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2019 Supreme(Bom) 1674
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
M.S. SONAK, NUTAN D. SARDESSAI, JJ.
Cyrone Rodrigues, Presently Lodged At Central Jail, Colvale — Appellant
Versus
State Of Goa — Respondent
Criminal Appeal No. 35 of 2017, 1 of 2018
Decided on : 11-09-2019
Advocate Appeared:
Ryan Menezes, Adv., S.R. Rivankar, Adv., Suzette Pereira, Adv.
Headnote:
Indian Penal Code - Section 302 - Undergo rigorous imprisonment - No cogent and credible evidence – Offence of murder - Learned Counsel for the parties state that the two Appeals may, in the aforesaid circumstances, be disposed of by a common Judgment and Order, particularly since the challenge in both the Appeals is to the common Judgment and Order dated 6th October, 2016 made by the learned Additional Sessions Judge - Learned Counsel for the Appellant in Criminal Appeal No.35/2017 (Cyrone Rodrigues), has submitted at the very outset, that the Prosecution has failed to establish any link between the two Appellants inter se or between the Appellants and other accused persons, so as to bring home the charge of conspiracy under Section 120- B of the IPC, is improper and warrants interference – Held, In Permananda Pegu vs. State of Assam, (2004) 7 SCC 779, Honble Supremo Coiuert has held that in order to be assured of the truth of confession, the Honble Apex Court has, in series of decisions, evolved a rule of prudence that Court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particulars. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence, in substance the Court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true - There is corroboration regards the circumstance that the appellants and others staying at Prabhu Smaran guest house; about the hiring of cars; about picking up the victim at the bus stop near Lupin factory; medical evidence about smothering and strangulation of the victim; about disposal of articles belonging to the victim and about the flight to Mumbai after the commission of the crime. According to us, this corroboration constitutes sufficient corroboration of material particulars, rendering it quite safe to even rely upon the belatedly retracted confessions of the two appellants. The confessions, taken as a whole fit into the facts proved by other evidence on record. Therefore, we are satisfied that the double test formulated in Shankaria (supra) stands fulfilled in the present case. Besides, this is not a case were we are sustaining the conviction only on the basis of the confessions. In fact, we are relying upon the confessions merely to fortify our conclusion, based upon, other evidence on record. The learned Addl. Sessions Judge was, accordingly, quite justified in relying upon the confessions to buttress the other evidence on record and to convict the appellants – Appeal dismissed
JUDGMENT :
M.S. Sonak, J.
Both these appeals are directed against the Judgment and Order dated 6th October, 2016, made by the learned Additional Sessions Judge, Mapusa in Sessions Case no.11/2010, convicting the Appellants for offences punishable under Sections 365, 394, 302 and 201, read with 120-B of the Indian Penal Code (IPC), and sentencing to undergo rigorous imprisonment for various terms in respect of offences other than offence under Section 302 of IPC. In respect of offence under Section 302 of IPC, the Appellants were directed to undergo rigorous imprisonment for life and pay fine of Rs.10,000/- each or in default, to undergo rigorous imprisonment for 3 years.
2. The two Appellants, along with one Grishmi Talwar and one juvenile offender, are alleged to have conspired and committed murder of one Malti Yadav on 12.10.200 at around 6.30 p.m. These persons were also alleged to have abducted and wrongfully confined the said Malti Yadav and voluntarily caused her hurt, in order to rob her. These persons were alleged to have entered conspiracy for the purposes of commission of such offence.
3. Accordingly, necessary charge was framed against the Appellants and said Grishmi Talwar. We were informed that independent proceedings are pending against the juvenile offender and, therefore, in these Appeals, we are not concerned with the said proceedings.
4. The Prosecution, in all examined 60 witnesses in support of the charge. The Appellants were questioned under Section 313 of the Code of Criminal Procedure (CrPC). But they chose to lead no defence evidence in the matter. By the impugned Judgment and Order dated 6.10.2016, the learned Additional Sessions Judge, Mapusa, as aforesaid, has convicted and sentenced the Appellants. Hence, the present Appeals.
5. The learned Counsel for the parties state that the two Appeals may, in the aforesaid circumstances, be disposed of by a common Judgment and Order, particularly since the challenge in both the Appeals is to the common Judgment and Order dated 6th October, 2016 made by the learned Additional Sessions Judge, Mapusa.
6. Mr. Ryan Menezes, learned Counsel for the Appellant in Criminal Appeal No.35/2017 (Cyrone Rodrigues), has submitted at the very outset, that the Prosecution has failed to establish any link between the two Appellants inter se or between the Appellants and other accused persons, so as to bring home the charge of conspiracy under Section 120- B of the IPC, is improper and warrants interference.
7. Mr. Menezes submits that there is no cogent and credible evidence on record to establish the conviction of the Appellants on the basis of any circumstantial evidence. He submits that the well settled principles in relation to evaluation of circumstantial evidence have not been applied by the learned Additional Sessions Judge. He relied upon several decisions in relation to the scope of evaluation of the circumstantial evidence. Reference shall be made to some of the Judgments in the course of this Judgment and Order.
8. Mr. Menezes submits that the circumstances relied upon by the Prosecution do not unerringly point out to the guilt of the Appellants. In any case, Mr. Menezes submits that the circumstances have not at all been proved beyond reasonable doubt by the Prosecution. On these grounds, Mr. Menezes submits that the conviction recorded against the Appellants warrants interference.
9. Mr. Menezes submits that there is no cogent and credible evidence that the Appellants and other accused persons stayed together art Bicholim, Goa between the period from 7.10.2009 and 13.10.2009. He submits that there are discrepancies in the attachment of the hotel register. He submits that PW.21, who is the star witness of the Prosecution cannot be believed, particularly because this witness stated that the Appellant and two others left in two cars i.e. white Zen Car and Red Alto car on 13th October, 2009, after checking out from the hotel. However, from the testimony of PW.32, it is the case
