R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 530 of 2003

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE SANJEEV J.THAKER

and

HONOURABLE MR.JUSTICE L. S. PIRZADA

=============================================

Approved for Reporting Yes No

✔

=============================================

STATE OF GUJARAT

Versus

CHANDUBHAI SENDABHAI PATANI

=============================================

Appearance:

MR. RONAK RAVAL APP for the Appellant(s) No. 1

NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1

=============================================

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

and

HONOURABLE MR.JUSTICE L. S. PIRZADA

Date : 09/01/2026

ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA)

1.The present acquittal appeal has been preferred by the

State under Section 378 of the Criminal Procedure

Code, 1973 (In short “The Cr.P.C”) challenging the

judgment and order dated 10.01.2003 passed by learned

Special Judge, City, Civil & Sessions Court No.20,

Ahmedabad in Atrocity Criminal Case No.11 of 2002 by

way of the impugned judgment and order, the present

Page 1 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

respondent no.1 – original accused has been acquitted

for the charge under Sections 363, 366, 376 of the

Indian Penal Code (Hereinafter referred as the ‘IPC’)

and Sections 3(1), 3(11) and 3(12) of the Scheduled

Castes and Scheduled Tribes (Prevention of the

Atrocities) Act, 1989 (Hereinafter referred as the

‘Atrocity Act’).

2.The short facts of the prosecution case reads as under:

3.It is the case of the prosecution that on 21.10.2001, at

around 01:30 A.M., the accused has kidnapped

Parvatiben, minor daughter of the complainant –

Gopalbhai Viththalbhai Parmar from his lawful

guardianship and by giving false temptation and promise

of marrying with her and with intention to seduce her,

took the victim away and kept her in a guest house at

Palanpur and at Jantanagar from 21.10.2001 to

07.12.2001 and during that period, he had sexual

intercourse with the victim and thereby committed the

offence under Sections 363, 366, 376 of the IPC and

Sections 3(1), 3(11) & 3(12) of the Atrocities Act and for

that, the complaint came to be given by the complainant

- Mr. Gopalbhai Parmar before the Odhav Police Station

on 07.12.2001 vide first C.R. No.430 of 2001.

4.The investigation was subsequently started, and the

statements of the concerned witnesses were recorded ,

along with the necessary documents and Muddamal

Page 2 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

articles. After completion of the investigation , the

chargesheet came to be filed before the learned Court,

and thereafter, it was registered as Special Atrocity

Criminal Case No. 11 of 2002 before the Special Court.

Thereafter, the learned Trial Court framed the charge

against the accused vide Exhibit-1 for the offence

punishable under Sections 363, 366, and 376 of the IPC

and Sections 3(1), 3(11) and 3(12) of the Act . The

accused denied the contents of the charge , and the

entire evidence of the prosecution was recorded by the

learned Trial Court.

5.To bring home the charge against the accused, the

prosecution has examined the following oral and

documentary evidence.

Oral evidence:

PW Name of the witness Exhibit

1 Complainant – Gopalbhai Vithhalbhai 7

2 Parvatiben Gopalbhai Parmar 9

3 Laxmanbhai Somabhai Chauhan 11

4 Chhaganbhai Shivabhai 12

5 P.I. - Bhupendra Jayantilal Kansara 15

6 Assistnat Police Commissioner –

Chandrakant Lallukant Vora

21

7 Devidan Ravidan Gadhvi 23

8 P.S.I. - Pratapbhai Nishabhai Damor 25

9 P.S.I. - Dasharathsinh Karansinh

Chudasama

26

10Ranchhodbhai Karshanbhai Patel 30

Page 3 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

The following documentary evidence has been produced

by the prosecution:

Sr.No. Particular Exhibit

1 FIR 8

2 Report under Section 157 of the Cr.P.C 27

3 Panchnama to recover the cloth of the

victim

13

4 Panchnama to recover the cloth of the

accused

13

5 School Leaving Certificate of the victim 16

6 Certificate of the caste of the victim 10

7 Medical Certificate of the victim 17

8 Medical Certificate of the accused 18

9 Muddamal Ravanagi note 28

10 Receipt issued by FSL 29

11 Report of the FSL 19

12 Serological Examination 20

6.Thereafter, the learned prosecution has closed the

evidence of the prosecution by giving the closing pursis

and further statement of the accused under Section 313

of the Cr.P.C. was recorded, wherein the accused has

denied the evidence of the prosecution on record and

the accused refused to step into the witness box for

examining any witness on his behalf and stated that a

false case has been filed against him and stated that he

voluntarily appeared before the concerned police station

and the victim is ready to marry with him but because of

the society, they will not be able to marry and the

accused denied marriage, that is why a false case is filed

against him. Thereafter, learned APP for the State has

submitted his arguments and learned advocate for the

accused has also stated his arguments and after hearing

Page 4 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

the rival submissions of the learned advocates for the

respective parties, the Trial Court, by the impugned

judgment and order, was pleased to acquit the accused

from all the charges levelled against him.

