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2013 DIGILAW 569 (BOM)

State Through P. I. v. Anita Parab

2013-03-07

U.V.BAKRE, V.M.KANADE

body2013
Judgment :- U.V. Bakre, J. 1. This appeal is directed against the Judgment and order dated 28/12/2006 passed by the learned Additional Sessions Judge, Margao in Sessions Case No. 11 of 2001. 2. The respondents were tried for offences punishable under Sections 143, 147, 148, 323, 326, 427, 307, 115 read with Section 149 of the Indian Penal Code (I.P.C., for short). The trial Court acquitted all of them. 3. Case of the prosecution, in short, is as follows: On 17/07/2000 between 20.00 hours to 20.30 hours at Palmar, Pomburpa, the accused nos. 1 to 5, in furtherance of their common intention, formed an unlawfully assembly armed with iron bar, dandas, etc. and damaged the fencing to the property of Shri George Fernandes and assaulted his family members including his wife Catharine, daughters Sonia and Sheela and one Keith D'Souza by means of knife and sword and caused grievous injuries to them. Accused no. 5 stabbed Keith D'souza with sword on his abdomen, back, etc. and he stabbed Catharine and Sheela on their hands, whereas accused no 4 stabbed Keith with knife on his stomach. Accused nos. 1 to 5, with common intention, attempted to commit murder of Keith. Accused no. 6 abetted 3 the commission of said offence. 4. Accordingly, charges were framed by the learned trial Court. The prosecution examined 22 witnesses in all whereas in defence 8 witnesses were examined including the accused no. 2 himself. 5. Upon assessment of the entire evidence on record, the learned trial Court refused to believe the eye witnesses. He found that there was absolutely no material against the accused no. 6 whereas the evidence on record was not sufficient to prove the involvement of the accused nos. 1 to 5 in the alleged offence and therefore they are entitled to benefit of doubt. Consequently, all the accused persons came to be acquitted. State is aggrieved by the acquittal. 6. We have heard the learned Counsel for the parties. 7. Learned Additional Public Prosecutor, while assailing the impugned judgment, submitted that the trial Court has failed to consider the totality of evidence of eye witnesses on record and has given undue importance to minor omissions and contradictions. According to him, all witnesses have corroborated each other. He submitted that there is on record evidence of enmity between the 4 parties on account of civil litigation. According to him, all witnesses have corroborated each other. He submitted that there is on record evidence of enmity between the 4 parties on account of civil litigation. It was canvassed that all details have been stated by PW 4 and there is corroboration to her testimony by other witnesses on material aspects. The learned Additional Public Prosecutor further submitted that the learned trial Court overlooked the material evidence that is the medical evidence which supports the version of the eye witnesses. He therefore urged that the impugned judgment is perverse and that the same is liable to be quashed and set aside. He submitted that the prosecution has proved the guilt of at least accused nos. 1 to 5 beyond all reasonable doubts and therefore they are liable to be convicted and sentenced for the offences with which they have been charged. 8. Per contra, learned Counsel appearing on behalf of the accused nos. 1 to 5, while supporting the impugned judgment, submitted that the manner in which witnesses have deposed is such that their statements raise reasonable suspicion and cannot be relied upon to convict accused nos. 1 to 5. He submitted that the version of the prosecution insofar as the scene of offence is concerned, as given by the eye witnesses, does not tally with the Panchanama of the scene of offence. It was urged that the main witness namely PW 3 could not state the role played by the accused persons in the incident. Learned Counsel pointed out that though the incident occurred on 17/07/2000, the statement of PW 3 was recorded on 22/07/2000 and his clothes 5 were not recovered for a couple of months. He submitted that there are major discrepancies amongst the testimonies of the three eye witnesses namely PW4, PW5 and PW 9 as regards the very beginning of the incident of assault. According to him, the learned trial Judge has considered various contradictions in the version given by PW 5 as compared with that given by PW 2 and PW 4, insofar as the incident is concerned. He invited our attention to the scene of offence Panchanama which does not show any blood in the middle of the road though it was the case of the prosecution that the PW 3 was stabbed in the middle of the road. He invited our attention to the scene of offence Panchanama which does not show any blood in the middle of the road though it was the case of the prosecution that the PW 3 was stabbed in the middle of the road. He contended that there is no consistency at all in the versions of so called eye witnesses to ascertain as to what role was played by which accused. He submitted that Section 34 of the IPC is not attracted as common intention for an attempt to murder or to cause hurt is not spelt out and therefore was rightly not applied. He further submitted that even Section 149 of IPC is not applicable since there was no common object. He submitted that the attack on PW 3 and others appears to be on a spur of moment and therefore since it is not proved beyond reasonable doubt as to which accused did what, the prosecution cannot at all be said to have proved guilt of any of the accused persons beyond reasonable doubt. He submitted that it is a well settled principle of criminal law that if two views are possible and the view taken by the trial Court who had the benefit of watching the demeanor of witnesses, in not accepting the prosecution version, is a 6 plausible view, than the High Court cannot replace its own view, though it may also be a possible view. He therefore urged that there is no merit in the appeal and the same deserves to be dismissed. In the alternative, it is submitted that in the event this court comes to the conclusion that the accused nos. 1 to 5 are involved in the offence, then certainly Sections 307 and 427 of IPC would not be applicable. He submitted that the accused persons were in custody for a period ranging from 9 days to 30 days and have under gone the trauma of the proceedings for the last more than 12 years. He submitted that the accused no. 1 is a woman and that one of the accused is now a Government servant. According to him, if convicted, the punishment of imprisonment already undergone coupled with some fine should meet the ends of justice. 9. He submitted that the accused no. 1 is a woman and that one of the accused is now a Government servant. According to him, if convicted, the punishment of imprisonment already undergone coupled with some fine should meet the ends of justice. 9. We have perused the evidence of eye witnesses and also looked into the medical evidence and other relevant circumstantial evidence on record, in the light of the arguments advanced by the learned Counsel for both the parties. 10. Indisputably, PW 2, PW 3, PW 4 and PW 9 had sustained injuries. The injuries were neither accidental nor self-inflicted. The injuries sustained by PW 9 were grievous and those sustained by PW 3 were grievous as well as dangerous. 11. PW10, Santosh Naik, was working as Statistical Assistant in Goa Medical College. He has produced the Hurt Certificates issued by Dr. Ravi Narayanan in respect of Sheela Fernandes(PW 4), George Fernandes (PW 2), Catharine Fernandes (PW 9) and Keith D'Souza(PW 3) and has identified signature of Dr. Ravi Narayanan on all those certificates. They were admitted in evidence and marked as Exhibit- 72-Colly. 12. PW 12, Dr. Ravi Narayanan, the then CMO of Goa Medical college Hospital, examined Keith D'souza (PW 3) on 17/07/2000 at around 8.30 p.m., who was brought by George Fernandes with alleged history of being stabbed with a sharp object. Following injuries were noted: i) wound of size 7 x 5 cms over left hand on the posterior aspect caused by sharp object, simple in nature. ii) wound of size 2 x 1 cms on left index finger caused by a sharp weapon, simple in nature. There was a flexor tendon injury. iii) wound on the right hand of size of 0.5 x 5 cms caused by sharp weapon, simple in nature. iv) wound of size 0.5 x 0.5 cms over right knee caused by sharp object, simple in nature. v) bruise of size 3 x 3 cms on the left arm caused by blunt 8 object, simple in nature . vi) wound of size 7 x 2 x 1 cms on the anterior aspect of left ear caused by a sharp object and which was grievous in nature. Vii) wound of size 12 x 1 cms behind left ear caused by a sharp object. vi) wound of size 7 x 2 x 1 cms on the anterior aspect of left ear caused by a sharp object and which was grievous in nature. Vii) wound of size 12 x 1 cms behind left ear caused by a sharp object. viii) wound of size 5 x 3 cms on the left side of abdomen caused by a sharp object, which was dangerous in nature. 13. According to PW 12, the above last injury sustained by keith could threaten his life. PW 3 was referred to the Department of Orthopaedic Surgery, ENT and General Surgery. PW 12 has stated that the ENT Department had certified it to be a case of stabbed injury with contused lacerated wound over left pinna. The results showed contused lacerated wound on the left ear anteriorly and posteriorly with exposed cartilage measuring 7 cms x 2 cms. There was another contused lacerated wound on the post aura region 12 cms extending into the scalp. According to PW 12, if the said injury had resulted into excessive bleeding both anterior and posterior and if it was not timely treated, it could even be life threatening. 