LexVISHNU@ UNDRYA versus STATE OF MAHARASHTRA
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A VISHNU@ UNDRYA v. ST A TE 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 of facts 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 H 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 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
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