Dismissed

Mr. Mariano Rosario Joao D'Silva v. State of Goa through Public Prosecutor, Panaji Goa

Bombay HC19 Jan 2012CRIA/23/2010

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa dismissed the criminal appeal filed by the appellant convicted of murder and destruction of evidence. The Court rejected the argument of grave and sudden provocation, holding the murder was pre-planned and intentional.

What did the court decide?

The appeal stands dismissed; conviction and sentences under Sections 302 and 201 IPC are upheld.

Mr. Mariano Rosario Joao D'Silva Vs State of Goa… — Murder and Culpable Homicide | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL APPEAL NO. 23/2010

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Mariano Rosario Joao D'Silva, H.No.42, Opp. Goa Shipyard, Bandara Vaddem, Vasco Da Gama, presently undergoing sentence at Aguada Central Jail, Aguada, Bardez, Goa. ….... Appellant. V/s. State of Goa, through Public Prosecutor, Panaji, Goa. ….... Respondent.

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Mr. Mahesh Amonkar, Advocate for the appellant.

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Mr. C. A. Ferreira, Public Prosecutor for the respondent/State.

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CORAM : A.P. LAVANDE &

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Date of Reserving Judgment : 12^th January, 2012. Date of Pronouncing Judgment : 19^th January, 2012

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J U D G M E N T : ( Per A.P. LAVANDE, J.)

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By this appeal, the appellant (hereinafter referred to as

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“the accused”) takes exception to the judgment and order dated 27^th

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April, 2009 passed by the Additional Sessions Judge, South Goa, at Margao in Sessions Case No. 12/2007, whereby the accused has been convicted of the offences, punishable under Section 302 of Indian Penal Code and sentenced to life imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for a period of two months; and also for the offence punishable under Section 201 of IPC, and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/-, and in default to undergo rigorous imprisonment for a period of one year. Out of the fine amounts, an amount of Rs.5,000/-, is ordered to be paid to the complainant.

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Briefly, the prosecution case, is as under :

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The informant Smt. Maria Jane D'Silva is the wife of the deceased Rodney who was the son of the accused. Smt. Sebastiana D'Silva is the mother-in-law of the informant, who was working in gulf. The informant was married to the deceased in the year 2004. The deceased used to drink heavily and assault and harass her under the influence of alcohol. He also used to assault and harass his father.

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On 7.6.2006, the deceased had returned home at about

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6.00 hours. Since his son Jonathan was not well, the informant and the deceased took him to a doctor and when they returned home, the accused and the deceased had a quarrel, in which they assaulted each other. At about 9.00 p.m., after the dinner, the deceased assaulted the informant with a blow on her mouth, on account of which she suffered a bleeding injury. The informant informed the accused about the said assault. After sometime, the deceased went to sleep in his room. At about 10.00 p.m. the accused came to her bedroom and requested the informant to go to his bedroom and sleep there along with Jonathan. At that time, the deceased was fast asleep. When the informant questioned him as to why the accused was asking her to go to the other bedroom, the accused told her that the deceased would harass her and

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the son. The accused also told the informant that he was going to kill Rodney, so that the deceased would not create problems to them in future. She pleaded with the accused not to kill her husband. After about 15 to 20 minutes, the informant went to her bedroom where she saw the accused assaulting her husband with pickaxe on his chest and head. The deceased was bleeding profusely and on seeing the incident, the informant was shocked. The accused asked the informant not to cry and not to disclose the incident to any one else. The accused

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also threatened to kill the informant. The informant, therefore, did not disclose the incident to any one. Thereafter, the accused dragged the body of the deceased with a bed sheet behind the house and threw it in a nullah. He also threw some coconut palms, asbestos sheets and waste material and threw the bed sheet in the field.

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Thereafter, people started making inquiries with the informant about the deceased and the informant told them that the deceased had left for Mumbai. When she told the accused about the said inquiries, the accused asked her to direct those people to him, in future. On 21.6.2007, the accused removed the skull of the deceased from the nullah, washed it and kept in on the shelf, in his bedroom. Thereafter, on the same day, the informant lodged a report against the accused at Vasco Police Station, which was registered under Sections 302 and 201 IPC. Pursuant to the said report, the accused was arrested on the same day, under a panchanama. Investigation was taken up. After completion of the investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class, at Vasco-da-Gama under Sections 302, 201 and 506(ii) of IPC. Since the offence punishable under Section 302 IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge,

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South Goa, Margao, which was made over to the Additional Sessions Judge.

