Case Note & Summary
The High Court of Bombay at Goa heard cross-appeals arising from the judgment of the Additional Sessions Judge, Mapusa, in a murder case. The prosecution alleged that on 20 January 2013 at 00:15 hours, fourteen accused persons, led by Rupesh Salgaonkar (accused No.1), hatched a criminal conspiracy and formed an unlawful assembly armed with weapons like a hammer. They assaulted Nilesh Pomburpekar and his companions over a dispute regarding the erection of a shed at Matarajeshwar Devasthan. During the assault, accused No.1 struck Arun Toraskar on the head with a hammer, causing fatal injuries. The trial court framed charges under Sections 302, 120B, 143, 147, 148, 504, 323 read with 149 of the Indian Penal Code, 1860. After examining seventeen prosecution witnesses and two defence witnesses, the trial court acquitted accused Nos.2 to 14 of all charges, giving them the benefit of doubt on the element of common object and criminal conspiracy. However, it convicted accused No.1 under Section 304 Part I IPC (culpable homicide not amounting to murder) and sentenced him to ten years rigorous imprisonment and fine. Accused No.1 appealed against his conviction, arguing that the case fell under Section 304 Part II or that he should be acquitted, contending that the group of the deceased had initiated the confrontation, that the investigation was motivated and biased, that the recovery of the hammer under Section 27 of the Indian Evidence Act was suspicious, and that the eyewitnesses were interested and unreliable. He also pointed to unexplained injuries on the accused, questioning the prosecution version. The State appealed seeking to enhance the conviction of accused No.1 to Section 302 IPC (murder) and to reverse the acquittals of the remaining accused, arguing that the evidence proved a pre-planned attack by an unlawful assembly with fatal injury intentionally caused. Legal issues raised included the nature of the offence, the scope of common object and conspiracy, the credibility of evidence, and the standards for appellate review of acquittals. The text of the judgment as provided ends with the submissions of counsel; the final analysis, reasoning, and decision of the court were not included in the extracted material.
Headnote
A) Criminal Law - Criminal Conspiracy and Common Object - Sections 120B, 143, 147, 148, 149 of Indian Penal Code, 1860 - The prosecution alleged that all accused hatched a criminal conspiracy and formed an unlawful assembly to assault the complainant and his companions over a dispute about a shed. The trial court acquitted accused Nos.2 to 14, giving them the benefit of doubt on the aspect of common object. The State appealed arguing pre-planned attack, while defence argued lack of evidence of knowledge or common intention. (Paras 2-5, 9)
B) Criminal Law - Murder vs. Culpable Homicide - Sections 302, 304 Part I and Part II of Indian Penal Code, 1860 - The trial court convicted accused No.1 under Section 304 Part I for a fatal hammer blow. The State contended that the injury was fatal in the ordinary course of nature and the case was one of murder. The defence argued that at most it was culpable homicide under Part II, given the sudden fight and lack of premeditation. (Paras 4-5, 7-8)
C) Evidence - Credibility of Witnesses and Recovery - Section 27 of Indian Evidence Act, 1872 - The defence challenged the prosecution witnesses as interested and the recovery of the hammer under Section 27 as suspicious, citing partisanship of panchas and unexplained injuries on the accused. The State argued that eyewitness testimony was credible and the recovery valid. (Paras 6-8)
D) Criminal Procedure - Appeal Against Acquittal - Code of Criminal Procedure, 1973 - The State sought reversal of acquittal of accused Nos.2-14, arguing perversity in the trial court’s judgment. The defence contended that there was no perversity and the benefit of doubt was justified. (Paras 5, 9)
E) Criminal Law - Investigation and FIR Irregularities - Section 161 of Code of Criminal Procedure, 1973 - The defence argued that the FIR was not based on a complaint but on a telephonic information, making it a statement under Section 161 CrPC, which affected the investigation’s integrity. (Paras 8-10)
Issue of Consideration
Whether the trial court correctly convicted accused No.1 under Section 304 Part I IPC and acquitted the other accused, and whether the conviction should be altered to Section 302 IPC.
Final Decision
Not mentioned in the provided text.
Law Points
- criminal conspiracy
- common object
- unlawful assembly
- murder
- culpable homicide
- burden of proof
- benefit of doubt
- interested witnesses
- recovery under Section 27 of Indian Evidence Act
- appeal against acquittal
Case Details
2019 LawText (BOM) (09) 145
CRIMINAL APPEAL NO. 20 of 2017 WITH CRIMINAL APPEAL NO. 38 OF 2017
M. S. Sonak, Nutan D. Sardessai
S.G. Desai, Pavithran A.V., Rohan Desai, S.R. Rivankar, Arun De Sa
Mr. Rupesh Salgaonkar; State of Goa
State of Goa; Mr. Rupesh Salgaonkar and 13 Others
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Nature of Litigation
Criminal appeals against conviction and acquittal arising from a murder trial.
