STATE OF GOA Vs. MR. MERVIN THOMAS MENE ZES & ANR.
LAWS(BOM)-2017-3-75
HIGH COURT OF BOMBAY (AT: PANAJI)
Decided on March 07,2017

STATE OF GOA Appellant
VERSUS
Mr. Mervin Thomas Mene Zes And Anr. Respondents

JUDGEMENT

C.V.BHADANG,J. - (1.) 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.;


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