State Of Maharashtra vs Vishal Naresh Peravi

Sadhana S. Jadhav, J

The State of Maharashtra being aggrieved by the Judgment and Order dated 21st March, 2006 passed by 2nd Ad-hoc Additional Sessions Judge,

Raigad-Alibag, thereby acquitting accused of the offence punishable under section 376 of the Indian Penal Code has filed this appeal. It is contended

that acquittal of the accused in the present case has resulted in miscarriage of justice.

Such of the facts necessary for the decision of this appeal are as follows :

(a). The complainant in the present case happens to be the father of Ms. X. He is a fisherman by profession and that he sometimes goes for fishing

for about 10 days at a stretch. On 20/5/2005 the complainant Chandrakant lodged a report at the police station alleging therein that he was for voyage

and on 19/5/2005 he returned from his voyage. At about 5 p.m. on 20/5/2005 he had attended marriage of a relative at Pen Taluka.

(b). After returning home on 20/5/2005 upon enquiry, his daughter informed him that on 17th May, 2005 her mother had left the rice for grinding. That

her mother had asked her to pick up the grinded flour from the mill. At about 7 p.m. upon reaching flour mill, she was informed that due to power

failure, the rice could not be grinded.

(c). While she was returning home, at one point near rickshaw stand, the accused was standing near his house. Upon seeing Ms. X, he caught hold of

her hand and dragged her inside his house. That he denuded her of her clothes and ravished her against her wish. She had Talwalkar 2 of 11

apeal1101.06.doc developed threat perception due to warning given by the accused and therefore, had not disclosed the incident to her mother

immediately. However, on the next day, she had informed her mother about the trauma she had gone through at the hands of the accused.

(d). The complainant then reached to the police station and lodged a report against the accused. The investigation was set in motion. The prosecution

has examined as many as 10 witnesses to bring home the guilt of the accused.

3 The case rests on the evidence of Ms. X(P.W.3), complainant(P.W.1) i.e. father of Ms. X, P.W. 2 Dr. Shrikant Anavare Afzalpurkar, P.W. 7

Pushpalata Joshi, Head Mistress of Jilha Parishad School of Dadar as she has proved school living certificate of Ms. X and P.W. 5 panch for the

scene of offence panchanama. 4 According to P.W. 3, her date of birth is 26/7/1991. She was studying in 8th standard in Zilla Parishad School.

According to her, on 17/5/2005 her father had been to Kolaba for fishing. She was acquainted with the accused. On the date of incident, at about 7.30

p.m. she had been to flour mill of Keshav Joshi to bring grinded flour. She learnt that due to power failure, grains were not grinded. Hence, Talwalkar

3 of 11 apeal1101.06.doc she was returning home. While she was passing through the house of accused, she saw the accused present at the door of

his house. He apprehended her on the road, hold her by her hand, gagged her moth and pulled her towards his house. She was taken to second room

of his house which appeared to be a bed room. He got undressed and then denuded her of her clothes and threw her on the cot and ravished against

her will. He had threatened her of dire consequence and therefore, she had not disclosed the incident to anyone for 2 days. Ms. X has identified her

clothes which were seized by the police. In the cross-examination she has stated that house of the accused was equidistant from her house and the

flour mill. There is a courtyard to his house and then the public road begins. And that the house of the accused is at a distance of 30 to 35 ft. from the

road. Butcher's shop and rickshaw stand is next to the house of the accused. The locality is crowded. At the relevant time, when she was dragged,

there were about 5 to 6 rickshaws on the stand. And then the accused had dragged her by touching her toes to the ground. She was bare footed and

therefore, it hurt her. Her shouts went unheard by the rickshaw drivers as her mouth was gagged by the accused. She had even tried to escape. Her

clothes were torned in the process of being denuded of Talwalkar 4 of 11 apeal1101.06.doc her clothes. And that she had sustained bruises of nails on

her face since he had gagged her. That there was bleeding from vagina. That none of her family members had enquired her about as to why she was

sleeping for the whole day and on 20/5/2005 she had shown her clothes which she was wearing at the time of ghastly incident, to her parents. Her

parents had not enquired with the accused, but had reported the incident to the police station. She had admitted that her elder sister Sangeeta had

performed love marriage with the cousin of the accused and both had eloped. She had admitted to be acquainted with Satish Thakur, Moreshwar

Thakur, Sakpal and Sattyawan Patil, but she could not assign any reason as to how she was acquainted with them and had denied the suggestion that

she was flirting with them and had intimate relations with Satish Thakur. She has admitted that on 20/5/2005 she has taken those clothes to the police

station and was accompanied by Haridas Thakur and Prabhakar Joshi. 5 The fact that she had visited the flour mill at about 7.30 p.m. and that due to

power failure grains were not grinded, is established through Naresh Padmakar Joshi(P.W. 4), the owner of flour mill. It is also admitted by him that

the house of the accused is Talwalkar 5 of 11 apeal1101.06.doc equidistant from the house of the complainant as well as flour mill. 6 It is specifically

stated by complainant P.W. 1 Chandrakant Devji Thakur that he knows the family of the accused. That they have two houses and all the family

members reside in other house at Dadar. Whereas the new house which is on the outskirt of the village is vacant. P.W. 1 had returned from his

fishing voyage on 19/5/2005 at about 5 to 5.30 p.m., but had left his house only to attend pre- wedding ceremony. When he returned on 20/5/2005

after attending wedding ceremony, he found his daughter sleeping and upon enquiry, she had narrated the incident to him and therefore, he rushed to

the police station at about 5.30 p.m. and lodged report. He has proved FIR which is at Exh. 16. On the next day, his daughter was referred to Rural

