1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 40 OF 2008 1. Shanti Devi Halwai, Major in age, Married, 2. Ramchandra Halwai, Major in age, married, Both are resident of M.B. 14, Goa Housing Board, IInd Floor, Baina Road, Vasco Da Gama, Goa. …. Petitioners V/s 1. STATE Through the Public Prosecutor, Panaji, Goa. 2. Rajendra Alias Rajan Naik, S/o. Digamber Naik, Driver Hill, Mangor, Vasco-da-Gama, Goa. 3. Shri Leonardo E. Lobo, S/o Cosme J. Lobo, Rose Apartment, Vasco. 4. Shri Peter Tellis, S/o. Minguel Rosario Tellis, R/o. Mendes Mansion, Vasco. 5. Shri Jerry Tellis, S/o. Peter Tellis, R/o. Mendes Mansion, Vasco. 6. Shri Jose Philip D'Souza, S/o. Domingo Caetano D'Souza, R/o. House No.265, Kharewada, Vasco-da-Gama. 7. Shri Laxmishanker Halwai, S/o. Bipat Halwai, R/o. Khalap Mansion, Vasco. 2 8. Shri Suryanarayan Halwai, S/o. Ramdhar Halwai, R/o. Near Syndicate Bank, Vasco. 9. Shri Narayan Bahadur, S/o. Shri Prem Bahadur, R/o. Mendes Mansion, Vasco-da-Gama. …... Deleted 10. Smt. Flora Tellis W/o. Peter Tellis, R/o Mendes Mansion, Vasco (expired). 11. Smt. Celsa Antao, W/o. Antonio Antao, R/o Near MPT Hospital, Vasco-da-Gama. 12. Smt. Lata Naik, W/o. Madhu Naik, R/o. Ashamdongri, House No.334, Vasco. …. Respondents Mr. V.A. Lawande, Advocate for the Petitioners. Mr. C.A. Ferreira, Public Prosecutor for Respondent No.1 Mr. Nitin Sardessai, Advocate for Respondents Nos.2 to 8. CORAM : N.A. BRITTO, J. DATE : 2nd AUGUST, 2010. JUDGMENT: This revision petition filed under Section 497/401 of the Code (Code of Criminal Procedure Code, 1973), is directed against the judgment/order of acquittal passed by the learned JMFC, Vasco, in C.C. No.53/S/1989/A acquitting the accused nos.1 to 8, 10 and 11 under Sections 143,147,427,435,452, 380 r/w 149 IPC. 3 2. The petitioners are the owners of the establishment known as “Kashi Dairy” situated in in Mendes Mansion, owned by A3/Peter Tellis, which was damaged on 17/03/1988 between 16.30 hrs. to 18.00 hrs., by a mob of about 400 to 500 unknown persons, when they took out a morcha to protest an incident of rape alleged to have been committed by petitioner no.2 on his servant girl by name Miss Rajamma, causing loss of about Rs.1,34,697.40, etc. The petitioner no.2 was not present at the said dairy on the date of incident. First information report was filed by the Manager of the petitioners by name PW1/Chedilal Kesarvani on the next day, inspite of they (PW1 and PW4) having been requested to file the FIR on the same day. The case was investigated by PW16/PI Caeiro of Vasco Police Station and charge sheet was filed against the accused. 3. Charge was framed with the allegation that on 17/03/1988 the accused along with 400 unknown persons with their common object had formed an unlawful assembly, had taken out a morcha in order to protest the said incident of rape and in furtherance of the common object of the said assembly had broken open shutters of said shop “Kashi Dairy” situated at said Mansion at Vasco da Gama and had voluntarily caused damages to the shutters, furniture, show cases, decoration glasses, utensils, etc. in the sum of Rs.1,34,697.40 and had decamped with valuable articles such as T.V. Set, V.C.R., cash box, gold ornaments, 4 milk cans, etc. worth Rs.3,01,189.78 and set fire to the stall known as “Bharat Lassi and Coffee House” situated near the bus stand causing loss of Rs.1 lac and had also decamped with the property from the said stall such as steel utensils, table fan, crockery, sweets, cigarette, milk cans, etc. valued at Rs.57,185/-. The prosecution in support of its case had examined 16 witnesses including the said PI Shri Sebastiao Caeiro. The petitioners herein, who are husband and wife were examined as PW4 and PW13, respectively. PW5/Bharat Lal, PW7/Bijay are their sons. PW3/Shashikumar, PW8/Abdul and PW14/Mahavir are their employees. PW12/Dropathi is the sister of PW4/Shantidevi. A6/Suryanarayan and A8/Narayan appear to be business rivals of the family. A3/Peter and his wife late A9/Flora appear to be the landlords of the family. 4. At one stage, the State (respondent no.1, herein) sought to withdraw the prosecution from the said criminal case and the said withdrawal was granted by order dated 12/11/1991, which was challenged by the petitioner no.2 before this Court in Criminal Miscellaneous Application No.62/1992 and the said order of withdrawal was quashed and set aside by order dated 9/06/1988. 5. Against the acquittal of the accused, the State has chosen not to prefer an appeal, although it appears that the Assistant Public Prosecutor, 5 in charge of the case, had suggested that an appeal be filed, but the petitioner no.2 was informed by the Director of Prosecution by her letter dated 16/03/2007 that the State had decided not to prefer an appeal against the said order of acquittal and hence the present revision petition at the behest of the petitioners who had suffered a loss on account of the mob attack on the establishment of their shop and stall. According to Shri Lawande, the State has chosen not to appeal because accused no.1 and accused no5 are influential persons. 