Criminal Appeal No. 31/1993. Case: Shri Ashok Gavade Vs State of Goa. Bombay High Court

Case Number:Criminal Appeal No. 31/1993
Party Name:Shri Ashok Gavade Vs State of Goa
Counsel:For Appellant: D. Y. Sawant, Advs. and For Respondents: G. U. Bhobe P. P., Advs.
Judges:G. D. Kamat , J. and Dr. E. S. Da Silva , J.
Issue:Indian Penal Code (45 of 1860) - Sections 300, 201; Evidence Act (1 of 1872) - Sections 3, 27, 45
Citation:1995 CriLJ 943
Judgement Date:June 10, 1994
Court:Bombay High Court
 
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Judgment:

Dr. E. S. Da SILVA, J.

  1. The appellants are the accused in Sessions Case No. 6/92 who are challenging the judgment of the learned Sessions Judge, South Goa, Margao, dated 3-8-1993. By the aforesaid judgment the learned Sessions Judge has convicted both the appellants for offences under Sections 302 and 201 of the IPC r/w. Section 34, of IPC and sentenced each of them to life imprisonment and fine of Rs. 1,000/- and in default to 3 months R.I. as far as the offence under Section 302 of IPC is concerned and 6 months R.I. and Rs. 500/- fine or in default to plus 2 months R.I. in respect of the offence under Section 201 of IPC.

  2. This is a case which allegedly occurred on the night of 2-12-1991 at Pirla, Quepem, and the body of the deceased was purported to have been discovered only on 6-12-91. The main protagonists of the tragic incident are the Accused No. 1 Surekha Dessai married to one Suresh Dessai, a police constable at that time attached to Colva Police Station, Ashok Gavade, the accused No. 2, who is a labourer working in the sugarcane plantation at Pirla and the deceased Rohidas Shankar Dessai who was working as a peon at Pirla in the Animal Husbandry Department. The conviction of the accused is based essentially on circumstantial evidence and 18 witnesses were examined by the prosecution, including the accused No. 1 Surekha's minor son Anil, of 8 years of age.

  3. It seems that Surekha developed illicit relations with Rohidas and later on with accused No. 2 Ashok also which was objected by Rohidas and therefore both the accused hatched a plan and decided to get rid of him and caused his physical elimination by way of strangulation. Thereafter the two accused with the help of Anil threw the dead body of Rohidas in a dry nullah, 500 metres away from the accused No. 1's house. It is further the case of the prosecution that, in furtherance of the plan, Surekha allegedly purchased a liquor bottle and eggs on or about 2-12-1991 and invited Rohidas to her house on that night. Thereupon she served plenty of liquor to Rohidas and made him totally under the influence of liquor. Then she took accused No. 2 Ashok inside the house at late night and both tied a rope around the neck of Rohidas whilst he was practically unconscious due to drunkardness and then the two tightened the rope around the neck by standing in opposite directions as a result whereof Rohidas died due to strangulation. Thereafter both the accused with the help of Anil dragged the body of Rohidas from the back side of the house to a nullah located about half a kilometre from her house wherein it was dumped.

  4. On behalf of the prosecution P.W. 1 Laximan Dessai, who is the brother of the deceased Rohidas, has stated that Rohidas was living with his mother at Pirla while he is staying at Sulcornem at a distance of about one hour walk. The deceased was working in the Office of the Veterinary doctor at Pirla. He knows Surekha. She was staying in her own house at Pirla at a distance of about 3 kms. from his mother and Rohidas' house. He also knows that the relations between Rohidas and Surekha were friendly and they used to visit each other frequently. On 6-12-1991 his mother sent a messenger to inform him that Rohidas had been killed. He immediately went to Pirla and was told by his mother that Rohidas had left the house on 2-12-1991, at about 6-30 p.m., and never returned and only on 6-12-1991 his body was found in a dry drain (vall). He then went to the spot and saw in the drain the dead body of Rohidas. It was already decomposed and there was a foul smell. The body was with its face down and full of flies. Rohidas was wearing only a banian of white colour and blue underwear (cheddi). Due to the decomposition he could not see what injuries he was having. Thereafter the police party came to the spot and the body was removed from the site. In cross-examination he denied that the relations between Rohidas and Surekha were not good. He also denied that Rohidas used to drink liquor.

