Carles Cardozo v. State — 1993 DIGILAW 473 (BOM)

JUDGMENT (ORAL) DR. E.S. De Silva, J. - This revision is directed against the Judgment of the learned Additional Sessions Judge, Margao, dated 30th March, 1993 affirming the judgment of the learned judicial Magistrate, First Class, Vasco Da Gama dated 30th December, 1992. By the aforesaid judgment the learned Magistrate has convicted the petitioner for offence under Section 394 of the Indian Penal Code and-sentenced him to undergo two and half years of rigorous imprisonment and to pay a fine of Rs. 1,0001- or in default to undergo six months simple imprisonment. In addition the petitioner has also been sentenced to enhanced punishment under Section 75 of the- Indian Penal Code. 2. The case of the prosecution is that on 8.6.1991, at about 7.00 a.m., the petitioner hired a taxi bearing No. GA-01/V/0129 belonging to the complainant Mahesh Naik at Mapusa taxi stand stating that his brother has been arrested by the Mapusa Police and that he wanted to go to Margao to meet brother of one Churchill Alomao in order to bail out the said brother. The complainant then asked the petitioner to board the taxi and as per his instructions was made to give a round at the Police Station of Mapusa first and thereafter directed to go to Margao via Mova lake and Maddel towards Ribandar side. Before going, to Margao he was told to take the taxi and have a round to Mova Goa Motel. Thereupon he come to Margao via Cortalim road and on reaching Margao he was asked to stop near a printing press wherein the petitioner got down. After a little while he came back and told the complainant to start for Panaji. It was further the case of the prosecution that on reaching Kasarval near the Motel the petitioner told the complainant to take the taxi at the side road which is existing to the left while proceeding to Panaji. On reaching some distance at a lonely place the petitioner asked the complainant to stop and then he assaulted the complainant with fist blows and kicks given on his stomach and chest and at the same time snatched away from his neck the gold chain weighing about 2.5 sovereigns (libras). Thereupon he also took the key of the car and removed from the internal drawer of the vehicle cash of Rs. Thereupon he also took the key of the car and removed from the internal drawer of the vehicle cash of Rs. 2000/- and some loose coins which coins he threw down and went away with the gold chain and cash. Complainant thereafter went to Mapusa Police Station where he tried to lodge his complaint but was told to lodge it at Vorna Police Station. There after he returned back and filed the complaint at Vorna Police Station on the same day. At the completion of the investigation the charge-sheet was filed against the petitioner in the court of Judicial Magistrate, first Class, Vason. The learned Magistrate after recording evidence found the petitioner guilty for the aforesaid offence under Section 394 of the Indian Penal Code and sentenced him accordingly. This sentence was upheld by the learned Additional Sessions Judge by the judgment under challenge in this revision. 3. Shri Nitin Sardessai learned Counsel appearing on behalf of the petitioner under the legal aid scheme, has vehemently argued against the impugned judgment of the learned Additional Sessions Judge by assailing the same on several grounds. It was his first grievance that the learned Sessions Judge has unduly relied on the so-called recovery of the gold ingot as being the melted gold provident from the complainant's chain for the purpose of convicting the petitioner for offence of theft of the gold chain of the complainant. According to the learned counsel what was actually recovered was not the gold chain but instead merely melted gold. Recovery of melted gold could not De said as discovery of the gold chain made by the Investigation officer at the instance of the accused/petitioner. It was contended by the learned counsel that the goldsmiths were always used to melt gold or keep gold ingots in their shoes and therefore the circumstances of a gold ingot having been reached from the jeweler’s shop on that day could not link the petitioner to the offence of theft of the complainant's gold chain. As such the learned trial Judge and for that matter the learned Sessions Judge should not have given any relevance to this recovery and the attachment of the melted gold and/or treat the same as equivalent to the discovery of gold chain and/or of the gold resulting of the melting of the said gold chain. 4. As such the learned trial Judge and for that matter the learned Sessions Judge should not have given any relevance to this recovery and the attachment of the melted gold and/or treat the same as equivalent to the discovery of gold chain and/or of the gold resulting of the melting of the said gold chain. 