2013 ALL MR (Cri) 4189
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
A.P. LAVANDE AND U.V. BAKRE, JJ.
Mahanand Naik Vs. State Through P.P. High Court
Criminal Appeal No. 21 of 2012
7th August, 2013
Petitioner Counsel: Mr. RAJNEESH NAIK
Respondent Counsel: Ms. MILENA GOMES E PINTO
(A) Criminal P.C. (1973), S.164 - Confession - Procedure of recording statement - Accused was brought before Magistrate from judicial custody - Magistrate confirmed that accused was not subjected to any ill-treatment by police and that he is going to give a voluntary statement - Time of 24 hours given for reflection - In fact recording took place after 16 days and at willingness of accused - At the time of recording it was ensured that no police personnel is present - Both accused and Magistrate put signature on each page of recorded statement - Accused was explained that he is not bound to make such statement which can be used against him as confession - Voluntary nature of statement and its understanding by accused, verified by Magistrate - Procedure laid down in Criminal Manual, duly complied - Confessional statement held to be voluntary. (Paras 13, 14, 15)
(B) Evidence Act (1872), S.3 - Panch witness - Credibility - Panch witness having acted as panch in past in another case - Cannot be said to be unreliable - Merely by acting as panch witness in two cases, a person cannot be stamped as stock panch for police. (Para 39)
(C) Penal Code (1860), S.302 - Murder case - Evidence of last seen - Dead body found after 5 days of deceased having been with accused - Contention that exact time of death not established hence theory of last seen would not come into play - Contention not tenable - Evidence on record establish that deceased had left home on same day when she was seen with accused and since then she was missing - Various other incriminating circumstances also proved against accused - Therefore, last seen theory established. (Para 68)
(D) Evidence Act (1872), S.8 - Motive - Relevant facts - Murder case - Allegation that accused on pretext of meeting with his sister for approval of marriage, took deceased to isolated place and killed her to rob gold ornaments - Statement of two other girls that accused had proposed them also for work and for marriage giving false information about himself - Relevant to establish his motive in instant case - Unpleasant past conduct of accused is relevant to establish motive. AIR 1957 SC 1956 Rel. on. (Para 70)
(E) Criminal P.C. (1973), S.313 - Penal Code (1860), S.300 - Statement of accused - Non-explanation of incriminating circumstances - Provides an additional link to complete the chain of circumstances in a case based on circumstantial evidence. (Paras 71, 72)
(F) Penal Code (1860), Ss.302, 364, 392, 201 - Murder and robbery - Circumstantial evidence - Case of prosecution that accused took deceased to isolated place killed her and took away gold ornaments - Decomposed body found in a cashew plantation 5 days after deceased left home - DNA report proved the body to be that of victim - Accused and deceased were known to each other - One of the witnesses had seen them together going towards cashew plantation and accused returning alone with bag of deceased in his hands - Evidence of said witness supported by detail of tower location of mobile held by accused and deceased - Recovery of melted gold ornaments, mobile of deceased and bag of deceased at the instance of accused, etc. supported prosecution story - Motive was clearly to rob the gold - Whole story narrated by accused in his confessional statement - All the circumstances point to the accused as only person who committed crime. (Paras 65 to 72)
Shri Mohamud Shadab Vs. State, 2012 ALL MR (Cri) 2255 [Para 8,68]
Ravinder Kumar and another Vs. State of Punjab, (2001) 7 SCC 690 [Para 8]
Surendra Koli Vs. State of U.P. and others, 2012 ALL SCR 1616=Criminal Appeal No.2227/2010 [Para 10]
Jitender Kumar Vs. State of Haryana, 2012 ALL SCR 1890=(2012) 6 SCC 204 [Para 10,34]
Rammi alias Rameshwar Vs. State of M.P., 2000(1) ALL MR 324 (S.C.)=AIR 1999 SC 3544 [Para 10,42]
Mangal Singh and others Vs. State of Madhya Bharat, AIR 1957 SC 1956 [Para 10,70]
State of Rajasthan Vs. Kashi Ram, 2007 ALL MR (Cri) 525 (S.C.)=2007(1) SCC (Cri.) 688 [Para 10,71]
Kamalanantha and others Vs. State of Tamil Nadu, (2005) 5 DCC 194 [Para 10]
Gurmukh Singh Vs. State of Haryana, (2009) 15 SCC 635 [Para 10]
Deonandan Mishra Vs. State of Bihar, AIR 1955 SC 801 [Para 71]
Anthony D'Souza Vs. State of Karnataka, AIR 2003 SC 258 [Para 71]
Rammi alias Rameshwar Vs. State of M.P., 2000 ALL MR (Cri) 275 (S.C.)=AIR 1999 SC 3544 [Para 10,42]
State of Rajasthan Vs. Kashi Ram, 2007 ALL MR (Cri) 286 (S.C.)=2007(1) SCC (Cri.) 688 [Para 10,71]
2. By this appeal, the appellant/accused takes exception to the judgment and order dated 18th February, 2012 passed by learned Sessions Judge, North Goa, Panaji in Sessions Case No. 33/2009 convicting the accused for the offences punishable under Sections 364, 302, 392 and 201 of the Indian Penal Code ("the I.P.C." for short). The accused has been sentenced to different periods of imprisonment as under:-
|1.||364 of I.P.C.||
Rigorous imprisonment for 3 years and fine of ' 10,000/- and in default, to undergo imprisonment for two months.
|2.||302 of I.P.C.||
Rigorous imprisonment for life and fine of ' 50,000/- and in default, to undergo imprisonment for one year.
|3.||392 of I.P.C.||
Rigorous imprisonment for 5 years and fine of ' 50,000/- and in default, to undergo imprisonment for one year.
|4.||201 of I.P.C.||
Rigorous imprisonment for 5 years and fine of ' 20,000/- and in default, to undergo imprisonment for six months.
All the sentences are ordered to run concurrently. The amount of fine has been ordered to be paid to the family of the deceased i.e. her parents as compensation under Section 357(3) of Cr.P.C.
The accused befriended one Ms. Yogita @ Balika Naik, aged about 30 years, resident of Nagzar under the false pretext of getting married to her, with the intention to commit robbery of her gold ornaments and thereafter to kill her. On 10th January, 2009 at about 09.30 hrs., under the pretext of showing her to his sister at Sanquelim for the purpose of marriage, he took her to an isolated place in the cashew plantation at Morlem, Valpoi. He strangulated her to death with her dupatta, killed her, robbed gold ornaments on her person and took mobile phone, churidar dress, dupatta and handbag of the deceased with him and thereafter, he sold the gold ornaments to goldsmith at Bicholim. Thereafter, he returned to Shiroda and kept bag of the deceased with Miss Lata Parwar. The accused also destroyed the evidence by throwing away the clothes of the deceased and various SIM Cards.
4. In the course of investigation of some other case, the accused was interrogated and in the course of interrogation, the accused disclosed that he had committed murder of several girls. The investigation was taken up which ultimately led to filing of chargesheet against the accused for the offences punishable under Sections 364, 302, 392 and 201 of I.P.C. in the Court of J.M.F.C., Ponda.
5. The case was committed to the Court of Session, North Goa, Panaji. In Sessions Case No. 33/2009, charge was framed against the accused for the offences punishable under Sections 364, 302, 392 and 201 of I.P.C. The accused pleaded not guilty to the charge. The defence of the accused was of denial simpliciter and false implication.
6. In order to bring home the guilt of the accused, the prosecution examined 52 witnesses and produced several documents. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded. The accused did not lead any defence evidence.
7. Learned Sessions Judge, upon appreciation of evidence led by the prosecution, held that all the offences were proved beyond reasonable doubt against the accused and convicted and sentenced him as above.
8. Mr. Naik, learned counsel appearing for the appellant/accused took us to the evidence, oral and documentary, and submitted that the evidence led by the prosecution is not sufficient to bring home the guilt of the accused and the accused be acquitted of all the offences for which he has been charged and convicted. Learned counsel further submitted that the recovery of gold at the instance of the accused, has not been proved and it is difficult to place reliance upon the evidence of PW18, PW22, PW23 and the Investigating Officer in that regard. Learned counsel further submitted that the prosecution has also not been able to prove that the accused was last seen with the deceased and it is difficult to place reliance upon the evidence of PW14 Purushottam Kamlakar whose evidence is intrinsically improbable and as such, does not inspire confidence. Learned counsel further submitted that no reliance can be placed on the recovery of the silver colour purse allegedly belonging to the deceased at the instance of the accused inasmuch as PW16 Lata Parwar does not make a reference about the recovery of purse in her statement recorded on 26th April, 2009. Similarly, the evidence regarding the recovery of mobile at the instance of the accused is difficult to be accepted inasmuch as panch PW23 Dipu Naik appears to be stock panch and is interested in securing conviction of the accused. Learned counsel further submitted that the evidence regarding identification of the accused by several witnesses in Test Identification Parade is useless inasmuch as the photograph of the accused was splashed in several news papers in Goa alleging his complicity in various murders even before Test Identification Parade was held. Learned counsel further submitted that medical evidence tendered by the prosecution does not prove that the death of deceased was caused on 10th January, 2009 as alleged by the prosecution. Learned counsel further submitted that the confessional statement recorded by PW41 is difficult to be accepted inasmuch as it is difficult to accept that the accused would accept his complicity in connection with various murders by making a confessional statement. Learned counsel lastly submitted that the circumstantial evidence led by the prosecution is not sufficient to convict the accused for the offences for which he has been convicted, having regard to the settled law laid down by the Apex Court regarding appreciation of the evidence in the case based on circumstantial evidence. In support of his submissions, learned counsel placed reliance upon following judgments:-
(i) Shri Mohamud Shadab V/s. State.
