IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI CRIMINAL APPEAL NOS.69 AND 77 OF 2000 CRIMINAL APPEAL NO.69 OF 2000 CRIMINAL APPEAL NO.69 OF 2000 CRIMINAL APPEAL NO.69 OF 2000 1. Roy Fernandes, s/o Tony Fernandes, r/o Pilimbivaddo, Siolim, Bardez, Goa. 2. Domnic Mendes, s/o Felix Mendes, r/o St. Anthonywaddo, Anjuna, Goa. 3. Sandeep Morajkar, s/o Damu Morajkar, r/o Alto Porvorim, Bardez, Goa. 4. Mervin Menezes, s/o Camilo Menezes, r/o Grand Morod, Saligao, Bardez, Goa. ... Appellants. versus S T A T E ... Respondent. Mr. Lalit Chari, Senior Advocate with Mr. Jaideep Lele and Mr. S. M. Singbal, Advocates for the Appellant No.1. Mr.Menino Teles, Advocate for the Appellant No.2. Mr. G. M. Kanekar, Advocate for the Appellant No.3. Mr. Albano Viegas, Advocate for the Appellant No.4. Mr. A. P. Lawande, Public Prosecutor for the Respondent. CRIMINAL APPEAL NO.77 OF 2000 CRIMINAL APPEAL NO.77 OF 2000 CRIMINAL APPEAL NO.77 OF 2000 Anthony D’Souza, presently in custody at Central Jail, Aguada, Goa. ... Appellant. versus S T A T E ... Respondent. - 2 - Mr. Menino Teles, Advocate for the Appellant. Mr. A. P. Lawande, Public Prosecutor for the Respondent. CORAM: V. C. DAGA & P. V. HARDAS, JJ. DATE OF RESERVING THE JUDGMENT ; 24TH JUNE,2002. DATE OF PRONOUNCING THE JUDGMENT : 22ND JULY,2002. JUDGMENT JUDGMENT JUDGMENT(PER P.V.HARDAS, J.) The Appellants in both the Appeals, who were Original Accused Nos.1 to 5 in Sessions Case No. 21 of 1997 assailed the conviction and sentence passed by the Additional Sessions Judge, Mapusa, by his Judgment dated 6th October, 2000. The conviction and sentence passed against the Appellants/Accused is as follows:- Conviction Sentence a). Under Section 2 months R.I. each. 143 r/w Section 149 of I.P.C.. b). Under Section R.I. for 3 months. 148 r/w Section 149 of I.P.C.. c). Under Section R.I. for 1 month. 323 r/w Section 149 of I.P.C.. d). Under Section R.I. for 1 year 325 r/w each and to pay fine Section 149 of Rs.1000/- each, of I.P.C.. in default S.I. for 1 month. - 3 - e). Under Section Imprisonment for 302 r/w life each and to pay Section 149 fine of Rs.2000/- of I.P.C.. each, in default S.I. for 3 months. 2. The brief facts necessary for the decision of the Appeal are set out hereunder:- On 11th May, 1997, at about 8.05 a.m., A.S.I. Shri Nazir, attached to the Mapusa Police Station, was informed by a letter by the doctor of the Asilo hospital that one person by name Felix Felicio Monteiro was admitted in the hospital due to injury. A.S.I. Shri Nazir, on the basis of the said information made an entry in the Station register at serial no.7. P.W.22, Subhash Goltekar, who was attached to the Mapusa Police Station as P.I., on receipt of the above referred information, proceeded to the Asilo hospital along with the staff. At the hospital, a guard was posted to keep a charge over the body of the said Felix Felicio Monteiro and P.W.22, P.I. Subhash Goltekar, then proceeded to the house of the deceased and recorded the complaint of Sebastian alias Tina Monteiro. The said complaint is at Exh.PW1/A. From the house of the deceased, P.W.22, P.I. Subhash Goltekar, then proceeded to the Asilo hospital where he drew an Inquest Panchanama at Exh.PW2/A in the presence of P.W.2, Alima Monteiro and one Pilagio Marcelino. By - 4 - memo at Exh.PW22/A, P.W.22, P.I. Subhash Goltekar, referred the dead body for post mortem. Thereafter, P.W.22, P.I. Subhash Goltekar, recorded the scene of offence panchanama vide Exh.PW22/A in the presence of Jose Monteiro and Rumalo D’Souza. At the scene of the offence, pickaxe, spade, crow bar, ghamelas, plastic pot, barbed wire, pair of rubber chappals, pair of leather chappals, one tire and cutter were attached. The sample of the blood on the ground was also taken. Thereafter, P.W.22, P.I. Subhash Goltekar, arrested Accused No.1, Roy Fernandes and Accused No.2, Anthony D’Souza vide Arrest Panchanama Exhs.P.W.16/A and P.W.16/B in the presence of P.W.16, Umesh Lotlikar, Anant Adelkar and Suresh Lotlikar. By memo at Exh.P.W.22/C, Accused Nos.1 and 2 were sent to the Goa Medical College for examination. The Accused No.2 had a contused lacerated wound 2 mm x 1 mm at the forehead caused by blunt object less than 24 hours duration. The injury was simple in nature. The injury certificate of Accused No.2 is at Exh.PW19/A colly. By memo at Exh.PW22/E the injured person namely Paul Menezes, Philomena D’Souza, P.W.7, Conceicao Monteiro, Apolin D’Sa and P.W.5, Martha Dias were referred for medical examination at the Asilo hospital. By another memo at Exh.PW22/F, P.W.6, Remedios Salis Monteiro, was also referred to the Asilo hospital for examination. Their medical certificates are collectively marked as - 5 - Exh.PW19/A colly. P.W.22, P.I. Subhash Goltekar, then recorded the statements of the injured witnesses and handed over the investigation to P.W.21, P.I. Chandrakant Salgaonkar. Before handing over the investigation, P.W.22, P.I. Subhash Goltekar, arrested the remaining Accused i.e. Accused Nos.3 to 5 on 12th May, 1997 vide Arrest Panchanama at Exh.PW16/B. Their clothes also came to be attached. 