Hospital for physical examination. The location of the house as narrated by Ms. X and the owner of the flour mill is admitted. It is also admitted that

his elder son-in-law i.e. husband of Sangita is the cousin of the accused. However, he has contradicted P.W. 2 in respect of showing of the clothes of

Ms. X to him on the day when he lodged complaint. Since he had enquired about the clothes on the next day i.e. on 21/5/2005, she had produced the

clothes which she had left on Talwalkar 6 of 11 apeal1101.06.doc string and he had produced the said clothes to the police. 7 The medical evidence

also needs to be taken into consideration. The prosecution has examined P.W. 2 Dr. Shrikant Annarse Afjalpurkar to prove clinical examination and

the age of the victim as per ossification test. P.W. 2 has contended before the court that he had examined the victim on 21/5/2005 at about 11.30 a.m.

She was examined by gynecologist attached to rural hospital Dr. Suryavanshi. It is stated by the doctor that :

On person of examination I found that her abdomen was soft, labia majors opened. There was no evidence of congestion, libia minora not congested,

there was no hymen, there was no evidence of external injury. I have also consulted with Gynecologist, and he has also examined her. According to

him, patient was habitual for sexual intercourse. No sexual intercourse within 24 hours. She had inter coursed but no exact time is shown.

For ascertaining the age of the victim, she was directed to undergo X- ray examination and the test revealed that the age of Ms. X was between 16 to

18 years. The medical certificate is at Exh. 18. On 24/5/2005 the accused was examined and according to P.W. 2 his age was between 18 to 20

years. It is further clarified that in the cross- examination that all secondary characters of Ms. X were fully developed and that is one of the criteria to

determine the age of the person. Injury on the private parts of a tender aged girl in the case of forcible intercourse cannot be ruled out.

8 The age of the victim is proved by producing her school leaving certificate and the gram panchayat extract show that Ms. X was born on 18/7/1991.

The age of the victim is proved beyond reasonable doubt by examining Head Mistress of Zilla Parishad School at Dadar Sau. Pushpalata Maruti

Joshi(P.W. 7). 9 The scene of offence as narrated by the victim is also proved through P.W. 5 Haridas Thakur and the panchanama is at Exh.

24.. 10 Learned Sessions Judge has considered the entire evidence meticulously and has arrived at a conclusion that the allegations impeached by the

victim do not stand to reason and are not corroborated by medical evidence. Learned Sessions Judge has rightly discussed that the house of the

accused is at a distance of about 30 ft. of public road.. However, it cannot be believed that the victim could not resist severely while covering the

distance of 30 ft. on public road. That in the course of resistance, even if it is assumed that he had gagged her mouth, there was no injury to his palm

neither she had any bruises on her toes. There would be other family members in the house. It needs to be appreciated that even according to P.W. 1,

all the family members of the accused were residing in the old house, which is in the village and not in the new house, which is located on outskirt of

the village. In answer to question No. 25 of the statement of the accused under section 313 of the Code of Criminal Procedure, 1973, the accused has

also admitted that all the family members are residing in the old house which is located in the center area of the village whereas the other house is

outside the village. According to complainant and Ms. X, new house of the accused is on the way from the house of the victim and flour mill. Further

question No. 31 has been wrongly framed which reads as under :

Que. 31: Minaya and Chandrakant deposes that your new house is on the way from the flour mill to the house of Vinaya. What do you want to say

about it ?

The abovesaid question is answered in the negative. It is specific defence of the accused, which is reflected in answer No. 100, which Talwalkar 9 of

11 apeal1101.06.doc reads as under :

Sangeeta is Minayas elder sister. She had love affair with my cousin(maternal) by name Vijay Balaram Patil. Both of membered to visit my home

frequently. Minayas father was not liking their relation. They ran away & performed marriage. According to Chandrakant, I helped them. Hence he

got angry with me & filed false report.

11 What needs to be taken into consideration is the medical evidence which shows that he had not found hymen and that she was habituated to sexual

intercourse. There is no specific cross-examination on this aspect. Ossification test reveals that the age of the victim is between 16 to 18 years, more

particularly, on the basis of the findings that all her secondary organs had developed. This is one of the criteria to ascertain the age of a person. With

the help of X-ray and considering the development of secondary character doctor can collect the age. According to the doctor, there is always

chances of injury on private part of tendered aged girl faces forceful intercourse. At that time some injuries also happen on breast and other parts of

body.

Upon appreciation of the evidence adduced by the prosecution, more particularly, the medical evidence and going through the findings recorded by

the learned Sessions Judge, this Court is of the opinion that no case for interference is made out. Hence, the appeal deserves to be dismissed. Hence,

following order is passed :

ORDER

(i). The appeal is dismissed.

(ii). The Judgment and Order dated 21st March, 2006 passed by 2nd Ad-hoc Additional Sessions Judge, Raigad-Alibag, thereby acquitting accused of

the offence punishable under section 376 of the Indian Penal Code is hereby confirmed.

(iii). The appeal is disposed of accordingly.