1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (BAIL) NO. 172/2010 Mr. Francisco Xavier Pacheco alias Mickky Pacheco, s/o. Joao Francis Pacheco, Indian National, aged 46 years, married, business, r/o. Bresources House, Church Square, Betalbatim, Salcete, Goa, presently in police custody of C.I.D., Crimes Branch, Dona Paula, Goa. ...... Applicant. Versus The State of Goa, through CID, Crimes Branch Police Station, Dona Paula, Goa. ...... Respondent. Mr. S.G. Dessai, Senior Advocate with Mr. Amit Palekar and Mr. Pavitran A.V., Advocate for the applicant. Mr. C.A. Fereira, Public Prosecutor for the State/Respondent. CORAM :- A.S. OKA, J. DATE :- 19th July, 2010. ORAL ORDER : The applicant-accused has filed this application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code of 1973”). The application was placed 2 before the learned Single Judge (N.A. Britto, J.). On 16th July, 2010, the learned Judge passed an order “Not before me”). As per the general directions of the Hon'ble the Chief Justice, the application has been placed before this Court. The application was mentioned before this Court on Friday, 16th July, 2010 and on the request made by the learned Senior Counsel appearing for the applicant, the application is fixed for hearing today at 4.30 p.m. 2. The offence has been registered at Maina-Curtorim Police Station. Initially, Section 309 of the Indian Penal Code, 1860 (hereinafter, referred to as “the Penal Code”) was applied. Thereafter, Section 306 of the Penal Code was applied and subsequently, Sections 304 and 201 of the Penal Code have been made applicable. The offence is relating to death of one Ms. Nadia Torrado (hereinafter after referred to as “the deceased”). It appears that on 15th May, 2010, in the afternoon, the deceased was admitted in Apollo Victor Hospitals at Margao,Goa at about 3.55 pm.. The history given to the said hospital is that the deceased consumed Rattol (a poison) at 9.30 a.m. on the same day. On the same day, she was shifted to Jupiter Hospital at Thane, near Mumbai. On 26th May, 2010, it appears that from Jupiter Hospital, the deceased was shifted to Apollo Hospital at Chennai. She 3 breathed last on 29th May, 2010 in Chennai. As indicated earlier, the offence was registered as Crime No. 75/2010 under Section 309 of the Penal Code. It transpires that Section 306 was made applicable on 1st June, 2010. On 3rd June, 2010, Section 201 of the Penal Code was made applicable and on 7th June, 2010, Section 304 has been applied. 3. It may be noted here that the applicant is a Member of Goa Legislative Assembly. The applicant was a Cabinet Minister in the Government of Goa. He tendered his resignation as Minister holding portfolio of department of tourism on 5th June, 2010. It must be stated here that on 4th June, 2010, the applicant appeared before the police for the purposes of investigation. The applicant was called on 5th June, 2010 for further investigation. The applicant did not appear before the police from 5th June, 2010. On 8th June, 2010, an application for anticipatory bail was filed by the applicant before the Sessions Court, South Goa, which was rejected on 10th June, 2010. Thereafter, the applicant moved this Court by filing an application for pre-arrest bail. The said application was rejected on 21st June, 2010. A Special Leave Petition filed before the Apex Court for challenging order of this Court was dismissed on 1st July, 2010. It must be noted here that during the 4 pendency of the application for anticipatory bail before the Sessions Court, as well as before this Court, the applicant was not protected by any ad interim relief. From 5th June, 2010 onwards the Applicant eluded Police Machinery. He purportedly surrendered before the learned Sessions Judge, Margao on 3rd July, 2010. It appears that on the very day, his application for interim bail was rejected and he was committed to Judicial Custody. The Applicant was admitted to ICU of Hospicio Hospital, Margao. On 7th July, 2010, the application for bail made by the applicant was rejected by the learned Addl. Sessions Judge, Margao. The learned Addl. Sessions Judge, allowed the application made by the Investigating Officer seeking custody of the applicant for the purposes of interrogation. The Investigating Officer was permitted to take the custody of the applicant after his discharge from the hospital upon certifying him to be fit to be in jail. The applicant was taken in the police custody on 8th July, 2010 after he was discharged from the hospital. The applicant thereafter made a fresh bail application before the Sessions Judge on 9th July, 2010. On 13th July, 2010, the said application was rejected. Thereafter, on 16th July, 2010, the applicant was produced before the learned Magistrate and and police custody remand was extended for a period of 4 days 5 which expires tomorrow i.e. 20th July, 2010. 