.01.2018 in presence of PW6-Alex Dias,
panch witness.
30.Further cross-examination of PW13 Sainath show major
contradictions which were brought on record wherein he was
found to have stated while recording his statement under Section
161 of Cr.P.C. that he came to know through the media and the
police that Aman Kavitiya/accused had murdered Batu by slitting
his neck with a knife and had fled away. He was also found to
have stated to the police that the accused had fled away with the
belongings of the deceased. Finally, he admitted that there is no
special mark on the knife to indicate that it was the one sold by
him. Therefore, it is clear from PW13's deposition that he is a
got-up witness only to show the link and identify the so-called
pouch of the knife found near the dead body and to implicate the
accused.
31.As stated earlier, it is difficult for a shop-keeper to identify
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the face of a person alongwith his name and other details as well
as the date and time when such person is visiting the shop and
purchasing a particular article. It is not at all the case of PW13
that accused was a regular visitor at his shop. Thus, linking the
accused with the statement of witness no.13 regarding purchase of
such knife is highly improbable. Since this witness clearly
deposed that knife was shown to him at his shop and thereafter he
handled the said knife by comparing the knives available in his
shop, clearly shows that the investigating agency tampered with
the sealed packed and more particularly with the knife and
therefore possibility of finding any blood stains on the said knife
and that too with the DNA of the deceased is highly suspicious.
There is no explanation coming forward from the Investigating
Agency about this aspect.
32.Another disturbing aspect is with regard to the
identification of accused by a waiter and the items purchased by
the accused to be shared with the deceased. First of all PW11-Dr.
Andre Fernandes while conducting the post-mortem examination
deposed on page 3 as under:-
'
The time of death was assessed by me in context with the
contents of the stomach and it was within 6 hours of the
last solid meal intake which consist of 100gms of
masticated rice with red masala colour and rice is softened
vide entry no.21e'.
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33.Thus, it is clear that 100gms of masticated rice with red
masala colour and softened rice was found in the stomach
contents. However, the prosecution tried to project that the
deceased did not visit his house after he left his house on
21.01.2018 at around 3:30PM for his business work as usual.
This is deposed by PW1 Santana D'Costa, i.e. the wife of
deceased. She categorically stated that her husband left the house
at around 3:30PM and did not return. Usually Batu used to
return at around 10:00PM. She called Batu on his mobile and at
that time his mobile phone was not reachable. Thus, it is clear
that on that day after leaving the house at around 3:30PM, Batu
did not return home. However, the prosecution's own witness
Krishna Langde/PW28 deposed that he was working with Batu
and looking after Rent-A-Bike business at Colva. On 20.01.2018
at around 6:00PM he received a phone call from unknown person
asking for three bikes on rent and the said person told him that he
is calling from a place known as Cliff heaven. Therefore, he came
at the bike-stand at Colva beach and then went to Cliff heaven
which is at Gandaulim, Colva. At that time Batu was already
present there. He then handed over three bikes on rent to the
customer at Cliff Heaven. Batu then called Aman/accused to pick
him up. After some time accused came on a white colour Dio.
He, alongwith Batu and Joemiro/PW19 went on accused's Dio
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bike together. He was dropped at the bike-stand at Colva by the
staff of Cliff Heaven. Thereafter, he went with Jeomiro to take
his buffalo which was tied up to a tree at Sucobhat, Colva and
then he went home and came back to the bike-stand. After
sometime he called Batu on his phone and asked whether he
reached home and accordingly Batu replied saying that he reached
home.
34.During the cross-examination, PW28-Krishna specifically
deposed that he was taken to the police station from the place of
crime on the same day and the police were questioning him. He
was kept at the police station for 2 to 3 days. He then claimed
that he did not recollect what type of clothes accused was wearing
on that day.
35.Jeomiro Fernandes is the other person examined by the
prosecution as PW-19. He deposed that on 20.01.2018 during
evening hours he went to play at Cossa ground and after finishing
at around 6:00PM one Krishna came there and requested him to
accompany him to bring his bull from Fatricoddem to his house.
Thereafter, he dropped Krishna and came to the banyan tree
(voddacode), opposite Hotel Silver Sand Colva. Batu was present
at the said spot and Batu told him that three bikes were to be
delivered to the customers near Cliff Haven. In the meantime,
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Krishna also reached Wadakade. He, alongwith Batu and Krishna
took 3 bikes to Cliff Heaven. After delivering the bikes, Batu
telephonically called accused to come and collect them.