7.Being aggrieved and dissatisfied with the said judgment

and order of the acquittal, the appellant – State has filed

the present appeal mainly stating that the impugned

judgment and order passed by the learned Trial Court is

contrary to the evidence available on record of the case

as well as to the provisions of law.

8.Heard the learned APP Mr. J. K. Shah for the State. He

submitted that the impugned judgment and order passed

by the learned Trial Judge is contrary to the evidence

available on record of the case as well as the provisions

of the law and requires to be quashed and set aside.

Further, he submitted that the learned trial Judge has

erred in coming to the conclusion that the prosecution

has failed to prove the charge against the accused

person that on 21.10.2001 at about 01:30 A.M., the

accused has kidnapped the victim who is aged about 17

years, the minor at the time of the incident, is the

daughter of complainant – Govindbhai Viththalbhai

Parmar and from his lawful guardianship, he kidnapped

the victim by giving the inducement of marriage with an

intention to seduce to have illicit intercouse. Further, he

submitted that the learned trial Judge has also erred in

holding that the prosecution failed to prove that during

Page 5 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

the period from 21.10.2001 to 07.12.2002, accused has

illicit intercourse with minor victim at Palanpur guest

house, at Jantanagar and various other places without

consent of the victim and committed rape on her.

Further, the learned Trial Judge has also erred in

holding that the prosecution has failed to prove beyond

reasonable doubt that the accused has committed an act

to outrage the modesty of the victim and exploided her

sexually without her consent and thereby, committed the

offence under the provisions of the Act. Further, he

submitted that the learned trial Court has also not

considered the fact and erred in holding that the

prosecution failed to prove the offence committed under

Sections 363, 366, 376 of the IPC and Section 3(1), 3(11)

and 3(12) of the Act. Further, he stated and submitted

that the prosecution has examined 8 witnesses in

support to prove the charges against the evidence and

all the witnesses have fully supported the case of the

prosecution. Further, he submitted that the prosecution

also proved the documentary evidence produced in the

trial before the Court and the evidence like FIR, Report

under Section 157 of the Cr.P.C, Panchnama to recover

the cloth of the victim, Panchnama to recover the cloth

of the accused, School Leaving Certificate of the victim,

Certificate of the caste of the victim, Medical Certificate

of the victim, Medical Certificate of the accused,

Muddamal Ravanagi note, Receipt issued by FSL, Report

of the FSL, Serological Examination and it has been

established by the prosecution, the age of the victim at

Page 6 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

the time of incident, was 16 years and 8 months.

Further, he submitted that all other documentary

evidences have fully supported the version of the

prosecution. Further, it has been established by

producing the certificate of the caste of the prosecutrix

at Exhibit-17 established that the prosecutrix (minor)

belonging to the SC community and she was minor and

offence was committed againt her consent by the

accused person but this aspect has not been appreciated

by the learned trial Court. Further, he submitted that

the prosecutrix has been examined before the learned

trial Court vide Exhibit-9 and she has specifically

submitted that her date of birth is 02.01.1985. It has

been supported by the Birth Certificate produced at

Exhibit-16 by the principal of the school who has

examined at Exhibit-30 and the prosecutrix has clearly

stated in her evidence that the accused has given her

threat that if he is not acting as per his say, then he has

raped later to her after and her threatened in case of

failure as per the direction, he would commit the murder

of the brother of the victim and on the date of incident,

when the accused entered to the house of the victim, the

victim tried to shout but the accused has threatened her

with the point of knife and also told her that she

disclosed anything to anyone, he would commit the

murder of her brother and because of threat, the

prosecutrix accompanied the accused and she has also

specifically on oath, stated that how the incident took

place and when the accused took her and also narrated

Page 7 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

the place of the incident and the accused has committed

offence against her consent and also stated that she was

forced to sign the marriage registration form by the

accused under the threat. Further, he stated and

submitted that the learned Trial Court has not

appreciated the fact that the since the age of the

prosecutrix is about 16 years and 8 months, there is

offence of rape against her but while coming to the said

conclusion, learned Trial Judge has not properly

appreciated the evidence of the prosecutrix. She has

very specifically stated all those acts were committed

against her will and consent and in spite of the fact that

she was minor and she accompanied the accused, the

accused has threatened the victim that if she will not

accompany, he will murder his brother. Therefore, the

findings of the learned Trial Court that there is no

offence committed by the accused under Section 376 of

the IPC is not correct, legal, valid and proper and the

judgment is required to be quashed and set aside.

