Oral Judgment: (C.V. Bhadang, J.
1. By this appeal, the appellant/accused no.2 is challenging his conviction for the offences punishable under section 449 and section 302 r/w 34 of Indian Penal Code (I.P.C, for short). The appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/- and in default to suffer rigorous imprisonment for one year on both counts.
2. The prosecution case shorn of minor details may be stated thus: That the incident in question happened on 23/4/2005 at about 21.30 hours at Flat No.G-1, Falcon Apartments, Caranzalem-Goa, which is a flat where (PW.12) Ivon De Lemos was staying along with his son Daniel. According to the prosecution case the present appellant along with seven others in furtherance of their common intention had committed house trespass by entering the aforesaid flat and had intentionally caused the death of one Mr. Godwin D'Silva by assaulting him. The motive behind the assault according to the prosecution is that the appellant and others were suspecting that the deceased had spread an information that the appellant and others are engaged in sale of drugs. Ivon De Lemos (P.W12), who is an eye witness to the incident claimed that he was knowing three out of the total eight assailants. He claimed that he was knowing the appellant, (accused no.2), Jadeson Dandel (accused no.1) and Saudi Ambadi (accused no.3). The rest of the five assailants were strangers to him. The prosecution case is that all the eight assailants in furtherance of their common intention committed house trespass in flat of PW.12, where the deceased Godwin D'Silva was present and assaulted him by means of a beer bottle, a chair, a water glass, resulting into Godwin sustaining serious injuries leading to his death. On the basis of the complaint lodged by PW.12, an offence at Crime No.88/2005 came to be registered against the present appellant and seven others with 3 Cria 40 2015 Police station, Panaji. On investigation, a charge sheet came to be filed against in all eight persons, out of which accused no.7 and accused no.8 i.e. Joe Kulla and Mithun Hansikutti were shown absconding. The case was eventually committed to the Court of Sessions and was registered as Sessions case no.22/2005 on the file of the learned Sessions Judge at Panaji. The learned Sessions Judge framed a charge (Exhibit 13) against the accused nos.1 to 6, to which they pleaded not guilty and claimed to be tried. The defence of the accused was one of total denial and false implication.
3. The prosecution at the trial examined in all 31 witnesses and produced the record of the investigation. None of the accused entered into the witness box or led any defence evidence.
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/>4. The learned Sessions Judge as per judgment and order dated 12/9/2007 came to the conclusion that the charge for the offence under section 449 and section 302 of I.P.C was proved only against the appellant and the original accused no.1. The original accused no.3 to 6 came to be acquitted. It appears that after their conviction, both the accused escaped from the custody and eventually only the appellant (accused no.2) could be apprehended. The original accused no.1 Jadeson Dadel is still absconding. On the appellant being apprehended, the learned Additional Sessions Judge, Panaji took upon the exercise of awarding sentence and by order dated 28/1/2015 the appellant came to be sentenced as set out above.5. We have heard Shri Desai, the learned Senior Counsel for the appellant and Shri Rivankar, the learned Public Prosecutor for the respondent. With the assistance of the learned counsel for the parties, we have gone through the entire evidence and the impugned judgment.6. It is submitted by Shri Desai, the learned Senior Counsel for the appellant that the prosecution case rests on the solitary evidence of (P.W.12) Ivon Da Lemos, who claims to be an eye witness to the assault. The learned Senior Counsel strenuously urged that although a conviction can be based on the sole testimony of an eye witness, provided, the evidence of such a witness is of an unquestionable and impeccable character. In other words, according to Shri Desai, the evidence of such a witness should be of such a nature on which implicit reliance can be placed and not otherwise. The learned counsel has taken us through the evidence of (P.W.12) Ivon Da Lemos, in order to submit that the evidence of (PW.12) is not worthy of credence and in any event his evidence cannot