14. PW 12 has deposed that as per the records of General Surgery Department, as per abdominal examination of PW 3, there was tenderness all over abdomen, guarding on the left side, no distention. There was a 5 cm stab entry wound clean in size and this injury can be caused by a sharp edged weapon like a knife. He has identified his signature on the Hurt Certificate which is part of Exhibit 72-colly. 15. PW 12 examined Sheela Fernandes(PW 4) on 17/7/2000 at 8.45 p.m. She was brought with alleged history of being stabbed. She had a stab injury on the dorsal aspect of her right forearm, 6 x 2x 1 cm., which was grievous in nature. She also had extensor tendon injury. According to PW 12, the injury was caused by the sharp weapon like knife or article with sharp edges. He stated that the knife/sword at MOs 6 and 8 can cause such injuries. Hurt certificate in respect of PW 4 is part of Exhibit 72-colly. 16. Catharine Fernandes(PW 9) was examined by PW 12 on 17/7/2000 at 9.30 p.m., with alleged history of being stabbed. He stated that the knife/sword at MOs 6 and 8 can cause such injuries. Hurt certificate in respect of PW 4 is part of Exhibit 72-colly. 16. Catharine Fernandes(PW 9) was examined by PW 12 on 17/7/2000 at 9.30 p.m., with alleged history of being stabbed. She had two abrasions: one of the size 2 x 2 cms, on her forehead, and other of the size 3 x 1 cms on her right knee and a laceration, 6 x 2 x 1 cms, on right dorsum of hand with extensor tendon injury on her index finger. The third wound was grievous in nature. According to PW 12, the wound on right dorsum of hand was caused by a sharp weapon 10 whereas other injuries were caused by blunt object. X-ray showed dislocation of third metacarpaphalangeal joint of right hand. PW 12 has identified his signature on the hurt certificate which is part of Exhibit 72-colly. 17. PW 12 also examined George Fernandes (PW 2) on 17/07/2000 at 10.00 p.m., with alleged history of assault and being bitten over the left forearm. There was an abrasion of 1 x 2 x 0.5 cms on left forearm on the posterior aspect. PW12 had stated that this injury could have been caused by human bite. Hurt certificate is part of Exhibit 72-colly. 18. PW 13, Dr. A. N. Jadhav was Associate Professor and Head of Surgery Unit–I at Goa Medical College, Bambolim. He has stated that he had issued a Certificate dated 25/07/2000 in respect of patient Keith D'Souza who was admitted on 17/07/2000 at 9 p.m. with history of stabbed injury in the abdomen with a knife. PW 13 has stated that Keith D'souza had following injuries: i) stab injury on the abdomen on the left side of umbilicus, 5 cms in length. This was the point of entry. There was a cut on the right shoulder 5 cms in length and muscle deep. There was a wound on right knee incised 5 cms length and tapering. ii) on the left upper limb i.e. on the arm, there were two contusions, 0.5 x 3 cms and the other 3 x 3 cms. iii) an abrasion on the left cheek. iv) On the right hand there were 3 cut injuries length of each being 0.5 cms. ii) on the left upper limb i.e. on the arm, there were two contusions, 0.5 x 3 cms and the other 3 x 3 cms. iii) an abrasion on the left cheek. iv) On the right hand there were 3 cut injuries length of each being 0.5 cms. and on the left hand too there were cut injuries on the index finger, middle and little finger. The index finger could not be flexed meaning thereby that the tendon was cut. v) There was a 6 cms. long cut on the left ear extending posteriorly 12 cms. vi) There was a cut of 1 cm. on the lower back left side which was 3 cms. deep and bone could be felt through it. 19. PW 13 has stated that x-ray of chest of Keith D'souza was taken and ultrasound was done and he was operated under General Anesthesia and the abdomen was explored and following was found: 1) 1 cm. cut on the hole in the large intestine. 2) There was through and through cut on the spleen. 3) There was 3 cms cut on the posterior abdominal wall and diaphragm. 9th and 10th rib cartilages were cut. It was found that the peritoneal 12 cavity contained 500-600 cc. of blood and some faecal matter was also present in the peritoneal cavity. 20. PW 13 has further deposed as follows: Colonic injury was repaired and attempt was made to repair the spleenic injury but as the bleeding was not stopping, the spleen was removed i.e. Spleenactomy was done. Peritoneal toilet was done and the faecal was cleaned and the abdomen was closed. Injury to the colon was grievous in nature. Spleenic injury was dangerous and the injury on the left hand index finger was also grievous. Other injuries were simple in nature. Injuries to the spleen and colon can cause death in ordinary course of nature. The injury to the left index finger was treated by the Orthopaedic Surgeon while that to the left pinna by ENT Surgeon. The patient was getting fever post-operatively from 19/07/2000 till 31/07/2000 which was intermittent in nature and his temperature normalized after 31/07/2000. Since the patient was having intermittent fever he was referred to Sr. Resident, T. B. Chest, who had examined him on 27/7/2000. His diagnosis was post operative lung infection and left plural effusion. The patient was getting fever post-operatively from 19/07/2000 till 31/07/2000 which was intermittent in nature and his temperature normalized after 31/07/2000. Since the patient was having intermittent fever he was referred to Sr. Resident, T. B. Chest, who had examined him on 27/7/2000. His diagnosis was post operative lung infection and left plural effusion. On 02/08/2000, 170 C.C. blood was aspirated from left pleural cavity and antibiotics were changed and advised physiotherapy till recovery. During surgery, 1 pint of blood was given. The patient was discharged on 08/08/2000. 13 The certificate issued by PW 13 which bears his signatures is at Exhibit 91. 21. PW 19 Dr. Harish Tople, a Senior Resident in Goa Medical College had examined Catharine Fernandes on 17/07/2000. On examination, he found a large contused lacerated wound of 3 x 2 cms over the dorsum of the right hand with the wound extending to the base of the index finger. On further examination the extensor tendon of the right index finger was found to be severed. There were two other wounds of the dimensions 2 x 2 cms and 3 x 1 cm over the forehead and right knee respectively. X-ray of right hand was taken and it showed dislocation of the third metacarpophalyngial joint of the right hand. PW 19 found on his diagnosis that there was traumatic extensor tendon injury of the right index finger with traumatic dislocation of the third metacarpophalyngial joint of the right hand. Exhibit 84-colly are the report of PW 19 and the X-rays. 22. PW 22 Dr. Kapil Sarda had examined Keith D'souza on the night of 17/07/2000 at around 9.00 p.m. in casualty Goa Medical College, Bambolim. He has identified the Medico Legal Case papers papers which are at Exhibit 92–Colly. According to PW 22, the condition of Keith D'souza at the time of examination was clinically bad and in fact he was meriting investigation to rule out any life threatening injury. 14 The injuries were grievous and in case the patient was not operated upon urgently, it would not have been possible to sustain his life. The external injuries were multiple stab injuries in left supra umbilical region and multiple injuries over the arm and shoulder caused by a sharp weapon. The internal injuries were: spleenic laceration, perforation in the spleenic flexture of colon and superficial cut over the left dome diaphragm. The external injuries were multiple stab injuries in left supra umbilical region and multiple injuries over the arm and shoulder caused by a sharp weapon. The internal injuries were: spleenic laceration, perforation in the spleenic flexture of colon and superficial cut over the left dome diaphragm. There was blood in the peritoneal cavity. The patient was surgically explored. Spleenoctomy was done. Colonic perforation was repaired. Peritoneal lavage was done and drains were placed in the abdominal cavity. The operations were done by PW 22 and the records are at Exhibit 92-Colly. PW 22 has stated that a sharp object like knife could cause the said injuries. 23. PW 12, PW 13, PW 19 and PW 22 have been extensively cross-examined by the learned Counsel for the accused persons. However, nothing worth mentioning which can help the accused persons has come on record. The injuries on the person of PW2, PW 3, PW 4 and PW 5 are duly proved by the medical evidence. 