Sunteți pe pagina 1din 9

2015 STPL 12152 BOMBAY

BOMBAY HIGH COURT


(RANJIT MORE & U. V. BAKRE, JJ.)

PHILIP FERNANDES
Appellant
VERSUS
STATE OF GOA, THROUGH THE POLICE INSPECTOR
Respondents
Criminal Appeal No. 52 of 2013 Decided on 11-8-2014
Indian Penal Code, 1860Section 302 MurderConviction
Case Referred:
1. Kulwinder Singh Vs. State of Punjab, (2007) 10 SCC 455: 2007(2) SBR 182: 2007 (5) Supreme
817: 2007 (3) Crimes 322.
Advocate(s): For the Appellant: Ryan Da Piedade Menezes, Advocate. (Under Legal Aid
Scheme).
For the Respondent: Mahesh Amonkar, Additional Public Prosecutor.
JUDGMENT
1. Heard Mr. Menezes, learned Counsel appearing on behalf of the appellant and Mr. Amonkar,
learned Additional Public Prosecutor for the respondent.
2. This appeal has been preferred by the accused against the Judgment and Order dated 07/
10/2009/13/10/2009 passed by the learned Additional Session Judge-2, South Goa, Margao (Trial
Court, for short) in Sessions Case No. 03/2008 whereby the accused has been convicted of an
offence of murder and sentenced to life imprisonment and to pay fine of Rs. 5,000/ - and in
default to undergo rigorous imprisonment for a period of two months.
3. The accused was tried for the offence punishable under Section 302 of Indian Penal Code
(I.P.C, for short) on the allegation that on 20/ 12/2007 at around 12.00 hours at Sonfator, Tilamol,
Quepem, he assaulted Smt. Joaquina w/o. Domnic Mendes aged 62 years with a knife and
bamboo danda causing cut injuries on her body which resulted in her death.
4. To the charge, framed by the Trial Court, for the offence under Section 302 of I.P.C. and
explained to him, the accused pleaded not guilty and claimed to be tried. The prosecution
examined altogether 16 witnesses in support of its case. The statement of the accused came to be
recorded under Section 313 of Cr. P.C.
5. In his statement under Section 313 of Cr.P.C, the accused stated that he was outside his house
when the deceased suddenly came and assaulted him with a plate and when he pushed her by the
side, the deceased lifted the danda and assaulted him with it on his shoulder and when he again
pushed her, the deceased gave him tooth bite on his hand and came to assault him with a knife.

He again pushed her and went away and he did not know what happened thereafter. The accused
did not examine himself or any witness in his defence.
6. Upon consideration of the entire evidence on record, the learned Trial Court held that the
prosecution succeeded in proving its case beyond reasonable doubt. The accused was held guilty
of the offence punishable under Section 302 of I.P.C. and was convicted and sentenced as above.
The accused has, therefore, filed the present appeal.
7. Mr. Menezes, learned Counsel appearing on behalf of the accused, submitted that there were
four eye witnesses examined by the prosecution but three of them had not been relied upon by the
learned Trial Court. He submitted that when all the said eye witnesses had deposed to the same
series of incident one of them could not have been believed and that all had to be disbelieved, for
want of corroboration. He pointed out from the evidence that the relevant position of the accused
viz a viz the deceased was not certain, at the time of the alleged assault, since there was no
corroboration on the same. He also submitted that the maker of the F.I.R. namely PW12 had not
corroborated the same. He further submitted that the danda as attached from the scene of offence
and though it was the case of the prosecution that there was blood on the same, however as per
the examination report of Central Forensic Scientific Laboratory (C.F.S.L., for short), no blood
was detected on the same and even when the said danda was shown to the witnesses in the Trial
Court, no blood was found on the same. He further submitted that the accused was apprehended
at one place and brought at police station and arrest panchanama was drawn under which knife
was attached, which was allegedly found in a bag carried by him. He, therefore, submitted that
the knife was not recovered under Section 27 of the Evidence Act at the instance of the accused.
He further submitted that the policemen who brought the accused at the police station had not
been examined and, therefore, there was doubt whether the bag containing knife was actually in
possession of the accused. He submitted that there were several small discrepancies in the
evidence of the prosecution witnesses and the combined effect of all such discrepancies had
rendered the prosecution case unreliable. Learned Counsel, thus, urged that the accused was
entitled to be acquitted. He therefore submitted that the appeal be allowed and the impugned
Judgment, order and sentence be set aside.
8. In the alternative, learned Counsel, for the accused, submitted that there was absolutely no
enmity between the accused and the deceased who were otherwise neighbours. He pointed out
that no motive for the accused had been established. He invited our attention to the medical
evidence establishing that the accused had sustained injuries and there was opinion of the doctors
that the said injuries could have been caused in a scuffle. He also submitted that there was
evidence that the deceased had thrown plate at the accused. He, therefore, urged that the incident
had occurred, without premeditation, in a sudden fight, in the heat of passion upon a sudden
quarrel and there was no intention on the part of the accused to kill the deceased. He submitted
that the knife used for assault was just a kitchen knife and therefore in the facts and circumstances
of the case the accused could not have been held to have acted in a cruel or unusual manner. He,
therefore, urged that Section 302 of I.P.C. was not attracted and that at the most Section 304(Part
II) could have been applied. He urged that the accused was arrested on 28/12/2007 and is in
custody till today and this punishment, which is more than six and half years, should be adequate
for the offence punishable under Section 304 (Part II) of I.P.C. He, therefore, urged that the
accused now be released.
9. On the other hand, Mr. Amonkar, learned Additional Public Prosecutor, while opposing the
appeal and supporting the impugned judgment and sentence, submitted that the presence of the
accused at the site was undisputed since the accused himself had admitted that there was scuffle.
He submitted that the evidence of eye witnesses, with regard to the assault on the deceased by the