be said to be of an unquestionable or impeccable nature. For this purpose the learned Senior Counsel has referred to the cross examination of (P.W.12) Ivon Da Lemos in which (PW.12) has admitted that he has separated from his wife since 1996 as his wife has been complaining against him at Police Station Anjuna several times, since the last two years. (PW.12) has stated that his wife has been complaining that he is dealing with drugs. He, however, denied that on several occasions the Anjuna Police has warned him not to deal with drugs. He, however, admitted that on some occasion the police has searched his house at Assagao for drugs. In the submission of Mr. Desai this creates a dent in the evidence of (P.W.12) Ivon Da Lemos leaving him unworthy of credit. Shri Desai has then referred to the conduct of this witness in not seeking help from the neighbours when Mr. Godwin was being allegedly assaulted and of being a mute spectator, when Mr. Godwin was allegedly dragged outside and was assaulted further. In the submission of Mr. Desai this conduct of (P.W.12) Ivon Da Lemos is highly questionable and the evidence of (PW12) taken as a whole is riddled with improbabilities and incongruities.7. It is next submitted that all that (P.W.12) has stated in so far as the present appellant is concerned, is that he had seen a knife in the hands of the present appellant. It is pointed out that (P.W.12) Ivon Da Lemos has not stated about any assault by (PW.12) by the said knife on Mr. Godwin. In the submission of Mr. Desai the incident having happened at about 21.30 hours in a flat in the building where there were other flat owners and neighbors, none of whom are not forthcoming as witnesses, is highly improbable and unacceptable. He, therefore, submitted that the learned Sessions Judge was in error in holding the appellant guilty. It is submitted that on the basis of the self same evidence of (P.W.12) Ivon Da Lemos , the accused nos. 3 to 6 have been acquitted and thus (P.W.12) Ivon Da Lemos has not been found to be a witness who is wholly reliable and as such, the evidence of (P.W.12) Ivon Da Lemos also could not have been used for convicting the appellant.8. Shri Desai made an alternate submission for modification of the conviction to a lessor offence under section 304 Part II of I.P.C. It is submitted that even going by the prosecution case the appellant and the other co accused had only gone to the flat of (P.W.12) Ivon Da Lemos in order to accost Mr. Godwin as to why he is spreading rumours that the accused no.1 and others are dealing in drugs. The learned counsel was at pains to point out that it is not the prosecution case that any of the accused had carried any weapons which aspect would militate against the common intention which can be attributable to the appellant and others to cause death of Mr. Godwin. It is submitted that in all probability on account of a sudden quarrel in the heat of passion, the incident happened and the conviction needs to be modified to one under section 304 Part II of I.P.C.9. Shri Rivankar, the learned Public Prosecutor on the other hand has supported the impugned judgment. It is submitted that the incident happened at the flat where (P.W.12) Ivon Da Lemos was staying on rent and thus presence of (P.W.12) Ivon Da Lemos, at the spot of occurrence is natural. It is submitted that (P.W.12) Ivon Da Lemos had clearly stated that only three out of the eight assailants were known to him, which includes the appellant and the name of the appellant and the accused no.1 and 7 figures in the F.I.R. He submitted that the evidence of (P.W.12) Ivon Da Lemos taken as a whole is natural and one inspiring confidence. The learned Public Prosecutor pointed out that there is nothing usual so far as the conduct of (P.W.12) Ivon Da Lemos is concerned, when faced with eight assailants assaulting Mr. Godwin. (P.W.12) Ivon Da Lemos cannot be expected to intervene or to call for help at the risk of being assaulted and done to death. It is submitted that (PW.12) had no option than to be a mute spectator and considering the overall circumstances, the conduct cannot be said to be unusual. It is submitted that there are other circumstances which corroborate the evidence of (P.W12) including the fact that the appellant and others were absconding soon after the incident and the learned Sessions Judge is justified in convicting the appellant on the basis of the prosecution evidence. The learned Public Prosecutor while dealing with