Shri Nooruddin Mohammed vs State of Goa

N.A. Britto, J.—These revisions are directed against Judgments dated 12-12-2007 of the learned Sessions Judge, Panaji upholding the conviction and sentence imposed upon the Applicant/Accused u/s 384 r/w 34 I.P.C. by the learned J.M.F.C., Mapusa vide Judgments dated 10-1-2007. The case of the prosecution was that on 9-12-2004 at about 8.30 p.m. the accused (i.e. the Applicant) along with two other accused, namely Ashpak Bengre and Nazir Shaikh and in furtherance of their common intention and after putting Kamlesh Parsekar and Lavu Andrekar in fear of cutting their veins extorted a sum of Rs.5000/-from each of them and fled away in a Maruti van bearing No.GA-02-A-4979. It appears that all the accused in the said two cases were absconding but subsequently the present Applicant came to be arrested, charged and convicted, as aforesaid.

As far as the accused Aspak Bengre and Nazir Shaikh are concerned they have been arrested subsequently, and as stated by Mr. S. Saudagar, learned Counsel on behalf of the Applicant, the trial against them is pending. It appears that the said Kamlesh Parsekar and Lavu Andrekar who were examined as PW1 and PW2 have their kiosks on either side of the road and it appears that all the three accused came together in the said van and under the threat of cutting their veins extorted a sum of Rs.5000/- and went away with the said vehicle. In both the cases, equal number of witnesses were examined by the prosecution and both the Courts below after assessing their evidence have come to the conclusion that the accused were guilty of the said offences. In fact, it appears that the present Petitioner has even undergone the sentence imposed, but, Mr. Saudagar, learned Counsel on behalf of the Applicant submits that the Applicant is interested in exonerating himself from the conviction imposed.

Learned Counsel on behalf of the Applicant submits that Section 34 I.P.C. was not attracted in the facts and circumstances of the case because the threat was given by Ashpak Bengre and so far he has not been convicted. Learned Counsel further submits that the van described by the said witnesses, namely, Kamlesh Parsekar and Lavu Andrekar was not recovered and in fact what was recovered was some other van which was handed over to its owner.

The learned Sessions Judge has referred to the evidence of both the said witnesses, namely, Kamlesh Parsekar/PW1 and Lavu Andrekar/PW2 who were the victims of the offence and eye witnesses for each others case. The learned Sessions Judge has also referred to the evidence of another eye witness Kanoba Naik/PW4 who had substantially corroborated the evidence of said Kamlesh/PW1 and Lavu/PW2. In fact, the said Lavu/PW2 stated that the accused(the Applicant) along with the said accused Ashpak Bengre came to his gadda at about 8.30 p.m. and demanded from him Rs. 5000/-or else he would cut his veins and thereafter he handed over to the Applicant i.e. accused Nooruddin after which all the three went to the kiosk of the said Kamlesh and threatened him to give cash of Rs.5000/-which was also given. Lavu/PW2 has also stated that on the said date and time one Ashpak, Nazir and the accused had come to his kiosk and after threatening and taking away money from Lavu they came to his shop and threatened him and he gave Rs.5000/-which was for his business and thereafter all of them went in the van bearing No.GA-02-97 towards Panaji direction. Both the Courts below have accepted the evidence of the said eye witnesses who were the victims of the offence as well as the evidence of Kanoba/PW4 and has concluded that the present accused was guilty of the offence alleged against him. The very fact that all three of them came together and it is the said Aspak who gave the threat and the money was taken by the present Applicant shows that they were acting in concert and therefore the submission that Section 34 would not be attracted only because the other two have not been convicted, cannot be accepted. The evidence shows that what was attached was a van bearing No. GA-02-4979 which was a stolen vehicle.

In my view, the evidence produced by the prosecution was correctly assessed by both the Courts below and therefore calls for no interference from this Court in revisional jurisdiction. Applications for revision are therefore hereby dismissed.