Criminal Appeal No. 44 of 2011

21st June, 2012

Petitioner Counsel: Mr. RAJNEESH NAIK
Respondent Counsel: Mrs. SAROJINI SARDINHA

Cases Cited:
Wakkar and Another Vs. State of Uttar Pradesh, 2011 ALL MR (Cri) 1327 (S.C.)=(2011) 3 SCC 306 [Para 16]
State of Himachal Pradesh Vs. Jeet Singh, 1999 ALL MR (Cri) 806 (S.C.)=1999 Cri. L.J 2025 [Para 30]
Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119 [Para 38]
Prakash Chand Vs. State (Delhi Administration), (1979) 3 SCC 90 [Para 38]
Dilip K. Basu Vs. State of W.B., (1997) 1 SCC 416 [Para 51,52,54]

JUDGMENT

U.V. BAKRE, J. :- This appeal is directed against the judgment and order dated 7th/8th April, 2008, passed by the learned Sessions Judge, South Goa, Margao (Trial Judge), in Sessions Case No. 19/2006. The appellant, accused in the said case, was tried for offences punishable under Sections 302 and 201 of the Indian Penal Code (I.P.C.). He has been convicted for committing both the offences. In respect of the offence under Section 302 of I.P.C., the accused has been sentenced to undergo life imprisonment and also to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for further period of three months, whereas, in respect of the offence under Section 201 of I.P.C., he has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default to undergo one month rigorous imprisonment. The substantive sentences have been ordered to run concurrently. The appellant shall hereinafter be referred to as the accused.

2. Case of the prosecution, in short, was that on 8/3/2006 between 16.00 hours to 17.00 hours, at Haldikune Netravali, Sanguem, the accused committed murder of his wife Mrs. Prema Gaonkar, by assaulting her with a danda on her head and thereafter buried her in order to destroy the evidence.

3. Facts, revealed from the case papers, are as under :- On 9/3/2006, Santosh Gaonkar, Police Constable B. N. 5604 (P.W. 8) was on duty at Vichundrem Outpost along with Police Constables namely Devendra Pagui (P.W. 10) and Shri Ghadi, when three persons including the accused came there at about 23.20 hours and the accused stated that his wife had committed suicide by hanging in the jungle area. The matter was reported to the Officer-in-charge of Sanguem Police Station namely P. I. Ramesh Gaonkar (P.W. 22). Thereafter, under instructions of P.W. 22, Mr. Pagui (P.W. 10) and Ghadi went to the spot along with the accused and upon being asked to show the spot, the accused pointed out to some trees. However, later on in the torch light, they could see some mud dug out and therefore, suspicion was raised over the accused. The accused was taken to Sanguem Police Station and the matter was informed to P.W. 22 who, on 10/3/2006, recorded the report of the accused, which is at Exhibit 87 and registered U.D. no. 3/2006 under Section 174 of the Code of Criminal Procedure (Cr. P.C) and requested Sub Divisional Magistrate of Quepem namely Mr. Pratapsingh Kankar (P.W. 3) to conduct the Inquest panchanama. P.W. 22 then went to the spot at Sanvri road, Netravali and commenced the panchanama of the scene of occurrence, which is dated 10/3/2006 in the presence of two panchas, namely Damodar Gawli ( P.W. 9) and Mrs. Antoneta Mascarenhas. In the meantime, P.W. 3 arrived at the spot due to which the panchanama of the scene of occurrence was kept pending. After conducting preliminary inquiry with villagers and also inquires with the accused, P.W. 3 drew the Exhume-cum- Inquest panchanama in the presence of the same panchas. The Inquest panchanama is at Exhibit 25. The panchanama of the scene of occurrence and sketch were then completed and the same are at Exhibit 55 colly. Photographs were clicked by Mr. Mohammed Zalim Shaik (P.W. 14) and these photographs are at Exhibits 33 colly. and 70 colly. The dead body, which was exhumed from the pit, and identified to be of the wife of the accused, was referred by P.W. 3 to Hospicio Hospital for postmortem examination. Dr. Avinash Pujari (P.W. 4) conducted the post-mortem examination on the dead body of the wife of the accused on 11/3/2006 and the Autopsy report is at Exhibit 42. The clothes which were on the person of the deceased were attached at Hospicio Hospital, Margao, Morgue under the panchanama which is at Exhibit 61 and Shri Ramesh Sanguekar (P.w. 11) acted as one of the panch witnesses to the same. After receipt of the Autopsy report from P.W. 22, P.W. 3 lodged report dated 11/3/2006 against the accused, which is at Exhibit 28, upon which Crime No. 9/06 was registered by P.W. 22. The accused was formally arrested on 12/3/2006. On the same day, upon the disclosure statement being made by the accused in the presence of panchas, one of them being Shri Uday Deyikar (P.W. 12), P.W. 22 conducted the recovery panchanama under Section 27 of the Evidence Act and attached a wooden danda, shirt and a spade at the instance of the accused. This panchanama is at Exhibit 63. Sketch of scene of offence was got drawn from a draughtsman and the same has been produced on record by Shri Madhukar Elurkar (P.W. 13), the Assistant Engineer, P.W.D., Sanguem. The said sketch is a part of Exhibit 62 colly. Statements of various witnesses were recorded by P.W. 22. The accused was examined by Dr. Bandana Pandey (P.W. 2) for blood group examination. The report issued by P.W. 2 is at Exhibit 22. The report of Analysis of the viscera prepared by Andhra Pradesh Forensic Science Laboratories and of all the exhibits attached during investigation prepared by Central Forensic Science Laboratory, Hyderabad (C.F.S.L.) are at Exhibit 90 colly. Upon completion of the investigation, charge sheet came to be filed against the accused.

