1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 44 OF 2008 Mr. Carlus Cardoz, S/o. Andrew Jacob Cardoz, r/o. St. Sebastiaowado, Pomburpa, Porvorim Goa. Presently lodged in Central Jail, Aguada. .. Appellant v e r s u s S T A T E .. Respondent Mr. Arun Bras De Sa, Advocate for the appellant. Ms. W. Coutinho, Public Prosecutor for the respondent. CORAM: N.A. BRITTO, J. DATE: 18TH SEPTEMBER, 2009. ORAL JUDGMENT 1. This appeal is filed by accused no.3 Carlus Cardoz in Sessions Case No.11/02 and is directed against Judgment dated 21.7.05 of the Learned Additional Sessions Judge, Margao, by which 2 he has been convicted and sentenced under Sections 392/ 397 IPC to undergo RI for seven years and fine of Rs.2,000/- and in default to undergo three months SI. 2. Heard Shri Arun Bras De Sa, on behalf of the appellant/A-3, Carlus Cardoz and Ms. Coutinho the Learned Public Prosecutor on behalf of the respondent. 3. A charge sheet was filed against several accused by Sanguem Police Station. Some of the accused were discharged and accused nos. 1, 2 and 3 were directed to face trial under Sections 392, 427, 504 r/w 34 IPC. The said order of discharge was challenged before this Court in Criminal Revision Application No.27/02 and by order dated 20.6.03 this Court held that there was sufficient material to proceed against accused nos. 1, 2 and 3 for offences punishable under Section 392 read with 34 IPC and directed the Court of Sessions to frame charges against the accused. The discharge of accused no.4 Justin D'Cunha was upheld. Charge was also directed to be framed against A-5 Pascoal Estebeiro under Section 411 IPC. 4. Thereafter charge came to be framed against accused nos. 1, 2 and 5 vide Exhibit 35. Accused no.3 Carlus Cardoz was then 3 absconding. Subsequently charge was framed against accused no.3 Carlus Cardoz vide exhibit 42. One Robert Dias was tendered pardon and was examined as Pw1. 5. The prosecution examined 32 witnesses including P.I. Manjunath Dessai who at the relevant time was attached to the Sanguem Police Station. 6. The complainant/Pw9 Babu Bandekar was doing the business of sale of liquor as a wholesaler and he was supplying liquor to various bar owners situated at Sanvordem and adjoining areas. On the date of incident i.e. on 14.6.01 he was driving his pickup used for that purpose bearing no. GA-02-TU-7642 and was going towards Sanvordem alongwith his son Pw14/Vikram Bandekar sitting in the cabin on the cleaner's side, and Pw31/Hanumant Patil, their loader, sitting in between them. The accused drew up a plan to rob them and the plan was that A-1 Alex, A-2 Bernard and A-3 Carlus would chase their vehicle and then block it, and the said three accused did the same by going on Vespa scooter bearing No.GA-01-A-7299. They were sitting on the scooter in that order. In other words, the said Vespa was driven by A-1 Alex, A-2 Bernard was the first pillion rider and A-3 Carlus was the second pillion rider. After overtaking the 4 vehicle of the said Pw9/Babu Bandekar, A-2 Bernard and A-3 Carlus got down and went in either direction of the pickup and while A-2 Bernard assaulted Pw14/Vikram Bandekar, A-3 Carlus assaulted the complainant Pw9/Babu Bandekar and robbed them of their belongings. This is gist of the case of the prosecution which can be seen in detail a little later in the version given by the complainant/Pw9. 7. As far as A-1 Alex Fernandes is concerned, he too was convicted by the impugned judgment but by judgment of this Court dated 23.2.2007 in Criminal Appeal No.32 of 2005 the conviction and sentenced imposed upon him was set aside as he was juvenile and liberty was given to the prosecution to file a separate charge sheet against him before the Juvenile Justice Board, constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000. It is submitted by the Learned Public Prosecutor that inquiry against him is pending before the said J.J.B. The accused no.2 Bernard Cardoz was also convicted by the impugned Judgment, but by Judgment of this Court dated 1.3.07 in Criminal Appeal No.31 of 2005 the impugned Judgment as against him was set aside and he was given benefit of doubt. A-2 Bernard alias Bhendo Cardoz was given benefit of doubt because he was not identified either by Pw9/Babu Bandekar or 5 Pw14/Vikram Bandekar and no test identification parade was held as regards him and he was arrested on 28.12.2001. It was also observed that if A-2 Bernard had masked his face or had put some other substance, at the time of the alleged incident, his subsequent identification for the first time by Pw31/Hanumant Patil could not have been accepted as free from doubt and therefore the benefit of doubt was extended to accused no.2 Bernard alias Bhendo Cardoz. 