Further, learned Trial Judge has also failed to appreciate

the fact that it has been proved that the prosecution is

minor girl below the age of 18 years and she had no

money or any of the resources with her and in such

situation, it is not possible for the prosecutirx at that age

to believe trust on outside person even she informed

anybody else or tried to escape from the accused person

then, there is a chances of her victimization by other

person. This aspect has not also been considered by the

learned Trial Court. Further, he submitted that as per

Page 8 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

the medical evidence and also the FSL report, it clearly

supported the oral version of the prosecution case and

submitted that considering this, learned Trial Court has

not appreciated the evidence produced by the

prosecutrix before the learned Trial Court and not

properly appreciated the oral deposition or oral

testimony of the prosecutrix before the Court. Hence,

the present appeal is required to be allowed and the

judgment passed by the learned Trial Court is required

to be quashed and set aside.

9.Respondent – original accused is concerned, as per the

report, notice has been duly served but nobody has

appeared on behalf of the respondent no.1 – original

accused.

10.We have gone through the records and the judgment

passed by the learned Trial Court after appreciating the

evidence and keeping in mind the ratio laid down by the

Hon’ble Apex Court while deciding the acquittal appeal.

In that parameters, we deem it appropriate to decide the

said appeal.

11.Before dealing with the merits of the appeal, at this

stage, it is required to consider the decision of the law

settled by the Hon’ble Apex Court in various decisions

whereby, it has laid down several criteria while deciding

the acquittal appeal.

Page 9 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

12.It would be apt to refer the recent decision of the

Hon’ble Apex Court in the case of Babu Sahebagauda

Rudragoudar and Others Vs. State of Karnataka

reported in (2024) 8 SCC 149 wherein, it has been held

as under:

“39. This Court in Rajesh Prasad v. State of Bihar

encapsulated the legal position covering the field after

considering various earlier judgments and held as below:

“29. After referring to a catena of judgments, this Court

culled out the following general principles regarding the

powers of the appellate court while dealing with an

appeal against an order of acquittal in the following

words: (Chandrappa case [Chandrappa v. State of

Karnataka, (2007) 4 SCC 415]

“42. From the above decisions, in our considered

view, the following general principles regarding

powers of the appellate court while dealing with an

appeal against an order of acquittal emerge:

(1) An appellate court has full power to

review, reappreciate and reconsider the

evidence upon which the order of acquittal is

founded.

(2) The Criminal Procedure Code, 1973 puts

no limitation, restriction or condition on

exercise of such power and an appellate court

on the evidence before it may reach its 42.

The appellate Court, in order to interfere with

the judgment of acquittal would have to

record pertinent findings on the above factors

if it is inclined to reverse the judgment of

acquittal rendered by the trial Court.own

conclusion, both on questions of fact and of

law.

(3) Various expressions, such as, “substantial

Page 10 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

and compelling reasons”, “good and sufficient

grounds”, “very strong circumstances”,

“distorted conclusions”, “glaring mistakes”,

etc. are not intended to curtail extensive

powers of an appellate court in an appeal

against acquittal. Such phraseologies are

more in the nature of “flourishes of language”

to emphasise the reluctance of an appellate

court to interfere with acquittal than to curtail

the power of the court to review the evidence

and to come to its own conclusion.

(4) An appellate court, however, must bear in

mind that in case of acquittal, there is double

presumption in favour of the accused. Firstly,

the presumption of innocence is available to

him under the fundamental principle of

criminal jurisprudence that every person shall

be presumed to be innocent unless he is

proved guilty by a competent court of law.

Secondly, the accused having secured his

acquittal, the presumption of his innocence is

further reinforced, reaffirmed and

strengthened by the trial court.

(5) If two reasonable conclusions are possible

on the basis of the evidence on record, the

appellate court should not disturb the finding

of acquittal recorded by the trial court.”

40. Further, in the case of H.D. Sundara & Ors. v. State

of Karnataka this Court summarized the principles

governing the exercise of appellate jurisdiction while

dealing with an appeal against acquittal under Section

378 of CrPC as follows: (SCC p. 584, para 8)

“8.1. The acquittal of the accused further

strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal

against acquittal, is entitled to reappreciate the

oral and documentary evidence;

Page 11 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

8.3. The appellate court, while deciding an appeal

against acquittal, after reappreciating the

evidence, is required to consider whether the view

taken by the trial court is a possible view which

could have been taken on the basis of the evidence

on record;

8.4. If the view taken is a possible view, the

appellate court cannot overturn the order of

acquittal on the ground that another view was also

possible; and

8.5. The appellate court can interfere with the

order of acquittal only if it comes to a finding that

the only conclusion which can be recorded on the

basis of the evidence on record was that the guilt of

the accused was proved beyond a reasonable doubt

and no other conclusion was possible.”

