Allowed

Suresh @ Surya Naik, Presently in Judicial Custody in Modern Jail and Anr. v. State, Thr. Public Prosecutor

Bombay HC22 Jul 2021CRIA/21/2021

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court of Bombay at Goa examined a murder conviction based on circumstantial evidence. The High Court found that the prosecution failed to establish the last seen theory, motive, and exclude other hypotheses due to contradictory witness testimony and delays in forensic processing, leading to the acquittal of the two appellants.

What did the court decide?

The judgment and order of conviction dated 13.03.2015 are quashed and set aside. The appellants Suresh Naik and Suresh Mane are acquitted of the offense punishable under Section 302 read with Section

Suresh @ Surya Naik, Presently in Judicial… — Murder and Culpable Homicide | Bombay HC (2021)

¶1

28-CRIA-21-2021.DOC

¶2

Niti

¶3

IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.21 OF 2021

¶4

Mr. Suresh @ Surya Naik, S/o. Ganagaram Naik, 45 years, R/o. Shigao, Collem, C/o. Shinde Farm and native of Munnavali, Tal & Dist. Belgaum, Karnataka State. Presently in judicial custody in Modern Jail, Colvale.

¶5

Shri Suresh Mane, S/o. Appasaheb Mane, 65 years, R/o. Village Gumajgalli, Ta. Muddebal, P.S. Gandhichowk and Bijapur, Karnataka State and at present at Collem Bazaar. Presently in judicial custody in Modern Jail, Colvale. …Appellants

¶6

Versus

¶7

State Through Public Prosecutor, High Court of Bombay at Goa, Panaji-Goa.

¶8

…Respondent

¶9

Mr. Anoop Gaonkar, Advocate for the Appellants. Mr. Praveen Faldessai, Additional Public Prosecutor for the Respondent.

¶10

CORAM: M. S. SONAK & M. S. JAWALKAR, JJ

¶11

Reserved on:- 15th July 2021 Pronounced on :- 22nd July 2021

¶12

Page 1 of 18 22^nd July 2021

¶13

28-CRIA-21-2021.DOC

¶14

JUDGMENT ( Per Smt. M.S. Jawalkar, J. )

¶15

Heard Mr. Anoop Gaonkar, learned Counsel under the
Legal aid scheme for the appellants and Mr. Pravin Faldessai
learned Additional Public Prosecutor for the respondent.

¶16

2. The present appeal challenges the judgment and sentence dated 13.03.2015, passed by the learned Additional Sessions Judge-1, Margao-Goa, in Sessions Case No.07/2014, by which both the appellants/accused were convicted under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of 10,000/- each, ₹ in default, to undergo simple imprisonment of one year.

¶17

3. Facts that are material for deciding this appeal are as
under :

¶18

 On 26.10.2013 at about 07.25 Shri Sachin Lokre, Police
Sub-Inspector attached to Collem Police Station received a phone
call from Station Master of Collem Railway Station informing
that one dead body of a male person is lying near Old Railway
Shade Water Tank. Accordingly, a case of unnatural death under
Section 174 of Cr.P.C. was registered.

¶19

4. PSI Lokre headed towards the spot and found one dead

¶20

Page 2 of 18 22^nd July 2021

¶21

28-CRIA-21-2021.DOC

¶22

body of a male person lying in a supine position on an uneven
cement floor in front of the locked door in the verandah of one
old dilapidated house of South West Railway Department,
situated at Souzamol, Collem. The dead body was identified by
one Vasu Shelgar, who runs a bar and restaurant at Collem, as
that of Sitaram alias Mama, who was working as painter/labor in
the Collem area. A detailed scene panchanama was conducted in
the presence of two panch witnesses, relevant items/articles found
present at the spot were attached under the panchanama and the
dead body was shifted to GMC Morgue at Bambolim. On
27.10.2013, said PSI Lokre, in the presence of two panchas,
conducted a detailed inquest panchanama over the dead body of
the deceased. It was noticed that the deceased was having cut
injury on the backside of his head, the left side of the face was
seen swollen and the backside of the head was in a pool of blood.
Some fly eggs/white-like substance was formed in the scalp hair
and at the nostrils. The post mortem examination over the dead
body was conducted on 28.10.2013 and the cause of death was
given as damage for the neck and chest as a result of injuries by
blunt force impact. Accordingly, PSI Lokre conducted further
inquiries and registered an offense of murder on behalf of the
State. A search was made to trace the suspected accused.

