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2021 DIGILAW 1531 (BOM)

Francis @ Franky Nadar v. State Of Goa

2021-11-15

MANISH PITALE

body2021
JUDGMENT Manish Pitale, J. - These bail applications arise from Sessions Case no. 17 of 2020 pending before the Court of Additional Sessions Judge, Panaji. Crime no. 77/2020 was registered at the Old Goa Police Station against the Applicants before this Court, who are Accused no. 2-Alex Rony D'Souza and Accused no. 3-Francis @ Franky Nadar, for offences under Sections 302 and 120 of the Indian Penal Code (IPC) and Section 3 read with Section 25 and Section 5 read with Section 27 of the Arms Act. There are total five Accused persons in the present case. 2. Mr. Ryan Menezes, the learned Counsel appearing for the Applicant in CRMAB No. 468 of 2021 and Mr. Ressano Noronha, learned Counsel appearing for the Applicant in CRMAB No. 56 of 2021, have placed before this Court, the facts as alleged by the prosecution. It is pointed out that in the present case, it was alleged that eight persons including the Applicants herein, had converged upon the house of one Imran Bepari, with the intention to kill him. When these persons allegedly swooped down on the house of said Imran Bepari, there was resistance on the part of the said person and that certain gym equipments were thrown upon these eight persons, who allegedly attacked his house. The assailants were allegedly carrying arms including fire arms. 3. On the basis of the said attack orchestrated on the house of Imran Bepari, at this behest, an FIR came to be registered, which led to Session Case No. 30 of 2020 for offences under Sections 307, 143, 147, 148, 149, 450 read with Section 120-B of the IPC and some provisions of the Arms Act. The Applicants before this Court have been arrayed as Accused persons in the said companion case also. It is undisputed that both the Applicants before this Court have been released on bail by the Sessions Court in connection with the aforesaid Sessions Case no. 30 of 2020. 4. According to the prosecution, during the process when the aforesaid persons including the Applicants, allegedly attacked the house of Imran Bepari and there was resistance on his part, they retreated and while retreating, one person amongst the assailants, suffered bullet injury which led to his death. 30 of 2020. 4. According to the prosecution, during the process when the aforesaid persons including the Applicants, allegedly attacked the house of Imran Bepari and there was resistance on his part, they retreated and while retreating, one person amongst the assailants, suffered bullet injury which led to his death. According to the prosecution, the victim suffered the bullet injury at the hands of his companions who had launched the assault on the house of Imran Bepari. This led to registration of Crime no. 77/2020, culminating in Sessions Case No. 17 of 2020, wherein the Applicants before this Court are amongst the five Accused persons. The police carried out investigation and submitted chargesheet against the Applicants and the other three Accused persons on 03.10.2020 for offences under Sections 302 and 120 of IPC and the aforementioned provisions of the Arms Act. 5. According to the learned Counsel appearing for the Applicants, even if the material brought on record along with the chargesheet, including the statements of witnesses are perused, it would show that the actual act of firing the bullet is attributed to Accused Marcelino and not to the Applicants before this Court. It is further submitted that although the witnesses state that the Applicants were present at the time of the incident and that they were armed with pistol and revolvers, mere presence of the Applicants could be of no consequence when the prosecution itself has alleged offences only under Section 302 and 120 of the IPC. 6. Mr. Bhobe, the learned Public Prosecutor, has appeared on behalf of the State and he submits that appropriate steps are being taken in the matter considering the fact that the two incidents appear to be part of the same transaction and that ideally only one crime ought to have been registered in the context of the entire incident. It is informed that filing an appropriate application is contemplated in the facts and circumstances, for either clubbing of the two cases or treating the chargesheet in one of the cases as supplementary chargesheet for the main case. Although the learned Public Prosecutor submitted that there is sufficient material on record in the present case to support the allegations of unlawful assembly and conspiracy, he conceded to the fact that Sections 120-B and 149 of the IPC have not been invoked. 7. Although the learned Public Prosecutor submitted that there is sufficient material on record in the present case to support the allegations of unlawful assembly and conspiracy, he conceded to the fact that Sections 120-B and 149 of the IPC have not been invoked. 7. This Court has perused the chargesheet along with the documents filed therewith. A perusal of the statements made by the witnesses during the course of investigation, at worst, show the presence of the Applicants at the time of the incident. It is also alleged in the statements that the Accused Marcelino and the two Applicants before this Court, were armed with revolvers and pistol. Yet, the statements specifically attribute the act of firing on Accused Marcelino and not the two Applicants before this Court. A perusal of the chargesheet would show that offences only under Sections 302 and 120 of IPC have been alleged against the Accused persons, including the Applicants before this Court. Section 120 of the IPC pertains to concealing the existence of design to commit an offence punishable with imprisonment. Neither conspiracy nor being part of an unlawful assembly has been alleged against the Applicants before this Court. 8. In view of the above, it becomes clear that the actual act of firing which allegedly led to the death of the victim is not attributed to either of the Applicants before this Court. It would be for the prosecution to demonstrate how the involvement of the Applicants in the alleged crime would be proved in the absence of any allegation of conspiracy or being part of an unlawful assembly. It is also an undisputed fact that the Applicants before this Court have been already granted bail in the companion case where offences, inter alia, under Section 307 of the IPC have been registered. 9. Considering the aforesaid material before this Court, a case for grant of bail is made out by the Applicants. 10. In view of the above, the applications are disposed of in the following manner : (a) The Applicants shall be released on bail on furnishing a PR bond of Rs. 20,000/- with one surety each in the like amount to the satisfaction of the Trial Court. (b) The Applicants shall not leave the State of Goa without prior permission of the Trial Court. 20,000/- with one surety each in the like amount to the satisfaction of the Trial Court. (b) The Applicants shall not leave the State of Goa without prior permission of the Trial Court. (c) The Applicants shall not themselves or through any other person, act in any manner that would amount to tampering of the evidence or influencing the witnesses. (d) The Applicants, upon release, shall state on affidavit before the Trial Court as to whether they have passports and, if so, the details regarding the same and they shall place copies of the same on the record of the Trial Court. 11. Needless to say that violation of any of the aforesaid conditions shall make the Applicants liable to cancellation of bail. 12. It is made clear that the observations made in this order are limited to the grant of bail to the Applicants and that the Trial Court shall proceed with the matter without being influenced by such observations. 13. The parties to act upon an authenticated copy of this order.