4. The prosecution examined in all 22 witnesses. During the course of statement under Section 313 of Cr. P.C., the accused stated that in March 2006, Prabhakar, his wife, Romaldo and his wife, as usual, came to his house and had tea and then left his house. He further stated that, thereafter, he went to "Vhal" to wash clothes and upon returning, he had not found the deceased in the house and upon inquiries with his mother, he was told that after buying fish the deceased had left the house with some clothes and that his mother did not know as to where the deceased had gone. The accused stated that he then cooked food and served his children and on his way, while going to work, he met Ramakant whom he told to inform Prabhakar i.e. the brother of the deceased that the deceased had left the house with some clothes. The accused further stated that later in the evening on that day he went to the house of Romaldo and told him that the deceased had left the house with some clothes and had not returned. The accused stated that Romaldo told him that the deceased would come back. Further the accused stated that on the next date he sent his children to school and at about 9.00 a.m. he went to Vichundren Outpost where he was made to sit by the police, who told him that they knew as to why he had come. He further stated that he was made to sit at the Outpost till 8.30 p.m. and thereafter was taken on a motorcycle to Sanguem Police Station, where he was asked by the P.I. whether he was searching for his wife and that the P.I. would show him his wife, the next morning. The accused then stated that on the next day, in the morning, police took him in a jeep to a place which was about 80- 90 metres from his house where there were about 40 persons including police and the P.I. told him to remove the mud from that spot by further saying that there was something under it and he removed the mud with hands during which photographs were clicked through one photographer and then the P.I. gave him a spade to remove the mud, which he did, after which a female dead body was found in the pit, which was removed and kept on a stretcher and thereafter was taken in an ambulance. The accused stated that he did not know as to whose body it was and that a false case has been filed against him. The accused did not lead any evidence in defence.

5. Upon consideration of the entire evidence on record, the learned Trial Judge concluded that the death of the wife of the accused was homicidal and that the accused had committed murder of his wife by assaulting her with a danda on her head and thereafter had caused the evidence namely the body of the deceased to disappear by burying the same. The accused, therefore, came to be convicted and sentenced, as stated earlier.

6. Shri Rajneesh Naik, learned Advocate for the accused and Mrs. Sarojini Sardinha, learned Additional Public Prosecutor (A.P.P.) were heard on behalf of the accused and the respondent, respectively.

7. It is seen from the impugned judgment and order that the case of the prosecution is solely based on circumstantial evidence and there is no direct evidence in the matter. It is settled law that a person can be convicted on circumstantial evidence provided all the links in the chain of circumstances connecting the accused with the crime are established beyond reasonable doubt. However, it appears that neither the learned Public Prosecutor who argued the matter before the Trial Judge specifically pointed out circumstances appearing against the accused in the evidence nor the Trial Judge has enumerated such circumstances and discussed them, one by one.

8. We, therefore, at the outset, directed the learned A.P.P. to point out the circumstances which connect the accused with the crime. The A.P.P. has pointed out seven circumstances which according to her are duly proved by the prosecution and connect the accused to the crime. They are :

(i) Homicidal death of the deceased, who is wife of the accused.

(ii) Post mortem examination report in respect of the deceased.

(iii) Motive being illicit relationship of the deceased with P.W. 15.

(iv) Extra-judicial-confession made by the accused to P.W. 3.

(v) Recovery of the danda, shirt and spade at the instance of the accused.

(vi) Similarity of the soil on the spade with the soil attached from the place of burial of the dead body and detection of blood on shirt of the accused.

(vii) Conduct of the accused in lodging false report with the police and in making false statement to some witnesses.

9. Mr. Naik, learned counsel for the accused submitted that the above circumstances are not independently proved beyond doubt and the conviction based on such unreliable evidence be quashed. In the alternative, it is his contention that the prosecution evidence, at the most would make out a case under section 304 (II) of I.P.C. Supporting the impugned Judgment, Mrs. Sardinha, learned A.P.P., submitted that the circumstances pointed out by her have been cogently proved and there is no reason to interfere with the Judgment and Sentence.

10. We have gone through the entire material on record in the light of the arguments advanced by the learned counsel for both the parties.

11. The first question that arises for determination is whether the death of the deceased is homicidal. For this, the first two circumstances are relevant.

(i) Homicidal death of the deceased.

(ii) Post-Mortem examination report.

