Advocates:
A. SUBHASHINI

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PETITIONER:

CAMILO VAZ

Vs.

RESPONDENT:

STATE OF GOA

DATE OF JUDGMENT: 10/04/2000

BENCH:

Ruma Pal, D.P.Wadhwa

JUDGMENT:

D.P. WADHWA,J.

Sole appellant is aggrieved by the judgment dated

28.11.1997 of the Bombay High Court at Goa upholding his

conviction for an offence under Section 302 of Indian Penal

Code (’IPC’ for short) and sentence of life imprisonment

awarded to him by the District and Sessions Judge, South Goa

at Margao.

Originally there were 17 accused including one

absconding, who were tried for offences under Sections 302,

307, 326, 325, 143, 144, 140 IPC read with Section 149 and

Section 120-B IPC for having committed the murder of Simon

Fernandez (Simon), a Sub-Inspector of Police and attempt to

murder his two brothers, namely, Irineu Fernandez (Irineu)

and Victor Fernandez (Victor). Sessions Court convicted

five of them including the appellant holding them guilty of

murder of Simon under Section 302 read with Sections 120-B

and 149 IPC. They were further held guilty for attempt to

murder of Irineu and Victor under Section 307 read with

Sections 120-B and 149 IPC. They were also held guilty of

unlawful assembly under Section 143 and rioting under

Section 148 read with Sections 120-B and 149 IPC. For these

offences they were respectively sentenced to life

imprisonment, 7 years imprisonment and 2 years imprisonment.

No separate sentence was passed for an offence under Section

143 IPC. All these five accused had appealed to the High

Court against their conviction and sentence. High Court

maintained the conviction and sentence of the appellant

under Section 302 IPC. Other four accused were convicted

under Section 326 IPC and their conviction for offence under

Section 302 and 307 IPC were set aside. Their sentences

were reduced to the imprisonment they had already undergone.

High Court also rejected the alternate plea of the appellant

that on the facts of the case there could be conviction only

for an offence under Section 304, Part-I or Part-II IPC.

The incident, which resulted in conviction of the

appellant and others, occurred on the midnight of

4/5.5.1993. Arlem Festival was celebrated on 1.5.1993,

2.5.1993 and 4.5.1993. Boys of two villages Khaneband and

Calconda were not on best of terms between them. During

the festival they had been fighting with each other. On the

night of 4/5.5.1993 Victor, who was from Calconda, attended

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the festival. He went at 9.30 P.M. and returned back home

at about 12.00 midnight. Simon and Irineu did not attend

the festival on that day and were already there in the house

as they all lived together. At about 2.30 A.M. someone

banged the door of their house. These three brothers came

out and saw a young boy standing outside a few feet away

under a banyan tree. They asked him what was the matter

about. Suddenly a group of 15/20 boys emerged from the

bushes near the banyan tree and started beating the three

brothers. They were armed with sticks, cycle chains and

bottles. These boys belonged to Khareband. They assaulted

the three brothers. Appellant hit Simon with the stick of

the thickness of 2" and length of 4’. Simon fell down

unconscious. Still he was being hit and beaten by the

assailants. Victor and Irineu were also beaten up and

suffered injuries. Hearing the loud shouts the neighbours,

which included boys of Calconda, came and the assailants ran

away. Condition of Simon was serious. He was taken in a

rikshaw by one of the neighbours to the Hospicio Hospital.

Another neighbour brought his car and removed Irineu and

Victor to Hospicio Hospital. Since condition of Simon

continued to be serious he was shifted to GMC Bambolim.

Ir