8. As far as A-4 Justin D'Cunha, he was discharged by the Learned J.M.F.C and his discharge was upheld by this Court. A-5 Pascoal Estibeiro has been acquitted by the impugned judgment and what now remains is the trial of A-1 Alex Fernandes and the conviction of A-3 Carlus Cardoz. The sentence imposed upon A-3 Carlus Cardoz had to wait from 22.7.05 to 31.3.08 as in between he was absconding. 9. The Learned Additional Sessions Judge in convicting and sentencing the accused observed that there was direct evidence with regard to the meeting of minds, the preparation of the place, etc. through the deposition of Pw1/ Robert Dias, but that conclusion was not accepted in Judgment dated 1.3.07 in Criminal Appeal No.31/05 and it was, inter alia, observed in para 17 of the Judgment that 6 Pw1/Robert Dias was not present when A-2 Bernard and A-3 Carlus allegedly assaulted Pw9/Banu Bandekar and Pw14/Vikram Bandekar and took away the key and the bag with cash or the gold chain. It was further observed that the recovery of the rexin bag as well as the key was not free from doubt and no reliance could be placed on the said recoveries. Secondly, the Learned Additional Sessions Judge observed that there is direct evidence given by the complainant Pw9/Babu Bandekar, Pw14/Vikram Bandekar and Pw31/Hanumant Patil with regard to the incident and further observed that the said complainant specifically had disclosed the description of the three persons who committed the said offences by using the said blue colour vespa scooter. The Learned ADJ further observed that the incident had taken place between 5.30 pm to 6 pm in the month of June and therefore the identity of the accused was established. As regards accused nos. 2 and 3 were concerned, the Learned ADJ observed that there is sufficient material on record to show that they took active part and assaulted the complainant Pw9/Babu Bandekar and his son Pw14/Vikram Bandekar and caused them grievous injuries and that medical evidence brought on record showed that the complainant had sustained fracture injury on his right hand as well as to his left wrist. The Learned ADJ further observed that the prosecution had proved that Pw14/Vikram had sustained injury on his face due to the blow 7 given by accused no.2 and the doctor had certified the said injury as grievous in nature and therefore the ingredients of Section 397 IPC were attracted as far as accused no. 2 Bernard and accused no.3 Carlus were concerned and therefore he proceeded to hold them guilty under Sections 392/397 IPC. 10. Before considering the submissions made by Shri Bras De Sa, on behalf of A-3 Carlus Cardoz, it is necessary to refer to the version given by Pw9/Babu, to have a complete picture of the incident. He stated that on 14.6.01 they had started from their house and were proceeding towards Sanvordem and had reached at Costi at about 5.30 pm and he was driving the said pickup and his son Pw14 and his labourer Pw31 were with him. He stated that three persons came on a scooter from the rear side, from Costi, overtook their vehicle and blocked it s a result he had to stop his vehicle and then two alighted from the said scooter while the rider remained on the scooter and among the said two persons, one was tall and the other was short. The said short person has been identified as A-3 Carlus by the witnesses. According to him, the said short person came near the door on his side and removed the ignition key and held his shirt and pulled him out and before that he abused him in filthy words, abuses which he repeated, and then twisted his right hand forcibly due to 8 which he sustained a fracture and then pulled the gold chain which was around his neck and which broke in two pieces and put the key in his pant pocket. He stated that the tall person went to the cleaner's side of the pickup and gave a fist blow on the face of Pw14/Vikram who suffered bleeding injury and his teeth came out from his mouth and the said tall person pelted stones on the glass, on the cleaner's side as a result of which the glass was broken and when he asked the said persons as to why they started pelting stones, the short person gave a fist blow on his stomach and when he went to help Pw14/Vikram the short person removed the bag containing cash which was kept at the rear side of the driver's seat and he tried to snatch it from his hand but he hit him with kicks and pushed him down and in that process the belt of the said bag remained in his hand but the bag was snatched by the said short person. He stated that there was cash of about Rs. 70,000/- which was the day's collection. Then he gave the details of the currency notes found in the said bag and further stated that the said two persons thereafter sat on the scooter and went away towards Sanguem side. He stated that he tried to see the number