Holding

The conviction under Section 302 IPC is set aside and the appellant is convicted under Section 304 Part II IPC.

Summary

Camilo Vaz was part of a gang of seventeen accused tried for the murder of Sub‑Inspector Simon Fernandez and the attempted murder of his brothers during a violent clash between rival village groups. The Sessions Court convicted five, including Vaz, of murder under Section 302 read with Sections 120‑B and 149 IPC and sentenced him to life imprisonment. The High Court upheld this murder conviction. The Supreme Court examined the evidence and held that while Vaz struck the deceased with a danda causing death, he lacked the intention to kill and only had knowledge that death was likely, making the appropriate charge Section 304 Part II IPC. Accordingly, the Court set aside the murder conviction, substituted it with culpable homicide not amounting to murder, and imposed seven years rigorous imprisonment and a fine of Rs. 50,000. The appeal was partly allowed.

Issues considered

The appellant’s act of striking the deceased with a danda constitutes murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part II.
Whether the presence of Section 149 IPC (unlawful assembly) and Section 120‑B IPC (criminal conspiracy) justifies a murder conviction.
Whether the prosecution proved the requisite intention to cause death or only knowledge that death was likely.
Whether the death was caused by the appellant’s blow or by a stone as alleged by the defence.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 120-B, s. 140, s. 143, s. 144, s. 148, s. 149, s. 302, s. 304(Part II), s. 307, s. 325, s. 326

Subjects

murderculpable homicide not amounting to murderSection 302 IPCSection 304 Part II IPCunlawful assemblycriminal conspiracyintention vs knowledgeSupreme Court of Indiasentencing

Judgment

A CAMILO VAZ
v.
STATE OF GOA

APRIL 10, 2000

B [D.P. WADHWAAND RUMA PAL, JJ.]

Criminal Law :

Penal Code, 1860-Sections 302r!w120-B, 149, Sec. 307 r/w. 120B and
149, 143, 148 r!w 120B & 149-Appellant tried along with 17 accused for
c assaulting three persons-One died as a result of head injuries-Five includ-
ing appellant convicted by Sessions Court on all offences-On appeal High
Cou11 confirmed conviction and sentence imposed on Appellant-All the other
four convicted under S.326-Sentences reduced to one already undergone-,-
Blow likely to cause death-No intention to commit murder-Conviction
D under S.302 set aside-Held, in the circumstances offence would fall under
S.304 Pan II only-Conviction and sentence modified.

The Appellant alongwith 17 accused were tried for offences under
Sections 302, 307, 325, 326, 143, 144, 140 IPC read with Section 149 and
Section 120-B IPC for having co.mmitted the murder of one 'S' and for
E
attempting to murder his brothers namely PW-6 and PW-8. The murder
was a result of a fracas between the boy& of two neighbouring villages.
i I
. I

Sessions Court convicted five of them including the Appellants
holding them guilty of murder of 'S' under Section 302 read with Section
F 120-B and 149 IPC, Section 307 read with Secti,ms 120-B and 149 IPC and
they were also held guilty of unlawful assembly under Section 143 and
rioting under Section 148 read with Sections 120-B and 149 IPC. For
these offences they were respectively sentenced to life imprisonment, 7
years imprisonment and 2 years imprisonment. No separate sentence
was passed for an offence under Section 143 IPC.
G
According to PW-4 injuries found on 'S' could.be caused by stick as
also by bottles. He felt that in this case the object might be having ~ultiple
rough and irregular edges because there were multiple injurj~. He said
such edges were absent in bottles and sticks and injuries coulcl1 "therefore,
H had been caused by stone. He was unable to say if injuries on 'S' could '"
1088

I
CAMILO VAZ v. STATE 1089
have been caused by throwing of a stone of about half a kg. weight. He A
said injuries on 'S' were several but localised in one region mainly on the
left side of the forehead. Statement of PW-4 has been severally criticised
by the Sessions Court.

