2013 ALL MR (Cri) 4327
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
A.P. LAVANDE AND U.V. BAKRE, JJ.
Rajesab Mujawar Vs. The State Of Goa
Criminal Appeal No. 16 of 2012
25th July, 2013
Petitioner Counsel: Mr. RYAN MENEZES
Respondent Counsel: Mr. S.R. RIVONKAR
(A) Penal Code (1860), Ss.300, 392, 201 - Evidence Act (1872), Ss.27, 114 - Murder and robbery - Circumstantial evidence - Prosecution case that accused took deceased from his house to jungle area and committed his murder by inflicting danda blow on his head and also committed theft of his mobile - After some time accused took wife of deceased and strangulated her with her own sari and committed theft of her gold ornaments - Homicidal death of both deceased proved - Though prosecution could not prove last seen theory and extra judicial confession made to doctor - But recovery of danda as well as valuable stolen articles belonging to both deceased at instance of accused is duly proved - Murder and robbery proved to be integral parts of one and same transaction - By virtue of Illust. (a) to S.114 of Evidence Act, accused is guilty of murder as well as robbery - Accused also guilty of offence under S.201 since SIM card from said mobile was destroyed by him. (Paras 64, 65, 66)
(B) Criminal P.C. (1973), S.277 - Recording of evidence - Evidence of witnesses given in Kannada language, but recorded by Sessions Court in English with aid of interpreters - Said interpreters examined and were found to be fit to act as interpreters - Accused did not object to said interpreters before Sessions Judge - No prejudice caused to accused on account of aid of interpreters taken by Sessions Judge - Plea that interpreters were randomly chosen without verification of their familiarity with both languages and that no certificate of interpreter on oath is recorded, not tenable. (Para 61)
State of Madhya Pradesh Vs. Ghudan, 2003(4) Crimes 324 (SC) [Para 8]
Bharat Vs. State of M.P., 2003 AIR SCW 770 [Para 8]
Asaram Rangnath Jadhav and anr. Vs. State of Maharashtra, 2004 ALL MR (Cri) 1201 [Para 8]
Sarvanand @ Soiru Gaonkar s/o. Purso Gaonkar Vs. State of Goa, 2007 ALL MR (Cri) 28 [Para 8,27,28,31]
Sharad Birdhichand Sarda Vs. State of Maharashtra, 2009 ALL SCR (O.C.C.) 281=(1984) 4 SCC 116 [Para 8,62]
Kanda Padayachi Vs. State of Tamil Nadu, AIR 1972 SC 66 [Para 10]
Pakkirisamy Vs. State of T.N., (1997) 8 SCC 158 [Para 10]
Trimukh Maroti Kirkan Vs. State of Maharashtra, 2006 ALL MR (Cri) 3510 (S.C.)=(2006) 10 SCC 681 [Para 10,58]
Ammini and others Vs. State of Kerala, 1998 ALL MR (Cri) 287 (S.C.) =AIR 1998 SC 260 [Para 27,29]
Earabhadrappa alias Krishnappa Vs. State of Karnataka, 2010 ALL SCR (O.C.C.) 146 =(1983) 2 SCC 330 [Para 55,57,58,65]
Trimukh Maroti Kirkan Vs. State of Maharashtra, 2007 ALL SCR 237=(2006) 10 SCC 681 [Para 10,58]
U. V. BAKRE, J. :- By this appeal, the appellant/accused, takes exception to the judgment and order dated 2nd June, 2011, passed by the Sessions Judge, North Goa, Panaji in Sessions Case No. 20/2008, by which the accused has been convicted for the offences punishable under Sections 302, 392 and 201 of the Indian Penal Code. The accused has been sentenced to undergo imprisonment for life under Section 302 IPC and to pay a fine of '50,000/-, in default, to undergo imprisonment for a term of one year; to undergo imprisonment for a term of 3 years for the offence punishable under Section 392 IPC and to pay a fine of '25,000/-, in default, to undergo imprisonment for a period of one year; and lastly, to undergo imprisonment for a period of three years for the offence punishable under Section 201 IPC., and to pay a fine of '10,000/-, in default, to undergo imprisonment for a period of six months. The fine amount has been ordered to be paid to the family of the deceased i.e. PW.21 Mahadevi, the daughter of the deceased, as compensation in terms of Section 357(3) of Cr.P.C.. All the sentences are ordered to run concurrently.
On 21st April, 2008, in the afternoon, the accused went to the house of Shekappa Bhandari at Sangolda and took him to the jungle area at Savlem, Pilerne and after reaching there he assaulted him with a danda which was carried by him, resulting in his instantaneous death. Thereafter, he committed theft of mobile which was with Shekappa. He again went to the house of Shekappa and told his wife Shekawwa that her husband had called her for some work to Savlem, Pilerne and took her by another route. On the way, the accused strangulated her with her own sari, which resulted in her instantaneous death. After committing the murder, he committed theft of her gold ornaments, namely 1 gold mangalsutra, a pair of gold earrings, two pairs of gold ole, 1 gold tali, 3 gondas, 40 gold gondas and a pair of silver anklets. Initially, missing report was filed by PW.29 Yenkappa Bhandari, the cousin of Shekappa, at the Calangute Police Station. On 23.4.2008, at about 7 p.m. PW.33 Police Inspector Sudesh Narvekar received a call from PCR Van Panaji informing that a body of a male was lying on the pathway near Gautum Hotel, Savlem, Pilerne. Accordingly, scene of offence and the inquest panchanamas were conducted and the body was identified on 24.4.2008 by PW.29 Yenkappa Bhandari as that of Shekappa. PW.33 PI Sudesh Narvekar also came to know that a missing report was registered at Calangute Police Station about missing of Shekawwa also, who was the wife of Shekappa. Search was taken of Shekawwa. During the search conducted on 24th April, 2008, dead body of a female was found at about 10.00 a.m. which was again identified by PW.29 Yenkappa as that of Shekawwa. Again the scene of offence as well as the inquest panchanamas were drawn. The dead bodies of both the deceased were referred for postmortem examination. The accused was, thereafter, arrested on 1st May, 2008 and certain discoveries were made at his instance. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, at Mapusa, which was committed to the Court of Sessions at Panaji.
3. Charge was framed against the accused for the offence punishable under Section 302 of IPC for causing death of Shakappa and Shekawwa, and also for the offences punishable under Sections 392 and 201 of IPC.
5. In Sessions Case No. 20/2008, the prosecution examined 35 witnesses and produced several documents to prove the charges against the accused. The defence of the accused was of total denial and false implication.
8. Mr. Menezes, learned Counsel appearing for the appellant took us through the evidence of relevant witnesses and submitted that the prosecution has not been able to establish that it was the accused who had taken Shekappa and Shekawwa from their house on 24.4.2008 and, as such, the reliance placed by learned Sessions Judge on the evidence and the finding given by the learned Sessions Judge that it was the accused who had taken both the deceased from their house is unsustainable in law. Learned Counsel submitted that the evidence of the witnesses that the accused and the deceased were last seen together is of no avail to the prosecution. He further submitted that having regard to the fact that PW.21 Mahadevi, the daughter of the deceased was hardly 8 years old at the time of the incident, it is difficult to place reliance upon her evidence, since her tutoring cannot be ruled out. Learned Counsel further submitted that the recovery of jewellery of the deceased Shekawwa at the instance of the accused has not been proved and there are several flaws in the investigation of the crime.