¶23

Page 3 of 18 22^nd July 2021

¶24

28-CRIA-21-2021.DOC

¶25

5. On the information received, the suspected persons were
detained from Kolhapur on 19.11.2013 and handed over to PI of
Collem Police Station on 20.11.2013. An arrest panchanama was
drawn in the presence of the panchas. During the investigation,
on 21.11.2013, on the voluntary statement of accused no.2, in
the presence of panchas, a recovery panchanama was drawn under
Section 27 of the Indian Evidence Act and blood-stained clothes,
which he was wearing at the time of the incident were recovered
from the house, which was occupied by him. Thereafter, on
22.11.2013, on disclosure statement made by accused no.1, in the
presence of panchas, blood-stained clothes of accused no.1 were
recovered, which were hidden by him, outside the shed in the
bushes.

¶26

6. During the investigation, statements of witnesses were
recorded. The exhibits/materials preserved by police were
forwarded to CFSL, Hyderabad. The reports showed that the
exhibits contained the blood of the deceased and, hence, the
accused with common intention committed an offense
punishable under Section 302 read with Section 34 of IPC.

¶27

7. Upon commitment of the case to the Court of Sessions the learned Additional Sessions Judge, Margao, to whom the case was

¶28

Page 4 of 18 22^nd July 2021

¶29

28-CRIA-21-2021.DOC

¶30

assigned charged the appellants of offenses punishable under
Section 302 read with Section 34 of IPC. The appellants pleaded
not guilty and, therefore, were put on trial at which the
prosecution examined twenty-one witnesses in its attempt to
bring home the guilt of the appellants. After considering the
prosecution evidence in the light of the defense of denial raised by
the accused the learned Judge sentenced and punished the
appellants as aforementioned. Aggrieved thereby, the appellants
have filed the present appeal before this Court.

¶31

8. We have heard the learned Counsel appearing for the
appellants and the learned Public Prosecutor for the State and
with the help of both, we have gone through the evidence on
record.

¶32

9. Learned Sessions Judge in paragraph 18 observed as
under :

¶33

“18. There is no dispute that there are no eye
witnesses to the incident and the case of the
prosecution is entirely based on the
circumstantial evidence and in order to prove
the guilt of the accused, the prosecution has to
prove the following circumstantial evidence
namely :

¶34

(i) Homicidal death of Sitaram alias Mama.
(ii) Last seen together theory.

¶35

Page 5 of 18 22^nd July 2021

¶36

28-CRIA-21-2021.DOC

¶37

(iii) Scene of offence panchanama.

¶38

(iv) Presence of dead body of Sitaram @ Mama
at railway quarters at Souzamol, Collem.

¶39

(v) Apprehension of accused after commission of
the offence at a dabba at Kolhapur.

¶40

(vi) Recovery of blood stained clothes of the A1
Suresh Naik ad A2 Sursh Mane under Section
27 of the Evidence Act.

¶41

(vii) CFSL reports from Hyderabad.

¶42

(viii) Motive to commit the offence.

¶43

(ix) Arrest of the accused.”

¶44

10.In our considered opinion, most of the circumstances
from (i) to (ix) cannot be said to be incriminating circumstances
sufficient to sustain a conviction in a case based entirely on
circumstantial evidence. So far as homicidal death is concerned,
it is duly established by the prosecution and that is a pre-requisite.
But that by itself is insufficient to link the appellants with the
crime.

¶45

11. So far as last seen together theory is concerned, the
material witnesses are PW1/Lourencio Fernandes, PW7/Michael
Fernandes, PW11/Sanjay Chavan, and PW15/Vasu Shelgar.