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In Sessions Case No.12 of 2007, charges were framed against the accused for the offences punishable under Sections 302, 201 and 506(ii) IPC. The accused pleaded not guilty to the charges framed.

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The prosecution examined 21 witnesses in support of the charges. The defence of the accused was that of denial. It was further the case of the accused that the deceased was harassing and assaulting his wife and children, which the accused could not bear. No evidence was led by the accused.

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Upon appreciation of the evidence led by the prosecution, the learned Additional Sessions Judge, held the accused guilty of the offences punishable under Sections 302 and 201 IPC., and consequently, convicted and sentenced him as stated above. The learned Judge acquitted the accused of the offence punishable under Section 506(ii) IPC.

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Mr. Amonkar, learned Counsel appearing for the accused,

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in support of the appeal, made the following submissions :

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(I) The prosecution has not been able to prove the offences punishable under Sections 302 and 201 IPC beyond reasonable doubt, against the accused.

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(II) The evidence of the informant Maria D'Silva PW.1,

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does not deserve any credence on account of delay in lodging the first

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information report.

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(III) The delay in lodging the first information report by the informant Smt. Maria D'Silva PW.1 is fatal to the prosecution case.

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(IV) The cause for delay in lodging the first information report has not been established by the prosecution and the skull and the bones which were seized during the investigation have not been proved to be that of the deceased Rodney.

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(V) The evidence led by the prosecution does not establish beyond reasonable doubt the offences for which the accused has been convicted by the learned Judge.

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In the alternative, Mr. Amonkar submitted that even if the prosecution case is accepted, at the most, the offence under Section 304(I) is made out against the accused inasmuch as the exception 1 to Section 300 is clearly attracted in the present case.

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Per contra, Mr. Ferreira, learned Public Prosecutor, appearing on behalf of the respondent, supported the impugned judgment and order, inter alia, on the following grounds :

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(I) The evidence of PW. 1 Maria, PW.16 Thereza Pereira and PW.18 Filomena Fernandes, clearly proves that it was the accused who had committed the murder of Rodney.

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(II) The evidence of PW.1 Maria stands corroborated by the scene of offence panchanama and the photographs taken during the scene of offence panchanama, as well as by the evidence of Filomena Fernandes PW.13 and Anson D'Silva PW.14.

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(III) The evidence of PW.1 Maria also stands corroborated

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by the recovery of pickaxe, as well as the banian.

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(IV) The conduct of the accused, after the commission of the offence, corroborates the version of PW.1 Maria that it was the accused who had committed the murder of his son Rodney.

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(V) The prosecution has been able to prove the offence punishable under Section 302 IPC against the accused and exception 1 to Section 300 is not attracted in the presence case, since the murder of the deceased Rodney was preplanned.

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We have carefully considered the rival submissions and perused the record.

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The prosecution has heavily relied upon the evidence of PW.1 Maria, the wife of the deceased and daughter-in-law of the accused. She deposed that on the day of the incident Rodney, her husband had gone to assist his brother at about 7.00 a.m.. He returned at about 5.00 p.m. and thereafter, they went to a doctor with their son Jonathan, since he was not well. After returning, they had their dinner at about 9.00 p.m.. She gave him some Carmicide and the accused gave him two sleeping tablets and one tablet for loose motion. Her husband gave a fist blow on her face, on account of which she started bleeding. Her husband slept in his room where Jonathan was sleeping. After sometime, the accused came to her bedroom and asked her to leave the bedroom. The accused requested her to sleep in his bedroom and upon inquiry, the accused told her that he wanted to kill her husband as he was troubling her and the child. At that time, the accused was wearing a white colour banian with sleeves. She pleaded with the accused not to kill her husband. She went to the bed and the accused was still sitting in the hall. After sometime, she saw the

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accused assaulting her husband on his head and chest with a pickaxe. At that time, her husband was in deep sleep. Thereafter, the accused wrapped the body in a bed sheet and threw it in a nullah in the field. She further deposed that on 21.6.2007, after the breakfast, the accused brought a skull, washed it and kept in his bedroom. She realised that it was the skull of her deceased husband. She was totally upset and after sometime when the accused left the house, she went to the police station and lodged the report Exhibit 14. She further stated that she did not report earlier because the accused had threatened her to kill in case she reported the incident to any one else.

