BHAVESH NATWARLAL SAYANI vs STATE OF GUJARAT

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Reserved On : 21/09/2026
Pronounced On : 29/10/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1512 of 2019
With
R/CRIMINAL APPEAL NO. 1589 of 2019
With
R/CRIMINAL APPEAL NO. 1611 of 2019
With
R/CRIMINAL APPEAL NO. 1671 of 2019
With
R/CRIMINAL APPEAL NO. 1673 of 2019
With
R/CRIMINAL APPEAL NO. 1674 of 2019
With
R/CRIMINAL APPEAL NO. 1814 of 2019
With
R/CRIMINAL APPEAL NO. 829 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE L. S. PIRZADA

==========================================================
Approved for Reporting Yes No
√
==========================================================
BHAVESH NATWARLAL SAYANI
Versus
STATE OF GUJARAT
==========================================================
Appearance in CR.A. No.1512 of 2019 :
MR YATIN OZA SENIOR ADVOCATE ASSISTED BY MR APURVA
R.KAPADIA ADVOCATE WITH MR ANURAG RATHOR ADVOCATE
for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.1589 of 2019 :
MR YATIN OZA SENIOR ADVOCATE ASSISTED BY MR APURVA
R.KAPADIA ADVOCATE WITH MR ANURAG RATHOR ADVOCATE
Page 1 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.1611 of 2019 :
MR PUNDREEK B.ODEDRA ADVOCATE for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.1671 of 2019 :
MS KAVITA B.GAJJAR ADVOCATE for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.1673 of 2019 :
MS KAVITA B.GAJJAR ADVOCATE for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.1674 of 2019 :
MS KAVITA B.GAJJAR ADVOCATE for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.1814 of 2019 :
MS KAVITA B.GAJJAR ADVOCATE for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in CR.A. No.829 of 2021 :
MR MAKBUL I.MANSURI ADVOCATE for the Appellant(s) No. 1
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE L. S. PIRZADA


CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. All the Appeals filed under Section 374 of the Code of
Criminal Procedure, 1973 (for short as ‘Cr.P.C.’) challenge the
judgment of conviction and sentence passed by the learned
Page 2 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Special (POCSO) Judge, Jamnagar dated 17.07.2019 in Special
(POCSO) Case No.21 of 2016.
1.1 The trial of Sessions Case No.21 of 2016 was against
eight accused under Sections 376(d), 504, 506(2) of the Indian
Penal Code, (for short ‘IPC’) and Section 4, 5(g)(1), 6 and 17
of the Protection of Children from Sexual Offence Act, 2012
(for short ‘POCSO Act’) and Sections 4, 5 and 6 of the
Immoral Traffic (Prevention) Act, 1956 (for short ’Immoral
Traffic Act’).
1.2 By judgment dated 17.07.2019, all the appellants as
accused came to be convicted and sentenced for the offences
as under:
CRA No. Accused
Nos.
Section Imprisonment Fine In
default
1512/2019 5 376(d) of
IPC
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
4 of
POCSO
Act
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
For the
offence
U/s. 5(g)(l)
punishable
U/s. 6 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
1589/2019 6 376(d) of
IPC
For life (till
his last
breath)
25,000/- 3
Months
Page 3 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
4 of
POCSO
Act
For life (till
his last
breath)
25,000/- 3
Months
S.I,
For the
offence
U/s.5(g)(l)
punishable
U/s. 6 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
1611/2019 8 376(d) of
IPC
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
4 of
POCSO
Act
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
For the
offence
U/s.5(g)(l)
punishable
U/s. 6 of
POCSO
Act
10 Years of
R.I.
10,000/- 2
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
1671/2019 7 376(d) of
IPC
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
4 of
POCSO
Act
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
For the
offence
U/s. 5(g)(l)
punishable
U/s. 6 of
10 Years R.I. 10,000/- 2
Months
S.I.
Page 4 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
POCSO
Act
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
1673/2019 4 376(d) of
IPC
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
4 of
POCSO
Act
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
For the
offence
U/s. 5(g)(l)
punishable
U/s. 6 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
4 of
Immoral
Traffic Act
7 Years 25,000/- 3
Months
S.I.
5 Immoral
Traffic Act
7 Years 25,000/- 3
Months
S.I.
