1 apeal 1345.02.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1345 of 2002
Shri Wilfred Rozario Fernandes
Aged - Adult,
R/o. c/o. Maria D'Souza, Room No.2,
Tank Pakhadi, Sahar Village,
Mumbai - 99.
(At present lodged in Yerwada Central Prison,
Pune) ..Appellant
ig (original Accused)
v/s.
The State of Maharashtra ..Respondent
(original Complainant)
Mr. N.N. Gavankar i/b. Mr. Arfan Sait - advocate for the petitioner.
Mr. J.P. Yagnik - APP for the State.
CORAM:- A.M.KHANWILKAR &
A.P. BHANGALE, JJ
JUDGMENT RESERVED ON : DECEMBER 01, 2010.
JUDGMENT PRONOUNCED ON : DECEMBER 07, 2010.
JUDGMENT (PER A.P. BHANGALE, J)
The Appeal is directed against the Judgment and order dated 21st
::: Downloaded on – 09/06/2013 16:40:37 :::
2 apeal 1345.02.sxw
October, 2002 passed by Additional sessions Judge, Greater Bombay in
Sessions Case No.12 of 1998 whereby the Appellant was convicted of the
offence punishable under section 302 of the Indian Penal Code and was
sentenced to suffer rigorous imprisonment for life and to pay fine in the
sum of Rs 1000/- in default to undergo further imprisonment of three
months.
2. Briefly stated facts of the prosecution case are as under :-
On 05th October, 1997 Police had received intimation that a dead
body of an unidentified male with throat injuries is lying in Talav Pakhadi
Maidan, Sahar Village, Andheri (East). Police proceeded to the spot to
ascertain identity of the person. Information gave rise to C.R. No. 959 of
1997 under section 302 of the Indian Penal Code. Inquest (Exh. 7) was
held on 6th October, 1997. Pair of slippers, blood smeared chopper, blood
sample from the wounds of the dead body were seized under the
Panchnama. The dead body was referred for the postmortem examination.
Dr. M.P. Sangle performed autopsy over the dead body identified by
Harisingh Bhajansingh Bogati as that of his son Sachin Harisingh Bogati.
The dead body was handed over to said Harisingh for last rites. During the
course of investigation it was revealed that deceased Sachin and the accused
::: Downloaded on – 09/06/2013 16:40:37 :::
3 apeal 1345.02.sxw
were friends and were last seen together in the late night of 5th October,
1997. On enquiry from the sister of the accused it was revealed that the
accused left for Goa on the morning of 6th October, 1997. Police proceeded
to Goa to trace the accused but could not trace him. The accused chose to
surrender at Sahar Police Station through his Advocate Mr. Savant. PSI
Sarode (PW-19) arrested the Accused. During the interrogation it was
revealed that the Accused had visited Belgaum and stayed at Lodge. Police
along with the Accused had visited Shivbhavan Lodge at Belgaum and a
blood stained Shirt (Art. 3) was discovered under Panchnama pursuant to
disclosure statement made by the Accused recorded under the Panchnama
(Exhibit 40 and 40A). Statement of the Manager of the Lodge was also
recorded. Documents were collected as evidence regarding stay of the
Accused at the Lodge. Chopper (Art. 1) was seized from the spot of offence
under Panchnama. Similar Choppers were seized from the house of Maria
(Sister of the Accused) under the Panchnama (Exh. 12). On 12th October,
1997 the Accused had led panchas and police to the spot of offence
(Panchnama Exh. 18 and 18 A). Clothes of the accused as well as clothes of
the deceased were seized under the Panchanma (Exh. 22). The muddemal
articles were sent to C.A. under letter dated 7th October, 1997, 20th October,
1997 for the chemical analysis. C.A. reports were received (Exh. 62 and
::: Downloaded on – 09/06/2013 16:40:37 :::
4 apeal 1345.02.sxw
Exh. 63 collectively). Upon completion of the investigation, on 26th
December, 1997 the chargesheet was submitted before the Learned
Metropolitan Magistrate, 22nd Court who committed the case to the court of
Sessions by order dated 22nd December, 1997. Charge was framed at Exh.
1. The Appellant pleaded not guilty and claimed trial. His plea was
recorded at Exh. 2.
3. At trial Prosecution examined 24 witnesses to prove its case and
closed its evidence. No defence evidence was led .
