SAINATH NAIK Vs. STATE

JUDGEMENT

(1.) THIS appeal is filed by the accused in Sessions Case No.32/2001 against the Judgment/Order dated 8/9th July, 2004 of the learned Ist Additional Sessions Judge, South Goa, Margao, convicting and sentencing him under Section 302 I.P.C. to undergo imprisonment for life and to pay a fine of Rs.5000/and in default to undergo imprisonment for a further period of 3 months.

(2.) THE accused who was 35 years of age was charged and tried for committing the murder of his elder brother Namdev P. Naik, aged 39 years. The accused was residing in their ancestral house along with his wife and their mother Maghan Naik/P.W.12, while the deceased was staying with his wife, Namrata and their daughter, P.W.10/Neha along with her two younger brothers in a hut near the said ancestral house. On 1/7/2001 at about 6.30 hours the wife of the deceased P.W.1/Namrata went for work to return only in the evening. The accused went to Mapusa at 7.00 hours only to return at about 16.30 hours. Around that time the deceased in a drunken state started abusing their mother P.W.12/Maghan and when the accused told the deceased Namdev to keep quite, deceased Namdev continued to abuse their mother P.W.12/Maghan and it is the case of the prosecution that the accused assaulted the deceased Namdev with a danda on his head, chest, abdomen etc. who fell on the ground with bleeding injuries. P.W.12/ Maghan and P.W.8/Joaquim Diniz then took the deceased to his hut and called P.W.9/Dr.Uday Kakodkar who upon examination found Namdev was dead. P.W.15/P.I. Raut Dessai received a phone message from an unknown person stating that the deceased Namdev died in a suspicion manner and, therefore, he came to the scene and got a first information report recorded from P.W.1/Namrata. Thereafter, P.W.15/P.I. Raut Dessai conducted a panchanama of the scene of offence, sent the dead body for post mortem and arrested the accused who was found sitting there. P.W.11/Dr. Rodrigues who conducted the post mortem examination of the deceased found that the deceased had as many as 12 injuries some of which were abrasions, 2 lacerations and others rail road pattern bruises. Dr. Rodrigues found that the deceased had died due to the injuries on the head, chest and abdomen. Dr. Rodrigues had also examined the accused and found that the accused had one abrasion on the lower front knee caused by blunt object or surface. Dr. Rodrigues also stated that the accused had told him that the deceased had abused and tried to hit him and he had taken the same wooden piece and assaulted his brother on the head and the chest.

(3.) AT the time of hearing of this appeal, the only submission made by Mr. R. V. Kamat, the learned Counsel of the accused is that the learned Additional Sessions Judge on the facts proved by the prosecution could not have convicted the accused under Section 302 I.P.C. because at no time there was any intention on the part of the accused to commit the murder of his brother, the deceased. Mr. Kamat, the learned Counsel has next submitted that the accused assaulted the deceased on the spur of the moment as the deceased under influence of alcohol was found abusing their mother.