Holding

The victim’s age is to be determined by the parents' testimony corroborated by official birth registers, rendering the ossification test irrelevant; the victim was under 16, so the accused is guilty of rape under Section 376 IPC.

Summary

The accused, a taxi driver, was convicted of raping a girl, Pushpa, who was allegedly under 16 years of age. Two dates of birth were on record – 29‑Nov‑1964 from municipal and hospital registers and 29‑Jun‑1963 from a school leaving certificate. A medical officer’s ossification test suggested the girl was 18‑19 years old. The Supreme Court held that the best evidence of a child's age is the testimony of the parents, corroborated by official birth registers, and that the ossification test could not override this evidence. The school certificate was deemed unreliable. The victim’s testimony was found credible and sufficient to sustain conviction. Consequently, the conviction under Sections 375 (clause thirdly) and 376 IPC was upheld and the appeal dismissed.

Issues considered

The appropriate method for determining the age of the alleged victim when documentary evidence is conflicting
Whether an ossification test can be given decisive weight over parental testimony and official birth records
If the victim was a minor, whether consent is immaterial under Section 375 IPC
Whether conviction for rape can be sustained on the sole testimony of the victim if it inspires confidence
The impact of the police officer’s failure to register an FIR on the validity of the conviction

Legislation cited

Indian Penal Code, 1860s. 375, s. 376

Subjects

rapeminorage determinationossification testevidentiary weightSection 376 IPCSection 375 IPCchild protectionpolice negligencecriminal law

Judgment

A VISHNU@ UNDRYA
v.
STATE OF MAHARASHTRA

NOVEMBER 24, 2005

B [H.K. SEMA AND TARUN CHATTERJEE, JJ.]

Penal Code, 1860: Section 375 Clause Thirdly and Section 376.

Rape-Accused was known· to the prosecutrix as they were residing in
C the same locality-While the prosecutrix was on her way to her residence the
accused offered to drop her at her residence-Prosecutrix got into his taxi
but she was taken to a hotel room where the accused committed rape on her
by threatening her-Prosecutrix reached home bleeding profusely from her
private parts-Prosecutrix had two dates of birth viz.. 29.11.1964 as recorded
D in the date of birth register of Municipal Corporation and register of the
hospital where prosecutrix was born and 29. 6.1963, the date of birth recorded
in her school leaving certificate-However, courts below concurrently found
that the date of birth of the prosecutrix was 29. 11.1964 on the basis of the
evidence of mother and father of the prosecutrix-But the Medical Officer, on
the basis of ossification test, stated that the prosecutrix-was aged 18 or 19
E years-Trail court convicted the accused and High Court affirmed same-
Correctness of-Held: In the case of the determination of the age of the child,
the best evidence is of father and mother-Therefore, the ossification test
cannot form the basis for determination of the age of the prosecutrix on the
face of witness offacts tendered by her parents-Moreover, the statement of
F the prosecutrix inspires confidence and merits acceptance-In the traditional
non-permissive society of India, no girl or woman of self respect and dignity
would depose falsely implicating somebody of ravishing her chastity by
sacrificing and jeopardizing her future prospects of marriage-Conviction
can be sustained on the sole testimony of the prosecutrix, if it inspires
confidence-Conviction upheld
G
According to the prosecution, the appellant-accused was known to the
prosecutrix as they were residing in the same locality. While the prosecutrix
was returning to her residence after visiting her ailing father the accused
offered to drop her at her residence in his taxi. The prosecutrix got into his

H 474
VISHNU@UNDRYAv. STATEOFMAHARASHTRA 475
taxi but she was taken to a hotel room where the accused committed rape on A
her by threatening her.

The prosecutrix reached home bleeding profusely from her private parts.
During the course of investigation it was revealed that there were two dates
of birth of the prosecutrix i.e. 29.11.1964 recorded in the date of birth register
of the Municipal Corporation and the register of the hospital where the B
prosecutrix was born and the second i.e. 29.11.1863, the date of birth recorded
in the school leaving certificate of the prosecutrix. However, by conducting
an ossification test the Medical Officer opined that the prosecutrix was 18 or
19 years of age.