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In the cross examination, certain suggestions were put to her. It was, inter alia, suggested to her that her husband used to assault her and used to consume liquor. It was also suggested that the accused used to intervene and rescue her and that the accused was the only support to her. The informant admitted all these suggestions. The above evidence of PW.1 Maria which has not been shaken in the cross examination on material aspects and stands corroborated by the First Information Report, clearly proves that it was the accused who being upset with the conduct of the deceased Rodney, assaulted him on his head and chest, causing him serious injuries, resulting in instantaneous

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death and thereafter, threw the dead body of the deceased Rodney in a nallah, after covering the dead body in a bed sheet. It is pertinent to note that the material part of the evidence of PW.1 Maria has not been disputed by the accused in the cross examination and the defence of the accused appears to be that he was fed up with the conduct of the deceased who used to drink heavily and assault his wife. No doubt, there is a delay in lodging the first information report by the informant PW.1 Maria, but having regard to the factual background, the delay cannot be termed as fatal. The other evidence brought on record by the prosecution clearly establishes that PW.1 Maria was earlier in orphanage and, as such, the delay on the part of Maria PW.1 in lodging the first information report against the accused, can very well be understood. It was only the accused who could support informant and her two minor children, after the death of her husband Rodney and, as such, the conduct on the part of the informant in not lodging the first information report till the accused brought the skull (which according to the informant was of her husband) and keeping it in the house, was natural. It was quite natural for the informant to be upset with the conduct of the accused in bringing the skull of her husband in the house after almost a period of one year and it is at that stage that

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the informant found it difficult to continue living with the accused in the house. Considering the factual background and the defence taken by the accused, in our considered opinion, the delay in lodging the first information report cannot be said to be fatal.

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Another circumstance which goes against the accused is his conduct. Evidence of PW.4 Salvador Pereira, a neighbour of the accused discloses that he asked the accused as to where Rodney was, whereupon the accused told him that Rodney had gone to Mumbai. Similar is the evidence of PW.13 Filomena Fernandes, who was the owner of a bar and restaurant, which discloses that when she asked the accused about Rodney, he told him that he had gone to Kerala. The evidence of PW.14 Anson D'Silva, son of the accused who was not residing with the accused, clearly establishes that after the incident when he asked the accused as to where Rodney was, the accused told

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him that Rodney had gone away. The evidence of PW.17 Leena D'Silva, the wife of PW.14 Anson D'Silva is also on similar lines. Thus, the evidence of the above witnesses which has not been shaken in the cross examination, clearly proves that upon inquiries being made by the above witnesses as to where Rodney was, the accused either told

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them that he had left the house or that he had gone to Kerala or Mumbai. This conduct of the accused clearly incriminates him and lends corroboration to the prosecution version that it was the accused who had committed the murder of his son Rodney.

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The evidence of PW. 1 Maria also stands corroborated by the evidence of PW.16 Thereza Pereira, and PW.18 Filomena Fernandes. Evidence of PW.16 Thereza Pereira discloses that during her visit to Hospicio Hospital, at the time of the delivery second child in Hospicio Hospital at Margao, she had inquired with PW.1 Maria about her husband. Maria had kept quiet and thereafter, she started crying and she informed her that her father-in-law killed her husband. Thereza PW.16 stated that she did not ask PW.1 Maria further details, since she was not sure about what PW.1 told her. She further stated that she did not communicate said information to anyone else and it was only on 22^nd June, 2007, she came to know about the incident from a report in a newspaper.

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Evidence of PW.18 Filomena Fernandes who was

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residing in an orphanage known as “Lar de St. Terezen” situated at

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Pajifond, Margao is also on similar lines. She knew PW.1 Maria since she was also residing in the institute since her childhood as orphan. She also claimed that she visited the hospital at the time of delivery of second child by Maria. She made inquires with PW.1 Maria about her husband Rodney and initially she kept quiet, but thereafter started crying and told her that Rodney was killed by her father-in-law and further informed her that she was in the house at the time of murder of her husband. Although, in the cross examination a suggestion was put that this part of the evidence was not correct, the witness denied the same. There is absolutely no reason pointed out as to why the evidence of PW.16 Thereza and PW.18 Filomena regarding the disclosure made by PW.1 Maria in respect of murder of deceased Rodney by the accused should not be accepted. It was quite natural for PW.1 Maria upon being questioned by PW.16 Thereza and PW.18 Filomena to disclose about the incident, since at sometime prior thereto PW.1 was also there in the same orphanage where both these witnesses were. This evidence of these two witnesses also clearly establishes that prior to lodging of the first information report by PW.1 Maria, PW.1 Maria had disclosed to both the witnesses that it was the accused who had committed murder of her husband.

