-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 48 OF 2004 STATE through Public Prosecutor, High Court of Bombay at Panaji, Panaji-Goa. ..... Appellant. V e r s u s Dadasaheb Rane, S/o. Pandurang Rane, R/o. Vadaval, Goa Dodamarg. ...... Respondent (Orig. Accused) Ms. Winnie Coutinho, Public Prosecutor for the State. Mr. S. K. Kakodker, Senior Advocate with Mr. R. Rivonkar, Advocate for Respondent. CORAM: N. A. BRITTO, J. DATE: 8 th November, 2006 . JUDGMENT This is a State's appeal against the acquittal of the accused under Section 379 I.P.C. and Section 3 of the Prevention of Damage to Public Property Act, 1984, by Judgment dated 28.04.2004, of the learned J.M.F.C., Bicholim. 2. The accused is a market inspector of Bicholim Municipal Council, (BMC, for short). The case against the accused came to be investigated upon a complaint/F.I.R. filed against him by Rajaram Gaonkar, the Chairperson of the said BMC. The accused was charged and tried by the learned J.M.F.C. with the allegation that on 28.10.2002 at about 18.0o hours, the accused committed theft -2- of a maruti van ambulance, (vehicle, for short), bearing registration no. GA- 01/G-0871, valued at Rs.2,20,000/-, which was parked in the garage of the said BMC. 3. The case of the accused was that he was framed on account of his strained relationship with the said Chairperson. 4. To support the charge against the accused, prosecution had examined nine witnesses. 5. The learned Magistrate proceeded to acquit the accused for several reasons. However, the learned Magistrate has not at all scanned, assessed and appreciated the evidence led by the prosecution in right perspective. On the contrary, the learned Magistrate has only castigated the I.O. for things which he did not do as an easy way to acquit the accused. The learned Magistrate lost sight of the fact that it is always easy to castigate an I.O. for things he has not done. So also, for a superior officer to castigate his sub- ordinate Officer. The learned Magistrate entirely lost sight of the fact that defects in investigations, whether by default or by design, could not be the basis for acquitting the accused and that it was necessary for the learned Magistrate to find out that despite such defects in investigation, a case was made out against the accused or not. By now, there are series of Judgments of the Hon'ble Supreme Court stating that defective investigations by the police cannot be a -3- ground for acquitting the accused since that would tantamount to playing into the hands of the Investigation Officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995) 5 S.C.C. 518). After considering a number of Judgments of the Apex Court, a Division Bench of this Court in the case of Kishore Shinde v. State of Maharashtra (2006 Cri. L. J. 2618), held that defective investigations cannot deter the Court from convicting the accused, if the Court finds that dehors the defect, the accused can still be convicted on the basis of evidence on record. The Apex Court in the case of Himachal Pradesh v. Lekh Raj & Sons (AIR 1999 S.C. 3916), has held that defective investigations cannot be made basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or any of them. The Supreme Court has further stated thus : “The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt of innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper- technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the -4- victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be an Utopian thought but has to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.” 6. The learned Magistrate has dubbed every witness examined by the prosecution as an interested witness without trying to find out as to what interest they had for the prosecution or against the accused. In case they were interested, then it was the duty of the learned Magistrate to have closely scrutinised their evidence and then only accepted or rejected the same. Evidence of witnesses cannot be rejected by giving labels to them. An interested witness is a witness who derives some benefit from the litigation in a Civil case or in seeing an -5- accused punished in a criminal case. As regards interested witnesses, the Apex Court in the case of Israr v. State of U.P. (2004 (10) SCALE 237), referring to Dalip Singh & Ors. v. The State of Punjab (AIR 1953 S.C. 364), has reiterated the position thus: “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness had cause, such as enmity against the accused, to wish to implicate him falsely.” Each case of course has got to be limited to and governed by its own facts. 7. The learned Magistrate has gone to the extent of dubbing even Appa Painter/P.w.6, as interested witness. One fails to understand the interest he would have in seeing the accused punished when he was only a part time employee and that too miles away of Belgaum Cantonment Board. When theft had taken place of Municipal property, witnesses like Rajaram Gaonkar/P.w.1, Galgu/P.w.2, Govind/P.w.3 and Shyam/P.w.4, could have been only natural and probable witnesses in the case and on that score alone, their evidence could not have been discarded. The learned Magistrate has also acquitted the accused because certain witnesses like Sanjay R. Palyekar and Prakash Kurne, were not examined without trying to find out whether they were at all material witnesses to unfold the case of the prosecution. The learned Magistrate has also acquitted -6- the accused because, the complaint was not filed by the Chief Officer and this aspect will be dealt with, a little later. 