Bombay High Court
Hira Lohar Presently In Judicial ... vs State Of Goa Thr. The Public Prosecutor ... on 10 September, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1501-DB
2024:BHC-GOA:1501-DB
CRIA No. 28-2024.doc
Andreza
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 28 OF 2024
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Hira Lohar, s/o. Bahadur Lohar, age 24 years,
N/o. Manjhatoli, Vill Basantpur, PS-Simdega,
Basantpur Simdega, Jharkhand. .... Appellant
Versus
1. State of Goa, thr. The Public Prosecutor & ... Respondents
anr.
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Mr. Rohan Desai, Advocate for the Appellant.
Mr. S. G. Bhobe, Public Prosecutor for Respondent-State.
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CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
DATE : 10th September, 2024
JUDGMENT (Per M. S. Karnik, J.)
1. The challenge in this appeal is to the judgment dated
24th /25th May 2023 passed in Sessions Case No. 19 of 2016 by the
District and Sessions Judge, North Goa, Panaji, convicting the
appellant-accused for the offence punishable under Section 302
of the Indian Penal Code. The accused was sentenced to undergo
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imprisonment for life for the offence punishable under Section
302 of the Indian Penal Code (IPC). The accused was also
directed to pay a fine of Rs.1,00,000/- and in default of payment
of fine, the accused was to undergo further imprisonment for a
period of 3 years. If the fine amount was paid, an amount of
Rs.50,000/- was to be paid as compensation to the relatives of
the victim.
2. The date of the offence is on 15.07.2016. The FIR was
lodged on 16.07.2016. The appellant-original accused was
arrested for the offence punishable under Section 302 of IPC on
the allegation that on 15.07.2016, at around 01.00 hours, at the
under-construction site of Poonam Shanti at Shantaban, Merces,
Goa, he committed murder of Bishnath Mehar, father of the
complainant by strangulating him with the help of a rope like
packing material, then hanged him to a cement beam and
thereafter inflicted injuries in the stomach of the deceased with a
koita. After the matter was committed to the Court of Sessions,
the charge was framed. The accused pleaded not guilty.
3. The prosecution examined as many as 15 witnesses. Pw.1,
Basant Mehar, is the complainant i.e. the son of the deceased.
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Pw.2-Abbuswalcha Ranebennur, is a panch witness. Pw.3-
Shahrukh Ali, is the panch witness for inquest panchanama.
Pw.4-Jagir Pategoudra was examined as the panch witness for
arrest panchanama. Pw.5-Aslam Pathan, was examined as the
panch witness for attachment panchanama. Pw.6-Babajan was
examined as panch witness for recovery panchanama. Pw.7-
Aniket Devidas, was examined as a police witness. Pw. 8-Dr.
Madhu Ghodkirekar conducted the post mortem examination on
the dead body of the deceased and Pw.9-Dr. Girish Kamat,
conducted the medical examination of the accused. Both the
Doctors were examined by the prosecution. Pw.10-Abdul Sattar
Karadgi was the contractor who had engaged the labourers at the
construction site. Pw.11- Amit Dungdung is an eye witness to the
incident. Pw.12-Rajesh Naik, is examined as a police witness.
Pw.13-Shri Dattaram S. Angre, as a Nodal Officer with the
Vodafone/Idea Cellular Company. Pw.14-Shri Shagun Sawant,
who is examined as police witness and Pw.15-Shri Krishna Sinari,
as the Investigating Officer.
4. Shri Desai, learned Counsel for the appellant took us
through the evidence on record while submitting that the
conviction is based on the sole testimony of Pw.11-Amit
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Dungdung, an eyewitness, whose testimony is untrustworthy and
unreliable. It is submitted that he is a tutored witness.
