R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 467 of 2001 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE ILESH J. VORA Sd/- and HONOURABLE MR. JUSTICE R. T. VACHHANI Sd/- ========================================================== Approved for Reporting Yes No No ========================================================== STATE OF GUJARAT Versus SOLANKI CHETAN HIMATLAL ========================================================== Appearance: MR J K SHAH, APP for the Appellant(s) No. 1 MR DARSHAN A. DAVE, ADVOCATE FOR MR Y J PATEL(3985) for the Opponent(s)/Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 03/12/2025 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. Here is the Appeal by the State against the judgment and order of acquittal. 2. Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Surendranagar, passed in Sessions Case No.97 of 1993, dated 19.03.2001, acquitting the respondent from the offence under Sections 363, 366 and 376 of the IPC, the State has preferred instant appeal under Section 378 of the Cr.P.C. R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 3. This Court has heard Mr. J.K. Shah, learned Additional Public Prosecutor and Mr. Darshan A. Dave, learned advocate for Mr. Y.J. Patel, learned advocate for the respective parties. 4. Brief facts giving rise to file the present Appeal are that, the victim aged about 15 to 16 years, was in contact with the respondent- accused and at relevant time, she was studying in high school. On 22.08.1993, in order to get married with each other, the victim and accused left Surendranagar and remained together for about 4 days at different places. The father of the victim, lodged an FIR with Surendranagar Police Station that the respondent-accused kidnapped and abducted his minor daughter from his lawful guardianship and abused her sexually. The accused came to be arrested. The victim during the course of investigation, sent to the Government Hospital for examination. The I.O. (PW.11) after due investigation, led the chargesheet against the respondent-accused. 5. Since the case was exclusively triable by the Sessions Court, the Court committed the case to the Sessions Court, which has been culminated into Sessions Case No.97 of 1993. 6. The learned Sessions Judge, Surendranagar framed charge against the accused to which, he pleaded not guilty and claimed trial. 7. On conclusion of oral evidence, the trial Court recorded further statement of the accused as provided under Section 313 of the Code, wherein, he claimed his innocence. Page 2 of 7 R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 8. The learned Sessions Judge after appreciating and examining the oral as well as documentary evidence acquitted the accused herein for the offences with which he were charged, on the ground that, the age of the victim has not been proved by adducing admissible and conclusive proof and the factum of forceful intercourse being not established and proved. 9. In view of the aforesaid facts and circumstances, this acquittal appeal has been preferred by the State. 10. In the facts of the present case, the victim was examined as PW.2 and in order to prove the age, the school evidence being produced by the prosecution. It is an admitted fact that, the High School Authority noted the date of birth on the basis of Certificate of Primary School where the victim had studied. The High School Authority did not have any evidence with them with regard to date of birth. The mother (PW.6) in her testimony, admitted that, the date of birth of the victim was registered with Surendranagar Municipality, but the fact remains that, neither the witness, nor the police officials tried to collect the birth certificate from the municipality. In such circumstances, we deem it not to refer the entire oral evidence of the witnesses because the State has challenged the judgment on the very limited issue that, at relevant time, the age of the victim was below 16 years age and her consent is no consent in the eye of law. 11. Mr. J.K. Shah, learned Additional Public Prosecutor appearing for the appellant – State assailing the judgment and order of acquittal, R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 has submitted that the findings of acquittal are contrary to law and evidence on record and the findings recorded are palpably erroneous and based on the irrelevant material. The trial court failed to appreciate the evidence of the mother (PW.6) and the evidence of school authority who had issued the birth certificate (Exh.26) and the abstract of admission of General Register (Exh.25). Thus, the trial court in a mechanical manner, has failed to appreciate the evidence of the prosecution in its true prospective and therefore, the findings of the acquittal are seems to be contrary to the evidence on record and palpably wrong. 