JUDGMENT V.M. Kanade, J.––The present appeal has been filed by the State, challenging the Judgment and Order passed by the Assistant Sessions Judge, North Goa, Panaji in Sessions Case No. 16/2003. By the said Judgment and Order dated 12th March, 2004 the Assistant Sessions Judge, North Goa, Panaji was pleased to acquit all the accused who were charged of the offences punishable under Sections 454 and 398 of the Indian Penal Code. Against the said Judgment and Order, Criminal Misc. Application No. 251/04 was filed along with Criminal Appeal - Stamp No. 1621/04. Initially since the respondents were not served, a non-bailable warrant was issued by this Court in the said application. Thereafter another Criminal Misc. Application No. 22/05 was filed for issuing a fresh non-bailable warrant and the said Cr. Misc. Application No. 22/05 was disposed of by passing an order for issuance of fresh non-bailable warrant. 2. There was a delay of 20 days in filing the appeal and therefore notice was issued on the said application and when the accused could not be served, non-bailable warrant was issued. On 29th June, 2005 the delay in filing the application was condoned. However, it appears from the record that it was wrongly mentioned that the said Criminal Misc. Application No. 251/04 was disposed of. From the record it can be seen that the application for condonation of delay was made in Cr. Misc. Application No. 158/04, whereas Criminal Misc. Application No. 251/04 was filed seeking leave to file appeal. Therefore what was actually disposed of on 29th June, 2005 was Cr. Misc. Application No. 158/04. After the delay was condoned the application for granting leave to file appeal namely Cr. Misc. Application was taken up for hearing alongwith the Criminal Appeal. Since the record had already been received by this Court, the learned P.P. Shri Sardessai and the learned counsel appearing on behalf of the respondents/accused Ms. Fonseca were heard at length. 3. Brief facts which are necessary for deciding this appeal are as under :–– The prosecution case against the respondents/accused was that on 20.1.2003 the accused at 18.00 hrs. entered the house of Smt. Alzira Saldanha and they were armed with deadly weapons and attempted to commit robbery. But this attempt was foiled by the complainant due to the alarm raised by the inmates of the house and therefore the accused ran away. entered the house of Smt. Alzira Saldanha and they were armed with deadly weapons and attempted to commit robbery. But this attempt was foiled by the complainant due to the alarm raised by the inmates of the house and therefore the accused ran away. The prosecution case is that one of the accused namely accused No. 1 was apprehended while he was trying to run away at a short distance from the house of the complainant and thereafter the accused were arrested. Charge-sheet was filed against the accused and charge was framed under Sections 454 and 398 of the Indian Penal Code. The accused did not accept this charge and pleaded not guilty. The prosecution examined 20 witnesses. The trial Court, after perusing the evidence on record, acquitted the accused. The accused remained in jail from the date of their arrest i.e. from 20.1.2003. 4. Shri Sardessai, the learned P.P. has taken me through the judgment and order of the trial Court as also through the oral and documentary evidence adduced by the prosecution. PW 2 Maria Saldanha who had lodged the complaint, stated in her evidence that accused No.3 was doing painting work in their house from 11.1.2003 to 14.1.2003 and thereafter after a short break of four days, he had recommenced his work on 18.1.2003. She has stated that at about 6.00 p.m. she saw three persons entering their house and thereafter they closed the main door. She has stated that normally the main door was always closed, however on that day accused No.3 had requested that the door may be kept open. PW 2 has further stated that the three persons were wearing long pants and short sleeves shirts and one of them was carrying a black bag and the colour of his shirt was light blue with checks, whereas his pant was bluish colour. She identified A-1 as Vinod, A-2 as Somnath and A-3 as Vijay. She stated that after the door was closed by the accused her sister-in-law asked them what they wanted, one of the persons put his hand on her sister-in-law's mouth and threatened her at the point of a crow-bar. At that point of time PW 2 went to rescue her. She stated that after the door was closed by the accused her sister-in-law asked them what they wanted, one of the persons put his hand on her sister-in-law's mouth and threatened her at the point of a crow-bar. At that point of time PW 2 went to rescue her. One of the three persons caught hold of her hand and dragged her to the other room and then she further stated that this person tried to assault her and showed her a pointed crow-bar. According to her the person who threatened her was A-2 Somnath and the person who dragged her to the other room was accused No. 1 Vinod. Further she stated that accused No. 4 assaulted her husband, as a result of which he sustained a bleeding injury on his palm. She was therefore frightened and all of them started screaming. All the accused thereafter went out of the main door. The complainant thereafter went out of the door and started shouting for help. One person according to her jumped on the road from the veranda of her house and members of the public caught hold of A-1 Vinod, whereas the other two accused ran away. PW 2 thereafter has stated that identification parade was carried out on 7.3.2003 in which she identified accused No.4. In the cross-examination of PW 2 number of contradictions and omissions were brought on record. Prosecution thereafter examined PW 3 Carmino Costa who is labourer of the complainant. He did not witness the incident of the attempt to commit robbery. He has however stated that accused No. 1 was caught by a motor cyclist while he was running on the road. He has stated that accused No. 1 was the same person whom he had seen outside the house of the complainant. Prosecution thereafter examined PW 4 Caetano Saldanha who is the son of the