accused with a knife, which had been believed by the learned Trial Court, read with the
circumstantial evidence on record, sufficiently proved that the deceased was assaulted by the
accused with a knife and since there was no third person nearby, the only inference that could be
drawn was that the death was caused by the accused. He pointed out that the injury on the chest
of the deceased was fatal and had pierced her heart, thereby making the intention of the accused
abundantly clear to kill the deceased. He further submitted that considering the definition of
murder under section 300 of I.P.C, the case certainly fell under the definition of murder and,
therefore, the learned Trial Court has rightly held the accused guilty of offence punishable under
Section 302, of I.P.C. He, therefore, urged that no interference with the impugned judgment is
called for.
10. We have gone through the original record and proceedings. We have considered the rival
submissions made by learned Counsel for both the parties.
11. The first point that arises for determination is whether the death of Smt. Joaquina Mendes was
proved to be homicidal.
12. As per the accused himself there was a scuffle between him and the deceased. Upon receipt of
information at Quepem Police Station, at about 12.30 p.m., on 20/12/2007, about the incident of
assault at Sonfator, Tilamol, P.S.I. Virendra Naik was asked by PW15, the investigating Officer,
to visit the spot. Shri Virendra Naik accordingly went there and took the lady who was lying
unconscious on the road at Sonfator, to the Hospital at Kakoda for medical treatment. The said
lady was declared to be brought dead. The dead body was shifted to Goa Medical College
Hospital, at Bambolim. Inquest Panchanama (Exhibit 12) was conducted by PW15, on the dead
body of the deceased, who was identified by her brother, Santan Fernandes, as Joaquina, wife of
late Domnic Mendes. PW1, Shri Seby Fernandes proved the said Inquest panchanama. The
evidence of PW8, Dr. Siddhartha Banaulikar, who conducted postmortem examination over the
dead body of Smt. Joaquina Mendes on 21/12/2007, read with his memorandum of autopsy which
is at Exhibit 29, reveals that the deceased had sustained altogether 19 injuries, out of which three
were stab wounds, ten incised wounds, five abrasions and one bruise. The first stab wound was
over the left side of the chest which had cut the 5th rib and pleura and entered the heart cavity
after cutting myocardium. The cause of death as per PW8 was haemorrhage and shock as a result
of stab injury to heart (injury no. 1) consequent to sharp, pointed, penetrating, cutting weapon,
which was necessarily fatal and fresh at the time of death. The circumstances in which the dead
body of the deceased was lying on the road with injuries and the nature of injuries sustained by
the deceased, themselves, are sufficient to hold that the death of deceased was homicidal. Thus,
the first point for determination gets answered in the affirmative.
13. The second question which arises for determination is whether the prosecution had proved
beyond reasonable doubt that the accused was the author of the injuries sustained by the deceased
which resulted in her death.
14. Let us first see as to where the incidence resulting in the death of deceased had occurred.
PW5, Shri Malvet Fernandes had acted as one of the pancha witnesses for the panchanama of the
scene of offence and sketch which are at Exhibit 22-colly. He deposed that on 20/12/2007 at the
request of Quepem Police he and one Alvito acted as pancha witnesses for the panchanama which
was conducted at Sonfator, Tilamol. According to him, the spot was shown by Shri Shaikh Khaja
(PW12) and the said spot was near the house belonging to the lady who was murdered. He was
also shown the place outside the compound wall where some blood was seen. He stated that there
was dry grass at the spot of incident on which the blood was seen. He stated that at the spot of
incident there were four houses, the- first one belonging to the deceased, second to the accused,

