High Court On Its Own Motion vs Madhukar Makaji Mudgul
2022 Latest Caselaw 8045 Bom

                                                               Appeal.218.13 & 309.14.doc

Ajay
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 218 OF 2013

       Madhukar Makaji Mudgul,
       Age : 40 years, resident of Gole,
       Gondegaon, Taluka Niphad,
       District Nashik.
       (Presently lodged at Nashik
       Central Prison, Nashik.                                 .. Appellant.
              Versus
       The State of Maharashtra,
       [Through Lasalgaon Police Station]                      .. Respondent
                                    WITH
                        CRIMINAL APPEAL NO. 309 OF 2014

       The State of Maharashtra                                     Appellant
       (Through Lasalgaon Police Station)                      ..   (Orig. Complainant)

              Versus
       Madhukar Makaji Mudgul,
       Age : 40 years, R/o. Gole, Gondegaon,                        Respondent
       Taluka Niphad, District Nashik.                         ..   (Orig. Accused)

                                   WITH
                       SUO MOTU PETITION NO. 2 OF 2015
       High Court on its own Motion                                 Petitioner
                                                               ..   (Orig. Complainant)
             Versus
       Madhukar Makaji Mudgul,
       Age : 40 years, R/o. Gole, Gondegaon,                        Respondent
       Taluka Niphad, District Nashik.                         ..   (Orig. Accused)

       Mr. Ashish Satpute, Advocate for the Appellant in Appeal No.218 of
       2013 and for Respondent in Appeal No.309 of 2014.
       Mr. H.J. Dedhia, APP for the Respondent - State in Appeal No.218 of
       2013 and for the Appellant - State in Appeal No.309 of 2014.

                                CORAM                : A.S. GADKARI &
                                                       MILIND N. JADHAV, JJ.
                                Reserved on          : 25th July 2022.
                                Pronounced on        : 19th August 2022.

                                                                                      1 of 20
                                                             Appeal.218.13 & 309.14.doc



JUDGMENT (PER : MILIND N. JADHAV, J.)

. Criminal Appeal No.218 of 2013 has been filed by Appellant

(accused) against the judgment and order dated 13.02.2013 passed by

the learned Additional Sessions Judge, Niphad, District Nashik in

Sessions Case No. 32 of 2006 (for short "learned trial court"),

convicting Appellant for offences punishable under Sections 376 and

503 of the Indian Penal Code, 1860 (for short "IPC") and sentencing

him to suffer rigorous imprisonment of five years and to pay fine of

Rs.1,000/-, in default whereof to undergo simple imprisonment for

one year.

2. Criminal Appeal No.309 of 2014 has been filed by the State

of Maharashtra for enhancement of the sentence passed by the learned

trial court convicting the Appellant.

3. Criminal Suo-Motu Petition No.2 of 2015 has been

registered by this court having issued a suo-motu notice for

enhancement of the sentence passed by the learned trial court vide

order dated 26.06.2013 in Criminal Appeal No.218 of 2013, which

reads thus:-

" Heard the learned Counsel for the applicant.

2. The Appeal is admitted.

3. The applicant herein is convicted for the offence punishable under Section 376 of IPC, is sentenced to R.I. for five years and to pay fine of Rs.1,000/- in default S.I. for one month. The minimum sentence for the offence punishable under Section 376 of IPC is seven years. The reasons assigned by the Sessions Court for awarding the sentence less than minimum is not

2 of 20 Appeal.218.13 & 309.14.doc

justified. The reasons assigned by the Sessions Judge is that the applicant-accused is facing trial for 6-7 years and, therefore, a lenient view has been taken. Another ground assigned by the Sessions Court is that the applicant is aged about 60 years. However, the fact remains that he has been convicted for the offence punishable under Section 376 of IPC for committing rape of his sister-in-law, who is physically handicapped i.e. she is deaf and dumb. Hence, there was no reason for the Sessions Court to take a lenient view.

4. Issue notice to enhancement of sentence to the accused- applicant. The notice be served upon the applicant in Nashik Central Prison. Notice returnable on 10th July, 2013.

5. The learned Counsel for the applicant submits that he would file private paper book. Time is prayed for is granted. Paper book to be filed within six weeks from today.

