Bombay High Court
Shri Prakash Kashinath Masurkar And ... vs The State Of Maharashtra Through Pso Ps ... on 20 February, 2025
Author: G. A. Sanap
Bench: G. A. Sanap
2025:BHC-NAG:1983
1 APEAL388.12+1(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 388 OF 2012
with
CRIMINAL APPEAL NO. 395 OF 2012
.........
CRIMINAL APPEAL NO. 388 OF 2012
APPELLANTS : 1] Prakash S/o Kashinath Masurkar,
Aged about 50 years, Occupation : Service,
R/o Plot No. 104, Om Nagar,
Near Hanuman Temple, Nagpur.
2] Rajesh S/o Kashinath Masurkar,
Aged about 43 years, Occupation : Service,
R/o Plot No. 104, Om Nagar,
Near Hanuman Temple, Nagpur.
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Sadar, Nagpur.
with
CRIMINAL APPEAL NO. 395 OF 2012
APPELLANTS : 1] Manoj S/o Manoharrao Bangadkar,
Aged about 38 years, Occupation : Mechanic,
R/o Plot No. 18, Sheshnagar, Near
Papadkar Kirana Stores, Kharbi Road,
Nagpur.
2] Hemant S/o Deorao Ganjare,
Aged about 37 years, Occupation : Mechanic,
R/o 228, Untkhana Medical Road, Nagpur.
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Sadar, Nagpur.
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Mr. R. R. Vyas, Advocate for the appellant in Appeal No. 388/12
Mr. P. K. Mishra, Advocate for the appellant in Appeal No.395/12
Ms. T. H. Udeshi, A.P.P. for the respondent/State.
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CORAM : G. A. SANAP, J.
DATED : FEBRUARY 20, 2025.
ORAL JUDGMENT
1. These two appeals arise out of the judgment and order
dated 29.08.2012 passed by the learned Additional Sessions Judge-4,
Nagpur in Special Criminal Case No. 7/2010. The appellants in
Criminal Appeal Nos. 388/2012 are original accused nos.1 and 2 and
the appellants in Criminal Appeal No. 395/2012 are original accused
nos.3 and 4. In this judgment, they would be referred by their
nomenclature as accused with their number.
2. By the impugned judgment, the learned Judge convicted
and sentenced accused nos.1 to 4 for the offence punishable under
Section 448 read with Section 34 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for one month each and to
pay fine of Rs.500/- each and in default to suffer RI for fifteen days
each. Learned Judge also convicted accused nos.1 and 2 for the offence
punishable under Section 3(1)(x) of the Scheduled Castes and
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Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as "the Atrocities Act" for short) and sentenced to suffer
rigorous imprisonment for six months each and to pay fine of
Rs.1,000/- each, in default to suffer further RI for one month each.
3. BACKGROUND FACTS :
The informant, at the relevant time was working as an
Education Officer at Zilla Parishad, Nagpur. The prosecution case,
which can be unfolded from the report is that on 13.09.2010 at about
3.30 p.m., the informant was busy in his official work. At that time, the
other officials were sitting in his chamber and discussing the official
matter. While this discussion was going on, his peon Sanjay
Chandpurkar came with a chit for appointment sought by accused nos.1
and 2. They wanted to meet the informant. On instructions of the
informant, Peon told them to wait for some time. It is alleged that
accused nos.1 and 2 and other two persons forcibly barged in the cabin
of the informant. They made an inquiry with the informant about the
approval/permission for appointment of the staff in their institution.
The informant told them that as a complaint was pending against the
Secretary before the Charity Commissioner, it would not be possible for
him to give permission for appointment of staff. It is stated that,
therefore, the accused got annoyed and abused him by his caste by
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saying that 'you are 'gond' by caste, you are not capable of handling the
responsibility, you should leave this job." While this incident was going
on, one Babasaheb Deshmukh and Virkhare were present in his cabin.
The informant immediately went to the office of the Chief Education
Officer for a meeting. After attending the meeting, he had to go to
Mumbai for attending some work. On the date of the incident, he left
the office and in the night went to Mumbai. He came back on
15.09.2010 and then reported the matter to the police.
4. On the basis of the report (Exh. 34), a crime bearing No.
27/2010 was registered against the accused persons at Police Station,
Sadar, Nagpur. PW8 ACP Anant Thorat carried out the investigation.
The investigation culminated in filing of the charge-sheet against the
accused.
5. Learned Judge framed the Charge (Exh.24) against the
accused persons. The accused pleaded not guilty. Their defence is of
false implication on account of previous enmity of accused nos.1 and 2
with the informant. The prosecution, in order to bring home the guilt
of the accused, examined nine witnesses. Learned Judge, on
consideration of the evidence held the accused guilty and sentenced
them as above. Being aggrieved by the impugned judgment and order,
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the accused preferred these two separate appeals.
6. I have heard Mr. R.R. Vyas, learned advocate for the
appellants in Criminal Appeal No. 388/2012, Mr. P. K. Mishra, learned
advocate for the appellants in Criminal Appeal No. 395/2012 and Ms.
