NOLASCO MENEZES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant stands convicted for an offence punishable under section 304 (II) of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 2000/- in default simple imprisonment for 2 months. It is this conviction and sentence which is assailed before me in the present appeal.

(2.) THE brief facts necessary for decision of the appeal are set out below :-On 8th October, 1997 at about 8. 00 a. m. , P. W. 4 Dr. Nutun R. Dev, a doctor attached to the Public Health Centre at Betki examined the injured one Bonny Dias, aged 35 years, resident of St. Estevam, who was brought by his cousin brother to the said Public Health Centre. P. W. 4 Dr. Dev examined the injured, who was conscious, oriented and smelling of alcohol but not under its effect. She found that there was a cut on the right angle of the mouth, which was bleeding profusely. This cut was extended right upto the inner part, that is, inside the oral cavity. He had other injuries also. P. W. 4 Dr. Dev sutured the wound from outside and the injured was referred to the Goa Medical College Hospital, Bambolim, for further treatment. P. W. 4 Dr. Dev issued a certificate at Exhibit 15. The injured said Bonny Dias was then admitted to the Goa Medical College Hospital, Bambolim and was examined by P. W. 5 Dr. Oswald DSa on 8th October, 1997 at about 11. 00 a. m. According to P. W. 5 Dr. DSa, the history of fall was given by the patient. According to P. W. 5 Dr. DSa, the relatives of the injured Bonny Dias advanced history of assault some time in the evening at about 6. 15 p. m. Further, according to P. W. 5 Dr. DSa, the said Bonny Dias did not give him the history of assault when he had examined him at about 5. 00 p. m. The certificate at Exhibit 18 was issued by P. W. 5 Dr. DSa. According to him, the injured was suffering from jaundice with chlorosis of liver and further, according to him, the injury on the mouth could not be caused by assault with as broken bottle. In the cross-examination P. W. 5 Dr. DSa admits that he had examined the injured again between 4. 00 to 5. 00 p. m. and the injured was still in shock, blood pressure was low, he was restless and he was incoherent.

(3.) P. W. 29 Anandu Naik, who was then the P. S. I. attached to the Ribandar Police Station, received a complaint on 8th October, 1997 at about 4. 45 p. m. from one Julian (P. W. 15) complaining of assault on the said Bonny Dias at the hands of the present appellant. The said complaint, Exhibit 40, was presented by P. W. 15 Julian Viegas, who is the brother-in-law of the injured Bonny Dias. On the basis of the said report P. W. 29 P. S. I. Anandu Naik deputed A. S. I. Baburao Sanadi to the Goa Medical College Hospital, Bambolim for recording the statement of Bonny Dias. P. W. 21 A. S. I. Baburao Sanadi recorded the statement of the injured Bonny Dias, which is at Exhibit 49. On the basis of the statement of Bonny Dias, Exhibit 49, P. W. 29 P. S. I. Anandu Naik registered an offence under section 326 of the Indian Penal Code against the present appellant. He then arrested the appellant in the presence of P. W. 11 Newman Gomes and the arrest panchanama is at Exhibit 33. P. W. 29 P. S. I. Anandu Naik then seized M. O. 10 a T-shirt worn by the deceased and M. O. 1 slippers of the deceased from the house of the appellant in the presence of P. W. 1 Pravin Phadte. The said slippers and T-shirt were attached under an attachment panchanama Exhibit 9. T he injured Bonny Dias succumbed to his injuries on the late evening of 8th October, 1997. Meanwhile from the spot of the incident, which was pointed out by the appellant, certain articles came to be seized which included beeds, broken glass pieces, broken bottle, etc. which are M. Os. 2, 3, 7, 8, and 9. The scene of occurrence panchanama was prepared in the presence of P. W. 2 Francis Dias and the same is at Exhibit 11 colly. A sketch of the scene of offence was also drawn and photographs were taken by P. W. 23 Jairam Adconkar. During investigation the clothes of the appellant came to be attached in the presence of P. W. 12 Mariano Fernandes and the attachment panchanama is at Exhibit 35. During the investigation also the inquest panchanama at Exhibit 25 was drawn in the presence of P. W. 7 Agnelo Menezes. The Maruti car of the appellant came to be attached vide Exhibit 27 in the presence of P. W. 8 Socorro Rebello. The clothes of the deceased Bonny Dias came to be attached vide attachment panchanama Exhibit 29 in the presence of P. W. 9 Rajkumar Sawantwadkar. Vide attachment panchanama Exhibit 31 the Kinetic Honda Scooter belonging to the appellant and one bucket came to be attached in the presence of P. W. 10 Jose Mascarenhas. The sketch of the scene of offence came to be drawn by P. W. 24 M. K. Adfadkar and the same is at Exhibit 55. The muddemal property was sent for serological examination and the same were examined by P. W. 28 Dr. N. R. K. Rao, who has issued his report at Exhibits 65 and 66 colly.