5. Shri Bhobe, learned Public Prosecutor vehemently opposed
the submission of the learned Counsel for the appellant. He
submits that the evidence of eyewitness Pw.11-Amit Dungdung,
that of Pw.8 the Doctor and the other materials on record are
sufficient to make out a case of conviction for the accused. Our
attention is invited to the findings recorded by the trial Court
which, according to the learned Public Prosecutor, cannot be said
to be erroneous. Learned Public Prosecutor submitted that the
conviction be sustained in view of the sterling quality of the
evidence of Pw.11 and other materials on record corroborated by
the recovery of the weapon at the instance of the accused.
6. Heard learned Counsel. On 15.07.2016, Pw.15-the
Investigating Officer, recorded complaint of Pw.1-Shri Basant
Mehar to the effect that on 15.07.2016, at around 01.00 hours, at
the construction site of Poonam Shanti at Shantaban, Merces,
Goa, the accused Hira Lohar, son of Bahadur Lohar, committed
murder of his father Bishnath Mehar, aged 48 years, by
strangulating him with the help of a rope like packing material,
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then hanged him to a cement beam and thereafter inflicted
injuries on the stomach with a sharp weapon. The offence was
registered vide Old Goa Police Station Crime no. 73/2016. On
15.07.2016, the investigating officer arrested the appellant and
drew a detailed panchanama at the Old Goa Police Station. The
panchanama was drawn in presence of panch witnesses namely
Pw.4 and one Pappu Singh (not examined). The accused was
wearing short sleeved red coloured T-shirt and blue coloured
jeans. The appellant disclosed that he had worn the said T-shirt
and jeans at the time of committing the murder of deceased
Bishnath Mehar. The clothes were seized. Some reddish colour
stains on the T-shirt on front portion at the stomach region which
appeared to be blood stains was noticed. One mobile phone was
seized from the accused. The T-shirt was seized in the presence
of panchas. The mobile phone was then sealed in the presence of
the panchas. The T-shirt was sealed and the envelope was
marked as exhibit 5 and the mobile was seized and marked as
exhibit 7. The panchanama commenced at 18.15 hours and
concluded at 18.40 hours. The arrest panchanama is at exhibit 28
which bears the signature of the investigating officer. On
15.07.2016, the investigating officer visited Goa Medical College,
Bambolim with a request to conduct post mortem examination
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over the dead body of the deceased enclosing police report form
and inquest panchanama. The cause of death vide autopsy was
due to "asphyxia as a result of constriction of neck vide injury no.
1 which was ante mortem and fresh at the time of death." The
blood report of the deceased was collected from the blood bank.
The department of Forensic Medicine and Toxicology was
requested to conduct the medical examination of the accused
vide exhibit 62. The report of the medical examination conducted
on the accused by Police Surgeon Dr. Girish Kamat-Pw.9 was
collected. The blood report of the accused was also collected from
the blood bank. The reports of the deceased and the clothes of the
deceased were sent for forensic examination.
7. In the examination in chief, the investigating officer (Pw.15)
says that the contractor Pw.10-Abdul Sattar, handed over to the
investigating officer railway tickets which were taken from the
appellant Hira and the attachment panchanama was prepared in
the presence of panch witness-Pw.5 Aslam Pathan and one
Mausin Ismail Khan. The said tickets were of the railway journey
of appellant Hira from Rourkela to Vasco da Gama. The
investigating officer in his evidence deposed that on 16.07.2016,
the accused voluntarily disclosed that he wanted to make a
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disclosure regarding the case and the weapon. The investigating
officer secured the presence of two panch witnesses i.e. Pw.6-
Babajan and one Mr. Maqbul Khan. A detailed disclosure cum
recovery panchanama under Section 27 of the Evidence Act, was
conducted. The panchanama commenced at 5.20 hours and
concluded at 05.45 hours.
8. Thus, the prosecution case is that the accused on 14.07.2016
along with deceased Bishnath and the eyewitness Pw.11-Amit
Dungdung, came to Goa for work. The accused and the deceased
Bishnath had a fight when they reached Margao Railway Station.
