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CASE NO.: Appeal (crl.)  1112-1113 of 1999

PETITIONER: Vishnu @ Undrya                                                                       

RESPONDENT: State of Maharashtra                                                      

DATE OF JUDGMENT: 24/11/2005

BENCH: H.K. SEMA & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T                                  

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 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.           The factual matrix may be noted briefly:         The prosecutrix \026 Kumari Pushpa at the relevant time was residing  with her parents Pandurang \026 PW-1 and Vimal \026 PW-13 at Khar Danda,  Mumbai.  The accused was known to the prosecutrix as they were residing  in the same 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.           On 10th 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 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 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.  After half an hour, she became unconscious.  Her mother Vimal \026  PW-13 and her brother Eknath took her in a taxi to Bhabha Hospital.  She  was examined by Dr. Dilip Chaniary \026 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 vagina since 5.30 P.M.           PW-15, S.I. Bagal, who was attached to Bandra Police Station was

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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 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 11th July, 1980.  PW-15 did not  register any case presumably thinking that the age recorded in the school  leaving certificate was more than 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. Bagal has been  commented upon and deprecated by both the Trial Court and the High Court,  which we may refer at an appropriate stage, if need be.           May be for any reason, best known to him, PW-15, S.I. Bagal 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  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 in 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  Pandurang (PW-1) in the K.E.M. Hospital about the incident.  He was  shocked to hear the same and after confirming the same from his wife   Vimal and 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 Police forwarded the papers to A.C.P. Rodriques  who took away the investigations from S.I. Bagal 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  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 of offence 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 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, Bandra, Bombay.  Thereafter, the case was committed  to Sessions.  Before the Sessions Court, the prosecution examined as many  as 14 witnesses 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. Sushil Karanjkar, learned counsel for the respondent at  length. Before us the learned Senior counsel for the appellant strenuously  urged that there are two date of births of the prosecutrix, one \026 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 \026 29.6.1963 (the date of birth recorded in the  school leaving certificate of Khar Upper Municipal School) which have  created a doubt and are capable of two opinions \026 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, unless it is established that the prosecutrix is below the age of 16

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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 submission  deserves outright rejection. The question whether the date of birth of the prosecutrix is 29th  November, 1964 or 29th June, 1963 is no more in controversy.                  The date of birth of the prosecutrix, as of 29.11.1964, has been  recorded concurrently by both the Trial Court and the High Court on  consideration of the evidence of  PW-1, Pandurang, father of the prosecutrix  and PW-13, Vimal, mother of the prosecutrix, corroborated by the age of the  prosecutrix recorded 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-1 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 the hospital where the  prosecutrix was born and the evidence of  the doctor  clearly establish that  the prosecutrix was born on 29.11.1964.  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: "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 (2) 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 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."

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 of the commission of the offence  is not at all challenged by Mr. Samant."

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 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 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 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:         "Khar-Danda Higher Secondary Marathi School

Birth date of ex-student of said school \026 Pushpala

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Pandurang Satrange, as per school Register is twenty  ninth June, Nineteen Sixty-three \026 29.6.1963.

Submitted dt. 11.7.80.                                                         Sd/-                                                 For Principal Khar Danda Higher  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.           PW-1, Pandurang is the father of the prosecutrix.  He has stated that  his daughter Puspha (prosecutrix) was born on 29.11.1964.  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 29.11.1964 remained unimpeached.  In fact, in  the cross-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 29.11.1964.  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 that the prosecutrix was born on 29.11.1964.           PW-13, 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 29.11.1964.   To prove this, the prosecution has examined  Dr. Shashikant Awasare, who is one of the proprietors of Dr. Kashibai  Nursing Home, Santacruz (West), Mumbai.  He has produced the registers  for the year 1964.  He has also produced the entry at Sr. No. 293, Exh. 18.  The entry shows that Vimal \026 PW.13 gave birth to a female child on 29th  November, 1964.  The prosecution has also produced a Certificate of Birth  Registry of Municipal Corporation of Greater Bombay which shows the  registration of a female child of Pandurang \026 PW.1 and Vimal \026 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, 1964 to 5th  February, 1965.  The entry at Sr. No. 542 dated 16th January, 1965 is in  respect of the birth of the female child to Vimal and the birth date is shown  as 29th November, 1964.     These two unimpeachable documents clearly  corroborate the statements of PW.1 and PW.13 in all material particulars that  the prosecutrix was born on 29th November, 1964.  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 16 years of age on 10.7.1980 and 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 \026 PW-10.  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 fourteen teeth (7/7) in upper jaw and thirteen teeth in lower  jaw.  The doctor opined, among others, that her hymen showed old healed  tears at 3-9 O’clock position.  For the determination of the age of the  prosecutrix, PW-10. -   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.  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 I am of the opinion that the said girl

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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  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.   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 SCC 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 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 the Court although, not an expert may  form its own judgment on those materials after 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  appellant will be of no assistance in the face of evidence of fact from the  mouth of PW-1 father and PW-13 mother, well corroborated 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 that PW-4  Pushpa was born on 29.11.64.   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 \026 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, 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 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-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, 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 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 & 13  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.   Besides aforesaid, looking into the statement of PW-4 Pushpa  (prosecutrix), we are clearly of the view that the prosecutrix had been

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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 dock.   Accused is residing in our locality.  Accused used to visit  my maternal uncle’s 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 10/7/80 I reached the hospital  at about 11 a.m.  I served my father food 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 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 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 chawl and represented  to me that it was Nanawati Hospital.  I also felt that it  was hospital so I got down.  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 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.           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 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 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 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 to Nanawati hospital, he took her to a hotel, took her inside

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a room, closed the door of the room, threatened her to finish her if she  shouted and then 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 well-settled principle of law that  conviction can be sustained on the sole testimony of the prosecutrix, if it  inspires confidence.           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 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. Bagal they are very cryptic  and favourable to the accused.  He did not care to  ascertain the correct age of the victim girl, in a  kidnapping and rape case.  He did not register an offence  against the accused.  I fail to understand as to what  interrogation 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 offence for kidnapping after taking extract  of birth from the school.  If 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.I. Sharma.  Merely, he had produced these three  statements in a routine manner before P.I. Sharma, on the  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."

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 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 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 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 directed to be taken into custody forthwith to serve out the

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remaining part of sentence.  Compliance report should be sent to this Court  within one month.