6 Immoral
Traffic Act
7 Years 25,000/- 3
Months
S.I.
1674/2019 2 376(d) of
IPC
R.I. for life
(till his last
breath)
25,000/- 3
Months
S.I.
506(2) of
IPC
5 Years R.I 10,000/- 2
Months
S.I.
4 of
POCSO
Act
R.I for life
(till his last
breath)
25,000/- 3
Months
S.I.
Page 5 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
For the
offence
U/s. 5(g)(l)
punishable
U/s. 6 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
4 of
Immoral
Traffic Act
7 Years R.I. 25,000/- 3
Months
S.I.
5 Immoral
Traffic Act
7 Years 25,000/- 3
Months
S.I.
6 of
Immoral
Traffic Act
7 Years 25,000/- 3
Months
S.I.
1814/2019 1 4 of
Immoral
Traffic Act
7 Years R.I. 25,000/- 3
Months
S.I.
5 of
Immoral
Traffic Act
7 Years R.I. 25,000/- 3
Months
S.I.
6 Immoral
Traffic Act
7 Years of
R.I.
25,000/- 3
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
506(2) of
IPC
5 Years R.I 10,000/- 2
Months
S.I.
829/2021 3 4 of
Immoral
Traffic Act
7 Years R.I. 25,000/- 3
Months
S.I.
5 of
Immoral
Traffic Act
7 Years R.I. 25,000/- 3
Months
S.I.
6 of 7 Years R.I. 25,000/- 3
Page 6 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Immoral
Traffic Act
Months
S.I.
17 of
POCSO
Act
10 Years R.I. 10,000/- 2
Months
S.I.
2. The fact of the prosecution case is that the victim aged
about 15 years was sent to various persons by her mother i.e.
accused no.1 for the purpose of prostitution. It is also alleged
that the victim was sexually assaulted by various accused, on
number of occasions.
2.1 An FIR came to be lodged on 15.03.2016 vide CR No.1-
58/2016 with Jamnagar C Division Police Station and the
appellants accused came to arrested for the same, and the
same has culminated into Special (POCSO) Case No.21 of
2016 before the Court of Special Judge (POCSO), Jamnagar.
3. Learned Senior advocate Mr. Yatin Oza had taken the
lead of the arguments, rest of the advocates for the appellants
adopted the submissions raised.
4. Learned Senior advocate Mr. Yatin Oza for the appellants
submitted that the judgment and order of conviction and
sentence passed by the learned Special (POCSO) Judge,
Jamnagar, is contrary to the facts, evidence and circumstances
brought on record. The learned Trial Court has not properly
appreciated the evidence in its true and correct perspective
and has failed to consider the material contradictions,
omissions, infirmities and deficiencies appearing in the
prosecution case. The findings recorded against the
Page 7 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
appellants are, therefore, submitted to be based upon an
erroneous appreciation of the evidence and the conclusions
drawn by the learned Trial Court do not follow from the
material available on record.
4.1 Learned Senior advocate Mr. Oza for the appellants
submitted that the entire prosecution case requires
consideration in the background that several material
prosecution witnesses have not supported the prosecution
version, most importantly, the victim, who is the principal
witness in the prosecution case, has not supported the
prosecution case in material particulars during her deposition
before the learned Trial Court. It is submitted that the
deposition of the victim does not establish the allegations
attributed to the respective appellants and does not
satisfactorily establish their individual involvement in the
alleged offences. The prosecution therefore could not
establish the charges against the appellants independently
through other reliable and legally admissible evidence. The
learned Trial Court, however, has relied upon the earlier
version of the victim and other circumstances despite the fact
that the victim did not support the prosecution case during
trial.
4.2 Learned Senior advocate Mr. Oza for the appellants
further submitted that the prosecution has relied upon the
statement of the victim recorded under Section 164 of the
Code of Criminal Procedure, however such statement could
not have been treated as substantive evidence in itself,
Page 8 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
particularly when the maker of the statement did not support
its contents in her deposition before the learned Trial Court.
The evidentiary value and permissible use of a statement
recorded under Section 164 Cr.P.C. had to be considered in
accordance with law.
