RAJESH VELJIBHAI CHAVDA vs BHARAT RANCHHODBHAI VAGHELA
- Court
- Gujarat High Court
R/CR.A/2402/2026 JUDGMENT DATED: 23/10/2026
(GJHC240459622026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2402 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA sd/-
and
HONOURABLE MR. JUSTICE R. T. VACHHANI sd/-
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Approved for Reporting Yes No
no
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RAJESH VELJIBHAI CHAVDA
Versus
BHARAT RANCHHODBHAI VAGHELA & ANR.
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Appearance:
MS NAMRATA H DAVE(10172) for the Appellant(s) No. 1
MS VRUNDA SHAH ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 23/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Being aggrieved and dissatisfied by the judgment and order
dated 25.03.2026 passed by the learned Special Judge (POCSO)
& Additional Sessions Judge, Jamnagar in Special POCSO Case
No.44 of 2024, whereby the learned Sessions Judge acquitted
the accused from the charges under Sections 363, 366, 376(2)(n)
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and Section 306 of the Indian Penal Code (for short, ‘I.P.C.’),
1860, and Sections 4, 6 and 12 of the Protection of Children
from Sexual Offences Act (for short, ‘POCSO Act’), 2012, the
present appeal under Section 419 of the Bharatiya Nagarika
Suraksha Sanhita (for short, ‘BNSS’), 2023 has been preferred
by the appellant herein.
2. For brevity and convenience, the parties are referred to as
per their original status before the learned Sessions Court.
2.1 Brief facts of the case are as under:
3. The minor victim aged about 16 years and 5 months, was
kidnapped from the lawful custody of her parents by the accused
Bharat Ranchhodbhai Vaghela on 08.05.2024 at around 20:00
hours and rape was committed upon her. It is alleged that the
accused was well aware that the victim was minor and still
abducted her from the lawful custody of her guardian and
committed rape upon her, and that he physically and mentally
tortured the victim, due to which she committed suicide and an
FIR came to be registered against the accused.
3.1 Upon registration of the offence, the I.O. proceeded to
investigate the case. During the investigation, the I.O. visited the
place of offence and collected the samples as suggested by the
FSL Officer, arrested the accused, recorded the statements of the
witnesses, drew various Panchnamas whereby the clothes worn
by the victim and the accused were seized, and obtained the
medical certificates and medical papers from the concerned
doctors. After receiving the FSL report, the charge-sheet was
filed before the Special Court, Jamnagar. At the end, the accused
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came to be charge-sheeted for the offences as referred above.
3.2 The learned Sessions Judge framed charge to which the
accused pleaded not guilty and claimed trial vide his statement
Exh.08. Thereafter, the prosecution had tendered an application
vide Exh.15 for addition of charge of Section 306 of I.P.C., which
was allowed and added in the charge vide Exh.21, which was
denied by the accused vide reply at Exh.22.
3.3 Before the learned Sessions Court, the prosecution had
examined as many as 03 witnesses and produced various
documentary evidences and thereafter, closed its evidence vide
closing pursis Exh.60.
3.3 The learned Sessions Court recorded further statements of
the accused as provided under Section 313 of Code of Criminal
Procedure (for short, ‘Cr.P.C.’), 1973, wherein, he claimed his
innocence and stated that he has been falsely implicated in the
offence. At the conclusion of the trial, the learned Sessions
Court, vide judgment and order dated 25.03.2026, acquitted the
respondent – accused for the offences as referred above.
3.4 Being aggrieved, the appellant has preferred the present
appeal.
4. Submissions made on behalf of the appellant are as under:
4.1 It is 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. It is
submitted that the learned Sessions Court failed to appreciate
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that, the victim was proved to be a minor, as PW-1 (Exh.12), the
brother of the victim, had deposed that her date of birth was
30/11/2007 and that she was 16 years and 5 months old on the
date of the incident, which is consistent with the birth proofs,
municipal certificates and school records of Nirmala High
School, Rajkot, brought on record through the verification
reports (Exh.26 and Exh.27) submitted by the Investigating
Officer (PW-3, Exh.46).
4.2 It is submitted that the learned Sessions Court has
adopted a hyper-technical approach in holding that the minority
is not proved only because the birth certificate was not
separately exhibited; and that the learned Sessions Court
ignored the presumption under Sections 29 and 30 of the
POCSO Act, which place a strict mandatory presumption to
assume the culpable mental state and the commission of sexual
assault once the foundational facts are proved, and has wrongly
cast the burden upon the prosecution to prove its case
independent of those provisions.