Accordingly, accused came on a Dio scooter near Cliff Heaven.
He, alongwith Batu came on a Dio scooter driven by the accused.
Accused first dropped Batu at his house and thereafter dropped
him near Voddacode from where he took his scooter and went
with him. Thus, according to PW19-Jeomiro Fernandes, accused
dropped Batu at his residence during the evening time and
thereafter the accused dropped him near Voddacode. Thus,
according to PW19-Jeomiro and PW28-Krishna, accused visited
his house during the night time on 20.01.2018 whereas PW1
who is the wife of accused flatly denied about the presence of
accused at his house during that night. This further disproves the
theory of last seen together.
36.It is interesting to note that PW3-Raju Thapa claiming to
be a waiter in House bar and restaurant at Colva near church
claimed that he is working at the said bar & restaurant for the last
3 years and residing in the restaurant room. He then claimed that
he knows the accused. Further, PW3-Raju claimed that on
20.01.2018 at around 7:15PM accused came to the restaurant
wearing 3/4
th
blue jeans half pant and T-shirt with hood. He then
claimed that sometimes accused used to come alone and
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sometimes with their regular customer Batu. Thus, it is the
contention of PW3-Raju that deceased Batu alongwith accused
used to visit their bar & restaurant on some occasions. This is
necessary to note in connection with further deposition of PW3-
Raju.
37.PW3-Raju then claimed that on 20.01.2018 accused came
to their bar and asked him as to what brand of alcohol Batu used
to drink. Accordingly, he told accused that Batu takes Mansion
House brandy. Accordingly, accused ordered for one chicken
crispy, 2 Budweiser beer bottles and one quarter of Mansion
House brandy.
38.First of all, it is doubtful as to why the accused will ask the
waiter/Raju/PW3 about the type of liquor which Batu used to
drink. This is for the simple reason that according to PW3-Raju,
accused alongwith Batu used to visit their bar on some occasions.
Such visit of accused alongwith deceased Batu to the bar was
obviously for consuming alcohol and eating food and not for any
other purpose. Thus, the question which crops up is as to why
accused will ask a waiter about the brand of liquor which Batu
used to drink, when the accused himself was accompanying
deceased to the same bar for consuming liquor. In such a
scenario, it was expected that the accused knew the type of liquor
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which the deceased was consuming normally. There was no
question of asking the waiter about the brand of liquor which the
deceased used to consume. Therefore, such statements of PW3-
Raju Thapa including his contention about the clothes which
accused was wearing on that day is highly unacceptable. This is
stated so for the simple reason that through this witness the
prosecution even tried to identify the empty beer bottles, plastic
containers and other articles which were found near the dead
body as supplied by him to the accused.
39.PW3-Raju Thapa then claimed that accused remained near
the hotel for around 15 to 20 minutes and after handing over the
food packets and beverages, he left the said hotel at around
7:45PM. He claimed that two plastic carry bags were given to the
accused containing food packet in silver containers and the
accused made payment of 460/-. He then claimed that his₹
statement was recorded by the police on 26.01.2018, i.e. after 6
days from the date of alleged incident. However, it is quite
interesting to note the deposition of PW3-Raju as under:-
'
I was called by police to the place where Batu was
murdered. The place where Batu was murdered is a beach.
The police asked me whether the accused had come to our
hotel for taking parcel of food and whether the empty
container and the empty bottles found on the beach were
the same given to the accused. I identify the said empty
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container and the bottles found on the beach to be that
given to accused by me as food parcel. I say that the dead
body of Batu was lying on the beach. The said bottles and
the empty container was fallen by the side of the dead
body.'
40.Thus, it clearly shows that PW3-Raju who was working as
waiter at Colva near the church in a hotel known as House bar
and restaurant suddenly appeared and remained present at Lover's
Beach Betalbatim which is at a distance of 4-5kms. It is not
known as to how the police at that time gathered any information
that PW3-Raju was working in some hotel at Colva and he
handed over food packets and beverages to the accused on the
earlier night and the same were found near the dead body. If it is
accepted that Raju remained present at Lover's Beach where the
dead body was found, on his own, a question further remains as
to why police asked him as to whether the accused had come to
his hotel for taking food parcel and whether empty container and
empty bottles found on the beach were the same which he gave to
the accused.
