JUDGMENT : S.G. Shah, J. Heard Ld. Advocate Mr. Pratik Barot for the appellant and Ld. APP Ms. Chandarana, for the respondent - State. Perused the record and proceedings as well as paper book. 2. By impugned judgment and order dated 25/6/2008 rendered in Sessions Case No. 7 of 2008 by the Addl. Sessions Judge and Presiding Officer, F.T.C. No. 2, Gandhinagar Camp at Kalol, has convicted the appellant under sections 363, 366 and 376 of the Indian Penal Code [IPC]. The trial Court has awarded sentence of one year, three years and seven years respectively for above sections with fine of Rs.200/-, Rs.300/- and Rs.500/- and in default of payment of fine, rigorous imprisonment for one month, two months and six months respectively. However, all such sentences are ordered to be undergone concurrently and, therefore, maximum sentence is seven years only. 3. The story of complaint and investigation is well described in the impugned judgment as well as pleadings in the appeal and, therefore, its reproduction is avoided since it would be taken care of while appreciating the evidence. However, for appreciating evidence, if we peruse the record, the basic facts of the case emerging from the charge at exh. 2, makes it clear that on 4/9/2007 the appellant had abducted a minor girl - victim aged about 13 years and 6 months only with coercion and temptation to go to funfair [Mela] and then taken her to different places for couple of days, kept her in his custody and during such period he committed sexual intercourse and thereby offence of rape with a minor victim. Therefore, for such heinous crime, the law is well settled that if there is evidence of the victim herself regarding commission of offence as such and if such evidence is otherwise trustworthy and if there is no evidence in rebuttal to negative the evidence of the victim, then it may not require any further corroboration for confirming conviction of such an accused who has taken disadvantage of his position and disturbed the woman, in the present case, a minor girl. 4. 4. Before scrutinising the evidence on record, it cannot be ignored that though sentence is under section 376 of the IPC and thereby minimum sentence of seven years is imposed, in fact looking to the facts, circumstances and evidence on record, the offence certainly falls under section 376 [2][f] of the IPC and in that case, the minimum prescribed punishment is 10 years i.e., imprisonment for a term which shall not be less than 10 years for committing rape by a person who is either relative, guardian or teacher or a person in a position of trust or authority towards the woman. Looking to the evidence of the victim girl, it becomes clear that she trusted the appellant - accused as her uncle and who has asked to take her to the funfair [Mela] for enjoyment in funfair only and thereafter, she was not only molested but taken to different villages during which when the appellant has slept with the minor girl and if she is molested in addition to physical relationship, provisions of section 376[2][f] of the IPC would certainly get attracted and thereby in fact conviction should be under such section where imprisonment shall not be less than 10 years. 5. If we scrutinise the evidence on record, before scrutinising the other evidence, it would be relevant to refer the evidence of victim herself which is at exh. 33 as PW No. 9. It is her categorical statement on oath that on the day of the incident i.e. 4/9/2007 at about 2.30 to 3.00 pm, when she had been to Sim of her village to answer call of nature, the appellant has approached her and asked that there is a funfair [Mela] of Vasania Mahadev and, therefore, told her that let us go to such funfair. Victim being 13 years old girl, who certainly did not realise the intention of the person whom she was calling as an uncle and, therefore, being a child, she has agreed to go with the appellant, who was treated as uncle and, therefore, it cannot be said that there is a consent by the girl. It is also not to be ignored that the age of the appellant was more than 22 years and, therefore, his intention may be obvious to get disadvantage of lonely girl. It is also not to be ignored that the age of the appellant was more than 22 years and, therefore, his intention may be obvious to get disadvantage of lonely girl. It is the say of the victim in her deposition that at the relevant time, her father was in the field, whereas her mother and brother had been to the house of her maternal uncle. Therefore, the elders of the village are certainly guardian of the minor. It is further stated by the victim that instead of taking to Vasania Mahadev funfair, the appellant has taken her to village Indrapura and when she has asked that why she was taken to village Indrapura, the appellant has convinced her that he had to meet his friend and thereafter they will go to the funfair. In between, it was night time and, therefore, as disclosed by the victim, they stayed in the field of the friend of the appellant where the appellant has committed physical intercourse with her and on the next day, she was taken to Nardipur and for all this time, the appellant was molesting the victim on different parts of her body and keeping her mouth closed by one hand. It is categorically deposed by the victim that the appellant has repeatedly committed the offence of rape by physical intercourse and he has taken her from Indrapura to Nardipur and again back to Indrapura and Kalol. It is further stated that meanwhile her relatives had reached at Indrapura in search of them and thereafter she was taken to Balva, but ultimately her relatives have caught them. It is her say that she has disclosed all such facts to her parents and then to the police and that police has recorded her statement and that she identified her clothes which were recovered as Muddamal by the police from her. She has also shown the place of incident to the police and identified the accused in the Court room disclosing that she knows him as Baldev uncle. The victim was cross-examined at length, wherein it comes on record that she is able to know what is good and bad for her and that she is not administering the household in absence of her father. 6. The victim was cross-examined at length, wherein it comes on record that she is able to know what is good and bad for her and that she is not administering the household in absence of her father. 