BHIMABHAI VIRABHAI DHANGRI vs STATE OF GUJARAT

R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
(GJHC240786042025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 3123 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
================================================================
Approved for Reporting Yes No
================================================================
BHIMABHAI VIRABHAI DHANGRI
Versus
STATE OF GUJARAT & ANR.
================================================================
Appearance:
JIGNESHKUMAR M NAYAK(8558) for the Appellant(s) No. 1
MR LB DABHI, APP for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 22/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Here is the Appeal by the appellant - original complainant, under
Section 413 of B.N.S.S. against the judgment and order of acquittal.
2. Being dissatisfied by the judgment and order passed by the learned
Second Additional Sessions Judge and Special (POCSO) Judge,
Banaskantha at Palanpur passed in Special (POCSO) Case No.29 of 2024,
dated 06.09.2025, acquitting the respondent - accused from the offences
punishable under Sections 363, 366 and 376 of the Indian Penal Code and
Section 4 of Protection of Children from Sexual Offences Act, 2012
(POCSO Act), the appellant has preferred instant appeal.
3. We have heard Learned Advocate for the appellant, and learned
APP for the respondent - State.
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4. Brief facts giving rise to file the present Appeal are that, the minor
victim aged about 16 years 8 months and 27 days, was allegedly
subjected to sexual abuse by the respondent-accused. It is alleged that, the
accused gave his mobile number to the victim at a marriage function,
talked with her on phone and developed a love relationship with her. On
07.06.2024, at about 2 O’clock in the night, the accused went to the house
of the victim and asked her to elope and marry him. The victim told him
that she was of a young age, was studying and did not want to go
anywhere. The accused told her that he would die if she did not come
with him, held her hand and took her down from the terrace. He took her
to a house in the outskirts of village Vashi Dabheli, belonging to one
Hajiben Vajabhai Mansa and, against her wish, committed sexual
intercourse with her once. The father of the victim lodged an FIR on
07.06.2024 with Amirgadh Police Station. Upon registration of the
offence, the I.O. proceeded to investigate the case. At the end, the
accused came to be chargesheeted for the offences as referred above.
5. The learned Sessions Court framed charge to which the accused
pleaded not guilty and claimed trial.
6. Before the learned Sessions Court, the prosecution has examined as
many as 12 witnesses, including the prosecutrix (PW-4). The prosecution
has relied upon 28 exhibited documents.
7. On conclusion of oral evidence, the learned Sessions Court
recorded further statements of the accused as provided under Section 313
of Cr.P.C., wherein, he claimed his innocence and stated that he has been
falsely implicated in the offence.
8. The learned Sessions Judge, after appreciating and examining the
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R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
(GJHC240786042025)
oral as well as documentary evidence, acquitted the accused herein for the
offences with which he was charged, on the following grounds:
(i) The prosecution failed to prove that the victim was below 18
years of age at the time of incident i.e. on 07.06.2024. The learned
Sessions Court on the issue of age, held and observed that, the
Talati-cum-Mantri of Dholiya Gram Panchayat, (PW-10) Gami
Nareshbhai Ramabhai, who produced the birth register (Exh.46)
and the copy of birth certificate (Exh.47), stated in cross-
examination that no birth was registered in his presence. No
document sent by any hospital at the time of registration, and no
written application of the person who got the birth registered, was
produced, and the register does not show who gave the date of
birth.
(ii) The father of the victim signs, while the extracts of the birth
register bear a thumb impression of the informant, and the defence
has probablised through the cross-examination of the father that the
entry is not proved. The learned Sessions Court held that the
prosecution failed to establish the very place of birth of the victim
and the contents of such entries cannot be treated as proved under
Sections 74 and 35 of the Evidence Act, and that the presumption
under the POCSO Act is not available to the prosecution unless the
age below 18 years is proved beyond doubt.