According to the Sessions Court the fracas, which occurred between
these two rival gangs on the nights of 1.5.1993, 2.5.1993 and 4.5.1993 had B
been duly established. The Sessions Court was of the opinion that when
the case rested on the direct evidence failure of the prosecution to prove
the motive was not of much significance.

Trial Court held that from the evidence led by the prosecution, it
had been established that the assault on 'S' was made by the appellant and
c
accused No. 16. Trial Court said that when there is assault by a large
group of persons, it is not possible to get corroboration from the witnesses
to see as to what assault was made by each of the accused. Trial Court was,
however, of the opinion that the prosecution had been able to establish
that it was the Appellant who was the author of the injury No. 1 on the D
person of deceased 'S' underneath which there were fractures, which was
sufficient in the ordinary course of nature to cause death. It was said that
the danda blow was thus given with force on the head which is vital part
'l
of the body. Trial Court described injuries 2 to 5 and 9 on account of kicks
given to deceased by accused No. 16. Cause of injuries No. 10 and 11
E
could not be established. Those had been caused by sharp and blunt
weapons including danda. Trial Court further held that it was accuse~
No. 5 who assaulted PW-8 on his head. There were two injuries on the
parietal regions found by PW-4 one of which had been caused by accused
No. 5 and other by accused No. 7. Trial Court further held that the
Appellant, accused No. 5, accused No. 7 and accused No. 15 assaulted F
PW-6 and caused injuries to him.

All the five accused appealed to the High Court against their con-
viction and sentence. High Court maintained the conviction and sentence
of the Appellant under Section 302 IPC. Other four accused were con-
victed under Section 326 IPC and their conviction for offence under
G
Section 302 and 307 IPC were set aside. Their sentences were reduced to
the imprisonment they had already undergone. High Court also rejected
the alternate plea of the Appellant that on the facts of the case there could
be conviction only for an offence under Section 304, Part-I or Part-II,
JPC. H
1090 SUPREME COURT REPORTS [2000] 2 S.C.R.
A High Court held that the appeals of accused Nos. 5, 7, 15 and 16
succeeded so far as the prayer for bringing out their case from the pur-
view of Section 149 IPC in relation to the principal charge of murder
under Section 302 IPC is concerned. High Court then set aside the order
of conviction under Section 307 IPC against the said accused. The High
Court upheld the conviction of accused Nos. 5, 7, 15 and 16 for the rest of
B
the offences as held by the Trial Court and conviction of accused No. 1
(the appellant) made under Section 302 IPC.

In appeal to this court the Appellant contended that First Informa-
tion Report lodged by PW-8 on the morning of 5.5.1993 did not implicate
c
-
the Appellant as the one having caused head injury on 'S', that according
to PW-8 himself it was he who was hit by the Appellant and he fell
unconscious and that on that very day in the evening when further
statement of PW-8 was recorded he clarified that head injury was caused
on 'S' by the Appellant and explained the discrepancy which crept in the
FIR (PW-8/A) by saying that since his brother was in serious condition he
D was worried.

Allowing the Appeal in part, the Court

HELD : 1. The explanation given by PW-8 has been accepted by
both the Courts and there is no reason to take a different view. Both PW-8
E and PW-6 have said that the Appellant had caused the bead injury which
resulted in the death of 'S'. After the statement of PW-4 prosecution did
try to improve upon their version when it brought in the story of stone hit
on the head of 'S' in the deposition of two witnesses. This theory of 'S'
being hit by stone and the statements of those eye witnesses were, however
F rightly discarded by the trial court. [ 1097-B-C]