12. As per the report (Exhibit 87) dated 10/3/2006 lodged by the accused, and the facts revealed from the deposition of P. W. 5, the wife of the accused had committed suicide by hanging to a Cumio tree with the help of wire and that he had cut that wire and brought her down and had laid her body in the trench and covered it with mud to protect it from wild animals. The evidence of Damodar Gawli (P.W. 9), who acted as one of the pancha witnesses to the panchanama of the scene of occurrence and sketch, which are at Exhibit 55 colly as also to the Exhume-cum-Inquest panchanama (Exhibit 25), both drawn on 10/3/2006, read with the evidence of Pratap Singh Kankar (P.W. 3), the Sub-Divisional Magistrate and of P.W. 22, the Investigating Officer, reveals that there was a Cumio tree at the scene of occurrence, but the distance between the nearest branch of that tree and the ground was around 10 feet. On observation of that tree, it appeared that it was difficult to climb the said tree and hang. No rope or wire was found hanging from the said tree or lying at the said place. There was a pit at a distance of about 50 feet from the said tree from which mud was freshly dug and was again put in the same pit and it appeared that something was buried in this pit. There were drag marks at a distance of around 4 to 5 feet from the said cumio tree. P.W. 3 arrived at about 11.30 a.m. when the panchanama of the scene of occurrence was going on, due to which that panchanama was stopped. Inquest panchanama was drawn during which the accused removed the mud from over the pit with his hands and subsequently with a spade after which a female dead body became visible. This dead body was identified to be of the wife of the accused. The above evidence has remained intact in the cross-examination of the said witnesses and there is no reason to disbelieve the same.

13. P.W. 4, Dr. Avinash Pujari conducted the post- mortem examination on the dead body of the deceased on 11/3/2006 between 14.00 hours to 17.00 hours. The following injuries were noticed:-

(i) On dissection of scalp and neck, crack fracture of occipital bone below the lambdoid suture with separation of sutures at parieto temporal and parieto occipital bones, was found. Fracture margins and separated sutures showed evidence of blood infiltration.

(ii) Evidence of contusion on the top of the right shoulder 8 cms from the root of neck over an area of 4.0 x 3.0 cms. and on dissection there was evidence of blood infiltration in the underlying sub-cutaneous tissues and muscles.

According to P.W. 4, the above injuries were fresh at the time of death and the first injury along with its underlying injuries was individually sufficient to cause death in the ordinary course of nature whereas injuries no. 1 and 2 were collectively sufficient to cause death in the ordinary course of nature. There was no evidence of any ligature marks or any injuries to the soft underlying tissues, hyoid bone, larynx and trachea which were intact. The opinion of P.W. 4 as to the cause of death was head injury in the form of fracture of skull bones, damage to brain and intracranial haemorrhage as a result of impact of hard and blunt object/s. P.W. 4 has stated that the said injury no.1 which was fracture of skull bones could be caused by a danda. The evidence of P.W. 4 and his findings in the post-mortem examination report which is at Exhibit 42 are not at all shaken in the cross examination.

14. The circumstances in which the dead body of the deceased was found buried and the nature of injuries sustained by her sufficiently prove that the death of the deceased was homicidal. In any case, the homicidal death of the deceased is not seriously disputed by the learned advocate for the accused during the course of arguments. Hence, the above circumstance has been sufficiently proved by the prosecution.

15. Once it is proved that the deceased died a homicidal death, the next question which arises for determination is whether the prosecution has proved beyond reasonable doubt that the accused caused death of the deceased and caused disappearance of evidence of the offence. Let us discuss the remaining circumstances pointed out by the learned Additional Public Prosecutor.

(iii) Motive being illicit relationship of the deceased with P. W. 15.

16. In cases wholly based on circumstantial evidence, proof of motive is very important, unlike cases of direct evidence where it is not so important. The Hon'ble Apex Court, in paragraph 14 of the judgment in "Wakkar and Another versus State of Uttar Pradesh" [(2011) 3 SCC 306] : [2011 ALL MR (Cri) 1327 (S.C.)], has held so. In the present case, the prosecution case was that the motive for the accused in killing his wife was that she was living in adultery with P.W.15, Mr. Rajendra Naik alias Noni.

17. P.W. 17, Mr. Kalpesh Gaonkar who is son of the accused and the deceased has stated that whenever the accused used to go for work at the bar, one fish seller by name Nani used to come to their house during night time due to which there used to be quarrels between his father i. e. the accused and said Nani and also between his parents.

18. P.W. 20, Tulshidas Gaonkar, brother of the accused, has deposed that he knows the fish vendor by name Noni who sometimes used to reside in the house of the accused, in the absence of the accused. He has stated that there was illicit relationship between deceased Prema and Noni and about six months prior to this incident, accused had assaulted said Noni and there was a case on account of the said incident. In his cross-examination, P.W. 20 has denied the suggestion that the accused had assaulted Noni for selling spoiled fish. He has categorically stated that the assault was because of the wife of the accused.

19. P.W. 21, Mrs. Rupali Gaonkar is the mother of the accused and she has specifically stated that the deceased Prema had illicit relationship with one fish-vendor by name Noni and once said Noni had stayed in their house for 8 days. She has stated that said Noni and the deceased used to have sex in the house and in the field and once she had advised the deceased not to behave in that manner, but the deceased assaulted her. P. W. 21 has stated that after the accused came to know about the illicit relationship between Prema and Noni, the relations between the accused and the deceased became strained. In her cross-examination, P.W. 21 has stated that there used to be altercations between her and Prema on the above subject. The evidence of P.W. 21 reveals that people of the village knew about the relationship between the deceased and Noni despite which the deceased used to go with Noni. According to P.W. 21, once there was a fight between the accused and Noni. She has stated that before the commencement of illicit relationship between deceased Prema and Noni, accused and Noni were in good books.