8. As regards appellate powers, learned Senior Counsel has placed reliance on Ayodya Singh v. State of Bihar & Ors. (2005 (9) S.C.C. 584). It is well to remember that the paramount consideration of the Court is to ensure that justice is done and miscarriage of justice is prevented. Acquittal of the guilty and conviction of the innocent are both to be avoided. The appellate powers of this Court against an Order of acquittal are no different from the powers against an order of conviction. This Court has full power to review at large the evidence upon which the Order of acquittal is founded and to reach the conclusion that upon that evidence, the Order of acquittal should be reversed. It should only bear in mind that initial presumption of innocence is fortified by the acquittal and not weakened and if two conclusions are possible based on the evidence produced, then the Court would decline to interfere but in case the view taken by the trial Court is unreasonable, then it is the bounden duty of this Court to set the acquittal aside or when the judgment is manifestly erroneous. The observations in the decision cited on behalf of the accused by the learned Senior Counsel in the case of Ayodya Singh v. State of Bihar & Ors. (Supra), are no different from that well settled position. In this case, the Apex Court held that if on the same evidence two views are reasonably possible where the Court below takes a view in favour of the accused, the Appellate Court will not set aside the Order of acquittal unless it finds the finding to be perverse, highly -7- unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons. 9. There was no serious dispute that the vehicle in question was purchased under MPLAD Scheme (Member of Parliament Local Area Development Scheme), in the name of the Collector and was entrusted to the BMC. It was not the case of the accused at any time, that the said vehicle belonged to him or that it was not in possession of the BMC. The learned Magistrate has rightly noted that the offence of theft was one of removal of moveable property from the possession of another person without his consent and with a dishonest intention. Rajaram Gaonkar/P.w.1, might have stated that the theft was of the ambulance of Bicholim Municipal Council. However, the fact remains that in terms of the said Scheme, the vehicle in question was to remain as Government property and was to be returned no sooner it became unserviceable. The learned Magistrate had rightly observed that the evidence of deputy Collector/P.w.9 had revealed that the vehicle was in the name of the Collector and was in possession of the BMC and, inspite of the said observation having been made, the learned Magistrate allowed herself to be confused and then held that there was no documentary evidence on record to show that the said vehicle belonged to BMC and further went to the extent of observing that the documents did not pertain to the vehicle in question as there was no mention of either the registration number, the engine number or the chasis number of the vehicle. The prosecution had produced the Delivery Memorandum dated -8- 16.06.1998, (Exhibit P.w.1/C), which showed the engine number, the chasis number, the registration number as well as the ignition key number of the vehicle in question. The registration certificate dated 12.06.1998, shows the chasis number, the engine number as well as the registration number of the vehicle. The prosecution had also produced two Orders issued by the Collector, the first dated 24.03.1998(Exhibit P.w.1/B) and second one dated 22.04.1998(Exhibit P.w.1/D), which show the administrative approval given to purchase certain vehicles under the said Scheme, as recommended by Member of Parliament Shri Ravi S. Naik including one for BMC. Initially, it appears that the Collector was summoned but subsequently it is the Deputy Collector Shri Fernandes/P.w.9, who was examined in place of the Collector and who had identified the signatures of the then Collector on the said Orders. Shri Fernandes/P.w.9 had categorically stated that the vehicle in question was in possession of the BMC, a fact which was not even denied on behalf of the accused. It is submitted on behalf of the accused that the prosecution did not produce any delivery letter from the Collector to the BMC. In my view, such letter was not at all necessary to be produced. The evidence of the Chairperson Shri Gaonkar/P.w.1 and the Deputy Collector Shri Fernandes/P.w.9, was more than sufficient to conclude that the said vehicle which was purchased under the said Scheme, was in possession of the BMC and it was stolen whilst it was in their possession. The evidence referred to herein before was more than sufficient to conclude that the vehicle was purchased under the said Scheme, was registered in the name of the Collector and was allotted to BMC for use and -9- from whose possession it was stolen. 