¶46

12.PW1/Laurencio Fernandes, who runs a bar and
restaurant at Collem market, deposed that on 25.10.2013 at
about 9.00 p.m. deceased Sitaram had come to his bar for drinks

¶47

Page 6 of 18 22^nd July 2021

¶48

28-CRIA-21-2021.DOC

¶49

and after drinking he left towards another bar called Gokul bar
situated at a distance of about 10 meters from his bar. He also
stated that he knows the accused persons as they used to come to
his bar and had seen them with deceased sitting together in the
market. In his cross-examination, PW1/Laurencio Fernandes
admitted that he had seen the accused persons along with the
deceased on 25.10.2013 till 10.00 pm in Collem market in front
of Gokul bar. He further deposed that Sitaram was not his daily
customer.

¶50

13.PW7/Michael Fernandes, who runs a bar in the
market at Collem, deposed that on 25.10.2013 accused no.1 had
come to his bar and was drinking liquor, standing. He stated that
he then saw deceased Sitaram coming out of Gokul bar and
walking towards the direction of Collem railway station. He
further stated that he heard accused no.1 murmuring that he
would show Sitaram and after some time accused no.1 went after
the deceased in the same direction. He then saw both accused
no.1 and deceased quarreling with each other. He further stated
that he told them not to fight and to go to their houses. They
accordingly proceeded to go. He further stated that on
26.10.2013, 27.10.2013, and 28.10.2013 accused no.1 came to
his bar for drinking liquor but he did not return from

¶51

Page 7 of 18

¶52

22nd July 2021

¶53

28-CRIA-21-2021.DOC

¶54

28.10.2013. He further stated that he had not seen accused no.2.

¶55

14.PW7/Michael Fernandes in his cross-examination
reiterated that he had seen both accused no.1 and deceased
Sitaram having verbal altercation near the church on 25.10.2013
and on his interfering they both proceeded to their houses.

¶56

15.PW11/Sanjay Chavan deposed that he is having the
pan shop at Collem market at a distance of 30 to 40 meters. from
the church. He used to open at 7.00 hrs. and close at 22.00 hrs.
He deposed that on 25.10.2013, at around 9.30 to 10.00 pm, he
saw three persons abusing each other with bad words near the
church at Collem. At that time, he was in the process of closing
the shop. He deposed that deceased and accused left the place
separately. He deposed that Sitaram @ Mama went by church side
and the accused went towards the market side.

¶57

16. PW15/Vasu Shelgar, who is running a bar and
restaurant at Collem market by the name Gokul bar deposed that
there is a bar in front of his bar belonging to one PW7/Michael
Fernandes. He deposed that on 25.10.2013, deceased Sitaram
came to his bar and after consuming a peg of whiskey he left the
bar. Accused no.2/Suresh Mane, who was sitting in his bar had
already consumed alcohol. Accused no.2/Suresh Mane also left

¶58

Page 8 of 18 22^nd July 2021

¶59

28-CRIA-21-2021.DOC

¶60

the bar within two minutes of leaving Sitaram. Five minutes
thereafter he heard some abusive words coming from the church
side which is at a distance of 50 meters. from his bar. He deposed
that he saw both the accused and Sitaram abusing each other.
Michael was also there. Both the accused were asking for money
from Sitaram for the work which they had done. The accused
along with the deceased had painted the house of one Agnelo
Diniz and the deceased had not paid the accused. He deposed
that Michael and himself separated them and told them not to
fight. Thereafter, Sitaram proceeded to go to his house, which is
an abandoned railway quarter after crossing the railway track.
Both accused also followed Sitaram.

¶61

17. In the cross, this witness admitted that there were
some people around the place beside him and Michael. However,
he could not even approximately say how many people were
there. He has also shown his inability to specify the abusive words
being exchanged by the accused and the deceased. He deposed
that he has not stated in his statement that he had not seen the
accused since 28.10.2013. However, the Investigating Officer
confirms this. Though Investigating Officer deposed that the
dead body was identified by this witness PW15/Vasu Shelgar, he
deposed that he never went to see the dead body.

