The say of the accused in his Further
Statements at Exh.6 under Section 313 of the
Code of Criminal Procedure is also material
and enlightening the position of such type of
belief in the society, when accused has
categorically stated before the Court that
victim was in love with him and since her
family did not agree to such relationship,
they have filed a false complaint. It is
surprising to note that though the victim is
less than 12 years of age, the accused who is
of 22 years of age is claiming that they were
in love relationship since long time and that
parents of the victim were threatening him
and restricting him from meeting the victim,
but, thereafter, their love relationship
continued and, therefore, parents of the
victim has filed a false complaint. It has
been noticed that there are several cases of
similar nature in the Society and, therefore,
it would be appropriate for the Gujarat High
Court Legal Services Committee to include
such subject in legal literacy camp in
different area so as to explain to the people
that there should not be a relation with
minor girl which attracts the penal provision
and, thereby, they may be convicted and
sentenced even if minor girls have entered
into such madness of falling in love at such
age. So also, the minor girls needs to learn
and to realize that irrespective of emotional
results, they are not supposed to enter into
such activity which would otherwise result
into conviction of their own if it is in-fact
a love affair. However, it would be the
decision of the highest authority of such
committee to initiate appropriate steps.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 64 of 2013
MAHESH CHELABHAI PARMAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 10/07/2015
1. Heard Ms. Meena Vyas, learned advocate for
appellant whereas Mr.K.L. Pandya, learned
Additional Public Prosecutor for the
respondent-State.
2. The appellant, being aggrieved and
dissatisfied by the judgment and order of his
conviction dated 1.9.2012 in Sessions Case
No.11 of 2012 by the learned Sessions Judge
of Ahmedabad City has preferred this Appeal.
By the impugned judgment, appellant is
convicted under Section 363 of the I.P.C. for
the period of 3 years RI with fine of
Rs.1,000/- and in default of payment of fine,
further SI of 1 month with conviction under
Section 366 for the period of 5 years RI with
fine of Rs.2,000/- and 2 months, whereas, he
is further convicted for 7 years of RI with
fine of Rs.3,000/- and 2 months under Section
376 of the Code.
3. The factual details and story of
investigation has been well explained in the
impugned judgment as well as in the memo of
Appeal and hence, considering the age of the
victim and nature of incident, its
reproduction is avoided.
4. I have also perused the Record and
Proceedings in the form of paper-book, the
impugned judgment and also considered the
rival submissions to ascertain the validity
and legality of the impugned judgment.
5. At the outset, it cannot be ignored that so
far as incident is concerned, it involves
abduction and rape of minor girl aged about
12 years by the appellant and unfortunately
though victim is minor, the defence is
regarding her consent. It is settled legal
position that consent of minor is not a valid
consent at all and even if there is evidence
regarding such consent by minor, appellant
may not get benefit of such evidence since
law specifically provides that consent by
minor is not a valid consent. In view of such
facts and circumstances, if there is evidence
regarding abduction and rape of a minor girl
then appellant – accused would have no escape
from conviction.
6. In view of above settled legal position, the
evidence also needs to be examined for such
limited purpose only, so as to examine that
whether victim is minor or not and that
whether her consent is valid and permissible
under the law for the appellant to indulge
into such physical relationship with a minor
girl or not.
7. The prosecution has examined as many as 14
witnesses and produced 16 documentary
evidence. Amongst them, the material evidence
is at Exh.46, a certificate issued by
Principal of Shahidvir Vinodbhai Solanki,
Vadaj School No.4, Vadaj. Since it is a
Government School, there is no reason to
suspect its record and register which is
produced and proved on record at Exh.47. Such
register at Exh.47 shows the name of the
victim at Sr. No.8289 wherein her date of
birth is registered as 15.7.2000, which fact
has been certified in a form of certificate
which is proved at Exh.46 by PW-14 at Exh.45
namely; Yogini Jashvantlal Mehta, who is
serving as a Principal of such school since
the year 2006. Her deposition is recorded on
7.8.2012. Therefore, she is well experienced
Principal of school and hence she has in
categorical terms disclosed the fact
regarding date of birth of the victim and
proves necessary documents at Exh.31 being
Progress Report of the victim and Exhs.46 and
47 which are referred hereinabove. Thereby,
there is clear evidence on record regarding
date of birth of the victim as 15.7.2000.