  5. P.W. 8 Uma Dessai is the mother of the deceased and she has deposed that Rohidas and Laximan were her sons, Laximan was the eldest. She further stated that she knows both the accused Surekha who is married to one Suresh and Ashok working for one Dayanand in a sugarcane plantation and who resides in the house of his employer. The distance between her house and that of Surekha is a little more than a call's distance. Rohidas was working in the Animal Husbandry Department and his Office was at Pirla close to her house. There were illicit relations between Surekha and Rohidas. She told Surekha a number of times that she should not come to her house as her husband was giving them threats. Yet Surekha used to frequently visit their house 3 to 4 times a day and used to call and take Rohidas with her. Surekha and Rohidas were having illicit relations for about 2 years and because she told Surekha not to visit her house, Surekha assaulted her 3 times. One day Suresh also came to her house and finding Surekha inside started questioning her. She then told Suresh that he should take care of his wife as she used to come to her house despite her warning not to come. Suresh then told her that she should break the legs of Surekha but she replied that it was not possible for her to do as Surekha herself had assaulted her. Thereafter Suresh pelted stones at her house and broke almost all the tiles of the roof and also took away belongings from the house. Suresh also said that he would kill Rohidas. Two or three days thereafter there was another incident during which Suresh came to their house and assaulted her. A complaint was lodged in the Panchayat and the matter was settled. Even then the relations between Surekha and Rohidas continued to be intimate. On 2-12-91, at about 6 p.m., Rohidas returned from his work. Somebody's cow was dead and the Veterinary Doctor had asked Rohidas to convey to that person to have that cow buried. Rohidas told her that he would go and convey the message to that person. By that time Surekha reached there and asked Rohidas to come with her. Rohidas told her that he had to give the message about the cow and therefore could not come with her. To that, Surekha said that if he were not to come she would show him. Thereupon Surekha left her way and Rohidas went for his work. But Rohidas did not return home, even on the next day. Meantime she started searching for him. On the 6th she went to search him in the field where the house of Surekha is situated and near her house she saw some dragging marks and felt foul smell. She proceeded in the direction of the smell and found the dead body of Rohidas lying in the nullah. The dead body was wearing a banian and shorts. When Rohidas had left the house he was using rubber slippers of Payel make. those slippers were found in another nullah about 20 to 30 mettres away from the nullah where his body was lying. It was Ashok who pointed out the slippers in that nullah. In cross-examination she denied that there were no illicit relations between Surekha and Rohidas.

  6. P.W. 7 Premavati Dessai is the sister-in-law of Suresh, the husband of Surekha, who deposed that she knew Rohidas and also knows Surekha and Ashok. Rohidas used to visit the house of Surekha frequently and he was having meals in her house. Suresh, the husband of Surekha, was aware of those relations and there used to be quarrels on account of this relationship. Suresh used to tell Surekha that she should not take the deceased inside the house. Surekha was having similar relations with the accused No. 2 Ashok. The entire village knew about the relationship of Surekha with both the deceased Rohidas and Ashok. About one year back, Surekha alleged that she (Premavati) was also having illicit relations with Rohidas and for that reason she assaulted her and knocked one of her teeth. However the incident was sorted out amicably by the Sarpanch of the Village. About one and a half month thereafter, she learnt that Rohidas was found dead in a nullah. In cross-examination she denied that her statement that there was friendly relations between Surekha and the deceased is false.

  7. P.W. 9 Suresh Dessai is the husband of accused No. 1 Surekha and he stated that he knew Rohidas but he does not know anything about his death. Rohidas was residing in their neighbourhood and he did not like his talking to Surekha. He told Surekha that he did not like that she should talk to anybody in the village. In 1990 he lodged a complaint at Quepem Police Station against his wife Surekha and the deceased alleging that there was theft of articles from the house including a gas cylinder, clothes and gold ornaments. The complaint was registered as Crime No. 137/89. The stolen articles were thereafter found in the house of the deceased. The case was sent to Quepem Court where it was compounded.

  8. There is also the evidence of P.W. 15 Anil Dessai, the minor son of accused No. 1 Surekha and Suresh, whose statement was recorded during the investigation not only by the police but also by the Judicial Magistrate under Section 164, Cr PC wherein he has given a detailed story as to how the alleged murder of Rohidas took place at the hands of both the accused. However the statement of Anil given in the Court was rejected by the learned Sessions Judge on the ground that the learned Public Prosecutor did not put the statement recorded under Section 164, Cr PC to him after he was declared hostile and allowed to he cross-examined and only he was confronted with the statement recorded by the Police. The learned Sessions Judge also held that since the deposition of P.W. 15 Anil does not speak of any visits of the deceased to Surekha's house or of any other relationship between Surekha either with the deceased or Ashok and the statement recorded u/s. 164, Cr PC was also not put to him the said statement could not be relied upon for any purpose. We are satisfied that in law this is the...

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