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Rajesh Ravindra Dudhagi vs The State Of Maharashtra on 28 August, 2019

234-APPEAL-282-2018-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.282 OF 2018

RAJESH RAVINDRA DUDHAGI )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mrs.Nasreen S.K.Ayubi, Advocate for the Appellant.

Mr.Amit Palkar, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : RESERVED ON 26th AUGUST 2019
PRONOUNCED ON 28th AUGUST 2019

JUDGMENT :

1 By this appeal, the appellant/convicted accused is

challenging the judgment and order dated 25 th April 2014 passed

by the learned Ad-hoc Additional Sessions Judge, Solapur, in

Sessions Case No.138 of 2013 thereby convicting him of offences

punishable under Sections 307, 498A, 377, 355, 509 and 323 of

the Indian Penal Code. For the offence punishable under Section

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307 of the Indian Penal Code, the appellant/convicted accused is

sentenced to suffer rigorous imprisonment for 10 years apart from

direction to pay fine of Rs.3,000 and in default to undergo

rigorous imprisonment for 6 months. For offences punishable

under Sections 498A and 377 of the Indian Penal Code, on each

count, the appellant/convicted accused is sentenced to suffer

rigorous imprisonment for 3 years apart from direction to pay fine

of Rs.1,000 and in default to undergo rigorous imprisonment for 3

months. For the offence punishable under Section 355 of the

Indian Penal Code, the appellant/convicted accused is sentenced

to suffer rigorous imprisonment for 2 years apart from direction to

pay fine of Rs.1,000 and in default to undergo rigorous

imprisonment for 3 months. For offences punishable under

Sections 509 and 323 of the Indian Penal Code, on each count, the

appellant/convicted accused is sentenced to suffer rigorous

imprisonment for 1 year apart from direction to pay fine of

Rs.1,000/- whereas the default sentence is simple imprisonment

for 1 month and rigorous imprisonment for 1 month respectively.

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2 Facts leading to the prosecution and resultant

conviction of the appellant/convicted accused can be summarized

thus :

(a) The First Informant is wife of the appellant/convicted

accused. She is the victim of the crime in question, who

lodged report on 18th January 2013 with Police Station

MIDC, Solapur City, against the appellant/convicted accused

which resulted in registration of Crime No.17 of 2013.

(b) According to the prosecution case, the PW1/First Informant

married the appellant/convicted accused on 28 th November

2001 and out of this wedlock, she gave birth to two sons

namely Shrinivas who is examined as PW4 and Shreyas.

From the year 2002, the appellant/convicted accused started

subjecting his wife i.e. the PW1/First Informant to cruelty by

beating her by means of fist and kick blows as well as by

confining her in the house. He used to suspect character of

the PW1/First Informant and used to abuse her. The

appellant/convicted accused used to drive her out of the

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house at odd night hours and was not providing food to her.

He used to insist her to bring one tola of gold from her

parental relatives. The appellant/convicted accused used to

compel the PW1/First Informant to perform oral sex on him

and he used to urinate on her face and then used to prohibit

her from washing her face. He used to insist the PW1/First

Informant to indulge in prostitution and to supply money to

him. Apart from this, the appellant/convicted accused used

to insist his wife i.e. the PW1/First Informant to make her

sister-in-law ready for having sex with him. Many a times,

the appellant/convicted accused used to throttle the neck of

the PW1/First Informant. Apart from subjecting the

PW1/First Informant to cruelty, the appellant/convicted

accused used to beat and harass his mother Sharda and

sister Geeta. Because of this harassment by the

appellant/convicted accused, Sharda and Geeta left the

house by leaving the PW1/First Informant in the company of

the appellant/convicted accused.

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(c) The incident of attempting to commit murder of the

PW1/First Informant by the appellant/convicted accused

lastly took place on 18th January 2013 at their residential

house. Prior to this incident, mother and sister of the

appellant/convicted accused had already left the house

being fed up with harassment of the appellant/convicted

accused. In the morning hours of 18 th January 2013, the

appellant/convicted accused constricted the neck of the

PW1/First Informant and because of shouts of their son, that

attempted came to be aborted. Thereafter, the appellant/

convicted accused confined the PW1/First Informant in one

room of the house. After sometime, PW6 Saraswati Shete –

a social worker, came to the house of the

appellant/convicted accused accompanied by his mother

Sharda and sister Geeta. The PW1/First Informant came to

be rescued by them and taken to Police Station MIDC,

Solapur City, where she lodged report Exhibit 22 on 18 th

January 2013 itself, resulting in registration of the crime in

question.

