Bombay High Court
Janabai W/O Nanji Mahakulkar vs State Of Mah. Thru. Pso Pandharkawada on 3 February, 2025
Author: G. A. Sanap
Bench: G. A. Sanap
2025:BHC-NAG:1788
256 cr.a.no.610.08.jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 610 OF 2008
Sou. Janabai w/o Nanaji Mahakulkar
Aged about 50 yrs, Occ: Service
R/o. Dharma, Tahsil-Kelapur,
District-Yavatmal .... APPELLANT
// V E R S U S //
The State of Maharashtra,
Through Police Station Officer,
Police Station, Pandharkawada,
District- Yavatmal .. RESPONDENT
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Mr. R.D.Bhuibhar, Advocate for the appellant
Mrs. H.N. Prabhu, APP for the respondent/State
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CORAM : G. A. SANAP, J.
DATE : 07.01.2025
ORAL JUDGMENT :
1 The appellant, who was an accused No.1 before the learned Special Judge, has challenged the judgment and order dated 03.07.2008 passed by the learned Special Judge, Pandharkawada, whereby the learned Judge convicted the appellant and other two accused for the offence punishable under Section 323 read with Section 34 of the Indian Penal 256 cr.a.no.610.08.jud..odt 2 Code (for short, 'the I.P.C.'). Learned Judge, instead of sentencing them to imprisonment, released them on the bond of good behaviour of Rs.1000/- (Rupees One Thousand Only) each for a period of one year as per the provisions of Section 4 of the Probation of Offenders Act, 1958.
2. The case of the prosecution, which can be gathered from the report lodged by Sunanda Gedam (PW-1) and other materials, is that on 05.10.2002, in the evening, the informant was proceeding towards grocery shop. Nanaji Mahakulkar came from the opposite side and dashed his shoulder against the shoulder of the informant. The informant scolded him. Nanaji Mahakulkar started laughing. The informant returned back to the house and narrated the incident to her mother. However, they did not report the matter to the police. It is stated that on 07.10.2002, at about 2.00 p.m. the informant was proceeding towards the flour mill, the appellant met her on the way. The appellant questioned the informant as to why she abused her 256 cr.a.no.610.08.jud..odt 3 husband, Nanaji Mahakulkar. The appellant abused her by caste name by saying that "Jast Majle Gondale". Baby Satpute and Tanabai Satpute came to the spot to help the appellant. They caught hold the hand of the informant. The appellant beat her by 'Chappal'. Sitabai Todase, Shalu Madavi and Dhropata Gedam rescued her. The informant went to the house and narrated the incident to her mother.
3. It is further the case of the prosecution that on 08.10.2002, at about 8.00 a.m. the informant went to fetch the water from the well. When she was returning with the water pot on her head, the appellant Janabai obstructed her. Janabai again called Baby Satpute and Kamalabai. They again abused her by saying that "Mara Gondadyacha Pottile". The appellant slapped her. Her water pot fell down. Baby Satpute and Kamalabai again caught hold her hair. All three accused beat her. The informant sustained injury to her thumb and other parts of the body. After hearing commotion, the mother of 256 cr.a.no.610.08.jud..odt 4 the informant came to the spot to rescue her. At that time Onkar Mahakulkar, the son of the appellant obstructed her. The informant was taken to the house. They went to the police station and lodged the report against the appellant and other three accused. On the basis of this report, crime bearing No.185/2002 was registered against the appellant and others at Pandharkawada Police Station for the offences punishable under Sections 341 and 323 read with Section 34 of the I.P.C. and under Section 3(i)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ' the Atrocities Act').
4. Sudam Darange (PW-4) carried out the investigation. PW-4 went to the spot and drew the spot panchanama. PW-4 recorded the statements of the witnesses acquainted with the facts. On completion of the investigation, PW-4 filed the charge-sheet in the Court of law. Learned Judge framed the charge against the appellant and others. The 256 cr.a.no.610.08.jud..odt 5 appellant and other accused pleaded not guilty. Their defence is of false implication due to their enmity with the informant, her father and the people of their caste. The prosecution examined five witnesses to bring home the guilt of the appellant and others. Learned Judge on consideration of the evidence held the appellant and remaining two accused guilty of the offences punishable under Sections 323 read with Section 34 of the I.P.C. All the accused were acquitted of the offence punishable under Section 341 of the I.P.C. and the offence under the Atrocities Act.
5. The appellant alone has filed the appeal. The remaining two accused namely Kamalabai Meshram and Baby Aglawe, accused Nos.2 and 3 have not preferred the appeal.
