Evidence of dog handler can only be used for the purpose of investigation and cannot be treated on par with substantive evidence against the accused.

So far as evidence of dog handler PW.4 Ramdas Naik is
concerned, his evidence only points out that the dog moved in the hut
and thereafter in the house and thereafter, he barked. It is now well
settled that the evidence of dog handler can only be used for the
purpose of investigation and cannot be treated on par with substantive
evidence against the accused. 


 IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 2 OF 2012.
Anton Luis Piedade Fernandes, 

V/s.
S T A T E 


 Date of Pronouncing Judgment : 21st June, 2012



 By this appeal, the appellant takes exception to the2 CRIA No. 02-12
Judgment and Order dated 11th August, 2010, passed by the Additional
Sessions Judge-1, South Goa, at Margao in Sessions Case
No.18/2008, convicting the appellant (hereinafter referred to as “the
accused”) for the offence punishable under Sections 302 of the Indian
Penal Code (IPC) and sentencing him to undergo Life Imprisonment
and to pay a fine amount of Rs.10,000/-. The accused has been
convicted for committing murder of one Caitan Inas Fernandes on 28th
April, 2008 between 2.00 to 3.00 p.m. at Bamnabhat, Ambaulim,
Quepem, Goa 
2. Briefly, the facts leading to filing of the present appeal,
are as under : 
PW.6 Shantaram Gaonkar, Deputy Sarpanch of Ambaulim
Panchayat lodged a report (Exhibit 28) at Quepem Police Station on
28th April, 2008 at about 7.10 p.m., stating therein that a person was
killed at Bamnabhat Ambaulim at about 15.00 hours, near the residence
of one Anton Fernandes. Pursuant to the said report, Crime No. 36/08,
under Section 302 IPC was registered and investigation was taken up
by PW12 PI Ramesh Gaonkar. PI Ramesh Gaonkar who was then
holding additional charge of Quepem P.S. went to the spot and3 
conducted scene of offence panchanama Exhibit 24. Sketch was also
prepared. PW.5 Piedade Rocha was the panch witness to the scene of
offence panchanama. Inquest Panchanama Exhibit 12 on the dead
body of Caitan Inas Fernandes was conducted in which PW.1 Cruz
Silva was a panch witness. Services of dog handler PW.4 Ramdas Naik
were sought. PW.4 Ramdas Naik went to the spot along with dog who
was made to sniff the foot print and mat, on which dead body of
Caitan was found lying. The dog after sniffing said objects went into
the hut which was by the side, at a distance of about 8 to 10 meters
from the mat and the footprint and thereafter, the dog moved in the
house and started barking. The dead body of Caitan was sent for
postmortem which was conducted by PW.9 Dr. Avinash Pujari. The
accused was arrested on 29th April, 2008 at about 1.45 a.m. pursuant to
the panchanama exhibit 15 for which PW.2 Lawrente Joao Fernandes
was a panch witness. The short pant of green colour with strips worn
by the accused was seized under the very panchanama. The statement
of PW.11 Lourecinha Fernandes, wife of the accused was recorded on
the same day. The accused was referred for medical examination, after
his arrest and the blood grouping of the accused, as well as of the
deceased was done by PW.7 Dr. (Mrs.) Vasundara Desai. Blood group
of both, the accused and the deceased was 'A' Positive. Pursuant to
the disclosure made by the accused, an axe (MO8) which was used in
the commission of offence by the accused was seized from a hut, lying
near room of the accused. The axe was having a bamboo danda,
measuring 33 inches in length and the axe itself measured 9 inches in
length and 3 inches in breadth at the sharp end. Thereafter on 14th May
2008, statement of PW.10 Melissa Fernandes, who is grand daughter of
the accused, aged 6 years, who claimed to be an eye witness to the
incident by the prosecution, was recorded. Although the prosecution
attempted to get her statement under Section 164 recorded, the
prosecution was not successful inasmuch as PW.10 Melissa Fernandes
did not make any statement before the Magistrate when she was taken
before him. Muddemal articles were sent for chemical analysis. The
report of Chemical Analysis was received during the course of the trial.