Learned Counsel further submitted that the extra-judicial confession made to PW.22 Dr. Mandar Kantak is inadmissible in law, having regard to the settled law laid down by the Apex Court and by this Court. Learned Counsel further submitted that since both the witnesses, namely PW.20 Zubeda and PW.21 Mahadevi had seen the accused prior to the test identification parade, the test identification parade conducted by the prosecution is of no use to the prosecution.
He further submitted that a number of witnesses have been examined with the help of a translator, since the witnesses did not know local language and they knew only Kannada and the learned Sessions Judge never tested his familiarity with both the languages i.e. Kannada and English. There is only a statement recorded from the interpreter that he has correctly interpreted the version given by the witnesses.
Learned Counsel lastly submitted that having regard to the settled law by the Apex Court, the prosecution has not been able to establish by cogent evidence the circumstantial evidence proving the guilt of the accused beyond reasonable doubt. Therefore, the accused is entitled to be acquitted of the offences for which he has been charged.
In support of his submissions, Mr. Menezes has placed reliance upon the following judgments :
(1) State of Madhya Pradesh vs. Ghudan, 2003(4) Crimes 324 (SC);
(2) Bharat vs. State of M.P. 2003 AIR SCW 770;
(3) Asaram Rangnath Jadhav and anr., vs. State of Maharashtra, 2004 ALL MR (Cri) 1201;
(4) Sarvanand @ Soiru Gaonkar s/o. Purso Gaonkar vs. State of Goa, 2007 ALL MR (Cri) 28;
(5) Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 : [2009 ALL SCR (O.C.C.) 281].
9. Per contra, Mr. Rivonkar, learned Public Prosecutor appearing on behalf of the State, submitted that the evidence led by the prosecution clearly makes out all the offences for which the accused has been convicted by the learned Sessions Judge. According to the learned P.P., the prosecution has clearly proved that the death of Shekappa and Shekawwa was homicidal and that it was the accused who had taken both the deceased on 21.4.2008 from their house. Learned P.P. further submitted that the recovery of jewellery of the deceased Shekewwa and of the danda used in the commission of offence of murder of Shekappa has been proved by cogent evidence led by the prosecution. Learned P.P. further submitted that the extrajudicial confession made by the accused to PW.22 Dr. Mandar Kantak is admissible in evidence and there is absolutely no reason not to accept the same. Learned P.P. further submitted that the prosecution has been able to establish that it was the accused who had called up his nephew PW.17 Mohammad Rafiq on 21.4.2008 between 12.06p.m. and 3.20 p.m. on the mobile number of the deceased and although PW.17 Mohammad Rafiq has turned hostile, this fact, coupled with the fact that the mobile in possession of the deceased Shekappa was recovered at the instance of the accused, lends corroboration to the prosecution case that it was the accused who had committed the murder of both the deceased. Learned P.P. further submitted that the accused had not explained the incriminating circumstances put to him under Section 313 Cr.P.C. Therefore, this is an additional link in the chain of circumstances, making it complete.
According to learned P.P., the prosecution has been able to establish the following circumstances :
(I) The death of Shekappa and Shekawwa was homicidal.
(II) Death of Shekappa was due to head injury caused by blunt force and could have been caused by danda MO. 10, whereas death of Shekawwa was by strangulation.
(III) The accused took Shekappa from his house carrying a danda along with him at about 12.00 noon on 21.4.2008 and after sometime he took Shekawwa with him.
(IV) Extra-judicial confession made by the accused to PW. 22 Dr. Mandar Kantak on 1st May, 2008 that he killed both, Shekappa and Shekawwa;
(V) Arrest of the accused and attachment of his clothes and cash of ' 3500/- from his possession.
(VI) Danda MO. 10; Gold ornaments namely pair of bugadi, pairs of vale and mangalsutra (one gold tali, 3 gondas and 40 gold gondas (MO.11) recovered from the goldsmith PW.16, Ramesh; pair of silver payal (MO.12) recovered from PW.13 Gurunath and Mobile (MO.13) recovered from PW.32 Mutta Bodgiar. were all recovered at the instance of the accused.
(VII) Mobile No. 9881511262 was of deceased Shekappa and accused called his nephew PW.17 Mohammad Rafiq from that mobile on 21.4.2008 between 12.06 p.m. to 3.20 p.m.
(VIII) Gold ornaments were belonging to Shekawwa, and were identified by PW.21 Mahadevi, daughter of the deceased.
(IX) Pair of Silver Payal belonged to the deceased Shekawwa and identified by PW.14, Hanmova, uncle of the deceased.
(1) Kanda Padayachi vs. State of Tamil Nadu, AIR 1972 SC 66;
(2) Pakkirisamy vs. State of T.N., (1997) 8 SCC 158; and
(3) Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 : [2006 ALL MR (Cri) 3510 (S.C.) : 2007 ALL SCR 237].
(I) The death of Shekappa and Shekawwa was homicidal.
(II) Death of Shekappa was due to head injury caused by blunt force and could have been caused by danda MO. 10, whereas death of Shekawwa was by strangulation.
13. In order to prove the homicidal death of Shekappa, the prosecution examined PW.22 Dr. Mandar Kantak, Asst. Lecturer, Forensic Medicine, Goa Medical College. He deposed that he conducted postmortem examination on the dead body of Shekappa at the request of PI Shri S. S. Narvekar of Porvorim Police Station. The body was identified by Yankappa Romana Bhandari, cousin of the deceased. He had the following ante-mortem injuries :
(1) Bruise reddish 4 x 3 cms. over the right parieto occipital region of the scalp near the right parietal eminence with underlying ante-mortem extravasation of blood.
(2) Laceration 4 x 0.3x0.2 cms for mid forehead region of scalp, vertical 0.5cms over the nasion with underlying surrounding bruise, reddish 4 x 2.5 cms with antemortem extravasation of blood..
Both these injuries were caused by blunt force impact and were antemortem in nature and they were shown in the sketch in the postmortem report and the findings on pages 5 and 6. There was an ante-mortem fissure fracture of total length of 18 cms., extending from just below injury no.1 on the right parietal bone eminence extending downwards and medially to midline occipital bone to left occipital fossa to the base of skull ending in forearm. There was ante-mortem extravasation of blood within the fracture line site. The membranes were seen torn at the fracture line. There was a thin extra-dural haemorrhagic area of 4 x 2.5 cms. of the ante-mortem nature in the area corresponding to right parietal eminence of the skull.
The body was decomposed, foul smelling and was covered with flies and maggots, greenish discolouration, marbling and postmortem blebs for the limbs and peeling of the skin. Bloating of the soft tissue of the face with protrusion of eyeballs, tongue, chest, abdomen, scrotum and penis were seen. Yellowish adipocere formation with strong rancid smell was emanating from the body surface. The head injury which was caused by blunt force impact was ante-mortem, fresh at the time of death and was fatal, and any hard blunt object could cause the injuries that were noticed by him.
The witness was shown the wooden danda MO.10, admeasuring a metre in length with diameter of about 6 cms. The witness stated that the said danda could cause the injuries as noticed by him on the body of the deceased and the injuries were fatal in the ordinary course of nature.
In the cross examination, the witness stated that injury no.1 could not have been caused if the person fell against blunt object. He denied the suggestion that both the injuries could be caused in the course of accidental fall against a blunt object or that the injuries were caused in the course of autopsy examination. He denied all the suggestions put to him on behalf of the accused. The evidence of this witness which has not been shaken in the cross examination, clearly proves that the death of Shekappa was on account of the internal injuries caused, corresponding to the two injuries found on the external part of the body. His evidence also stands corroborated by the postmortem report Exhibit 56. Therefore, the prosecution has been able to establish that the death of Shekappa was homicidal and could have been caused on account of the injuries caused by the danda MO.10 which was shown to the witness.
