1. The five appellants were accused in Sessions Case No. 11 of 1969 on the file of the Sessions Judge at Panaji. They were tried by the learned Sessions Judge for offences of rioting and culpable homicide not amounting to murder etc.; and by the judgment under appeal were convicted for the offence under Section 304, Part II read with Section 34, I.P.C and sentenced to R.I for 6 years each.
2. The case for the prosecution in short was this: The appellants and Venkatesh Shet Raikar were residing at Ponsulem in Canacona Taluka. On 15-4-1969 at about 10 a.m P.W 9 purchased from Venkatesh Shet Raikar a gold ring for Rs. 25/- and showed it to the second appellant to ascertain whether it was of genuine gold. The second appellant told him that it was a fake ring. On it P.W 9 went to Venkatesh Shet Raikar and asked him to return his money taking back the ring. Venkatesh Shet Raikar took back the ring and returned the money to P.W 9. Second appellant told the appellants 1 and 3 to 5 that Venkatesh Shet Raikar had sold fake ring to P.W 9. On it all the appellants thought of punishing Venkatesh Shet Raikar. At about 3.30 p.m on 15-4-1969 all the appellants waited for Venkatesh Shet Raikar near the house of Ram Vemekar which was near Chawddi at Ponsulem, Canacona, and when Venkatesh Shet Raikar came there they all beat and Idcked him. The first appellant beat Venkatesh Shet Raikar on the back of the neck with a broken the also. Due to the injuries caused to Venkatesh Shet Raikar, he fell down on the ground and began to vomit blood.
3. Seeing the injured vomiting blood all the appellants filed away from the scene of the offence. The injured then got up and went to his house at Ponsulem. P.Ws 2 and 5 to 8 had witnessed the incident of beating. P.W 2 went and informed P.W 1 about Venkatesh Shet Raikar being injured. While P.W 1 was coming to take the injured to the house of the injured, the injured met him on the way. After the injured went to his house, he told P.W 1 and others that the appellants had beaten him. P.W 1 went to bring the doctor and he returned by about 4.30 p.m When he returned to the house of Venkatesh Shet Raikar, he found Venkatesh Shet Raikar dead. He gave report about the occurrence to the Police. P.W 12 investigated and filed the charge-sheet on 21-5-1969. Panchanamas about the scene of the offence and seizure of clothes of the deceased etc. were attested by P.Ws 3 and 4. P.W 10 held autopsy on Venkatesh Shet Raikar's corpse on 16-4-1969 from 10.30 a.m to 12 noon and found that due to shock and due to head injuries, Venkatesh Shet Raikar and died about 24 hours prior to autopsy. The statement of the first appellant was recorded under S. 164. Criminal P.C by Magistrate. P.W 11, on 16-4-1969. In that statement the first appellant stated that he had not beaten the deceased. The deceased had died due to the injuries caused by the appellants. The appellants contended in the lower court that they had not injured the deceased and that the deceased was a drunkard and he was not keeping good health. Four witnesses were examined in defence. The appellants 1, 2 and 5 adduced evidence to the effect that they were not at the scene of the offence at about 3.30 or 4 p.m on 15-4-1969.
4. The learned Sessions Judge held that it was proved that the appellants beat the deceased and due to the injuries caused by the appellants the deceased had died. He found them guilty of the offence punishable under Section 304, Part II read with Section 34, I.P.C
5. The appellants have preferred this appeal through Jail Superintendent. Shri Neurenkar, advocate, was appointed by this Court to argue the appeal on behalf of the appellants. He read before me the entire evidence today and contended that the guilt of the appellants for the offence under Section 304, Part II cannot be said to have been proved. He also contended that there are discrepancies in the prosecution evidence and it cannot be said that the appellants had injured the deceased. No one is present on behalf of the State.
6. In view of the arguments advanced before me I have to decide whether it is established that the appellants injured the deceased and whether the appellants' conviction for the offence under Sec. 304, Part II read with Section 34, I.P.C is correct.
