Criminal Appeal No.5 of 2001

20th August, 2001

Petitioner Counsel: Shri. S. D. LOTLIKAR, Shri. A. D. BHOBE
Respondent Counsel: Ms. WINNIE COUTINHO

JUDGMENT

A. S. AGUIAR, J.:- By this Appeal, the Appellant challenges his conviction and sentence in Sessions Case No. 15 of 1999 passed by the Sessions Judge, South Goa, Margao, by Order dated 2nd November, 2000. By the said Order, the Appellant/accused is convicted for offences under Sections 302, 452 and 354 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence punishable under Section 302 I.P.C. and to a fine of Rs.10,000/-, in default, to undergo Simple Imprisonment for 6 months, further sentenced to undergo Rigorous Imprisonment for a period of 6 months and to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for 15 days, for the offence punishable under Section 452 I.P.C.; and further sentenced to undergo Rigorous Imprisonment for a period of 1 month for the offence punishable under Section 354 I.P.C.. The periods of imprisonment are directed to run concurrently.

2. The Appellant had challenged the said impugned Order, inter alia, on the ground that the prosecution had failed to prove the case against the Appellant beyond reasonable doubt; that there are glaring loopholes in the prosecution case; that the prosecution has neither proved any incriminating circumstances against the Appellant nor is there any chain of circumstances established by the prosecution that could be said to be so complete as to exclude the possibility of complete innocence of the Appellant; that the dying declarations allegedly made by the deceased to P.W.12 lady constable Parsekar, P.W.1 Remedios and P.W.2 Olinda, are figments of imagination of the said witnesses and deliberately made to falsely implicate the Appellant. They cannot be relied upon.

3. Briefly, the case of the prosecution is that on 1-12-1998, at about 11.30 hours, the accused/Appellant abovenamed, committed criminal trespass into Flat No.4 by entering through the open main door of the flat situated on 1st floor of "Rodrigues Mansion" belonging to the complainant Remedios Fernandes (P.W.1) and outraged the modesty of his maid servant by name Yamuna, daughter of Venkatesh Ambiga, about 16 years of age, by making her naked. When she refused to have sex with the accused, assaulted her with slaps on her face and poured kerosene on her body and setting her on fire causing serious burn injuries to her due to which she expired on 22nd January, 1999 at 05.25 hours in the Goa Medical College Hospital, Bombolim.

4. Charges were framed on 9-6-1999 for offences under Sections 452, 354 and 302 I.P.C.. The accused pleaded not guilty to the charge and claimed to be tried. The case of the accused as set out in his Statement under Section 313 Cr.P.C. is one of complete denial. The Appellant claims that he has been falsely implicated by the Police at the instance of the complainant. Sixteen witnesses in all were examined by the prosecution. The accused did not examine any witness on his own behalf. After recalling the said evidence and hearing the learned Advocates for the respective parties, the learned Sessions Judge, South Goa, Margao, held that the prosecution had proved its case beyond reasonable doubt against the accused and, accordingly, passed the Order of conviction and sentence.

5. Undoubtedly, this is a case based purely on circumstantial evidence. No eye witnesses have deposed. The incident took place on 1-12-1998 in the morning at about 11.30 hours. The complaint was filed by P.W.1 Remedios, the employer of the deceased girl Yamuna, daughter of Venkatesh Ambiga, on 2nd December, 1998. P.W.2 Olinda is the wife of P.W.1 Remedios. According to P.W.1 and P.W.2, the deceased Yamuna was working as their maid servant since two years prior to the incident. According to them, when they used to leave for work, Yamuna used to remain in the flat alone. One Akbar Shaikh was appointed driver for the vehicle, a van, owned by P.W.1. The said van was plied as a tourist taxi in Vasco. According to the complainant, on the day of the incident, i.e. 1-12-1998, at about 7.00 a.m., he (P.W.1 Remedios), as usual, left for work and, thereafter, at about 8.30 a.m., his wife P.W.22 Olinda also left for her place of work. At about 11.30 on that day, one Ashiqui/accused herein, entered the flat through the front open door and started watching TV. Sometime later, driver Akbar Shaik also entered into the flat to take the car cassettes player and left the house. After Akbar left, the accused closed the front door and latched it. That, thereupon, he asked Yamuna to have sexual intercourse with him. That on her refusing, the accused removed all her clothes and made her naked. Then he caught hold of her mouth to prevent her from shouting, dragged her to the kitchen, took out a kerosene can, brought her back to the dining hall, poured kerosene on her and on her clothes and set her ablaze and thereafter left the flat. Yamuna, who was ablaze, ran down to the Sanjeevani Hospital in the same building where the fire was put off. From there, she was removed to Goa Medical College Hospital. The accused is alleged to have come to the house on brown colour scooter No.GA-02-F-0066. Yamuna was in Goa Medical College Hospital for over one and half month and succumbed to her injuries at Goa Medical College Hospital while undergoing treatment, on or about 21st or 22nd February, 1999.