14. In order to prove the homicidal death of Shekawwa Bhandari, the prosecution examined PW.23 Dr. E. J. Rodrigues, Associate Professor Forensic. He had conducted the postmortem on the dead body of Shekawwa on 24.4.2008 at the request of Porvorim Police Station. He deposed that the body was identified by Kalkappa, brother of the deceased. At the time of examination, the deceased was wearing a green colour gagra, multicoloured sari of yellow, orange and red, with one end of the sari tied around the neck with double fixed knots present at the right side of neck.
On external examination, he noted as follows:
(i) Multicoloured sari of yellow, orange and red, with one end of the sari tied around the neck with double fixed knots present at the right side of the neck placed horizontally of 33 x 3 cms. over thyroid cartilage in upper and mid front of neck region with short end of sari of 15 cms. and longer end of about 5 metres. On removing the sari, after cutting the loop opposite the knots and then tying the cut ends together the following findings were noticed underneath the ligature material. There was a pressure abrasion mark of ligature material of 32 x 2.5 cms. with irregularity on right side of neck at the level of the double fixed knots. The ligature mark was dried, parchmentised with abrasion at margins of ligature groove. On dissection of neck, there was comminuted fracture of both laminae of thyroid cartilage and also fracture of body of hyoid bone on both sides. The fracture sides showed staining effects at both thyroid and hyoid. There was also staining of subcutaneous tissue and muscles underneath the ligature groove. Injury No.1 was caused by soft ligature material and was antemortem in nature.
(ii) There was soft tissue destruction with no sign of vital reaction with plenty of maggots of 0.5 to 1 cm. in the floor over left breast in an area of 15 x 10 cms. and lower half front of the right thigh and upper half front and back of left leg. Missing of right hand and lower half of right forearm with radius and ulna bones ends exposed protruding with gnawing effects. Missing of left hand and lower third of left forearm with radius and ulna bones protruding and showing gnawing effects by animal creatures. Also missing of both feet with remnants of tarsal bones with gnawing effects by animal creatures. Plenty of maggots were present all over the body and orifices and at the ends of bones. Injury No. (ii) was caused by destruction by animal creatures and soft tissues by maggots and post-mortem in nature.
PW.23 further deposed that both the injuries were shown diagrammatically on page 4 of the Autopsy Report 431/2008. He opined that the death was due to constriction of the neck, as a result of ligature strangulation vide injury No. (i) which was necessarily fatal and fresh at the time of death. He further deposed that he drew the report Exhibit-63 collectively. He identified his signature on each of the pages at points "A". He also identified the multicoloured sari and the green colour gagra. He further deposed that constriction of the neck could be caused by the sari part being a soft ligature material.
In the cross examination, he denied the suggestion that he had given an incorrect opinion on the cause of death or that injury no. (i) was not ordinarily fatal. He denied the suggestion that injury no. (i) was caused during the autopsy examination or that he falsely identified the clothes in the Court. He did not agree to the suggestion that a snake or a python could cause such constriction.
15. A close scrutiny of the evidence of PW.23 Dr. Rodrigues which has not been shaken on material aspects in the cross examination, and which stands corroborated by the postmortem report, Exhibit 63 proves that the death of Shekawwa Bhandari was on account of strangulation with the help of the sari worn by her and, as such, the prosecution has been able to establish that the death of Shekawwa was homicidal.
(III) The accused took Shekappa from his hous e carrying a danda along with him at about 12.00 noon on 21.4.2008 and after sometime he took Shekawwa with him.
17. To prove this circumstance, the prosecution examined PW.20 Zubeida Bi, a neighbour of the deceased and PW.21 Mahadevi, daughter of the deceased. PW.20 Zubeida deposed that she was residing in Calangute for last two years (prior to the incident) and she knew Shekappa Bhandari and his wife Shekawwa Bhandari since they were residing in their neighbourhood and were in talking terms with them. She deposed that the deceased were having two children, 6 years old girl and 5 years old boy. About two years back, she saw Shekappa and Shekawwa, at about 12 noon at their residence. At that time, in the afternoon, one male person aged around 30 years came to their residence. He was slim with fair complexion wearing a black colour pant and a grey colour shirt. He went to the house of Shekappa. After sometime, he passed by her house along with Shekappa. She saw that person carrying a wooden danda along with him, but did not know as to where both of them went. She further stated that she was in a position to identify that person who had gone to the house of Shekappa. She identified the accused present in the Court as that person. She further deposed that after some time, the accused came back to the house of the deceased and soon thereafter she saw him passing by the side of her house along with Shekawwa. Both of them went in the direction as Shekappa went. She did not see the couple any time thereafter. After about 2 to 3 days she learnt that both of them died. The daughter of the deceased was present in the house when the accused went to their house. She further stated that she had identified the accused in the Court at Mapusa, but she was not in a position, even by approximation, how long after the death of Shekappa and Shekawwa episode. She described the wooden danda, as having about a metre in length and approximately four inches in diameter. Since the muddemal had not been received, the witness was requested to be recalled, which was accordingly done and she was again examined after the muddemal was received. She identified the danda MO.10 as the one which was with the accused.
18. In cross examination, PW.20 stated that she had given her statement to the police on the next day of the incident and the contents of her statement were read over and explained to her in Konkani by the police. In cross examination, she further stated that the incident had occurred about 2 years back (her evidence was recorded on 12.8.2009) and not in the year 2008 as recorded in her police statement. She further stated that she had given description of the clothes worn by the accused, to the police, but could not give any explanation for the omission in the statement. Similarly, she could not give explanation for the omission regarding the presence of the daughter of the deceased in the house. She denied the suggestion that her statement regarding the description of the clothes or that regarding the presence of the daughter of the deceased was false. She further stated that she had seen the accused from a distance of one metre when he went to the house of Shekappa and from his rear side. The accused had come to the house of the deceased at about 15.00 hours and went away with Shekawwa. She denied the suggestion that she was not sitting outside the house at about 15.00 hours or that she had not seen the accused passing by and going to the house of the deceased and returning with Shekawwa. She further deposed that she was shown the accused at Mapusa Police Station before she identified him in Mapusa Court. She denied the suggestion that she had falsely deposed at the instance of the police and identified the accused at the instance of the police upon being shown to her for the first time at Mapusa Police Station. She denied all the suggestions put to her on behalf of the accused.
19. From a close scrutiny of the evidence of PW.20, it is evident that though she claims that she had seen both the deceased going with the accused, her evidence does not advance the case of the prosecution for two reasons. Firstly, the witness insisted that she had seen both the deceased going with the accused two years prior to recording of her evidence which was recorded in August, 2009, which means that the incident occurred somewhere in August, 2007. The witness had categorically stated that she had seen the deceased going with the accused in 2007. This is clearly contradictory to the case of the prosecution. Secondly, the witness admitted in the cross examination that she had seen the accused from rear side and further that the accused was shown to her in the Mapusa Police Station prior to she identifying him in Mapusa Court. Therefore, we find it extremely difficult to place reliance upon her evidence regarding identification of the accused in the Court for the first time in the course of her examination. No doubt, the evidence of identification of the accused in the Test Identification Parade by the witness is not the substantive evidence, but, in the present case, in view of the categorical aforesaid two statements of the witness in the cross examination, we find it extremely difficult to place reliance upon her testimony that she had seen the accused taking both the deceased on 21.4.2008. Her identification of danda MO. 10 is also not beyond suspicion since admittedly no special identifying marks were there on this danda and such dandas are easily available in any house.