¶62

Page 9 of 18 22^nd July 2021

¶63

28-CRIA-21-2021.DOC

¶64

18.The learned Judge after discussing evidence of these
witnesses concluded that the last seen together circumstance
stands proved. In our considered opinion, the learned Sessions
Judge has erred in coming to this conclusion. The learned Judge
has not taken into account the contradictory statements made by
these witnesses.

¶65

19.PW1/Lourencio Fernades, who is running a bar and
restaurant by the name Lucky bar deposed that on 25.10.2013 at
about 9.00 pm Sitaram (deceased) had come to his bar for drinks.
After drinking one peg he left towards Gokul bar. However, this
witness has nowhere deposed that he saw Sitaram along with the
accused persons. He deposed that he is not his regular customer.
He further deposed that around 9.45 pm, Suresh Naik came to
his bar and he saw Sitaram coming out of Gokul bar and went
walking towards the direction of Collem railway station. After
some time, accused no.1 Suresh Naik went after him in the same
direction as that of Sitaram. At 11.00 pm, he saw the accused and
Sitaram quarreling with each other. From his evidence, it appears
that after his intervention they proceeded to go to their houses. It
also reveals from his evidence that Suresh Naik had been to his
bar on 26.10.2013, 27.10.2013, and 28.10.2013 in the morning.

¶66

Page 10 of 18

¶67

22nd July 2021

¶68

28-CRIA-21-2021.DOC

¶69

PW11/Sanjay Chavan, who is having a pan shop, deposed that
around 9.30 to 10.00 pm, he saw three persons abusing each
other. He deposed that deceased and the accused left the place
separately. Deceased Sitaram went by church side and the accused
went towards the market side. Both deposed time of quarrel
certainly as that was the time to close their shops. However, both
gave different timings.

¶70

20.PW15/Vasu Shelgar, narrated the incident which
took place at 9.30 pm, and deposed that Sitaram thereafter
proceeded to go to the house towards the railway track, and both
the accused also followed Sitaram. Though all the four witnesses
received information about the death of Sitaram, none of them
went to the police station, on their own, to give information
about the quarrel. Though there were persons gathered, as
deposed by witnesses, no statement of any of the local persons is
recorded. There is a contradiction in the timing of the incident as
well as their going together or following the deceased by the
accused. Three witnesses say that they went to their houses,
whereas one witness i.e. PW15/Vasu Shelgar deposed that both
the accused followed Sitaram. As such, there are material
contradictions and the testimony of the witnesses does not inspire
much confidence. There is no consistent and cogent evidence to

¶71

Page 11 of 18

¶72

22nd July 2021

¶73

28-CRIA-21-2021.DOC

¶74

establish the last seen theory beyond doubt. As such, in our
considered opinion the prosecution failed to establish the last seen
theory.

¶75

21.The learned Sessions Judge held that prosecution has
proved the motive to commit the crime. The prosecution story is
that the accused no.1 Suresh Naik and deceased Sitaram are
painters and from the evidence, it is revealed that both of them
had worked for PW8/Agnelo Diniz. After the painting work was
done, charges were paid to the deceased by said Agnelo. It is the
case of the prosecution that the accused were continuously
demanding the said wages from Sitaram and there was also a
quarrel concerning the payment of wages before the incident.
However, there is no supporting evidence about repeated demand
for money or any quarrel on account of wages.