41. Thus, it is beyond the pale of doubt that the scope of

interference by an appellate Court for reversing the

judgment of acquittal recorded by the trial Court in

favour of the accused has to be exercised within the four

corners of the following principles:-

41.1That the judgment of acquittal suffers from

patent perversity;

41.2That the same is based on a

misreading/omission to consider material evidence

on record;

41.3That no two reasonable views are possible

and only the view consistent with the guilt of the

accused is possible from the evidence available on

record.

42. The appellate Court, in order to interfere with the

judgment of acquittal would have to record pertinent

findings on the above factors if it is inclined to reverse

the judgment of acquittal rendered by the trial Court.”

Page 12 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

13.Now, keeping in mind the aforesaid ratio and after re-

appreciating the evidence, the serious contradictions

and improbable story of the prosecution noticed by the

learned Sessions Court are required to be considered

while deciding the present appeal.

14.As per the case of the prosecution, the accused has

kidnapped the victim girl prosecutrix on 21.10.2001 and

subsequently, a complaint came to be given by the

father of the prosecutrix before the Odhav Police Station

on 07.12.2001 and subsequently, the prosecutrix and the

accused were appeared before the concerned police

station and the accused was arrested. So far as the main

evidence is the deposition of the prosecutrix is required

to be considered as the prosecutrix has been examined

as PW-2 vide Exhibit-9. As per the deposition before the

Court, it is admitted by the prosecutrix that the Birth

Date is 02.01.1985 and she studied up to standard 8 but

she does not remember the name of the school and she

knew the accused Chandubhai as he was residing at

Bhavaninagar Tekara. Initially she had affair with the

accused, subsequently, she stopped it and thereafter,

she went to her uncle’s home at Ahmedabad and

thereafter, as per the deposition before the Court, she

stated that she was threatened by the accused that if she

will not come with him then, she will murder his brother

and because of that, she accompanied the accused and

during that period, she was subjected to the sexual

intercourse without her consent. This is the deposition

Page 13 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

before the Court but certain fact which has been stated

in the deposition, which has not been stated in the

statement recorded under Section 161 of the Cr.P.C

before the police and for the first time, she stated that

she was subjected and threatened by the accused as he

came with the knife and threatened the prosecutrix that

if she will not accompany with him, he will murder his

brother.

15.In this regard, the said contradiction and the addition

has been proved by defence counsel by putting her

question to the Investigating Officer. So, before the Trial

Court, original complainant has already been examined

and the complainant who has been examined as PW – 1

Exhibit – 7 with the father of the prosecutrix has stated

that he knew accused – Chandubhai Sendhabhai and as

her daughter was eloped with the accused on

21.10.2001 but they are in search of the daughter and

that is why they have not filed any complaint and the age

of the daughter is about 16 years and 8 months. In this

regard, it is required to consider the findings recorded

by the learned Trial Court. The learned Trial Court, in

his judgment, mainly recorded the finding that looking

to the overall evidence of the prosecutrix and the father

of the complainant, it is coming on record or it has been

established that initially that there was love affair

between the accused and the prosecutrix and it has not

been established by the prosecution that the accused

has forcefully taken the prosecutrix.

Page 14 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

16.On the contrary, it has been coming in evidence that

before the police, when the statement of the prosecutrix

victim was recorded, she specifically stated that on

21.10.2001, victim herself has voluntarily left her

parental home and met the accused at CMC where he

was there and she willfully and with the consent, has

gone with the accused and in the statement, it has been

stated that she initially went to the Sidhdhpur

thereafter, they went to the Ambaji and thereafter,

Palanpur and they also stayed at one guest house and

they have given their wrong identity in this guest house

also and they have stayed in the guest house in the name

of one – Pujaben and Ajaybhai thereafter, they went to

Palanpur and residing at Jantanagar and subsequently,

they had sexual intercourse. In this regard, the findings

recorded by the learned Sessions Court that it is not

established by the prosecution that accused has lured

the victim by giving false promise or anything and the

accused has been having sexual intercourse with the

victim against her will and accused has taken the victim

from the lawful guardianship of the father of the victim

by giving false temptation and promise of bearing her

and with an intention to seduce the victim. The findings

recorded by the learned Sessions Court is found to be

just and proper as for the first time, certain facts have

been stated before the Court and the said fact has never

been disclosed before that even before the police. So,

learned Sessions Judge has rightly come to the

Page 15 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

conclusion that the evidence of the prosecution cannot

be relied upon and even considering that there was

sexual intercourse with the consent of the victim even

before the amendment in the IPC before Criminal

Amendment Act, 2013, if the age of the victim is

between 16 to 18 years then, accused can take the

defence of the consent. So, learned Sessions Judge has

rightly come to the conclusion that the prosecution has

miserably failed to establish that the victim – accused

has raped the victim.

