1 CRI APPEAL
440.2013+50.2014odt
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.
…
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
2 CRI APPEAL
440.2013+50.2014odt
…
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
3 CRI APPEAL
440.2013+50.2014odt
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.
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
4 CRI APPEAL
440.2013+50.2014odt
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.
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
5 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
6 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
7 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
8 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
9 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
10 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
11 CRI APPEAL
440.2013+50.2014odt
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,
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
12 CRI APPEAL
440.2013+50.2014odt
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,
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
13 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
14 CRI APPEAL
440.2013+50.2014odt
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
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
15 CRI APPEAL
440.2013+50.2014odt
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.
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
16 CRI APPEAL
440.2013+50.2014odt
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.
::: Uploaded on – 30/07/2018 31/07/2018 01:50:16 :::
17 CRI APPEAL
440.2013+50.2014odtII. 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. )
....::: Uploaded on - 30/07/2018 31/07/2018 01:50:16 :::
