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
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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
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
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
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
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
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
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
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
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
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
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
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
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
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. 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