4. The learned Senior Counsel appearing for the applicant pointed out that the entire prosecution case is based on circumstantial evidence. He submitted that not only one, but more than one circumstances are on record which are inconsistent with the involvement of the applicant in the alleged offence. He has placed reliance on the decision of the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (AIR 1984 SC 1622), and especially paragraph 152. He submitted that even one circumstance which is inconsistent in the hypothesis of the prosecution case is sufficient for acquittal of the accused. 5. Learned Senior Counsel appearing for the applicant pointed out that the case papers of Apollo Victor Hospitals at Margao and Jupiter Hospital, at Thane do not note any injuries on the person of the deceased. He invited attention of the Court to the case papers of Jupiter Hospital which record that the deceased was displaying suicidal tendencies and, therefore, she was required to be tied to the bed. He pointed out that the case papers maintained by Jupiter Hospital show 6 that these so called injuries which are minor in nature must have accidentally occurred during the course of hospitalization of the deceased in Jupiter Hospital. He pointed out one of the documents which notes existence of haematoma on the body of the deceased. He submitted that the injuries might have been caused during the course of treatment, especially when there is material on record to show that deceased was required to be tied to the bed. He stated that even according to the first post-mortem report of the Apollo Hospital, at Chennai, three injuries are surgical injuries and it is stated that only injuries no. 7 and 8 are caused by hard and blunt object. He submitted that opinion subsequently obtained by the prosecution as regards the age of the injuries, is clearly an afterthought and in any case, the Medical Officer concerned could not have issued such a certificate without examining the body of the deceased. He pointed out that after the body of the deceased was brought to Goa, the second autopsy was conducted and the report indicates that the ante-mortem injuries noted in the post mortem notes of the autopsy held at Chennai are post- mortem injuries. He pointed out that a serious doubt is created whether the injuries which were found on the body of the deceased at the time of post-mortem conducted at Chennai were really ante-mortem 7 injuries. He submitted that the report of the second autopsy conducted in Goa creates a serious doubt about the prosecution case. 6. The learned Senior Counsel submitted that except for the fact that the applicant had relationship with the deceased, there is no material on record. He pointed out that 5 cell phone instruments and 3 SIM cards held by the applicant have been seized by the police on 10th July, 2010. He pointed out that the dying declaration was recorded of the deceased in Jupiter Hospital at Thane before a Special Executive Officer. Relying on Section 32 of the Indian Evidence Act, 1872 and the aforesaid decision in the case of Sharad Birdhichand Sarda (supra), the learned Senior Counsel appearing for the applicant submitted that the statement cannot be discarded merely because some police officers were allegedly present. He submitted that in fact the statement will be governed by Section 164 of the said Code of 1973. 7. He pointed out that there is a fallacy in the prosecution case that the prosecution wants to recover 2 cell phones, a laptop and the passport of the deceased. He submitted that the applicant was not residing in the house of the deceased. Therefore, recovery of the said 8 articles cannot be made from the applicant and, therefore, custody of the applicant is no more required. He pointed out that the applicant will complete 12 days in the police custody tomorrow i.e. 20th July, 2010. He submitted that apart from the fact that all circumstances on record clearly indicate that the applicant is not at all involved in the offence, the custodial interrogation of the applicant is no longer required. He pointed out that even according to the prosecution case the applicant was around the deceased during her period of hospitalization till her death and the applicant has spent about a sum of Rs.40,00,000/- on medical treatment of the deceased. He submitted that these two facts clearly indicate that the applicant tried his best to save the life of the deceased. He pointed out that the charge under Section 304 was inconsistent with the prosecution case of commission of offence under Section 306 of the Penal Code. He relied upon a decision of the Apex Court in the case of Habib Usman vs. The State of Gujarat, (AIR 1979 SC 1181). He also invited attention of the Court to the decision of Gauhati High Court in the case of Birajit Sinha and ors. vs. State of Tripura, (2004 CRI. L.J. 4485) in support of his submissions. Lastly he submitted that the monsoon session of the Goa Legislative Assembly has commenced. He pointed out the 9 averments made in the application and especially paragraph 27 thereof to show the position in which the applicant will be placed if the applicant is forced to attend the session of the Assembly While in custody. He