20. In the cross-examination of P.W. 17, mostly, there is nothing but denials with regard to the aspect of Nani coming to their house during night time. The cross-examination of P.W.s 20 and 21 reveals that there are some omissions in their police statement, in respect of the said adultery committed by the deceased. However, P.W. 17, P.W. 20 and P.W. 21 are all very close relatives of the accused and they have no reason to tell lies which would put the accused in trouble. The learned Trial Judge, who recorded their evidence, has unhesitatingly accepted their evidence. We are of the view that the evidence of the above witnesses is wholly reliable.

21. P.W. 15, Mr. Rajendra Naik is the said person who is also known as Noni. He has deposed that he was selling fish in the village of Netravali and knows the accused for last 10 years and that the name of the wife of the accused is Prema. He has stated that on one day in the year 2002, which was a day of counting of votes of Assembly Elections, he was proceeding on his motorcycle with fish to sell the same and when he reached on the road proceeding to Savri, one lady approached him to buy fish and he stopped his vehicle. P.W. 15 has stated that at that time the accused came from his back side and abused him saying "Chedyechya Chad Dada Jala, Paishekar Jala" and thereafter, he hit something like a wood on his head from the back side, after which he became unconscious. P.W. 15 has stated that he thought that the accused was suspecting him for having illicit relationship with his wife. He has clarified that the lady who had come to purchase fish from him was the wife of the accused. In his cross-examination, P.W. 15 has stated that the wife of the accused used to purchase fish from him many times. He has stated that he had heard from public that the accused was suspecting him for having illicit relations with his wife. It cannot be expected that P.W. 15 would himself go to state in the court about his illicit relationship with the deceased who was a married woman.

22. P.W. 18, Mr. Niliesh Gauns Dessai, Police Constable of Sanguem Police Station has stated that the accused was involved in Sanguem Police Station Crime no. 21/2002 u/s 341, 323, 506-II and 427 I.P.C. upon a complaint lodged by one Rajendra Krishnanath Naik (P.W. 15). P. W. 18 has produced a notarized copy of the F.I.R. along with the complaint, as Exhibit 78 colly. In his cross-examination, P.W. 18 has stated that the case registered under Crime no. 21/2002 filed by Mr. Rajendra Krishnanath Naik against the accused has been charge-sheeted and is still pending in the Sanguem Court and that the I.O. in the said case is P.I. Manjunath Dessai. P.W. 18 has confirmed that P.W.15, Rajendra is also known as Noni.

23. The evidence of P.W. 15 and P.W. 18 is not shaken in the cross-examination. It is duly proved that P.W. 15 was once assaulted by the accused due to which there is a case pending against the accused in the Court. This fact read with other evidence already discussed above sufficiently establishes that the said incident of assault had taken place because of the illicit relationship of the deceased wife of the accused with P.W.15.That shows the disapproval of the accused.

24. As pointed out by the learned counsel for the accused, there is also evidence on record to show that the relation between the accused and P. W. 15 was good and both used to look after the needs of the children of the accused and the deceased. It is the contention of the learned counsel for the accused that even if there was enmity on account of such relationship of P.W. 15 with the wife of the accused, then the same could be between the accused and P.W. 15. As a man, the accused was bound to feel humiliated and insulted by the act of his wife. As has been held by the Trial Judge, it would not stand to reason to accept that a man having self respect would tolerate his wife indulging in illicit relationship with another person. Hence, it is proved that the accused had ill feelings against his wife, the deceased. The motive is therefore proved beyond reasonable doubt.

(iv) Extra-Judicial Confession made by the accused to P.w. 3.