4.3 It is further submitted that, the prosecution has proved an
unbroken chain of circumstances, namely the victim going
missing from Jamnagar on 08/05/2024, the telephone link from
Adesar showing that she was in the custody of the accused, the
discovery of her body in an uncultivated field area at Morbi
(Makansar wadi) and the medical evidence showing death due to
poisoning. It is submitted that the accused offered no
explanation in his statement under Section 313 of Cr.P.C. as to
how the victim came to be dead in his company, which is an
additional link in the chain; and that the learned Sessions Court
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ignored the 59 documents relied upon by the prosecution,
including the Inquest Panchnama (Exh.29), the Arrest
Panchnama (Exh.30), the Spot Panchnamas (Exh.28 and
Exh.31), the medical papers and sample recovery documents
(Exh.47, 49 and 50) and the FSL Biology and Serology Report
(Exh.59), which corroborates the case of the prosecution.
4.4 It is also submitted that the learned Sessions Court
wrongly treated the delay in lodging the FIR on 17/05/2024 as
fatal, ignoring the explanation of PW-1 that the family was
searching for the victim in several districts, arranging the post-
mortem at Rajkot and performing her final rites; and that the
learned Sessions Court placed undue weight on the fact that
PW-1 was working in Surat when the victim left the house,
though his absence does not affect the reliability of his evidence
on the search, the phone tracking and the recovery of the body.
4.5 Upon foregoing submissions, it is urged to allow the
present appeal and to quash and set aside the impugned
judgment and order by convicting the accused of the charges as
referred above.
5. We have heard learned Counsel for the appellant, at the
stage of admission, and carefully perused the oral as well as the
documentary evidences adduced before the learned Sessions
Judge.
6. 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, as
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mentioned in the birth certificate shown to the complainant, was
30.11.2007. The complainant (PW.1) Exh.12, who is the brother
of the victim, has stated in his deposition that he does not
remember the birth date of the victim. The birth certificate has
not been exhibited and not brought on record. The I.O. (PW.3)
Exh.46 has only deposed that he did the yadi to verify the birth
certificate of the victim. The prosecution has not examined any
witness to prove the age of the victim. In the aforesaid context
and evidence on record, the learned Sessions Court on the
aspect of age, has observed that the prosecution has failed to
prove that the victim was minor at the time of incident and
thereby held that the prosecution miserably failed to prove that
the victim was minor at the time of incident. We concur with the
findings of the learned Sessions Court and do not find a reason
to take a different view.
7. Now, let us deal with the issue of charge of kidnapping,
rape and abetment of suicide allegedly committed by the
respondent-accused upon the victim. Upon close scrutiny of the
evidence of the complainant (PW.1), at the time of incident, he
was at Surat and his grand-mother informed him about the
incident. He has admitted in his cross-examination that he
cannot say how and with whom the victim had gone, that he
cannot say whether the victim went alone or not and that he had
not seen his sister in custody of the accused. The persons
namely Rupa Deva, Mansukh Gokal and Lakha Mulu, through
whom the complainant came to know that the victim was in
custody of the accused and that her dead body was lying at
Makansar, as well as the grand-mother of the complainant, have
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not been examined by the prosecution. The I.O. (PW.3) has
admitted in his cross-examination that the complainant was at
Surat at the time of incident and that the dead body of the victim
was found from the field. As per the P.M. Note (Exh.34), the
cause of death is cardio-respiratory failure on account of
poisoning and the death of the victim was caused on
10.05.2024, the A.D. was registered on 12.05.2024 at Adesar
Police Station, whereas the present complaint was lodged on
17.05.2024. There is nothing on record to prove that the accused
had committed rape upon the victim or that he had caused
constant harassment to the victim due to which she committed
suicide. Thus, the version of the prosecution that, the accused
had abducted the victim and committed rape upon her and that
she committed suicide due to the act of the accused is not
believable and does not inspire confidence.
8. It is submitted that, the learned Sessions 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.
9. Recently, in the case of Birka Shiva Vs. State of Telangana,
(2025 INSC 863), the Hon’ble Supreme Court, has set aside a
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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 Hon’ble 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).
10. Applying the aforesaid principles of law to the facts of the
present case, we have no hesitation to held that, the prosecution
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miserably failed to prove that, on the day of incident, the victim
was minor as the prosecution failed to prove the date of birth of
the victim by examining any witness.
11. 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 consider 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, 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.
12. In a nutshell, 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.
13. In view of the foregoing, the present appeal sans merit and
deserves to be dismissed and accordingly, it is dismissed.
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14. The impugned judgment and order dated 25.03.2026
passed by the learned Special Judge (POCSO) & Additional
Sessions Judge, Jamnagar in Special POCSO Case No.44 of
2024 stands confirmed.
15. Record and proceeding, if any, be remitted to the
concerned Court.
sd/-
(ILESH J. VORA,J)
sd/-
(R. T. VACHHANI, J)
PARMAR KRISH
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