submitted that the applicant is being harassed by the police deliberately, in view of the letter addressed by the applicant himself on 2nd June, 2010 to the Chief Minister of the State. He pointed out that a so called N.G.O is pressurizing and threatening the Government to take action against the applicant and the entire exercise undertaken against the applicant is politically motivated. He invited attention of the Court to grounds taken in the reply filed by the prosecution. He submitted that there is no allegation that the applicant has tampered with the prosecution evidence from 5th June, till 3rd July, 2010 when the applicant was not in the custody. He, therefore, submitted that this is a case where the applicant should be enlarged on bail even by subjecting the applicant to very stringent terms and conditions. 8. The learned Public Prosecutor supported the order passed by the Sessions Court by which bail applications made by the applicant have been rejected. He produced for perusal of the Court investigation 10 papers. He pointed out that the mother of the deceased has been arrested and her police custody has been granted. He stated that the Investigating Officer wants to apply for extension of police custody of the applicant as the Investigating Officer wants to confront the applicant by the information revealed by the mother of the deceased during the course of her interrogation. He submitted that recovery of important articles is yet to be made. He submitted that at this stage no case is made out for grant of bail. He pointed out that so far the applicant has not applied for permitting his attendance in the Legislative Assembly. He invited attention of the Court to the decision of the Apex Court in the case of Prahlad Singh Bhati vs. N.C.T. of Delhi, (2001 (4) SCC 280). 9. I have considered the submissions and perused the papers relating to investigation. It is not disputed that the Applicant had close relationship with the deceased. The Applicant is married. The deceased was also married. Divorce suit between the deceased and her husband was pending. During the investigation, material appears to have been collected on record to show that the applicant and the deceased were together in one restaurant in the evening on 13th May, 2010. 11 Moreover, there is material to show that the applicant was in touch with the deceased on 14th May, 2010, both by conversation on cell phone and by virtue of SMS. The cell phone extracts of cell phone of the deceased indicate that on 13th May, 2010 at 9.36 p.m., the deceased had conversation with the applicant. On 14th May, 2010 there are at least four to five calls have been recorded. The two of the calls extended to more 100 seconds. Thereafter, on 15th May, 2010 at 1.02 p.m. there was a conversation between the applicant and the deceased lasting for 38 seconds. On 15th May, there is one SMS exchanged between the two. Thus, there is material on record to show that the applicant was constantly in touch with the deceased on 13th May, and 14th May, 2010. It is not in dispute that the applicant was present when the deceased was admitted to Apollo Victor Hospitals, at Margao. The Applicant was all along around the deceased till her death. On the case papers of Apollo Victor Hospital, at Margao, history of only Rattol consumption at 9.30 a.m. was noted. On the very day, the deceased was taken to Jupiter Hospital at Thane. The case papers of Jupiter Hospital record not only that there was history of consumption of Rattol, but what is recorded is consumption of 20 tablets of Restyl (o.25mg) in the evening of 14th May 2010. On 16th 12 May, 2010, the statement of the deceased has been recorded by a Special Executive Officer in Jupiter Hospital at Thane, which records that while the deceased was brushing her teeth, she accidentally used Rattol paste instead of toothpaste. There is no reference to consumption of any tablets in the said statement. Therefore, it creates some doubt about the correctness of the statement. 10. The first post-mortem report is of Dr. R. Baskar, Professor, Department of Forensic Medicine, G.R.H., Chennai. It records 14 injuries on the person of the deceased, out of which 3 are surgical injuries. Injuries No.4 to 14 are all contusions and the cause of death is due to poisoning and its complications, with multiple contusions. Only three injuries are stated to be surgical, but apart from the said injuries, there were contusions on the right forearm, left forearm, wrist, right half of lower lip, right thigh, right leg, left thigh, left leg, back of left shoulder and chest. The finding recorded is that the death appears to have occurred not only due to poisoning and its complications but due to multiple contusions. The report records that certain contusions might have been caused by blunt object like wooden 13 log or similar hard object. Therefore the prosecution has stated that the weapon of assault is yet to be recovered. There is a further clarification issued by the same Dr. R. Baskar, in which he has stated that the injuries over the trunk and extremities are contusions caused by blunt object like wooden log or similar hard objects and they can be 14 plus or minus 2 days of age. He has stated that the bruising of para laryngeal tissues could be due to force while gripping or causing pressure over that region from outwards. He has noted that the injury over the lower lip could be due to fisting or by applying similar force. 