2012 ALL MR (Cri) 2255)
(ii) Ravinder Kumar and another V/s. State of Punjab
[(2001) 7 SCC 690]
9. Per contra, Ms. Pinto, learned Additional Public Prosecutor supported the impugned judgment and order and submitted that the evidence led by the prosecution is conclusive to prove various offences for which accused has been sentenced and convicted by learned Sessions Judge and as such no interference is warranted in the impugned judgment and order. It was further urged that several circumstances which have been proved by the prosecution clearly prove the complicity of the accused in various offences for which he has been convicted. It was further urged that following circumstances have been conclusively proved against the accused which clearly prove that it was the accused and accused alone, who committed offences for which he has been convicted:-
(i) Confessional statement of the accused.
(ii) Dead body of Yogita @ Balika Naik was found in the property of Ganpat Joshi, father-in-law of PW14 Purshottam Kamlakar, on 15th January, 2009.
(iii) Attachment of the mud from the scene of offence.
(iv) The accused and deceased were known to each other and the accused proposed to get married with the deceased.
(v) Attachment of the mobile of the accused.
(vi) Recovery of the mobile of the deceased pursuant to the disclosure made by the accused.
(vii) Recovery of the mobile of Rohan Kirlapalkar from the house of the accused pursuant to disclosure made by the accused.
(viii) Recovery of melted gold ornaments of the deceased at the instance of the accused.
(ix) Recovery of Silver bag of the deceased pursuant to the disclosure made by the accused.
(x) Deceased was last seen in the company of the accused on 10th January, 2009.
(xii) Non-explanation of incriminating circumstances by the accused in his statement under Section 313 of Cr.P.C.
(i) Judgment of Supreme Court in Criminal Appeal No. 2227 of 2010 : [2012 ALL SCR 1616]. (Surendra Koli V/s. State of U.P. and others)
(ii) Jitender Kumar V/s. State of Haryana
[(2012) 6 SCC 204] : [2012 ALL SCR 1890]
(iii) Rammi alias Rameshwar v/s. State of M.P.
(AIR 1999 SC 3544) : [2000(1) ALL MR 324 (S.C.) : 2000 ALL MR (Cri) 275 (S.C.)]
(iv) Mangal Singh and others v/s. State of Madhya Bharat
(AIR 1957 SC 1956)
(v) State of Rajasthan Vs. Kashi Ram
[2007(1) SCC(Cri.) 688] : [2007 ALL MR (Cri) 525 (S.C.) : 2007 ALL MR (Cri) 286 (S.C.)]
(vi) Kamalanantha and others v/s. State of Tamil Nadu
[(2005) 5 DCC 194]
(vii) Gurmukh Singh V/s. State of Haryana
[(2009) 15 SCC 635]
12. Admittedly, the case is based on circumstantial evidence. The standard of proof required for conviction of a person solely on circumstantial evidence is well established by various decisions of the Apex Court. According to that, the circumstances relied upon by the prosecution in support of the conviction must be established beyond reasonable doubt and the chain of evidence furnished by those circumstances must be complete in such a manner that it leaves no reasonable doubt for a conclusion consistent with the innocence of the accused. In the light of the above, we will analyse the evidence led by the prosecution to find out whether the circumstances relied upon by the prosecution, have been proved by the prosecution against the accused.
(i) Confessional Statement of the Accused.
13. The main circumstance relied upon by the prosecution is the confessional statement made by the accused to PW41 Maria Mascarenhas, Special Judicial Magistrate, who recorded the same under Section 164 of Cr.P.C.. She deposed that she was working as Special Judicial Magistrate for Tiswadi, Bardez and Ponda Talukas from April, 2009. She received a letter from Ponda Police station on 7th October, 2009 requesting her to record the statement of one Mahanand Naik (accused) under Section 164 of Cr.P.C. She identified the letter at Exhibit 158. She also identified the accused in the dock. She sent summons to the accused. The accused was brought before her on 13th October, 2009 in crime no. 89/2009 of Ponda Police Station. The accused was produced from Judicial Custody, Vasco. She confirmed that the accused was not subjected to any ill-treatment by the police and thereafter, asked few questions to him as per Criminal Manual as reflected in the statement recorded by her. She confirmed that the accused was going to give the statement voluntarily. She gave time of 24 hours for reflection and directed that the accused be produced before her on 14th October, 2009. Since he was produced on 14th October, 2009 at 12.15 hours, she sent him back to judicial custody and called him back again on 16th October, 2009. However, in view of the intervening Diwali holidays she sought his production on 29th October, 2009 on which day he was produced. She put questions to him to confirm his willingness to make the statement and thereafter, she recorded his statement and after taking precaution to ensure that there was no police personnel at that time. The accused stated that on 21st April, 2009 he was called by Ponda Police Station in connection with inquiry relating to missing girl in crime no. 89/2009. He further disclosed that he was using mobile with SIM No. 9922015347 which belonged to Deepa Parwar, the sister of Lata Parwar and he had used the said mobile till February, 2009 and in 2008, he had found mobile with SIM No. 9011921862 but he was not aware of its owner. He further stated that he had removed SIM card and kept the mobile hand set in his house. He further stated that in the first week of January, 2009 he had gone to the market at Ponda where he came in contact with deceased, who was working in an STD Booth at Ponda. He proposed to marry her with intention to rob gold and enjoy sex and kill her. He further stated that the victim had agreed to marry him. He took her to Ponda bypass in the bushes, had sex with her and was meeting her occasionally and was contacting her on SIM Card No. 9011921862 with an intention that in case a criminal case was registered by the police they will not be able to catch him. He further stated that the victim had agreed to marry him and he had given his name as Yogesh and had told that he had hardware shop at Ponda. He met her on 9th January, 2009 and told her that she had to meet his sister at Sanquelim to finalize the marriage and on that pretext, fixed the date of 10th January, 2009. At 9.00 hours, he contacted her on her mobile no. 9823042309 from mobile no. 9011921862 and asked her whether she was ready. She told him that she was on her way at old bus stand Ponda. Since he did not find her at the bus stand, he again contacted her on the same mobile. Thereafter, he met her at sweet mart shop. She was wearing greenish colour churidar top, orange colour pant and orange and green matching dupatta, black sandals, silver colour shoulder bag and a black mobile set, apart from wearing her gold ornaments. The accused further stated that he and victim went to go to Marcel by bus and took another bus and went to Sanquelim and went to Datta Mandir. He boarded the bus going to Keri and on reaching Morlem junction at 11.45 hours, they alighted from the bus, had a soft drink at the shop, walked down the road leading to Morlem Colony and after walking a distance of 200 metres, took the victim to cashew plantation on the left side of the road. They sat beneath a big tree, removed her clothes, had sex with her and then took her dupatta kept on the churidar near him, put around her neck and before she could realize, strangulated her to death. He further disclosed that after confirming that she was dead, he removed dupatta from her neck put it in her bag, also removed the gold ornaments, namely a chain, four bangles, finger ring and a pair of ear rings. He removed black sandals and put them under another tree, took her clothes along with him so that she should not be identified in case the body was found by the police. He thereafter, went to Bicholim where he reached at 13.20 hours. He kept her clothes at Bicholim Bus stand, walked towards Shirodkar Jewellers with her bag and sold her ornaments for ' 34,000/- He took the cash and silver colour bag and went to Sanquelim in a bus and thereafter, to Marcel and thereafter, contacted victim in Crime no. 86/2009 and made inquiries with her about the whereabouts of the victim in crime no. 89/2009. However, she could not talk to him on account of weak signal. Then he went to Ponda by bus and thereafter went to his house at Shiroda where he kept silver colour bag. He returned to Ponda in the evening at 7.00 p.m., threw SIM card No. 9823042309 belonging to the victim at Upper Bazar, Ponda. He inserted SIM card No. 9011921862 in the hand set of the victim and gave missed call to another girl Vandita Veer, who is resident of Shiroda on her cell just to check whether the victim's mobile was working or not and then removed the SIM card from 9011921862 which he inserted in the victim's mobile and threw the same near Upper Bazzar at Vodafone office. Thereafter, he went to rape victim at Ponda on the same night, kept silver colour bag in her house and thereafter, started using the handset of the victim by inserting another SIM card number which he did not recall. On 20th April, 2009 he was called by Ponda Police station and also the victim of rape and her sister and was asked to again remain present at the police station on 21st April, 2009. As such, he went to the house of rape victim on 20th April, 2009, collected silver colour purse and went to open area on the rear side of her house, tore the purse and threw it away. The rape victim asked him as to why he had thrown away the bag, he kept silence and went away. He further stated that he had destroyed the silver bag since he was scared of the police. He also made confessional statement in connection with murder of several other girls thereafter. She took his signature and thumb impression on each page. She signed on each page. She also drew the certificate and explained to him that he was not bound to make a confession and that if he did so, his confession may be used as evidence against him. She also verified that the statement made by the accused was voluntary and the accused had understood its contents before signing the same. She identified her signatures as well as those of the accused on each page of statement, which was marked as Exhibit 159. In the cross examination, she stated that she had recorded the statement of the accused as per disclosures made by him and not in a form of questions and answers. She also did not ask him the reason but she had told him the implication of such confession and had given him enough time for reflection. She had recorded the statement after satisfying that there was no allurement or threat by the police or any other person to make such statement. She denied the suggestion that the accused had not made any confessional statement as stated by her or that she had not followed the mandates provided in Criminal Manual of the High Court of Bombay. She also denied that she had falsely stated that the accused had made confessional statement admitting his involvement in this crime as well as other crimes. She denied the suggestion that the accused had not made any confession.
