1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEALS NOS.67 & 68 OF 2010 State Through Police Inspector, Pernem Police Station, Pernem, Goa. …. Appellant V/s 1. Gopal Ganesh Shetgaonkar, r/o. Mungagwada, Morjim, Pernem, Goa. (Ori. Accused No.1.) 2. Laximikant @ Kana Shetgaonkar, s/o. Arjun Shetgaonkar, r/o. Shirwada, Morjim, Pernem, Goa.(Ori. Accused No.2) 3. Satish Sitaram Shetgaonkar, r/o. Khalchawada/Mungagwada, Morjim, Pernem, Goa. (Ori. Accused No.4). 4. Sakharam Krishna Parab, r/o Varchawada, Morjim, Pernem, Goa. (Ori. Accused No.5) 5. Ganesh Kalu Shetgaonkar, r/o. Kacholem, Morjim, Pernem, Goa. (Ori. Accused No.6). 6. Arjun Apa Parab, r/o. Morjim, Pernem, Goa. (Ori. Accused No.8) 7. Rajendra Arjun Parab, r/o. Morjim, Pernem, Goa. (Ori. Accused No.8) 8. Sunil Laximan Patki, r/o. Morjim, Pernem, Goa. (Ori. Accused No.9) 9. Ramesh Sitaram Shetgaonkar, 2 Khalchawada/Munangwada, Morjim, Pernem, Goa. (Ori. Accused No.10) …. Respondents Mr. C.A. Ferreira, Public Prosecutor for the Appellant. Mr. J.P. Mulgaonkar, Advocate for Respondents Nos.1 to 6. CORAM : N.A. BRITTO, J. DATE : 25th AUGUST, 2010 JUDGMENT : Heard. These appeals can be conveniently disposed of by this common judgment. They arise from judgments of acquittal passed by the learned JMFC, Pernem, both dated 24/02/2010. 2. According to the prosecution, there were two incidents which gave rise to filing of two cases. The first incident is of 1/08/2005 regarding which an FIR was filed on the same day. As regards this incident, the accused were charged and tried in CC No.21/S/2006 and they have been acquitted, except accused no.3, under Sections 143, 452,427,354,504,506(ii) r/w 149 IPC. The second incident took place on 6/08/2005 regarding which the FIR was filed on 9/08/2005 and registered on 10/08/2005. As regards the second incident, the accused were charged and tried in CC No.29/S/2006 and the accused, except accused no.2, have been acquitted under Sections 143,451,427 IPC. 3. After the alleged second incident, the first informant along with 3 her husband and others filed a civil suit on 10/08/2005 bearing C.S. No.42/2005 with an application for injunction which was disposed of by order dated 1/12/2005. 4. Some of the accused are the Managing Committee members of Mazania of Temple of Shri Morjai Devi situated at Morjim in property surveyed under number 9/0 of village Morjim which as per Form No.I and XIV is shown in the name of the said Mazania in the occupants column. PW5/Seema Gurav examined in CC No.21/S/2006 is the wife of PW3/Shriram Gurav and who is the son of Vithal Rama Gurav whose name is shown in the other rights column of Form No.I and XIV. PW3/ Shriram Gurav was a Pujari of the temple of the said Mazania, who had resigned as a Pujari by application dated 20/01/2005 and who withdrew the said resignation by application dated 6/04/2005 and the controversy as regards the same is pending before the Mamlatdar. The said Order dated 1/12/2005 also shows that by a memorandum dated 20/03/2005, the said Shriram Vithal Gurav was asked to vacate the premises within one month. 5. There is no dispute that the said PW3/Shriram Gurav along with his wife PW5/Seema Gurav are residing in a house which has a 'kalash' and this house is identified under house no.490, regarding which there is no dispute. The dispute appears to be, as far as criminal cases are 4 concerned, regarding another house which has old house no.728/B and new house no.491, as stated by the said Seema Gurav, in the first case. At the time of both the alleged incidents, the said Seema Gurav was the only person who was present. As regards the first incident, her husband the said Shriram Gurav had gone to Kolhapur and his brother who resides at Guirim was informed by her on phone, whereupon he lodged the FIR and a panchanama was drawn on 3/08/2005 and in support thereof PW2/Prakash Teli was examined. 6. I will first take the case of acquittal in CC No.29/S/2006. In case the family of PW3/Shriram and PW5/Seema were dispossessed from the said disputed house on 1/08/2005 and the members of the Managing Committee had taken over the possession of the said house, certainly there could not have been a fresh case of trespass. In this context, Seema Gurav, who was examined as PW3 in the second case, stated that all the accused came near the house no.491 and broke open the lock of the main door of their house with a key which was lying in the possession of the accused no.1 Gopal Shetgaonkar. Shriram Gurav who was examined as PW1 stated that on 6/09/2005 all the accused opened the lock of the main door of their house with the help of the key which was with the accused and criminally trespassed into the said house and thereafter threw out the household articles. There was no question of breaking the lock in case the key of the lock of the disputed house was 5 with the accused, they being the Managing Committee members of the said Mazania. The FIR itself was filed 3 days later and that to without any acceptable explanation for the delay. The very fact that as on 6/08/2005, the disputed house was in possession of the some of the accused who were the Managing Committee members of the said Mazania, there could not have been a second case of house trespass. Learned Public Prosecutor fairly concedes this position and, therefore, there is no question of admission of the appeal arising from the judgment in CC No.29/S/2006. 