third to Shaikh Khaja (PW12) and fourth was locked. PW5 stated that there was a danda at some
distance which was on the compound wall and the said danda was broken at one side and there
was blood on the same. He stated that police had taken from the spot a sample of the mud with
blood and also sample of simple mud and both were packed in polythene bags which in turn were
packed in envelopes and sealed. He stated that a plate was also found at the scene which was used
for eating food. According to him, the said danda and plate were also packed and sealed. PW5
identified his signature on the panchanama and sketch, which are at Exhibit 22- colly. PW5 is a
mechanic residing at Shelvona which is about 5 to 6 kilometres away from the scene of offence
and upon hearing that there was murder at sonfator, he had come there to see as to what had
happened and was requested by P.I. Mhamal to be a pancha witness. The evidence of PW5 was
not shaken in the cross-examination. He had identified all the articles which were attached from
the scene of offence. The report of examination by C.F.S.L. which is at Exhibit 59 was duly
proved by PW16, Shri S. Sathyan, the senior Scientific Officer of C.F.S.L., Hyderabad. It
revealed that human blood was detected on the sample of mud mixed with blood which was
collected from the scene of offence. PW3, Shri Ramesh Bhosle, Head Constable, Buckle No.
3398, then attached to Quepem Police Station, had clicked photographs of the scene of offence
which are at Exhibit 17-colly. PW7, Shri Jaiwant Prabhudesai, a draughtsman attached to Water
Resources department, had subsequently drawn the sketch of the scene of offence, which sketch
is a part of Exhibit 26- colly.
15. The above evidence proves that there were four row houses at Sonfator, Tilamol, of Quepem
Taluka. In one of the said houses, which was on the extreme southern side, the deceased was
residing; in the house adjacent to that of the deceased, the accused was residing; in the house
adjacent to that of the accused, Shri Shaikh Khaja (PW12) was residing and the last house was
closed. The incident had occurred on the road in front of the said houses and more particularly in
between the houses of the accused and Shri Shaikh Khaja. Since the deceased, the accused and
the witness, Shri Shaikh Khaja (PW12) were close neighbours, they were bound to know each
other very well.
16. Evidence given in Court is on oath and therefore has great sanctity. In the present case, four
eye witnesses had been examined by the prosecution and they wre: (i) PW6- Mr. Lawrence
Fernandes; (ii) PW12-. Mr. Shaikh Khaja; (iii) PW13- Mr. Jose Barreto; and (iv). PW14- Mr.
Tulshdas Chari.
17. As already stated above, PW12, Shri Shaikh khaja was residing in a house close to that of the
deceased and that of the accused. He appears to be the first to have witnessed the incident.
Therefore, at the outset, it would be proper to take up his evidence, for scrutiny. PW12 had
lodged the complaint with the Quepem Police and the same is at Exhibit 44. PW12 deposed that
he is working as a driver with Mujid Khan and that his working hours are between 5.30 am to
8.00 p.m. He stated that there are four houses in the vicinity of his house and that all these four
houses are in one structure: the first house being closed; the second house being occupied by him;
third occupied by the accused and fourth by the deceased who was known as Mendes aunty. He
stated that said Mendes aunty was stabbed by the accused with a knife after which she succumbed
to the injuries. He also identified the accused in the open Court. He stated that this incident
occurred on 20/12/2007 at about 12 noon. He explained as to why he was at home on the day of
incident. He stated that on that day, he did not go for work since mine was closed for eight days.
He heard cries of Mendes Aunty who was shouting "Vachoya Vachoya" (help, help) and hearing
the said cries he came out and saw the accused stabbing Mendes Aunty with knife. He
immediately rushed to the bar of Lawrence (PW6) and informed him that the accused was
assaulting Mendes Aunty upon which Lawrence telephoned police. PW12 stated that he returned
back to the spot along with Lawrence and others and saw that the accused was assaulting Mendes