2. When the Khareband boys came to the house of 'S' and his two
brothers led by the Appellant they did not come with the intention to kill
anyone. They were not armed with any particular weapon to commit the
murder. There was a rivalry between them_ during the Arlem Festival and
G there were minor fracas. In fact, the rivalry existed even much prior.
They came to the house of 'S' and his brothers not to commit murder but
to thrash them. It has not been possible to say as to what transpired at the
Arlem Festival on the night of 4.5.1993 when they came to the house of
'S' and his brothers. Only one of the brothers, namely, PW-6 had gone to
H attend the festival and returned around midnight. The brothers are from
CAMILO VAZ v. STATE 1091
Calconda. These boys of Khareband who came to the house of the three A
brothers, were armed with dandas, bottles and cycle chains. The purpose
apparently was to beat up the brothers by giving them sound beatings but
certainly not with any intention to kill anyone of them. In fact PW-8 in
his First Information Report to the Police had stated that there was no
enmity between them. In these circumstances, it cannot be said that the
B
Appellant has committed the offence or murder because he hit 'S' on the
head, a vital part or the body, with such a force with danda in his hand
that 'S' fell unconscious and later succumbed to his injury. It can be said
that the act of the Appellant in hitting 'S' was done with the knowledge
that it was likely to cause death but without any intention to cause death
or to cause such a bodily injury as is likely to cause death. The case of the c
Appellant would, therefore, clearly fall under Section 304 Part Il IPC.
Courts below did not apply their mind to this aspect of the matter in
proper perspective and they were rather swayed by the fact that on
account of the danda blow by the Appellant, 'S' died an unnatural death.
There was no material on record which showed that Appellant was bent D
upon killing 'S' and "eventually death came out to be the resulf'. This is
merely a surmise or the High Court. [1099-F-H; 1100-A-D]

3. The Appellant is guilty of an offence under Section 304 Part IT
IPC. His conviction under Section 302 IPC is, therefore, set aside. The
Appellant is sentenced to undergo rigorous imprisonment for seven years E
and a fine of Rs. 50,000. In case of non-payment or fine, Appellant shall
undergo further rigorous imprisonment for a period of two years. Fine
when realised shall be paid to the widow of the deceased. [1101-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 319
of 1998. F

From the Judgment and Order dated 28.11.97 of the Bombay High
Court in Crl.A. No. 25 of 1995.

P.R. Namjoshi, Uday U. Lalit and Ms. Teja Kahdars for the Appellant.
G
Ms. A. Subhashini for the Respondent.

The Judgment of the Court was delivered by
-'
D.P. WADHWA, ,J. Sole appellant is aggrieved by the _judgment dated
28.11.1997 of the Bombay High Court at Goa upholding his conviction for H
1092 SUPREME COURT REPORTS (2000] 2 S.C.R.
A an offence under Section 302 of Indian Penal Code ('IPC' for short) and
sentence of life imprisonment awarded to him by the District and Sessions
Judge, South Goa at Margao.

Originally there were 17 accused including one absconding, who were
tried for offences under Sections 302, 307, 326, 325, 143, 144, 140 IPC read
B with Section 149 and Section 120-B IPC for having committed the murder
of Simon Fernandez (Simon), a Sub-Inspector of Police and attempt to
murder his two brothers, namely, Irineu Fernandez (Irineu) and Victor
Fernandez (Victor). Sessions Court convicted five of them including the
appellant holding them guilty of murder of Simon under Section 302 read
c with Sections 120-B and 149 IPC. They were further held guilty for attempt
to murder of Irineu and Victor under Section 307 read with Sections 120-
B and 149 IPC. They were also held guilty of unlawful assembly under
Sec9on 143 and rioting under Section 148 read with Sections 120-B and 149
IPC. For these offences they were respectively sentenced to life imprison-
D ment, 7 years imprisonment and 2 years imprisonment. No separate sentence
was passed for an offence wider Section 143 IPC. All these five accused had
appealed to the High Court against their conviction and sentence. High Court
maintained the conviction and sentence of the appellant under Section 302
IPC. Other four accused were convicted under Section 326 IPC and their
conviction for offence under Section 302 and 307 IPC were set aside. Their
E sentences were reduced to the imprisonment ·they had already undergone.
High Court also rejected the alternate plea of the appellant that on the facts
of the case there could be conviction only for an offence under Section 304,
Part-I or Part-II IPC.

