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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
Dr. S. RADHAKRISHNAN & N. A. BRITTO, JJ.
Vaman Jaidev Raval Appellant
Versus
State of Goa Respondent
Criminal Appeal No.45 of 2005 WITH Criminal Appeal Nos.46, 47, 48 of 2005
Decided on 11th December, 2006.
Evidence Act, 1872 - Section 3 - Penal Code, 1860, Section 302 - Appreciation of evidence - Murder - Abscondence of accused - No circumstances to convict an accused for - Innocent people out of fear or timidity run away from their houses sometimes - Abscondence, an additional circumstance. - Abscondence of the accused is in itself no circumstance to convict an accused for murder. It is said that some times even innocent people out of fear or timidity run away from their houses but that is not the case herein where the prosecution has proved abscondence of the accused as yet another circumstance connecting the accused with the crime. Since the accused have given no explanation whatsoever as to where they were from 8.4.2003 to 16.4.2003 that would indicate beyond reasonable doubt that the accused had a guilty mind. The abscondence in this case can certainly be considered as an additional circumstance to reinforce the case of the prosecution.
Penal Code, 1860 - Sections 34 and 302 - Common intention - Proof of - Common intention, a state of mind - Can only be gathered by inference drawn from facts and circumstances - Intention, a question of fact - May be proved either by direct or by circumstantial evidence. - Common intention is essentially a state of mind and can be only gathered by inference drawn from facts and circumstances in a given case. Ordinarily, intention is a matter within the personal knowledge of the person whose intention it is. It is a question of fact. Intention like any other fact may be proved either by direct or by circumstantial evidence. To constitute common intention, it is necessary that the intention of each of the accused is known to others and is shared by them.
Penal Code, 1860 - Section 300 - Murder - Grave and sudden provocation - Not abstract standard of reasonableness - For application of doctrine of "grave and sudden provocation" - A reasonable man what does under certain circumstance - Depends upon customs, manners, way of life, traditional values etc. - Court to decide same in each case. - The test of "grave and sudden provocation", is whether a reasonable man, not a hot-tempered or hypersensitive or unusual person belonging to the same society as the accused is placed would be so provoke d as to lose his self control. No abstract standard of reasonableness can be laid down for the application of the doctrine of "grave and sudden provocation". What a reasonable man would do under certain circumstances also depends upon the customs, manners, way of life, traditional values etc. and it is for the Court to decide in each case, having regard to relevant circumstances whether there is sudden and grave provocation. Provocation, if any, must be such as to temporarily deprive the person provoked of the power of self control as a result of which he commits the act which causes death. No abstract rule of reasonableness can be laid down for the application of doctrine of grave and sudden provocation.
Penal Code, 1860 - Sections 300 and 302 - Conviction - Offence of culpable homicide not amounting to murder - Injuries on body of deceased - Simple in nature - One injury inflicted on head of deceased - Cannot be inferred that accused intended to cause death - Unless it shown that injury inflicted by force. - Although five injuries were found on the head portion of the deceased, there was no fracture seen of the skull vault and base bones, which shows that the said injuries were not inflicted by force. Except the fractures of right tibia and fibula bones all other injuries were of simple nature inasmuch as there were no fractures either of the ribs or vertebrae. The intention of the accused therefore appears to have been to break their legs and nothing more. None of the prosecution witnesses have stated as to how the said injuries on the head were caused or by which the accused they were inflicted, and therefore, it could not be ruled out that the said injuries were caused in the process of avoiding of the attack by the assailants. Although Dr. Sapeco/PW 22 has opined that all the 22 injuries found on the deceased were fatal in the ordinary course of nature to cause death his opinion does not appear to be free from doubt.
Penal Code, 1860 - Section 302 - Evidence Act, 1872, Section 27 - Murder - Recovery of weapons of offence - At instance of accused - Strong circumstance - Connected accused to crime committed. - In the case at hand, not only have the weapons of offence been recovered at the instance of the accused, but the said weapons have also been identified as the weapons used, both by Suresh/PW 19 and Nitesh/PW 21 and not only that Dr. Sapeco/PW 22 also opined that the injuries on the deceased could have been caused by the said weapons. The said discovery of the weapons at the instance of the accused is certainly a strong circumstance connecting the accused to the crime committed by them.
