DATA XIVA NAIQUE DESAI Vs. STATE

JUDGEMENT

(1.) This is a criminal appeal filed under Section 647 of the Portuguese Criminal Procedure Code on behalf of the appellants who were convicted by the learned Comarca Judge, Quepem, under Section 435(2) of the Portuguese Penal Code with the aggravating circumstances Nos. 10 and 33 under Section 34 and extenuating circumstances No. 25 under Section 39 and sentenced to undergo 2 years of 'prisao maior' (rigorous imprisonment). They were also sentenced to pay Esc. 7,643$ 50 as 'imposto de Justica' and damages etc. to the State for the material and moral loss caused. This sentence was imposed under Section 34 of the Portuguese Criminal Procedure Code. This appeal, we are hearing, as successors to the Tribunal de Relacao under Section 8 (1) of the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation 1963. This Section, to the extent it is material for the present purpose, provides that the Court of the Judicial Commissioner shall be the highest criminal court of appeal in Goa, Daman and Diu, and shall have all such jurisdiction as under the law in force immediately before the commencement of this Regulation was exercisable in respect of that territory by the Tribunal de Relacao. The said Regulation was brought into force in this territory on 16th December, 1963. Under Section 5 of the Goa, Daman and Diu (Administration) Act 1962 the Portuguese Penal Code, the Portuguese Criminal Procedure Code and other Portuguese Laws in force before the appointed day, that is 20th December, 1961 are to continue until they are replaced or amended by a competent legislature or other competent authority. The Portuguese Penal Code and the Portuguese Criminal Procedure Code have been replaced by the Indian Penal Code and the Indian Criminal Procedure Code in November, 1963.

(2.) The prosecution case against the appellants is disclosed in the provisional charge sheet submitted by the Police Prosecutor (Ministerio Publico). This charge sheet reads as under:

(3.) The learned Judge admitted the provisional charge sheet which he explained to the appellants. A counsel was provided to the appellant at State expense. The learned Judge then examined the evidence on corpus delicti and then sent the record for the 'visto' to the office of the Public Prosecutor who confirmed the said charge sheet. The learned Judge also confirmed the charge sheet in accordance with the procedure prescribed under the Portuguese Criminal Procedure Code, after satisfying himself that the trial was not in any way vitiated on account of jurisdictional error etc. Appellant Data Xiva Naique Dassai and appellant Naraina Rogunata Desai were then examined at the trial on 14th February, 1964. They pleaded an alibi. In their statements to the Police Prosecutor on 6th September, 1963, they stated that they had been falsely implicated. The learned Judge examined the prosecution and defence witnesses. On 4th May, 1964, he delivered the judgment convicting the appellants as stated above.