The main legal point established in the judgment is that minor discrepancies and lapses in investigations should not be the reason to discard other material evidence, and the totality of the evidence should be considered in reaching a decision.

JUDGMENT :

M.S. Jawalkar, J.

1. 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-D- 5644 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 16th 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 defence. After considering the evidence on record it was held by the learned Sessions Judge that the prosecution witnesses are not reliable and possibility of the complainant meeting with an accident cannot be ruled out. It is held that the prosecution failed to establish beyond reasonable doubt t