14. Upon close scrutiny of the evidence of this witness, it is evident that, the evidence of this witness has not been shaken in cross examination nor any illegality in recording the statement of the accused, has been pointed out. The evidence of this witness clearly suggests that the accused was given sufficient time to reflect and was told the implication of making a confessional statement and the same was recorded while accused was in judicial custody.
15. We have absolutely no doubt that the confessional statement recorded by this witness was voluntary statement of the accused recorded by the witness after complying with the procedure laid down in the Criminal Manual of this Court. There is absolutely no reason for this witness to falsely implicate the accused. Therefore, we have absolutely no hesitation in holding that the accused had made voluntary confessional statement to this witness and as such, this circumstance stands proved.
16. Various circumstances mentioned in the above confessional statement, with regard to the participation of the accused in the crime have been separately and independently corroborated. We now proceed to deal with the said other circumstances.
(ii) Dead body of Yogita @ Balika Naik was found in the property of Ganpat Joshi, father-in-law of PW14 Purushottam Kamlakar on 15th January, 2009.
17. In order to prove this circumstance, the prosecution firstly examined PW14 Purushottam Kamlakar, who deposed that on 14th January, 2009 at 9.00 p.m, he heard sound of barking dogs from the side of the cashew plantation of his father-in-law Ganpat Joshi at Bhatwadi Morlem. However, he assumed that some wild boar might have come in the jungle area. Besides that he was anticipating that his cattle were due for delivery of a calf. On the next day morning i.e. 15th January, 2009, by about 9.00 a.m., he went to cashew plantation. After crossing some distance near a big tree, he saw pair of lady sandals and he walked ahead. He started getting peculiar odour; he crossed the water channel and he noticed one female in a naked condition lying beneath a saton tree. Her feet were towards the tree and there were only undergarments on her body. The body was bloated and in a totally decomposed condition and was beyond recognition. Hence, he came back to his shop and phoned the police at the Keri outpost. Police from Valpoi Police station came to the spot took photographs and conducted all the formalities relating to the dead body. He identified 8 photographs shown to him which were taken on the spot. He also identified the big tree seen in the photographs, as saton tree. The photographs were admitted in evidence and marked as Exhibit 46 Colly.
18. PW 34, Mr. Dhuri, the Head Constable on duty at Kerim Out Post on 15/1/2009, has confirmed that he had received the said telephonic message about dead body of unknown female lying in the cashew plantation, with all details, from P. Kamlakar (PW14). He conveyed this information to Police Sub Inspector, N. D. Parwar at Valpoi P.S.. A station diary entry was duly effected by by him which is at Exhibit 124. PW34 had gone to the spot with police constables and had seen the said dead body showed by PW14. He came back and once again made a report about the position at loco to the Valpoi P.S. Thereafter PW32, PSI Parwar and others came to the spot and the panchanama of the scene of offence was drawn. PW36, Mr. Gawas, the driver of hearse van had also seen the said dead body at the said place.
19. The prosecution also examined PW31 Bhanudas Joshi, who was panch for the spot panchanama conducted at the instance of Valpoi Police, on 15/1/2009, in the cashew plantation of Ganpat Joshi where dead body was found. He deposed that he acted as a panch witness alongwith one Mahesh Patil at the instance of Valpoi Police Station on 15th January, 2009. He stated that dead body of female was shown to them beneath saton tree and the body was in decomposed condition. He also identified the photographs at Exhibit 46 colly which were taken at the time of panchanama. He further deposed that there were maggots on the body of the female. He also noticed two golden colour bangles and silver anklets on the body of the deceased. A pair of black colour sandals of mark "Podar" was seen at a distance of about 12/15 metres from saton tree. Police attached, packed and sealed the sandals. He further deposed that the mud was also collected from the place where dead body was found and it was separately packed and sealed in polythene bag which in turn was separately put in an envelope on which panch witnesses signed. He identified his signature on the panchanama and the sketch at Exhibit 98 colly. He further stated that the panchanama was read over to him in Konkani and was found to be correct. He also deposed that the inquest panchanama was also conducted on the dead body of the deceased. However, the face was completely decomposed. He identified his signature on the inquest panchanama, at Exhibit 99. He acted as pancha witness again on 17/1/2009, when the undergarments, golden colour bangles and silver anklets which were on the body of the deceased at the time of postmortem examination and which were handed over by Dr. Sapeco to the police were attached, packed and sealed. The panchanama of attachment is at Exhibit 101. The evidence of this witness which has not been shaken in cross examination is corroborated by PW32, PSI of Valpoi P.S., Narayan Parwar who had conducted all the above panchanamas.
20. The prosecution has also examined PW27 Mumtaz Khan who deposed that she was selling low quality footwear in her shop at Upper Bazar, Ponda. She was able to identify the footwear sold by her. A pair of black colour sandals, which was attached from the property of Ganpat Joshi, was shown to the witness. The witness stated that she used to bring this type of sandals and sell the same from her shop. In cross examination, she stated that similar type of sandals are sold in other shops also.
21. The prosecution has examined PW 33 Dr. Silvano Dias Sapeco, who conducted postmortem on the dead body of unknown female person which was referred to him by Valpoi Police Station on 17th January, 2009. The body was sent to GMC on 15th January, 2009 for preservation and postmortem examination was conducted on 17th January, 2009. His evidence also corroborates the version of PW14 Purushottam Kamlakar regarding the condition in which body was found. He opined the approximate time since death was within two weeks of preservation of body at GMC Morgue and no opinion as to the exact cause of death could be given since the body was in an advanced state of decomposition and as such, the viscera had been preserved for chemical analysis. He identified the yellow metal bangle and silver anklets which were found by him on the said dead body. He identified his signature on the postmortem report at Exhibit 109. He opined that the death could have been caused by strangulation with the help of dupatta. The evidence of this witness lends corroboration to the evidence of PW14 Purushottam Kamlakar but since the body was found in highly decomposed state his evidence does not establish that the death of said unknown female was homicidal.
22. Thus, the above evidence led by the prosecution which has not been seriously contested clearly proves that the dead body of unknown female wearing fake golden colour bangles and silver anklets, was found in the property(cashew plantation) of Ganpat Joshi on 15th January, 2009 and a pair of sandals was also found nearby.
23. The prosecution has also led evidence of PW13 Pramod Naik, brother of the deceased, PW19 Anusuya Naik, mother of the deceased and PW17 Priya Naik, sister-in-law of the deceased. All these three witnesses have identified the sandals(MO1) which were found near the dead body and also silver anklets and two fake bangles(both MO6) which were found on the body of deceased. Their evidence has not been shaken in cross examination. Being family members, their evidence regarding identification of articles belonging to deceased inspires confidence. Further, D.N.A. Report confirmed that the said decomposed body was of the deceased.
24. At the request of Police Inspector of Ponda Police Station, PW33, Dr. Silvano Dias Sapeco had collected the piece of lever, lung, kidney and uterus of the unknown female for DNA test and had forwarded the same in a sealed condition to Police Inspector, Ponda Police Station vide his letter dated 20/05/2009 along with the forwarding note and the form. This forwarding note and the form are at Exhibit 113 - Colly. At the request received from Ponda Police Station Dr. Sapeco had also collected and preserved blood of the parents of the said victim namely Khushali Hari Naik and Anusuya Khushali Naik, for DNA test and had forwarded the same in a sealed condition to Police Inspector, Ponda Police Station. The said articles were then forwarded through SP CID, CB, Panaji to Central Forensic Science Laboratory (CFSL), Hyderabad.
