Bombay High Court
Aquino Avith Martis vs The State Of Maharashtra on 10 February, 2022
Bench: S.S. Jadhav, P. K. Chavan
apeal-634.12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.634 OF 2012
WITH
CRIMINAL APPLICATION NO.1470 OF 2016
WITH
INTERIM APPLICATION NO.1146 OF 2020
Acquino Avith Martis
Aged : 24 years, Occ.: Nil,
R/o Rashmi Tanmaya, "A" Wing,
Room No.701, Bevhvarli Park,
Mira Road East, District Thane.
At present in judicial custody and
undergoing the sentence imposed upon
him at Kolhapur Central Prison. ... Appellant/ Applicant
V/s.
The State of Maharashtra
At the instance of Senior Inspector of
Police, Mira Road Police Station
vide their F.I.R. No.I-72 of 2009 ... Respondent
-------------------
Ms. Pooja N. Sejpal a/w Akshata Desai i/b. Mr. Nitin Sejpal, Advocate
for the Appellant/ Applicant.
Mr. Arfan Sait, APP for the Respondent - State.
---------------------
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 15th NOVEMBER 2021.
PRONOUNCED ON : 10th FEBRUARY 2022.
JUDGMENT : (Per Smt. Sadhana S. Jadhav, J.)
Digitally signed
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.02.10
17:13:10
+0530
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1. The appellant herein is convicted for the offence
punishable under sections 302, 309 of Indian Penal Code and
sentenced to suffer imprisonment for life and fine of Rs.10,000 (Ten
Thousand Only), in default, to suffer R.I. for 6 months by the Ad-hoc
District Judge - 3 and Additional Sessions Judge, Thane in Sessions
Case No.301 of 2009 vide judgment and order dated 2 nd May 2012.
Hence, this appeal.
2. Such of the facts necessary for the decision of this appeal
are as follows :-
(i) One Paloma, daughter of Ligirio Fernandis (P.W.2) was
residing in Mira Road in a building namely Rashmi Hetal. She
originally hailed from Goa. She was working in Mumbai at J.P. Morgan
Call Centre. She was in love with the accused. The appellant who was
residing in 'A' wing building of the same Co-operative Housing Society
in Room No.A-701 whereas Paloma was residing in 'B' wing building in
Room No.B-6.
(ii) On 26th January 2009, at about 6.30 am, watchmen of the
said Housing Society viz. Shailendra Singh Chandrika Singh (P.W.3)
lodged a report at Mira Road Police Station alleging therein that since
4 to 5 days prior to 26 th January 2009 there was a quarrel between the
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appellant and Paloma. The bone of contention was that the ATM Card
of Paloma was lost and she suspected that it was in the custody of the
appellant. She had expressed her apprehension to the watchman of the
said society and had requested him to lock her door from outside after
she returns home from her job and to hand over the key to her from
the window. P.W.3 had obliged. On 26 th January 2009, in the early
hours the accused had been to the house of Paloma, he had given a call
on her cell only to verify whether she is indoors. The watchman had
asked him to leave the society and he had obeyed.
(iii) On 27th January 2009, at about 4.00 am, Paloma returned
from her job. She had requested the watchman to accompany her to
her house. He alongwith Mohan Yadav, another watchman had
accompanied her upto her house. When she was opening the door they
started descending the staircase and at that juncture, they heard a call
from her to "save". Upon returning, they saw the appellant assaulting
Paloma with a sharp edged weapon. The watchmen immediately held
him from behind. In the course of apprehending the accused had even
bitten on his right hand. The people from the society had gathered and
had taken her to the hospital. At the same time, the appellant had
attempted to stab himself. On the basis of the said report, Crime
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No.72/2009 was registered at Mira Road Police Station for the offences
punishable under sections 302, 324 and 309 of IPC.
(iv) At the trial, the prosecution examined as many as 11
witnesses to bring home the guilt of the accused. P.W.3 happens to be
the injured eye-witness and the complainant who had set the law into
motion. Therefore, the prosecution has placed implicit reliance upon
the evidence of P.W.3 and P.W.8 Mohan Yadav.
