1. The confirmation case and all the above criminal appeals are being disposed of by common judgment, since they arise out of the Judgment and Order dated 8.6.2007, passed by the Principal District and Sessions Judge, South Goa, Margao in Sessions Case No. 15/2005, convicting the appellants for the offences punishable under Sections 365, 302, 201 read with Section 120B of Indian Penal Code (''IPC for short) and sentencing them as below :
The amount of fine ordered to be paid by all the accused for the offences punishable under Sections 201, 120B, 302 and 365 of IPC have been ordered to be paid as compensation to the family of the deceased namely PW. 54 Sarika and PW. 57 Jaimini and other daughter of the Victim Dr. Shrikant Verenkar. All the sentences are ordered to run concurrently.
The charge against the accused was that on 17/1/2005 at 6.15 hours, at Mangor Hill, Vasco, all the accused after hatching a criminal conspiracy, intentionally or knowingly caused murder of Dr. Shrikant Verenkar, aged 60 years and, thereby committed offence punishable u/s 302, IPC. Secondly, all the accused abducted Dr. Verenkar with intention of causing the said Dr. Verenkar to be secretly and wrongfully confined and thereby committed an offence punishable u/s 365 of IPC. Thirdly, all the accused knowingly or having reasons to believe that the offence, namely the offence u/s 302 of IPC has been committed, caused certain evidence, namely the dead body of said Dr. Verenkar to disappear and thereby committed an offence punishable u/s 201 of IPC. Fourthly, all the accused agreed with each other to do an illegal act, namely to murder the said Dr. Shrikant Verenkar and in pursuance of the said agreement, committed the offence of murder, punishable with death or imprisonment for life, punishable u/s 120B of IPC. PW. 1 Pratham Gadagkar (original accused no. 5), who was charged along with other four accused for the aforesaid offences, was granted pardon by the learned Sessions Judge and was examined as prosecution witness.
2. Charge was framed on 24/8/2005. All the accused including PW1-Pratham (the approver) had pleaded not guilty. Thereafter, on the same day, order was passed by the learned Sessions Judge granting pardon to the accused no. 5, in terms of Section 307 of Cr.P.C. The said order dated 24/8/2005 of pardon was challenged by accused no. 1 before this Court. This Court by order dated 22/12/2005 dismissed the said Criminal Revision Application No. 23 of 2005. The contention that the accused no. 5 had played fraud on the learned Sessions Judge in order to obtain tender of pardon, was found to be without any merits.
3. Confessional statement of accused no. 5 was recorded by Special Judicial Magistrate on 2/2/2005, 3/2/2005, 4/2/2005, 5/2/2005, 7/2/2005 and 8/2/2005. Since subsequently, accused no. 5 was granted pardon, the said confessional statement has to be treated as his previous statement.
4. The prosecution examined 78 witnesses to prove the charges against all the four accused. As stated above, the learned Sessions Judge, upon appreciation of evidence led by the prosecution, held all the four accused guilty of the aforesaid offences and convicted and sentenced them as above. The learned Sessions Judge has made the above reference for confirmation of death sentence against the accused no. 1. Aggrieved by the convictions and sentences imposed on the accused, all the four accused have preferred the above appeals.
5. On 25th July, 2011, Mr. A. Dessai, learned Senior Counsel appearing on behalf of the State, submitted that the case of accused No. 1 does not fall within the term "rarest of rare" as held by the Supreme Court in various decisions. He further submitted that the State would not press for confirmation of the death sentence, but State would insist on conviction of the accused.
6. We have heard Mr. A. Dessai, learned Senior Counsel, on behalf of the State as Special Public Prosecutor, Mr. V. Pradhan, learned Senior Counsel on behalf of accused No. 1, Mr. Arun Bras de Sa on behalf of accused No. 2, Mr. S.D. Lotlikar, learned Senior Counsel on behalf of respondent No. 3, and Mr. Menino Teles, learned Counsel on behalf of accused No. 4. Brief written submissions have been also filed on behalf of all the accused and the prosecution.
7. Mr. Dessai, learned Senior Counsel on behalf of the State submitted that the evidence of PW. 1-approver is reliable, cogent and credible and has been corroborated on material particulars, by cogent evidence led by the prosecution. Learned Senior Counsel further submitted that the FIR in the present case was lodged at 6.50 hours, i.e. soon after the commission of the offence by the accused and, as such, the same lends credence to the prosecution case. Learned Counsel further submitted that the following facts are undisputed and in any case, have been proved by cogent evidence led by the prosecution:
(i) Death of Dr. Shrikant Verenkar was homicidal;
(ii) Relationship between accused No. 1 and the deceased Dr. Shrikant Verenkar;
(iii) Abduction of the deceased Dr. Verenkar on 17.1.2005;
(iv) Presence of the chance witnesses at the time of abduction of the deceased Dr. Verenkar;
(v) Presence of 4 persons in Maruti Van in which the deceased was abducted;
(vi) Prior association between accused No. 1 and accused No. 4;
(vii) Prior association between accused No. 3 and accused No. 4;
8. Learned Counsel further submitted that the motive on the part of accused No. 1 to commit the offences has been completely proved since the prosecution has proved the incidents which have taken place prior to the commission of the offences by the accused. Learned Counsel further submitted that some of the accused have taken a patently false defence and this is an additional factor which must be taken into consideration against the accused while appreciating the prosecution evidence.
9. Following judgments have been relied upon by the prosecution :-
(i)
(ii)
(iii)
(iv)
(v) Sucha Singh and Anr. Vs. State of Punjab; [2003 (3) Cri 272 (S.C.)].
(vi)
(vii) State Vs. Nalini: [(1995) 5 S.C.C. 253]
(viii) Gagan Kanojia Vs. State of Punjab: (2006) 14 SCC 516
(ix)
(x) Ramanand Pandey Vs. State: [2007 ALL MR (Cri) 2348]
10. Mr. Pradhan, learned Senior Counsel appearing for accused No. 1 submitted that the evidence of the approver PW. 1 does not inspire confidence and his evidence has not been corroborated on material aspects by other evidence led by the prosecution. Learned Senior Counsel further submitted that the motive on the part of accused No. 1 to commit the offences has not been proved. Learned Senior Counsel further submitted that the procurement and return of the snake, as claimed by the approver has not been proved by the prosecution and the evidence led in support thereof does not deserve any credence.
The alleged coming together on 20.12.2004 of accused No. 1, accused No. 4 and the approver did not culminate in any conspiracy to commit any offence and no overt act took place in furtherance of any common intention. Therefore, the incident cannot be considered to be a part of conspiracy and the prosecution is not entitled to press into service Section 10 of the Evidence Act. Learned Counsel further submitted that no trace of any organic or inorganic poison was detected in the juice intended to be administered to Dr. Verenkar.
Learned Senior Counsel further submitted that the object of inducing Dr. Verenkar to have dhatura laced soyabean flavoured juice, by no stretch of imagination, was intended to commit murder of the deceased Dr. Verenkar. The story of the prosecution that accused No. 1, on 10.1.2005 told the approver that he wanted a cobra for medicinal purpose, is difficult to be accepted, since accused No. 1 had no knowledge of the approver''s skill in handling a snake. In any case, there is no evidence to corroborate this version of the approver. The version of the prosecution that on 11.1.2005, the approver went twice to the jungle to search for cobra is difficult to be accepted. The version of the approver that on 12.1.2005, he went along with his wife to the jungle where he spotted a cobra and he left the place to reach his wife at his in-laws'' place and returned alone and he found the cobra at the same place, and thereafter, caught the same and put it in a polythene bag is highly improbable and difficult to be accepted and, in any case, the same is not corroborated by any other witness. According to the learned Senior Counsel, the recovery of the basket cannot be taken as corroborative fact of the seizure and transfer of the cobra by the approver from the flat at Tonca. The version of the approver that accused No. 1 contacted one Francis De Sa and told him that the snake had been arranged and further requested him to see it at his father''s flat at Tonca is by way of an improvement vis-a-vis his confessional statement which is significant and as such, cannot be ignored. There is absolutely no evidence led as to where the snake was kept on 14.1.2005, on which day, as per the version of the approver he along with accused No. 1 had followed the deceased between 5.30 to 6.00 hours. No steps were taken by the approver to remove venom for medical purposes between 10.1.2005 to 16.1.2005. This is most unnatural on the part of the approver. The version of the approver that on 15.1.2005, at about 9.00 p.m. he overheard the talks between accused No. 1 and accused No. 2 that cobra was brought to bite the deceased and not for the treatment of the friend of the sister of accused No. 1, is difficult to be accepted since the same is by way of an improvement brought on record in the cross examination of the approver. This improvement is material and vital inasmuch as the approver has tried to impress that he was a passive accomplice to the crime. The prosecution ought to have examined the person who had shaken hands with the deceased, since the approver had seen the deceased shaking hands with a person who had crossed the road after greeting him. The version of the approver that all through out journey in the van on 17.1.05, he was holding the snake in his hands, is improbable and unbelievable. The conduct of the approver in not letting the cobra in the jungle raises serious doubt about his version that he had taken the cobra to Bondla on 18.1.05.
11. Learned Counsel appearing for the accused no. 1 further submitted as follows :-
There is material discrepancy insofar as the entry of the two persons at Bondla Zoo on 24.1.2005 is concerned. Whereas the entry in the register shows that two persons had arrived at 12.40 hours and had departed at 17.00 hours, PW. 35 Hanumant Salkar deposed that two persons had arrived at Bondla Zoo at 14.30 hours. Moreover, he could not identify any of the two persons who had entered Bondla Zoo.
The evidence of Mohan Umarye PW. 71 that on 18.1.2005, one Yash Gaikwad handed over a cobra at Bondla Wild Life Sanctuary at 3.35 hours clearly belies the prosecution case that it was the approver, along with accused No. 3 who had gone to Bondla Zoo for handing over the cobra.
The approver has not made any statement at the time of handing over of the cobra that he had given his name as "Yash Gaikwad" and since the register discloses that it was one Yash Gaikwad who handed over the cobra, the same creates serious doubt about the veracity of the prosecution case that the cobra was handed over by the approver to Bondla Zoo and accused No. 3 on 18.1.2005.
The version of PW. 53 Rajesh Volvoikar that motor cycle bearing registration No. 3199 was financed by him to one Thukral, since Thukral did not possess any ration card in Goa and Thukral had purchased the motor cycle for the benefit of accused No. 3 is difficult to be accepted and in any case, said Thukral has not been examined. Therefore, the version of the prosecution that accused No. 3 had used the said vehicle on 18.1.05 to go to Bondla, along with the approver, cannot be accepted.
Non-examination of Veterinary Doctor, namely Dr. Khazwin who was named in the charge-sheet raises a strong suspicion against the prosecution case regarding handing over of the snake to Bondla Zoo.
The approver has contradicted himself on material aspects and his evidence is riddled with fanciful, illogical and most unbelievable assertions. His evidence is full of omissions vis-a-vis his statement u/s 164 of Cr.P.C. As such, the only inference is that the evidence of the approver does not inspire any confidence. Therefore, the question of any corroboration of the evidence of the approver does not arise.
The postmortem report does not show any marks of snake bite, nor traces of fangs which were allegedly removed by the approver on 16th evening were found, nor any instrument used by the approver had been seized and, as such, the presence of the approver on 17th morning in the Maruti van in the early hours of 17th January, 2005 becomes extremely doubtful and on this count only, the prosecution case must fail.
The evidence led by the prosecution suggests that the approver was in police custody before he was brought before the Special Judicial Magistrate PW. 17 Mr. Somnath Audi.
The confessional statement of the approver cannot be accepted inasmuch as in his statement to learned Special Judicial Magistrate, he had categorically stated that about 5-6 days before, i.e. before recording of his statement u/s 164 Cr.P.C., he had asked P.I. Mahesh Gaonkar as to whether he would get any benefit of lesser punishment if he confesses and P.I. Gaonkar replied that he would make efforts to give him lesser punishment and ultimately he would be set free. In view of this categorical statement, the entire statement of the approver becomes inadmissible in evidence.
The statement made by the approver u/s 164 of Cr.P.C. discloses that the act of abduction and murder of Dr. Verenkar was motivated by political rivalry.
No motive has been proved by the prosecution and the alleged family discord between PW. 54 and PW. 57 on one hand and accused No. 1 on the other hand, as the alleged motive for the commission of the offence, is difficult to be accepted.
12. In support of his submissions, Mr. Pradhan relied upon the following judgments :
(i)
(ii) Sitaram Sao alias Mungeri Vs. State of Jharkhand: (2007) 12 SCC 630.
(iii)
(iv)
(v)
(vi)
(vii)
13. Mr. A.B. De Sa, learned Counsel appearing for the accused no. 2- Francis D''Sa, submitted that the evidence of PW. 1-Pratham is unworthy of credence and is riddled with material omissions/contradictions going to the root of the matter. Learned Counsel further submitted that the evidence of approver should not be relied upon inasmuch as at the time of framing of charge, PW. 1-Pratham, original accused no. 5 pleaded guilty and his confessional statement u/s 164 of Cr.P.C. was recorded on inducement given by the Investigating Officer that his sentence would be reduced or that he would be released on bail. Learned Counsel further submitted that PW. 1-Pratham had expressly stated before the Special Judicial Magistrate at the time of recording his confessional statement that he wanted to consult advocate prior to making of confessional statement as he wanted to know the consequences, if any that would arise upon making of confessional statement. Therefore, learned Counsel submitted that the confessional statement cannot be relied upon to corroborate the version of PW. 1-Pratham.
14. Learned Counsel for accused no. 2 further submitted that the evidence of approver is not corroborated on the material particulars qua each of the accused. The evidence regarding identification of the accused on the basis of clothes worn by the accused and their features at the time of incident by the prosecution witnesses, is inherently doubtful, inconsistent and improbable, more particularly in view of the testimony of PW. 1-Pratham. Learned Counsel further submitted that as regards the button which is found on the spot, from where the deceased was allegedly abducted, the same has not been identified to be of the particular accused and as such, the evidence of seizure of button, does not advance the case of the prosecution. Learned Counsel further submitted that the evidence of recovery of clothes at the behest of the accused no. 2, is highly unreliable, unworthy of credence and the same cannot be termed as recovery u/s 27 of Evidence Act. Learned Counsel further submitted that the alleged extrajudicial confession made by the accused no. 2 to PW. 75- Dr. Madhu Ghodkirekar, cannot be termed as extrajudicial confession since the same is hit by the provisions of Sections 24, 25 and 26 of Indian Evidence Act. In any case, the injuries found on the accused no. 2 have been explained by him in his statement u/s 313 of Cr.P.C. Learned Counsel further submitted that the accused no. 2 had complained to Judicial Magistrate about the ill-treatment/beating at the police station right from the date of his arrest which fact has been admitted by the Investigating Officer. Learned Counsel further submitted that the case of the prosecution regarding return of the keys by the accused no. 2 is unbelievable in the light of omissions in the testimony of PW. 6-Baburao Mushlekar which goes to the root of the matter and negates the case of PW. 9-Sitadevi Mushlekar the wife of PW. 6-Baburao Mushlekar. Learned Counsel further submitted that the evidence led by the prosecution does not implicate the accused no. 2 in the commission of various offences for which he has been convicted and, therefore, the accused no. 2 is liable to be acquitted of the offences for which he has been convicted. In support of his submissions, learned Counsel placed reliance upon the following judgments :
(i) Sarwan Singh Rattan Singh Vs. State of Punjab: AIR 1957 637.
(ii)
(iii)
(iv) State of Goa Vs. Manish Dubey (Cri. A.70/2 009).
15. Mr. Lotlikar, learned Senior Counsel appearing for the accused no. 3-Rajendra alias Rajan Singh submitted that the evidence of PW. 1-Pratham, approver, is not trustworthy and has not been corroborated on material particulars. Learned Counsel further submitted that the corroboration of an approver must be qua each accused and in the present case, there is absolutely no corroboration to the version of the approver qua the accused no. 3. The approver was in a position to plant his own story and minimise his role and magnify the role of the other accused by keeping the outline of story and, therefore, no implicit reliance can be placed upon the testimony of the approver. Learned Counsel further submitted that the evidence of PW. 8-Ramesh Mandela contradicts the version of the approver on material aspects and in any case, PW. 8-Ramesh is unreliable and chance witness upon whose testimony, no reliance can be placed. Learned Counsel further submitted that one Siddhart Shirodkar to whom the prosecution alleges that the accused no. 3 had made extrajudicial confession, has not been examined and as such, adverse inference has to be drawn against the prosecution. Learned Counsel further submitted that the evidence of approver does not establish any conspiracy by all the accused and more particularly, accused no. 3, and the other evidence led by the prosecution, is not sufficient to establish conspiracy by all the accused. Learned Counsel further submitted that the conduct of PW. 1-Pratham, the approver in going to Bondla with cobra is quite unnatural inasmuch as in the normal course, the approver would have let go the cobra in any secluded area. Learned Counsel further submitted that the evidence of PW. 1-approver itself suggests that he was not a party to conspiracy and as such, his version as an approver, is not liable to be accepted. The evidence of approver is full of contradictions and improvements thereby rendering his evidence untrustworthy. Learned Counsel further submitted that even if the evidence of approver and the other evidence led by the prosecution is accepted, yet, the prosecution has not been able to establish that the accused no. 3 was co-conspirator for murder of the deceased. The approver has not deposed about any agreement having been reached between any of the accused including himself in which it was agreed that the deceased be murdered. The version of the approver that he overheard the conversation between the other accused to the effect that snake had been brought to give bite to Dr. Verenkar, has to be discarded being contradiction by way of material omission vis-a-vis his statement u/s 164 of Cr.P.C. Learned Counsel further submitted that even if the evidence of approver is considered, the same does not establish any agreement between the other accused and the accused no. 3 to murder Dr. Verenkar. According to learned Senior Counsel, the evidence of PW. 1- approver clearly establishes that he tried to distance himself from causing any harm to Dr. Verenkar and as such, it cannot be said that the accused no. 3 was party to conspiracy to murder Dr. Verenkar, even if it is held that any conspiracy was hatched among the other accused. Learned Counsel further submitted that the approver has not deposed about the purpose of visit to Vasco on 14, 15 and 16th January, 2005. Learned Counsel further submitted that the version of approver that he overheard the discussion between the accused nos. 1, 2 and 3 that cobra was meant for giving snake bite to Dr. Verenkar, is nothing but an improvement and as such, is liable to be rejected. Learned Counsel further submitted that the evidence led by the prosecution does not prove that there was agreement among the accused and more particularly the accused no. 3 is concerned, to murder Dr. Verenkar. Learned Counsel further submitted that the version of PW. 1- approver that snake was carried by him in the Maruti Van, is not corroborated and in any case, is inherently incredible. Learned Counsel further submitted that there is absolutely no evidence led by the prosecution that the murder of the deceased had taken place inside the vehicle and there is absolutely no corroboration to the testimony of the approver in this regard. Learned Counsel further submitted that in the absence of any corroboration to the version of the approver regarding the role played by the accused no. 3, the conviction of the accused no. 3 is unsustainable in law. Learned Counsel lastly submitted that the evidence led by the prosecution does not prove beyond reasonable doubt the offences for which the accused no. 3 has been convicted and sentenced. In support of his submissions, learned Senior Counsel placed reliance upon the following judgments :
(i)
(ii)
16. Mr. M. Teles, learned Counsel appearing for the accused no. 4- Sachin Parab submitted that the evidence of PW. 1-Pratham is neither reliable nor worthy of credence inasmuch as the same is full of material omissions and contradictions. Learned Counsel further submitted that the evidence of PW. 1-Pratham, has not been corroborated on material aspects and in any case, there is absolutely no cogent evidence coming from PW. 1-Pratham or the other prosecution witnesses to implicate the accused no. 4 in the commission of offences. Learned Counsel further submitted that on the day of the incident, the accused no. 4 was not present in Goa. There is absolutely no evidence to establish that he was party to the conspiracy with the other accused in the commission of the offences of abduction and murder. Learned Counsel further submitted that the alleged confessional statement made by the approver, cannot be relied upon inasmuch as the same discloses that the Investigating Officer had promised him that he would be released immediately after recording of the statement before the Magistrate. Learned Counsel lastly submitted that there is absolutely no evidence led by the prosecution to establish that the accused no. 4 was party to criminal conspiracy either to abduct or murder Dr. Verenkar and, therefore, the accused no. 4 is entitled to be acquitted of the offences for which he has been convicted by learned Sessions Judge.
17. We have perused the entire record and proceedings in the light of submissions made by learned counsel for prosecution and the accused persons and the citations relied upon by them.
18. Prosecution relied upon the evidence of PW. 1 and the following circumstances to prove the charges against the accused persons:
(i) Homicidal death of Deceased.
(ii) Inquest and scene of offence Panchanama.
(iii) Motive.
(iv) Incident of Soya milk.
(v) Procurement of cobra by PW. 1; presence of cobra in the hands of PW1 while in the Van; and handing over the same at Bondla Zoo.
(vi) Creation of defence of alibi by Accused no. 1.
(vii) Seizure of Van, gloves, etc.
(viii) Abduction of deceased on 17/1/2005.
(ix) Use of Maruti Van No. GA-01-R-1859 with fake number plate.
(x) Presence of Dr. Verenkar in the Van.
(xi) Injuries sustained by deceased.
(xii) Body of deceased was thrown in the bushes by the side of road near a chapel.
(xiii) Accused taking bath at Bambolim beach and throwing clothes, etc. in the bushes.
