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Bhaskar Alias Pappu Sudhakar … vs The State Of Maharashtra on 30 July, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 440 OF 2013

BHASKAR ALIAS PAPPU SUDHAKAR DHAIGUDE
age 44 years, Occu. Agriculture,
R/o Behind Datta Mandir, Neknoor,
Tq. District Beed. …..Appellant…..
(Orig accused)
VERSUS

THE STATE OF MAHARASHTRA
through the Police Station Officer,
Police Station Neknoor, Tq. District
Beed. …Respondent…
(orig complainant)

Advocate for Appellant : Mr Hange Rajendra G.
APP for Respondents: Mr S W Munde

WITH
CRIMINAL APEAL NO. 50 OF 2014

THE STATE OF MAHARASHTRA
through the Police Station Officer,
Police Station Neknoor, Tq. District
Beed. …Appellant…
(orig complainant)
VERSUS

BHASKAR ALIAS PAPPU SUDHAKAR DHAIGUDE
age 44 years, Occu. Agriculture,
R/o Behind Datta Mandir, Neknoor,
Tq. District Beed.
Respondent/(Orig accused)

APP for Appellant : Mr S W Mundhe
Advocate for Respondent : Mr R G Hange.

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CORAM : S.S. SHINDE V.K. JADHAV, JJ.

Reserved on : July 17, 2018
Pronounced on : July 30, 2018.

JUDGMENT :- (Per V.K.Jadhav, J.)

1. This is an appeal preferred against the judgment

and order of conviction passed by the Additional

Sessions Judge-2, Beed dated 4.10.2013 in Sessions

Case No.137/2012, thereby convicting the appellant

accused for the offence punishable under section 376 of

Indian Penal Code and sentencing him to suffer rigorous

imprisonment for Ten years and to pay fine of

Rs.5,000/- (Rs. Five Thousand), in default to suffer

further R.I. for six months. Accused is also convicted

for the offence punishable under section 506 of Indian

Penal Code and sentenced to suffer RI for six months

and to pay fine of Rs.1,000/-, in default to suffer further

R.I. for one month and directed that both the

substantive sentences to run concurrently.

2. The State of Maharashtra has also preferred

Criminal Appeal No.50/2014 challenging the same

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judgment and order of Conviction praying therein for

enhancement of the sentence. As both the appeals arise

out of the same judgment and order of conviction, we

have heard both the appeals together and decided by

this common judgment.

3. Brief facts giving rise to the present appeals are as

follows :-

a] PW 8 Gajanan Abhiman Dongre is resident of

Pimpaladevi, Tq. District Beed and PW 5 Gokul

Shripati Dongre is his uncle, who is blind. His uncle

PW 5 Gokul was having one daughter by name Dropadi

aged 12 years (deceased). His uncle Gokul and

deceased Dropadi were begging from village to village

and maintaining them. On 8.6.2012 the informant PW

8 Gajanan Dongre had received a phone call of Ramesh

Gavhane r/o Pimpaladevi, Tq. District Beed from Civil

Hospital Beed informing thereby that deceased Dropadi

Gokul Dongre was admitted in the Civil Hospital at

Beed. Thus, the informant P.W. 8 Gajanan alongwith

his relative Ashok Aware, his father Abhiman went to

the Civil Hospital, Beed. He went in ward No.2.

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Deceased Dropadi had started weeping after seeing

them. PW 5 Gokul (father of deceased Dropadi) was

also with her. The informant Gajanan had inquired with

victim Dropadi. She disclosed that on 6.6.2012 when

they were slept in the Chavadi at Neknoor at about

11.00 p.m. to 12.00 midnight, the appellant/accused

was chitchatting with her father and when her father

slept, the appellant/accused removed the clothes of the

victim and committed forcible sexual intercourse with

her. She had sustained bleeding injury on her private

part. She had attempted to shout, so that her father

awake. However, the appellant/accused pressed her

mouth. After some time, the appellant/accused

threatened to the victim that if she would disclose the

incident to anybody, he would kill her and her father.

Thereafter, the appellant/accused went away. She did

not tell the incident to her father in the night due to

fear. In the morning as she had severe pain, she started

weeping. She was taken to the hospital at Beed. On

8.6.2012 the informant Gajanan Dongre had lodged the

complaint against the accused.