24. The question that arises therefore is as to who is/are the author/authors of the said injuries. Considering the fact that many injuries have been sustained by many witnesses, it can certainly be said that the assailants were more than one. 25. The incident had occurred on 17/7/2000 whereas the trial began in August 2001, i.e. after more than an year. Recall of a crime is the process of reconstruction and differs from witness to witness, insofar as the accuracy is concerned, depending upon the memory and ability of a witness to express. Mathematical accuracy can never be expected. Various factors affect the memory and perception of an eye witness which factors are mental strength, attitude, expectancies, post-incident information, etc. Memory of crime cannot be preserved like in a videotape to be rewound and replayed. Because of the above, there are bound to be draw-backs, deficiencies and infirmities in the evidence, and also discrepancies between the statements of eye witnesses in the Court and the previous statements made by them to a police officer. In the case of “State of U.P. Vs. M. K. Anthony” ( AIR 1985 S.C. 48 ), the Apex Court has observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. In the case of “State of U.P. Vs. M. K. Anthony” ( AIR 1985 S.C. 48 ), the Apex Court has observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. The Apex Court has further held that minor discrepancies on trivial 16 matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Every honest and truthful witness may differ in some details unrelated to the main incident and because power of observation, retention and reproduction differ with individuals. The evidence has to be scrutinized in the light of the above. 26. Insofar as the accused no. 6 is concerned, there is no dispute that the evidence on record is not sufficient to prove his involvement in the crime. He has been rightly acquitted by the trial Court. 27. Accused nos. 1, 2, 4 and 5 are children of accused no. 3. PW 2, PW 4, PW 5, PW 8 and PW 9 are all immediate neighbours of the accused nos. 1 to 5 and hence there is no question of identification parade being held for proving their identity. 28. PW4 is the main witness who has witnessed the incident from the beginning till the end. PW 4 has deposed as follows: On 17/07/2000 at around 8.00 p.m., Keith (PW 3) dropped 17 her by his Armada Jeep after her office hours, at her house and while she was opening the gate to enter the house, she saw accused no. 1- Anita, accused no. 3-Keshav, accused no. PW 4 has deposed as follows: On 17/07/2000 at around 8.00 p.m., Keith (PW 3) dropped 17 her by his Armada Jeep after her office hours, at her house and while she was opening the gate to enter the house, she saw accused no. 1- Anita, accused no. 3-Keshav, accused no. 4-Sudesh and accused no.5 Rupesh who were on the other side of the fence of wire mesh erected on two iron poles. When she was opening the gate, she saw accused no. 1 breaking the said wire fencing and therefore she asked as to why they were breaking the same upon which accused no. 5 started helping accused no. 1 in breaking the fence and after that accused no.1 started assaulting her with danda on her stomach and on her right hand. Accused no. 1 then started pulling her hair and by catching hold of her hair pushed her in the gutter, due to which she shouted for help. In the meantime, Keith (PW 3) came back and asked the said accused persons as to why they were assaulting her. Accused no. 2, accused no .4 and accused no. 5 went to assault Keith. These three accused persons then dragged Keith by his neck up to Rose bar and in the meantime, her mother Catharine, sister Sonia and father George came near the gate. By that time accused no. 3 brought a knife from his house whereas accused no. 1 brought a sword from the house. Seeing that, PW 4 ran along with her mother to save Keith but by that time, Sudesh (accused no. 4) had already stabbed Keith in his stomach. While her mother and she were trying to save Keith, accused no.1 pulled her mother with her hair and banged her head on a roadside stone, due to which she went to save her mother and on seeing this 18 accused no. 5 came and inflicted a cut, with a sword, on the right hand of her mother. When PW 4 again went to save Keith, accused no.1 came and started fighting with her and in defense she also gave blows to accused no.1 at which time the younger brother namely accused No. 5 came and inflicted injury with sword on her right hand, due to which she collapsed. When PW 4 again went to save Keith, accused no.1 came and started fighting with her and in defense she also gave blows to accused no.1 at which time the younger brother namely accused No. 5 came and inflicted injury with sword on her right hand, due to which she collapsed. Keith had sustained injury on his left ear, left index finger, stomach, right knee and right shoulder and back and the said back injury was inflicted by accused no. 5 with a sword. She regained consciousness in GMC. The injury on her right hand has left a scar which is still visible and she still suffers pain in her right hand and finds difficulty in writing. Prior to the night of the incident and on the previous day, accused no. 6 had made an offer to the security engaged by her father to withdraw from their duty by offering Rs. 10,000/-. This was told to her by the security. However she could not recall having seen accused no. 6 on the night of the incident though she feels that she had heard his voice saying “Mara Teka”. 29. PW 4 identified MO 5 as the danda used by accused no.1 to initially assault her. She identified MO 4 as the knife used by accused no. 4 and MO 6 to be the sword used by accused no. 5. In her cross-examination, PW 4 has stated that the accused nos. 1 to 5 and her family have been on enmical terms since sometime prior to the incident and for several years. She has produced copy of complaint 19 filed by her against accused nos. 2, 4 and 5, around January 2000, as Exhibit 35-cross. 30. It is true, as pointed out by learned Counsel on behalf of the accused persons, that though in her examination-in-chief, PW 4 stated that the wire mesh fence was being broken, however, in her cross-examination she stated that fence, which accused no. 1 was shaking, was not broken. PW 4 has maintained that the fence was being shaken. Breaking of iron wire mesh may mean breaking it into pieces. That may not be equivalent to causing damages to the fence. As per the panchanama of the scene of offence, the poles to which the wire mesh was fitted were removed from the ground by damaging the concrete put at their base. Breaking of iron wire mesh may mean breaking it into pieces. That may not be equivalent to causing damages to the fence. As per the panchanama of the scene of offence, the poles to which the wire mesh was fitted were removed from the ground by damaging the concrete put at their base. Even PW 1, he panch witness has stated that the poles along with the net was found in dismantled condition. Such damages can be caused by shaking the fence. Cross-examination is an unequal duel between a rustic witness and refined lawyer, as observed by the Apex Court in the Case of “M. K. Anthony”(supra). The answer given by PW4 was to the question as was understood by her. 31. PW 4 has further stated in her cross-examination that she is unable to recollect the manner in which Keith was stabbed by one of the accused and the manner in which back injury was inflicted by 20 accused no. 5, with a sword. Here it may be that the question asked to PW 4 was whether she can state the manner in which one of the accused stabbed Keith and therefore since she could not recollect the manner, the answer has been recorded in that manner. In her examination-in-chief, PW 4 has clearly stated that accused no. 4 had stabbed Keith. She further stated in her cross-examination that she does not recall in what manner injury was inflicted on her mother. She also could not say whether Keith was with his face downwards or facing sky when he was being dragged to Rose Bar. In her deposition, PW 4 did not state about a chain being put around the neck of Keith or he being dragged with the help of the said chain. She has stated that she saw only one sword that is MO 6. Two swords have been recovered by the police. 32. PW 4 has been extensively cross-examined by the learned advocates for the accused persons. Some omissions have been brought on record. However, reading the testimony of PW 4 as a whole, reveals that these omissions need not be taken as material. No doubt, though PW 4 has stated before the Court that She saw Keith being dragged by accused nos. 2, 4 and 5, however, in her police statement, the name of accused no. 5, being involved in dragging, is missing. However, reading the testimony of PW 4 as a whole, reveals that these omissions need not be taken as material. No doubt, though PW 4 has stated before the Court that She saw Keith being dragged by accused nos. 2, 4 and 5, however, in her police statement, the name of accused no. 5, being involved in dragging, is missing. It is to be noted that PW 4, even in her cross-examination, is firm on her statement that she saw all the above three accused persons dragging Keith. 