(v) Paloma had succumbed to the injuries and died on the
same day in the hospital. Autopsy was performed on the dead body of
Paloma by P.W.7 - Dr. Arun Koli and he had found the following
injuries:-
"1. Right leg thigh C.L.W. back side near knee 2 x 1 cm.
2. Abrasion on wrist joint 2 x 1 cm.
3. Right side knee joint abrasion 1 x 1 cm.
4. Stab wound over the chest front at the mid clavicle line
2 x 2 cm lateral to the sternum 2 cm. superior middle to
the left nipple.
5. Stab wound size 3 x 1 cm. deep blood and clots."
3. P.W.-7 Koli opined that the injuries were dangerous and the
cause of death was due to injury on the vital organ (heart) of the
injured. He proved the contents of Exh.34 which are the post-mortem
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notes. All that is elicited in the cross-examination of P.W.7 is that the
injury nos.1 to 3 are minor injuries, however, injury no.4 is a
dangerous injury and is not possible in the course of free fight.
4. P.W.2 - Ligirio Fernandis has deposed before the Court that
his daughter Paloma was residing in Bombay and working in a Call
Centre. Just a month prior to the incident, he had visited his daughter
along with his wife and at that time, they had realised that Paloma was
in love with the present appellant. At the same time, he had heard
about the bad habits of the accused and had also warned his daughter.
The parents had made an attempt to dissuade their daughter from
continuing in the said relationship, however, it was of no avail. On 28 th
January 2009, he had received a phone call from his daughter Priyanka
who also resided in Malad and she had informed him about the
incident. He had asked his relative to visit the place of residence of
Paloma and ascertain the actual position. By the time his relative viz.
Santosh Pandey had visited the society, Paloma was taken to the
hospital. The parents had then rushed to Bombay.
5. P.W.3 - Shailendrasingh was working as a watchman of
Rashmi Hetal Co-op. Housing Society. He was well acquainted with the
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deceased as well as the accused since they were residing in the same
society. That, the deceased was residing in 'B' wing whereas the
accused was residing in 'A' wing. P.W.3 has stated that he was well
aware of the love affair in between the accused and the deceased as he
used to often see them together. That, few days prior to the incident,
there was a quarrel between the accused and the deceased since the
deceased suspected that her ATM Card was in the custody of the
accused. She had apprehended danger at his hands and therefore, she
asked the watchman i.e. P.W.3 to accompany her upto her house
everyday. That, on the unfortunate day, he was accompanied by Manoj
Yadav, another watchman, to drop the deceased upto her house and
while descending the steps he had heard her cry. In the course of
accosting the accused, the accused had bitten him on his right hand.
His injury certificate is at Exh.40. The same is issued by Dr. Prabhakar
Sagaonkar who was working in Bhagwati Hospital. The bite injury was
a simple injury. It was only upon hearing his hue and cry that the
people in the society had gathered on the spot. P.W.3 had lodged the
report at the Police Station and set the law into motion. He has proved
the contents of the FIR which is at Exh.19.
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6. The complainant was cross-examined at length. He claims
to be acquainted with all the member residents of the society. The
defence had suggested that the witness has a weak sight of the left eye
and therefore, in all probabilities, must not have identified the
accused. However, the same is negated by P.W.3. He was aware of the
fact that the accused and the deceased were in love and were to get
married in the near future. In the cross-examination, all that is elicited
is when he went towards the deceased he heard the shouts to save and
when he reached there he saw the deceased and the accused lying in
injured condition. After the injured were taken to the hospital, he had
approached the Police Station to file a report. The police had
conducted Panchanama of the scene of offence on the basis of what
was shown to them by him. The defence has failed to create dent in the
evidence of P.W.3 who happens to be a natural witness.
7. P.W.4 - Tukaram is a resident of Rashmi Hetal building.
According to him, he was also acquainted with the accused and the
deceased and that the accused was unemployed. The watchman i.e.
P.W.3 had called upon P.W.4 soon after the incident. He had seen 2
watchmen and the accused and the deceased. The watchman had
caught hold of the accused. The accused had also injured himself after
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biting the watchman. He is a truthful witness who has stated that he
had not actually seen the incident of assault but had seen that the
clothes of the deceased were torn and that she succumbed to the
injuries. He never had an occasion to have an interaction with the
accused or the deceased. P.W.4 resides on the same floor as that of the
deceased.