7. In all, twelve witnesses were examined by the prosecution. Out of them P.Ws 2 and 5 to 8 gave direct evidence. The case of the prosecution against the appellants rests mainly on the evidence of P.Ws 2 and 5 to 8. P.Ws 3 and 4 are panchas. P.W 1 is complainant and brother of the deceased. It is found in his evidence that the deceased had told him at his (deceased's) house on the date of the occurrence as soon as he (deceased) reached there that the fourth appellant had beaten him on chest, the first appellant had given blows to him on the back of the neck with a the and that all the appellants had beaten him. P.W 9 is Nagu who had purchased the ring from the deceased for Rs. 25/- on 15-4-1969 and had returned it to him on the very day on the advice of the second appellant. P.W 10 is the Doctor that held autopsy on the corpse of Venkatesh Shet Raikar. P.W 12 is Sub-Inspector of Police. He investigated into the case. P.W 11 recorded the statement of the first appellant on 16-4-1969 under Section 164, Criminal P.C Out of the five eye-witnesses examined on behalf of the prosecution. P.Ws 6 and 7 have not stated that they had seen any appellant injuring the deceased. P.W 7 said that she had seen from her house the appellant No. 4 raising his hand to beat the deceased.
8. P.Ws 6 and 7 reside near the scene of offence. It is stated by P.W 6 that on hearing cries “Marta, Marta” she went to the scene of the offence, found there all the five appellants questioning the deceased whether he would cheat public and heard the deceased giving some answer to the questions put to him by the appellants. P.W 7 said that on hearing cries from the side of the scene of offence she looked at the scene of offence from her house and found there all the appellants surrounding the deceased. P.W 8 is a Peon in Mamlatdar's office at Canacona. He said that on 14-4-1969 he had heard cries and had gone to the scene of offence and had found there all the five appellants. He added that the fifth appellant had given a slap on the back of the deceased in his presence. It appears that by mistake P.W 8 gave the date 14-4-1969. The date of the offence is 15-4-1969 and not 14-4-1969. P.Ws 2 and 5 have stated the specific acts of the appellants on the scene of the offence. P.W 2's house is at a distance of 100 yards from the scene of the offence. His evidence is that on hearing cries he went to the scene of offence which was near the shop of Ram Vemekar and found there all the appellants beating the deceased.
9. P.W 5 said that while he was going from his house to Palvoddem via Chawddi at Ponsulem he witnessed the appellants beating the deceased. According to P.Ws 2 and 5, appellant No. 1 had fisted on the stomach and face of the deceased and had beat the deceased with a the on the back of his neck. They said that appellant No. 4 had kicked on the stomach of the deceased, had caught the head of the deceased and knocked deceased to a wall and had slapped and beat him (deceased) with the edge of his palm. P.W 2 said that appellant No. 5 holding a ring was asking the deceased to take it and give him Rs. 2. He further said that the deceased fell down due to the beatings given to him, that first he had fallen with face downwards and then on his back and that on appellant No. 4 kicking the deceased, the deceased had fallen and had started vomiting blood sitting at the scene of offence. Injuries on forehead and lips of the deceased were found at the scene of offence as per the evidence of P.W 2. P.W 2 does not say whether those injuries were caused due to fall or due to any appellant beating the deceased. P.W 5 said that appellant No. 5 gave slaps to the deceased and due to it the deceased dashed with his head against wall. Appellants 2 and 3 were fisting and giving blows to the deceased as per the evidence of P.W 5.
10. The evidence of P.Ws 6, 7 and 8 makes it clear that at the time of the alleged commission of the offences, all the appellants were present at the scene of the offence. P.Ws 7 and & saw appellants 4 and 5 respectively taking part in assaulting the deceased. P.Ws 2 and 5 have not only stated that all the appellants beat the deceased but P.W 2 clarified the specific acts of appellants 1, 4 and 5 and P.W 5 clarified the specific acts of all the appellants. Eye-witnesses' (P.Ws 2 and 5 to 8's) presence at the scene of the offence cannot be doubted as P.Ws 2 and 5 to 7 have their houses near the scene of the offence and P.W 8 works in the office which is near the scene of offence. The incident of beating had occurred at about 3.30 p.m or 4 p.m The four witnesses examined in defence have not stated anything useful to the appellants. Their evidence cannot rebut the evidence given by the prosecution witnesses. D.W 1 said that he and appellants 1 and 2 were repairing the roof of the house of Sri, August from 2 to 6 p.m on the date of the occurrence. If appellants 1 and 2 were working at the house of August on the date of the occurrence from 2 to & p.m, the best witness to speak about it was August. He has not been brought’ into the witness-box.
