Vincent John D''Costa vs State and Public Prosecutor, with office at Panaji, Goa

N.A. Britto, J.—The petitioner/accused seeks revision of order dated 4/12/2008 of the learned Additional Sessions Judge, Margao upholding the conviction/sentence imposed by the learned JMFC, Sanguem by order dated 25/09/2008, under Sections 353 and 504 IPC. The petitioner/accused, who is a Councilor, was charged and tried with allegation that on 28/03/2006 at about 14.00 hrs., at Sanguem bus stand, he had abused and assaulted Shri Datta Naik, a senior linesman of Electricity Department, while he was discharging his duties as linesman, as he had refused to release illegal electricity connection for the stage which was set up in connection with Shigmo festival.

Amongst the witnesses examined by the prosecution, there was the said Datta Naik/PW2, Anand Telli/PW3, another senior linesman in the Electricity Department, and Shri Baltilakan/PW1, an Assistant Engineer of that Department.

Learned Senior Counsel on behalf of the petitioner, pointing out to the evidence of the said Anand Telli/PW2 submits that the accused did not give any bad words to him or assault him when he refused to accede to the request of the accused for the said connection and, therefore, it would be unbelievable that the accused would have reacted in the manner as stated by the said Datta Naik/PW2. Learned Senior Counsel submits that the version of Datta Naik/PW2 that he was abused or assaulted is difficult to be believed in the circumstances of the case. Referring to the evidence of Baltilakan/PW1, learned Senior Counsel submits that when the said Datta Naik/PW2 had telephoned him, the said Datta Naik/PW2 had not even mentioned the name of the accused as the person who has abused or assaulted him and, therefore, his evidence could not have been accepted. Learned Senior Counsel further submits that no independent witnesses, who might have been available at the bus stand, have been examined by the prosecution.

On the other hand, Shri Ferreira, the learned Public Prosecutor submits that this is a revision petition and both the Courts below, on appreciation of evidence, have rendered the findings as regards the guilt of the accused and, therefore, it need not be interfered with.

In my opinion, the learned Public Prosecutor is right. Revisional jurisdiction is supervisory in nature and is to be exercised in exceptional cases where there is glaring defect in procedure or manifest error on point of law and consequently there has been flagrant miscarriage of justice. There is none in this case.

The learned trial Court after considering the evidence produced by the prosecution has come to the conclusion that Anand Telli/PW3 has corroborated the version of Datta Naik/PW2 and, in short, the entire testimony of PW1, PW2 & PW3, who are public officers corroborate each others testimony and thus there is strong evidence on record and the said evidence shows that the accused had in fact abused and assaulted Datta Naik/PW2 while he was discharging his official duty and at the time when he refused to release electricity connection without permission from the higher authorities. The learned Additional Sessions Judge has noted that Shigmo festival was a public festival where the members of the public would be interested and, therefore, Datta Naik/PW2 had refused to give the electricity connection for a function in which the public was interested and naturally the members of public would not have supported the case of the prosecution. These conclusions cannot be faulted. Merely because the prosecution did not examine any independent witness, the prosecution version could not be rejected and in that regard the learned Additional Sessions Judge referred to and relied upon the case of the State of U.P. Vs. Anil Singh, wherein the Apex Court held as follows;

In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version.

In my view, both the Courts below have appreciated the evidence of the main witness of the prosecution in their proper perspective and have come to the conclusion that the accused committed the offence alleged against him. It is quite probable that the accused immediately did not react to the first refusal by Anand Telli/PW3 but reacted when for the second Datta Naik/PW2 again refused the connection being given to him, illegally. Only because the accused had not acted violently with the said Anand Telli/PW3 does not mean that he did not act violently with Datta Naik/PW2. Likewise, only because the Assistant Engineer Shri Baltilakan/PW1 did not state that Datta Naik/PW2 had not told him the name of the accused was insufficient to discard his evidence when in other matters he has substantially corroborated the version of the said Datta Naik/PW2. As far as the independent witnesses are concerned, the conviction would not be vitiated for want of their evidence. Both the Courts below on correct appreciation of evidence produced, have convicted and sentenced the accused. I find there is no merit in this revision and, consequently, the same is hereby dismissed. The fine has already been deposited by the petitioner/accused in this Court. The same be remitted to the Court of JMFC, Sanguem to be dealt with in accordance with the judgments.