3. On 13th May, 1997, P.W.21, P.I. Chandrakant Salgaonkar, took over the investigation from P.W.22, P.I. Subhash Goltekar. On the same day, he sent a letter to the Executive Magistrate to conduct identification parade. The blood group of the Accused was ascertained. On 19th May, 1997, the house of Accused No.1 was searched vide house search panchanama at Exh.PW3/A. During the course of the house search, a knife cover, live cartridges and a belt were recovered. At the instance of Accused Nos.3 and 4, knife(M.O.30) came to be discovered under discovery panchanama Exh.PW13/A. Vide panchanama at Exh.PW11/A at the instance of Accused No.5, two bicycle chains(M.O.22) came to be attached. 4. After completion of the investigation, a charge-sheet against the Accused for an offence punishable under Sections 143, 147, 148, 302, 201 and - 6 - 323 r/w Section 149 of the Indian Penal Code came to be filed. After committal of the case to the Session, charge at Exh.8 came to be framed against the Accused for an offence punishable under Sections 143, 148, and 302 r/w Section 149 of the Indian Penal Code, Sections 323 and 326 r/w Section 149 of the Indian Penal Code and Section 201 r/w Section 149 of the Indian Penal Code. The Accused claimed to be tried by denying their guilt. The prosecution examined 22 witnesses in support of its charge. Accused No.1, in response of question no.104 in the Statement under Section 313 of Criminal Procedure Code has taken the following defence. "On that day I had gone along with Anthony D’Souza to the house of my mother-in-law. It was the birthday of my sister-in-law. My mother-in-law and sister-in-law had gone to church. I saw a big crowd near the big gate. I reversed my car and came to the small gate. I ran towards the house. The crowd came into the courtyard. I went to the house and closed the door. When I came to the courtyard I heard Anthony shouting. Anthony was bleeding from the forehead. I took him to the P.S. and tried to lodge complaint. They did not take my complaint. I was arrested at 12.30 noon. The crowd was digging pits just 1/2 metre from the gate where the road is hardly 5 metres. I am producing copy of complaint to I.G.P., Certificate of priest and Judgment of H.C.". - 7 - 5. The other Accused Nos.2 to 5 state that they have been falsely implicated. The learned Trial Court on consideration of the entire evidence convicted and sentenced the Accused as aforesated. 6. The pivot of the prosecution case is the evidence of the injured eye witnesses who are(1) P.W.1, Sebastiana Monteiro, P.W.4, Julie Monteiro, (3) P.W.5, Martha Dias, (4) P.W.6, Salish Monteiro and (5) P.W.7, Conceicao Monteiro. The prosecution has also eexamined one independent eye witness who is P.W.10, Shashikant Kundaikar. The panch witnesses are P.W.2, Alima Monteiro, P.W.11, Suresh Matonkar,, P.W.12, Indrakant R.Salgaonkar, P.W.13, Ramprasad R. Joshi and P.W.16, Umesh Lotlikar. The medical evidence comprises of P.W.3, Dr. E. J. Rodrigues, who performed the post mortem vide his report at Exh.PW3/A. P.W.8, Dr. Shanta Sardessai, who examined P.W.7, Conceicao Monteiro and noticed a fracture vide report at Exh.PW8/A, P.W.19, Dr. Vasco Teles and P.W.20, Dr. Ramakant Bhinge. The Junior Scientific Officers examined by the prosecution are P.W.17, N.R.K. Rao, whose report is at Exh.PW17/A and P.W.18, N.R.Shankpal. P.W.9, R. V. Parab, is a Clerk in the Office of the Mamlatdar who has proved the memorandum of the identification parade at Exh.PW9/A. The Mamlatdar who had conducted the identification parade, expired during - 8 - the pendency of the trial. The prosecution has also examined P.W.14, Manohar D. Joshi, who is working as Scientific Assistant in the Crime Branch and who had forwarded the samples for examination. 