complainant. This witness also was not present when the incident took place as he had gone out and after he returned home, his parents told him that three persons entered the house and attacked them. PW 5 Damodar Dessai was the panch who drew the panchanama of the house of the complainant. PW 6 Alex Fernandes is working as a cook in the house of the complainant. PW 5 Damodar Dessai was the panch who drew the panchanama of the house of the complainant. PW 6 Alex Fernandes is working as a cook in the house of the complainant. He has stated that the accused No. 3 was a painter working in the house of the complainant and that accused No.3 had kept the main door of the house open. PW 6 Germana Saldanha, sister-in-law of the complainant has stated that three persons entered the house from the main door and that at that time the accused No.3 was at the back side of the house doing painting work. She has stated that one of the three persons had closed her mouth by putting his hand on it and the other person had assaulted her sister-in-law and the third person had assaulted her brother with a knife, as a result of which he had received an injury on his palm. PW 8 Shabir Einapure has deposed that he had seen the people who were chasing one person who had come out of the house of the complainant and has further stated that he had managed to catch this person and thereafter the other person caught hold of him and assaulted him. PW 9 Vinayak Alornekar is the Special Executive Magistrate who conducted the test identification parade. PW 10 Dr. Ashutosh Prabhudessai examined accused No. 1 Vinod Garade and he has stated in his evidence that A-1 was having chronic paranoid schizophrenia. However, he stated that he was fit for trial. In the cross-examination this witness has admitted that the accused No. 1 had a long history of schizophrenia and was taking treatment for a long time for his sickness. In cross-examination he has stated that it was necessary for this accused to take treatment and that the condition of the accused would become serious if the treatment was discontinued. He further stated that such persons suffering from the said disease were under some fear. PW 11 Rajendra Naik was examined as a panch witness in respect of the arrest of some persons. PW 12 was also a panch in connection with the panchanama of arrest of two person namely accused Nos. 3 and 4. PW 13 was also examined as a panch witness. PW 11 Rajendra Naik was examined as a panch witness in respect of the arrest of some persons. PW 12 was also a panch in connection with the panchanama of arrest of two person namely accused Nos. 3 and 4. PW 13 was also examined as a panch witness. PW 14 also is examined as a panch witness in respect of the recovery made at the instance of A-2 to prove the recovery of one knife, two bundles of string and chilli powder from the house of his sister. PW 15 Renuka Naik who is the sister of accused No.2 was examined and she has deposed that accused No.2 had pointed out the knife, string and chilli powder in the plastic bag which was kept by him in the house. PW 16 Santosh Naik also in his deposition has stated about this fact. PW 17 Natalina has merely stated she knew accused No.3. PW 18 Dr. Luiza Silveira examined Ivo Saldanha, the husband of the complainant and has stated that there was a lacerated would 5 x .5 cms. on the palm surface of the right hand between the first and second finger and stated that the said injury could be caused by assault with a pointed iron rod. PW 19 Sudesh Narvenkar was the Investigating Officer and has mentioned what steps had been taken by him during the investigation of the case. PW 20 Sammy Tavares took over the investigation of the case from PW 19 and has stated the further steps taken by him in the case. 5. From the entire evidence which is adduced by the prosecution, it can be seen that so far as accused No. 3 is concerned there is absolutely no evidence on record either to indicate that he was part of the conspiracy to commit dacoity along with the three other persons who allegedly entered the house. It appears that the name of accused No. 3 has been mentioned only on suspicion because, according to the complainant and her sister-in-law the accused No.3 had asked the complainant to keep the main door open on that day. In my view it will not be possible to accept this evidence and to draw an inference against A-3 on the basis of this evidence. In my view it will not be possible to accept this evidence and to draw an inference against A-3 on the basis of this evidence. Admittedly A-3 was employed by the complainant to do painting work in their house and that he was doing the work for a period of four days and has continued the work again after an interval of four days. At the time when the incident had taken place accused No.3 had not participated in the said event, as he was doing his painting work at the back side of the house. None of the witnesses have stated he was present in the house and had committed any overt act of attempting to commit dacoity or had demanded money from the complainant or the other inmates of the house. It is also not stated by any of these eye-witnesses that the accused No. 3 had run away from the house along with the alleged three intruders who had entered the house. Therefore, in my view there is absolutely no shred of evidence against accused No. 3 and the trial Court therefore has correctly recorded the finding. I do not see any reason to alter the said finding. 