T. H. Udeshi, learned Additional Public Prosecutor for the State.
Perused the record and proceedings.
7. Learned advocate Mr. Vyas addressed the lead arguments.
Learned advocate Mr. Mishra apart from adopting the arguments of
learned advocate Mr. Vyas, made submissions relevant to accused nos.3
and 4. Learned advocate Mr. Vyas submitted that the allegations of
commission of the offence of abusing the informant on the name of his
caste are omnibus. On the basis of the same evidence, accused nos.3
and 4 have been acquitted of the offence under the Atrocities Act.
Learned advocate submitted that the evidence of the informant (PW1)
and other so called eye-witnesses is sufficient to conclude that the
occurrence of the incident itself is doubtful. Learned advocate took me
through the evidence and pointed out the inconsistencies in their
evidence. Learned advocate further submitted that there was inordinate
delay in lodging the report. The report is an afterthought. The
evidence of PW3 Vijay Burewar, Junior Clerk, contradicts the evidence
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of PW1 on the date of drafting of the report. Learned advocate further
submitted that the evidence of independent witness Babasaheb
Deshmukh (PW6) is not believable. It is submitted that his evidence
would show that he was not present on the spot. It is submitted that the
evidence of Mr. Deshmukh (PW6) is sufficient to conclude that no
incident, as narrated by the informant, occurred at that time. Learned
advocate submitted that on the report of accused no.1, the informant
(PW1) was prosecuted for the offences punishable under Sections 420,
468 read with Section 120-B of the Indian Penal Code. Learned
advocate took me through the evidence and pointed out that the
anticipatory bail application made by the informant in the crime
registered against him on the report of accused no.1, was opposed by
accused no.1. Similarly, the application for anticipatory bail made by
accused nos.1 and 2 in this crime was opposed by the informant. It is
submitted that their relations were not cordial and therefore, the
incident as narrated, becomes doubtful. Learned advocate submitted
that the learned Additional Sessions Judge has failed to consider all
these aspects. It is pointed out that even the accused were not identified
by the informant (PW1) as well as by other witnesses.
8. Learned Additional Public Prosecutor submitted that there
is no reason to discard and disbelieve the evidence of PW1. Learned
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APP pointed out that the evidence of PW1 has been corroborated by
the evidence of PW3 and PW6. Learned APP submitted that it is not
possible for the witnesses to narrate the stereo type account of the
incident. There are bound to be some inconsistencies in the evidence of
the witnesses. As far as delay is concerned, learned APP submitted that
PW1 was required to go to Mumbai on 13.09.2010 and therefore, after
returning from Mumbai, he lodged the report on 15.09.2010. It is
submitted that the report was dictated by him on 13.09.2010 itself, but
due to paucity of time, it could not be lodged with the police. Learned
APP submitted that on the basis of the evidence of PW1, the charge
against accused nos.1 and 2 for the offences under the Atrocities Act has
been proved. The charge for the offence punishable under Section 448
of the IPC has also been proved because they barged in the office of
PW1 when they were instructed to wait for ten minutes. In short,
learned APP supported the impugned judgment and order passed by
the learned Additional Sessions Judge.
9. On going through the evidence, I am satisfied that it is not
sufficient to prove the occurrence of the incident in the manner
narrated by PW1 and other witnesses. The occurrence of the incident
itself is doubtful. There was animosity between accused no.1 and the
informant. On the report of accused no.1, a prosecution was launched
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against the informant (PW1) for the offences punishable under Sections
420, 468 r/w Section 120-B of the IPC. PW1 has admitted this fact in
categorical terms. He admitted that the registration of the crime against
him was given wide publicity in the newspapers. He had applied for
anticipatory bail in the said crime. The said application was opposed by
accused no.1. In my view, this is a very vital circumstance to decide the
main controversy with regard to the occurrence of the alleged incident.
A person having proven animosity with the officer on account of his
report, would not take a risk of entering the office of the said officer and
inviting trouble in this manner. It is evident that the anticipatory bail
application made by accused nos.1 and 2 in the present crime was
opposed by the informant. Accused nos.1 and 2 used to attend the
office of the informant in connection with the work of the school run
by them. The proposal of permission for appointment of teaching staff
in their school was pending before the informant. It is the case of the
informant that in connection with that work, accused nos.1 and 2 had
come to his office and they made an inquiry.
10. The informant (PW1) has stated that he told accused nos.1
and 2 that permission for appointment could not be granted because
the matter was pending before the Charity Commissioner. A complaint
was made against the Secretary of the School. PW1 has stated that after
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this, accused nos.1 and 2 got enraged and they abused him by his caste.
