http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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. Irineu  and  Victor were also taken to GMC Bambolim  in  the same  ambulance with Simon.  Police came to the hospital and recorded the statement of Irineu on the morning of 5.5.1993. He  said on 4.5.1993 after having dinner at about 10.30 P.M. they  went  to sleep.  On the morning of 5.5.1993  at  about 2.30  A.M.  someone banged the front door and asked them  to come  out.   When  they  came out they did  not  see  anyone outside.   They went ahead by the footway and saw a group of 15 persons holding iron rods, sticks and cycle chains.  When they  approached near them they pelted soda bottles on  them and  immediately assaulted them with sticks and iron rods on the  head.   Appellant gave a blow on his head and  he  fell down  unconscious.   Irineu said that assault continued  for about  three  to four minutes and when the  neighbours  came there  those  persons  fled  away.   Irineu  made  complaint against  the appellant and his group of gangs, who assaulted him,  his  brothers  Simon and Victor causing  serious  head injuries  on them.  He stated that they were admitted to the hospital  by their neighbours.  He also said that there  was no  enmity between them and the appellant.  On the basis  of the  complaint lodged by Irineu police first registered  the case  under  Section 307 IPC.  When Simon died  on  8.5.1993 offence  under  Section  302  IPC  was  also  added.   After completing the investigation as many as 17 accused were sent for  trial  for various offences.  Prosecution  examined  as many  as 33 witnesses.  Statement of each of the accused was recorded  under  Section 313 of Code of Criminal  Procedure. They denied their involvement in the crime and said they had been  falsely implicated.  Apart from Irineu and Victor, who were  examined  as  PW-8  and PW-9,  there  were  other  eye witnesses whose statements were recorded.

     Dr.   Purnanand Audi conducted the post mortem on  the dead  body  of Simon.  On external examination of  the  dead body he found following 11 injuries:  -

     "1.  Stitched lacerated wound of 9 x 3 cms.  deep with bruise  around was present on left eyebrow.  2.  Black eye 6 x  6 cms.  on left eye.  3.  Black eye 6 x 6 cms.  on  right eye.   4.  Laceration 3 x 1 cms.  mucosa deepa on the  lower lip  right  side.  5.  Grazed abrasion 6 x 4 cms.  on  right side of face below cheek bone.  6.  Sutured incised wound of inverted  U type 14 cms.  linear on right temporal  parietal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

region  of  head underneath there was abruise.  7.   Sutured vertical  wound  of 3 cms.  linear on left temporal  region. 8.   Needle prick mark on dorsum of the right feet and right dorsum  of the head.  9.  Abrasion 3 x 1 cms.  front of  the left  knee.  10.  Rail road type patterned bruise of 3 x 1.8 cms.   on front of the left elbow towards forearm side.  11. Bruise of 2 x 1 cms.  on base of nose."

     According  to Dr.  Audi injuries numbers 1 to 5 and  9 to  11 were caused by impact of the blunt force and injuries numbers  6  to  8 were made by the surgeon as  part  of  the treatment.   On  internal examination Dr.  Audi  found  that there were outpouring of the blood under injuries numbers 1, 6,  7  and  11.   He further found "there  was  fracture  of frontal  bone left side extending to left orbital plate  and anterior  cranio  fossa further to right wing of the  spnoid bone.  In right middle cranio fossa extending further to the right  temporal bone, there was in extradural haemotoma of 4 x  2  x 1 cms.  on right temporal lone of brain.  There  was thing  subdural  haemotoma  of  6 x 2 x  1  cms.   on  right temporal  lone  of the brain.  Sub aracnoid  haemorrage  was present on both the sides of the brain.  There was contusion neurosis on left cortical part of orbital lobe of the brain. There  was  swelling  on the brain and  brain  material  was coming  through  the hole made by the surgeon, while  giving the treatment.  There were pin point haemorrages through the white  matter  of the brain.  There was herniation  of  both parahypo  campal  region  of  the  brain.   There  was  also fracture  of the nasal bone in addition to the skull bone as said  earlier".  In the opinion of Dr.  Audi cause of  death was  due to cranio cerebral damage, head injury as result of the impact.

     Dr.  Vasudeo Devari (PW-4), who was working as Medical Officer  in Hospicio Hospital, examined Irineu and found the following injuries:  -

     "1.   CLW  6"  x ½" x bone deep extending         from  right parietal  region  to the left parietal region.  The  opinion was  kept  reserved.   2.   CLW 2" x ½ x  Â½"  left  parietal prominence caused by blunt instrument, simple in nature."

