State v. Vipul Dhruva, Bordem, Bicholim Goa

had   challenged   the   said   order  of   the   Chief   Secretary,  Panaji  and during   the   pendency   of   the   appeal   the   Chief   Secretary   had brought   to   the   notice   of   the   Excise   Inspector,   Bicholim   many irregularities   committed   by   him   during   the   inspection   of   the 5 factory and as such the complainant was angry and that could be the   reason   for   filing   a   false   case   against   him.   The   accused   did not   produce   any   document   to   support   the   said   statement.   The accused   also   did   not   state   whether   the   Chief   Secretary   had stayed the said Order.

5. In   the   trial   which   followed,   the   prosecution  examined 6   witnesses   including   P.S.I.   Shetgaonkar/PW6   who   investigated the case.

6. The   learned   J.M.F.C.   whilst   acquitting   the   accused observed   that   the   witnesses   who   were   the   labourers   were   not knowing   the   accused   prior   to   the   incident   and   therefore   it   was incumbent   upon   the   Investigating   Officer   to   have   conducted   an identification parade  which was  not conducted in this case.   The learned   J.M.F.C.   entirely   lost   sight   of   the   fact   that   the   accused who   had   gone   to   the   market   to   engage   labourers,   particularly Kasim/PW3   and   Bhimrao/PW4   had   engaged   them   and   had negotiated   their   wages   to   be   paid   to   them   at   Rs.1,200/­   and   not only   that   the   said   labourers   had   again   met   the   accused   at   the factory   premises   wherein   they   had   entered   with   a   view   to 6 remove   the   said   tank   and   in   such   a   situation   there   was absolutely   no   necessity   of   a   prior   test   identification   parade having   been   conducted   by   the   Investigating   Officer.   The Investigating   Officer   had   stated   that   no   test   identification parade   was   held   because   the   name   of   the   accused   was specifically   mentioned   in   the   complaint   filed   by   the   Excise Inspector/PW1.   It   is   not   that   in   each   and   every   case   that   an identification   parade   is   required   to   be   held.     What   is   important is   not   the   identification   of   an   accused   at   the   test   identification parade but the identification of the accused before the Court and that   is   what   is   the   substantive   evidence.   In   this   context, reference   to   the   case   of  Malkhansingh   and   others  v.  State   of M.P.  ((2003)   5   SCC   746)   would   not   be   out   of   context   wherein the   Apex   Court   has   stated   that   the   rule   of   having   a   prior   test identification   is   a   rule   of   mere   prudence   and   is   subject   to exceptions   when,   for   example,   the   Court   is   impressed   by   a particular  witness on  whose  testimony  it can  safely rely, without such   or   other   corroboration.   It   is   no   doubt   true   that   much evidentiary   value   cannot   be   attached   to   the   identification   of   the accused   in   Court   where   identifying   witness   is   a   total   stranger who   on   just   a   fleeting   glimpse   of   the   person   identified   or   who 7 had   no   particular   reason   to   remember   the   person   concerned,   if the   identification   is made  for   the  first   time   in  Court.  In  the  case at   hand,   there   was   absolutely   no   necessity   of   having   a   test identification   parade   for   the   prosecution   witnesses   particularly the   Excise   Inspector/PW1   as   well   as   Kasim/PW3   and Bhimrao/PW4   who   had   seen   the   accused   for   sufficiently   long period   of   time.   It   is   not   in   each   and   every   case   that   a   prior   test identification   parade   is   required   to   be   held   when   a   witness comes   across   an   accused   for   the   first   time   and   that   depends   on the   facts   and   circumstances   of   each   case.     The   learned   J.M.F.C. wrongly   observed   that   the   panchanama   as   regards   the   tank   was not   conducted   by   the   Investigating   Officer   when   such   a panchanama   was   not   only   conducted   but   was   produced   and   in support which   prosecution   had   examined   Rama Mandrekar/PW2   and   Krishna   Lad/PW5   and   although   the   latter was   cross­examined   by   the   prosecution,   he   had entirely supported the said panchanama.  If at all the tank was not seized and   brought   before   the   Court   because   it   was   heavy   as   stated   by PSI   Shetgaonkar/PW6   whose   statement   ought   to   have   been accepted.     The     very     fact     that     about   6   to   7   people   were required   to   move   the   same   also   supported   his   statement. 8 A   piece   of   zinc   pipe   and   the   crow   bar(parai)   were   attached through the said panchanama and brought before the Court. If at all   the   said   tank   was   not   brought   before   the   Court   it   was because it was heavy, as stated by PSI Shetgaonkar/PW6.

