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IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL REVISION APPLICATION NOS. 35 AND 36 OF 2008

Shri Nooruddin Mohammed,

R/o Betim, Bardez-Goa,

Presently at Sada Jail,

Vasco da Gama, Goa. ... Applicant

versus

State of Goa,

as represented by

Officer-in-Charge,

Porvorim Police Station,

Porvorim, Bardez, Goa. ... Respondent

Mr. S. Saudagar, Advocate for the Applicant.

Ms. Winnie Coutinho, Public Prosecutor for the Respondent.

CORAM : N. A. BRITTO, J.

DATE : 14TH JULY, 2008.

ORAL ORDER

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 under Section 384 r/w 34 I.P.C. by the learned

J.M.F.C., Mapusa vide Judgments dated 10-1-2007.

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2.

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.

3.

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.

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4.

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.

5.

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 thr