Remedy Sought
Accused No.1 sought to set aside his conviction under Section 304 Part I IPC; the State sought conviction under Section 302 IPC for all accused and reversal of the acquittals of accused Nos. 2 to 14.
Filing Reason
Dissatisfaction with the trial court's decision that convicted only accused No.1 for culpable homicide not amounting to murder and acquitted the remaining accused.
Previous Decisions
The Additional Sessions Judge, Mapusa, convicted accused No.1 under Section 304 Part I IPC with a sentence of 10 years rigorous imprisonment and fine, and acquitted accused Nos. 2 to 14 of all charges.
Issues
Whether the trial court erred in convicting accused No.1 under Section 304 Part I IPC instead of Section 302 IPC or a lesser offence.
Whether the prosecution proved criminal conspiracy and common object beyond reasonable doubt to convict the other accused.
Whether the State's appeal against acquittal of accused Nos. 2 to 14 should be allowed.
Whether the investigation and evidence, including recovery under Section 27 of the Evidence Act, were tainted or unreliable.
Submissions/Arguments
State argued that all accused had a common object and hatched a conspiracy, and that the hammer blow was fatal in the ordinary course of nature, constituting murder under Section 302 IPC.
Accused No.1 contended that the deceased's group initiated the confrontation, the investigation was motivated, the recovery of the hammer was suspicious, and the eyewitnesses were interested. He argued that at most the offence fell under Section 304 Part II.
Accused Nos. 2,7,11,12,13 argued that there was no common object or knowledge of the weapon, the genesis of the incident was suppressed, and the appeal against acquittal should be dismissed as no perversity was shown in the trial court's judgment.
The State also relied on the consistency of eyewitness testimony and the medical evidence to prove murder, while the defence highlighted unexplained injuries on the accused and lapses in the FIR registration process.
Ratio Decidendi
Not mentioned in the provided text.
Judgment Excerpts
The Criminal appeal No.20 of 2017 is at the instance of the lone accused who has been convicted by the learned Additional Sessions Judge, Mapusa for the offence punishable under Section 304 Part I IPC instead of Section 302 IPC amongst others while the Criminal Appeal No.38 of 2017 is by the State challenging the conviction of the lone accused No.1 Rupesh under Section 304 Part I IPC and praying for a conviction under Section 302 IPC amongst others and besides seeking a reversal of the judgment of acquittal qua the accused Nos.2 to 14 and a conviction under Section 302 IPC r/w. Sections 120B, 143, 147, 148, 504, 323 r/w. 149 IPC.
It was the case of the prosecution that sometime on 20/01/2013 at 00.15 hours at Bailoyee, Tisk, Dando Siolim all the accused persons No.1 to 14 hatched a criminal conspiracy acting in furtherance of their common object, formed an unlawful assembly armed with deadly weapons like hammer etc. and assaulted the complainant Nilesh Pomburpekar and his friends with kicks and fist blows thereby causing injuries to them, abused them with filthy words over the issue of the erection of the shed at Matarajeshwar Devasthan, Dando and furthermore the accused no.1 Rupesh assaulted Arun Toraskar with a hammer on his head causing him serious injuries resulting in his death thereby committing the offence of murder punishable under Section 302 IPC.
Procedural History
The case originated from an incident on 20 January 2013. The police filed a charge sheet, and the Additional Sessions Judge, Mapusa, framed charges against all 14 accused under various sections of the IPC. The accused pleaded not guilty. The prosecution examined 17 witnesses, and the defence examined two. The trial court convicted accused No.1 under Section 304 Part I IPC, sentencing him to 10 years rigorous imprisonment and fine, and acquitted accused Nos.2-14, giving them the benefit of doubt on the conspiracy and common object aspects. Accused No.1 appealed his conviction, and the State appealed the acquittals and sought enhancement of conviction to Section 302 IPC. The High Court heard both appeals together.
Acts & Sections
- Indian Penal Code, 1860: 302, 304 Part I, 304 Part II, 120B, 143, 147, 148, 504, 323, 149
- Code of Criminal Procedure, 1973: 161
- Indian Evidence Act, 1872: 27