Aunty with knife. According to him, he had seen the accused assaulting Mendes Aunty with a
knife on her face and stomach and she had sustained bleeding injuries due to the said assault. He
stated that the accused was carrying a green colour bag and after the assault he put the knife in
that bag and walked away towards Sanvordem side. PW12 also saw the danda which was kept on
the compound wall at the spot of incident. He stated that the accused had brought the danda and
had assaulted the deceased with the same. He had seen the plate on the road infront of the door of
the house of the deceased.
18. In his cross-examination, PW12 stated that before he went to call Lawrence, he did not see the
accused assaulting the deceased with danda. Since PW12 had seen danda on the compound wall
even after he had returned back along with Lawrence, the statement of PW12 that the accused had
assaulted the deceased with the danda could not be believed. PW 12 specifically stated in the
cross-examination that he had not witnessed the assault on the deceased, With danda. No doubt,
there was, therefore, some exaggeration in the deposition of PW12. Some minor discrepancies
had also been brought on record in the evidence of PW12. PW12, being the closest neighbour of
both the accused and the deceased, he could be presumed to be friendly with both. There was
nothing in the cross-examination of PW12 to suggest that he was on inimical terms with the
accused and/or on good terms with the deceased. There was no reason for PW12 to falsely
implicate the accused in such a serious crime. The contention of the learned Counsel for the
accused that the evidence of PW12 was not relied upon by the Trial Court, is not correct. The
Trial Court only refused to accept that PW12 had seen the assault by the accused on the deceased,
with danda and rightly so. We are not concerned seriously with the assault with danda since the
fatal injury to the deceased was caused by a sharp cutting weapon. The evidence of PW12 was
most natural and was wholly reliable insofar as assault by the accused on the deceased with the
knife and was rightly relied upon by the Trial Court. Since PW12 had gone to call Lawrence
(PW6) and had returned back to the scene along with PW6, the next witness to be taken for
scrutiny of testimony, would be PW6.
19. PW6, Mr. Lawrence Fernandes had a bar by name "Jacinta Bar" at Sonfator. On the date of
incident i.e. on 20/12/2008 he was at his bar. According to him, between 12.00 to 12.15 p.m. two
persons by name Shaikh Khaja and Augustine came to his bar and told him that Philip Fernandes
(accused) was assaulting a lady and requested him to intervene. PW6 stated that he immediately
telephoned the police and informed that the accused was assaulting a lady with a knife and danda
and then rushed to the spot along with Shaikh Khaja and Augustine. PW 6 deposed that when he
reached the spot the accused was assaulting the lady with a knife and danda and after he reached
the spot the accused left the place. He stated that the accused was carrying a green colour bag
with him. According to PW6, he went near the victim and called her but there was no response
from her and that she had suffered injuries on her nose, chest, both arms and abdomen and all the
injuries were bleeding. He stated that the dartda with which the victim was assaulted was on the
compound wall by the side. According to him, the front portion of the danda was broken and
there were some blood stains on it. He stated that in the meantime police came and called the
victim but she did not respond and after that she was shifted to hospital in a jeep and about 15
minutes thereafter police returned and informed that the victim had expired. P W6 pointed out to
the accused sitting in the dock in the open Court stating that he was the person who had assaulted
the victim.
20. Just like PW 12, in his cross-examination, PW6 also made it clear that he had seen the
accused assaulting the victim only with knife and not with danda. He stated that he had witnessed
the accused giving four stabs with knife to the victim who was' lying on the ground and these four
stabs were given one on the right arm. other on the stomach, 3rd on the left arm and 4th on the