¶76

22. If evidence of PW8/Agnelo Diniz is perused, he deposed that he had engaged services of Sitaram on 8.10.2013 and 9.10.2013 to paint one of the rooms of his house and the compound wall, as he had some religious ceremony. Sitaram had brought accused no.1/Suresh Naik along with him as an assistant for him. He paid 1,600/- as the painting charges to Sitaram as ₹ he had engaged services of Sitaram. He has deposed that accused no.1/Suresh Naik had attended their religious function on

¶77

Page 12 of 18 22^nd July 2021

¶78

28-CRIA-21-2021.DOC

¶79

13.10.2013. If there was any grievance of accused no.1 on
account of payment of wages he would have disclosed it to
PW8/Agnelo Diniz when he had attended a religious function at
Agnelo's house. Moreover, only because accused no.2/Suresh
Mane is a friend of accused no.1/Suresh Naik, is also roped in the
matter, there was no reason for Suresh Mane to quarrel with
Sitaram. In fact, accused no.2 has no connection at all with the
crime. Even if it is presumed that wages of accused no.1 were not
paid, how it can be said that it was the motive of accused no.2 to
commit murder. In the first place, the alleged motive is not at all
established by the prosecution. The witnesses on last seen theory,
who have allegedly seen accused and deceased quarreling, none of
them deposed that the quarrel is on the count of payment of
wages. Only PW15/Vasu Shelgar deposed that there was a quarrel
on account of wages. His evidence, however, does not inspire
confidence. His presence itself is in doubt at the time of the
quarrel. The learned Sessions Judge erred in holding that the
prosecution has proved the motive to commit the crime. There is
nothing on record to suggest that Sitaram had not paid the wages
to Suresh Naik, despite his demand or that this was the motive
for the capital crime.

¶80

23.If evidence of PW7/Michael is considered he has not

¶81

Page 13 of 18 22^nd July 2021

¶82

28-CRIA-21-2021.DOC

¶83

stated anywhere about the presence of PW15/Vasu Shelgar nor he
deposed anything that there was a quarrel on the count of
payment of wages. Thus, there is no clinching evidence to prove
that there was any motive to commit such a serious offense. At
any rate, there is no element of motive so far as accused no.2 is
concerned. Just because he is a friend of accused no.1, the learned
Sessions Judge held that he has committed the said crime. In our
considered opinion, the prosecution miserably failed to establish
any motive of the accused persons to commit such grave and
serious offense as murder.

¶84

24. Learned trial Judge also placed reliance on the deposition of the wife of accused no.1, PW18/Renuka Naik. However, her evidence would neither inspire any confidence nor would take the prosecution case any further. She deposed that she is residing at Shigao and accused no.1/Suresh Naik had deserted her since last many years. The distance between Shigao and Collem was about 10/- bus fare if one travels by bus. She is ₹ residing at Shigao for the last 17 years and accused no.1 visited on 25.10.2013 and 27.10.2013 and before that he never visited her to Shigao. Police took her to the police station from Collem market after four-five days and though inquiry was made no statement was recorded. Thus, her evidence is of no use to the

¶85

Page 14 of 18

¶86

22nd July 2021

¶87

28-CRIA-21-2021.DOC

¶88

prosecution and the learned Sessions Judge erroneously
considered her evidence for concluding that subsequent conduct
of accused no.1 is relevant.

¶89

25.The accused were indeed apprehended at Kolhapur
Dhaba. However, in the deposition of PW17/Salim Inamdar,
owner of Dhaba at Kolhapur, accused no.2 was working with him
since September 2013. As per this witness accused no.2/Suresh
Mane told him that he has some court matter in Goa and to
attend the same he wanted to go to Goa. Accordingly, on
18.10.2013, he went to Goa and returned on 29.10.2013 along
with his friend and requested to keep him also on work. On
19.11.2013, both the accused were arrested by Goa police.

¶90

26.As per the statement of PW15/Vasu Shelgar, he had
not seen the accused after 28.10.2013. However, in the Court, he
deposed that after 25.10.2013, he had not seen the accused no.1.
Whereas PW7/Michael deposed that accused no.1 had been to his
bar on 26.10.2013, on 27.10.2013, and 28.10.2013 and had a
peg of whiskey. Thus, the accused were very much present at their
places since 26.10.2013, that is, the day when a dead body was
recovered, till 28.10.2013. If they had committed any offense,
they could have easily fled on the very next day. Thus

¶91

Page 15 of 18

¶92

22nd July 2021

¶93

28-CRIA-21-2021.DOC

¶94

apprehension of accused persons being at Kolhapur, in our
considered opinion, cannot be a circumstance to connect the
accused persons with the crime.