the alternate submission on behalf of the appellant, submitted that looking to the nature of the injuries sustained by the deceased, this is not a case where conviction can be modified to one under section 304 Part II I.P.C. It is submitted that in a given case the common intention can be formed subsequently and it is not necessary that such common intention should exist from inception. It is submitted that the nature of the injuries are a clear pointer to show that there was a clear intention to cause death of Mr. Godwin.10. We have given out anxious consideration to the rival circumstances and the submissions made and we do not find that any case for interference is made out.11. At the outset it would be necessary to see whether Godwin died a homicidal death. We may state that this aspect was not seriously disputed during the course of arguments at bar. However, the nature of the injuries sustained by Godwin would be relevant while considering the alternate submission on behalf of the appellant for modification of the conviction to one under section 304 Part II of I.P.C.12. Dr. Silvano Sapeco (P.W20) conducted autopsy on the dead body of Godwin and found the following external injuries :(1) A stab penetrating injury, which had perforated twice the right lung with the external entry, with ragged external margins. Its size was 5 and half x 1.cms x 8 to 11 cms. deep. This injury was at the right areolar aspect of the breast. This injury could be caused by a blunt penetrating weapon akin to impact with a broken bottle. It was fresh and ante mortem.(2) A slash injury of 12 x 2 x x 2 cms and cm. X 3 cms x 3/4 upon 4 cms, with sharp cuts for the outer table of the frontal, bone and cheek bone, was seen over the right side of the face at mid eyebrows to right cheek region.(3) A slash injury of 9 x 21/2 x 3/4 cms and half x 3 upon 4 cms with sharp cuts for the right upper medial incisor tooth (retained as having caries (i.e infection) for impact of its sharpness) and for right side of chin region with sharp cut for the chin bone region. Both the above injuries could be caused due to the impact with a sharp object and both were fresh and antemortem injuries.(4) A gaping lacerated would of 4x 1 x 1 cm. on the left parietal region of the scalp. It was 10 cms. above the ear pinna insertion.(5) A red bruise of 13 x 4 cms was seen on the front aspect of the right upper arm. and axillary aspect of the chest front.(6) A oblique rail road patterned bruise of 19 x 21/2 and half cms. was seen at the right upper fourth of thigh front.(7) 3 cms below and parallel to injury no.6 was another similar oblique rail road patterned bruise of of 19 x 21/2 cms and half cms.(8) A red bruise of 11 x 1 cms. was seen at the left upper neck outer aspect.(9) 4 cms below and parallel to injury no.8 is another rd bruise of 9 x 1 cms.(10) 5 cms below and parallel to injury no.9 was another red bruise of 8 x 1cm.(11) 4 cms below and parallel to injury no.10 was another red bruise of 7 x 1 cm.(12) In an area of 6 x 4 cms. at left side of eye brow and upper eyelid, there were three parallel incised looking wounds, each of 3 and half x half cms. and 1 to 2 cms below each other.(13) A contused lacerated wound of x 1/2x half x half cms was seen at the right inner end of the eyebrow.(14) A red bruise of 5 x 4 cms. was seen below the inner aspect of the left eye with 2 incised looking wounds each of 11/2 x x cms. at each of its outer aspect.15). At the right side of the neck, just above the inner end of the collar bone region, there were 2 puncture marks, each of x x 1cms. deep and 3 cms apart from each other. This injury could result from a blunt penetrating weapon akin to impact with a fork like object, and it was fresh and antemortem.(16) There was a grazed abrasion of6 x 5 cms. on the right frontal region of the forehead.(17) There was grazed abrasion of 5 x x 4 cms from the right temple.(18) There was a grazed abrasion of 5 x 4cms of the left temple.(19) There was a grazed abrasion of 2 x 1 cm. on the right chin angle region.(20) There was a grazed abrasion of 3 and x 2 cms on the left inner end of the collar bone.(21) There was a grazed abrasion of x cms each on the knuckle of the right hand finger.(22) There was a grazed abrasion of 5 x 1cm. on the dorsem (outer region) of the left hand.(23) There was a grazed abrasion of 4 x 2 cms. on the dorsem of left wrist.(24) There was a grazed abrasion of 2 x 1cm. on the volar (inner) aspect of the left wrist.