The reason was that the deceased did not allow the appellant to
sleep at night in the train. Thereafter, the three of them came to
the construction site. There were other labourers with whom they
shared alcoholic drinks. The deceased started harassing the
accused and abused him. The deceased and the accused again
had a fight. The deceased went downstairs and again came up.
He started abusing the accused. The accused asked Bishnath to
shut up but Bishnath continued abusing the appellant. Thereafter,
the appellant took out a rope like thing from the packing material
and strangulated the deceased with the rope. Thereafter, the
appellant hanged Bishnath with the rope to a cement beam. The
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appellant found a koita with which he gave blows on the stomach
of Bishnath. When the appellant was assaulting deceased
Bishnath, Pw.11-Amit saw him. The appellant threatened Amit-
Pw.11 not to disclose the incident to anyone. After conclusion of
the panchanama at 5.45 hours, the koita was recovered at the
instance of the appellant. The koita was found near some bushes
between the open area of the under construction building and the
compound wall. The koita was blood stained.
9. The investigating officer denied the suggestion that he
purposely did not produce Cw.15-Barju, Cw.16-Sameer, Cw.17-
Bikas, Cw.18-Raju, Cw.20-Arjun, Cw.21-Komal, Cw.22-Smt.
Budni, Cw.23- Meena and Cw.24-Sudharshan, as they are not
supporting the prosecution case. The investigating officer denied
the suggestion that he planted blood on the MOs to falsely
implicate the accused.
10. There is only one eyewitness to the incident i.e. Pw.11-Amit
Dungdung. Pw.11 in his deposition stated that he is a resident of
Jarkhand. He was in need of work. Bishnath approached him in
the year 2016 and told him that there is work in Goa where he
could earn money. Pw.11 did not have money to buy a train ticket.
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Bishnath and the appellant, who is also from the same village as
Pw.11-Amit, went together to Goa for work. Bishnath purchased a
ticket for Hira as well. After getting down at Margao Railway
Station, there was a quarrel between the accused and the
deceased. Pw.11-Amit says that the appellant threatened to kill
Bishnath as he was annoyed with the harassment. The three of
them went to the construction site where they met Barju.
Bishnath called one of the labourers and told him that the accused
will kill him upon which the said Barju kept quite. The appellant,
accused, Pw.11-Amit and the other labourers were enjoying
alcohol on the first floor of the under construction building.
Pw.11-Amit went to the hut of Komal for having dinner and after
having dinner, he again went to the under construction building.
Pw.11-Amit was watching a film with Raju along with one Sameer.
The accused was talking on his mobile phone with someone
whereas the deceased was walking on the ground floor. A quarrel
took place between the accused and the deceased. They were
abusing each other. The deceased woke Pw.11 from his sleep and
told him that the accused threatened to kill him. The other
labourers also woke up. The deceased went for a walk. Pw.11
then fell asleep. Pw.11-Amit heard some one coughing at night.
He tried to wake up the other boys, however, they did not
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respond. Pw.11-Amit realized that the sound he heard was that of
the deceased. In the light of the mobile phone, he realised that
the deceased was not in the room so also the accused.
11. Pw.11-Amit went to the second floor of the said building but
did not find anybody. While Pw.11-Amit was getting down, on
reaching the first floor, he again heard the coughing sound. Pw.11-
Amit saw that accused was strangulating the deceased with a rope
of like material which is used for packing. The deceased was
trying to free himself. The accused was strangulating him with
force. Pw.11-Amit went back to the room and tried to wake up the
other boys, however there was no response. The incident took
place on the other side of the first floor. Pw.11-Amit was staying
on the other side of the same floor. Pw.11 went back and found
that accused was strangulating and hanging the deceased on the
cement beam with the help of a rope used for packing.