(xiv) Purchase of new clothes by accused no. 3 from the shop at Hotel Keni.
(xv) Statement by accused no. 2 to PW. 75.
19. Before dealing with the evidence of approver, it would be advantageous to refer to the relevant law relating to appreciation of the evidence of approver. Section 133 of the Indian Evidence Act reads as under :-
133-An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Illustration (b) to Section 114 of the Evidence Act provides that:
The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.
In the case of "Bhiva Doulu Patil" (supra,), it has been held that the combined effect of Sections 133 and 114, illustration (b) is as follows: "According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter, which is a rule of practice, it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. In the case of "Sarwan Singh Rattan Singh"(supra), the Apex Court has held that the appreciation of an approver''s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver''s evidence must receive sufficient corroboration. Thus, it can be said that the evidence of an approver can be taken into consideration if the same satisfies the twin tests laid down by the Supreme Court namely the reliability test and the test of corroboration. In the case of "Major E.G. Barsay" (supra), the Apex Court, has explained as to how the said twin tests laid down in the case of "Sarwan Singh" (supra) works. It is observed thus:
This Court could not have intended to lay down that the evidence of an approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the Court shall have first to consider the evidence of the approver dehors the corroborated pieces of evidence and reject it if it comes to the conclusion that his evidence is unreliable; but if it comes to the conclusion that it is reliable then it will have to consider whether that evidence is corroborated by any other evidence. This Court did not lay down any such proposition. In that case it happened that the evidence of the approver was so thoroughly discrepant that the Court thought that he was a wholly unreliable witness. But in most of the cases the said two aspects would be so interconnected that it would not be possible to give a separate treatment, for as often as not the reliability of an approver''s evidence, though not exclusively would mostly depend upon the corroborative support it derives from other unimpeachable pieces of evidence....
20. The question arises whether every word in the approver''s deposition requires corroboration? In this regard, in the case of "K. Hashim"(supra), the Hon''ble Supreme Court has laid down as to how the approver''s evidence is to be appreciated. The Apex Court has held thus :
37. First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Readings says:
Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.
38. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.
39. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identify must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there would be independent evidence which will make it reasonably safe to believe the witness''s story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that -
a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all..... It would not at all tend to show that the party accused participated in it.
40. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.
41. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females (or unnatural offences) could never be brought to justice". [See
21. Insofar as a witness other than an approver is concerned, it is well settled that the principle of "Falsus in uno falsus in omnibus" (false in one false in all) is not applicable in India. In the case of "Kulwinder Singh" (supra), the Supreme Court held that it may be stated that maxim "Falsus in uno falsus in omnibus" (false in one false in all) does not apply in criminal cases in India and a witness can be partly truthful and partly false. The question is whether the same principle is applicable to the evidence of an approver? In this regard, we are in respectful agreement with the view taken by a learned Single Judge of the Allahabad High Court in "Devi Prasad and Ors"(supra). The learned Single judge has held as follows :
6. It is a basic rule of appraisal of evidence of all witnesses, whether approvers or not, that their versions must be shown to be credible. It is also a rule common to all types of unreliable witnesses, including approvers, that corroboration of their versions should be found before accepting them. In
22. With regard to the appreciation of evidence of an approver, some of the settled principles which emerge from the above-referred judgments, are as under:
(a) Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars.
(b) His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver''s evidence must receive sufficient corroboration.
(c) It is not necessary that there should be independent confirmation of every material circumstance appearing in the evidence of the approver.
(d) The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.
(e) The maxim "falsus in uno falsus in omnibus" (false in one false in all) is not applicable even to approver and he can be partly truthful and partly false.
23. Let us now scrutinize the evidence of the approver that is PW. 1 in the light of above settled principles of law.
24. At the outset, it becomes necessary to point out that every now and then after recording some portion of the evidence of PW. 1, sometimes on account of the objection raised by learned Counsel for the accused and sometimes even without that, the learned trial Judge has recorded remarks like "the statement is hearsay and inadmissible" or "the statement is inadmissible being inculpatory" or "to that extent, the statement is inadmissible" or "noted as being inadmissible", etc. A bare perusal of the statement of PW. 1 reveals that the same cannot be entirely termed as hearsay and inadmissible. It is noticed that all the said facts which have been called as hearsay and inadmissible have been duly put to the accused persons in their statements u/s 313 of the Code of Criminal Procedure. In the circumstances above, no prejudice can be said to have been caused to the accused persons since the opportunity was given to them to afford explanation, if any. Be that as it may, the learned counsel for all the accused persons have fairly conceded that the above remarks passed by the learned trial Judge are erroneous and that they have no objection if the said remarks are simply discarded and that they agree that no prejudice has been caused to the accused persons on account of the said remarks. The learned Counsel for all the accused persons further submitted that the accused persons do not want remand of the case to the trial Court on account of such remarks.
25. The evidence of PW. 1-Pratham Gadagkar i.e. the approver shows that he knew accused no. 3, Rajendra Singh since he was going along with him to attach vehicles taken on loan from Tata Finance. It further reveals that he knew Sachin Parab that is accused no. 4 through the accused no. 3 since he used to accompany accused no. 3 to recover the money from accused no. 4 which was borrowed by him from accused no. 3. It transpires from his evidence that at the instance of accused no. 4, he came to know the accused no. 1 and because of accused no. 1, he also came to know the accused no. 2.
26. PW. 1 stated that on 20/12/2004, accused no. 4, contacted him on the mobile phone no. 9326114807 of his mother and told him to meet him near Kinetic showroom at Panaji and that he would be coming to the spot alongwith Ryan Fernandes, whom he did not know at that time. PW. 1 stated that accused no. 4, and said Ryan came to the said spot at 9.00 p.m. in Maruti Car of white colour. PW. 1 identified accused no. 1 as the said Ryan Fernandes. Accused no. 1 told him that someone had approached him to steal a car to be used for dashing against another car on a sloppy area to kill its driver and to make it appear as an accident on the Pune -Mumbai Highway. Accused no. 1 further told him that the car had to be sprinkled with alcohol so that it should appear that the driver of the car involved in the accident was driving under the influence of alcohol. PW. 1 clarified that at that time he was not told the number of car which was to be given dash and the name of the person in particular who would be driving that car. Accused no. 1 had told him that Rs. 40,000/- was the amount involved for the said execution and PW. 1 would be paid Rs. 30,000/- in case he executes the plan whereas Rs. 10,000/- would be retained personally by accused no. 1. PW. 1 stated that he refused the offer at that time to execute the plan of Ryan.
27. PW. 1 further deposed that on 28/12/2004, the accused no. 4 again telephonically contacted him on the same mobile phone at around 6.00 p.m. and told him that he would come with accused no. 1 to his residence within 10 to 15 minutes, due to which he waited for him on the ground floor of his building. Accused nos. 1 and 4 arrived on a green colour Caliber Motor cycle, met him and went away and returned at around 9.00 p.m. in a white colour Maruti 800 Car. PW. 1 went along with accused nos. 1 and 4 in the said Maruti Car to Alua Bar and Restaurant at Campal, Panaji where accused no. 1 told him that he was to assume the role of a Marketing Executive under the name "Nilesh Naik" and offer juice to a gentleman at Margao which would contain black magic and which would cast a spell over the user between the next 10 to 15 minutes and upon which the said person would follow the instruction as desired by the person who had prepared the juice. According to PW. 1, the accused no. 1 had offered Rs. 3000/- to him for this job and had agreed to pay Rs. 1000/- in advance and the balance on execution of the job. Initially he did not agree to the plan but upon the explanation given by accused no. 1, he agreed and thereafter the accused nos. 1 and 4 dropped him at his residence on the said night and went away.
28. It is further in the evidence of PW. 1 that on 31/12/2004, accused no. 1 came to his flat at Meera Building, St. Inez, Panaji at around 9.30 to 10.00 p.m. along with a girl aged around 24 to 25 years, after contacting him telephonically and he came down from third floor to meet them in a white colour Maruti Car. Three of them then proceeded in the car to Porvorim and on the way accused no. 1 received a telephone call from accused no. 4 that he was waiting for them at Sagar Hotel near Teen Building at Porvorim. At Sagar Hotel they met accused no. 4, who was present along with accused no. 3 and from there the five of them proceeded to Alisha Restaurant opposite the Assembly Complex at Porvorim. On reaching Alisha Restaurant accused no. 1 went away along with the girl in the car since he wanted to give the car to his parents who had to attend the midnight mass on the eve of the new year. They had dinner and alcohol in the absence of accused no. 1 and the girl after which accused no. 1 returned to Alisha Restaurant along with the said girl on green colour Caliber Motor Cycle. According to PW. 1, at around 01.00 hours of 01/01/2005, accused no. 1, the girl and himself left towards Panaji in the same Maruti Car whereas accused no. 4 went away on the Motor Cycle of the accused no. 3. On the way to Panaji, accused no. 1 told him that his sister''s wedding was fixed on 02/01/2005 and that he would collect him (PW. 1) on that day and that plan of administering the juice would be executed after the wedding of his sister.
29. PW. 1 stated that on 02/01/2005 accused no. 3 contacted him on the mobile phone no. 9326114807 of his mother and told him that accused no. 1 would collect him from Sagar Hotel near Teen Building, Porvorim at 19.30 hours. PW. 1 therefore waited at Sagar Hotel and accused no. 1 came there at about 19.30 to 19.35 hours in a black colour Indica Car. Accused no. 4 was also present at Sagar Hotel, but was not taken by accused no. 1 for his sister''s wedding, and was paid Rs. 20/-. Accused no. 1 and PW. 1 reached the wedding spot at Guirim at 19.55 hours where they met accused no. 3. Around 01.00 hours on 03/01/2005, accused no. 3 left the wedding spot in the white colour 800 Maruti Car along with the father of accused no. 1 to drop him at his residence at Tonca, Panaji. Accused no. 1, one boy aged about 22-24 years, another girl in the same age group and himself left in the black colour Indica Car around 01.30 hours and proceeded towards Sangolda, where they dropped the boy at the marital house of the sister of accused no. 1 and dropped the girl at Teen Building, Porvorim and around 02.00 to 02.15 hours, PW. 1 was dropped near his residence at St. Inez.
30. PW. 1 further gave evidence that on 04/01/2005 accused no. 4 contacted him on the mobile phone of his mother and told that he and accused no. 1 would come to his residence and accordingly at about 09.30 to 10.00 hours they came in the same black colour Indica car and three of them proceeded to Mapusa where accused no. 1 purchased big bag, one executive bag and one writing pad from three different shops and then they went to another shop where accused no. 1 placed an order for a rubber stamp with the words "Express Marketing Pvt. Ltd". They had lunch at Mapusa in the meantime and as the rubber stamp was not ready till then, the three of them returned to the office of the accused no. 1 on the third floor of City Centre, near Sesa Office at Patto Panaji. Within five minutes, thereafter, they left the office of accused no. 1 and went to the flat of father of accused no. 1 at Tonca near Mithai Mandir where accused no. 1 kept the big bag, the executive bag and the writing pad and thereafter the three of them proceeded to Miramar. PW. 1 stated that from Miramar after eating Bhel Puri they proceeded towards Porvorim in the same black colour Indica Car and met one Raya aged about 35 years near a petrol pump. Said Raya gave a parcel to accused no. 1 which he kept in the dickey of the black colour Indica Car and thereafter Raya went away in his red colour Maruti Car bearing registration no. GA-01-R-1100, while the three of them namely accused nos. 1 and 4 and himself proceeded towards Sangolda Club. Raya had followed them in his red colour Maruti van and thereafter he also came and sat in the black colour Indica Car and then all four of them proceeded towards Candolim where accused no. 1 got down, went towards the Super Market and purchased Strata Soya Milk of Hindustan Lever Ltd., in packets of One litre capacity numbering 6 to 8 and packets of 200 ml. capacity numbering 8 to 10, in four different flavours being natural, malt, original and kesar pista. They came back to Sangolda from Candolim, had meals and alcohol at Alua Bar and Restaurant and thereafter Raya went away in his red colour Maruti Van. Then accused no. 1, accused no. 4, and himself had returned to the residence of PW. 1 at Panaji. On the way, accused no. 1 told him that he will pick him on 05/01/2005 at about 18.30 hours.
31. PW. 1 further stated that on 05/01/2005, accused no. 1 came along with accused no. 4 in the same black colour Indica Car, picked him up from his flat and three of them proceeded to the flat of father of accused no. 1 at Tonca where he discussed the plan of how PW. 1 should pose as a Marketing Executive. According to PW. 1, the briefing was that he should go as a Marketing Executive of Express Marketing Private Limited to one person, with the said packs of juice in all the four flavours, make an offer of any of the flavours as a sample to the said person and by posing as Nilesh Naik. PW. 1 stated that identity of the person to whom he had to offer the juice was not known to him till then. The said briefing was done in the presence of accused no. 4 and thereafter PW. 1 was dropped by accused nos. 1 and 4 at his residence at St. Inez. Between 6th to 8th January, 2005, PW. 1 was collected by accused no. 1 along with accused no. 4 and taken to the flat of father of accused no. 1 at Tonca, Panaji and was given the briefing about his role as a Marketing Executive and name as Nilesh Naik. The identity of the person to whom the juice would be offered was not disclosed till 8th January, 2005.
32. The deposition of PW. 1 further reveals that on 09/01/2005, accused no. 1 collected him from his flat and at that time he was accompanied by accused no. 4 in the same black colour Indica Car at around 9.00 a.m. and taken to flat at Tonca, Panaji where accused no. 4 gave him his black colour pant to wear and at that time he was wearing a cream colour full sleeves shirt. Accused no. 1 gave to him a red colour tie to wear and thereafter at about 11.00 hours they proceeded to the office of accused no. 1 at City Centre, Patto in the same black colour Indica Car and from there to Hotel Mardol at Verna where they had meals and then towards Vasco along the Air Port road. It is further in the evidence of PW. 1 that on the way he asked accused no. 1 as to why he was taking him to Vasco when he had earlier told him that the juice was to be offered to a person in Margao. According to PW. 1, accused no. 1 told him that the said person is residing at Vasco and that PW. 1 should not talk further on the matter and that the place was not disclosed to him earlier in order to keep secrecy. They reached near the petrol pump at Vasco at around 15.45 hours, when accused no. 1 pointed out to a structure 50 metres away which was the clinic of Dr. Verenkar. PW. 1 then proceeded towards the said clinic on foot along with the big bag, executive bag and writing pad and made inquiries with the nurse who told him that Dr. Verenkar is not in the clinic and would be available later on. PW. 1 therefore walked with the said articles to the Tata Indica Car parked near the Petrol pump in which accused nos. 1 and 4 were sitting. The big bag was containing cartons of 1 litre capacity while the executive bag was containing the cartons of 200 ml capacity. PW. 1 further deposed that they went towards M.P.T. Gardens and returned to the same spot at around 16.00 to 16.10 hours and thereafter he went with the big bag, executive bag and the writing pad to the clinic of Dr. Verenkar whom he met at around 16.00 hours. A small girl, around 10 to 12 years old, who was out side the clinic, told him that Dr. Verenkar was inside the clinic with his patients. The said girl went inside the cabin and after coming out told him that he can enter the cabin of Dr. Verenkar. PW. 1 stated that he went inside the cabin and passed his visiting card in the name "Nilesh Naik" to him and introduced himself as Marketing Executive of Express Marketing Pvt. Ltd. and offered approximately 200 ml of soya milk from one carton of 200ml to Dr. Verenkar in a plastic cup from which Dr. Verenkar drank about 100ml. PW. 1 further gave feedback form to Dr. Verenkar which he filled in his own handwriting and gave it back to him. Dr. Verenkar did not show any interest to purchase any juice and therefore PW. 1 packed his belongings and walked back to the car and while he was walking one of the patients called him back but he did not return and ran away thinking that the juice had taken its effect. According to PW. 1, he ran towards the car where accused nos. 1 and 4 were waiting for him.
33. Further narration of PW. 1 shows that they proceeded to one spring at Verna where accused no. 1 offered one 200 ml carton to accused no. 4 to drink and accused no. 4 after drinking the soya milk from the said carton, felt giddy upon which he made inquiries with accused no. 1 on its contents and accused no. 1 disclosed that dhatura seeds were ground and powder injected into the carton from its base. Accused no. 1 further disclosed to PW. 1 that any person consuming dhatura in the powder form would become mad and remain so during his life time and in some mental asylum. PW. 1 stated that they thereafter went to the flat of accused no. 1 at Tonca where he kept the big bag, executive bag and the writing pad but did not return the pant of accused no. 4 to him and which still continues to be at his residence. PW. 1 had reached Tonca flat at 6.00 to 6.30 p.m. and then the three of them went to flat of accused no. 1 at old Goa where he kept the big bag containing cartons of the soya milk, earlier carried by him. The three of them, according to PW. 1, spent the night in the same flat.
34. PW. 1 further came on record to depose that on 10/01/2005 at around 08.30 hours, accused no. 1 told him that he would ring up at the clinic of Dr. Verenkar and find out his mental condition. Accused no. 1 paid Rs. 1,000/- in cash to PW. 1 and stated that depending upon the effect of dhatura powder in the Soya Milk offered by him to Dr. Verenkar, he would pay him the balance amount of Rs. 2000/- as earlier agreed.
35. PW. 1 further deposed that accused no. 1 gave one carton of one litre to him and another of the same capacity to accused no. 4 and then dropped the two of them at bus stop at Old Goa after which PW. 1 went to his flat at St. Inez and kept one litre carton in the refrigerator belonging to his mother. According to PW. 1, on the way to the bus stop, accused no. 1 had told him that he requires a Cobra since one of his sister''s friend was bitten by a snake and the venom from the cobra mixed with Ayurvedic medicine was required as an antidote on the advice of an Ayurvedic doctor to cure the said friend of his sister. Accused no. 1 offered Rs. 5,000/- to PW. 1 to arrange the Cobra. Sometime in June or July, 2004, accused no. 3, had visited his house and had learnt that he (PW. 1) was capable of handling poisonous snakes since he was bitten by one in the process of removing the fangs and which was told by accused no. 3 to accused no. 1 who thereafter put him to the task in January, 2005 to arrange for the Cobra. PW. 1 stated that being convinced of the purpose for which the Cobra was required, he went to Shelpem, Valpoi to the house of his in-laws along with his wife and minor son and on the way he met accused no. 4 who also accompanied them to Shelpem, Valpoi. According to PW. 1, on 10/01/2005, after reaching Valpoi in the afternoon, accused no. 4 had asked the villagers if poisonous snake could be found and for which they would be adequately compensated and thereafter in the evening at around 5.30 p.m., accused no. 4 came along with him to the jungle area to search for the snake. However, no poisonous snake could be found and therefore both of them returned to the house of his in-laws. On the following day that is on 11/01/2005 accused no. 4 and PW. 1 again went to the jungle in search Cobra but in vain. On the same afternoon PW. 1 went alone to the jungle area but could not find Cobra. PW. 1 stated that on 12/01/2005 he alone went to jungle to search for the Cobra but could not find any and during the course of the afternoon when he went to collect some firewood along with his wife in the jungle area, he located a Cobra. PW. 1 stated that he reached his wife back to the house of his in-laws and came back to the spot alone where he had located the snake and he was carrying the thick polythene bag at that time. PW. 1 caught the snake, put it in the polythene bag and tied it at mouth and kept the polythene bag containing the Cobra at a short distance from the house of his in-laws. On 13/01/2005 PW. 1 came back to Panaji along with accused no. 4 whereas his wife along with son came to Panaji by bus. He further stated that on 13/01/2005 he went back to Valpoi alone on the hired motorcycle, collected the polythene bag containing snake and went to the flat of his mother and kept the snake in the polythene bag inside the washing machine. On the same evening that is at around 4.00 to 04.15 p.m. of 13/01/2005 he informed accused no. 1 that he had arranged the Cobra and later during the night around 8.00 to 8.30 p.m. accused no. 1 collected the said Cobra which was put by him in a plastic container after removing from the thick polythene bag. PW. 1 stated that since accused no. 1 could not personally handle the snake he told him to come along with him and thereafter went to Panaji market where accused no. 1 purchased a red colour basket and thereafter they went to the flat of his father at Tonca and the snake was kept there. On the way to the flat, accused no. 1 had telephonically contacted one Francis D''Sa and informed him that the snake had been arranged and to come and see the snake in the flat of his father at Tonca. PW. 1 identified accused no. 2 in the dock as the said Francis D''Sa. PW. 1 stated that at the flat he had transferred the snake from plastic tin to the plastic basket and accused no. 2 came to the flat saw the snake, and went away. Accused no. 1 then took him to his flat at Old Goa and they stayed there for the night.
