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It is 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 and is upon the prosecution to prove. In the Hon’ble High Court of Bombay at Goa led through the single-bench by Hon’ble Justice Manish Pitale in the matter of Francis Nadar v. The State of Goa [CRMAB/468/2021] & Alexy Rony D’Souza v. The State of Goa [CRMAB/56/2021].

The facts of the case are a bail application arose 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 a total of five Accused persons in the present case.

The applicants have placed before this court that it was alleged that eight persons including the Applicants herein, had converged upon the house of one Imran Bepari, intending 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 equipment was thrown upon these eight persons, who allegedly attacked his house. The assailants were allegedly carrying arms including firearms.

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.

According to the learned Counsel appearing for the Applicants, even if the material brought on record along with the charge sheet, 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.

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.

The court concluded that “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.”

The court disposed of the application.

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Judgement reviewed by Pranav Vyas.