10. The evidence of Labourer-driver Govind/P.w.3 shows that he drove the vehicle last on 22.10.2002, to take a patient to GMC and brought it back and thereafter he was given a break till 07.11.2002. The vehicle was used last on 27.10.2002 and one does not know who had used the same but that was of no particular significance to the case of prosecution. The evidence of Shri Gaonkar/P.w.1 and Shyam/P.w.4 shows that the vehicle was seen on 28.10.2002 at 5.45 p.m. and disappeared before 6.15 p.m. before the said watchman resumed his duty. There were four drivers of BMC, besides Govind/P.w.3. The keys of the vehicle were kept in the vehicle itself. The vehicle had a log book and a register and the said register was in charge of the Supervisor by name Sanjay Palyekar under whose charge the vehicle used to remain till 5.45 p.m. (being office timings). Their evidence further shows that the garage of BMC is surrounded by compound wall, having a gate to it and one of the keys of the gate remains with the watchman and the other with the Supervisor Shri Palyekar and it is the said Shri Palyekar, who keeps a note of the incoming and outgoing vehicles from the garage and whenever a vehicle is required to be taken out, the said Supervisor had to be informed during day time i.e. from 8.00 a.m. to 5.45 p.m. and the watchman during night time. The vehicle was available for use for 24 hours and whenever the vehicle was to be removed out of the garage, the watchman or the Supervisor had to make an entry on the register. As per the watchman Shri Shyam/P.w.4, the vehicle did not disappear when he was on duty -10- and as already stated the vehicle disappeared between 5.45 p.m. and 6.15 p.m. on 28.10.2002 when neither the Supervisor nor the watchman were present. The said Supervisor Shri Palyekar's statement was not recorded by the Investigating Officer nor he was examined in the trial. Shri Gaonkar/P.w.1 stated that the register and the log book were shown by him to the I.O. and when the latter was questioned about it, Shri Walke/P.w.8 admitted that he had not interrogated the Supervisor of BMC to find out about the details of the vehicle. A submission is made, on behalf of the accused, by the learned Senior Counsel, that Sanjay Palyekar, the said supervisor, was a material witness for the prosecution and, therefore, adverse inference has got to be drawn against the prosecution for his non examination. Likewise, it has also been submitted on behalf of the accused, that the log book and register were not produced. In my view, no adverse inference can be drawn against the prosecution for non-examination of the said Sanjay Palekar, as well as for non-attachment of the log book or register of the vehicle. It was stated by Shri Gaonkar/P.w.1, that sometimes, the accused used to take his wife in the said vehicle to the Goa Medical College. It was pointed out to Shri Gaonkar/P.w.1, in cross examination that such a statement he had not made in his complaint to the police and he explained by stating that he had not mentioned it in his complaint because there was no need for him to have so stated. The said statement of Gaonkar/P.w.1, that the accused used to take his wife in the said vehicle, might have been at the most an improvement in his version but on that count alone, his said statement could not have been disbelieved. It is not unusual for some of the officials to misuse Government -11- vehicles. The examination of the said Palyekar, might have been relevant in case theft was committed by a person who was not connected with BMC and the facts stated by the aforesaid witnesses show that in all probability, that the vehicle was taken out after the employees left the office and before the arrival of watchman on duty on that day. The production of the log book would be of no relevance as far as this case is concerned. A person taking the vehicle unauthorizedly does not make entries on the log book or register. Non- examination of the said Sanjay Palyekar casts no shadow of doubt on the case of the prosecution, which is otherwise well established with other overwhelming evidence on record. The said Sanjay Palyekar was certainly not a material witness and he would not throw any more light on the disappearance of the vehicle than what is stated by the watchman. The submission that the driver Parab/P.w.3 and the Watchman Shyam/P.w.4, have deposed only to please their superior namely the Chairman Shri Gaonkar/P.w.1, cannot be accepted and there is nothing in the evidence of Parab/P.w.3 and Shyam/P.w.4, even to remotely suggest that they have given false evidence to please the Chairperson Shri Gaonkar/P.w.1. 11. That takes me to consider the first submission of the learned Senior Counsel, on behalf of the accused, which has been probably made by taking a thread from the observation of the trial Court that the complaint was not filed by the Chief Officer of B.M.C., who admittedly is its administrative head. Learned Senior Counsel has placed reliance on Section 281(1)(b) of the Goa -12- Municipalities Act, 1968, (Act, for short) and has submitted that the police could not have investigated the case against the accused unless a complaint was filed by the Chief Officer of the B.M.C. Learned Counsel has submitted that the Chairman had no power to lodge the said complaint and that had to be lodged only by the Chief Officer of BMC and that the general principle that criminal law could be set in notion by