F The incident, which resulted in conviction of the appellant and others,
occurred on the midnight of 4/5.5.1993. Arlem Festival was celebrated on
1.5.1993, 2.5.1993 and 4.5.1993. Boys of two villages - Khaneband and
Calconda - were not on best of terms between them. During the festival they
had been fighting with each other. On the night of 4/5.5.1993 Victor, who
was from Calconda, attended the festival: He went at 9.30 P.M. and returned
G back home at about 12.00 midnight. Simon and Irineu did not attend the
festival on that day and were already there in the house as they all lived
together. At about 2.30 A.M. someone banged the door of their house. These
three brothers came out and saw a young boy standing outside a few feet
away under a banyan tree. They asked him what was the matter about.
H Suddenly a group of 15/20 boys emerged from the bushes near the banyan
CAMILO VAZ v. STATE [D.P. WADHWA, J.] 1093
tree and started beating the three brothers. They were armed with sticks, A
cycle chains and bottles. These boys belonged to Khareband. They assaulted
the three brothers. Appellant hit Simon with the stick of the thickness of 2"
and length of 4'. Simon fell down unconscious. Still he was being hit and
beaten by the assailants. Victor and Irineu were also beaten up and suffered
injuries. Hearing the loud shouts the neighbours, which included boys of
B
Calconda, came and the assailants ran away. Condition of Simon was serious.
He was taken in a rikshaw by one of the neighbours to the Hospicio Hospital.
Another neighbour brought his car and removed Irineu and Victor to
Hospicio Hospital: Since condition of Simon continued to be serious he was
shifted to GMC Bambolim. Irineu and Victor were also taken to GMC
Bambolim in the same ambulance with Simon. Police came to the hospital c
and recorded the statement of Irineu on the morning of 5.5 .1993. He said on
4.5.1993 after having dinner at about 10.30 P.M. they went to sleep. On the
morning of 5.5.1993 at about 2.30 A.M. someone banged the front door and
asked them to come out. When they came out they did not see anyone
outside. They went ahead by the t~otway and saw a group of 15 persons D
holding iron rods, sticks and cycle chains. When they approached near them
they pelted soda bottles on them and immediately assaulted them with sticks
and iron rods on the head. Appellant gave a blow on his head and he fell

-
down unconscious. Irineu said that assault continued for about three to four
minutes and when the neighbours came there those persons fled away. Irineu
made complaint against the appellant and his group of gangs, who assaulted E
him, his brothers Simon and Victor causing serious head injuries on them.
He stated that they were admitted to the hospital by their neighbours. He also
said that there was no enmity between them and the appellant. On the basis
of the complaint lodged by Irineu police first registered the case under
Section 307 IPC. When Simon died on 8.5.1993 offence under Section 302 F
IPC was also added. After completing the investigation as many as 17
accused were sent for trial for various offences. Prosecution examined as
many as 33 witnesses. Statement of each of the accused was recorded under
Section 313 of Code of Criminal Procedure. They denied their involvement
in the crime and said they had been falsely implicated. Apart from Irineu and
Victor, who were examined as PW-8 and PW-9, there were other eye G
witnesses whose statements were recorded.

Dr. Pumanand Audi conducted the post mortem on the dead body of
Simon. On external examination of the dead body he found following 11
injuries: - H
1094 SUPREME COURT REPORTS [2000] 2 S.C.R.
A "l. Stitched lacerated wound of 9 x 3 ems. deep with bruise
around was present on left eyebrow.

2. Black eye 6 x 6 ems .. on left eye.
~

3. Black eye 6 x 6 ems. on right eye.
B
4. Laceration 3 x 1 ems. mucosa deep on the lower lip right side.

5. Grazed abrasion 6 x 4 ems. on right side of face below cheek
bone.

c 6. Sutured incised wound of inverted U type 14 ems. linear on
right temporal parietal region of head underneath there was
abruise.