11. According to D.W 1, the roof repairing work is commenced in the month of May. When that work is commenced in that month it is not known why the roof repairing work of the house of August was commenced in the month of April. D.Ws 2 and 3 have admittedly not spoken anything in favour of the appellants. D.W 4 is a toddy seller. He says that to his tavern at about 12.30 p.m the deceased had come-on the date of the occurrence and that on that date appellants 1. 3 and 5 were seen by him in the market at Ponsulem. It is stated by D.W 4 that on the date of the occurrence the deceased had abused the appellants 1 and 4 after 12 noon. From the evidence of D.W 4 it cannot be concluded that the appellants had not taken part in beating the deceased. D.W 4 has his tavern near the scene of the offence but he says that he was not present at his tavern at about 3.30 p.m or 4 p.m on the date of the commission of the offences.
12. I find practically no reason to disbelieve the evidence of the eye-witnesses even though the learned Sessions Judge has held that it is not proved that the first appellant had beaten the deceased on the back of his neck with a broken tile. It is established from the prosecution evidence that due to the deceased selling a fake ring to P.W 9 all the appellants gathered near the house of Ram Vemekar on 15-4-1969 at about 3.30 p.m and beat the deceased with hands and legs and due to the injuries received by the deceased at the scene of offence he died within three hours of his receiving the injuries.
13. Merely because it is established that the appellants injured the deceased and due to the injuries received by the deceased at the scene of the offence the deceased died within three hours of his receiving the injuries, it cannot be said that the appellants committed the offence punishable under Section 304, Part II read with Section 34, I.P.C The Medical Officer, P.W 10, who conducted the autopsy on the corpse of Venkatesh Shet Raikar found the following injuries on that cropse:— (1) Edema of upper lip and haematoma on the left zygomatic region (2) Haematoma under the scalp of left side of frontal region; (3) Fractures on the base of the skull and of the left side of the ethemoide bone; and (4) Congestion of the brain and its meninges. P.W 10 opined that the deceased had died due to traumatic shock due to head injuries. The head injuries found by P.W 10 in post-mortem examination according to him, could be caused due to fall or due to beating. No witness stated that the deceased was beaten on head by any of the appellants. P.W 2 said that the deceased had fallen first on his face and then on his back. P.W 5 stated that due to slaps given by appellant No. 5, the deceased dashed with his head against wall. It is found in the evidence of P.Ws 2 and 5 that the fourth appellant caught the head of the deceased and knocked the deceased to a wall. When there is no evidence to show that any of the appellants injured on the head of the deceased and when head injuries found on the corpse of the deceased could be caused even by fall on the ground it cannot be said that the injuries due to which the deceased died were caused by the appellants. It is quite possible that the head injuries were received by the deceased due top fall on the ground. For this reason it cannot be said that the appellants caused the fatal injuries to the deceased. There was no previous enmity between the deceased and the appellants. Simply because the deceased had sold fake ring to P.W 9 the appellants thought of punishing the deceased and they gave him slaps and kicked him. They had neither intention to kill nor cause such bodily injuries to him which were sufficient to cause death. It cannot be said that the appellants knew that the injuries which they were causing were sufficient or likely to cause the death of the deceased. The intention of the appellants was only to beat the deceased with their hands and legs. In view of the facts of this case, the appellants could be convicted only for the offence under Section 323, I.P.C
14. For the reasons given above, the appeal is allowed in part. The conviction of the appellants for the offence under Section 304, Part II read with, Section 34, I.P.C and the sentence of 6 years rigorous imprisonment to each, of them is set aside. The appellants are convicted of the offence under Sec. 323 I.P.C for causing injuries to Venkatesh Shet Raikar and each of them is sentenced to rigorous imprisonment for 1 year.
15. Appeal partly allowed.