6. The learned Trial Judge has passed his Order of conviction relying heavily on three dying declarations allegedly made by the deceased Yamuna to : (1) P.W.12, lady constable, Parsekar; (2) complainant P.W.1 Remedios and (3) P.W.2 Olinda, wife of P.W.1.

7. P.W.12, lady constable Parsekar, has stated that at the relevant time she was on duty at Vasco Police Station. On 1-12-1998, at about 12.30 p.m., she was sent to Sanjeevani Hospital where she saw a girl wrapped in a bedsheet lying on a stretcher, having burns all over her body and screaming in pain. Head Constable Mandrekar handed over to P.W.12 a memo addressed to Cottage Hospital and directed her to take the said girl to the Hospital. Accordingly, P.W.12 put the deceased in a jeep and took her to the said Cottage Hospital. The Medical Officer on duty, after examining her, found her to be in critical condition and directed P.W.12 to take the injured girl to Goa Medical College Hospital, Bambolim. While taking her to the Goa Medical College Hospital, on the way, P.W.12 enquired with the girl Yamuna as to how she came to sustain the burns and Yamuna told her very 'slowly' that one boy by name Ashiqui, had set her ablaze and the said Ashiqui is a resident of New Vaddem.

8. The next dying declaration is allegedly made by the deceased to her employer P.W.1 Remedios who in his examination-in-chief states that at about 3.00 p.m. he was informed through a phone call by his wife that the servant Yamuna was burnt and was admitted in Goa Medical College Hospital at Bambolim. That, immediately, he went to the Ward No.109 and saw that her back was completely burnt and she was having burns on her left hand, chest and other parts of the body. P.W.1 has stated "she (the deceased girl Yamuna) was unable to talk so I asked her what had happened. She told that at about 11.30 a.m. of that day, Ashiqui, the accused, had entered their flat through the front open door and had started watching TV and, after sometime, the driver Akbar had entered the flat to take the car cassettes player and in ten minutes after Akbar left the house with the cassettes player, the accused had closed the front door and latched it and asked her to have sexual intercourse with him, which she refused. Thereupon, the accused removed all her clothes and made her naked and caught hold of her mouth to prevent her from shouting, then dragged her to the kitchen, took out a kerosene can, brought her back to the dining hall, poured kerosene on her and her clothes and set her ablaze and, thereafter, ran away from the flat." P.W.1 has further stated that Yamuna also told him that thereafter she with the fire on her body, ran out to Sanjeevani Hospital where fire was put off and then she was removed to Goa Medical College Hospital. Further, Yamuna told him that the accused had come there on a brown colour scooter having No.GA-02-F-0066.

9. The third dying declaration is allegedly made by the deceased to P.W.2 Olinda, wife of P.W.1. P.W.2 Olinda has, in her deposition, stated that the next morning, she went to the Goa Medical College Hospital to see Yamuna and found that she was being given treatment. So, she waited outside the ward. At about 11.30 or 11.45 a.m., she found that Yamuna was talking to someone and so she went close to her and asked her how that thing had happened and Yamuna told her that on 1-12-1998, at about 11.15 a.m., she had taken the dog down but had left the main door open and when she returned within 10 minutes, she saw one boy, by name Ashiqui from New Vaddem had come and was sitting on the sofa in the flat. That after she entered the flat, the said Ashiqui, accused, merely shut the main door but did not latch it. But when both of them were talking, there was ringing of the bell outside. The accused went near the main door and stopped it from opening by putting his hands against it. That the door was forcibly opened by Akbar the driver. When the accused saw Akbar, he helloed Akbar, who returned the hello. Yamuna further told her that he took the car cassettes player, which was kept in TV shelf and went away and, thereafter, the accused closed the door and also latched it and thereupon asked Yamuna to have sexual intercourse with him, which she refused, to which the accused gave two slaps on her face with force and thereafter the accused forcibly removed all the clothes from her person, gagged her mouth and dragged her or pulled her to the kitchen. Then he picked up a kerosene can and a match box and brought her dragging to the dinning hall where the accused doused her with kerosene and also poured kerosene on her clothes which were lying on the floor. Then the accused lit the match stick and set her ablaze and also lit the clothes which were lying on the floor and ran away.