36. PW. 1 further stated that on the next day that is 14/01/2005 at around 04.30 hours he along with accused no. 1 went to Vasco on a Bajaj Caliber motorcycle, green in colour and they followed Dr. Verenkar who was on his morning walk between 5.30 to 6.30 hours. They returned to Panaji and accused no. 1 dropped him at his residence at St. Inez. On the same day, accused no. 1 picked up PW. 1 from his residence in black colour Indica Car and took him to the house of his mother at Porvorim and parked the car at that place and by noon, accused no. 1 took him on his Bajaj Motorcycle bearing registration no. 7776 to the Karmali Railway Station. According to PW. 1 at the railway station, accused no. 1 purchased a railway ticket by filling a form in the name of "Fernandes" aged 25 years to go to Mumbai from Margao and date 14/01/2005 was put. On reaching Karmali Railway Station at 6.30 p.m. accused no. 1 had personally filled the form to purchase the ticket for Mumbai on the same afternoon. During afternoon time, accused no. 1 dropped him at his St. Inez residence and picked him up after about half an hour and thereafter they proceeded to Sagar Hotel near Teen Building, Porvorim where accused nos. 3 and 4 were present. Accused no. 1 told him to take the brown colour Bajaj Boxer motorcycle bearing registration no. 7776 and to collect the clothes of accused no. 4 and thereafter to bring the clothes near Sagar Hotel. Accused no. 1 gave him four to five C.D.C. Certificates to be delivered at his office in Margao, at Fatorda and he personally went along with accused no. 3 to drop accused no. 4 at Karmali Railway Station. PW. 1 stated that on the same night accused no. 1 came to his flat along with accused no. 3 in the red colour Maruti Van bearing no. GA-01-R-1100 and picked him up and they went to the flat of father of accused no. 1 at Tonca and stayed there on the night of 14/01/2005.
37. PW. 1 further stated that on 15/01/2005 at around 04.30 hours he went along with accused no. 1 and accused no. 3 to Vasco in the red Maruti Van bearing No. GA-01/R-1100 belonging to Raya in order to follow Dr. Verenkar during his morning walk. At about 05.45 hours, Dr. Verenkar left in the car towards the Air Port side due to which they returned back to Panaji and accused no. 1 dropped him at his residence at St. Inez at about 07.30 hours. On the same day and between 10.00 to 11.00 hours accused no. 1 came to his residence and gave him a Railway ticket dated 15/01/2005 for Mumbai. PW. 1 went on Bajaj Boxer Motorcycle No. 7776 to Thivim Railway Station for cancellation of the train ticket along with one of his friends named Anthony Kenaudekar since he was not knowing the way and after cancelling the ticket he came back to Panaji and handed over the amount to accused no. 1 and besides the receipt towards parking of the Motorcycle in the parking lot at the Railway Station. PW. 1 has clarified that the train ticket cancelled by him at the instance of accused no. 1 was for the journey on 15/01/2005 itself and from Margao to Mumbai and that this was at around 23.00 hours on 15/01/2005.
38. PW. 1 stated that at around 23.00 hours accused no. 1 came to pick him up at his residence at St. Inez in another Maruti Van of maroon colour bearing registration no. GA01/R-1859 and during this time accused nos. 2 and 3 were along with accused no. 1. There was sharp difference between the two Maruti Vans in as much as that of Raya bearing registration no. GA-01/R-1100 was red in colour with transparent glasses and quite old whereas the second Maruti Van was of maroon colour and was not old and had tinted glasses.
39. PW. 1 stated that on the night of 15/01/2005 around 21.00 hours and while he was in the flat of accused no. 1 at Tonca he had removed the fangs of the Cobra and had fed eggs to the snake which was kept in the bed room. According to PW. 1, at that time he overheard the talks between accused nos. 1, 2 and 3 that the Cobra was brought to bite Dr. Verenkar and not for treating the friend of sister of accused no. 1. PW. 1 stated that upon overhearing the said talk, he had removed the fangs of the Cobra.
40. The evidence of PW. 1 further reveals that thereafter on the night of 15/1/2005, accused nos. 2 and 3 remained in the flat whereas accused no. 1 took him in the maroon Maruti Van behind the office of Paulo Travels to the petrol pump and at which time he had the plastic bottle of the capacity of 1.5 litre and accused no. 1 filled petrol in the van as also in the pet bottle and both of them then returned to the flat at Tonca where they spent the night.
41. PW. 1 further deposed that on 16/01/2005 at around 04.30 hours, accused nos. 1, 2, 3 and himself went in a maroon colour Maruti Van to Vasco to follow Dr. Verenkar during his morning walk but Dr. Vernekar did not turn up for his morning walk and as such they returned to Panaji and he was dropped at his residence at St. Inez. While dropping him, accused no. 1 gave another train ticket to him for cancellation which was for the journey for the same evening from Margao to Mumbai. PW. 1 again went to Thivim Railway Station along with his said friend Anthony Kenaudekar for cancellation of the ticket but since 16/1/2005 was a half working day for the office of Railway he could not get the ticket cancelled and therefore returned to Panaji on the Bajaj Motorcycle no. 7776 with Kenaudekar and returned the uncancelled ticket and the parking receipt of motorcycle at Thivim Railway Station, to accused no. 1. On the night of 16/1/2005, accused nos. 1, 2 and 3 came to his residence at St. Inez in the maroon colour Maruti Van and then they proceeded to Tonca where accused no. 1 dropped accused no. 2. The three of them proceeded to fast food centre at Porvorim, collected the food parcels and went back to Tonca flat and delivered the food parcels to accused no. 3. Accused no. 1 and himself then went to the same petrol pump where accused no. 1 filled the petrol in the black colour Indica Car and also in the pet bottle of 1.5 litre capacity. During this time accused no. 1 had an argument with the person at the Gas Station over the issue of a bill of the value more than the quantity of the petrol filled in the tank. Thereafter he and accused no. 1 proceeded towards Magsons Super store at Campal and then he proceeded to the pharmacy behind the super store where accused no. 1 purchased surgical gloves and thereafter both of them came to Tonca flat. All four of them that is accused nos. 1, 2, 3 and himself spent the night at the Tonca Flat.
42. The deposition of PW. 1 further reveals that on 17/01/2005 at around 04.30 hours all four of them namely accused no. 1, 2, 3 and himself, proceeded to Vasco in the maroon colour Maruti Van and reached there at around 05.00 hours and parked the Maruti Van in between the milk booth and the Municipal garden. The residence of Dr. Verenkar was at a distance of 50 metres. Accused no. 1 called upon accused no. 2 to get down from Van and sit on the steps of a nearby building providing clear visibility to the main door of Dr. Verenkar''s residence-cum-clinic. Accused no. 1 then took them in the Maruti Van near Church and gave a call from a coin phone booth to check whether or not Dr. Verenkar was at his residence. According to PW. 1, when accused no. 1 confirmed that Dr. Verenkar was at his residence, both accused no. 3 and himself were sitting in the Van. He deposed that they went back in the van towards the residence of Dr. Verenkar and this time the van was parked behind the trucks in front of the residence-cum-clinic of Dr. Verenkar. Accused no. 2 Francis waved out to them which was the signal that Dr. Verenkar was out of his house for his morning walk. They collected accused no. 2 in the van and followed Dr. Verenkar from a distance of about 150 metres and at that time accused no. 1 was driving the van while accused no. 3 was sitting by his side and accused no. 2 and himself were sitting behind accused nos. 3 and 1 respectively in such manner that all four of them could have the clarity in vision on the movement of Dr. Verenkar ahead. PW. 1 further deposed that after reaching the hill and while they were at a distance of 50 metres behind Dr. Verenkar, accused no. 1 told accused no. 3 to get down from the van which he did near the Sulabh Toilet and at that time one person walking from the opposite direction was helloed by Dr. Verenkar who crossed the road from left to right. PW. 1 stated that accused no. 3 was wearing a monkey cap which he had rolled up when he got down from the van and accused nos. 1 and 2 were wearing monkey caps and he himself had covered his face with a scarf. He stated that if he remembers correctly two monkey caps were of maroon colour which were worn by accused nos. 1 and 2 while accused no. 3 was wearing a brown colour monkey cap and the scarf worn by him to cover his face was of biscuit colour. Accused nos. 1 and 2 were also wearing gloves apart from monkey caps. Dr. Verenkar had shaken hands with the person for whom he had crossed the road after greeting. Dr. Verenkar continued his walk on the right side of the road and accused no. 1 then drove the van from the left to the right side of the road when accused no. 2 opened the right side door of the van and that time Dr. Verenkar changed his course of walk from right to the left side and as such accused no. 1 drove the van from the right side to the left side of the road at which time accused no. 3 was already on the left. Accused no. 2 opened the left side door of the van and accused no. 3 caught hold of Dr. Verenkar and pushed him inside the van and at that moment accused no. 2 pulled him in the van. Accused no. 3 jumped on Dr. Verenkar and the part of his body that is from head to waist was in the van with face facing the floor of the van while the other portion was outside the van. PW. 1 stated that Dr. Verenkar was shouting for help and after traveling to a distance of 3 to 4 kilometers, Dr. Verenkar was turned after taking him inside the van and they kept him on his back with his face towards the roof of the car. At this time Dr. Verenkar was holding his testicles and showing some signs of pain. PW. 1 stated that he changed his position in van from the right towards the left on the rear seat and all throughout the journey from Dr. Verenkar''s residence till this time, he was holding the snake in his hand. Before reaching Vasco from Panaji accused no. 1 had pasted the insulation tape on the number plate of the car to cover the number plate completely and some other numbers were written with the marker.
43. PW. 1 further deposed that all of them along with Dr. Verenkar had come to the spot where he gave the snake bite to the right leg of Dr. Verenkar which was completely scratched and waited at that spot for an hour to see the effect of the snake bite. Since there was no effect of snake bite on Dr. Verenkar, accused no. 1 signalled him to press his heart as Dr. Verenkar was a bypass patient. According to PW. 1, he did not agree and told the accused no. 1 that his role was only to give the snake bite which he had already done. Accused no. 1 then told accused no. 3 to do the same job which accused no. 3 refused saying that his role was only to catch Dr. Verenkar and push him in the van, which he had fulfilled. Thereafter, accused no. 1 told accused no. 2 to put the cloth on the face of Dr. Verenkar to suffocate him and to get him killed. At the instance of accused no. 1, PW. 1 passed the napkin worn by him on the face, to accused no. 2 who folded the napkin and put it on the face of Dr. Verenkar and pressed it hard for 10 minutes due to which Dr. Verenkar''s movements had stopped. PW. 1 checked the movements by touching his neck and keeping his fingers below his nostrils, checking his wrist vein i.e. pulse and slightly ticking on his testicles and confirmed that he was dead. According to PW. 1, all this checking was done by him at the instance of accused no. 1.
44. PW. 1 further deposed that thereafter they proceeded towards hilly area on the direction given by accused no. 2 and the vehicle was parked by accused no. 1 by the side of the road where there is a chapel and accused nos. 1 and 2 caught hold of the legs of Dr. Verenkar, pulled out the body and threw it in the nearby bushes and during this time the face of Dr. Verenkar was towards the ground. PW. 1 stated that they then proceeded from the said internal road towards Margao and via Ponda went to Panaji and on the way accused nos. 1 and 2 threatened him that in case he opened his mouth on the incident, they would kill his wife and son.
45. PW. 1 further deposed that they reached Panaji at around 7.00 to 7.30 hours and proceeded towards Bambolim beach near G.M.C. where all of them took bath in the sea and via University road they proceeded to Tonca flat. Accused no. 2 called the mother of accused no. 1 from the phone at Tonca flat when the mother of accused no. 1 told him that police had come to her residence at Porvorim in his search. PW. 1 deposed that he learned this fact upon the disclosure of accused no. 2 to accused no. 1 after which accused no. 1 phoned his mother. Accused no. 1 then told them that police had gone to his mother''s place in his search in connection with kidnapping of Dr. Verenkar. PW. 1 stated that accused no. 3 and himself decided to leave the Tonca flat and accused no. 1 gave three notes of Rs. 500/- to him and told him that he would pay additional amount later on. PW. 1 stated that accused no. 3 and himself then proceeded by bus from Tonca to Panaji market where accused no. 3 borrowed Rs. 500/- from him and purchased a sky blue colour T-Shirt in a shop opposite Navtara Hotel. Both of them then proceeded to Hotel Keni in Panaji on 18th June Road where he purchased jeans pant at the sale. Accused no. 3 changed his jeans pant and blue T-shirt and put his wet clothes in the polythene bag in which the blue T-shirt was earlier carried by him. Accused no. 3 phoned some person who was having his Motorcycle, a green colour CBZ and the said friend of accused no. 3 came with the said motorcycle near hotel Keni and accused no. 3 made a full disclosure leading to the death of Dr. Verenkar to the said friend and the said friend made an offer to accused no. 3 to use his car as the police were looking out for him. PW. 1 hired a motorcycle and went to Karaswada to the residence of his friend namely Anthony Kenaudekar where his wife and son were staying. PW 1 stayed at Karaswada on 17/18-1-2005. Accused no. 3 came there on his CBZ motorcycle and thereafter both of them went to Bondla Zoo to hand over the snake.
46. PW. 1 deposed that the watchman at the gate at Bondla Zoo did not allow them entry and when he explained that he was handing over the snake, the watchman allowed entry in the Zoo and made an entry of the registration number of the CBZ Motorcycle in his register. PW. 1 handed over the snake to a person in Khaki Uniform since the snake handler was not available on that day. According to PW. 1, he had carried the snake in the plastic tin which was retained, while giving the delivery of the snake. The Veterinary Doctor came at that time and on checking the snake, she shouted on him and asked him why he had removed the fangs. PW. 1 stated that accused no. 3 and himself carried the empty plastic tin and threw over the bridge while coming from Bondla, after which accused no. 3 dropped him at the residence of Anthony Kenaudekar at Karaswada. PW. 1 stayed in the said flat till 21/01/2005 and on the afternoon of that day he tried to contact accused no. 3 while proceeding to Valpoi along with his wife and child but he could not contact accused no. 3 on the mobile.
47. PW. 1 further deposed that upon reaching Bambolim beach and after taking bath in the sea, accused no. 1 who was wearing a black track suit changed the said clothes and wore a white T-shirt and another black colour pant and had thrown the clothes along with a monkey cap and the gloves earlier worn by him in the bushes. Accused no. 2 who was wearing black colour pant and black colour T-Shirt with short sleeves changed into a blue colour T Shirt and red colour pant with white stripes and threw his earlier worn clothes, the monkey caps worn by the three of them, gloves and the scarf in the bushes. Accused no. 3 was wearing blue colour T-shirt with orange colour stripes at a arm and orange colour pocket on the left arm and was wearing blue colour pant which was faded in front on the thighs and besides white colour shoes. PW. 1 himself was wearing black colour track pant belonging to accused no. 1, Sports shoes, white in colour also belonging to accused no. 1 and windcheater of white and blue colour belonging to himself. PW. 1 deposed that Dr. Verenkar was wearing white colour T-shirt, brown colour short pants, white colour shoes with brown colour socks, a red thread around his right wrist and a watch in his left hand. Besides he was also wearing a thread in the neck and there was a bunch of keys in his pant. PW. 1 stated that he would be in position to identify the clothes of the accused persons as well as of Dr. Verenkar worn at the relevant time. The statement of PW. 1 was recorded before the Special Judicial Magistrate, Vasco between 01/02/2005 to 08/02/2005. PW. 1 then identified various muddemal articles shown to him in the open Court.
48. The contention of learned counsel appearing for the accused is that PW. 1, the approver fails on both counts i.e. on reliability as well as corroboration. We will discuss the point of corroboration a little later. According to learned counsel appearing for the accused, the cross-examination of PW. 1 brings out various omissions vis-a-vis his statement u/s 164 of Cr.P.C., which are material and which amount to contradictions and make the evidence of PW. 1 unreliable. One such instance pointed out by the learned counsel is that there is no record in the said previous statement of PW. 1 that in the bedroom at the flat at Tonca, PW. 1 had overheard the talks between accused nos. 1, 2 and 3 that the Cobra was brought to bite Dr. Verenkar and not to treat the friend of sister of accused no. 1. The statement of PW. 1, u/s 164 Cr.P.C. is at Exh. 144. It would be advantageous to quote the statement of PW. 1 made to the Special Judicial Magistrate, in this regard. The same is as under:
I have to say that on 15.1.2005 during night time at about 9.00 p.m. in Ryan''s father flat at Tonka when I was alone in the bed-room where the snake was kept and Ryan, Francis and Rajan Singh were sitting in the hall outside, I removed the two teeth of the snake by a cutter. No blood came out as I took care not to touch the gum of the snake. The purpose of removing the teeth was that Ryan''s plan of killing Dr. Verenkar was the real one and not the treatment of Ryan''s sister''s friend.
From the above, it can be understood that PW. 1 had stated to the Special Judicial Magistrate the reason for removing the fangs of the snake, though he did not specifically state that he had overheard the conversation amongst the accused nos. 1, 2 and 3. The learned trial Judge has also noted that there is no specific record to that effect in the previous statement of PW. 1. Various improvements in deposition vis-a-vis omissions in the statement of PW. 1 U/s. 164, Cr.P.C., which have been brought on record during his cross-examination, were pointed out by the learned counsel appearing for the accused, during the course of arguments, like reluctance of PW. 1 to offer juice; non-disclosure about accused no. 1 contacting PW. 1 telephonically in the flat of his mother; registration number of the Maruti Van of Raya; going to the petrol pump behind the office of Paulo Travels and filling petrol in the maroon colour Maruti Van and also in the plastic bottle; handing over of another train ticket by Ryan to PW. 1 and subsequent events of PW. 1 going to the Railway station for cancellation of the same, etc.; borrowing of Rs. 500/- by accused no. 3 from PW. 1; purchase of T-shirt and Jeans pant by accused no. 3 at Panaji; change of clothes by accused no. 3; fact that accused no. 1 stated that since he could not personally handle the snake he told PW. 1 to come along with him and thereafter went to Panaji market where accused no. 1 purchased a red colour basket and thereafter they went to the flat of his father at Tonca and the snake was kept there, etc. many more omissions brought on record in the cross-examination of PW. 1, were also referred to. Most of them have been dealt with by the learned trial Judge. We have minutely scrutinized the testimony of PW. 1 in his cross-examination. It is true that there are some omissions which may be termed as material. As it is, human behaviour is imperfect. As has been submitted by learned Special Public Prosecutor, well settled principle of appreciation of evidence is that one need not appreciate evidence with mathematical precision. It is not every omission which is relevant. An omission that shakes substratum of the prosecution case or that which shakes the foundation is contradiction. There has to be ring of truth in the evidence. Evidence has to be truthful, reliable, cogent and credible. PW. 1 was under tension. He has explained as to why he did not state certain facts previously. The omissions have to be considered in the light of circumstantial evidence. In our considered opinion, the said omissions do not really shake the testimony of PW. 1 so much to render the same unreliable.
49. In the case of " M.K. Anthony"(supra), the Apex Court, while dealing with the question of appreciation of evidence has observed thus:
While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.
50. In terms of Section 306 of Cr.P.C., an accomplice is any person who is supposed to have been directly or indirectly concerned in or privy to an offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 or any offence punishable with imprisonment which may extend to seven years or with more severe sentence. The evidence of PW. 1 reveals that he was present in the van in which the main crime of abducting and killing the deceased took place and he was there from beginning till end without raising any hue and cry. Insofar as the main incident of murder of Dr. Verenkar, is concerned, at the instance of accused no. 1, PW. 1 passed on his napkin to the accused no. 2 to whom accused no. 1 had instructed to put cloth on the face of Dr. Verenkar to suffocate him and to get him killed. Accused no. 2 folded that napkin and put it on the face of Dr. Verenkar and pressed it hard for 10 minutes due to which Dr. Verenkar''s movements had stopped. PW. 1 checked the movements of Dr. Verenkar by touching his neck and keeping his fingers below his nostrils, checking his wrist vein i.e. pulse and slightly ticking on his testicles and confirmed that he was dead. According to PW. 1, all this checking was done by him at the instance of accused no. 1. Various other acts of PW. 1, stated by himself, reveal that PW. 1 was an active participant and did not just play a passive role. In the case of "Nalini" (supra), Apex Court has held thus:
a man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.
PW. 1 has narrated true facts which sufficiently reveal the dominant object of conspiracy to kill the deceased, his tacit consent to the object of conspiracy and also his overt acts. It cannot be said that PW. 1, through his evidence, has exculpated himself.
51. We shall now deal with the circumstances relied upon by prosecution, enumerated in paragraph 19 above and the material evidence led by the prosecution to corroborate the testimony of PW. 1.
(i) Homicidal death of Deceased.
&
(x) Injuries sustained by Deceased.
52. In order to prove homicidal death of Dr. Shrikant Verenkar, the prosecution examined PW. 66-Dr. Avinash Pujari who conducted postmortem on the dead body of Dr. Verenkar on 18/01/2005. He deposed that the dead body was received in Hospicio Morgue at 20.15 hours on 17/01/2005. The deceased was of average built, well nourished and mild obese. He noticed the following surface wounds and injuries on the dead body :
1. Extensive contusion on upper lip from the left angle of the mouth to the right angle involving the external upper part as well as the inner aspect of lip with evidence of laceration to 3,2,1,1,2,3 teeth upper on either side of the mid-line over an area of 2.5+2.5.5 and.5 cms. The internal contusion ginginvo labial fold, teeth intact, no loosening of the fracture teeth externally which extending towards cheek about the angle of mouth. On lower lip there was evidence of contusion of left angle of mouth to the right angle of mouth involving external aspect and inferior aspect upto chin internally upto gingivo labial fold with evidence of laceration on either side of mid-line corresponding to 1,1,2 teeth of either side of mid-line of size 2x2 cms x.5/.5 cms. There was evidence of fracture of nasal cartilage with evidence of contusion from right side of nose, nostril over an area of 4x3 cms both alar nostrils and septum on maxillary area of size 5x4 cms.
The total area of contusion involving both lips and adjoining area of size 11x6-8 cms reddish, blueish and fresh.
2. Contusion reddish blueish and fresh and forehead, left of mid-line above the eye brow over an area of 5x2-4 cms.
3. Contusion on right side face above the right eyebrow extending downward infront of ear pinna upper aspect of over an area of 6x3-4 cms.