6. So far as accused No. 1 is concerned, the Doctor who has examined him has admitted that he was suffering from acute chronic schizophrenia which is a mental disorder. The Doctor in his evidence has stated that accused No. 1 was taking treatment for a very long time and even after he was arrested his treatment was continued. He has stated that persons suffering from such a disorder always entertain fear in their mind that they were likely to be blamed by others. Considering the opinion given by Dr. Dessai, PW 10, it can be seen that accused No. 1 is suffering from a mental ailment. PW 2 in her evidence has stated that the accused entered the house and thereafter jumped from the veranda of the house. It the panchanama of the scene of the house and offence is seen, it will be evident that there is a main road abutting the veranda of the house of the complainant. The accused, according to one witness was caught by a motor cyclist while the accused No. 1 was running on the road. It the panchanama of the scene of the house and offence is seen, it will be evident that there is a main road abutting the veranda of the house of the complainant. The accused, according to one witness was caught by a motor cyclist while the accused No. 1 was running on the road. Accused No. 1 has not been identified by the complainant in the identification parade, which was held by the said Executive Magistrate. Another witness has stated that he caught hold of accused No. 1 while he was running on the road and that the other members of the public assaulted him thereafter. This witness has not stated that accused No. 1 was caught by the motor cyclist. 7. Firstly in my view accused No. 1 has not been identified by the complainant or other witness in the test identification parade. Secondly, it is possible that accused No. 1 being a patient suffering from acute chronic schizophrenia after having heard the commotion may have started running and the other persons may have caught him. Nothing was recovered from accused No. 1 to indicate that he had participated in the attempt to commit robbery in the house of the complainant. In my view therefore there is no evidence to suggest that accused No. 1 had participated in the attempt to commit robbery. Further no weapon has been recovered from the accused No.1. The finding of the trial Court therefore acquitting accused No. 1 will have to be confirmed. 8. So far as accused No. 2 is concerned, he also has not been identified by the complainant in the identification parade. The prosecution has relied on the recovery made at the instance of accused No.2 from the house of his sister. What was recovered was merely a pair of strings along with some chilli powder and an iron rod. In my view, merely on the recovery of these items, it cannot be said that A-2 had participated in the attempted robbery and dacoity. None of the eye-witnesses have ever stated that chilli powder was used by A-2 after entering the room. The Investigating Officer also has not stated as to how he came to know about the existence of accused No.2 and/or the reason why A-2 was arrested because, admittedly all the witnesses have not given the description of the three accused in their statements. The Investigating Officer also has not stated as to how he came to know about the existence of accused No.2 and/or the reason why A-2 was arrested because, admittedly all the witnesses have not given the description of the three accused in their statements. Under these circumstances, therefore, it is doubtful whether accused No. 2 was the person who had entered the house of the complainant and the trial Court has correctly acquitted him by giving him the benefit of doubt. 9. So far as accused No. 4 is concerned, he has been identified by the complainant in the test identification parade which was held on 7.3.2003. No recovery has been made from accused No.4 in respect of any weapons which were used in the said alleged attempt to commit dacoity in the house of the complainant. The accused No. 4 has also been arrested after sometime of the said incident had taken place. From the evidence of the eye-witnesses, it can be seen that nobody has stated that the accused who entered the house had demanded any money from them or had demanded the keys of the cupboard or had attempted to take away the available articles from the house. All that the eye-witnesses have stated in their evidence is that the main door of the house was open and three persons entered the room and closed the main door and asked them not to say anything. The complainant was dragged to one room by one of the accused. The other accused had pointed a crowbar at the complainant. One accused had put a hand on the mouth of the sister-in-law of the complainant and the fourth accused had assaulted the husband of the complainant on his hand. However, none of these witnesses have stated that after entering the house and closing the main door, these accused had demanded any money or had removed the valuable gold ornaments from their person or other articles from their person. On the contrary, the moment the inmates of the house started screaming the said three accused ran away. From this evidence, it is difficult to accept that the three persons who had entered the house wanted to commit dacoity as the natural conduct of a person who enters the house to commit dacoity would be at the first available opportunity to make a demand for case or valuables or precious ornaments. From this evidence, it is difficult to accept that the three persons who had entered the house wanted to commit dacoity as the natural conduct of a person who enters the house to commit dacoity would be at the first available opportunity to make a demand for case or valuables or precious ornaments. This admittedly has not happened in the present case. The three accused who according to the prosecution has entered the house were not known to the eyewitnesses. No description was given by these witnesses to the police. Thus is it difficult to accept the prosecution case that the persons who were arrested by the Police were the same persons who had entered the house of the complainant. The trial Court therefore was justified in acquitting the accused by holding that the offence against the accused was not proved beyond reasonable doubt. 10. After having gone through the entire evidence and the Judgment and Order of the trial Court, the Judgment of the trial Court cannot be said to be perverse or unreasonable and therefore I do not see any reason to interfere with the said finding recorded by the trial Court. 11. In my view therefore this is not a fit case for grant of leave to file appeal. The leave to appeal is therefore refused. Appeal is dismissed and the order of the trial Court is confirmed. The accused shall be released forthwith unless they are otherwise required in any other case. Appeal dismissed.