The trial court convicted the accused under Section 376 of the Penal C
Code, 1860 and the High Court affirmed the same. Hence the appeal.

On behalf of the accused, it was contended that since there were two
dates of birth the benefit of doubt should have been given to the accused; and
that since the sexual intercourse was consensual, therefore, unless it was D
established that the prosecutrix was below the age of 16 years the accused
was not liable to be punished in view of the definition of 'rape' under Section
375 IPC namely, clause sixthly.

Dismissing the appeal, the Court

HELD: 1. In the case of determination of date of birth of the child, the
E
best evidence is of the father and the mother. In the present case, the father
and the mother, PW-1 and PW-13, categorically stated that PW-4, the
prosecutrix, was born on 29.11.64, which is supported by the unimpeachable
documents. These are the statements of facts. If the statements of facts are
pitted against the so called expert opinion of the doctor with regard to the F
determination of age based on ossification test scientifically conducted, the
evidence of facts of the former will prevail over th~ expert opinion based on
the basis of ossification test. Even as per the doctor's opinion in the
ossification test for determination of age, the age varies. In the present case,
therefore, the ossification test cannot form the basis for determination of the G
age of the prosecutrix on the face of witness of facts tendered by PW-1 and
PW-13, supported by unimpeachable documents. Normally, the age recorded
in the school certificate is considered to be the correct determination of age
provided the parents furnish the correct age of the ward at the time of
admission and it is authenticated. In the present case, the parents had admitted
to have given an incorrect date of birth of their daughter, presumably with a H
476 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A view to make up the age to secure admission in the school. Apart from this
the school certificate collected by PW-15 was not an authenticated document.
No body was produced to prove the date of birJh recorded in the school
certificate. The date of birth recorded in the school certificate as 29.6.63 is,
therefore, belied by the unimpeachable evidence of PWs. I and, 13 and
B contemporaneous documents like date of birth register of the Municipal
Corporation and the register of the Nursing Home where the pr?secutrix was
born. (484-B-F[

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR (1983) SC 753
and Madan Gopa/ Kakkadv. Naval Dubey, [1992) 3 SCC 204, relied on.
c 2. Besides the aforesaid, looking to the statement of PW-4, the
prosecutrix, it is clear that the prosecutrix had been ravished sexually by force
and against her wishes. (484-G)

3. The statement of the prosecutrix is quite natural, inspires confidence
D and merits acceptance. In the traditional non-permissive bounds of society of
India, no girl or woman of self respect and dignity would depose falsely
implicating somebody of ravishing her chastity by sacrificing and jeopardizing '
her future prospects of getting married with a suitable match. Not only she
would be sacrificing her future prospects of getting married and having a
family life, but also would invite the wrach of being ostracized and outcast
E from the society she belongs to and also from her family circle. From the
statement of the prosecutrix, it is revealed that the accused induced her to a
hotel by creating an impression that his wife was admitted in the hospital and
that he would see her first and then drop the prosecutrix at her residence
whereas, in fact she was not admitted in the hospital. On the pretext of going
F to the hospital, he took her to a hotel, took her inside a room, closed the door
of the room, threatened her to finish her if she shouted and then forcibly
ravished her sexually. A clear case of rape, as defined under Section 375 clause
thirdly of WC has been established against the accused. It is now a well-settled
principle of law that conviction can be sustained on the sole testimony of the
prose~utrix, if it inspires confidence. (486-B-DI
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 1112-
1113of1999.

From the Judgment and Order dated 4.5.98 of the Bombay High Court
in Crl.A. No. 147 and 356of1984.
H
.....,.
(

VISHNU@ UNDRYA v. STATE OF MAHARASHTRA [SEMA. J.] 477

U.U. Lalit, Prashant Kumar, Nitin Sahara and Prasenjit Keswani for the A ,
Appellant.

Sushi! Karanjkar and Ravindra Keshavrao Adsure for the Respondent.