Since incident has taken place on 20.9.2011,
it is clear and certain that the victim is
even below the age of 12 years on the date of
incident. Therefore, even after lengthy cross
examination, it could not be proved that
victim is aged about 18 years or at-least
above 16 years. Thereby, there is no reason
to discuss other evidence about history and
story regarding allegations and offence for
which the appellant has been convicted. So
far as cross examination of this witness is
concerned, though she is cross examined at
length and though an attempt was made to
prove that there is authenticity of the date
of birth of the victim, scrutiny of entire
cross examination goes to show that an
attempt to create a doubt in such evidence
was certainly made but ultimately, appellantaccused
could not rebut her evidence so as to
prove that date of birth of the victim is
either incorrect or manipulated in any manner
whatsoever. So far as practice and procedure
in maintaining such registers and its nature
are concerned, as it is reflected from the
cross examination, it does not prove in any
manner whatsoever that such documents are
either forged or created with intention to
prove some fact though it is not correct and
when independent witness has nothing to do
either with the accused or with the victim,
there is no reason to discard such evidence.
8. At this stage, it would be appropriate to
recollect the decision of the Hon'ble Supreme
Court in the case of State of Chhattisgarh v.
Lekhram reported in 2006(5) SCC 736, wherein,
it is held that a register maintained in a
school is admissible evidence to prove date
of birth of the person concerned in terms of
Section 35 of the Evidence Act. Such dates of
birth are recorded in the school register by
the authorities in discharge of their public
duty. Even if an entry in the school register
may not be conclusive but it has evidentiary
value and when it is corroborated by oral
evidence, there is no reason to discard such
evidence so as to consider the age of the
victim in such cases of rape.
9. In view of above facts and circumstances, now
when age of the victim is certainly below 12
years, the rest of the evidence is required
to be scrutinized in light of such fact only,
so as to avoid discussion of each and every
small issue in defence.
10. PW-1 at Exh.8, PW-2 at Exh.12, PW-3 at Exh.14
and PW-12 at Exh.34 are panch witnesses
regarding clothes of the accused, panch
witness for collecting sample for FSL and
panch witness of clothes of the victim
respectively. They all supported the case of
prosecution and, thereby, proves the relevant
documents being Panchnama at Exhs.9, 13, 15
respectively. Since all these witnesses have
Page 6 of 14R/CR.A/64/2013 CAV JUDGMENT
supported the case of prosecution, though
they all have been cross examined at length,
accused could not rebut the evidence of the
witness so as to prove his innocence.
11. PW-4 at Exh.19, PW-5 at Exh.20 and PW-6 at
Exh.21 are relatives of the victim being her
sister-in-law, brother and mother. Therefore,
they have also supported the case of
prosecution as per their statement before the
Police and though were cross examined at
length, accused could not rebut the evidence
of the witness so as to prove his innocence.
Amongst them, PW-6 being mother of the victim
has filed a complaint which she proves at
Exh.22. She also discloses the age of the
victim as 12 years at the time of incident
which is corroborated by documentary evidence
at Exhs.46 and 47, for the age of the victim.