After completion of the investigation, chargesheet was filed against the
accused for the offence punishable under Section 302 IPC before the
Judicial Magistrate, First Class, at Quepem who committed the case to
the Court of Sessions, South Goa, Margao. Sessions case was made
over to the Additional Sessions Judge – 1, Margao.
3. In Sessions Case No.18 of 2008, the accused pleaded not
guilty to the charge of murder. The prosecution examined 12 witnesses
and produced several documents to prove the charge. The defence of
the accused was of simple denial. The accused did not lead any
defence evidence. Learned Trial Judge, upon appreciation of the
evidence, held that the offence punishable under Section 302 IPC was
proved against the accused beyond reasonable doubt and consequently,
convicted and sentenced him as above. 
4. Miss Mathkar, learned Counsel appearing for the accused,
after taking us through the entire evidence led by the prosecution,
submitted that the prosecution has not been able to prove the offence of
murder against the accused. Learned Counsel further submitted that
PW.10 Melissa Fernandes cannot be belied as an eye witness, since her
testimony is full of inconsistencies and having regard to the fact that
her statement was recorded on 14th May, 2008, possibility of she being
tutored cannot be ruled out. 
Learned Counsel next submitted that the recovery of danda
at the instance of the accused also cannot be believed inasmuch as the
same was recovered from open place and it is difficult to believe that
on the previous day of the recovery the police did not notice the blood
stained axe which the prosecution claims to have been discovered and
seized on 29th April, 2008. Learned Counsel further submitted that the
evidence led by prosecution regarding presence of blood on the pant of
the accused, as well as the weapon i.e. the axe MO. Exh.8. is difficult
to be accepted. Learned Counsel then submitted that the prosecution
has not proved the motive for commission of the offence which
assumes much importance having regard to the evidence led by the
prosecution. 
Learned Counsel further submitted that it is the case of the
prosecution itself that both, the accused and the deceased, were drunk
and, as such, even if it is held that the accused assaulted the deceased,
at the most offence under Section 304(II) IPC and not Section 302
IPC is made out against the accused. Learned Counsel lastly submitted
that the evidence led by the prosecution is not sufficient to hold the
accused guilty of murder of Caitan. 
In support of her submissions, learned Counsel placed
reliance upon the following judgments : 
(1)Jalwanti Lodhin vs. The State, (AIR 1953 Patna 246);
(2) Shankar vs. State of Madhya Pradesh, (AIR 1979 SC 1532);7 CRIA No. 02-12
(3)Muthu vs. State by Inspector of Police, Tamil Nadu, ((2009) 17
SCC 433); and 
(4)Yamanappa Ramappa Ibrahimpure vs. State of Maharashtra,
(2011 Vol. 113(3) Bom. L.R. 1492);
5. Per contra, Ms. Sardinha, learned Public Prosecutor,
appearing on behalf of the respondents-State, submitted that the
evidence of PW.10 Melissa Fernandes inspires confidence and she has
absolutely no reason to depose against her own grandfather.
According to learned Public Prosecutor, the accused has not denied his
presence and it is settled law that in a case where there is an eye
witness, the motive pales into insignificance. 
Learned Public Prosecutor further submitted that the
evidence of PW.10 Melissa stands corroborated by the evidence
regarding discovery of the axe at the instance of the accused, as well
as seizure of blood stained pant of the accused. According to learned
Public Prosecutor, in the absence of plausible explanation to the
incriminating circumstances appearing against the accused in his
statement under Section 313 Cr. P.C., the prosecution evidence which
clearly points out to the guilt of the accused has to be accepted and, as
such, no fault can be found with the findings recorded by the learned
Trial Judge who held the accused guilty of charge of murder.
According to the learned Public Prosecutor, delay in recording the
statement of PW.10 Melissa Fernandes is not fatal inasmuch as the
accused has not sought any explanation from the investigating officer
for the delay in recording her statement. 
Learned Public Prosecutor further submitted that having
regard to the nature of the injury and the weapon used, the intention on
the part of the accused to commit murder of the deceased has to be
presumed and, therefore, learned Trial Judge is justified in convicting
the accused of the offence of murder. 
In support of her submission that the delay in recording
the statement of the witness is not fatal, learned Public Prosecutor
placed reliance upon the Judgment of the Supreme Court in the case of
Gunnana Pentayya alias Pentadu and ors., vs. State of Andhra
Pradesh, (2009) 16 SCC 59.
6. We have carefully considered the rival submissions,
perused the record and the judgments relied upon by both sides. 
7. In order to prove the guilt of the accused, prosecution has
relied upon the statement of eye witness PW.10 Melissa Fernandes and
the following circumstantial evidence.
 (i) Homicidal death of Caitan Inas Fernandes
(ii) Recovery of weapon i.e. axe, at the instance of the
accused;
(iii) Presence of human blood on the axe. 
(iv) Presence of human blood on the short pant of the
accused
(v) Evidence of dog handler;
(vi) Scene of offence panchanama. 
8. Before dealing with the evidence of PW.10 who claims to be
the sole eye witness, we deem it appropriate to deal with the first
circumstance i.e. regarding homicidal death of Caitan Inas Fernandes.
In order to prove that the death of Caitan was homicidal, the
prosecution has relied upon evidence of PW.9 Dr. Avinash Pujari who
conducted postmortem on the dead body of Caitan on 29th April, 2008.
He noticed the following injuries on the person of Caitan.
(1) Grazed abrasion red and fresh of size 6.0 x 1.5 to 2.5 cms.
on the top of right shoulder outer aspect backwards and
outwards 9 cms. from root of neck caused by hard and blunt
object.
(2) Contused abrasion red and fresh 3.0 x 1.5 to 2.0 cms. on
top of left shoulder 7.5 cms. from root of the neck caused by
hard and blunt object. 
(3) Frictional grazed abrasion red and fresh 3.5 x 1.5 to 2 cms.
on left side neck below ventricular order near angle caused by
frictional force hard blunt rough object. 
(4) Contused abrasion red and fresh on left side neck 7.0 cms.
below the midway 5.0 cms. from midline 5.0 cms. above collar
bone caused by hard and blunt object. 
(5) Linear abrasion red and fresh on left side neck 12.0 cms.
from midline front at the root of neck 12.0 cms. below fibula
4.0 x 0.2 cms. to 0.5 cms. caused by sharp and pointed object. 
(6) Incised chop wound fresh with blood clot within broader
and deeper with well defined clean cut sharp margins both
angles acute flat sharply cut/divided of size 7.5 cms. x 1.0
cms. (at maximum) x vertebra deep situated on left side upper
part of neck 1.5 cms. below ioq (anterior end) 9 cms. from
midline front/upwards and backwards with evidence of
grazing on upper margin/edge caused by sharp edged
cavy/moderate cavy. 
All these injuries were antemortem in nature. 
He noticed that external injury no.6 had cut slain, subcutaneous
tissue, fascia, sterol, cleida, masdoid and muscles and also severed
veins, nerves, internal and external caroeid arteries with jugular vain,
subtissues. There was evidence of blood infiltration in soft tissues cut
along the track. Front part of the injury deeper than back portion and
approximate depth was 3.0 to 3.5 cms. All the injuries were fresh at
the time of death and were ante-mortem in nature. He opined that
external injury No.6 along with its underlined internal injury was
individually sufficient to cause death in ordinary course of nature. He
further opined that injuries no.1 to 6 were collectively sufficient to
cause death in ordinary course of nature. He also opined that the cause
of death was on account of haemorrhage and fracture of survival
vertebra due to incised chocked wound on left side neck by impact of
sharp edged heavy/moderate weapon. He further stated that he had not
seen any injury on the body of the accused and that he had not
examined the accused in that direction. He further stated that on
30.4.2008, he was asked by police to ascertain the blood group of the
accused. He sent the accused for blood groping. He further stated that
he had given opinion vide letter dated 16.7.2008 that injury No.6 could
have been caused by such weapon having sharp edge. He further12 CRIA No. 02-12
categorically opined that injury No.6 could have been caused by axe
Exhibit-8 which was shown to him. He identified his signature on the
postmortem report Exhibit 42. In the cross examination, nothing
tangible was brought on record, except that stomach was containing 90
CC fluid imparting strong alcoholic smell. He admitted that the
weapon was shown to him for the first time in Court and he had no
opportunity to see the said weapon on earlier occasion. 
9. A close scrutiny of the above evidence clearly discloses that
the deceased Caitan died on account of injury No.6 which was
sufficient to cause his death in ordinary course of nature.
10. Evidence of PW.9 Dr. Avinash Pujari also stands
corroborated by inquest panchanama Exhibit 12, which has been duly
proved by the evidence of PW.1 Cruz Silva. Thus, we have no
hesitation to hold that the death of Caitan was homicidal. 
11. We shall now deal with the evidence of PW.10 Melissa
Fernandes who, according to the prosecution, was the sole eye witness
to the incident of assault by the accused on the deceased which resulted
in his death. Before recording evidence of PW.10 Melissa, learned
Trial Judge put certain questions to her and after satisfying himself
that she was in a position to understand the questions put to her,
recorded her statement.
12. PW.10 Melissa deposed that she has younger sister by name
Swizel. She was also schooling. Her mother had gone abroad. But she
could not say for how long her mother was abroad. She was living
with her maternal grandmother at Bamnabhat. But she did not know
the name of her grandmother. Name of her grandfather is Anton. Her
grandfather Anton was also staying with them at Bamnabhat. She did
not know about the incident that had taken place involving her
grandfather or in which month or year it had occurred. She stated
that the accused was a drunkard and under influence of alcohol he used
to commit assaults. She did not recollect of the accused assaulting
anyone under influence of alcohol. She further deposed that the
police had recorded her statement, but it was not read over to her. At
this stage, the witness was allowed to be cross examined on the ground
that she was resciling from her statement. In the cross examination by
learned Public Prosecutor, she stated that she did not recollect that PI
Santosh had recorded her statement on 14.5.08. She further deposed
that in her statement to the police she had stated that the accused had
come consuming alcohol and her mother had asked him to request the
person who had come, to go away. She denied the suggestion that she
had stated to the police that thereafter, the accused went out with a
mattress and slept under a cashew tree. She deposed that her mother
had informed her that her grandmother went away crying as she was
assaulted by the accused. She admitted that at that time she and her
sister were playing outside the house. She admitted to have stated to
the police that thereafter, the other man returned and slept on the said
mattress. She admitted that thereafter the accused went inside the
house, came out with an axe and assaulted said man with said axe.
She did not know whether the blow was given on the neck of the said
man. She did not know that the accused then went away on a cycle. 
 In the cross examination by the advocate for the accused,
she stated that on the day of the incident, she had not witnessed what
Anton had done. She further stated that they were playing at long
distance from the house. They were playing behind the house. She
stated that they were occupying the same house and that her maternal
grandmother had accompanied her that day to the Court. She was
living with her grandmother and police had made inquiries with her at
home. To the question whether at that time the witness had told police
that she was ignorant, the witness answered that she did not know
anything. She further stated that the police did not record anything in
her presence. Later on she was taken to the police station, but she
could not say when. Thereafter she stated that on the previous day
police had gone to their house and her grandmother had instructed her
what to depose. 
13. Admittedly, statement of this witness was recorded on 14th
May, 2008. From a close scrutiny of the evidence of this witness what
transpires is, initially, the witness did not support the prosecution, but
during the cross examination by learned Public Prosecutor, the witness
stated that she along with her sister were playing outside house and at
that time accused went inside the house, came out with an axe and
assaulted the man who had slept on the mattress kept by the accused
under a cashew tree. However, she did not know whether the blow was
given on the neck of the said man. However, resciling from her earlier
statement made, in the cross examination by learned P.P., stated that
she had not witnessed what Anton had done on the day of the incident
and further stated that both, she and her sister were playing at a long
distance behind the house. We find it extremely difficult to place
reliance upon the testimony of PW.10 Melissa for several reasons.
Firstly, her evidence is not consistent and though initially the witness
did not support the prosecution, supported the prosecution to a certain
extent during the cross examination by learned P.P. and thereafter again
in cross-examination by the advocate for the accused, did not support
the prosecution. Having regard to the nature of the evidence of this
witness, and having regard to the fact that her statement was recorded
on 14th May, 2008 i.e. almost after a period of two weeks from the date
of incident, we find it extremely difficult to place any reliance upon
her statement made supporting the prosecution case during the course
of cross examination by learned P.P. No doubt, learned P.P. is
justified in placing reliance upon the Judgment of the Apex Court in
the case of Gunnana Pentayya (supra), in support of the proposition
that mere delay in recording statement of a witness is not fatal, unless a
specific question is put to the Investigating Officer regarding the
reason for delay. However, in the present case, the Investigating
Officer, who recorded the statement of PW.10, has not even stated as
to what made him to record the statement of this witness only on 14th
May, 2008 and why not on the same day or on the next day of the
incident, more particularly having regard to the fact that he recorded
the statement of wife of the accused i.e. PW.11 Lourecinha Fernandes
who turned hostile on the very same day i.e. 29th April, 2008. It was
expected of the I.O. to record the statement of PW.10 who was a child,
at the earliest. Moreover, the witness is not consistent and does not
even state as to on which part the accused assaulted the deceased.
Therefore, we find it extremely difficult to place implicit reliance
upon the testimony of PW.10 Melissa and to hold that she had
witnessed the incident of assault by the accused on the deceased
Caitan by the axe. 
14. The next circumstance relied upon by the prosecution is in
respect of recovery of weapon i.e. axe at the instance of the accused.
To prove this fact, prosecution examined PW.8 Anthony Castinho who
deposed that on 29th April, 2008, PI Gaonkar from Qupem Police
Station requested him to act as panch witness. There was one more
panch witness, but he did not know his name. The accused, in their
presence, disclosed his name as Anton Fernandes and stated that he
would show the axe which he had used. This disclosure was made in
Konkani which was recorded and their signatures were obtained on the
statement. Thereafter, they proceeded in police vehicle. The accused
showed them the direction. When they reached Cuncolim junction, the
accused asked to take vehicle to the right side. They, then proceeded
on a katcha road to the house of the accused, which was situated in
the locality known as Bamnawado. They got down from the vehicle.
At that place there were two houses and a hut. Accused disclosed
that both the houses as well as the hut belonged to him. The accused
then showed the hut. In the hut, there were one axe, a pickaxe and a
spade. There were blood stains on the sharp edge of the axe. The
police took measurements of the axe. The measurements were
recorded in the panchanama. The police then wrapped iron part of the
axe in the cloth and obtained their signatures on a piece of paper and
affixed the same on the axe. The axe was then wrapped in a cloth.
Panchanama was written and their signatures were obtained on the
panchanama. Both the panch witnesses signed the panchanama and
accused put is thumb impression on the same. He identified his
signature on the panchanama Exhibit 38 at point A.
 In the cross examination, except for a suggestion that the
axe was not attached at the instance of the accused, nothing tangible
has been brought on record. Evidence of this witness also stands
corroborated by the evidence of PW.12 Investigating Officer Ramesh
Gaonkar, whose evidence is also on similar line. 