17.So far as another findings recorded by the learned Trial

Court regarding the age of the victim is concerned as

the birth date has been stated is 02.01.1985 and to

prove that, she produced School Leaving Certificate vide

Exhibit-16 and to prove the School Leaving Certificate,

they have examined one witnesses - Ranchhodbhai

Karsanbhai Patel vide Exhibit-30 as PW-10 vide Exhibit–

30. As per his deposition, he stated that he is working as

Clerk in the Dr. N. N. Patel Sarasvati Vidyalaya and he

came with the O.C. book of the school from which the

School Leaving Certificate has been issued by the school

and stated that the victim was studying in their school

and School Leaving Certificate which has been produced

vide mark Exhibit-16 has been issued by the school and

it was signed by the Principal - Nagarbhai Shakarabhai

and he identified that signature and has stated that as

per the school register, the date of birth is 02.01.1985

and the said witness was thoroughly cross-examined by

Page 16 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

the learned advocate for the accused and cross-

examined the said witness and admitted that the victim

had taken the admission in their school from other

school and they have written the date of birth as per the

earlier School Leaving Certificate of earlier school and

on the basis of that, they have mentioned the date of

birth and he has not seen the Birth Certificate and even

no Birth Certificate has been produced in their school.

So, considering this, learned Trial Court has found that

the School Leaving Certificate has not been proved by

the prosecution and the age of the victim has not been

proved. In this regard, now, it is required to consider the

judgment of the Hon’ble Apex Court in the case of Birka

Shiva Vs. State of Telangana arising out of SLP

(Criminal) No.1445 of 2025 reported in 2025 INSC 863,

Hon’ble Apex Court held as under:

“7. The prosecution has relied primarily on Ex.P11,

the birth certificate issued by the Zilla Parishad

High School, to establish that the victim was below

the age of sixteen years on the date of the alleged

offence, i.e., 4th August 2012. According to Ex.P11,

the victim's date of birth was 3rd November 1996,

which, if accepted, would make her approximately

15 years 9 months old at the relevant time.

8. The evidentiary value of such an entry made in

public or official registers may be admissible in

evidence under Section 35 of the Indian Evidence

Act, 18727. However, admissibility is distinct from

probative value. While such documents may be

admitted into evidence, their evidentiary weight

depends on proof of their authenticity and the

source of the underlying information. Mere

production and marking of a document as exhibited

Page 17 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

by the Court does not amount to proof of its

contents. Its 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’ the truth of the

facts in issue’. [See: Narbada Devi Gupta v.

Birendra Kumar Jaiswal] We may refer to a few

judicial pronouncements of this Court in this

regard:

8.1. This Court, in Birad Mal Singhvi v.

Anand Purohit , held that the entries

contained in the school register are relevant

and admissible but have no probative value

unless the person who made the entry or

provided the date of birth is examined. It was

observed:

“14. … If entry regarding date of birth in

the scholar's register is made on the

information given by parents or

someone having special knowledge of

the fact, the same would have probative

value. … The date of birth mentioned in

the scholars' register has no evidentiary

value unless the person who made the

entry or who gave the date of birth is

examined. The entry contained in the

admission form or the scholar's register

must be shown to be made on the basis

of information given by the parents or a

person having special knowledge about

the date of birth of the person

concerned. If the entry in the scholar's

register regarding date of birth is made

on the basis of information given by

parents, the entry would have

evidentiary value, but if it is given by a

stranger or by someone else who had no

special means of knowledge of the date

of birth, such an entry will have no

evidentiary value. …

Page 18 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

15. Section 35 of the Indian Evidence

Act lays down that entry in any public,

official book, register, record stating a

fact in issue or relevant fact and made

by a public servant in the discharge of

his official duty specially enjoined by the

law of the country is itself the relevant

fact. To render a document admissible

under Section 35, three conditions must

be satisfied, firstly, entry that is (2003) 8

SCC 745 1988 Supp SCC 604 relied on

must be one in a public or other official

book, register or record; secondly, it

must be an entry stating a fact in issue

or relevant fact; and thirdly, it must be

made by a public servant in discharge of

his official duty, or any other person in

performance of a duty specially enjoined

by law. An entry relating to the date of

birth made in the school register is

relevant and admissible under Section

35 of the Act, but the entry regarding

the age of a person in a school register

is of not much evidentiary value to prove

the age of the person in the absence of

the material on which the age was

recorded. … The courts have

consistently held that the date of birth

mentioned in the scholar's register or

secondary school certificate has no

probative value unless either the

parents are examined or the person on

whose information the entry may have

been made is examined…"

(Emphasis Supplied)

This decision has been consistently followed

by this Court in Pratap Singh v. State of

Jharkhand; Babloo Pasi v. State of

Jharkhand; Murugan v. State of T.N. ;

State of M.P. v. Munna ; C.

