NETAJI MUKUND ANGOLKAR Vs. STATE OF GOA

JUDGEMENT

(1.) ON 28th July, 1997, around 8. 00 p. m. when Pundalik and his wife Saraswati P. W. 3 were having their evening tea in the house which they were occupying on lease since about two months prior to the said day, there was a knock at the door. Pundalik opened the same. It was the appellant/accused who called Pundalik to accompany him for couple of steps outside the house. Pundalik left the house alongwith the accused, but returned within five minutes complaining that the accused had stabbed him and P. W. 3 should close the door quickly otherwise the accused would come again to stab him. Saraswati then shouted for help and the landlord P. W. 2 immediately rushed to the spot and took Pundalik to the hospital but with no fruitful result and Pundalik succumbed to his injury. The F. I. R. was lodged. Investigation followed. The appellant being accused of murder of Pundalik was arrested on 23-8-98. The learned Additional Sessions Judge by the impugned judgment and order held the accused to be guilty of murder of Pundalik and therefore sentenced him to undergo imprisonment for life and to pay fine of Rs. 10,000/- and in default to undergo six months simple imprisonment.

(2.) THE conviction of the appellant is sought to be challenged on various grounds. The contention of the appellant is that the learned Additional Sessions Judge did not appreciate the evidence on record in proper perspective and wrongly convicted him only on the sole testimony of P. W. 3, widow of the deceased Pundalik inspite of the fact that the testimony of P. W. 3 is totally untrustworthy. According to the appellant, considering the conduct of P. W. 3 disclosed from her testimony, and she being an interested witness, no credibility ought to be given to her testimony. There was no identification parade of the accused held which was otherwise absolutely necessary in view of the fact that P. W. 3 has identified the accused for the first time only in the open Court and earlier to that she had no occasion to see him. The alleged discovery of the weapon used in the offence has not been established as required under the provisions of law. The charge was not framed as was required to be framed under the law and the defective charge has resulted in great prejudice to the accused. No explanation was sought regarding C. A. report while the accused was being examined under section 313 of the Criminal Procedure Code. The prosecution has not established any motive for the crime. On the whole the evidence does not establish the link between the accused and the alleged offence. Reliance was sought to be placed in support of the submission by learned Advocate for the appellant in the decision of (State of Goa v. Digambar s/o Sahadev Bhisaji and others), reported in 1997 All. M. R. (Cri) 634, (Jaskaran Singh v. State of Punjab), reported in 1997 S. C. C. (Cri) 651, (Meharaj Singh v. State of U. P.), reported in 1994 S. C. C. (Cri) 1390, (The State of Maharashtra v. Balram @ Nam Amarsingh Talwar), reported in 1997 All. M. R. (Cri) 327, (Abdul Rashid Habibulla Anasari v. State of Maharashtra), reported in 1998 All. M. R. (Cri) 925 and (Audumbar Digambar Jagdame and another v. State of Maharashtra), reported in 1999 Cri. L. J. 1936. On the otherhand, all the contentions on behalf of the appellant are sought to be vehemently refuted by the learned Public Prosecutor Shri A. P. Lawande by submitting that the prosecution has clearly established the guilt of the accused and the learned Sessions Judge after detail analysis of the materials on the record has convicted the accused. Taking us through the evidence on record the learned P. P. has sought to make good his contentions by refutting each and every point which was canvassed on behalf of the appellant. The learned P. P. has also sought to rely upon the judgment in the matter of (Sampat Tatyada Shinde v. State of Maharashtra), reported in A. I. R. 1974 S. C. 791 and (Mulakh Raj and others v. Satish Kumar and others), reported in 1992 (3) S. C. C. 43.

