STATE OF GOA Vs. DIGAMBAR SAHADEV BHISAJI

JUDGEMENT

(1.) BATTA, J. The State of Goa challenges in this appeal the impugned Judgment dated 16.5.1995 of Learned Addl. Sessions Judge, Mapusa, whereby the respondents who had been tried for various offences, including Section 302 read with 149 I. P. C. were acquitted. In support of the charges, the prosecution had examined as many as 26 witnesses. The prosecution case, in brief, is that the respondents in furtherance of common object had assaulted Vilas while he was returning on his motor cycle. The incident is reported to have taken place on 17.10.1993 at 9.30 p. m. at Nhainginwada, Parsem near the house of Namdev. The prosecution case further is that the brother of Vilas, namely Rama P. W. 1 and Padmanab P. W. 8 on hearing the noise had gone to the rescue of Vilas, but they were also assaulted in the process by the respondents resulting in injuries on their person. Vilas, Rama P. W. 1 and Padmnab P. W. 8, who were injured in the incident were taken to the Doctor. Subsequently, Vilas died as a result of injuries suffered by him in the incident. Thereafter, certain recoveries were made at the instance of the some of the respondents, which included coita alleged to have been used in the assault, and two bamboo sticks. Besides this, the police also recovered blood stained clothes of the respondents as well as the injured persons. The articles which were found to be stained with blood were sent to the Chemical Analyser. The respondents and the injured persons were sent for blood groupings and the blood group of the said persons was ascertained. After completing the investigation, the charge-sheet had been filed.

(2.) IN column 5 of the charge-sheet, it was specifically alleged by the investigating officer that the respondents had used dandas and coita while assaulting Vilas and his brothers Rama P. W. 1 and Padmanab P. W.8.Even in the committal order as well as in the order passed by the Learned Addl. Sessions Judge, Mapusa, there was reference of an assault by dandas and coita by the accused on the deceased Vilas, as well as his brothers. Even inspite of the fact that the learned Addl. Sessions Judge was very much conscious that the dandas had been used in the incident, yet, surprisingly there is absolutely no reference to the use of dandas in the Charge framed by the Learned Addl. Sessions Judge, Mapusa. Besides this omission, even the charge has not been properly framed by the Learned Addl. Sessions Judge, Mapusa. For every distinct offence, there should be a separate charge, but the charge, which has been framed consists of complex facts put together and one charge had been framed. Even though the charge mentions Section 506 (II) I. P. C. there is absolutely no reference in the charge regarding threat to kill. We would like to impress upon the Sessions Judges and the Magistrates that framing of charge is not a mere formality, but the charge should be properly framed and for that purpose the Magistrates and Sessions Judges should often refer to the Model Charge Forms, which are given in all commentaries of the INdian Penal Code. Improper framing of charge can cause prejudice to the accused and necessary precaution should be taken by the Magistrate and the Sessions Judge to ensure that charges are properly framed.

(3.) LEARNED Public Prosecutor Shri G. U. Bhobe pointed out that the conclusions arrived at by the LEARNED Addl. Sessions Judge that in the F. I. R. there was no reference whatsoever to the coita, the articles attached by the police were not sealed, are factually incorrect and, in fact, we find that there is considerable substance in the submission of LEARNED P. P. Shri Bhobe. The LEARNED Addl. Sessions Judge has stated in para 24 of the Judgment that the complainant, Rama P. W. 1 did not make any mention of coita in the hands of accused No.1 and he was confronted with the F. I. R. where the same fact was found not recorded. A bare reading of the F. I. R. would go to show that Rama P. W. 1 did refer to the coita in the hands of accused No.1. In respect of the second submission of the LEARNED Public Prosecutor Shri Bhobe, it is to be noted that the LEARNED Addl. Sessions Judge in para 29 of the Judgment has stated that the weapon coita was not packed and sealed at the time of its attachment. It appears that the LEARNED Addl. Sessions Judge has not looked into the evidence of P. W. 6 who had categorically stated in his examination-in-chief that the coita, blue colour shirt and printed shirt were sealed respectively. In fact, there is no reference to the deposition of this witness in the part of the Judgment of the LEARNED Addl. Sessions Judge, wherein he has come to the conclusion that the Coita was not sealed.