     He  said  the  injuries  could   be  caused  by  blunt instrument.  He also examined Victor and found the following injuries:  -

     "1.   CLW 1 ½ x 1 ½" x 1" on the right eyebrow  caused by  hard  blunt  object  less than 6  hours  duration.   The opinion  of  all  the  injuries   were  kept  reserved.   2. Swelling  5" in the right mixillary region extending to  the right  angle of mandible.  Caused by hard blunt object, less than 6 hrs.  of age.  3.  CLW 1" x ½" x ½" on the upper lip, caused  by hard blunt object, less than 6 hours.  A doubtful fracture  on  the upper.  Zipih sternum on the middle  point and  loss  of  upper counter and there  was  swelling.   The opinion of fracture had to be confirmed by x- rays etc.  and as such the opinion was reserved.  A swelling with deformity on the left forearm caused by hard blunt object."

     When  Simon  was brought to the Hospicio Hospital  Dr. Devari  had also examined him and found him unconscious, his pupils  were  dilated  and reacting  sluggishly.   He  found following injuries on the body of Simon:  -

     "1.  Multiple CLW 1" x ½" x ½" with depressed fracture

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

on  the  left  side  of the forehead caused  by  hard  blunt object,  less than 6 hours duration.  In view patient having head  injury, the patient was referred to G.M.C.  for expert neuro  surgical management.  After giving initial treatment, the  Police were advised to collect further report from  the G.M.C."

     According to Dr.  Devari injuries found on Simon could be  caused  by stick as also by bottles.  He, however,  said that  he  felt that in this case the object might be  having multiple  rough  and  irregular  edges  because  there  were multiple  injuries.   He  said  such edges  were  absent  in bottles  and sticks and injuries could, therefore, had  been caused  by stone.  He was unable to say if injuries on Simon could  have been caused by throwing of a stone of about half a  kg.  weight.  He said injuries on Simon were several  but localised  in  one  region mainly on the left  side  of  the forehead.   Statement  of  Dr.  Devari  has  been  severally criticized by the learned Sessions Judge.

     Trial  court  has  referred  to  the  incident   which occurred  at  Arlem  Festival  on 1,2  and  4.5.1993,  which according  to  him  could  have been  prelude  to  the  main incident in question furnishing the motive for the same.  It was  the rivalry between the boys of Khareband and  Calconda villages.   It  is on record that there were rival gangs  of Khareband and Calconda and while injured and the prosecution witnesses  are from Calconda the accused are from Khareband. According  to  the learned Sessions Judge the fracas,  which occurred  between  these  two rival gangs on the  nights  of 1.5.1993,  2.5.1993 and 4.5.1993 had been duly  established. At  the same time learned Sessions Judge was of the  opinion that  when the case rested on the direct evidence failure of the  prosecution  to  prove  the  motive  was  of  not  much significance.

     There  is concurrent finding that it is the  appellant who  hit  Simon  with  a  stick on  his  head  and  he  fell unconscious.   The  appellant and other assailants  did  not stop at that and they went on beating and hitting Simon with the  result  he received multiple injuries.  Ultimately  the medical  evidence showed that it was the injury on the  head caused by blunt weapon which resulted in the death of Simon.

     Mr.   P.R.   Namjoshi, senior advocate, has  severally contended  that First Information Report (PW-8/A) lodged  by Irineu  on  the  morning of 5.5.1993 did not  implicate  the appellant as the one having caused head injury on Simon.  He said  according  to Irineu (PW-8) himself it was he who  was hit  by  the appellant and he fell unconscious.  This  point was  also raised with all seriousness in the trial court  as well  as in the High Court.  On that very day in the evening further  statement of Irineu was recorded where he clarified that  head injury was caused on Simon by the appellant.   He explained  the discrepancy which crept in the FIR  (PW-8/A). He  said  since his brother was in serious condition he  was worried.   His  explanation  has been accepted by  both  the courts  and we see no reason to take a different view.  Both Irineu  and  Victor have said that the appellant had  caused the head injury which resulted in the death of Simon.  After the  statement of Dr.  Devari (PW-4) prosecution did try  to improve  upon their version when it brought in the story  of stone  hit  on  the head of Simon in the deposition  of  two witnesses.   This theory of Simon being hit by stone and the statements  of those eye witnesses were, however,  discarded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

by the trial court and in our opinion rightly.

