Camilo Vaz Vs. State of Goa  INSC
210 (10 April 2000)
Ruma Pal, D.P.Wadhwa
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
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 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
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 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
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 ½" 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. 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 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 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 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
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
murder however 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
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.