Mr. Zenito Cardozo vs State

N.A. Britto, J.—Heard. This is an application for bail filed by the accused no.1/Zenito Cardozo in Crime No.31/2009 u/s 302, 307, 326 r/w 34 of the Indian Penal Code. This application has been filed after the applicant/accused no.1 has been denied bail by the Court of Sessions, Panaji by order dated 22.09.2009. Earlier accused no.3/Domnic Nazareth in the said case was granted bail by this Court by Order dated 22.09.2009 in Criminal Application (Bail) No.280 of 2009. It appears that accused no.2/Mahavir is still under detention. The incident which took place on 10.05.2009 in Anastacia Beach Shack at Siridao beach has given rise to two cases. The other case is Crime No.32/2009 under Sections 143, 147, 148, 323, 326, 307 r/w 149 of the Indian Penal Code. The first case was registered upon first information filed by Joe Almeida. The second was registered upon first information filed by Judas Hilario Fernandes.

There is no dispute that the fight took place on the said date at the said place at about 4.00 p.m. between Francis @ Miranda D''souza and the present applicant. There were almost about eleven persons in the group of the said Francis @ Miranda D''souza who had gone for a picnic at the said place. The applicant/Zenito alongwith his said two friends Mahavir and Domnic had to be there because he had gone to collect the jeep from Judas Hilario Fernandes, who had also gone there for a picnic alongwith his wife, father-in-law and close relatives numbering about eleven. The applicant/Zenito Cardozo is a cousin of the said Judas Hilario.

The first crime came to be registered upon the first information filed by the said Joe Almeida. There is no dispute that both the deceased namely Johnny and Santosh came to die at the hands of Zenito Cardozo when they intervened in the fight between Francis @ Miranda D''souza and the accused/Zenito Cardozo.

The counsel on behalf of the applicant/Zenito Cardozo has placed on record certain information collected regarding the said Francis @ Miranda D''souza which shows that he was involved in about nine cases, some of them serious. Some cases he has been acquitted and in others the cases were closed as "A" Final. The said information also shows that the said Francis @ Miranda D''souza was also involved in five chapter cases, the latest having been filed on 28.03.2009 and not only that action u/s 3 (2) of the National Security Act 1980 has been proposed against him and the same is pending with the District Magistrate. Learned counsel has also placed on record a copy of discharge card of the said accused/Zenito Cardozo which shows several injuries on his person and learned counsel in particular has referred to the said certificate to show that the accused Zenito Cardozo was also assaulted with knife and glass bottles and had sustained stab injuries. The learned Sessions Judge in rejecting the application filed by Zenito Cardozo observed that an offence alleged against him bear serious consequences and on a full dress trial entail punishment of life and even death, if convicted. Learned Sessions Judge also observed that a consideration of the brief statement on record indicated that the accused/Zenito Cardozo had played a constructive (?) role to assault Francis @ Miranda D''souza and thereafter Johnny and Santosh causing grievous injuries to them with resultant fatal injuries to Santosh and Johnny. One does not known what is meant by the said statement of the learned Sessions Judge but certainly the learned Sessions Judge did not consider under what circumstances the fatal injuries came to be inflicted by the said Zenito Cardozo on the said Johnny and Santosh.

Be that as it may, Shri Arun Braz De sa, learned counsel appearing on behalf of the accused/Zenito Cardozo has submitted that the accused Zenito Cardozo was certainly not the person who provoked the entire incident. The learned counsel further submitted that although the accused/Zenito Cardozo has been involved in a case of attempt to murder the learned Advocate Mr. Aires Rodrigues and another, the accused/Zenito Cardozo has not violated any of the conditions of bail by which he was released. The learned counsel further submitted that on the facts stated by the prosecution itself, it was clear, that the said Francis @ Miranda D''souza was along with a big group of about eleven persons all toughees, and the accused was placed in a catch twenty two situation in which there was no option for him but to defend himself or else, he would have been killed. Learned counsel further points out to the first information of Joe Almeida given on 10.05.2009 and submits that the said Joe Almeida did not speak on that day, of any assault on the accused/Zenito Cardozo by empty bottles by the said Johnny and Santosh but only when these facts were brought to light in the statement of Christopher Novis recorded on 11.05.2009 that the said Joe Almeida in the supplementary statement recorded on 12.05.2009, stated that as Zenito Cardozo was assaulting with fist blows on Francis @ Miranda D''souza, that Johnny and Santosh went to the rescue of Francis @ Miranda D''souza but Zenito was violent and uncontrollable and as such Johnny and Santosh took empty beer and soda bottles which were lying on the table and started hitting on Zenito''s head and at that time Zenito took a knife from his pant pocket and stabbed Francis @ Miranda D''souza on his stomach and on seeing this, Johnny and Santosh picked up more soda and beer empty bottles from the nearby tables and stabbed Zenito with broken beer bottle on his leg and as Johnny and Santosh were assaulting Zenito with the broken beer glass bottles Zenito turned around and stabbed Johnny below his left armpit and Santosh on his right thigh with the said knife and thus all four sustained bleeding injuries and fell down outside the shack.