The Judgment of the Court was delivered by
B
H.K. SEMA, J. The sole appellant was put to trial under Section 376/
366 IPC. He was convicted by the Trial Court and sentenced to two years R.I.
on each count. He was also directed to pay a fine of Rs. 1000/- and in default
further sentence of 3 months R.I. Aggrieved thereby, two appeals were
preferred before the High Court. Appeal No. 147/84 was preferred by the
accused against his conviction. Appeal No. 356/84 was preferred by the State C
for enhancement of the sentence. The High Court, by a common order,
dismissed the appeal filed by the accused and allowed the appeal filed by the
State. The sentence of the appellant was enhanced to 5 years R.I. and a fine
of Rs. 1000/- and in default further R.I. for 3 months. Aggrieved thereby, the
present appeals have been filed by special leave.
D
The factual matrix may be noted briefly:

The prosecutrix - Kumari Pushpa at the relevant time was residing with
her parents Pandurang PW-I and Vimal - PW-13 at Khar Danda, Mumbai. The
accused was known to the prosecutrix as they were residing in the same E
locality. The accused was also a friend of the maternal uncle of the prosecutrix.
She used to visit her maternal uncle's house where she used to meet the
accused. Pandurang, father of the prosecutrix was admitted at K.E.M. Hospital
for treatment of his eyes. The prosecutrix used to take food and tea to the
hospital for her father.
F
On I 0th July, 1980, the prosecutrix had gone to the hospital at about
11.00 A.M. carrying food and tea for her father. She left the hospital at about
3.30 P.M. While she was coming out of the gate of the K.E.M. hospital, the
accused who was a taxi driver met her at the gate and inquired as to where
she was going. The prosecutrix told the accused that she was on her way to
her residence. The accused told her that he had his own taxi and he would G
drop her at her residence at Danda. Upon such offer, the prosecutrix got into
the taxi. When the taxi came to the Linking Road Junction, the accused told
her that his wife was admitted in Nanawati Hospital and he would go and see
his wife in the hospital and thereafter he would drop her at her residence. The
accused then took the taxi to a small hotel representing that it was Nanawati H
478 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A Hospital. The accused took her inside the room of the hotel, bolted the room
from inside and committed rape on her by threatening that in case of her
shouting, she would be finished. Both of them came out of the hotel room
and the accused dropped her home at 5.45 P.M. in his own taxi.

The prosecutrix reached home bleeding profusely from her private parts.
B After half an hour, she became unconscious. Her mother Vimal - PW-13 and
her brother Eknath took her in a taxi to Bhabha Hospital. She was examined
by Dr. Dilip Chaniary - PW-12 of Bhabha Hospital. After she regained
consciousness at about 10.00 P.M. she narrated the incident to her mother
that she was raped at about 5 P.M. and told that she was bleeding from her
C vagina since 5.30 P.M.

PW-15, S.I. Sagal, who was attached to Sandra Police Station was
intimated about the incident on telephone. PW-15, alongwith a Police
Constable, reached Bhabha Hospital for inquiry. He contacted the prosecutrix
in the ward. He also questioned her about the incident and recorded her
D statement. He also recorded the statements of her mother Vimal and brother
Eknath. He further made inquiry about the age of the girl from the brother and
mother of the prosecutrix. Thereafter, he went to the school where she studied
last and collected the school leaving certificate from Khar Upper Municipal
School on l lth July, 1980. PW-15 did not register any case presumably
thinking that the age recorded in the school leaving certificate was more than
E 16 years and she was a consenting party to sex. He was of the view that there
was not enough material to register a case. He also stated. that he called the
accused for further inquiry on 3-4 occasions but did not think it necessary
to register the offence or to carry further investigations. The conduct of PW-
15, S.I. Sagal has been commented upon and deprecated by both the Trial
p Court and the High Court, which we may refer at an appropriate stage, ifneed
be.

May be for any reason, best known to him, PW-15, S.I. Sagal did not
register the offence, but we are shocked to note that in a grievous offence
like rape being reported to the police, the concerned police officer did not
G register the case despite the fact that the prosecutrix had categorically stated
that the accused had forcible sexual intercourse with her which no doubt
would lead to the losing of confidence of the public iri the police establishment.