25. PW43, Sathyan, a Senior Scientific Officer who was then working at CFSL, Hyderabad deposed that he received two sealed EDTA bulbs and one sealed glass jar on 29/05/2009 from the office of SP, CID, CB, Panaji for DNA profiling. According to him the seals on the EDTA bulbs were intact and tallying with the specimen seals forwarded along with the request letter. The sealed glass jar contained a brown turbid liquid containing tissues, tissues pieces of liver, lung, kidney and uterus of an unidentified female. PW 43 had experience of having examined 5000 exhibits in about 2000 cases from all over India. He subjected the blood contained in the EDTA bulbs and a portion of the kidney from the glass jar to DNA isolation by organic extraction method. He further stated that the DNA recovered from the said exhibits were subjected to multiplex PCR reaction for co-amplification of 15 STR loci and amelogenin using identifiler/TM PCR amplification kit. The amplified products along with controls were run on the automated DNA sequencer. The sizing of fragments was carried out using gene mapper(R) ID software version V 3.2 with respect to gene scan 500 LIZ size standard. PW 43 deposed that the genetic profile generated from the source tissue(Exhibit-D) was indicative of a human female origin. He stated that one of the alleles in the genetic profile of said source tissue (Exhibit D) was found similar to one of the alleles of the genetic profile of source liquid blood of Ms. Anusuya (Exhibit F). According to PW43, all the non-material alleles of genetic profile of source tissue (Exhibit D), were found alike to one of the alleles in the genotype profile of the liquid blood sample of source Mr. Khushali Naik (Exhibit M). He deposed that the probability of Ms. Anusuya (source of Exhibit F) and Mr. Khushali Naik (source of Exhibit M) contributing the maternal and the non-maternal alleles to the genetic profile of the source tissue(Exhibit D) is 99.9999% than any other person at random. He, therefore, concluded that the tissue (source Exhibit D) belongs to biological female offspring of the couple Ms. Anusuya and Khushali Naik. He identified the examination report and his signatures on the same at point A. The examination report is at Exhibit 172. He also identified the other materials like sealed envelopes, sealed glass jar, the seal label affixed etc.. He also confirmed that he had received the Biological Sample Authentication Card of said Khushali and Anusuya which are at Exhibits 58 and 59. There can be no dispute that Mrs. Anusuya and Mr. Khushali Naik are the parents of the deceased namely Ms. Yogita Naik.
26. It is therefore proved that the dead body of female which was found in the property(cashew plantation) of Ganpat Joshi, father-in-law of PW14 Purushottam Kamlakar, on 15th January, 2009 was of Yogita @ Balika Naik, the daughter of Anusuya (PW 19) and Khushali Naik. It is also proved that the clothes of the deceased, except the undergarments, were removed. Said clothes were never found.
(iii) Attachment of the mud from the scene of offence.
27. The evidence of PW31, Bhanudas Joshi, the panch for the spot panchanama, which is part of Exhibit 98 colly, reveals that the area surrounding the dead body was appearing disturbed and there was reddish and oily fluid in the vicinity of the body and beneath it. There was white colour brassiere in a soiled condition and a similar colour panty on the body of the deceased. There were two golden colour bangles on the right wrist and silver anklets on both the feet. There were black colour sandals of make 'Podar' at some distance from the dead body which were attached, packed and sealed as Ex.'A'. PW31 has identified the sandles shown to him in the Court. The samples of mud from the place of the dead body as also from some distance away from the same were also collected and marked Ex.'B' and Ex.'C' respectively after packing and sealing them. As per the panchanama, Exhibit 98 colly, and as duly stated by PW31, some loose scalp hair found near the dead body were also attached, packed and sealed. as Ex.'D'. Photographs were clicked and video recording was done and a C.D. was also prepared. PW31 has identified the photographs which are at Exhibit 46. The C.D. was played on the laptop in the trial Court and then it was marked as Exhibit 100. Under the attachment panchanama dated 17/01/2009, Exhibit 101, also proved by PW31, the knickers and brassiere were marked as Ex. 5 and the fake gold bangles and silver anklets were marked as Ex. 6(a) and 6(b).
28. PW24, Mangal Purohit acted as one of the panch witnesses for the panchanama of recovery of mud(soil) at the instance of the accused. This panchanama and sketch (Exhibit 71 colly) were drawn on 24/04/2009 by PSI Sanjay Dalvi (PW51). The evidence of PW 24 and PW51 reveals that the accused took them to the said cashew plantation at Morlem junction on Kerim road and showed the place where there was a saton tree and which place was giving a peculiar odour. However, nothing was found there. But sample of mud and control sample of mud from that place were attached, packed and sealed and marked as Ex.7 and Ex.8.
29. The examination reports of CFSL, Hyderabad which are at Exhibits 174 and 175, produced and proved by PW 43, Mr. Sathyan, the Sr. Scientific Officer of CFSL, Hyderabad establish that blood was detected on the stained mud (Ex.B); control mud (Ex.C); the knicker [EX.5(1)]; brassiere [EX.5(2)]; fake gold bangles[EX.6(1)]; silver anklets [EX.6(2)]; sample of mud (EX.7) and the pair of slippers (Ex.11). The control mud marked as Ex.'C' was found to be similar to the sample of mud marked Ex.8. The sample mud marked as Ex.B was found similar to the mud marked as Ex. 7. The mud from the knickers and brassiere marked as Ex.5 was found similar to the sample marked as Ex. B and Ex.7.
(iv) The accused and deceased were known to each other and the accused proposed to get married with the deceased.
30. Learned counsel appearing for the accused fairly submitted that he does not dispute this circumstance. That apart, the prosecution has led evidence to prove this fact. PW19 Anusuya Naik, the mother of the deceased deposed that in January, 2009, her daughter Yogita Naik told her that one person has contacted her at Ponda and proposed to marry her. She further told her that the person did not have two teeth in the lower jaw, to which she asked her daughter whether she would accept such a person in marriage, to which her daughter replied that the said person has assured her to replace two missing teeth. Her evidence further disclosed that on 4th January, 2009 when she was in the kitchen garden in front of her house, she saw one person with a beard who had come to drop her daughter on the scooter. She stated that she will be able to identify the said person, if shown to her. She identified the accused in the dock who did not sport a beard. She stated that she could confirm the identity of the accused by seeing his teeth. Thereupon the accused was called upon to open his mouth and at that time, it was noticed that he did not have two teeth in the lower jaw. Her evidence further discloses that she also made inquiry with her daughter about the person who dropped her on the scooter, to which the daughter replied that it is the same person, who had proposed to marry her. The evidence of PW39 Ravi Pardeshi, Nodal Officer for Vodafone Cellular Company produced IMEI of the Mobile No. 9823042309 of the deceased which shows that calls were made to the mobile of the accused from 6th January, 2009. Moreover, PW40 Sachin Shinde, the Nodal Officer of Idea Cellular produced C.D.R. of the handset of the accused bearing I.M.E.I No. 355540017278630 and mobile no. 9011921862 of Rohan (PW5) used by the accused which shows that calls were made and received by the deceased from 6th January, 2009. Moreover, in the confessional statement made by the accused to PW41 Maria Mascarenhas, the accused has clearly admitted that he knew the deceased.
31. The evidence of above witnesses also stands corroborated by PW30 Dr. Ajit Dinkar, professor of Goa Dental College who had examined the accused, PW1 Mustak Shaikh, the panch witness to the arrest panchanama, PW16 Lata Parwar and PW51 PSI S. Dalvi who conducted arrest panchanama of the accused. They have consistently deposed that the lower two teeth of the accused were missing. Thus, the prosecution has been able to establish by leading cogent evidence that the deceased was known to the accused. It is also established that he had proposed to marry the deceased.
(v) Attachment of the mobile of the accused.
32. The accused was arrested on 21/4/2009, in Cr. No. 86/09 under Section 376 of IPC, and the arrest panchanama is at Exhibit 11 duly proved by PW1, Mr. Mustak Shaikh and by PW51, Mr. S. G. Dalvi, the investigating Officer. During this panchanama, the mobile (MO19) bearing IMEI No.35540017278630 related to sim card no. 9623493511 was attached from the possession of the accused. The evidence on attachment of this mobile of the accused is not at all shaken in the cross-examination of the above witnesses.
(vi) Recovery of the mobile of the deceased pursuant to the disclosure made by the accused.
(vii) Recovery of the mobile of Rohan Kirlapalkar from the house of the accused pursuant to disclosure made by the accused.
(viii) Recovery of melted gold ornaments of the deceased at the instance of the accused.
(ix) Recovery of Silver bag of the deceased pursuant to the disclosure made by the accused.
34. As already stated earlier, the accused was arrested on 21/4/2009 in some other case. PW23 Dipu Naik acted as one of the panch witnesses for the panchanama of recovery under Section 27 of the Evidence Act. This panchanama at Exhibit 69, was drawn by PI Mardolkar (PW50) on 25/4/2009. It commenced at 02.25 p.m. and was concluded at 09.00 p.m.. In this panchanama, more than one page is covered by disclosure made by the accused which contains wholesale confessions. PW23 and PW50 in their depositions, stated about the entire said confessions made by the accused. But the submission of the learned Counsel for the accused that on account of the above, the entire panchanama and the entire testimony of PW23 and that of PW50 on these recoveries is liable to be discarded, is not correct. In the case of "Jitender Kumar", [2012 ALL SCR 1890] (supra), relied upon by the learned Additional Public Prosecutor, it was argued that the confessions were not recorded in the manner contemplated by law and the confession cannot be taken on record where it incorporates both admissible and inadmissible parts thereof together. The Apex Court held that the admissible part can very safely be segregated from the inadmissible part in the statement of the accused. After segregating the admissible portion from that which is inadmissible, in terms of Section 27 of the Evidence Act, and as held in the case supra, it is revealed that the accused had stated before the panchas that he had put the clothes i.e. salwar kameez and dupatta in the shoulder bag and at Bicholim bus stop had wrapped the said clothes in a newspaper and kept them at the said bus stop. The accused further disclosed that from Bicholim bus stop, he went to the shop of a goldsmith in Bicholim and sold the ornaments namely four gold bangles, one gold chain, one gold finger ring, and a pair of gold earrings to the said goldsmith and then went to Ponda with the shoulder bag and from there to Shiroda and handed over the said shoulder bag to Lata Parwar at Anandwadi, Shiroda but later on tore the same and threw it behind her house. The accused then disclosed that he had thrown the sim card no. 9922015347 and had kept the mobiles at his house at Tarvalem. According to PW23, the disclosure was made by the accused in Konkani. This part of the panchanama containing details of disclosure made by the accused was recorded at Ponda P.S.. PW23 deposed that photographs were taken by PSI Dalvi during this time and the said part of the panchanama was signed by him, second panch, PI. Mardolkar and the accused himself. He identified all the signatures as also the seven photographs, in which, inter alia, he is seen along with the other panch namely Suresh.
