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Shri Netaji Mukund Angolkar Vs. the State of Goa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 25 of 1998
Judge
Reported in2000(5)BomCR617; 2000BomCR(Cri)617; 2000(2)MhLj443
ActsIndian Penal Code (IPC), 1860 - Sections 302 and 307; Evidence Act, 1872 - Sections 9, 27, 32, 45 and 59; Code of Criminal Procedure (CrPC) , 1973 - Sections 165, 197, 214, 215, 313, 342 and 464
AppellantShri Netaji Mukund Angolkar
RespondentThe State of Goa
Appellant AdvocateP.M. Hilag and ;V.K. Narvekar, Advs.
Respondent AdvocateA.P. Lawande P.P.
Excerpt:
a) the case debated on the effect of the minor omissions in the evidence in a murder case - the husband died due to stabbing -the wife deposed as to how the husband came back within five minutes of his going out with a stab in his stomach - it was disputed that the details were missing at some places -it was held that the testimony was reliable. ; b) the case debated on the necessity of the identification parade in the case of death caused due to stabbing -it was disputed that the identification parade was not held properly - it was held that identification parade was not required under the circumstances where the witness knew the accused and had accompanied the victim outside to the house and the description of the accused was very accurately given in the first information.....orderr.m.s. khandeparkar, j.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.....
Judgment:
ORDER

R.M.S. Khandeparkar, J.

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(1)BomCR475 , Abdul Rashid Habibulla Anasari v. State of Maharashtra, reported in 1998 Bom.C.R.(Cri.) 289 : 1998 All.M.R. (Cri) 925 and Audumbar Digambar Jagdame and another v. State of Maharashtra, reported in . 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 refuting 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 : 1974CriLJ674 and Mulakh Raj and others v. Satish Kumar and others, reported in : 1992CriLJ1529 .

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.

4. 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 : AIR1999SC994 and Rajesh Bajaj v. State, N.C.T. of Delhi and another, reported in : 1999CriLJ1833 . In fact, the Apex Court in the matter of State of Rajasthan v. Tej Ram, reported in : 1999CriLJ2588 has clearly held that the over-insistence 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 Singh's case (supra) is of no help to the appellant. In the said case considering the manner of occurrence 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 occurrence 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 Ansari's 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 withthe 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 Jagdame's 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 : 1999CriLJ2577 while dealing with the matter relating to the appreciation of evidence of a witness, it was held thus:

'The evidence of the witness should be appreciated by keeping the ground reality and the fact situation in mind. It is also established law that even with regard to the interested witness, it is the duty of the Court to separate the truth from falsehood and the chaff from the grain. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects the substratum of the prosecution story. In the case of State of U.P. v. M.K. Anthony this Court pointed out that 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 found, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies drawbacks 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 and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trial matters not touching the core of the case, a hypertechnical approach in perusal of the evidence should be avoided. The Court pertinently observed: IS.C.C. pp. 514-15 para 10)

'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.'

The contention therefore, that the testimony of P.W. 2 carries no weight is to be rejected. In fact the testimony of P.W. 3 clearly establishes that the door of the house was knocked by the accused and it was the accused who called out Pundalik to accompany him outside the house and that accordingly Pundalik had gone alongwith the accused and immediately thereafter when Pundlik returned, he was found to have injury in his abdomen.

