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1994 DIGILAW 542 (BOM)

Dilkush F. Dessai v. State

1994-09-16

M.S.VAIDYA

body1994
JUDGMENT (ORAL) M.S. Vaidya, J. - Heard Mr. F. Rebello, learned Counsel for the petitioner and Mr. G.U. Bhobe, learned public Prosecutor for the State. 2. This Application is directed against the order dated 29111 November, 1993 passed by the learned Sessions Judge, South Goa, Margao, allowing partly-the appellant's Appeal so as to confirm his conviction for an offence punishable under Section 379 of the Indian Penal Code made in Criminal Case No. 133/P/88 decided by the Judicial Magistrate, First Class, Quepem, but reducing the sentence to a fine from Rs. 1000/- to Rs. 500/-. 3. The contention of Mr. Rebello is that the conviction of the appellant is totally unwarranted on the facts as well as on law because, both the Courts below have taken an unreasonable view in believing the alleged two eye-witnesses and, secondly, they have ignored totally that the element of dishonesty in the alleged removal of vehicle was not proved at all. 4. The learned Public Prosecutor supported the decisions of the Court below and submitted that the offence in question had taken place at about 3.55 p.m. on 4.8.1988 and the FIR was lodged at 4.l0 p.m. on the same day. He submitted that the scooter was also traced outside the residence of the accused at about 4.30 p.m. on the same day. It was submitted that under such circumstances, there was some corroboration to the evidence of the eye-witnesses, namely, the first informant and PW 4, Chandrakant Dessai and that, therefore, the conviction was well warranted and justified. 5. The learned Counsel for the parties made available to us the copies of the depositions recorded by the learned Magistrate. PW 1, Lawrence Pereira is the Panch of the scene of offence, who tendered on record the Panchnama, (Exh.1-A), which pertained to the alleged scene of offence. PW 2- Tulsidas Naik was a Panch in whose presence the scooter was seized under Panchnama (Exh. 2-A). He told that the said scooter was found outside the residence of present revision petitioner. Mr. Rebello was right in contending that both the Panchnamas were wrongly admitted in evidence when the Panchnamas were not even read over to the witnesses and when the witnesses themselves had not narrated anything about the facts allegedly recorded in the Panchnamas. It appears that both the Courts below have ignored the point of legal proof of the two Panchnamas. 6. It appears that both the Courts below have ignored the point of legal proof of the two Panchnamas. 6. According to the prosecution, the present revision-petitioner who was accused No. 1 and one Deepak Dessai/ accused No. 2 in the case arrived on 4.8.1988 at about 3.30 p.m. near the petrol-pump of one Shirwaikar at Quepem and had seen the first informant, - Satyawan Devidas, (PW 3) and Chandrakant Dessai, (PW 4) standing at the said petrol pump. The scooter of the first info on ant was parked near the patrol pump. According to the prosecution, the keys of the scooter were snatched by the present revision petitioner and, then, he and the person accompanying him, rode away on the scooter bearing No. GDH 2194 which belonged to the first informant-Satyavan. The scooter was, then, allegedly found parked outside the residence of the present revision petitioner. According to the prosecution, the first information report was also lodged on the same day at about 4.00 p.m. and the scooter was recovered from the aforesaid place at about 4.30 p.m. 7. Besides the two panchas referred to above, the prosecution examined first informant-Satyawan and Chandrakant Dessai, (PW 4) for proving the incident in question. PW 5, Maheshwar Naik (PSI) seized the scooter and PW 6, ASI Gopeenath registered the FIR. There were no were witnesses to support the prosecution case. On perusal of the depositions of the first informant-Satyawan and PW 4, Chandrakand Dessai, we are of the view that the Courts below have ignored the fact that the evidence of the aforesaid two witnesses was very unnatural and that it deserved little credence. In the first place, there was no reason for the petitioner or accused No. 2- Deepak Dessai to know that the first informant and his friends were standing at the petrol-pump. There was much less reason to suppose that they know that the scooter of the first informant was parked outside the petrol pump. It is not even the averment of the first informant or Chandrakant that the petitioner or accused No. 2- Deepak had come to the petrol-pump for any other work. According to them, as soon as they arrived there, the revision-petitioner went near the first informant, snatched the keys which were in his hands and, then, drove the vehicle. It is not even the averment of the first informant or Chandrakant that the petitioner or accused No. 2- Deepak had come to the petrol-pump for any other work. According to them, as soon as they arrived there, the revision-petitioner went near the first informant, snatched the keys which were in his hands and, then, drove the vehicle. In the cross-examination, however, the first-informant told specifically that the revision petitioner drove away the scooter though key of the scooter had remained in his own hands. One fails to understand how he could do that within such a short while because, no case was made out that any of the two accused persons had a Master Key. In order to mend this version, Chandrakant Dessai told in his deposition that despite the attempt of the revision-petitioner to grab Ute key of the scooter, the key remained in the hands of the first informant himself and that the revision petitioner took away the vehicle after pushing it with his own force. It is surprising that such an evidence coming from the two alleged eye witnesses was found worthy of credence by the Courts below especially when it had come on record that Chandrakant Dcssai was not at all an independent witness but was a person interested in the first informant particularly on the background that he had stood surety for the first informant in some proceeding before the Magistrate. The appreciation of evidence by the Courts below could hardly be said to be satisfactory. It was more or less perverse so as to enable us to re-assess the evidence. 9. Both the Courts below have overlooked the fact that if at all a scooter was to be driven away with its own force or if at all a scooter was to be pushed away for taking it to some different place by the persons who were alleged thieves, the reaction of the first informant and his friend Chandrakant would have been certainly to ensure the prevention of such a removal of the scooter. Not only that there was no resistance on their part to taking away of the scooter but on the other hand. Chandrakant went on to tell that along with the first informant he kept on watching when the scooter was being taken away. Not only that there was no resistance on their part to taking away of the scooter but on the other hand. Chandrakant went on to tell that along with the first informant he kept on watching when the scooter was being taken away. Such inaction could not be said to be a natural reaction of a person whose costly vehicle like a scooter was being stolen away. 10. Again according to the prosecution, the vehicle in question was found immediately at about 4.30 p.m. in front of the house of the accused. Even if it is accepted, for the sake of argument that the accused had taken it away, if the intention was to steal away the vehicle, the vehicle would not have been left in that manner in front of the house of the accused No. 1/revision petitioner himself. Both the Courts below ignored the fact that for constituting the theft, it was obligatory on the part of the prosecution to prove dishonest intention in removing the alleged stolen article. The circumstances in this case do not at all warrant a conclusion that the removal, if at all there was any of the vehicle in question was with dishonest intention. 11. Some sort of bickering between the parties were suggested in the cross-examination. One need not go into the details of the bickerings. But even without going into them, the facts as they appear to have been presented to the Courts below were not at all sufficient to make out a case for theft of a scooter. The conviction as well as the sentence awarded to the revision-petitioner was unwarranted, Unjustified and not legal. 12. Therefore, we allow the Revision Application and set aside the conviction and sentence. Finding the revision-petitioner not guilty of the offence, we acquit him. The fine, if any, paid by him shall be refunded to him. The bail bond shall stand cancelled. Rule made absolute accordingly. Petition allowed.