1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(BAIL) NO. 280 OF 2009 Mr. Domnic Nazareth s/o. Reginaldo Nazareth, 22 years of age, Indian National, R/o. Gauchebhat, Merces, Goa. And presently in judicial Custody at Panaji through next friend Reginaldo Nazareth. ... Applicant versus 1. State through the Public Prosecutor. 2. P.I. Agacaim Police Station. ... Respondents Shri Arun Bras De Sa, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 22ND SEPTEMBER, 2009. ORAL ORDER On 10-5-2009, Anastacia Beach shack situated at Siridao Beach, Goa, saw two groups of picnickers, two deaths, two injured, and now two cases to be tried by the Court of Sessions. 2 2. The Applicant herein is accused No.3 in one of the said two cases which is awaiting framing of charge under Sections 302, 307, 326 r/w 34 I.P.C. and which came to be registered as Crime No.31/2009 at the instance of one Joe Almeida. The other is Crime No.32/2009 under Sections 143, 147, 148, 323, 326, 307 r/w 149 I.P.C. registered at the instance of one Judas Hilario Fernandes. It is hoped that both the cases will be tried simultaneously by the same Sessions Judge. 3. The said Judas Hilario Fernandes went for a picnic at the said shack along with his wife, father-in-law and close relatives numbering about eleven, at about 10.30 a.m. on the said date. Zenito Cardozo who is his cousin, at about 12.00 hours collected food for them in a jeep which he was again to collect from them at about 16.00 hours. 4. Francis @ Miranda D'Souza along with two of his friends by name Johnny and Santosh Kalel also went to the said shack at about 12.30 hours and ordered snacks and beer. By contacting over the phone they were joined by another three namely Joe, Hazel and another. By 2.30 p.m. they were joined by Sachin and Prasad Kubal and later by one Prakash @ Poko who is a panch of Merces Village Panchayat who came with Edwin @ Edu and by 3 3.00 p.m. theirs was a group of about eleven persons, and after food and drinks the said Francis @ Miranda D'Souza settled the bill of about Rs.7,480/- but continued to be in the said shack. 5. As arranged, the said Zenito at about 4.00 p.m. came to collect the said jeep along with Domnic(Applicant) and Mahavir and went to the place where the said Judas Fernandes was sitting with his family. Francis @ Miranda D'Souza was known to the said Domnic as both of them are from Merces village, and he had met Mahavir earlier with his friends Rahul Tendulkar. 6. Francis @ Miranda D'Souza called Mahavir first, and told him to sit near him and asked him as to why he was roaming with Zenito and his friends. Mahavir kept quite. Thereafter, Francis @ Miranda D'Souza called Zenito and asked him to sit at the very place where Mahavir was sitting and Mahavir was asked to standup. Domnic stood behind Zenito, and Domnic questioned Zenito whether he knew him and Zenito replied in the affirmative, and then further questioned him as to why he(Zenito) was talking bad about him(Francis) in the village and spoiling his name in a loud voice and at that time Zenito tried to get up(to go) but was caught by Francis @ Miranda D'Souza when Zenito is stated to have given a bite on his left hand and pushed 4 him down and as such he fell down. It appears that Zenito did not wish to be provoked and it is for that reason that the said Zenito tried to get up and go. The rest of the version can be stated in the very words of the said Francis @ Miranda D'Souza: “As I fell down Zenito pounched and started assaulting me with fist blows and scuffle started amongst us. His two friends were encouraging Zenito to assault him. As Zenito was assaulting him, Johnny and Santosh(both, since deceased) came to my rescue, but Zenito was violent and uncontrollable, and as such Johnny and Santosh took empty bottles which were lying on the table and started hitting on Zenito's head and at that moment Zenito removed a knife from his pant pocket and stabbed me on my stomach and as such I received cut injury on my stomach and started bleeding. On seeing this, Johnny and Santosh picked up more empty bottles from nearby tables and started hitting on Zenito's head and started stabbing him with the broken bottles on his leg. As Johnny and Santosh were assaulting Zenito with the broken glass bottles, Zenito turned around and stabbed Johnny and Santosh with the said knife where all four sustained bleeding injuries and fell down outside the shack ...” 7. The learned Sessions Judge was doubtful, as can be seen from para 8 of the Order dated 4-9-2009 whether the Applicant herein had played 5 any role to exhort Zenito to assault Miranda and thereafter Johnny and Santosh causing grievous injury to them which proved fatal to the said Johnny and Santosh but at the same time in para 9 observed that the Applicant herein is alleged to have played a role to encourage and instigate Zenito to inflict fatal injuries on the persons of Johnny and Santosh. 8. One fails to understand as to on what basis the learned Sessions Judge came to the conclusion that the present Applicant had instigated Zenito to inflict injuries on the persons of Johnny and Santosh. If the Applicant herein stood behind Zenito initially it is because he had no other option and one certainly could not expect him to stand behind the said Francis @ Miranda D'Souza. The only expression used against the present Applicant and the said Mahavir is that they encouraged Zenito to assault him. In what manner did Mahavir and Domnic(the Applicant) encourage Zenito to assault him? No words nor actions are attributed to them either by the said Francis @ Miranda or any other witness and in a situation like this, the submission made by the learned Counsel on behalf of the Applicant, that the present Applicant happened to be at a wrong time and at a wrong place to be implicated in the incident, is appealing. It is not the case of the said Francis @ Miranda that the Applicant or Mahavir went to the rescue of Zenito as both the deceased came to his rescue. Learned Sessions Judge has also observed that the exact role 6 played by each of them would be spelt out in detail as when the prosecution opens its case against them. It is to be noted that the investigating agency has already closed its case against them and the prosecution cannot, in law, reconstruct a case other than set out by them when the charge-sheet is filed. The application for bail had to be decided on the materials which were available and placed before the Court, along with the charge-sheet. 9. Learned Counsel on behalf of the Applicant has placed reliance on Dharmendra Patel v. State of Gujarat(2002 ALL MR(Cri) 452). That was a case where the role attributed to the accused-appellant was that he had made an oral exhortation and considering the said allegation and the fact that the accused was under incarceration for a long period of time the Apex Court granted bail to the accused. 10. Learned Public Prosecutor informs that the said Francis @ Miranda was arrested but was ordered to be released on bail. Be that as it may, considering the facts of the case, this was certainly not a case where bail could have been denied to the present Applicant. 11. Consequently the application deserves to succeed. The Applicant herein is hereby ordered to be released on bail, and shall be so released on bail 7 upon executing a bond of Rs.25,000/- with one surety in the like amount, to the satisfaction of the learned Sessions Judge, Panaji. N. A. BRITTO, J. RD