Manjuben D/O. Navlabhai Dhiriyabhai Mohaniya vs State Of Gujarat & Ors.

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

Here is the Appeal by the original complainant under Section 413 of Bharatiya Nagrik Suraksha Sanhita, 2023 (corresponding section 372 of Cr.P.C.) against the judgment and order of acquittal.

Being dissatisfied by the judgment and order passed by the learned Additional Sessions Judge, Limkheda, Dahod passed in Special (POCSO) Case No.39 of 2019, dated 13.02.2025, acquitting the respondents -accused from the offences punishable under Sections 363, 366, 376(A), 506(2) read with Section 114 of the IPC and Sections 4 and 17 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the complainant has preferred instant appeal.

We have heard learned counsel Ms. Jayshree Bhatt appearing for the appellant and on advance copy Mr. Rohan Raval, learned APP for the respondent - State.

Brief facts giving rise to file the present Appeal are that, three accused namely Shankar Saburbhai, Govind Babubhai Minama and Nannubhai Babubhai were tried and prosecuted for the offences as referred above. As per the prosecution case, the victim aged about 17 years and 4 months, was kidnapped by the accused on 24.06.2019 when she was going to take flour from the local shop of the village. The accused Govind Minama (A2) and accused Nanu Babubhai (A3) had arrived on a motorcycle. The motorcycle was driven by A3 and A2 was pillion of the bike. The A2 by covering the mouth of the victim, made her sit in the middle of the motorcycle and took her to Village: Limkheda. She was informed by the accused Govindbhai that, she has been taken by him to keep her as his wife and threatened that, if she raise any voice, then he will kill her. She was taken to Village: Dholka from Limkheda in a bus and was confined there in the house of accused Shankarbhai Saburbhai (A1). The accused Shankarbhai was living there with his wife and children. The victim was told by the A1 that, she has to live in the house as a wife of the accused Govind and do not try to escape from the place and if she will try escape, then, they would cause harm to her. The victim was kept in the room for a period of one month and more and during the stay at Dholka in the house of A1, she was subjected to sexual intercourse by the accused Govind. After the period of one month, the victim was taken to her village and handed over to the parents by the accused Shankar. She had informed her parents about the incident and the manner in which she was confined for a period of one month by the accused. The family had made a complaint to the community leader. The accused despite of summon by the community leader, did not remain present. As a result, after a week from her arrival at home, the FIR against the accused with Dhanpur Police Station came to be registered. The I.O. after registration of the offence, entrusted the investigation of the case. During the investigation, he recorded the statement of the victim and her parents and others, arrested the accused, sent the accused Govind as well as the victim for medical examination, the statement under Section 164 of the victim came to be recorded by the Magistrate and after receiving the reports from the FSL, the chargesheet against the respondents-accused came to be filed for the offences as referred above.

The learned Sessions Judge framed charge to which the accused pleaded not guilty and claimed trial.

Before the Trial Court, the prosecution has examined as many as 11 witnesses, including the prosecutrix (PW:1) and relied upon 21 exhibited documents.

On conclusion of oral evidence, the Trial Court recorded further statements of the accused as provided under Section 311 of Cr.P.C., wherein, they claimed their innocence and stated that they have been falsely implicated in the offence.

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:

In such circumstances, the appellant-original complainant aggrieved by the judgment of acquittal, is before this Court.