20. The next witness examined by the prosecution is PW.21 Mahadevi, daughter of the deceased. Her evidence was recorded with the help of an interpreter and since she was 9 years old at the time of her examination, learned Sessions Judge had put to her some questions to test her competence. In our view, some of the questions put by the learned Sessions Judge, ought not to have been put to the witness. For the purpose of ascertaining the fact that the child is capable of understanding the questions put to her, questions, unconnected with the crime should normally be put. Be that as it may, the evidence of PW.21 discloses that she was in the house with her younger brother and mother when the accused came to her house and took away her father Shekappa. She further deposed that the accused came after half an hour and took away her mother, but she did not see where he took her. The accused was carrying a munda (danda) when he went away with her father. She further deposed that she did not see Zubeida PW.20 when the accused took away her father. The accused was wearing a black colour pant and a bluish colour shirt at that time. She further deposed that her father was using a mobile phone and that she would be in a position to identify the mobile of her father if shown to her which was bearing number 9881511262. She deposed that the colour of the mobile was white. She further deposed that her mother was wearing gold mangalsutra, earrings and nose pin when she last saw her. She further deposed that she was in a position to identify the gold ornaments of her mother, if shown to her. The witness was shown a pair of gold earrings and similar gold items contained in a transparent polythene bag bearing seals of Porvorim Police Station. She identified the same as those worn by her mother. She further deposed that she did not recollect the colour of the pant and shirt worn by her father, but stated that her mother was wearing red colour sari and red colour blouse. She further stated that she was in position to identify the clothes worn by her mother, if shown to her. However, the clothes had not been received from CFSL Hyderabad. Hence leave was sought to recall and examine her after return of the Exhibits, which was granted. She further deposed that she had not seen the accused on any day prior to the day he took away both her parents. She stated that she saw him thereafter about 4 days later in Mapusa Court. Danda MO. 10 was not shown to her as she stated that she was not in a position to identify the danda.
21. In the cross examination, PW.21 stated that she was with her grandmother at her native place at the time of incident. Munda was about an arm's span in length. She did not know the difference between gold and silver or any other metal. She could not say anything to the suggestion that these articles are easily available in the market. She denied the suggestion that she had falsely identified the gold articles on being tutored by the police. She denied the suggestion that she was shown the accused by the police on that day before her deposition was recorded. She stated that she was not shown the accused before she was taken to JMFC Mapusa. But she stated that her grandfather identified the accused to her in Mapusa Court. She denied the suggestion that she was not in her house with her younger brother and mother when the accused came to her house. She denied the suggestion that the accused had not come to her house, nor did he take her father and thereafter mother or that her mother was wearing red colour sari and blouse.
22. Upon a close scrutiny of the evidence of PW.21, we find it difficult to place reliance upon her evidence regarding taking away of both the deceased parents by the accused. Firstly, in her examination in chief itself she stated that she had seen the accused four days after the incident in Mapusa Court and in the cross examination she stated that her grandfather had identified the accused to her in Mapusa Court. Moreover, this witness had not given the description of the accused so as to place reliance upon her evidence regarding the identification of the accused in the court. Though PW.31 Mr. Antonio Mascarenhas, Special Judicial Magistrate in his substantive evidence stated that this witness had identified the accused in the test identification parade, in view of the admission of the witness that the accused was identified by her grandfather in Mapusa Court, we find it difficult to place reliance upon her evidence regarding the identification of the accused as the person who had taken her parents on 21.4.08.
(IV) Extra-judicial confession made by the accused to PW.22 Dr. Mandar Kantak on 1 s t May, 2008 that he killed both, Shekappa and Shekawwa:
24. The prosecution and the learned Sessions Judge, have relied upon this circumstance. In the course of his deposition, PW.22 Dr. Kantak deposed that on 1st May, 2008, he examined one Rajeshsab Mujawar, and noticed distinct identification marks, namely brownish black mole over the right front chest and another over the front of the right shoulder as mentioned in his report. He deposed that after the police personnel were let out of the examination room, the accused made a voluntary disclosure that on 20.4.2008 he had spent all money that he had with him on gambling at Dabolim. Thereafter, on 21.4.2008, the accused went to the house of Shekappa at Porvorim to ask for money. But he told him that he had no money, which he did not believe and, as such, he took the danda from his house saying that he wanted to fix it to his pickaxe and called the deceased for some work, and after sometime, when Bhandari was walking in front of him, the accused hit him with danda on right side back of the head. The deceased fell and hit his forehead on the ground and laid motionless. The accused did not find any money with him and he took away his mobile. Thereafter, the accused again went to the house of Shekappa and told his wife that her husband was calling her. The wife of Shekappa came along with him. After sometime, when she was walking in front of him, he tightly encircled his right arm and forearm around her neck and she fell on the ground. He thereafter, tightly compressed the front of her neck with both his hands, and she became motionless and then he removed her sari and tied it tightly around her neck. The accused then removed her ear-pins, necklace and anklets and took them away with him. It is pertinent to note that the Advocate appearing for the accused had objected to the recording of the confessional statement by the learned Sessions Judge on the ground that the same was not admissible. However, the learned Sessions Judge stated that the issue would be dealt with on merits of the case.
25. As stated above, the learned Sessions Judge has placed reliance upon the alleged extra-judicial confession made by the accused. At this stage, we deem it appropriate to refer to the relevant sections of the Indian Evidence Act which are relevant for deciding whether the alleged extra-judicial confession could have been recorded by PW.22 Dr. Mandar Kantak and further whether the learned Sessions Judge could have recorded the alleged extra-judicial confession as deposed by PW.22 Dr. Kantak.
26. In terms of Section 24 of the Evidence Act, a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise. In terms of Section 25, the confession made to a police officer cannot be proved as against a person accused of any offence. In terms of Section 26, no confession made by a person whilst he is in the custody of police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. Section 27 permits the prosecution to lead evidence of any fact deposed by the accused if there is consequent discovery of fact while the accused is in custody of police officer. However, so much of such information, whether it amounts to a confession or not, as related distinctly to the fact thereby discovered, may be proved.
27. Thus, what follows from the above provisions of the Evidence Act is that the confession made by an accused whilst in police custody is not admissible, except the confession made in the immediate presence of a Magistrate or a fact, if deposed by the accused and there is consequential discovery. In our view, the issue is no more res integra and is squarely covered by a judgment of the Apex Court in the case of "Ammini and others vs. State of Kerala", AIR 1998 SC 260 : [1998 ALL MR (Cri) 287 (S.C.)], which has been referred to by the Division Bench of this Court in the case of "Sarvanand @ Soiru Gaonkar s/o. Purso Gaonkar vs. State of Goa" (supra). In the case of "Sarvanand", PW.10 Dr. Pujari who had examined the accused, in the course of examination, stated as below :
" I asked the accused how he had sustained the injuries on his body and he gave me the history that he had a scuffle with the deceased Rayu on 28-06-2004, at about 6.30 p.m. to 7.00 p.m. at Tiloy, Vantem, where the deceased scolded and assaulted the accused with a wooden plank on the face and nose. He stated to me that thereafter he assaulted Rayu with a sickle type weapon with a wooden handle and caused multiple injuries. He had stated to me that thereafter he assaulted the wife of the deceased Rayu i.e. Smt. Saraswati @ Shantu, with the same weapon, during which, he the accused, sustained injuries on the face, forehead, lips, nose, near alla of the nostrils and incised wound on the right ring of the finger at the P.I.P. joints abrasion and a blackish scab and loosened fallings from the pheriphynx. The laceration near the right alla of nostrils were infected. The incised wounds on the right ring finger had abrasion of healing. The age of the injuries on the accused was consistent with the history of the scuffle on 28-06-2004."
