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IN THE HIGH COURT OF BOMBAY AT PANAJI BENCH
M.S. Sonak, M.S. Jawalkar, JJ.
Jervasio Pereira - Appellant
Versus
State - Respondent
Criminal Appeal No. 17 of 2017
Decided On : 22-09-2020
APPEAL AGAINST ACQUITTAL - Assault - Sections 324, 341 read with Section 34 of IPC - 221, 222, 223 CrPC - M. S. Jawalkar, J.
Fact of the Case:
The complainant and his wife were assaulted by three accused persons with deadly weapons, causing injuries and damage to their motorcycle. The prosecution failed to establish the assault beyond reasonable doubt, leading to the accused being acquitted. The appeal was filed by the complainant against the order of acquittal.
Finding of the Court:
The prosecution witnesses' evidence was considered unreliable by the trial judge, who held that the possibility of the complainant meeting with an accident could not be ruled out. The court found that the prosecution failed to establish the assault beyond reasonable doubt, leading to the accused being entitled to the benefit of doubt.
Issues: Reliability of prosecution witnesses, establishment of assault beyond reasonable doubt, benefit of doubt to the accused
Ratio Decidendi: The court must carefully evaluate the evidence to establish the assault beyond reasonable doubt. Minor discrepancies in witness testimony should not lead to the total disregard of material evidence.
Final Decision: The appeal was partly allowed, and two of the accused were convicted for assault under Sections 324 and 341 read with Section 34 of IPC. The accused were ordered to pay fines and their detention was treated as substantive imprisonment. The third accused was acquitted from the charges.
JUDGMENT
M. S. Jawalkar, J. - Present appeal is filed by the complainant/victim against the Judgment and Order of acquittal passed by the Sessions Court, South Goa, Margao in Sessions Case No. 10 of 2012 dated 24/02/2016.
2. The case of the prosecution before the learned Sessions Judge was as under :
On 03/06/2008, the complainant Mr. Jervasio Pereira and his wife Sedwina Pereira were returning home on a motorcycle bearing registration no.GA08D5644. On the way at Utorda, when the appellant reached near the house of the accused no.1, the accused nos.1,2 and 3 came running in front of the motorcycle with hockey stick, iron rod and knife and stopped the complainant with their common intention pulled him down and all accused assaulted him with iron rod, hockey stick and knife. The wife of the accused was also assaulted with fist blows on her face. The assault was committed on the complainant with an intention to cause his death. The accused also damaged the motorcycle of the complainant. Smt. Sedwina, wife of the complainant had also suffered injuries near left eye. As the offence under Section 307 of IPC is triable exclusively by the Court of Sessions, the case was committed to the Sessions Court.
3. After arguments before the Judge, charge came to be framed as follows:
| CHARGE: |
| (Sections 221, 222, 223 CrPC) |
| I, Shri Vincent D'Silva, Addl. Sessions Judge, FTC-11, South Goa, Margao, hereby charge you 1) Diago Pereira 2) Lawrence Mascarenhas and 3) Bruno e Braz Fernandes, as follows: |
| That on 1.6.2008 at about 9.30 hours at Uttorda, you with common intention wrongfully restrained the complainant, Gervasio Pereira and his wife, Selviona Pereira while they were on their motorcycle bearing no. GA-08-D5644 and prevented them from proceeding in any direction and that you thereby committed an offence under Section 341 r/w. 34 IPC and within the cognizance of the Court. |
| On the aforesaid day, time and place, you with common intention committed mischief by damaging the motorcycle of the complainant bearing No.GA08-D-5644, causing loss amount to not less that Rs. 50 and that you, thereby committed offence punishable under Section 427 r/w. 34 of IPC and within the cognizance of the Court. |
| In the aforesaid date, time and place, you A-1 Diago Pereira and A-2, Lawrence Mascarenhas with common intention voluntarily caused hurt to the wife of the complainant, Mrs. Sedwina Pereira with fist blows on her face, causing injuries to her bear left eye and that you, thereby committed offence punishable under Section 324 r/w. 34 IPC ans within the cognizance of the Court. |
| On the aforesaid date, time and place, you with common intention assaulted the complainant, Gervasio Pereira with iron rod/crow bar, hockey stick and knife on his body due to which, the complainant sustained injuries and fell unconscious and further, you pocked crow bar on both the legs of the complainant at 5 to 6 places, causing grievous injuries to him with intention or knowledge and under such circumstances that if by that act, you had caused death of Shri Gervasio Pereira, you would have been guilty of murder and that you thereby committed an offence punishable under Section 307 r/w. 34 of IPC, and within the cognizance of the Court. |
| AND I hereby direct that you be tried by this Court on this, the 16 th day of February, 2013. |
| Sd/- |
| (Vincent D'Silva) |
| Addl. Sessions Judge - 2, |
| Fast Track Court-II, |
| South Goa, Margao. |
4. The prosecution examined in all 12 witnesses in support of his case. After examination of the prosecution witnesses, statement under Section 313 of Cr.P.C., came to be recorded and an opportunity was granted to the accused person to examine the witnesses. Dw1 was examined by the accused in his defen
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