State Of ... vs Sudhakar S/O Narayan Tupkar And 3 ...
2017 Latest Caselaw 1378 Bom

 CRI. APPEAL NO.569.02.odt                    1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.569 OF 2002



 State of Maharashtra, through
 Police Station Officer,
 Ram Nagar, Chandrapur.                            ..               APPELLANT


                               .. VERSUS ..


 1]     Sudharkar s/o Narayan Tupkar,
        Aged about 48 years.

 2]     Sau. Rekha w/o Sudharkar Tupkar,
        Aged about 45 years.

 3]     Ku. Sarika d/o Sudhakar Tupkar,
        Aged about 23 years,

 4]     Ku. Kalpana d/o Sudhakar Tupkar,
        Aged about 21 years.

        All residents of Naginabag Ward,
        Chandrapur.                      ..           RESPONDENTS


                     ..........
 Ms. T.H. Udeshi, Additional Public Prosecutor for Appellant-
 State a/w Shri A. Shelat, Advocate to assist the prosecution.

 Shri T.N. Hulke, Advocate for Respondents.
                     ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 03, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 31.10.2001 passed by the learned Chief

Judicial Magistrate, Chandrapur in Regular Criminal Case

No.38/2000. By the said judgment and order, respondents-

original accused came to be acquitted of the offences

punishable under Sections 147, 148, 149, 448 and 324 of

the Indian Penal Code. Being aggrieved, State has come up

in this appeal.

2] Prosecution case, in brief, is as under :

(a) Complainant Prabhakar Narayan Tupkar is

resident of Naginabagh Ward Chandrapur. He was

working as driver at C.T.P.S. Urjanagar. Accused

no.1 Sudhakar is the real brother of complainant.

He was residing intervening one house from the

house of complainant. There was a dispute

between complainant and accused no.1 over a plot

on which house was situated.

(b) On 30.10.1999 at around 5.30 pm,

quarrel took place between wife of complainant,

accused no.1 and his wife on throwing waste

material in the courtyard. At 5.30 pm, complainant

returned home. His son Vaibhav narrated the

incident of quarrel on throwing waste material in

the courtyard to him. Prabhakar and Vaishali then

proceeded to lodge report. It is alleged that

accused restrained them on the way. Accused no.1

Sudhakar dealt a stick blow on the head of

complainant. The other accused persons assaulted

Rupali, daughter of complainant and Vaishali, his

wife. Accused Kalpana took bite on left hand finger

of Vaishali. Accused No.1 Sudhakar took bite to

Rupali and assaulted on her right shoulder with a

stick. Neighbours intervened and rescued the

complainant, his wife and daughter from the

clutches of the accused. Complainant, his wife

and Rupali were sent to hospital.

(c) It appears that statement of Prabhakar

was recorded in the hospital by police and the

same was treated as FIR. During the course of

investigation, spot panchanama was drawn, blood

stained clothes of complainant were seized,

statements of witnesses were recorded and on

completing investigation, chargesheet was

submitted to the court.

3] Charge of the alleged offence was explained to the

accused. They pleaded not guilty and claimed to be tried.

Their defence was of total denial and false implication as

there was previous enmity over immovable property.

4] According to the accused, complainant caught hold

hairs of wife of accused, dragged her in the courtyard and

when accused no.1 questioned the complainant, he and his

family members assaulted him with kicks, fists and stick.

Accused lodged report of the incident with police. To counter

blast the said report, complainant lodged false report.

5] Prosecution examined in all nine witnesses to

substantiate the guilt of the accused. Accused, in support

of their defence, examined DW-1 Pravin Ghate. His

examination-in-chief was deferred due to recess.

Thereafter, accused submitted a pursis informing that they

do not want to lead further evidence. Considering the

evidence adduced by the parties, submissions made on

behalf of the learned counsel for the defence and the

learned Additional Public Prosecutor, trial court came to the

conclusion that prosecution could not prove the guilt of

accused beyond reasonable doubt and in consequence

thereof, acquitted the accused persons of the charge, as

stated in paragraph one above.

6] Heard Ms. Udeshi, learned Additional Public

Prosecutor for Appellant-State assisted by Shri Shelat,

learned counsel for complainant and Shri Hulke, learned

counsel for respondents.