6. In the meanwhile, call for R & P."

4. The facts emerging from the record of the case are as

under:-

4.1. Mother of the victim, Meerabai Jairam Gare, first informant

filed First Information Report (FIR) No.I-98 of 2005 in respect of the

alleged incident of rape on her daughter 'X' with Lasalgaon Police

Station against the Appellant. Victim 'X' is wife of Bhausaheb Mudgul,

younger brother of accused. Victim, her husband Bhausaheb who is

blind and 2 years old son, accused Madhukar, Punjabai, wife of the

accused, father of the accused, Nivrutti, brother of the accused and

two children of accused all stayed together in the matrimonial house.

Victim 'X' is deaf and dumb and as such she communicates with the

help of gestures/sign language. Victim was married to Bhausaheb for

five years before the date of incident and had given birth to one son.

4.2. First informant received information from Sunil (her son)

3 of 20 Appeal.218.13 & 309.14.doc

that victim was unwell, hence on 19.11.2005, her second son Shankar

on making enquiry with victim on telephone came to know that she

was being brought to her paternal house by her father-in-law. After

victim was dropped at her paternal house it was informed by her

father-in-law that she was suffering from fever and cold and had

visited the hospital for treatment.

4.3. First informant inquired with victim about her wellbeing

upon which victim broke down and by gestures informed that accused

had ravished her three days ago and threatened her not to divulge the

incident to anybody. First informant immediately approached

Lasalgaon Police Station and lodged the report. Police Inspector Shri.

Sangle recorded statement of victim with help of first informant and

referred her for medical examination. He recorded statements of

witnesses and conducted spot panchanama. Appellant was arrested

and referred for medical examination. After completion of

investigation, chargesheet was filed. Contents of charge that accused

on 16.11.2005 at about 21.00 to 22.00 hours in the residential house

of the victim committed rape without her consent and threatened her

with injury to her husband and reputation if she disclosed the offence

to anybody, were explained to accused in vernacular, however,

Appellant pleaded not guilty to the charge and claimed to be tried.

5. Prosecution examined 6 witnesses to bring home the guilt of

the accused. PW-1 - Vrushali Shrikant Gharpure, special teacher and

4 of 20 Appeal.218.13 & 309.14.doc

translator of language of deaf and dumb persons was examined vide

Exhibit-23; PW-2 victim herself, was examined through PW-1 vide

Exhibit-25; PW-3 - Dr. Vijaysingh Dnyanoba Mundhe, Doctor who

examined the accused on 19.11.2005 was examined vide Exhibit-26;

PW-4 - Meerabai Jayram Gare, mother of victim was examined vide

Exhibit-31; PW-5 - Prabhakar Bhaguji Gade is the spot panchanama

witness; PW-6 - Dr. Sandhya Vilas Patil, Doctor who examined the

victim on 20.11.2005 was examined vide Exhibit-37. In addition

prosecution relied upon Chemical Analyser's (CA) report in respect of

blood sample, pubic hair sample, nail clippings of accused; CA report

of blood sample, pubic hair sample, vaginal swab and vaginal smear

sample of victim vide Exhibit-46.

6. Mr. Satpute, has argued that prosecutrix - victim has filed a

false complaint to implicate Appellant at the behest of PW-4 i.e.

mother of victim to pressurise and effect partition of the family field/

property; that on 16.11.2022, Appellant was not present in the home

and had gone alongwith other family members to attend ' kirtan'

program and returned alongwith the family members late in the night;

that the Investigating Officer (I.O.) was not examined by prosecution

to unearth the real facts; that there is substantial delay of 3 days in

filing the report after the alleged incident and it is fatal to the veracity

of the complaint; that no injuries were found on private parts of the

victim; that victim did not reveal about any such incident to the doctor

5 of 20 Appeal.218.13 & 309.14.doc

who attended to her in the hospital where she was taken by her father-

in-law and lastly recording of the statement of the victim by the police

was highly suspicious as it remains unexplained. Hence, he prays for

setting aside the impugned judgment and in the alternative submits

that since appellant has already undergone the sentence of 5 years

awarded by the impugned judgment, Criminal Appeal No.309 of 2014

filed by the State and Suo-Motu Petition No.2 of 2015, both be

dismissed.