Penal Code, 1860 - Sections 302 and 307 read with Section 34 - Criminal appeal against conviction and sentence - Accused belong to one family - Residence of accused mundkarial house situated in property - Incident took place after mangoes of one tree plucked - Dispute of cashew and mango trees - Assault by danda and iron rods - Medical certificate is not a substantive evidence - Examination of doctor issued certificate necessary - Five injuries on head, five on hand and twelve injuries on lower limbs - Accused charged due to threatening and assault - Attack by deadly weapons - Evidence of 3 witnesses and eye-witnesses - Recovery of weapon - Abscondance of accused - Recovery of clothes of accused - Sessions Judge believed 3 witnesses - Statement of witness not recorded before authority - Incident occurred on the spur of moment when deceased came for plucking of mangoes in property - Tenancy claimed by accused - Injuries inflicted on lower limbs - Case not covered under Section 300 of Clause III - Alteration of sentence proper.
These appeals have been filed by the accused, who have been convicted and sentenced under Sections 302 and 307 read with Section 34, I.P.C. by the learned Sessions Judge, Panaji, vide Judgment dated 28-7-2005.
2. The accused belong to one family. Vaman J. Raval/A-1, is the father of Jaidev @ Deepak/A-2, Prashant/A-3 and Sanjeev/A-4. All the accused reside in one of the mundkarial houses situated in the property known as Tolle at Narva of Bicholim Taluka, belonging to Srinivas Vaikunth Parab Lawande, father of Vasant Lawande/P.W.2. Pandurang @ Pandu Malvankar along with his wife Padmavati, reside in another house. The mother of Suresh Lawande/P.W.19 also resides in one of the said houses. The said Srinivas Lawande died in the year 1988. The said Pandurang Malvankar has four daughters, one of whom is married to Vaman/ A-I and as they had no son, the said Pandurang and Padmavati have adopted Deepak @ Jaidev/A-2 by deed of adoption dated 22-61993. During the lifetime of the said Pandurang, the lease, if we may use that expression, of cashew and mango trees of the said property was with the said Pandurang Malvankar, the father in law of Vaman/A-1, who died on or about 229-1993. It appears that after the death of the said Pandurang Malvankar, a dispute arose between the family of Lawande and the family of the accused regarding the enjoyment of the said property as a result of which, the said Vasant P.W.2 and his brother filed Regular Civil Suit No.45/64/ A and obtained an ex parte injunction against the accused on 11-3-1994, which was subsequently confirmed on 11-10-1994, restraining the accused from interfering in the said property. In the said Civil Suit, Padmavati, the widow of Pandurang and Deepak/A-2, have taken a plea that they are agricultural tenants of the said property and they have also filed a tenancy case bearing no. TNC 56/94 before the Mamlatdar against Vasant/P.W.2 and his brothers. Although Vasant Lawande/P.W.2 had obtained the said injunction order against the accused, the enjoyment of the property continued to be with the accused till the year 2002, when presumably the cashew and mango crops were taken by Ranganath Bhinge, (since deceased), pursuant to agreements dated 28-2-2002 and 103-2002 (Exhibit 19 and 20 respectively).
Thereafter, the said Vasant Lawande/P.W.2, obtained a licence for cutting trees from the said property on or about 23-8-2002 and the period of licence was extended to 7-10-2002 and in between the said Vasant/P.W.2 entered into an agreement dated 16-9-2002, Exh.22, with deceased Ranganath Bhinge, for the sale and cutting of the said trees and it does appear from the evidence of Vasant Lawande/P.W.2, that during the said cutting of the said trees by the said Ranganath Bhinge, there was interference with the said cutting of trees from some of the accused, and, thereafter the said Padmavati and Deepak/ A-2 filed an application in the said tenancy case and obtained an ex parte Order dated 26-11-2002 restraining the family of Vasant Lawande/P.W.2 from intelfering with the possession of the said Padmavati and Deepak/ A-2. Vasant Lawande/P.W.2 entered into another agreement with the deceased Ranganath Bhinge dated 24-2-2003, Exh.23, by which he sold the cashew and mango crops of that year to the deceased Ranganath and the present incident of assault took place on 8-4-2003, when the deceased Ranganath Bhinge, went to pluck mangoes from the said property with the plucker Anil Morajkar/P.W.6 and Suresh/P.W.19 and four other migrant labourers namely Suresh and Laximi Lamani and Suresh and Laximi Rathod, who were not examined by the prosecution as they could not be traced. The incident took place after mangoes of one tree were plucked.
3. Lavu Malwankar/P.WA, an uncle of Vaman/A-1 came to know about the incident upon hearing the noise in the direction of the house of Jairam Malvankar, who is his nephew, and Premanand Malvankar/P.W.5 came to know about the incident through the labourers who c
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