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2017 Supreme(Bom) 1142
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT PANAJI
F.M. Reis, C.V. Bhadang, JJ.
State of Goa, Through Mapusa Police Station, Mapusa Goa - Appellant
Versus
Mr. Mervin Thomas Menezes, S/o Aloysius Menezes and Anr. - Respondents
Criminal Appeal No. 35 of 2013
Decided On : 07-03-2017
For the Appellant : Mr. Mahesh Amonkar, Additional Public Prosecutor.
For the Respondent:Mr. S.D. Lotlikar, Senior Advocate with Ms. M. Furtado, Advocate.
Headnote:Criminal Procedure Code, 1973 - Section 378-Appeal against acquittal.-Unless and until finding recorded by trial Court is found to be perverse, order of acquittal warrants no interference.
The nature, scope and extent of the interference available in appeal against acquittal is now well-settled. While examining a judgment of acquittal, the appellate Court is not justified in substituting a view if two views are equally possible, out of which, the trial Court has preferred one. In other words, unless and until the finding recorded by the Sessions Judge is found to be perverse or an impossible view, no interference is called for.
Indian Penal Code, 1860 - Section 97-Right of private defence.-If accused was acting in private defence then Court can grant benefit of right of private defence even if it is not raised.
It is now well-settled that while the prosecution is obliged to prove the case beyond reasonable doubt, the accused can succeed if the defence is probabalised. In other words, the standard of proof to prove the defence, (which would equally apply to a situation, where the Court is required to appreciate the evidence, in order to find out whether a case of exercise of right of private defence is made out), would proceed on preponderance of probability.
It is further well-settled that while appreciating the evidence in the context of a plea or possibility of the accused having acted in private defence, the evidence cannot be weighed in golden scales. The Court has to look to the broad probabilities and then to find out whether such a defence is probabalized.
Indian Penal Code, 1860 - Sections 97, 99 and 302-Acquittal from charge of murder.-Since accused not armed by weapon, not exceeded his right of private defence hence acquittal of accused justified.
It can, thus, be seen that it was the deceased, who was determined to break open the lock. No premeditation can be attributed to the accused, who had come on the spot, where the accused No. 1 had accosted the deceased on his act. The deceased was holding a hammer and screwdriver and it has also come on record that the accused No. 1 had sustained injury, which can be caused by a screwdriver, which injury has not been explained by the prosecution. The law requires and expects that the extent of right of private defence has to be commensurate with the apprehension. In other words, the accused cannot be permitted to take an undue advantage of the right of private defence by inflicting injury or causing harm more than what is necessary in response to the apprehension, which should be real. The question essentially depends upon the inference, which needs to be drawn from the attending circumstances and the evidence taken as a whole. Having regard to the facts as noted above, Court is unable to accept the submissions made on behalf of the appellant.
C.V. Bhadang, J.
By this appeal, the appellant/State is challenging the acquittal of the first respondent (accused no.1) from the offence punishable under Section 302 read with Section 34 of Indian Penal Code (IPC, for short).
2. The prosecution case may be briefly stated thus :
The first respondent is the son of Aloysius Menezes while the second respondent is his friend. The deceased Thomas Menezes happened to be the uncle of the first respondent. The incident in question occurred on 14/10/2008 at about 17.45 hours at flat No.G3, Kamat Park, Povocao wado, Moira, Bardez, Goa. The deceased Thomas was residing in the said flat along with his wife Carmen Menezes (PW12). The said flat comprises of two bed rooms, a kitchen and a hall. The flat is situated on the ground floor of the building. It is said that one of the bed rooms in the said flat, was in possession of Aloysius, who had locked the said room from outside. The rest of the flat was in possession of the deceased and his wife Carmen Menezes (PW12). According to the prosecution, Aloysius along with his mother, Magdelina Menezes and the first respondent were staying in a flat in the B Wing of the said building. Further according to the prosecution, there were constant quarrels and disputes between Aloysius and the first respondent on one hand and the deceased on the other, as regards the ownership of the said flat. There were complaints lodged by them against each other. According to the prosecution, some household articles belonging to the complainant Carmen (PW12), were lying in the bed room in possession of Aloysius.
3. On 14/10/2008, the deceased Thomas had gone to break open the lock of the said bed room and was carrying a hammer and a screwdriver. While he was trying to break open the lock, the respondents went there. It appears that there was some altercation between the first respondent and the deceased, whereupon, the deceased told that he wants to remove his belongings from the bed room. It is the material prosecution case that the second respondent caught hold of the deceased and the first respondent assaulted him with the hammer on his head. He was also assaulted with fist blows. As a result of the assault, the deceased sustained injuries, to which he subsequently succumbed. According to the prosecution, Carmen (PW12) raised alarm on account of which, PW1 Joe Alpers and Casao Colaco and other persons gathered on the spot, by which time, both the respondents fled away on a Bullet motorcycle. Indisputably, Aloysius, the father of the first respondent went to the police station and lodged a complaint against the deceased of having assaulted the first respondent. It appears that the police arrived at the spot, where PW12 lodged the complaint against the respondents, on the basis of which, an offence under Section 302 read with Section 34 of IPC was registered against the respondents. During the course of investigation, the Investigating Officer (IO) recorded the statements of the witnesses. A spot panchanama was drawn. It is said that the hammer and the screwdriver were recovered from the spot. The blood stained clothes of the respondents were recovered, on the basis of a confessional statement, under Section 27 of the Evidence Act. The seized articles were sent for report of the Chemical Analyser (CA) and the finding showed that the hammer as well as the clothes of the respondents, were having blood stains, matching with the blood group of the deceased.
4. On completion of the investigation, a charge-sheet came to be filed, which was eventually committed to the Court of Sessions.
5. The respondents pleaded not guilty and claimed to be tried. At the trial, the prosecution examined in all 18 witnesses and produced contemporary record of the investigation. The respondents did not enter into witness box, nor led any defence evidence. The defence of the respondents was of total denial and false implication.
6. The learned Sessions Judge framed a solitary point, as to
