R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1986 of 2026 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI ================================================================ Approved for Reporting Yes No ================================================================ SHOBHANABEN JAYANTIJI CHATURJI THAKOR Versus STATE OF GUJARAT & ORS. ================================================================ Appearance: MS URMILA N DESAI(5609) for the Appellant MR ROHAN RAVAL APP for the Respondent ================================================================ CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 24/09/2026 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. Here is the Appeal by the original complainant under Section 413 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (corresponding section 372 of Cr.P.C.) against the judgment and order of acquittal. 2. Being dissatisfied by the judgment and order passed by the learned Additional Sessions Judge, Patan passed in Special (POCSO) Case No.21 of 2022, dated 13.01.2026, acquitting the accused from the offences punishable under Sections 363, 366, 376(2)(n) and 114 of the IPC and Sections 3(A), 4, 5 (L), 17 and 18 of the Protection of R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 Children from the Sexual Offenses Act, 2012, the complainant has preferred instant appeal. 3. We have heard Ms. Urmila Desai, learned advocate appearing for and on behalf of the appellant-complainant and Mr. Rohan Raval, learned APP for the respondent – State. 4. Brief facts giving rise to file the present Appeal are that, the victim aged about 16 years allegedly kidnapped on 01.03.2022 in the early morning, by the accused Sanjay Thakore who happened to be her brother in law. The sister of the victim Kajal married to accused Sanjay Thakore. He was very much present in the house. On account of differences between the accused Sanjay and his wife Kajal, the victim developed intimate relationship with accused Sanjay. In such circumstances, in the early morning, the accused and victim had gone from Patan to Ahmedabad on the bike allegedly driven by co-accused Piyush Chauhan. The victim and accused then went to Viramgam, where they stayed for 2 to 3 days. Thereafter, they visited Chotila and lastly Junagadh, where they were doing labour work and lived as husband and wife together for about a month. In meantime, the appellant herein being a mother lodged an FIR against the accused Sanjay with respect to act of kidnapping of her minor daughter with City ‘B’ Division Patan Police Station. The I.O. of the case proceeded to investigate the case. He recorded the statements of the witnesses including the victim, arrested the accused, sent the victim and accused for medical examination at the Government Hospital, collected the R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 xerox copy of the birth certificate of the victim and at the end, he filed chargesheet against the two accused for the offences as referred above. The case was committed to the Court of Sessions at Patan. 5. The learned Sessions Judge framed charges to which the accused pleaded not guilty and claimed trial. 6. In order to prove the charge, the prosecution has examined as many as 18 witnesses and relied upon 32 exhibited documents. 7. On conclusion of oral evidence, the Trial Court recorded further statements of the accused as provided under Section 313 of the Code, wherein, they claimed their innocence and stated that they have been falsely implicated in the offence. 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 they were charged, on the following grounds: (i) That the prosecution miserably failed to prove that the victim was below 18 years of age on the date of occurrence. (ii) That the victim and the accused had lived together for about a month and during their stay at different places, the victim did not have raised any alarm or made complaint to anyone despite of she was having an opportunity to lodged a complaint and during the stay, she had tried to escape from the clutches from the accused, which shows that she was consenting party and relations were R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 consensual in nature and therefore, the prosecution miserably failed to establish that the accused Sanjay kidnapped and abducted the victim and was subjected to her sexually penetrative assault. (iii) That so far as accused no.3 Piyush Chauhan is concerned, the Trial Court has observed that there is no material on record to establish that the accused have abetted the principal accused in committing the alleged offence. 9. In such circumstances, the trial Court while acquitting the accused, held and observed that the prosecution has miserably failed to prove the charge against the accused by leading cogent and convincing evidence. 10. Ms. Urmila Desai, learned counsel appearing for and on behalf of the original complainant, assailing the judgment and order of acquittal, 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; that the Trial Court failed to appreciate that the prosecution had produced a xerox copy of birth certificate and same has been exhibited at Exh. 92 in the evidence of IO – PW-17 and in absence of any contrary evidence, there is no reason or doubt to discard the date mentioned in the xerox copy Exh. 94; that the trial Court has erred to discard the acceptable and admissible evidence with respect to the date of birth and findings for discarding the said evidence is contrary to settled principle of law; so far as offence of charge of rape is R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 concerned, the trial Court failed to appreciate that the victim in her deposition has categorically stated that, she was confined in a room by the accused and against her will and wish, the accused raped upon her; the evidence of victim does not support from any infirmities and her evidence is wholly reliable; despite of this, the trial Court has disbelieved her version; thus, when the evidence of the victim does inspire the confidence and appears to be absolutely trustworthy, the trial Court ought to have act upon the evidence of the victim. 11. In such circumstances, the findings of acquittal on the serious charge of rape and sexual penetrative assault are perverse, which has resulted into miscarriage of justice and therefore, it is a fit case to reverse the judgment of acquittal and therefore, the appeal may be admitted. 12. Learned APP Mr. Rohan Raval for the respondent State has fairly stated that the State has not filed appeal against the impugned judgment. 