25. P.W. 3, Mr. Pratap Singh Kankar has deposed that he was working as Sub-Divisional Magistrate from October 2002 till 16/8/2006 and that on 10/3/2006, during the early morning hours, he received a phone call from Sanguem Police Station stating that one Gurudas Gaonkar from Haldikulem, Netravali had reported that Prema Gaonkar was missing from 8/3/2006 from 10.00 hours and that on 9/3/2006 he had seen his wife hanging from Kumbiya tree about 200 to 300 metres away from his house and with the help of electric wire. P.W. 3 has stated that P.I. of Sanugem police station further informed him that the said Gurudas Gaonkar had made a further report that he had removed the dead body from the tree and buried it in order to protect the same from wild animals. The deposition of P.W. 3 reveals that at the request of P.I. Sanguem Police Station, he went to Netravali for conducting Exhume-cum-Inquest panchanama. P.W. 3 has deposed that he reached the spot around 12.00 noon and saw about 20 villagers gathered there apart from P.I. Gaonkar of Sanguem Police Station who was conducting spot panchanama at that place. P.W. 3 has deposed that he conducted preliminary inquiry with the villagers who showed the person named Gurudas Gaonkar to him. P.W. 3 has then stated that he made inquiries with the said Gurudas Gaonkar, husband of the deceased Prema and on questioning he disclosed that he assaulted his wife with a danda on her neck on 8/3/2006 between 16.00 hours to 17.00 hours. P.W. 3 has identified the accused as the said Gurudas Gaonkar. He has further stated that he then conducted the Inquest panchanama after the dead body was exhumed in the presence of two panchas. The said Inquest panchanama is at Exhibit 25. According to P.W. 3, the accused had led them to the spot where he had buried the dead body and the accused himself had dug that spot. In this Exhume-cum-Inquest panchanama, P.W. 3 has mentioned that the accused who had been interrogated disclosed that he had assaulted his wife with a danda on her neck due to which she fell down on the the ground on one side of the body and died and that this incident took place on 8/3/2006 between 16.00 hours to 17.00 hours. It is further mentioned in that panchanama that the accused further disclosed that he dragged and buried the dead body in the pit. In the cross-examination of P.W. 3, there is no denial of the fact that the accused made such a statement to P.W. 3. There is no reason for P.W. 3 to falsely implicate the accused or to tell lies affecting the accused.

26. Relying upon Section 25 of the Indian evidence Act it was contended by Shri Rajneesh Naik, learned Advocate for the accused, that the above statement was made by the accused while he was in the custody of the police and in the presence of the police and, therefore, the same is not admissible. First of all, the statement made by the accused, as above, cannot be termed as confession. A confession must either admit in terms the offence, or, at any rate substantially all the facts which constitute the offence. The statement made by the accused can, however, be said to be an admission of a grave incriminating fact. Here, the same was not made to a police officer but to a Sub-Divisional Magistrate (P.W. 3), who has stated in the crossexamination that no police person was present when the disclosure was made to him by the accused. Section 26 of the Indian Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. In the present case, there was no offence registered against the accused as on 10/3/2006. The offence was registered on 11/3/2006 and the accused was formally arrested on 12/3/2006. Be that as it may, the word "custody" has not been defined in the Evidence Act. It need not mean custody after formal arrest. Admittedly, the accused was with the police as from 9/3/06 and hence can be said to be in custody of police as on 10.3.06. However, since the statement was made by the accused to P.W. 3 who was a Magistrate, even if it was confession, it was admissible. As that statement is a non-confessional statement, it would be admissible under section 21 of the Evidence Act, as it is relevant as an admission.

27. As already stated above, the cause of death of the deceased is head injury in the form of fracture of the skull bones, damage to brain and intra-cranial hemorrhage as a result of impact by hard and blunt object/s. As per the evidence of P.W. 4, the approximate time since death was consistent with the stated record i.e. at about 16.00 to 17.00 hours on 8/3/2006. As per the deposition of P.W. 4, a wooden danda of 8 inches would qualify as a hard and blunt object which can cause the said injury on the head and shoulder of the deceased. The wooden danda (M.O. 4) was shown to P.W. 4. He has stated that the injuries sustained by the deceased could be caused by that danda. All the above evidence taken together would lead to the conclusion that the accused assaulted his wife with a danda on 8/3/2006 between 16.00 to 17.00 hours due to which she died. The statement made by the accused to P.W. 3 has been duly proved beyond reasonable doubt and the same is admissible.

(v) Recovery of the danda, shirt and spade at the instance of the accused.

28. P.W. 22, Ramesh Gaonkar, the Investigating Officer has stated in his cross-examination that the accused was with them from 9.3.2006 for the purpose of inquiry at Vichundrem Outpost and that he was arrested under Section 41 of Cr. P.C. on 10/3/2006 at 18.00 hours at Sanguem Police Station and was arrested in the present crime on 12/3/2006 at 14.30 hours. This fact has not been denied. P.W. 22 has deposed that on 12/3/2006 he secured the presence of two panchas namely Sushma Fernandes and Uday Deyikar (P.W. 12) and attached one jungle wooden danda, one green colour shirt and one spade all at the instance of the accused under recovery panchanama which is at Exhibit 63. P.W. 22 has identified the said articles. In his crossexamination, P.W. 22 has stated that the spade which is M.O. 6 was attached under the said recovery panchanama on 12/3/2006 from the house of the accused and that it was in a room (bagel) of the said house which bagel had only palm leaves and its sides were open. He has stated that this bagel was adjoining the outer wall of the house of the accused and one could go to this bagel from outside the house. He has further stated that there was fire wood kept by the side of the house of the accused and which was in an heap comprising of around more than 100 firewood logs. He has clarified that M.O. 4 that is the wooden danda was lying by the side of this firewood. He has, however, stated that this heap comprising of fire wood was in an open space.