Doddanarayana Reddy v. C. Jayarama

Reddy; and Manak Chand v. State of

Page 19 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

Haryana.

8.2. A coordinate Bench of this Court in State

of Chhattisgarh v. Lekhram , through S.B.

Sinha, J., clarified that though entries in

school registers are admissible under (2005)

3 SCC 551 (2008) 13 SCC 133 (2011) 6 SCC

111 (2016) 1 SCC 696 (2020) 4 SCC 659 2023

SCC OnLine SC 1397 (2006) 5 SCC 736

Section 35 of the Evidence Act, their

evidentiary value improves only when

corroborated by oral testimony of persons

who are aware of its content, such as parents

or the person who made the entry at the time

of admission. It held as under:

“12. A register maintained in a school is

admissible in evidence to prove date of

birth of the person concerned in terms

of Section 35 of the Evidence Act. Such

dates of births are recorded in the

school register by the authorities in

discharge of their public duty. PW 5,

who was an Assistant Teacher in the

said school in the year 1977,

categorically stated that the mother of

the prosecutrix disclosed her date of

birth. The father of the prosecutrix also

deposed to the said effect.

13. …The materials on record as regards

the age of the prosecutrix were,

therefore, required to be considered in

the aforementioned backdrop. It may be

true that an entry in the school register

is not conclusive, but it has evidentiary

value. Such evidentiary value of a school

register is corroborated by oral evidence

as the same was recorded on the basis

of the statement of the mother of the

prosecutrix."

8.3. Similarly, this Court in Satpal Singh v.

Page 20 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

State of Haryana , stated that though a

document may be admissible, but to

determine whether the entry contained

therein has any probative value, may still be

required to be examined in the facts and

circumstances of a particular case. It held as

follows:

“26. In Vishnu v. State of Maharashtra

[(2006) 1 SCC 283 : (2006) 1 SCC (Cri)

217] while dealing with a similar issue,

this Court observed that very often

parents furnish incorrect date of birth to

the school authorities to make up the

age in order to secure admission for

their children. For determining the age

of the child, the best evidence is of

his/her parents, if it is supported by

unimpeccable documents. In case the

date of birth depicted in the school

register/certificate stands belied by the

unimpeccable evidence of reliable

persons and contemporaneous

documents like the date of birth register

of the municipal corporation,

government hospital/nursing home, etc.,

the entry in the school register is to be

discarded.

x x x

28. Thus, the law on the issue can be

summarised that the entry made in the

official record by an official or person

authorised in performance of an official

duty is admissible under Section 35 of

the Evidence Act but the party may still

ask the court/authority to examine its

probative value. The authenticity of the

entry would depend as to on whose

instruction/information such entry stood

recorded and what was his source of

information. Thus, entry in school

Page 21 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

register/certificate requires to be proved

in accordance with law. Standard of

proof for the same remains as in any

other civil and criminal case.”

8.4. In Madan Mohan Singh v. Rajni Kant ,

this Court held that the entries made in the

official record may be admissible under

Section 35 of the Evidence Act, but the Court

has a right to examine their probative value.

The authenticity of the entries would depend

on whose information such entries stood

recorded. It was held as follows :

“20. So far as the entries made in the

official record by an official or person

authorised in performance of official

duties are concerned, they may be

admissible under Section 35 of the

Evidence Act but the Court has a right

to examine their probative value. The

authenticity of the entries would depend

on whose information such entries stood

recorded and what was his source of

information. The entries in school

register/school leaving certificate

require to be proved in accordance with

law and the standard of proof required

in such cases remained the same as in

any other civil or criminal cases.

21. … For determining the age of a

person, the best evidence is of his/her

parents, if it is supported by

unimpeachable documents. In case the

date of birth depicted in the school

register/certificate stands belied by the

unimpeachable evidence of reliable

persons and contemporaneous

documents like the date of birth register

of the Municipal Corporation,

government hospital/nursing home, etc.,

the entry in the school register is to be

Page 22 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

discarded. …”

8.5. This Court, in Alamelu v. State19, while

dealing with a similar factual matrix, held

that the prosecution had failed to prove that

the girl was a minor at the relevant date since

the transfer certificate of a Government

School showing age was not duly proved by

witnesses. It observed as under:

“40. Undoubtedly, the transfer

certificate, Ext. P-16 indicates that the

girl's date of birth was 15-6-1977.