7. PER-CONTRA, Mr. Dedhia, learned APP, on behalf of the

State submitted that accused is brother-in-law of victim and on date of

incident i.e. 16.11.2005, all family members except accused, victim

and her blind husband, had gone to attend ' kirtan' program in the

village temple; that at about 10:00 p.m. at night when the victim was

alone inside the house, accused entered inside, forced himself on her

and ravished her. He submitted that circumstantial evidence in the

present case clearly established commission of the overt act by

Appellant and it stands corroborated by medical evidence of the

doctor. He has therefore prayed and urged for enhancement of the

sentence of 5 years awarded to Appellant under the unamended

provisions of Section 376 IPC prior to 2018, once the conviction is

rendered by the trial court.

8. We have perused evidence of the prosecution witnesses

carefully. Evidence of PW-1, PW-2 and PW-4 reveal that incident took

6 of 20 Appeal.218.13 & 309.14.doc

place on 16.11.2005 whereas FIR was lodged on 19.11.2005. It has

also come in evidence that immediately after the incident, victim

through gestures narrated and informed her father-in-law i.e. father of

the accused about the incident but no steps were taken. It is only on

19.11.2005, when victim was dropped at her paternal house, PW-4

lodged the report on learning about the incident on the same day

itself. Hence the delay, if any, in lodging the report as seen in the

present case is legitimate and is properly explained.

9. Considering the fact that the incident had occurred inside

the house, however evidence given by victim through PW-1 read with

the evidence given by PW-4, mother of the victim clearly indicates and

proves the incident that took place. Witnesses have stated that victim

has narrated the incident to each of them by gestures. PW-4 being

mother of the victim, can be said to have been certainly acquainted

with the communication ability of victim. So also, PW-1 Vrushali

Gharpure, expert witness has also given evidence before the court.

10. Prosecution has examined PW-1 and her evidence clearly

indicates that victim informed her in the presence of the court as to

how she was dealt with by the accused. Both, expert witness as well

as victim have deposed before court; questions asked to victim through

PW-1 and answers received by court through PW-1 having been

recorded by the court show the skill set of PW-1 to have entered into a

7 of 20 Appeal.218.13 & 309.14.doc

dialogue and communication with the victim in the presence of the

learned trial court Judge. In our view learned trial court has adopted a

proper procedure for recording of evidence of victim i.e. PW-2 who

was deaf and dumb. Having perused the evidence of PW-1 read with

the evidence of PW-2 and PW-4, mother, we are convinced that the

entire evidence supports the case of the prosecution. It is pertinent to

note that in the present case, testimony of PW-1, expert witness, is not

challenged before the trial court nor any suggestions are made

challenging her confidence/skill set in this regard. PW-1 admittedly

being the translator/interpreter had no interest in the trial.

Statements/gestures/sign language of the victim i.e. PW-2 as

interpreted by the interpreter i.e. PW-1 stand corroborated by the

evidence given by PW-4 i.e. the first informant, mother of the victim.

Evidence of these three witnesses is not shattered in any manner

whatsoever in cross-examination. Facts in the present case clearly

show that the interpreter had no interest in the prosecution's case and

she had acted merely on the direction of the Investigating Officer

and/or of the learned trial court on the strength of her expertise of

being a special teacher in the school where hearing and speech

impaired children take education. Hence, the evidence of PW-1, PW-2

and PW-4 deserves to be accepted.

11. In the present case, it seen that the incident had occurred on

8 of 20 Appeal.218.13 & 309.14.doc

16.11.2005 whereas the Partition Suit R.C.S. No.8 of 2006 was filed

by Bhausaheb Makaji Mudgul in 2006. If the defence relies upon the

partition dispute, then the said dispute ought to have been prevailing

on the date of the incident. However, that is not the case, considering

that the unfortunate incident had occurred well before the suit was

filed and hence defence of the pending partition suit cannot be

available to the accused. It is completely misplaced.