12. Apart from the said post-mortem conducted on 31st May, 2010, there is one more report of autopsy dated 1st June, 2010 held in Goa. Some of the injuries which have been shown as ante-mortem injuries in the post-mortem report at Chennai, are shown as post- mortem injuries in the Memorandum of Autopsy dated 1st June, 2010 of Hospicio Hospital at Margao. However, it is noted that the finding as to cause of death has been reserved till the report of the various investigations are made available. The finding is not yet available. The Applicant was around the deceased in three hospitals. When the second autopsy was held in Goa, the Applicant was a cabinet Minister. 14 13. As stated earlier, the applicant was taken in the police custody on 8th July, 2010. The learned Public Prosecutor has stated that the Investigating Officer wants to apply for further police custody tomorrow before the learned Magistrate. He pointed out that the record of the messages and calls was already wiped out from the cell phones of the Applicant before the same were seized. The two cell phones of the deceased, her laptop, her passport have not been recovered. There is record to show that one cell phone of the deceased was being used till 5th June 2010. The investigation is in Progress. As of today, the material collected during the investigation shows complicity of the applicant. The offence is of very serious and grave nature. The applicant did not appear for investigation from 5th June, 2010 and notwithstanding the fact that in the applications for anticipatory bail filed before the Sessions Court and before this Court there was no ad- interim relief granted, the applicant was not available for investigation and he successfully avoided his arrest for nearly a month. 14. The applicant surrendered before the learned Sessions Judge on 3rd July, 2010. On the basis of certain medical certificate, the 15 applicant was immediately hospitalized in Hospicio Hospital at Margao. The learned Sessions Judge recorded prima facie finding in the order dated 7th July, 2010 that there is a serious doubt about the correctness of what is stated in the said medical certificate. On the next day, i.e. on 8th July, 2010, the applicant was found to be fit by Government Medical College hospital and was discharged from Hospicio Hospital at Margao and that is how he became available for investigation. Thus, there is a persistent effort by the Applicant to avoid interrogation by Police. The learned Public Prosecutor has pointed out that now the mother of the deceased has been arrested. Custody of the applicant is required for recovery of articles of the deceased as stated earlier and for confronting the applicant with the information gathered from the mother of the deceased. 15. As stated earlier, as of today, prima facie, there is a material against Applicant. The investigation is at preliminary stage. The fact that the applicant who is a political figure has managed to successfully remain away from the police from 5th June, 2010 till 3rd July, 2010 is also a factor which is required to be considered while dealing with the application for bail made by the applicant at a stage when he has 16 completed 10 or 11 days in the police custody. There are 9 other offences registered against the Applicant, out of which two have resulted in acquittal. 16. Taking overall view of the matter, this is not a case where, at this stage, the prayer for bail can be granted. The fact that the applicant is a Member of the Legislative Assembly is no ground for grant of bail. If the applicant desires to attend the ongoing session of the Assembly or his presence in the Assembly is required, an appropriate application can be always made by the applicant before the appropriate Court for grant of permission to attend the Goa Legislative Assembly under the police escort. 17. It is stated that the applicant will be produced before the learned Magistrate tomorrow and the prosecution desires to apply for continuation of police custody. Though this Court is not inclined to grant bail, at this stage, it must be observed that the application that may be made by the Investigating Officer will be considered by the learned Magistrate without being influenced by rejection of the application for bail by the Sessions Court as well as by this Court. 17 The learned Magistrate is bound to consider the objections raised by the applicant for continuation of police custody on its own merits. 18. Subject to what is observed above, the application is rejected. The observations made herein are only tentative observations which will not affect the merits of the case. A.S. OKA, J. ssm.