6. But the most unfortunate part of the cross-examination is uncertain and unwarranted defence and suggestions to a young girl when it was asked that she was habituated to have physical intercourse. Such cross-examination requires to be deprecated and practically costs should be imposed upon the accused appellant. The appellant has gone to the extent by asking and trying to prove from the victim that in fact she was allowed by her brother and sister-in-law to go with the accused and to enter into such physical relationship. For such permission, it was suggested that even sister-in-law of the victim has such relations with the appellant. The trial Court should be careful while allowing the counsel for the accused to cross-examine the witness and more particularly such victim. All such incidents are nothing but humiliation of womanhood and in this case, it certainly amounts to defaming the sister-in-law of the victim and, therefore, all such type of questions should not be allowed, irrespective of the general principle of criminal jurisprudence that the accused has right to ask any question in cross-examination so as to verify the truthfulness and veracity of the witness. It is certain that such general principle of criminal jurisprudence could not apply to the victim like present i.e. 13 years old girl who was abducted for couple of days by a person whom she was calling uncle and who had committed such heinous crime. 7. In any case, the cross examination of the victim is not going towards any specific defence and reading of entire evidence makes it clear that the appellant has tried to take advantage of all types of defense, irrespective of the fact that they are adverse to and conflicting with each other, inasmuch as there cannot be both the defence viz. non-commission of offence at all and [2] consent. non-commission of offence at all and [2] consent. In the present case, during cross examination, the appellant has tried to prove that the victim could not recognise the accused because of the darkness so far as offences under sections 363 and 366 of the IPC are concerned, whereas so far as offence under section 376 is concerned, he is relying upon the consent, both by the victim as well as her sister-in-law, who was not present at the place from where victim was abducted. Thereby, the cross examination shows that practically the appellant has admitted the position that the victim was with him for 3 to 4 days, but his defense is to the effect that he has taken her by consent. However, there is no evidence of any such consent by family members of the victim and consent by victim herself is not material since she was minor on the date of incident. Therefore, when the appellant admits about presence of the victim with him, practically he admits the offence under sections 363 and 366 of the IPC. 8. So far as offence under section 376 of the IPC is concerned, it is settled legal position that the evidence of full penitration upon minor girl is not material, but if the evidence otherwise proves that there was intercourse, then even evidence of victim alone is sufficient to hold the accused guilty of such offence. Similar is the position in the present case since appellant herein has in categorical terms deposed that the appellant has committed such offence. Moreover, the appellant has admitted, while cross-examining the victim that sister-in-law of the victim has allowed her custody with the appellant because of their illicit relations and for similar purpose. Thereby, practically the appellant has also admitted the act of physical relationship with the victim. Therefore, he has no escape from the conviction since such defense is not only worse but it results into admission of guilt. 9. When evidence of appellant is confirming the guilt of the appellant, rest of the evidence, may not be much material, however, the sum and substance of such other evidence is as under. 10. PW No. 1 at exh. 9. When evidence of appellant is confirming the guilt of the appellant, rest of the evidence, may not be much material, however, the sum and substance of such other evidence is as under. 10. PW No. 1 at exh. 6 is father of the victim, who has narrated the story of the victim as conveyed to him and only because he could not disclose the date of birth of the victim, when age of the victim is only 13 years and thereby there is no probability of her being major in any case, such admission could not confirm the acquittal. He proves FIR and birth date certificate at exhs. 8 and 9 respectively. It is now on record that date of birth of the victim is 2/4/1993 as per birth date certificate issued by Talati-cum-Mantri. Thus witness has perfectly supported the case of prosecution as per complaint. Though he was cross-examined at length, the appellant could not rebut his evidence so as to prove his innocence. 11. PW No. 2 at exh. 10 and PW No. 3 at exh. 14 are panch witnesses of the recovery Panchnama of the clothes of the victim and the accused. Though they turned hostile, it would not change the situation because while not disclosing entire story of Panchnama in detail, they have admitted their signatures and fact that such Panchnama was drawn, so also the slip upon Muddamal articles was admitted. Thereby, in absence of any evidence in rebuttal that clothes are not of the appellant and the victim, this evidence would not help the appellant. 12. Whereas PW No. 4 at exh. 15 is panch witness of recovery Panchnama of clothes of the victim. She supports the investigation and facts of the Panchnama and proves the Panchnama and slips at exh. 16 to 19. Though he was cross-examined at length, the appellant could not rebut his evidence so as to prove his innocence. 13. PW Nos. 5 and 6 at exhs. 20 and 22 are panch witnesses of the places of incident. They also support the case of the prosecution and investigation and proves the Panchnama at exhs. 21 and 23. Though they were cross-examined at length, the appellant could not rebut their evidence so as to prove his innocence. 14. PW No. 7 at exh. 25 is Doctor, who has examined the appellant and collected samples from him including sperm, blood, etc. 21 and 23. Though they were cross-examined at length, the appellant could not rebut their evidence so as to prove his innocence. 