1 IN THE HIGH COURT OF BOMBAY AT GOA Criminal Appeal No. 4 of 2009 Shri Babudas V. Gaonkar, Son of Shri Vatu Sukdo Gaonkar, Aged 40 years, married, business, R/o. H. No.1440, Baina, Shiroda, Ponda-Goa. .. Appellant V/s. 1. Shri Santosh Phadte, Major in age, Range Forest Officer, Ponda Range, r/o. Forest Colony, Ponda-Goa. 2. Shri Ratnakar Tari, Major in age, Forest Guard, r/o. Forest Colony, Ponda-Goa. 3. State, Through PP, Panaji-Goa. .. Respondents Mr. A. D. Bhobe, Advocate for the appellant. Mr. P.S. Lotlikar, Advocate for the respondents. 2 CORAM: N.A. BRITTO, J Date: 27 th July, 2009 ORAL JUDGMENT Heard Shri Bhobe, Learned Counsel on behalf of the complainant, and, Shri P.S. Lotlikar, Learned counsel on behalf of the respondents/accused. 2. This appeal is filed by the complainant against the acquittal of the accused under sections 330, 323, 352 read with section 34 I.P.C. by Judgment dated 6.6.2008 of the Learned J.M.F.C., Ponda. 3. There is no dispute that the complainant was arrested by respondent no.1 who is Range Forest Officer on 24.8.1996 for having committed certain offences of illegal cutting of trees and the vehicle, that is to say, a tempo was seized from him and he was released on bail on the same day. The accused no.2 was at the relevant time a forest guard working under respondent no.1, the Range Forest Officer. 3 4. Although the incident of assault alleged by the complainant is said to have taken place on 24.8.96 at the Range Forest Office, the complainant did not file a formal complaint against the respondents/accused to the superior officers of the accused or to the police or to the court. On 2.9.96 the complainant filed an application for the release of the vehicle. Even then, as on that date also, there was no formal complaint of assault filed by the complainant before the Learned J.M.F.C. 5. The Learned Magistrate had called for the say of the respondent no.1 on the said application dated 2.9.96. It appears that the Learned Magistrate called for the say by 11.00 p.m. and when the said application was taken to the respondent no.1 by someone on behalf of the complainant to give his say, the respondent no.1 did not file his say saying that he would file it at 11.00 p.m. This fact was brought to the notice of the court by the complainant by an application for contempt against the accused dated 4 4.9.96. In this application also there was no story of assault given by the complainant though it was filed on behalf of the complainant by his Advocate. 6. Nevertheless, the order of the Learned Magistrate dated 4.9.96 shows that the complainant made a statement before the Learned Magistrate dated 4.9.96 that he was assaulted by respondent no.1 and the respondent no.2, and, though the order of the Learned J.M.F.C produced on record shows that the Learned J.M.F.C had examined the body of the complainant there is no record to say whether any injuries were noticed by him. The Learned J.M.F.C, therefore, directed the Health Officer, I.D. Hospital, Ponda, to examine the complainant and to send a detailed report on the same day. It further appears that the complainant had also made an allegation that the tyre of the complainant's vehicle was punctured and as such a letter was issued to the Police Inspector, Ponda, to inquire into the matter and after receiving the inquiry report and hearing the 5 complainant, process was issued against the respondents/accused. 7. Be that as it may, in the course of the trial, the complainant examined himself and three more witnesses including his brother in law Pw3 Anand Gaonkar and the medical officer Pw4 Dr. Borkar. Pw2 was one Gokuldas Naik. 8. The Learned J.M.F.C, after considering the evidence of the complainant and his two witnesses in detail, came to the conclusion that all the three witnesses could not substantiate one another and obviously that was because according to the complainant himself the complainant was assaulted inside the Range Forest Office where obviously the complainant's witnesses could not have any access and the fact that Pw2 and Pw3 Gokuldas had tried to peep into the room and seen the assault, simply could not be accepted. It is interesting to note that the complainant was released on the same day, that is to 6 say, 24.8.96 and after his release on personal bond, the complainant remained totally silent without complaining about the incident if at all there was any, either to the superiors of the accused or for that matter without going for medical examination. This silence speaks volumes of the falsity of his case. Not only that, on 26.6.98, the complainant approached one advocate by name Shri Amonkar who is also the Notary and signed an affidavit sworn before him and filed the same before the accused for the purpose of compounding the forests offences. Even on 2.9.96 the complainant chose not to file any complaint before the Learned J.M.F.C when he filed only an application for release of his vehicle. That happened again on 4.9.96 when no formal complaint was filed by the complainant before the Learned J.M.F.C. but only an application for contempt with the allegation that no say was filed to the application dated 2.9.96. In case there was any truth in the complaint of the complainant, the complainant could have immediately approached either the superior 7 officers of the respondent or the police or the Court. Different version given by the his witnesses add to the falsity of the case of the complainant. The Counsel on behalf of the complainant submits that no injuries as described by the complainant were seen by Pw4 Dr. Borkar because the complainant was examined by him after several days. If that was, nothing had prevented the complainant to have approached the medical officer either on 24.8.06 or soon thereafter. Non filing a written complaint by the complainant and the conflicting versions given by the complainant's witnesses amply prove that the complainant had made a false oral statement before the Learned J.M.F.C on 4.9.96 only to pressurize the complainant to give the say so as to obtain the release of his vehicle. The Learned Magistrate acted hastily. The Learned Magistrate ought to have asked the complainant to file a formal complaint of assault and dealt with the matter of application dated 2.9.96 or 4.9.96 on its own merits. If that was done, the complainant would not have filed any complaint of any assault which he 8 had not already done for more than 10 days. 9. The view arrived at by the Learned J.M.F.C, from the evidence produced on behalf of the complainant, was the only plausible view and thus cannot be faulted. There is no merit in this appeal and consequently the same is hereby dismissed, with costs of Rs.5000/- by the complainant to both the respondents. N.A. BRITTO oc.