12. It is pertinent to note that since the victim is deaf and dumb,

her evidence was recorded through the expert witness PW-1 i.e. the

special teacher for deaf and dumb vide Exhibit-23 under the provisions

of Section 119 of the Act. It is seen that PW-1 is an experienced

teacher working since 1987 with Smt. Mai Lele Shrawan Vikas

Vidyalaya, Nashik as a Special Teacher and was specially deputed to

give evidence after communicating with the victim by the Head-

Mistress of the institution. PW-1 is qualified and holds the degree of

Bachelor of Arts and Bachelor of Education (Deaf). PW-1 is thus an

expert witness and her testimony is therefore crucial. PW-2 - victim

through PW-1 has testified that on the date of the incident her

husband was sleeping outside the house and other family members

had gone out to the temple and she was sleeping inside the house

along with her son. According to victim at about 10:00 p.m., accused

entered into the house and closed the door of the room; thereafter

9 of 20 Appeal.218.13 & 309.14.doc

accused shut her mouth and ravished her; however before leaving,

accused told her not to disclose the incident to anybody and promised

to pay her a handsome amount. She has further testified that after her

family members returned home she informed her father-in-law about

the incident, however, the father-in-law thereafter decided to drop the

victim at her paternal house after 2 days. According to the victim, she

was operated upon for a surgery on her uterus and therefore her

husband was sleeping outside the room; that the uterus of the victim

was removed due to surgery; that after the surgery for 6 months

victim stayed at her parental house and had returned to the

matrimonial house 15 days before the incident and as per advice given

by the doctor was required to abstain from having sexual relation with

her husband for some time.

13. It will be useful to refer to the Section 119 of the Indian

Evidence Act, 1872 which relates to dumb witnesses. Section 119

defines dumb witness as one who is unable to speak but may give his

evidence in any other manner in which he can make it intelligible,

either by writing, by signs and that such writing must be written and

the signs made in open court. If the above requirement is met then

evidence so given shall be deemed to be oral evidence. In the present

case, it is seen that provisions of Section 119 have been fully complied

with by the prosecution in proving its case. Victim i.e. PW-2 has

examined herself through the expert witness i.e. PW-1, who has

10 of 20 Appeal.218.13 & 309.14.doc

interpreted by sign language and gestures of the victim in the court, as

such the evidence so recorded is oral evidence. This testimony of the

victim herself through PW-1 as the interpreter has not been shaken at

all in cross-examination. It is seen that deposition of the victim i.e.

PW-2 has been done through PW-1 together and both of them have

been administered oath. Though elaborate cross-examination has been

done by the Advocate for the accused, the same is insufficient in so far

as disproving the incident is concerned. Questions have been asked to

the victim pertaining to the alleged partition suit wherein the victim

has given the following answer:-

" ............

I am not aware as to whether my husband has filed the case against other members of the family for getting the field. My brother and husband used to attend the court when required. The dispute prevailing between me and the accused on account of agricultural field. If accused delivered the field then the dispute come to an end............"

14. Defence case solely relies upon one and only one fact i.e. the

dispute of partition of family property initiated by filing of the suit by

husband of the victim against the accused and the father of the

accused.

15. It is to be understood that no woman would even otherwise

level and take the risk of levelling such a wild charge of ravishing her

11 of 20 Appeal.218.13 & 309.14.doc

only on the pretext of partition of the property. Victim is deaf and

dumb, whereas her husband is blind. For more than 5 years victim

and her husband have been part of the joint family with the parent in-

laws and the family of her brother-in-law. Unless and until such an

incident had happened or occurred there was no reason for the victim

to make such an allegation. It is further seen that since the victim was

deaf and dumb every aspect of the incident has been interpreted by

the PW-1 in evidence before the learned trial judge. It is pertinent to

note that partition suit being RCS No.8 of 2006 was filed in February

2006 whereas the incident has occurred on 16.11.2005. The evidence

given by PW-1 in interpreting the unfortunate incident as told by the

victim is believable. Evidence given by the victim herself (PW-2)

assumes importance in such a case.

16. Cross-examination of the victim shows that she is confronted

with several questions, inter alia, pertaining to the partition dispute

and the partition suit between her husband on the one hand and the

father-in-law and accused on the other hand. In her cross-

examination, victim has stated that the lis in the partition suit can

come to an end, if the portion of the field claimed by her husband is

delivered to him by accused and the father-in-law. This statement is

unfortunately viewed by the defence to mean that victim has filed a

false complaint. The answer given by the victim with respect to the

12 of 20 Appeal.218.13 & 309.14.doc

issue of partition would have no nexus whatsoever with the heinous

act of the accused. Evidence given by victim cannot be discarded on

the basis of the above statement. Such answer given by victim can

never be the basis for filing the complaint.