Therefore, even according to the

aforesaid certificate, she would be above

16 years of age (16 years 1 month and

16 days) on the date of the alleged

incident i.e. 31-7-1993. The transfer

certificate has been issued by a

government school and has been duly

signed by the Headmaster. Therefore, it

would be admissible in evidence under

Section 35 of the Evidence Act, 1872.

However, the admissibility of such a

document would be of not much

evidentiary value to prove the age of the

girl in the absence of the material on the

basis of which the age was recorded.

The date of birth mentioned in the

transfer certificate would have no

evidentiary value unless the person who

made the entry or who gave the date of

birth is examined.

41. We may notice here that PW 1 was

examined in the Court on 9-8-1999. In

his evidence, he made no reference to

the transfer certificate (Ext. P-16). He

did not mention the girl's age or date of

birth. PW 2 was also examined on 9-8-

1999. She had also made no reference

either to her age or to the transfer

certificate. It appears from the record

Page 23 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

that a petition was filed by the

complainant under Section 311 CrPC

seeking permission to produce the

transfer certificate and to recall PW 2.

This petition was allowed. … In her

cross- examination, she had merely

stated that she had signed on the

transfer certificate, Ext. P-16 issued by

the school and accordingly her date of

birth was noticed as 15-6- 1977. She

also stated that the certificate has been

signed by the father as well as the

Headmaster. But the Headmaster has

not been examined. Therefore, in our

opinion, there was no reliable evidence

to vouchsafe for the truth of the facts

stated in the transfer certificate.”

(Emphasis supplied)

9. In the attending facts, we find that the

evidentiary value of Ex.P11 is significantly

undermined in the absence of corroborating

material. We say so for the following reasons:

(i) PW-13, who is the Headmaster of Zilla

Parishad High School, Chandanapur,

Peddapalli District (erstwhile Karimnagar

District), stated that the victim studied in his

school from 2007 to 2013, i.e., 6th Class to

10th Class and that the Admission Register

records her date of birth as 3rd November

1996. However, in his cross-examination, he

admitted that he had no personal knowledge

as to the source or basis on which the date of

birth was recorded therein or if the recorded

date of birth was correct or not. The relevant

part of his testimony is extracted hereunder:

“…In our school there is not clerk to

maintain records. I did not produce any

certificate pertaining to earlier school I,

In which P.W.3 studies up to 5th Class.

There must be basis for entering date of

birth of a student in our school such as

her earlier school record. I do not have

Page 24 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

personal knowledge as to what record

was produced by parents of P.W. 3 as

basis to enter her date of birth in our

school as I was not Head Master in

2007.

I cannot say in which school P.W.3

studied up to 5th Class. In the nominal

roll register of our school, the signature

of P.W.3 was obtained. I do not have

personal knowledge whether the said

date of birth of P.W.3 was correct or not

and I am giving evidence only on the

basis of record.”

(Emphasis Supplied)

(ii) The prosecution has failed to examine the

person who had made the entry in the

Admission Register to ascertain on what basis

such an entry was made. More so, the entry in

respect of the date of birth of the victim in the

primary school register, i.e., 1

st

Class to 5

th

Class, has not been produced and proved

before the Courts below to verify the age as

per its records. It is also not possible to

ascertain from the records as to whether the

date of birth was provided by the parents or

simply entered at the behest of another party,

without verification, at the time of admission

to Zilla Parishad High School.

(iii) The testimonies of PW-1, PW-2 and PW-3

are also telling that none of them mentioned

the victim's age with specificity. There is no

reference to Ex.P11, and no attempt was

made by the prosecution to adduce

corroborative testimony regarding the

victim's date of birth from her family

members.

Thus, while examining the issue at hand, on the

anvil of the principles elucidated above, it is

essential to notice that the prosecution has failed

to toe the line of legal requisites. There is nothing

Page 25 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

on record to corroborate the date of birth of the

victim as recorded in the birth certificate (Ex.P11)

issued by the school. Therefore, it cannot be relied

upon to definitely determine the age of the victim

and held with certainty that the victim was below

sixteen/eighteen years of age.

10. All three of the I.Os. are curiously silent on the

aspect of age of the alleged rape victim. This, in

itself, raises credible questions about the

investigation since a charge of rape is involved in

which the age of the victim is an essential factor.

