CAMILO VAZ Vs. STATE OF GOA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 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 the 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 on 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 chain. 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.