4. Contusion, fresh red, on right wrist at lower end of radius of six 5x3 cms and at the base of right thumb upto web space of size 4x3 cms.
5. Contusion red, fresh on left wrist at lower end of radius of size 4x3 cms at proximal to second knuckle of the index finger of size 3x2 cms near M.C.P. Joint.
6. Contusion, fresh reddish blueish on the outer aspect of right knee at patellar border of size of 4x3 cms.
7. Contusion on the right lower leg on shin lateral aspect 8 cms below tibial tuberosity over an area of 11 x 5 x 7 cms bone deep, reddish, blueish and fresh.
8. Contusion, red on right ankle joint on lateral malleolus fresh 3x2 cms.
9. Contusion on head scalp left side reddish, blueish, fresh over the parieto occipital area 6 cms above and behind left ear pinna of size 7x4-5 cms, scalp deep.
10. Contusion on left side neck below the hairline at the nape of the neck 4 cms behind ear pinna and mastoid process over an area of 4.5x 1.52 x 2.52 cms scalp deep reddish blueish and fresh.
11. Contusion on left lateral aspect of the neck behind angle of mandible over an area of 3.5 x 1.5 x 1 cms; contusion on back at lower end of the right scapulla 2x1. And 1 x.5 cms, 17 and 9 cms from mid-line 25 cms and 23 cms below shoulder line 4 cms apart.
All the above referred injuries were fresh at the time of death antemortem in nature caused by hard and blunt object.
He found extensive ant bite areas of postmortem of nature and without any vital reaction on right upper extremity :
a) on right upper extremity on right upper arm on sleeve margin distally upto the wrist, dorsum of the hand, dorsal of the finger at places, elbow front and back.
b) on left upper extremity on left arm on the forearm upto distal 1/3rd of forearm elbow front and back.
c) Right lower extremity from sleeve margin of short upto socks upper margin above ankle, medially and on the back of knee.
d) Left lower extremity from sleeve margins of the short upto socks margin above ankle, medially upto gluteal fold upto back of knee.
e) on lower chest and abdomen upto margins of short i.e. elastic and string above supra pubic area on either side of lateral aspect of abdomen and on back at places.
f) on face both upper lids lower eye lids inner acanthuses, outer aspect at ear lobules and behind top of vault of scalp at places.
Injuries 12(a)-(f) were postmortem in nature caused due to ant bites.
He further deposed that injury no. 1 along with its internal injuries was individually sufficient to cause death in the ordinary course of nature. Injury nos. 1 to 11 were collectively sufficient to cause death in the ordinary course of nature.
On the internal examination of head, he found that there was blood infiltration in the layer of scalp and underneath external injury nos. 1, 2, 9 and 10; rest of the scalp was intact, normal and there was no evidence of fresh injury. He further clarified that reference to injury nos. 1 and 2 should be read as injury nos. 2 and 3 along with 9 and 10 which have been wrongly recorded in autopsy report and stated as before as injury nos. 1 and 2 with 9 and 10. He further clarified that injury no. 1 was on the face.
He further deposed that the scull was intact, normal, natural and there was no evidence of any fresh antemortem fracture; the brain was found intact of normal size and ape with abundant patechial, haemorrhages on the surface of both cerebral, hemispheres, cerebellar, lobes; the blood vessels at the base of the brain were normal and no evidence of any intracranial haemorrhages; so also there was no evidence of any space occupying lesion. On examination of the neck, he found that there was no evidence of any sub cutaneous injury but gross extravassation of blood underneath soft tissues at lower level of thyroid gland and on either side of trachea upto posterior wall of oesophagus vertically 12 cms x 4-5 cms on right side and 8x3-4 cms on the left side; there was no fracture of hyoid or thyroid cartilage and tracheal rings. The mucus membrane was congested with patechial haemorrhages.
He further deposed that on examination of the thorax, he found that the walls were intact, no evidence of fresh injury, no evidence of fracture of ribs and cartilages; the pleura was intact with abundant patechial haemorrhages under surface and inter lobar surfaces of the lungs, trachea and bronchi intact with fine, white minimal froth in the lumen. He found that right and left lungs were weighing 560 and 520 gms respectively; both the lungs were normal in size and shape congested and oedematous with plenty of patechial haemorrhages on surfaces and interfaces. He found that on cut section, blood with froth oozed; the heart was weighing 380 gms and there was evidence of past surgery; the cusps and walls were normal; chambers were normal.
He further deposed that on examination of abdomen, he found that walls were intact; there was no evidence of any fresh injury, peritoneal cavity intact; no evidence of any thickening, adhesions, effusion or blood in cavity. The stomach was found intact of normal size and shape containing about 50 c.c. of semi digested paste like food with the softened, elongated rectangular whitish yellowish tablet of no characteristic smell; the intestines were intact and partly loaded with semi-fluid matter, faeces and gases; the liver was weighing about 154 gms intact of normal size and shape with fatty, patchy areas and was mildly congested; the kidneys were intact, of normal size and shape with evidence of anthrosclerotic scarring.
He further deposed that on examination of pelvis, he found that the right testis extensively contused, red and fresh anterior aspect with the haemorrhages in the layers over an area of 7x5 cms of the scrotum; the left testes contused on interior aspect over an area of 4x3 cms. The urinary bladder was found intact and almost empty; the condition of pelvic muscle, bone and vessels was normal.
He further deposed that he preserved viscera and materials for the examination of CFSL, Hyderabad and blood grouping, and approximate time of death was consistent with the stated record i.e. between 6.15 hours to 13.30 hours on 17/01/2005. He opined that the cause of death was asphyxia due to smothering with the evidence of compression of neck and testicular injury. He further deposed that the autopsy report was drawn by him in his own handwriting. He identified his signature on the autopsy report exhibit 444. He also identified the letter exhibit 404 as the one addressed to him by P.I. Madkaikar requesting him to preserve the body, exhibit 405 as the copy of the letter requesting him to conduct postmortem examination and exhibit 406 -police report. He identified his signature on all these documents at points B.
53. PW. 66 further deposed that he was shown blue colour scarf with design - M.0.86 exhibit M-24 and asked as to whether such a scarf on the mouth of the person with substantial force could cause injury no. 1 described by him at internal page no. 1 of the report. The witness replied that the injury no. 1 was possible with the use of scarf along with substantial force. The gross extravassation of the blood underneath soft tissue injury at the level of neck/thyroid could be caused by application of substantial force manually i.e. by hands. He further deposed that in case of a bypass patient or patient with heart problem, if substantial pressure is applied on the chest or blow is given on the chest, such patient may die. To the question as to whether it was possible to find extensive contused injury on the testes recorded by him on the internal column no. 22 of the report in case the person was lying in a moving vehicle with face downward and heavy weight on his back, the witness replied that it was possible if the pelvic area comes in contact with hard and blunt object in the course of vehicular motion. To the question as to whether it was possible to co-relate injury no. 11 i.e. contusion on the back on the lower end of right scapula and lateral aspect of neck behind ankle of mandible if the person is travelling in a position as before i.e. lying with face downward, the witness replied that it was possible if the person in that position is assaulted with hard and blunt object which could also include fist blows. He further opined that any of the 11 antemortem injuries recorded by him in the report could be caused if the person was walking on the road and suddenly pushed into a moving vehicle and then pulled inside the vehicle and again sat in motion, depending upon the position of the victim, the degree of force applied and extent of resistance offered by the victim.
He did not find bite of any other animal on the unbitten part of the body of the deceased nor he could find any such bite on the parts which were bitten by ants. He did not find any scratches on the left leg of the deceased as there were postmortem ant bites. He further opined that the result of kick or punch on the upper abdomen so as to affect the pancreas would be either instantaneous death or death after few days depending upon the extent of damage to the pancreas. He further deposed that he has referred the blood of the deceased for blood grouping and Doctor had certified the blood group as being B Rh positive. A copy of the letter bearing the original report overleaf under his signature, was identified by the witness as exhibit 445. He further deposed that he had forwarded the viscera and the material along with form to the police for onward transmission to CFSL, Hyderabad. He identified the signature on the form and forwarding note as also the specimen seal of the department between points A and B which were collected and marked exhibit 446 colly.
54. In the cross-examination on behalf of respondent no. 2, PW. 66 admitted that injury nos. 2 to 11 by themselves would not cause death in the ordinary course of nature. He did not agree to the suggestion that the injuries to the testes could not cause death in the ordinary course of nature. Extravassation of blood beneath soft tissue injury in the present case under front of the neck had not caused death in the ordinary course of nature. Injury no. 1 could not be caused by impact with hard and blunt object like a fist blow. He admitted that impact with fist blow on the face could cause a bruise or contused lacerated wound. He did not agree to the suggestion that injury no. 1 was caused due to contused lacerated wound. He admitted that there was contusion and laceration in injury no. 1, but he did not agree to the suggestion that injury no. 1 was contused lacerated wound. He further stated that it was possible that the fracture of the nasal cartilage could be caused by a fist blow on the nose with sufficient force. He did not agree to the suggestion that injuries recorded by him on the nose and around the mouth of the deceased could be caused by fist blow. However, he admitted that fist blow on the lips would result in bruise on the outside and laceration inside the lips. He admitted that injury no. 1 had contusion outside and laceration inside the lips. The fracture to nasal cartilage by itself may or may not cause death. Bleeding would be transient or over a period of time if force as earlier stated by him was applied with scarf on the mouth. Lacerated wound would bleed immediately after release of force. He further stated that it was possible that there could be abrasion or laceration if there is contact of human skin with hard and blunt surface, irregular surface or rough surface as the tar road. He denied the suggestion that ant bites would not conceal the abrasion. He further stated that he had not recorded any separate reasons apart from his findings to record the cause of death. He denied the suggestion that his opinion and the cause of death was incorrect. He denied the suggestion that injury no. 1 could not cause death individually and in the ordinary course of nature.
In cross-examination on behalf of the accused no. 3, he stated that the victim should be face to face with the assailant to cause injury no. 1 with the head supported by hard and blunt surface or the head firmly held. He did not agree to the suggestion that with the head was supported by hard and blunt surface there could be correspondent injury at the back of the head. To the question as to whether if a person is pushed from outside and pulled inside the Maruti Van without being bent, there would be injuries on the forehead or the back depending on the position of push and pull, the witness answered in the positive further adding that it was hypothetical question. He admitted that no injuries either on the back and head or on the head in front were noticed by him during autopsy. He denied the suggestion that he had incorrectly opined the cause of death was asphyxia on account of smothering with compression of neck and testicular injury. He denied the suggestion that he has falsely stated that extensive contused injuries on the testes could be caused if pelvic area comes in contact with the hard and blunt object in course of vehicular motion and when the person is lying with face downward with heavy weight on the back. He denied the suggestion that he has wrongly opined that injury no. 1 was possible with the use of scarf with substantial force on the mouth.
In further cross-examination on behalf of the accused no. 1, he stated that he would not describe injuries as per the findings noted by him at column no. 12 of the report that haemorrhages on the eyelids would be as a result of contusions. He admitted that these were antemortem in nature. He did not agree to the suggestion that these findings were an outcome of injuries caused by fist blows. Subconjunctival haemorrhages could not be caused by blows, but which could be caused as a result of asphyxial death as in the present case. He recorded the findings at column no. 13 that there was dried blood stain thick from nostril and mouth from the angle of the mouth from right side upto ear pinna and on the left side up to the cheek area. This could be on account of injury no. 1 recorded by him at internal page 3 of the report. He further deposed that in case any person is given violent and forceful blow or more on the nose and mouth, bleeding would result no sooner the force is released. He agreed to the suggestion that this bleeding would be marked depending upon the nature and extent of impact. The contusions seen by him and recorded at internal page 3 would qualify as longitudinal contusions of varying dimensions. Similar would be position as regards injury no. 7. The contusion described by him at serial no. 11 could be caused by use of stick with a blunt end being forcibly thrust or poked. It was possible from the said injury that the person could have been assaulted by two or more persons from front and the back at the same time as also the sides simultaneously though it was hypothetically possible.
He had seen Maruti Van from inside and he was aware that its rear flooring was even. To the suggestion that a person wearing an underwear and clothing on top would have pubic area exposed to the flooring of the van for the purpose of impact, he agreed that any person who was suddenly dragged into moving vehicle unaware, would overcome with fear if the persons pulling him inside were not known. He agreed that cremasteric reflex is triggered either on account of exposure to fear or excitement, but not in every case. He agreed that as a result of said reflex, testes are drawn tighter towards abdomen. He agreed to the hypothetical premise that due to cremasteric reflex there would be no injuries to testes on account of grazing with the floor area of moving vehicle. The injuries to the testes as recorded could be caused on account of violent kicks in the groin area. He did not agree to the suggestion that in case of a person bleeding from mouth and nose is smothered with a scarf it would leave stains of blood on the scarf.
55. Upon a close scrutiny of the above evidence, it is evident that the evidence of Dr. Pujari has not been shaken on material aspects in the cross-examination. His version that the death of the deceased was on account of asphyxia due to smothering with compression of neck and testicular injury, has not been shaken in the cross-examination. Moreover, his opinion that the death could have been caused with the use of scarf- M.O. 86 on the mouth of the deceased with substantial force which could cause injury no. 1 mentioned in the report, has not been discredited. Therefore, in our considered opinion, the prosecution has been able to establish that the death of Dr. Shrikant Verenkar was homicidal.
56. As already stated earlier, the evidence of PW. 1 reveals that while the deceased was being pulled inside the Maruti Van and accused no. 3-Rajendra had jumped on him, the deceased was holding his testicles and showing some signs of pain. His evidence also reveals that right leg of the deceased was scratched. Lastly, the evidence of PW. 1, as already discussed earlier, reveals that a folded napkin was placed by accused no. 2 on the face of the deceased and the face was pressed hardly till the movements of the deceased stopped. The medical evidence adduced by PW. 66-Dr. Pujari, on post-mortem examination of the dead body of Dr. Verenkar, already discussed earlier, corroborates the version of PW. 1 insofar as the injuries sustained by the deceased are concerned. Both the testicles were found to be contused. There were contusions on the outer aspect of right knee; on the right lower leg; and on right ankle joint. There were injuries on face and neck. The cause of death, as per PW. 66 was on account of asphyxia due to smothering with compression of neck and testicular injuries. There is opinion of PW 66 to the effect that the blue colour scarf (M.O.) 86 could cause injury no. 1 sustained by the deceased, if pressed on the mouth with substantial force.
57. The version of PW66-Dr. Pujari, therefore, also lends corroboration to the version of PW1-Pratham in respect of injuries sustained by Dr. Verenkar and that he was done to death by pressing the scarf exhibit M-24 on his mouth by the accused no. 3.
(ii) Inquest and Scene of offence Panchanama.
58. The evidence of Dr. Avinash Pujari also stands corroborated by the version of PW34- Rosario Francisco Barretto who was the panch witness in respect of the inquest panchanama exhibit 268 and scene of occurrence panchanama exhibit 267. He deposed that on 17/01/2005 at 2 p.m., he received anonymous telephone call that body was seen lying in the property belonging to Our Lady Remedious Remeth hill, Cansaulim. He accordingly went to spot along with Agnel Fernandes and the priest. PI. Madkaikar who was present at the spot requested him to act as a panch witness. They saw the body on the road which was slopping from the Church property towards left side as one proceeds to chapel. The body was lying near a mango tree at a distance of 1.5 kilometres with the head sideways. There was a white colour T shirt, dark colour half pant and sports shoes on the feet. The socks were of blueish colour. There was a key of Maruti Car which was hanging on the waist of the deceased. He also noticed the frame of spectacle and glasses lying separately on kaccha portion of the road. He further deposed that pieces of glasses, arms of spectacles and other piece of the frame were put in polythene bag, duly packed and sealed in envelope. He, other panch and P.I. Madkaikar signed thereon. One photographer from Vasco who was present, took photographs of the spot showing the position of the body and other articles exhibit X colly. One Doctor Kamat who was present, identified the dead body of his friend Dr. Verenkar from Vasco. A sketch was also drawn showing the position in which the dead body initially noticed lying near the mango tree with the face downward. The panchanama was drawn and he signed the panchanama as well as sketch exhibit 267 colly which was drawn.
59. PW34 further deposed that both the panchas noticed the body from head to toe and found that the deceased had become of blackish colour with some abrasions at the middle of the head. The T shirt was removed and an old operation scar was seen on his chest and there was one wrist watch on the left wrist, but he did not recall its make. There were reddish abrasion injuries on the right side of shin. The short pant was removed and he was found wearing underwear. The wrist watch of the deceased was put in packet and then in an envelope, and duly packed and sealed. The clothes of the deceased including the key, watch, shoes and socks were also packed in 5 envelopes, duly sealed and signed by him, the other panch and P.I. Madkaikar. He identified all these articles upon the same being shown to him. He identified his signature on the inquest panchanama exhibit 268. He also identified the photographs shown to him. The photographs taken at the spot showing the deceased near mango tree etc. were marked X colly subject to proof. He also identified the clothes and the articles which were found on the spot. In cross-examination on behalf of respondent no. 4, he stated that no blood was seen by him where the body was seen near mango tree.
60. The evidence of PW34- Rosario Barretto which has not even been challenged in cross-examination by the accused, clearly proves that the death of Dr. Verenkar, was homicidal. Moreover, the evidence of this witness corroborates the version of approver PW1- Pratham that after Dr. Verenkar was abducted and done to death, his dead body was thrown on the way at Cansaulim.
(iii) Motive.
61. Admittedly, deceased was the father-in-law of accused no. 1. In order to establish motive for accused no. 1 to eliminate the deceased, the prosecution has examined wife of accused no. 1 namely Sarika as PW. 54; mother-in-law of accused no. 1 namely Jaimini as PW. 57; Advocate Ramchandra Gavankar as PW. 60; and a distant relative of the deceased namely Vinay Verenkar as PW. 51.
62. The evidence of PW. 54-Sarika reveals that her friendship with accused no. 1 started when she was studying in a medical college at Kolhapur in 1998. Friendship turned into love and PW. 54 became pregnant before marriage due to which she left her studies and joined accused no. 1 initially at Goa and then at Mumbai. At Mumbai, PW. 54 was not allowed by accused no. 1 to go anywhere or to talk to anybody. Only after the birth of first child, marriage of PW. 54 to accused no. 1 was solemnized at Sawantwadi, according to Hindu rites. PW. 54 was forced to give up her medical studies since she had conceived while studying. She was confined to the flat without any contacts with family members. Her evidence also reveals that at times, accused no. 1 was abusive and resorted to physical assaults. PW. 54 used to give missed calls to her mother, Jaimini. On that basis, her sister Supria and cousin Siddesh located her residence some time in June 2004 and contacted her. Thereafter, the relations appear to have improved to some extent and PW. 54 conceived for the second time and delivered a child in the Clinic of the deceased at Vasco.
63. PW. 54 further came on record to reveal that she decided to leave the marital house on 22/11/2004 in order to pursue her medical studies and to stay with her parents and this was not liked by accused no. 1 whose behaviour became intolerable upon learning of her said decision. Accused no. 1 prevailed upon PW. 54 to abandon that idea and forced upon her to execute an affidavit that in case something happened to her, he would get the custody of their children. The parents had not consented to the marriage of their daughter to the accused no 1 nor had intervened. The testimony of PW. 54 shows that over a period of time, she had realized that she had gone wrong. Her relations with accused no. 1, on account of his behaviour, became strained and she had to take shelter in the house of her father at Vasco. PW. 54 stated that on 27/11/2004, accused no. 1 entered the house of the deceased and gave threats to the deceased. There is evidence on record to establish that the accused no. 1 was convicted by learned J.M.F.C. Vasco regarding the said incidents of trespass and threats to Dr. Verenkar.
64. The testimony of PW. 54 is most natural and there is neither exaggeration nor suppression of any facts. Her testimony duly proves that the relations between accused no. 1 and PW. 54 were strained and she had left the marital house and had come to stay with her parents and wanted to pursue her medical studies which she had abandoned as per wish of accused no. 1. No doubt PW. 54 has admitted that she had not seen accused no. 1 on 27/11/2004 when he had trespassed the house of her father at Vasco. There is no denial to the statement of PW. 54 that accused no. 1 had entered the house and threatened the deceased. Besides the above, there is unrebutted evidence to show that accused no. 1 was convicted for the said offence.
65. PW. 57-Jaimini, widow of the deceased has corroborated the testimony of PW. 54 on all material aspects. She has deposed that in November 2004, Sarika had phoned her and told that she had decided to go to Kolhapur and to complete her education. PW. 57, deceased, accused and PW. 54, in this connection, went to Kolhapur to find out whether PW. 54 could start her studies again. The college authorities had agreed to readmit her and accordingly all the formalities were completed and all of them had returned to Goa. According to PW. 57, Sarika told her that accused no. 1 was against the idea of Sarika pursuing education again and that he had even resorted to assaulting her. PW. 57 confirmed that Sarika had informed her on 22/11/2004 that accused no. 1 was harassing her and even beating her and compelling her to sign an affidavit due to which she and her husband (deceased) had picked up Sarika and her two children and had brought them to Vasco. She has stated that her sister Kamini had told her on 26/11/2004 that accused no. 1 had threatened her with dire consequences in case Sarika did not join him in his house at Old Goa and that he would finish the entire family of Dr. Verenkar. PW. 57 has deposed about the acts of accused no. 1 coming to the house of Dr. Verenkar on 27/11/2004 to take Sarika away, picking up the two children to take them away police being called and accused no. 1 being arrested and taken away. The evidence of PW. 57 reveals that on 31/12/2004, accused no. 1 sent his mother along with accused no. 2 Francis asking for Sarika to be sent back to the house of accused no. 1 failing which they should be ready to face consequences. According to PW. 57, accused no. 2 and the mother of accused no. 1 met Dr. Verenkar in his clinic. It is seen from the cross-examination of PW. 57 that there are various omissions in her police statement. However, she has corroborated PW. 54 who is her daughter and on that she is not shaken. The evidence of PW. 57 is not such as would render her a false witness.