     There  cannot be any dispute about the incident having taken place where three brothers received injuries resulting in  the  death of one of them.  The question, which has  now been  seriously  contended  before  us, is  could  in  these circumstances  the  appellant be held guilty of  an  offence under Section 302 IPC.  The instant incident is the fall out of  the  quarrel  between the rival gangs of  Khareband  and Calconda.  They have been fighting on 1.5.1993, 2.5.1993 and 4.5.1993.   On  the night of 4.5.1993 boys of  Calconda  had gone to Arlem Festival.  Some of the persons who are accused before the Trial Court of the rival Khareband gang were also present.  Altercation took place between them which has been deposed to by the witnesses.  From the side of Khareband, it was  the  appellant who superheaded the fight.  He  beat  up Jayesh (PW-14) and threw him on the ground and gave him kick blows.   He hit a boy Dinesh as well.  Other accused present were  Shivappa (accused No.2), Mehaboob (accused No.3), Raju Jamune  (accused No.4), Mossess Martins (accused No.5), Raju Naik  (accused No.6), Mustaq (accused No.7) Milind  (accused No.8)  Babda  (accused  No.9), Kadar (accused  No.10),  Damu (accused  No.  11), Simon Martins (accused No.15), and  Seby Calaco  (accused  No.16).  People intervened and  asked  the appellant  not to fight.  Leaving Jayesh (PW-14) injured, it appears, he left the scene along with others.  The incidents of 1.5.1993, 2.5.1993, and 4.5.1993 were not reported to the Police  and have been played down by Artemio D’Silva (PW-25) who  was  the co-organisor of the Arlem Festival.  As  noted above, the accused were variously armed like dandas, bottles and  cycle-chains  or even stones.  When the three  brothers reached  near  the  banyam tree and they saw a boy  who  was identified  as accused No.6 and inquired from him as to  why he  was  banging the door of their house.  All of a  sudden, from  the bushes near the banyam tree 15 to 16 boys  started attacking  the  three brothers by throwing bottles on  them. Fortunately,  the  bottles  did not hit them.   It  was  the appellant with a danda and Seby (accused No.16) with a chain that  came to assault Simon.  Both Irineu (PW-8) and  Victor (PW-9)  asked  the  appellant as to why they were  going  to assault  them.  At this stage, the appellant hit a danda  on the head of Simon.  There was simultaneous assault on Irineu and Victor.  As noted above, on the night of 4.5.1993, there was  altercation  at the Arlem festival between the boys  of Kharaband  and  Calconda.   Victor  had  also  attended  the festival that night.  Most of the boys of Calconda including Jayesh  (PW-14) returned from the festival but some of  them including  Sanjay  (PW-21)  and Sandesh, brother  of  Dinesh stayed  back.  Dinesh went to the house of Jayesh (PW-14) to inquire  about  his brother Sandesh.  He was  worried  about him.   Dinesh  woke up other boys.  They all lived  in  that area  near  the  house of Jayesh (PW-14).  House  of  Jayesh (PW-14)  is at a distance of about 150 meters from the house of  Simon (deceased).  While they were standing in the paddy field  near  the house of Jayesh (PW-14), they heard  shouts coming  from  the scene of the offence and they ran  towards that.   They witnessed the occurrence.  After danda blow was given  on  the  head  of Simon, he  fell  down  unconscious. Mossess  Martins  (accused  no.5),  Mustaq  (accused  No.7), Ramesh  Babda  (accused  No.9),   Nissar  (accused   No.12), Pundalic  (accused No.14), Simon Martins (accused No.15) and Seby  (accused No.16) also assaulted Simon.  Trial Court has held  that from the evidence led by the prosecution, it  had been  established that the assault on the Simon was made  by the  appellant  and Seby (accused No.16).  Trial Court  said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