The Division Bench of this Court referred to the judgment of the Apex Court in the case of 'Ammini' in which the Apex Court held that an admission to a Doctor was admissible in evidence and the same was not hit by any of the provisions of the Evidence Act.
28. In the case of "Sarvanand @ Soiru Gaonkar" (supra), the Division Bench held that the accused was taken to Dr. Pujari with a view to get his confessional statement recorded, since the accused was already examined by PW.9 Dr. Verenkar. The Division Bench also held that the evidence of Dr. Pujari was not free from suspicion, and further held that the protection afforded by the wholesome provisions of Sections 25 and 26 was sought to be whittled down by the Investigating Officer by his ingenuity by sending the accused to PW.10 Dr. Pujari, after he failed to get what he wanted from PW.9 Dr. Verenkar.
29. In the case of "Ammini and others vs. State of Kerala", [1998 ALL MR (Cri) 287 (S.C.)] (supra), the prosecution had relied upon the statement made by the accused relating to the injuries caused to him. It was the case of the prosecution that while administering cyanide to Merli, accused No. 3 and accused No. 4 had received injuries. Accused No. 3 was arrested on 2.7.1980 and he was taken to Dr. Abraham (PW. 60) for his medical examination. The doctor found three injuries on the fingers of his right hand. When the doctor asked him how he had received those injuries, he stated that "these small injuries were caused by biting when I closed Merli's mouth to silence her at 7.30 p.m. on Monday before last". The evidence was disbelieved by the trial Court on the ground that the certificate issued by the doctor was on a plain form. Similarly, accused No. 4 was arrested on 5.7.80 and he was taken to Dr. Vasant Kumari PW.64 for medical examination, who had noticed that the two injuries were in the healing process. On being asked about the injuries, accused No. 4 had told her that "my left elbow and outer part of the right hand were injured while taking Merli to the kitchen, holding her from behind with left hand, inside Merli's house at about 7.30 p.m. on Monday, 26.3.1980". The trial Court rejected her evidence on the ground that the certificate issued by her was also on a plain piece of paper and an endorsement made therein was in different ink. The High Court considered both the grounds as improper and insufficient. It observed that it was well known then that printed forms were in short supply in Government hospitals in the district of Ernakulam. The High Court further found that the Doctor had no reason to prepare false certificates. The High Court relied upon the evidence of the Doctors and held that the certificates issued by them were true. The High Court also held that what accused Nos. 3 and 4 told the Doctors amounted to an admission and as such, they were admissible in evidence. The Apex Court agreed with the view taken by the High Court and ultimately dismissed the appeal filed by the appellant.
30. It is pertinent to note that in the present case, as per the version of PW.22 Dr. Kantak himself, he examined the accused, but did not notice any injury on his person. In this factual background, we fail to understand as to how PW.22 Dr. Kantak could have recorded the statement allegedly made by the accused to him. Firstly, there was absolutely no occasion for PW.22 to seek disclosure from the accused. The only duty which PW.22 had to undertake was to examine the accused to find out if there were any injuries on his person in terms of the request made for medical check up of the accused and preserve necessary material for further investigation in terms of the request letter dated 1st May, 2008 sent to the Police Surgeon by P.I. Sudesh Narvekar PW.33. Therefore, there was absolutely no occasion for PW.22 Dr. Kantak to record any statement, even if made by the accused in the course of medical examination or thereafter. It is to be noted that it is not the function of a doctor to carry out investigation of an offence. It is only if any injury or injuries are found on the person of the accused, the doctor examining him is entitled to ask him as to the cause of the injury/injuries and, in the event, the accused chooses to disclose the manner in which he sustained injuries, the doctor will be within his right to record the statement made by the accused in that regard and in case, such a statement amounts to admission, the Court dealing with the matter would be entitled to rely upon the evidence of the doctor as an admission made by the accused which does not amount to confession. But, in case the accused refuses to disclose the cause of injury/injuries, it is not within the province of the doctor examining him to compel him to disclose the cause of injury/injuries.
31. We have noticed that in a number of cases, more particularly in murder cases, the doctors examining the accused, choose to record the statements of accused which is in the nature of confession which is impermissible in law. This is notwithstanding the fact that the Division Bench of this Court had an occasion to deal with such an issue way back in the year 2006 in the case of "Sarvanand @ Soiru Gaonkar s/o. Purso Gaonkar" (supra). Moreover, in the present case, learned Sessions Judge has recorded the statement made by the accused to PW.22 Dr. Mandar Kantak notwithstanding the objection taken on behalf of the accused that the statement made was inadmissible in evidence. We hope and trust that hereinafter the doctors examining the accused involved in serious offences and learned Sessions Judges shall take note of the legal position and take care not to record confessional statement of an accused either during the course of medical examination of the accused or during the examination of the doctor in the course of trial. Considering the importance of the issue involved, we deem it appropriate to circulate a copy of this judgment to both the Principal District & Sessions Judges, in Goa, the Dean, Goa Medical College at Bambolim and the Director of Health Services, Goa.
(V)Arrest of the accused and attachment of his clothes and cash of Rs. 3500/- from his possession.
32. PW.33, Sudesh Narvekar, the then Police Inspector of Porvorim Police Station arrested the accused on 1/5/2008. The arrest panchanama is at Exhibit 74 which is duly proved by PW.26, namely Vassudev Chodankar. The accused, as stated by PW.26 and PW.33, was wearing a full sleeves shirt of blue colour with white and brown stripes and a blue coloured jean pant. A search of his clothes was taken and cash of Rs.3500/- in the denomination of notes of Rs.500/- each was found in the right side front pocket of the pant. The same was packed and sealed. The accused, in his statement under Section 313 of Cr.P.C., was asked about the said cash but he denied having found cash in his possession.
33. PW.33 deposed that the accused disclosed that these were the same clothes worn by him at the time of the incident. According to PW.26 and PW.33, the accused was provided with a separate set of clothes and called upon to remove the clothes on his person. The said clothes were then attached, packed and sealed. PW.26 is the reporter of Tarun Bharat and his testimony is not at all shaken in the cross-examination. Thus, attachment of clothes of the accused, which he was wearing at the time of arrest, and the fact that there was cash of Rs.3500/- with him is established.
34. As per C.F.S.L. Report which is part of Exhibit 111-colly, no blood was detected on the said clothes of the accused. As already stated earlier, PW.20, Smt. Zubeida Bi, the neighbour of the deceased, deposed that the person who came in the afternoon about two years back to the residence of Shekappa and Shekawwa was wearing a pant of black colour and a shirt of grey colour. PW.21, Mahadevi, the daughter of the deceased, deposed that the accused was wearing black coloured pant and bluish coloured shirt. However, the clothes which are attached from the person of the accused are blue coloured jean pant and blue coloured full sleeves shirt with white stripes. Thus, the description of clothes given by PW.20 and PW.21 does not match with the clothes which the accused was wearing on the date of his arrest. Be that as it may, neither PW.20 nor PW.21 was shown, in the trial Court, the clothes which were attached from the person of the accused for her to identify them. Insofar as PW.21 is concerned she deposed that she would not be in a position to identify the clothes of the accused.