4. Although impressive prima facie I am of the view that this submission of the learned counsel is not to be accepted. It is a fact that what was attached by the Police consequent upon the complaint lodged by the complainant Mahesh Naik to the effect that the petitioner has snatched away from his neck a gold chain was only a gold ingot and not a chain. But the circumstances under which the said attachment and recovery was done becomes very material to establish The relevancy of such attachment and suggest a direct link between The melted gold and the complainant's chain. In this respect the evidence available on record clearly indicates that consequent upon the complaint lodged by Mahesh the petitioner was identified as the suspect of the assault and robbery through the information given by one Ticlo who was standing in the bus stand and thereupon the complainant with the help of one taxi driver Sudesh (P.W. 5) went to his house at Britons where he was actually found. Later on the petitioner was arrested by the Police and only then that the recovery of the gold was done by the Investigation Officer at the instance of the petitioner. P.W. 1 Naval Gomes has deposed that it was in his presence that the petitioner has expressed his willingness to show The person and the place where he had sold the gold chain and it was on account of this disclosure that he was asked by The Police to accompany The party alongwith the other panchs. Accordingly after leaving the Police Station the petitioner took the party first to P.W. 6 Lorance Gomes by saying that it was through him that the gold chain had been sold to a goldsmith. Then alongwith Lorance all went to the shop of P.W. 3 Raju Salkar wherein the said Raju admitted that the gold chain had been sold to him by the petitioner who was accompanied by P.W. 6 Lorance. Then alongwith Lorance all went to the shop of P.W. 3 Raju Salkar wherein the said Raju admitted that the gold chain had been sold to him by the petitioner who was accompanied by P.W. 6 Lorance. The said P.W. 6 Lourance has also admitted that he actually helped the petitioner to dispose of the chain when he had approached him for that purpose adding also that on earlier occasions he had also helped the petitioner to sell gold chains to the said P.W. 3 Raju Salkar. It is in this context That The recovery of the melted gold from the shop of Raju Salkar is to be understood and construed as relevant piece of material evidence connecting the petitioner to the sale of a gold chain to Raju Salkar as being the chain which according to the complainant P.W. 4 Mahesh has been snatched away by the petitioner from his neck. To be noted that Raju Salkar himself has admitted before P.W. 1 that the gold ingot which was found in his possession was the ingot prevention from the melted gold chain sold by The petitioner. Being so I am satisfied That both the learned Trial judge as well as the learned Sessions Judge were right in relying on the said recovery for the purpose of recording a finding that the said recovery would help the prosecution to establish the link between the removal of The gold chain by the petitioner from the neck of the complainant and the gold found in possession of Raju Salkar as a result of the sale of the gold chain by the petitioner. 5. It was next submitted by the learned counsel that in his complaint Mahesh Naik has stated that the gold chain removed from his neck by the petitioner was weighing about 2.5 sovereigns (libras) which is equivalent to 20 grams. However, in his deposition Raju Salkar has stated that the gold not which was the result of the meting of the coin sold by the petitioner was weighing about 12 grams while in cross-examination he amused that the said weight might be to grams. According to The learned counsel This discrepancy only suggests that the gold ingot attached From Raju Salkar could not be the gold resulting From the melting of The complainant's chain. According to The learned counsel This discrepancy only suggests that the gold ingot attached From Raju Salkar could not be the gold resulting From the melting of The complainant's chain. To be noted that The reference made by Mahesh in his complaint to the weight of his chain by approximation. Mahesh has said that the chain was weighing about 2 libras. Therefore the reference to the weight has to be understand in its proper meaning because it is nobody's case That the weight mentioned by The complainant has been accurately referred to by him at the time the complaint was lodged with the Verna Police Station. On the other hand the fact of Raju Salkar having stated in his deposition that the weight of the melted gold was about 12 grammes or might be even to grams clearly suggests that The reference to The weight of the melted gold was made by him very casually and certainly not after having taken the actual weight of The ingot attached by the Police. It is nobody's case that before The attachment of recovery of the gold ingot the same was properly and accurately weighed in the presence of Raju Salkar. Being so The second submission of the learned counsel also fails. 