plate but it was black in colour and was not visible but he stated that the scooter was a Vespa and was of blue colour. He also stated that in the said bag there was a small diary and two or three envelopes and after ten to fifteen minutes a motorcycle came from Costi side and he took his 9 help and came to Sanguem Police Station and lodged his complaint. He stated that he could describe the said persons. The person sitting on the scooter was a short person of about five feet and of dark complexion and was wearing half pant and half shirt which were blackish in colour and he was wearing chappels. The second person was slightly taller and was above five feet and was wearing blue colour jean pant and a black jacket and was hefty. The third person was tall i.e. more than 5.5 feet and of medium age and having a medium complexion and was wearing a black pant and yellow T-shirt and a black goggle and a white cap. In cross examination he identified accused no.3 as he had seen him while he was assaulting him and he is of the same height as his. However, he stated that he could not recollect at which serial number the said accused no.3 was standing in the row (at the time of the identification parade). 11. Pw14/ Vikram Bandekar, after narrating the facts stated by his father Pw9/Babu Bandekar stated that he did not remember whether accused no.3 who was sitting in the dock was present on the date of incident. He further stated that he did not recollect whether he had seen the said accused at any time, earlier. 12. Pw31/Hanumant Patil also narrated the facts in the same 10 manner as Pw9Babu Bandekar, and, he further stated that the short person who came over towards the driver's side of the pickup and assaulted the said Bandekar was also present and was sitting at serial no.3. He identified accused no.2 as the person who came on the left hand side of the pickup. In cross examination he admitted that he was not assaulted or even touched by anyone on the date of the incident nor was he abused or threatened at the time of the incident. I have refrained from reproducing the other facts stated by Pw14/Vikram and Pw31/Hanumant because of limited submissions made by Learned Counsel on behalf of the accused. 13. Learned Counsel on behalf of the accused submits that neither Pw9/Babu nor Pw14/Vikram have sufficiently identified A-3 Carlus. He further submits that the identification by Pw31 Hanumant was not accepted against A-2 Bernard alias Bhendo Cardoz in Judgment dated 1.3.2007 in Criminal Appeal No. 31/05 and therefore the present accused also needs to be given benefit of doubt. Learned Counsel further submits that if the father (Pw9) and his son (Pw14) could not identify A-3 Carlus as one of the assailants, A-3 Carlus could not have been convicted more so because nothing was found in his possession and the goggles which were recovered at his instance were otherwise not proved to be connected with the crime. Learned 11 Counsel further submits that according to the prosecution A-3 Carlus was absconding and a look out notice was placed a the police station and considering that also the identification even by Pw31/Hanumant ought not to have been accepted by the Learned ADJ. 14. Learned Public Prosecutor Ms. Coutinho concedes, and, in my view, wrongly, that besides the identification of A-3 Carlus by Pw31 /Hanumant, there is no other evidence. 15. I am unable to accept the submissions made by Shri Bras De Sa, the Learned Counsel on behalf of A-3 Carlus as well as by the Learned Public Prosecutor. The complainant Pw9/Babu and Pw31/Hanumant have consistently given the description of the present accused and has identified him not only at the test identification parade as well as before the Court. Pw9/Babu has categorically identified A-3 Carlus as the person who had assaulted him. Learned Counsel on behalf of the accused has sought to read his previous statement, to the aforesaid statement, out of context and, what Pw9/Babu had stated is that he did not recollect at which serial number accused no.3 Carlus was sanding in the row (at the test identification parade) and that did not mean that he had not identified A-3 Carlus before the Court. He was very categorical in his 12 identification and so also Pw31/Hanumant. Both these witnesses not only gave the description of the present accused in the complaint and or in the statement recorded by Police but have consistently identified him at the test identification parade as well as before the Court. It is not the case of the defence that either of them had any occasion to go to the police station and have a look at the look out notice which might have been placed at the police station because A-3 Carlus was absconding. Pw31/Hanumant was in a best position to observe, sitting in between