TMI Blog2003 (7) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... rise to the filing of the present revision application may briefly be stated hereunder :- P. W. 5, Costao Fernandes, was holding the post of Customs Officer in the Rummaging Section of Mormugao, Vasco, in May, 1991. He had received information that gold was going to be brought at the Fatrade Beach, Varca, by the Churchill Brothers, who are Respondents/Accused in the present revision. P.W. 5, Costao Fernandes, was advised by his superiors to keep a watch and report the development. P.W. 5, Costao Fernandes, therefore, was on the look out at the Fatrade Beach, Varca. One Hotel Varca Holiday Beach Resort alleged to be belonging to Churchill Alemao and his other partners was under construction. At a distance of about 30 metres from the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asing the said car, he had instructed P.W.3, Gurudas Naik, to carry a note addressed to his wife requesting her to inform the Customs and the Police Authorities. In a daring attempt at stopping the Contessa Car, P.W.5, Costao Fernandes, has alleged to park his motor-cycle in front of the Contessa Car. The driver of the Contessa Car having recognised P.W.5, as Customs Officer tried to speed the Car and in that manner, the motor-cycle came beneath the Contessa Car which resulted in reduction of the speed of the Contessa Car thereby allowing P.W.5, Costao Fernandes, to open the left hand side door of the Contessa Car and step inside the car. P.W.5, Costao Fernandes, requested the deceased Alvernaz Alemao, to stop the car and thereafter, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of P.W.4, Vincent Soares, was not corroborated by any other witness. (vi) that no seizure has been effected to prima facie prove that gold was smuggled and the same was found in the possession of the Accused. (vii) there was contradiction in the evidence of P.W.4, Vincent Soares and P.W.5, Costao Fernandes, regarding the number of boxes that were found in the trunk compartment of the Contessa Car. P.W.4, Vincent Soares, had stated that two boxes had been removed whereas according to P.W.5, Costao Fernandes, there were four boxes. 5. The learned Trial Court, therefore, after the Complainant had adduced his evidence discharged the Accused/Respondent for the reasons stated above. 6. Section 245 of the Code of Criminal Procedure contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed'. 8. In the present case, therefore, it has to be seen whether the evidence of P.W.5, Costao Fernandes, establishes a prima facie case. Admittedly, in the present case, the property which is alleged to have been carried in the trunk compartment of the Contessa Car has not been seized. Thus, there is no prima facie evidence that what was carried in the trunk compartment of the Contessa Car was smuggled gold. P.W.5, Costao Fernandes, admits to have opened only one box and showed one biscuit to the people who had gathered at the scene of the offence and informed them that this was smuggled gold. Bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other evidence has been led by the prosecution that the biscuit which was taken out from the box by P.W.5, Costao Fernandes, was made of gold. Obviously, the Complainant had not adduced any evidence because admittedly, according to P.W.5, Costao Fernandes, he had kept the gold back in the box and thereafter, he fled from the scene of the offence as he apprehended danger to his life. According to the prosecution, the boxes were subsequently removed by the Accused as is evident from the perusal of the evidence of P.W.4, Vincent Soares. The fact remains that there is no evidence to establish that the biscuit which P.W.5, Costao Fernandes, had taken out from the box was of gold. The evidence in respect of the other offence namely under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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