CAETANO PACHECO Vs. ANTONIO BORGES

JUDGEMENT

(1.) THIS revision is directed against the judgment of the learned Additional Sessions judge, Margao, dated 20th February, 1993 which has upheld the petitioners conviction under section 323 read with section 34 of I. P. C. , by order dated 22. 9. 1992. By the aforesaid order the petitioners had been sentenced to pay a fine or Rs. 250/- each and in default to undergo 15 days simple imprisonment.

(2.) THE case of the prosecution is mat on 20th November, 1982 at about 11 a. m. , when the respondent No. 1 (hereinafter referred to as the respondent) was returning to his house from the house of his mother-in-law situated at Comba, both the petitioners who are on inimical terms with him, kept a watch on him and physically assaulted him on the road near the petitioners house. The petitioner No. 1 caught hold of him from behind while the petitioner No. 2 hit him on his forehead with a stone causing him grave injury. On a complaint lodged by him to the Police he was sent to hospital where he was treated by the Medical Officer; A medical certificate was issued by Dr. Kusum Talaulikar, but inspite of that the complaint was treated as N. C. complaint. The respondent then lodged a private complaint in the Court charging the petitioners under sections 323 and 504 read with section 34 of I. P. C. The petitioners pleaded not guilty to the charge. The learned Magistrate after recording evidence found the petitioners guilty of the offences under section 323 I. P. C. and sentenced them accordingly. The appeal filed by the petitioners was then rejected by the judgment which is under challenge in this petition.

(3.) SHRI Lawande, learned counsel for the petitioners, has firstly submitted that the evidence led by the complainant has not proved the case of the prosecution. According to the learned counsel the prosecution story narrated by the respondent is not at all corroborated by the testimony of the only available eye witness who is Michael Pereira, P. W. 3. The learned counsel urged that the said Michael is undoubtedly a chance witness. Further regard should have been taken by the Magistrate on the background of the case and the admitted strained relationship between the parties consequent upon which a number of police cases had been filed between the family members of both the respondent and the petitioners. Shri Lawande has contended that if the evidence of P. W. 3 is discarded nothing remains in support of the prosecution case because the evidence of P. W. 1 by itself cannot be said to be sufficient enough to establish the case of a physical assault against the respondent beyond reasonable doubt. It was also submitted by the learned counsel that the evidence of P. W. 2, a medical officer who examined the respon4ent after the incident, does not take the prosecution case any further. In her deposition P. W. 2 Dr. Kusum Talaulikar, has stated that the head injury sustained by the respondent could have been also caused by a fall. This means that the injury need not have been necessarily inflicted as a result of a blow, on his forehead by the petitioner with a stone. As far as the evidence of P. W. 3 Michael Pereira, Shri Lawande pointed out substantial contradictions between the testimony of the two main witnesses for the prosecution. First of all while the respondent in his evidence says that the assault occurred in front of the house of the petitioners, Michael Pereira refers to the fact that he saw the petitioner hitting the respondent near the Chapel. There is also some inconsistency in the deposition of both the witnesses inasmuch as while the respondent in his complaint says that after the incident he went home and thereafter to the Police Station and in, his deposition in the Court refers to the fact that he was taken by somebody to his house; P. W. 3 Michael Pereira says it was he who took him to the house. Michael was the only witness cited by the petitioners. Being so, according to Shri Lawande it is difficult to believe that if the statement given by Michael Pereira that it was he who accompanied the respondent to his house after the incident of assault this circumstance might have been mentioned by the respondent in his complaint. This fact by itself shows that Michael appears to be a false and fabricated witness who does not seem to have been present at the time of the incident and has come to depose in the Court as a chance witness. Shri Lawande has taken me through the judgment of the learned Sessions Judge and pointed out some findings which according to him appears to be perverse and not based on the evidence on record.