21 Merely because there are some omissions or discrepancies in the deposition, a witness cannot be termed as unreliable. The evidence of PW 4 reveals the presence and involvement of accused nos. 1 to 5 in the incident narrated by her. 33. PW 2, George Fernandes is the father of PW 4. He lodged oral report with the police when he was in the Goa Medical College Hospital. The report is at Exhibit 24. He has deposed as follows: On 17/07/2000 at about 8.00 p.m., he was discussing with his wife about the future studies of their younger daughter namely Sonia and about demerits of education system. Suddenly, they heard a loud scream of their eldest daughter namely Sheela (PW 4), who usually comes home from her work by about 8.00 p.m. to 8.15 p.m.. They all rushed out and he found that PW 4 was being attacked by all the accused. His younger daughter Sonia was dragged by accused no.1 after she went towards the gate and out side the house to see her elder sister. Accused no.1 was about to bang the head of Sonia against a stone by her hand when PW 2 went and rescued her. His elder daughter Sheela screamed since accused no. 1 was demolishing the fencing and after she was attacked. Property of accused nos. 1 to 5 lies on the other side of the said fencing. Along with his daughter, her friend D'souza was present whom they had requested to come along to reach her, in his car, in case she was late. PW 2 noticed that 22 said Keith was being dragged by putting chain around his neck towards distance of 15 metres away which chain could be of a cycle. Along with his daughter, her friend D'souza was present whom they had requested to come along to reach her, in his car, in case she was late. PW 2 noticed that 22 said Keith was being dragged by putting chain around his neck towards distance of 15 metres away which chain could be of a cycle. PW 2 went to reach Sonia inside the compound but in the meantime Keith was already stabbed in his abdomen and his wife Catharine and his daughter Sheela took the injured Keith to the neighbouring place opposite the house of one Diago Fernandes, hich is a Bar. Keith had lost consciousness on account of stab injury on his abdomen and also due to profuse bleeding from his injury. Wife of PW 2 had also received severe bleeding injury on her right hand as she was trying to protect herself from further assault. The injury to Catharine was by means of a sharp weapon. The daughter of PW 2 Sheela was also assaulted with a sharp weapon on her right hand while she was trying to protect Keith from further assault. The flesh on her right hand was exposed on account of the cut injury and his wife had sustained injury on the forehead as her head was banged on the stone. Despite protection given by Catharine and Sheela, Keith was assaulted on his right shoulder and left ear. Accused no.1 gave a tooth bite on his left hand elbow. Accused no. 1 to 6 were carrying sharp weapons like sword and knife as also dandas. PW 2 could not keep track as to which accused was carrying what weapon since his primary concern was to save the family members who were being assaulted. PW 2 then took the members of his family in the vehicle of Keith with the assistance of his friend and some students to GMC. Accused no. 3 and accused no. 23 5 were carrying dandas, accused no. 4 was carrying an iron rod, and accused no. 2 was carrying the sword and he cannot recall as to who was having knife. Since the vehicle of Keith was Armada Jeep, he had to arrange a driver to drive the same and requested one Pinto who is the driver by profession and who was available at the scene of offence. 2 was carrying the sword and he cannot recall as to who was having knife. Since the vehicle of Keith was Armada Jeep, he had to arrange a driver to drive the same and requested one Pinto who is the driver by profession and who was available at the scene of offence. PW 2 could see the incident in the street light which is very close to his compound wall besides the tube-lights which were burning in his veranda. 34. PW 2 has corroborated the oral report, Exhibit 24, on material aspects. This report was lodged by PW 2 on the very day of the incident, while he was in Goa Medical College Hospital, at Bambolim. The offence was registered by PW 21 on the same day by about 22.00 hours and accused nos. 1 and 2 were placed under arrest. Accused no. 3 was arrested on 18/7/2000 whereas efforts were made to arrest accused nos. 4 and 5 but as they were not found at their residence and also in the village, they could not be arrested. Accused nos. 4 and 5 filed application for anticipatory bail before the Sessions Court at Panaji, which was rejected on 30/9/2000. Accused nos 4 and 5 then surrendered before the police on 11/10/2000, and they were placed under arrest. The above is clear from the evidence of PW 21. 35. In his cross-examination, PW 2 stated that he had seen the 24 sword in the hand of accused no. 2 hardly from a distance of about five metres. He has stated that the projection on which Keith was made to sit was touching the outer wall of the veranda. He could not say as to whether the entire assault took place near the Rose bar or elsewhere since according to him he did not see that. He has stated that there are civil litigation between him and accused nos. 1 to 5. He has been confronted with the police statement where it is not recorded that the accused no.1 had dragged Sonia and was about to bang her head on stone by her hand when he went and rescued her. PW 2 has been put to lengthy cross-examination. However, he has stood firmly to the test of cross-examination. 36. PW 5, Sonia Fernandes is the sister of PW 4. PW 2 has been put to lengthy cross-examination. However, he has stood firmly to the test of cross-examination. 36. PW 5, Sonia Fernandes is the sister of PW 4. she has stated as follows: On 17/07/2000 at about 7.45p.m. to 8.00 p.m., she was studying in her house when she heard her sister screaming from out of the house. PW 5 came out of the house and saw that accused no.1 Anita was assaulting her sister Sheela while Sheela was trying to protect Keith (PW 3) who was being dragged by Rupesh and accused no. 2-Ajit, accused no. 3-Sadashiv and accused no. 4-Sudesh. Accused no. 1 then pulled her down the steps and in front of the house of Narahari Haldankar and also tried to bang her head on the steps but in the meantime her father (PW 2) came to save her upon which accused 25 no. 1 gave a tooth bite to the hand of PW 2 and there after PW 2 took her inside the house. PW 5 then telephoned police and subsequently learnt that her sister Sheela was stabbed on her hand, her mother Catharine was also assaulted and Keith (PW 3) was stabbed in his stomach. 37. Thus, PW 5 has included accused no. 3 also in the incident of dragging PW 3, which has not been done by PW 4. She had not seen PW 4 being stabbed on her hand or her mother(PW 9) being stabbed and even Keith (PW 3) being stabbed in his abdomen. She could not state as to how Keith was being dragged. In our view, since PW 5 is the sister of PW 4, she could have posed herself as an eye witness for the entire incident. The fact that she states of not having seen some events and the fact that there are some discrepancies in her evidence if compared to that of others, itself shows her truthfulness. 38. PW 9, Catherine Fernandes, is the mother of PW4 she has deposed as follows : On 17/07/2000 at around 8.00 p.m., she was in her house at Pomburpa along with her husband and daughter Sonia (PW 5) and sitting in the hall when she heard her daughter Sheela (PW 4) shouting for help outside the gate of house. 38. PW 9, Catherine Fernandes, is the mother of PW4 she has deposed as follows : On 17/07/2000 at around 8.00 p.m., she was in her house at Pomburpa along with her husband and daughter Sonia (PW 5) and sitting in the hall when she heard her daughter Sheela (PW 4) shouting for help outside the gate of house. On hearing her shout, her husband, Sonia and she came our of the house and she saw that Keith was being 26 dragged with a bicycle chain in his neck by accused No.5 while accused no.1 and accused No. 3 were assaulting him with wooden danda while accused no. 2 and accused no. 4 were pushing Keith who was being dragged by Accused no. 5 towards Rose Bar. On reaching near their house, accused no. 3 and accused no. 1 went to their house and accused no.1 returned with a sword while accused no. 3 with a knife. Accused no. 3 gave the knife to accused no. 4 and accused no.1 gave sword to accused no.5. Accused No. 4 stabbed Keith with the knife on his stomach which was removed by accused no. 2 due to which there was bleeding. Accused no. 5 hit Keith on his back with a sword. While they were trying to help, accused no. 1 caught hold of her hair and banged her head on a roadside stone, whereas accused no. 5 assaulted her with a sword on her right hand causing her grievous injuries. er daughter Sheela came for her rescue and while she was going to save Keith, accused no. 1 caught hold of her hair and pushed her down. In the meantime accused no. 5 cut right hand of sheela with the sword causing her grievous injury due to which Sheela fell down unconscious. PW 9 shouted for help when people came upon which all the accused ran away. Kieth was made to sit near Rose Bar and her husband with the help of some people took Keith and Sheela to the hospital. Later on she was also taken to the hospital by the sarpanch Gokuldas and some persons from the locality. The dandas used by accused no. 3 and accused no. 1 to assault Keith were wooden 27 dandas, about a metre in length and half a metre in length approximately. Keith was wearing creamish colour shirt and a blackish colour pant. Later on she was also taken to the hospital by the sarpanch Gokuldas and some persons from the locality. The dandas used by accused no. 3 and accused no. 1 to assault Keith were wooden 27 dandas, about a metre in length and half a metre in length approximately. Keith was wearing creamish colour shirt and a blackish colour pant. 39. PW 9 has identified MO 7 to be a wooden danda used by either accused no.1 or by accused no. 3. She could not identify the other wooden danda which is MO5. She identified MO 6 as the same sword that was in the hands of accused no. 5 and MO 4 as the knife which was used by accused no. 4 to assault Keith. She also identified MO 9 as a shirt and pant worn by Keith. Though, in her examination-in-chief, PW 9 stated that she saw accused no 4 stabbing Keith and accused no.2 removing the knife, however, in her cross-examination, PW 5 stated that she only saw the removal of knife