STATE Vs. JOAO SALDANHA

JUDGEMENT

(1.) This is an appeal filed on behalf of the State under S. 417 (1) of the Criminal P.C. wherein it is prayed that the order passed by the learned Magistrate, Quepem, acquitting the respondents (Joao Saldanha, Harishchandra Suba Gauncar and Shaik Ayub) of the offences under Section 427 and Section 109 of the I. P.C., is not a correct order and accordingly it should be set aside.

(2.) The prosecution case is that on 21st February 1966 in the afternoon accused Shaik Ayub, accompanied by his mukadam Sricrisna Mambro and a labourer by name Loximona, visited the house constructed by the complainant Ragunath Nanu Naique and, under his instructions, Loximona demolished its walls with a pickaxe. The complainant Ragunath Naique was not present when this incident took place but his wife Vasanti Ragunath Naique was present. She later informed him. This house was situated in the premises of the garden of the accused Shaik Ayub. The sarpanch of the village was also apprised of this incident. On 26th February 1966 accused Joao Saldanha and Harishchandra, driver and cleaner respectively of accused Shaik Ayub, went to the house of the complainant, and demolished its plinth with the shovel used by accused Joao Saldanha. This incident was also witnessed by the wife of the complainant and some others. The total damage suffered by the complainant was to the extent of Rs. 510/-. The complainant thereafter lodged report with the Police on the same day. The Police, after necessary investigation, challaned these accused under Section 447 and Section 427 r/w Section 109 of the Penal Code. The learned Magistrate, after considering the documents referred to in Section 173 of the Criminal P.C. and other matters, drew up the charge under S. 427 and S. 109, I. P.C. only. This charge was read and explained to these accused. They stated that they were not guilty. In support of the prosecution case were examined the complainant, his wife and some other witnesses. In their further statements also the accused did not admit that they were guilty. Sricrisna Mambro was thereafter examined as a defence witness. No other witness was examined on their behalf. The conclusion of the learned Magistrate was that the charge was not established against these accused and, accordingly, he directed their acquittal. The State felt aggrieved by this judgment a ad hence the present appeal under S. 417 (1) of the Criminal P. G. This, in short, is the background of the case.

(3.) I shall consider the evidence adduced by the prosecution and the defence, but before I do so it would be convenient to record the conclusions of the learned Magistrate in relation to each accused. As regards accused Shaik Ayub, he stated that there was "no weighty evidence that he personally caused damage to the house of the complainant or directed its destruction." According to him, it was defence witness Sricrisna Mambro who, on his own initiative, directed demolition of the house of the complainant. This witness is admittedly a manager of accused Shaik Ayub. As regards accused Joao Saldanha, it was stated that in demolishing the plinth of the house of the complainant, he merely carried out the directions of the defence witness Sricrisna Mambro and, therefore, there was no criminal intention on his part to commit the offences with which he was charged. Accused Harishchandra Gauncar was exonerated on the ground that the evidence did not implicate him.