(25) There was a grazed abrasion of 6 x 1 cm. on the back of the right shoulder.(26) There was a grazed abrasion of 4 x 2 cms on the outer aspect of the left elbow. The injuries no.16 to 26 could be caused by a friction on a hard and rough surface or object impact and they were fresh and antemortem in nature. Injuries no.27 to 34 were also abrasions which could be caused by a friction on hard and rough surface or object impact and they were fresh and antemortem in nature as indicated on page 8 of the autopsy report.(27) (injury no.27 was an abrasion of 2 x 1 cms x cm. from the back of the right elbow.(28) Abrasion of 4 x 3 cms. on the inner aspect of the right elbow.(29) Abrasion of 1 x cms on the left ear tragus.(30) Abrasion of 1 x 3/4th cms. On the back of the left mestoid region (i.e. behind the left ear).(31) Abrasion of 2 x 2 cms on right knee cap.(32) Abrasion of 4 x 2 cms on the right chin front.(33) Abrasion was 3 x 2 cms. on the left knee cap and(34) Abrasion was 1 x cms. on the dorsem of right hand.The Diagrammatic representation of the injuries have been indicated by the witness in the autopsy report. He then carried out the internal examination of the dead body. In the region of head and spine, there was one cms. deep effusion of blood effect seen underneath the scalp injury. There was a cut for the outer table of the skull, underneath the impact of injury no.2. The membranes were intact. The brain was congested. There was no fracture seen on the vertebra. The spinal cord was healthy. Slash cut effects were seen at injury no.3. On the neck region, there was effusion of blood effect seen underneath the injury of 8, 9, 10, 15 and 20. No fractures were seen. In the thorax, there was irregular cut of 5 cms. for the right sixth rib with underlying stab perforating effect for the right lung twice with collection of fluid blood. The right lung was collapsed, in view of the stab cut effects. The Medical Officer found a slash cut on the outer table of the skull under the impact of injury no.2. The cause of death was due to hemorrhagic shock and damage to the right lung, vide impact of injury no.1 which was necessarily fatal and and associated with cumulative effect of injury no.2 to 15. The metallic fork (M.O. 11) was shown to this witness which according to him can cause injury no.15 and M.O.16, (shattered glass pieces) can cause injury no.1. Injury no.4 to 14 could be caused by an iron rod or a broken wooden baton i.e wooden stick. In our view the nature of injuries as found on the body of Godwin, leave no manner of doubt, that he met a homicidal death.13. The prosecution case rests on the evidence of (P.W.12) Ivon Da Lemos. He states that he was staying along with his son Danial in Falcon Apartments, G-1 at Caranzalem. The said flat is situated on the ground floor of the building. On 23/4/2005 while he was in his flat along with the deceased Godwin at about 9.30p.m., the door bell rang. When he opened the door he saw one boy standing outside the door who inquired whether Godwin was in. (P.W.12) Ivon Da Lemos kept the door open, turned to Godwin, saying that someone wants to see him. Earlier, Godwin had returned to the flat of (P.W.12) Ivon Da Lemos at about 7p.m. It is the material evidence that when Godwin went to the door, eight persons rushed towards him, pushed him out and assaulted him and started beating him. It is the specific evidence of (P.W.12) Ivon Da Lemos that three out of eight persons were known to him previously and he could identify the rest by face. The three persons known to him were Jackson (A1), the appellant (A2) and Joe Kulla (the absconding accuse no.7). He also identified Jackson and the appellant before the Court along with accused nos. 3 to 6. He states that Joe picked up a half beer bottle from the table and hit on the head of Godwin which resulted in a bleeding injury to Godwin. One of the eight persons picked up a water glass and threw it on Godwin, while the others picked up a chair and threw it on Godwin. It was the appellant Rudolf who addressed Godwin saying “Tuvem Konak sangala” in Konkani, meaning “to whom have you disclosed”. Godwin replied that he did not say anything to anybody. It is further the evidence that at this point of time (PW-12) tried to intervene, however, the appellant told him that if he intervenes he will meet with the same fate as that of Godwin. At this stage one out of the eight assailants pushed (P.W.12) Ivon Da Lemos, outside the flat and out of fear he