AI Structured Summary
Not yet generated for this judgment
Judgment
N.A. Britto, J.—The applicants herein are the accused against whom charge has been framed u/s 302 r/w 34 IPC and is pending trial before the learned Sessions Judge, Panaji. Their applications have been rejected by the Court of Sessions, first by order dated 10/11/2008 and then by order dated 20/01/2009 and, as such, have approached this Court for bail. The facts leading to the framing of charge could be stated as follows; Thomas and Aloysius are the sons of Magdalena Menezes, widow of Joseph Menezes. Aloysius resides along with his mother Magdalena in flat F6 while Carmina, wife of Thomas Menezes (now deceased) resides in flat G3. The flat G3 was assigned to the said Magdalena Menezes and to her said two sons namely Thomas Menezes and Aloysius Menezes by virtue of agreement dated 17/10/2002. It appears that the said Magdalena was earlier residing with the said Thomas but thereafter was taken by Aloysius to reside with him and according to her, her son Aloysius is a co-owner of a flat G3 and in which the said Aloysius still occupies one bedroom and the same was under his lock and key. According to the said Magdalena Menezes, the mother of the deceased Thomas and the said Aloysius, the deceased was trying to take possession of the flat G3. According to Carmina, wife of deceased Thomas Menezes, who filed the complaint on 14/10/2008, some materials belonging to them were still lying in the locked bedroom of the said Aloysius and on 14/10/2008 at about 17.45 hrs. her husband went out to open the bedroom locked by Aloysius with the help of screw driver and hammer and when he was trying to open the lock, suddenly Mervin Menezes, the son of the said Aloysius and Faurtus Baptista (a friend of the said Mervin) came to her husband and started arguing as to why he was opening the locked bedroom when her husband, the said Thomas Menezes told her that he wanted to take out their tube light, fan etc. at which time Faurtus (applicant in bail application No. 107/2009) caught hold of her husband and Mervin (applicant in bail application No. 106/2009) assaulted him with the hammer on the head and also gave fist blows on the face of her husband who fell down in a pool of blood and, thereafter, the applicants Mervin and Faurtus disappeared from the spot with bullet motorcycle.
The deceased died at about 9.20 p.m. on the same day and the post mortem examination carried out shows that the deceased had as many as 16 injuries which included bruises, lacerated wound and abrasions. The autopsy report shows that the deceased died due to cranio-cerebral damage, as a result of medium weight blunt object forcible impacts vide injuries No. 1 & 2 (bruises with subgaleal haematoma) which were fresh, ante-mortem and necessarily fatal. Needless to say, at this stage, it could be presumed that the deceased Thomas was assaulted with the very hammer he had brought to open the lock which was in possession of the family of accused Mervin.
It appears that before the learned trial Court it was argued that the offence committed by the applicants/accused would at the most fall u/s 304 IPC and not u/s 302 IPC and the learned Session Judge rejected the said argument stating that that controversy would be decided by the learned Sessions Judge after hearing arguments before charge, but, at this stage, there was prima facie evidence to show that the case was one of murder.
Shri Lotlikar, the learned Senior Counsel on behalf of the applicants/accused has submitted that this was not a case of premeditated murder, but, of a free fight on the spur of moment when the deceased Thomas was trying to take forcible possession of a room which was in possession of the family of the accused Mervin. Learned Senior Counsel further submits that the applicant Mervin along with his friend Faurtus, were certainly entitled to prevent the entry of the deceased into the room in their possession and at the most it may be a case of exceeding the right of private defence. Learned Senior Counsel, therefore, submits that this is not a case where the offence committed by the accused could be punished either with death or imprisonment for life and, therefore, the accused be admitted to bail.
On the other hand, Ms. Coutinho, relying on Salim Khan V/s. Sanjai Singh & Anr. (2002 (9) SCC 670) has submitted that the Court is required to consider all the statements recorded u/s 161 of the Criminal Procedure Code to examine the gravity of the offence and also to examine the question of possibility of the accused tampering with the evidence and also the possibility of getting the attendance of the accused during trial and only then it can grant bail to the accused. Learned Public Prosecutor has further submitted that whether the offence will fall u/s 302 IPC or for that matter 302 (ii), is a matter which will be required to be decided at the trial of the case.
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 have 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.
The apprehension that the accused will interfere with the witnesses appears to be more imaginary than real, as the main witness is no other than the aunt of applicant Mervin and latter''s father, otherwise resides in the same building. Nevertheless, the applicants herein shall not visit the suit flat G3 while they are on bail in this case. In the light of the above, the applications are bound to succeed. Each of the applicants/accused are hereby ordered to be released on bail upon execution of a bond of Rs. 25,000/-with one surety in the like amount to the satisfaction of the learned Sessions Judge, Panaji and with the above condition. Expedite authenticated copy.