17. That apart, evidence given by PW-4 mother of the victim in

understanding and narrating the incident as told to her by the victim

also deserves to believed as the same corroborates the evidence given

by PW-1 and PW-2. In this backdrop, medical evidence, therefore

assumes significance. PW-3 - Dr. Vijaysingh Mundhe is the doctor who

has examined the victim whereas PW-6 - Dr. Sandhya Patil has

examined the accused. Certificate issued by PW-6 speaks for itself and

cannot be disbelieved though she has examined the victim three days

after the incident. This delay cannot be fatal for accepting the

certificate. PW-3 - Dr. Vijaysingh Mundhe has examined the accused

on 19.11.2005 i.e. within 24 hours after the incident and he has

collected samples of his pubic hair, blood sample, nail clippings and

sent them for chemical analysis. C.A. Report (Exhibit-45) clearly states

that 'human semen is detected on pubic hair of accused'. Though the

victim is deaf and dumb, she gathered courage and informed her

father-in-law first and thereafter her mother and without wasting time

report was lodged. No married women would put at stake her life by

making such a serious allegation against her family member unless

13 of 20 Appeal.218.13 & 309.14.doc

and until such a heinous act has taken place.

18. The Apex Court in the case of Bharwada Bhoginbhai

Hirjibhai Vs. State of Gujarat1, in paragraph No.9 has held as under:-

"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon............."

19. The Apex Court in the above judgment has further held that

a girl or woman in the tradition bound non-permissive society of India

would be extremely reluctant even to admit that any incident which is

likely to reflect on her chastity had ever occurred. She would be

conscious of the danger of being ostracized by the society or being

looked down by the society including by her own family members,

relatives, friends, and neighbors, she would face the risk of losing the

love and respect of her own husband and near relatives, and of her

matrimonial house and happiness being shattered.

20. The Apex Court in the case of Sheikh Zakir Vs. State of

Bihar2, has held that a reading of the deposition of the complainant

1 AIR 1983 Supreme Court 753 2 AIR 1983 Supreme Court 911

14 of 20 Appeal.218.13 & 309.14.doc

shows that it has a ring of truth around. The absence of any injury on

the person of the complainant may not itself discredit the statement of

the complainant. Merely because the complainant was a helpless

victim who was by force prevented from offering serious physical

resistance, she cannot be disbelieved. The Apex Court has further held

that if a conviction is based on the evidence of a prosecutrix without

any corroboration it will not be illegal on that sole ground.

21. In the present case, testimony of PW-1, PW-2 and PW-4 if

read together clearly prove the chain of circumstances and act of the

accused. The defence has failed to place any cogent material on

record. Therefore, taking into consideration the entire evidence on

record, deposition of the prosecution witnesses and circumstances

sought to be relied upon by the prosecution, we find that the

prosecution has succeeded in proving its case beyond reasonable

doubt.

22. In the case of Moti Lal Vs. State of M.P.3, the Supreme Court

while considering a case under Section 376 IPC, referred to the

observations of Vivian Bose, J. in Rameshwar Vs. The State of

Rajasthan4, and has observed that a woman or a girl who is raped is

not an accomplice; that corroboration is not the sine qua for

conviction in a rape case; that it is settled law that the victim of sexual

3 2008 ALL MR (Cri) 2583 (S.C.) 4 AIR 1952 SC 54

15 of 20 Appeal.218.13 & 309.14.doc

assault is not treated as accomplice and as such, her evidence does not

require corroboration from any evidence including the evidence of a

doctor; that in a given case even if the doctor who has examined the

victim does not find sign of rape, it is no ground to disbelieve the sole

testimony of the prosecutrix; that in normal course a victim of sexual

assault does not like to disclose such offence even before her family

members much less before public or before the police; the Indian

women has tendency to conceal such offence because it involves her

prestige as well as prestige of her family and only in few cases, the

victim girl or the family members has courage to go before the police

station and lodge a case.

22.1. In the present case, it is seen that the victim is a helpless,

deaf and dumb married woman whose privacy and personal integrity

has been shattered by the Appellant. In paragraph 8 of the above

judgment, the Supreme Court has held as under:-

"8. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor

16 of 20 Appeal.218.13 & 309.14.doc

contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab Vs. Gurmeet Singh5."

22.2. Thus, from the above, it is seen that rape is not merely a

physical assault but it destructs the whole personality of the helpless

woman. In the present case, the victim is helpless handicapped

woman and thus, the present case requires to be dealt with utmost

sensitivity. As seen, the evidence of the prosecutrix in the present case

inspires confidence and also stands corroborated in material

particulars on the basis of testimony of the prosecution witnesses.