41.At that moment, admittedly no offence was registered with
regard to murder. It is clear from the case of prosecution that at
the same time only a case with regard to unnatural death was
registered. After the panchanama of the scene of offence,
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attachment of articles found near the body and the inquest
panchanama, the concerned officer observed that it is a case of
murder. This aspect is deposed by PW23-P.I. Anand Shirodkar
which is referred earlier. However, at the cost of repetition,
PW23-Anand Shirodkar stated on page no.2 that after the dead
body was found on the said Lover's Beach, he went to the police
station and registered unnatural death vide Colva Police Station
UD No.5/2018 under Section 174 of Cr.P.C.. After verifying
Missing Person Report No.1/2018 and the description of missing
person, it was found tallying with that of dead body of the
deceased. Only thereafter he called relatives of the deceased and
proceeded to the spot for conducting the scene of offence
panchanama. He secured presence of 2 panch witnesses namely,
PW2-Joaquim D'Costa and Prince Fernandes and then
conducted the panchanama and attached various items found
near the body as discussed earlier. Thereafter, he conducted
inquest panchanama and forwarded the dead body for post-
mortem examination. Only then he observed in the preliminary
inquiry that it is a case of homicidal death and thereafter he
registered his complaint against unknown persons.
42.PW2-Joaquim D'Costa who is the panch witness for the
scene of offence panchanama stated on page no.2 that one person
by name Raju Bairali came there and had informed that he was a
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waiter in a bar by name House Bar at Colva and he had given two
blue colour plastic bags containing two Budweiser beer bottles,
chicken crispy in silver container, one Teacher's big bottle and one
small Teacher's plastic bottle containing Mansion House brandy
of one quarter to their regular customer by name Aman. Said
Raju identified polythene bag, two empty beer bottles, one empty
silver foil container, one empty Teacher's plastic water bottle and
one small Teacher's plastic bottle with greenish colour liquid.
43.Thus, PW2 also stated that PW3-Raju appeared at the spot
and disclosed that he has given some food items and beverages to
the accused. Said Raju also identified empty bottles and the silver
foil container at the scene. However, PW23-P.I. Anand Shirodkar
who conducted the scene of offence panchanama, is totally silent
about presence of PW3-Raju at the time of scene of offence
panchanama and more specifically identifying empty
bottles/containers/plastic bags, while deposing before the Court.
Being a police officer who conducted the scene of offence
panchanama, it was his duty to record this aspect in his
deposition. However, on perusal of scene of offence panchanama
which is at Exhibit-18 and more particularly typed copy at page
3, it is found recorded thus:
'While recording the panchanama police brought one male
person who upon asking disclosed his name as Raju S/o of
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Bir Baraili, age 22 yrs, who informed that he is the waiter
at House Bar at Colva and yesterday i.e. on 20/01/18 at
about 20.00hrs he gave two blue colour polythene carry
bag containing two “Budweiser” beer bottles, chicken
crispy in a silver foil container, one “Teachers” big water
bottle and one small “Teachers” Plastic bottle containing
“Mansion House” of one quarter to one Shri Aman who is
the regular customer of “House Bar”. On showing the
scene the said Raju identified two blue colour plastic
polythene carry bags, two “Budweiser” beer bottle empty,
one empty silver foil container, one empty “Teachers”
plastic water bottle and one small “Teachers” plastic water
bottle in which there is greenish colour liquid in it.'
44.Thus, it is the contention of prosecution that PW3-Raju
Thapa handed over the food items, i.e. chicken crispy and 2 beer
bottles and one quarter brandy bottle to the accused. It is further
their case that such plastic containers, empty beer bottles and 2
bottles which said Raju handed over to the accused were found
near the dead body of the deceased.
45.First of all, while conducting the post-mortem
examination, only rice contents were found in the stomach of the
deceased and no chicken contents. It is not known as to when
and where the deceased consumed rice during that night. It is not
the case of prosecution that cooked rice was ordered by the
accused from the said hotel. He only collected chicken crispy,
two beer bottles and one quarter Mansion House brandy.