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b] On the basis of the complaint lodged by P.W. 8-

Gajanan Dongre crime No.68/2012 for the offence

punishable under section 376, 506 of Indian Penal Code

was registered. The Investigating Officer investigated

into the crime and submitted the charge sheet before

the Judicial Magistrate First Class, Beed. Judicial

Magistrate First Class, Beed has committed the case to

the Court of sessions as the offence under section 376

of the Indian Penal Code is exclusively triable by the

Court of sessions. The learned Additional Sessions

Judge-2, Beed has framed the charge against the

appellant/accused. The appellant/accused has pleaded

not guilty to the charge and claimed to be tried. The

defence of the accused is of total denial. In order to

substantiate the charges levelled against the

appellant/accused, prosecution has examined in all ten

witnesses. The learned Additional Sessions Judge-2,

Beed by the judgment and order dated 4.10.2013 in

Sessions Case No.137/2012 convicted the

appellant/accused for the offence punishable under

section 376 of Indian Penal Code and sentenced him to

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suffer rigorous imprisonment for Ten years and to pay

fine of Rs.5,000/- (Rs. Five Thousand), in default to

suffer further R.I. for six months. Appellant/accused is

also convicted for the offence punishable under section

506 of Indian Penal Code and sentenced to suffer RI for

six months and to pay fine of Rs.1,000/-, in default to

suffer further R.I. for one month. Hence, this appeal.

3. Learned counsel appearing for the

appellant/accused submits that some days after the

incident, deceased Dropadi died due to some other

ailments and, in consequence thereof prosecution could

not examine Dropadi before the Court nor her statement

was recorded by police during the course of

investigation. Learned counsel submits that evidence

tendered by the prosecution during the trial was

hearsay evidence and the learned Judge of the trial

court has relied upon the legally inadmissible evidence

and recorded the conviction as against the

appellant/accused. As per the story of the prosecution,

deceased Dropadi had disclosed the incident to PW 8

Gajanan and PW 9 Ashok in the hospital and at that

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time police were present in the hospital. However,

deceased Dropadi had not disclosed the incident to the

police. The Investigating Officer PW 10 Bajrang Malwade

had attempted to record the statement of the victim, but

she had not given the statement to him. Learned

counsel submits that in terms of the provisions of

Section 32 of the Law of Evidence, the declaration made

by a person who is dead, is relevant when it relates to

the cause of his death. In view of the above, the

statement if made by the deceased Dropadi before the

prosecution witnesses about commission of rape by the

appellant/accused same is not admissible in terms of

the provisions of Section 32 of the Evidence Act and as

such evidence of the prosecution witnesses on the point

of disclosure statement of deceased Dropadi would be

hear say evidence which is not admissible. Learned

counsel submits that the entire approach of the trial

court to accept such a statement of deceased Dropadi

under section 157 of the Indian Evidence Act is

misconstrued and not in accordance with law. The

provisions of Section 157 operates in different context

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and the same cannot be applied/attracted to the facts

and circumstances of this case in any manner. Though,

the incident had occurred on 6.6.2012 and, till

22.6.2012 victim Dropadi was alive, the Investigating

Officer did not record her statement. Deceased Dropadi

was suffering from Kidney and brain disease and she

died due to said ailment. Further, deceased Dropadi was

mentally retarded patient and in view of the same

deceased Dropadi was not in a position to disclose the

incident to the prosecution witnesses. Though, the

prosecution has examined PW 4 Dr. Deepali Gavhane,

who has issued certificate about the medical

examination of deceased Dropadi into the allegations of

rape, however, Dr. Deepali is not confirm about the

commission of rape with the deceased. In the report of

the C.A., no semen was found on the vaginal swab etc.

4. Learned APP appearing for the State submits that

on 8.6.2012 deceased Dropadi had disclosed the

incident to PW 8 Gajanan and PW 9 Ashok. Deceased

Dropadi had narrated the entire incident to them. She

had disclosed to them that the appellant/accused had

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committed sexual intercourse with her in a Chavadi at

village Neknoor. He had pressed her mouth. He had

threatened her that if she told the incident to anybody,

she would have to face dire consequences. She had

disclosed to them about bleeding in her private part and

pains in her stomach. PW 4 Dr. Deepali, who has

medically examined deceased Dropadi who was 12 years

old at the time of incident, noted hymen ruptured. She

had also given opinion that there was possibility of rape.

PW 5 Gokul Dongre who happened to be the father of

deceased Dropadi has also deposed that the

appellant/accused has committed sexual assault on his

daughter. He has further deposed that the

appellant/accused was inquiring them day to day as to

where they are going to sleep. He was knowing the

appellant/accused from his voice. Learned APP submits

that prosecution has proved the case against the

appellant/accused. The learned Judge of the trial Court

has thus rightly convicted the appellant/accused for the

offence punishable under section 376, 506 of Indian

Penal Code. There is no merit in the appeal and the

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appeal is thus liable to be dismissed.

