Back
2012 Supreme(Bom) 1220
In the High Court of Bombay at Goa
A.P. LAVANDE & U.V. BAKRE
Shailesh Manohar Sastikar, s/o. late Manohar Sastikar
Versus
State of Goa
CRIMINAL APPEAL NO. 38 of 2011
Decided on : 09-07-2012
For the Appellants:S. Dessai, Senior Advocate with A V. Pavitran, Advocate.
For the Respondent: S. R. Rivonkar, Public Prosecutor.
Headnote:Indian Penal Code, 1860 - Sections 302 and 324 - Appeal against conviction. Held - Scuffle had taken place between the parties in shop of accused in which both parties had sustained injuries - Prosecution failed to prove beyond reasonable doubt that the accused person had voluntarily caused hurt - Conviction of accused for offence punishable under Section 324 is not justified - Homicide not disputed Merely because they are all related witnesses, their testimonies cannot be discarded by calling them unreliable - There is nothing on record to establish that any independent witness was present at the time when the second incident in the ancestral house occurred - Evidence on record is not sufficient to prove that the accused had intention to kill the deceased who was his paternal uncle and 65 years old - Accused is guilty for offence under Section 304(II).
Scanning the materials on record, it can only be said that a scuffle had taken place between the parties in the shop/kiosk of the accused, in which both parties had sustained injuries. As has been rightly argued by the senior counsel for the accused, the evidence on record establishes a case contrary to that of the prosecution, insofar as the first incident is concerned.
The prosecution has failed to prove beyond reasonable doubt that the accused persons had voluntarily caused hurt to PW 1 and grievous hurt to PW 10. The conviction of the accused for the offence punishable under Section 324 of IPC and consequent sentence imposed upon him is not justified and not sustainable. The accused is entitled for acquittal in respect of offence punishable under Section 324 of IPC.
The sequence of events which emerges from the deposition of above witnesses reveals that there was no chance for manipulation of facts and creation of a false story and it does not leave any doubt about the truth of the incident narrated by them. Merely because they are all related witnesses, their testimonies cannot be discarded, by calling them unreliable. There is nothing on record to establish that any independent witness was present at the time when the second incident in the ancestral house occurred.
The finding of the trial Court that the prosecution has proved that Manohar, since deceased, with the accused had assaulted Sagun PW 1 and Ravindra PW 10 causing grievous injuries to him and thereafter, had assaulted Vasant on his head with the knowledge and intention that the injuries would result in his death, does not appeal to Court’s mind. The evidence on record is not sufficient to prove that the accused had intention to kill the deceased who was his paternal uncle and 65 years old. It is only the injury No. 1 which was fatal, that was caused by a single blow. In our considered view, therefore’, the trial Court erred in holding the accused guilty for offence under Section 302 of IPC. There was a scuffle between the prosecution witnesses and the accused persons soon prior to the second incident in which the accused persons had received more injuries and were infuriated and in the heat of that first incident, the accused persons had followed the deceased into the ancestral house, where also there was a scuffle. There is no evidence that the assault with brass lamp was pre-meditated and calculated. The accused had not carried with him the brass lamp with intention to assault the deceased with it. The brass lamp belonging to PW 5 was in the hall and was picked up by the accused No. 2 during the scuffle. In that scuffle, the accused No. 2 hit the brass lamp on the head of the deceased. Court is of the view that Section 304(11) of IPC is attracted to the present case. Point (iii) mentioned in paragraph 25 above is answered accordingly.
U.V. Bakre, J.
The appellant is the original accused no. 2 in Sessions Case no. 21 of 2008. He has been convicted by the learned Sessions Judge, Panaji (Trial Court) for offence punishable under Section 302 of the Indian Penal Code (I.P.C.) and sentenced to suffer life imprisonment and to pay fine of Rs. 10,000/-in default to undergo simple imprisonment for a period of two months. He is also convicted for offence punishable under Section 324 of I.P.C. and is sentenced to undergo imprisonment for a period of four months and to pay fine of Rs. 1000/-in default to undergo simple imprisonment for 15 days. Being aggrieved by the said Judgment dated 28/04/2011 and order dated 01/06/2011, the appellant has preferred the present appeal.
2. The appellant as accused no.2 and his father namely Manohar Sastikar, since deceased, as accused no. 1 were tried for the offence punishable under Sections 504, 324, and 302 read with Section 34 of I.P.C. During the course of the trial, accused no.1 expired and the case abated as against him.
3. Prosecution case, in brief, is as follows:-
There was rivalry between the families of deceased Vasant Sastikar and the deceased accused no.1 Manohar sastikar, who were real brothers, on account of property dispute. On 11/05/2008 at about 19.30 hours at the general store “Trupti General Store”, at Kitla, Salvador-do-mundo, belonging to Sagun Sastikar, (P.W.1), both the accused, in furtherance of their common intention, abused P.W.1 and his family members with filthy language and assaulted P.W.1 and his brother Ravindra (P.W.10) with a chopper. Subsequently, on the same date at about 19.40 hours, inside the ancestral house, both the accused persons assaulted Vasant, father of P.W.1, aged about 65 years, with a brass lamp (Samai) on his head, thereby causing his instantaneous death. Dr. Sayed Sarfaraz Ahmed (P.W.14) examined P.W.1 at 20.30 hours and P.W.10 at 21.25 hours on 11/5/2008.
4. A complaint (Exhibit 22) was lodged by P.W.1, on 11/05/2008 upon which Crime No. 53 of 2008 for offence punishable under Sections 504, 324 and 302 read with Section 34 of I.P.C. came to be registered at 23.50 hours, by Police Inspector Devendra Gad (P.W.15). Panchanama of the scene of offence (Exhibit 40) was conducted by P.W.15 on 12/05/2008 in the presence of Shri Krishna Pednekar (P.W.6) and another panch witness. This panchanama was partly drawn in the shop/ kiosk bearing no. C-176/36 and partly in the ancestral house. Blood stains were found in the shop on a wooden table and on muddy floor, one plastic black and red coloured chappal of left leg foot and a pair of paragon chappals was found in that shop. Blood stains were noticed on the paragon chappal of left leg foot. One white and blue checks long sleeves shirt fully torn and having blood stains was found at the entrance. A Timax watch and a plastic black and red chappal of right leg foot were found on the road at the left side of the structure. A chopper(Koita) was found behind the shop where as one wooden danda with length of 22 inches was found by the side of the shop. A traditional brass lamp (Samai) was found lying on the floor near the place of worship inside the ancestral house. Dried blood stains were found in front of the cupboard. Photographs were also clicked at spot by Head Constable Mr. Shankar Komarpath(P.W.2) which are at Exhibit 29-colly. Inquest Panchanama (Exhibit 32) was drawn by Police Sub-Inspector, K. P. Sinari (P.W.13) for which Shri Sushant Mandrekar (P.W.3) and Anand Madkaikar (P.W.4) acted as panch witnesses. The dead body of deceased Vasant was referred to police surgeon of Goa Medical College, Bambolim by P.W.13 and Dr. E. J. Rodrigues (P.W.7) conducted the postmortem examination on 12/05/2008. The Memorandum of Autopsy is a part of Exhibit 44-Colly. Both the accused were arrested at about 24.00 hours on 12/05/2008 and since they had injuries on their person they were referred to Azilo Hospital, Mapusa. The arrest panchanama is at E