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46.Admittedly, lot of garbage was found on the beach where
the dead body was located. This fact is admitted by PW2, PW3
and even the Investigating Officer. It is also interesting to note
that such food items were allegedly collected by the accused prior
to 8:00PM. However, the wife of deceased who was examined as
PW1 claimed that she called her husband at 9:00PM and he
received her call and told her that he will be returning home at
around 10:00PM. Thus, there is no link to connect statement of
PW3-Raju with regard to involvement of accused only because he
handed over some food packet, beer bottles and other articles to
him prior to 8:00Pm on that day. Interestingly, PW3-Raju Thapa
nowhere disclosed that accused purchased these articles or
specifically Mansion House brandy for the purpose of deceased
himself and that he was supposed to consume it alongwith the
deceased.
47.Cross-examination of PW3-Raju Thapa is only creating
serious doubt about the so-called last scene theory which the
prosecution tried to prove in this matter. He deposed on page 3
that on that night accused came alone on his scooter and placed
order for food and beverages. He then claimed that one Maruti
van was parked near the hotel on one side. He does not know
how many people were sitting in the said Maruti van and who
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were they. However, he claimed that he had not seen Batu
properly in the car but claimed that the said Maruti van was of
Batu.
48.He interestingly stated that on 20.01.2018 he had gone to
the beach and thereafter he was called by police on 26.01.2018
for recording his statement. Thus, deposition of PW3 Raju
Thapa with regard to the presence of accused at Colva at around
7:45PM and purchasing of food and beverages is not convincing.
Presence of PW3-Raju Thapa on the beach on 20.10.2018 and
more specifically during scene of offence panchanama and then
identifying the articles found near the beach is highly suspicious.
Neither PW23-P.I. Shirodkar nor PW26-P.I. Filomeno Costa
tried to explain about it. Therefore, attempt on the part of
prosecution to link such articles with the accused cannot be
accepted. PW2 during cross-examination on page 5 admitted
that there are coconut trees, bushes and pine trees at the sea-shore
at Lover's Beach. Dry coconut stems and leaves were seen fallen
near the coconut trees. He voluntarily stated that there was dry
coconut stem near the deceased. He then admitted that people
visiting the beach for picnic throw waste nearby which is seen
fallen. He admitted that he has not seen other bottles fallen in
the vicinity. A specific question was put to him that there were
many other bottles including Coca Cola, beer and other waste
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fallen around. He conveniently stated that he did not notice it.
Further, as far as presence of PW3-Raju and he identifying such
articles is concerned, PW2 deposed that he did not remember in
which language PW3-Raju had given information. He was
unable to tell the exact words used by Raju while giving such
information.
49.At this stage, it was observed that the photographs were
clicked while conducting scene of offence panchanama and more
specifically the body and the nearby area. On perusing such
photographs, it was found that no such bottles, plastic containers,
etc. were found near the body so as to accept the statement of
PW2 and PW3 and to link it with the accused.
50.Another circumstance which the prosecution tried to link
with the accused is the disclosure and recovery of knife, packet
containing gold ornaments and mobile of the deceased. Similarly,
the clothes of the accused allegedly used by him during
commission of alleged offence.
51.In this regard it is well settled proposition of law that
recovery of articles at the instance of accused is not itself proving
commission of offence. Such evidence is a corroborative piece
which needs to be linked with other circumstances. The
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disclosure alone would not automatically lead to the conclusion
that offence was also committed by the accused. What is
admissible under Section 27 of the Evidence Act is the
information leading to the disclosure and not any opinion formed
on it by the prosecution. Burden lies on the prosecution to
establish a close link between discovery of material object and its
use in commission of offence. Such disclosure under Section 27
of Evidence Act is a weak kind of evidence and it cannot be
wholly relief upon without supporting other circumstantial
material.
52.Learned counsel Shri Rohan Desai, for the appellant
placed reliance on the following decisions with regard to
circumstantial evidence and recovery on the basis of disclosure
made under Section 27 of Evidence Act, to elaborate his
submissions that the case of prosecution is not at all established
on this aspect.
a)
Mustkeem alias Sirajudeen v/s. State of Maharashtra
1
b) Vijay Thakur v/s. State of Himachal Pradesh
2
.
c) Mani v/s. State of Tamil Nadu
3
d) Santosh Pujari v/s. State
4
.
1 (2011) 11 SCC 724
2 (2014) 14 SCC 609
3 (2009) 17 SCC 273
4 2018 All MR (Cri) 1139
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e) Dular Munda v/s. State of Goa and Another
5
f) Sudhakar alias Sudharasan v/s. State represented by
the Inspector of Police, Srirangam Police Station,
Trichy, Tamil Nadu
6
.
