MARIANA DSOUZA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) --THESE two appeals which arise out of the same judgment passed by the learned Addl. Sessions Judge, Panaji in Sessions Case No. 53/92 can be conveniently disposed by a common judgment. The learned Addl. Sessions Judge by judgment dated 15-12-1992 convicted both the appellants for an offence of culpable homicide not amounting to murder under section 304 Part II read with section 34 of I. P. C. and sentenced each of them to undergo Rigorous Imprisonment for five years.

(2.) THE prosecution case is that between 28. 4. 1992 and 1. 5. 1992 at Bhirmotem Bastora, both the appellants/accused in furtherance of common intention assaulted Joaquim Mariano Dsouza alias Martin and inflicted injuries on him with the knowledge that such injuries were likely to cause his death, as a result of which the said Joaquim succumbed on the same night of 1-5-92. The prosecution examined in all 14 witnesses. However there were no eye witnesses to the incident and the conviction was based only on circumstantial evidence. The appellant in Criminal Appeal No. 7/93 (hereinafter called the appellant No. 1) is the adopted sister of the deceased while the appellant in Criminal Appeal No. 9/93 (hereinafter called the appellant No. 2) is a motor cycle pilot who is the lover of the appellant No. 1 and was occasionally staying with her in the deceaseds house inspite of the strained relationship of both the appellants with the said deceased. It is alleged by the prosecution that both the appellants were making demands of money with the deceased and because he was not willing to comply with those demands they were harassing and physically assaulting him. It seems that on 2-5-92 a cousin of the deceased, Domnic DSouza, lodged a report with the Police that the said Martin has been done to death by the appellants which report was treated under section 174 Cr. P. C. since no offence was booked against the appellants on that day. The learned Addl. Sessions Judge on the basis of the evidence gathered on record by the prosecution found both the appellants guilty of having caused the death of Martin on account of the injuries caused to him due to physical assault and convicted them for the aforesaid offence under section 304 (II)r/w section 34 of I. P. C. and sentenced them accordingly.

(3.) SHRI A. P. Lawande, learned counsel appearing for the appellant No. 1, has submitted that the material on record does not at all enable any Court to conclude that any offence under section 304 has been proved in the special set of facts of the case, because according to the learned counsel for that purpose the prosecution had to establish that the appellants were the authors of the injuries which were allegedly inflicted on the deceased and that these injuries were also the necessary cause of his death or were likely to cause his death or actually had caused death of Martin. Learned counsel submitted that at the most the facts of the case could justify that the appellants might have been convicted for an offence under section 323 I. P. C. because of the injuries shown by the deceased were admittedly simple injuries. It was further contended that the charge framed against the appellants was that both the appellants had caused injuries on the deceased and it was impossible to believe that two persons had caused them, if they had really assaulted him on that day only simple injuries which might have led to his death. The learned counsel has pointed out that Domnic Dsouza who had apparently lodged the report with the Police had not even been examined by the prosecution at the trial although was cited in the charge-sheet on the ground that he was not available to the police at the relevant time. It was submitted by the learned Counsel that his whole conduct in this respect was suspicious. Since it was he who had set in motion the whole case it was imperative that the testimony of this witness should have been brought on record for the purpose of throwing light on the matter. It was further contended by the learned counsel that it has come in evidence that some years ago the said Domnic had spread a rumour that Martin had died which was obviously a false rumour. Inspite of that Domnic did not appear this time to give his evidence in this case. The learned counsel submitted that only the so called strained relationship of the appellants with the deceased appear to have been the basis of the charge against the appellants, inspite of the fact that the medical evidence is not conclusive to establish that the death of Martin was due to any physical assault allegedly committed by the appellants on him. The learned Counsel submitted that even assuming that the relationship were strained that by itself would not mean that the appellants were the authors of the injuries shown by the deceased on the day of his death. In the so called confessional statement of the appellant No. 1 by P. W. 5 Mrs. Manju Sharma, the appellant has not admitted anywhere that she has committed any offence namely that she had assaulted or caused the assault on her deceased brother.