PW-11, the I.O. who registered the FIR,

categorically states that the mother (PW-1) and

brothers (PWs 2 and 4) of the victim did not give

him particulars of her year of birth and age. PW-12,

who was the 3rd I.O., in his cross-examination

admitted to not having pursued the aspect of the

victim's age sufficiently. The relevant portion of his

testimony is as under:

“As per Ex.P1 complaint P.W.3 was studying

in S.R.K. Junior college, Godavarikhani. I have

not visited the said college. I did not examine

her classmates to enquire as to how P.W.3

was going to college. I did not enquire as to

the birth place of P.W.3. It is true every

Grampanchayath will maintain births and

deaths register. I did not verify whether the

date of birth of P.W.3 was got registered in

the Grampanchayath. I did not enquire as to

where P.W.3 completed her primary

education. I did not investigation as to who

got filled in the form of admission of P.W.3 in

the school.”

11. Furthermore, none of the victim's family

members, i.e., her mother and brothers have said

anything about the age of the victim in their

depositions made in the Court. Even the victim is

effectively silent on this aspect, only stating that

she and her siblings were born approximately two

years apart and thereby making an estimation of

their ages as well as her own. Throughout her

Page 26 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

deposition, the victim has remained silent with

regard to her particular date of birth.

12. Well, suffice it to say that Courts of law cannot

make a determination of guilt in thin air, based on

estimations. In the present facts and

circumstances, the proof submitted by the

prosecution in the form of Ex.P11 (birth certificate

issued by the school) was not sufficient to arrive at

a finding that the prosecutrix was less than

sixteen/eighteen years of age, especially when such

a document was not sufficiently corroborated.

Therefore, it was neither safe nor fair to convict the

appellant based on it, particularly in the context

where the age of the victim was such a pivotal

factor.”

18.Considering this, learned Trial Court has rightly come to

the conclusion that the prosecution has not proved the

date of birth of the prosecutrix or the victim as from the

deposition of the witness who has been working as a

Clerk is concerned, the date of birth has been stated in

the School Leaving Certificate issued by the school only

on the basis of that, earlier School Leaving Certificate

from which the victim has been earlier studying and

thereafter, she took the admission in the school merely

on the basis of that, in the School Leaving Certificate,

date of birth of the victim has been stated. So, the

findings recorded by the learned Trial Court that the age

of the victim has not been proved by the prosecution, is

just and proper.

19.So, considering this, the findings recorded by the

learned Trial Court that the victim has accompanied the

accused as she was under threat, is not been

Page 27 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

established. On the contrary, it has been recorded by the

learned Trial Court that there was a love affair between

the accused and the victim and the victim has voluntarily

left the parental home and went with the accused and

the victim has also, with her free will and consent, has

made sexual intercourse with the accused. So, there is

no question that the prosecution has failed to establish

that the accused has taken the victim from the lawful

guardianship and the accused has kidnapped the victim

and thereafter, committed a rape on her. Further, the

learned Court has also recorded that the victim has

stayed with the accused at guest house on the wrong

name also. Considering this, as she has all the

opportunity, if she was forcefully taken by the accused

as the victim has left her home on 21.10.2001 and have

found on 07.12.2001. So, in this period, the prosecutrix

has never shouted anything as they have been travelling

in the ST Bus and the findings recorded by the learned

Trial Court that the prosecution has also failed to

establish that the age of the prosecutrix is below 18 on

the date of an incident.

20.After re-appreciating and re-examining the evidence of

the Court, we could not find that there is an error of law

committed by the learned Trial Court and acquitting the

accused and as such findings recorded are neither

perverse nor erroneous whereby, no interference as

such is required by this Court while exercising its

appellate power under Section 378 of the Cr.P.C.

Page 28 of 29

R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026

21.After coming through the evidence and re-appreciation

as well as reasons assigned by the learned Sessions

Court, the prosecution has failed to prove the charges

against the accused which are just and proper and we

are in complete agreement with the reasons assigned by

the learned Sessions Court while acquitting the accused.

22.Considering the fact on record and light of the judgment

of the Hon’ble Apex Court, more particularly, while

dealing with the appeals on acquittal, we are of the

opinion that no error has been committed by the learned

Special Judge, Court No.20, City, Civil & Sessions Court,

Ahmedabad in Atrocity Criminal Case No.11 of 2002 by

order dated 10.01.2003 acquitting the present

respondent – original accused for the offence punishable

under Sections 363, 366 and 376 of the IPC and Sections

3(1), 3(11) and 3(12) of the Act.

23.The appeal is accordingly dismissed. Resultantly, the

impugned judgment and order of the learned Sessions

Court is hereby confirmed. Bail bond, if any, shall stand

discharged. If any Record & Proceedings has been called

for, be sent back to the concerned Trial Court forthwith.

Rule is discharged.

(SANJEEV J.THAKER,J)

(L. S. PIRZADA, J)

Jaimin

Page 29 of 29