7. Sutured vertical wound of 3 ems. linear on left temporal
region.
D
8. Needle prick mark on dorsum of the right feet and right
dorsum of the head.

9. Abrasion 3 x 1 ems.· front of the left knee.

E 10. Rail road type patterned bruise of 3 x 1.8 ems. on front of the
left elbow towards forearm side.

11. Bruise of 2 x 1 ems. on base of nose."

According to Dr. Audi injuries numbers 1 to 5 and 9 to 11 were caused by
F impact of the blunt force and injuries numbers 6 to 8 were made by the
surgeon as part of the treatment. On internal examination Dr. Audi found that
there were outpouring of the blood under injuries numbers 1, 6, 7 and 11.
He further found "there was fracture of frontal bone left side extending to
left orbital plate and anterior cranio fossa further to right wing of the spnoid
bone. In right middle cranio fossa extending further to the right temporal
G bone, there was in extradural haemotoma of 4 x 2 x 1 ems. on right temporal
bone of brain. There was thing subdural haemotoma of 6 x 2 x 1 ems. on right
temporal bone of the brain. Sub aracnoid haemorrage was present on both the
sides of the brain. There was contusion neurosis on left cortical part of orbital
lobe of the brain. There was swelling on the brain and brain material was
H coming through the hole made by the surgeon, while giving the treatment.
CAMILO VAZ v. STATE [D.P. WADHWA, J.] 1095
There were pin point haemorrages through the white matter of the brain. There A
was herniation of both parahypo campal region of the brain. There was also
fracture of the nasal bone in addition to the skull bone as said earlier''. In the
opinion of Dr. Audi, cause of death was due to cranio cerebral damage, head
injury as result of the impact.

Dr. Vasudeo Devari (PW-4), who was working as Medical Officer in B
Hospicio Hospital, examined Irineu and found the following injuries: -

"I. CLW 6" x 112" x bone deep extending from right parietal
region to the left parietal region. The opinion was kept
reserved. c
2. CLW 2" x 112 x 112" left parietal prominence caused by blunt
instrument, simple in nature."

He said the injuries could be caused by blunt instrument. He also examined
Victor and found the following injuries: - D

"1. CLW 1 112 x 1 112" x 1" on the right eyebrow caused by hard
blunt object less than 6 hours duration. The opinion of all the
injuries were kept reserved.

2. Swelling 5" in the right mixillary region extending to the right E
angle of mandible. Caused by hard blunt object, less than 6 hrs.
of age.

3. CLW 1" x 112" x 112" on the upper lip, caused by hard blunt
object, less than 6 hours. A doubtful fracture on the upper,
Zipih sternum on the middle point and loss of upper counter F
and there was swelling. The opinion of fracture had to be
confirmed by x- rays etc. and as such the opinion was reserved.
A swelling with deformity on the left forearm caused by hard
blunt object."
G
When Simon was brought to the Hospicio Hospital Dr. Devari had also
examined him and found him unconscious, his pupils were dilated and
reacting sluggishly. He found following injuries on the body of Simon: -

"1. Multiple CLW l" x 112" x 112" with depressed fracture on the
left side of the forehead caused by hard blunt object, less than 6 H
1096 SUPREME COURT REPORTS [2000] 2 S.C.R.
A hours duration. In view patient having head injury, the patient was
referred to G.M.C. for expert neuro surgical managemei'i.t. After
giving initial treatment, the Police were advised to collect further
report from the G.M.C."

B According to Dr. Devari injuries found on Simon could be caused by stick
as also by bottles. He, however, said that he felt that in this case the object
might be having multiple rough and irregular edges because there were
multiple injuries. He said such edges were absent in bottles and sticks and
injuries could, therefore, had been caused by stone. He was unable to say if
/injuries on Simon could have been caused by throwing of a stone of about
C half a kg. weight. He said injuries on Simon were several but localised in
one region mainly on the left side of the forehead. Statement of Dr. Devari
has been severally criticized by the learned Sessions Judge.