10. It is pertinent to note that the dying declaration allegedly made to P.W.12, lady constable Parsekar, is very terse and only gives the name of the accused Ashiqui and no further details, while the statements allegedly made to P.W.1 and P.W.2, at different times, are detailed and give the entire sequence of events leading to her getting burns and being rushed to the Hospital. Looking to the critical condition of the deceased Yamuna it was well nigh impossible for her to have given such statements to P.W.1 and P.W.2.

11. We further notice that although P.W.12 has stated that Yamuna was in critical condition and talking very slowly, yet she named the accused as Ashiqui, a resident of New Vaddem, as the person who set her ablaze. P.W.12, the lady constable, in her cross-examination, has also stated that on her way from Cottage Hospital to Goa Medical College Hospital at Bambolim, besides herself and Yamuna, the lady for whom Yamuna working was also there and also the driver of the vehicle. The lady for whom she was working is obviously P.W.2 Olinda. However, Olinda has nowhere stated that she accompanied Yamuna along with another lady constable and driver to Goa Medical College Hospital. In her deposition, Olinda has stated that the Police came in a jeep and carried Yamuna in the jeep to Chicalim Hospital and that she and the lady constable besides the policeman went to the Chicalim Hospital. First aid was given to Yamuna at Chicalim Hospital and then she was shifted in an ambulance to Goa Medical College Hospital where she was admitted in Ward No.109. P.W.2 has not stated that while on the way to Goa Medical College Hospital the lady constable enquired into Yamuna how she got burns and Yamuna 'slowly' informed her that Ashiqui had set her ablaze. It is also pertinent to note that although P.W.12 took Yamuna to Goa Medical College Hospital on 1st December, 1998, her statement was recorded by the Police only on 11th of February, i.e. after a period of two months of the incident and after the death of girl. No reason is given for such delayed recording. It is the case of the defence that P.W.2 has been tutored by the employer P.W.1 to depose in this manner, which suggestion, of course, P.W.12 has denied. The so-called dying declaration made by Yamuna to P.W.12 is bereft of any evidential value.

12. So far as the dying declarations made to P.W.1 and P.W.2, on different dates, are concerned, the same ex facie appear to be an afterthought. It is an admitted position that Yamuna was in critical condition and screaming in pain while she was in the Goa Medical College Hospital. It is, therefore, difficult to believe that such a detailed statement of the incident could have been given by Yamuna to P.W.1 on 1-12-1998 at about 3.30 p.m. or to P.W.2 on the next day at about 11.30 a.m.. P.W.15, the Investigating Officer, P.S.I. Uday Parab, has in his evidence stated that after drawing the scene of offence panchanama, he went to Goa Medical College Hospital, Bambolim and talked to Yamuna, but she was only crying and screaming. She was totally burnt and her condition appeared to be critical. In his cross-examination, P.W.15 has stated that when he attempted to talk to Yamuna, she was only crying and screaming but when he asked Yamuna in Konkani whether Ashiqui had set her on fire she nodded her head, suggesting her reply in the affirmative. He further stated that he asked her as to how she knew him, but she was not able to talk. P.W.15 has further stated in his cross-examination that during the time Yamuna was in the Goa Medical College Hospital, he had gone there in three or four occasions to record her statement, but he could not do so as her condition was worsening day by day. He also had given a written request to the doctor but the doctor certified that Yamuna was not in a position to give her statement as she was in a shock and her condition was critical. Clearly, Yamuna was not in a position to make any statement, leave alone a detailed statement, as deposed to by P.W.1 and P.W.2.