35. On the basis of the clothes which have been attached from the person of the accused, the prosecution cannot therefore, prove that the person seen by PW.20 and PW.21 was the accused himself, or that the accused had connection with the crime.
36. However, the fact remains that cash of Rs.3,500/-, in the denomination of notes of Rs.500/- each was found with the accused, about which no explanation has been given by him but on the contrary, the ownership as well as possession of which has been denied by him.
(VI)Danda MO. 10; Gold ornaments namely pair of bugadi, pairs of vale and mangalsutra (one gold tali, 3 gondas and 40 gold gondas (MO.11) recovered from the goldsmith PW.16, Ramesh; pair of silver payal (MO.12) recovered from PW.13 Gurunath and Mobile (MO.13) recovered from PW.32 Muttu Bodgiar, were all recovered at the instance of the accused.
38. PW.33 deposed that on the next day of the arrest of the accused i.e on 2/5/2008, the accused made disclosure in the presence of PW.24, Shri Suresh Kerkar and one Sagar, upon which certain articles were recovered. The recovery panchanama is at Exhibit 66. The evidence of PW.24 and PW.33, read with the said panchanama, Exhibit 66, under Section 27 of the Evidence Act, after separating admissible evidence from that which is inadmissible, reveals that the accused, inter alia, made a disclosure that he had taken a mobile, a pair of gold bali, mangalsutra, payal and thereafter had thrown away the danda and had sold the gold and silver items to the goldsmith and mobile to some person. The accused showed willingness to take panchas and police party to show the danda and to show the persons to whom he sold the other items.
39. The evidence of PW.24 and PW.33, read with the panchanama Exhibit 66, further reveals that thereafter, they along with police staff went by jeep as per the directions of the accused and the accused took them to the said jungle area and removed the danda from the bushes, which danda was 83 cms. long and about 21 cms. in circumference with one side cut. The said danda was wrapped in paper, packed and sealed.
40. It was submitted by learned Counsel for the accused that the danda was attached from an open place accessible to all and sundry and hence the said recovery cannot be relied upon. It may be that the danda was shown by the accused in a jungle wherein anybody could have gone. But, it was not found in the place visible to naked eyes. The danda was picked up by the accused from the bushes. Besides the above, the principle underlying Section 27 of the Evidence Act is that it is only the person who hides the article at a particular place can disclose about it and show the same. The recovery of danda cannot be doubted merely because it was shown in a jungle.
41. It is further proved by the evidence of PW.24 and PW.33 that thereafter, the accused took the police and panchas to the shop of the goldsmith by name Ramesh Palankar, at Gudur, where the said goldsmith identified the accused as the person who had sold the mangalsutra, two earnings and payal to him. The evidence reveals that the said goldsmith showed two bugadies with flower like design weighing one gram 500 milligrams, mangalsutra-thali weighing approximately one gram 800 milligrams, pair of earrings weighing more than one gram and 40 bugadies of mangalsutra weighing approximately two grams 800 milligrams. The goldsmith handed over all the said gold articles to the police and they were put in polythene bags, stapled and sealed.
42. The evidence of PW.24 and PW.33 further reveals that the accused thereafter took them on foot to a short distance and showed the shop of Gurunath Kuttur where he had sold the silver anklets. The said Gurunath identified the accused and disclosed that the accused had sold the silver anklets to him and handed over the said anklets to the Police Inspector which after being weighed, were and found to be of 34 grams. The said anklets were also packed and sealed.
43. The evidence of PW.24 and PW.33 further reveals that thereafter, the accused took them to a place named Holemannur and near a temple named Demamma and thereafter to one person by name Muttu Badigiyar. The said Muttu identified the accused as the person who had sold the mobile to him for Rs.1000/- and handed over the Nokia mobile of Model 1100 to the police. The mobile was also duly packed and sealed.
44. In the cross-examination, PW.24 deposed that his presence was secured because he knew Kannada language. He was staying just about 10-15 minutes walking distance from the police station. The accused had worked with him about more than 5 to 6 years back. According to him, the panchanama started after he reached the Porvorim Police Station. They reached Gudur in Karnataka at 14.30 hours and there the panchanama started at about 15.00 hours. Further panchanama started in next 15 to 20 minutes and the last started after they reached Halimannur at around 17.30 hours approximately. He has given the distance between Gudur and Halimannur to be approximately one and half hours travelling time by private vehicle. The contents of the panchanama were continuously written on one paper which started at Porvorim P.S. The packing and sealing of danda was done at the spot of the recovery i.e. in the jungle area. It can thus be said that PW.24 has not at all been shaken in the cross-examination. Besides the above, there is due corroboration from the purchasers namely PW.16, PW.13 and PW.32.
45. PW.16, Shri Ramesh Palankar deposed that he has a jewellery shop at Gudur and on 22/4/2008, at about 11.00 a.m., he was at his jewellery shop when the accused came with gold ornaments viz. one pair of bugdi (small earrings) and one pair of vale (earrings) and told him that he wanted to sell them because he was in need of money to buy some property and that the gold ornaments belonged to his wife. According to PW.16, he purchased the said gold ornaments and about 2 or 3 days thereafter, the accused again came to the shop and this time he brought gold tale (daul) and 40 golden beads. He stated that the gold ornaments purchased by him on both the occasions were weighing 7.800 grams and he paid Rs.5500/- to the accused. PW.16 further deposed that about 8 days thereafter police came to his shop along with 2-3 other persons and the accused showed to the police his shop and he returned the said gold ornaments to the police. He gave a receipt acknowledging the attachment of the said gold articles by the police which acknowledgment letter is at Exhibit 37. PW.16 identified the said gold ornaments (MO.11) which were shown to him in the Court. His cross-examination reveals that his statement was recorded by the police on the very day of recovery of the said gold ornaments i.e. on 2/5/2008. He stated that money was paid to him by the accused in cash. He has been confronted with the police statement wherein the weight as 7.800 grams is not mentioned. He stated that there is no particular identification marks on the gold ornaments. PW.16, being a goldsmith, is an expert in gold ornaments and identification by him need not be doubted. He denied all the suggestions that have been put to him by the learned counsel for the accused. We find that the testimony of PW.16 does not have any dent and, even otherwise, he has no reason at all to tell lies. PW.16 is a reliable witness.
46. PW.13, Gurunath deposed that he has a jewellery shop at Gudur main road, Hunagund, Bangalkot District and that on 2/5/2008, police came along with the accused and inquired whether the accused had earlier come to his shop. PW.13 stated that the accused had come to his shop, about 8 days prior to the arrival of Goa police along with the accused, for selling one pair of silver payal saying that he was from Mittalkot village and that he was in need of money and he kept his wife and child at the bus stand. PW.13 weighed the said pair of payal and found it to be of 34 grams and therefore, he paid an amount of ' 270/- to the accused after which the accused went away. He stated that he handed over the said pair of silver payal to the police and it was again weighed and found to be weighing 34 grams. He was shown the said pair of silver payal (MO.12) in the Court and he identified them. In his cross-examination, he admitted that such type of payals are available in the market. He further stated that the payals appeared to be new because they were polished by him just prior to the attachment by the police. Exhibit 31 is the acknowledgment letter which PW.13 gave to the police. Being a goldsmith, PW.13 would not have any difficulty in identifying silver items. The testimony of PW.13 has also not been shaken in the cross-examination. There is no reason for disbelieving PW.13 as he is not in inimical terms with the accused.