6. I have heard Mr. R.D. Bhuibhar, learned Advocate for the appellant and Ms H.N. Prabhu, learned APP for the State. Perused the record and proceedings.
256 cr.a.no.610.08.jud..odt 6
7. Learned Advocate for the appellant submitted that the case of the prosecution was partly disbelieved as against all the accused. Learned Advocate took me through the evidence of Sunanda (PW-1) and Vacchalabai (PW-2) to buttress his submission that their evidence is not credible and trustworthy. It is pointed out that there was enmity between the family of the accused persons and mother and father of the informant. The appellant, as admitted by PW-2, was working in a movement against illicit country liquor. On the report of the appellant, the prosecution has been lodged against Anil Wadaskar, Kishor Bhoyar and some persons of the community of PW-1 and PW-2. Father of the informant was also prosecuted on the report of the appellant Janabai. It is pointed out that PW-2 has admitted that on account of this trouble created by the appellant they wanted to teach lesson to them. It is admitted that the appellant spearheads the protest against the illicit country liquor business of people the community of 256 cr.a.no.610.08.jud..odt 7 PW-1 and PW-2 and particularly against husband of PW-2. Learned Advocate submitted that the incidents allegedly occurred on 05.10.2002 and 07.10.2002 were equally serious but those incidents were not reported. Learned Advocate took me through the evidence of PW-1 and pointed out that on 08.10.2002 Onkar Mahakulkar son of the appellant, had lodged the report against her father, Sukhdeo Gedam and Manohar Todsam. The crime was registered against her father, uncle and Manohar Todsam. On the basis of the said report, her father was arrested on 08.10.2003. It was suggested to her that the report lodged by her was by way of counter blast to the said report. She has denied the suggestion. Learned Advocate submitted that on account of the protest spearheaded by the appellant and the number of the reports lodged by her against the members of the community of the PW-1 and PW-2, they were falsely implicated in this case. Learned Advocate submitted that evidence, if perused in its entirety would create 256 cr.a.no.610.08.jud..odt 8 doubt about the occurrence of the incident and as such, credibility and trustworthiness of the evidence of the PW-1 and PW-2.
8. Learned APP submitted that PW-1 and PW-2 have not suppressed any fact from the Court. The admissions given by them with regard to their enmity with the accused, in the facts and circumstances of the case, could not be said to be a valid defence, to extend the benefit of doubt to the appellant. Learned APP submitted that evidence of PW-1 and PW-2 was minutely scrutinized and learned Special Judge found the same unblemished. Learned Judge has recorded cogent and concrete reasons in support of his findings.
9. I have minutely perused the evidence. It is true that the learned Judge instead of awarding a sentence let off the appellant on probation by executing a bond in the sum of Rs.1,000/-. In short, the benefit of the Probation of Offenders 256 cr.a.no.610.08.jud..odt 9 Act has been extended to the appellant. It is submitted on behalf of the appellant that the order of conviction would attach a stigma to the appellant. Even though, the appellant has been let off as per the provisions of the Probation of Offenders Act, the appeal needs to be decided on merits.
10. I have minutely perused the evidence of PW-1 and PW-2. It is undisputed that the first incident occurred on 05.10.2002 at 6.00 p.m. The appellant and other accused were not involved in the said incident. The person involved in the said incident was Nanaji Mahakulkar, the husband of the appellant. Second incident occurred on 07.10.2002. Perusal of the evidence of PW-1 would show that by any standard the said incident was of serious nature. It was also not reported to the police. PW-1 in her cross-examination, has admitted that the appellant is a worker of the BJP. The appellant had initiated and spearheaded the movement against the country liquor business in the village. Accused Nos.2 and 3 were working with 256 cr.a.no.610.08.jud..odt 10 the appellant. She had admitted that the appellant had lodged report against her father along with Anil Wadaskar and Kishor Bhoyar. She has also admitted that Onkar had lodged a report against her father on 08.10.2002. Her father was arrested in the said crime on 08.10.2002 by police. The informant lodged the report of the incident that occurred on 08.10.2002 in the morning at about 3.00 p.m. to 3.30 p.m. Her evidence would show that family of the informant and the family of the appellant were at loggerheads. The appellant was instrumental in initiating the movement to ban illicit liquor business in the village. In this backdrop, it would be necessary to consider the evidence of PW-2.