66. PW. 60-Advocate Gavankar has come on record to prove that the deceased, his wife-PW. 57 and their daughter-PW. 54 had visited his Office at Sawantwadi in connection with filing petition for dissolution of marriage of Sarika (PW. 54) with Ryan (accused no. 1), on grounds of harassment and cruelty. PW. 60 stated that Dr. Verenkar had told him to file the petition for dissolution in Sawantwadi since the marriage was solemnized there. PW 60 had taken the particulars from Dr. Verenkar and his family to enable him to draft the petition.
67. The prosecution also examined PW. 51-Vinay Verenkar in order to prove the conduct and reaction of accused no. 1. He knew accused no. 1 prior to his marriage with Sarika. According to PW. 51, accused no. 1 was earlier married and he had told this to Sarika and had also told her not to roam with accused no. 1. He deposed that the relations between Sarika and accused no. 1 were strained and Sarika had started staying with her parents along with her two minor children at Vasco. He stated that about two months prior to the death of Dr. Verenkar, the accused no. 1 had requested him to accompany him to the house of Dr. Verenkar to convince Sarika to join him with the children. PW. 51 deposed that during his talks with Dr. Verenkar, accused no. 1 had gone to the house of Dr. Verenkar from where he was later arrested by police and released on the same night. PW. 51 had gone to police station to meet accused no. 1 who told him that he would not leave Dr. Verenkar. PW. 51 has narrated the exact words uttered by accused no. 1 as " "hanv Dotorak sodcho na".
68. The testimony of PW. 60 has gone unchallenged. The testimonies of PW.s 54, 57 and 51 are natural and read as a whole appear to have a ring of truth. The trial Court, which had the opportunity and benefit to form an opinion about general tenor of evidence of these witnesses, has rightly accepted their evidence. A scrutiny of their evidence does not give us any reason to render the same unbelievable.
69. The above evidence sufficiently proves the motive for the accused no. 1 to commit murder of the deceased. The contention of learned Senior Counsel for the accused no. 1 that motive has not been proved, has no substance. The evidence of PW. 1-Pratham, the approver, which reveals various plans of accused no. 1 to do away with the deceased by hatching conspiracy with other accused, is strengthened as motive for all those plans is proved.
(iv) Incident of soya milk.
70. The prosecution has examined PW. 28-Floriano Ferrao, who acted as one of the panch witnesses on 21/02/2005 between 18.30 to 22.30 hours for the panchanama of house search conducted at the house of Shri Paul Fernandes, the father of accused no. 1. The evidence of PW. 28 reveals that there was a name plate fixed to the main door of the said flat at Buddashet Apartments, Tonca, Caranzalem reading as "Paul Fernandes". In that flat two A-4 size papers which were blank on one side and having printed material on the reverse as "Express Marketing Private Limited" and the market survey list were found. These two sheets of paper were signed by both the panchas and were taken into custody by the police. In the bedroom and beneath the bed, a black colour bag was found and after opening the same in the first compartment a single visiting card in the name of "Nilesh Naik" was found. The panchas signed on the visiting card and kept in the bag. A cash memo book bearing the rubber stamp of "Express Marketing Private Limited" was also found and attached after the same was signed by panchas. Beneath the said bag a clip board was found on which there were some papers numbering about 15 of "Express Marketing Private Limited". These papers were also signed by panchas and thereafter attached by the police. The father of accused no. 1 namely Paul Fernandes was present during the couse of panchanama and he had initialed the said panchanama which is at Exh. 244. One wooden ruler on which name " Cecilia" written with ink pen was also found and attached. PW 28 has identified all the articles. The evidence of PW. 28 is not at all shaken in the cross-examination. Except the learned counsel for accused no. 1, no one else has cross examined PW 28. The testimony of PW. 28 is intact. PW. 74 -P.I. Nilesh Rane who conducted the said attachment panchanama (Exh. 244), fully corroborated the version of PW. 28, on facts mentioned in the said panchanama.
71. There is no reason to disbelieve the testimony of PW. 28 and PW. 74 and consequently the attachment of articles, vide the panchanama, Exh. 244 and therefore we have no hesitation to accept the said evidence.
72. In order to prove that a bogus survey list was prepared, some of the persons whose names figure in said the survey list have been examined. The evidence of PW. 30-Peter Telles reveals that his name, address and a signature which was not his was appearing in the said market survey list of "Express Marketing Pvt. Ltd". According to PW. 30, who was running a Pharmacy named "Pharmacia Telles" near Vasco Railway Station, no sales representative of any firm had approached him with market survey list of "Express Marketing Pvt. Ltd." in connection with sale of Straeta milk product nor any complementary item was given to him. PW. 37-Atul Jadhav, Managing Director "New Era Shipping Limited" stated that he was not at all aware of any firm named as "Express Marketing Pvt. Ltd." nor any representative of that firm had approached him in January 2005. PW. 42-Ramdas Deo was shown the market survey list of "Express Marketing Pvt. Ltd." and he stated that it does not bear his signature against the caption "Signature", though his name and address was mentioned there. According to him also neither any sales representative of Express Marketing Pvt. Ltd. had approached him at any time nor any complementary packet of the said product was given to him for testing. PW. 30, PW. 37 and PW. 42 have no reason to tell lies and further their testimonies are not at all shaken. We hold that their evidence is reliable.
73. PW. 19-Orlando Rodrigues acted as one of the panch witnesses on 31/01/2005 for the panchanama (Exh. 215) under which the specimen handwriting of accused no. 1 was obtained. Twelve sheets on which the accused no. 1 had written the material from market survey list of Express Marketing Pvt. Ltd., Shop no. 08, Karma point, Vasco-Da-Gama and marked as S11 to S22 are at Exh. 415 (colly). The report of the handwriting expert which is at Exh. 483 (A) which was taken on record by consent of the parties reveals that the handwriting on the said survey list of Express Marketing Pvt. Ltd. is of accused no. 1, Ryan Fernandes. There being no dent made to the testimony of PW. 19, it was duly proved that the handwriting marked as S11 to S22 was of accused no. 1 and since the report of handwriting expert was not challenged, the same duly proved that the survey list of Express Marketing Pvt. Ltd. was prepared by the accused no. 1.
74. It can therefore be said to have been proved that a false case was tried to be made out by accused no. 1 about the existence of the firm by name Express Marketing Pvt. Ltd. dealing with the marketing of soya milk products.
75. PW. 1-the approver spoke about Raya coming by red Maruti van no. GA-01/N-1100 near petrol pump at Miramar on 4/1/2005 and handing over a parcel to accused no. 1 and accused no. 1 keeping it in the dicky of black Indica car. PW. 1 also spoke about powder of dhatura seeds being injected into cartons of soya milk. He further spoke about use of said red colour Maruti van bearing registration no. GA-01-N-1100, belonging to said Raya, on 14/1/2005 and 15/1/2005. In this regard, the prosecution has examined said Raya Kandolkar-PW. 10, who is the owner of the said Maruti Van. His deposition reveals that upon perusal of the Marathi daily ''Tarun Bharat'' dated 18/01/2005 and the news item that Dr. Verenkar had been kidnapped and killed, he remembered that accused no. 1 Ryan had borrowed his van on 14/01/2005, i.e. Friday. According to PW. 10, about 8 to 10 days prior to 14/01/2005 i.e. prior to collecting the van, accused no. 1 had asked him for dhatura seeds saying that the same were required by him to treat some injury on his leg. PW. 10 stated that he therefore went along with accused no. 1 on the motorcycle of accused no. 1 and collected three fruits of dhatura plant from outside his residence.
76. PW. 10-Raya further stated that his statement was recorded by the police on 18/01/2005 at Porvorim Police Station. He added that two days prior to his deposition, mother of accused no. 1 had came to his house at around 8.00 p.m. and was prevailing upon him not to make statement in the Court relating to dhatura fruits. A perusal of cross-examination of PW. 10 reveals that he is a truthful witness. There is nothing in his cross-examination which can render his testimony unreliable. A few omissions have been brought on record but in our view they are not at all material and therefore need not be mentioned. We therefore accept the evidence of PW. 10. There is no dispute that the said Maruti Van No. GA-01-N-1100, which was attached during investigation, belonged to PW. 10. There is therefore corroboration to the testimony of PW. 1 with regard to the use of Van No. GA-01-N-1100.
77. It may be recalled that according to PW. 1, after PW. 1 had moved out from Dr. Verenkar''s hospital, Ryan Fernandes, Sachin Parab and himself had gone to Kesarval spring in black colour Indica car where the samples of Straeta soya milk were emptied and empty packets were thrown away. PW. 41-Elvis Gonsalves, acted as one of the panch witnesses to the panchanama of recovery of empty packets of Straeta Soya juice, which was drawn u/s 27 of the Indian Evidence Act on 22/1/2005 and which is at Exh. 299. PW. 41 identified the approver, who was present in the Court, as Pratham. According to PW. 41, the said Pratham had volunteered to show the place where the empty packets were thrown away. PW. 41 then came on record to state further facts as to how Pratham took them to Kesarval Spring and showed the bushy area of grass and brought the empty packets of Straeta soya milk. PW. 41 stated that there were eight such packets which were all empty and he had seen them on the spot individually. According to PW. 41, the details noted on the said packets were recorded in the panchanama and they were of different flavours. PW. 41 identified his signature on the panchanama (Exh. 299) and on the envelop in which the packets were sealed. He has also identified the eight empty packets of soya milk.
78. On 22/01/2005 when the panchanama (Exh. 299) was drawn, PW. 1-Pratham was one of the accused in the said crime no. 09 of 2005 and was in custody of the Vasco police. He was granted pardon on 24/8/2005. Thus, this is a panchanama drawn at the instance of an accused. A perusal of the cross-examination of PW. 41 reveals that there is no dent made to his deposition and there is no reason why he should not be relied upon.
79. PW. 67-ASI Sanjay Dalvi, is one of the Investigating Officers. He conducted the said recovery panchanama (Exh. 299) pertaining to the attachment of eight empty packets of soya milk. PW 67, in detail, stated as to what was disclosed by PW. 1 Pratham and thereafter how he led them to the spot. PW. 67 also described each packet of the soya milk and identified his signature on the panchanama and also on all those packets.
80. We unhesitatingly rely upon the testimonies of PW. 41 and PW. 67 which duly prove attachment of Soya milk packets and consequently renders corroboration to the version of PW. 1.
81. The black Indica Car, referred to by PW. 1, was attached and the evidence of PW. 62-Laxmikant Kundaikar, the then Assistant Director of Transport, Panaji, proves that the said Black Indica Car bearing no. GA-01-R 4995 belonged to Raches Paul Fernandes, the sister of accused no. 1.
82. PW. 52-Kusta Salelkar, acted as one of the panch witnesses to the panchanama of search of the house owned by accused no. 1, which panchanama is at Exh. 366. The evidence of PW. 52 reveals that this panchanama was drawn in flat no. 3 on the ground floor of building no. 7 of Navelkar Hill City. The said flat was opened by breaking the lock on the grill door as also on the main door of the flat. The locks of the grill door and the main door were packed and sealed. In the said flat, 17 visiting cards were found and they were packed in envelope and sealed. Four CDs, which were found on the table, were also attached by packing them in an envelope and duly sealing them. During the search of a cupboard, two train tickets were found which were for cancellation. These train tickets were also duly packed and sealed and attached under the said panchanama. A passport found in that cupboard was also attached. PW. 52 identified his signature on the panchanama. He also identified the visiting cards and other articles. A perusal of the said 17 visiting cards shows that they are in the name of Nilesh Naik, Marketing Representative, Mobile 9822127895, Express Marketing Pvt. Ltd., Distributors of fruit juices, Squashes, Jams and pickles. Address mentioned on those visiting cards was shop no. 08, Karma Point, Vasco da Gama - 403 802 (India) Phone (0832) 2514812. The passport which was attached was in the name of Ryan Fernandes, accused no. 1. Some visiting cards in the name of Ryan Fernandes were also found and were attached. In the cross-examination of the PW. 52 mere denials have been put that the visiting cards and other articles were not found during the search of the said house. A suggestion was also put to him that he had subsequently signed the panchanama. The above suggestions, denied by PW. 52, are not at all sufficient for discarding or not believing PW. 52 who is otherwise a reliable witness. PW. 74-P.S.I. Nilesh Rane, who conducted this panchanama duly corroborated the testimony of PW. 52.
83. The accused could not rebut the testimonies of PW 52 and PW. 74, in relation to the panchanama, Exh. 366 and through them, the prosecution has duly established the recovery of visiting cards in the name of ''Nilesh Naik'' as representative of Express Marketing Pvt. Ltd.
84. All the above evidence discussed in paragraphs 71 to 84 above lends ample corroboration to the version of PW. 1 regarding the offer of soya milk to Dr. Verenkar. We therefore accept the evidence of PW. 1 insofar as the incident of soya milk is concerned.
85. It is true that no trace of any organic or inorganic poison was detected in the juice which was given to Dr. Verenkar to drink. No poison was detected in the viscera of the deceased. However, the evidence on record reveals that accused no. 1 had studied the effect of dhatura. A book on medical toxicology was recovered from the house of accused no. 1 situated at Oval Park, Porvorim. PW. 16-Bablo Narvekar had acted as one of the pancha witnesses for this panchanama (Exh. 201) drawn on 19/01/2005. On inquiries made by PW. 1 with accused no. 1 at the spring at Verna, the accused no. 1 had informed that dhatura seeds were ground and powder injected into the cartons from the base and any person consuming it would be confined to mental asylum. It may be that due to lack of experience about quantity of dhatura seeds to be used for getting required effect, the plan had failed. But the intention of the accused no. 1 can be gathered from the events which took place. It may also be that since PW. 1 had earlier refused to execute the plan of killing a person by causing accident, he was only told that a person goes mad by consumption of dhatura. If nothing was intended to come out of the exercise of administering the said soya milk to Dr. Verenkar, then the question arises as to why by taking so much pain, the said well planned exercise, which has been duly proved, had at all been carried out.
(v) Procurement of cobra by PW. 1; presence of cobra in the hands of PW. 1 while in the Van and handing over the same at Bondla Zoo.
86. The evidence of PW. 45-Tulshidas Gawas reveals that on 13/1/2005, PW. 1 had hired his motorcycle bearing no. GA-01/T-5641 to go to Valpoi and to come back. PW. 45 had kept the plastic bag given to him by PW. 1 on the petrol tank of his motorcycle without knowing that there was a snake in it. PW. 45 dropped PW. 1 at K.T.C. Bus Stand at Panaji and not at his Flat at St. Inez. The testimony of PW. 45 is not at all shaken in the cross-examination and therefore we accept the same. Thus, there is corroboration to the testimony of PW. 1 that he had travelled to Valpoi to collect the snake which he had earlier kept out side the house of his in-laws.
87. The prosecution has then examined PW. 44-Pankaj Shetye, Press Reporter, who acted as one of the panch witnesses on 23/01/2005 to the recovery panchanama recorded u/s 27 of the Indian Evidence Act at the instance of PW. 1, at the time when he was accused in Vasco Police Station Crime No. 9 of 2005. PW. 44 has identified the approver Pratham Gadagkar as the person who made the statement. According to PW. 44, PW. 1 volunteered to show the place where he had kept some materials. The evidence of PW. 44 reveals that PW. 1 led the panchas and the police party to the Flat No. 2 of Buddashet Apartment located on the ground floor at the Tonca Road. His evidence further reveals that from the passage leading to a room in the said flat no. 2, the PVC pipe which was used for keeping the Cobra was recovered. His evidence further reveals that a red colour plastic basket having cover which was also used for keeping the said snake was recovered from that flat at the instance of PW1. The PVC pipe was of the trade mark Anchor and on one side its mouth was closed with black colour insulation tape. Both these articles were duly packed and sealed. The Panchanama of the recovery is at Exh. 330. PW. 44, being a press reporter, has nothing to gain by deposing falsely and even otherwise his testimony is not shaken in the cross-examination. We rely upon his testimony.
88. It was urged by learned counsel appearing for the accused persons that PW. 1 stated that all throughout the journey from Dr. Verenkar''s residence till the snake bite was given, PW. 1 was holding the snake in his hand. According to learned Counsel, this is improbable and unbelievable as the same would create a chaos in the vehicle since except PW. 1 nobody knew that the fangs were removed. In our view, the said statement of PW. 1 should not be read literally to mean that he was holding the bare snake in his hand all the while. The snake was kept in a plastic tin which was in fact a PVC pipe. At page number 24 of his deposition, PW. 1 stated that he had carried the snake in the plastic tin which was retained while giving delivery of the snake. He has further stated that after handing over the snake at Bondla Zoo, accused no. 3 and he carried the empty plastic tin which they threw over the bridge while coming from Bondla. It was this PVC pipe which was subsequently recovered at the instance of PW. 1, as stated by PW. 44. In his cross-examination, PW. 1 has stated thus:
It is not true to suggest that I have falsely stated that I procured snake from my native village and kept in a red colour basket and carried in the PVC pipe in red colour Maruti Van GA-01/R-1859.
The above evidence of recovery of PVC pipe lends some support to the version of PW1 that he had carried the snake with him while in the Van.
89. PW. 32-Sebastiao Rodrigues was working as Forest Guard at Bondla Forest zoo on 24/01/2005. On that day, he acted as one of the panch witnesses for the panchanama of attachment of the register which was maintained at the said zoo. He deposed that one forest guard namely Hanumant Salkar who was on duty at gate no. 1 was asked by P.S.I. R. Dessai to bring the Incoming and Outgoing Register maintained at gate no. 1 and that Hanumant produced the said register with a name ''Sulekha'' written on it and having pages numbered from 1 to 186. The evidence of PW. 32 reveals that they had gone through the said register and upon opening page no. 184 dated 18/01/2005, the details of vehicle no. 3199 were found i.e. arrival time as 12.40 hours and departure time as 5.00 p.m. This entry was underlined in red and signed by both the panchas as also by P.S.I. The said Panchanama is at Exh. 264, which is duly proved.
90. PW. 35-Hanumant Salkar was the employee of the Forest Department and was on duty at gate no. 1 on 18.01.2005 between 09.00 to 17.00 hours. According to him, two persons had come inside the main gate around 14.30 hours on a motorcycle. He stated that his duty at the gate was to record the registration number of the vehicles entering the gate, the time of their arrival and departure of such vehicles and on the said day as usual he recorded the said details of the said motorcycle in the register. PW. 35 further stated that the two of them had carried snake in the plastic container and that rider of the motorcycle was tall and stout whereas the pillion rider was shorter and thinner. PW. 35 identified the zoo register. He was showed the entry dated 18/01/2005 at page no. 184 and he confirmed that all the entries were recorded by him in his handwriting. He has also identified his signature at point ''D'' on the said page. PW. 35 further stated that the registration no. of the motorcycle which had entered the main gate around 14.30 hours on 18.01.2005 was GA-03-M-3199 and that it had departed at 5.00 p.m. The above testimony of PW. 35 is not shaken in the cross-examination and therefore the entry of motorcycle bearing no. GA-03/M-3199 in the Bondla Zoo at around 14.30 hours on 18/01/2005 with two persons sitting on the same with the snake in plastic container is duly proved. PW. 65-P.S.I. Ravi Dessai had conducted the said panchanama (Exh. 264). He has deposed to all the details of that panchanama and has identified the entry register and the relevant entries at pages no. 184 and 185.
91. PW. 47-Vishnu Gawas was a Forest Guard working at Bondla Forest Park and on 18.01.2005 was posted at the main entry gate no. 1. His duty was to issue tickets to the visitors entering in the Bondla Park and his duty hours were between 09.00 to 17.30 hours. He deposed that two persons had come on the motorcycle to the Bondla Zoo and they told him on inquiries that they had come to handover a snake in the forest. He further stated that a register was maintained at Zoo to record registration number of the vehicles entering the zoo and the same was maintained by PW. 35.
92. PW. 40-Sandesh Kalangutkar, a Civil Engineer, acted as one of the panch witnesses on 24/01/2005 for the panchanama of attachment of the said motorcycle bearing no. GA-03-M-3199. He deposed that accused no. 3, Rajendra Singh took them to a room which was situated in the compound of Lopes. His evidence further reveals that accused no. 3 showed green colour CBZ motorcycle bearing registration number 3199 to them and the same was attached. The said motorcycle was found to be in a running condition. According to PW. 40, the chassis number and the engine number of the motorcycle were noted in the panchanama. In his cross-examination, PW. 40 had stated that he knew accused no. 3, Rajendra even prior to that panchanama and that his house is situated approximately at a distance of 1.5 km. from the place where the panchanama was drawn. He stated that the room to which accused no. 3 took them was a separate room and located at the right side as one enters the compound and that it was a single room. There is nothing in the cross-examination of PW. 40 which can discredit his testimony. The panchanama Exh. 297 of the attachment of the motorcycle which was used by two persons to carry the snake to Bondla Zoo was recovered from out side the room of accused no. 3 which fact is duly proved by the evidence of PW. 40.
