The State Of Maharashtra vs Suresh Hundraj Rupija And Ors
2021 Latest Caselaw 17969 Bom

Sherla V.



VISHWANATH                                                                  apeal.318.2003 (J).doc
SATYANARAYANA
SHERLA
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
   Digitally signed by
                                         CRIMINAL APPELLATE SIDE
   VISHWANATH
   SATYANARAYANA
   SHERLA                              CRIMINAL APPEAL NO.318 OF 2003
   Date: 2021.12.23
   15:03:58 +0530
                                                                                ... Appellant
                         State of Maharashtra
                                                                         (org. Complainant)
                                    Vs.
                         1. Suresh Hundraj Rupija
                         30 years, Occu.: Business
                         R/o. 574, Shukrawar Peth, Pune

                         2. Ganesh Shivajirao Misal
                         age 31 years, Occu.: Business                      ... Respondent
                         r/o. 366, Shukrawar Peth, Pune

                         3. Rakesh Suresh Modak
                         age 24 years, Occu.: Driver
                         r/o. 792, Ganj Peth, Pune

                         Mr.S.S. Hulke, APP, for the Appellant - State

                         Mr.Vikas B. Shivarkar for Respondent Nos.1, 2 and 3

                                                 CORAM: S.S. SHINDE &
                                                        SURENDRA P. TAVADE, JJ.

                          JUDGEMENT RESERVED ON: DECEMBER 16, 2021
                          JUDGEMENT DELIVERED ON: DECEMBER 23, 2021


                         JUDGEMENT (PER S.S. SHINDE, J.):

1. This appeal challenges the judgment and order passed by

the learned Adhoc Additional Sessions Judge, Pune dated 20 th

December, 2002, in Sessions Case No.192 of 2001, thereby

acquitting the Respondents - accused for the charges under

apeal.318.2003 (J).doc

sections 307, 34 of the Indian Penal Code and under section

37(1), 135 of the Bombay Police Act.

2. The prosecution case in brief is as under:

The complainant Ramesh Belaram Ahuja was running a

lottery centre at Pune. On 2.2.2001, in the evening at 4.30pm, 10

to 15 persons alongwith accused No.1 Suresh Rupija came to his

shop to collect Gujarat Earthquake Relief Fund. At that time, some

altercation took place between the complainant and accused No.1

Suresh and complainant uttered the words addressing the

accused 'not to bark like a dog'. Therefore, accused Suresh

asked his companions not to take contribution from the

complainant and accordingly, they went away.

Thereafter, on 15.2.2001, at about 9.30pm, the complainant

after closing his shop, was proceeding towards his house on his

motor cycle on Tilak Road when near a furniture shop, a rickshaw

came from behind and someone from that rickshaw, entangled a

stick in the front wheel of his motor cycle and another person gave

him a push due to which the complainant fell down on the road

alongwith the vehicle. Suresh Rupija and his friend Ganesh Misal

apeal.318.2003 (J).doc

came there and started abusing him. Suresh reminded the

complainant of his words to him - 'a dog', and started assaulting

him by giving him blows by knife. Ganesh Misal gave a blow of

chopper on him. Complainant Ramesh started running towards

his shop, however, the accused chased him. When the

complainant started shouting, the accused ran away. Because of

the blows, the complainant sustained bleeding injuries. In the

meantime, one person Nikhil Gathani stopped his car on the road

and admitted the complainant in Harjeevan hospital. Police came

to the hospital and recorded his statement at about 1am on

16.2.2001. On the basis of the said statement, offence was

registered at C.R. No.65 of 2001 with Swargate Police Station

against accused Nos.1 and 2 under sections 307 and 34 of the

Indian Penal Code.

On completion of investigation, chargesheet was submitted

before the learned JMFC, Court No.8, Pune, however, as the case

was triable by Sessions Court, it was committed to the Sessions

Court, Pune.

Charge under section 307 and 34 of Indian Penal Code

under section 37(1), 135 of Bombay Police Act was framed to

apeal.318.2003 (J).doc

which accused pleaded not guilty and claimed to be tried. After

completion of a full fledged trial, the Sessions Court acquitted

accused and hence, this Appeal by the State.

3. Learned APP appearing for the Appellate - State submits

that the evidence of the complainant, who is the injured witness,

inspired full confidence. He has stated in his evidence that there

was motive behind the said incident. It is submitted that during the

course of investigation, incriminating material has been collected.

The evidence of the first informant gets corroboration from the

medical evidence and other evidence on record. Therefore, the

learned APP submitted that the appeal may be allowed.

4. On the other hand, Mr.Shivarkar, learned Counsel appearing

for respondent Nos.1, 2 and 3, invited the attention of this Court to

the findings recorded by the trial Court and submitted that the trial

Court has taken a plausible view. Hence, the appeal may be

dismissed.

5. The prosecution had examined as many as 12 witnesses.

PW1 Ramesh Ahuja is the complainant; one Nikhil Ramesh

Gathani as PW2; Sangita Ramesh Ahuja, wife of the PW1

apeal.318.2003 (J).doc

complainant, as PW3; Dr.Manohar Sheth as PW4; panch

witnesses Mahadeo Kadu as PW5; Kisan Namdeo Samare as

PW6; Sunil Kaluram Pawar as PW7; Ashok Maruti Torambe as

PW8; Balasaheb Nathoba Ghate as PW9 and Sandip Yashwant

Shinde as PW10; PSI Sou. Pratibha Sanjiv Joshi as PW11, who is

the Investigating Officer and PI Baburao Dhondiba Patil as PW12.