7. The   Excise   Inspector/Shri   Mahale/PW1   in   his evidence   before   the   Court   had   stated   that   the   entire   factory   was under   the  control  of   the   Excise   Department  and   on  19­7­2002  at about  3.00  p.m.  when   he  had   gone  for  routine   checking and  had reached   near   the   said   factory   he   had   heard   some   sound   coming from   inside   the   factory   and   on   checking   he   found   7   persons talking   in   Kannada,   inside   the   said   factory   and   at   that   time   he was   accompanied   by   Suresh   Sakhalkar.   He   stated   that   he requested the  said Suresh to  come towards the  back side door of the   factory   and   check   the   position   as   the   front   door   of   the factory   was   locked   from   inside   and   then   he   tried   to   contact   the Excise   Station   at   Bicholim   to   depute   extra   guards   and   also contacted   the   Assistant   Commissioner   at   Panaji   for   further advice   and   in   the   meantime   the   accused   came   near   the   factory and   stated   that   he   was   not   involved   in   the   commission   of   the offence   and   that   he   kept   the   said   guard   Suresh   Sakhalkar   near 9 the rear side door and instructed him not to allow any person to come   outside   the   factory   and   in   the   meantime   the   accused disappeared   from   the   spot   when   the   Assistant   Commissioner came   to   the   spot.   He   stated   that   the   said   tank   was   supposed   to be   in   the   bonded   warehouse   but   was   found   outside   the   bonded warehouse and it was removed in order to be taken out from the factory   premises   without   their   consent.   He   stated   that   till   date (i.e.   22­4­2003)   they   were   in   possession   of   the   liquor   and   raw material   existing   in   the   bonded   warehouse   of   the   factory premises.   He   further   stated   that   on   30­6­2001   the   premises   of the   factory   were   sealed   by   the   Superintendent   of   Excise   and there   was   a   lock   put   by   the   Superintendent   of   Excise   and   that the   said   lock   belonged   to   the   Superintendent   of   Excise   and   one key   of   the   said   lock   was   handed   over   to   him   which   he   was   still having.   In   cross­examination   he   stated   that   the   labourers   who were   there   had   informed   him   that   they   were   hired   by   the accused.   He   produced   the   order   of   his   posting   as   Excise Inspector   dated   16­8­2001,  the   order  of   the   Commissioner  dated 11­10­2001,   the   panchanama   dated   30­6­2001   by   which   the factory   was   sealed,   amongst   other   documents.   The   complaint dated 20­7­2002 was also produced. 10

8. Rama/PW2   was   a   panch   witness.   He   stated   that   he saw   a   door   of   the   factory   opened   towards   the   rear   side   of   the factory and further stated that there was a tank, half outside the door   and   half   inside   the   factory,   on   the   rear   side   and   below   the tank one iron pipe and one lever were found which  he identified before   the   Court   as   MO1   and   MO2.   In   cross­examination   he stated that the said MO's were below the tank and they were not seen.   Krishna   Lad/PW5   stated   that   on   20­7­2002   he   acted   as panch  witness  and  he   was  shown  one  tank,  two  pipes  and   liquor bottles.   He   stated   that   the   two   pipes   which   were   below  the   tank were   removed   in   his   presence   and   attached   under   the panchanama.   He   stated   that   the   accused   was   not   present   when the   said   panchanama   was   drawn.   He   stated   that   the   tank   was   4 meters   long   and   2   meters   in   height.   He   stated   that   the complainant had told them that the said tank was supposed to be inside   the   bonded   warehouse.   He   also   admitted   that   the   tank was placed on the way, on the passage outside the original place where   it   was   seen   and   that   the   culprits   were   trying   to   shift   the said     tank     to     commit     the   theft.   He   identified   the   crow bar/MO1  and   the  zinc  pipe/MO2   when  shown  to  him.   In 11 further   cross­examination   he   admitted   that   the   Police   had obtained   3   signatures,   2   on   both   the   MO's   and   1   on   the panchanama.