Thereafter, the accused assaulted the deceased with some sharp
weapon in the stomach on two to three occasions upon which
blood started oozing out. At that time, the accused saw Pw.11-
Amit. Pw.11 got scared and started running away. He was caught
by the accused and threatened that the incident should not be
disclosed to anyone otherwise the deceased would kill him. The
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incident took place around 01.00 a.m. Thereafter, the accused
washed his hands and went to sleep near the other boys. Pw.11
also went to sleep.
12. Since Pw.11 was frightened, he did not help the deceased
and nor informed this incident to anyone. In the morning, the
other boys on seeing the deceased hanging, started shouting. The
contractor-Pw.10 was informed. Pw.10 came to the site and called
the police. Thereafter, Pw.11-Amit was called to the Old Goa
Police Station. At the Old Goa Police Station, Pw.11-Amit and
others met Pw.1-Basant, the son of the deceased. Pw.11 says that
when Basant inquired with him, he told him what he saw in the
earlier night. On the same day, the statement of Pw.11-Amit was
recorded in the late evening. Section 164 of Cr.P.C. statement of
Pw.11-Amit was recorded after ten days or so. Pw.11 deposed that
the accused was wearing red colour T-shirt and blue jeans. Pw.11
deposed that he will not be able to identify the weapon with which
the accused assaulted the deceased as he was unable to see
properly but it was a sharp weapon.
13. In the cross-examination Pw.11 deposed that there was no
electricity and water connection given to the said building. There
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was no facility of any kitchen and bathroom in the said building
and the labourers were required to go outside for nature's call.
The height of the building was around 15 feet. There was no
painting or otherwise going on in the said building. Pw.11
deposed that he was using a mobile phone at that time. Pw.11
deposed that he handed over the phone to the police for
inspection which was later returned to him. A suggestion was put
to Pw.11 that he was not carrying any mobile phone with him
when he came to Goa in the year 2016, which he denied. Pw.11
deposed that they were sleeping on the ground floor. The
incident happened on the first floor. Pw.11 deposed that he
quickly went to the second floor on hearing the noise but he did
not find anything unusual. While coming down, he noticed the
incident from the first floor. He deposed that there were no other
articles found on the first and second floor of the building. He
deposed that he tried to wake up the boys, i.e. Sameer, Raju and
Barju, who were sleeping in the room. Pw.11-Amit deposed that
there was no electricity on any of the floors of the said building.
Pw.11 denied that he was instigated by the family members of the
deceased and the police to depose against the accused. Pw.11
deposed that there were no doors and windows on the said
construction site and that anyone could enter inside. He further
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says that his mobile phone did not have facility of video
recordings.
14. Pw.1-Basant, i.e. the son of the deceased, in his deposition
says that on 15.07.2016 at 13.00 hours, one policeman came to his
place and informed that his father Bishnath was found dead at the
construction site. Pw.1 immediately went to the Goa Medical
College morgue and found the dead body on the stretcher. He
identified the dead body to that of his father. Thereafter, he went
to Old Goa Police Station and at the Old Goa Police Station, he
met Pw.11-Amit, who is a resident of his Village. They were
known to each other. Pw.11 told him about the incident. In the
cross examination, Pw.11 says that he deposed that he was at Goa
Medical College till 4.30 p.m. He came to Old Goa Police Station
at around 6.00 p.m.
15. Dr. Madhu Ghodkirekar was examined as Pw.8. Pw.8
conducted the post mortem examination of the dead body. In the
cross-examination, Pw.8 deposed that injury like serial no.1, can
be in case of hanging of the body with ligature around the neck.
