Anita W/O Sanjay Bhalkar vs The State Of Maharashtra
2023 Latest Caselaw 11419 Bom

2023:BHC-AUG:24163-DB


                                                                            CriAppln-3336-2023
                                                      -1-

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                  CRIMINAL APPLICATION NO. 3336 OF 2023
                                                   IN
                                     CRIMINAL APPEAL NO. 812 OF 2023

                 Anita w/o Sanjay Bhalkar,
                 Age 43 years, Occ. Agril./Household,
                 R/o. Ohargaon,
                 Taluka and District Aurangabad.                         ... Applicant

                          Versus

                 The State of Maharashtra
                 Through Police Station, Harsul.                         ... Respondent
                                                   .....
                             Mr. Spoan G. Bobde, Advocate for the Applicant.
                             Mrs. V. S. Choudhary, APP for Respondent-State.
                       Mrs. Rashmi S. Kulkarni, Advocate for the original informant.
                                                   .....

                                               CORAM :      SMT. VIBHA KANKANWADI AND
                                                            ABHAY S. WAGHWASE, JJ.

                                               Reserved on      :        03.11.2023
                                               Pronounced on    :        07.11.2023

                 ORDER [ABHAY S. WAGHWASE, J.] :

1. The instant application for suspension of sentence and bail is on

behalf of convict in Sessions Case No. 153 of 2015 decided by learned

Additional Sessions Judge, Aurangabad on 06.07.2023, thereby

holding applicant-appellant guilty for offence punishable under

Section 302 r/w 34 of the Indian Penal Code [IPC].

CriAppln-3336-2023

2. Learned counsel for the applicant would submit that alleged

occurrence is of 14.03.2015. Trial was conducted and concluded on

06.07.2023. Applicant is behind bars for more than eight years. In

support of relief of suspension of sentence and bail, learned counsel,

apart from placing written notes of arguments on record, would

submit that applicant is a lady. There are accusations of assault by

means of bamboo stick only. No specific role is attributed to present

applicant except allegations of issuing threats to kill and directing her

husband to kill deceased Vishwas. It is pointed out that even present

applicant came at a later point of time and therefore learned trial

court ought not to have held her guilty by invoking Section 34 of IPC.

He next submitted that as many as 20 witnesses have been examined

and there is no independent witness, rather all are relatives of

deceased and therefore, are interested witnesses. The judgment has

been questioned by filing appeal, however, as much more time would

be required for decision of the appeal and applicant being a lady and

being behind bars for more than eight years, he prays for grant of

relief of suspension of sentence as well as enlargement on bail.

3. Learned APP for State would oppose by submitting that

independent witness PW1 Mangalchand has marked her presence.

CriAppln-3336-2023

She had participated in the assault. That, deceased suffered as many

as 39 injuries and he succumbed to the same. Therefore, finding

direct eye witness account and death to be homicidal, learned trial

court has rightly convicted applicant along with co-accused, who had

joined in mercilessly beating deceased. Taking into consideration the

nature of offence and the accusations, she prays that relief as prayed

may not be granted.

Learned counsel for the informant, who has also preferred

appeal against acquittal of accused nos. 2 to 4, also joined in resisting

the application and apart from adopting submissions advanced by

learned APP, she would submit that applicant was at the spot initially

directing her husband to kill deceased. That, PW1 Mangalchand, an

independent labour, had attributed assault at her hands also and

therefore, when death is shown to be homicidal and it being serious

offence, no case is made out.

4. We have heard each side and perused the written arguments

placed on record by learned counsel for the applicant. Applicant

seems to be wife of main accused Sanjay. Documents show that

deceased and accused are neighbours as their lands are abutting to

each other. Admittedly there is a civil dispute which is said to be

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pending and deceased seems to be beneficiary of injunction order and

since then, both families are at loggerheads. Alleged occurrence has

taken place on 14.03.2015. Informant seems to be wife of deceased

and her sister PW9 Vidya is also examined along with relatives and

acquaintances of informant and deceased i.e. PW11 Walmik, PW12

Suresh and PW17 Pravin. Rest are police officials, panchas and

medical experts. However, PW1 Mangalchand seems to be an

independent witness as he appears to be a labour who was engaged

by deceased for digging well. Going by his testimony in the witness

box, it is emerging that accused are neighbours of the adjoining land

owned by deceased. According to this witness, four to five days prior

to the incident in question, main accused Sanjay had issued threats to

the labours i.e. this witness and another labour Shivpal, by saying that

they should not come to the other side of wire compound.

5. According to him, on 14.03.2015 around 7.00 a.m, when

deceased Vishwas came to make payments, at that time, this witness

claims that main accused Sanjay was seen initially quarreling with

deceased Vishwas and thereafter there was scuffle. This witness has

stated that main accused Sanjay was armed with something and this

witness saw assault on deceased with bamboo. This witness stated

that even he was hit with stone by main accused Sanjay when he tried

CriAppln-3336-2023

to intervene and separate them. Thereafter he stated that wife of

main accused Sanjay came there and she also assaulted deceased

Vishwas with bamboo and she further uttered that he should be made

to stand and then beaten which would be a fun. Present applicant is

identified by him to be the said lady and according to him, she also

threatened this witness. Later on, a girl aged 16-17 years, a lady and

brothers of main accused also came there and all of them mounted

assault on deceased and went away and deceased thereafter

contacted his relatives and friend, who came and shifted him to the

hospital.

6. Fellowman of PW1 Mangalchand, namely, Shivpal has not been

examined. Therefore, PW1 seems to be the only eye witness. Prima

facie informant wife seems to have come after a short while and she

has, on receiving information and seeing her husband injured, set law

into motion.

7. Having grasped the core of the prosecution case, here, in our

opinion, so far as allegations against present applicant are concerned,

it is regarding use of bamboo. Going by the sequence narrated by

PW1, she seems to have come at a later point of time but has, no

doubt, joined others in assaulting deceased Vishwas. There is recovery

CriAppln-3336-2023

of axe and bamboo sticks but axe is said to be possessed and

recovered from main accused. Applicant is admittedly a lady.

Therefore, taking into consideration the nature of accusations and

allegations as regards the applicant, she seems to have used bamboo

stick. Conviction is recorded by learned trial court on 06.07.2023.

Applicant is in jail from 01.04.2015 i.e. since more than eight years.

Taking the above material into consideration, as appeal would take

much long time to be heard and decided, we are inclined to grant

relief as prayed. Hence, we proceed to pass the following order:

ORDER

I. The application stands allowed.

II. The substantive sentence imposed on the applicant in Sessions

Case No. 153 of 2015 by learned Additional Sessions Judge,

Aurangabad on 06.07.2023 stands suspended till final hearing and

disposal of Criminal Appeal No. 812 of 2023.

III. The applicant Anita w/o Sanjay Bhalkar be released on P.R. of

Rs.30,000/- (Rupees thirty thousand only) with two solvent sureties

of Rs.15,000/- (Rupees fifteen thousand only) each.

CriAppln-3336-2023

IV. The applicant shall not commit any criminal activity.

V. The applicant shall remain present before the learned trial

judge once in six months, till final hearing and disposal of the appeal,

commencing from the date she tenders bail papers and thereafter, the

trial Judge to fix dates for her subsequent appearances.

VI. In case of two consecutive defaults on the part of the applicant

to remain present before the trial court, the trial court to inform this

court about the same and in that eventuality, the prosecution would

be at liberty to file an application for cancellation of the bail granted

to the applicant.

 VII.     Bail before the trial court.



 [ABHAY S. WAGHWASE, J.]                       [SMT. VIBHA KANKANWADI, J.]



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