6. It was also urged by the learned counsel that assuming that the recovery of the gold ingot was properly done no credence could be given to the deposition of either P.W. 3 Raju Salkar or P.W. 6 Lorance in view of the intrinsic contradictions and in consistences which one can find in their depositions when confronted with each other with regard to the material points as to the person who had actually sold to Raju Salkar the gold chain in his shop. According to the learned counsel both the witnesses being interested witnesses is not revealing the truth on the matter on account of their obvious involvement in the affair so much reliance could be placed in their depositions with regard to the question of the alleged sale of the gold chain by the petitioner to Raju. According to the learned counsel both the witnesses being interested witnesses is not revealing the truth on the matter on account of their obvious involvement in the affair so much reliance could be placed in their depositions with regard to the question of the alleged sale of the gold chain by the petitioner to Raju. The learned counsel has therefore urged that it was not proper on the part of the Magistrate and also for the learned Additional Sessions Judge to believe in the testimony of these two witnesses to come to the conclusion that the gold chain had been actually sold or disposed of by the petitioner to the said Raju. 7. There arc indeed some contradictions between the depositions of both these two witnesses when confronted with each other. In this respect while P.W. 3 Raju Salkar has stated in his deposition that the gold chain was sold to him in his shop by P.W. 6 Lorance the said P.W. 6 Lorance in his deposition says that when the petitioner approached him to ask his help to dispose the gold chain he took the petitioner to the shop of Raju Salkar but he remained outside while the petitioner went in and disposed the gold chain directly to the said Raju. P.W. 6 therefore denies that he was even present inside the shop of Raju which the chain was sold by the petitioner to the said Raju. However, I am of the view that inspite of this inconsistency the evidence of both these witnesses cannot be discarded for the purpose of corroborating the prosecution evidence with regard to the discovery of gold chain made by Raju Salkar. It is fact that the said Raju in his deposition has said that the chain was sold to him by Lorance. But he has also stated and reaffirmed that while selling the chain Lorance was accompanied by the petitioner. P.W. 1 also in his deposition has stated that P.W. 6 has admitted having accompanied the petitioner to the shop of Raju Salkar for the purpose of selling the gold chain and that when he went to Raju Salkar's shop for the purpose of recovery the said Raju has admitted that the chain had been sold to him by the petitioner who at the time was accompanied by P. W. 6 Lorance. All this evidence goes to show that the fact of the sale of gold chain in Raju Salkar was done in the presence of the petitioner and Lorance. Therefore the testimony of these two witnesses has to be accepted with a pinch of salt as rightly observed by the learned Sessions Judge because being both somehow interested in not disclosing the whole truth each of them in their own way tried to minimise the extent of their participation in the offence of illegal disposal by the petitioner of the gold chain which had been snatched away by him from the complainant's neck. For these reasons I am unable to find any fault in the fact of both the learned trial Judge and the learned Additional Sessions Judge as well having relied on the evidence of these two witnesses in support of the prosecution case. The next grievance of the learned counsel was that the deposition of P.W. 1 Navol Gomes as well as P.W. 3 Raju Salkar and also P.W. 6 Lorance Costa corroborate the fact represented by the complainant Mahesh that the gold chain removed by the petitioner from the complainant's neck had a locket bearing the initial 'M' which suggests that it belonged to the said complainant whose name is Mahesh. This being a material element to establish a direct link between the chain purportedly sold by the petitioner to Raju and the one which is alleged to have been snatched away by him from the complainant it was the duty of the learned trial Judge while recording the statement of the accused/petitioner under Section 313 Cr. P.C. to put this circumstance to him in order to enable him to offer his explanation on this aspect. According to the learned counsel there were also other incriminating circumstances relied by the prosecution on which the learned trial Judge has based the conviction of the accused which were not put to him at the time of recording the statement under Section 313 Cr. According to the learned counsel there were also other incriminating circumstances relied by the prosecution on which the learned trial Judge has based the conviction of the accused which were not put to him at the time of recording the statement under Section 313 Cr. P.C. The learned counsel has observed that besides the existence of the locket the learned trial Judge has not made any reference during the recording of his statement to the recovery of the coins done at Kosarval as well as to the recovery of the melted gold from P.W. 3 Raju as incriminating circumstances on which the learned Judge had placed reliance to arrive at the conclusion that the petitioner was guilty of the offence of which he was charged and to convict him for the said offence. The learned counsel contended that this failure on the part of the learned trial Judge would vitiate the entire trial to the extent that he has based the conviction on facts in respect whereof the accused/petitioner was not given an opportunity to explain about the incriminating circumstances which have led to his conviction. 