STATE Vs. NAGUESH G SHET GOVENKAR

JUDGEMENT

(1.) This is an appeal under Sec. 417(1) of the Code of Criminal Procedure directed against the judgement passed by the learned Sessions Judge, whereby he acquitted respondents Nos. (3) to (7) of the offence with which they were charged under Sec. 395 of the Penal Code. The respondents Nos. (1) and (2) were convicted by him under Sec. 392 of the Penal Code. They were, however, released on probation of good conduct under Sec. 4 of the Probation of Offenders Act, 1958. The State felt aggrieved by this action and also by the decision directing acquittal of the respondents Nos. (3) to (7). A revision petition under Sec. 439 of the Code of Criminal Procedure accordingly is filed by the State, objecting to the order releasing respondents Nos. (1) and (2) on probation of good conduct under the Probation of Offenders Act, 1958.

(2.) The prosecution case, briefly stated, is that on 14th June, 1967 at about 6.30 a.m. respondents Nos. (1) to (7) stopped the truck carrying 60 gallons of liquor for distribution to various persons. The truck was prevented from proceeding in the direction intended and liquor was removed from the truck and kept in the balcony of the house of a washerman residing nearby. The Police were informed by complainant Atmaram Revodker about this illegal action on the part of these respondents. The Police after necessary investigation challaned them. They were charged by the learned Sessions Judge, Panjim, under Sec. 395 of the Penal Code. (Dacoity).

(3.) I shall first consider the appeal filed by the State against acquittal of respondents Nos. (3) to (7). It is conceded by learned Government Pleader at the Bar that on the evidence led by the prosecution the charge was not established against them either under Sec. 395 or Sec. 392. I have carefully gone through the record and I agree with him that as far as these respondents are concerned the ingredients of the offences under Sections 392 and 395 are not proved. It is extremely doubtful whether they participated in the crime. The learned Sessions Judge carefully considered the prosecution evidence and his conclusion that they are not guilty is supported by evidence. The evidence on identity of these accused is unconvincing, apart from the fact that it is vague. Sec. 390 of the Penal Code states that theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. It was the prosecution case in the Sessions Court that when these respondents prevented the truck carrying liquor from proceeding in the direction in which it wanted to proceed there was wrongful restraint to the complainant and some other occupants who were in the truck at the time of the incident. It is in evidence that the complainant and other occupants were not prevented from contacting the members of the Panchayat or the Police. What is 'wrongful restraint' is defined in Sec. 339 of the Penal Code. Under that section, "whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person". The admitted position is that the complainant and others were not obstructed from proceeding in any direction in which they wanted to proceed and, therefore, there was no wrongful restraint within the meaning of this section, apart from the fact that participation of these respondents as stated already is not proved. The word "person" in this section and also in Sec. 390, where theft is 'robbery', would not seem to include obstruction of a truck when its occupants are not obstructed. This word is to be understood in its ordinary sense. There is a presumption of innocence in favour of these respondents and this presumption is reinforced by an order of acquittal. The appeal fails and is accordingly rejected.