JUDGMENT : S.G. Shah, J. 1. Heard Ld. Advocate Mr. Pratik Jasani for the appellant and Ld. APP Ms. Chandarana for the respondent - State. 2. The appellant has challenged his conviction by impugned judgment and order dated 31/1/2012 in Sessions Case No. 14/2011, whereby the Ld. Addl. District & Sessions Judge, Amreli has awarded the following sentence : Sr No. Conviction u/S. of IPC Sentence awarded RI/SI Fine Imposed (In Rs.) In default of Payment of fine (Sr.) 1 452 1 Yrs RI 1,000/- 1 month SI 2 325 2 Yrs RI 2,000/- 2 month SI 3 376 7 Yrs RI 5,000/- 5 month SI 4 506(1) 6 Month RI 500/- 1 month SI 5 135 BP Act 4 Month RI 100/- 5 month SI However, all such sentences are ordered to run concurrently and thereby the appellant has to undergo imprisonment for maximum period of seven years since he has already deposited the amount of total fine being Rs. 8,600/-. Jail record shows that considering his date of arrest and set off granted by the trial Court for the custody during the trial as on date, the appellant has undergone imprisonment of almost three years and four months. 3. The prosecution case is to the effect that on the date of incident i.e. 26/10/2010 when the victim was alone at her house, the appellant has trespassed her house and committed rape upon her and while committing offence of rape, he used such force that it resulted into fracture of hand of the victim, who was about 16 years of age at the relevant time. The charge also discloses the use of knife by the accused at the relevant time to threaten the victim. 4. With the above allegations, charge was framed at exh. 6 and prosecution has examined 14 witnesses with 22 documentary evidence to prove charge. 5. Prima-facie when the victim is minor and when incident of rape is committed by using force and thereby when there is least chance of any other defense like consent, etc., it would be difficult to believe the defense version which is to the effect that no incident has taken place at all as alleged. However, to scrutinize the conclusion of conviction by the Sessions Court, one has to examine the entire evidence to ascertain that whether there is sufficient evidence to confirm conviction or not. 6. However, to scrutinize the conclusion of conviction by the Sessions Court, one has to examine the entire evidence to ascertain that whether there is sufficient evidence to confirm conviction or not. 6. P.W. No. 1 - Dr. Jigneshbhai Gohil examined at exh. 9 has examined the victim on the next day of the incident and it is his say that when victim was brought to him, during her examination the victim has categorically disclosed before him as history of the incident that on previous night and before 3/4 days the accused has committed rape upon her by force. Though no other injury was noted by him on the body of the victim, he found fracture of radius bone of right hand and, therefore, he collected the specimen to be examined by Forensic Science Laboratory [FSL] and proved necessary documents at exhs. 10 to 14, which include injury certificate, police Yadi, case papers and report of samples collected by him. If we peruse exh. 11, case papers, there is categorical endorsement by the witness in the column of 'history of injury' that when the appellant has committed rape upon the victim on previous night and twisted her hand to such an extent that there was fracture of radius bone. Same fact is disclosed in the medical certificate at exh. 12. During his cross examination, he denies the suggestion that he recorded history as per the police Yadi, but confirms that if there is no injury on internal part of vagina, it can be said that there may not be a forceful intercourse and also admits that there are no other marks of injuries. Therefore, irrespective of evidence of rape, the fact remains that there is a fracture of radius with a story by the victim that she was raped and her hand was twisted to such an extent that it resulted into fracture of radius bone. 7. P.W. No. 2 - Pravinbhai Becharbhai Zala examined at exh. 18 is panch witness of panchnama of the place of incident and he proves the panchnama at exh. 19. He specifically supports and confirms drawing of panchnama as per prosecution case and confirms that he as well as other panch Ashokbhai have signed on such panchnama. However, place of panchnama is not clutching evidence in such a case when it was drawn afterwards. 8. Similarly P.W. No. 3 - Dudabhai Bhikhabhai examined at exh. 19. He specifically supports and confirms drawing of panchnama as per prosecution case and confirms that he as well as other panch Ashokbhai have signed on such panchnama. However, place of panchnama is not clutching evidence in such a case when it was drawn afterwards. 8. Similarly P.W. No. 3 - Dudabhai Bhikhabhai examined at exh. 20 is panch witness of panchnama of recovery of clothes of the victim. He also supports the prosecution story and investigation that how clothes of the victim were recovered during investigation. Though the appellant could not rebut the evidence of P.W. No. 2, at least P.W. No. 3 has admitted that prior to such incident, there was dispute between the families of the accused and victim and at that time members of both the sides have sustained fractures and criminal cases were filed. However, such incident had taken place before 6 to 7 years. 9. P.W. Nos. 4 and 7 - Fakrudinbhai Akbaralibhai and Nitinbhai Govindbhai examined at exhs. 22 and 27 are panch witnesses of the samples collected both, from the victim and accused, but they deny their role in the activities narrated in such panchnama at exh. 23. therefore, they were declared hostile and thereby there is doubt regarding proper collection of samples from the victim as well as accused. 