4. Learned Counsel for the Appellant submitted that the Prosecution had
failed to complete the chain of circumstances as to bring home guilt to the
Appellant. Reliance is placed upon the ruling in Aloke Nath Dutta vs
State of West Bengal (2007) 12 SCC 230. It is contended that the
Investigating Officer was under obligation to obtain signature of the
Appellant below the alleged disclosure statement purportedly made by the
Appellant but no signature was obtained, therefore, the evidence as to
discovery of blood stained weapon ought to have been excluded by the Trial
Court. Learned Counsel relied upon the ruling in Haribhau Ganpati
Bhalerao vs. State of Maharashtra 2002 ALL M.R. (cri.) 305 the
::: Downloaded on – 09/06/2013 16:40:37 :::
5 apeal 1345.02.sxw
Bombay High Court had taken the view making reference to the ruling in
Jackaran Singh vs. State of Punjab AIR 1995 SC 2345 that when
recovery memo did not contain signature of the accused or his thumb
impression, it detracts materially from the value to be attached to the
recovery. The Division Bench of this court concluded that the piece of
evidence can not be relied upon to sustain the conviction. Learned Counsel
further submitted that regarding evidence as to discovery of the blood
stained shirt from Belgaum, the evidentiary value is lost as both the
incriminatory part as well as discovery has been exhibited together.
Therefore, there was every chance that the trial judge to get influenced by
the incriminatory portion of the disclosure statement. Reliance is sought to
be placed upon Aloke Nath Dutta’s case (2007)12 SCC 230 .
5. Learned A.P.P. for the State submitted that the chain of circumstances
in this case was so complete so as not to leave any doubt about the
complicity of the accused in this case. Regarding submission advanced by
the defence that signature of the accused was not obtained below the
disclosure statement and therefore disclosure was not admissible against
the accused ,he made reference to the ruling in State of Rajasthan vs. Teja
Ram & others 1999 SCC(cri) 436 in Para 30 after the Apex court
::: Downloaded on – 09/06/2013 16:40:37 :::
6 apeal 1345.02.sxw
examined legal position and observed thus:-
“30. The resultant position is that the Investigating
Officer is not obliged to obtain the signature of an
accused in any statement attributed to him while
preparing seizure memo for the recovery of any article
covered by Section 27 of the Evidence Act. But; if anysignature has been obtained by an investigating officer,
there is nothing wrong or illegal about it. Hence, we
cannot find any force in the contention of the learned
Counsel for the accused that the signatures of the accused
in Ex.P 3 and P 4 seizure memo would vitiate theevidence regarding recovery of the axes.”
The Apex Court had restored the conviction and sentence recorded by the
Trial Court.
6. In the instant case there was no evidence of any eye witness to
disclose the actual incident of Murder. The prosecution has placed
reliance only upon circumstantial and documentary evidence to prove its
case. A chain of circumstances which are revealed in the evidence led by
the prosecution appeared thus;-
PW-1 Suresh, a police constable of Sahar Police Station, who was
informed by a social worker Ms. Tawade (PW-2) about the dead body lying
in Talav Pakhadi ground, reported the fact that it was a dead body of a
::: Downloaded on – 09/06/2013 16:40:37 :::
7 apeal 1345.02.sxw
male, aged about 20-25 with injuries on its neck, a blood stained chopper
(Art. 1) was also located near the dead body. FIR (Exh. 4 was lodged on 6th
October, 1997. The social worker Ms. Meena Tawade(PW-2) confirmed
the fact that she came to know about the fact from one Shiv Bahadur and
Abhay Bhosale who had gone towards Talav to answer Nature’s call. PW-3
Abdul Gani acted as Panch witness at the time of inquest Panchnama (Exh.
7) drawn about the dead body lying and observations made about the
injuries and blood stained Chopper lying near the dead body. Shri
Harisingh Bogati (PW-4) – father of the deceased Sachin Bogati was
examined to prove the fact that on Sunday, 5th October, 1997 Sachin had
gone for Garba at about 9.30 p.m., and did not return. Later when police
took him to J.J. Hospital, the dead body of Sachin was identified by him.
