STATE Vs. VINOD GARADE

JUDGEMENT

(1.) THE present appeal has been filed by the State, challenging the Judgment and Order passed by the Assistant Sessions Judge, North Goa, Panaji in Sessions Case No.16/2003. By the said Judgment and Order dated 12th March, 2004 the Assistant Sessions Judge North Goa, Panaji was pleased to acquit all the accused who were charged of the offences punishable under Sections 454 and 398 of the Indian Penal Code. Against the said Judgment and Order, Criminal Misc. Application No.251/04 was filed along with Criminal Appeal Stamp No. 1621/04. Initially since the respondents were not served, a nonbailable warrant was issued by this Court in the said application. Thereafter another Criminal Misc. Application No.22/05 was filed for issuing a fresh nonbailable warrant and the said Cr, Misc. Appln. No.22/05 was disposed of by passing an order for issuance of fresh nonbailable warrant.

(2.) THERE was a delay of 20 days in filing the appeal and therefore notice was issued on the said application and when the accused could not be served, nonbailable warrant was issued. On 29th June, 2005 the delay in filing the application was condoned. However, it appears from the record that it was wrongly mentioned that the said Criminal Misc. Application No.251/04 was disposed of. From the record it can be seen that the application for condonation of delay was made in Cr.Misc. Application No.158/04, whereas Criminal Misc. Application No.251/04 was filed seeking leave to file appeal. Therefore what was actually disposed of on 29th June, 2005 was Cr.Misc. Appln No.158/04. After the delay was condoned the application for granting leave to file appeal namely Cr.Misc. Application was taken up for hearing along with the Criminal Appeal. Since the record had already been received by this Court, the learned P.P. Shri Sardessai and the learned counsel appearing on behalf of the respondents/accused Ms. Fonseca was heard at length.

(3.) SHRI Sardessai, the learned P.P. has taken me through the judgment and order of the trial Court as also through the oral and documentary evidence adduced by the prosecution. P.W.2 Maria Saldanha who had lodged the complaint, stated in her evidence that accused No.3 was doing painting work in their house from 11.1.03 to 14.1.03 and thereafter after a short break of four days, he had recommenced his work on 18.1.03. She has stated that at about 6.00 p.m. she saw three persons entering their house and thereafter they closed the main door. She has stated that normally the main door was always closed, however on that day accused No.3 had requested that the door may be kept open. P.W.2 has further stated that the three persons were wearing long pants and short sleeves shirts and one of them was carrying a black bag and the colour of his shirt was light blue with checks, whereas his pant was bluish colour. She identified A.1 as Vinod, A.2 as Somnath and A.3 as Vijay. She stated that after the door was closed by the accused her sister in law asked them what they wanted, one of the persons put his hand on her sisterinlaw's mouth and threatened her at the point of a crowbar. At that point of time P.W.2 went to rescue her. One of the three persons caught hold of her hand and dragged her to the other room and then she further stated that this person tried to assault her and showed her a pointed crowbar. According to her the person who threatened her was A.2 Somnath and the person who dragged her to the other room was accused No.1 Vinod. Further she stated that accused No.4 assaulted her husband, as a result of which he sustained a bleeding injury on his palm. She was therefore frightened and all of them started screaming. All the accused thereafter went out of the main door. The complainant thereafter went out of the door and started shouting for help. One person according to her jumped on the road from the veranda of her house and members of the public caught hold of A.1 Vinod, whereas the other two accused ran away. P.W.2 thereafter has stated that identification parade was carried out on 7.3.03 in which she identified accused No.4. In the crossexamination of P.W.2 number of contradictions and omissions were brought on record. Prosecution thereafter examined P.W.3 Carmino Costa who is labourer of the complainant. He did not witness the incident of the attempt to commit robbery. He has however stated that accused No.1 was caught by a motor cyclist while he was running on the road. He has stated that accused No.1 was the same person whom he had seen outside the house of the complainant. Prosecution thereafter examined P.W.4 Caetano Saldanha who is the son of the complainant. This witness also was not present when the incident took place as he had gone out and after he returned home, his parents told him that three persons entered the house and attacked them. P.W.5 Damodar Dessai was the panch who drew the panchanama of the house of the complainant. P.W.6 Alex Fernandes is working as a Cook in the house of the complainant. He has stated that the accused no.3 was a painter working in the house of the complainant and that accused No.3 had kept the main door of the house open. P.W.6 Germana Saldanha, sisterinlaw of the complainant has stated that three persons entered the house from the main door and that at that time the accused No.3 was at the back side of the house doing painting work. She has stated that one of the three persons had closed her mouth by putting his hand on it and the other person had assaulted her sisterinlaw and the third person had assaulted her brother with a knife, as a result of which he had received an injury on his palm. P.W.8 Shabir Einapure has deposed that he had seen the people who were chasing one person who had come out of the house of the complainant and has further stated that he had managed to catch this person and thereafter the other person caught hold of him and assaulted him. P.W.9 Vinayak Alornekar is the Special Executive Magistrate who conducted the test identification parade. P.W.10 Dr. Ashutosh Prabhudessai examined accused no.1 Vinod Garade and he has stated in his evidence that A.1 was having chronic paranoid schizophrenia. However, he stated that he was fit for trial. In the crossexamination this witness has admitted that the accused no.1 had a long history of schizophrenia and was taking treatment for a long time for his sickness. In cross examination he has stated that it was necessary for this accused to take treatment and that the condition of the accused would become serious if the treatment was discontinued. He further stated that such persons suffering from the said disease were under some fear. P.W.11 Rajendra Naik was examined as a panch witness in respect of the arrest of some persons. P.W.12 was also a panch in connection with the panchanama of arrest of two persons namely accused Nos.3 and 4. P.W.13 was also examined as a panch witness. P.W.14 also is examined as a panch witness in respect of the recovery made at the instance of A.2 to prove the recovery of one knife, two bundles of string and chilli powder from the house of his sister. P.W.15 Renuka Naik who is the sister of accused no.2 was examined and she has deposed that accused no.2 had pointed out the knife, string and chilli powder in the plastic bag which was kept by him in the house. P.W.16 Santosh Naik also in his deposition has stated about this fact. P.W.17 Natalina has merely stated she knew accused no.3. P.W.18 Dr. Luiza Silveira examined Ivo Saldanha, the husband of the complainant and has stated that there was a lacerated wound 5 x .5 cms. on the palm surface of the right hand between the first and second finger and stated that the said injury could be caused by assault with a pointed iron rod. P.W.19 Sudesh Narvenkar was the Investigating Officer and has mentioned what steps had been taken by him during the investigation of the case. P.W.20 Sammy Tavares took over the investigation of the case from P.W.19 and has stated the further steps taken by him in the case.