93. The evidence of PW. 53-Rajesh Volvoikar reveals that accused no. 3, Rajendra Singh had purchased the said CBZ motorcycle from him. His evidence shows that one Sunil Thukral with whom accused no. 3 was working and assisting in real estate and hotel business wanted to purchase the motorcycle to be given to accused no. 3 for him to travel from residence to the work place and since Sunil Thukral did not have a ration card and other required documents to register the motorcycle in his name and accused no. 3 was also not having requisite documents, Sunil Thukral requested PW. 53 to purchase the motorcycle in his name and he agreed for the same. PW. 53 deposed that Sunil arranged for Rs. 30,000/- and balance amount was taken from finance company from Panaji. According to PW. 53, the installments towards the purchase price of the said motorcycle were to be paid by the father of accused no. 3. The evidence of PW. 53 shows that the CBZ motorcycle was accordingly purchased and given in possession of accused no. 3 and accused no. 3 was using the same from the date of its purchase. The identity of the said motorcycle with reference to its registration number GA-03/M-3199 was not disputed.
94. The evidence of PW. 53 proves that the said CBZ motorcycle by which the snake was carried to Bondla Zoo was always used by accused no. 3. Non-examination of said Sunil Thukral cannot be said to be fatal to the case of the prosecution, though prosecution was expected to examine him as a witness in the case.
95. With regard to the testimony of PW. 1 to the effect that he had removed the fangs of the snake, there is corroboration through the certificate of a Veterinary Officer namely Dr. Khazveen Umrigar, which certificate is duly proved by PW. 71. PW. 65, PSI Ravi Dessai has stated that he had made request letter to the veterinary officer to examine the snake and to issue certificate. This request letter dated 21/1/2005 is at Exh. 437.
96. PW. 71-Mohan Umarye, a Veterinary Officer who was working at Bondla Zoo at the relevant time, deposed that he is conversant with the signature of Doctor Khazveen, who was then attached as Veterinary Officer at Bondla Zoo and on the basis of records and correspondence exchanged which he had perused while holding the charge of the said office, he knows her signature. He was shown the examination report which is at Exh. 435 (colly) pertaining to the examination of the snake done by Veterinary Doctor namely Dr. Khazveen. PW. 71 identified the signature of Dr. Khazveen on the same. He further stated that the snake was examined by Dr. Khazveen on 19/01/2005 and that it was a Cobra brought by one Yash Gaikwad resident of Valpoi, on 18/01/2005 at 15.45 hours. He further stated that as per reports Exh. 438 (colly), drawn by Dr. Khazveen the two front fangs of Cobra were missing i.e. removed. He stated that said Cobra was of the length of 142 cms. and its weight was 700 grams and age was approximately 5 to 7 years. PW. 71 further deposed that the fangs showed congestion i.e. redness which was on account of their removal with more force than necessary. According to PW. 71, such congestion would remain for a period of 6 to 7 days after the forcible removal of the fangs. In his cross-examination, he denied the suggestion that the reports which are in Exh. 438 (Colly) did not bear the signature of Dr. Khazveen. The findings in the said reports have not been challenged. Non-examination of Dr. Khazveen cannot be taken as fatal.
97. The submission of learned Counsel appearing for the accused persons that the conduct of PW. 1-Pratham, in going to Bondla with cobra is quite unnatural inasmuch as in the normal course, the approver would have let go the cobra in any secluded area, is without any merit. The fangs of that cobra were removed and hence if the cobra was just released to go in any area, it would have certainly died whereas at Bondla Zoo, there are experts to take care of such snakes and to feed them. No explanation was sought by any of the accused persons from PW. 1 as to why they handed over the cobra at Bondla Zoo, without letting it go in any secluded area.
98. No doubt, there is discrepancy in the time of arrival of PW. 1 and accused no. 3 at the Bondla Zoo as stated by PW. 35 in his deposition and as mentioned in the register. In the register, the time of arrival is noted as 12.40 hours whereas in his deposition PW. 35 gave it as 14.30 hours. PW. 35 has confirmed that the said register was written by him. In our view such minor discrepancy need not be given importance.
99. The evidence of PW. 32, PW. 35, PW. 40, PW. 47, PW. 71 and PW. 65 duly proves that two persons, on 18/1/2005 at about 12.40 hours, had come on CBZ motorcycle bearing no. GA-03-M-3199 with a snake, the fangs of which were removed and handed it over at Bondla Zoo and the evidence of PW. 53 proved that the said CBZ motorcycle by which the snake was carried to Bondla Zoo was always used by accused no. 3. No doubt, there is a lapse on the part of the prosecution in not bringing on record through PW. 1 as to who wrote the name ''Yash Gaikwad'' in the register of Bondla Zoo, whether it was he himself or the accused no. 3. But this lapse cannot lead to rendering the testimony of PW. 1 unreliable, in view of cogent evidence led by prosecution. The name of Yash Gaikwad mentioned by PW. 71 was as per the records. Since, it is stated by PW. 1 that he and accused no. 3 had gone to Bondla zoo on the CBZ Motorcycle of accused no. 3 and that entry of the registration number of CBZ motorcycle was made by the watchman in his register, and further there being corroboration to this fact, as brought out above, it can be presumed that the name Yash Gaikwad taken by PW. 71, Veterinary Doctor, was mentioned either by PW. 1 or by accused no. 3 and that this fictitious name was purposely given in order to hide the identity.
100. There is therefore ample corroborating evidence, to the incident of cobra, as narrated by PW. 1.
(vi) Creation of defence of alibi by accused no. 1.
101. The evidence on record reveals that several tickets of different dates i.e. 14/1/2005, 15/1/2005 and 16/1/2005 for onward journey of accused no. 1 to Mumbai were booked and cancelled depending on the execution and failure of execution of the plan. In his written statement filed u/s 313 of Cr.P.C., the accused no. 1 has stated that he was in Mumbai on 17/1/2005 and was arrested there on 18/1/2005. However, he has not stated as to on which date he went to Mumbai and if he had gone there on 17/1/2005, then at what time and by what mode of transport.
102. According to PW. 1, on 15/1/2005, he was sent by accused no. 1 on his Bajaj Boxer Motorcycle bearing no. 7776 to Thivim Railway Station for cancellation of train ticket to Mumbai which was dated 15/1/2005. The evidence of PW. 62-Laxmikant Kundaikar, the then Assistant Director of transport, Panaji reveals that the said Bajaj Boxer Motorcycle bearing no. GA-03-A-7776 belonged to accused no. 1.
103. PW. 43-Manoj Dessai who was then working as Senior Station Master, Konkan Railway Corporation, Margao stated that at the request of Vasco Police he had submitted certified photocopies of the details of passengers who travelled from Margao to Mumbai and vice versa from 14/01/2005 to 17/01/2005. The said details are at Exh. 328 (colly) duly identified by PW 43. He confirmed that berth no. 36 in Mandovi Express for 16/01/2005 was booked in the name of R. Fernandes, 26 years old male, from Thivim Railway Station to C.S.T. Mumbai. PW. 43 stated that as per the noting made by the Train Conductor, the said berth was not occupied and had gone vacant from Thivim to C.S.T. Mumbai. The evidence of PW. 43 further reveals that as per the passengers list dated 14/01/2005 for train no. 112 namely Konkan Kanya, berth no. 64 was booked in the name of Fernandes Ryan.
104. The evidence of PW. 50-Rajaram Kadam reveals that on 21/01/2005 he acted as a panch witness at Karmali Railway Station for the attachment panchanama Exh. 362. The Station Master gave two requisition forms for reservation. The first requisition form was dated 14/01/2005 from Karmali Railway Station to C.S.T. Mumbai by Konkan Kanya and this form contained the particulars for the return journey dated 17/01/2005 from C.S.T. Mumbai to Karmali. The name of the person written on the said requisition form was "Fernandes". According to PW. 50, the second requisition form was dated 16/01/2005 for journey from C.S.T. Mumbai to Karmali Railway Station and it was also bearing the name of passenger as Fernandes. Both these requisition forms were attached in the presence of PW. 50 and he has identified them in the open Court. The testimony of this witness has not been challenged. PW. 64-P.I. R. Dessai, who was then working as Police Inspector Harbour Police Station Mormugao, had conducted the said panchanama. The evidence of PW. 50 has been duly corroborated by PW. 64 with regard to the Panchanama at Exh. 362 regarding the attachment of requisition forms.
105. PW. 19-Orlando Rodrigues acted as one of the panch witnesses on 31/01/2005 for a panchanama (Exh. 215) under which the specimen handwriting of accused no. 1 was obtained. Five sheets containing specimen handwriting of accused no. 1 written on Konkan Railway Requisition Form and marked as S1 to S5 are at Exh. 413 (Colly) and those five written by accused no. 1 on Requisition Form for reservation/cancellation/return journey of Konkan Railway having serial no. 28 and marked as S6 to S10 are at Exh. 414 (colly) The evidence of PW. 19, duly proving the specimen handwriting of accused no. 1, has not been challenged. Hence, it is duly proved that the handwriting on S1 to S10 is of accused no. 1.
106. The report of the handwriting expert which is at Exh. 483(A), which was taken on record by consent of the parties, reveals that the handwriting on the said requisition slips is of accused no. 1, Ryan Fernandes.
107. The evidence of PW. 10-Raya reveals that on 14/1/2005, his Maruti Van No. GA-01/N-1100 was borrowed by accused no. 1. Accused no. 1 met PW. 10 on that day at about 17.00 hours near Teen Building at Porvorim and told him that some relations had come down to attend the wedding of his sister and he wanted to take the said relations to Tito''s at Calangure Baga for which he wanted his van. PW. 10 stated that accused no. 1 told him that he would fill petrol and that he could collect the van on next morning from his residence. Thus, on 15/01/2005, PW. 10 went to the house of accused no. 1 at Housing Board Colony at Porvorim at about 8.00 hours and saw his van parked outside on the road. According to PW. 10, he met accused no. 1 and collected the keys of the van and went away. PW. 10 deposed that before leaving, accused no. 1 told him that he had filled petrol worth Rs. 200/- in his van. PW. 10 stated that the accused no. 1 had also taken his van on some occasions prior to 14/01/2005. This lends corroboration to the testimony of PW. 1 on the use of the Maruti Van of PW. 10 on 14/1/2005. Thus, accused no. 1 was in Goa on 14/1/2005.
108. PW. 13-Sahil Satardekar, had acted as one of the panch witnesses for the panchanama of attachment of the said Maruti van bearing registration no. GA-01-N-1100. The attachment panchanama is at Exh. 193. The said Maruti van was shown to the panchas at Vasco Police Station. The identity of the said Maruti van was not disputed by the learned counsel for the accused persons. According to PW. 13, he had minutely seen the van and had noticed that there was damage to the rear bumper towards the left side and there was dent to the corner quarter panel. The said panchanama mentions that the lower right quarter panel had scratches, the dicky door was damaged and there was only one mirror seen on the right hand side. PW. 67-A.S.I. Dalvi who had conducted this panchanama, dated 23/01/2005 which is at Exh. 193 pertaining to the attachment of the said red colour Maruti Van bearing no. GA-01/N-1100 at Vasco Police Station, corroborated the testimony of PW. 13. The said van was subsequently released to PW. 10 and he had brought it to the court and had identified the same.
109. PW. 6-Baburao Mushlekar is the owner of red colour Maruti van bearing registration no. GA-01/R-1859. He deposed that on 15/01/2005 around 18.00 hours accused no. 1 Ryan had approached him to borrow his said vehicle since he wanted to drop his relatives, who attended his sister''s marriage and was carrying huge luggage. He stated that accused no. 1 required the said vehicle for use during the early morning on 16/01/2005. Accused no. 1 had collected the said vehicle on the night of 15/01/2005 and the next morning had returned the van with payment of Rs. 300/- to PW. 6 but had again made a request for the said Maruti van and had collected it on the same night saying that some persons had waited after the wedding and were to be dropped at the airport on the following morning. According to PW. 6, the vehicle was returned to him on morning of 17/01/2005. PW. 9-Sitabai, wife of PW. 6 has confirmed that accused no. 1 collected the van at the night of 15/01/2005 and returned the same on next morning at 9.00 a.m. She also stated that on the same night, accused no. 1 again borrowed the said Maruti van at around 22.00 hours and returned the same on the following morning at around 09.00 hours. Thus, the accused no. 1 was in Goa from 15/1/2005 to around 9.00 a.m. of 17/1/2005.
110. PW. 33-Sushant Borkar is another witness whose testimony confirms the presence of accused no. 1 at his fast food joint known as Borkar Chop Sticks at Porvorim. PW. 33 has stated that accused nos. 1 and 3 along with approver (PW. 1) had come to his fast food centre on 15/01/2005 at around 22.00 hours. He has further stated that accused no. 1 and the approver (PW. 1) went in the black colour Indica car whereas accused no. 3 went away on CBZ Hero Honda motorcycle. PW. 31 has further stated that on the next day i.e. 16/01/2005 accused no. 1 had alone come to his fast food centre at around 22.00 hours in the same black Indica Car. This proves presence of accused no. 1 in Goa on 15/1/2005 and 16/1/2005 at 22.00 hours.
111. The prosecution examined PW. 52-Kusta Salelkar to establish the recovery of the cancelled tickets. He deposed that he acted as one of the panch witnesses for the panchanama of the house search (Exh. 366) which was drawn at Navelkar Hill City, Flat No. G-3, Building No. DC/7 on the ground floor at Old Goa. This flat was owned by accused no. 1. The flat was opened by Sarika Fernandes, the wife of accused no. 1. The cancelled train ticket bearing PNR no. 835-6737474 for train no. 0111 dated 17/1/2005 bearing ticket no. 04852785 destination from Mumbai CST to Karmali and another train ticket bearing PNR No. 835-6737503 for train no. 0104 dated 15/01/2005 and bearing ticket no. 3329269 from Thivim to Mumbai C.S.T., which was also cancelled, were attached.
112. PW. 24-Raghunath Chowdhari was working in the parking lot at Thivim Railway Station in the year 2005 and employed by one J.S. Bhandari to collect parking toll. According to PW. 24, he used to collect Rs. 2/- as toll in respect of the two wheelers and Rs. 5/- in respect of the four wheelers. He has explained the procedure that he would write the date on the toll receipt and issue the same to the concerned parties since the amount of the toll was printed on the same. PW. 24 has identified the toll receipt no. 1048 dated 16/01/2005 issued for a two wheeler at Konkan Railway Station Thivim to be that which had been issued by him on that date.
113. PW. 56-Nitin Dhuri was working as T.T.E. for Konkan Railway Corporation. According to him, on 03/03/2005 a police from Vasco Police Station contacted him at Ratnagiri Railway Station and made inquiries with him in respect of the passenger on Konkan Railway from Thivim to Ratnagiri and onwards as on 16/01/2005 and more particularly regarding the berth no. 36 of Mandovi Express train no. 104 dated 16/01/2005. PW. 56 stated that he boarded Mandovi Express Train at Ratnagiri for his duty and continued duty till C.S.T. Mumbai and till Ratnagiri the passengers chart was held by another T.T.E. named Arvind Naik who was on duty from Margao to Ratnagiri. PW. 56 stated that when he took the charge of the said chart/list of the passengers, he noticed that no person had travelled on berth no. 36 till Ratnagiri and the position remained same for onward journey till C.S.T. Mumbai. He identified the railway chart of train no. 104 i.e. of Mandovi Express dated 16/01/2005 which is part of exhibit 328 colly. He identified his own signature and that of Arvind Naik on the said chart. He specifically stated that berth no. 36 was not allotted by him to any person even from the Ratnagiri Station till the end point at C.S.T. Mumbai.
114. PW. 59-Arvind Naik was working as the T.T.E. for Konkan Railway in 2005 in train no. 104 i.e. Mandovi Express. He confirmed that his route was from Margao to Ratnagiri and sometimes from Margao to Mumbai. He stated that on 16/01/2005 he was on Margao-Ratnagiri route on the said train no. 104 i.e. Mandovi Express along with R.R. Pandey V.R. Jadhav and Ramakant Gadigaonkar and he was deployed in coach no. S-2, AS-3 and S-1. He stated that police made inquiries with him regarding berth no. 36 in coach no. S-2 and upon going through the passengers chart he furnished details to the police. Upon going through the passengers chart showed to him in the court which is part of the Exh. 328 colly, PW 59 stated that berth no. 36 was booked in the name of Fernandes Ryan to travel from Margao to C.S.T. Mumbai and that he had made the said noting on the said passengers chart against berth no. 36 in his handwriting stating that passenger N/T meaning not travelling. He has further stated that his duty which started on Margao Station ended at Ratnagiri and he handed over the passengers chart to S.S. Chalke who was accompanied by Dhuri.
115. PW. 22-Tushar Volvoikar acted as one of the panch witnesses on 20/01/2005 in the office of PL, Shri M.K. Gaonkar at Vasco Police Station, for the arrest panchanama in respect of accused no. 4. The panchanama is at Exh. 229. Besides the Nokia mobile phone, five railway tickets, one being from Karmali to Mumbai, two local tickets from Mumbai and two platform tickets purchased in Mumbai were attached from his possession. Two telephone bills were also found with him and were attached. PW. 22 identified the said railway tickets. The railway ticket for journey from Karmali to Mumbai C.S.T. was dated 14/01/2005 and bearing ticket no. 04852706, PNR No. 835-6757370, train no. 0112, second class sleeper, berth no. S-9-64 of Konkan Kanya. The local train ticket was dated 15/01/2005 from C.S.T. Mumbai to Bhandup/Mankhurd. Dadar local train ticket was dated 15/01/2012 and was from KJMG (Kanjurmarg) to C.S.T. M. Therefore, there is adequate corroboration to the testimony of PW. 1 with regard to the railway tickets.
116. The evidence of PW. 1 read with that of PW. 10 duly proves the presence of accused no. 1 in Goa on 14th and 15th of January 2005. The evidence of PW. 1 read with that of PW. 33 proves the presence of accused no 1 in Goa on 15/1/2005 at 22.00 hours as also on 16/1/2005. PW. 33 saw accused no. 1 at his fast food centre at 22.00. hours on 16/1/2005. The evidence of PW. 1 read with that of PW. 6 and PW. 9 proves the presence of accused no. 1 in Goa on 16/1/2005 and at 9.00. a.m. on 17/1/2005. The evidence of PW. 22 read with that of PW. 43 goes to point out that accused no. 4 had travelled in the name of accused no. 1, on 14/1/2005 from Karmali to Mumbai by Konkan Kanya. The accused no. 4 was arrested on 20/1/2005. He was produced for remand before the learned J.M.F.C. Vasco on 21/1/2005. The records reveal that the accused no. 4 took a false defence that he was arrested on 17/1/2005 and beaten by police. The panchanama (Exh. 229) regarding arrest of accused no. 4 and the evidence of P.I. M.K. Gaonkar (PW. 74) reveals that he had scrolled the mobile phone attached from the possession of accused no. 4 and there was record of calls made to Ryan F. at 20.26.33, 20.26.18, 20.26.13 and 20.26.05 on 17/01/2005. Though the accused no. 4 has taken defence of being an employee of accused no. 1 and as such being sent to Mumbai for purchase of one rupee coin telephone boxes for business purpose, however, there is no explanation from him as to why he had to travel to Mumbai in the name of accused no. 1 and also no explanation from accused no. 1 as to why he booked the ticket in his own name.
117. The accused no 1. was arrested at Marine Lines, Mumbai on 18/1/2005 and the arrest panchanama was conducted by PW. 61-P.I., Harish Madkaikar, between 21.00 to 23.00 hours. The said panchanama is at Exh. 407. This panchanama was drawn at Unit I, DCB CID Mumbai where accused no. 1 was brought after the arrest. A mobile phone make Nokia 8250 along with BSNL Excel sim card bearing phone number 9422390205 was attached from the person of accused no. 1. In the brown wallet which was found with the accused no. 1, a receipt of Hotel Manama dated 17/1/2005 bearing no. 4176 in the name of S. D''Souza; two wheeler parking receipt of KRC Thivim dated 16/1/2005; one Indian Railways ticket no. 04852786 dated 16/1/2005 from Thivim to C.S.T. Mumbai by Mandovi Express; another local train ticket dated 17/1/2005 from Dadar to C.S.T., Mumbai; platform ticket no. 3700 dated 18/1/2005 of C.S.T., Mumbai, were found.
118. PW. 1 had stated about the failed plan on 16/1/2005; about his visit in the evening of that day to the Karmali Railway Station for cancellation of a railway ticket on Bajaj Boxer Motorcycle no. 7776; about his inability to get the ticket cancelled and about return of the said uncancelled ticket along with parking receipt of the motorcycle of accused no. 1 to accused no. 1. The documents attached from the possession of accused no. 1 during his arrest panchanama, and more particularly the uncancelled ticket dated 16/1/2005 for train No. 0104-Mandovi Express, which was booked by accused no. 1 as per the proved handwriting in the requisition form, Exhibit 363 colly, with corresponding PNR No. 835-6761803 and ticket no. 4852786 and the parking receipt lend corroboration to the said testimony of PW. 1 as well as to the testimonies of PW43, PW56 and PW59 that no journey was undertaken by accused no. 1 against the booked ticket/berth from Karmali/Thivim to C.S.T. Mumbai, and further that PW. 1 could not get the ticket dated 16/1/2005 cancelled, though he had gone to the Railway Station for that purpose.