He had claimed the dead body of his son for last rites after the
postmortem examination was over. PW-5 Amarnath was examined to
prove that clothes of the deceased (Art. no. 2 collectively) were seized
under Panchnama. PW-6 gave evidence about the chopper ( Art. 1) that it
was like that of another Chopper seized from Maria (Sister of the
Appellant) under Panchnama (Exh.12). The chopper (Art. 1) was found
stained with human blood of ‘B’ group which is blood group of the
deceased (Sachin) on blade and handle. We can summarize as well discuss
::: Downloaded on – 09/06/2013 16:40:37 :::
8 apeal 1345.02.sxw
the circumstances disclosed in the evidence as follows:
(a)The Appellant-accused and the victim Sachin were last seen
together in close proximity of time, prior to the incident of murder.
The Appellant Wilfred, victim Sachin and Siraj (PW-7) were residents
of the same locality and were friends. Siraj knew Sachin Bogati as
well as the Appellant- accused Wilfred. He gave evidence that both of
them were friends and they used to be fighting between them. They
used to go out for movies, they used to quarrel over money and then
compromise also. On 4th October, 1997 they had attended ‘Garba’
dance. Due to some talk between them over money, Sachin had
slapped the Accused Wilfred at about 8.00 to 8.30 p.m. On the next
day on 5th October, 1997, at evening when Siraj was talking with
Sachin at Sahar, the accused Wilfred had joined them. They had talk
and some “Masti,” (friendly physical aggression of give and take),
they had enjoyed beer which was brought by accused. There was talk
over money between Sachin and the accused Wilfred as Sachin was
demanding money from Wilfred, who did not pay anything. Sachin
had slapped Wilfred. Therafter they went to watch Garba which had
continued up to 00.30 hours. After watching Garba PW-7 returned to
::: Downloaded on – 09/06/2013 16:40:37 :::
9 apeal 1345.02.sxw
his home while Sachin and Wilfred were last seen going away
together. Sachin was not seen thereafter. PW-7 identified clothes (Art.
2 colly.) of the deceased Sachin as well as the clothes of the accused
(Art. 3 colly.) seen by him when they were last seen together as
deposed by him in the course of his evidence. So far as the ‘last seen’
aspect is concerned it is necessary to take note of two decisions of the
Apex court. In State of U.P. v. Satish [2005 (3) SCC 114] it was
observed thus:
“22. The last seen theory comes into play where the time-gap between
the point of time when the accused and the deceased were seen last
alive and when the deceased is found dead is so small that possibility
of any person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused when there
is a long gap and possibility of other persons coming in between
exists. In the absence of any other positive evidence to conclude that
the accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases. In this case
there is positive evidence that the deceased and the accused were seen
together by witnesses PWs. 3 and 5, in addition to the
evidence of PW-2.”
In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006
(10) SCC 172] it was observed thus:
“27. The last-seen theory, furthermore, comes into play where the time
::: Downloaded on – 09/06/2013 16:40:37 :::
10 apeal 1345.02.sxw
gap between the point of time when the accused and the deceased
were last seen alive and the deceased is found dead is so small that
possibility of any person other than the accused being the author of
the crime becomes impossible. Even in such a case the courts should
look for some corroboration”.
(See also Bodhraj v. State of J&K (2002(8)SCC 45).)”
(b) The next circumstance relied upon to corroborate the prosecution
case is that, the Appellant-accused Wilfred was unemployed and
resided with his sister Maria(PW-11) and his brother-in-law (PW-10).
(c) Another important circumstance is that there used to be quarrels
between the Accused Wilfred and the victim Sachin and prior to the
incident there was one such quarrel in which the Accused was
slapped by the victim Sachin. That itself was sufficient to have
generated the stew in the mind of the Appellant Wilfred to settle the
score with Sachin.
(d) The Accused and the victim were last seen together at midnight
between 5th October, 1997 and 6th October, 1997 by their common
friend Siraj (PW-7). In the case in hand, PW-7 Siraj deposed that he
was common friend of Appellant Wilfred and the deceased Sachin.
According to Siraj he had last seen the deceased Sachin and the
::: Downloaded on – 09/06/2013 16:40:37 :::
11 apeal 1345.02.sxw
Appellant Wilfred when they were together. Wilfred and Sachin
went away together at about 00.30 hours during the intervening night
between 5th October, 1997 and 6th October, 1997 while he left their
company and returned home. It appears further in evidence of the
prosecution that the Appellant left Mumbai for Goa in the early
morning of 6th October, 1997 and then to Belgaum. PW -10 Lynden is
brother-in- law of the Appellant Wilfred (Sister’s Husband).