by accused no. 2. The version of PW 9 regarding the dragging of PW 3 and assaulting him at the same time does not tally with the version given by PW 4 and PW 5. She has been confronted with her police statement wherein there is no mention of cycle chain being used for dragging. Though PW 9 has identified MO 6 as the sword which was with accused no. 5, however, what is recovered from accused no. 5 is the sword which is MO 8. PW 9 has not stated about assault by accused no. 1 on her daughter Sonia or about tooth bite being given by accused no. 1 to her husband. She has admitted that certain facts stated by her in examination-in-chief and as pointed out to her in her cross-examination, were not recorded by the 28 police. The learned trial court, in paragraphs 49, 50 and 51 of the impugned judgment, has mentioned several aspects about the deposition of PW 9, which according to him, render the testimony of PW 9 unreliable. The learned trial court, in paragraphs 49, 50 and 51 of the impugned judgment, has mentioned several aspects about the deposition of PW 9, which according to him, render the testimony of PW 9 unreliable. In our view, when there are five or more assailants and similar number of persons receiving injuries at their hands and the incident occurs at night time, it cannot be expected that the witnesses who are at the receiving hand would be in a position to see each and every fact and to depose to it without any mistake. 40. PW 3 is the main victim namely Keith D'souza. He has deposed as follows: He knows George (PW 2), his wife Catharine, daughters Sheela and Sonia and he also knows all accused persons except accused no. 6 since they are neighbours of PW 2. On 17/07/2000 he had dropped Sheela at the gate of her house around 7.30 to 8.00 p.m. and then he was proceeding to go to his house at Siolim, Pereirawaddo and was driving an Armada Jeep. From the rear mirror, he saw commotion involving accused no. 5 and Sheela due to which he reversed his vehicle and parked the same and got down and went to the spot which was at a distance of hardly half a metre from the gate of the house of PW 2. He saw accused no. 5 demolishing the fence of the house of PW 2 along with his sister that is accused no. 1. This fencing was of iron mesh, fixed to iron poles. He saw that the accused no.1 29 and accused no. 5 were removing the said fencing and therefore he asked them as to why they were demolishing the ame. During the commotion he saw three other persons coming towards him out of which he could recognize accused no. 2 and accused no. 4 and another person who came with knives and swords in their hand. In the meantime, he found himself being dragged by cycle chain to a distance of about half a meter which was followed by a piercing pain in his abdomen after which he passed out. After he was semiconscious, he realised that he was put on some sort of platform and thereafter in the same semiconscious state being put into his jeep and taken to the hospital. After he was semiconscious, he realised that he was put on some sort of platform and thereafter in the same semiconscious state being put into his jeep and taken to the hospital. He was in the hospital at Goa Medical Collage for about 25 days as indoor patient, which was followed by regular check up on weekly basis to the surgeon. He sustained injuries to abdomen, left ear, left index finger, right knee cap and back. He also sustained injuries towards the back of his right shoulder. 41. PW 3 speaks about the presence of accused nos. 1 to 5 at the spot with some weapons. He saw accused nos. 1 and 5 damaging the fence. He aw accused nos. 2 and 4 and another person with knife and sword. But he did not state the specific part played by each one of the accused nos 2, 3 and 4. Merely because PW 3 could not state as to who out of the accused nos. 1 to 5 assaulted him and others, it cannot be said that he was not present there or that somebody else had 30 assaulted him. Presence of accused nos. 1 to 5, at the spot and at the relevant time, is proved beyond doubt. There is no evidence that any person other than accused persons had taken part in the incident. It is duly proved that PW 3 had sustained grievous and dangerous injuries by means of knife or sword. If somebody else had assaulted him, then PW 3 had no reason to conceal their names and identity. 42. PW 8, Maria Rodrigues is one of the neighbours of PW 4 and her family members and of the accused nos. 1 to 5. She has deposed that her house is about 5-6 metres away from that of George (PW 2) and that she know all the accused. She has stated that accused nos.1 to 5 are her neighbours whereas accused no.6 is son-in-law of that house. She has deposed as follows : About a year back and on 17th July, at about 7.45 p.m., she heard loud noise, coming from the side of Rose Bar and on hearing the shouts, she came out running and saw accused no. 5 assaulting Sheela (PW 4) with a sword on her left forearm due to which her flesh was seen loosely hanging. PW 8 asked accused no. 5 assaulting Sheela (PW 4) with a sword on her left forearm due to which her flesh was seen loosely hanging. PW 8 asked accused no. 5 as to what he was doing, after which accused no. 5 ran away. PW 8 took a dupatta from Sheela (PW 4) and tied it around the forearm of PW 4 which was injured. She saw Keith (PW 3) sitting on a bench outside Rose Bar with injuries on his abdomen. Accused no. 2 had a small knife with which he had assaulted Keith (PW 3). Accused no. 3 assaulted Catharine with 31 knifeon her fingers due to which her finders were hanging and there was bleeding. Accused no. 1 gave tooth bite to George (PW 2) on his right hand which had left the bite marks. One Gokulkdas Halarnkar, Pinto, Robert Gomes, Eddy Pereira lifted the injured in the jeep of Keith and took them to hospital. At the time of incident, the lights of Rose Bar, her house that of George and also street lights were burning. Accused nos. 5 and 6 ran away from the spot on the arrival of the police jeep about 15 minutes later whereas accused nos. 1 to 4 went inside the house. PW 8 had previously lodged complaint against accused nos. 2, 3 and 5 at Porvorim Police Station in respect of the incident which had taken place on 04/05/2001 at 10.30 p.m. on account of stones being thrown by them on the roof of their house due to which 30 roof tiles were damaged. All the accused persons had given threats saying that they would teach her a lesson for having acted as a witness in the present case. 43. It is pertinent to note that when PW 8 was shown the knife MO 5 she could not identify the same. When the swords Mos 6 and 8 were shown to her she stated that they are not the same which she had seen on the day of incident. Few omissions and contradictions have been marked with regard to the role played by accused nos. 1 and 3 and other accused persons. But the relations of PW 8 were good with accused persons and hence she had no reasons to falsely implicate the 32 accused persons. 44. Few omissions and contradictions have been marked with regard to the role played by accused nos. 1 and 3 and other accused persons. But the relations of PW 8 were good with accused persons and hence she had no reasons to falsely implicate the 32 accused persons. 44. PW 17 Lucy Fernandes is the owner of Bar by name Rose Bar which is about 50 metres away from the house of George Fernandes (PW 2) and of accused nos. 1 to 5. PW 17 has deposed that she is running the said Bar personally between 5.00 p.m. till about 9.30 to 10.00 p.m. She has stated that more than two years back at about 7.30 p.m. she heard the sound of cow and buffalo being assaulted and she told one customer who was present at the shop to find out about the said sound and in the meantime she heard screams of Sheela, daughter of George (PW 2). She further stated that wife of George brought one person and made him to sit on the bench out side the Bar in the gallery and subsequently she learnt that the said person was fiancee of Sheela. According to PW 17 the said persons was having bleeding injuries in his stomach area. She brought local liquor (Coconut Feni) and put it on his injury and sprinkled the soda water on his face. According to PW 17, the said person was not in a position to talk and appeared drowsy. She has stated that after the injured person was taken away from her bar premises she wiped out the blood with a rag and the police collected the blood which had spilled on the wall. 45. PW 18, Arun Bhosle was a Security Guard and was on security duty from 14/07/2000 to 18/07/2000 at Pomburpa at the house 33 of George Fernandes(PW 2). He has stated as follows: His hours of duty were between 8 a.m. to 8 p.m. and there were two more security guards for the same duty at the house of George Fernandes and they were Amar and Rambahadur. Accused nos.1, 2 , 4 and 5 are the children of accused no. 3 whereas accused no. 6 is the son-in-law of accused no. 3. Accused nos.1, 2 , 4 and 5 are the children of accused no. 3 whereas accused no. 6 is the son-in-law of accused no. 3. The accused nos.1 to 5 had S.T.D. booth in their house, besides a grocery shop and they used to reside in the rear portion of their house. Accused nos. 1 to 5 have their house by the side of the house of George Fernandes. Accused nos. 1 to 5 used to give abuses and threats whenever they used to go to the house of George. On 16/07/2000 at about 6.30 p.m. accused no. 6 obstructed his path with his red colour Suzuki while he was going on his motorcycle bearing no. GA-01-K-3600 near Alvares Bar