53.Similarly, in the recent decision in the case of Shahaja alias
Shahajan Ismail Mohd. Shaikh v/s. State of Maharashtra
7
, the
Apex Court while discussing the scope of Section 27 of Evidence
Act has observed in paragraph 47 as under:-
'47. Thus, in the absence of exact words, attributed to an
accused person, as statement made by him being deposed
by the Investigating Officer in his evidence, and also
without proving the contents of the panchnamas, the trial
Court was not justified in placing reliance upon the
circumstance of discovery of weapon.
'
54.In the case of Sunil Kumar And Another v/s. State of
Jharkhand
8
, the Apex Court while dealing with the defective or
illegal investigations and lapses/irregularities in investigations
observed that such aspect vitiates prosecution case to such an
extent as to warrant acquittal. In paragraph 2 it is observed thus:-
'2. This case is a glaring example of how cause of justice
can be defeated by inefficient, lackadaisical and
incompetent investigating agency. As we go ahead, the
5 2020 SCC OnLine Bom 53
6 (2018) 5 SCC 435
7 2022 SCC OnLine SC 883
8 (2013) 4 SCC 422
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reasons for these observations would be clear.'
55.Then, the Apex Court observed in paragraph 29 as under:-
'
29
. We began by commenting on the unhappy conduct of
the investigating agency. We conclude by reaffirming our
view. We are distressed at the way in which the
investigation of this case was carried out. It is true that
acquitting the accused merely on the ground of lapses or
irregularities in the investigation of a case would amount to
putting premium on the deprecable conduct of an
incompetent investigating agency at the cost of the victims
which may lead to encouraging perpetrators of crimes. This
Court has laid down that the lapses or irregularities in the
investigation could be ignored subject to a rider. They can
be ignored only if despite their existence, the evidence on
record bears out the case of the prosecution and the
evidence is of sterling quality. If the lapses or irregularities
do not go to the root of the matter, if they do not dislodge
the substratum of the prosecution case, they can be
ignored. In this case, the lapses are very serious. PW 5
Jaldhari Yadav is a pancha to the seizure panchnama under
which weapons and other articles were seized from the
scene of offence and also to the inquest panchnama.
Independent panchas have not been examined. The
investigating officer has stated in his evidence that the
seized articles were not sent to the court along with the
charge-sheet. They were kept in the malkhana of the police
station. He has admitted that the seized articles were not
sent to the forensic science laboratory. No explanation is
offered by him about the missing sanha entries. His
evidence on that aspect is evasive. Clothes of the deceased
were not sent to the forensic science laboratory. The
investigating officer admitted that no seizure list of the
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clothes of the deceased was made. Blood group of the
deceased was not ascertained. No link is established
between the blood found on the seized articles and the
blood of the deceased. It is difficult to make allowance for
such gross lapses. Besides, the evidence of eyewitnesses does
not inspire confidence. Undoubtedly, a grave suspicion is
created about the involvement of the accused in the offence
of murder. It is well settled that suspicion, however strong,
cannot take the place of proof. In such a case, benefit of
doubt must go to the accused. In the circumstances, we
quash and set aside the impugned judgment and order
[Sunil Kundu v. State of Jharkhand, Criminal Appeal No.
1762 of 2004, decided on 20-8-2007 (Jhar)] . The
appellant-accused are in jail. We direct that the appellants
A-1 Sunil Kundu, A-2 Bablu Kundu, A-3 Nageshwar
Prasad Sah and A-4 Hira Lal Yadav be released forthwith
unless otherwise required in any other case.'
56.In the case of Sharad Birdhichand Sarda v/s. State of
Maharashtra
9
and Shivaji Sahabrao Bobade And Another v/s.
State of Maharashtra
10
the particulars on which the case based
on circumstantial evidence can be established are considered.
Firstly, the circumstances from which the conclusion of guilt is to
be drawn should be fully established. It is necessary to note that
the primary principle that the accused must be and not merely
may be guilty before a court can convict and the mental distance
between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions. (2) The facts so established
9 (1984) 4 SCC 116
10 (1973) 2 SCC 793
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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.