8. The learned counsel has cited the decision in the case of Sharad Birdi chand Sarda v. State of Maharashtra1 which while dealing with the provisions of Section 343 Cr. P.C. with regard to the examination of the accused and to certain circumstances not put to the accused and the Supreme Court has held that the same could not be used against him. In this regard the Supreme Court, while referring to the case of Nato Singh Bhagat Singh v. State of Madhya Bharat2, wherein it has been held that any circumstances in respect of which the accused was not examined under Section 313 Cr. P.C. could not be used against him, observed that ever since this decision there has been a catena of authorities uniformly taking the view that unless the circumstances appearing against an accused was put to him under Section 342 or Section 313 of Criminal Procedure Code the same could not be used against him. P.C. could not be used against him, observed that ever since this decision there has been a catena of authorities uniformly taking the view that unless the circumstances appearing against an accused was put to him under Section 342 or Section 313 of Criminal Procedure Code the same could not be used against him. The learned Counsel has further contended that even assuming that the appellant in cross-examination of the prosecution witnesses had not denied certain facts averred by them the fact by itself could not amount to any admission of such fact" and still the same being incriminating circumstances should have been put to the petitioner at the time his statement was recorded under Section 313 Cr. P.C. in order to enable him to explain these circumstances if the prosecution wanted to rely on the same in order to convict him. That was exactly the ratio of the aforesaid Full Bench decision of 1984. 9. Shri Bhobo in his turn has joined strong issue on these submissions. He has relied on the scope of Section 397 of the Criminal Procedure Code according to which this High Court may call for examination of records and proceedings before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded by that Court and as to the regularity of any proceedings of such Court. It was urged that in this respect no finding had been recorded by the learned Sessions Judge on the question of failure on the part of the Magistrate to put to the accused circumstances which as per the appellant's say were incriminating for the purpose of his conviction. It was submitted that this occurred because such question was not even raised by the appellant before the learned Session Judge. Hence there was no scope for this Court to assail the legality of any such finding which has not even been recorded by the learned Sessions Judge. Being so the High Court was not required to interfere when there was no such positive finding with regard to its legality, perversity or lack of jurisdiction. 10. Although the point raised by the learned Public Prosecutor to be attractive I do not think that I should debar the petitioner to raise the issue even at this belated stage of the proceedings. 10. Although the point raised by the learned Public Prosecutor to be attractive I do not think that I should debar the petitioner to raise the issue even at this belated stage of the proceedings. The question put by the petitioner is of utmost importance and is directly connected with a settled point of law. There cannot be any dispute about the proposition laid down by the Supreme Court in the Full Bench ruling of 1984 relied upon by the petitioner. But the real issue which arises for determination is to find out as to whether in the facts and circumstances of the case, actual and relevant incriminating circumstances eventually relied by the prosecution were or not put to the petitioner/ accused to enable him to explain before a finding of conviction was recorded against him on the basis of such circumstances and whether this failure, if any, has caused gross miscarriage of justice or prejudice and injustice to the petitioner. In this regard Shri Bhobo has contended that he prosecution has mainly remain on the testimony of P.W. 1 Navol Gomes as well as the evidence of P.W. 3 Raju Salkar, P.W. 4 complainant Mahesh Naik and P.W. 6 Lorance Costa. The record shows that substantially all this material evidence was put to the accused during the examination under Section 313 Cr. P.C. It is a fact that certain points of detail, namely, with regard to the existence of the locket in the chain with initials 'M' suggesting that it belonged to the complainant Mahesh as well as the recovery of the melted gold from Raju Salkar