47. PW.32, Muttu Bodgiyar deposed that the accused was from Mittalkod Karnataka and that he had purchased a mobile from the accused two years back for Rs. 1000/-. He deposed that the said mobile was of Nokia Company. He further stated that the said mobile was taken by Goa police from him about 4-5 days after he had purchased the same from the accused. PW.32 also identified the mobile, MO.3 shown to him in the Court. Nothing worth mentioning has come in the cross-examination of PW.32 to render his testimony unreliable.
48. The composite panchanama of all the above articles is at Exhibit 66. A minute scrutiny of the cross-examination of PW.24 and PW.33 discloses that these witnesses firmly stood to the test of crossexamination and there is nothing for disbelieving the recovery of said articles at the instance of the accused. The evidence of PW.16, PW.13 and PW.32 further strengthens the case of the prosecution as the said evidence proves that the said articles were sold to them by the accused. The incident had occurred on 24/4/2008. The accused was arrested on 1/5/2008. The articles were recovered at the instance of the accused on 2/5/2008. There is, therefore, no inordinate delay.
(VII)Mobile No. 9881511262 is of the decease d Shekappa and the accused called his nephew PW.17 Mohammad Rafiq from that mobile on 21.4.2008 between 12.06 to 3.20 p.m.
49. PW.15, Allabaksh R. Byhatti deposed that he is a mason and knew the deceased Shekappa Bhandari for about four years as he used to come for labour work with him. PW.15 deposed that about three years back Shekappa had approached him stating that he wanted to purchase a SIM card for his mobile and that he could not purchase the same as he did not have any identity documents. The deceased, therefore, requested PW.15 to give some documents so that he could purchase the SIM card. PW.15 stated that he gave to the deceased the xerox copy of his licence and the deceased then purchased the SIM card. PW.15 further stated that about 3 to 4 days thereafter Shekappa requested him to come to Agarwal mobile shop since his signature was required. PW.15, therefore, went and signed. The said SIM card was standing in his name but was used by Shekappa. However, PW.15 does not remember the SIM card number.
50. PW.21, who is the daughter of both the deceased, stated that her father was using a mobile phone and that the same was white in colour with number being 9881511262. The statement of PW.21 was recorded by PW.33 on 24/4/2008 whereas the accused was arrested on 1/5/2008 and mobile was recovered at the instance of the accused on 2/5/2008. Hence, mention of the number of the mobile by PW21 itself goes to prove that the deceased Shekappa was using the said mobile. The mobile which was attached at the instance of the accused was removed out of the sealed envelope and said white colour mobile was shown to PW.21 and she identified it to be the same which was used by her father Shekappa. Thus, the mobile which was used by deceased Shekappa was recovered from Muttu Bodgiyar (PW.32) at the instance of the accused and according to PW.32, the same was sold to him by the accused.
51. PW.17, Mohammad Rafiq, deposed that he was a student of second year P.U.C and that the accused is his uncle i.e husband of the sister of his mother. He further stated that he had got mobile phone bearing no. 9739779414 and that one day in the month of April 2008 in the afternoon when he was at his college, he received missed calls of some caller. He stated that he did not remember the mobile number of the caller but somebody was asking for Pradip. He stated that his statement was recorded by the police. This witness was cross-examined by the learned Public Prosecutor, with the permission of the Court since he had resiled from his police statement. In his cross-examination, he stated that it may be true that he had received a phone call on 21/4/2008 at 12.05 p.m., but he had not stated to the police that he received the call from mobile no. 9881511262 and Rajasab Muzawar (accused) spoke with him, asking him to speak with his daughter. PW.17 has been confronted with his police statement where he has stated so and further that Rajasab Muzawar had again called him at 12.10 p.m., 3.15 p.m. and 3.20 p.m.. He has also been confronted with his police statement where he has stated that he had phoned Rajasab on his mobile on the same number and had spoken with him and had asked him whether he had taken the said mobile phone and he was told by the accused that he was using his friend's mobile.
52. Though PW.17 has been cross-examined by the learned Public Prosecutor and has been confronted with his police statement, however, the said confrontations have not been proved through the Investigating Officer. The Investigating Officer has not been asked by the prosecution as to whether PW.17 had actually made said statements to him with which he has been confronted. In such circumstances, the statement of PW.17 cannot prove anything except that the accused is his uncle and that PW.17 had a mobile phone bearing no. 9739779414.
53. PW.27, Shri Dattaram Angre, deposed that he knows Sachin Shinde who was working as Manager-Nodal Officer of Idea Cellular Ltd., Pune with coverage in Maharashtra and Goa. PW.27 deposed that he is working as an alternate Nodal Officer in the same office and he has been deputed by Sachin Shinde to depose in the case. PW.27 produced the authority letter issued in his favour by Shinde. PW.27 deposed that a letter was received from the office of S.P. North Goa addressed to Idea Cellular Panaji calling for the name, address and call details of the subscriber with SIM card no. 9881511262 for the period between 1/4/2008 till 24/4/2008. PW.27 furnished the call details bearing the seal of the office and signatures of Sachin Shinde. PW.27 identified the said signature of Sachin Shinde on the said call details which are at Exhibit 81. From the said call details it is seen that there was call from mobile no. 9881511262 to the mobile number 9739779414 belonging to PW.17 on 21/4/2008 at 12.06.55 p.m.. These facts read with the statement of PW.17 that he might have received call on his mobile on 21/4/2008 at 12.05 p.m. and from the fact as proved by PW.21 that the deceased Shekappa was using the mobile no. 9881511262 and lastly that the same mobile was recovered at the instance of the accused, duly proves that the said call was received by PW.17 from the accused himself. The call details further show that there were calls from mobile no. 9881511262 to mobile no. 9737779414 on 21/4/2008 at 12.11.25 p.m., 02.07.05 p.m., 03.16.23 p.m. and 03.20.49 p.m. It is further seen that thereafter there was call from mobile no. 9881511262 to mobile no. 9737779414 belonging to PW.17 on 22/4/2008 at 01.06.04 p.m. and 01.06.04 p.m.
54. Therefore, it can be said to have been satisfactorily established that the mobile used by the deceased Shekappa was in possession of the accused, soon after the death of the said deceased. In his statement under Section 313 of Cr.P.C., the accused has denied recovery of the said mobile no. 9881511262, at his instance. Thus, there is no plausible explanation coming from the accused for possession of the mobile of the deceased.
(VIII) Gold ornaments were belonging to Shekawwa , and were identified by PW.21 Mahadevi, daughter of the deceased.
(IX) Pair of Silver Payal belonged to the deceased Shekawwa and were identified by PW. 14, Hanmova, uncle of the deceased.
55. PW.21 stated that her mother was wearing gold mangalsutra, earrings and nose-pin when she last saw her. PW.21 had allegedly seen her mother last on the day on which the person, whom she identified as accused, took her with him. No doubt, it has already been held that her identification of the accused is not reliable. But that does not mean that she would tell lies insofar as the ornaments which her mother was wearing on that day. PW.21 was shown in the court a pair of gold earrings and all other gold items which were recovered at the instance of the accused and she identified them to be those which were worn by her mother. Though, PW.21 was a child aged about 8 years only at the time of incident, however she is female. Females have liking for ornaments. PW.21 cannot be expected to make mistakes in identifying ornaments of her own mother. In the case of "Earabhadrappa alias Krishnappa Vs. State of Karnataka", reported in [(1983) 2 SCC 330] : [2010 ALL SCR (O.C.C.) 146], the Apex Court has observed that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. No doubt PW.21 is child witness due to which her evidence has to be considered with caution. It is settled that every child cannot be discredited as untrustworthy, since each case depends upon its particular facts and circumstances. Mere suggestion has been put to PW.21 that she has falsely identified the said articles as worn by her mother. These articles are valuable. The jeweller from whom they were attached does not claim that the said articles belong to him and were falsely taken away from him by the police. The accused, at whose instance the said articles were recovered, does not say that the said articles belong to him. Besides the above there is corroboration on identification of said articles, from PW.14.