nose. He stated that the knife was a kitchen knife and about 8 inches long and the accused put the
knife in his bag as it was.
21. A perusal of postmortem examination report and evidence of PW 8 Dr. Banaulikar reveal that
the deceased had sustained injuries inter alia, on the left arm, nose and right arm. In the impugned
Judgment, the learned Trial Court has observed that the evidence of PW6 Lawrence cannot be
believed insofar as assault on the deceased by accused with danda. Admittedly, since PW6 had
not seen the accused assaulting the deceased with danda, part of the evidence of PW6, in his
examination-in-chief, wherein he spoke about assault with danda, was bound to be disbelieved.
But there was no reason as to why PW6 should not be relied upon with regard to his evidence
about assault on the deceased by the accused with kitchen knife.
22. Merely, because PW6 and PW12 falsely stated in their examination-in-chief that they had
seen the accused assaulting the deceased with danda, it does not mean that their entire deposition
should be disbelieved. Since the danda was lying on the compound wall with the broken end, they
might have presumed that the accused had also assaulted the deceased with that danda. It is well
settled that a witness can be partly truthful and partly false. In the case of Ku/winder Singh v.
State of Punjab[(2007) 10 SCC 455: 2007(2) SBR 182: 2007 (5) Supreme 817: 2007 (3) Crimes
322] the Apex Court has held that it may be stated that the maxim "falsus in uno falsus in
omnibus" (false in one false in all) does not apply to Criminal cases in India and a witness can be
partly truthful and partly false.
23. PW13, Shri Jose Baretto deposed that his house was at a distance of about eight minutes walk
from the spot of incident and he, heard some boys shouting that the deceased was being assaulted:
He, therefore, rushed to the spot and when he reached the spot, he saw PW12 outside his room
and also saw the accused stabbing the deceased with knife but did not see the assault with danda
though there was a danda on the compound wall which was broken at one end. PW13 deposed
that when he saw the accused and the deceased, the accused was assaulting the deceased with
knife and she fell on the ground with face to the ground. According to PW13, the deceased had
sustained injuries on her arms, face and chest and was bleeding. He stated that the accused was
carrying a bag on his shoulder and had kept the knife in that bag and walked away.
24. The evidence of PW10, Maria Fernandes, revealed that she had not witnessed the actual
incident of assault and she was informed about the same by one lady and thereafter had rushed to
the spot where she saw the deceased with injuries on her left arm, chest and that the injuries were
bleeding. She also saw a plate at the spot and a danda on the compound wall. According to her, on
the same day at about 9.00 a.m. the deceased had met her and at that time she looked disturbed
and when asked she had complained that the accused was harassing her.
25. PW14, Shri Tulshidas Chari, also deposed that he had seen the accused assaulting the
deceased with a knife and a danda and that the accused had stabbed the deceased Joaquina on
stomach, chest, face and hand and she had suffered bleeding injuries. Upon minute scrutiny of his
evidence and comparing the same with the evidence of other witnesses, the learned Trial Court
held that the testimony of PW14 was seriously in doubt. Merely because one eye witness could
not be relied upon that did not mean that all other eye witnesses had to be disbelieved. Therefore,
let us not waste time any further on the evidence of PW14, since there is merit in the said
observation of the Trial Court.
26. The evidence of the Investigating Officer, P.I. Naresh Naresh Mhamal, who was examined as
PW15 revealed that on 20/12/2007 at about 12.30 p.m. he had received a telephonic message
about the incident of assault and he had asked the S.H.O. on duty namely P.S.I. Virendra Naik to