6. As regards the maintainability of this revision petition, Shri Lawande, learned Counsel appearing on behalf of the petitioners has placed reliance on K. Pandurangan V/s. S.S.R. Velusamy & Anr. (2003 (8) SCC 625), wherein the Apex Court has stated under the provisions of the Code, the Court has suo motu power of revision, and if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. Reference was made by the Apex Court to the case of Nadir Khan V/s. State (AIR 1976 SC 2205). As regards the scope of such revision, reference could be made to a three Judge judgment of the Apex Court in the case of Thankappan Nadar & Ors. V/s. Gopala 6 Krishnan & Anr. (2002 (9) SCC 393) wherein the Apex Court made reference to a number of its earlier decisions including the case of Vimal Singh V/s. Khuman Singh & Anr. (1998 (7) SCC 223) and observed that the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases where it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or whether the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are instances where the High Court would be justified in interfering with the order of acquittal. That the High Court cannot convert a finding of acquittal into one of conviction is specifically provided by sub-section 3 of Section 401 of the Code. That the powers of revision under Section 397/401 cannot be exercised as second appellate power has also been settled by the Apex Court in the case of State of Maharashtra V/s. Jagmohan Singh Kuldip Singh Anand and Ors. (AIR 2004 SC 4412) wherein it is further held that a revisional Court is empowered to exercise all the powers conferred on the appellate Court but that provision can be used only for the purpose of satisfying itself or himself as to the correctness, illegality or propriety 7 of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. A recent judgment of the Apex Court reported in the case of Sheetala Prasad & Ors. V/s. Sri Kant & Anr. (2010 ALL MR (Cri.) 2326(SC)) reiterates the position of law in Thankappan Nadar & Ors. V/s. Gopala Krishnan & Anr. (supra) as follows; Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial Court of the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice required interference for correction of manifest illegality or the prevention of gross miscarriage of justice. 7. Shri Sardessai, the learned Counsel appearing on behalf of the respondents/accused has placed reliance on the case of Akalu Ahir & Ors. V/s. Ramdeo Ram (AIR 1973 SSC 2145) in support of the proposition that only because the trial Court has taken a wrong view of law that is no ground to allow the revision. Relying on the same judgment, learned Counsel submits that the High Court cannot re- appreciate the entire evidence and take a contrary view to set aside an 8 acquittal. 8. According to the petitioners, since the State has chosen not to file an appeal, the petitioners have been compelled to file this revision. Broadly stated, Shri Lawande, learned Counsel on behalf of the petitioners has made three submissions. First, is that the written arguments submitted by the prosecution with case law have not been considered by the learned trial Court. Second, the evidence has been appraised without knowing the provisions of law, and third, the learned trial Court has disallowed PW13/Ramchandra Halwai from producing the order of the Bar Council pursuant to application dated 26/10/2003, by order dated 16/10/2003. 9. This revision is nothing short of an appeal in disguise which the petitioners are not entitled to file, the right to file an appeal having been conferred on the State only. The case of the petitioners also does not meet the parameters laid down in Thankappan Nadar & Ors. V/s. Gopala Krishnan & Anr. (supra). There is neither any manifest error of law or procedure or glaring illegality which has caused miscarriage of justice. In fact, it appears that the boot is on the other foot in that it appears that the accused have been falsely implicated because of the mob attack. I will consider the third submission first. PW13/Ramchandra Halwai, the petitioner no.2 herein, was examined 9 before the trial Court on 15/07/2003 and the examination was completed on 14/08/2003. He filed an application dated 26/10/2003 stating that on 15/07/2003 and 22/07/2003 he was not keeping good health and his blood pressure was high and was feeling dizzy and, therefore, was not in proper frame of mind to depose to the facts which were to his knowledge and therefore could not depose material facts about A1/Rajan Naik and the role played by him in giving wrong medical treatment to him, which ultimately resulted in amputation of little finger of his right hand. He had also stated that on 25/12/2002, the Disciplinary Committee of Bar Council of India had made an order against the said advocate Rajan Naik, who was a practicing advocate and the same was not taken on record by the Court although the witness had requested the Court for the same to be taken on record and the witness came to know about the said fact only after he got the Hindi translation of his deposition and therefore the witness wanted to be re-examined to elucidate the aforesaid facts. That application came to be rejected by the learned trial Court by order dated 16/10/2003. Firstly, it must be stated that the application dated 26/10/2003 was not filed by the State through the concerned Assistant Public Prosecutor who was in charge of the case, but was filed by PW13/the petitioner no.2 herein. In fact, the said application ought to have been filed through the Assistant Public Prosecutor who was in charge of the case, but that was not done. A trial of a State