7. P.W.1, Sebastiana Monteiro, widow of deceased Felix Monteiro states that the deceased had retired from the service but was working as the President of the Chapel at Bastora. She states that she knew one Rosalina Monteiro who resides at Bastora just behind the Chapel. The property of the Chapel joins the property of Rosalina. According to her, on 11th May, 1997, at about 7.00 a.m., P.W.1, Sebastiana Monteiro, her husband deceased Felix Monteiro, P.W.4, Julie Monteiro, P.W.5, Martha Dias, P.W.6, Salish Monteiro, P.W.7, Conceicao Monteiro, one Poly Romeo and others had gone to the property of the Chapel in order to put a fencing around it. To facilitate the putting of the fencing, the prosecution witnesses had taken with them spade, crow bar, cement, domillas and other articles. The fencing put up was that of cement poles and for the purposes of embedding the poles pits were being dug. They started digging the pits in the portion which was facing the house of Rosalina. According to P.W.1, Sebastiana Monteiro, within 5 minutes thereof, one Antonetta, daughter of said Rosalina started abusing them from her gate. After about 10 to 15 minutes, a - 9 - maruti van of white colour came there and was parked in front of the gate of Rosalina’s house. From the said car, 5 persons alighted who are identified by P.W.1, Sebastiana Monteiro as Accused Nos.1 to 5. According to her, Accused No.1 went to P.W.6, Salish Monteiro, who was standing near her husband and gave a fist blow on the mouth of P.W.6, Salish Monteiro, due to which P.W.6, Salish Monteiro lost some teeth and began bleeding from his mouth. According to P.W.1, Sebastiana Monteiro, the Accused No.1 then gave a slap on the face of deceased Felix Monteiro and threw him down. The remaining four Accused i.e. Accused Nos.2 to 5 came running towards them. Accused No.5 was armed with a chain. Accused No.2 was carrying a knife and Accused No.3 was having a broad belt. According to P.W.1, Sebastiana Monteiro, as her husband had fallen down, he was taken and brought to the road. To that, all the Accused went rushing towards them and Accused No.1 gave a slap on the face of P.W.1, Sebastiana Monteiro. According to her, her husband was thereafter standing on the road and at that time, Accused No.2 dealt a knife blow on the left thigh of her husband. Accused No.2, removed the knife and went to the road and she states that she saw Accused No.2 putting that knife in its cover and thereafter, he went to P.W.6, Salish Monteiro. The other people rushed to the rescue of P.W.6, Salish Monteiro, while she remained alone - 10 - with her husband. According to her, her husband deceased Felix Monteiro succumbed at the very spot where he was lying. P.W.1, Sebastiana Monteiro, shouted for help and she requested one John, her neighbour to take the deceased to the Asilo hospital and accordingly, the deceased was taken to the Asilo hospital accompanied by P.W.1, Sebastiana Monteiro. According to her, in the hospital, the deceased was declared dead and thereafter, she went home. The Police went at her residence and her complaint at Exh.PW1/A came to be recorded. 8. In the cross-examination, P.W.1, Sebastiana Monteiro, has admitted that there is a litigation pending between her and Rosalina and on account of the litigation, they are on enemical terms. She denied the suggestion that due to the litigation, they were not on talking terms. She volunteered and stated that the litigation was not personally between her and Rosalina. She had stated that she had given the names of all the 5 Accused in her complaint but later on, corrected herself by saying that she had stated the name of Accused No.1 only and not the names of the other Accused as she was not knowing their names. She had also admitted that she had not give the description of the other Accused nor details regarding their age, complexion etc.. She admitted that she had not - 11 - described the clothes which the Accused were wearing. She further stated in the cross-examination that she does not know whether permission was taken by her husband for laying the foundation in the property of the Chapel. She denied the suggestion that in order to disturb the function of inauguration, her deceased husband had purposely brought goondas and some neighbours and dug the foundation in front of the gate to block the acccess of the house of Rosalina. In the cross-examination, she admitted that the daughter of Rosalina had not given bad words. She admitted that she knew that Accused No.1 was the son-in-law of Rosalina. She stated that she had stated in her complaint that Accused No.1 gave a fist blow on the mouth of P.W.6, Salish Monteiro, whereas when confronted with the complaint it was noticed that she had stated "they first attacked one Salish assaulting him on his face with fist blows". Omission was brought out regarding parking of the car in front of the gate. Similarly, omissions regarding P.W.1, Sebastiana Monteiro, and P.W.4, Julie Monteiro, standing near the deceased were brought on record. Similarly, omissions