35. The evidence of PW23 further discloses that the accused expressed his willingness to show the places and then took the panchas and the police party to Bicholim bus stop. However, nothing was found inside the bus stop. The accused then took the panchas and police party to a shop of goldsmith by name "Shirodkar Jewellers". There were two persons in that shop and the accused stated that he had sold the gold ornaments to Premnath. The said goldsmith, Premnath stated that he had purchased the gold ornaments being four gold bangles, one gold chain, one gold finger ring and one pair of gold earrings all weighing 57.2 grams from the accused on 10/01/2009 and had melted them into a rod/bar. The goldsmith then handed over the said gold bar to PI. Mardolkar. According to PW23, it was 7.5 cms long and about three fingers wide and the said gold bar was put in an envelope, packed and sealed after obtaining their signature. PW23 stated that photographs were taken during all this procedure. A receipt was issued by PI. Mardolkar to Premnath and a bill was issued by said Premnath to Mardolkar. The bill is at Exhibit 51 whereas the receipt is at Exhibit 52. PW23 deposed that this part of the panchanama was written at the shop of the goldsmith and it started at 16.20 hours and ended at 17.10 hours. PW23 identified his signatures and of others including that of the accused on the envelope, receipt, bill, panchanama, etc., and also identified MO9 as the said gold bar.
36. The deposition of PW23 further reveals that the accused then took them to his house at Tarvalem-Shiroda. The name of the accused as Mahanand Naik and of his wife as Puja M. Naik with address was found on the door. The accused put his hand in a gap behind the plywood plank which was to the right of the door and removed a plastic bag in which there were two mobiles one of make Vodafone and the other of make Nokia. The Vodafone mobile was black in colour with silver border whereas the Nokia mobile had spiderman picture on it. Both were without sim cards. The mobiles and the plastic bag were all separately packed and sealed. Signatures were obtained as earlier. Photographs were taken as usual. PW23 has identified MO10 as the said Vodafone mobile and MO11 as the said Nokia mobile. He has also identified MO 12 as the said polythene bag. This part of the panchanama was drawn between 18.10 hours to 18.50 hours and was written in the veranda of the house of the accused.
37. Thereafter, according to PW23, the accused took them to Anandwadi-Shiroda to the house of another victim by name Parwar and then to the back side of that house where three pieces of the shoulder bag of silver colour were found which were packed and sealed. This panchanama started at 19.50 hours and ended at 20.20 hours and was recorded in the veranda of the house of said Parwar. PW23 has identified MO13 as the said shoulder bag. He identified his signatures on concerned documents.
38. As per the testimony of PW23, the accused had taken them to Upper Bazar Ponda near Vodafone Mobile gallary and had pointed out to the foothpath outside the Mobile Gallary and stated that he had thrown the sim card of vodafone 125 moblie and Nokia mobile of Deepa at that place. A search was made but the cards were not found. Thereafter, the accused took them to Lower Bazar near Polo shop and showed the place where he had thrown the sim card of Nokia mobile. Search was made there but the sim cards were not found.
39. In his cross-examination, PW23 deposed that he was passing by the police station to go towards the old Aisha theatre for some casual work when he was called by the police to act as panch. He further stated that he had acted as panch witness in a case of an accused by name Shahul Hamid. He has denied the suggestion that he acted as panch in 10 more cases. He specifically stated again that he acted as panch only in two cases, the present one and the case of Shahul Hamid. Most of the cross-examination of PW23 contains suggestions which are all denied by PW23. Merely by acting as panch witness in two cases, a person cannot be stamped as stock panch for police and treated as unreliable. His testimony is not shaken in the cross-examination. The testimony of PW23 has been fully corroborated by that of PW50, on the said disclosures and consequent recoveries. All the said recoveries are therefore duly proved beyond doubt, to be at the instance of the accused.
40. The prosecution has examined said goldsmith namely Premnath Shirodkar as PW18. He has deposed that he is running a jewellery shop at Bithalipeth, Bicholim under the name "Shirodkar Jewellers". On 10/01/2009 at about 13.00 to 13.30 hours, when he was closing his shop, the accused came and told that he wanted to sell 4 gold ornaments, pair of earrings, a gold chain and a finger ring since his wife was ill and he required money. According to PW18, he weighed the said gold ornaments and found the weight to be about 57.2 grams and he purchased those ornaments and gave ' 34,000/- to the accused. According to him, sometime on 24th or 25th April, 2009, the police from Ponda came to his shop along with the accused and the accused informed that PW18 had purchased the gold ornaments from him. PW18 recognized the accused as the same person who had sold the gold ornaments to him on 10/01/2009. According to PW18, he had melted the said gold ornaments and hence handed over the melted gold bar weighing 57.2 grams to the police. A panchanama was conducted and the said gold bar was attached. A receipt was issued to PW18 and he also issued a bill to the police. He has identified the receipt, Exhibit 51 and the bill, Exhibit 52. PW18 deposed that photographs were also taken by the police. He was shown the seven photographs and he identified them all. These photographs are at Exhibit 53 colly. PW18 has identified MO9 showed to him in the trial court as the same gold bar. The statement of PW18 was recorded by learned JMFC Ponda. According to PW18, he had made detail disclosure to the learned JMFC. He identified his signature on the said statement recorded under Section 164 of Cr.P.C., by the JMFC, Ponda.
41. The testimony of PW18 has not at all been shaken in the cross-examination. Besides the above, the same has been fully corroborated by the testimony his son, namely Gaurish Shirodkar examined by the prosecution as PW22. The statement of PW22 was also recorded by the learned JMFC, Ponda under Section 164 of Cr.P.C. PW22 has identified his signature on the same. Both PW18 and PW22 have corroborated the said statements. The said JMFC, Ponda, namely Mr. Carlo Santana Da Silva has been examined as PW44 and he has confirmed the same.
42. It was contended by the learned Counsel appearing on behalf of the accused that neither PW18 nor PW22 has referred to any panch witness having accompanied the accused and police. He pointed out that PW22 has specifically stated in the cross-examination that there was no other person present besides the police and the accused at that time. PW22 was re-examined by the prosecution when he stated that he had forgotten on the last occasion that two panchas were present and that they are seen along with himself and police on the photographs, Exhibit 53 colly. Learned Counsel for the accused argued that the subsequent statement allowed to be made by PW22 is by way of an afterthought and is an attempt to fill the lacuna and could not have been recorded. According to him, the said panchanama at Exhibit 69 is a farce. In this regard, in the case of "Rammi alias Rameshwar", [2000(1) ALL MR 324 (S.C.) : 2000 ALL MR (Cri) 275 (S.C.)] (supra), relied upon by the learned Additional Public Prosecutor, the Apex Court has held that the very purpose of re-examination is to explain matters which have been brought down in the cross-examination and there is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in the cross-examination. It has been held that questions can be put to obtain explanation required for any matter referred to in cross-examination. PW18 and PW22, no doubt, forgot to make reference to the panch witnesses. The statement made by PW22 in re-examination should be read with the photographs, Exhibit 53 colly about which Pw 22 has made reference in the re-examination. Both PW18 and PW22 have stated that photographs were taken at their shop. They have confirmed that the photographs at Exhibit 53 colly are the same. These photographs duly show both the panch witnesses. PW23 is one of them and he has identified himself and the other panch witness in the said photographs. Hence, there is no substance at all in the above objection of the learned Counsel for the accused. In his cross examination, PW18 has stated that the rate of gold was ' 900/- per gram in the month of January 2009. Merely because according to PW18, he purchased the gold for ' 34,000/- only, the transaction need not be doubted since no question was put to him by the advocate for the accused as to why he purchased said gold ornaments by paying less price.
43. PW13, Pramod Naik, the brother of the deceased and PW19, Anusuya Naik, the mother of the deceased have both stated that on 10/01/2009, the deceased left the house at about 09.30 a.m. and at that time she was wearing a gold chain in her neck, one gold finger ring, four gold bangles, pair of gold ear rings and two fake gold bangles and was carrying a silver colour purse. According to PW19, her brother Kanta from Chinchinim had gifted the gold chain and the two gold earrings to the deceased about 15 years back and she was wearing them since then. PW19 further stated that she had purchased gold finger ring and silver anklets for the deceased from "Om Sai jewellers", Ponda about 8 months prior to the death of the deceased and had paid ' 2800/- to the goldsmith. PW19 further deposed that her daughter and she along with her husband Khushali had visited the goldsmith at Ponda named Bandodkar Jewellers and purchased four gold bangles about 8 months prior to the missing of the deceased by paying ' 25,000/- as advance and the balance amount of ' 23,000/- was paid by her husband at the time of taking delivery. Mr. Bandodkar, the goldsmith had passed a bill towards the said transaction which is at Exhibit 23.