¶95

27.So far as CFSL reports are concerned, it appears that
as per the deposition of Investigating Officer on 21.11.2013, a
recovery panchanama under Section 27 was drawn. Some clothes
were recovered at the instance of accused no.2 and recovery
panchanama was conducted in respect of accused no.1 on
22.11.2013, whereas articles seized were sent to CFSL on
03.01.2014. There is no explanation for the delay in sending
these articles to CFSL, if seized, at the instance of the accused.

¶96

28. The incident is on 26.10.2013 and the alleged
disclosure panchanama was drawn only on 21.11.2013 and
22.11.2013 and further, articles were not sent till 03/01/2014 to
CFSL. As such, the possibility of tampering cannot be ruled out.
Given such circumstances, we are of the considered opinion that
the learned Sessions Judge erred in convicting the accused persons
based on such meager and inconclusive evidence. When the
offense is of such serious nature, the evidence has to be clinching
and there should not be any possibility of any other hypothesis
other than the guilt. There has to be a complete chain of

¶97

Page 16 of 18

¶98

22nd July 2021

¶99

28-CRIA-21-2021.DOC

¶100

circumstances. Circumstances should be conclusive and they
should exclude every possible hypothesis except the one to be
proved.

¶101

29.Apart from this, if a charge framed against the
accused persons is seen, there is no date mentioned on which date
the accused persons had committed the said offense. Even in the
order passed on the point of framing of charge date is given as
26.10.2013, whereas as per prosecution the offense is committed
on 25.10.2013. Normally, this by itself may not be a good ground
to interfere with the conviction. But coupled with other factors,
the possibility of prejudice to the defense can not be ruled out.
This is the additional ground for setting aside the order of
conviction apart from other grounds mentioned above.

¶102

30.For all the above reasons, the order passed by the
learned Additional Sessions Judge is liable to be quashed and set
aside.

¶103

31.Accordingly, we proceed to pass the following order:

¶104

O R D E R

¶105

(i) The appeal is allowed.

¶106

(ii) The judgment and order of conviction in
Sessions Case No.7/2014 dated 13.03.2015

¶107

Page 17 of 18

¶108

22nd July 2021

¶109

28-CRIA-21-2021.DOC

¶110

passed by the Additional Sessions Judge, South
Goa, Margao, convicting accused persons, is
hereby quashed and set aside.

¶111

(ii) Accused no.1/Suresh Naik and accused
no.2/Suresh Mane are hereby acquitted of the
offense punishable under Section 302 read with
Section 34 of IPC and they be released forthwith
if not required in any other case.

¶112

(iii) The Registry to take necessary steps in
accordance with the law.

¶113

M. S. JAWALKAR, J.

¶114

M. S. SONAK, J.

¶115

NH

¶116

NITI K Digitally signed by NITI K HALDANKAR HALDANKAR Date: 2021.07.22 13:46:16 +05'30'

¶117

Page 18 of 18 22^nd July 2021

Suresh @ Surya Naik, Presently in Judicial Custody in Modern Jail and Anr. v. State, Thr. Public Prosecutor

Case brief

What is this about?

What did the court decide?

Suresh @ Surya Naik, Presently in Judicial Custody in Modern Jail and Anr. v. State, Thr. Public Prosecutor

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Goa Carbon Ltd., Vs Joint Commissioner of Income Tax, RANGE-1 and Anr.

Krishan Ratan Tambi and 5 Ors. Vs State of Goa, Thr. Thr Secretary Home, Govt. of Goa and 3 Ors.

Eng. Sheldon S. Martins Vs State of Goa, Thr. the Public Prosecutor and 3 Ors.

Madgaum Urban Co-Operative Bank Ltd., Thr. Its Aut. Officer, Kishor S. Amonkar., Vs Gautam Amonkar.

Lina Naik., Vs Girish Pillai and Anr.

Pawan Prabhudesai., Vs State of Goa, Thr. the Chief Secretary and Anr.