(iii) On the issue of charge of kidnapping and rape, the learned
Sessions Court after appreciation of evidence of the victim, came
to a conclusion that, the victim sleeping on the terrace with her
sisters and brother did not raise any hue and cry, silently came
down with the accused, did not try to escape, did not call the
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R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
(GJHC240786042025)
neighbours, travelled in a rickshaw with the accused without
telling the driver anything, walked about one and a half kilometre,
and stayed in a house where other persons were also residing
without telling them anything, and that she went with the accused
on her own volition and wish; the version of forcible taking and
forcible sexual intercourse does not merit acceptance.
9. In such circumstances, the appellant-original complainant is before
us, with the present acquittal appeal.
10. Learned Advocate for the appellant, 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 learned
Sessions Court failed to appreciate that, the victim was minor at the time
of the incident and yet the learned Sessions Court held her to be major;
that, the Talati-cum-Mantri (PW-10) had produced the birth certificate
and as per the birth certificate the age of the victim at the time of incident
was 16 years, which has not been considered in its true and proper
perspective; that, the victim in her chief examination has stated that the
accused forcefully detained her and committed the offence without her
consent; that, there is a prima facie case of rape; that, the learned Sessions
Court has made certain presumption without any base in favour of the
accused without any legal evidence on record.
11. In such circumstances, as referred above, it has been submitted that
while acquitting the respondent accused, the learned Sessions 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
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R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
(GJHC240786042025)
recorded by the learned Sessions 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.
12. In the present case the issue falls for our consideration as to
whether the learned Sessions Court was justified in acquitting the
accused?
13. We have carefully examined the oral as well as documentary
evidence and perused the findings of acquittal rendered by the learned
Sessions Court.
14. Before proceeding further, 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 learned Sessions 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, as the same has been laid down by the Hon’ble Supreme
Court, in the case of Tulasareddi @ Mudakappa & Anr. v. The State of
Karnataka & Ors., 2026 INSC 67 .
15. In the facts of the present case, the learned Sessions 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 10.09.2007. The witness
(PW-10) Gami Nareshbhai Ramabhai being a Talati-cum-Mantri of
Dholiya Gram Panchayat, has produced the birth register (Exh.46) and
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R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
(GJHC240786042025)
the copy of birth certificate (Exh.47). 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 birth
register. In the aforesaid context and evidence on record, the learned
Sessions 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 Gram Panchayat, has not been
proved and therefore, it is held by the learned Sessions Court that the
prosecution failed to prove that the victim was minor at the time of
incident.
16. Appraise the aforesaid issue, the decision rendered in Birka Shiva
Vs. State of Telangana, (2025 INSC 863) is germane, as 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 learned
Sessions 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.
17. 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
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R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
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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 ).
18. Applying the aforesaid principles of law to the facts of the present
case, we have no hesitation to held that, the prosecution 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 birth register.
19. Now, reverting on the issue of charge of kidnapping and rape
allegedly committed by the respondent-accused upon the victim. Upon
close scrutiny of the evidence of victim, on the night of 07.06.2024, she
was sleeping on the terrace of her house along with her sisters and
brother, while her parents had gone to the field. The accused came there
at about two to three O’clock in the night and she was taken down from
the terrace and went on foot a little distance. She did not have make any
hue and cry for any help. She did not try to escape from the accused and
did not call the persons residing nearby. She travelled with the accused in
a rickshaw and did not disclose to the driver that she was being taken
forcibly, got down from the rickshaw and walked about one and a half
kilometre with the accused. She stayed in a kachcha house near Neliyu,
where other persons were also residing, and did not tell those persons that
she was brought forcibly or that rape was being committed on her. When
her parents came, she was alone. She has admitted that in her statement
before the police she did not state that the accused threatened to kill her
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R/CR.A/3123/2025 JUDGMENT DATED: 22/10/2026
(GJHC240786042025)
brother if she raised hue and cry and that she was forced into the
rickshaw. 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 Neliyu 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.
20. In the result, on considering the evidence on record, the learned
Sessions 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.
21. With the observations as aforesaid, the present appeal, at the
admission stage, is dismissed.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
MVP
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