When the matter stood thus, an unexpected development had taken
place. PW-5, Kashinath, a friend of the father of the prosecutrix informed
H Pandurang (PW-I) in the K.E.M. Hospital about the incident. He was shocked
VJSHNU@UNDRYAv. STATE OF MAHARASHTRA [SEMA,J.] 479
to hear the same and after confirming the same from his wife Vimal and A
daughter Pushpa, against the medical advice, he got himself discharged from
the hospital on 9th September, 1980 and made an application dated 23rd
September, 1980 to the Commissioner of Police, copies of which were also sent
to the Prime Minister of India and the Chief Minister of the State. After
receiving the application dated 23rd September, 1980, the Commissioner of B
Police forwarded the papers to A.C.P. Rodriques who took away the
investigations from S.I. Sagal and directed PW-14, S.I. Parab to re-investigate
the matter.

During the course of investigation, S.I. Parab recorded the statements
of the witnesses including the prosecutrix and her parents and collected C
relevant documents. It is revealed from the documents collected by him that
Pushpa's (prosecutrix) date of birth was 29th November, 1964 and she was
below 16 years of age at the time of commission ofoffence on 10.7.1980. The
accused was arrested on 3rd November, 1980 and during interrogation, the
accused took them to the Marwadi hotel at Juhu where the prosecutrix was
taken by him. The panchanama was drawn vide Exh. 7. After close of the D
investigation, a prima facie case was established and a chargesheet against
the accused under Sections 366/376 IPC and Section 57 of the Bombay
Children Act was filed before the Additional Chief Metropolitan Magistrate,
9th Court, Sandra, Bombay. Thereafter, the case was committed to Sessions.
Before the Sessions Court, the prosecution examined as many as 14 witnesses E
and led documentary evidence with regard to the establishment of the age of
the prosecutrix and after the conclusion of the trial, the accused was convicted
and sentenced as stated above.

We have heard Mr. U. U. Lalit, learned senior counsel for the appellant
and Mr. Sushi! Karanjkar, learned counsel for the respondent at length. p
Before us the learned Senior counsel for the appellant strenuously
urged that there are two date of births of the prosecutrix, one 29 .11.1964
(recorded in the date of birth register of the Bombay Greater Municipal
Corporation and register of Kashibai Hospital, Santa Cruz, Bombay, where
Pushpa was born); and second 29.6.1963 {the date of birth recorded in the G
school leaving certificate ofKhar Upper Municipal School) which have created
a doubt and are capable of two opinions one in favour of the accused and
the other against the accused; the one in favour of the accused should be
accepted and the accused be acquitted by giving him the benefit of doubt.
He further contended that since the sexual intercourse is consensual, therefore, H
480 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A unless it is established that the prosecutrix is below the age of 16 years, the
accused is not liable to be punished in view of the definition of 'rape' under
Section 375 of IPC namely, clause sixthly. This submissic deserves outright
rejection.

The question whether the date of birth of the prosecutrix is 29th
B November, 1964 or 29th June, 1963 is no more in controversy.

The date of birth of the prosecutrix, as of 29. I I. I 964, has been recorded
concurrently by both the Trial Court and the High Court on consideration of
the evidence of PW-I, Pandurang, father of the prosecutrix and PW-13, Vimal,
mother of the prosecutrix, corroborated by the age of the prosecutrix recorded
C in the date of birth register of Greater Bombay Municipal Corporation and the
register of Kashibai Hospital, Santa Cruz, where the prosecutrix was born. The
evidence of PW-I and PW-13, father and mother of the prosecutrix supported
by contemporaneous documents/registers produced by the 'prosecution like
date of birth register in Bombay Municipal and the date of birth register in
D the hospital where the prosecutrix was born and the evidence of the doctor
clearly establish that the prosecutrix was born on 29. I I. I 964. Therefore, this
question need not detain us any longer in view of the observations of this
Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR
(1983) Supreme Court 753, this Court held at para 5 page SC- 755:

E "A concurrent finding of fact cannot be reopened in an appeal by
special leave unless it is established: (1) that the finding is based on
no evidence or (~) that the finding is· perverse, it being such as no
reasonable person could have arrived at even if the evidence was
taken at its face value or (3) the finding is based and built on
inadmissible evidence, which evidence, if excluded from vision, would
F negate the prosecution case or substantially discredit or impair it or
(4) some vital piece of evidence which would tilt the balance in favour
of the convict has been overlooked, disregarded, or wrongly
discarded."