and General Stores and told him that he would pay him and the other two security guards Rs. 10,000/- and that they should go away from their duties and should not interfere or else things would not be good for them. When he told accused no. 6 that he was doing his security guard duty, accused no. 6 charged towards him angrily and further told him that he should go away. On 17/07/2000 when he reported for duty at the house of George at about 8 a.m. as also the other two security guards Amar and Ram bahadur, he kept the other two security guards on duty: one in the front portion and other at the rear side and left for Panaji at around 9 to 9.30 hours since he had some work in the Head Office. On 34 reaching near the garage which is about 5 to 10 minutes driving distance from the house of George, he saw accused no. 6 who was following him. Accused no. 6 again put his motorbike on his way and then started abusing with filthy words. PW 18 did not respond to his abuses and reported about the same at Head Office and came back for duty at the house of George at around 11.15 hours. At around 8.00 p.m. he told other two security guards to go by bus and that he had his own motorbike. While PW 18 was making preparation to go, he saw that accused nos. 1, 2 and 3 were removing the fencing of wire mesh which was near the house of George. At around 8.00 p.m. he told other two security guards to go by bus and that he had his own motorbike. While PW 18 was making preparation to go, he saw that accused nos. 1, 2 and 3 were removing the fencing of wire mesh which was near the house of George. George told him to go behind and check the fencing and in the meantime the elder daughter of George came along with her fiance in an Armada jeep. The said daughter of George got down from the jeep and asked accused nos. 1 to 3 as to why they were demolishing the fencing and called out her sister Soniya to bring a camera. At that time accused nos. 1, 2 and 3 assaulted the said elder daughter of George. One of them assaulted with a danda. Accused nos. 1 and 3 caught hold of her hair and pushed her in the gutter and in the meantime her fiance came to the spot and asked them why they were assaulting her. Soon thereafter accused nos. 1 and 3 went inside the house and returned with a knife and big sword. Accused no. 4 put an iron chain around the neck of the fiance of the elder daughter of George and he was then pulled. 46. PW 18, however, could not state as to who pulled the said fiance and according to him all the accused were present at the spot. He stated that he did not see as to who assaulted the family members of George but he knows that they were all injured. He could not say as to which of the accused persons assaulted the family members of George and his prospective son-in-law. He saw that said son-in-law of George was taken to the bar nearby and was being revived by soda water. Said son-in-law had injuries on front portion which were sharp cut injuries and were bleeding. 47. PW 18 is an independent witness and has no reason to state about the presence of accused nos. 1 to 4 at the spot when PW 2, his family members and PW 3 received serious injuries. 48. PW 20 Sherlina Vaz Fernandes has a business of providing security service under the name and style “Cobra Personnel and Intelligence Services”. 47. PW 18 is an independent witness and has no reason to state about the presence of accused nos. 1 to 4 at the spot when PW 2, his family members and PW 3 received serious injuries. 48. PW 20 Sherlina Vaz Fernandes has a business of providing security service under the name and style “Cobra Personnel and Intelligence Services”. She has deposed as follows: George Fernandes had contacted her son in Margao for providing security services and her son referred him to Panaji Officer. An agreement was entered into on 04/07/2000 which is at Exhibit 129. Arun Bhosale(PW 18) was an employee in their firm from 1998 till the end of 2002. Exhibit 115 is a copy of identity Card of PW 18. George was provided security as from 14/07/2000 and which continued till the 36 date of her deposition. Apart from PW 18 who was incharge of security, two security guards namely Amar Bahadur and Ram Bahadur were also posted on duty at the house of George Fernandes and working hours were between 8.00 a.m. to 8.00 p.m. The security guards were provided accommodation in the vicinity of the premises where they were deputed for security duties. Exhibit 130 is the Certificate issued by PW 20 and Exhibit 131 is a report made by PW 18. The certificate issued to PW 18 which is at Exhibit 130 was also recorded by her in the Outward Register as on 18/07/2000. Photo copy of the extract of the Outward Register is at Exhibit 132. One Francis Fernandes was the Field Officer for Pomburpa – Betim area who had to take two rounds in a day once during the morning and one during the nights to see the functioning of the guards. The evidence of PW 20 duly confirms that PW 18 was posted as security guard at the house of PW 2 during the relevant days. 49. Then, there are various panchanamas drawn by PW 21. 50. PW 1, Golukdas Halarnkar, acted as one of the panch witnesses for the panchanama of scene of offence and a sketch drawn on 18/07/2000, by PW 21. He has stated that they were taken to a place at Palmar waddo, Pomburpa and opposite the house of one Diago, they were shown some blood on the wall. 50. PW 1, Golukdas Halarnkar, acted as one of the panch witnesses for the panchanama of scene of offence and a sketch drawn on 18/07/2000, by PW 21. He has stated that they were taken to a place at Palmar waddo, Pomburpa and opposite the house of one Diago, they were shown some blood on the wall. He has stated that 37 they were shown the fencing to the compound which was between the house of one George Fernandes and Sadashiv Parab. This fencing was of cement poles and to which net was fitted. He has stated that the said fencing was of two and half metres in length and about a metre in height. According to PW 1, the poles along with the net were in a dismantled condition. One slipper was found on the main road in front of the house of George Fernandes and Sadashiv Parab at a distance of about 2- 3 metres. This slippers was of leather. He has stated that on the right hand side of the house of George Fernandes, as one stands on the road facing the house, they saw one Bar of Lucy and on the front wall of the bar, they noticed blood stains at two places. The scrapping was taken by the police, packed and sealed. He has also stated that the police drew a panchanama and a sketch and obtained his signature as well as signature of the other panch. He has identified his signature on the Panchanama and the sketch which is at Exhibit–20. Thus, the panchanama proved by PW 1 proves that some incident had occurred at the house of PW 2 since the fencing was damaged. It proves that some incident had also occurred near the Rose bar. 51. PW 6 Suresh Babu was working as Senior Scientific Officer with CFSL Hyderabad. He has deposed that on 02/11/2000 he received seven sealed parcels from Porvorim Police Station in Crime No. 90/2000. Each of them were intact and sealed. He opened the seal 38 parcels and found stained wall scrappings and control wall scrapping. According to him human blood was detected on the wall scrappings. The blood was also detected on knife and sword. However, blood group could not be detected. The examination reports of CFSL are at Exhibit- 54 – Colly. The above evidence strengthens the case of the prosecution. 52. According to him human blood was detected on the wall scrappings. The blood was also detected on knife and sword. However, blood group could not be detected. The examination reports of CFSL are at Exhibit- 54 – Colly. The above evidence strengthens the case of the prosecution. 52. PW 1 has also acted as a panch witness in another panchanama of recovery of knife. PW 1 has stated that on 22/07/2000 a panchanama was conducted near the house of George Fernandes and Sadashiv Parab and accused no. 2-Ajit were in the jeep. He stated that they had come to the spot after Ajit was taken to his house. PW 1 has stated that he went along with them to the house of accused no. 2. According to PW 1, accused no. 2 led them to his house and brought a knife from the kitchen room and gave it to the police. He has described the said knife as about 12-14 inches in length approximately with the handle of about 2 inches in length approximately of plastic and the balance length of the blade. The said knife was packed and sealed. The recovery panchanama is at Exhibit-21. 53. PW 7 N. R. Shankpal is also a General Scientific Officer at CFSL, Hyderabad. He has deposed that he received three sealed parcels from Biology Division, CFSL Hyderabad in FIR 90/2000, on 19/01/2001 and that he opened them on 15/01/2001. On opening 39 Exhibit-5, he found one knife of stainless steel having black hard plastic handle and metallic blade with pointed end and sharp edge on one side. The parcel at Exhibit–6 contained a rusted and stained metallic knife stated to be sword having an arch shaped pointed end and sharp edge on one side. Exhibit-7 contained one dirty white self designed line full sleeved shirt with collar label “Wellfit Tailors” Panaji, Goa having cut mark and one stained black colour white lined pant having cut mark. According to PW 7 the said cut marks on the shirt and the pant could have been caused by sharp edge tool. However he could not said that the said cut marks may have been caused by the knife Exhibit-5 or sword Exhibit-6. Exhibit-55 is the report prepared by PW 7. 