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(d) Routine investigation followed. The PW1/First Informant

was sent for medical examination at the Civil hospital,

Solapur, where she was examined by PW5 Dr.Kirti Gaikwad.

On completion of investigation, the appellant/convicted

accused came to be charge-sheeted. The learned trial court

framed and explained the Charge to the appellant/convicted

accused, who abjured his guilt and claimed trial. In order to

bring home the guilt to the appellant/convicted accused, the

prosecution has examined in all seven witnesses. The First

Informant/wife of the appellant/convicted accused is

examined as PW1 and her First Information Report (FIR) is

at Exhibit 22. Neighbour named Sangita Gaikwad is

examined as PW2. Sanjay Bagalkote – brother of the

PW1/First Informant is examined as the PW3. Son of the

couple namely Shrinivas Dudhagi is examined as PW4.

Medical Officer of the Civil Hospital namely Dr.Kirti

Gaikwad is examined as PW5. Social worker Saraswati

Shete is examined as PW6 whereas Investigating Officer

Vishwanath Sid, Police Sub-Inspector, is examined as PW7.

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(e) Defence of the appellant/convicted accused, as seen from

the line of cross-examination of prosecution witnesses, is to

the effect that the appellant/convicted accused is of

unsound mind and as such, incapable of knowing the nature

of act which he was doing. Similarly, according to the

appellant/convicted accused, he is falsely implicated and has

not committed any crime. He, however, did not enter in the

defence.

(f) After hearing the parties, by the impugned judgment and

order, the appellant/convicted accused came to be convicted

and sentenced, as indicated in the opening paragraph of this

judgment.

3 I have heard Mrs.Nasreen Ayubi, the learned advocate

appointed to represent the appellant/convicted accused at the

costs of the State. She, vehemently, argued that except interested

witnesses, no independent witnesses are examined by the

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prosecution. In her submission, evidence of the PW1/First

Informant is not inspiring confidence and that evidence of PW3

Sanjay Bagalkote is hearsay in nature. Mrs.Nasreen Ayubi, the

learned advocate, further argued that evidence of PW4 Shrinivas

Dudhagi is an outcome of tutoring and at the relevant time, he

was a child witness. According to the learned advocate for the

appellant/convicted accused, no case for the offence punishable

under Section 307 of the Indian Penal Code is made out as there is

no supporting medical evidence. With this, the learned advocate

prayed for allowing the appeal.

4 As against this, the learned APP supported the

impugned judgment and order of conviction and the resultant

sentence.

5 I have considered the submissions so advanced and

perused the record and proceedings including the oral as well as

documentary evidence.

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6 Considering the nature of allegations leveled against

the appellant/convicted accused, entire case of the prosecution

hinges on testimony of the victim of the crime in question i.e. the

PW1/First Informant, who happens to be wife of the

appellant/convicted accused, so also on testimony of PW4

Shrinivas Dudhagi, who being son of the couple, is a natural

witness to the incident, which took place inside the house of the

appellant/convicted accused and the PW1/First Informant. Let us,

therefore, examine whether testimony of these witnesses is

inspiring confidence.

7 Evidence of the PW1/First Informant is in tune with

the prosecution case. She has categorically stated that the

appellant/convicted accused used to quarrel with her on flimsy

grounds and used to abuse and assault her by means of fist and

kick blows. In addition to this, the PW1/First Informant has stated

that the appellant/convicted accused used to insist her to remain

nude in the house and to perform oral sex on him. As per version

of the PW1/First Informant, the appellant/convicted accused used

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to insist her to indulge in prostitution for earning money and for

giving that earned money to him. The PW1/First Informant

further testified that the appellant/convicted accused used to

urinate on her face and used to prohibit her from washing the

face. She has spoken about confinement suffered by her because

of the appellant/convicted accused. As stated by the PW1/First

Informant, apart from assaulting her, the appellant/convicted

accused used to assault his mother as well as his sister and was

insisting the PW1/First Informant to make his own sister ready for

having sex with him. The PW1/First Informant has spoken about

two incidents of throttling of her neck by the appellant/convicted

accused, prior to the last such incident. She stated that in the

second incident of throttling, she became unconscious for about

ten minutes and had regained consciousness on sprinkling water

on her face by inmates of her house. As stated by the PW1/First

Informant, prior to the incident in question, because of assault,

her mother-in-law had left the house and had been to Village

Valsang.

