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2000(3) Supreme 240
SUPREME COURT OF INDIA
(From Bombay High Court)
D.P. Wadhwa & Ruma Pal, JJ.
Camilo Vaz -Appellant
versus
State of Goa -Respondent
Criminal Appeal No. 319 of 1998
Decided on 10-4-2000
Counsel for the Parties :
For the Appellant : P.R. Namjoshi, Sr. Advocate, Uday U. Lalit, Ms. Teja Kahdars, Advocates.
For the Respondent : Ms. A. Subhashini, Advocate.
Held : Simon met with homicidal death. When the Khareband boys came to the house of Simon and his two brothers led by the appellant they did not come with the intention to kill anyone. They were not armed with any particular weapon to commit the murder. There was a rivalry between them and during the Arlem Festival on 1.5.1993, 2.5.1993 and 4.5.1993 there were minor fracas. In fact, the rivalry existed even much prior to these dates. They came to the house of Simon and his brothers not to commit murder but to thrash them. What transpired at the Arlem festival on the night of 4.5.1993 that they came to the house of Simon and his brothers it has not been possible to say. Only one of the brothers, namely, Victor had gone to attend the festival and returned around midnight. The brothers are from Calconda. These boys of Khareband who came to the house of the three brothers were armed with dandas, bottles and cycle chains. The purpose apparently was to beat up the brothers by giving them sound beatings but certainly not with any intention to kill anyone of them. In fact Irineu in his First Information Report to the police (PW 8/A) had stated that there was no enmity between them. In these circumstances, can it be said that the appellant has committed the offence of murder because he hit Simon on the head, a vital part of the body, with such a force with danda in his hand that Simon fell unconscious and later succumbed to his injury? To us, it appears, at the most it can be said that the act of the appellant in hitting Simon was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such a bodily injury as is likely to cause death. The case of the appellant would, therefore, clearly fall under Section 304 part II IPC. Courts below did not apply their mind to this aspect of the matter in proper perspective and they were rather swayed by the fact that on account of the danda blow by the appellant, Simon died an unnatural death. There was no material on record which showed that appellant was bent upon killing Simon and "eventually death came out to be the result". (Para 13)
Section 304 is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case. (Para 14)
JUDGMENT
D.P. Wadhwa, J.-Sole appellant is aggrieved by the judgment dated 28.11.1997 of the Bombay High Court at Goa upholding his conviction for an offence under Section 302 of Indian Penal Code ( IPC for short) and sentence of life imprisonment awarded to him by the District and Sessions Judge, South Goa at Margao.
2. Originally there were 17 accused including one absconding, who were tried for offences under Sections 302, 307, 326, 325, 143, 144, 140 IPC read with Section 149 and Section 120-B IPC for having committed the murder of Simon Fernandez (Simon), a Sub-Inspector of Police and attempt to murder his two brothers, namely, Irineu Fernandez (Irineu) and Victor Fernandez (Victor). Sessions Court convicted five of them including the appellant holding them guilty of murder of Simon under Section 302 read with Sections 120-B and 149 IPC. They were further held guilty for attempt to murder of Irinue and Victor under Section 307 read with Sections 120-B and 149 IPC. They were also held guilty of unlawful assembly under Section 143 and rioting under Section 148 read with Sections 120-B and 149 IPC. For these offences they were respectively sentenced to life imprisonment, 7 years imprisonment and 2 years imprisonment. No separate sentence was passed for an offence under Section 143 IPC. All these five accused had appealed to the High Court against their conviction and sentence. High Court maintained the conviction and sentence of the appellant under Section 302 IPC. Other four accused were convicted under Section 326 IPC and their conviction for offence under Section 302 and 307 IPC were set aside. Their sentences were reduced to the imprisonment they had already undergone. High Court also rejected the alternate plea of the appellant that on the facts of the case there could be conviction only for an offence under Section 304, Part-I or Part-II IPC.
3. The incident, which resulted in conviction of the appellant and others, occurred on the midnight of 4/5.5.1993. Arlem Festival was celebrated on 1.5.1993, 2.5.1993 and 4.5.1993. Boys of two villages - Khareband and Calconda - were not on best of terms between them. During the festival they had been fighting with each other. On the night of 4/5.5.1993 Victor, who was from Calconda, attended the festival. He went at 9.30 P.M. and returned back home at about 12.00 midnight. Simon and Irineu did not attend the festival on that day and were already there in the house as they all lived together. At about 2.30 A.M. someone banged the door of their house. These three brothers came out and saw a young boy standing outside a few feet away under a banyan tree. They asked him what was the matter about. Suddenly a group of 15/20 boys emerged from the bushes near the banyan tree and started beating the three brothers. They were armed with sticks, cycle chains and bottles. These boys belonged to Khareband. They assaulted the three brothers. Appellant hit Simon with the stick of the thickness of 2" and length of 4 . Simon fell down unconscious. Still he was being hit and beaten by the assailants. Victor and Irineu were also beaten up and suffered injuries. Hearing the loud shouts the neighbours, which included boys of Calconda, came and the assailants ran away. Condition of Simon was serious. He was taken in a rikshaw by one of the neighbours to the Hospicio Hospital. Another neighbour brought his car and removed Irineu and Victor to Hospicio Hospital. Since condition of Simon continued to be serious he was shifted to GMC Bambolim. Irineu and Victor were also taken to GMC Bambolim in the same ambulance with Simon. Police came to the hospital and recorded the statement of Irineu on the morning of 5.5.1993. He said on 4.5.1993 after having dinner at about 10.30 P.M. they went to sleep. On the morning of 5.5.1993 at about 2.30 A.M. someone banged the front door and asked them to come out. When they came out they did not see anyone outside. They went ahead by the footway and saw a group of 15 person
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