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IN THE HIGH COURT OF BOMBAY AT GOA BENCH
M.S. Sonak, M.S. Jawalkar, JJ.
Pradeep Horo - Appellant
Versus
Police Inspector, Margao Police Station, Margao, Goa - Respondent
Criminal Appeal No. 1 of 2020, 25 of 2020, 26 of 2020
Decided On : 31-08-2020
Criminal Appeal - Conviction under Sections 302 and 201 r/w Section 34 of IPC - [Sections 302, 201, 34 IPC] - The judgment discusses the principles for evaluation of circumstantial evidence, identification of dead body, recoveries, last seen theory, and statements under Section 313 of Cr.P.C. The court emphasizes the need for conclusive evidence and reasonable doubt in establishing guilt based on circumstantial evidence. It also highlights the limitations of last seen theory and the evidentiary value of Section 313 statements.
Fact of the Case:
The accused were convicted under Sections 302 and 201 r/w Section 34 of IPC based on circumstantial evidence. The prosecution relied on the last seen theory, recoveries, and statements under Section 313 of Cr.P.C. to establish guilt.
Finding of the Court:
The court found that the prosecution failed to conclusively prove the circumstances and establish guilt beyond reasonable doubt. It highlighted deficiencies in the evidence related to identification of the dead body, recoveries, last seen theory, and statements under Section 313 of Cr.P.C.
Issues: The issues revolved around the evaluation of circumstantial evidence, identification of dead body, recoveries, last seen theory, and the evidentiary value of Section 313 statements.
Ratio Decidendi: The court emphasized the need for conclusive evidence and reasonable doubt in establishing guilt based on circumstantial evidence. It also highlighted the limitations of last seen theory and the evidentiary value of Section 313 statements.
Final Decision: The court set aside the impugned judgment and order and acquitted the accused persons of the charges. The accused persons were ordered to be set at liberty forthwith.
JUDGMENT
M. S. Sonak, J. - These three appeals are against the common Judgment and Order dated 19.09.2019 made by the learned Sessions Judge, South Goa at Margao in Sessions Case (302) No.6/2018 convicting the appellants under Sections 302 and 201 r/w Section 34 of the Indian Penal Code (IPC) and sentencing them to undergo life imprisonment, apart from fine. Learned counsel for the parties agree that since, the challenge in these three appeals is to the common Judgment and Order dated 19.09.2019, it is only appropriate that the same are disposed of by a common judgment and order.
2. Criminal Appeal No.1 of 2020 has been instituted by Pradeep Horo (A1) and Safar Khan (A2) and these appellants are represented by Advocate Arun B. D'Sa.
3. Criminal Appeals Nos.25 of 2020 and 26 of 2020 are instituted by Ettandevi alias Ashadevi Gope (A4) and her husband Mangra Gope (A3). These appellants are represented by Advocate Anoop Gaonkar, who was appointed under the Legal Aid Scheme. There was some delay in institution of these appeals. The condonation was not objected to and such delay is therefore condoned.
4. The State, in all these appeals, is represented by the Additional Public Prosecutor Mr. Pravin Faldessai.
5. A common charge was framed against all the accused persons on 24.05.2018 and the same reads as follows:
| " |
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CHARGE (Sections 211, 212, 213 Cr.P.C.) |
| I, Shri Edgar P. Fernandes, Addl. Sessions Judge-1, South Goa, Margao, hereby charge you, (1) Pradeep Horo; (2) Safar Khan; (3) Mangra Gope and (4) Ettandevi Gope alias Asha Devi as under:- |
| That on 12.12.2017, at about 14.00 hrs. at Pedda, Varca, in the room of the accused no.3 Mangra Gope, you, with your common intention, committed murder by intentionally or knowingly causing the death of Shri Samuel Soren alias Rahul, and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within my cognizance. |
| That on the aforesaid date, time and place, you, with your common intention, knowing that the offence of murder punishable with death or imprisonment for life having been committed did cause the evidence of the said offence to disappear by burying the dead body and throwing away the weapon of assault with the intention of screening yourselves from legal punishment and thereby committed an offence punishable under Section 201 read with Section 34 of the Indian Penal Code and within the cognizance of this Court. |
| And I hereby direct that you be tried by this Court on the said charge on this 24 th day of May, 2018." |
6. On the accused persons pleading that they are not guilty, the prosecution examined 20 witnesses in support of its case. Thereafter statements of the accused persons under Section 313 of the Criminal Procedure Code (Cr.P.C.) came to be recorded. Since, no defence evidence was led, the learned Sessions Judge, upon hearing the arguments has been pleased to make the impugned judgment and order convicting all the accused persons and sentencing them as aforesaid. Hence these appeals.
7. Mr. Arun D'Sa and Mr. A. Gaonkar, submit that the principles for evaluation of circumstantial evidence have not been correctly applied by the learned Sessions Judge in this case. They submit that the identity of the dead body was never established by the prosecution. They submit that there is no legal evidence to sustain the invocation of "last seen theory". They submit that so called recoveries are a sham and constitute nothing but rediscovery of already discovered objects. They submit that even the objects so discovered are neither incriminating nor can they be connected with any of the accused persons. They submit that there was no scientific evidence adduced by the prosecution rather there is suppression of not only genesis of the incident but also the material evidence available with the prosecution. In th
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