and the loose coins near the place of the incident were not referred to the appellant for his explanation. Out the fact remains that irrespective of the recovery of the melted gold of the chain or the identification of the said chain and of the locket and also the recovery of the coins the evidence available which appears to be more than sufficient to convict the appellant seems to have been put to the accused during his examination under Section 313 of Cr. P.C. It is therefore obvious that the entire chain of circumstances which has been brought home through the evidence of P.W. 1 Novel Gomes, P.W. 2 Raju Salkar, P.W. 4 Mahesh Naik and P.W. 6 Lorance Costa is for all purposes complete and consistent to convict the petitioner. P.C. It is therefore obvious that the entire chain of circumstances which has been brought home through the evidence of P.W. 1 Novel Gomes, P.W. 2 Raju Salkar, P.W. 4 Mahesh Naik and P.W. 6 Lorance Costa is for all purposes complete and consistent to convict the petitioner. In the circumstances the failure on the part of the learned Judge to place before the petitioner certain points of detail which would strengthen the case of the prosecution and incepted him to arrive at the conclusion that the petitioner was guilty of the offence under which he was charged and convicted cannot be said as having caused prejudice to him. 11. Reliance placed by the learned Public Prosecutor on certain decisions of the Supreme Court seems to be very much to the point. In the case of Corporation of the city of Nagpur v. Dattotrays Balkrishna3, in respect of Section 313 Cr. P.C. a Single Judge of this Court has held that only circumstances appearing in the evidence against the accused had to be put to him and not all the details about them. The said details in evidence on the bad points are not required to be put to the accused. 12. In the case of Ramjan Ali Anr. v. State of Assam4, dealing also with the same Section 313 Cr. P.C. a Single Judge of the Gauhati High Court observed that though the examination of the accused persons under Section 313 Cr. P.C. is not a mere formality but an opportunity given to the accused to explain all the circumstances appearing against him, a trial will not be vitiated if no serious prejudice is caused due to not affording the opportunity to explain the circumstances full y and satisfactorily. 13. In another decision of A. Palani v. State5, another Single Judge of this Bench also ruled on Section 313 Cr. P.C. that every material circumstances accruing in the evidence were required to be put to the accused for his examination under Section 313 Cr. P.C. but the failure to do so would vitiate the trial if it has prejudiced the accused. If no prejudice was caused to the accused the irregularly was curable under Section 537 of Cr. P.C. 14. P.C. that every material circumstances accruing in the evidence were required to be put to the accused for his examination under Section 313 Cr. P.C. but the failure to do so would vitiate the trial if it has prejudiced the accused. If no prejudice was caused to the accused the irregularly was curable under Section 537 of Cr. P.C. 14. It thus follows that for the reasons mentioned above it is difficult to accept that the failure on the pan of the prosecution to bring contain incriminating circumstances which although might have been relied by the learned trial Judge were essential or necessary for the purpose of recording a finding of guilt of the petitioner and as such it is to be deemed as having caused miscarriage of justice of prejudice to the petitioner. Hence this submission of the learned counsel also fails. 15. This takes us to the last submission advanced by Shri Sardessai with regard to the non holding of the identification parade by the Investigation Agency for the purpose of identifying the accused as the actual assailant of the complainant. The learned counsel has argued that the complainant in his complaint has not been able to identify the petitioner by his name although he has referred to some physical features and certain details about the manner in which he was dressed. Similarly P.W. 9 P.S.I. Babu Tamus has stated in his cross-examination that the complaint was lodged by Mahesh Naik against an unknown person although the description of the person was given by him. He further stated however that in his supplementary statement Mahesh has referred to the accused as being 'Pakla' of Pomburpa. It was then contended by the learned counsel that if the complaint was admittedly lodged against an unknown person judicial propriety demanded that an identification parade should be held in order to ascertain the proper identify of the accused. This was, according to the learned counsel, very vital for the administration of justice so that it could be served as a corroborative evidence for the prosecution. The learned counsel has made a grievance that when the complainant identified the accused petitioner for the first time in the Court the said identification was totally valueless, as much as the said identification was done by him after more than 1-1/2 year and that also in the Court. The learned counsel has made a grievance that when the complainant identified the accused petitioner for the first time in the Court the said identification was totally valueless, as much as the said identification was done by him after more than 1-1/2 year and that also in the Court. The said identification could therefore create confusion in the mind of the complainant as to the correct identification of the petitioner. The learned court sel relied on the case of Kanan Ors v. State of Kerala6, wherein it was held that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under S. 