Decided on January 09,2017

Simon Augustin Saldhana Appellant


V. K. Tahilramani, J. - (1.) The appellant, original accused-Simon Augustin- Saldhana has preferred Criminal Appeal No.301 of 2012, against the Judgment and Order dated 6th December, 2010, passed by the learned 3rd Additional Sessions Judge, Nashik in Sessions Case No.81 of 2006. By the said Judgment and Order, the learned Sessions Judge, convicted the appellant-Simon Saldhana for the offence punishable under Section 304, Part-II of the Indian Penal Code (for short "I.P.C") and sentenced him to suffer rigorous imprisonment for 7 years and fine of Rs.1,000/-, in default to suffer simple imprisonment for 2 months. The State has preferred Criminal Appeal No.1461 of 2011 for enhancement of the sentence imposed on accused-Simon Saldhana. Originally the accused-Simon Saldhana was charged for the offence under Section 302 of the I.P.C. However, he was acquitted under Section 302 of the I.P.C and instead convicted under Section 304, Part-II of the I.P.C. Hence, the State preferred Criminal Appeal No.819 of 2011 against the acquittal of accused-Simon Saldhana of the offence under Section 302 of the I.P.C. As all the appeals are directed against the very same Judgment and Order, we are dealing with all the appeals together. For the sake of convenience in all the appeals Simon Augustin Saldhana will be referred to as "accused".
(2.) The prosecution case briefly stated, is as under:- The deceased-Deepak Kisanrao Sonawane had 3 brothers i.e. PW.1-Rajendra Kisanrao Sonawane, PW.10-Prashant Kisanrao Sonawane and Sachin Kisanrao Sonawane. They were residing in Nashik. The accused was also residing in Nashik. The deceased - Deepak was doing the business of supply of electricity by inverter. He was doing the said business at Tibetian Market, Chaupati, Nashik. The deceased-Deepak was supplying electricity to the stalls run by various people at Tibetian Market. He was supplying electricity to about 40 stalls. For supplying electricity he was taking an amount of Rs.10/- every day from each stall owner. The amount used to be collected by Deepak and his brother - Prashant. If there was no regular business the stall owners did not pay the amount on time. The accused- Simon was having a Masala Dosa stall at Tibetian Market. On 26th March, 2006, Deepak had gone to the Tibetian Market for collecting the rent. Deepak went to the accused-Simon to ask him for money. Accused-Simon did not give him money and a quarrel took place between the deceased and the accused. Simon then told Deepak that if he wants money he should come to the house of Simon at Govind Nagar for taking the money. Accordingly, Deepak went to the house of Simon at Govind Nagar on his motorcycle. A quarrel took place between Simon and Deepak on account of giving and taking money. Simon threatened Deepak. Deepak informed this fact to his brother PW.1-Rajendra on his cell phone. Thereafter, PW.1-Rajendra and his brother Prashant went to Govind Nagar on motorcycle. They reached the spot at about 11.00 to 11.30 p.m. On reaching the spot, they saw Deepak as well as accused - Simon lying on the spot in injured condition. Rajendra asked his brother Deepak what had happened, whereupon Deepak told him that he demanded money of electricity from Simon and then Simon attacked him with a knife. Meanwhile, the police vehicle arrived at the spot and took both the injured i.e. deceased - Deepak as well as accused - Simon to the Civil Hospital, Nashik where they were both admitted. Deepak expired a short while thereafter. PW.1-Rajendra lodged FIR, Exhibit - 42. Thereafter, investigation commenced. The dead body of Deepak was sent for post-mortem. The cause of death was "Haemorrhagic shock due to multiple stab injuries". After completion of investigation, charge sheet came to be filed.
(3.) Charge came to be framed against accused-Simon under Section 302 of the I.P.C. and under Section 135 of the Bombay Police Act. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that he was selling dosa. Deepak was providing light to the hawkers through inverters. Although, hawkers used to pay Rs.10/- daily to Deepak for electricity, Deepak also used to take food from the hawkers free of charge and used to also collect Rs.50/- daily as hafta. If anybody refused to pay hafta or give food, Deepak terrorised the hawkers. On the day of the incident, Deepak came to the dosa cart of accused-Simon and demanded 2 dosas. Accused-Simon asked Deepak to wait. Then Deepak started abusing and threatening Simon. Deepak told Simon to close his business. Simon then closed his business and went home. A short while thereafter Deepak came to the house of Simon and started giving abuses to Simon. Deepak then picked up 2½ year son of Simon and he started going away. Simon followed Deepak from the first floor to the ground floor. When Simon tried to take back his son Wilson, Deepak stabbed Simon with a knife. At that time, Wilson the son of Simon was with Deepak. Then Simon inflicted knife blows upon Deepak to rescue his child from the custody of Deepak. Simon succeeded in rescuing his son from the custody of Deepak. Thereafter, both Deepak and Simon fell on the ground on account of the injuries sustained by them. Thus, the defence of accused-Simon appears to be that of private defence.;

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