G The present is not a case of such a nature which would warrant our
interference. That apart, what was recorded by the High Court is worthy to
be noted. In paragraph 13, the High Court has noted as under:

"At the outset, it is required to be noted that the finding recorded by
the trial court that Pushpa was less than 16 years of age on the date
H of the commission of the offence is not at all challenged by Mr.
VISHNU@UNDRYAv. STATEOFMAHARASHTRA[SEMA,J.) 481

Samant." A
Noticing the aforesaid observation of the High Court, this Court while
issuing notice on 19.7.99, noted as under:

"Learned counsel for the petitioner contends that even though the
counsel for the petitioner in the High Court did not challenge the age B
shown in the Birth Register, there are materials for indicating that the
said date cannot be accepted as a correct one. He invited our attention
to the date of birth shown in the School Leaving Certificate.
According to the counsel if that is to be given credence the
prosecutrix would be far above the age of 16 years on the date of
occurrence. Question of consent will very much depend upon the C
exact date of birth of the prosecutrix. In the light of this we feel it
necessary to examine the record. "

(emphasis supplied)

It is because of that observation we allowed the learned counsel for the D
appellant to make submissions on the question of date of birth.

We have also perused the entire records.

The school certificate which has been relied upon by the accused is
marked Exh. 37, the translated copy of which reads: E
"Khar-Danda Higher Secondary Marathi School

Birth date of ex-student of said school - Pushp11la Pandurang Satrange,
as per school Register is twenty ninth June, Nineteen Sixty-three -
29.6.1963. F
Submitted dt. l l.7.80.

Sd/-
For Principal
Khar Danda Higher G
Secondary Marathi School."
On a bare perusal of the certificate, it is noticed that it is not an
authenticated copy and no one has been examined to prove the age of the
prosecutrix recorded in the school certificate.
H
482 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A PW-I, Pandurang is the father of the prosecutrix. He has stated that his
daughter Puspha (prosecutrix) was born on 29. I l.1964. He has also stated that
Pushpa was born at Kashibai Hospital, Santa Cruz, Bombay. This witness was
subjected to lengthy cross-examination but his statement that the prosecutrix
was born on 29. I l.1964 remained unimpeached. In fact, in the cross-
B examination, this witness clarified that the date of birth given in the school
was incorrect and he further clarified that the correct date of birth of Pushpa
is 29. I l.1964. It is a common knowledge that very often parents furnish
incorrect date of birth to the school authorities to make up the age in order
to secure admission for their children. Therefore, we do not see any infirmity
in the statement of the witness, who is the father of the prosecutrix, stating
C that the prosecutrix was born on 29.11.1964.

PW-I3, Vimal is the mother of the prosecutrix. She has also stated that
her daughter, Pushpa (prosecutrix) was born in Kashibai Hospital, Santa Cruz,
Bombay on 29.I l.1964. To prove this, the prosecution has examined Dr.
Shashikant Awasare, who is one of the proprietors of Dr. Kashibai Nursing
D Home, Santacruz (West), Mumbai. He has produced the registers for the year
I 964. He has also produced the entry at Sr. No. 293, Exh. I 8. The entry shows
that Vimal - PW.13 gave birth to a female child on 29th November, I 964. The
prosecution has also produced a Certificate of Birth Registry of Municipal
Corporation of Greater Bombay which shows the registration of a female child
E of Pandurang - PW. I and Vimal - PW-13 and the date of birth is shown as
29.11.1964. To prove this the prosecution has produced on record the birth
register Book No. 24 of Municipal Corporation of Greater Bombay showing
entries from 4th November, I964 to 5th February, I965. The entry at Sr. No.
542 dated ~6th January, I965 is in respect of the birth of the female child to
Vimal and the birth date is shown as 29th November, I 964. These two
F unimpeachable documents clearly corroborate the statements of PW. I and
PW.13 in all material particulars that the prosecutrix was born on 29th November,
I 964. Men may lie but the documents do not. These two unimpeachable
documents clearly establish the fact that PW.4, Pushpa was born on 29th
November, 1964. Therefore, she was below I6 years of age on 10.7.1980 and
G her consent, if any, is immaterial under clause sixthly of the definition of'rape'
under Section 375 IPC.