go with' the staff and verify the facts. PW15 thereafter learnt that the injured lady had died. He
thereafter rushed to the spot of incident and recorded the complaint of PW12 Shaikh Khaja. The
offence was registered upon the said complaint at 4.30 p.m. on the same day. According to PW15,
information was flashed to the police stations about the incident and staff was deputed at various
places and the accused was arrested at Gudi by Head Constable Buckle No. 3398 and Police
Constables Buckle No. 5627 and 5350 and was brought at the police station. According to PW15,
the accused was thereafter arrested. He produced the extract of station diary, dated 20/12/2007, as
Exhibit 50 which revealed all the above facts. PW15 then secured the presence of two pancha
witnesses namely Remedios Rebello and Raghav Joshi and conducted the arrest panchanama of
the accused which is at Exhibit 20.
27. PW4 is the said Raghav Joshi who acted as one of the panch witnesses for the arrest
panchanama of accused. He deposed that one more pancha witness by name Remedio Fernandes
was present and they were told by P.I. Mhamal that one person had committed crime and,
therefore, they were required for panchanama. He stated that the accused was shown to them and
upon inquiry he disclosed his name as Philip Fernandes. According to PW4, the accused was
carrying with him a grey colour bag with name 'Jeweler'. PW4 stated about the confession made
by the accused. Since the same is not admissible in evidence we are not inclined to discuss on the
same. PW4 further stated that P.I. Mhamal took the said bag from the accused and opened it, in
which there was a lighter of red colour and a knife. The handle of the knife was found separated
from the blade. The measurement of the blade and handle were taken and the blade was found to
be of the length of about four and half inches and the handle was of four inches. According to
PW4, there were blood stains on the blade and handle. Both things i.e. the blade and the handle
were put in polythene bag, packed and sealed. He further stated that the accused was wearing
green colour pant with half sleeves T-shirt with grey colour strips and that there were blood stains
on the T-shirt worn by the accused. He also stated that there were injuries of tooth bite on the left
hand of the accused. PW4 identified his signature on the panchanma which is at Exhibit 20 and
stated that this panchanama commenced at about 3.30 p.m. and was concluded at about 4.00 p.m.
He identified the clothes of the accused, the lighter and the bag. The testimony of PW4 was not at
all shaken in his cross-examination and there was no reason to disbelieve this witness.
28. The evidence of PW15, the Investigating Officer, revealed that the said articles namely the
knife, lighter and the clothes of the accused, along with the articles attached from the scene of
offence, etc., were forwarded to C.F.S.L. at Hyderabad through Superintendent of Police, C.I.D.,
Panaji. The said correspondence was produced by him on record. The examination report of
C.F.S.L., at Exhibit 59, duly proved by PW16, the Senior Scientific Officer of C.F.S.L.,
Hyderabad, showed that human blood was detected on the said broken knife with plastic handle
and on the full pant of the accused. Since the accused was arrested within 3-4 hours from the time
of occurrence of the incidence, the detection of human blood on the knife which was carried by
the accused in his bag and on his pant was of much relevance. There was no explanation from the
accused as to how there was blood on his full pant and as to how he was carrying with him a
blood stained broken knife.
29. In his statement under Section 313 of Cr.P.C, the accused stated that he always carries a bag
on his shoulder and that at the time of panchanama conducted in presence of Remdios Rebello
and Raghav Joshi, he had the said bag with him. Said bag was actually found in possession of the
accused and there was the knife with blood stains in it. He, however, stated that he did not know
about the knife which was in the said bag. The accused specifically stated in his statement under
Section 313 of Cr.P.C. that when he was outside his house, the deceased suddenly came and
assaulted him with a plate. Such a plate used for eating food was found at the scene of offence.
He further stated that he pushed the deceased by the side when she lifted a danda and assaulted