11. Vacchalabai (PW-2) has reiterated the incident narrated by PW-1. She has admitted in her cross-examination that the appellant is working in the movement against the illicit country liquor business. Accused Nos.2 and 3 are her supporters. She has admitted that accused Nos.1, 2 and 3 256 cr.a.no.610.08.jud..odt 11 lodged the several reports against Anil Wadaskar, Kishor Bhoyar and other persons of their community. She has stated that the appellant had lodged two to three reports against her husband in respect of illicit liquor business. She has categorically admitted that there was trouble of Janabai to their community. She has stated that therefore, she had no cordial relations with accused Nos.1, 2 and 3. She has categorically stated in her cross-examination that many people of their village had decided to make some provision against accused Nos.1, 2 and 3. She has admitted that she was also willing to cause the trouble to accused. The defence of enmity has been admitted and proved beyond doubt.
12. PW-1 has stated that she was beaten black and blue by the appellant. She has stated that PW-2 and Kishor (PW-3) caught hold her hands. She has stated that first incident occurred on 07.10.2002, when she was going to flour mill. As far as the first incident dated 05.10.2002 is concerned, the 256 cr.a.no.610.08.jud..odt 12 husband of the appellant was involved in the said incident. It is the case of the informant that the incidents dated 05.10.2002 and 07.10.2002 had been reported to the police. There is nothing on record even to suggest that the incidents dated 05.10.2002 and 07.10.2002 had been reported to the police. The only incident reported to the police is of 08.10.2002. On the same date, Onkar Mahakulkar, son of the appellant, had lodged the report against the father and uncle of the informant. They were arrested in the said case. In my view, therefore, there is a scope to doubt the occurrence of the incident in the manner stated by PW-1 and PW-2. It is to be noted that their evidence with regard to the remarks on their caste has been discarded. Similarly, their evidence with regard to the charge under Section 341 of the I.P.C. has been discarded. Perusal of the judgment and order passed by the learned Judge shows that, part of the evidence has been discarded and part of the evidence has been accepted. It is evident on perusal of the record that in 256 cr.a.no.610.08.jud..odt 13 order to make the appellant and others face the prosecution under the Scheduled Castes and Scheduled Tribes Act, certain allegations were made. Those allegations have been found to be unbelievable by the learned Judge of the trial Court. The appellants and others have been granted benefit in that regard. In my view, therefore, the very genesis of the incident is doubtful. Learned Judge, in my view, has failed to appreciate the proved defence of the appellant and others in proper perspective. The appellant has made the defence of false implication probable. The prosecution has not examined any independent witness. PW-1 and PW-2 are interested witnesses. In view of the proved enmity between the parties, it was expected from the prosecution to examine the independent witness.
13. In the facts and circumstances, I conclude that prosecution in this case has miserably failed to prove the charge against the appellant under Section 323 of the I.P.C. The 256 cr.a.no.610.08.jud..odt 14 accused No.1/appellant is therefore, entitled to get the benefit of doubt.
14. Learned Advocate for the appellant submitted that accused Nos.2 and 3 have not filed appeal against the judgment and order. Learned Advocate submitted that non-appealing co-accused can be extended the benefit of acquittal of one of the accused who has filed the appeal. In order to seek support to his submission, he has relied upon the decision in the case of Mr. Arpan Jaru Bhosle Vs. the State of Maharashtra reported at 2014 All MR (Cri.) 1603, wherein the Division Bench, while deciding the appeal of one accused out of six, acquitted him for the charge under the Maharashtra Control of Organized Crime Act, 1999. The Division Bench has held that when the conviction is set aside against one of the accused, the benefit of the said acquittal has to be extended to the similarly situated non-appealing accused. In my view, the issue involved in this case is squarely covered by this decision. The submissions 256 cr.a.no.610.08.jud..odt 15 advanced by the learned Advocate therefore, deserve acceptance vis-a-vis non-appealing accused Nos.2 and 3. In view of this, I proceed to pass the following order.
15. Accordingly, Criminal Appeal is allowed.
i] The judgment and order dated 03.07.2008 in Special Case No.1/2003 passed by learned Special Judge, Pandharkawada convicting the appellants for the offence punishable under Sections 323 r/w Section 34 of the I.P.C. is set aside.
ii] The appellant/accused No.1- Sou Janabai w/o Nanaji Mahakulkar and accused Nos.2 Sou.
Kamlabai Ramrao Meshram and accused Nos.3 Sau Baby w/o Pramod Agalawe are acquitted of the offence punishable under Section 323 read with Section 34 of the I.P.C.
256 cr.a.no.610.08.jud..odt 16
16. The criminal appeal stands disposed of, accordingly. Pending applications, if any, also stand disposed of.
(G. A. SANAP, J.) manisha Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 24/02/2025 17:21:22