7. Coming to the acquittal of the accused in CC No.21/S/2006, it may be stated that in support of their claim for possession, the said PW1/Baburao, the brother of PW3/Shriram Gurav, had produced Form No.I & XIV of the said Survey No.9/0 and notarised copies of the electricity bills and a house tax receipt issued by the secretary of the Village Panchayat dated 12/05/2005. The learned Public Prosecutor, with much emphasis, submits that this house tax receipt dated 12/05/2005 is in respect of the disputed house bearing no.491 and, therefore, the same proves that the family of Shriram Gurav was in possession of the same. The electricity bills produced did not show any number of the house and admittedly the family of PW3/Shriram along with his wife Seema reside in the other house where there is a Kalash and which bears number 490 (old no.728). It is not the case of either 6 PW3/Shriram Gurav or for that matter PW5/Seema Gurav that they were paying electricity charges in respect of both the houses including the disputed house as can be seen from their evidence produced or in respect of the three houses which have been referred to in the said Civil Suit. It is more probable that the said electricity bills pertain to the house no.490 in which they reside. As regards this case, the learned JMFC has, inter alia, observed that PW1/Baburao had stated that the accused had thrown the goods out from their house and when he went to the said house, he had seen the goods outside the house, but the panchwitness who was examined as PW2 had not whispered a word of having seen any goods outside the house, further observing that, and in my view rightly, that in case the goods of the family of the complainant were thrown outside the house they would have been seen at the time of panchanama. In my view, no much reliance can be placed on the said receipt dated 12/05/2005 for reasons more than one. Although, the said receipt shows the payment of house tax from the year 1999 to 2005-2006, it is dated 12/05/2005 and it is but obvious that it has been obtained after the members of the Managing Committee had issued a memorandum to the said Shriram Gurav on 20/03/2005. The house no.491 has been mentioned on the said receipt outside the printed columns and the learned Public Prosecutor submits that since there was no other column, the number of the house was written outside. However, the fact remains that the family of Shriram Gurav have not produced any receipt for the 7 payment of house tax of house no.490 which is admittedly under their occupation. Nothing had prevented them, from producing the same and that would have fortified their case that in addition to house no.490 they were also occupying the house no.491. The controversy does not end there, either. If the disputed house bears house no.491 as stated by PW2/Prakash Teli and PW3/Shriram Gurav, as well as, PW5/Seema Gurav, according to Shriram Gurav who was examined as PW1 in the second case, the disputed house was alloted the number 492 (old number 728-A). If that be the case, it could not be said that the said receipt pertains to the disputed house which in the first case was stated to be having house no.491 (old no.728-B). Besides the self serving evidence of PW3/Shriram and PW5/Seema, the prosecution had not examined any witnesses to prove that house was in possession of the said family of the said Shriram, more so, when they were actually occupying the undisputed house bearing no.490. The learned Public Prosecutor may be right that the learned Magistrate has discussed the law, without referring to the facts but the fact remain that in both the cases, Seema Gurav was the only witness who was present and the second case shows that she is capable in indulging in falsehood. The prosecution had failed to produce acceptable evidence that the disputed house was in the possession of the family of Shriram Gurav and considering this aspect of the case as well, the appeal does not deserve to be admitted. 8 8. Consequently, both the appeals are hereby dismissed, in liminie. N.A.BRITTO, J. NH/-