MOHANDAS NAIK Vs. STATE

JUDGEMENT

(1.) The challenge in the appeal is to the judgment dated 4/07/2008 passed by the learned Sessions Judge, South Goa, Margao in Sessions Case No.8/2006, whereby the appellant was convicted and held guilty of an offence punishable under Section 302 and Section 506 of the Indian Penal Code and Section 3 r/w Section 25(1B)(a) of the Arms Act, 1959 and was sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a further period of three months, for an offence punishable under Section 302 and to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default to undergo one month rigorous imprisonment and to undergo simple imprisonment for one year and to pay a fine of Rs.500/-, in default to undergo fifteen days simple imprisonment for an offence under Section 3 r/w Section 25(1B)(a) of the Arms Act, 1959 and all the substantive sentences of imprisonment in respect of all the offences were ordered to run concurrently.

(2.) Background facts as projected by the prosecution to fasten the guilt of the appellant are as follows; It is the case of the prosecution that on 11/11/2005 at about 23 hours, the appellant went along with Nilu Gaonkar/PW4, Sudesh Naik/PW10, Suryakant @ Bapi Naik/PW11 and deceased Ankush @ Babu Naik to Deugatimol Dudhal, Kalay Sanguem for hunting. It is further their case that on 12/11/2005 at about 4.00 a.m., the appellant fired gun shot at the deceased from close proximity killing the deceased Ankush instantly and, thereafter, the appellant pointed the said gun to Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 and prevented them from helping the deceased. The motive claimed by the prosecution is that there was previous enmity between the appellant and the said deceased. Thereafter, the FIR No.60/2005 under Section 302, 506 of the Indian Penal Code and Section 3 and Section 25(1B)(a) of the Arms Act came to be registered at the Curchorim police station.

(3.) In support of their case, the respondents examined thirty witnesses in order to establish the guilt of the accused in having committed the said offences. The prosecution case is that there was a meeting between the accused and all the said persons referred to herein above in a bar at Savordem wherein they planned to go for hunting. The said meeting is sought to be established on the basis of the evidence of Ms. Sulaksha Naik/PW2, Sudesh Naik/ PW10 and Suryakant @ Bapi Naik/PW11. It is further the case of the prosecution that after the said meeting, all the said persons proceeded to Chowgule canteen at Costi and bread was purchased by the appellant. The said aspect has been narrated by Satyawan Naik/PW9, Sudesh Naik/PW10 and Surayakant @ Bapi Naik/PW11. Thereafter, all the said persons proceeded to the house of Nilu Gaonkar/PW4, who was reluctant to proceed along with the appellant and the said two persons namely Sudesh Naik/PW10 and Suryakant @ Bapi Naik/PW11 and the deceased, as he was not too well, but further he proceeded to join them and took along with him some curry. The spot at Dudhal, Kalay where all the said persons along with the appellant were supposed to carry on the hunting was shown by the said Nilu Gaonkar/PW4. The said facts have been narrated by Nilu Gaonkar/PW4 as well as Nandini Gaonkar/PW1 and Draupadi Gaonkar/PW3. All the said persons including the said Nilu, said Sudesh, said Suryakant, the appellant and the deceased sat under the cubic tree and ate the bread and the curry, as narrated by Nilu Gaonkar/PW4. Thereafter, Sudesh Naik/PW10 stated that the appellant tied the headlight to the forehead and assembled the dismantled gun and put a red coloured cartridge from his pocket into the gun. The said Sudesh, Suryakant and Nilu sat at a distance of 15 to 20 metres away from the appellant and the said deceased. Thereafter, it is the case of the prosecution that at about 4.00 a.m., there was an altercation between the appellant and the said deceased and, subsequently, the gun shot was heard in the direction where the appellant and the deceased were sitting. This aspect has been narrated by Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Surayakant @ Bapi Naik/PW11. Having heard the said sound, said Sudesh, Nilu and Suryakant rushed to the spot and saw the deceased lying in pain and shouting and the appellant holding the gun pointing towards the said deceased. It is further contended that the appellant threatened the said three persons and asked them if they are not going home and pointed the gun to them. After the said incident, it is the case of the prosecution that the said Nilu Gaonkar returned to his house. The said Sudesh and Suryakant also returned and collected their motorcycles. The appellant, thereafter, returned to the house of Nilu Gaonkar/PW4. Vinod Gaonkar/PW17 and Draupadi Gaonkar/PW3 further stated in their deposition that the appellant made a phone call saying "Havem Babucher Far Mallo to maka gadi gheun shalekaden vorunk yo". Vinod Gaonkar/PW17 further stated that the appellant had stated that due to a quarrel he had shot the said deceased. It is further the case of the prosecution that the said Sudesh and Suryakant went to the house of Sudhakar and informed him about the incident. The said Sudhakar, who is PW8 thereafter went with them to the police station and a complaint was lodged by the said Sudesh Naik/PW10 at the police station with regard to the said incident. The prosecution has also examined several witnesses to establish that the appellant was seen with the said weapon prior to the incident. The said aspect has been narrated by Nilu Gaonkar/PW4, who also identified the weapon and Meena Ankush Naik/PW6 also identified the said weapon. The gun was also described by Mr. Sudhakar Naik/PW8 and Vinod Naik/PW15. The existence of the gun at the site was sought to be established on the basis of the evidence of Nilu Gaonkar/PW4, Sudesh Naik/PW10 and Surayakant @ Bapi Naik/PW11. The said gun was also spotted after the incident by Nandini Gaonkar/PW1 and Vinod Gaonkar/PW17. The said weapon was recovered pursuant to a recovery under Section 27 of the Indian Evidence Act at the instance of the appellant. The prosecution has also examined Dr. Avinash Pujari/PW24, who had prepared the autopsy report, as well as the ballistics expert Dr. Gourhari Kamila/PW18. After conducting the investigations, the charge sheet came to be filed before the concerned Court and the learned Sessions Judge framed the charge on 19/06/2006. The plea of the accused was recorded on 19/06/2006 and the appellant pleaded not guilty and claimed to be tried. Thereafter the prosecution examined all the said witnesses and produced the evidence on record. The statement of the appellant under Section 313 of the Criminal Procedure Code was recorded and after hearing the prosecution as well as the appellant, the learned Sessions Judge came to the conclusion that the prosecution had established beyond reasonable doubt that the appellant had committed the offences punishable under Section 302, 506 of the IPC and Section 25(1B)(a) of the Arms Act and sentenced the appellant to life imprisonment as well as the payment of fine by the judgment dated 4/07/2008.