29. P.W. 12, Uday Deyikar is one of the panch witnesses to the said recovery panchanama at the instance of the accused. He has stated that on 12/3/2006, he along with Sushma Fernandes acted as pancha to the said panchanama. According to P.W. 12, the accused disclosed in Konkani language that he would show the wooden danda, shirt and spade and accordingly took both the panchas, P.I. Shri Gaonkar and three police men in a jeep to Netravali and then showed the house where there was a heap of wood in front of that house and by the side of this heap there was a tree. Underneath that tree there was a danda which the accused removed and the same was then attached. P.W. 12 has stated that there was a padvi locally known as "Baguel" in front of the house and the accused went inside this baguel and brought light green colour long sleeves shirt which was on the clothes line in that baguel. This shirt was also attached. P.W. 12 has also stated that the accused then brought one Favda (spade) from the same baguel and that it was having wooden danda with iron base and this was also attached. The disclosure statement made by the accused has been incorporated in the recovery panchanama (Exhibit 63), in the language of the accused. All these articles were sealed. P.W. 12 has identified all these three articles.

30. It was argued by learned counsel for the accused that the above recovery cannot be relied upon since it was from open place, accessible to all. In this regard, the learned Trial Judge has observed that the evidence on record shows that the wooden danda was thrown or kept by the accused at the place where heap of fire wood was lying. She has relied upon " State of Himachal Pradesh Vs. Jeet Singh", (1999 Cri. L.J. 2025 : [1999 ALL MR (Cri) 806 (S.C.)]), wherein the Hon'ble Apex Court has held that there is nothing in Section 27 of the Evidence Act which renders the evidence of the accused inadmissible if recovery of the articles was made from any place which is "open and accessible to others". The learned Trial Judge has relied upon the evidence of P.W. 12 and P.W. 22 in respect of this recovery and in our view, in the facts and circumstances of this case, where the accused had made a statement before the Sub-Divisional Magistrate that he had assaulted his wife on 8/3/06 with a danda, there is nothing wrong in relying upon the same. Therefore, the recovery of the wooden danda, shirt and the spade, at the instance of the accused, is duly proved by the prosecution.

(vi) Similarity of the soil on the spade with the soil attached from the place of burial of the dead body and detection of blood on shirt of the accused.

31. Under the recovery panchanama (Exhibit 63), the full sleeve shirt and spade attached at the instance of the accused were respectively marked as Exhibits "E" and "F" and both were duly packed and sealed. The evidence on record duly proves that the dead body of the deceased was found buried in a trench. The evidence of P.W. 9, Damodar Gawli proves that the mud which was freshly dug from the said trench, in order to exhume the dead body, was attached under the panchanama of the scene of occurrence (Exhibit 55 colly) and was marked as "Exhibit-A" and duly packed and sealed. The examination report of C.F.S.L.(Exhibit 90 colly) reveals that the soil collected from the said spade marked as Exhibit-F was found to be similar to the sample of mud collected from the place where the dead body was buried and marked as Exhibit-A. Further, as per the examination report of C.F.S.L (Exhibit 90 colly), human blood was detected on the full sleeve shirt (Exhibit-E), though the group test was inconclusive due to disintegration of blood group specific substances. No doubt, the above circumstances emerging from the examination report of the C.F.S.L. were not put to the accused under section 313 of the Cr. P.C. However, the accused has not claimed any prejudice being caused to him by said omission. The evidence of P.W. 3 establishes that the accused had admitted that he had assaulted his wife with a danda. The evidence of P.W. 4 proves that said danda, M.O. 4, admeasuring 30 inches in length and 8 and half inches in circumference could cause the injury sustained by the deceased on her head and shoulder. Therefore, the recovery of the said articles at the instance of the accused assumes great importance to prove the guilt of the accused.

(vii) Conduct of the accused in lodging false Report with the police and in making false statements to some witnesses.

32. P.W. 5, Romaldo Costa has deposed that on 9/3/2006, the accused came to his house along with his three children at about 1.30 hours and after entering the house caught hold of his feet and stated that his wife had committed suicide by hanging to a tree and that she had become fat and started crying. P.W. 5 has stated that his wife was in the house at that time and the accused told him not to inform the police. P.W. 5 has stated that he along with his neighbour Joao took the accused on motorcycle to the Police outpost at Vichundrem with the accused sitting in between the two of them. According to P.W.5, the accused told the policeman on duty namely Devendra Pagui that his wife had committed suicide and that he had cut the rope, removed the dead body and kept it covered with the cloth.

33. P.W. 6, Guilhermina Fernandes D'Costa, the wife of P.W. 5 and P.W. 7 Joao D'Costa have both corroborated the version as stated by P.W. 5, as far as their part is concerned.