13. In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused? 14. We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court. R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 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 bear 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. 16. In the facts of the present case, the trial Court on the issue of age, framed the issue as to whether the prosecution has established that the victim was below 18 years of age on the date of occurrence i.e. on 01.03.2022? 17. In order to determine the issue of age, the trial Court has mainly considered the evidence of IO – PW-17 and victim’s evidence (PW-5). On the aspect of age, the trial Court in para-13 of the judgment, observed that: “Considering the submissions of the parties and the evidence on record, the prosecution has produced victim’s birth certificate at Exh. 94 during the testimony of witness PW-17 to prove that the victim was minor at the time of incident; the complainant also stated that the victim’s birth certificate was produced. Apart from this, the prosecution has not R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 produced any other evidence regarding the victim’s date of birth; nor have examined the officers of the Patan Municipality and the IO has not obtained the evidence of birth registration to show that the victim’s date of birth mentioned in the birth certificate. The victim had studied upto 10th Standard. Nevertheless, no evidence from the school record being produced by the prosecution. The IO during the cross-examination admitted that, he did not inquire about the education of the victim and particulars of the school, where she has studied nor recorded, the statement of the persons from school authority.” 18. In the aforesaid context and evidence on record, the trial Court on the aspect of age, has observed that the prosecution has tried to prove that accused was minor relying upon the photocopy of her birth certificate but what was the source of it and how the date came to be recorded with the municipality, has not been proved and therefore, it is held by the trial Court that the prosecution miserably failed to prove that the victim was minor at the time of incident. 19. Admittedly, on the basis of photocopy Exh. 94, the prosecution has tried to prove the date of birth of the victim. Recently, in Birka Shiva Vs. The State of Telangana, (2025 INSC 863), the Supreme Court, has set aside a conviction for rape, kidnapping and wrongful confinement. In the cited case, the accused was having sexual intercourse with the victim against her will and wish. The victim was minor at the time of incident. Prosecution relied on school R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 records. The trial Court relying on the date of birth mentioned in the school leaving certificate held that the victim was minor and relying on her testimony, the accused came to be convicted. On Appeal, the High Court of Telangana, upheld the conviction of the accused. The Supreme Court, while over-tuning the conviction, ruled that, a school certificate or birth record, alone does not prove a victim’s age. The evidentiary value of such an entry made in public or official register may be admissible in evidence under Section 35 of the Indian Evidence Act, however, admissibility is distinct from probative value. While such documents may be admitted in evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information. Mere a production and marking of documents as exhibited by the Court, does not amount to proof of its contents. It’s execution has to be proved by leading substantive evidence, that is, by the evidence of those persons, who can vouchsafe for Hereinafter referred to as the Evidence Act, truth of the facts in issue. The Supreme Court, while laying down the aforesaid principle, has relied on its earlier judgments (Narbada Devi Gupta Vs. Birendra Kumar Jaiswal (AIR 2004 SUPREME COURT 175), Birad Mal Singhvi Vs. Anand Purohit (1988 AIR 1796), State of Chhatisgarh Vs. Lekhram, (AIR 2006 SUPREME COURT 1746). 20. Reverting to the case of the present case, admittedly, except photocopy of the birth certificate Exh. 94, no any substantial evidence being brought on record to prove the entry of date of birth R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 recorded in the registered maintained by the Patan Municipality. The IO has no personal knowledge about the date of birth recorded by the Municipality. The IO did not have recorded the statement of officers who have recorded the entry in the register. No any school records being produced by the prosecution to prove the date of birth. The mother has admitted in her deposition that, on the basis of teacher’s statement, the date of birth was recorded in the school records. In such circumstances, in our opinion, the prosecution miserably failed to prove the age of the victim by cogent and admissible evidence. 21. On the charge of kidnapping and rape, the trial Court held and observed that the victim and accused stayed together for about 1 month at the different places and during their stay, despite of an opportunity to escape from the clutches from the accused, the victim did not make any hue and cry nor made any complaint and remained in the company of the accused and therefore, the prosecution miserably failed that the accused enticed the victim away from the lawful guardianship of her parents and had a forceful physical relationship with the victim. 22. Upon perusal of the findings recorded by the trail Court and upon re-appreciation of evidence of the victim PW-5, we are of the considered opinion that, the victim on her own volition remained in the company of the accused for about 1 month and more and when her minority is not proved, then, it is presumed to be adult person. In such circumstances, the trial Court has rightly held that the charge of kidnapping, rape and the penetrative sexual assault R/CR.A/1986/2026(GJHC240456252026) JUDGMENT DATED: 24/09/2026 having not been proved by the prosecution beyond reasonable doubt. 23. In the result, we do not find any perversity in the impugned judgment and in absence of substantial and compelling reason, no ground exists to interfere with the findings of acquittal recorded by the Trial Court and therefore, in our view, the Trial Court was justified in acquitting the accused. 24. With the observations as aforesaid, no case is made out to grant leave to appeal. Accordingly the appeal stands at the admission stage. (ILESH J. VORA,J) (R. T. VACHHANI, J) P.S. JOSHI/28.09.2026 Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 28/09/2026 17:03:02