case cannot be free for all to intervene and needs to be 10 conducted in the manner laid down in the Code. The learned trial Court ought to have rejected the said application for it was not filed on behalf of the State through the Assistant Public Prosecutor, who was in charge of the case. It was not the case of the petitioner no.2 that he had made such a request to the Assistant Public Prosecutor and the latter had refused. It is to be noted that the office of the Assistant Public Prosecutor is to represent the administration of justice so that the testimony of all the available eye witnesses should be before the Court. The purpose of the criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused. It is said that an Assistant Public Prosecutor is a minister of justice and it is not his duty to obtain a conviction by hook or by crook and as an officer of the Court it is his first duty to place entire materials before the Court on behalf of the prosecution and he is required not to be partial either to the prosecution or to the accused. He represents a higher cause of being fair, unbiased and independent in his views. It is quite possible that in case the petitioner no.2 had approached the learned Assistant Public Prosecutor he would not have encouraged him to file the said application dated 26/10/2003. In case PW13/Ramchandra Halwai was unwell on 15/07/2003 and 22/07/2003 he ought to have made such a submission before the Court and taken another date, and not come with an application to say that he was unwell on the previous day. The application was nothing but a clear attempt to improve upon 11 what he had deposed on 15/07/2003 and 22/07/2003. I have perused the order dated 16/10/2003 of the learned JMFC which is a well reasoned order. As far as the order of the Bar Council of India, against accused no.1 Rajan Naik is concerned, the said order pertains to an incident which took place on 11/03/1988 as noted by the learned Magistrate and therefore the learned Magistrate was right in concluding that the said order would not help the Court to decide whether accused no.1 Rajan Naik was involved in the incident that took place on 17/03/1988. Moreover, the said order only discloses that A1/Rajan Naik participated in a morcha on 11/03/1988 and, therefore, as held by the learned trial Court, and, in my view rightly, that the said piece of evidence would not help the Court to decide whether accused no.1 Rajan Naik was involved in the incident which took place on 17/03/1988. That apart, that order of the Bar Council of India would be irrelevant as evidence of previous bad conduct in terms of Section 54 of Evidence Act, 1872. 10. The learned trial Court after considering the evidence produced by the prosecution by a detailed judgment came to the conclusion that; “The evidence of the witnesses read as a whole appears to be sketchy and full of doubt about their presence so also the presence of the accused at the relevant time. The testimony of the above witnesses therefore have to be rejected as firstly, they have not supported the case of the prosecution and secondly the evidence on record clearly shows that the accused have not participated in the said offence. The accused therefore deserve to be acquitted by giving benefit of doubt as the prosecution has miserably failed to prove that they formed an unlawful assembly and 12 broke open the shutter causing damages to the furniture, show cause, decoration and decamped with the valuable articles, cash box, gold ornament, etc. or that they set fire to the stall “Bharat Lassi & Coffee House” thereby causing loss or that they stole away utensils, table fan, crockery, sweets, cigarettes, milk cans, etc. valued at Rs.57,185/-. Therefore, the prosecution has failed to prove the guilt of the accused by cogent, reliable and acceptable evidence.” 11. Shri Lawande has submitted that the written arguments have not been considered by the learned trial Court and that the appraisal of evidence has been done without knowing the law. Learned Counsel has taken me through the evidence of PW9/PSI Arun Bandodkar and that of PW4/Shantidevi, PW5/Bharatlal Halwai and PW11/Ramdev Yadav and has submitted that the latter had identified three of the accused in Court. Shri Lawande has submitted that the State chose not to file an appeal because A1/Rajan Naik and A5/Jose Philip D'Souza are influential persons. Learned Counsel submits that PW9/PSI Bandodkar had identified A2, A5,A10 and A11 and his evidence was corroborated by PW4/Shantidevi who had identified A1,A2,A4,A6,A7,A9 and A10, while PW5/Bharatlal Halwai had identified A1,A2,A4,A9 & A10. Learned Counsel has submitted that only because some of the witnesses were related their evidence could not be rejected, as a relative was not an interested witness and in this context learned Counsel has placed reliance on a Division Bench judgment of this Court in Bhaskar V/s. State of Maharashtra (2008 ALL MR (Cri.) 918) wherein the Division Bench has observed that the evidence of relatives has to be considered 13 with some caution but if the core of it was acceptable the Court would be failing in its duty in throwing it away. 12. In my view, there is absolutely no scope for this Court to interfere with the acquittal of the accused by the learned trial Court even if the prosecution evidence was reassessed which is otherwise impermissible in revisional jurisdiction. That the petitioners' case is not covered by the law laid down in Sheetala Prasad & Ors. V/s. Sri Kant & Anr. (supra) is another matter. 