34. P.W. 10 is said Devendra Pagui. He has deposed that in March 2006, he was temporarily posted as P.C. at Vichundrem Outpost and on 9/3/06 at around 23.20 hours, when he and Mahendra Ghadi were at the outpost, three persons namely Gurudas Gaonkar (accused), Romaldo and Joao came there and the accused told him that his wife Prema Gaonkar had left the residence on 8/3/06 at around 10.00 hours had not returned back and though he searched for her, she could not be found. P.W 10 has further deposed that the accused stated that on 9/3/06 at around 6.30 p.m., while searching, he noticed his wife hanging to a tree by means of a rope, which place was at a distance of about 100 metres from his house. According to P.W. 10, the accused further told him that he had cut the rope and had removed the body from the tree. P. W. 10 has stated that he informed about the incident to H.C. Vaman Patil and also to P.I. Ramesh Gaonkar telephonically and proceeded along with Ghadi and the accused to the spot which was at Savri Haldicunem near one cumbio tree. P.W. 10 has further deposed that he told the accused to show the spot and the accused started pointing towards some trees and as they could not see the body in those trees, they asked the accused to show the proper place at which the accused disclosed that he had buried the said body. According to P.W. 10, they did not find any rope at the spot but in the torch light they could see that mud appeared to have been dug out. They then returned at the outpost by about 1.15 a.m. and informed P.I. Gaonkar about the said facts and under the instructions of the P.I., the accused was kept at the Outpost. The spot was guarded by P.W. 10 and another Police Constable by name Gaonkar, during night time. P.W. 10 has stated that at around 11.00 to 11.15 a.m., in the morning, P.I. Gaonkar came to the spot and thereafter the Dy. Collector and others came there after which the body was exhumed. P.W 8, Santosh Gaonkar is the said P.C. referred to by P.W. 10. The above evidence of P.W. 10 is not shaken in the cross-examination and it finds support from the evidence of Rumaldo (P.W. 5) and of Gaonkar (P.W. 8).

35. P. W. 22 is the Police Inspector, Ramesh Gaonkar, who has confirmed whatever that is stated by P.W.8 and P.W. 10. He has further deposed that on 10/3/06, he recorded detailed report of Gurudas Gaonkar and registered U.D. no. 3/06 under section 174 of Cr. P.C. This report of the accused is at Exhibit 87. In this report, it is mentioned that the accused noticed his wife hanging to a tree by means of a wire and he tried to bring her down but as he could not succeed, he went home, brought a koita and cut the wire and got her down and then laid her in a trench, went back to his house, brought a spade and covered the body with mud to protect the body from wild animals.

36. P.W. 17, Kalpesh Gaonkar, the son of the accused has stated that on 8/3/2006, since his mother was not seen in the house even during night time, he had asked the accused as to where the mother was and the accused told him that she had gone to Vashi Village and would return after two days.

37. In his statement under section 313 of Cr. P.C., the accused has stated that he does not know as to whose body it was which was exhumed from the pit.

38. Thus, it is seen that the accused has narrated different versions to different persons, which versions are all ultimately found to be false, including that which is given in the statement under section 313 of Cr. P.C. The above evidence, to prove the conduct of the accused, is relevant under section 8 of the Evidence Act and hence can be proved and if proved, is admissible, as his conduct. {See "Aghnoo Nagesia vs State of Bihar (AIR 1966 SC 119) and "Prakash Chand Vs State (Delhi Administration) [(1979) 3 SCC 90]}. The proved conduct of the accused in making various false statements is indicative of his guilty mind.

39. The above circumstantial evidence, in our opinion, is sufficient to show that the accused caused the death of the deceased.

40. Since the injury no. 1, caused by wooden danda on the deceased, is underneath the right parietal, temporal and occipital area, the learned Trial Judge has observed that she has every reason to hold that the same has been so inflicted with the intention of causing such bodily injury as the accused knew to be likely to cause death of the deceased. The Trial Judge has thus held the accused guilty of murder. In our considered opinion, the Trial Judge has gone wrong here.

41. In the Memo of Appeal it is contended by the accused that from the prosecution evidence on record, an offence under section 304(II) of I.P.C. was spelt out. During the course of arguments, learned counsel for the accused, in the alternative, argued that the offence, if any, made out, is under section 304 (II) of I.P.C. He pointed out that the injury was due to wooden danda which cannot be a dangerous weapon. He submitted that there was provocation due to adulterous relationship of the wife of the accused with P.W. 15. The learned counsel also argued that the evidence on record reveals that there used to be constant quarrels between the accused and the deceased on account of her incestuous relationship with P.W. 15.

42. There is no evidence on record to hold that the accused had an intention to cause death of the deceased who is his wife. It is not the case of the prosecution that on the date of the incident itself, the accused had come to know about the illicit relationship of his wife with P.W 15. The deceased was living in adultery since about three years prior to her death. The accused, being the husband, no doubt, was feeling dishonoured/insulted by the behaviour of his wife. There used to be quarrels between the deceased and her mother-in-law as also between the deceased and the accused. However, since the accused had tolerated such behaviour of his wife for a long period, the intention of the accused appears to be only to teach serious lesson to her so that the relation between her and P.W. 15 comes to an end.

43. The evidence of P.W 1, Prabhakar Gaonkar, the brother of the deceased, reveals that the accused had called him to his house on the date of incident. P.W. 1 and his wife had gone there and even P.W. 5 and P.W.6 had gone there. The deceased had told her brother that the accused was assaulting her. The matter was somehow settled. On the next day i. e. on the 9th,, P.W. 1 received message from the accused, through Ramakant Gaonkar that his sister Prema has run away from the house. On 10/3/06, the dead body of the deceased was found buried at a distance of about half a kilometre behind the house of the accused.

44. P.W. 19, Ramakant Gaonkar has deposed that on 8/3/06, the accused met him at Netravali at around 3.00 p,m. and told that his wife had run away from the house by taking her clothes and to inform about the same to his brother-in-law i.e. Prabhakar Gaonkar. P.W. 19 has stated that he accordingly gave this message to Prabhakar.