The hanging can be suicidal or homicidal as the case may be. Pw.8
was recalled by the Court as per the order dated 27.03.2023. Pw.8
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on recall deposed that as regards her opinion to the exact cause of
death, that is, whether suicidal or homicidal, her opinion is
limited to within the limits of medical literature. She deposed
that only what she could do is to give various possibilities of body
being suspended as shown in the photograph with the
background of the autopsy examination findings. So far as the
incised wounds are concerned, Pw.8 deposed that the same are
post mortem as there were no vital reactions seen in the wound at
the time of autopsy. Pw.8, deposed thus :
"To consider whether this case is post mortem
suspension the only finding in the autopsy are post
mortem grazed abrasions on the right heel of the
deceased which could be caused due to dragging
of the dead body. In such cases, one
question may arise is whether homicidal hanging,
that is, strangulation and then hanging of the body
would have to cause two different ligature marks
on the neck and to this I say that considering the
slipping knot which was for the ligature (hanging
material) around the neck of the deceased usually
the assailant catches a victim unaware,
strangulates with such a ligature and once the
victim is unconscious or dead, drags the victim
and suspends him in the form of hanging.
Partial hanging is when part of the body is
touching the ground. Considering all the facts as
are evident from the photographs, this is a case
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of either homicidal hanging or strangulation and
post mortem suspension of dead body."
Thus, Pw.8 deposed that the hanging can be suicidal or
homicidal as the case may be.
16. It is pertinent to note that the blood report of the deceased
reveals that it is 'O' Rh positive. The blood group sample of the
accused reveals that his blood group also is 'O' Rh positive. On
the T-shirt of the accused, the blood detected was of group 'A' as
per the FSL report. Thus, this does not match with that of the
accused. A sealed envelope, which contained exhibit 3 a stained
gauge piece by which blood was taken from the floor where the
deceased body was lying reveals that the blood group 'A' is
detected. A sealed envelope which contained koita is at exhibit H.
Results of the examination of the blood group found on the koita
revealed that human blood is detected.
17. From the FSL report, it can be seen that blood found on the
T-shirt of the accused which he was wearing at the time of assault
does not match with that of the deceased. There are no injuries on
the body of the accused. The koita which is recovered at the
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instance of the accused near the compound wall was found to be
stained with human blood. The blood group is not disclosed.
18. It is pertinent to note that Pw.11, the sole eyewitness says
that he saw the incident in the light of his mobile phone. The
building was under construction. There was no electricity or light
connection in this under construction building. Pw.11-Amit says
that though the incident took place in the night between
15.07.2016 and 16.07.2016, he did not report about the incident to
anyone till the next date in the evening because he was threatened
by the accused not to disclose the incident.
19. From the deposition of Pw.11-Amit, it is seen that he had
handed over the said mobile phone to the police for inspection
which was later returned to him, however, the investigating
officer in his deposition says that he does not know whether Pw.11
had a mobile phone at the relevant time. This fact assumes
relevance as, according to Pw.11, he had watched the incident in
the light of his mobile phone. Further Pw.11 deposed that he was
sleeping with other labourers and on hearing the shouts of the
deceased, though he tried to wake up the other labourers, they did
not respond. Pw.11, who was sleeping on the ground floor, went
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to the second floor only to realize that the incident was happening
on the first floor. The accused threatened the Pw.11-Amit not to
disclose the incident to anyone. Pw.11 deposed that after the
incident, the accused washed his hands and went to sleep next to
the labourers and even Pw.11 went to sleep in the same room. It
is material to note that the deceased knew Pw.11 very well and in
fact paid for the train ticket of Pw.11 to enable him to come to Goa
for a livelihood. Pw.11 does not disclose the incident from 01.00
a.m. onwards on 15.07.2016 till 6.00 p.m. of the next day i.e.
16.07.2016. Pw.11 discloses the incident for the first time to the
son of the deceased at the Police Station. Thereafter, on the basis
of the complaint by Pw.1, the accused was arrested. The
explanation of Pw.11 was that he was threatened by the accused.
The conduct of Pw.11 on seeing the deceased murdered in front of
his eyes who he knew so well and in fact had helped him, going off
to sleep along with the accused and not disclosing the incident for
such a long time, is quite unnatural.