Mr. Lalit referred us to the evidence of Dr. Bhimrao - PW-IO. Dr. Bhimrao
was the medical officer, Police Hospital Nagpada, before whom the prosecutrix
was produced on 3.11.80 for medical examination. According to him, she had
H fourteen teeth (7/7) in upper jaw and thirteen teeth in lower jaw. The doctor
VISHNU@ UNDRY Av. STATE OF MAHARASHTRA [SEMA, J.] 483
opined, among others, that her hymen showed old healed tears at 3-9 O'clock A
position. For the determination of the age of the prosecutrix, PW-JO. - Dr.
Bhimrao has stated as under:

"I x-rayed for ossification test. I took her x-rays of wrist, elbows and
shoulder joint. Elbow joint is united which unite at the age of 13/14
years. The wrist joint is united which unites at the age of 16/ 17 yrs. B
The shoulder joint is united which unites at the age of 18 years. From
physical findings and ossification test and secondary sex characteristics
I am of the opinion that the age of the girl Pushpa was 18-19 years
with error of margin 6 months on either side. From the finding of
internal examination of external genitals 1 am of the opinion that the C
said girl was subjected to sexual intercourse. Notes of examination
prepared by me. It bears my signature and also of Dr. Gawane."

It is urged before us by Mr. Lalit that the determination of the age of
the prosecutrix by conducting ossification test is scientifically proved and,
therefore, the opinion of the doctor that the girl was of 18-19 years of age D
should be accepted. We are unable to accept this contention for the reasons
that the expert medical evidence is not binding on the ocular evidence. The
opinion of the medical officer is to assist the court as he is not a witness of
fact and the evidence given by the medical officer is really of an advisory
character and not binding on the witness of fact.
E
In the case of Madan Gopal Kakkad v. Naval Dubey and Anr., [1992)
3 SCC 204 this Court has considered a similar question and pointed out in

-
paragraph 34 at page sec 221 as under:

"34. A medical witness called in as an expert to assist the Court is not
a witness of fact and the ·evidence given by the medical officer is F
really of an advisory character given on the basis of symptoms found
on examination. The expert witness is expected to put before the Court
all materials inclusive of the data which induced him to come to the
conclusion and enlighten the Court on the technical aspect of the
case by explaining the terms of science so that the1Court although, G
not an expert may form itsi own judgment on those materials after
1
giving due regard to the expert's opinion because once the expert's
opinion is accepted, it is not the opinion of the medical officer but of
the Court."

; We are of the opinion that this contention of the counsel for the H
484 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A appellant will be of no assistance in the face of evidence of fact from the
mouth of PW-lfather and PW-13 mother, well c0rroborated by the register
of the date of birth of Bombay Greater Municipal Corporation and the evidence
of Dr. Shashikant Awasare, who is one of the proprietors of Dr. Kashibai
Nursing Home, Santa Cruz (West), Mumbai, produced by him which shows
B that PW-4 Pushpa was born on 29. I l.64.