According to Lynden, the Appellant resided with him and was not
doing any work in the year 1997. On the night of the incident Wilfred
came late at night and left early in the morning for Goa. This
evidence was unchallenged as witness was not cross examined by the
defence. Furthermore, there was no explanation from the Appellant in
his statement recorded under section 313 of the Cr. P. C. as to why the
Appellant went to Goa so abruptly that too without informing any one
and then stayed at lodge in Belgaum and why a blood stained shirt
was discovered at his instance. It appears from the evidence of PW-17
Shri Uday who is conducting a ‘Subhash General Stores” at tank
Pakhadi that on 5th October, 1997 during Navratri days he had seen
Sachin when he came to buy coffee bite chocolates, bidi, matchstick,
cigarettes and after about half an hour later he had also seen Wilfred
::: Downloaded on – 09/06/2013 16:40:37 :::
12 apeal 1345.02.sxw
who came to buy food articles-snacks described as ‘Chakli’ and
‘Masala seng’. This evidence also remained unchallenged in cross-
examination.
(e) The circumstance that the Accused absconded to Goa and
thereafter stayed at Shivbhavan Lodge at Belgaum going away
immediately at early morning after the incident was nothing but to
hoodwink the investigating agency until wisdom dawned upon him to
surrender at Sahar Police station on 10th October, 1997 along with the
letter dated 10th October, 1997 (Exh. 35) from his Advocate Mr.
Savant. According to PSI Chandrakant Sarode (PW-19) the Appellant
was wanted accused in C.R. no 959 of 1997. Clothes of the accused
except his shirt worn at the time of incident,namely trouser, banian,
jangya (underwear), articles 3 and 4 collectively were seized under the
Panchnama (Exh. 29) when the accused was arrested.
(f) A blood stained shirt was discovered at the instance of the accused
pursuant to his disclosure statement. PW-21 Arun Gholse, who acted
as panch on 14th October, 1997 during the Panchnama (Exh. 40 and 40
A) deposed as to disclosure made by the accused which led to
::: Downloaded on – 09/06/2013 16:40:37 :::
13 apeal 1345.02.sxw
discovery of a blood stained shirt from Shivbhavan lodge at Belgaum.
PW-21 also identified the Shirt from the clothes (Art.3 collectively
before the Court). The evidence of the panch witness remained
unshaken in his cross examination. PW- 22 Manager of Shivbhavan
Lodge, Belgaum, gave evidence that Appellant Wilfred had came on
7th October, 1997 to the Lodge and stayed in room no. 33, second
floor and gave purpose of his visit as business and gave his address
as Church Pakhadi Road no. 2 at Bombay-400 099. Accordingly an
entry was made in the register.(Exh. 43/43A). He checked out of the
Hotel on 8th October, 1997 at 12.30 p.m.
(g) Spot of the offence was pointed out by the Appellant under
disclosure Panchnama dated 12th October, 1997 (Exh. 18 and 18 A)
(h) PW 20 Dr. M.P. Sangle deposed about the postmortem
examination in which he observed ante-mortem injuries described as
i) Incised wound transversely placed on right neck starting 3 cm away
from chin @ body of mandible 18cm x 8 cm x vertebra deep (C-2 –
C-3) C-2 vertebra shown incised wound. ii) Incised wound
transversely placed size 10 cm x 2 cm x bone deep on the neck of the
::: Downloaded on – 09/06/2013 16:40:37 :::
14 apeal 1345.02.sxw
level of Adam’s apple . The doctor deposed that he had observed
corresponding internal injuries. The death was unnatural due to cut
throat injury. The doctor also opined that aforesaid injuries were
necessarily fatal as they were deep reaching up to vertebra, could be
caused with a sharp edged weapon such as a Chopper (Art -1) shown
to him. In cross examination Dr Sangle stated that it was very unlikely
that victim can run away in such type of injuries.
(i) Furthermore, the Appellant has failed to offer any explanation for
his abscondance to Goa and then to Shivbhavan lodge in Belgaum.
There is no explanation about the seizure of blood stained shirt
discovered at his instance, under panchanama.