57.In Mustkeem Alias Sirajudeen v/s. State of Maharashtra
(supra), the Apex Court observed in paragraph 25, 26, 27 as
under:-
'25. With regard to Section 27 of the Act, what is
important is discovery of the material object at the
disclosure of the accused but such disclosure alone would
not automatically lead to the conclusion that the offence
was also committed by the accused. In fact, thereafter,
burden lies on the prosecution to establish a close link
between discovery of the material object and its use in the
commission of the offence. What is admissible under
Section 27 of the Act is the information leading to
discovery and not any opinion formed on it by the
prosecution. '
'26. If the recovery memos were prepared at the police
station itself then the same would lose their sanctity as held
by this Court in Varun Chaudhary v. State of Rajasthan
[(2011) 12 SCC 545 : AIR 2011 SC 72] .'Page 36 of 47
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'27. The scope and ambit of Section 27 were also
illuminatingly stated i
n Pulukuri Kotayya v. King Emperor
[(1946-47) 74 IA 65 : AIR 1947 PC 67] reproduced
hereinbelow: (IA p. 77)
“… it is fallacious to treat the ‘fact discovered’ within
the section as equivalent to the object produced; the
fact discovered embraces the place from which the
object is produced and the knowledge of the accused
as to this, and the information given must relate
distinctly to this fact. Information as to past user, or
the past history, of the object produced is not related
to its discovery in the setting in which it is discovered.
Information supplied by a person in custody that ‘I
will produce a knife concealed in the roof of my
house’ does not lead to the discovery of a knife; knives
were discovered many years ago. It leads to the
discovery of the fact that a knife is concealed in the
house of the informant to his knowledge, and if the
knife is proved to have been used in the commission
of the offence, the fact discovered is very relevant. But
if to the statement the words be added ‘with which I
stabbed A’, these words are inadmissible since they do
not relate to the discovery of the knife in the house of
the informant.”
The same were thereafter restated in another judgment of
this Court in Anter Singh v. State of Rajasthan [(2004) 10
SCC 657 : 2005 SCC (Cri) 597]'
58.Similarly, the Apex Court reiterated the principles of
circumstantial evidence as laid down in the case of Sharad
Birdhichand Sarda (supra) as observed in paragraphs 23, 24 and
28, which need not be quoted at this juncture as it is discussed
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earlier.
59.In the case of Vijay Thakur v/s. State of Himachal
Pradesh(supra), the Apex Court while discussing its earlier
decision in the case of Mustkeem (supra), Sharad Birdhichand
Sarad (supra), observed that it is settled proposition of law that
suspicion, however strong, cannot take the character of proof.
60.In the case of Mani (supra), the Apex Court observed in
paragraph 26 as under:-
'
26. The discovery is a weak kind of evidence and cannot
be wholly relied upon and conviction in such a serious
matter cannot be based upon the discovery. Once the
discovery fails, there would be literally nothing which
would support the prosecution case. We have already held
that the prosecution has failed to prove that the house
where alleged bloodstains were found belonged exclusively
or was possessed exclusively by the appellant, we have
further pointed out that the discovery was absolutely
farcical. There is one other very relevant factor ignored by
both the courts that the prosecution never made any
attempts to prove that the clothes belonged to the
appellants. There is literally no evidence to suggest
anything to that effect. Therefore, even if we accept the
discovery, it does not take us anywhere near the crime.
Both the courts below have ignored this very important
aspect. Once these two important circumstances are
disbelieved, there is nothing which would remain to
support the prosecution theory.'
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61.Keeping in mind above settled proposition, and as
discussed earlier with regard to alleged recovery of knife at the
instance of the accused, it is clearly found that there was clear-cut
tampering of the article attached at the instance of accused and
more specifically the knife since it was shown to the shopkeeper
by name Sainath Bandodkar,/PW13 who compared such knife
with the knives available in his shop and then identifying it as
sold by him. Thus, the so-called discovery of knife at the instance
of accused is highly doubtful. Similarly, the bloodstains allegedly
found on such knife cannot be accepted as that of the deceased
since there is clear-cut evidence of tampering with such knife by
the investigating agency. Hence, possibility of tampering with the
blood sample allegedly found on the said knife cannot be ruled
out. This further disbelieve the theory of linking the discovery of
knife to the commission of offence.
62.The deposition of PW6-Alex Dias shows that he acted as
panch witness on 23.01.2018 wherein accused was produced
before him and there he made some disclosure. Surprisingly, he
deposed that accused stated of going to a bar, purchasing chicken
crispy and a bottle of brandy for Batu. First of all, the deposition
of PW3 Raju clearly discloses that this fact was known to the
police officer who conducted scene of panchanama on
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21.01.2018. Therefore, there cannot be such disclosure for the
first time at the instance of accused.