Counsel on behalf of the applicant has placed reliance on a judgment of this Court dated 25.03.2009 in Criminal Applications (Bail) No.106 of 2009 and 107 of 2009, wherein this Court has observed as follows:

As already seen, the facts stated by the prosecution clearly show that the deceased had gone to break open the lock of a room which was admittedly in possession of the father of the applicant Mervin, when the accused Faurtus is stated to have caught the deceased and accused Mervin assaulted him with the hammer. In other words, the incident appears to heave taken place without any premeditation, at the spur of the moment and in a hit of passion and the provocation coming from the deceased himself and considering the nature of the injuries, including their number, this does not appear to be a case where the accused would be guilty of an offence which would be punishable with death or imprisonment of life. These facts were bound to be looked into, at the time of considering the bail application/s to find out the gravity of the offence and/or the severity of punishment which the offence would invite.

Learned Public Prosecutor has submitted that the present accused/Zenito Cardozo cannot claim parity with the case of accused/Domnic Nazareth and he may be right in that respect. The learned Public Prosecutor further submitted that the knife was with the accused/Zenito Cardozo and further submitted that the antecedents of Francis @ Miranda D''souza are not at all relevant to the facts of the case because that would not give the licence to the accused/Zenito Cardozo to assault either the Francis @ Miranda D''souza or Johnny or Santosh. This submission cannot be accepted because the antecedents of Francis @ Miranda D''souza would certainly be relevant to find out whether the action of the accused/Zenito Cardozo of defending himself, as he claims so as justified or not.

Learned Public Prosecutor Shri C. A. Ferreira has also placed reliance on a judgment of the Apex Court dated 23.08.2004 in the case of State of Maharashtra Vs. Sitaram Popat Vetal and Another, wherein the Apex Court has stated that the Courts dealing with applications for bail have got to consider among other circumstances, the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant, etc.

A perusal of the statement of the said Francis @ Miranda D''souza shows that their group had after drinks and food settled the bill of about Rs.7480/-and had continued to be in the said shack. When the accused Zenito Cardozo came there, as was required by his cousin Judas Hilario Fernandes, along with Mahavir and Domnic, the said Francis @ Miranda D''souza called Mahavir first and told him to sit near him and asked him why he was moving with Zenito and his friends. Mahavir kept quiet. Then Francis @ Miranda D''souza called Zenito and asked him to sit on the same place where Mahavir was sitting and Mahavir was asked to stand up, and questioned the accused/Zenito Cardozo whether he knew him and Zenito Cardozo replied in the affirmative and then further questioned him as to why he (Zenito Cardozo) was talking bad about him ( Francis @ Miranda D''souza) and spoiling his name and this he did in a loud voice. When the accused/Zenito Cardozo turned to get up to go but was caught by Francis @ Miranda D''souza and at this time according to the said Francis @ Miranda D''souza, accused/Zenito Cardozo gave a bite on his left hand and pushed him down and as such he fell down. It appears that the accused/Zenito Cardozo did not wish to be provoked and it was for this reason that accused/Zenito Cardozo tried to get up and go. Thereafter, according to Francis @ Miranda D''souza, accused/Zenito Cardozo started assaulting him with fist blows and a scuffle started between them. Johnny and Santosh (both since deceased) came to his rescue and according to Francis @ Miranda D''souza, accused/Zenito Cardozo was violent and uncontrollable. Then Johnny and Santosh started assaulting with empty bottles lying on the table on the head of the accused/Zenito Cardozo. Thereafter, accused/Zenito Cardozo removed the knife and stabbed Francis @ Miranda D''souza on his stomach and then there was further assault by Johnny and Santosh with more empty broken bottles on accused/Zenito''s head and it is at this time the accused/Zenito Cardozo turned around and stabbed Johnny and Santosh with the said knife.

The learned Sessions Judge ought to have considered the above facts as narrated by Joe Almeida as well as Francis @ Miranda D''souza before coming to the conclusion that the offences alleged against the accused/Zenito Cardozo bear serious consequences and on a full dress trial would entail punishment of life and even death. That punishment is doubtful, if one considers the sequence of events which took place and which have been narrated by the first informant Joe Almeida as well as Francis @ Miranda D''souza who are also the accused along with others in Crime No.32/2009. The evidence at this stage clearly shows that the entire incident was provoked first by the said Francis @ Miranda D''souza and aggravated by the intervention of the deceased and the least which could be said at this stage, is that the offences committed by the accused/Zenito Cardozo were not very serious which could entail a very severe punishment of life imprisonment or death. The facts and circumstances of the case do not show that the accused Zenito Cardozo was involved in serious offences for which the punishment would be severe and that being the position, in my opinion, the applicant/Zenito Cardozo would be entitled for bail and shall be so released upon execution of bond of Rs.25,000/-with one surety in the like amount to the satisfaction of the learned Sessions Judge, Panaji and with further condition that the accused/Zenito Cardozo shall confine his residence to his village, St. Cruz, and shall not directly or indirectly interfere with the witnesses, during the trial of the said case under Crime No.31/2009. In case of leaving the village, permission shall be taken by him from the Trial Court.