9. Kasim/PW3   stated   that   he   was   called   by   the   accused along   with   6   more   labourers   whose   names   he   mentioned including that of Bhimrao/PW4. He further stated that they were taken   to   the   factory   and   were   asked   to   remove   a   metallic   tank from   the   said   factory   which   they   removed   with   the   help   of   iron bar  and  pipe. He  further  stated  that  when  they  reached  near the factory there was a lock to the door of the factory and it was the accused   who  took   them   inside  the   factory   and   they   were   told   by the   accused   to   remove   the   metallic   tank   from   the   said   factory. He   further   stated   that   they   were   about   to   remove   the   said   tank outside   the   factory   and   at   that   time   the   Excise   Inspector   from Bicholim   came   to   the   factory   and   by   that   time   the   accused   had already   ran   away.   He   also   stated   that   the   accused   had   informed them  that  he  is  the  owner   of  the   said  factory.  He  stated  that the accused had not paid the money to them which was agreed to be paid   of   Rs.1,200/­   as   wages.   In   cross­examination   he   admitted that  he  was in police  custody for two days, having  been  arrested 12 on   suspicion.   He   also   stated   that   when   they   had   gone   to   the door,  the  said  door  was sealed  and  after  the  accused  opened  the door then only they entered the factory.

10. Bhimrao/PW4 also stated that on 19­7­2002 they were sitting in the market at Bicholim waiting for customers and there were   seven   of   them   whose   names   he   mentioned   and   which includes   Kasim/PW3.   He   stated   that   when   they   were   sitting   and waiting   for   the   customers   the   accused   came   to   them   and   told them  that  one tank  was required  to be  removed from  the  factory and   they   went   on   foot   and   upon   reaching   the   factory,   the accused   opened   the   rear   door   of   the   factory.   He   stated   that   he had   not   seen   how   the   accused   opened   the   latch   of   the   closed door. He stated that in the said factory they saw metallic tank of a   height   of   about   4   meters   and   width   of   2   meters   and   they removed the said tank with the help of crow bar(parai)/MO2 and an  iron  pipe/MO1  and   while   in   the   process  of   removing  the  said tank,   the   Excise   Inspector   reached   the   factory   and   then   they were   stopped   from   removing   the   said   tank   outside   the   factory and   at   that   time   the   accused   was   inside   the   factory   but   in   the meantime   the   accused   escaped   from   the   scene   of   offence   and 13 they were all taken to the Police Station by the Excise Inspector. He   stated   that   he   did   not   know   to   whom   the   said   factory belonged   to.   He   stated   that   they   were   informed   that   the   factory was belonging to the accused who told them that he is the owner of   the   said   factory   and   he   had   disclosed   his   name   as   Vipul.   In cross­examination   he   stated   that   they   had   seen   the   accused   for the   first   time   in  the   market   when   the   accused   came   to   call   them and for the second time before the Court(i.e. on 25­3­2004 when the   deposition   of   the   witness   was   recorded).   He   stated   that   the accused   was   standing   outside   the   factory   when   they   were   in   the process   of   removing   the   said   tank   and   the   Excise   Inspector   had entered   the   factory.   He   further   stated   that   he   came   to   know   the name   of   the   accused   at   the   Police   Station   at   the   time   of recording his statement.