Trial court has referred to the incident which occurred at Arlem Festival
on 1,2 and 4.5 .1993, which according to him could have been prelude to the
D main incident in question_ furnishing the motive for the same. It was the rivalry
between the boys of Khareband and Calconda villages. It is on record that
there were rival gangs of Khareband and Calconda and while injured and the
prosecution witnesses are from Calconda the accused are from Khareband.
According to the learned Sessions Judge the fracas, which occurred between
E these two rival gangs on the nights of 1.5.1993, 2.5.1993 and 4.5.1993 had
been duly established. At the same time learned Sessions Judge was of the
opinion that when the case rested on the direct evidence failure of the
prosecution to prove the motive was of not much significance.

There is concurrent finding that it is the appellant who hit Simon with
F a stick on his head and he fell unconscious. The appellant and other assailants
did not stop at that and they went on beating and hitting Sin1on with the result
he received multiple injuries. Ultimately the medical evidence showed that it
was the injury on the head caused by blunt weapon ~hich resulted in the death
of Simon.
G Mr. P.R. Namjoshi, senior advocate, has severally contended that First
Information Repo1t (PW-8/A) lodged by Irineu on the morning of 5 .5.1993 did
not implicate the appellant as the one having caused head injury on Simon.
He said according to hineu (PW-8) himself it was he who was hit by the
appellant and he fell unconscious. This point was also raised with all_
H seriousness in the trial court as well as in the High Court. On that very day
CAMILO VAZ v. STATE [D.P. WADHWA, J.] 1097
in the evening further statement of Irineu was recorded where he clarified A
that head injury was caused on Simon by the appellant. He explained the
discrepancy which crept in the FIR (PW-8/A). He said since his brother was
in serious condition he was worried. His explanation has been accepted by
both the courts and we see no reason to take a different view. Both Irineu
and Victor have said that the appellant had caused the head injury which
B
resulted in the death of Simon. After the statement of Dr. Devari (PW-4)
prosecution did try to improve upon their version when it brought in the story
of stone hit on the head of Simon in the deposition of two witnesses. This
theory of Simon being hit by stone and the statements of those eye witnesses
were, however, discarded by the trial court and in our opinion rightly.
c
There cannot be any dispute about the incident having taken place
where three brothers received injuries resulting in the death of one of them.
The question, which has now been seriously contended before us, is, could in
these circumstances the appellant be held guilty of an offence under Section
302 IPC.
D
The instant incident is the fall out of the quarrel between the rival gangs
of Khareband and Calconda. They have been fighting on 1.5.1993, 2.5.1993
and 4.5.1993. On the night of 4.5.1993 boys of Calconda had gone to Arlem
Festival. Some of the persons who are accused before the Trial Court of the
rival Khareband gang were also present. Altercation took place between them E
which has been deposed to by the witnesses. From the side of Khareband, it
was the appellant who superheaded the fight. He beat up Jayesh (PW-14) and
threw him on the ground and gave him kick blows. He hit a boy Dinesh as
well. Other accused present were Shivappa (accused No.2), Mehaboob (ac-
cused No.3), Raju Jamune (accused No.4), Mossess Martins (accused No.5),
" Raju Naik (accused No.6), Mustaq (accused No.7) Milind (accused No.8) F
Babda (accused No.9), Kadar (accused No.10), Damu (accused No. 11),
Simon Martins (accused No.15), and Seby Calaco (accused No.16). People
intervened and asked the appellant not to fight. Leaving Jayesh (PW-14)
injured, it appears, he left the scene along with others. The incidents of
1.5.1993, 2.5.1993, and 4.5.1993 were not reported to the Police and have G
been played down by Artemio D'Silva (PW-25) who was the co-organisor of
the Arlem Festival.