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Evidence of PW.1 Maria also stands corroborated by the evidence of PW.15 Elvin Gonsalves, who was a panch and whose evidence clearly establishes that the accused was taken by the Investigating Officer along with the panch, to his house and a pickaxe MO.2 from the kitchen was attached. Similarly, half sleeves banian MO.3 was also seized from the place behind the house. No doubt, the prosecution claimed that pickaxe was discovered under a panchanama under Section 27 of the Evidence Act, but, the same has to be treated as a simple recovery and not discovery, since it is difficult to believe that the Investigating Officer could not find pickaxe in the house till the disclosure was made to that effect. It is also pertinent to note that human blood was found on the banian MO.3, but, in terms of the C.F.S.L. Report Exhibit – 91, the group could not be ascertained. The evidence lead by the prosecution regarding seizure of pickaxe MO.2 and half sleeves banian MO.3 lends corroboration to the prosecution case.

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The scene of offence panchanama and the photographs taken at the time of conducting the said panchanama also lends

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corroboration to the version of PW.1 maria.

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Thus, upon appreciation of the entire evidence led by the prosecution, the finding of the learned Additional Sessions Judge that it was the accused who had caused the injuries to the deceased Rodney by assault with a pickaxe on vital parts, stands proved beyond reasonable doubt. Similarly, the prosecution evidence also clearly proves that the accused, after having killed his son, had caused evidence to disappear.

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The next question which arises for consideration is

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whether the offence under Section 302 or Section 304 (I) of IPC is made out against the accused. According to Mr. Amonkar, exception 1 to Section 300 of IPC is attracted in the present case and, therefore, even if the prosecution case is accepted in toto, at the most, offence under Section 304 (I) and not under Section 302 of IPC is made out against the accused. Exception 1 to Section 300 of IPC is attracted when the accused whilst deprived of the power of self-control by grave and sudden provocation, causes death of a person who gave the provocation. In the present case, having regard to the the prosecution

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evidence to which reference is made herein above, it cannot be said that there was grave and sudden provocation for the accused to assault his son with a pickaxe on vital parts of the deceased, causing his instantaneous death. No doubt, the evidence on record clearly establishes that the deceased Rodney was habituated to drinks and was assaulting his wife and father. But, this fact, by itself, would not be sufficient to hold that exception 1 to Section 300 of IPC is attracted. Evidence of PW.1 Maria clearly establishes that there was a

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time lag between the deceased assaulting his wife and the accused assaulting the deceased son and, therefore, it cannot be said that there was a grave and sudden provocation given by the accused on account which the accused was deprived of the power of self-control and assaulted the deceased with pickaxe on vital parts. Evidence on record clearly establishes that sometime prior to the assault, the accused had taken a decision to do away with his son who was creating problems, not only to his wife, but to all his family members. Therefore, we are unable to accept the submission of Mr. Amonkar that exception 1 to Section 300 of IPC is attracted in the present case and, therefore, the conviction and sentence of the accused of the offence punishable under Section 302 of IPC is unsustainable in law. Having regard to the

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nature of the assault, the weapon used, the parts of the body upon which the assault was made, the conclusion which can be drawn is that the accused intentionally caused the death of deceased Rodney.

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Therefore, in our considered opinion, the conviction and sentences imposed on the accused for the offences punishable under Sections 302 and 201 of IPC cannot be faulted.

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For the reasons aforesaid, we do not find any merit in the present appeal and therefore, the appeal stands dismissed.

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A.P. LAVANDE, J.

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U.V. BAKRE, J.

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ssm.

Mr. Mariano Rosario Joao D'Silva v. State of Goa through Public Prosecutor, Panaji Goa

Case brief

What is this about?

What did the court decide?

Mr. Mariano Rosario Joao D'Silva v. State of Goa through Public Prosecutor, Panaji Goa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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