63.PW6-Alex Dias then claimed that accused disclosed that
after commission of the said offence, he removed gold ornaments
from the body of Batu and then concealed it at some place and he
is ready to show such place. During cross-examination, it has
been brought on record that PW6-Alex Dias and deceased Batu
were childhood friends and therefore PW6 was clearly an
interested witness to see that his deceased friend gets justice.
Thus, deposition of PW6 being interested witness cannot be
considered as without any dent. He is likely to support
prosecution and more specifically so-called disclosure and
recovery by putting words in the mouth of accused so that the
accused can be convicted.
64.Further, PW6 in his cross-examination deposed that on
knowledge of death of Batu, he had gone to the police station
alongwith the brothers of the deceased and at that time he was
requested to act as panch witness by P.I. Filomeno Costa who he
knew even prior to that date. He then claimed that the accused
made disclosure in Konkani but he does not know whether any
recording was done by the Investigating Officer at the time of
panchanama. He then claimed that the accused was disclosing
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facts very fast and he was unable to verbally tell the words used by
the accused while disclosing such facts. This clearly shows that
PW6 was unable to disclose the words used by the accused while
making alleged disclosure on the basis of which so-called recovery
of weapon and so-called ornaments was carried out. Therefore, as
observed earlier in the case of
Shahaja @ Shahajan (supra) that it
is necessary for the prosecution and the panch witnesses to
disclose words used by the accused while making such disclosure,
such evidence of PW6 is clearly putting a dent to the case of the
prosecution regarding discovery and recovery at the instance of
accused.
65.So far as recovery of so-called ornaments at the instance of
accused, it is clear from the record that though the wife of
deceased claimed that he was wearing only 2 gold finger rings, the
investigating agency recovered 3 gold finger rings. It is also clear
from the record that these gold ornaments which were recovered
at the instance of accused were handed over to the wife of
deceased without taking any test identification parade. It is not
established that these gold ornaments were belonging to the
deceased himself and not to any other person. Therefore, such
recovery on the basis of alleged discovery made by the accused is
of no substance to link the accused with the main offence of
murder.
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66.There is another angle to the above matter as the
investigating agency conducted one more disclosure and recovery
panchanama at the instance of the accused on 25.01.2018. Earlier
disclosure and recovery panchanama was conducted on
23.01.2018. There is no explanation as to how there are two
recovery panchanamas within a gap of two days. Be that as it
may, prosecution examined PW18-Luis Fernandes who claimed
that on 25.01.2018 he acted as panch witness at the request of P.I.
Filomeno Costa and at that time accused was brought before
them who made disclosure that he had thrown one plastic bag in
which he had kept covers of mobile phones, 2 purses and he is
willing to show the place to them. Thereafter, the accused led
them to a bund at Seraulim and informed that he had thrown the
bag near one board with a message that garbage dumping was
prohibited. They went near the said board. Accused went
alongwith the police and then brought one plastic bag. On
opening the said bag they found 2 mobile phone covers which
they put in one envelope. They further found 2 purses in the
same bag of which one was of brown colour and the other one
was of black colour. In the said purses they found identity card,
Aadhaar card and voter card of Batu alongwith some pictures of
Jesus. He then claimed that thereafter accused told them that he
had thrown SIM cards of the phone and volunteered to show the
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place. He then told them that he put it in one empty tin of soft
drink and had thrown it in a garbage dump. Thereafter, the
accused took them near one hotel at Sernabatim which is near
Lions Club. The accused went and brought a tin from the
garbage dump in which they found 2 damaged SIM cards out of
which one was of Idea company and the other was beyond
identification.
67.During cross-examination PW18 clearly admitted as
under:-
'I admit that PI Filomena Costa informed us about the
case and that the accused would show us the places. I
admit that he had also informed us that the accused would
show us the purses and other articles of Baptista.
I admit that the accused was then produced in the
cabin of PI Filomena Costa by two policemen. After the
accused was brought, PI Filomena Costa questioned the
accused and the accused then informed us that he had
thrown the articles at certain places which he would show
to us. PI Filomena Costa has asked the accused whether
he was willing to show the places where he had thrown the
articles. I cannot say the exact words used by the accused at
that time.'
