SIMON AUGUSTIN SALDHANA Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant, original accused - Simon Augustin Saldhana has preferred Criminal Appeal No.301 of 2012, against the Judgment and Order dated 6th December, 2010, passed by the learned 3rd Additional Sessions Judge, Nashik in Sessions Case No.81 of 2006. By the said Judgment and Order, the learned Sessions Judge, convicted the appellant - Simon Saldhana for the offence punishable under Section 304 Part-II of the Indian Penal Code (for short 'I.P.C') and sentenced him to suffer rigorous imprisonment for 7 years and fine of Rs. 1,000/-, in default to suffer simple imprisonment for 2 months. The State has preferred Criminal Appeal No.1461 of 2011 for enhancement of the sentence imposed on accused - Simon Saldhana. Originally the accused - Simon Saldhana was charged for the offence under Section 302 of the I.P.C. However, he was acquitted under Section 302 of the I.P.C. and instead convicted under Section 304 Part - II of the I.P.C. Hence, the State preferred Criminal Appeal No.819 of 2011 against the acquittal of accused - Simon Saldhana of the offence under Section 302 of the I.P.C. As all the appeals are directed against the very same Judgment and Order, we are dealing with all the appeals together. For the sake of convenience in all the appeals Simon Augustin Saldhana will be referred to as 'accused'.

(2.) The prosecution case briefly stated, is as under:-

(3.) Charge came to be framed against accused-Simon under Section 302 of the I.P.C. and under Section 135 of the Bombay Police Act. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that he was selling dosa. Deepak was providing light to the hawkers through inverters. Although, hawkers used to pay Rs. 10/- daily to Deepak for electricity, Deepak also used to take food from the hawkers free of charge and used to also collect Rs. 50/- daily as hafta. If anybody refused to pay hafta or give food, Deepak terrorised the hawkers. On the day of the incident, Deepak came to the dosa cart of accused - Simon and demanded 2 dosas. Accused - Simon asked Deepak to wait. Then Deepak started abusing and threatening Simon. Deepak told Simon to close his business. Simon then closed his business and went home. A short while thereafter Deepak came to the house of Simon and started giving abuses to Simon. Deepak then picked up 2 year son of Simon and he started going away. Simon followed Deepak from the first floor to the ground floor. When Simon tried to take back his son Wilson, Deepak stabbed Simon with a knife. At that time, Wilson the son of Simon was with Deepak. Then Simon inflicted knife blows upon Deepak to rescue his child from the custody of Deepak. Simon succeeded in rescuing his son from the custody of Deepak. Thereafter, both Deepak and Simon fell on the ground on account of the injuries sustained by them. Thus, the defence of accused - Simon appears to be that of private defence.