Ms. J.C. Bhatt, learned counsel appearing for and on behalf of the appellant-complainant, while 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 age of the victim having been proved by adducing admissible evidence; that, the school authority (PW.11) being In-charge Principal of the school, had produced extract of General Register and School Leaving Certificate which evidence is admissible evidence to prove the age; that, the version of the victim is consistent on the aspect of her confinement by the accused herein at the place of offence and therefore, for a period of one month, she was confined in the room and the accused did not have permitted her to talk with anyone; that, victim has categorically stated that, the accused Govind compelled her to maintain physical relationship for which she was never agreed; that, that the evidence of the victim on the aspect of kidnapping her by the accused and on the commission of rape and sexual assault, found to be trustworthy and reliable corroborated by her own statement recorded under Section 164 of the Cr.P.C.; that, the trial court failed to take into consideration Section 29 and 30 of the POCSO Act, 2012 which provides presumption of commission of offence and culpable mental state on the part of the accused as the foundation facts of the prosecution case is being proved and established and in that view of the matter, the trial court has no alternate, but has to invoke the presumption as provided under Section 29 and 30.

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 it is a fit case to admit the appeal.

In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused?

We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court.

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.

In the facts of the present case, the trial court has not believed the case of prosecution that, on the day of incident, the victim was minor. The birth date of the victim was 04.04.2002. In order to prove the date of birth, reasons best known to the prosecution, the parents of the victim have not been examined. The witness (PW.11) Somabhai Nathabhai being an In-charge Principal of Udar Primary School, has produced the extract of school register (Exh.90) and school leaving certificate (Exh.34). The witness in his deposition, has admitted that he has no personal knowledge about the registration of the date of birth and at whose instance, it has been recorded in the school records. In the school register, nothing being noted that who had disclosed the date of birth and at whose instance, the same came to be recorded in the records. 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 victim was minor, but what was the source of it and how the date came to be recorded with the school authority, 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.

Recently, in Birka Shiva Vs. 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 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. Narendrakumar Jaiswal, Biradmal Singhvi Vs. Anandmal Purohit (1988 SC 1796), State of Chhatisgarh Vs. Lekh Ram).

Applying the aforesaid principles of law to the facts of the present case, we have no hesitation to held that, the prosecution miserably failed to prove that, on the day of incident, the victim was minor as the prosecution failed to prove the source of date of birth recorded in the school records.

Now, let us deal with the issue of charge of rape and sexual assault allegedly committed by the respondent-accused upon the victim. Upon close scrutiny of the evidence of victim, since 24.06.2019 to 01.08.2019, she was in the company of the accused Govindbhai. She stayed at the house of the accused Shankarbhai – A1. Shankarbhai was living with his wife and daughter in one room. The area where the house situated, was residential area. As per the prosecution case, she was forcefully made to sit on the bike and then, taken her to Village: Dholka from Limkheda. She had travelled in the bus. Almost one month, she had stayed at Village: Dholka. In such circumstances, the story projected by the victim that she was confined in a room illegally by the accused, cannot be acceptable as in one room, five persons had stayed together and therefore, it could be inferred that she was having an opportunity to run away from the place, but she didn’t opt to run away. She did not have make any hue and cry for any help. In such circumstances, when the age of the victim has not been proved, then, she presumed to be an adult person and having regard to the conduct of the victim, as discussed, it seems that she is the consenting party and relationship during the stay at Dholka was consensual in nature. Thus, the version of the victim that, she was under confinement of the accused and under the threat and against her wish and will, the accused committed rape upon her and also an act of penetrative assault is not believable and does not inspire confidence.

It is submitted that, the trial court ought to have raised the presumption under Section 29 of The POCSO Act and it is presumed that the accused has committed the offence. In our opinion, the submission is misconceived and cannot be accepted because once the factum of minority of the victim is not proved, then, question does not arise to raise the presumption under the provisions of the POCSO Act. Even, no evidence on record to draw the presumption under Section 114(A) of The Evidence Act because the foundation of the prosecution case on the charge of rape and penetrative sexual assault having not been proved by evidence on record.

In the result, on considering the evidence on record, the trial court was justified in arriving at the correct conclusion that prosecution has failed to prove the charge against the accused beyond reasonable doubt. The findings of the acquittal are based on proper appreciation of the evidence on record and do not suffer from any perversity warranting interference by us.

With the observations as aforesaid, the present appeal, at the admission stage, is dismissed.