5. Lot of grievance is sought to be made of failure on the part of the prosecution to conduct identification parade. It is sought to be contended that no credence can be given to the identification of the accused by P.W. 3 for the first time in the open Court during the trial, in the absence of any evidence on record about the occasion for P.W. 3 to see the accused prior to the date of incident. According to the learned Advocate for the appellant, no value can be attached to the alleged identification of the accused in the Court by P.W. 3. On account of lack of proper identification of the accused the entire case against the accused has to fail and therefore the learned Sessions Judge ought to have acquitted the appellant. The contention is countered by P.P. by submitting that P.W. 3 in her F.I.R. had clearly disclosed the identity of the accused by giving his name. The evidence disclosed that P.W. 3 was present at the time the accused knocked the door of the house and when Pundalik went out alongwith the accused. According to the learned P.P. the need of identification parade would have arisen if the witness had failed to identify the accused. In the facts and circumstances of the case, there was no need for investigation machinery to hold any identification parade. The fact that P.W. 3 was very much present in the house when Pundalik was called out and thereafter had accompanied the accused, has been clearly established by the testimony of P.W. 3. P.W. 3 has also specifically denied the suggestion put to her that the accused had not come to their house at any time prior to the incident. As rightly submitted by learned P.P. the F.I.R. lodged on the very day of the incident clearly disclosed the identity of the accused with the name and his profession. It also disclosed that the accused was staying in the same house where the witness P.W. 3 and her husband were staying. The fact that the accused was also staying in the same house prior to the incident which was then occupied by Pundalik and his wife has been proved also by the testimony of P.W. 12 Amjad Laskharwadi. Since the description of the accused was given with necessary details and the evidence on record discloses that the witness had ample opportunity to see the accused even prior to the date of incident, no fault can be found with the prosecution or investigation machinery for not having conducted the identification parade of the accused. The reliance placed by learned Advocate in this regard in the matter of Abdul Rashid Habibulla Ansari's case (supra) is of no help. As already seen above that was a case where the witness had neither mentioned the name of the accused in the F.I.R. nor had explained as to how he could become familiar with the face of the accused and in those circumstances it was held that the identification for the first time in the Court could not be relied upon. The facts of the said case in which the Court refused to place reliance upon theidentification of the accused in the open Court were totally different from those of the case in hand. In this regard, learned P.P is justified in placing reliance upon the decision in the matter of Sampat Tatyada Shinde's case (supra). In the said case, the Apex Court has held that the evidence of test identification can be used only to corroborate the substantive evidence given by the witnesses in the Court regarding identification of the accused as the doer of criminal act. The earlier identification made by the witness at the test identification parade, by itself has no independent value. Nor is the test identification the only type of evidence that can be tendered to confirm the evidence of the witness regarding identification of the accused in the Court as perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also. The decision in the matter of Audumbar Digambar's case (supra) is also of no assistance to the appellant as that was a case where the witness did not know the accused prior to the date of incident. In the case in hand, the evidence on record discloses that P.W. 3 knew the accused prior to the date of incident. That apart the oral dying declaration of the deceased Pundalik to P.W. 3 immediately after the incident clearly disclosed the identity of the accused. The testimony of P.W. 3 discloses that when Pundalik opened the door after being knocked at by the accused, Pundalik identified the accused as being Netaji. Again immediately on returning after obliging the accused by accompanying him outside the house, Pundalik complained to P.W. 3 that Netaji had stabbed him. The testimony of P.W. 2 also discloses that he had seen the accused on the day of the incident at about 7.30 p.m. near the cattle shed which is in the vicinity of the house which was occupied by Saraswati and deceased Pundalik at the relevant time. Being so, the identity of the accused has been clearly established.

6. The discovery of the weapon used in the offence is then sought to be ravaged on the ground that it does not satisfy the requirement of law. It is contended that it is a totally concocted piece of evidence. It is the contention of the appellant that the alleged discovery was made a month or so after the date of incident and that in an open shed situated in the neighbourhood. It was further submitted by the learned Advocate for the appellant that the discovery panchanama does not contain the signature of the accused therefore in terms of the decision of the Apex Court in the matter of Jaskaran Singh's case (supra) no credence can be given to such evidence regarding alleged discovery. At the outset, it must be stated that the decision in the matter of Jaskaran Singh (supra) is of no help to the appellant. In the said case, the Apex Court, in the facts and circumstances of the case where neither the pancha witness to the recovery panchanama was examined nor was any other evidence produced about the recovery and therefore, had refused to place any reliance upon the alleged disclosure statement and the recovery of the weapon used by the offender in the absence of even signature of the accused on the panchanama. In this regard one can advantageously refer to the decision in State of Himachal Pradesh v. Jeet Singh, reported in : 1999CriLJ2025 . The law regarding discovery as laid down therein is thus :

'There is nothing in section 27 which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is 'open or accessible to others'. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves tying on public places or kept hidden in a public office, the article would remain out of visibility of other in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others..... It is now well settled that the discovery of fact referred to section 27 is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. Pulukuri Kottaya v. Emperor A.I.R. 1947 P.C. 67.'

The said ratio has received unreserved approval of the Apex Court in successive decisions in the matter of Jaffar Hussain Dastagir v. State of Maharashtra, : 1970CriLJ1659 , K. Chinnaswamy Reddy v. State of Andhra Pradesh, : [1963]3SCR412 , Earabhadrappa v. State of Karnataka, , Shamshul Kanwar v. State of Uttar Pradesh, : [1995]3SCR1197 , State of Rajasthan v. Bhup Singh, : [1997]1SCR190 . The evidence regarding discovery which is disclosed from the testimony of P.W. 18 clearly establish that the accused had stated to the police in front of panchas that he would show the knife and accordingly he had led the police party with panchas to Shantinagar, Ponda towards the house of Kushali P.W. 2 and in the presence of the panchas had removed the knife which was hidden in the cattle shed. The knife was found kept in a polythene bag which was removed by the accused himself before handing over the knife to the police. The evidence on record clearly established that the knife had blood marks. This evidence sufficiently establish that the knife was recovered at the instance of the appellant and it is also undisputed fact that the knife had human blood marks on it. Therefore the contention that the prosecution has not been able to prove the discovery is to be rejected.