6. We have given due consideration to the rival submissions

with the able assistance of the learned APP appearing for the

State and the learned Counsel appearing for the respondents. We

have carefully perused the notes of evidence and also the findings

recorded by the trial Court. As deposed by PW1 Ramesh Ahuja,

on 2.2.2001, one Lalit Jain made a telephone call to him in

between 5.30pm to 6pm that they are coming to collect money for

Gujarat Earthquake Relief Fund. It was informed that Mr.Lalit Jain

and others would come to collect the amount from the informant

from his shop. Accordingly, they visited the shop of the PW1. PW1

deposed that he took the receipt book from Lalit Jain so as to find

out as to how much money has been contributed by other persons.

When he started turning the pages of the receipt book, appellant

No.1 Suresh Rupija who was accompanying Lalit Jain uttered the

apeal.318.2003 (J).doc

words "Swatahapurta Baghayache, Dusryache Baghayche Nahi".

In reply, the complainant PW1 Ramesh said to Suresh 'You and I

are not on talking terms and I am talking to Lalit Jain and because

he is not speaking about the amount, I am seeking the receipt

book, so, don't talk in between us". Then, the complainant also

said to Suresh, 'do not bark like a dog'. Thereafter, Suresh asked

Lalit and other persons not to collect the contribution from the

complainant and then, they left the shop of the complainant.

7. According to PW1, the incident had happened on 15.2.2001.

On that date, he closed his shop and started proceeding towards

his house in between 9.30pm and 9.45pm. He was going to his

house from his shop passing through Tilak road. At that time, one

rickshaw came from his backside and after overtaking him, one of

the persons from the said rickshaw put a stick in the front wheel of

his motor cycle and some other person gave him a push. As a

result, he fell down from the motor cycle. At that time, the said

auto rickshaw and the passengers in it went ahead. While getting

up from the motor cycle, Suresh Rupija and Ganesh Misal came

infront of PW1 and both of them gave blows. While giving the said

blows, Suresh Rupija uttered some abusive words. Suresh Rupija

apeal.318.2003 (J).doc

gave blows by knife and Ganesh Misal by chopper on him. He has

further narrated the incident in detail.

During his cross-examination, he admitted that one criminal

case is pending against him and his son for taking forcible

possession of land from Advocate Raju Shitole. He also admitted

that there is one case pending against his son in law for the

offence under section 376 of the Indian Penal Code in the

Sessions Court. He admitted during his cross-examination that a

criminal case is pending against him in the Court for assault on

accused No.3 Rakesh Modak.

It appears that though the alleged incident had taken place

on 15th February, 2001, the statement of PW1 was recorded by the

police on 16th February, 2001.

8. PW1 is the star witness of the prosecution case. If his

evidence is accepted, then, the only question of corroboration to

his evidence would arise. We have carefully perused the cross-

examination of PW1. It is stated by PW1 that, the vicinity of Tilak

road, where the shop of PW1 is situate, is a crowded area and the

shops are open upto 11pm to 11.30pm in the night. Importantly, he

apeal.318.2003 (J).doc

did not mention in his statement about Mr.Rakesh Modak, who,

according to the prosecution case, was driving rickshaw at the

relevant time. It is an admitted position that one case is pending

between the said Rakesh Modak (accused No.3) and the

complainant (PW1) for assaulting Rakesh Modak. It appears that

the case was filed by the said Rakesh Modak who was driving

rickshaw at the relevant time. The trial Court has drawn the

inference that when such criminal case is pending against Rakesh

Modak in the Court, there was no reason for the complainant not

to name him in his complaint. However, the complainant/informant

has not named Rakesh Modak in his complaint. There is no

material brought on record by the prosecution as to what

happened in between 2nd February, 20021 till 15th February, 2001

pursuant to the altercation between PW1 and Suresh when they

visited the shop of the informant on 2 nd February, 2001.

Therefore, the trial Court had drawn the inference that

considerable time had elapsed between the date on which

altercation took place between PW1 and the said Suresh.

Importantly, when PW1 had the earliest opportunity to disclose the

names to Dr.Manor Shet (PW4), who has first examined PW2,

PW2 did not disclose the names of the accused to PW4 Dr.Shet.

apeal.318.2003 (J).doc

In fact, it has come on record that PW4 Dr.Shet made enquiry

about the incident and the names of the assailants. Therefore,

except the evidence of PW1, which is also vague and doubtful

inasmuch as at the earliest opportunity, he did not disclose the

name of Rakesh Modak, who, according to him, was driving the

rickshaw from which the assailants came and assaulted him.

9. PW4 Dr.Sheth in his deposition had stated that he had

enquired about the incident and the names of the assailants,

however, he stated that nothing was disclosed to him.

10. We have carefully perused the findings recorded by the trial

Court and we are of the view that the view taken by the trial Court

on the basis of the evidence brought on record by the prosecution

is a plausible view. There is no perversity as such. The findings

recorded by the trial Court are in consonance with the evidence on

record. The trial Court has recorded the finding that due to

previous enmity, PW1 and Rakesh Modak and also other accused,

there was every possibility of roping them as accused in the

alleged incident.

apeal.318.2003 (J).doc

11. In our considered view, the view taken by the trial Court is a

plausible view and, therefore, there is no reason to cause

interference with the impugned judgment and order passed by the

trial Court. The appeal filed by the State is devoid of any merit and

as a result, the same stands dismissed.

      (SURENDRA P. TAVADE, J.)                    (S.S. SHINDE, J.)