MARCELINO FERNANDES Vs. STATE

JUDGEMENT

(1.) The five appellants were accused in Sessions Case No. 11 of 1969 on the file of the Sessions Judge at Panaji. They were tried by the learned Sessions Judge for offences of rioting and culpable homicide not amounting to murder etc.; and by the judgement under appeal were convicted for the offence under Section 304, Part II read with Section 34, I.P.C. and sentenced to R. I. for 6 years each.

(2.) The case for the prosecution in short was this : The appellants and Venkatesh Shet Raikar were residing at Ponsulem in Canacona Taluka. On 15-4-1969 at about 10 a.m. P.W. 9 purchased from Venkatesh Shet Raikar a gold ring for Rs. 25/- and showed it to the second appellant to ascertain whether it was of genuine gold. The second appellant told him that it was a fake ring. On it P.W. 9 went to Venkatesh Shet Raikar and asked him to return his money taking back the ring. Venkatesh Shet Raikar took back the ring and returned the money to P.W. 9. Second appellant told the appellants 1 and 3 to 5 that Venkatesh Shet Raikar had sold fake ring to P.W. 9. On it all the appellants thought of punishing Venkatesh Shet Raikar. At about 3.30 p.m. on 15-4-1969 all the appellants waited for Venkatesh Shet Raikar near the house of Ram Vernekar which was near Chawddi at Ponsulem, Canacona, and when Venkatesh Shet Raikar came there they all beat and kicked him. The first appellant beat Venkatesh Shet Raikar on the back of the neck with a broken tile also. Due to the injuries caused to Venkatesh Shet Raikar, he fell down on the ground and began to vomit blood. Seeing the injured vomiting blood all the appellants fled away from the scene of the offence. The injured then got up and went to his house at Ponsulem. P.Ws. 2 and 5 to 8 had witnessed the incident of beating. P.W. 2 went and informed P.W. 1 about Venkatesh Shet Raikar being injured. While P.W. 1 was coming to take the injured to the house of the injured, the injured met him on the way. After the injured went to his house, he told P.W. 1 and others that the appellants had beaten him. P.W. 1 went to bring the doctor and he returned by about 4.30 p.m. When he returned to the house of Venkatesh Shet Raikar, he found Venkatesh Shet Raikar dead. He gave report about the occurrence to the Police. P.W. 12 investigated and filed the charge-sheet on 21-5-1969. Panchanamas about the scene of the offence and seizure of clothes of the deceased etc. were attested by P.Ws. 3 and 4. P.W. 10 held autopsy on Venkatesh Shet Raikar's corpse on 16-4-1969 from 10.30 a.m. to 12 noon and found that due to shock and due to head injuries, Venkatesh Shet Raikar and died about 24 hours prior to autopsy. The statement of the first appellant was recorded under S.164, Criminal P.C. by Magistrate, P.W. 11, on 16-4-1969. In that statement the first appellant stated that he had not beaten the deceased. The deceased had died due to the injuries caused by the appellants.

(3.) The appellants contended in the lower court that they had not injured the deceased and that the deceased was a drunkard and he was not keeping good health. Four witnesses were examined in defence. The appellants 1, 2 and 5 adduced evidence to the effect that they were not at the scene of the offence at about 3.30 or 4 p.m. on 15-4-1969.