7. The appellant then complains of defect in framing of charge. The contention of the appellant in that regard is that the charge did not disclose the manner of the commission of offence. Heavy reliance is sought to be placed in that regard on the decision in the matter of State of Goa v. Digambar (supra). Moreover, the said decision also does not help the appellant as the same was given in a peculiar set of facts of the said case. That apart, there can be no quarrel about the proposition that the framing of charge is not a mere formality and the charge should be properly framed, since improper framing of charge may result in prejudice to the accused, necessary precaution should be taken while framing the charge. However, in this regard it is worth referring to the decision of the Apex Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh, reported in : 1956CriLJ291 . It was held therein.

'that the Criminal Procedure Code is a Code of procedure and, like ail procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well-understood lines that accord with our notions of natural justice.

If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the caseagainst him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there is 'substantial' compliance with the outward forms of the law, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.

Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice .....the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question in such cases is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice. ..... Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves, as for example a refusal to allow him to defend himself, a refusal to explain the nature of a charge to him and so forth.

These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.

Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused, ... The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. ... the Code has carefully classified certain kinds of errorand expressly indicates how they are to be dealt with. In every such case the Court is bound to give effect to the express commands of the legislature; there is no scope for further speculation. The only class of case in which the courts are free to reach a decision is that for which no express provision is made. ... that the object of the charge is not to introduce aprovision that goes to the root of jurisdiction as, for example, the requirement of previous sanction under section 197, but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. ... when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded asmaterial unless two conditions are fulfilled both of which are matters of fact: (1) the accused has 'in fact' been misled by it 'and' (2) it has occasioned a failure of justice; ... we have a case in which the error is not observed andcorrected during the trial and the accused is convicted. In such a case, the High Court is empowered to direct a 'retrial only' if in its opinion, the accused was 'misled in his defence' (section 232). It is to be observed that this is so whether there was a total absence of a charge or merely an error in it. It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore, defects even of this nature are not regarded as fatal.'

8. In fact section 464 provides that no finding, sentence or order by the Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. It is therefore necessary to see if any defect in the framing of charge has resulted in failure of justice to the accused. Undisputedly, the accused has defended the case with specific defence knowing well the case which he was required to meet. The accused did not make any grievance about the charge framed against him either at the stage of trial or in 313 statement. The case of the prosecution that Pundalik was fatally injured with the help of the knife by the accused causing his death was fully known to the accused and accordingly he has defended the case. The charge framed was neither vague nor misleading in any manner and the appellant has not been able to point out any prejudice having been caused or suffered from any of the errors in the charge as framed and therefore, the complaint about defective charge is devoid of substance.

9. It was then argued that the learned Sessions Judge did not afford proper opportunity to the accused to explain about all the incriminating materials found on record against him and therefore on account of non-compliance of section 313 of Cr.P.C., the proceedings stand vitiated. It cannot be disputed that the attention of the accused should be drawn to every inculpatory material while the accused is examined under section 313 Cr.P.C. so as to enable him to explain the same. However the omission in that regard by itself cannot vitiate the proceedings. Prejudice, if any, occasioned from the said omission is to be established from the records. It is pertinent to note that the appellant had not taken any ground regarding defect or omission in recording of the statement under section 313 Cr.P.C. in the memo of appeal. The learned Advocate also could not point out any prejudice having being caused to the appellant on account of any omission or defect, if any, in recording of 313 statement. In this regard we are reminded of the observation by Justice Krishna Iyer in Shivaji Sahabrao Bobade and another v. State of Maharashtra, reported in : 1973CriLJ1783 which reads thus:

'It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occured it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Courtmust ordinarily eschew such material from consideration. It is also open to the Appellate Court to call upon the Counsel for the accused to show what explanation the accused has as regard the circumstances established against him but not put to him and if the accused is unable to offer the Appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occured as regards compliance with section 342 Cr.P.C., the omission has not been shown to have caused prejudice to the accused.'

In the said case the evidence regarding the analyst report of blood stained clothes was not brought to the notice of the accused during his examination. However, the High Court had relied upon the same. In that regard it was observed in the said decision as under:

'In the present case, however, the High Court, though not the trial Court, has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was 'I do not know'. Counsel for the appellants could not make out any intelligent explanation and the 'blood' testimony takes the crime closer to the accused.'

In the case in hand, also the learned Advocate for the appellant was repeatedly asked to point out the prejudice, if any, had caused to the appellant on account of any defect or omission in recording the statement under section 313 Cr.P.C. However, the learned Advocate was unable to point out any such prejudice. The learned Advocate was also asked as to what could have been the explanation to the evidence regarding C.A. report by the accused, however the learned Advocate could not give any explanation in that regard.