that  when there is assault by a large group of persons,  it is  not possible to get corroboration from the witnesses  to see  as  to  what assault was made by each of  the  accused. Trial   Court  was,  however,  of   the  opinion  that   the prosecution  had  been  able to establish that  it  was  the appellant  who  was  the author of the injury  No.1  on  the person  of  deceased  Simon   underneath  which  there  were fractures,  which  was sufficient in the ordinary course  of nature  to cause death.  It was said that the danda blow was thus given with force on the head which is vital part of the body.   Trial  Court  described  injuries 2 to 5  and  9  on account of kicks given to the deceased Simon by Seby (accuse No.16).   Cause  of  injuries  No.10 and  11  could  not  be established.   Those  had  been caused by  sharp  and  blunt weapons  including danda.  Trial Court further held that  it was  Mossess  Martins  (accused No.5) who  assaulted  Irineu (PW-8) on his head.  There were two injuries on the perietal regions  found  by Dr.  Devari (PW-4) one of which had  been caused by Mossess Martins (accused No.5) and other by Mustaq (accused   No.7).   Trial  Court   further  held  that   the appellant,  Mossess Martins (accused No.5), Mustaq  (accused No.7) and Simon Martins (accused No.15) assaulted Victor and caused  injuries to him.  After considering the evidence  in detail   and   taking   into   account  all   the   relevant considerations,  the  Trial  Court  convicted  some  of  the accused  and sentenced them as aforementioned.  High  Court, it appears, has not considered the record of the case in any detail.  Rather on each aspect of the matter it has referred to the judgment of the trial court.  It rather appears to us that  judgment  of  the trial court is an  annexure  to  the judgment of the High Court.  It has not been possible for us to  appreciate  the judgment of the High Court as to how  it has  convicted the accused appellant before it.  High  Court has  held  that  the appeals of accused Nos.5, 7 15  and  16 succeeded  so far as the prayer for bringing out their  case from  the  purview  of Section 149 IPC in  relation  to  the principal  charge  of  murder  under   Section  302  IPC  is concerned.   High  Court  then  said   that  the  order   of conviction  under Section 307 IPC is set aside "completely". Then  it went to hold that the conviction of accused  Nos.5, 7,  15 and 16 is maintained for the rest of the offences  as held  by the trial court and conviction of accused No.1 (the appellant) is made under Section 302 IPC.  Since the case of other  accused  except  the appellant is not before  us,  we leave  the matter at that.  Position as it presents today is that  the  appellant stands convicted for an  offence  under Section  302  IPC on account of the fatal blow he caused  on the  head  of  Simon (deceased).  Simon met  with  homicidal death.   When the Khareband boys came to the house of  Simon and  his two brothers led by the appellant they did not come with the intention to kill anyone.  They were not armed with any  particular  weapon to commit the murder.  There  was  a rivalry  between  them  and  during the  Arlem  Festival  on 1.5.1993, 2.5.1993 and 4.5.1993 there were minor fracas.  In fact,  the  rivalry existed even much prior to these  dates. They  came  to  the house of Simon and his brothers  not  to commit  murder  but to thrash them.  What transpired at  the Arlem  festival  on the night of 4.5.1993 that they came  to the  house of Simon and his brothers it has not bee possible to  say.  Only one of the brothers, namely, Victor had  gone to  attend  the festival and returned around midnight.   The brothers  are  from Calconda.  These boys of  Khareband  who came  to  the  house of the three brothers were  armed  with dandas,  bottles  and cycle chains.  The purpose  apparently was  to  beat up the brothers by giving them sound  beatings

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

but certainly not with any intention to kill anyone of them. In fact Irineu in his First Information Report to the police (PW  8/A) had stated that there was no enmity between  them. In  these  circumstances, can it be said that the  appellant has  committed the offence of murder because he hit Simon on the  head, a vital part of the body, with such a force  with danda  in  his  hand that Simon fell unconscious  and  later succumbed  to his injury?  To us, it appears, at the most it can  be said that the act of the appellant in hitting  Simon was  done  with  the knowledge that it was likely  to  cause death  but without any intention to cause death or to  cause such  a bodily injury as is likely to cause death.  The case of  the  appellant  would,  therefore,  clearly  fall  under Section  304 part II IPC.  Courts below did not apply  their mind  to this aspect of the matter in proper perspective and they  were rather swayed by the fact that on account of  the danda  blow by the appellant, Simon died an unnatural death. There  was no material on record which showed that appellant was  bent upon killing Simon and "eventually death came  out to  be  the result".  This is merely a surmise of  the  High Court.   Section  304 is as under :  "304.   Punishment  for culpable  homicide not amounting to murderwhowever  commits culpable homicide not amounting to murder, shall be punished with  imprisonment  for  life,  or  imprisonment  of  either description  for  a term which may extend to ten  year,  and shall  also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing  such bodily injury as is likely to cause death;  or with imprisonment of either description for a term which may extend  to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but  without any intention to cause death, or to cause  such bodily injury as is likely to cause death."

     This section is in two parts.  If analysed the section provides  for  two  kinds  of punishment  to  two  different situations.  (1) if the act by which death is caused is done with  the intention of causing death or causing such  bodily injury  as  is  likely  to   cause  death.   Here  important ingredients is the "intention";  (2) if the act is done with knowledge  that it is likely to cause death but without  any intention  to cause death or such bodily injury as is likely to  cause death.  When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In  that situation case will fall in part II of Section  304 IPC  as  in the present case.  We are also not oblivious  on the  fact  that  other  four   accused  who  were  similarly convicted with the appellant with the aid of Section 149 IPC have  been  held guilty only for offence under  Section  326 IPC.

     We,  therefore, hold the appellant to be guilty for an offence under Section 304 Part II IPC.  His conviction under Section  302 IPC is, therefore, set aside.  We sentence  the appellant  to undergo Rigorous Imprisonment for seven  years and  to  a fine of Rs.50,000/-.  In case of non- payment  of fine,  appellant shall undergo further rigorous imprisonment for a period of two years.  Fine when realised shall be paid to the widow of Simon.  Appeal is, thus, partly allowed.