10. Similar is the situation with P.W. Nos. 5 and 6 - Yusuf Vhora and Rasikbhai Parshotambhai examined at exhs. 24 and 26 when they deny their role in the panchnama exh. 25 regarding recovery of clothes of the accused. 11. P.W. No. 8 - Sureshbhai Uttambhai Chaudhary examined at exh. 28 is A.S.I., who has registered the FIR and, therefore, proves it at exh. 29. Since there was no involvement of the witness thereafter except proving the FIR, he has nothing to say further and hence not cross examined. However, the FIR at exh. 29 is material evidence which discloses that the incident has taken place at about 9.00 PM on 26/10/2010 and FIR was registered at about 2.30 PM on 27/10/2010 i.e., within 24 hours. However, the FIR at exh. 29 is material evidence which discloses that the incident has taken place at about 9.00 PM on 26/10/2010 and FIR was registered at about 2.30 PM on 27/10/2010 i.e., within 24 hours. If we peruse the FIR, it becomes clear that the victim, a minor girl, has in categorical words disclosed in the FIR that how the accused has committed rape upon her by saying that when she was alone at her house and going to sleep at 9.00 PM, the accused has entered into her house by force, closed her house from inside, twisted her hands so as to result into fracture and by showing knife and after removing clothes of both of them, committed rape upon her. 12. P.W. No. 9 - Jitendrakumar Labhshankar Jani examined at exh. 31 is Talati-cum-Mantri of Sarambhada village, who brought the original register of birth and death and proves the birth date certificate of the victim at exh. 32 showing the date of birth of the victim as 27/9/1994. He also produced xerox copy of the relevant page of the register at exh. 33, which is in confirmation of exh. 32. Only because such certificate was issued by previous Talati when this witness is deposing with the original record, there is no reason to disbelieve his story as there was an attempt to contradict him by the accused during his cross examination. 13. P.W. No. 10 - Babubhai Valjibhai examined at exh. 37 is father of the victim. It is his say that since he has to attend some after-death ceremony of father of his brother-in-law, he has been to village Najapar and thereby her daughter was alone at home and thereafter, he narrated the incident as deposed by the complainant when he was conveyed about the same by his daughter, he managed to take her to the police and hospital. During cross examination, he admits that the victim has not conveyed her about the previous incident as alleged by her. But denies the suggestion that she was regularly talking on phone with the accused. However he admits that before this, his daughter had run away with one Sajid of Chalala before two and a half months and returned after five days, but he had not taken her to the doctor at that time. But denies the suggestion that she was regularly talking on phone with the accused. However he admits that before this, his daughter had run away with one Sajid of Chalala before two and a half months and returned after five days, but he had not taken her to the doctor at that time. However, witness has added on his own that in fact that incident with Sajid had taken place after the present incident and that defense is unnecessarily alleging and clubbing that incident with the present case. He also admits that there is no relationship between both the families and several cases were filed against each other, but confirms that it was before 3/4 years and denies the suggestion that present complaint is filed only because of such previous rivalry. Witness further admits that in the year 2005 he had filed complaint about the theft of Rs. 80,000/- and other valuable articles from his house, but ultimately stolen articles were found from his house and he denies that he has wrongly disclosed the name of the present appellant as an accused in that case of theft also, but admits that when he received the stolen articles back, he settled that complaint with the present appellant. 14. P.W. No. 11 - Champaben Babubhai examined at exh. 38 is mother of the victim. So far as incident is concerned, she also stated same story that at the relevant time she had been at village Najapar with her husband at the house of her sister because father-in-law of her sister had expired and that they got message that her daughter was raped, they have taken her to the police and doctor. Except admission regarding the case of theft, she was not aware about any other details and thereby appellant could not rebut her evidence during cross examination. 15. P.W. No. 12 - Dineshbhai Bhayabhai examined at exh. 39 is cousin brother of the victim, who is probably first person to notice the incident when he goes to the house of the victim for collecting milk, where he found the victim crying in her house and neighbours had gathered there and on inquiry with the victim, it was revealed that how the appellant has committed the offence, details of which are disclosed hereinabove. It is further disclosed by him that the victim has also conveyed about commission of offence by the appellant during Navratri. This witness was cross examined at length, wherein except his admission that there was disturbance and dispute between both the families, for which cases were filed and they are not in talking terms, practically the appellant accused could not rebut his evidence. On the contrary, cross examination confirms the knowledge of the witness regarding the incident and story narrated by him. 16. P.W. No. 13 - Mayurbhai Manubhai examined at exh. 40 is one of the neighbours of the victim, who has also supported the story of the victim regarding commission of offence by the appellant, that the victim has narrated such facts immediately after the incident to him when she was found crying at her house and when several persons had gathered. He also confirms that thereafter such fact was conveyed to the father of the victim and they have taken her to the police. 