11. Mr.   Bras   De   Sa,   the   learned   Counsel   on   behalf   of   the accused,   submits   that   the   Excise   Inspector/PW1   did   not   produce any   document   in   support   of   his   assertion   that   on   30­6­2001   the premises   of   the   factory   were   sealed   by   the   Superintendent   of Excise. It  is certainly not the  case of  the  accused either  in  cross­ examination   or   in   his   statement   recorded   under   Section   313   of 14 the   Code   that   as   on   19­7­2002   he   as   the   Manager   had   access   to the   said   factory   or   was   in   possession   of   the   same.   I   have absolutely   no   hesitation   to   accept   the   statement   of   the   Excise Inspector/PW1   that   the   premises   of   the   said   factory   were   sealed by the Superintendent of Excise on 30­6­2001 and since then the factory   was   in   possession   of   and   under   the   control   of   the department   of   Excise   of   the   Government   of   Goa.   The panchanama   dated   30­6­2001­Exh.PW1/C   further   supports   the statement   of   the   Excise   Inspector/PW1.   The   said   panchanama shows that the Superintendent of Excise had put their own locks, details of which are  mentioned on the  said panchanama  and  had also sealed the same. This is further corroborated by Kasim/PW3 when   he   stated   that   when   they   went   to   the   door,   the   door   was sealed and it is the accused who opened the said door. Mr. De Sa has   next   submitted   that   there   was   a   delay   in   lodging   the   FIR   by the   Excise   Inspector/PW1.   There   is   no   doubt   that   the   incident took   place   at   about   3.00   p.m.   on   19­7­2002   and   the   FIR­ Exh.PW1/H   came   to   be   filed   on   the   next   day,   and,   as   stated   by Shetgaonkar/PW6   at   about   11.00   a.m.     In   other   words,   it   was filed   within   less   than   24   hours.   There   was   not   a   single   question in cross­examination to the  Excise Inspector/PW1 as regards late 15 lodging   of   the   said   FIR   but   PSI   Shetgaonkar/PW6   when questioned   about   that   aspect,  stated   that   the  delay  in   lodging  of the   complaint/FIR   was   because   the   complainant/PW1   had   to wait for the permission of his superior.  It is to be noted that the FIR   in   this   case   came   from   none   other   than   the   Inspector/PW1 himself.   The   object   of   insisting   upon   prompt   lodging   of   the report   to   the   Police   in   respect   of   the   commission   of   the   offence is   to   obtain   early   information   regarding   the   circumstances   in which the  crime was committed, the names of the  actual culprits and   the   part   played   by   them   as   well   as   the   names   of   eye witnesses   present   at   the   scene   of   occurrence.   Delay   in   lodging the   first   information   report   can   often   result   in   emblishment which   is   an   afterthought   on   account   of   delay.     In   the   case   at hand,   there   is   absolutely   no   reason   to   doubt   that   there   was   any scope   for   fabrication   because   the   FIR   was   filed   by   none   other than   the   Inspector/PW1   himself   and   not   only   that   the   persons who   were   found   at   the   scene   were   taken   in   custody,   on suspicion,   at   the   Police   Station.     The   slight   delay   which   is   there in   this   case   is   certainly   not   sufficient   to   doubt   the   credibility   or the   evidence   given   by     the   Inspector/PW1,   in   support   thereof. Mr.   Bras   De   Sa   has   further   submitted   that   there   is   a 16 contradiction  in  the  evidence  of   Kasim/PW3  when  he   stated   that it   was   the   accused   who   had   hired   them   to   remove   the   metallic tank   from   the   factory.   It   appears   that   the   learned   J.M.F.C.   did not   even   apply   her   mind   to   find   out   whether   he   had   made   such contradictory   statement.   There   is   no   material   difference   in   the evidence   of   Kasim/PW3   as   given   in   Court   in   relation   to   the statement   recorded   by   the   Police   on   23­7­2002   wherein   he   had also stated  that  they were hired  by the  accused  as "hamal"  along with   six   other   labourers,   apart   from   the   fact   that   the   so­called contradiction  was otherwise not  proved,  through  the  evidence of PSI   Shetgaonkar/PW6.     Mr.   Bras   De   Sa   has   next   submitted   that Kasim/PW3   and   Bhimrao/PW4   were   arrested   by   the   Police   and therefore   their   statements   could   not   have   been   recorded   under Section   161   of   the   Code.   In   my   view,   this   submission   is   also devoid   of   any   merit   in   the   light   of   what   has   been   stated   by   PSI Shetgaonkar/PW6. PSI Shetgaonkar/PW6 stated that initially the labourers, including Kasim/PW3 and Bhimrao/PW4 were arrested by   Head   Constable   Buckle   No.1288   on   suspicion   under   Section 41   of   the   Code   and   they   were   subsequently   released   under Section   169   of   the   Code   and   it   is   only   thereafter   that   their statements were recorded on 23­7­2002 or thereabout. 17