54. According to PW 7 the said cut marks on the shirt and the pant could have been caused by sharp edge tool. However he could not said that the said cut marks may have been caused by the knife Exhibit-5 or sword Exhibit-6. Exhibit-55 is the report prepared by PW 7. 54. PW 11–Francis Fernandes acted as one of the panch witnesses for panchanama of recovery of the danda drawn by PW 21 under section 27 of the Indian Evidence Act. He has deposed as follows: On 26/07/2000 at about 8.15 hours he had gone to drop his daughter to her college which is located opposite to Porvorim Police Station and at that time Police Inspector Raikar called him and requested him to act as a panch witness. One Furtado was already present there as the other panch witness and they were told that one accused in a case of attempt to murder from Palmar Pomburpa was in custody and would make a statement about the place where he had 40 hidden the articles. The said person was brought to the cabin of Police Inspector Raikar and when asked he gave his name and other particulars. The said person is accused no. 3. The accused no. 3 stated in konkani that he would show the danda which he had used to assault his neighbour George and which had been kept by him near the Gadda near his house. This part of the pancahnama was recorded by Police Inspector Raikar and their signatures were obtained. This part of the panchanama was drawn between 08.45 hours to 09.00 hours. Thereafter, they all sat in a police jeep and as per the directions of accused no. 3 they went towards Palmar near the house of accused no. 3 and all of them got down. Accused no. 3 entered his house and went to the right side where there was a Gadda. Accused no. 3 went to the rear side of the Gadda and removed the danda and handed it over to the Police Inspector Raikar. The said danda was about 2 feet long and about 3-4 inches in diameter on one side and on the other side 5-6 inches in diameter. The said danda was wrapped in brown paper and their signatures were obtained and it was then sealed. The said danda was about 2 feet long and about 3-4 inches in diameter on one side and on the other side 5-6 inches in diameter. The said danda was wrapped in brown paper and their signatures were obtained and it was then sealed. PW 11 has stated that the remaining part of the panchanama was then recorded at the house of accused no. 3. He has identified his signature on the said panchanama which is at Exhibit 77. He has also identified danda shown to him in the Court. 55. PW 11 has further stated that on 08/09/2000 he along with 41 Lazar D'souza acted as panch witnesses in another panchanama in the said case at the request of Police Inspector Raikar (PW 21). He has stated as follows: On 08/09/2000 they were coming to Alto Porvorim via Pomburpa at about 7.00 p.m. when they were stopped by Police Inspector Raikar near the house of Accused no.3 and they were told that Anita Parab had written a letter to the police which was delivered at Porvorim Police Station by her brother-in-law namely Narayan Gaonkar and went to the left side of their house where were was a old house and she removed two dandas and one chopper which were hidden beneath the grass. Accused no. 1 handed over the said weapons to Police Inspector Raikar and these weapons were put in brown paper packed and sealed and their signatures were obtained. He has identified his signature on the panchanama which is at Exhibit-78. He has also identified the weapons. 56. PW 15 Devidas Narvekar acted as one of the panch witnesses for panchanama of attachment of clothes of Keith D'souza. This panchanama was drawn on 21/10/2000 between 11.15 hours to 12.05 hours. According to PW 15, George Fernandes handed over a pant of dark grey in colour with stains of mud and besides brick colour. He has stated that the lower portion of the pant towards the ankles was totally soiled with mud and there were dark colour stains and grown of 42 fungus on the pant. There were also reddish colour stains towards the rear side of the pant. According to PW 15, George Fernandes also produced a shirt of cream colour. He has stated that the lower portion of the pant towards the ankles was totally soiled with mud and there were dark colour stains and grown of 42 fungus on the pant. There were also reddish colour stains towards the rear side of the pant. According to PW 15, George Fernandes also produced a shirt of cream colour. The right sleeve of the shirt was missing and there was a tear at the shoulder blade and there was a cut mark to the front left lower portion of the shirt and it had label of Wellfit tailor. PW 15 has stated that the pant and shirt were put in a plastic bag and then in brown paper cover on which signatures were obtained and the said parcel was then sealed. Exhibit- 102 is the panchanama on which PW 15 had identified his signature. PW 15 has also identified the said shirt and the pant shown to him in Court as of Keith D'souza. 57. PW 16 Ashok Gad acted as one of the panch witnesses for panchanama of recovery of sword. He has deposed as follows : On 17/10/2000 he and Eknath Vengurlekar, working for Goa Board of Secondary and Higher Secondary Education Porvorim, acted as panch witnesses at the request of Police Inspector Raikar(PW 21) at about 11.50 hours. Accused no.5 Rupesh made a disclosure statement that Keith D'Souza was assaulted with the help of cycle chain, iron rods and swords and that he would show place where he had kept the said weapons used by him. This statement was made by accused no. 5 in konkani and was written in the body of the panchanama. PW 16 has identified his signature as well as the signature of accused on the said panchanama below the disclosure statement. He has stated that there 43 after all of them sat in the police jeep and accused no. 5 took them to his house at Pomburpa and got down from the jeep and took them towards the left side of the house where there was a demolished house and there were bushes and grass. From the said area, the accused no. 5 brought a sword which was rusted and pointed at one end and about 12-14 inches in length and the length of handle about 3-4 inches with a hole on the blade and two holes to the handle. From the said area, the accused no. 5 brought a sword which was rusted and pointed at one end and about 12-14 inches in length and the length of handle about 3-4 inches with a hole on the blade and two holes to the handle. The said sword was attached and packed and the said envelope was sealed. The panchanama ended at about 1.15 p.m. and the remaining part was written at the spot and signatures were obtained. PW 16 has identified his signature on the panchanama. He has also identified MO 8 as sword which was recovered at the instance of accused no. 5. 58. PW 21 Nandkishor Raikar is the Investigating Officer who conducted all the investigation and filed charge sheet against all the accused persons. 59. DW1 Clayton Fernandes is one of the Directors of Cobra Security Services. He is one of the sons of PW 20. He has been examined by the accused persons to prove that PW 18 Arun Bhosale was not in service of said Security Services in July 2000. According to DW 1, PW 18 was employed for two months only between May and June 2000 and did not have contract with their organization prior to May 44 2000 and after June 2000. But cross-examination of DW 1 by learned Public prosecutor reveals that there could be some other register wherein the name of PW 18 has been registered and of which he is not aware. He has identified the agreement Exhibit 129 which was entered into between his father and George Fernandes (PW 2). He has identified the identity Card, Exhibit 115, issued to PW 18. He has identified the certificate at Exhibit 130 as being issued by his mother (PW 20). he has also identified the daily situation report at Exhibit 131 as given by PW 18. Thus, DW 1 is not of any assistance to the accused persons and he was subsequently cross-examined by the learned counsel for the accused nos. 1 to 5, however nothing worth mentioning could be brought on record. 60. DW 2, DW 3, DW 4, DW 5, DW 6 and DW 7 are nof no use to the accused persons. 61. DW 8 is the accused no. 2 Ajit Parab. 1 to 5, however nothing worth mentioning could be brought on record. 60. DW 2, DW 3, DW 4, DW 5, DW 6 and DW 7 are nof no use to the accused persons. 61. DW 8 is the accused no. 2 Ajit Parab. He has deposed that he knows George Fernandes residing at Pomburpa and that his house is touching to the house of the said George Fernandes at Pomburpa. According to him, the relations between his family and the family of George Fernandes are not cordial and are strained since last more than 20 years and that there were about 10–12 civil matters pending between their family and the family of George Fernandes and many 45 complaints were filed by George Fernandes against them which were all false. DW 8 has stated that Keith D'souza (PW 3) used to visit the house of George Fernandes and he is originally from Siolim. The said Keith D'souza was would be son-in-law of George Fernandes at the relevant time. He has stated that the complaint filed against them is false and bogus and that George Fernandes has filed several such complaints against them in the last 20-25 years. He has stated that George Fernandes has secured properties by fraud and recently a complaint was lodged against him wherein he was arrested in Crime No. 164/06 of Mapusa Police Station. He has stated that no incident took place on that day as claimed by George Fernandes. He was not at all present at the relevant time but came to the house at about 8.00 p.m. At that time, the complainant George Fernandes came to their house and started saying that he will teach them a lesson since he was having a doubt in his mind that they had informed the rival group from Vasco about the presence of PW 3 in the house at Siolim. He has stated that thereafter at about 9.30 p.m. he and his sister were brought to the police station. He has stated that the belongings which he had in his pocket such as the ticket regarding the bus journey from Belgaum, the digital diary, some cash and other documents and cash were taken by the Police and he was placed under arrest. The above evidence of DW 8 in fact proves the presence of accused nos. 1 and 2 at the spot at the time of incident. The above evidence of DW 8 in fact proves the presence of accused nos. 1 and 2 at the spot at the time of incident. 