Roy Fernandes vs State Of Goa & Ors

3. On 11th May, 1997 the deceased Shri Monteiro, his wife PW1 Sebastiana Monteiro, PW4 Julie Monteiro, her husband PW6 Salish Monteiro besides a few others went to the Chapel equipped with the necessary tools and implements in order to put up a fence around the property. The prosecution story is that while pits for fixing cement poles required for the fencing were being dug in front of the house of Rosalina Monteiro, her daughter named Antonetta raised an objection and used harsh words against those engaged in digging the pits work. A few minutes later a Maruti Van arrived on the spot carrying "5 persons including the appellant herein", who went to Salish PW6, - 2 and gave him a fist blow on the face and he started bleeding. He then gave a blow on the face of the deceased Felix Felicio Monteiro and threw him on the ground. While the deceased was being helped by his companions to stand up and move towards the road, Anthony D'Souza one of the accused persons took out a knife and gave a stab on the left thigh of the deceased which unfortunately cut one of his arteries that led to profuse bleeding. The result was that the injured breathed his last even before he could be helped by John, his neighbour to rush him to the hospital. At the hospital, he was declared brought dead. The hospital all the same informed the Mapusa Police Station. P.I. Subhash Goltekar-PW22 from the police station recorded the statement of PW1-Sebastiana Monteiro in which she named the appellant. The police completed the investigation which included recovery of the weapon of offence pursuant to the disclosure made by accused No.2, Anthony D'Souza and lodged a chargesheet against the accused persons for offences punishable under Sections 143, 147, 148, 201, 302 and 323 read with Section 149 3 IPC. The Additional Sessions Judge to whom the case was

16. Coming then to the facts of the present case, the first and foremost of the notable circumstances is that the appellant was totally unarmed for even according to the 13 prosecution witnesses he had pushed, slapped and boxed those on the spot using his bare hands. The second and equally notable circumstance is that neither the cycle chain nor the belt allegedly carried by two other members of the unlawful assembly was put to use by them. Mr. Luthra argued that the prosecution had failed to prove that the assembly was armed with a chain and a belt for the seizure witnesses had not supported the recovery of the said articles from the accused. Even if we were to accept the prosecution case that the two of the members of the unlawful assembly were armed as alleged, the non-use of - the same is a relevant circumstance. It is common ground that no injuries were caused by use of those weapons on the person of the deceased or any one of them was carrying a knife. The prosecution case, therefore, boils down to the appellant and his four companions arriving at the spot, one of them giving a knife blow to the deceased in his thigh which cut his femoral artery and caused death. The question is whether the sudden action of one of the members of the unlawful assembly constitutes an act in prosecution of the common object of the unlawful assembly 14 namely preventing of erection of the fence in question and whether the members of the unlawful assembly knew that such an offence was likely to be committed by any member of the assembly. Our answer is in the negative.

with a simple blow and who was being escorted away from the spot by his companions. We have, therefore, no hesitation in holding that the Courts below fell in error in convicting the appellant for murder with the aid of Section 149 of the IPC.

26. Prof. Andrew Ashworth of Oxford University Centre for Criminological Research has in the handbook of Criminology

29. In the above case the appellant had been convicted under Sections 279 and 304A of the IPC. The substantive sentence of imprisonment was in that case reduced by this

31. In the result, we allow this appeal in part, set aside the conviction and sentence awarded to the appellant under Section 302 read with Section 149 of the IPC and acquit the appellant of that charge. The conviction of the appellant for offences punishable under Sections 323 and 325 of the IPC is affirmed and the appellant is sentenced to the period of imprisonment already undergone by him. We further direct that the appellant shall deposit a sum of Rs.3,00,000/- towards compensation to be paid to the widow of the deceased Shri Felix Felicio Monteiro, failing her to his surviving legal heirs. A sum of Rs.1,00,000/- shall be similarly deposited towards compensation payable to Shri Salish Monteiro, besides a sum of Rs.50,000/- to be paid to Ms. Conceicao Monteiro failing to their legal 28 representatives. The deposit shall be made within two months from today failing which the sentence of one year awarded to the appellant shall stand revived and the appellant taken in custody to serve the remainder of the period. The appeal is disposed of with the above modification and directions.