CARLES CARDOZO Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the Judgment of the learned Additional Sessions Judge, Margao, dated 30th March, 1993 affirming the judgment of the learned judicial Magistrate, First Class, Vasco Da Gama dated 30th December, 1992. By the aforesaid judgment the learned Magistrate has convicted the petitioner for offence under Section 394 of the Indian Penal Code and -sentenced him to undergo two and half years of rigorous imprisonment and to pay a fine of Rs. 1,0001 - or in default to undergo six months simple imprisonment. In addition the petitioner has also been sentenced to enhanced punishment under Section 75 of the - Indian Penal Code.

(2.) THE case of the prosecution is that on 8.6.1991, at about 7.00 a.m., the petitioner hired a taxi bearing No. GA -01/V/0129 belonging to the complainant Mahesh Naik at Mapusa taxi stand stating that his brother has been arrested by the Mapusa Police and that he wanted to go to Margao to meet brother of one Churchill Alomao in order to bail out the said brother. The complainant then asked the petitioner to board the taxi and as per his instructions was made to give a round at the Police Station of Mapusa first and thereafter directed to go to Margao via Mova lake and Maddel towards Ribandar side. Before going, to Margao he was told to take the taxi and have a round to Mova Goa Motel. Thereupon he come to Margao via Cortalim road and on reaching Margao he was asked to stop near a printing press wherein the petitioner got down. After a little while he came back and told the complainant to start for Panaji. It was further the case of the prosecution that on reaching Kasarval near the Motel the petitioner told the complainant to take the taxi at the side road which is existing to the left while proceeding to Panaji. On reaching some distance at a lonely place the petitioner asked the complainant to stop and then he assaulted the complainant with fist blows and kicks given on his stomach and chest and at the same time snatched away from his neck the gold chain weighing about 2.5 sovereigns (libras). Thereupon he also took the key of the car and removed from the internal drawer of the vehicle cash of Rs. 2000/ - and some loose coins which coins he threw down and went away with the gold chain and cash. Complainant thereafter went to Mapusa Police Station where he tried to lodge his complaint but was told to lodge it at Vorna Police Station. There after he returned back and filed the complaint at Vorna Police Station on the same day. At the completion of the investigation the charge -sheet was filed against the petitioner in the court of Judicial Magistrate, first Class, Vason. The learned Magistrate after recording evidence found the petitioner guilty for the aforesaid offence under Section 394 of the Indian Penal Code and sentenced him accordingly. This sentence was upheld by the learned Additional Sessions Judge by the judgment under challenge in this revision.

(3.) ALTHOUGH impressive prima facie I am of the view that this submission of the learned counsel is not to be accepted. It is a fact that what was attached by the Police consequent upon the complaint lodged by the complainant Mahesh Naik to the effect that the petitioner has snatched away from his neck a gold chain was only a gold ingot and not a chain. But the circumstances under which the said attachment and recovery was done becomes very material to establish The relevancy of such attachment and suggest a direct link between The melted gold and the complainant's chain. In this respect the evidence available on record clearly indicates that consequent upon the complaint lodged by Mahesh the petitioner was identified as the suspect of the assault and robbery through the information given by one Ticlo who was standing in the bus stand and thereupon the complainant with the help of one taxi driver Sudesh (P.W. 5) went to his house at Britons where he was actually found. Later on the petitioner was arrested by the Police and only then that the recovery of the gold was done by the Investigation Officer at the instance of the petitioner. P.W. 1 Naval Gomes has deposed that it was in his presence that the petitioner has expressed his willingness to show The person and the place where he had sold the gold chain and it was on account of this disclosure that he was asked by The Police to accompany The party alongwith the other panchs. Accordingly after leaving the Police Station the petitioner took the party first to P.W. 6 Lorance Gomes by saying that it was through him that the gold chain had been sold to a goldsmith. Then alongwith Lorance all went to the shop of P.W. 3 Raju Salkar wherein the said Raju admitted that the gold chain had been sold to him by the petitioner who was accompanied by P.W. 6 Lorance. The said P.W. 6 Lourance has also admitted that he actually helped the petitioner to dispose of the chain when he had approached him for that purpose adding also that on earlier occasions he had also helped the petitioner to sell gold chains to the said P.W. 3 Raju Salkar. It is in this context That The recovery of the melted gold from the shop of Raju Salkar is to be understood and construed as relevant piece of material evidence connecting the petitioner to the sale of a gold chain to Raju Salkar as being the chain which according to the complainant P.W. 4 Mahesh has been snatched away by the petitioner from his neck. To be noted that Raju Salkar himself has admitted before P.W. 1 that the gold ingot which was found in his possession was the ingot prevention from the melted gold chain sold by The petitioner. Being so I am satisfied That both the learned Trial judge as well as the learned Sessions Judge were right in relying on the said recovery for the purpose of recording a finding that the said recovery would help the prosecution to establish the link between the removal of The gold chain by the petitioner from the neck of the complainant and the gold found in possession of Raju Salkar as a result of the sale of the gold chain by the petitioner.