him with it on his shoulder. A danda with broken end was found kept on the compound wall. The
accused further stated that when he again pushed the deceased, she gave teeth bite on his hand
and came to assault him with a knife and that he pushed her and went away. The medical
evidence of PW2 and PW11 did prove that the accused had sustained injury due to human bite.
According to the accused, he did not know what happened thereafter. The said statement of the
accused, in his statement under Section 313 of Cr.P.C, read with the evidence of PW2, PW6,
PW8, PW11, PW12 and PW13 sufficiently proved that the accused had assaulted the deceased
with knife and had caused injuries to her, which resulted in her death. Hence, the second point for
determination is answered in the affirmative.
30. The last point which arises for determination is whether the act of causing death of the
deceased, committed by the accused, amounts to murder or culpable homicide not amounting to
murder, and if it amounts to culpable homicide not amounting to murder, whether it falls under
Section 304(Part I) or 304(Part II)?
31. As already stated above, the accused, in his statement under section 313 of Cr.P.C, stated that
the deceased had given a teeth bite to his hand. After the accused was arrested on 20/12/2007, he
was referred for medical examination. He was initially examined by PW 2 Dr. Vandana Patankar.
PW2 deposed that in December, 2007, she was attached to Community Health Centre, Curchorem
as Health Officer and at the request of Police Inspector of Quepem Police Station, on 20/12/2007
at about 9.00 p.m., she examined Philip Fernandes s/o. Motes Fernandes (accused). She found
contused abrasions three in number in semi circle of the size Vi cm x '/2 cm on the back of left
forearm caused by hard and blunt object, within a duration of six hours and which were simple in
nature. In her cross-examination she stated that the injury which was in semi circle could be
caused by teeth. According to her, such injuries could have been be caused in a scuffle.
32. Subsequently, at 12.40 p.m. on 27/12/ 2007, the accused was again examined by PW11, Dr.
Avinash Pujari at Hospicio Hospital, Margao. The history given by the accused to PW11 was that
the deceased lady has bitten him on left forearm and hit him by the wooden bamboo on the top of
right shoulder on 20/12/ 2007 at about 12.00 noon. On examination, PW11 found that there were
three abrasions of the size 0.5 x 0.2 cms; 1.0 x 0.5 cm and one semi circular with oval curvature
at one end with two abrasions on the other curvature at the other end of the size 1.0 cm x 0.5 cm
and 0.5cm x 0.2cm with brownish scalp and bluish contusional area with diffuse margins in
surrounding area. According to PW11, the said injury was consistent with the history of human
bite. It was located on left forearm on outer aspect/ proximal end on ulnar to elbow and distant
end on radial border towards wrist. He found that the age of injury was consistent with the history
given by the accused. The accused was identified by P W11. The report of PW 11 is at Exhibit 41colly. PW 11 also stated in his cross-examination that such injuries could have been caused in a
scuffle.
33. The prosecution has not explained as to how the accused had sustained the said injury caused
by human bite. The evidence on record, as already discussed above, revealed that a bamboo
broken at one end was found lying on the compound wall. A plate used for eating food was also
found at the scene of offence. The evidence of eye witnesses, otherwise, did not reveal that the
accused had used the said danda for assaulting the deceased. The evidence of the main witness
namely Shaikh Khaja(PW12), in his cross-examination, revealed that there was altercation earlier
between the accused and the deceased. Considering all the above facts, there appears to be merit
in the statement of the accused that there was a scuffle between him and the deceased and it was
the deceased who had started the incident by throwing plate at the accused and thereafter
assaulting him with danda on his shoulder. In the facts and circumstances of the case, Section 302
of I.P.C., in our considered view, was not attracted. The overall facts and circumstances were such

that the case should fall under exception (4) to Section 300 of I.P.C. There was absolutely no
enmity between the accused and the deceased who were otherwise neighbours. The accused was
old about 62 years old. No motive for the accused had been established. The medical evidence
established that the accused had sustained injuries and there was opinion of the doctors that the
said injuries could have been caused in a scuffle. The incident had occurred, without
premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel and there was no
intention on the part of the accused to kill the deceased. The knife used for assault was just a
kitchen knife and therefore in the facts and circumstances of the case the accused could not have
been held to have acted in a cruel or unusual manner. It is true that one of the stab injuries which
was caused on the chest of the deceased was fatal since it had pierced the heart and the said injury
was sufficient in the ordinary course of nature to cause death. Thus, the act was done by the
accused with the knowledge that it was likely to cause death but without intention to cause death
or to cause such bodily injury as was likely to cause death. The learned Trial court erred in
holding that the case was of murder. We, therefore, hold that Section 302 of I.P.C. was not
attracted and that it is Section 304(Part II) which is applicable. In view of the above, the last point
for determination is answered accordingly as above.
34. We heard the learned Counsel for the parties on the point of sentence. The second part of
Section 304 of I.P.C. provides for punishment of imprisonment of either description for a term
which may extend to ten years or with fine or with both. The accused was old of the age of 62
years at the time of offence. There were no criminal antecedents in respect of the accused. The
accused was arrested on 28/12/ 2007 and is in custody till today and this punishment of more than
six and half years, in our considered opinion, should be adequate for the offence punishable under
Section 304 (Part II) of I.P.C, in the facts of this case.
35. In the result, the appeal is partly allowed.
(a) The impugned Judgment, order and sentence imposed upon the accused for the offence under
Section 302 of I.P.C. is quashed and set aside.
(b) The accused is held guilty and is convicted for the offence punishable under Section 304 (Part
II) of I.P.C. and is sentenced to under go imprisonment for a period of six and half years.
(c) Since the accused has already undergone the said period of imprisonment, he shall be released
forthwith, if he is not required in any other case.
(d) Cash of Rs. 130/- found in the bag of the accused during his arrest shall stand forfeited in
favour of the Government. All other muddemal properties shall be destroyed.
Appeal Partly allowed.
------

S-ar putea să vă placă și