68.Thus, it is further clear that PW18 was unable to disclose
exact words used by the accused while making disclosure
statement. Therefore, such disclosure allegedly made by the
accused is of no help to the prosecution and further to link the
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accused with the alleged offence.
69.The observations of the learned trial Court while relying on
such circumstances and linking it to the accused are, therefore,
considered to be incorrect for the reasons disclosed above. In fact,
such observations are against the settled proposition of law as
disclosed above. The knife allegedly recovered at the instance of
accused was found tampered with. The witnesses examined by
the prosecution are all interested witnesses. There is serious doubt
with regard to the manner in which investigation was carried out.
In fact, there is clear material on record to show that accused
alongwith 3 to 4 friends of the deceased Batu were regularly
attending police station and they were considered as suspects,
from the day when the body of the deceased was recovered at the
beach. The material brought on record clearly goes to show that
there was lot of pressure from the people of the locality to arrest
someone in the matter since FIR was lodged against unknown
person. The deposition of PW26 PI Filomena Costa further
shows that without any suspicion or material against the accused,
he was arrested. On page no.30 of the cross-examination of
PW26 he clearly admitted that accused was brought to the police
station as suspect on 23.01.2018 by the staff. Such staff member
who brought the accused to the police station as a suspect is not
examined. PW26 Filomena Costa only instructed his staff
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members to bring the suspects. However, he does not depose as
to what was the material against the accused which brings him in
the category of suspect and that too, on 23.01.2018.
70.The prosecution is not claiming or linking the accused on
the basis of last seen theory. There is no witness examined by the
prosecution who claimed to have seen lastly the accused and the
deceased together. In fact, as discussed earlier, PW28 Krishna
clearly deposed that deceased Batu was dropped at his home by
him alongwith accused prior to 7:30PM. PW19 Jeomiro
Fernandes categorically stated in the chief-examination itself that
the accused first dropped Batu at his house and thereafter
dropped him at Wadakade. They dropped Batu at his residence at
around 6:45PM. Thus, the accused was lastly seen with the
deceased, PW19 Jeomiro Fernandes and PW28-Krishna Langde
at around 6:45PM. They all dropped deceased at his residence
and they left the said place. Thereafter, no one has seen Batu till
his dead body was discovered. His wife/PW1 claimed that she
called Batu on his mobile phone at 9:00PM and talked to him.
Admittedly, no CDR or SDR of mobile phone of Batu, that of
accused, PW19-Jeomiro, PW28-Krishna were produced during
the trial to show their locations. Thus, a serious doubt is created
with regard to entire case of the prosecution. The circumstances
which are brought on record and discussed by the learned trial
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Court in much detail are not at all established to the hilt and,
more particularly, to point finger only against the accused.
71.Having said so, the findings of the learned trial Court
cannot be accepted for holding accused guilty on all counts. Apart
from the circumstances, the motive for commission of such
offence is not at all established. The investigation has been
carried out in a most shabby and casual manner. There is
apparent tampering with the muddemal articles and more
specifically alleged knife and clothes of the accused. The
possibility of tampering with the knife is clearly established. Thus,
overall material placed on record is not clinching material and it
creates serious doubt about the entire evidence produced before
the trial Court. In other words, the case of prosecution appears to
the extremely doubtful and concocted so as to implicate the
accused in the matter. Accordingly, we answer the above framed
point in the negative.
72.Thus, judgment and conviction of the accused as recorded
by the learned Additional Sessions Judge needs to be quashed and
set aside. Hence, we pass the following order:-
O R D E R
i) The appeal is allowed. The impugned judgment
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dated 20.12.2021 in Sessions Case (302) No.10/2018
passed by the learned Additional Sessions Judge, Margao is
hereby quashed and set aside. Accordingly, conviction of
the accused for the offence punishable under Section 302,
394 and 201 of IPC is hereby set aside. The appellant shall
be set at liberty forthwith if not required in any other
offence.
ii). However, the appellant shall furnish Bail Bonds as
provided under Section 437-A of Cr.P.C. for 25,000/-₹
with one surety in the like amount, within a period of one
week from the date of his release, which shall continue till
the period of appeal is over. Such Bail Bonds and surety
shall be furnished to the learned Additional Sessions Court
at Margao to its satisfaction.
BHARAT P. DESHPANDE, J M. S. SONAK, J
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MARIA SUZANA
REBELLO
Digitally signed by MARIA SUZANA REBELLO
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