R/CR.

A/64/2013

CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL

NO. 64 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH
=====================================================
1 Whether Reporters of Local Papers may be
Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ?

Yes

3 Whether their Lordships wish to see the

fair copy of the judgment ?

No

4 Whether this case involves a substantial

question of law as to the interpretation
of the Constitution of India or any
order made thereunder ?

No

=====================================================
MAHESH CHELABHAI PARMAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
=====================================================
Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MS MEENA VYAS, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, APP for the Respondent(s) No. 1
=====================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 10/07/2015
CAV JUDGMENT

1.

Heard Ms. Meena Vyas, learned advocate for

appellant
Additional

whereas
Public

Mr.K.L.

Pandya,

Prosecutor

learned

for

the

aggrieved

and

respondent-State.

2.

The

appellant,

being
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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

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.

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

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far

as

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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,

certificate

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issued

by

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Principal
Vadaj

of

School

Government
suspect

Shahidvir
No.4,

School,

its

record

Vinodbhai

Vadaj.
there
and

Solanki,

Since

is

no

it

is

reason

to

which

is

register

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

categorical

school

and

hence

terms

disclosed

she

has

the

in

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

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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,

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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

regarding
witness
panch

at

Exh.34

clothes

for

of

collecting

witness

of

are
the

panch

accused,

sample

clothes

witnesses

of

for
the

panch

FSL

and

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

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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

examination,

she

the

accused.

supports

the

In

cross

defence

by

admitting that victim was found to be major

and,

therefore,

she

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has

not

opined

for

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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

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,

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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

24.9.2011.

The

record

the

victim

witness

Police

was

has

Yadi

examined

also

dated

on

proved

on

24.9.2011

at

Exh.25 for examining the victim. Irrespective

of

discarding

such

evidence,

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

ossification
ascertain

and

the

has

failed

radiologic

age

of

the

to

perform

examination
victim

and

to
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
examined

Hussaini
the

confirms

accused

on

that

the

he

same

has
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

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the

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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

entering

name
into

of

marriage.
such

Thereby,

relationship

for
even

temptation of marriage that too with a minor

girl,

certainly

amounts

to

commission

of

offence of rape, irrespective of consent of

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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

Report

etc.

Exhs.36

to

However,

43

including

considering

FSL
the

discussion of evidence as aforesaid, and more

particularly, when appellant could not rebut
evidence so as to prove his innocence, there

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is no necessity to discuss such evidence in

minute

details.

examination

However,

of

so

far

Investigating

as

cross-

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

victim

has

such

type

of

categorically

statements
denied

to

when
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,

continued

and,

their

love

therefore,

relationship

parents

of

the

victim has filed a false complaint. It has

been noticed that there are several cases of

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similar nature in the Society and, therefore,

it would be appropriate for the Gujarat High
Court
such

Legal

Services

subject

in

Committee

legal

to

literacy

include
camp

in

different area so as to explain to the people

that

there

should

not

be

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

decision

affair.
of

the

However,
highest

it

would

authority

be
of

the
such

committee to initiate appropriate steps.

19. For the purpose, Registrar General of this

High

Court

judgment

to

has
the

to

forward

Member

copy

Secretary,

of

this

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

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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

detail.

perused
The

the

Court

relevant

aspects

evidence

and

reasons

for

impugned

has

of

law

taken

the

point

confirming

judgment
care

matter
and

in

of

all

both,

for

assigned

conviction

good

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

needs

be

of

conviction.

22. Thereby,

the

Appeal

to

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.)
*

Vatsal

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