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8 So far as the last incident dated 18th January 2013 is

concerned, as stated by the PW1/First Informant, in the morning

hours of that day, at about 5 to 5.30 a.m., the appellant/convicted

accused throttled her neck and consequently, she shouted for

help. Upon that, as stated by the PW1/First Informant, her son

woke up and started crying and requested the appellant/convicted

accused to leave his mother. Then, after sometime, PW6

Saraswati Shete accompanied by her mother-in-law and sister-in-

law came to the house and rescued her from confinement. They,

then, took her to police station, where she lodged report Exhibit

22. There is nothing in cross-examination of the PW1/First

Informant to disbelieve her version regarding the ill-treatment

meted out to her by the appellant/convicted accused. This

witness denied the suggestion that the appellant/convicted

accused was suffering from attacks of insanity. However, there

are no further questions to the PW1/First Informant to the effect

that all such acts, as alleged by the PW1/First Informant, were

taking place when the appellant/convicted accused was under

attack of insanity. Cross-examination of the PW1/First Informant

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further reveals that the appellant/convicted accused used to stand

on the road wearing only underwear and baniyan and when

women from the area used to question such behaviour, he used to

abuse them in filthy language. Thus, cross-examination of the

PW1/First Informant could not create any dent in her testimony

regarding the incidents which were taking place in the

matrimonial life of the PW1/First Informant, at the instance of the

appellant/convicted accused. Evidence on record does not suggest

that the appellant/convicted accused was of unsound mind. Law

presumes that every person of the age of discretion is a sane,

unless contrary is proved.

9 The PW1/First Informant had lodged report about the

incidents in her matrimonial life on 18th January 2013 when lastly

there was an attempt strangulate her manually and her

subsequent confinement by the appellant/convicted accused. The

FIR lodged with promptitude after this incident is fully

corroborating the testimony of the PW1/First Informant.

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10 Evidence of the PW1/First Informant is gaining further

corroboration from the testimony of her son PW4 Shrinivas

Dudhagi, who was sharing the house with her as well as the

appellant/convicted accused. This witness, at the relevant time,

was 12 years old. He was administered oath by the learned trial

court after ascertaining his understanding by questioning him. As

per version of PW4 Shrinivas Dudhagi, the appellant/convicted

accused used to throttle neck of his mother by saying that he

would kill her. He deposed that his father used to assault his

mother, grandmother as well as paternal aunt by means of a bat

after quarreling with them. So far as the incident in question is

concerned, PW4 Shrinivas Dudhagi has stated that he heard

shouts of his mother when he was sleeping in the house and

therefore, he woke up at 5.00 a.m. He, then, saw the

appellant/convicted accused throttling neck of his mother i.e. the

PW1/First Informant by both hands and at that time, he was

uttering that he would kill her. PW4 Shrinivas Dudhagi testified

that he as well as his younger brother then started shouting and

then his father left his mother. Thereafter, as stated by PW4

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Shrinivas Dudhagi, PW6 Saraswati Shete came and took his

mother and others to the police station. In cross-examination,

this witness has candidly stated that nobody had tutored him

about what to depose in the court and he has stated what took

place before him in his chief-examination. PW4 Shrinivas

Dudhagi is son of the appellant/convicted accused and as such, he

has no reason to falsely implicate his own father. I see no reason

to disbelieve version of this child witness as the same is truthful

and trustworthy. Thus, PW4 Shrinivas Dudhagi has fully

corroborated version of the PW1/First Informant.