12. PW-7 at Exh.23 is Dr. Bhairvi Balvant Pande.
Though, she has proved medical examination of
the victim by her, it is her say that victim
has disclosed her consent regarding running
away with the accused and also for the sexual
relationship with the accused. In cross
examination, she supports the defence by
admitting that victim was found to be major
and, therefore, she has not opined for
ossification test and radiologic test. By and
large, her deposition is supporting the
accused both, in examination-in-chief as well
as in cross-examination and she proves her
certificate at Exh.24, wherein, also she has
endorsed about the consent of victim. But the
most important point she has failed to
realize is the fact about the age of the
victim in her certificate at Exh.24. She did
not dare to disclose the age of the victim in
her deposition except telling that she seems
to be major. I fail to understand and realize
that how a Medical Officer and that too a
lady Medical Officer fails to realize and
consider the age of the victim who was less
than 12 years and how she recognized her as a
major person and then in that case, why she
has not recorded her age in certificate. Her
evidence is negativated on her own when she
deposed that there was no evidence of sexual
intercourse, as against that, she dared to
endorse in a certificate itself that the
victim has stated her that she had a physical
relationship with the accused during the
period of her abduction. Therefore, though
evidence of said witness is supporting the
defence in all manner, it is not only
untrustworthy but needs to be deprecated and
even if we believe such evidence as it is,
then in view of the evidence of age of the
victim being less than 12 years, her consent
recorded by such Medical Officer is not
material. The certificate at Exh.24 is dated
5.10.2011, though victim was examined on
24.9.2011. The witness has also proved on
record the Police Yadi dated 24.9.2011 at
Exh.25 for examining the victim. Irrespective
of discarding such evidence, I could not
resist myself from recording that in-fact the
appointing authority of such Medical Officer
should be informed about such attitude of
such Doctors and at the relevant time, itself
Investigating Agency should certainly
initiates appropriate proceeding against such
Doctor, when Doctor has failed to perform
ossification and radiologic examination to
ascertain the age of the victim and for
recording a consent by a minor victim in such
heinous crime.
13. As against that, the evidence of another
Doctor being PW-8 at Exh.26 namely; Dr.Yasmin
Mohmadsafi Hussaini confirms that he has
examined the accused on the same day,
wherein, for the history of incident, he has
admitted about the incident but he denied to
have entered into physical relationship with
the victim. Since there is nothing against
the accused by such witness, no further
discussion is required except to note that
the witness has proved the medical
certificate at Exh.27.
14. PW-9 at Exh.30 is victim. If we peruse her
deposition, it categorically goes to show
that she has never intended to give consent
either for abduction or for entering into
physical relationship with the accused when
she categorically deposed that she knows the
accused because he used to visit a house in
neighborhood and when accused was smiling at
her, she was also smiling but she never knew
that accused will commit such an act with
her. She is minor and, therefore, even if it
is submitted that she has not resisted or she
has agreed to go with the accused, her
consent cannot be considered as such but on
the contrary, she has specifically deposed
that even though she refused to do it, the
accused has entered into bad relation with
her and at that time, when she has resisted,
the accused has committed an offence of rape
in the name of marriage. Thereby, for
entering into such relationship even
temptation of marriage that too with a minor
girl, certainly amounts to commission of
offence of rape, irrespective of consent of
the minor. She denied the suggestion that she
has stated to the Police in her statement
that she entered into physical relationship
by her own consent or that she has disclosed
to the Doctor about her consent both, for
abduction and for physical relationship.
Therefore, both the Investigating Agency and
Doctor are required to be deprecated for
recording such a statement of a minor girl.
15. For the purpose, Registrar General of this
High Court has to forward copies of this
judgment to the concerned authorities of the
State Government for doing the needful in
such cases.
16. Rest of the evidence regarding story and
history of incidents are not material at all.
17. PW-32, PW-33 and PW-35 at Exhs.10, 11 and 13
respectively are Police Officials and
Investigating Officers and, therefore, they
have disclosed their role in the
investigation and proved relevant documentary
evidence from Exhs.36 to 43 including FSL
Report etc. However, considering the
discussion of evidence as aforesaid, and more
particularly, when appellant could not rebut
evidence so as to prove his innocence, there
is no necessity to discuss such evidence in
minute details. However, so far as crossexamination
of Investigating Officer is
concerned, it is to be recorded, at the cost
of repetition that the Investigating Agency
should be careful and they should not indulge
in recording such type of statements when
victim has categorically denied to have
disclosed her consent in her statement.