119. PW. 55-Jerry Fernandes, the then receptionist-cum-cashier at Hotel Manama, Mumbai confirmed, on the basis of the hotel register, that one person by name Savio D''Souza had checked out on 18/1/2005 around 12.50 hours from their hotel room no. 305. He identified the register (M.O. 98), the relevant entry on page no 927 at serial no. 1533 and receipt book and his handwriting on the same. He identified the receipt that was issued to Savio D, Souza. He described said Savio as tall and fair person with pimple marks on face. He identified accused no. 1 as the said Savio D''Souza. The receipt from Hotel Manama reveals that the accused no. 1 had checked in that hotel in the name of Savio D''Souza, at around 11.50 p.m. on 17/1/2005.
120. PW. 61-P.I. Madkaikar had conducted the panchanama of attachment of the said register of hotel Manama and the receipt book of that hotel, which panchanama is at Exhibit 408.
121. Specimen handwritings of accused no. 1, by asking him to copy the contents from page no. 927 at serial no. 1533 of the register of hotel Manama (M.O. 98), were obtained by PW. 74-P.I. Rane. PW. 48-Vikrant Amerkar had acted as one of the pancha witnesses for the said panchanama of attachment of five sheets of handwriting of accused no. 1. The panchanama is at Exhibit 358. The said specimen handwritings marked as S-23 to S-47 were forwarded to the Government Examiner of Questioned Documents. The evidence of PW. 78-P.I. M.K. Gaonkar and the report of the handwriting expert (Exhibit 483A) produced by him prove that the said handwriting on the hotel register is of the accused no. 1.
122. Therefore, it is duly established that the accused no. 1 had not travelled to Mumbai either on 14/1/2005 or on 16/1/2005 and in fact he was in Goa till late night of 16/1/2005 and till 9.00 a.m. on 17/1/2005. The evidence of PW. 1 reveals that he was taken by accused no. 1 to the Konkan Railway Station on 14/1/2005, where PW. 1 saw accused no. 1 filling up the requisition form in his name and purchasing a ticket for onward journey from Karmali to C.S.T. Mumbai. His evidence also shows that the accused no. 1 had sent him on motorcycle to collect the clothes of accused no. 4 and that accused no. 4 had made his onward journey by the said train. Thus, the ticket booked by accused no. 1, in his own name on 14/1/2005, was however used by accused no. 4-Sachin to travel to Mumbai. Stay of accused no. 1 in Mumbai during late night of 17/1/2005 till noon of 18/1/2005 is also proved. There is no evidence to show as to what means of transport was used by accused no. 1, on 17/1/2005 to reach Mumbai in a hurry.
123. The above evidence sufficiently proves that the accused no. 1 wanted to show that he was not in Goa but was in Mumbai from 14/1/2005 till 18/1/2005 and thus he tried to create alibi with the active help of accused no. 4. This lends strong support to the testimony of PW 1, in this regard.
(vii) Seizure of van, petrol bills, gloves, etc.
124. For the sake of repetition, PW. 1 stated of having gone to Tonca residence, on the night of 16/1/2005 and dropped accused no. 2 there, whereas, the three of them namely accused no. 1, accused no. 3 and PW. 1 then proceeded to fast food centre, collected food parcel, went to the same petrol pump, situated behind "Paulo Travels" and purchased petrol and accused no. 1 had arguments with the staff of petrol pump. In this regard, PW. 14-Rajesh Sawant, who had acted as one of the panch witnesses for the panchanama of attachment of the Bill book/cash memo book towards purchase of petrol from VVK Tarcar at Patto, Panaji, deposed that on 21/09/2005 at about 15.00 hours at Vasco Police Station one Ashish Joglekar stated that he was running a petrol pump known as VVK Tarcar at Patto, Panaji and produced the bill book of the said petrol pump. Upon opening the said bill book it was found containing the duplicates of the bills earlier issued to the customers. According to PW. 14, Ashish showed the bill dated 16/01/2005 saying that it was issued during the night time of 16/01/2005 to the driver of a black colour Indica car and that the petrol was carried in a plastic bottle. PW. 14 deposed that if he correctly recalls, the quantity of petrol written in the said bill was 6.5 litre and the amount was Rs. 250/-. He identified his signature on the panchanama which is at Exh. 198. He also identified the bill book which is M.O. 102.
125. PW. 46-Ashish Joglekar, who was running the said petrol pump known as VVK Tarcar, in his evidence, revealed that at midnight about 10 to 15 days prior to the date of recording his statement, he had received telephone call from Samadhan and Ritesh who were working at the said petrol pump informing that somebody had come to the petrol pump in a black colour Indica car and had asked for petrol to be filled in three bottles and that the bill amount was little more than Rs. 200/- PW. 46 further stated that he went to the petrol pump on the next morning and verified the said information and also verified the bill book maintained at the petrol pump. He identified the said bill book which is MO 102.
126. PW. 49-Samadhan Thakur was working as cashier-cum-petrol filler at Tarcar Petrol Pump. He deposed that on 16/01/2005 at around 22.00 to 22.30 hours he was having his dinner and Deepak was attending to the customers, when he heard some loud noise and therefore came out and went towards Deepak and saw a black colour Indica car in which there was a tall handsome looking person seating at the driver''s seat. According to PW. 49, the said person had purchased petrol worth Rs. 250/- in three pet bottles. He further stated that Deepak brought a new bill book and prepared bill for the amount of Rs. 250/-. PW. 49 deposed about the arguments which the said handsome person had with Deepak and that was on the amount of bill as he was demanding a bill for a higher amount. At last the said driver of Indica car left with the bill of Rs. 250/-. PW 49 confirmed that he contacted Ashish Joglekar (PW. 46) and narrated the incident to him. He further stated that he again narrated the incident to PW. 46 when he had come to the petrol pump. He identified the bill book (M.O. 102), which is dated 16/01/2005. The testimony of PW. 49 is not shaken in his cross-examination and even otherwise he has no reason to tell lies.
127. The prosecution has examined PW. 6-Baburao Mushlekar, owner of the red colour Maruti van bearing no. GA-01-R-1859, whose said vehicle was borrowed by accused no. 1 on 15/01/2005. He has deposed that on 17/01/2005 in the evening time he had gone to verify if the articles inside the van were intact. According to PW. 6 upon opening the dicky of the van he found a packet of hand gloves. He further noticed that a screw of the front number plate missing whereas the second screw was not in its normal position i.e. it was found to be loose. PW. 6 stated that he collected the packet of the hand gloves from the dicky and kept in his house. He identified the said hand gloves which were shown to him in the court.
128. The evidence of PW. 6 also reveals that the said Maruti van was returned on the morning on 17/01/2005 to the wife of PW. 6 namely Sitabai and who had received the amount of Rs. 500/-. In his cross-examination, PW. 6 has stated that he had handed over two - three petrol receipts at Porvorim Police Station on 17/01/2005 at around 20.30 hours.
129. In the cross-examination of PW. 6 it has come on record that he had stated to the Special Judicial Magistrate, Vasco that it was his daughter who had found a packet of hand gloves in the dicky. PW. 6 has clarified that on account of his poor vision he had taken his daughter Geeta to check the van and she checked in his presence. Therefore the above cannot be said to be a material omission or a contradiction.
130. PW. 9 is Sitabai, the wife of PW. 6. She knew accused no. 1 Ryan as he used to visit her shop which is run from her house at Porvorim. She stated that on 15/01/2005 accused no. 1 had borrowed their Maruti Van stating that he wanted to drop his aunt at the air port. According to PW 9 accused no. 1 collected the van at the night of 15/01/2005 and returned the same on next morning at 9.00 hours. She also stated that on the same night, accused no. 1 again borrowed the said Maruti van at around 22.00 hours and returned the same on the following morning at around 09.00 hours. At this time accused no. 1 told her and PW. 6 that he required the van to drop some relatives at the air port. Thus, PW. 9 has confirmed that the vehicle was returned on 17/01/2005. She has stated that the said Maruti van was returned on that day by accused no. 2 (D''Sa) who handed over the keys of van, two petrol bills and cash of Rs. 500/-. She further deposed that her husband (PW. 6) was taking rest inside the house as he had back pain. According to PW. 9, she had asked accused no. 2 as to where is accused no. 1, Ryan and accused no. 2 told her that Ryan had gone to Mumbai. PW. 9 confirmed that subsequently her husband and daughter Geeta had gone to check the vehicle on the same evening and her husband found a packet of gloves which he brought from the van and kept in the house. She stated that on the next day i.e. on 18/01/2005 police came to her house and they narrated the incident relating to the van, receipts of petrol bill, cash and packet of gloves. According to PW. 9, in the same evening police attached the packet of gloves, the petrol bills and during the morning of 18/01/2005 also attached the Maruti van. She identified all the said articles.
131. PW. 70-Special Judicial Magistrate, Audi had conducted the test identification parade. On 8/3/2005, PW 9 identified the accused no. 2 as the person who had returned the keys of the Maruti Van, cash of Rs. 500/- and petrol bills to her on 17/1/2005. The memorandum prepared by PW 70 is at Exh. 520. The evidence of PW. 70 reveals that he had taken all the precautions and had followed the settled procedure for conducting the T I. Parades.
132. PW. 17-Heeraj Lotlikar, acted as one of the panch witnesses for the panchanama of attachment of the packet of the surgical gloves and two petrol bills. PW. 9, Sitabai had handed over the said articles to the police in the presence of the panch witnesses. The panchanama was drawn at the house of said Sitabai. The articles were shown to PW. 17 and he identified both the said articles.
133. The prosecution has examined PW. 23-Asif Zatsu, who had acted as one of the pancha witnesses for the panchanama of attachment of a box containing 12 packets of surgical gloves from a pharmacy situated at Miramar on the ground floor of Esperanca Dr. Estibeiro Clinic. It was disclosed by accused no. 1 that he had purchased two pairs of similar surgical gloves from Mr. Chandrashekar Sawant who was present at that pharmacy and who confirmed that the accused no. 1 did purchase the said gloves.
(viii) Abduction of Dr. Verenkar on 17/01/2005.
134. PW. 2-Alwyn Lawrence had lodged complaint at Vasco Police Station on 17/01/2005 at around 07.00 hours. The said complaint about kidnapping of Dr. Verenkar by unknown persons is at Exh. 160. PW. 2 had opened the door of his house situated at Mangor Hill at about 06.00 hours and he noticed the red colour Maruti van which stopped on the road little ahead of his house. He knew Dr. Verenkar. He saw that the left door of the said Maruti van was open and Dr. Verenkar was pushed inside the said van and thereafter the said van sped in the direction of St. Tereza School. It is pertinent to note that PW. 2 had noticed the last four digits of the van being 0055 which appeared to be hand written. He could not identify the occupants of the van as there were tinted glasses to that van. However, he saw that the baker who had reached to the spot started running behind the van and also saw another neighbour running behind the said Maruti van. According to PW. 2, the baker had even managed to bang his hands on the rear wind screen of the van. It is in this regard that he lodged the said complaint which is at Exh. 160. P.S.I. Nilesh Rane (PW. 74) came to the spot immediately and PW. 2 showed the spot to the police. A panchanama Exh. 162 was drawn at that spot.
135. PW. 3-Balkrishna Salgaonkar acted as one of the panch witnesses for the said panchanama of the scene of offence from where Dr. Verenkar was lifted and put into the red colour maruti van. Exh. 162 is the said panchanama. According to PW. 3, a button of blue colour with blue colour thread was found lying at a distance of about 7 metres from the house of Alwyn. This button along with thread was put in a polythene bag, packed and sealed. A sample of mud was collected from that spot, attached, packed and sealed. A sketch is also annexed to the said panchanama. These documents are duly proved by PW. 3 and PW. 74, who have identified the button and the sample of mud.
136. The accused no. 2- Francis was arrested on 20/01/2005. Arrest panchanama, Exhibit 225 was drawn by P.I. M. K. Gaonkar in the presence of PW. 20 and another witness. PW. 20-Elvino Araujo has deposed that accused no 2 was wearing a blue colour short sleeved shirt with green and white lines and a black long pant and black shoes. According to PW. 20, P.I. Gaonkar examined the person of accused no. 2 and found that the third button from the top of his T-shirt was missing. The clothes and other articles including a mobile phone found in possession of accused no. 2 were attached, packed and sealed, under the said panchanama.
137. PW. 1-the approver stated that the accused no. 2 was wearing black T-shirt and black pant. Therefore, merely because the third button of the blue colour T-shirt worn by accused no. 2 at the time of his arrest was found missing, it cannot be presumed that the blue colour button with blue thread found at the place from where Dr. Verenkar was abducted, was of the T-shirt worn by accused no. 2 at the time of abduction of the deceased. The connection of the said button with thread with any of the accused is not established.
138. PW. 4-Hazrat Sab Lal is the said bread seller (baker) referred to by PW. 3. His evidence reveals that when he had reached near the house of Dr. Kantak on the Baina road between 5.45 to 6.00 hours, he heard some noise and a call (pava, pava) and saw that the sound was coming from a Maruti van which was in a slow motion. The evidence of PW. 4 further reveals that he rested his bicycle, on which there was a load of bread, against the compound wall of the house of Dr. Kantak and ran in the direction of the van which was facing towards St. Tereza High School. He banged his hands against rear wind screen of the van which sped away in the direction of St. Tereza School. He confirmed that Allwyn (PW. 2) and Milton also ran behind the van. He noticed the registration number of the said red colour Maruti van, but he could recall only the terminal number 0055.
139. PW. 5-Milton Fernandes has also been referred to by PW. 2 and PW. 4. He resides opposite to the house of Dr. Kantak at Mangor and PW. 2 is his neighbour. On 17/01/2005 at around 06.10 hours he was standing infront of his house waiting for the bread seller for purchase of bread. At that time he heard a sound of a car coming at a speed and applying the brakes. Hearing that sound, he came on the road and saw that it was a red colour Maruti Omni Van. According to PW. 5, a fat person got down from the left side of that van and pushed Dr. Verenkar inside the van from the left middle door. He had described the said man as having worn blue colour ''T'' shirt and a face mask. The face mask was rolled up to the hairline on the forehead. PW. 5 stated that seeing Dr. Verenkar being pushed in the van, he rushed towards the van and noticed Alwyn (PW 2) ahead of him and the bread seller further ahead of him. He even saw that the bread seller banged the rear wind screen. The van sped towards the St. Tereza High School. PW. 5 had made a mental note of the registration number of the said maruti van as GA-01/C-0055. According to PW. 5, the number plate appeared to be made in hand. PW. 5 stated that after Dr. Verenkar was put in the vehicle, he could only see the legs of Dr. Verenkar bellow the thigh level and he saw that there were white colour shoes in his feet.
140. PW. 1-approver has deposed that the accused no 3 was wearing blue colour T-shirt with orange stripes and a blue colour pant which was faded in front on the thighs and white colour shoes. PW5-Milton stated that the fat person who got out of the Van from the left side and pushed Dr. Verenkar inside the Van was wearing blue colour T-shirt. The fact that PW. 5 stated that he would not be in a position to identify the said blue T-shirt, if shown to him, shows the truthfulness of PW. 5.
141. A long navy blue cotton pant which was old and the blue colour T-shirt, along with socks were recovered at the instance of accused no. 3, u/s 27 of the Evidence Act. The panchanama dated 23/1/2005 is at Exh. 288. PW. 36-Vassudev Gawndalkar has proved this panchanama drawn by PW. 78-RI. M. Gaonkar. Accused no. 3 disclosed that they had put the wet clothes in polythene bag and had thrown at some place near Siridao Beach. Accused no. 3 then took the panchas and the police party to that place and pointed out to the polythene bag in which the said clothes were found. They were duly packed and sealed. Other clothes like banian, underwear and socks were also found in that bag. The pant was found to be wet and there were sand particles near the feet of that pant. There were reddish stains near the right knee of the pant. PW. 78 has corroborated the version of PW. 36. PW. 36 and PW. 78 have identified the said clothes.
142. PW. 36 was an employee of V. M. Salgaonkar at Head Office and had no reason to oblige the police or to falsely implicate the accused no. 3. His testimony is otherwise not shaken in the cross-examination.
143. As per the report of C.F.S.L., Hyderabad, which is proved by PW72-Dr. N. R.K. Rao, soil sample collected from the beach was found to be similar to the soil on the blue pant and socks recovered at the instance of accused no. 3. There is no explanation from accused no. 3 as to how soil on the pant and socks recovered at his instance was similar to the soil from Bambolim beach.
144. PW. 7-Tito Cardoz is the owner of a bar named Florina at Cortalim. For the business of the said bar he was making purchases and for that he used to leave for Vasco at around 05.30 hours from Cortalim. The purchases were of fish, vegetables and other articles. He used to go to Vasco on his Kinetic scooter. He deposed that on 17/01/2005 he left his house as usual around 05.30 hours by the said Kinetic Scooter bearing registration no. 5259 from Cortalim and proceeded towards Vasco via Birla road and on reaching Air Port he proceeded towards Mangor direction. PW. 7 stated that he was on the left side of road when he noticed a red colour Maruti van coming from opposite direction at a fast speed and two feet hanging out from the lower portion. He stated that there were white colour tennis shoes on the said feet. He further stated that he reduced the speed of his scooter to 20 kilometers per hour and when the vehicle was at a distance of five meters approximately he saw the number of the said van as 0055 written on a paper and on the number plate. He further stated that the driver of said Maruti van had slowed down his speed since it was a ''U'' turn and therefore he could see the driver of the van who was tall and fair. PW. 7 identified accused no. 1 as the driver of the red colour Maruti van which proceeded on the Air Port road. PW. 7 then deposed that he turned round and noticed the number on the rear side which was GA-01-0055 which was also on the paper. He therefore suspected that there was some mischief. He subsequently, at around 11.00 hours, learnt that Dr. Verenkar had been kidnapped and further came to know, at around 13.00 hours to 14.00 hour, that Dr. Verenkar was dead and his body was at Remet hill at Cansaulim. He therefore himself went to Vasco Police Station and disclosed what was seen by him during early hours of 17/01/2005 to Deputy Superintendent of Police who referred him to the Police Inspector concerned, who recorded his statement. The evidence of PW. 7 reveals that subsequently his statement was also recorded by Special Judicial Magistrate, Mormugao and Canacona on 11/03/2005.
145. PW. 8-Ramesh Mandela is another chance witness who has his house near the general store known as J.V. Shetty Store at Mangor Hill. He also used to drive a Maruti car. His evidence reveals that on 17/01/2005, as usual, he had gone to purchase milk at around 06.00 hours at the milk booth located near ''Mangor Sports Club'' Mangor and while returning from the milk booth towards his house, he noticed the red colour Maruti van which came from St. Tereza''s side and proceeded in the direction which could be towards Varnapuri and Air Port side. He also identified the driver of the said Maruti van as accused no. 1 who according to PW. 8 was wearing black colour top which could be either a shirt or ''T'' shirt. PW. 8 stated that he noticed the left side middle door of the van open and saw the feet of the person with white colour shoes and white colour socks. PW. 8 also saw one person sitting on the chest of another lying on the floor of the van and whose legs were hanging out. According to PW. 8, the person sitting on the chest was trying to pull the person inside and also another person who was inside the van was trying to do the same thing. PW. 8 identified accused no. 2 as the one sitting on the chest of the person who was lying on the floor whereas accused no. 3 to be the person who was pulling the feet of that person inside. According to PW. 8, he identified these two persons who were facing towards the road and whom he saw at that time. He clarified that he was waiting by the side of the road to cross the road to go to his house when he saw the incident. PW 8 stated that he noticed the number plate on that van which was prepared of paper and had handwritten number GA-01-C-0055 on it.
146. On 8/3/2005, PW8-Ramesh identified accused no. 2-Francis in the test identification parade conducted by SJM, PW-70, as the same person seen by him in the red Maruti van on 17/1/2005. The memorandum prepared by PW. 70 is at Exh. 520. On 12/3/2005, PW. 7-Tito identified the accused no. 1-Ryan, in the identification parade conducted by PW. 70, as the person whom he had seen amongst the group kidnapping a person on the early hours of 17/1/2005. The memorandum of T.I. Parade is at Exh. 525. On 13/2/2005, the accused no. 1-Ryan was identified by PW 8-Ramesh, in the identification parade conducted by PW. 70, as the person who was amongst the group kidnapping another person in a Maruti Van on the early morning of 17/1/2005. The memorandum of T.I. Parade is at Exh. 527. Lastly, on 14/3/2005, PW. 8-Ramesh identified the accused no. 3-Rajendra, in the test identification parade conducted by PW. 70. The memorandum is at Exh. 533.
147. PW. 7 and PW. 8 are both chance witnesses. PW. 2, PW 4 and PW. 5 have not made any reference to them in their testimony. There are various material omissions brought on record in the cross-examination of PW. 7 and PW. 8, vis-a-vis their previous statements. In spite of the fact that the moving Van had tinted glasses and the occupants had worn masks, PW. 7 says he identified accused no. 1 and PW. 8 says he identified accused nos. 1, 2 and 3. PW. 7 is owner of liquor bar and at the relevant time was allegedly riding a scooter. PW. 8 was previously lodged at Sub-Jail Sada in the year 2002 in connection with a case bearing no. 11/2003 investigated upon by PSI Rane with the assistance of PSI Patil. We are of the view that the evidence of PW. 7 is natural and reliable. The statement of PW. 8 was recorded by Special Judicial Magistrate on 10/03/2005 whereas that of PW. 7 has been recorded by Special Judicial Magistrate on 11/3/2003. The identification parades were held in February or March, 2005. We do not find it safe to rely upon their evidence.
