Important Point
Minor is not competent to give consent.

Rajesh H. Shukla, J.

1. The present Appeal is directed against the impugned judgment and order rendered in Sessions Case No. 100 of 2013 by the learned Additional Sessions Judge, Bhavnagar dated 31.3.2014 recording conviction of the Appellant/Original Accused for the offence under Sections 363, 366 and 376 of the Code of Criminal Procedure imposing the sentence and fine as stated in detail in the impugned judgment and order.

The facts of the case briefly summarized are as follows:

2. The Appellant/Original Accused No. 1 is said to have abducted and enticed away the minor daughter of the complainant aged about 15 years and lured her for marriage and also took her away and moved from place to place and committed rape without her consent and thereby committed offence under Sections 363, 366 and 376 of the Indian Penal Code.

3. Heard learned Advocate Shri Hardik A. Dave for the Appellant and learned APP Ms. Hansa Punani for the Respondent - State of Gujarat.

4. Learned Advocate Shri Hardik A. Dave referred to the testimony of the complainant father P.W.-1 at Exh. 9 and his complaint at Exh. 10. Learned Advocate Shri Dave submitted that the complainant - father has stated about the date of birth as 12.12.1996. However, he submitted that it was an affair and the daughter of the complainant victim had eloped with the Appellant/Original Accused No. 1. He submitted that she had attained the age of discretion, and in fact, the ossification test reveal that her age could be between 15-17 years. For that purpose he referred to the testimony of Dr. Vijaybhai Jivrajbhai Kanani P.W.-3 at Exh. 15, who is a Medical Officer and pointedly referred to his testimony and submitted that the ossification test was made, where the age of the victim is stated to be between 15-17 years. Learned Advocate Shri Dave submitted that in the history given before the Doctor she has stated that she had accompanied the Appellant/Original Accused No. 1 at different places and they had stayed at Botad for about one month. Learned Advocate Shri Dave therefore submitted that it is a case of an affair and the benefit of ossification test regarding age of the victim may be given to the Appellant/Original Accused No. 1. He submitted that the age of the victim was very relevant for the purpose of considering the offence, for which, he referred to the testimony of Dr. Vijaybhai Jivrajbhai Kanani P.W.-3 at Exh. 15 and also referred to the testimony of Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29 [Sub-Registrar, Municipal Corporation of Bhavnagar]. Learned Advocate Shri Dave pointedly referred to the testimony of Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29 and submitted that the entry in the register is made without proper verification, which is admitted, and therefore, the entry or the extract of the birth and death register at Exh. 30 and the birth certificate produced at Exh. 31 are not reliable. Learned Advocate Shri Dave therefore submitted that the victim in her testimony has stated that her date of birth is 12.12.1996. However, she had attained the age of discretion as she had an affair with the Appellant/Original Accused, which is evident from her own testimony at Exh. 11. Learned Advocate Shri Dave pointedly referred to the testimony of the victim P.W.-2 at Exh. 11 where she has stated that she was taken forcibly on a motorcycle, which is not believable. Again she has stated that they had gone from Ahmedabad to Ajmer and from Ajmer to Surat and other places, where she had sufficient opportunity to raise an alarm or ask for help. In fact, referring to the cross-examination, learned Advocate Shri Dave submitted that as admitted by her in her testimony that on her birthday, gifts were given and even a simcard was also given by the Appellant/Original Accused No. 1. He therefore submitted that this conduct is required to be considered. Again, learned Advocate Shri Dave submitted that as stated by her in her testimony that the Appellant/Original Accused No. 1 has not