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In another decision of State (Delhi Admn.) v. V. c. Shukla and another7, the Court reiterated the earlier decision by ruling that the identification of a person by witness for first time in Court without being tested by a prior test identification parade is valueless. 16. Without disputing the validity of the proposition laid down by the Supreme Court in the aforesaid two decisions and with due regard to the learned counsel it is impossible for me to appreciate the point sought to be raised by the learned appellant's counsel in this respect. The aforesaid decisions have obviously been given on facts and refer to the position of a witness who had seen the accused for the first time, while here is a case wherein the identification is done in the Court not by any causal witness, but instead by the very complainant who has been the target and victim of the assault and robbery on the part of the petitioner. The evidence shows that on that day the petitioner was driven by the complainant in the taxi hired by the said petitioner and travelled with him for more than two hours from Mapusa to Margao, sitting by the side of the complainant. Therefore it could not be said that the acquaintance of the complainant with the petitioner was just a casual one and the subsequent facts which occurred are in my view more than sufficient to make me believe that there was sufficient reason for the complainant to keep alive in his memory the physical features and the correct identification of the accused/petitioner who had assaulted him with fist blows after snatching from his neck a gold chain and stealing also cash from the taxi. The complaint lodged by P.W. 4 on the very day suggests this much because although he was not able to on that day to disclose the name of the petitioner he however described not only what was the dress he was wearing but also the physical features of the petitioner. Further the evidence of P.W. 9 Babu Tomba also reveals that in the supplementary statement Mohan identified the appellant as being known as 'Paklo' of Pomburpa. This has to be linked with the fact that on the very day and after the assault Mahesh want along with P.W. 5 Sudesh Divkar to Pomburpa in search of the accused after having been informed by one Ticlo who is running a Petrol Pump at Mapusa that the assailant might be the petitioner Carlos Cardozo. All these facts go to show that the petitioner was very much identifiable in the mind of the complainant and therefore the question of any identification parade to enable him to ascertain the correct identity of the petitioner does not seem to arise at all. 17. Shri Bhobo is also right when he has submitted in this regard that no identification parade was required when there were connecting and intervening circumstances linking the accused/petitioner to the offence committed by him. In the instant case we have seen that there is sufficient material to suggest that the complainant was in a position to fully identify the assailant although he was unable to disclose his name and in fact he has so done in the complaint lodged by him before the Police on the very day of the incident. In the instant case we have seen that there is sufficient material to suggest that the complainant was in a position to fully identify the assailant although he was unable to disclose his name and in fact he has so done in the complaint lodged by him before the Police on the very day of the incident. It follows therefore that there was no necessity at all for any identification parade because identification parades are held only when a complainant has any doubt regarding the identity of the accused. I am therefore afraid that this submission of the learned appellant's counsel carries no substance being therefore bound to be rejected. 18. Before parting with this case I would like to record my deep appreciation for the valuable assistance rendered to the Court by Shri Nitin Sardessai who although holding his job under the Legal-Aid-Scheme has efficiently and proficiently handled the case of the petitioner to the best of his ability. 19. In the result I saw no merit in this petition which is hereby dismissed. Rule accordingly discharged. Petition dismissed. Deep appreciation for valuable assistance of counsel for petitioner recorded. 1. A.I.R. 1984 S.C. 1622. 2. A.I.R. 1953 S.C. 468. 3. 1979 M.L.J. 31. 4. 1988(1) Crimes 254. 5. 1988(2) Crimes 57 . 6. A.I.R. 1979 S.C. 1127. 7. A.I.R. 1980 S.C. 1382.