12. The   evidence   of the   Excise Inspector/PW1, Kasim/PW3   and   Bhimrao/PW4   is   reliable.   There   is   no   reason why  the  said witnesses  should falsely  implicate  the   accused. The Excise   Inspector/PW1   stated   that   the   accused   came   near   him, near   the   factory   and   said   that   he   was   not   involved   in   the commission   of   the   offence   and   thereafter   disappeared   from   the scene.   This   only   shows   that   the   accused   was   involved   in   the incident   of   the   removal   of   the   tank   from   bonded   warehouse   of the   said   factory.   Kasim/PW3   clearly   stated   that   they   had removed   the   said   metallic   tank   with   the   help   of   iron   bar   and pipe   and   they   were   about   to   remove   the   said   tank   outside   the factory when the  Excise Inspector reached there  and  the  accused ran   away.  Likewise,  Bhimrao/PW4  also  stated   that they  removed the   said   metallic   tank   with   the   help   of   crow   bar/parai   and   the iron   pipe   and   in   the   process   of   removing   the   said   tank,   the Excise  Inspector/PW1 reached  the   factory  and then  they  stopped removing   the   tank   outside   the   factory.   The   evidence   of   the Excise   Inspector/PW1   when   read   along   with   the   evidence   of Kasim/PW3 and  Krishna  Lad/PW5 and  the  panchanama  prepared shows that the said metallic tank was removed   from the  bonded warehouse   inside   the   factory   to   the   passage   close   to   the   door 18 and   as   stated   by   Kasim/PW3   was   about   to   be   removed   outside the   factory.   In   other   words,   the   said   metallic   tank   was   moved from   the   bonded   warehouse   to   the   said   passage   at   the   instance of   the   accused   by   the   labourers   engaged   by   him   including Kasim/PW3   and   Bhimrao/PW4.   The   offence   of   theft   consists   in the   dishonest   taking   of   any   movable   property   out   of   the possession   of   another   without   his   dishonour   when   the   person   so taking   the   property   intends   to   cause   wrongful   gain  to   himself   or wrongful   loss   to   the   other.   This   intention   is   known   as   animus furandi   and   without   it   the   offence   of   theft   is   not   complete.   The evidence of the Excise Inspector/PW1, already referred to clearly shows   that   the   factory   of   which   the   accused   was   a   Manager   at the   time   of   his   taking   over   possession   by   the   department   of Excise   on   30­6­2001   was   in   possession   of   the   department   of Excise.   The   accused   has   not   even   suggested   whether   he   had continued   to   be   the   Manager   of   the   said   factory   on   the   date   of incident.   It   is   also   not   the   case   of   the   accused   that   he     had   any key   to   enter   the   said   factory   and   the   evidence   of   the   Excise Inspector/PW1     clearly   shows   that   the   keys   of   the   factory   were with   their   department   after   the   said   factory   was   sealed   on 30­6­2001.   The   Order   dated   11­10­2001   issued   by   the 19 Commissioner   of   Excise   further   confirms   the   said   position.   It   is stated   on   behalf   of   the   parties   that   the   appeal   filed   against   the said   Order   to   the   Chief   Secretary   is   still   pending.   The   accused had   no   right   to   enter   the   said   factory   nor   the   accused   has claimed   any   such  right.  The   prosecution   evidence   proves  beyond reasonable   doubt   that   the   said   factory   was   in   possession   of   the department of Excise and the accused broke open the lock put by that  department  and  entered  the   said  factory with  labourers  and removed a metallic tank from the bonded warehouse and brought it to the  passage  near the  entrance  with  a   view to take  away the same,   although   initially   the   prosecution   had   suspected   that   the accused   might   have   entered   the   said   factory   over   the   roof.     The evidence   discussed   herein   above   is   cogent   and   reliable.   The learned   J.M.F.C.   acquitted   the   accused   on   flimsy   grounds.   The said   Order   cannot   be   allowed   to   stand.   The   same   is   hereby   set aside. The accused therefore is hereby held guilty under Sections 454, 380  r/w  511 I.P.C. N. A. BRITTO, J. DATE : 22ND SEPTEMBER,2006. 20

