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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.Sonak, Bharat P.Deshpande, JJ.
Vijay – Appellant
Versus
State of Goa – Respondent
Criminal Appeal No. 15 of 2022
Decided On : 18-01-2023
The accused was convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) for causing the death of the deceased. The High Court, on appeal, considered the testimonies of the eyewitnesses, the recovery of the weapon, and the accused's right to lead defense evidence. The Court held that the testimonies of the eyewitnesses were consistent and credible, and the recovery of the weapon at the instance of the accused linked him to the crime. The Court also found that the accused was not denied his right to lead defense evidence, as he was given ample opportunity to do so. However, the Court determined that the offense fell under Section 304 Part I of the IPC, which deals with culpable homicide not amounting to murder, rather than Section 302, which deals with murder. The Court reasoned that the accused acted in the heat of passion during a sudden quarrel and without premeditation. Accordingly, the Court convicted the accused under Section 304 Part I of the IPC and sentenced him to 10 years of rigorous imprisonment.
Fact of the Case:
The accused was charged with the offence punishable under Section 302 of the Indian Penal Code (IPC) for causing the death of the deceased. The prosecution presented eyewitnesses who testified about the incident, and the weapon allegedly used by the accused was recovered at his instance. The accused denied the charges and claimed that he was denied his right to lead defense evidence.
Finding of the Court:
The High Court found that the testimonies of the eyewitnesses were consistent and credible, and the recovery of the weapon at the instance of the accused linked him to the crime. The Court also found that the accused was not denied his right to lead defense evidence, as he was given ample opportunity to do so. However, the Court determined that the offense fell under Section 304 Part I of the IPC, which deals with culpable homicide not amounting to murder, rather than Section 302, which deals with murder. The Court reasoned that the accused acted in the heat of passion during a sudden quarrel and without premeditation.
Issues: 1. Whether the testimonies of the eyewitnesses were credible and reliable. 2. Whether the recovery of the weapon at the instance of the accused linked him to the crime. 3. Whether the accused was denied his right to lead defense evidence. 4. Whether the offense fell under Section 302 or Section 304 Part I of the IPC.
Ratio Decidendi: 1. The Court held that the testimonies of the eyewitnesses were consistent and credible, as they provided a clear and coherent account of the incident. The Court also considered the fact that the eyewitnesses had no motive to falsely implicate the accused. 2. The Court found that the recovery of the weapon at the instance of the accused linked him to the crime, as it was the same weapon that was allegedly used to cause the deceased's death. The Court also considered the fact that the accused was unable to provide a satisfactory explanation for the presence of the weapon at the scene of the crime. 3. The Court found that the accused was not denied his right to lead defense evidence, as he was given ample opportunity to do so. The Court noted that the accused had filed an application to examine two witnesses, but the application was rejected by the trial court on the ground that it was filed belatedly. The Court held that the trial court's decision was justified, as the accused had not provided any explanation for the delay in filing the application. 4. The Court determined that the offense fell under Section 304 Part I of the IPC, which deals with culpable homicide not amounting to murder, rather than Section 302, which deals with murder. The Court reasoned that the accused acted in the heat of passion during a sudden quarrel and without premeditation. The Court considered the fact that the accused had no prior enmity with the deceased and that the incident was triggered by a trivial matter.
Final Decision: The accused was convicted under Section 304 Part I of the IPC and sentenced to 10 years of rigorous imprisonment.
JUDGMENT
BHARAT P.DESHPANDE, J. - Accused no.2/appellant challenges judgment/order and conviction dtd. 11/5/2022 passed by the learned Additional Sessions Judge, Mapusa in Sessions Case No.66/2013 wherein the appellant is found guilty for an offence punishable under Sec. 302 and accordingly sentenced to suffer imprisonment for life and to pay fine of Rs.1.00 lac and in default to undergo further imprisonment for a period of 3 years.
2. The appeal was admitted and a private paper-book has been furnished by the appellant. Similarly, Records and Proceedings have been called from the learned Sessions Court, for the purpose of taking up the matter for final disposal.
3. We have heard learned Senior Counsel Shri Saresh Lotlikar alongwith Shri Jayant Karn, learned counsel for the appellant and Shri S. G. Bhobe, learned Public Prosecutor for the State at length.
4. Shri Lotlikar canvassed mainly the following aspects:-
(a) All eye-witnesses' testimonies are very tentative and are not reliable.
(b) No witnesses including eye-witnesses stated that the appellant/accused no.2 is the author of such injuries.
(c) Depositions of eyewitnesses are full of major contradictions and omissions.
(d) Alleged incident occurred on the spur of the moment which culminated in a sudden fight.
(e) Recovery panchanama of the weapon and clothes is not fully established.
(f) Accused was denied his right to lead defence evidence.
5. While elaborating above aspects, Shri Lotlikar would submit that though there are eyewitnesses No.2 to 5 and 8, all are not convincingly disclosing the overt act on the part of the appellant. Thus, their presence at the site is highly doubtful. The eyewitnesses failed to describe the knife allegedly used by the appellant. No eyewitnesses disclose as to who used the knife at the time of the alleged incident. Mere recovery of the knife without eye-witnesses stating as to who used it, cannot be used against accused no.2/appellant. Even otherwise, such recovery of the knife is highly doubtful as it was conducted after a period of 10 days from the date of the incident. Pancha Witness for the recovery panchanama and the Investigating Officer has given different versions as to who pointed out the knife. The post-mortem examination report though discloses 6 stab injuries, only injury no.1 is shown as fatal and that too, because of loss of blood.
6. Shri Lotlikar, in the alternative, would submit that even if it is considered that the accused is the author of such injury, there was no premeditated overt act so as to presume that the appellant had the intention to kill or had knowledge that such injury would cause death in normal circumstances. The incident happened in the spur of the moment and due to a sudden fight. Thus, at the most, the case would fall under exceptions no.1 and 4 of Sec. 300 of IPC. He would, therefore, submit that even this case would not fall under Part I of Sec. 304 of IPC and would be under Part II of Sec. 304 of IPC.
7. Shri Lotlikar then would submit that a valuable right of leading defence evidence was denied without any proper and sufficient reason even though he filed an application to that effect. He submitted that quoting the wrong provision in the application is not at all the ground to deny such a valuable and important right of leading defence evidence. Appellant/accused disclosed in his application that he wanted to examine 2 persons who were actually present at the site when the alleged incident took place. In this respect Shri Lotlikar heavily placed reliance on the provisions of Ss. 232 and 233 of Cr.P.C and claimed that the learned trial Court failed to call upon the accused to lead defence evidence. According to him, questions put to the accused under Sec. 313 Cr.P.C as to whether he wants to lead any defence evidence, has no relevance while exercising the powers under Sec. 232 of Cr.P.C as such stage comes only after recording evidence of the prosecution, examining the accused under Sec. 313 of Cr.P.C and
The judgment establishes that minor discrepancies in witness testimonies, which do not materially affect the case, cannot be the basis for doubting the prosecution's case.
The main legal point established in the judgment is the reliance on quality evidence, including eyewitness testimony, corroborative evidence, and forensic reports, to establish the guilt of the accus....
The judgment emphasizes the necessity of clear and cogent evidence to establish shared intention under Section 34 of the Indian Penal Code, and the requirement to put circumstances to the accused dur....
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