8. The prosecution has also examined another eye-witness i.e.
Mohan Yadav - P.W.8 who was accompanying P.W.3 was working as a
watchman at Rashmi Tanmay Apartment at Mira Road which is
adjacent to Rashmi Hetal. On the unfateful night, P.W.8 was in the
company of P.W.3. They both had accompanied the deceased to her
house in the wee hours of 28th January 2009 when the incident
occurred. He was also aware that there was intimacy between the
accused and the deceased and they were to get married in near future.
It appears that he was aware of the quarrel between the accused and
the deceased in respect of the missing of the ATM Card of the
deceased. He is also an eye-witness to the said incident. He has also
seen the accused biting P.W.3 and thereafter, attempted to cause injury
to himself. His evidence remains un-shattered.
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9. The prosecution has examined Dr. Pramod T. Shinde -
P.W.10 to establish the charge under section 309 of IPC. In fact, the
complainant as well as Manoj Yadav - P.W.7 have categorically stated
that the accused had attempted to commit suicide by the same knife.
P.W.10 has deposed before the Court that on 28 th January 2009, he
examined Benjamin Martis. The injured himself had given history of
suicidal stab injury. Upon examination, it was seen that he had
sustained a stab wound upon epigastric region admeasuring 1.5 cm.
the depth of the wound could not be ascertained and therefore, he had
to undergo C.T. Scan and the diagnosis was "laceration of liver with
left rib fracture". From the appearance itself, the Doctor could draw
inference that it was indeed a self-inflicted injury. The said injury was
sufficient in the ordinary course of nature to cause death. It is true that
it was not mentioned in the IPD case paper that the history of suicidal
stab injury was given by the patient. The said certificate is at Exh.42.
10. P.W.11 - Mushtaque Ahmed is the investigating officer. He
has deposed before the Court the steps taken by him in the course of
investigation. He has proved the omissions and contradictions in the
evidence of the witnesses examined by the prosecution.
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11. The learned counsel for the appellant has vehemently
argued that the appellant was arrested on suspicion since he was in
love with the deceased. That the prosecution has not proved that the
ATM card of the deceased was missing or was the bone of contention
for the quarrel between the accused and the deceased. That the
prosecution has not proved the ingress of the accused to the flat of the
house of the deceased and hence, the accused deserves to be acquitted.
12. The learned counsel has drawn attention of this Court to
the statement of the accused under section 313 of Cr.P.C. and has
submitted that he has been falsely implicated.
13. Per contra, the learned APP has supported the judgment of
the trial Court and has submitted that it calls for no interference.
14. With the help of the learned counsel appearing for the
accused and the learned APP we have gone through the evidence
meticulously.
15. In the present case, the prosecution has established the
following :-
(I) That the accused and the deceased were residents of the same
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society and were residing in different buildings;
(II) That the accused and the deceased were in love with each
other;
(III) That a quarrel had ensued between the accused and the
deceased just 4 to 5 days prior to the incident on the
suspicion nurtured by the deceased that in all probabilities,
her ATM card was stolen by the deceased;
(IV) That the deceased had apprehended danger at the hands of
the accused and therefore, she had requested the watchman
to lock her house from outside after she arrives and give the
keys to her from the window;
(V) On 27th January 2009, P.W.3 had seen the accused going near
the house of the deceased and calling on her cell phone only
to satisfy himself that she was at home;
(VI) On 28th January 2009, due to apprehension the deceased had
requested the watchman to accompany her to her house
when she arrived home at 4.00 am.
16. The above facts established by the prosecution are
sufficient to hold that the author of the fatal injury sustained by the
deceased is none other than the appellant himself. The prosecution
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has established the motive, the presence of the accused at the scene of
offence and has also proved that the accused has caused hurt to
himself at the same spot and had given history of suicidal injury to the
doctor at the time of admission in the hospital. The prosecution has
proved the guilt of the accused beyond reasonable doubt.
17. In view of the above discussion, the judgment of the trial
court calls for no interference. Appeal is dismissed.
18. In view of the disposal of the Appeal, nothing survive in the
applications and the same are disposed of accordingly.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
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