SUBHASH SAMAL Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant herein challenges his conviction under Section 302 I.P.C. by the Judgment and Order dated 22nd September, 2006 passed by the Sessions Judge, Panaji in Sessions Case No.18 of 2004. THE impugned Judgment and Order sentences him to suffer life imprisonment and pay fine of Rs.5000/-.

(2.) BRIEFLY stated the prosecution case is that deceased Anthony was the second husband of Shradha, original accused no.1 since discharged. Both used to reside together along with PW5 and PW6, the sons of Shradha from her first marriage. The appellant Subhash was an acquaintance of Anthony who, some times, used to stay with the family by paying charges. Anthony was a drunkard and had a violent temper. He used to abuse and assault Shradha and the children. He also used to damage the articles in the house. On the date of the incident i.e. 24th December, 2003, Anthony, Shradha, the children and Subhash went for picnic to Candolim beach. Anthony had been taking drinks even before everybody started for the beach. At the beach also he consumed drinks and fell asleep. Shradha along with PW5 and PW6 left Anthony and Subhash for going to another beach. As the three reached the road, PW5 returned to the place where Anthony was sleeping because he had forgotten his slippers there. He saw that Subhash was trying to wake up Anthony. Anthony got angry because of that and slapped Subhash who then removed a knife and cut the throat of Anthony. Thereafter, Anthony ran away. PW5 called Shradha and PW6 to the spot but thereafter all the three ran away from the place thinking that they would be blamed for the murder. Then everybody including Subhash went by a Maruti car to Panaji. From there, Shradha went to her house and Subhash went to the house of her brother at Ponda. PW21 found the body of Anthony on the beach and informed his employers PW15 and PW16, who in turn informed the police. The police then moved into action and took the usual steps in investigation. On the next day i.e. on 25th December, 2003, Shradha was arrested from her residence. On the very day, the appellant came to be arrested from the house of the brother of Shradha. After drawing arrest panchanama, the blood stained clothes on the person of the appellant were attached along with other articles. He was sent for medical examination. On 29th December, 2003 while he was in custody, the appellant made a statement that he would show the place where the weapon of offence i.e. the knife was left by him. The knife was discovered partly buried in the sand at Candolim beach. On completing the discovery panchanama, the police attached the blood stained knife(Exh.M). The test identification parade in respect of the appellant, was held by PW9 on 23rd February, 2004 in which PW16 and PW17 identified the appellant. On 8th January, 2004 statement of PW5 under Section 164 Cr.P.C. was recorded by PW13, the Judicial Magistrate First Class. On completion of investigation the police filed charge-sheet against the appellant. He pleaded not guilty to the charge. His defence as disclosed in the cross-examination of the witnesses and his statement under Section 313 Cr.P.C. is of total denial. He has denied his presence at the place of the incident. He has also denied that he was arrested from the residence of the brother of Shradha, with blood stained clothes on his person.

(3.) MS. C. Collasso, learned Counsel for the appellant attacks the impugned Judgment and Order submitting that there have been several lapses on the part of the trial Court in conducting the trial as well as appreciation of the evidence of the witnesses. She points out that the evidence of identification of knife by PW5 and the existence of blood stains thereon was not put to the appellant during his statement under Section 313 Cr.P.C. She submits that there is substantial gap between the statement of PW5 under Section 161 Cr.P.C. and his statement under Section 164 Cr.P.C. The statement of PW5 under Section 16 was recorded on 28th December, 2003 and his statement under Section 164 Cr.P.C. on 8th January, 2004. According to her since PW5 had turned hostile, the learned Sessions Judge ought to have been extremely slow in relying upon his evidence. MS. Collasso submits that the age of PW5 recorded as 13 years at the time of deposition cannot be correct. It is undisputed position that PW5 is younger than PW6 and the age of PW6 given at the time of deposition is 12 years. Therefore, PW5 could not have been of 13 years.