regarding the loss of teeth by P.W.6, Salish Monteiro, after the blow were brought on record. Similarly, omissions regarding the Accused No.1 giving slap on the face of the deceased and throwing him down was also brought on record. Omission regarding Accused No.1 - 12 - slapping P.W.1, Sebastiana Monteiro, was also brought on record. Attempt was made by the defence to bring on record omission regarding stabbing of the deceased by Accused No.2. However, the learned Trial Court has recorded in respect of the omission that the witness does not know why it is not recorded by the Police in the fashion in which P.W.1, Sebastiana Monteiro deposed. Omission was also brought on record of Accused No.2 putting the knife in its cover after stabbing the deceased. Some minor omissions regarding the other person rushing to the rescue of P.W.6, Salish Monteiro, and P.W.1, Sebastiana Monteiro, remaining alone with her husband were brought on record. She denied the suggestion that P.W.6, Salish Monteiro, had hit a stone on the head of Accused No.2. Similarly, she also denied the suggestion that the deceased was injured because of a pickaxe. 9. It would be seen from the complaint at Exh.PW1/A that P.W.1, Sebastiana Monteiro, has stated in her complaint that Accused No.1 and another person were present and they first attacked one Salish and assaulted him on his face with fist blows and when the wife intervened she was also assaulted. According to the complaint, the said two persons then moved towards her husband and one of them slapped her husband due to which, he fell on the ground. The omissions which have - 13 - been brought out in respect of Accused No.1 giving fist blows to Salish and slapping the wife of Salish, according to us, are not material omissions. There is a reference to Accused No.1 and another Accused giving fist blows to Salish and slapping the wife of Salish. It has also to be remembered that the omissions have been brought out qua the report. It is well settled that a report is not meant to be a detailed chronology of the events. Minor omissions in respect of the First Information Report would not adversely affect the credibility of the witness. 10. P.W.4, Julie Monteiro, wife of P.W.6, Salish Monteiro, after referring to the presence of the other witnesses at the scene of the offence states that when they were working, one Rosalina was talking. She further states that after about 10 to 15 minutes, a white car came. The persons who alighted the car were armed with knives. They came towards her husband Salish and questioned her husband as to whether he had become a "dada". According to P.W.4, Julie Monteiro, Accused No.1 then gave a slap on the face of Salish and also a fist blow due to which Salish lost two teeth. P.W.4, Julie Monteiro, states that she questioned Accused No.1 as to why he had assaulted her husband. Thereupon, Accused No.1 gave a fist blow on her left shoulder. According to her, Accused No.1 then - 14 - assaulted the other ladies who had rushed to the rescue of Salish by giving fist blows and slaps. According to her, Rosalina also came to the scene of the offence and attempted to throw and hit Julie with a stone. However, due to the intervention of one lady, Rosalina could not hit Julie with a stone. She states that she saw the deceased fallen on the ground and was bleeding from his left thigh. 11. P.W.4, Julie Monteiro, in her cross-examination has admitted that they wanted to construct the compound wall to the Chapel thereby blocking the gate of Rosalina. She denied the suggestion that Rosalina patiently told them not to make the construction. P.W.4, Julie Monteiro, has admitted that they had dumped 4 cement poles in front of the gate. Omission was brought out in respect of fist blow on the face of Salish which resulted in the loss of teeth. She denied the suggestion that her husband Salish had thrown a stone at Accused No.2 as a result of which Accused No.2 received a bleeding injury. 12. In respect of this witness, some minor omissions have been brought on record which really do not discredit the veracity of this witness. - 15 - 13. P.W.5, Martha Dias, states that she along with the others had gone to work on being requested by the deceased. She states that at that time Rosalina started giving abuses to them. In the meantime, a white car came on the spot and Accused No.1 followed by the other Accused got down from the car. She states that Accused No.1 attacked P.W.6, Salish Monteiro. She states that the Accused were having danda, belts and iron chains. She states that Accused No.1 gave a fist blow to P.W.6, Salish Monteiro, due to which P.W.6, Salish Monteiro, lost his teeth. She states that Accused No.1 had pushed her and she was thrown on the stone as a result of which, she received an injury to her right leg near the knee. She further states that Accused No.2 came with a knife and stabbed the deceased at the thigh. According to her, the deceased was then taken to the hospital. 