12. In such circumstances, as referred above, it has been submitted that while acquitting the respondent-accused, the trial Court has discarded and ignored the truthful, reliable and acceptable evidence and as such, no cogent reasons being assigned while discarding such evidence. Therefore, it is submitted that the conclusion of acquittal recorded by the Trial Court is contrary to the evidence on record and upon erroneous understanding of law. Thus, it is prayed that the prosecution has succeeded in proving the charge against the respondent-accused and the judgment and order of acquittal be set aside and accused may be convicted and sentenced for the offence as referred above. 13. Mr. Darshan A. Dave, learned advocate for Mr. Y.J. Patel, learned advocate appearing for the respondent-accused has submitted that the High Court in a case of Appeal against the acquittal, can interfere only when there are compelling substantial reasons for doing R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 so and more particularly, the findings are without reasons and unreasonable and contrary to the evidence. In the facts of the present case, the Principal of the school has no authority to issue a birth certificate. The birth date as referred in the certificate of the school does not reflect the true date of birth and same has not been proved by the prosecution in accordance with law. In such circumstances, it is submitted that, when the age is not proved, then, the victim presumed to be adult and the theory of consent cannot be ruled out. 14. In such circumstances, referred to above, learned counsel appearing for the respondent-accused, has submitted that the Trial Court while acquitting the accused has assigned cogent and sufficient reasons and therefore, the judgment of acquittal passed is well reasoned, legally sustainable and does not suffer any infirmity warranting interference by this Court. 15. Before proceeding to address the rival submissions, we would like to place on record the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the judgment of acquittal. The Appellate Court should bare in mind the presence of innocence of the accused and further that, the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner, where the other view of possible should be avoided, unless there are reasons for interference. Page 5 of 7 R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 16. In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused? 17. We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court. In the facts of the present case, the victim in her deposition, stated that, her present age is 21 years old. In the medical certificate, age is mentioned 16 years. The school authority mentioned the date of birth on the basis of certificate of the earlier school and the authority of the Primary School has not been examined to prove the source of date of birth. After the FIR, the father passed away. The mother has admitted that, the date of birth being recorded in the Municipality, but somehow, prosecution failed to produce and prove the records of the municipality. The victim was in relation with the respondent-accused and for a period of 4 to 5 days, she remained in the company of the accused. So far as relevancy of the entry of date of birth is concerned, it is settled position of law that, the prosecution is obliged to prove the date of birth of the victim and on what basis, the school authority had registered the said date of birth in their record. In the present case, the father and victim did not have stated the date of birth, nor, the father has stated that, while getting the admission, the date of birth being given by him to the school authority. Thus, no reliable material available on record to show that the date of birth was recorded in the school register on the basis of statement of any responsible person. It is settled position of law that, an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of The Evidence Act, but the entry regarding the age of a person in a school R/CR.A/467/2001 JUDGMENT DATED: 03/12/2025 register is of no much evidentiary value to prove the age of the person in absence of the material on which the age was recorded. (Babloo Pasi vs. State of Jharkhand (2008) 13 SSC 133. Thus, in our opinion, the prosecution miserably failed to prove the entry of date of birth registered in the school records in accordance with law. Thus, therefore, the view of the Trial Court as to the admissibility of the entry of date of birth is possible and plausible view and the Trial Court while analyzing the evidence has assigned cogent and sound reasons while not accepting the evidence of age and the statement of the victim and therefore, findings of acquittal are reasonable and based on the evidence on record and we do not find any perversity in the findings of acquittal so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same. 18. With the observations as aforesaid, the appeal is accordingly dismissed. The Registry is directed to send back the R & P to the Trial Court. Bail bonds are cancelled, if any, and surety is discharged. Sd/- (ILESH J. VORA,J) Sd/- (R. T. VACHHANI, J) TAUSIF SAIYED Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: TAUSIFAHMED SAIYED(HC01401), PRIVATE SECRETARY, at High Court of Gujarat on 03/12/2025 16:45:36