18. The say of the accused in his Further
Statements at Exh.6 under Section 313 of the
Code of Criminal Procedure is also material
and enlightening the position of such type of
belief in the society, when accused has
categorically stated before the Court that
victim was in love with him and since her
family did not agree to such relationship,
they have filed a false complaint. It is
surprising to note that though the victim is
less than 12 years of age, the accused who is
of 22 years of age is claiming that they were
in love relationship since long time and that
parents of the victim were threatening him
and restricting him from meeting the victim,
but, thereafter, their love relationship
continued and, therefore, parents of the
victim has filed a false complaint. It has
been noticed that there are several cases of
similar nature in the Society and, therefore,
it would be appropriate for the Gujarat High
Court Legal Services Committee to include
such subject in legal literacy camp in
different area so as to explain to the people
that there should not be a relation with
minor girl which attracts the penal provision
and, thereby, they may be convicted and
sentenced even if minor girls have entered
into such madness of falling in love at such
age. So also, the minor girls needs to learn
and to realize that irrespective of emotional
results, they are not supposed to enter into
such activity which would otherwise result
into conviction of their own if it is in-fact
a love affair. However, it would be the
decision of the highest authority of such
committee to initiate appropriate steps.
19. For the purpose, Registrar General of this
High Court has to forward copy of this
judgment to the Member Secretary, Gujarat
State Legal Services Authority for doing the
needful in such cases.
20. The only evidence remains is in the form of
FSL report, though it is negative, it is not
much material since the age of the victim is
less than 12 years and, therefore, even if
there is penetration, there may be absence of
sperm in a vaginal swab and clothes of the
victim but when other evidence confirms the
offence as alleged, there is no reason to
interfere with the impugned judgment. It is
also obvious that in-fact appellant is
admitting the physical relation, since his
defence is of consent.
21. I have perused the impugned judgment in
detail. The Court has taken care of all
relevant aspects of the matter both, for
evidence and law point and assigned good
reasons for confirming conviction of the
accused. I do not see any reason to interfere
with such decision. Thereby, there is no
substance in the Appeal so as to disturb or
interfere in the impugned judgment of
conviction.
22. Thereby, the Appeal needs to be dismissed
being lack of merits. Hence, the Appeal is
hereby dismissed.
23. Record and Proceedings be sent back to the
concerned trial Court.
(S.G.SHAH, J.)
Print Page
Statements at Exh.6 under Section 313 of the
Code of Criminal Procedure is also material
and enlightening the position of such type of
belief in the society, when accused has
categorically stated before the Court that
victim was in love with him and since her
family did not agree to such relationship,
they have filed a false complaint. It is
surprising to note that though the victim is
less than 12 years of age, the accused who is
of 22 years of age is claiming that they were
in love relationship since long time and that
parents of the victim were threatening him
and restricting him from meeting the victim,
but, thereafter, their love relationship
continued and, therefore, parents of the
victim has filed a false complaint. It has
been noticed that there are several cases of
similar nature in the Society and, therefore,
it would be appropriate for the Gujarat High
Court Legal Services Committee to include
such subject in legal literacy camp in
different area so as to explain to the people
that there should not be a relation with
minor girl which attracts the penal provision
and, thereby, they may be convicted and
sentenced even if minor girls have entered
into such madness of falling in love at such
age. So also, the minor girls needs to learn
and to realize that irrespective of emotional
results, they are not supposed to enter into
such activity which would otherwise result
into conviction of their own if it is in-fact
a love affair. However, it would be the
decision of the highest authority of such
committee to initiate appropriate steps.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 64 of 2013
MAHESH CHELABHAI PARMAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 10/07/2015
1. Heard Ms. Meena Vyas, learned advocate for
appellant whereas Mr.K.L. Pandya, learned
Additional Public Prosecutor for the
respondent-State.
2. The appellant, being aggrieved and
dissatisfied by the judgment and order of his
conviction dated 1.9.2012 in Sessions Case
No.11 of 2012 by the learned Sessions Judge
of Ahmedabad City has preferred this Appeal.
By the impugned judgment, appellant is
convicted under Section 363 of the I.P.C. for
the period of 3 years RI with fine of
Rs.1,000/- and in default of payment of fine,
further SI of 1 month with conviction under
Section 366 for the period of 5 years RI with
fine of Rs.2,000/- and 2 months, whereas, he
is further convicted for 7 years of RI with
fine of Rs.3,000/- and 2 months under Section
376 of the Code.