14. In the cross-examination, she has admitted that she was not knowing Accused Nos.2 to 5 before the date of the incident but had seen them on the day of the incident. She has admitted that she has not given the description of Accused Nos.2 to 5. She was then questioned regarding the test identification parade which she had attended and she admitted that she had not identified Accused No.4. She has admitted in the cross-examination that at the time of the incident, the - 16 - work had not started at all. In the cross-examination, she has also admitted that there was no talk between Accused No.1, Roy Fernandes, and P.W.6, Salish Monteiro. Omission was brought out vis a vis her statement that Accused No.1 had given a fist blow on the mouth of P.W.6, Salish Monteiro, as a result of which, his tooth was dislocated. Omission was also brought out in respect of Accused No.1 pushing her as a result of which she fell on the stones. In respect of the stabbing of the deceased, an omission is brought out in respect of the name of the Accused No.2. This omission is an extremely insignificant omission as the witness has admitted that on the day of the incident, she did not know the name of Accused No.2. She denied the suggestion that she had falsely stated that Accused No.2 stabbed the deceased. Similarly, she denied to have stated in her statement that the entire incident lasted for two minutes. She was confronted with the said portion from her statement. Some omissions were brought out in the testimony of this witness regarding the length of the knife, the clothes which the deceased was wearing and the distance at which she was standing from the deceased when the deceased was stabbed. She also denied the suggestion that on 11th May, 1997, they did not allow Accused No.1, Roy Fernandes, to take his car from the gate and at that time, they were working on the spot. She also denied the suggestion that they - 17 - all threatened the Accused No.1, Roy Fernandes,and went inside the house. She also denied the suggestion that the deceased while running fell on the pickaxe and sustained the injuries. Similarly, she also denied the suggestion that because of a fall, she had sustained the injuries. 15. Salish Monteiro is examined as P.W.6. According to him, a truck load of laterite stones was brought on 10th May, 1997, a day before the incident and the Accused No.1, Roy Fernandes, by keeping his Maruti Car behind the truck had not allowed the unloading of the stones. He further states that Accused No.1, Roy Fernandes, had also given threats and abuses. Because of the attitude of Accused No.1, Roy Fernandes, the truck could not be unloaded. He further states that on 11th May, 1997, they all went to the site along with other villagers. At about 7.30 a.m., Rosalina Monteiro started giving abuses. Accused No.1, Roy Fernandes, came in his car and parked the same in the property of the Chapel at about 8.00 a.m. and gave a fist blow on him. Accused No.1, Roy Fernandes, hit two or three fist blows on his mouth due to which he lost two teeth. He further states that in the meantime, four to five persons came from the car and attacked him with a chain. They were also armed with iron bar. He says they assaulted him on the left - 18 - shoulder, neck and back. He states that his wife Julie, Conceicao and Tina rushed to his rescue. The Accused No.1, Roy Fernandes, gave a fist blow on Julie and slaps on Conceicao and Tina. He states that when he saw the deceased, he was already stabbed and fallen on the ground. A car was arranged to take the deceased but the Accused No.1, Roy Fernandes, did not allow the deceased to be taken. In the cross-examination, this witness has stated that on the day of the incident, he was not knowing Accused No.2, Anthony D’Souza but had seen him on that day. He also admitted that he had not given the name of Accused No.2, Anthony D’Souza, in his statement recorded by the Police. He also says that he had not given the description of Accused No.2, Anthony D’Souza to the Police. He denied the suggestion that he had not seen the Accused No.2, Anthony D’Souza on the day of the incident. Omission was proved in the statement of putting up a new gate, a month prior to the date of the incident. Similarly, an omission was brought out in respect of