148. Even after discarding the evidence of PW. 7 and PW. 8, there remains on record reliable evidence of PW. 2, PW4 and PW. 5, which duly corroborates the version of PW. 1 regarding abduction of the deceased.
(ix) Use of Maruti Van no. GA-01-R-1859 with fake number plate.
149. As already stated above, PW. 6 had found surgical gloves in his Maruti van bearing no. GA-01-R-1859. He had also noticed that the screw on the front number plate was missing whereas the second screw was not in place. We have also pointed out that the said surgical gloves were found in that car after it was borrowed by accused no. 1. PW. 17 had acted as one of the panch witness for the attachment of the said surgical gloves. The said panchanama at Exh. 213 has been duly proved.
150. The evidence of PW. 62- Laxmikant Kundaikar, the then Assistant Director of Transport, Panaji duly proves that there was no Maruti Van existing in 2005 with registration no. GA-01-C-0055.
151. The following facts namely: that the red colour Maruti Van bearing no. GA-01/R-1859 was borrowed by the accused no. 1 from PW. 6 on 16/1/2005 at about 10.00 p.m. and was returned back by accused no. 2 to PW 9 on 17/1/2005 by about 9.00 a.m.; that petrol bills were handed over to PW. 9, which pertain to petrol being filled in the same Van; that surgical gloves were found in that Van; that hair of the deceased were found in that Van; that sand and weeds were found in that Van; that the seat of that Van was found to be wet; that a screw of the front number plate was missing and the second one was not in its normal place; that there was no Maruti Van with real registration no. as GA-01/C-0055, as confirmed by the investigating officer; that PW. 2 and PW4 had noticed the last digits of the Van as 0055; and PW. 5 had noticed the full number as GA-01/C-0055, go to prove beyond doubt that the Maruti Van with fake number as GA-01/C-0055 used for the commission of offence and Maruti Van bearing real registration no. GA-01/R-1859 are one and the same. Besides the above, there is further convincing evidence about recovery of the fake paper number plate having No. GA-01/C/0055, at the instance of accused no. 1.
152. The evidence of PW. 1, as already discussed earlier, reveals that before reaching Vasco, the accused no. 1 had pasted insulation tape on the number plate of the Maruti Van to cover the number plate completely and some other numbers were written with a marker. The evidence of other witnesses who had seen Dr. Verenkar being kidnapped and more particularly of PW. 7 and PW. 8, reveals that a fake number as GA-01/C-0055 written on paper was fixed on the number plate of the said Maruti Van.
153. The prosecution examined PW. 27- Devidas Tuenkar, who had acted as one of the pancha witnesses for the panchanama of disclosure and recovery of the fake paper number plate, at the instance of accused no. 1. PW. 78, PL M.K. Gaonkar, who conducted the panchanama, has fully corroborated the version of PW. 27. The panchanama drawn u/s 27 of the Evidence Act is at Exhibit 241. Accused no. 1 disclosed that he would show the place where he had thrown the paper number plate and thereafter took the panchas and police party to the said place and had showed and removed the white, crumpled ball of paper, with creamish colour adhesive tape and handed it over to PW. 78. Upon opening the said ball of paper, eight pieces of paper and seven pieces of adhesive tape and cellotape were found and when the said pieces of paper were arranged, the number that appeared was GA-01/C-0055 written in black colour on a white paper. Thereafter, a bolt having two washers lying in the middle of the road was also removed by accused no. 1 and handed over to PW 78. The evidence of PW. 27 is wholly reliable. The learned trial Judge has given various reasons as to why the testimony of PW. 27 can be safely relied upon. We have no hesitation to agree with the said reasons.
154. The said pieces of paper, the bolt with washers, the bumper with registration no. GA-01/R-1859 of the Maruti Van of PW. 6, with one nut missing, etc were forwarded to C. F. S. L. Hyderabad. As per the report, Exhibit 568 colly, the said nut with washers could be used to fix the number plate by fitting into the hole of the number plate along with the groves of the said bumper. The eight pieces of paper forming the number as GA-01/C-0055 were found to be similar and could be joined to form the said number.
155. It is thus proved by the prosecution beyond reasonable doubt that the accused used the Maruti Van bearing registration No. GA-01-R-1859, for abduction and murder of deceased and accused no. 1 prepared false number plate having no. GA-01-C-0055 and fixed it on the original number plate.
(x) Presence of Dr. Verenkar in the Van.
156. PW. 14-Nissar Dias had acted as one of the panch witnesses for the panchanama of attachment of the said Maruti Omni bearing registration no. GA-01-R-1859. He deposed that said maroon colour Maruti Van was parked in front of the house of Baburao Mushlekar (PW. 6). He confirmed that one nut of the number plate towards the left side was missing and that the number plate had white background and the numbers in black being GA-01-R-1859 on the both sides. In the middle portion of the said van and on the left hand side bunch of hair was found and the same was lifted by the scientific expert and it was duly packed and sealed. It is also pertinent to note that sand as well as weeds were found on the rubber matting which were also collected and attached after packing and sealing them. Dried fluid was noticed on the black matting of the van. Even under the matting particles of sand, weeds and hair found were also attached, packed and sealed. After opening the rear door of the van particles of sand, weeds and hair were also noticed on the matting and they were also collected and packed and sealed. Photographs were clicked which are part of Exh. 168 colly. PW. 14 had duly identified all the said articles and also identified his signature on the panchanama which is at Exh. 195. A perusal of cross-examination of PW. 14 indicates that his testimony is not at all shaken and he has duly proved the attachment, packing and sealing of the bunch of hair found in that Van. The said bunch of hair was forwarded to CFSL, Hyderabad for analysis.
157. PW. 72-Dr. N.R.K. Rao, Junior Scientific Officer attached to CFSL, Hyderabad, deposed that the hair found in the Van and the hair which was sent came from the same source. He produced reports which are at Exhibits 565 and 566. His evidence which is corroborated by two reports clearly establishes that the hair found in the Maruti Van came from the source from which it was sent. In other words, the hair found in the Maruti van were of deceased Dr. Verenkar.
158. Thus, the presence of hair of the deceased in the said Maruti Van corroborates the version of PW. 1-approver that the deceased was abducted in the same Maruti Van. This proves beyond doubt that the deceased was abducted in the said Maruti Van.
(xii) Dead body of the deceased was thrown in the bushes by the side of road where there is a chapel.
159. The evidence of PW. 1 reveals that after killing Dr. Verenkar they had proceeded to hilly area as per the direction of accused no. 2 and accused no. 1 had parked the car by the side of the road near a chapel and both accused no. 1 and 2 had pulled out the body and thrown it in the nearby bushes. This was the place in the property belonging to Our Lady of Remedios at Remet Hill, Cansaulim. PW. 34-Rosario Francisco Barretto, whose evidence has already been discussed in paragraphs 58, 59, and 60 above, had acted as one of the panch witnesses for the panchanama of the scene of occurrence (Exh. 267) and Inquest Panchanama (Exh. 268) which were drawn in the said property belonging to Our Lady of Remedios. The dead body of Dr. Verenkar was found on the road which was slopping from the church property and towards the left side if one proceeds to the chapel. As stated by the witnesses, a white colour T-shirt and a dark colour half pant was worn by the deceased and there were sports shoes in the feet. PW. 34 has identified the white shoes and has identified the said T-shirt, half pant, pair of shoes and socks to be the same which were found on the body of Dr. Verenkar.
(xiii) Accused taking bath at Bambolim Beach and throwing clothes, surgical gloves, scarf and masks there, in the bushes.
160. The unrebutted testimony of PW. 11-Jagannath Shirdonkar duly proves that on 17/01/2005 he had borrowed the said red colour Maruti Omni bearing registration no. GA-01/R-1859 at 11.45 hours and had returned it at 13.30 hours after bringing the children back from the school. It is pertinent to note that PW. 11 had noticed that the driver''s seat of the Maruti Omni was wet due to which he felt wetness to his buttocks. No doubt, he felt that Mushlekar (PW. 6) might have washed the vehicle and in that process the driver''s seat got wet. He was shown the photographs of the said Maruti van bearing no. GA-01-R-1859 which is part of Exh. 168 Colly. He identified the said car as the same which was borrowed by him on 17/01/2005. The presence of wetness on the seat of the Van lends support to the version of PW. 1 who stated that after disposal of dead body all of them had bath at Bambolim beach.
161. PW. 29-Jayant Jadhav had acted as one of the panch witnesses for the panchanama on disclosure made by accused no. 2 and recovery of the monkey caps, surgical gloves, and scarf, as referred to by PW. 1 in his deposition, amongst various other articles. The said panchanama dated 26/01/2005 is at Exh. 259. His evidence reveals that the accused no. 2 made a disclosure that they had thrown the clothes, masks, gloves, scarf, etc. near Bambolim beach in the bushes. The accused no 2 volunteered to show these articles and accordingly took the panchas and police party to the said place and showed those articles, which were duly packed and sealed. T-shirts, white colour vest, underwear, scarf, monkey caps, black colour jacket, black colour track pant, surgeons gloves, etc. were recovered. PW. 29 has duly proved this panchanama which was drawn by PW. 78-P.I. Mahesh Gaonkar. PW. 78 has fully corroborated PW. 29, in this regard. The testimonies of PW 29 and 78 have remained intact without any dents, in their cross-examination, in this regard. There is therefore corroboration to the testimony of PW. 1 regarding disposal of the said articles, after the disposal of dead body, by throwing them in bushes.
162. The presence of sand and weeds in that Van also lends assurance to the testimony of approver that after the dead body of the deceased was disposed of at Remeth hill, all of them had bath in the sea at Bambolim Beach.
163. The evidence of PW. 38-Prashant Kangralkar reveals that when accused no. 3 had come to the shop at Hotel Keni for purchase of jeans, his pant was wet. This also supports the version of PW. 1.
(xiv) Purchase of new clothes by accused no. 3 from the shop at Hotel Keni and another shop at Panaji.
164. The blue colour Jean pant, light blue colour T-shirt and a pair of "Phoenix" sports shoes which were purchased by accused no. 3 after the incident from the shop at Panaji and from sale at Hotel Keni and worn by him after throwing out the old wet clothes were duly recovered, upon the same being shown by accused no. 3. at his room. PW. 40-Sandesh Kalangutkar acted as one of the panchas for the panchanama of attachment of these clothes, which was conducted by PW. 74 - P.S.I. Rane. The panchanama is at Exh. 297. According to PW. 40, accused no. 3 took them to that room situated in the compound of Lopes and which was opened by his wife Nisha Singh. Accused no. 3 opened a cupboard and produced the blue colour T-shirt, Jean pant, light blue colour T-shirt and a pair of white colour sports shoes without laces of make Phoenix. The said clothes were duly packed and sealed. PW. 40 and PW. 74 have identified those clothes and the sports shoes. PW. 40 is a civil engineer and had no reason to depose falsely against accused no. 3. His testimony is not shaken in the cross-examination. The attachment of the said clothes is duly proved.
165. The evidence of PW. 39-Nizamuddin Muzawar proves that accused no. 3 on 17/1/2005 at around 09.45 hours purchased the light blue colour T-shirt from his shop at Panaji by paying Rs. 80/-. Accused no. 3 had carried the said T-shirt in a polythene bag given by PW. 39.
166. The evidence of PW. 38-Prashant Kangralkar proves that accused no. 3 on 17/1/2005 at about 10.30 hours had purchased the pair of Cooper Lee Jeans of blue colour of size 38 from the sale at Hotel Keni. Accused no. 3 was accompanied by another person. Accused no. 3 went into the trial room at the sale premises at Hotel Keni and changed into the pair of jeans and the T-shirt.
167. PW. 38 was a mere salesman at the shop at Hotel Keni and PW. 39 is the son of the owner of the garment shop at Panaji. They both have identified the said clothes purchased by accused no. 3. We do not see any reason to disbelieve these witnesses who had neither good nor bad relations with the accused no. 3. There is therefore due corroboration to the testimony of PW. 1 with regard to the purchase of new clothes by accused no. 3.
(xv) Statement made by accused no. 2 to PW. 75 regarding cause of injuries found on his body.
168. PW. 20-Elvin Araujo had acted as one of the panch witnesses for the panchanama of arrest of accused no. 2. This panchanama is at Exh. 225. It is pertinent to note that during the physical examination of the accused no. 2, a swelling was noticed on his left eye in respect of which the accused no. 2 made a disclosure that the said injury was suffered by him during the course of incident on 17/01/2005.
169. PW. 75-Dr. Madhu Ghodkirekar was requested by PW78-P.I. Gaonkar to examine accused nos. 2 to 4 and approver on 22/01/2005. PW. 75 accordingly examined the accused no. 2-Francis whose face was covered with towel. He took consent of the accused no. 2-Francis for his examination in the presence of Dr. Kantak. He produced the consent exhibit 600. He identified the accused no. 2 as the person who was examined in Goa Medical College on the basis of distinct identification marks. He further deposed that the accused no. 2 had a bruise of greenish colour of size 4cm. x 3cm. over the left side of temple which was caused by blunt object, simple in nature and about 5 to 6 days old. On enquiries about the nature of injury the accused no. 2-Francis disclosed that he had sustained the said injuries in a scuffle between him and doctor on 17/01/2005 at 04.15 hours. His nail clippings and scalp hair were preserved for serological examination and he was referred to blood bank GMC for blood grouping for determination of rhenous factor.
170. The question which arises for consideration is whether the statement made by the accused no. 2 to PW. 75 is hit by Sections 24 to 26 of the Evidence Act.
In the case of
171. In the present case, in the cross-examination of PW. 75, it has been brought on record by the accused no. 2 that Doctor had not cautioned the accused no. 2 prior to actual examination that any disclosure made by him could be used as evidence against him. He further deposed that he was not aware till conclusion of the examination of the accused no. 2 what had caused the bruise on the temple of the accused no. 2- Francis. He further deposed that there was no injury to left eye of the accused no. 2-Francis. He admitted that as per the history given by the accused no. 2 he was hit on left eye. The witness denied the suggestion that the history given by the accused no. 2 as recorded by witness, was not disclosed by him, but the same was disclosed by P.S.I. Dalvi-PW. 67.
172. A close scrutiny of the evidence of PW. 75 discloses that PW. 75 had absolutely no grudge against the accused no. 2- Francis to falsely state about the statement made by him. Moreover, witness had not even mentioned the name of the doctor with whom the accused no. 2 had scuffle on 17/01/2005 in early hours. Therefore, we have no hesitation to accept the testimony of PW. 75. Insofar as the admission regarding the cause of injuries made by the accused no. 2 is concerned, in view of the ratio laid down by the Apex Court in the case of Ammini (supra), the statement made by the accused no. 2 to PW. 75 has to be treated as an admission and not confession. If the statement made by the accused no. 2 was wholesale confession of the crime allegedly committed by him, the same would have been inadmissible in view of Sections 24, 25 and 26 of the Evidence Act. Therefore, in our view, the evidence of PW. 75 to the effect that the accused no. 2 made statement to him that the injuries found on his body were caused in scuffle between him and doctor in the early hours on 17/01/2005, also lends corroboration to the version of the approver.
173. From the above, it can certainly be said that the evidence of PW. 1-approver, which is otherwise reliable, has received sufficient corroboration, even on minute aspects. The double test mentioned in the case of "Sarwan Singh" (supra) has been duly satisfied. The prosecution has proved its case beyond reasonable doubt by means of the above evidence. The judgment of conviction of the accused persons, rendered by the learned trial Court, for offence punishable under Sections 302, 365, 120B and 201 of I.P.C., cannot be faulted and is proper, being based on correct appreciation of evidence on record.
174. Thus, the evidence of the approver which is corroborated on material aspects by oral and documentary evidence proves beyond reasonable doubt that all the four accused along with approver entered into conspiracy to murder Dr. Srikant Verenkar and pursuant thereto committed his murder after abducting him and caused disappearance of evidence. Hence, in our view offences punishable under Sections 365, 302, 201 read with Section 120B of I.P.C. have been made out against the accused persons.
175. Learned Sessions Judge has imposed death sentence on the accused no. 1- Ryan Fernandes for the offence punishable u/s 302 of I.P.C. No doubt, Mr A. Dessai, learned Special Public Prosecutor had made a statement that the prosecution would not insist on death sentence imposed on accused No. 1 by the learned Sessions Judge. However, the issue has to be dealt with in terms of Section 366 r/w. Sections 368 to 370 and 390 of Cr.P.C. In the case of "Kunal Majumdar Vs. State of Rajasthan" [(2012 ALL MR (Cri) 3764], the Apex court set aside the order passed by the Division Bench of Rajasthan High Court by which the death sentence imposed on the appellant for the offence punishable u/s 302 of IPC was set aside on the ground that no force of severe nature on the victim at the hands of the appellant was used and further on the ground that the learned P.P. did not oppose the statement made on behalf of the appellant. The Apex Court held that when the reference u/s 366(1) of Cr.P.C. is made, the Court has to exercise the jurisdiction vested in it u/s 366(1) read with Sections 368 to 370 and 390 of Cr.P.C. in letter and spirit and cannot shirk its responsibility while deciding the reference. Therefore, we propose to decide the issue as to whether the learned Sessions Judge was justified in imposing the death sentence on accused No. 1.
176. The following factors have weighed with the learned Sessions Judge to impose death sentence on accused no. 1 :
(i) The deceased was an innocent casualty in the strife between the accused no. 1 and his wife Sarika-PW. 54.
(ii) The act of the accused no. 1 was abhorrent, loathsome and detestful.
(iii) The death was caused without any provocation which sent shocked waves across the cross section of people in the society at large.
(iv) The accused is threat not only to the surviving members of the family of the deceased, but also to the society at large.
(v) The death of deceased not only resulted in loss of family member to his family, but to the society at large who have been deprived of the services of Doctor at all times of the day and night.
(vi) The stigma was attached to the family on account of murder of the deceased. Life imprisonment would send wrong signal to the like minded people in the society.
177. According to learned Sessions Judge, there were following mitigating circumstances :
(i) The accused no. 1 was under extreme emotion and mentally disturbed.
(ii) The age of the accused no. 1 and his status in the society.
(iii) The accused has two minor children.
178. u/s 354(3) of Cr.P.C., the Court sentencing the accused to death, is obliged to give special reasons for such sentence.
The Apex Court in the latest judgment in the case of
In the case of "Macchi Singh" (supra), in paragraph 38, the Apex Court has laid down the following guidelines while considering the possibility of awarding death sentence :
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the ''offender'' also require to be taken into consideration alongwith the circumstances of the ''crime''.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In the case of Bachan Singh (supra), the Apex Court in paragraph 206 specified the following mitigating circumstances to be considered by the Court while determining whether death sentence should be awarded.
206- Mitigating circumstances - In the exercise of its discretion in the above cases, the court shall take into account the following circumstances :
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
179. Learned Special Public Prosecutor/Senior Advocate Mr. Amit A. Dessai, as far back as on 25/07/2011, had submitted that the case of the accused no. 1 did not fall within the term ''rarest of rare'' as held by the Supreme Court in various cases and as such, the State would not press for confirmation of death sentence but would insist on conviction of the accused. The concession made by learned Senior Advocate Mr. Amit Dessai on behalf of the State, deserves to be accepted, having regard to the mitigating and aggravating circumstances mentioned herein above. In our view, learned Sessions Judge was not justified in imposing death sentence on the accused no. 1 for the offences punishable u/s 302 of I.P.C. In our view, the reasons given by learned Sessions Judge for imposing death sentence on the accused no. 1, are unsustainable in law. It is not the case of the prosecution that the accused no. 1 has criminal record. The accused no. 1 was aged about 23 at the time of commission of offence. The evidence on record clearly suggests that the accused no. 1 had strong grudge against the deceased since PW. 54-Sarika, the wife of the accused no. 1, was refusing to return to him. No doubt, the murder of the deceased was preplanned and without any provocation, but this fact by itself would not be sufficient to hold that sentence of imprisonment for life would be inadequate. Thus, upon drawing the balance-sheet of the aggravated and mitigating circumstances, in our view, death sentence imposed on the accused no. 1, deserves to be set aside by substituting the same with life imprisonment.
180. We have gone through all the other authorities cited by the learned counsel for the parties. We do not deem it necessary to refer to in detail all the said judgments since we have taken into consideration the applicable principles laid down therein.
181. In the result, we pass the following:
ORDER
(a) Confirmation Case No. 1/2007 is dismissed.
(b) Criminal Appeals No. 37/2007, 75/2007 and 76/2007 are dismissed.
(c) Criminal Appeal No. 38/2007 is partly allowed.
(d) Death sentence imposed upon accused No. 1 for offences punishable under Sections 120B and 302 of IPC is set aside.
(e) The accused No. 1 is sentenced for offences punishable under Sections 120B and 302 IPC to undergo imprisonment for life and to pay fine of Rs. 20,000/-, in default, to suffer imprisonment for a further period of two months. Fine amount, if recovered, shall be paid to PW 54-Sarika and her mother, PW. 57 Jaimini.
(f) Sentences imposed upon accused No. 1 for other offences and upon other accused persons for all the offences, are maintained.
(g) All the sentences imposed on the accused are ordered to run concurrently.
(h) All the accused are entitled to set off the period of detention in terms of Section 428 of Cr.P. Code.
(i) The order passed by learned Sessions Judge insofar as disposal of property is concerned, is maintained.
Confirmation Case No. 1 of 2007 and Criminal Appeals No. 37, 38, 75 and 76 of 2007 stand disposed of.