44. The prosecution has examined the said goldsmith by name Santosh Bandodkar, the owner of the shop "Bandodkar Jewellers", as PW21. PW21 has confirmed that Kushali Naik, his wife and daughter(since deceased) had come to his shop some time in 2008 to make four gold bangles for the deceased and the mother had paid advance of ' 25,000/- and after about 15 days or so they collected the four bangles by paying balance of ' 23,000/-. PW21 has identified the estimate given by him in his handwriting on his letter head which is at Exhibit 23.
45. The prosecution has examined another goldsmith namely Rajendra Karekar from whom the gold ring and silver anklets were purchased. PW25 is the said Rajendra. He deposed that the deceased had come to his Jewellery shop about 8 to 10 months prior to her death along with an elderly woman probably her mother and had purchased a gold finger ring for ' 2,800/- along with a pair of silver anklets. A sealed envelope received from CFSL was opened in the trial court and the pair of silver anklets contained in transparent sealed polythene packet were shown to PW25. He identified the said pair of anklets in view of the name 'Rani' embossed on it.
(x) Deceased was last seen in the company of the accused on 10th January, 2009.
47. The evidence of PW13, Pramod Naik reveals that his deceased sister was working in STD shop, known as 'Roopam Communications', belonging to one Shailesh Mamlekar near Chicken Centre, Upper Bazar, Ponda. As already stated earlier, on 10/01/2009 the deceased left the house at 09.30 a.m. PW13 was at home at that time. The deceased had worn a green colour churidar, an orange colour pant, a green and orange colour dupatta and besides that she was wearing a gold chain in her neck, gold finger ring, four gold bangles, two fake gold bangles and a pair of earrings and was also wearing silver anklets. She was carrying a silver colour purse and was wearing black colour sandles. The deceased was further carrying a mobile of make Vodafone 125 bearing no. 9823042309. She did not return back. On 14/01/2009, PW13 lodged the missing report which is at Exhibit 43. PW13 has explained that the delay in lodging the missing report was on account of the hope that the deceased would return and further they did not want police record which would affect her marriage prospects in the near future. PW19, the mother of PW13, has corroborated him. Thus, it is duly proved that as from 10/01/2009, the deceased was missing.
48. PW14 Purshottam Kamlakar, is the owner of the shop namely Shrikripa General stores situated at Morlem at the junction of Sanquelim Keri road via Colony Honda road. He sells chocolates, biscuits, soft drinks and other items at his shop and sleeps in the shop itself as the same is located in his own house. His evidence on the fact of locating the dead body has been already discussed earlier. PW 14 further deposed that he knows the person in the dock i.e. the accused since he had come to his shop about 4 to 5 days prior to the dead body being seen by him i.e. on 10/01/2009. PW 14 stated that the accused had come along with a female. He stated that he would be in a position to identify the said female from the photograph if shown to him. He was shown the photograph Exhibit 44 of the deceased Yogita Naik and he identified that the said girl had come alongwith the accused to his shop on 10/01/2009 between 11.45 hours to 12.00 noon and they drank Pepsi and went away. According to PW 14, the female was wearing churidar set with a dupatta and was carrying a silver colour purse and was also wearing black colour sandals with a strap behind. He deposed that the accused was wearing a pant and a long sleeved shirt and they both went walking towards the Morlem Colony side and about 30 to 40 minutes thereafter the accused returned back alone and at that time PW14 was sitting on the veranda of his shop and alone. PW14 noticed that the accused looked nervous at that time and was checking on either side of the road. PW14 further noticed that the silver colour purse which he had earlier seen in the hands of the deceased was now carried by the accused. PW14 saw the accused walking towards the bus stand from Keri to Sanquelim which is at the distance of 5 minutes walk from his house and visible from the open veranda. PW14 deposed that the accused then boarded the bus alone and went away. PW14 identified the silver purse which is MO 13. He stated that he took note of the said purse because the deceased had removed mobile from the said purse. PW14 deposed that he noticed the sandals on the feet of the deceased when she initially came to the shop with the accused for having soft drink and thereafter again in the cashew plantation on 15/01/2009. PW14 stated that the cashew plantation is at a distance of about 1.5 km from the main road and normally nobody goes in the said plantation. He also stated that his statement was initially recorded by the police and thereafter in the court at Ponda on 19/05/2009 and he had signed the said statement which was recorded in the Court. PW14 was subsequently called to the Office of the Mamlatdar at Ponda in connection with test identification parade in the month of June. According to PW14, there were in all three of them who were kept in a room and that he was taken to a room in which there were about 8 to 10 persons and he identified the accused who was amongst the group of 8 to 10 persons by touching him and by saying that he is the same person who had come to his shop with the deceased and had taken a soft drink and then taken her to the cashew plantation and had arrived back alone with her silver colour purse.
49. PW14 has corroborated the statement given by him to the Judicial Magistrate First Class, Ponda under Section 164 of Cr. P.C. which is at Exhibit 156. PW44, Carlo Da Silva is the said JMFC who recorded the said statement of PW14. The late father-in-law of PW14 was the sarpanch of Village Panchayat of Morlem. PW 14 has built a temple in his property and he goes to the Maruti temple which is behind his house to listen bhajans. In the cross-examination, he stated that the accused had purchased two soft drink bottles for them and had waited at the shop till they consumed the soft drink. He stated that the accused and the deceased sat on the cement platform outside the shop at varanda. According to him every person coming to his shop had to remove the foot wears since the shop is the extension of his house and he has his deities in that room. Merely because PW14, immediately after seeing the dead body by about 9.00 hours, did not inform the police but telephoned the police at Kerim Out Post by about 12.30 to 13.00 hours, that does not render his testimony unreliable since the fact that the dead body was really found in the said cashew plantation is proved by other evidence, beyond reasonable doubt. In our considered opinion, PW14 is a truthful witness whose testimony is not shaken in the cross-examination and he has no reason to falsely implicate the accused in a serious crime.
50. PW14 has admitted that he was aware from the newspaper report that victim was dead when he went for the T. I. Parade and that the accused was arrested. He further deposed that he had also seen the photograph of the accused in the newspaper. PW37, Mr. Chandrakant Shetkar, the then Executive magistrate, Ponda Taluka, had conducted the Test identification parade in respect of the accused, on 12/06/2009, in which PW14 duly identified the accused. Since PW14 had seen the photograph of the accused in the newspaper prior to the date of Identification Parade, we will not give any importance to the evidence of PW37 and the Memorandum of T.I. Parade prepared by him. However, PW14 being proved to be a truthful witness, we have no hesitation to rely upon the identification of the accused done by him in the Sessions Court as the man last seen by him with the deceased.
51. There is sufficient evidence on record showing that on 10/01/2009, the deceased had received two mobile calls from the accused one at 09.20 hours and the other at 09.47 hours. Further, there is evidence to establish that the accused had made a call to PW16, Lata at 14.42 hours on 10/01/2009 and the tower location, insofar as the mobile of the accused is concerned was at Sanquelim.
52. The evidence of PW5 Rohan Kirlapalkar, reveals that he was a student of Electrical and Electronics Engineering at Goa Engineering College, Farmagudi during the period from 2005 to 2009. He deposed that he was using a Nokia mobile of model 3310 with a cover of a spider man and the sim number was 9011921862 and IMEI number was 351534003918128. He deposed that during his journey by bus from Sanvordem to Ponda, sometime in June/July, 2008, he had lost his above described mobile phone. According to him after he got down at Ponda bus stand to go to the college he realized that his mobile was lost. He searched at the bus stop but could no find it. He however did not lodge any missing report at the police station. He has given the reason for the same to be that the said cell phone was an old one. PW5 stated that sometime on 03/03/2009 he was called by one Constable from Sanguem Police Station to report at Ponda Police Station and accordingly he went to Ponda Police Station on 04/03/2009 when PSI Dalvi made inquiries with him regarding his cell phone and asked him whether he knew a girl by name Yogita Naik. PW5 told PSI Dalvi that the mobile phone of the model 3310 belonged to him and that he did not know any girl by name Yogita Naik. Again he was called at the Ponda Police Station on 28/04/2009 when PSI Dalvi showed him the said mobile hand set of make Nokia 3310 with the spider man cover, which was packed in a plastic envelope and bearing the seals. PW5 identified the said cell phone to be his and the same which was lost in transit. He described the hand set as blue in colour with a cover of spider man. The said mobile set(MO11) was shown to him in the sealed envelope with a portion of transparent polythene and he identified the same as belonging to him. In his cross-examination, PW5 stated that after he lost the first mobile he purchased one more and he was using the same. He gave the new sim number as 9765185072 and described the new set as of Nokia make model 3110 and black in colour. He even gave the IMEI number as 358977011436067. That proved his capacity to remember. He denied the suggestion that he falsely identified the hand set in the Court. Subsequently, PW5 was recalled to show him his customer application form bearing photograph used for purchase of the said mobile no. 9011921862. He identified his signature on the said application. The said customer application form is at Exhibit 148. The testimony of PW5 is not at all shaken in the cross-examination and there is no reason to disbelieve the same.
