Important point
Conviction for offence of rape can be sustained on sole testimony of prosecutrix if it inspires confidence.

Headnote:Indian Penal Code, 1860—Section 376/366—Appellant took prosecutrix in his taxi to a hotel on a pretext and committed rape on her—Conviction by trial Court and upheld by High Court and in State appeal for enhancement of sentence, High Court enhanced sentence to 5 years imprisonment—Appeal—Date of birth recorded in birth register of Municipal Corporation and register of Hospital where prosecutrix was born showed prosecutrix was less than 16 years of age but school leaving certificate showed her age more than 16 years—Evidence of parents corroborated by age recorded in birth register of Municipal Corporation and register of hospital established that prosecutrix was less than 16 years of age—Expert medical evidence was not binding on ocular evidence as evidence given by medical officer is really of an advisory character and not binding on witness of fact—Ossification test in the case could not form basis for determination of age of prosecutrix—Statement of prosecutrix that she was ravished by force and against her will was quite natural, inspired confidence and merited acceptance—Conviction could be sustained on sole testimony of prosecutrix if it inspired confidence—Conviction and sentence called for no interference.
       Held : 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-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 of 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. (Para 24)
       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 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. (Para 28)

Judgment

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.

2. The factual matrix may be noted briefly:

The prosecutrix - Kumari Pushpa at the relevant time was residing with her parents Pandurang - PW-1 and Vimal - 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.

3. 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.

4. The prosecutrix reached home bleeding profusely from her private parts. After half and 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 vagina since 5.30 P.M.

5. PW-15, S.I. Bagal, who was attached to Bandra 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 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 furthe

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2005 Supreme(SC) 1531

Important pointConviction for offence of rape can be sustained on sole testimony of prosecutrix if it inspires confidence.

Cases Referred (2)

Important point
Conviction for offence of rape can be sustained on sole testimony of prosecutrix if it inspires confidence.