In the case of determination of date of birth of the child, the best
evidence is of the father and the mother. In the present case, the father and
the mother - PW-I and PW-I3 categorically stated that PW-4 the prosecutrix
was born on 29J 1.64, which is supported by the unimpeachable documents,
C as referred to above in all material particulars. These are the statements of
facts. If the statements of facts are pitted against the so called expert opinion
of the doctor with regard to the determination of age based on ossification
test scientifically conducted, the evidence of facts of the former will prevail
over the expert opinion based on the basis of ossification test. Even as per
the doctor's opinion in the ossification test for determination of age, the age
D varies. In the present case, therefore, the ossification test cannot form the
basis for determination of the age of the prosecutrix on the face of witness
of facts tendered by PW-I and PW-13, supported by unimpeachable
documents. Normally, the age recorded in the school certificate is considered
to be the correct determination of age provided the parents furnish the correct
E age of the ward at the time Of admission and it is authenticated. In the present
case, as already noted, the parents had admitted to have given an incorrect
date of birth of their daughter, presumably with a view to make up the age
to secure admission in the school. Apart from this, as noticed earlier, the
school certificate collected by PW-15 S.I. Bagal was not an authenticated
document: No body was produced to prove the date of birth recorded in the
..
F school certificate. The date of birth recorded in the school certificate as
· 29.6.63 is, therefore, belied by the unimpeachable evidence of PWs.- 1 & I3
and contemporaneous documents like date of birth register of Greater Bombay
Municipal Corporation and the register of the Nursing Home where the
prosecutrix was born and proved by Dr. Shashikant Awasare, as noted above.

G Besides aforesaid, looking into. the. statement of PW-4 Pushpa
(prosecutrix), we are clearly of the view that the prosecutrix had been ravished
sexually by force and against her wishes. This is what the prosecutrix stated
before the Court:

"I know accused Vishnu who is sitting in the docJ<.. Accdsed is
H
VISHNU@ UN DRY Av. STATE OF MAHARASHTRA [SEMA, J.] 485
residing in our locality. Accused used to visit my maternal uncle's A.
place. P.W.3 Tulsidas is my maternal uncle. Two or three months prior
to the incident my father was admitted in K.E.M. Hospital for the
treatment of his eyes. I used to go to see my father at K.E.M. Hospital.
I used to go to serve food and tea to my father at hospital. On l 0/
7/80 I reached the hospital at about 11 a.m. I served my father food B
and tea and I left hospital at about 3.30 p.m. Then I came to the gate
of K.E.M. Hospital. Accused met me at gate. Accused asked me to
where I was going. I told him I was going home. Then accused
represented to me that he had got his own taxi and he also further
represented that he would leave me at my residence at Danda. Then
I sat with him in his taxi. We both were alone in the taxi. Accused was C
driving the taxi. We came to Linking Road Junction that time he was
taking the taxi towards other side of Danda. I told him I was getting
late then he represented tome that as his wife (my aunty) was in
Nanawati Hospital, he would see her and drop me at my residence. I
do not know the name of the wife of the accused. I refused to
accompany him in the hospital, he told me that within 5 minutes he D
would leave me at my residence. I requested him to first drop me at
Khar Danda. Accused drove taxi towards Juhu side.

Accused stopped the taxi near on chaw! and represented to me that
it was Nanawati Hospital. I also felt that it was hospital so I got down. E
Then he took me in one room. He closed the door of that room. He
threatened me to finish if I shout. Then he made me lie down on the
cot. He removed my skirt and underwear and had forcible sexual

-
intercourse with me. He put his private part in my private part forcibly.
He had a sexual intercourse with me against my consent. Then we
came out of that hotel from that room. Then he dropped me at my F
residence at about 5.45 p.m. in his taxi."

This witness was subjected to lengthy cross-examination. The trend of
the entire cross-examination is on the line of consensual sex, which has been
denied by the prosecutrix.
G
The accused in Section 313 Cr.P.C. statement has completely denied that
he had any sexual intercourse with the prosecutrix. Question No. 19 (page 154
of original record) was put .to him about the statement of the prosecutrix
regarding forcible intercourse with her on the fateful day, to which he replied,
"This is false". Question No. 64 (page 167 of original record) was put to him
as to whether he wished to say anything more in his defence, to which he H
486 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A replied, "I am innocent and'.falsely involved in this case." How he was falsely
implicated has not been explained,