53. PW 40, Sachin Sinde is the Nodal Officer of Idea Cellular for Maharashtra and Goa. He deposed that the IMEI No. 35153400391820 related to the SIM Card No. 9011921862 and the name of the subscriber was Rohan Kirlapurkar. PW 40 produced the Customer Application Form having name and photograph of PW5 which is at Exhibit 148. He identified the said application as well as the mobile shown him in the Court. PW40 was shown the mobile of blue colour of make Nokia 3310 having spiderman cover(MO11) and he identified the same as belonging to Rohan(PW5). PW40 has also stated that the IMEI No.35540017278630 related to sim card no. 9623493511 and the subscriber is Mahanand Naik, whom he identified as the accused present in the Court. PW40 produced the Customer Application Form having name and photograph of the accused and other details as Exhibit 149. PW40 identified MO 19 as the said mobile of the accused. The ownership of this mobile set is not disputed by the accused.
54. It is proved that the mobile hand set of blue colour of make Nokia 3310 with the spider man cover and sim number 9011921862 belonged to PW5 and the same was lost sometime in June/July 2008. It is also proved that MO11 is the said mobile set. In his confessional statement, the accused stated that he found the said mobile.
55. The evidence of PW23 and the recovery panchanama at Exhibit 69 proves that MO11, the said blue colour hand set of make Nokia 3310 with the spider man cover, belonging to PW5, was recovered at the instance of the accused from his house at Shiroda. When this mobile was attached, there was no sim card in it.
56. The unshaken testimony of PW20, Mr. Santosh Gaonkar, the owner of the shop known as "Vijaya Electrical and Electronics", and that of PW35, Mr. Vishal Kerkar, the salesman working in the said shop proves that the Vodafone handset model no. 125 with IMEI No. 35750011453280 was purchased by Arvind Naik, the brother of the deceased, for ' 1200/-. The purchase bill is at Exhibit 22. PW20 and PW35 have identified the mobile MO10 as the same one. Even, the empty box of the said Vodafone hand set was attached from the possession of PW41, under a panchanama which is at Exhibit 20, duly proved by PW3, Mr. Rajendra Naik. The said panchanama was conducted by PW52, the Investigating Officer.
57. The testimony of PW 42, Mr Arvind Naik, the brother of the deceased, unerringly, proves that the said mobile set (MO10) bearing IMEI No. 35750011453280 and Sim No. 9823042309 were purchased by him and he had given them for the use of his sister, since deceased, who alone used to use the same. The evidence of PW17, Mrs Priya Naik, the wife of PW42 also proves that her husband had purchased mobile no. 9823042309 of Vodafone model no. 125 and had given it to his sister, since deceased. The evidence of PW13, Mr. Pramod Naik, another brother of the deceased also proves that the deceased was using mobile no. 9823042309.
58. PW48 Ms. Vandita Shirodkar, deposed that she was using the mobile hand set since 2007 with sim card of Vodafone having no. 9923983007 which she lost about six months back. She identified the application form for the said connection on which her photograph was affixed, apart from her signature appearing on the same. The said application form signed by PW48 in respect of purchase of the said SIM card is at Exhibit 203. She deposed that she knows the accused through her sister named Jasvita since the end of the year 2007 or beginning of the year 2008. She deposed that the accused had come to her house alongwith his wife Puja sometime in 2007, after watching the dance performance of her sister during satyanarayan pooja in their Ward and to request her sister to join the dance group run by his wife. According to her, her parents had given her mobile number to the wife of the accused as a contact number in case their landline phone was out of order. PW48 deposed that the accused and his wife were contacting her on her mobile in connection with the dance programs and costumes of her sister. She deposed that the accused had given his mobile number as 9011921862 (this is the said mobile(sim card) registered in the name of PW5, Mr. Rohan Kirlapalkar). PW48 was shown the call details which are at Exhibit 152-Colly and she stated that she had sent an SMS to the accused on his mobile having sim card no. 9011921862 on 10/01/2009 at 6.47.07 p.m. from her mobile no. 9923983007. There is no dent created to the evidence of PW48, in her cross-examination. Thus, it is evident that the mobile of Rohan Kirlapalkar (PW5) was used by the accused.
59. PW11 Mrs. Dipa Parwar deposed that she has sisters namely Shoba, Lata and Lalan and that she knows the accused since he used to come to her house at Shiroda, Ponda with his wife Puja, later being the friend of her sister Lata. She deposed that she was having a SIM card of Idea Cellular bearing no. 9922015357 which she had purchased in her name in the year 2007 and had given it to Lata for her use. She deposed that the accused had taken away the said SIM card from Lata for his use and had continued to use the same till much later. She deposed that on 20/04/2009 Lata came to her house at Bicholim and told her that she was called at Ponda Police Station in connection with the inquiry relating to a missing girl. PW 11 and Lata came to Shiroda on the same evening and accused came to her house at night time when she was inside the house. On the next day i.e. on 21/04/2009 PW 11 and Lata went to the Ponda Police Station at about 10.00 hours when the accused was already there at the Police Station apart from PSI Mardolkar and at that time Lata lodged complaint against the accused. PW 11 was subsequently recalled and was shown the application form for a pre-paid connection which is at Exhibit 150 and which was produced by PW40, Mr. Sachin Shinde, the nodal officer of Idea Cellular. PW 11 identified her signature on the same at point A and also Election Identify Card produced by her in proof of identify. The sim card number which was allotted to her as recorded in the said application form, and as stated by PW40 is 9922015347 and the IMEI no. as stated by PW40 is 355029004123470. The testimony of PW 11 is not at all shaken in her cross-examination.
60. PW16 is the said Lata Parwar. She deposed that she is residing at Anandwadi, Shiroda along with her younger sister by name Lalan and that she has two married sisters namely Shobha Betkikar and Deepa (PW11). She deposed that in the year 1998 she was in standard 10th and was also attending singing classes with Ratanji Betkikar near Sai Baba Temple, Shiroda. She stated that there she met one female named Puja, wife of accused and friendship developed between her and Puja during the said singing classes. She further deposed that there was pooja in the house of the accused at Tarvalem, Shiroda for which she was invited by the wife of the accused and she attended the same. Puja introduced her to the accused who was her husband. She deposed that when she was studying in 12th standard in the year 2005, her mother expired and the accused and his wife came to her house for condolence and their friendship increased and they started visiting the house of the accused and similarly the accused and his wife started visiting their house. According to PW 16 sometime in 2007, Deepa PW 11 gave her sim card of Idea Cellular bearing no. 9922015347 which was in her name to her (PW16) for her use, after her (PW11) marriage. PW16 deposed that the accused took away the said sim card from her in the year 2007 and started using it. PW16 deposed that the accused used to harass her and abuse her sexually and she suffered on account of the threats given by the accused and out of concern for her younger sister. According to her she had also consumed Lizol out of frustration in June 2007 and being fed up with the sexual and other harassment from the accused time and again. She deposed that sometime in the 3rd week of January, 2009 the accused came to her house, during the night time and sexually abused her and at that time he had a silver colour shoulder bag with him which he kept on the computer table in her house and went away while the bag continued to be in her house. She deposed that on 20/04/2009 the police came to her house from Ponda Police Station and informed that one girl was missing from Ponda and asked her to come to the Police Station along with her sister Deepa on 21/04/2009. On 20/04/2009 itself, PW16 went to the house of PW11 at Bicholim and told her about the same and both of them came to Ponda. The accused also told PW16 telephonically on 20/04/2009 that he was called at the Ponda Police Station on the next day in connection with one missing girl from Ponda. According to PW16, the accused came to her house on 20/04/2009 after midnight, collected the said silver colour shoulder bag from the computer table, went outside the house towards the rear portion and tore the bag and threw it behind her house and when she asked him as to why he had torn the bag, the accused did not respond but went away.
61. PW16 further deposed that on 21/04/2009, at around 10.00 hours, Deepa (PW11) and she went to Ponda Police Station where she saw the accused and police including Mardolkar and Sanjay Dalvi. During that time PW16 told the police that the accused had taken away sim card of her sister from her (PW16) and that the said sim card bears no. 9922015347. She also narrated the atrocities committed by the accused and various acts of sexual abuse committed by the accused on her. According to her, police recorded her complaint, registered the offence and placed the accused under arrest. She came to know at the Police Station that the accused was using the sim card given by her sister and was contacting the missing girl by name Yogita. She deposed that on 25/04/2009 the police came to her house along with the accused and some other persons and at that time the police attached the torn shoulder bag from back side of her house at the instance of the accused. She identified the shoulder bag MO13 as the same, which was brought to her house by the accused in the 3rd week of January, 2009 and which was torn and thrown by the accused behind her house on the night of 20/04/2009. She deposed that the accused had two missing teeth in the lower jaw which she had noticed when she met him in 1998 and the accused had disclosed that he lost the said teeth in an accident prior to his marriage in 1998. She submitted that she is having a separate sim card bearing no. 9765531791 which she purchased sometime in 2008 and the accused used to contact her on this number from the sim card of her sister i.e. 9922015347. She was shown the call details of the mobile bearing IMEI no. 35554017278630 furnished to the police and which is noted at internal page no. 29 of the extract dated 10/01/2009. She deposed that the accused had made a call to her on 10/01/2009 at about 14.42 hours from sim card no. 9922015347 of her sister Deepa on her number 9765531791. She stated that the accused during that call told her that he had gone to Keri - Morlem and that he was on the way and returning to Ponda. A minute scrutiny of cross-examination of PW16 reveals that there is nothing in the said cross-examination which can render her testimony unreliable.