As noted above, the accused were variously armed like dandas, bottles
and cycle-chains or even stones. When the three brothers reached near the
banyan tree and they saw a boy who was identified as accused No.6 and H
1098 SUPREME COURT REPORTS [2000] 2 S.C.R.
A inquired from him as to why he was banging the door of their house. All of
a sudden, from the bushes near the banyam tree 15 to 16 boys started attacking
the three brothers by throwing bottles on them. Fortunately, the bottles did not
hit them. It was the appellant with a danda and Seby (accused No.16) with a
chain that came to assault Simon. Both Irineu (PW-8) and Victor (PW-9) asked
the appellant as to why they were going to assault them. At this stage, the
B
appellant hit a danda on the head of Simon. There was simultaneous assault
on Irineu and Victor. As noted above, on the night of 4.5.1993, there was
altercation at the Arlem festival between the boys of Kharaband and
Calconda. Victor had also attended the festival that night. Most of the boys
of Calconda including Jayesh (PW-14) returned from the festival but some
c of them including Sanjay (PW-21) and Sandesh, brother of Dinesh stayed
back. Dinesh went to the house of Jayesh (PW-14) to inquire about his
brother Sandesh. He was worried about him. Dinesh woke up other boys.
They all lived in that areanear the house of Jayesh (PW-14). House of Jayesh
(PW-14) is at a distance of about 150 meters from the house of Simon
(deceased). While they were standing in the paddy field near the house of
D
Jayesh (PW-14), they heard shouts coming from the scene of the offence and
they ran towards that. They witnessed the occurrence. After danda blow was
given on the head of Simon, he fell down unconscious. Mossess Martins
(accused no.5), Mustaq (accused No.7), Ramesh Babda (accused No.9),
Nissar (accused No.12), Pundalic (accused No.14), Simon Martins (accused
E No.15) and Seby (accused No.16) also assaulted Simon. Trial Court has held
that from the evidence led by the prosecution, it had been established that
the assault on the Simon was made by the appellant and Seby (accused -+"'
No.16)._ Trial Court said that when there is assault by a large group of
persons, it is not possible to get corroboration from the witnesses to see as
F to what assault was made by each of the accused. Trial Court was, however,
of the opinion that the prosecution had been able to establish that it was the
appellant who was the author of the injury No. I on the person of deceased
Simon underneath which there were fractures, which was sufficient in the
ordinary course of nature to cause death. It was said that the danda blow was
thus given with force on the head which is vital part of the body. Trial Court
G described injuries 2 to 5 and 9 on account of kicks given to the deceased
Simon by Seby (accused No.16). Cause of injuries No.IO and 11 could not be
established. Those had been cai.ised by sharp and blunt weapons including
danda. Trial Court further held that it was Mossess Martins (accused No. 5)
who assaulted Irineu (PW-8) on his head. There were two injuries on the
H parietal regions found by Dr. Devari (PW-4) one of which had been caused
CAMILO VAZ v. STATE [D.P. WADHWA, J.] 1099
'·
by Mossess Martins (accused No. 5) and other by Mustaq (accused No.7). A
Trial Court further held that the appellant, Mossess Martins (accused No.5),
Mustaq (accused No.7) and Simon Martins (accused No.15) assaulted Victor
,and caused injuries to him.