62. Upon reassessment of the entire evidence on record, and on consideration of totality of the evidence, we are of considered opinion that there is a ring of truth in the evidence produced by the prosecution and the same is sufficient to hold the accused nos. 1 to 5 guilty of the offence punishable under Sections 143, 147, 148, 323, 326 and 427 read with Section 149 of the IPC. It is true that there is discrepancy about exactly what each one of the accused nos. 1 to 5 did. However, the evidence on record proves the presence of accused nos. 1 to 5 at the spot from the beginning till the causing of grievous injuries to PW 3, PW 4 and PW 9 and injuries to PW 2, at the spot. There is nothing to suggest the presence of any third person. The evidence of the witnesses on record with regard to the injuries sustained by PW 3 and others is duly corroborated by medical evidence. It is to be kept in mind that PW 3 was brought at the Rose Bar and was made to sit theirwith his back touching the wall. There is evidence on record given by the owner of the Bar that she has wiped out the blood. However the scrappings of the wall collected from the spot showed the traces of the human blood, as per the report of CFSL, Hyderabad. As per the said report of CFSL blood was also detected onthe shirt and pant of PW 3. We have no doubt in our mind that the accused nos. 1 to 5 are the persons who are responsible for assault on PW 3 with sharp weapon on his abdomen and causing him severegrievous injuries. Merely because PW 3 is from Pereirawado, Siolim 47and because in one of the medical certificates, inadvertently, history has been recorded as assault at Pereirawado, Siolim, which happens to be the residential address of PW 3, that does not mean that the incident of assault on PW 3 had taken place at Pereirawado, Siolim and that what has been narrated by prosecution witnesses that the incident took place at Pomburpa is false. When there is lengthy cross-examination there are bound to be some discrepancies. When there is lengthy cross-examination there are bound to be some discrepancies. If the prosecution witnesses in the present case were false, they could have very well manipulated the story by taking the names of particular accused person as having done particular act as both the parties were known to each other. The fact that they have not done so only shows that truthfulness. The plea of alibi taken by accused no. 2 could not be taken to any logical conclusion. When there is evidence of eye witnesses, recoveries etc are not very relevant even if some of them are not proved beyond doubt. 63. However, the fact which should be kept in mind is that the accused persons were not aware of the fact that PW 3 (Keith D'Souza) would be arriving at spot along with Sheela, on that night. There is no reason why accused persons would intend to kill PW 3. Unfortunately, on that particular day he happened to reach PW 4 at her house and got involved in the incident. It could never be said that the accused persons had any intention to kill PW 3 Keith. No doubt, grievous injury has been 48 caused to him with a sharp object but it is not proved that there was an attempt to commit his murder. In such circumstances, the accused persons cannot be held guilty of the offence punishable under Section 307 of I.P.C. However, since it is proved that grievous injury was caused to the abdomen of PW 3 by means of sharp dangerous weapon, Section 326 of I.P.C. Is certainly applicable. Similarly, grievous injury was also caused to Sheela and Catharine, by means of sharp weapon, due to which also Section 326 of I.P.C. is applicable as against the accused nos. 1 to 5. There are simple injuries sustained by George Fernandes and therefore Section 323 is also applicable. Damage caused to the fence is proved by the panchanama of the scene of offence and therefore Section 427 of I.P.C is also applicable. 1 to 5. There are simple injuries sustained by George Fernandes and therefore Section 323 is also applicable. Damage caused to the fence is proved by the panchanama of the scene of offence and therefore Section 427 of I.P.C is also applicable. Since the accused persons were five in number and had formed unlawful assembly with a common object of causing damage to the fencing and assaulting PW 2, his family members and PW 3 and since in prosecution of the said common object, the fence was damaged and witnesses were actually assaulted with the help of dangerous weapons, Section 143, 147, 148 and 149 of I.P.C. are also applicable. 64.In view of the above, the impugned judgment and order of acquittal is not sustainable and is perverse, insofar as accused nos. 1 to 5 are concerned. However, it can be said that there is no sufficient evidence as against the accused no. 6. Therefore, the impugned 49 judgment and order is liable to be set aside as against accused nos. 1 to 5. 65. The learned Counsel appearing for the parties were heard on the point of sentence. It is seen that the accused persons had remained in custody for a period spreading over 9 days to 30 days in all. It was contended by the learned Counsel appearing on behalf of the accused persons that the alleged incident had taken place in the year 2000 and since then the accused persons have been under going trauma of criminal proceedings. He further submitted that one of the accused is a woman; another is quite aged and yet another one is in Government service and would loose their service in case he is sent tojail now. According to him, therefore, if the accused persons are convicted, then the sentence of imprisonment which they have already under gone should be sufficient beside imposing some fine. Considering the evidence on record and facts and circumstances of the case, we are of the view that the sentence which follows should serve as sufficient punishment for the accused persons. 66. In the result, the appeal is partly allowed. (a) The impugned judgment and order is quashed and set aside in so far as accused nos. 1 to 5 are concerned. (b) Accused nos. 66. In the result, the appeal is partly allowed. (a) The impugned judgment and order is quashed and set aside in so far as accused nos. 1 to 5 are concerned. (b) Accused nos. 1 to 5 are held guilty and convicted of offence punishable under Sections 143, 147, 148, 323, 326 and 427 read with Section 149 of I.P.C. (c) Accused Nos. 1 to 5 are sentenced for the offence punishable under Section 326 read with Section 149 of I.P.C. to under go simple imprisonment for a period of 6 months and to pay fine of Rs. 5000/-each, in default to under go simple imprisonment for a period of one month. (d) Accused nos. 1 to 5 are sentenced for the offence punishable under Section 143 read with 149 of I.P.C to under go simple imprisonment for a period of one month and to pay fine of Rs. 500/- each, in default to under go simple imprisonment for 10 days. (e) Accused nos. 1 to 5 are sentenced for the offence punishable under Section 147 read with 149 of I.P.C to under go simple imprisonment for a period of one month and to pay fine of Rs. 500/- each, in default to under go simple imprisonment for 10 days. (f) Accused nos. 1 to 5 are sentenced for the offence punishable under Section 148 read with 149 of I.P.C to under go simple imprisonment for a period of 45 days and to pay fine of Rs. 500/- each, in default to under go simple imprisonment for 10 days. (g) Accused nos. 1 to 5 are sentenced for the offence punishable under Section 323 read with 149 of I.P.C to under go simple imprisonment for a period of one month and to pay fine of Rs. 500/- each, in default to under go simple imprisonment for 10 days. (h) Lastly, accused nos. 1 to 5 are sentenced for the offence punishable under Section 427 read with Section 149 of I.P.C to under go simple imprisonment for a period of one month and to pay fine of Rs. 500/-each, in default to under go simple imprisonment for 10 days. (i) All the substantive sentences shall run concurrently. (j) The period during which each one of the accused nos. 500/-each, in default to under go simple imprisonment for 10 days. (i) All the substantive sentences shall run concurrently. (j) The period during which each one of the accused nos. 1 to 5 remained in custody shall be set off as provided by Section 428 of Cr.P.C. 52 (k) Out of the fine amount, if recovered, an amount of Rs. 15.000/- shall be paid to the family of PW 2, as compensation. (l) Muddemal properties shall be dealt with as per the order of the trial Court. (m) Accused nos. 1 to 5 shall surrender before the trial Judge, within a period of 60 days from today.