They said that "you being the adivasi and belong to 'gond' community,
do not understand anything". His evidence would show that this
allegation is omnibus. His evidence would show that all the accused at
the same time and in chorus abused him by his caste. In my view, this is
highly unbelievable. It has come on record that accused nos.3 and 4
had no work with the informant. The subject of appointment of the
wives of accused nos.3 and 4 was pending before the informant and for
their appointment, the permission was required. They had no grudge
against the informant. The management of the school was pursuing the
matter with the informant. Learned Judge, on the basis of this
evidence, which is against all the accused, has granted benefit of doubt
to accused nos.3 and 4 viz-a-viz the offence under the Atrocities Act is
concerned. In my view, hear lies the crux of the matter because the
allegations are omnibus. It is highly improbable that all the accused in
chorus would make the castious remark. It is evident that the informant
has taken advantage of his caste and involved four accused in the
serious crime. It is, therefore, evident that PW1 has suppressed the
genesis of the crime. He has further stated that along with the accused,
two ladies were also present. He has stated that thereafter he went to
the office of the Chief Education Officer for a meeting and after
attending the meeting, went to home and then left for Mumbai. In my
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view, this evidence is not sufficient to prove the charge under the
Atrocities Act.
11. In this context, it would be necessary to consider the
evidence of PW6. As per the case of the prosecution PW6 Babasaheb
Deshmukh was already present in the office of PW1 when four accused
entered the office of PW1. PW6 is the Superintendent of Shaleya
Poshak Aahar. He was working in the office of the Education Officer,
Zilla Parishad, Nagpur. He has stated that within two minutes, 7-8
persons entered the cabin of PW1. They pushed the door and entered
the cabin. He has stated that they started discussion about payment in
respect of their school. He has further stated that PW1 told them that
after getting permission from the Charity Commissioner, he could make
the payment. This statement is contradictory to the statement of PW1.
PW1 has not stated that they came there to make inquiry about the
payment in respect of their school. So this is a major contradiction. His
evidence is contrary to the evidence of PW1. It, therefore, creates a
doubt about his presence in the cabin of PW1. He has stated that all the
accused in chorus abused the informant by his caste. In my view, this
statement is not believable. The evidence of PW1 and PW6 is self-
contradictory. If the incident, as stated by them had occurred, then
such a vital contradiction would not have occurred in their evidence.
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12. The next important aspect is with regard to the delay in
lodging the report. PW1 in his evidence has stated that he left for
Mumbai by Vidarbha Express at 5.15 p.m. In his cross-examination, he
has admitted that the statements in his report that he returned back to
his office from the office of the Chief Education Officer at 6.00 p.m., is
wrong. He was specifically questioned about the date of the report. He
has stated that the complaint was typed on 13.09.2010, but it was
lodged on 15.09.2010. It is submitted that this evidence is self-
contradictory. Learned advocate took me through the report (Exh.34).
The report is dated 13.09.2010. The last paragraph of the report is very
relevant. The last sentence of the last para of the report shows that this
report prepared on 15.09.2010. It needs to be stated that if the report
was drafted as stated by the informant and PW3, then there was no
reason to have such a statement in the report. The last para of the
report shows that it was prepared and lodged on 15.09.2010. This is
one important contradiction. In this context, it would be necessary to
see the evidence of PW3. He has stated that the incident occurred at
about 3.30 to 3.45 p.m. He has stated that after the incident, PW1
went to Mumbai to attend urgent meeting on the next day. In his cross-
examination, he has stated that on 13th, he had typed one police report.
He has stated that rough report was given to him for typing by the
informant. He has stated that he gave typed report to PW1 on
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13.09.2010 at about 5.30 to 6.00 p.m. PW1 has stated in his cross-
examination that he left Nagpur for Mumbai by Vidarbha Express at
about 5.15 p.m. This is contradictory to the evidence of PW3. It
creates a doubt about preparation of the report. Similarly, it creates a
doubt about the visit of PW1 to Mumbai on the next day. PW1 has
admitted that he has no documentary evidence to show that after this
incident, he went to Mumbai by Vidarbha express. He has also not
produced on record any documentary evidence to show that in the
morning of 15th, he came back to Nagpur. The evidence of PW1 and
PW3, on appreciation in juxtaposition with other facts, would be
sufficient to create a doubt about the case of the prosecution on this
aspect.
13. There are material discrepancies and inconsistencies in the
evidence of the witnesses. The evidence, in my view, is not sufficient to
prove the charge beyond reasonable doubt. The Learned Judge has
failed to consider all these aspects. The accused, in my view, therefore,
deserve benefit of doubt.
14. Accordingly, both the criminal appeals are allowed.
(i) The judgment and order dated 29.08.2012 passed by
learned Additional Sessions Judge-4, Nagpur in Special Criminal Case
13 APEAL388.12+1(J).odt
No. 7/2010, is quashed and set aside.
(ii) Accused no.1 - Prakash Kashinath Masurkar ; accused no.2
- Rajesh Kashinath Masurkar (in appeal No. 388/2012) ; accused no.3
- Manoj Manoharrao Bangadkar ; and accused no.4 - Hemant Deorao
Ganjare (in appeal No. 395/2012), are acquitted of the offences
punishable under Section 448 read with Section 34 of the Indian Penal
Code and under Section 3(1)(x) of the Atrocities Act.
(iii) The accused are on bail. Their bail bonds stand cancelled.
(iv) The Criminal Appeals are disposed of in the aforesaid
terms.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 27/02/2025 18:23:01