3. The factual details and story of
investigation has been well explained in the
impugned judgment as well as in the memo of
Appeal and hence, considering the age of the
victim and nature of incident, its
reproduction is avoided.
4. I have also perused the Record and
Proceedings in the form of paper-book, the
impugned judgment and also considered the
rival submissions to ascertain the validity
and legality of the impugned judgment.
5. At the outset, it cannot be ignored that so
far as incident is concerned, it involves
abduction and rape of minor girl aged about
12 years by the appellant and unfortunately
though victim is minor, the defence is
regarding her consent. It is settled legal
position that consent of minor is not a valid
consent at all and even if there is evidence
regarding such consent by minor, appellant
may not get benefit of such evidence since
law specifically provides that consent by
minor is not a valid consent. In view of such
facts and circumstances, if there is evidence
regarding abduction and rape of a minor girl
then appellant – accused would have no escape
from conviction.
6. In view of above settled legal position, the
evidence also needs to be examined for such
limited purpose only, so as to examine that
whether victim is minor or not and that
whether her consent is valid and permissible
under the law for the appellant to indulge
into such physical relationship with a minor
girl or not.
7. The prosecution has examined as many as 14
witnesses and produced 16 documentary
evidence. Amongst them, the material evidence
is at Exh.46, a certificate issued by
Principal of Shahidvir Vinodbhai Solanki,
Vadaj School No.4, Vadaj. Since it is a
Government School, there is no reason to
suspect its record and register which is
produced and proved on record at Exh.47. Such
register at Exh.47 shows the name of the
victim at Sr. No.8289 wherein her date of
birth is registered as 15.7.2000, which fact
has been certified in a form of certificate
which is proved at Exh.46 by PW-14 at Exh.45
namely; Yogini Jashvantlal Mehta, who is
serving as a Principal of such school since
the year 2006. Her deposition is recorded on
7.8.2012. Therefore, she is well experienced
Principal of school and hence she has in
categorical terms disclosed the fact
regarding date of birth of the victim and
proves necessary documents at Exh.31 being
Progress Report of the victim and Exhs.46 and
47 which are referred hereinabove. Thereby,
there is clear evidence on record regarding
date of birth of the victim as 15.7.2000.
Since incident has taken place on 20.9.2011,
it is clear and certain that the victim is
even below the age of 12 years on the date of
incident. Therefore, even after lengthy cross
examination, it could not be proved that
victim is aged about 18 years or at-least
above 16 years. Thereby, there is no reason
to discuss other evidence about history and
story regarding allegations and offence for
which the appellant has been convicted. So
far as cross examination of this witness is
concerned, though she is cross examined at
length and though an attempt was made to
prove that there is authenticity of the date
of birth of the victim, scrutiny of entire
cross examination goes to show that an
attempt to create a doubt in such evidence
was certainly made but ultimately, appellantaccused
could not rebut her evidence so as to
prove that date of birth of the victim is
either incorrect or manipulated in any manner
whatsoever. So far as practice and procedure
in maintaining such registers and its nature
are concerned, as it is reflected from the
cross examination, it does not prove in any
manner whatsoever that such documents are
either forged or created with intention to
prove some fact though it is not correct and
when independent witness has nothing to do
either with the accused or with the victim,
there is no reason to discard such evidence.
8. At this stage, it would be appropriate to
recollect the decision of the Hon'ble Supreme
Court in the case of State of Chhattisgarh v.
Lekhram reported in 2006(5) SCC 736, wherein,
it is held that a register maintained in a
school is admissible evidence to prove date
of birth of the person concerned in terms of
Section 35 of the Evidence Act. Such dates of
birth are recorded in the school register by
the authorities in discharge of their public
duty. Even if an entry in the school register
may not be conclusive but it has evidentiary
value and when it is corroborated by oral
evidence, there is no reason to discard such
evidence so as to consider the age of the
victim in such cases of rape.
9. In view of above facts and circumstances, now
when age of the victim is certainly below 12
years, the rest of the evidence is required
to be scrutinized in light of such fact only,
so as to avoid discussion of each and every
small issue in defence.
