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2004 (2) Crimes 547
Bombay High Court
A.M. Khanwilkar & P.V. Hardas JJ.
State—Appellant
versus
Joao @ Badgi Fernandes & Anr.—Respondents
Criminal Appeal No. 42 of 2003
Decided on 15-12-2003
Counsel for the parties:
For the Appellant : Mr. S.N. Sardessai, Public Prosecutor.
For the Respondent:Mr. A.P. Lawande, Advocate for Respondent No. 1.
Important Point
Court should endeavour to segregate the discrepancies or the exaggerations on minor aspects of the case and see if sum and substance of evidence of testimony of witness on vital aspect of prosecution case is unaffected.
Headnote:Indian Penal Code, 1860 — Section 302 — Respondent accused with absconding co-accused arrived on motor cycle, assaulted deceased with knife when deceased had reached his house in vehicle — PW4, brother of deceased saw respondent accused running away from spot holding knife with other accused — Acquittal by trial court in view of discrepancies in evidence — State appeal — FIR was lodged by PW4 — Evidence of PW4 was amply corroborated by FIR — PW6, wife of deceased, had seen two persons assaulting deceased her husband with knife — Deceased told PW4 that he was attacked by two persons & version had come in FIR also — Motor cycle of accused respondent No. 1 was seized from spot which he got released — Knife was got recovered by accused — Trial court was not justified to reject or disbelieve evidence of witnesses and acquittal was liable to be set aside. (Para 12, 13, 17 & 18)
(ii) Indian Penal Code, 1860 — Section 302 — Appellant respondent-accused assaulted deceased with knife — Evidence showed that attack was pursuant to an altercation and there was no motive for accused — Injury was single blow on right thigh of deceased and not on any vital part — No intention to kill could be ascribed to accused but accused could be attributed knowledge that injury was likely to cause death — Offence fell u/s. 304 Part II IPC — Sentence of 5 years imprisonment & fine of Rs. 2000/- & compensation of Rs. 10,000/- to be paid to legal heirs of deceased imposed. (Paras 19 to 22)
Result: Appeal allowed partly.
JUDGMENT (Oral)
P.V. Hardas, J.— The State being aggrieved by the judgment of the learned Sessions Judge, Panaji, dated 28th February, 2003, in Sessions Case No. 40 of 2001, acquitting the Respondent No. 1/ Accused for an offence punishable under Sections 302 and 307 of the Indian Penal Code, has filed the present Appeal challenging the aforesaid judgment.
2. The facts, as are necessary for the decision of this Appeal are set out hereunder:-
P.W. 12, P.I. Gundu Naik, who was attached to the Calangute Police Station referred P.W. 4, Sanjay Kumar Singh and injured Ajay Pal Singh to the Goa Medical College on ‘10th May, 2001. At about 00.45 hours of 11th May, 2001, P.W. 4, Sanjay Kumar Singh returned back to the police Station and filed a complaint at Exh.20. The complaint was filed against the present Respondent No1 and one Mansukh Gujarati, who was absconding and was never put to trial. On the basis of the said complaint, an offence came to be registered and the scene of the offence panchanama came to be drawn at Exh. 36 in the presence of the witnesses. Exh. 44 is the Sketch of the scene of the offence. Sample of control mud and blood mixed with mud was attached. Since the deceased had succumbed to his injury, inquest panchanama at Exh.37 was drawn. The post mortem on the dead body of deceased Ajay Pal Singh was conducted by P.W. 7, Dr. E.J. Rodrigues, who found one incised wound of 3x 0.5cms. Obliquely placed, 75cms. above right heel and 22 cms. below right anterior superior ilias spine, situated in upper portion of middle front of right thigh. He found that the wound had made a corresponding cut in sub-cutaneous tissue thigh muscle and the fumoral vessel at that level with extensive extra vassation of blood all along the track of wound. He opined that the injury was caused by sharp pointed penetrating weapon and was ante-mortem in nature. He, therefore, opined that death was due to haemorrhage and shock as a result of said injury. The Post Mortem Report is at Exh. 27. A motor-
cycle bearing registration No. GA-01-0-0070 which was found at the scene
of the offence was attached under a panchanama and during the trial came to be released to Respondent No.1 herein vide an Order of the Trial Court dated 2nd January, 2002.
3. On 12th May, 2001, Respondent No. 1 herein came to be arrested. The Arrest Panchanama, Exh. 10, was drawn in the presence of P.W. 1, Manoprasad Poudal. On 13th May, 2002, the Accused was sent for medical examination and was examined by P.W. 7, Dr. E.J. Rodrigues. The finger nail clippings and the scalp hair of the Accused were preserved. He did not notice any other injury on the person of the Accused. The Report in respect of the examination of the Accused is at Exh. 30. The Blood Group of the Accused vide Exh. 31 was 0 Rh Positive while that of the deceased vide Exh. 28 was Rh Negative. On 15th May, 2001, Respondent No.1/Accused is alleged to have volunteered to discover the weapon of the assault which came to be recovered in the presence of P.W. 5, Francis Fernandes. The panchanama of the disclosure statement and the recovery is at Exh.45.
4. On 23rd May, 2001, P.W. 9, Yogesh Singh, was examined and his Certificate is at Exh. 41. The said Certificate discloses that P.W. 9, Yogesh Singh, had a scar (healed) 2x3 cms. on right side chest wall. On 28.th May, 2001, P.W. 9, Yogesh Singh was examined by P.W. 7, Dr. E.J. Rodrigues, who also noticed a healed linear scar of 3 cms. obliquely placed with tailing outwards. The Certificate is at Exh.29. On 29th June, 2001, P.W. 2, Vinayak Alornekar, Special Judicial Magistrate, was requested to hold a test identification parade. P.W. 2, Vinayak Alornekar, held the test identification parade on 5th July, 2001 and on 26th July, 2001. The Memoran-dums of the test identification parade are at Exhs. 13 and 14. On 7th August, 2001, the muddemal articles were forwarded to the Central Forensic Science Laboratory at Hyderabad for examination. The Report of the Chemical A