17. Since all other witnesses are having some clarity about the appellant because of previous dispute and when they identified the accused before the Court, there is nothing surprising to doubt when this witness also identifies the accused saying that he is residing opposite to his house and that he found sandal of the appellant outside the house of the victim, then there is no reason to disbelieve this witness, who has otherwise nothing to do with previous rivalry between the families of the complainant and accused and when he found the victim crying immediately after the incident and sandal of the appellant found near the house of the victim. He denies the suggestion that he is telling lie because of relation with the family of the victim or that he is in good terms with the appellant. 18. P.W. No. 14 - Jaysukhbhai Dudabhai examined at exh. 41 is neighbour of the victim. Though he supported the story of the P.W. Nos. 13 and 15, it is his say that he came to know about the incident only from other persons and, therefore even if it is ignored, it simply corroborates the version of other witnesses. 19. P.W. No. 15 - Pravinbhai Pithabhai examined at exh. 42 is also one another neighbour of the victim. 13 and 15, it is his say that he came to know about the incident only from other persons and, therefore even if it is ignored, it simply corroborates the version of other witnesses. 19. P.W. No. 15 - Pravinbhai Pithabhai examined at exh. 42 is also one another neighbour of the victim. It is his say that when he reached the house of the victim, after listening her shouts, the victim has narrated the incident to him and thereby he has knowledge of the incident as narrated by the victim. He denies suggestion in cross examination that he is telling lie only because he is relative of the complainant. In any case, accused could not rebut all such evidence to prove his innocence. 20. The most material evidence is of the victim herself who is examined as P.W. No. 16 at exh. 43. She has narrated entire incident in detail during her examination in chief on oath before the Court explaining that what happened and how. Repetition of those minute details is avoided, but it certainly amounts to commission of an offence of house trespass, causing grievous injuries and committing rape on a minor girl and threat to kill using a knife. She has categorically stated that in fact the appellant has committed same offence during Navratri, but when it is repeated, she has to convey to everyone. She has shown the place of incident and handed over her clothes to police and identified all such Muddamal as well as her complaint at exh. 44. She was cross examined at length in minute detail, which is not reproduced for the sake of brevity, but reading of such cross examination makes it clear that if the appellant accused is aware about so many things within the house of the victim and conscious about activity during commission of such offence and thereafter if he asked that why victim has not shouted at the time of actual physical relationship by him, it goes to show that the appellant is involved in the incident and there is all substance in the say of the victim that she could not shout at the relevant time because of threat given by the victim to kill her having knife in his hand. So far as previous incident is concerned, it is her say that it was just before 4/5 days. So far as previous incident is concerned, it is her say that it was just before 4/5 days. Though she has admitted that appellant - Vipul was in house for two hours at that time, such contradiction or statement in entire evidence needs to be ignored because in other circumstances, all the witnesses are supporting the story of the prosecution perfectly. Surprisingly now the defense has taken turn while cross examining the victim when it is suggested that in fact victim has invited the appellant because she was in love with the appellant. However, in fact she has denied such suggestion and deposed that she has never addressed a chit to the appellant, but disclosed that she likes him and that she would like to marry him and denies the suggestion that she was pressing Vipul to divorce his wife and to marry her. She denies the suggestion that she wants to marry with the appellant, but when the appellant has married with other girl, she has filed such false complaint. Though she admits that the two families were not in talking terms, she denies knowledge about disturbance and cases filed by them. She denies all other suggestions during her cross examination so as to rebut her evidence including her evidence against Sajid though it is admitted by her, father denied that she does not know Sajid and she had not run away with such person. Complaint at exh. 44 is also disclosing similar facts. Thereby the appellant could not rebut such evidence or prove his innocence either by way of total absence or even the consent of the victim. In any case, consent of the victim is not material since she is minor. Whereas so far as other defense is concerned, if appellant wants to prove the consent, the other defense of total denial automatically wipes out and, therefore, unfortunately the appellant is trying to ride on two horses moving on two different directions, which ultimately results against him only. 21. P.W. No. 17 - Rasulbeg Bavasab Mirza examined at exh. 46 is Senior P.S.I., who has investigated the incident and, therefore, narrates his story of investigation and proves relevant documents at exhs. 47 to 54 which include communication with FSL, report of FSL and other relevant documents. He denies all the suggestions in cross examination and being police officer, appellant could not succeed in rebutting his evidence. 