5. Deceased Dropadi was 12 years of the age at the

time of incident. Her father PW 5 Gokul Dongre is blind

person. Deceased Dropadi alongwith her father PW 5

Gokul was maintaining herself and her father by

begging. On 8.6.2012 the informant PW 8 Gajanan

Dongre had gone to Civil Hospital, Beed alongwith PW 9

Ashok Aware. On seeing them, deceased Dropadi had

started weeping and she had narrated the entire

incident to them. She disclosed to them that the

appellant/accused had committed sexual assault with

her in a Chavadi of village Neknoor. The

appellant/accused had also threatened to her that if she

happened to disclose the incident to her father in the

morning, he would kill her and her father. There was

bleeding from her private part and pains in her

stomach. Though, deceased Dropadi was alive till

22.6.2012, the Investigating Officer has not recorded her

statement. Even, the Superintendent of Police, Beed

has conducted inquiry as to whether the investigation in

the present crime has been properly conducted by the

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Investigating Officer. The report of the Superintendent

of Police, Beed was placed before this Court during the

pendency of the appeal on June, 18, 2014. On perusal

of the same, it appears that, the Superintendent of

Police, Beed has specifically observed that the

Investigating officer has deliberately avoided to record

the statement of deceased Dropadi and recorded

statement of her father PW 5 Gokul, belatedly. Thus,

this Court has directed the Superintendent of Police,

Beed to take appropriate action against the concerned

Investigating Officer, in accordance with law. By an

order dated 25.11.2014 this Court has recorded

satisfaction on the basis of the affidavit filed by the

Superintendent of Police, Beed and also recorded that

action has been taken against the concerned

Investigating Officer.

6. Apart from this, the evidence of PW 8 Gajanan and

PW 9 Ashok cannot be discarded on the ground that

victim Dropadi had not disclosed the incident to her

father PW 5 Gokul and also for the reason that the

Investigating Officer has not recorded her statement,

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when she was alive. Evidence of PW 8 Gajanan and PW

9 Ashok is also corroborated by the evidence of PW 5

Gokul Dongare. He has also deposed that the incident

had taken place in the Chavadi near Bankat Swami

Math, Neknoor in the night. He himself alongwith

deceased Dropadi slept in the Chavadi. There was

sexual assault on his daughter. He came to know about

actual incident from other persons. He has deposed

that the appellant/accused has committed sexual

assault on his daughter. He could identify the accused

from his voice. He has deposed that the

appellant/accused was inquiring them day to day as to

where they are sleeping in the night time. Deceased

Dropadi was 12 years of age at the time of incident. We

can understand that it might not have been possible for

a girl of a tender age to disclose the sexual assault to

her father, however, she had rightly disclosed the

incident to her cousin PW 8 Gajanan on his visit to Civil

Hospital, Beed and inquired with her about the incident.

Even, the Investigating Officer has also deposed that

deceased Dropadi was in frightened state of mind and,

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therefore, it was not possible for him to record her

statement. It is nobody’s case and even the

appellant/accused has also not suggested to any of the

prosecution witnesses that deceased Dropadi was deaf-

and-dumb or that she was not able to express herself as

she was a mentally retarded girl. On the other hand,

PW 8 Gajanan has denied that deceased Dropadi was

unable to talk. PW 8 Gajanan has also denied that

deceased Dropadi was mentally retarded and she was

deaf and dumb. PW 5 Gokul, who happened to be the

father of the deceased Dropadi was blind and deceased

Dropadi alongwith PW 5 Gokul was maintaining herself

and her father by begging. They were visiting the

surrounding villages for begging. It would not have been

possible for a mentally retarded girl to take her blind

father to the various villages for begging purpose and to

maintain herself and her father PW 5 Gokul.

7. PW 4 Dr. Dipali Gavhane has carried out the

medical examination of deceased Dropadi on 8.6.2012.

She has noticed pains over chest and redness around

vulva and vagina. She has also noticed hymen

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ruptured. Since the incident had taken place on

6.6.2012, she has observed tears found old and no

active bleeding or conjection. On the basis of the

aforesaid findings, PW 4 Dr. Deepali has opined that

there was a possibility of rape There is nothing in the

cross examination to disbelieve the expert’s opinion.