10. PW-1 at Exh.8, PW-2 at Exh.12, PW-3 at Exh.14
and PW-12 at Exh.34 are panch witnesses
regarding clothes of the accused, panch
witness for collecting sample for FSL and
panch witness of clothes of the victim
respectively. They all supported the case of
prosecution and, thereby, proves the relevant
documents being Panchnama at Exhs.9, 13, 15
respectively. Since all these witnesses have
Page 6 of 14R/CR.A/64/2013 CAV JUDGMENT
supported the case of prosecution, though
they all have been cross examined at length,
accused could not rebut the evidence of the
witness so as to prove his innocence.
11. PW-4 at Exh.19, PW-5 at Exh.20 and PW-6 at
Exh.21 are relatives of the victim being her
sister-in-law, brother and mother. Therefore,
they have also supported the case of
prosecution as per their statement before the
Police and though were cross examined at
length, accused could not rebut the evidence
of the witness so as to prove his innocence.
Amongst them, PW-6 being mother of the victim
has filed a complaint which she proves at
Exh.22. She also discloses the age of the
victim as 12 years at the time of incident
which is corroborated by documentary evidence
at Exhs.46 and 47, for the age of the victim.
12. PW-7 at Exh.23 is Dr. Bhairvi Balvant Pande.
Though, she has proved medical examination of
the victim by her, it is her say that victim
has disclosed her consent regarding running
away with the accused and also for the sexual
relationship with the accused. In cross
examination, she supports the defence by
admitting that victim was found to be major
and, therefore, she has not opined for
ossification test and radiologic test. By and
large, her deposition is supporting the
accused both, in examination-in-chief as well
as in cross-examination and she proves her
certificate at Exh.24, wherein, also she has
endorsed about the consent of victim. But the
most important point she has failed to
realize is the fact about the age of the
victim in her certificate at Exh.24. She did
not dare to disclose the age of the victim in
her deposition except telling that she seems
to be major. I fail to understand and realize
that how a Medical Officer and that too a
lady Medical Officer fails to realize and
consider the age of the victim who was less
than 12 years and how she recognized her as a
major person and then in that case, why she
has not recorded her age in certificate. Her
evidence is negativated on her own when she
deposed that there was no evidence of sexual
intercourse, as against that, she dared to
endorse in a certificate itself that the
victim has stated her that she had a physical
relationship with the accused during the
period of her abduction. Therefore, though
evidence of said witness is supporting the
defence in all manner, it is not only
untrustworthy but needs to be deprecated and
even if we believe such evidence as it is,
then in view of the evidence of age of the
victim being less than 12 years, her consent
recorded by such Medical Officer is not
material. The certificate at Exh.24 is dated
5.10.2011, though victim was examined on
24.9.2011. The witness has also proved on
record the Police Yadi dated 24.9.2011 at
Exh.25 for examining the victim. Irrespective
of discarding such evidence, I could not
resist myself from recording that in-fact the
appointing authority of such Medical Officer
should be informed about such attitude of
such Doctors and at the relevant time, itself
Investigating Agency should certainly
initiates appropriate proceeding against such
Doctor, when Doctor has failed to perform
ossification and radiologic examination to
ascertain the age of the victim and for
recording a consent by a minor victim in such
heinous crime.
13. As against that, the evidence of another
Doctor being PW-8 at Exh.26 namely; Dr.Yasmin
Mohmadsafi Hussaini confirms that he has
examined the accused on the same day,
wherein, for the history of incident, he has
admitted about the incident but he denied to
have entered into physical relationship with
the victim. Since there is nothing against
the accused by such witness, no further
discussion is required except to note that
the witness has proved the medical
certificate at Exh.27.
