1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 70 OF 2007 Smt. Ranjana R. Gadekar r/o Guirim, Bardez, Goa. ... Applicant versus 1. Shri Dinesh Naik, r/o St. Cruz, Aradi Band, H. No. 199-E, native of Vaigantal, Dodamarg (presently in custody at Central Jail, Aguada). 2. State (by the Public Prosecutor) ... Respondents Mr. Aires Rodrigues, Advocate for the Applicant. Mr. J. Godinho, Advocate for Respondent No.1. Ms. Winnie Coutinho, Public Prosecutor for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 14TH JULY, 2008. ORAL JUDGMENT Heard learned Counsel on behalf of both parties. 2 2 This revision is directed against Judgment dated 2-5-2007 of the learned Sessions Judge, Panaji by which the accused has been acquitted under Sections 307, 397 I.P.C. Earlier, the accused was convicted by the learned Assistant Sessions Judge under the said Sections, by Judgment dated 29-4-2006. 3. The revision has been filed by the first informant, who is the wife of the injured, as the State has chosen not to file an appeal. 4. Although the charge-sheet was filed under Sections 307, 397 I.P.C. and Sections 3 r/w 25 and 27 of the Arms Act, 1959, the accused was charged under Sections 307, 397 I.P.C. The case of the prosecution was that on 24-5-2003 between 11.30 to 12.00 hours the accused hired the motor-cycle of Ramakant Gadekar/PW2 in order to go to Nachinola from Bastora and on reaching near the lake at Nachinola, asked Ramakant Gadekar/PW2 to stop the motor-cycle on the pretext that his money had fallen down and when Ramakant Gadekar/PW2 stopped the motor-cycle, the accused suddenly fired a gun shot on his back due to which the said Ramakant Gadekar/PW2 sustained a bullet injury and thereafter the accused committed theft of the said motor-cycle bearing No.GA-01-V-2697 belonging to the said Ramakant Gadekar/PW2. 5. The essence of the case of the prosecution is that the accused injured Ramakant Gadekar/PW2 with a view to commit the theft of the motor-cycle. 3 6. From the facts of the case, it can be seen that the first informant who is the wife of the said Ramakant Gadekar/PW2 was in Asilo Hospital on account of the sickness of her son when Ramakant Gadekar/PW2 came there at about 11.30 on 24-5-2003 and reported to her what had happened whereupon Ramakant Gadekar/PW2 was examined by Dr. Raikar/PW10 who upon examination found a perforating wound measuring 0.2 x 0.2 cms. on the left lower side of the chest at the back and after the X'ray was taken at the Casualty and the presence of bullet was confirmed, Ramakant Gadekar/PW2 was sent to Goa Medical College where he was examined by Dr. C. N. Fernandes/PW11 and was operated upon by Dr. Oswald D'Sa/PW17 on 27-5-2003 and again on 10-7-2003. It appears that he was again admitted on 1-8-2003 and discharged on 21-8-2003. 7. Although, the prosecution examined as many as 19 witnesses, the case of the prosecution ultimately rested on the evidence of Ramakant Gadekar/PW2. Rupesh Naik/PW4 who reached the scene after the incident had clearly stated that he was not in a position to identify the person who went away with the motor-cycle of the injured. It appears that Rupesh Naik/PW4 took Ramakant Gadekar/PW2 from the place of the incident and dropped him near the bus stop at Vaigin Bus Stop at Bastora from where Ramakant Gadekar/PW2 managed to reach Asilo Hospital on his own, by bus. 8. The motive for the assault on Ramakant Gadekar/PW2 i.e. that Ramakant Gadekar/PW2 was assaulted with a view to commit theft of the 4 motor-cycle driven by him, has been rightly disbelieved by the learned Sessions Judge. Admittedly, the motor-cycle of Ramakant Gadekar/PW2 was found abandoned at Boa Vista at Bastora. The prosecution had sought to explain that the accused abandoned the said motor-cycle at that place because the petrol got over. However, the evidence shows that the said bike was brought in a running condition to the Police Station by a Police Constable and therefore the learned Sessions Judge has concluded, and in my view rightly, in case the intention of the accused was to steal the said motor-cycle, the accused would not have abandoned the same at that place. 9. It also appears that the prosecution was unable to recover the pistol with which Ramakant Gadekar/PW2 was shot. The entire case of the prosecution rested on the evidence of the said Ramakant Gadekar/PW2 and the identification done by him at the test identification parade subsequently held. Nevertheless the accused had examined Ribantrop Dias/DW1 from Aradi Band at St. Cruz who had stated that between 19-5-2003 till 24-5-3003 and from 9.00 a.m. to 5.00 p.m. he had engaged the accused in digging pits in his cashew garden on payment of Rs.100/- per day, as his wages. In his cross-examination, it was brought to light that the said Ribantrop Dias/DW1 had some criminal and civil cases pending against him and the learned Sessions Judge has concluded and in my view rightly, that that was not a reason good enough to discard the testimony of Ribantrop Dias/DW1. The learned Sessions Judge has also noted that there was not even a 5 reason assigned by the Investigation Officer why on the fifth day the accused was arrested from his residence. 10. Learned Counsel on behalf of the first informant submits that there was no reason for Ramakant Gadekar/PW2 to falsely implicate the accused and that the accused was sufficiently identified by him as his assailant. 11. On the other hand, Mr. J. Godinho, learned Counsel on behalf of Respondent No.1/Accused has placed reliance on the case of Chaganti Kotaiah and others v. Gogineni Venkateshwara Rao and another(AIR 1973 SC 1274) and submitted that this is a revision application at the behest of the first informant and unless there is a defect of procedure or manifest error on point of law this Court ought not to interfere with the findings of the learned Sessions Judge. 12. Be that as it may, the entire case of the prosecution rested on the identification by Ramakant Gadekar/PW2 which identification was sought to be corroborated by the identification held earlier at the test identification parade. However, the fact remains that the accused had also examined that at the relevant time he could not have been at the scene of offence as he was working for the said Ribantrop Dias/DW1. The evidence of Ribantrop Dias/DW1 which has been accepted by the learned Sessions Judge, and I have no reason, not to accept the same throws sufficient amount of doubt at the identification by Ramakant 6 Gadekar/PW2 of the accused as the assailant who fired at him. The motive too remains without being proved and that apart there are also a number of improvements in the case of Ramakant Gadekar/PW2. In case the accused intended to steal the motor-cycle there would be no reason for him to have told Ramakant Gadekar/PW2 the words “fodrechea volkota mure maka”. In my view, giving benefit of doubt to the accused by the learned Sessions Judge and acquitting him under the Sections 307, 397 could not be faulted. 13. There is no perversity in the appreciation of evidence nor any legal infirmity to call for interference from this Court. 14. There is no merit in this revision and consequently the same is hereby dismissed. N. A. BRITTO, J. RD