8. PW 8 Gajanan and PW 9 Ashok have seen the

actual condition of deceased Dropadi in the Civil

Hospital at Beed. She had disclosed the entire incident

to them. There is nothing in their cross-examination to

disbelieve their version. Further, we find that their

evidence is corroborated by the medical evidence as well

as the evidence of PW 5 Gokul. So far as non-

examination of deceased Dropadi in the Court due to

her untimely death, evidence of PW 8 Gajanan and PW 9

Ashok cannot be discarded for the reason that their

evidence is hear say evidence.

9. In a case State of Maharashtra Vs. Bandu @

Daulat reported in (2018) 11 Supreme Court Cases 163,

the Supreme Court has believed the evidence of the

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victim’s mother. Victim 14 years of age was deaf and

dumb and mentally challenged to some extent. Rape

was confirmed by the medical evidence. Victim had

explained to her mother by gesture as to what

happened. The High Court reversed the conviction on

the ground of non-examination of victim herself,

however, the Supreme Court has restored the conviction

with the observations in paragraph no.3, 7 and 8 of the

judgment, which are as follows :-

“3. The victim is deaf and dumb and mentally challenged to
some extent. Main evidence on record is of PW-1, Asha
Ramratan Bangar @ Asha Panchu Dhurve, the mother of
the victim. She lodged FIR on the next day i.e. 30 th June,
2008 to the effect that the accused was the landlord of the
house in which they were living. The victim was lured away
by the accused by offering some sweet meat and was taken
to the market. She did not return home and it was at 9.30
p.m. in the night that two boys brought her home. The
victim explained to her mother by gesture as to what
happened. On this version, FIR was registered and
investigation was carried out. Medical examination of the
victim confirmed the commission of rape. The age of the
victim at the time of the commission of the offence was
about 14 years.

7. The evidence of the mother of the victim clearly shows that
it was the respondent-accused who took away the victim.
The victim and the accused were seen together by PW-2,
Gajanan Marutrao Sonule on the date of commission of
offence. The victim immediately after the occurrence
narrated the same to her mother as to what happened as
reflected in the FIR and the version of the PW-1. Rape has
been confirmed by medical evidence. Identity of accused is
not in dispute. In these circumstances the trial court having
convicted the respondent, the High Court was not justified
in setting aside the conviction.

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8. Accordingly, we restore conviction of the respondent under
Section 376 IPC and sentence him to undergo rigorous
imprisonment for seven years. He may be taken into
custody to serve out the remaining sentence.

10. In view of the peculiar facts of the case, though we

confirm the order of conviction recorded by the

Additional Sessions Judge-2, Beed in Sessions Case

No.137/2012 against the appellant/accused, we deem it

appropriate to reduce the sentence and confine the

same to the extent of the imprisonment already

undergone by the appellant/accused. The

appellant/accused is in jail since 8.6.2012. In view of

the discussion above, we find no merit in the appeal

preferred by the State of Maharashtra for enhancement

of the sentence. We accordingly dismiss the State

appeal bearing Criminal Appeal No.50/2014 (State of

Maharashtra Vs. Bhaskar @ Pappu Sudhakar Dhaigude)

preferred by the State of Maharashtra. Accordingly, we

proceed to pass the following order.

O R D E R

I. Criminal Appeal No.440/2013 (Bhaskar @
Pappu s/o Sudhakar Dhaigude Vs. State of
Maharashtra) is hereby partly allowed.

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II. The judgment and order of conviction passed

by the Additional Sessions Judge-2, Beed
dated 04.10.2013 in Sessions Case
No.137/2012 is hereby confirmed, however,
we hereby quash and set aside the order of
sentence passed against the
appellant/accused Bhaskar @ Pappu
Sudhakar Dhaigude, instead we sentence the
accused Bhaskar @ Pappu s/o Sudhakar
Dhaigude to suffer Rigorous Imprisonment
already undergone by him for the offence
punishable under section 376 of the Indian
Penal Code and u/s 506 of the Indian Penal
Code.

III. Criminal appeal No.440/2013 is accordingly
disposed of.

VI. In view of the order passed in Criminal
Appeal No.440/2013 (Bhaskar @ Pappu
Sudhakar Dhaigude Vs. State of
Maharashtra), Criminal Appeal no.50/2014
(The State of Maharashtra Vs. Bhaskar @
Pappu Sudhakar Dhaigude) preferred by the
State of Maharashtra stands dismissed.

      ( V.K. JADHAV, J. )                        ( S.S. SHINDE, J. )
....

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