After considering the evidence in detail and taking into account all the
relevant considerations, the Trial Coillt convicted some of the accused and B
sentenced them as aforementioned. High Court, it appears, has not consid-
ered the record of the case in any detail. Rather on each aspect of the matter
it has referred to the judgment of the trial court. It rather appears to us that
judgment of the trial court is an annexure to the judgment of the High Court.
It has not been possible for us to appreciate the judgment of the High Court C
as to how it has convicted the accused appellant before it. High Court has
held that the appeals of accused Nos. 5, 7 15 and 16 succeeded so far as the
prayer for bringing out their case from the purview of Section 149 IPC in
relation to the principal charge of murder under Section 302 IPC is
concerned. High Court then said that the order of conviction under Section D
307 IPC is set aside "completely". Then it went to hold that the conviction
of accused Nos. 5, 7, 15 and 16 is maintained for the rest of the offences
as held by the trial court and conviction of accused No.I (the appellant) is
made under Section 302 IPC. Since the case of other accused except the
appellant is not before us, we leave the matter at that. Position as it presents
E
today is that the appellant stands convicted for an offence under Section 302
IPC on account of the fatal blow he caused on the head of Simon (deceased) .
.,...._
Simon met wi~ homicidal death. When the Khareband boys came to
the house of Simon and his two brothers led by the appellant they did not
come with the intention to kill anyone. They were not armed with any F
particular weapon to commit the murder. There was a rivalry between them
and during the Arlem Festival on 1.5.1993, 2.5.1993 and 4.5.1993 there were
minor fracas. In fact, the rivalry existed even much prior to these dates. They
came to the house of Simon and his brothers not to commit murder but to
thrash them. What transpired at the Arlem festival on the night of 4.5.1993 G
that they came to the house of Simon and his brothers it has not been possible
to say. Only one of the brothers, namely, Victor had gone to attend the

- festival and returned around midnight. The brothers are from Calconda.
These boys of Khareband who came to the house of the three brothers were
armed with dandas, bottles and cycle chains. The purpose apparently was to H
1100 SUPREME COURT REPORTS [2000] 2 S.C.R.
A beat up the brothers by giving them sound beatings but certainly not with
any intention to kill anyone of them. In fact Irineo in his First Information
Report to the police (PW 8/A) had stated that there was no enmity between
them. In these circumstances, can it be said that the appellant has committed
the offence of murder because he hit Simon on the head, a vital part of the
B body, with such a force with danda in his hand that Simon fell unconscious
and later succumbed to his injury? To us, it appears, at the most it can be
said that the act of the appellant in hitting Simon was done with the knowledge
that it was likely to cause death but without any intention to cause death or
to cause such a bodily injury as is likely to cause death. The case of the
C appellant would, therefore, clearly fall under Section 304 Part II IPC. Courts
below did not apply their mind to this aspect of the matter in proper
perspective and they were rather swayed by the fact that on account of the
danda blow by the appellant, Simon died an unnatural death. There was no
material on record which showed that appellant was bent upon killing Simon
and "eventually death came out to be the result". This is merely a surmise
D of the High Court. Section 304 is as under :

"304. Punishment for culpable homicide not amounting to murder-
whoever commits culpable homicide not amounting to murder, sh.ill
be punished with imprisonment for life, or imprisonment of either
E description for a term which may extend to ten years, and shall also
be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as
is likely to cause death;

or with imprisonment of either description for a term which may
F extend to ten years, or with fine, or with both, if the act is done with
the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely
to cause death."

G This section is in two parts. If analysed the section provides for two
kinds of punishment to two different situations_. (1) if the act by which death
is caused is done with the intention of causing death or causing such bodily
injury as is likely to cause death. Here important ingredients is the
"intention"; (2) if the act is done with knowledge that it is likely to cause
death but without any intention to cause death or such bodily injury as is
H
CAMILO VAZ v. STATE [D.P. WADHWA, J.] 1101
likely to cause death. When a person hits another with a danda on vital part A
of the body with such a force that the person hit meets his death, knowledge
has to be imputed to the accused. In that situation case will fall in Part II of
Section 304 IPC as in the present case. We are also not oblivious on the fact
that other four accused who were similarly convicted with the appellant with
the aid of Section 149 IPC have been held guilty only for offence under B
Section 326 IPC.

We, therefore, hold the appellant to be guilty for an offence under
Section 304 Part II IPC. His conviction under Section 302 IPC is, therefore,
set aside. We sentence the appellant to undergo Rigorous Imprisonment for
seven years and to a fine of Rs.50,000. In case of non-payment of fine, C
appellant shall undergo further rigorous imprisonment for a period of two
years. Fine when realised shall be. paid to the widow of Simon.

Appeal is, thus, partly allowed.

V.M. Appeal partly allowed. D

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