Bombay High Court
The State Of Maharashtra vs Vishal Naresh Peravi on 10 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
apeal1101.06.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1101 OF 2006
State of Maharashtra. ... Applicant
V/s.
Vishal Naresh Peravi,
Age: 19 yrs.
Resident of Dadar, Tal. Pen,
Dist. Raigad. ... Respondent.
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Ms. P.P. Shinde, APP for Appellant State.
Ms. Anita Wakchaure, Advocate for respondent.
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CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : APRIL 5, 2021.
PRONOUNCED ON : JUNE 10, 2021.
JUDGMENT :(PER SMT. SADHANA S. JADHAV,J)
1 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.
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2 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
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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,
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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
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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
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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
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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-
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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
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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
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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.
12 Upon appreciation of the evidence adduced by the
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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.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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