anyone, would not be applicable in this case in the light of the aforesaid provision. The learned Senior Counsel further submitted that the Act could always modify the said general principle and the words “any offence” appearing in clause (b) of sub-section 1 of Section 281 of the Act, would show that the complaint could not have been entertained by the police for investigation unless it had come from a person other then the Chief Officer. Shri Kakodkar has further submitted that a Chairperson is kept out of the purview of Section 281 of the Act because he may be politically motivated. On the other hand, the learned Public Prosecutor, has submitted that Section 281 (1)(b)of the Act, is merely an enabling provision and the said provision creates no bar for filing of the complaint. In this regard, the learned Public Prosecutor has placed reliance on A. R. Antulay v. Ramdas Sriniwas Nayak & anr. (AIR 1984 S.C. 718). In this case, the Constitution Bench of the Hon'ble Supreme Court has stated that it is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal -13- jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant by necessary implication the general principle gets excluded by such statutory provision. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait- jacket formula of locus standi unknown to criminal jurisprudence save and except specific statutory exception. 12. In the case of Misrilal Mangilal Maternity & Child Welfare Centre Construction Committee, Hyderabad v. K. Rajmallu & Ors. (1978 Cri. L. J. 1360), the Andhra Pradesh High Court observed that excepting cases attracting Sections 195 to 199 Cr.P.C., any person having knowledge of the commission of any offence, could file a complaint. 13. Section 281 in Chapter XXI of the Act deals with provisions as respects institution, compounding, etc. of criminal actions. It reads as follows:- “(1) Subject to the general control of the Council, the Chief Officer may take proceedings against any person who is charged with - (a) any offence against this Act or any rules of bye-laws made thereunder; -14- (b) any offence which affects or is likely to affect any property or interest of the Council or the due administration of this Act; or (c) committing any nuisance whatever : Provided that the Chief Officer shall not, except with the previous approval of the Council, direct a prosecution or order proceedings to be taken for the punishment of any person offending against the provisions of the following sections or sub- sections, namely :- (i)sub-section (7) of Section 171 read with sub-sections (8) and (9) of section 184; (ii)sub-section (6) of section 178; (iii)sub-section (5) of section 243. (2)No prosecution for any offence under this Act or the rules or bye-laws made thereunder shall be instituted except within six months next after the date of the commission of the offence, or if such date is not known or the offence is a continuing one within six months after the commission or discovery of such offence. (3)Any prosecution under this Act or the rules or bye-laws made thereunder may, save as therein otherwise provided, be instituted before any Magistrate; and every fine or -15- penalty imposed under or by virtue of this Act or any rule or bye-law, and any compensation, expenses, charges or damages for the recovery of which no special provision is otherwise made in this Act, may be recovered on application to any Magistrate, by the distress and sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimable. (4)Notwithstanding anything contained in Section 257 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), no Magistrate shall permit withdrawal of a complaint under that section in respect of an offence punishable under this Act or the rules and bye-laws made thereunder, unless the Magistrate is satisfied that although the complaint was made in good faith it was based on incorrect facts or insufficient information. (5)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences punishable under this Act or the rules or bye-laws made thereunder may be compounded by the Chief Officer, but only with the permission of the Court before which any prosecution for such offence is pending, or when the accused has been committed for trial or -16- when he has been convicted and an appeal is pending, with the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard. (6)The Chief Officer shall before compounding any offence under the last preceding sub- section obtain the approval of the Standing Committee, and the Standing Committee shall not accord its approval unless the accused pays by way of composition of the offence such sum as may be determined by it. Such sum shall not be less than one- fourth of the maximum amount of fine prescribed for the offence, and if the fine prescribed therefor is unlimited shall not be less than two hundred and fifty rupees. (7)The composition of an offence under this section shall have the effect of an acquittal of the accused with which the offence has been compounded. (8)The expenses of all prosecutions or proceedings shall be paid out of the municipal fund.” 14. It will not be out of context to refer to Section 74 of the Act, which deals with powers and duties of Chief Officer and particularly clause (f) of sub- section 1 thereof, which provides that the