13. It is regrettable that although Yamuna was in the Hospital for 1 month and 21 days, her statement was not recorded either by an SEM or any of the doctors treating her. The Investigating Officer has failed in his duty in recording the statement of the deceased despite sufficient opportunities having been afforded to him. His claim that he attempted to record Yamuna's statement on 3 or 4 occasions has to be taken with a pinch of salt. From the evidence of P.W.5, the doctor who performed the post-mortem examination, namely, Dr. Silvano Dias Sapeco, it is seen that Yamuna was admitted in the Hospital with a history of homicidal burns. He has stated that the deceased had 40 to 50% burn injuries and there was no chance of her survival even with the best treatment. In his opinion, death was due to Septicaemia consequent to the infected flame burns which were fatal in the ordinary course of nature. There is no evidence on record to show that Yamuna was during the entire period she was in the Hospital, lying in unconscious state. Surely, the Investigating Officer ought to have taken steps to get the dying declaration of Yamuna recorded by an independent person such as SEM. or even the doctors who were treating her. None of the doctors of the Goa Medical College Hospital has been examined as to the State of Yamuna while she was in the Hospital and Hospital case papers were produced at the trial. As such, there appears to be complete suppression of material as to the history of the injured person and as to her actual condition while at the Goa Medical College Hospital.

14. Dr. Domnik Fernandes (P.W.11), the Medical Officer attached to Cottage Hospital at Chicalim, has in his evidence, stated that on examining the patient, he found injuries of burns on chest, back, buttocks and left hand and he assessed the burn injuries as 90%. He has stated that the patient was in critical condition. It is strange that although the prosecution has examined Dr. Fernandes of Chicalim Hospital where Yamuna was only given first aid, no doctors from Goa Medical College Hospital have been examined although Yamuna was in that Hospital for 1 month and 21 days and was treated there for burn injuries and ultimately died of septicaemia.

15. Taking into consideration the critical state in which Yamuna was after suffering the burn injuries, both at the time when she was taken to Cottage Hospital at Chicalim and again, shifted to Goa Medical College Hospital, it seems to us that the so-called dying declaration made to P.W.12, lady constable, and the dying declarations made to one P.W.1 and P.W.2, are improbable, if not highly suspect. The reliance, therefore, placed by the learned Trial Judge on these so-called dying declarations was misplaced as the same prima facie do not stand the test of probability, leave alone, certainty.

16. Failure on the part of the Police to record the statement of the deceased while in the Hospital is a serious omission and lacuna in the prosecution case. Similarly non-production of case papers from the Goa Medical College Hospital

17. Apart from the dying declarations, the finding of the learned Trial Judge as to the implication of the accused on other evidence is untenable. The accused Ashiqui is implicated by the Police on the statement of P.W.3 Akbar Shaik, a driver working for P.W.1 and P.W.2. The said driver Akbar Shaik, according to P.W.1 and P.W.2, was like a member of their family. Akbar Shaik was only a driver, driving the van which P.W.1 used to ply on hire. According to Akbar Shaik, after having collected the stereo from the flat of P.W.1 where he saw the accused in the drawing room along with the deceased on coming down, he noticed a brown colour Vespa scooter No.GA-02-F-0066 parked in the Hospital compound. He, therefore, noted down the number because he had seen the accused inside the house of P.W.1. Surprisingly, in his cross-examination, when asked that was the amount paid to Kamat garage for the repairs of the taxi, he was not able to state the amount of the bill for the said repairs, as according to him, no bill was issued. It is surprising that although he could memorize and recollect the registration number of the scooter, he could not remember the amount paid for the repairs carried out to the taxi. There was no apparent reason why P.W.3 Akbar Shaik ought to have taken a special notice of the said vehicle in the compound and made it a point to make a mental note of the registration number. It is not the prosecution case that P.W.3 had noted down the registration number in writing. If P.W.3 Shaik Akbar could not remember a simple thing like the amount paid towards the repairs of the taxi, how could he remember the registration number of the vehicle without having it noted down in writing. Furthermore, there was no reason for him to have made a special attempt to memorize the number of the scooter. Linking the accused to the incident on such tenuous evidence makes the prosecution case difficult to believe and, therefore, unacceptable.

18. The entire prosecution case being based on circumstantial evidence, the main circumstance on which the conviction is based being extremely doubtful, it cannot be said that the chain of circumstances is so complete so as to exclude the possibility of complete innocence of the Appellant/accused. We may observe that the prosecutor/police machinery was totally lax and negligent in this case and this required investigation. We recommend to the Government to take necessary steps against the concerned Police Officers by holding enquiry. We feel that real accused is left out negligently or otherwise in this gruesome case.

19. In the circumstances, the Appeal is allowed. The Order of conviction and sentence of the Appellant/accused is set aside. The Appellant/accused to be released forthwith, if not required in any other case.

Copy to be sent to the Chief Secretary, Government of Goa, for further action.

Appeal allowed.