The statement of the prosecutrix, in our view, is quite natural, inspires
confidence and merits acceptance. In the traditional non-permissive bounds
of society of India, no girl or woman of self respect and dignity would depose
B falsely implicating somebody of ravishing her chastity by sacrificing and
jeopardizing her future prospect of getting married with suitable match. Not
only she would be sacrificing her future prospect of getting married and
having family life, but also would invite the wrath of being ostracized and
outcast from the society she bel.ongs tQ and also from her family circle. From
C the statement of the prosecutrix, it is revealed that the accused induced her
to a hotel by creating an impression that his wife was admitted in the hospital
and that he would see her first and then drop the prosecutrix at her residence
whereas, in fact, she was not admitted in the hospital. On the pretext of going
to Nanawati hospital, he took her to a hotel, took her inside a room, closed ·
the door of the room, threatened her to finish her if she shtiuted and then
D forcibly ravished her sexually. In our view, a clear case of rape, .as defined
under Section 375 clause thirdly of IPC has been .established against the
accused. It is now a '\ven-·settled principle offaw that conviction can be
sustained on the sole testimony of the prosecutrix, if it inspires confidence.
I

E We now say something about PW-15, S.I. Bagal, who refused to register
an offence and on whom both the Trial. Court and the High Court have
commented, and in our view correctly. The Trial Court in paragraph 34 of the
Judgment observed as under:

"It is a pathetic situation, when the citizen is confronted with the
dishonest police officer. I am constrained to observe that the
F investigation done by S.I. Bagal P.W.15, is not only suspicious but
also dishonest and out and out in favour of the accused. I am making
this observation with responsibility. I have scrutinized carefully the 3
statements recorded by S.I. Sagal they are very cryptic and favourable
to the accused. He did not care to ascertain the correct age of the
G victim girl, in a kidnapping and rape case. He did not register an
offence against the accused. I fail to understand as to what
inierrogation of the accused he has done. He has obtained the signature
on the statement of P.W.4 Pushpa and Eknath and right hand thumb
impression on the statement of Smt. Vimal for what reason, I do not
understand, on three statements. At least he could have registered the
H I
VISHNU@ UNDRY Av. ST ATE OF MAHARASHTRA [SEMA, J.] 487
offence for kidnapping after taking extract of birth from the school. If A
he wanted to ascertain the correct date from her father Pandurang and
he was aware that P.W.1 Pandurang was in K.E.M. Hospital and he
wanted to obtain Hospital record, but he never cared to visit K.E.M.
Hospital and to record the statement of Pandurang. He was trying to
shift the burden on the Senior P.l. Shanna. Merely, he had produced
these three statements in a routine manner before P.I. Shanna, on the B
next day. There is no guarantee that he had faithfully recorded
statements of all these three witnesses. The reading of the three
statements clearly indicates that those are completely in favour of the
accused. The entire conduct of S.I. Bagal in the investigation has a
smell of suspicion and dishonesty." C
The High Court also observed about the conduct of PW-15, S.I. Bagal
as under:

"In the present case, the investigation conducted by S.I. Bagal was
completely defective. and casual. He has not even registered the D
offence. The learned trial Judge has observed that the attitude of S.I.
Bagal was completely dishonest and partial to the accused. On closer
scrutiny of the record, we are inclined to agree with the observations
of the learned Judge. We have reason to believe that S.I. Bagal
deliberately refused to register the offence in order to help the accused
at the costs of the prosecutrix. But despite this deficiency, the E
prosecution has successfully proved the offence of rape. We have,
therefore, no hesitation in confirming the conviction recorded by the
trial court under Section 376 of the IPC."

In the facts and circumstances of this case, the comments made by the
Trial Court and the High Court about the manner in which S.I. Bagal conducted F
the first investigation are well justified.

In the premises aforestated, we see no infirmity in the well-merited
concurrent findings recorded by two courts below. The appeals are dismissed.
The appellant is on bail. His bail bonds and surety stand cancelled. He is G
directed to be taken into custody forthwith to serve out the remaining part
of sentence. Compliance report should be sent to this Court within one
month.

v.s.s. Appeal dismissed.