56. PW.14, Hanmova, the paternal uncle of the deceased, Shekawwa stated that Shekawwa used to wear gold mangalsutra having black beads and some golden beads. According to him, she also used to wear earrings having design as also nose rings of gold. He further stated that shekawwa was wearing silver payals on the legs. He was shown the gold beads, gold earrings (bugdi), one pair of dhaul, 3 big beads and 40 small gold beads as also the pair of silver payal, all of which were recovered at the instance of the accused. He identified them all as the same which the deceased used to wear. Mere suggestion has been put to PW41, in the cross-examination that he has falsely identified the items mentioned in the chief as the same being worn by Smt. Shekawwa and that he had no occasion to see her wearing those articles. PW14 has denied the said suggestion.
57. No doubt, there was no prior test identification of gold ornaments and silver payals done before any authority by the above witnesses. In the case of "Earabhadrappa alias Krishnappa", [2010 ALL SCR (O.C.C.) 146] (supra), also there was no prior test identification in respect of the seized articles. The Apex Court held that there is no such legal requirement. Hence merely on the ground of want of prior test identification of the seized articles, the testimonies of above witnesses, insofar as identification of the articles of Shekawwa, is concerned, cannot be discarded.
58. By the above evidence on record, in our considered opinion, the prosecution has succeeded in proving that the gold ornaments and silver payals which were worn by the deceased Shekawwa on 24/4/2008 were recovered at the instance of the accused, on 2/5/2008. It is also proved beyond doubt that the mobile of the deceased Shekappa was in possession of of the accused, after the death of Shekappa. The accused is proved to have sold the above articles to various persons. During his arrest the accused was found in possession of cash of ' 3500/- in the denomination of notes of ' 500/- each. The accused did not have satisfactory explanation to offer for his possession of the stolen articles as well as said cash. On the contrary, he denied that the said articles were recovered at his instance or that any cash was found in his possession. This denial itself is an incriminating circumstance against the accused. It has been so held in the case of "Earabhadrappa alias Krishnappa", [2010 ALL SCR (O.C.C.) 146] (supra). In the case of "Trimukh Maroti Kirkan Vs. State of Maharashtra" [(2006) 10 SCC 681] : [2006 ALL MR (Cri) 3510 (S.C.) : 2007 ALL SCR 237], relied upon by the learned Public Prosecutor, it was held by the Apex Court that in a case based on circumstantial evidence where no eye witness account is available, another principle of law must be kept in mind that when an incriminating circumstance is put to the accused and the accused offers no explanation or explanation is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
59. The danda (MO.10) attached at the instance of the accused was forwarded to C. F. S. L, Hyderabad, for examination. As per the examination report which is part of Exhibit 111-colly, no blood was detected on the same. However, PW.22, Dr. Kantak, who had done the postmortem examination of the dead body of Shekappa, has deposed that the head injury sustained by Shekappa was caused by blunt force impact. He was shown the said danda, MO. 10 and he stated that such danda could cause the injuries noticed by him on the body of the deceased. Hence, recovery of danda at the instance of the accused, in our considered opinion, along with other circumstances, also advances the case of the prosecution.
60. There is on record evidence of PW.6, Hanumanta, PW.7, Kumar, PW.8 Basuraj, PW.9, Bhimappa, PW.10, Lalsab, which proves that all of them had worked for the accused, but the accused did not pay them their remuneration. The above shows that the accused did not have money and needed the same.
61. The evidence of PWs. 6 to 10, PW.20 and PW.21 was given in Kannada, but recorded by the Sessions Court in English with aid of interpreters. The grievance of the learned counsel for the accused is that the interpreters were randomly chosen without verification of their familiarity with both languages and that no certificate of interpreter on oath or otherwise is recorded. Section 277(b) of Cr.P.C. provides that if he (the witness) gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding judge, and shall form part of the record. Thus, what has been done by the learned Sessions Judge is in accordance with law. In the present case, the witnesses spoke in the language of the accused. The interpreters who were either from Karnataka or otherwise conversant in Kannada language were taken and examined by the learned Judge and were found to be fit to act as interpreters. The accused did not object to the said interpreters before the Sessions Judge. The learned Counsel for the accused was not in a position to show any provision requiring taking of certificate from the interpreter stating that he translated the deposition truthfully and faithfully. We do not see any prejudice having been caused to the accused on account of the aid of interpreters taken by the learned Sessions Judge. There is, therefore, no merit in the said objection of the learned Counsel for the accused.
62. Admittedly, the present case is based on circumstantial evidence only. The Apex Court in the case "Sharad Birdhichand Sarda vs. State of Maharashtra" : [2009 ALL SCR (O.C.C.) 281] (supra), has laid down the following five tests which have to be satisfied before the accused can be held guilty based on circumstantial evidence.
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established.
(2)The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability act must have been done by the accused.
63. The question, therefore, arises for consideration is whether the circumstances which have been proved by the prosecution bring home the guilt of the accused for which he has been convicted by the trial Court ?
64. Considering all the above evidence on record, though the prosecution could not succeed in proving the last seen theory and extrajudicial confession, however, it can be safely said that the homicidal death of both the deceased and the fact that the head injury sustained by Shekappa was due to blunt object like danda (MO.10) and recovery of danda (MO.10) as well as valuable stolen articles belonging to both the deceased persons at the instance of the accused is duly proved.
65. In the case of "Earabhadrappa", [2010 ALL SCR (O.C.C.) 146] (supra), murder and robbery were proved to be integral parts of one and the same transaction and therefore it was held that the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that the appellant committed murder as well as robbery. In the case before us also the murder and robbery of the deceased persons are integral parts of the same transaction. In our view it can be presumed that the author of the death of Shekappa as well as of Shekawwa is none else than the accused and that he robbed the mobile of the former and gold and silver ornaments of the latter. Therefore, by virtue of Illustration (a) to Section 114 of the Evidence Act, the accused is guilty of murder as well as robbery. The SIM card from the said mobile was destroyed. Hence Section 201 of I.P.C. is also applicable against the accused.
66. For the reasons aforesaid, we are of the considered opinion that the circumstances which are proved by the prosecution clearly prove beyond reasonable doubt that the accused committed the offences for which he has been convicted and sentenced by the learned Sessions Judge.
68. Registrar (Judicial) shall circulate a copy of this judgment to both the Principal District & Sessions Judges, in Goa, the Dean, Goa Medical College at Bambolim and the Director of Health Services, Government of Goa. Learned Principal District & Sessions Judges, North and South Goa shall circulate copies of this Judgment to all the Sessions Judges functioning within their jurisdiction. Similarly, the Dean, Goa Medical College and the Director of Health Services, shall bring it to the notice of all the Doctors conducting post-mortem examinations in the State of Goa, so that the Doctors conducting postmortem examinations only record the statement of the accused which is admissible in law.