14. PW-9 at Exh.30 is victim. If we peruse her
deposition, it categorically goes to show
that she has never intended to give consent
either for abduction or for entering into
physical relationship with the accused when
she categorically deposed that she knows the
accused because he used to visit a house in
neighborhood and when accused was smiling at
her, she was also smiling but she never knew
that accused will commit such an act with
her. She is minor and, therefore, even if it
is submitted that she has not resisted or she
has agreed to go with the accused, her
consent cannot be considered as such but on
the contrary, she has specifically deposed
that even though she refused to do it, the
accused has entered into bad relation with
her and at that time, when she has resisted,
the accused has committed an offence of rape
in the name of marriage. Thereby, for
entering into such relationship even
temptation of marriage that too with a minor
girl, certainly amounts to commission of
offence of rape, irrespective of consent of
the minor. She denied the suggestion that she
has stated to the Police in her statement
that she entered into physical relationship
by her own consent or that she has disclosed
to the Doctor about her consent both, for
abduction and for physical relationship.
Therefore, both the Investigating Agency and
Doctor are required to be deprecated for
recording such a statement of a minor girl.
15. For the purpose, Registrar General of this
High Court has to forward copies of this
judgment to the concerned authorities of the
State Government for doing the needful in
such cases.
16. Rest of the evidence regarding story and
history of incidents are not material at all.
17. PW-32, PW-33 and PW-35 at Exhs.10, 11 and 13
respectively are Police Officials and
Investigating Officers and, therefore, they
have disclosed their role in the
investigation and proved relevant documentary
evidence from Exhs.36 to 43 including FSL
Report etc. However, considering the
discussion of evidence as aforesaid, and more
particularly, when appellant could not rebut
evidence so as to prove his innocence, there
is no necessity to discuss such evidence in
minute details. However, so far as crossexamination
of Investigating Officer is
concerned, it is to be recorded, at the cost
of repetition that the Investigating Agency
should be careful and they should not indulge
in recording such type of statements when
victim has categorically denied to have
disclosed her consent in her statement.
18. The say of the accused in his Further
Statements at Exh.6 under Section 313 of the
Code of Criminal Procedure is also material
and enlightening the position of such type of
belief in the society, when accused has
categorically stated before the Court that
victim was in love with him and since her
family did not agree to such relationship,
they have filed a false complaint. It is
surprising to note that though the victim is
less than 12 years of age, the accused who is
of 22 years of age is claiming that they were
in love relationship since long time and that
parents of the victim were threatening him
and restricting him from meeting the victim,
but, thereafter, their love relationship
continued and, therefore, parents of the
victim has filed a false complaint. It has
been noticed that there are several cases of
similar nature in the Society and, therefore,
it would be appropriate for the Gujarat High
Court Legal Services Committee to include
such subject in legal literacy camp in
different area so as to explain to the people
that there should not be a relation with
minor girl which attracts the penal provision
and, thereby, they may be convicted and
sentenced even if minor girls have entered
into such madness of falling in love at such
age. So also, the minor girls needs to learn
and to realize that irrespective of emotional
results, they are not supposed to enter into
such activity which would otherwise result
into conviction of their own if it is in-fact
a love affair. However, it would be the
decision of the highest authority of such
committee to initiate appropriate steps.
19. For the purpose, Registrar General of this
High Court has to forward copy of this
judgment to the Member Secretary, Gujarat
State Legal Services Authority for doing the
needful in such cases.
20. The only evidence remains is in the form of
FSL report, though it is negative, it is not
much material since the age of the victim is
less than 12 years and, therefore, even if
there is penetration, there may be absence of
sperm in a vaginal swab and clothes of the
victim but when other evidence confirms the
offence as alleged, there is no reason to
interfere with the impugned judgment. It is
also obvious that in-fact appellant is
admitting the physical relation, since his
defence is of consent.
21. I have perused the impugned judgment in
detail. The Court has taken care of all
relevant aspects of the matter both, for
evidence and law point and assigned good
reasons for confirming conviction of the
accused. I do not see any reason to interfere
with such decision. Thereby, there is no
substance in the Appeal so as to disturb or
interfere in the impugned judgment of
conviction.
22. Thereby, the Appeal needs to be dismissed
being lack of merits. Hence, the Appeal is
hereby dismissed.
23. Record and Proceedings be sent back to the
concerned trial Court.
(S.G.SHAH, J.)
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