13. PW1/Chedilal Kesarvani was the Manager of the establishment of PW4/Shantidevi and PW13/Ramchandra Halwai. PW1/Chedilal Kesarvani, filed the complaint (F.I.R.) only on the next day although the police station was a few meters away and without any explanation for delay and this inspite of having been told by PW16/Sebastiano Caeiro to file an FIR. According to PW16/Sebastian Caeiro they had refused to file an FIR. It is but obvious therefore that as on 17/03/1988 neither PW1/Chedilal who was present outside the establishment nor PW4/Shantidevi who was inside, were aware of the names of the persons in the said crowd of 400 to 500 persons who had entered their shop and caused damage. There cannot be any other explanation nor any such explanation is given. If they had identified any, they could have always filed the FIR giving the names. If PW1/Chedilal was the 14 first informant who lodged the complaint on the next day, PW4/Shantidevi is claimed to be the second informant who also filed another complaint on the next day and that could be only after deliberation and after obtaining legal advice. The evidence of PW1/Chedilal has been dealt with in detail by the learned Magistrate in para 13 of the judgment and PW14/Shantidevi in para 14 and no fault can be found with it. Shri Lawande pointing out to para 11 of the judgment submits that the observation that PW4/Shantidevi could not have seen the incident, as the incident of breaking the shutter occurred outside the shop and it is only those who were outside the shop would know the people involved in breaking open the shutters is perverse. In my view, the said observation cannot be read out of context. It may be noted that it is not the case of PW4/Shantidevi that she was present when some of the accused entered their shop, but on the contrary, she had stated that she hid herself in the mezzanine floor and it was not her case that from the mezzanine floor she could have seen any of the accused entering the shop and there is also no explanation in case she had seen any of the accused why she did not immediately lodged the compliant or directed it to be filed by their Manager, the said PW1/Chedilal. Admittedly, PW1/Chedilal filed the FIR and as rightly observed by the learned trial Court it was filed first in point of time. PW1/Chedilal who claims was outside the shop would have certainly named the persons in FIR, the persons who broke open the shutters of 15 the shop, but he nowhere mentioned the names of the accused in his complaint and in cross-examination he stated that he did not give the names of the persons involved in the incident as it was committed by a crowd. That is the whole truth of the matter. On the basis of that, the learned trial Court has concluded that it is possible that the accused were not present in the crowd and were not involved in causing damage to the shop and setting fire to the stall. The learned trial Court, referring to the evidence of PW1/Chedilal has further observed that some of the accused have their offices/shops in the building and the owners of the said shops were outside the shops as according to PW1/Chedilal it was not his case that they had participated in the morcha. The learned trial Court therefore concluded that mere presence of the persons at the spot would not make them the members of an unlawful assembly. The next witness was PW4/Shantidevi, wife of PW13/Ramchandra Halwai, who came with her so called second complaint only on the next date. She gave the names of persons who according to her broke open the shutter and in that context learned trial Court had observed that she would not have been in a position to say as to who broke open the shutter since according to PW1/Chedilal, shutter was closed from outside by him and she was inside the shop. It is difficult to believe that when a crowd was breaking open the shutter PW4/Shantidevi would remain present to watch the crowd entering the shop, and in case she was present, it is probable that she hid in the mezzanine and from there she could not 16 have seen any of the accused entering the shop and in case she knew the names of those who entered, she would have immediately filed complaint with those names to the police and would not have waited until the next day. 14. Admittedly, PW13/Ramchandra Halwai was not present. The learned trial Court was conscious of the fact that even if the names of the accused did not appear in the FIR that it did not mean that the accused had not committed the offence as it was not mandatory to mention all the details in the FIR. However, the learned trial Court came to the conclusion that there was absolutely no evidence on record that the accused had participated in the incident and had damaged the shop and had set fire to the stall. The learned trial Court referring to the second complaint of PW4/Shantidevi has come to the conclusion that it did not inspire any confidence as the same was lodged in relation to some of the accused on the basis of legal advice on 18/03/1988. As regards PW13/Ramchandra Halwai, he was not present and he was present in Delhi but according to him he had a talk with PW1/Chedilal Kesarvani a fact which the latter has denied, he having made any call to