7] With the assistance of the learned counsel for

parties, this court has gone through the evidence of

prosecution witnesses. PW-1 Prabhakar Tupkar, PW-2

Vaishali, wife of complainant, PW-3 Rupali, his daughter and

PW-7 Rekha Jumde, a neighbour, are the star witnesses for

prosecution. It is stated by Prabhakar that on 31.10.1999 at

about 6.00 pm, he returned home. That time, his son

Vaibhav informed him that his elder brother Sudhakar had a

quarrel with his wife. So, he enquired from his wife and she

narrated the incident to him. This incident was regarding

throwing of waste material in the courtyard.

8] Thereafter, complainant and his wife proceeded to

lodge the report. It is further stated by Prabhakar that on

the way accused restrained and abused them. Accused no.1

Sudhakar caught hold him, pushed on the surface and other

accused assaulted him by fists blows and by means of a

stick. He states that his wife tried to rescue him and that

time she was assaulted by all the accused persons. Then

daughter Rupali also intervened in the quarrel and all the

accused persons assaulted her too. He states that

thereafter neighbours rushed to the spot. They rescued

them and took them to the hospital. His statement was

recorded by police.

9] It is apparent to note that prosecution has not

proved FIR in the present case. Not only this, in its wisdom,

prosecution chose not to examine investigating officer. PW-

1 admitted in unequivocal terms that cause of quarrel

informed to him by his wife does not appear in his statement

recorded by police. The other material omissions elicited in

the cross-examination of Prabhakar are (i) accused

restrained them when he and his wife proceeded to lodge

the report, (ii) accused no.1 caught hold and pushed him.

Complainant admitted in cross-examination that they are

not in good terms with the accused and dispute on the

immovable property (open site) is pending between him and

accused no.1.

10] PW-2 Vaishali stated in her evidence that on the

day of incident at about 5.00 pm, initially quarrel took place

between her and accused no.1 on the point of putting waste

material. She states that her husband returned home and

that time her son narrated the incident of quarrel to him.

Thereafter, she and her husband proceeded to lodge report.

As stated by Vaishali (PW-2) accused restrained them on the

way, accused no.1 assaulted her husband on forehead with

a wooden plank, accused also beat her and her children and

accused no.4 Kalpana took a bite on her left hand finger. In

the cross-examination, this witness admits that they are not

in good terms with the accused, as there was a dispute on

open site of the house. So enmity and dispute over open

site of the house is admitted by the complainant and his

wife.

11] So far as the evidence on occurrence of incident is

concerned, it appears from the fact brought in the cross-

examination of Vaishali that her evidence also suffers from

material omissions and contradictions. Though she stated

that when they proceeded to lodge the report, accused

restrained them and accused no.1 assaulted, this fact does

not find place in her statement recorded by police. She also

did not disclose that accused no.1 assaulted her and held

her hair. Regarding bite by Kalpana to her left hand finger,

statement recorded by police is silent and this is also

material omission in her statement.

12] PW-3 Rupali was a 16 year old daughter of

complainant Prabhakar and PW-2 Vaishali. According to

Rupali, her father and mother proceeded to lodge the report.

Accused restrained them. Accused no.1 dealt blow with

wooden plank on the forehead of her father and other

accused persons beat her and her mother. If evidence of

Prabhakar and Vaishali is considered, then it indicates that

other accused also used the stick for assault. Witness Rupali

does not state in what manner she and her mother were

beaten by other accused. She does not know who took bite

on the left hand of her mother. The fact that her father and

mother proceeded to lodge the report and accused no.1

assaulted her father do not find place in her statement

recorded by police.

13] PW-7 Rekha Jumde is an eyewitness and neighbour

of complainant and accused. According to her, on the date

of incident at 5.00 pm, she had seen Sudhakar beating

Prabhakar. On hearing noise of quarrel, she rushed to the

spot. Accused Sudhakar had a stick in his hand. She states

that Prabhakar sustained head injury. The other members of

family of Sudhakar did not participate in the incident. From

the admission in cross-examination of Rekha, it appears that

she is not in talking terms with the wife of Sudhakar and she

has friendly relations with the wife of complainant. Even

otherwise, she does not corroborate the evidence of

Prabhakar, Vaishali and Rupali on manner of incident.

14] In the light of the above and considering the vital

omissions and contradictions, absence of proof of FIR, non-

examination of investigating officer and absence of CA

report, this court finds that the view taken by Trial court is a

reasonable and possible view. No perversity is noticed in

the reasons recorded by the learned Chief Judicial

Magistrate. Hence, appeal is devoid of substance and

merits.

15] Criminal Appeal NO.569/2002 stands dismissed.

No costs.

(Kum. Indira Jain, J.) Gulande, PA