14. PW No. 7 at exh. 25 is Doctor, who has examined the appellant and collected samples from him including sperm, blood, etc. It is his say that during his examination and interrogation, the appellant has admitted the story of complainant regarding physical relationship with the victim. He proves medical certificate at exh. 28 and police Yadi at exh. 27. Though he was cross-examined at length, the appellant could not rebut his evidence so as to prove his innocence. 15. PW No. 8 at exh. 29 is Doctor M.B. Makwana, who has examined the victim. He has categorically stated that the victim was examined radiologically and as per his opinion, her age was between 14 to 15 years. Though he could not confirm about the commission of offence of rape, he discloses result of clinical examination which is not required to be reproduced, but he also discloses the story of the victim as narrated by her which is also in corroboration of her own evidence and thereby it confirms that the girl has disclosed the commission of offence immediately. He proves relevant documents viz. Radiologist's report, report of FSL as well as certificates at exhs. 31 and 32. Both such medical evidence of the appellant and victim corroborate the story of the prosecution. 16. PW No. 10 at exh. 39 is Talati-cum- Mantri, who has proved birth date certificate at exh. 9 as well as entry of relevant birth and death register at exh. 36, which prove the aged of the victim. Though he was cross-examined at length, the appellant could not rebut his evidence so as to prove his innocence. 17. PW Nos. 12 and 13 at exhs. 39 and 40 respectively are Police Officers who have registered the FIR and forwarded it for further investigation. They proved the paper work for the purpose at exh. 41. Though they were cross-examined at length, the appellant could not rebut their evidence so as to prove his innocence. 18. PW Nos. 14 and 15 at exhs. 43 and 50 are Investigating Officers. One of them has completed almost investigation and hence narrated the story and proved relevant documentary evidence pertaining to investigation as well as FSL report at exhs. 44 to 48. 18. PW Nos. 14 and 15 at exhs. 43 and 50 are Investigating Officers. One of them has completed almost investigation and hence narrated the story and proved relevant documentary evidence pertaining to investigation as well as FSL report at exhs. 44 to 48. Whereas other Investigating Officer has simply registered FIR at the relevant time. Though they were cross-examined at length, the appellant could not rebut their evidence so as to prove his innocence. 19. Though FSL report is not positive i.e., presence of sperm was not found either on the private part or clothes of the victim, the discussion of evidence hereinabove cannot be ignored. It is also clear and obvious that when the victim is minor, full penitration may not have been completed and, therefore, there may not be positive mark of presence of man's sperm either on the clothes or on the private parts of the victim. However, this alone would not be a conclusive proof to confirm the acquittal in such case, more particularly when the victim is minor and when she has deposed in categorical terms about the activities of the appellant which otherwise amount to commission of offence of rape and, therefore, only because of absence of sperms on the body and clothes of the victim, the appellant cannot be acquitted. 20. Considering the above discussed position, Ld. Advocate for the appellant has alternatively submitted that at least sentence of the appellant may be reduced considering his young age since he has yet to live his long life. In support of such submission, he is relying upon the decision of the Division bench of this High Court rendered in the case of Lavjiji S/o. Chaturji Kamaji Thakore v. State of Gujarat reported in 2014 [2] G.L.H. 153. With due respect, though it is a decision by the Division Bench, I am unable to agree with the proposition that in a given set of evidence and circumstances there may be lesser punishment than minimum prescribed under the statute and that only condition is to the effect that for imposing lesser punishment, the Court shall assign reasons. However, what is emphasised by the Ld. Advocate for the appellant is to the effect that when Division Bench has approved lesser punishment than prescribed, in such reported case, it should be followed in all similar cases. However, what is emphasised by the Ld. Advocate for the appellant is to the effect that when Division Bench has approved lesser punishment than prescribed, in such reported case, it should be followed in all similar cases. With due respect, this is not the ratio of the judgment in a reported case the victim was aged about 16 years and Court has considered that lesser punishment can be justified if ingredients of force, violence, enticement and lack of will or consent are absent in the evidence. However, in the present case, all such ingredients of law cannot be pleaded by person when he abducted a 13 years old minor girl. So far as observation regarding mindset of the accused in committing offence is concerned, as discussed hereinabove, the manner and questions asked in the cross examination to the victim by the appellant makes it clear that it is contrary to the facts of reported case as his mindset to commit such activity and suggestion that look your sister-in-law has allowed you to accompany him for such relationship because she [sister-in-law of the victim] has similar relations with the appellant, shows that the mindset of the appellant is altogether different and proned to commit such heinous crime. 21. Other relevant judgments on the issue are as under : I. State of M.P. v. Babbu Barkare alias Dalap Singh reported in AIR 2005 SC 2846 II. State of Chhatisgarh v. Lekhram reported in [2006] 5 SCC 736 III. State of Haryana v. Janak Singh reported in [2013] 9 SCC 431. The aforesaid judgments confirm that the conviction of the appellant cannot be set aside or even sentence cannot be reduced in given facts and circumstances. Thus, when there are clear decisions of the Hon'ble Supreme Court, I cannot rely upon a solitary judgment cited by the appellant, though it is rendered by the Division Bench. 22. Therefore, there is no substance in the appeal and hence the same is dismissed. R & P be sent to the concerned trial Court forthwith. Appeal Dismissed.