23. In view of the above discussion and findings, and on

appreciation of the evidence, offence committed by the accused stands

proved beyond reasonable doubt. The only question that now remains

to be considered is as regards the sentence. Appellant has behaved in

the most horrific manner and shocked our conscience. The magnitude

of his offence is such that he has misused his position of trust and

committed an act as alleged and proved on a helpless handicapped

victim who could not speak or hear. We would have countenanced

5 1996(2) SCC 384

17 of 20 Appeal.218.13 & 309.14.doc

the leniency shown by the learned trial court, but in the facts of the

present case, we are afraid that we cannot persuade ourselves to do

so. We disagree with the findings returned by the learned trial court in

so far as the award of sentence is concerned; learned trial court has

clearly erred in awarding the sentence of 5 years rigorous

imprisonment to the accused on the ground of taking into

consideration the age of the accused and that the accused was facing

trial for 6 - 7 years and attending the court; we do not agree with this

reasoning as it is contrary to the statute. Unamended Section 376 IPC

prior to 21.04.2018 as it stood referred to punishment for rape and

stated that except in the cases provided by sub-section (2) whoever

commits rape shall be punished with rigorous imprisonment of either

description for a term which shall not be less than 7 years, but which

may extend to imprisonment for life, and shall also be liable to fine.

The present case is covered by the provisions of Section 376(1) IPC.

In view of the statutory provision, once the trial court had come to the

conclusion that the prosecution had squarely proved the offence of

rape committed by the accused on the victim beyond reasonable

doubt, then there is no reason to defer from the statutory provision

and award a lesser sentence than what is prescribed by the statute. It

is seen that the victim in the present case is a deaf and dumb woman.

Ravishing such a handicapped/helpless woman and more specifically

when she is alone inside the house and the entire case of the defence

18 of 20 Appeal.218.13 & 309.14.doc

falling apart without proving the chain of circumstances, the sentence

awarded by the learned trial court directing the accused to suffer

rigorous imprisonment for 5 years and to pay fine of Rs.1,000/- and in

default of payment of fine to undergo simple imprisonment for 1

month is therefore set aside to that extent and substituted by the

following:-

(i) accused Madhukar Makaji Mudgul is hereby convicted in

view of section 235 of the Criminal Procedure Code of the

offence punishable under Section 376 IPC and is sentenced

to suffer rigorous imprisonment for 7 years and to pay fine

of Rs.25,000/-, and in default of payment of fine the accused

shall further undergo simple imprisonment for 6 months;

rest of the impugned judgment and order shall remain as it

is.

24. Subject to the above modification of the sentence in the

impugned judgment dated 13.02.2013 to the aforesaid extent,

Criminal Appeal No.218 of 2013 filed by the accused fails and is

dismissed.

25. In view of the above directions, Criminal Appeal No.309 of

2014 filed by the State stands allowed by substituting the sentence

awarded by the learned trial court to the Appellant from 5 years to 7

years rigorous imprisonment and fine from Rs.1,000/- to Rs.25,000/-,

19 of 20 Appeal.218.13 & 309.14.doc

and in default of payment of fine simple imprisonment for 6 months.

26. Criminal Suo-Motu Petition No.2 of 2015 also stands

disposed in view of the above directions in Criminal Appeal No.309 of

2014.

27. Appellant shall surrender before the learned Additional

Sessions Judge, Niphad, District Nashik in order to undergo the

remaining sentence as awarded within a period of four weeks from the

date of uploading of this judgment. If the Appellant does not

surrender within a period of four weeks as directed, non-bailable

warrant be issued to effect arrest of Appellant to comply with the

present order in accordance with law.

28. This Court had requested Advocate Mr. Ashish Satpute to

espouse the cause of the Appellant in Criminal Appeal No. 218 of

2013; he has assisted the court in appreciating the evidence on record.

His professional fee quantified as per rule to be paid to him by the

High Court Legal Aid Services Committee, Mumbai.

      [ MILIND N. JADHAV, J. ]                      [ A.S. GADKARI, J. ]

            Digitally signed
            by RAVINDRA
 RAVINDRA   MOHAN
            AMBERKAR
 MOHAN      Date:
 AMBERKAR   2022.08.19
            18:12:44
            +0530




                                                                       20 of 20