stayed out. (P.W.12) Ivon Da Lemos states that his son Daniel was not present in the flat at that time. He then states that all the eight persons continued beating Godwin and then they dragged him out of the house. Jackson went inside the house to the kitchen and came out with a kitchen fork and continued to assault Godwin with the said fork. He also saw a knife with Rudolf i.e the appellant. Godwin eventually fell down groaning and then fell silent. The assailants thereafter fled on four motorbikes. (P.W.12) Ivon Da Lemos then went to the neighbours house by name Alex Fernandes and gave the information to the police. He has then stated about the clothes worn by Godwin at the time of the assault which he identified before the Court. This witness has been extensively cross examined. The evidence of this witness has been criticized mainly on the ground of this witness being an unreliable witness, as the police searched his house for drugs on some occasion and secondly on account of the inherent improbability stemming from the conduct of this witness. On carefully going through the entire evidence of the witness, we do not find that the contention raised on behalf of the appellant can be accepted. As noticed earlier, there is evidence on record that (P.W.12) Ivon Da Lemos was staying on rent in the flat where the incident had happened and thus the presence of (P.W.12) Ivon Da Lemos at the time of the incident which is alleged to have happened at 9.30 p.m. is quite natural. The evidence of any witness has to be considered as a whole, in order to find out whether the evidence is acceptable and one inspiring confidence. It has come in the evidence of (P.W.12) Ivon Da Lemos that Godwin was present in the flat at least from 7p.m that evening and both (PW-12) and the deceased Godwin were consuming beer and watching television. Daniel the son of (P.W.12), who was schooling, had gone to his friend’s house at Assagao, as there was a birthday party of one Marvin. Thus the deceased and (P.W.12) Ivon Da Lemos were the only occupants of the flat. There are some omissions and contradictions brought out in the cross examination which we do not find sufficient to discard the evidence of (P.W.12) Ivon Da Lemos. For instance, (P.W.12) Ivon Da Lemos stated in his complaint that Godwin had returned at 19 hours and both of them were drinking Belo beer and watching television at the entrance of the drawing room. He had stated to the police that he was cooking while watching television, which was not there in the complaint. An omission, in the first place, to be actionable, should amount to a contradiction. Thus it is not each and every omission which becomes material. It is only when there is a material omission, which can amount to a contradiction, which can be considered while appreciating the evidence of any witness. One more omission is about (P.W.12) Ivon Da Lemos not having stated in the complaint that on that evening his another friend Alex and Leo were in his flat till around 8.30p.m. The material evidence of (P.W.12) Ivon Da Lemos is with reference to the incident which had happened at 9.30 p.m and not what happened before. We do not find that the omissions and/or contradiction brought on record can strike at the root of the veracity of this witness. It has clearly come on record that the appellant and the deceased were at the flat where the incident happened. (P.W.12) Ivon Da Lemos was cooking in the kitchen till about 9.p.m. when Godwin was watching television in the hall. After that (P.W.12) Ivon Da Lemos joined him and they continued watching television when the door bell rang at 9.30 p.m and the subsequent incident occurred as deposed by this witness.14. We are also not impressed by the argument that because the police had searched the house of P.W.12 on some occasion in the past that this witness becomes unreliable. There is nothing on record that at any time, this witness was found to be in possession of the drugs or any other contraband much less that he was convicted for any such offence. We are not expressing any opinion as to whether any such conviction can have a bearing on the veracity and acceptability of the evidence of such witness because, that doses not arise in this case. What we are trying to impress is that merely on account of the fact that the police had searched the house of (P.W.12) Ivon Da Lemos in the past, would not be sufficient to brand the witness as unreliable or unworthy of credit.15. This takes us