(3.) UPON hearing the learned Advocate for the appellant and learned P. P Shri Lawande and on perusal of the records, it is seen that the learned Sessions Judge on detailed analysis of the materials on record has arrived at a finding that the deceased was last seen in the company of the accused, the oral dying declaration to his wife, disclosing stabbing by the accused and the medical evidence establishes that the knife recovered at the instance of the accused could have caused the said injury to the deceased. Learned Sessions Judge has also held that the evidence on record clearly establishes the motive behind the crime and the same was illicit relationship of Pundalik with the wife of the accused/appellant and resultant enemity between the accused and the deceased Pundalik. . The credibility of the testimony of Saraswati P. W. 3 is sought to be impeached by contending that she is an interested witness being the widow of the deceased Pundalik and that her testimony is not corroborated by other witnesses and her conduct does not disclose a normal behaviour of the wife towards fatally injured husband. According to the appellant, the statement of P. W. 3 that nobody told her about the death of her husband and that she came to know about the same at Belgaum is sufficient to cast doubt about her presence at the spot at the time of the incident. However, as rightly submitted by learned P. P. the evidence on record clearly establishes the presence of P. W. 3 in the house at the time of the incident. The testimony of Khushali P. W. 2 landlord discloses that at about 7. 45 to 8. 00 p. m. the wife of Pundalik i. e. P. W. 3 gave him a call and when he went to the house in their occupation he found that Pundalik was holding his hands on his abdomen and P. W. 3 told him that Pundalik was stabbed by a pen knife. The charge of assault relates to the timing of 8. 00 p. m. on 28-7-1997. This clearly shows the presence of P. W. 3 in the house, is not spoken by herself alone but is corroborated by Khushali P. W. 2. It is also established that P. W. 2 is the landlord in respect of the premises wherein Pundalik and Saraswati were residing at the relevant time. The evidence discloses that P. W. 2 carried Pundalik to the hospital on the said occasion. Being so, there is absolutely no scope to raise doubt about the presence of P. W. 3 in the house at the relevant time and day. Merely because Saraswati happens to be the widow of Pundalik that itself cannot be sufficient to accuse her being interested in inflicting punishment upon the accused or to say that she had deposed with any bias mind. Time and again this Court and the Apex Court have held that mere relationship of the witness with the deceased can be no ground to discard the testimony of the witness. A relation of the deceased cannot be presumed to try to implicate any innocent person in the case of murder of the victim. The judicial pronouncement in that regard is very clear by the Apex Court in the matter of (Rachamreddi Cheena Reddy and others v. State of Andhra Pradesh), reported in 1999 (3) S. C. C. 97 and (Rajesh Bajaj v. State, N. C. T. of Delhi and another), reported in 1999 (3) S. C. C. 259. In fact, the Apex Court in the matter of (State of Rajasthan v. Tej Ram), reported in 1999 (3) S. C. C. 507 has clearly held that the over-insistance for witness having no relation with the victim often results in criminal justice going awry and it is unpragmatic to ignore natural witness and insist on outsiders who would not have even seen anything. The prosecution can be expected to examine only those witnesses who had witnessed the events and not those who have not seen the same, though there may be hundreds of people residing in the neighbourhood. Besides, in the matter of The State of Maharashtra v. Balram @ Nam Amarsingh Talwar (supra) this Court has held that the testimony of any witness is to be accepted not merely because the witness is independent witness but when it is found to be cogent, truthful, reliable and in consonance with the probabilities. In this regard the judgment of the Apex Court in the matter of Meharaj Singhs case (supra) is of no help to the appellant. In the said case considering the manner of occurrance of the incident as narrated by the widow of the deceased and the absence of blood stains on the clothes of the widow as well as at the place of occurrance of incident, the claim of the widow to be present with her deceased husband at the time of the incident was not believed by the Apex Court. In the facts and circumstances and taking into consideration the medical evidence, delay in lodging F. I. R. and failure of the prosecution to examine eye witnesses, the Apex Court held that the charge was not proved beyond doubt and therefore the accused was entitled for benefit of doubt. So also, the decision in the case of Abdul Rashid Habibulla Ansaris case (supra) was delivered in a totally different set of facts. It was held that when the eye witness does not mention the name of the accused in F. I. R. nor he explains as to how he could become familiar with the face of the accused and the evidence on record disclosed that the witness did not know the accused prior to the incident, it was not safe to rely upon the identification of the accused first time in the Court by such witness in the absence of identification parade having been conducted. In Audumbar Digambar Jagdames case (supra) undisputedly the witness did not know the accused previously and was a stranger to the accused, besides no identification parade was held and in that context the identification of the accused for the first time in the open Court was disbelieved. The testimony of P. W. 2 discloses that Pundalik and Saraswati P. W. 3 were staying in the said house for about two months prior to the date of incident. The manner in which P. W. 3 has deposed clearly discloses that she has narrated the incident as was witnessed by her. The testimony does not disclose any exaggeration or any false statement. The witness has not ventured to narrate any cooked up story and has restricted her testimony to the facts which she had actually witnessed. It would be clear injustice, to the witness to pick up few sentences from here and there from her testimony and to draw fanciful inferences with the sole aim to discredit her testimony. The submission that she has stated in her testimony that she came to know about the death of her husband at Belgaum is to misreading of her testimony. What she has stated is that she came to know about the death of her husband when she went to Belgaum. The evidence on record discloses that the body of the deceased was carried for its cremation to Belgaum from the hospital and naturally Saraswati must have proceeded to Belgaum either prior to the body being carried to Belgaum or immediately thereafter, but certainly she did not accompany the body. The evidence also discloses that the body was taken by the brother of the deceased. It is quite natural that the widow might not have been informed about the death of her husband while in Goa and might have been informed about the sad news in the presence of the relations in Belgaum. We do not find anything unusual in her conduct. It is to be noted that she had a small child at the relevant time and therefore certainly could not have accompanied her husband to the hospital leaving the child alone in the house. In a recent case decided by the Apex Court in the matter of (State of Haryana v. Tek Singh and others), reported in 1999 (4) S. C. C. 682 while dealing with the matter relating to the appreciation of evidence of a witness, it was held thus: