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PETITIONER:

CAMILO VAZ

Vs.

RESPONDENT:

STATE OF GOA

DATE OF JUDGMENT: 10/04/2000

BENCH:

Ruma Pal, D.P.Wadhwa

JUDGMENT:

D.P. WADHWA,J.

Sole appellant is aggrieved by the judgment dated

28.11.1997 of the Bombay High Court at Goa upholding his

conviction for an offence under Section 302 of Indian Penal

Code ('IPC' for short) and sentence of life imprisonment

awarded to him by the District and Sessions Judge, South Goa

at Margao.

Originally there were 17 accused including one

absconding, who were tried for offences under Sections 302,

307, 326, 325, 143, 144, 140 IPC read with Section 149 and

Section 120-B IPC for having committed the murder of Simon

Fernandez (Simon), a Sub-Inspector of Police and attempt to

murder his two brothers, namely, Irineu Fernandez (Irineu)

and Victor Fernandez (Victor). Sessions Court convicted

five of them including the appellant holding them guilty of

murder of Simon under Section 302 read with Sections 120-B

and 149 IPC. They were further held guilty for attempt to

murder of Irineu and Victor under Section 307 read with

Sections 120-B and 149 IPC. They were also held guilty of

unlawful assembly under Section 143 and rioting under

Section 148 read with Sections 120-B and 149 IPC. For these

offences they were respectively sentenced to life

imprisonment, 7 years imprisonment and 2 years imprisonment.

No separate sentence was passed for an offence under Section

143 IPC. All these five accused had appealed to the High

Court against their conviction and sentence. High Court

maintained the conviction and sentence of the appellant

under Section 302 IPC. Other four accused were convicted

under Section 326 IPC and their conviction for offence under

Section 302 and 307 IPC were set aside. Their sentences

were reduced to the imprisonment they had already undergone.

High Court also rejected the alternate plea of the appellant

that on the facts of the case there could be conviction only

for an offence under Section 304, Part-I or Part-II IPC.

The incident, which resulted in conviction of the

appellant and others, occurred on the midnight of

4/5.5.1993. Arlem Festival was celebrated on 1.5.1993,

2.5.1993 and 4.5.1993. Boys of two villages Khaneband and

Calconda were not on best of terms between them. During

the festival they had been fighting with each other. On the

night of 4/5.5.1993 Victor, who was from Calconda, attended

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the festival. He went at 9.30 P.M. and returned back home

at about 12.00 midnight. Simon and Irineu did not attend

the festival on that day and were already there in the house

as they all lived together. At about 2.30 A.M. someone

banged the door of their house. These three brothers came

out and saw a young boy standing outside a few feet away

under a banyan tree. They asked him what was the matter

about. Suddenly a group of 15/20 boys emerged from the

bushes near the banyan tree and started beating the three

brothers. They were armed with sticks, cycle chains and

bottles. These boys belonged to Khareband. They assaulted

the three brothers. Appellant hit Simon with the stick of

the thickness of 2" and length of 4'. Simon fell down

unconscious. Still he was being hit and beaten by the

assailants. Victor and Irineu were also beaten up and

suffered injuries. Hearing the loud shouts the neighbours,

which included boys of Calconda, came and the assailants ran

away. Condition of Simon was serious. He was taken in a

rikshaw by one of the neighbours to the Hospicio Hospital.

Another neighbour brought his car and removed Irineu and

Victor to Hospicio Hospital. Since condition of Simon

continued to be serious he was shifted to GMC Bambolim.

Irineu and Victor were also taken to GMC Bambolim in the

same ambulance with Simon. Police came to the hospital and

recorded the statement of Irineu on the morning of 5.5.1993.

He said on 4.5.1993 after having dinner at about 10.30 P.M.

they went to sleep. On the morning of 5.5.1993 at about

2.30 A.M. someone banged the front door and asked them to

come out. When they came out they did not see anyone

outside. They went ahead by the footway and saw a group of

15 persons holding iron rods, sticks and cycle chains. When

they approached near them they pelted soda bottles on them

and immediately assaulted them with sticks and iron rods on

the head. Appellant gave a blow on his head and he fell

down unconscious. Irineu said that assault continued for

about three to four minutes and when the neighbours came

there those persons fled away. Irineu made complaint

against the appellant and his group of gangs, who assaulted

him, his brothers Simon and Victor causing serious head

injuries on them. He stated that they were admitted to the

hospital by their neighbours. He also said that there was

no enmity between them and the appellant. On the basis of

the complaint lodged by Irineu police first registered the

case under Section 307 IPC. When Simon died on 8.5.1993

offence under Section 302 IPC was also added. After

completing the investigation as many as 17 accused were sent

for trial for various offences. Prosecution examined as

many as 33 witnesses. Statement of each of the accused was

recorded under Section 313 of Code of Criminal Procedure.

They denied their involvement in the crime and said they had

been falsely implicated. Apart from Irineu and Victor, who

were examined as PW-8 and PW-9, there were other eye

witnesses whose statements were recorded.

Dr. Purnanand Audi conducted the post mortem on the

dead body of Simon. On external examination of the dead

body he found following 11 injuries: -

"1. Stitched lacerated wound of 9 x 3 cms. deep with

bruise around was present on left eyebrow. 2. Black eye 6

x 6 cms. on left eye. 3. Black eye 6 x 6 cms. on right

eye. 4. Laceration 3 x 1 cms. mucosa deepa on the lower

lip right side. 5. Grazed abrasion 6 x 4 cms. on right

side of face below cheek bone. 6. Sutured incised wound of

inverted U type 14 cms. linear on right temporal parietal

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region of head underneath there was abruise. 7. Sutured

vertical wound of 3 cms. linear on left temporal region.

8. Needle prick mark on dorsum of the right feet and right

dorsum of the head. 9. Abrasion 3 x 1 cms. front of the

left knee. 10. Rail road type patterned bruise of 3 x 1.8

cms. on front of the left elbow towards forearm side. 11.

Bruise of 2 x 1 cms. on base of nose."

According to Dr. Audi injuries numbers 1 to 5 and 9

to 11 were caused by impact of the blunt force and injuries

numbers 6 to 8 were made by the surgeon as part of the

treatment. On internal examination Dr. Audi found that

there were outpouring of the blood under injuries numbers 1,

6, 7 and 11. He further found "there was fracture of

frontal bone left side extending to left orbital plate and

anterior cranio fossa further to right wing of the spnoid

bone. In right middle cranio fossa extending further to the

right temporal bone, there was in extradural haemotoma of 4

x 2 x 1 cms. on right temporal lone of brain. There was

thing subdural haemotoma of 6 x 2 x 1 cms. on right

temporal lone of the brain. Sub aracnoid haemorrage was

present on both the sides of the brain. There was contusion

neurosis on left cortical part of orbital lobe of the brain.

There was swelling on the brain and brain material was

coming through the hole made by the surgeon, while giving

the treatment. There were pin point haemorrages through the

white matter of the brain. There was herniation of both

parahypo campal region of the brain. There was also

fracture of the nasal bone in addition to the skull bone as

said earlier". In the opinion of Dr. Audi cause of death

was due to cranio cerebral damage, head injury as result of

the impact.

Dr. Vasudeo Devari (PW-4), who was working as Medical

Officer in Hospicio Hospital, examined Irineu and found the

following injuries: -

"1. CLW 6" x ½" x bone deep extending from right

parietal region to the left parietal region. The opinion

was kept reserved. 2. CLW 2" x ½ x ½" left parietal

prominence caused by blunt instrument, simple in nature."

He said the injuries could be caused by blunt

instrument. He also examined Victor and found the following

injuries: -

"1. CLW 1 ½ x 1 ½" x 1" on the right eyebrow caused

by hard blunt object less than 6 hours duration. The

opinion of all the injuries were kept reserved. 2.

Swelling 5" in the right mixillary region extending to the

right angle of mandible. Caused by hard blunt object, less

than 6 hrs. of age. 3. CLW 1" x ½" x ½" on the upper lip,

caused by hard blunt object, less than 6 hours. A doubtful

fracture on the upper. Zipih sternum on the middle point

and loss of upper counter and there was swelling. The

opinion of fracture had to be confirmed by x- rays etc. and

as such the opinion was reserved. A swelling with deformity

on the left forearm caused by hard blunt object."

When Simon was brought to the Hospicio Hospital Dr.

Devari had also examined him and found him unconscious, his

pupils were dilated and reacting sluggishly. He found

following injuries on the body of Simon: -

"1. Multiple CLW 1" x ½" x ½" with depressed fracture

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on the left side of the forehead caused by hard blunt

object, less than 6 hours duration. In view patient having

head injury, the patient was referred to G.M.C. for expert

neuro surgical management. After giving initial treatment,

the Police were advised to collect further report from the

G.M.C."

According to Dr. Devari injuries found on Simon could

be caused by stick as also by bottles. He, however, said

that he felt that in this case the object might be having

multiple rough and irregular edges because there were

multiple injuries. He said such edges were absent in

bottles and sticks and injuries could, therefore, had been

caused by stone. He was unable to say if injuries on Simon

could have been caused by throwing of a stone of about half

a kg. weight. He said injuries on Simon were several but

localised in one region mainly on the left side of the

forehead. Statement of Dr. Devari has been severally

criticized by the learned Sessions Judge.

Trial court has referred to the incident which

occurred at Arlem Festival on 1,2 and 4.5.1993, which

according to him could have been prelude to the main

incident in question furnishing the motive for the same. It

was the rivalry between the boys of Khareband and Calconda

villages. It is on record that there were rival gangs of

Khareband and Calconda and while injured and the prosecution

witnesses are from Calconda the accused are from Khareband.

According to the learned Sessions Judge the fracas, which

occurred between these two rival gangs on the nights of

1.5.1993, 2.5.1993 and 4.5.1993 had been duly established.

At the same time learned Sessions Judge was of the opinion

that when the case rested on the direct evidence failure of

the prosecution to prove the motive was of not much

significance.

There is concurrent finding that it is the appellant

who hit Simon with a stick on his head and he fell

unconscious. The appellant and other assailants did not

stop at that and they went on beating and hitting Simon with

the result he received multiple injuries. Ultimately the

medical evidence showed that it was the injury on the head

caused by blunt weapon which resulted in the death of Simon.

Mr. P.R. Namjoshi, senior advocate, has severally

contended that First Information Report (PW-8/A) lodged by

Irineu on the morning of 5.5.1993 did not implicate the

appellant as the one having caused head injury on Simon. He

said according to Irineu (PW-8) himself it was he who was

hit by the appellant and he fell unconscious. This point

was also raised with all seriousness in the trial court as

well as in the High Court. On that very day in the evening

further statement of Irineu was recorded where he clarified

that head injury was caused on Simon by the appellant. He

explained the discrepancy which crept in the FIR (PW-8/A).

He said since his brother was in serious condition he was

worried. His explanation has been accepted by both the

courts and we see no reason to take a different view. Both

Irineu and Victor have said that the appellant had caused

the head injury which resulted in the death of Simon. After

the statement of Dr. Devari (PW-4) prosecution did try to

improve upon their version when it brought in the story of

stone hit on the head of Simon in the deposition of two

witnesses. This theory of Simon being hit by stone and the

statements of those eye witnesses were, however, discarded

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by the trial court and in our opinion rightly.

There cannot be any dispute about the incident having

taken place where three brothers received injuries resulting

in the death of one of them. The question, which has now

been seriously contended before us, is could in these

circumstances the appellant be held guilty of an offence

under Section 302 IPC. The instant incident is the fall out

of the quarrel between the rival gangs of Khareband and

Calconda. They have been fighting on 1.5.1993, 2.5.1993 and

4.5.1993. On the night of 4.5.1993 boys of Calconda had

gone to Arlem Festival. Some of the persons who are accused

before the Trial Court of the rival Khareband gang were also

present. Altercation took place between them which has been

deposed to by the witnesses. From the side of Khareband, it

was the appellant who superheaded the fight. He beat up

Jayesh (PW-14) and threw him on the ground and gave him kick

blows. He hit a boy Dinesh as well. Other accused present

were Shivappa (accused No.2), Mehaboob (accused No.3), Raju

Jamune (accused No.4), Mossess Martins (accused No.5), Raju

Naik (accused No.6), Mustaq (accused No.7) Milind (accused

No.8) Babda (accused No.9), Kadar (accused No.10), Damu

(accused No. 11), Simon Martins (accused No.15), and Seby

Calaco (accused No.16). People intervened and asked the

appellant not to fight. Leaving Jayesh (PW-14) injured, it

appears, he left the scene along with others. The incidents

of 1.5.1993, 2.5.1993, and 4.5.1993 were not reported to the

Police and have been played down by Artemio D'Silva (PW-25)

who was the co-organisor of the Arlem Festival. As noted

above, the accused were variously armed like dandas, bottles

and cycle-chains or even stones. When the three brothers

reached near the banyam tree and they saw a boy who was

identified as accused No.6 and inquired from him as to why

he was banging the door of their house. All of a sudden,

from the bushes near the banyam tree 15 to 16 boys started

attacking the three brothers by throwing bottles on them.

Fortunately, the bottles did not hit them. It was the

appellant with a danda and Seby (accused No.16) with a chain

that came to assault Simon. Both Irineu (PW-8) and Victor

(PW-9) asked the appellant as to why they were going to

assault them. At this stage, the appellant hit a danda on

the head of Simon. There was simultaneous assault on Irineu

and Victor. As noted above, on the night of 4.5.1993, there

was altercation at the Arlem festival between the boys of

Kharaband and Calconda. Victor had also attended the

festival that night. Most of the boys of Calconda including

Jayesh (PW-14) returned from the festival but some of them

including Sanjay (PW-21) and Sandesh, brother of Dinesh

stayed back. Dinesh went to the house of Jayesh (PW-14) to

inquire about his brother Sandesh. He was worried about

him. Dinesh woke up other boys. They all lived in that

area near the house of Jayesh (PW-14). House of Jayesh

(PW-14) is at a distance of about 150 meters from the house

of Simon (deceased). While they were standing in the paddy

field near the house of Jayesh (PW-14), they heard shouts

coming from the scene of the offence and they ran towards

that. They witnessed the occurrence. After danda blow was

given on the head of Simon, he fell down unconscious.

Mossess Martins (accused no.5), Mustaq (accused No.7),

Ramesh Babda (accused No.9), Nissar (accused No.12),

Pundalic (accused No.14), Simon Martins (accused No.15) and

Seby (accused No.16) also assaulted Simon. Trial Court has

held that from the evidence led by the prosecution, it had

been established that the assault on the Simon was made by

the appellant and Seby (accused No.16). Trial Court said

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that when there is assault by a large group of persons, it

is not possible to get corroboration from the witnesses to

see as to what assault was made by each of the accused.

Trial Court was, however, of the opinion that the

prosecution had been able to establish that it was the

appellant who was the author of the injury No.1 on the

person of deceased Simon underneath which there were

fractures, which was sufficient in the ordinary course of

nature to cause death. It was said that the danda blow was

thus given with force on the head which is vital part of the

body. Trial Court described injuries 2 to 5 and 9 on

account of kicks given to the deceased Simon by Seby (accuse

No.16). Cause of injuries No.10 and 11 could not be

established. Those had been caused by sharp and blunt

weapons including danda. Trial Court further held that it

was Mossess Martins (accused No.5) who assaulted Irineu

(PW-8) on his head. There were two injuries on the perietal

regions found by Dr. Devari (PW-4) one of which had been

caused by Mossess Martins (accused No.5) and other by Mustaq

(accused No.7). Trial Court further held that the

appellant, Mossess Martins (accused No.5), Mustaq (accused

No.7) and Simon Martins (accused No.15) assaulted Victor and

caused injuries to him. After considering the evidence in

detail and taking into account all the relevant

considerations, the Trial Court convicted some of the

accused and sentenced them as aforementioned. High Court,

it appears, has not considered the record of the case in any

detail. Rather on each aspect of the matter it has referred

to the judgment of the trial court. It rather appears to us

that judgment of the trial court is an annexure to the

judgment of the High Court. It has not been possible for us

to appreciate the judgment of the High Court as to how it

has convicted the accused appellant before it. High Court

has held that the appeals of accused Nos.5, 7 15 and 16

succeeded so far as the prayer for bringing out their case

from the purview of Section 149 IPC in relation to the

principal charge of murder under Section 302 IPC is

concerned. High Court then said that the order of

conviction under Section 307 IPC is set aside "completely".

Then it went to hold that the conviction of accused Nos.5,

7, 15 and 16 is maintained for the rest of the offences as

held by the trial court and conviction of accused No.1 (the

appellant) is made under Section 302 IPC. Since the case of

other accused except the appellant is not before us, we

leave the matter at that. Position as it presents today is

that the appellant stands convicted for an offence under

Section 302 IPC on account of the fatal blow he caused on

the head of Simon (deceased). Simon met with homicidal

death. When the Khareband boys came to the house of Simon

and his two brothers led by the appellant they did not come

with the intention to kill anyone. They were not armed with

any particular weapon to commit the murder. There was a

rivalry between them and during the Arlem Festival on

1.5.1993, 2.5.1993 and 4.5.1993 there were minor fracas. In

fact, the rivalry existed even much prior to these dates.

They came to the house of Simon and his brothers not to

commit murder but to thrash them. What transpired at the

Arlem festival on the night of 4.5.1993 that they came to

the house of Simon and his brothers it has not bee possible

to say. Only one of the brothers, namely, Victor had gone

to attend the festival and returned around midnight. The

brothers are from Calconda. These boys of Khareband who

came to the house of the three brothers were armed with

dandas, bottles and cycle chains. The purpose apparently

was to beat up the brothers by giving them sound beatings

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but certainly not with any intention to kill anyone of them.

In fact Irineu in his First Information Report to the police

(PW 8/A) had stated that there was no enmity between them.

In these circumstances, can it be said that the appellant

has committed the offence of murder because he hit Simon on

the head, a vital part of the body, with such a force with

danda in his hand that Simon fell unconscious and later

succumbed to his injury? To us, it appears, at the most it

can be said that the act of the appellant in hitting Simon

was done with the knowledge that it was likely to cause

death but without any intention to cause death or to cause

such a bodily injury as is likely to cause death. The case

of the appellant would, therefore, clearly fall under

Section 304 part II IPC. Courts below did not apply their

mind to this aspect of the matter in proper perspective and

they were rather swayed by the fact that on account of the

danda blow by the appellant, Simon died an unnatural death.

There was no material on record which showed that appellant

was bent upon killing Simon and "eventually death came out

to be the result". This is merely a surmise of the High

Court. Section 304 is as under : "304. Punishment for

culpable homicide not amounting to murderwhowever commits

culpable homicide not amounting to murder, shall be punished

with imprisonment for life, or imprisonment of either

description for a term which may extend to ten year, and

shall also be liable to fine, if the act by which the death

is caused is done with the intention of causing death, or of

causing such bodily injury as is likely to cause death; or

with imprisonment of either description for a term which may

extend to ten years, or with fine, or with both, if the act

is done with the knowledge that it is likely to cause death,

but without any intention to cause death, or to cause such

bodily injury as is likely to cause death."

This section is in two parts. If analysed the section

provides for two kinds of punishment to two different

situations. (1) if the act by which death is caused is done

with the intention of causing death or causing such bodily

injury as is likely to cause death. Here important

ingredients is the "intention"; (2) if the act is done with

knowledge that it is likely to cause death but without any

intention to cause death or such bodily injury as is likely

to cause death. When a person hits another with a danda on

vital part of the body with such a force that the person hit

meets his death, knowledge has to be imputed to the accused.

In that situation case will fall in part II of Section 304

IPC as in the present case. We are also not oblivious on

the fact that other four accused who were similarly

convicted with the appellant with the aid of Section 149 IPC

have been held guilty only for offence under Section 326

IPC.

We, therefore, hold the appellant to be guilty for an

offence under Section 304 Part II IPC. His conviction under

Section 302 IPC is, therefore, set aside. We sentence the

appellant to undergo Rigorous Imprisonment for seven years

and to a fine of Rs.50,000/-. In case of non- payment of

fine, appellant shall undergo further rigorous imprisonment

for a period of two years. Fine when realised shall be paid

to the widow of Simon. Appeal is, thus, partly allowed.