11 Evidence of the PW1/First Informant is gaining

corroboration from version of PW6 Saraswati Shete, who was

doing social work apart from earning her livelihood by doing tours

and travel business. She has spoken about visit of mother of the

appellant/convicted accused to her for narrating ill-treatment

given by the appellant/convicted accused to them. PW6 Saraswati

Shete stated before the court that in the morning hours of 18 th

January 2013 i.e. at about 6 to 6.30 a.m., accompanied by mother

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and sister of the appellant/convicted accused, she went to the

house of the appellant/convicted accused and insisted him to open

the door of the house. When the appellant/convicted accused was

threatened about police action, he opened the door. As per version

of PW6 Saraswati Shete, upon entering the house, they found the

PW1/First Informant confined in one room of the house. She was

rescued by removing the bolt of the door. That is how, as per

version of PW6 Saraswati Shete, the PW1/First Informant was

taken to the police station for lodging the report. Cross-

examination of PW6 Saraswati Shete reveals that she had given

evidence in many cases of crime against women. This material

brought on record in cross-examination is in no manner helpful to

the defence as in the chief-examination itself, PW6 Saraswati

Shete made it clear that she is a social worker and she visited

house of the appellant/convicted accused when his mother and

sister complained about ill-treatment by the appellant/convicted

accused to them. Evidence of PW6 Saraswati Shete, as such,

makes it clear that when she visited the house of the

appellant/convicted accused, she found the PW1/First Informant

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confined in one room of that house by the appellant/convicted

accused. Thus, version of the PW1/First Informant stands

corroborated by evidence of PW6 Saraswati Shete, to a large

extent.

12 After lodging the report, the PW1/First Informant was

taken to Civil hospital, Solapur, by police and on the very same

day i.e. on 18th January 2013, she came to be examined by PW5

Dr.Kirti Gaikwad. Evidence of this Medical Officer shows that the

PW1/First Informant narrated to her that the appellant/convicted

accused throttled her neck and assaulted her. Upon examination

of the PW1/First Informant, PW5 Dr.Kirti Gaikwad noticed

following injuries :

                        "(i)    Blunt trauma to ear and nose caused by
blunt and hard object, simple in nature
(ii) Blunt trauma to head caused by blunt and
hard object. It was 4 days back and simple
in nature
(iii) Blunt trauma to both upper limbs and
lower limbs, caused by blunt and hard
object, simple in nature.

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Version of PW5 Dr.Kirti Gaikwad is corroborated by

contemporaneous record made by her in the form of Medico Legal

Certificate at Exhibit 29. This Medical Officer further deposed

that the incident of constriction of neck of the PW1/First

Informant took place about 11½ hours prior to her examination

and therefore, marks on the neck of the PW1/First Informant were

not visible. Cross-examination of this witness shows that she has

not specifically mentioned in the case record that the PW1/First

Informant was assaulted by her husband but this aspect is not of

any consequence as the Medical Officer is not supposed to record

history given by the patient in detail. Finding of injuries on person

of the PW1/First Informant by the Medical Officer corroborates

the case of the prosecution that the appellant/convicted accused

had assaulted the PW1/First Informant on 18th January 2013.

13 Now let us examine whether the appellant/convicted

accused, on 18th January 2013, had attempted to commit murder

of the PW1/First Informant. The prosecution by its clear and

cogent evidence has established the fact that the

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appellant/convicted accused had constricted neck of the

PW1/First Informant at about 5 to 5.30 a.m. of 18 th January 2013.

He was uttering that he wanted to kill the PW1/First Informant at

that time. The intention of the appellant/convicted accused in

constricting the neck of the PW1/First Informant by choosing vital

part of the body makes out the case for the offence punishable

under Section 307 of the Indian Penal Code. Apart from that,

causing other injuries to the victim of the crime in question

reflects intention of the appellant/convicted accused in

constricting the neck of the victim.

14 Constant beating, confinement, unnatural sex and

indecent behaviour of the appellant/convicted accused reflected

from evidence of the PW1/First Informant makes it clear that

offence of subjecting a married woman to cruelty is made out.

Similarly, it is also established that by insisting the PW1/First

Informant to perform oral sex on him, the appellant/convicted

accused had committed the offence punishable under Section 377

of the Indian Penal Code. The appellant/convicted accused used

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to assault the PW1/First Informant indiscriminately for

dishonouring her without any slightest provocation. It is also clear

from evidence adduced by the PW1/First Informant that the

appellant/convicted accused had outraged her modesty by

insisting her to indulge in prostitution and for insisting her to

make her sister-in-law ready for having sex with the

appellant/convicted accused.

15 In the result, no case for interference in the finding as

well as the sentence recorded by the trial court is made out. The

appeal is, therefore, devoid of substance and therefore, the order :

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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