22. 46 is Senior P.S.I., who has investigated the incident and, therefore, narrates his story of investigation and proves relevant documents at exhs. 47 to 54 which include communication with FSL, report of FSL and other relevant documents. He denies all the suggestions in cross examination and being police officer, appellant could not succeed in rebutting his evidence. 22. I have perused the impugned judgment. The trial Court has also scrutinized the evidence properly and discussed all the issues in detail for arriving at the conclusion of convicting the appellant as per the impugned judgment. 23. If we summarize the entire evidence, it becomes clear that though the appellant has tried to prove by preponderance of probability that complaint is filed because of previous rivalry and though father of the victim has admitted the existence of previous rivalry, it is difficult to believe that a 16 years old girl or her father would file such a complaint against a person only because of any such rivalry and that too when it is supported by few independent witnesses, who have noticed the victim at her house and before whom victim has immediately disclosed the manner and nature of incident. If entire story is got up as argued by the appellant, then it would not get the support of all the neighbours and witnesses as it is proved on record. Moreover, it is undisputed fact that the parents of the victim were not available at the house at the relevant time and, therefore, it cannot be said that it was preplanned attempt to lodge a false complaint. As against that, surprisingly the appellant has taken different stand by suggesting about absence of shouts and opposition by the victim at the time of commission of offence and also by suggesting that she was in love with the appellant, so also suggesting that she had run away with some other person. Thereby the appellant has tried to prove either the consent or loose character of the victim. Thereby the appellant has tried to prove either the consent or loose character of the victim. But when the appellant could not prove anything against the victim, only because something is suggested in defense, it cannot be treated as sufficient evidence to acquit the appellant though it is settled principle of law that defense has to prove its case beyond reasonable doubt, the fact remains that preponderance of probability of facts needs at least prima-facie evidence like presence of the appellant at other place or implied consent of the victim. Thereby in absence of express or implied consent or in absence of prima-facie evidence regarding his presence at some other place at the time of the incident, there is no reason to believe the defense version and to acquit him. So far as his presence at the place of the incident is concerned, the evidence of P.W. No. 13 at exh. 14 is so material when he says that he saw the sandal of the appellant at the house of the victim immediately after the incident, more particularly when this witness is residing just opposite to the house of the victim. 24. Then remains medical and scientific evidence alone, wherein as per medical evidence, there is no sign of rape, so also the report by FSL does not confirm the presence of sperm of the appellant in the samples collected from the victim. However, considering the age of the victim, even if there is no full penetration, there may not be presence of sperm, but when age of the victim is just 16 years and when the appellant is trying to prove her loose character or her consent, the law has to take its own course confirming that consent by the minor is not material and no-one is permitted to insult or rape a woman or take advantage of her position or mental status of the victim, more particularly when she is minor. However, considering the overall evidence, even if it is believed that there is no actual rape committed on the victim, then it is certain that there is assault or use of criminal force against victim with intent to disrobe her and as deposed by the victim, when her clothes were removed by the appellant, even if it is believed that the appellant has not committed offence under section 376 of the IPC, though it is an alternative discussion only, it is clear and certain that the appellant has committed offence under section 354-B of the IPC and, therefore, also there is no reason to acquit the appellant. It is also clear and obvious that in addition to commission of offence under section 354-B or 376 of the IPC, the appellant has also committed offences under sections 452, 325 and 506[1] of the IPC. Therefore, there is no reason even to reduce the sentence. 25. For arriving at the conclusion, I am relying upon the decision rendered by the Hon'ble Supreme Court in the case of Aman Kumar v. State of Haryana reported in : AIR 2004 S.C. 1497 . 26. In view of above facts and circumstances, the appeal is dismissed. Thereby conviction is confirmed. However, it is converted from section 376 to section 354-B of the IPC without altering the sentence in any manner. Conviction under other sections are also not disturbed. R & P be sent back to the concerned trial Court.