45. The accused, in his statement under section 313 of Cr. P.C. has stated that after Prabhakar with his wife and Romaldo with his wife left the house, he went to "Vhal" to wash clothes and came home and since Prema was not seen in the house, he asked his mother as to where Prema was. According to the accused, his mother told him that Prema bought fish and left the house after taking some clothes with her.

46. The evidence of P.W. 21, the mother of the accused, in her cross-examination, reveals that after Prabhakar/his wife, and Romaldo/his wife went home on that day (which is 8/3/06), Noni (P.W. 15) had come to their house and deceased, after purchasing fish from him, had gone with him.

47. It appears that departure of the deceased with P.W. 15, on the day of incident, in spite of the matter being settled, must have infuriated the accused. In that heat of passion, the accused appears to have gone to the place of incident and picked up the wooden danda and gave a blow which landed on the head of the deceased. The assault was not premeditated. Unfortunately, the blow turned out to be fatal. Finding that the deceased died with that blow, the accused, out of fear, appears to have buried the dead body in the trench. If the accused had intention to commit murder of his wife, he would have carried with him a koita or such dangerous weapon or would have given several blows of the said danda. The prosecution evidence itself suggests that single blow of the danda was given. The case cannot be of murder but is of culpable homicide not amounting to murder. In our considered view, the act of the accused falls under Section 304 (II) of I.P.C. The conviction and sentence for murder imposed by the Trial Court cannot be sustained.

48. As has been rightly held by the learned Trial Judge, the evidence on record duly proves the act of the accused of destroying evidence of offence by burying the dead body of the deceased in the trench and making false statement about suicide being committed by her. The sentence of rigorous imprisonment for three years and to pay fine of Rs. 1,000/- under section 201 of I.P.C. is also reasonable. No interference with the same is warranted.

49. Heard the learned counsel for the parties on the point of sentence insofar as the offence under Section 304 (II) is concerned. Mr. Naik, the learned counsel for the accused submitted that since the incident had occurred on account of the adultery of the deceased wife of the accused and since the accused has children, a lenient view be taken against him. The accused has been in detention as from 9/3/2006. Thus, six years and more than three months have passed. The conviction is dated 8/4/2008. In our opinion, the sentence of seven years rigorous imprisonment coupled with payment of fine of Rs. 10,000/- would be just and reasonable punishment, in the facts and circumstances of this case.

50. In respect of the arrest of the accused, in crossexamination of P.W.22, he has stated that the accused was with them from 9/3/06 for the purpose of inquiry at Vichundrem Outpost and he was arrested under section 41 Cr. P.C. on 10/3/06 at 18.00 hours at Sanguem Police Station and he was arrested in this crime on 12/3/06 at 14.30 hours. No arrest panchanama or memo of arrest, in respect of the accused, has been produced on record and proved. No witness for such panchanama has been cited in the chargesheet. The Index of case papers of Sanguem P.S. Crime no. 09/06 annexed to the chargesheet does not mention about any arrest panchanama/memo of arrest. Learned A.P.P. could not point out arrest panchanama in respect of the accused. Therefore, the only inference that can be drawn is that no arrest panchanama or memo of arrest was prepared at the time of arrest of the accused.

51. In the case of "Dilip K. Basu Vs. State of W.B."[(1997) 1 SCC 416], the Hon'ble Apex laid down certain basic "requirements" to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. The requirements no. 2 and 9 read as under:

"2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness,who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record."

52. The Apex Court in paragraph 36 of the judgment in the case of "D. K. Basu" (supra), further opined that failure to comply with the above requirements, apart from rendering the official concerned liable for departmental action, would also render him liable to be punished for contempt of court and the proceedings for contempt of court could be instituted in any High Court of the country, having territorial jurisdiction over the natter. In the circumstances above, a show cause notice to the Investigating Officer as to why action for contempt of court should not be initiated against him, is bound to be issued.

53. In the result, the appeal partly succeeds. The conviction and sentence for section 302 of I.P.C. is set aside. The accused is held guilty and convicted for offence under Section 304 (II) of I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 10.000/- in default to undergo simple imprisonment for further period of six months. The conviction and sentence for the offence under section 201 of I.P.C. imposed by the Trial Judge is maintained. Substantive sentences of imprisonment in respect of both the offences to run concurrently. Period of detention already undergone by the accused shall be set off in terms of Section 428 of Cr. P.C. If fine amount is paid, an amount of Rs. 6000/- shall be paid to P.W. 17, Kalpesh Gaonkar, as compensation. Muddemal properties shall be destroyed after 90 days from today.

54. Registry to issue notice to the investigating officer (P.W.22) namely P.I. Ramesh Gaonkar calling upon him to show cause as to why action for contempt of court be not initiated against him for failure to comply with the directions issued by the Apex Court in the case of "D. K. Basu" (supra), in the matter of arrest of the accused ,Gurudas Gaonkar, in Sanguem Police Station Crime No. 09/2006, registered for Sections 302 and 201 of I.P.C., returnable on 19 /07/2012.

55. Appeal stands disposed of accordingly.

Ordered accordingly