both the victims, as both the victims on either side were being assaulted by accused no.2 Bernard and accused no.3 Carlus, the latter having assaulted the complainant pw9 and the former having assaulted his son Pw14. The Learned ADJ observed, and in my view rightly, that the complainant Pw9 had described the said persons in the complaint as well as before the Court and at the test identification parade the complainant had identified the short person as accused no.3 Carlus who had snatched the bag, the gold chain and the key of the pick up and Pw9 Babu had also identified all the accused persons before the Court and although he was cross examined at length, except for minor contradictions as regards the sequence of events, there was no reason to discard his evidence. The Learned ADJ also observed that Pw14/Vikram had referred to the person who went towards the driver's side as the short person and the other who came towards him 13 as the tall person though he was unable to disclose whether A-3 was the said person or not. As regards Pw31/Hanumant the Learned ADJ observed that he was not assaulted nor there was any resistance from him since he was sitting in the middle portion of the cabin of the said pickup and though he was working with the complainant, his evidence had to be considered as that of an independent witness whose presence was but natural in the pick up at the relevant time. The Learned ADJ also observed that there was absolutely no material on record to show that the identifying witness had a chance to see the accused persons prior to the conducting of the I.D. Parade and suggestions put to them in that regard were denied by them. The Learned ADJ further noted that A-3 Carlus was arrested on 17.2.02 and the requisition for I.D. Parade was made on 19.2.02 and which was held on 4.3.02 and during the said identification parade both Pw9/Babu and Pw31/Hanumant had identified A-3. The Learned ADJ therefore noted that the colour of eyes of A-3 Carlus was slightly different than the normal eyes but that difference was minute and although the said witnesses had given the description of the accused involved they had not referred to the colour of eyes of A-3 Carlus and had independently identified him. 16. To sum up, this is a case where A-3 Carlus' description 14 was given by the complainant and the said witnesses in the complaint or the statements recorded and the complainant/Pw9 and Pw31/Hanumant had consistently identified him not only at the test identification parade but as well as before the Court, and, that in my opinion, was more than sufficient evidence to prove the complicity of A-3 Carlus in the alleged incident. 17. As regards test identification, it may be stated that the necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of test identification is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. The identification proceedings are in the nature of tests and significantly there is no provision for it in the Code or in the Evidence Act. As stated by the Apex Court in Malkansingh and others V/s. State of M.P. {(2003) 5 SCC 746} the T.I. Parade does not constitute substantive evidence. The substantive evidence is the evidence of identification in Court and the T.I. Parade provides corroboration to the sworn testimony of the witnesses in Court and as to the identity of the accused. In appropriate cases, the Court may accept the identity in Court even without necessity of such or other corroboration, as stated in order dated 1.3.07 in Criminal Appeal No. 15 31 of 2005 in the case of A-2/ Bernard. 18. As regards the injuries caused to Pw14/Vikram, the same have been proved through the medical evidence of Pw7/Dr. Vinod Naik who has confirmed that Pw14/Vikram lost one front upper incisor due to the blow given on his face and which injury was grievous in nature and he produced a certificate Exhibit-83. This part of the case has been dealt in greater detail by the Learned ADJ in para 93 of the impugned judgment. As regards the grievous injuries of Pw9/Babu the same have been proved through the medical evidence of Pw11/Dr. Sonu Kamat as well as Pw12/Dr. Sandeep Fowkar who was examined in place of Dr. Sandeep Fowkar and the same have been dealt by the Learned ADJ in paras 90 and 92 of the impugned judgment. 19. The recovery of the said goggles at the behest of A-3 Carlus has been rightly overlooked by the Learned ADJ. 20. In the light of the above evidence and the submissions made, in my view there is no scope to give any benefit of doubt to the present accused. The prosecution has proved beyond reasonable doubt the involvement of accused no.3 Carlus in the incident. 16 Therefore, I find that there is no merit in this appeal and consequently the same is hereby dismissed. N. A. BRITTO, J. oc.