7. In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10)
SCC 681 it has been held:
“The normal principle in a case based on circumstantial
evidence is that the circumstances from which an
inference of guilt is sought to be drawn must be cogentlyand firmly established; that those circumstances should
be of a definite tendency unerringly pointing towards the
guilt of the accused; that the circumstances taken
cumulatively should form a chain so complete that there
is no escape from the conclusion that within all human
probability the crime was committed by the accused and
they should be incapable of explanation on any::: Downloaded on – 09/06/2013 16:40:37 :::
15 apeal 1345.02.sxwhypothesis other than that of the guilt of the accused and
inconsistent with their innocence.”
The Apex court further observed that:-
“If an offence takes place inside the privacy of a house
and in such circumstances, where the assailants have all
the opportunity to plan and commit the offence at thetime and in circumstances of their choice, it will be
extremely difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict principle of
circumstantial evidence, as noticed above, is insisted
upon by the courts. A judge does not preside over acriminal trial merely to see that no innocent man is
punished. A judge also presides to see that a guilty mandoes not escape. Both are public duties. The law does not
enjoin a duty on the prosecution to lead evidence of suchcharacter which is almost impossible to be led or at any
rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable
of leading, having regard to the facts and circumstances
of the case. Here it is necessary to keep in mind Section106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, theburden of proving that fact is upon him.”
In Trimukh’s case(Supra), the Appellant husband was charged with Section
302 and Section 498A of the IPC. The deceased was his wife. The Supreme
Court reiterated the principle as to proof of the prosecution case by
circumstantial evidence and further observed as follows:
“In a case based on circumstantial evidence where no
eye-witness account is available, there is another
principle of law which must be kept in mind. The
principle is that when an incriminating circumstance is::: Downloaded on – 09/06/2013 16:40:37 :::
16 apeal 1345.02.sxwput to the accused and the said accused either offers no
explanation or explanation which is found to be untrue,
then the same becomes an additional link in the chain ofcircumstances to make it complete. This view has been
taken in a catena of decisions of this Court.”
The above observations by the Apex court in the judgment indicate that
false explanation can form as an added link in the chain of circumstances to
make it complete connecting the accused to the crime.
8. All the circumstances established in this case taken together were
clear pointers towards the guilt of the Appellant for homicidal death of
Sachin and penal liability of the Appellant for it. False answers given by
the Accused as against chain of tell a tale circumstances established by the
prosecution, in his statement recorded under section 313 of the Cr. P. code
furnished additional link against the Accused. The incriminating
circumstance relating to blood stains found on his shirt of the same group of
blood which belonged to the deceased Sachin was a fact within the special
knowledge of the Appellant. He could, not therefore, keep silent and say
that the obligation to prove his guilt rested entirely on the prosecution to
prove its case. The principle is well settled. The provisions of Section 106
of the Evidence Act itself are unambiguous and categorical in laying down
the proposition that when any fact is especially within the knowledge of a
::: Downloaded on – 09/06/2013 16:40:37 :::
17 apeal 1345.02.sxw
person, the burden of proving that fact is upon him. Thus, if a person is last
seen with the deceased, he must offer an explanation as to how and when he
parted company the deceased. He must furnish an explanation when blood
is detected on his clothes, which must appear to the Court as probable and
satisfactory. It the accused adduced a reasonable explanation, he must be
held to have discharged his burden. If he fails to offer an explanation in
respect of facts by keeping mum when questioned regarding fact within his
special knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. Thus in a case resting on circumstantial
evidence if the accused fails to offer a reasonable explanation in discharge
of the burden placed on him, that itself furnishes an additional link in the
chain of circumstances proved against him. Section 106 does not shift the
burden of proof in a criminal trial, which is always upon the prosecution but
it lays down the rule of appreciation of evidence to the effect that when an
accused does not throw any light upon facts which are especially within his
knowledge and explanation if given could not support any theory or
hypothesis compatible with his innocence, the Court can consider his failure
to adduce any reasonable explanation, as an additional link which can
complete the chain.
::: Downloaded on – 09/06/2013 16:40:37 :::
18 apeal 1345.02.sxw
9. The trial court gave cogent reasons to record findings as to guilt of
the Appellant Wilfred for murder of Sachin(victim ) in this case. For reasons
stated above we do not find any infirmity in the conclusion of guilt arrived
at by the learned Additional sessions Judge, Greater Bombay. Thus, we do
not find any convincing ground to interfere with the findings of fact by the
trial court below. The Appeal lacks merit and is hereby dismissed.
(A.P.BHANGALE, J) (A.M.KHANWILKAR, J)
::: Downloaded on - 09/06/2013 16:40:37 :::