to the aspect of conduct of PW.12. It is true that as per the evidence of (P.W.12) Ivon Da Lemos, he went to the house of neighbour Alex Fernandes only after the assailants fled away on four motorbikes. However, there is nothing unusual in such a case. Although the evidence of any witness has to be tested on the touchstone of conduct, no uniform conduct can be expected from a person after witnessing an assault, of the present nature. The conduct varies from person to person and it cannot be expected that the person witnessing such an assault will intervene or immediately rush for help at the risk of being met with the same fate. There is evidence on record to show that when (P.W.12) Ivon Da Lemos made an attempt to intervene, he was threatened with the same consequences as that of the deceased and then was pushed out of the flat. Thus even on the score of conduct we do not find anything unusual in the evidence of (P.W.12).16. We also find that the FI.R was lodged by (P.W.12) Ivon Da Lemos promptly setting out all the material facts including the names of three assailants who were known to him. The FIR clearly corroborates the evidence of P.W.12.17. This takes us to the contention raised on behalf of the appellant that the learned Sessions Judge having acquitted the accused nos.3 to 6 on the self same evidence of (P.W.12) Ivon Da Lemos could not have based the conviction of the appellant on his evidence. The contention in our considered view, cannot be accepted for the simple reason that accused nos. 3 to 6 came to be acquitted on the ground of irregularity in the manner of conducting the identification parade. It is significant to note that the identification parade was only in respect of the assailants who were not acquainted with (P.W.12). In so far as the present appellant is concerned he along with accused no.1 and accused no.7 (since absconding) were known to (P.W.12) and their names figure in the F.I.R. Thus, the fact that the accused nos.3 to 6 have been acquitted on account of the irregularity in the matter of conduction of test of identification parade will not affect the conviction of the appellant once the evidence of (P.W.12) Ivon Da Lemos qua the involvement of the appellant is accepted.18. This takes us to the alternate contention raised on behalf of the appellant for modification of the conviction to one under section 304 Part II of I.P.C. The contention is that (P.W.12) Ivon Da Lemos does not say that any of the assailant had come armed with any weapon and this shows absence of premeditation to cause death of Mr. Godwin. The learned Senior Counsel urged that the evidence of (P.W.12) Ivon Da Lemos at the highest shows that the appellant and others had gone to the house of (P.W.12) Ivon Da Lemos only to accost the deceased Godwin as to why he was spreading some rumors. We would tend to disagree, because only for the purpose of accosting Godwin it was not necessary for as many as eight persons to have visited the flat of (P.W.12) Ivon Da Lemos. Although (P.W.12) Ivon Da Lemos does not say that any of the assailants came with any weapons, the evidence clearly establishes that all the available articles, such as a beer bottle, a chair, a fork, were used for the assault. (P.W.12) Ivon Da Lemos states that accused Jadeson Dadel (accused no.1) brought a fork from the kitchen and assaulted the deceased with the same on vital parts. It is now well settled that common intention can in a given case develop during the course of any incident. In any event this is not a case which can be said to be covered by either exception 1 or exception 4 to section 300 of I.P.C. as there was no grave and sudden provocation or a sudden fight which can be gathered, from the evidence of (P.W.12) Ivon Da Lemos. On the contrary the nature of the assault and the injuries sustained by Godwin clearly bring out an intention to kill Godwin.19. At one stage it was submitted on behalf of the appellant that (P.W.12) Ivon Da Lemos has not stated that the appellant used a knife. We are unable to accept the contention for the reason that the charge in this case is under section 302 and section 449 of I.P.C read with section 34 of I.P.C. Once it is a case of a common intention between the appellant and others, the absence of any individual act will not be significant.20. We have carefully gone through the impugned judgment and we do not find any reason to interfere with the same. The appeal is without any merit and it is accordingly dismissed.