15. The evidence of PW.8 Anthony Castanha and the evidence of
PW.12 Investigating Officer Ramesh Gaonkar is beyond reasonable
doubt that at the instance of the accused axe (MO Exh. 8) was
recovered and seized on 29/04/2008.
16. The next circumstance is presence of human blood on the axe
which was seized. The same stands proved by the CFSL report
Exhibit 44.
17. The next circumstance relied upon by the prosecution is
presence of human blood on the short pant of the accused. No doubt,
the panchanama Exhibit - 15 pursuant to which the accused was
arrested and his short pant of green colour with strips was seized. No
doubt, CFSL report exhibit 44 discloses that human blood was found
on the short pant worn by the accused. PW2 Lawrente Fernandes, who
was the panch for seizure of half pant of the accused stated that there
were blood stains on the T shirt. However, there is absolutely no
evidence to establish that half pant on which human blood was found
was worn by the accused at the time of commission of the offence.
Curiously, the pant worn by the accused has not been got identified
through PW.10 Melissa, who according to the prosecution was an eye
witness to the incident of assault. Therefore, we find it extremely
difficult to use this circumstance against the accused. 
18. So far as evidence of dog handler PW.4 Ramdas Naik is
concerned, his evidence only points out that the dog moved in the hut
and thereafter in the house and thereafter, he barked. It is now well
settled that the evidence of dog handler can only be used for the
purpose of investigation and cannot be treated on par with substantive
evidence against the accused. The scene of offence panchanama no
doubt discloses that a dead body of a male was found at the spot on a
nylon mattress and there was a cut injury on the left side of the neck.
There were also blood stains near the injury. Thus, the prosecution has
been able to prove circumstances (v) and (vi).
19. The next question which arises for consideration is whether the
circumstances which have been proved are sufficient to hold the
accused guilty of the offence of murder of Caitan Fernandes. In the
present case, we have held that PW.10 Melissa Fernandes cannot be
believed as an eye witness. Therefore, the case now rests on
circumstantial evidence led by prosecution. It is well settled that in
order to convict an accused based on circumstantial evidence, the
following tests have to be satisfied, as has been held by the Apex Court
in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984
SC 1622 :
“(1) The circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned 'must or should' and not 'may
be' established.
(2) The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature
and tendency.
(4) They should exclude every possible hypothesis
except the one to be proved, and
(5) There must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with innocence of the accused and must show
that in all human probability the act must have been
done by the accused.” 
20. From the above discussion, it is evident that circumstances
at serial nos. (i) to (iii), (v) and (vi) stand proved by the prosecution.
The question, therefore, is whether all these circumstances taken
together are sufficient to hold the accused guilty of murder of Caitan
Fernandes. In our considered opinion, all the above circumstances
which stand proved by the prosecution are not sufficient to hold the
accused guilty. The above circumstances which are proved raise strong
suspicion against the accused. But it is settled law that suspicion,
howsoever grave, cannot take the place of proof. Therefore, in our
considered opinion, the accused is entitled to the benefit of doubt. 
21. In view of the above discussion, we are of the considered
opinion that the evidence led by the prosecution is not sufficient to
prove that the accused committed murder of Caitan Inas Fernandes.
The accused is, therefore, entitled to benefit of doubt and
consequently, to be acquitted. 
22. In the result, therefore, the appeal is allowed. The conviction
of the appellant/accused for the offence punishable under Section 302
IPC and the sentence imposed on him is quashed and set aside and the
accused is acquitted of the offence punishable under Section 302 IPC.
Fine amount, if paid by the accused shall be returned to him. The order
passed by the learned Trial Judge, in so far as disposal of the property
is concerned, is maintained. The accused is ordered to be set at liberty
forthwith, if not required in any other case. 
A.P. LAVANDE, J.
 U.V. BAKRE, J. 
ssm.