20. The Supreme Court on multiple occasions has held that it is
not the quantity but the quality of witnesses and evidence that can
either make or break the case of the prosecution. It is the duty of
the prosecution to prove that the testimonies of the witnesses that
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it seeks to rely upon are of sterling quality, i.e. fully trustworthy
and absolutely free from any kind of blemish. The screams of the
deceased shouting for help not being heard by any other labourer
except Pw.11, is unusual. The labourers not responding to Pw.11
who was trying to wake them up despite the cries of the deceased
for help, the incident being witnessed in the light of the mobile
phone and the over all conduct of Pw.11 is inconsistent in the
ordinary course of human nature. According to the prosecution,
the other labourers who were present at the site and whose
statements were recorded, could not be found for the purpose of
examination during the trial. Thus, there is no corroboration to
the evidence of Pw.11 which is necessary in the present case. The
FSL reports do not support the case of the prosecution. Even from
the evidence of the Doctor, it cannot be ascertained whether the
death is homicidal or suicidal. The version of Pw.1 is not
supported by any other direct evidence. In the absence of any
other evidence linking the accused to the murder of the deceased,
the testimony of PW-11 will have to be discarded as doubtful in
the absence of any other direct or circumstantial evidence, ocular
or otherwise, linking the accused to the incident.
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21. This case primarily rests solely upon the testimony of PW-
11, which is full of blemishes, absolutely uninspiring in
confidence. It is the settled principles of law that doubt cannot
replace proof. Suspicion, howsoever great it may be, is no
substitute of proof in criminal jurisprudence. Only such evidence
is admissible and acceptable as is permissible in accordance with
law. In the case of a sole eyewitness, the witness has to be reliable,
trustworthy, his testimony worthy of credence and the case
proven beyond reasonable doubt. Unnatural conduct and
unexplained circumstances can be a ground for disbelieving the
witness. No doubt, so long as the single eyewitness is a wholly
reliable witness the courts have no difficulty in basing conviction
on his testimony alone. However, where the single eyewitness is
not found to be a wholly reliable witness, in the sense that there
are some circumstances which may show that he could have an
interest in the prosecution, then the courts generally insist upon
some independent corroboration of his testimony, in material
particulars, before recording conviction.
22. Pw.11 knew the victim, who allegedly saw the assault on the
victim and yet kept quite about the incident. The incident was
seen by Pw.11 in the light of the mobile phone in an under
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construction building which had no electricity connection. The
under construction building was open and was accessible to all.
There were other persons sleeping along with Pw.11. It was only
Pw.11 who claims to have heard the screams of the deceased and
seen the incident that too in the light of the mobile phone. The
Pw.11 deposed that he handed over the mobile phone to the
police, yet Pw.5 (I.O.) says that he did not remember if mobile
phone was handed over to him. These are circumstances which
just do not match up with a convincing prosecution story. We
must remember the well established principle in criminal law that
if two views are possible in the evidence if adduced in a case, one
points to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. As
discussed earlier, the conduct of Pw.11 just does not match up to
the conduct of an ordinary person who knew the deceased and his
family. His testimony, therefore, deserves to be discarded.
23. We have carefully perused the judgment of the trial Court.
In our opinion, the trial Court on the testimony of the sole
eyewitness which it found trustworthy, convicted the accused.
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24. For the aforesaid reasons, the appeal is allowed. The
impugned judgment and order of conviction of the trial Court is
set aside. The appellant is acquitted of the charges levelled
against him. He be set at liberty forthwith. Appeal is disposed of
25. We are informed that the fine amount as well as the
compensation which includes the compensation as directed by the
trial Court has not been paid by the appellant. Since we are
acquitting the appellant-accused, the question of payment of the
fine amount by the accused now does not arise. However, so far
as compensation to the kin of the deceased is concerned under the
relevant schemes, the said aspect will be determined upon
hearing the kin of the deceased.
26. Issue notice to the Pw.1 on this limited aspect. Place the
matter for directions on 25.09.2024. Notice be served through
the concerned incharge of the Police Station.
VALMIKI MENEZES, J. M. S. KARNIK, J.
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