62. The evidence of PW40 Sachin Shinde, the Nodal Officer of Idea Cellular read with CDR extract produced by him at Exhibit 147-colly reveals that call was made from the hand set of the accused bearing IMEI No. 355540017278630 and mobile no. 9011921862 of Rohan which was used by the accused to call Lata (PW16) at 14.42 hours on her mobile no. 9765531791 and the tower location was Sanquelim. Keri-Morlem falls in Sanquelim Taluka. Therefore, there is corroboration, from PW40 as well as the recorded Call details(Exhibit 147 colly), to the testimony of PW16, insofar as the call made by accused to her on 10/01/2009 at 14.42 hours from Keri-Morlem, is concerned, This indirectly lends support to the testimony of PW14 who says that the accused had come to his shop at Keri-Morlem, on 10/01/2009 between 11.20 hours to 12.00 noon along with the deceased. The testimony of PW16 also lends support to PW14 as the silver colour purse seen by PW14 initially in the hands of the deceased and then in the hands of the accused when he returned back alone, was seen by PW16 with the accused.
63. The evidence of PW19, Anusuya Naik, the mother of the deceased discloses that on 10/1/2009, the deceased wore a new Churidar set with orange dupatta, orange pant and green colour top, purchased by her on the previous day and along with a silver colour purse also purchased on the previous day, and by wearing the gold ornaments namely 4 gold bangles, one gold chain, one gold finger ring, gold earrings, silver anklets and 2 fake gold colour bangles, left the house by about 09.30 hours. According to PW19, the deceased was carrying with her, the mobile. PW19 stated that the deceased had received a phone call before leaving the house from a person representing himself as "Yogesh'. PW 19 has clarified that the accused had earlier disclosed his name to the deceased as Yogesh. According to PW19, the deceased was receiving calls from the accused even prior to 10/1/2009. PW19 has identified MO10 as the mobile of the deceased.
64. PW39, Ravi Pardesi, the Nodal Officer of Vodafone, produced call details of mobile No. 9823042309 of the deceased, for a period from 01/09/2008 till 25/02/2009. He deposed that the IMEI No. of the said mobile was 357570011453280 and it was registered in the name of Arvind K. Naik, who is the husband of the sister of deceased. He was shown in the court the said Vodafone mobile having IMEI No. 357570011453280 (MO10). He deposed as to how the details are mentioned in the Call Detail Register (CDR), the extract of which is at Exhibit 141. His evidence and the said extract of the CDR(Exhibit 141) produced by him disclose that the mobile of the deceased had received two calls on 10/01/2009 one at 09.20 hours and other at 09.47 hours from the Mobile(sim card) no. 9011921862 registered in the name of Rohan Kirlapalkar. The evidence of PW39 and the said extract also proves that the mobile of the deceased had received various calls from the mobile of Rohan(PW5) on 6/1/2009, 7/1/2009 and 9/1/2009.
65. The above evidence shows that the accused and deceased had met on 10/1/2009 after 09.30 hours as per the prior planning and were last seen together by PW14 till between 11.54 a.m. to 12.00.noon. Subsequently on the same day the accused had returned back alone with the silver purse of the deceased. In the third week of January 2009, the accused went with the said silver purse to the house of Lata (PW16) and kept the purse there but after knowing that the police were searching for him, he tore the said purse and threw the pieces behind the house of PW16. Thereafter the dead body of the deceased, in a fully decomposed state, was found in the cashew plantation belonging to the father-in-law of PW14, situated close to his house-cum-shop.
66. The evidence of PW23, Dipu Naik read with the evidence of PI. Mardolkar, the recovery panchanama in Exhibit 69 and the evidence of PW16, duly proves that the said silver colour shoulder bag((MO13) was recovered at the instance of the accused, from the rear portion of the house of PW16, Lata.
67. In view of the above, besides establishing various facts mentioned in the confessional statement, the circumstance that the accused was last seen with the deceased has been separately and independently proved beyond reasonable doubt.
68. It was contended by the learned Counsel for the accused that the exact time of death of the deceased has not been established. He pointed out that in the case of "Mohamud Shadab" (supra), this Court has observed that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In the present case, there is convincing evidence on record to establish that the deceased had left the house on 10th January, 2009 and was last seen with the accused and since then she was missing. In the present case, there are various other incriminating circumstances proved against the accused including the confessional statement made by him before Special Judicial Magistrate. Therefore, the last seen theory can be said to have been established in the present case.
69. It is well settled that the motive assumes importance in the case of circumstantial evidence. It is equally well settled that the motive being locked in the mind of the accused, it is difficult for the prosecution to prove the motive for the commission of the crime by the accused.
70. The evidence, to which reference has been made herein above, clearly proves that the accused, after committing murder of deceased Yogita, took gold ornaments on her body and sold them to M/s Shirodkar Jewellers. Thus, motive to get money is established. In addition, the prosecution has also tendered evidence of PW10 Sampada Gaonkar, PW12 Sushmita Gaonkar and PW15 Shilpa Salekar. The evidence of PW10 Sampada Gaonkar is not of much use inasmuch as she claims that the accused along with his wife had attended a Satayanarayan Pooja and at that time, the accused was chatting with his wife in her house. In cross examination, she has stated that she had not seen the accused chatting with anyone else. The evidence of PW12 Sushmita Goankar discloses that prior to her marriage in 2003, she was working in factory at Nirankal. At that time, the accused used to follow her and the accused had told her that he owned a shop at Usgao Tisk dealing with the sale of fans and asked her whether she was willing to work with him. However, she declined the offer. Similarly PW15 Shilpa Salekar disclosed that prior to her marriage in 2004, she was working in a farm house at Bethora. Sometime in the year 2003, the accused met her at Ponda when she was coming home from work and told her that he wanted two girls to work in his shop at Tisk Usgao. He told her that he would offer higher wages to her. He further told her that his mother was looking for a bride for him and whether she was willing to get married to him, to which she told him that she had a boyfriend. The evidence of two witnesses namely PW12 Sushmita Gaonkar and PW15 Shilpa Salekar is relevant for the purpose of proving the motive. In the case of "Mangal singh" (supra), relied upon by the learned Additional Public Prosecutor, the Apex Court held that the evidence led by the prosecution disclosing certain unpleasant things about the accused in the past, was relevant to establish the motive for murder and not for the purpose of determining as to whether the accused was a person of bad character likely to commit murder. In our view, the ratio of said judgment is squarely applicable to the present case. The evidence of these two witnesses namely PW12 Sushmita Gaonkar and PW15 Shilpa Salekar corroborates the motive established by the prosecution by leading cogent evidence. Thus, in our considered view, the prosecution has been able to establish by leading cogent evidence the motive on the part of the accused. The sale of gold ornaments to M/s. Shirodkar Jewellers by removing them from the body of the deceased Yogita Naik also lends corroboration to the confessional statement made by the accused to PW 41.
(xii) Non-explanation of incriminating circumstances by the accused in his statement under Section 313 of Cr.P.C.
71. The answers given by the accused under Section 313 of Cr.P.C., are not strictly 'evidence' as it is understood but sub-section (4) of the said Section, itself, inter alia, provides that the answers given by the accused may be taken into consideration. The same can be taken into consideration either in judging the innocence of the accused or his guilt. In the present case, in his statement under Section 313 of Cr.P.C., the accused has simply denied the incriminating circumstances appearing in the evidence against him put to him or has answered that he is not aware of the same. His case is of denial simpliciter and that he has been falsely implicated by the police. The purpose of putting the questions to the accused under Section 313 of Cr.P.C. is to afford an opportunity to him to give explanations consistent with his innocence. This provision is mainly for the benefit of the accused though it helps the Court to find out the truth. It is well settled that this examination is not an idle formality. In the case of "Deonandan Mishra Vs. State of Bihar", reported in AIR 1955 SC 801, the Apex Court has held that when various links in the chain have been satisfactorily made out and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation and be offered no explanation, which, if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link to complete the chain. In the case of "Anthony D'Souza Vs. State of Karnataka", reported in AIR 2003 SC 258, the Apex Court held that in a case of circumstantial evidence where the accused offered false answer in his examination under this Section against the established facts, that could be counted as providing a missing link for completing the chain. Then, in the case of "Kashi Ram", [2007 ALL MR (Cri) 525 (S.C.) : 2007 ALL MR (Cri) 286 (S.C.)] (supra), relied upon by the learned Additional Public Prosecutor, it has been held that failure of the accused to give satisfactory explanation to an incriminating circumstance which was within his special knowledge amounts to failure to discharge the onus which lies on the accused under Section 106 of the Evidence Act and this itself provides an additional link in the chain of circumstances proved against him. Therefore, non-explanation of various circumstances appearing against the accused in the evidence produced by the prosecution, which were duly put to him in the statement under Section 313 of Cr.P.C., gives an additional or missing link for completing the chain.
72. The various facts, established by the prosecution, which successfully complete the chain of circumstantial evidence, with the assistance of additional or missing links furnished by the accused on account of non-explanation by him of the incriminating circumstances appearing against him in evidence and duly put to him in the statement under Section 313 of Cr.P.C., in the present case, taken cumulatively advances the case against the accused beyond reasonable doubt and satisfactorily point to the accused only as the person who committed the crime.