10. The appellant then lamented for his conviction in the absence of proof of motive for the crime. Moreover the evidence discloses the enemity between the accused and the deceased Pundalik on account of illicit relationship between the wife of the accused and the deceased. That apart, in the matter of absence of proof of motive, suffice to refer to the following observation by the Apex Court in the case of State of Himachal Pradesh, v. Jeet Singh (supra):

'No doubt it is sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.'

In this context, it is also necessary to refer to the observations of the Apex Court in the matter of Nathuni Yadav v. State of Bihar, reported in : AIR1997SC1808 :

'Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg. v. Palmer (Shorthand Report at page 308 (sic). C.C.C. May 1856) thus: 'But if there be any motive which can be assigned I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of Criminal Courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.' Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. In Atley v. State of U.P., : 1955CriLJ1653 it was held 'that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty but absence of clear proof of motive, does not necessarily lead to the contrary conclusion.' In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution.'

11. The last arrow from the archery of the appellant's arguments is the absence of link between the offence of which the appellant is accused of and the appellant himself. In this regard, however, the evidence on record clearly establishes the said link. The oral dying declaration by the deceased Pundalik to Saraswati, the injured condition in which the deceased Pundalik was taken to the hospital, the fact that death was homicidal, recover of knife with blood stains at the instance of the accused, identification of the accused by P.W. 3 and P. W. 2, the deceased having found in the company of the accused just prior to the assault, the presence of the accused at the site at the relevant time, being full established by the testimony of P.W. 2 and P.W. 3, the motive for the crime being also proved and the defence of the accused that the deceased had suffered injuries on account of fall on glass pieces which is proved to be totally improbable in the circumstance of the case, considering all these, the evidence on record considered in totality establishes the guilt of the accused beyond reasonable doubt. The testimony of P.W. 3 discloses that the deceased Pundalik had complained to the witness of stabbing by the accused. The testimony of P.W. 3 and that of P.W. 2 disclose that Pundalik on return to the house, after having gone with the accused, was found holding his hand on the abdomen on account of fatal injury suffered from stabbing. The testimony of P.W. 8 read with the inquest panchanama discloses that deceased Pundalik had suffered injury on his left side of the abdomen and there was a tear below the pocket of his shirt. The tear on the shirt of the deceased Pundalik was 4 cms. horizontally and had blood marks around it. The testimony of P.W. 5, Dr. Vikas Koelkar discloses that there was an incised wound on the abdomen of the deceased Pundalik. The P.W. 7 Dr. E.J. Rodrigues who had conducted the post mortem on the deceased body has stated in his testimony that:

'There was a single incised penetrating wound of 1.9 cms. x 0.6 cms. placed horizontally below left postal margin in upper part of left side of abdomen situated 119 cms. above left heel 6 cms. from mid line and 5 cms. below xiphi sternul. The wound has made cut in the skin subcutaneous tissue and left side abdominal muscles to a depth of 2.5 cms. has cut the peritoneal and has entered left side abdominal cavity made in horizontal through and through cut in the pyloric entrain part of the stomach on its anterior and posterior surface by making a cut of 1.8 cms. and 1.7 cms. respectively. It then made through and through cut in the transverse column at the duadonal genulal junction of 1.7 cms. and finally ended by making the horizontal cut in the inferior venacava at duadonal junction level of 1.5 cms. on its anterior aspect with extensive extravagation of blood all round with plenty of blood clot. The direction of wound is from left to right backwards and medially. The total depth is 14 cms. at the time of post mortem examination on the post mortem table. The peritoneal cavity contains 2.5 litres of fluid blood and plenty of blood clot. The above injury was caused due to pointed penetrating cutting weapon and is ante mortem in nature.'

The doctor has clearly opined that 'the death was due to hemorrhage and shock, vide injury to the abdomen consequent to pointed penetrating cutting weapon sufficient to cause death in ordinary course of nature.' The doctor has clearly stated that such an injury could not have been caused if the deceased Pundalik had fallen on sharp glass pieces or bottles. The evidence on the whole therefore, clearly discloses the necessary chain of events which establish the guilt of the accused beyond reasonable doubts.

12. Before we conclude, we are reminded of the following words of Justice Krishna Iyer in Shivaji Sahabrao Bobade's case (supra) :

'Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expenses of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs throw' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand forharsher legal presumptions against indicted 'person' and more severe punishment of those ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.....' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India, the law has been laid down on these lines long ago.'

13. In the result, the appeal fails and the same is hereby dismissed.

14. Appeal dismissed.


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