13. On   being   heard   on   the   quantum   of   sentence,   the accused   has   stated   that   he   is   presently   45   years   of   age,   has   a wife,   two   children   and   parents   to   look   after   and   in   case   he   is sentenced to   imprisonment,   his   family   will   suffer.   The   accused has  also stated  that at present he is working with Saffron Resort at   Calangute.   The   accused   has   submitted   that   this   is   the   first case   in   which   he   is   involved   and   therefore   he   be   dealt   with leniently.

14. On   behalf   of   the   prosecution,   the   learned   Public Prosecutor   Ms.   W.   Coutinho   has   left   the   matter   as   regards   the sentence to the discretion of the Court. On behalf of the accused, the   learned   Counsel   Mr.   Arun   Bras   De   Sa   has   submitted   that considering   that   the   accused   is   a   first   offender,   the   benefit   of Section 3 of the Probation of Offenders Act, 1958(Act, for short) be   extended   to   the   accused.   Mr.   Bras   De   Sa   has   also   submitted that  the  accused  could  be  imposed  some fine under Section 5 of the  said  Act  which  the  accused  would  be  willing  to  pay. 21 The   submissions   of   the   learned   Counsel   are   unacceptable, considering   the   facts   of   the   case.   Mr.   Bras   De   Sa   has   also submitted   that   the   accused   has   suffered   two   days   of imprisonment,   one   day   when   the   accused   was   initially   arrested and   now  when   the   accused  has   been  arrested  in  connection  with this   appeal.   The   learned   Counsel   Mr.   Bras   De   Sa   has   therefore submitted that the accused may not be sent to prison again.

15. Considering   the   nature   of   offences   and   the circumstances   in   which   they   were   committed,   I   am   inclined   to take   a   lenient   view.   The   accused   is   hereby   sentenced   under Section   454   I.P.C.   to   undergo   two   days   S.I.   and   to   pay   a   fine   of Rs.2000/­ in default to undergo S.I. for two months. The accused is   sentenced   under   Section   380   r/w   311   I.P.C.   to   undergo   two days   S.I.   and   pay   a   fine   of   Rs.3000/­   in   default   to   undergo   S.I. for   three   months.   The   sentence   of   imprisonment   imposed   on   the accused   shall   be   set   off   against   the   period   of   detention   of   two days  undergone by the  accused. In  other  words, the  accused  will not  be  required  to  undergo further imprisonment. The accused 22 shall   pay   the   fine   before   the   trial   Court   within   a   period   of   ten days.  Bail Bonds executed before this Court stand cancelled. N. A. BRITTO, J. RD