4.3 Learned Senior advocate Mr. Oza for the appellants
submitted that the learned Trial Court was required to
examine whether the earlier statement could safely be relied
upon in the face of the subsequent deposition of the victim
and the material discrepancies appearing between the FIR,
the statement under Section 164 Cr.P.C. and the deposition
before the Court. It is submitted that these variations were
not merely insignificant discrepancies but were circumstances
which went to the root of the prosecution case and required
careful consideration before recording a conviction.
4.4 It is further argued by learned Senior Advocate Mr. Oza
for the appellants that the evidence of the Investigating
Officer - Chhaganbhai Nathubhai Parmar (PW-14), also
assumes considerable importance in this regard. It has
emerged from his cross-examination that the victim had
approached the police station along with her mother for
registration of the FIR, and this circumstance requires proper
consideration, particularly when allegations had also been
levelled against the mother of the victim. The circumstances
in which the victim allegedly accompanied her mother to the
police station, despite the allegations attributed to the mother,
Page 9 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
were required to be examined objectively.
4.5 Mr. Oza learned senior advocate for the appellants
contended that the material variations were noticed between
the version in the FIR and one recorded under section 164
Cr.P.C. of the victim girl, however the investigating agency
had not satisfactorily investigated or explained the said
discrepancies. The Investigating Officer admittedly did not
obtain a further statement of the victim for the purpose of
explaining the material variations between the FIR and the
subsequent statement. These circumstances were material for
assessing the reliability of the prosecution, which ought to
have received due consideration.
4.6 Learned Senior advocate Mr. Oza for the appellants
further submitted that the learned Trial Court has erred in
placing undue reliance upon the evidence of the Investigating
Officer and the Medical Officer. The testimony of the
Investigating Officer establishes the steps allegedly taken
during investigation, but it cannot, by itself, establish the
actual occurrence or the individual participation of an
accused, where the substantive evidence relating to such
participation is otherwise unreliable or deficient.
4.7 It is further submitted that likewise, the medical
evidence of Dr. Neetaben Hirabhai Rada (PW12) is required to
be appreciated in its proper evidentiary context, as the
medical evidence may establish particular medical findings,
Page 10 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
but it does not by itself establish the identity of the
perpetrator or the specific role attributed to each accused. In
the present case the medical evidence does not independently
establish that any particular appellant committed the alleged
acts, therefore in absence of reliable substantive evidence
connecting the respective appellants with the alleged offence,
the testimony of the Investigating Officer and the Medical
Officer could not have been treated as sufficient
corroboration.
4.8 Learned Senior advocate Mr. Oza for the appellants
further submitted that the prosecution evidence relating to
the panchnamas also suffers from material infirmity. It is
submitted that Kamleshbhai Shamjibhai Lal (PW-1) and
Dineshbhai Shamjibhai Lal (PW-2), who were examined in
connection with panchnama (Exh.-32) concerning seizure of
the clothes of the victim, do not support the prosecution case.
4.9 It is further submitted by learned senior advocate Mr.
Oza for the appellants that Ashoksinh Karubha Jadeja (PW-3),
examined in connection with panchnama (Exh.37),
concerning the alleged place of offence, does not support the
prosecution case. The learned Trial Court ought to have
considered the effect of the independent panch witnesses not
supporting the prosecution version and ought to have
examined whether the relevant panchnamas were otherwise
satisfactorily proved in accordance with law. The failure of the
panch witnesses to support the prosecution case assumes
Page 11 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
significance when considered cumulatively with the victim
having not supported the prosecution case and the other
deficiencies emerging from the investigation.
4.10 Learned Senior advocate Mr. Oza for the appellants
further submitted that the prosecution has failed to establish
the individual role of each accused by reliable and cogent
evidence. The learned Trial Court, according to the learned
advocate for the appellants, has failed to maintain the
distinction and has proceeded upon a collective appreciation
of the prosecution case rather than determining whether the
evidence established the individual involvement of each
appellant beyond reasonable doubt.
4.11 Learned Senior advocate Mr. Oza for the appellants
further submitted that there were no independent
eyewitnesses to the alleged acts attributed to the appellants,
the victim did not support the prosecution case during her
deposition, and the panch witnesses did not support the
relevant panchnamas. In these circumstances, the evidence of
the Investigating Officer and Medical Officer, without
independent substantive evidence establishing the appellants
role could not safely constitute the foundation for conviction
under Sections 4, 5 and 6 of the Immoral Traffic (Prevention)
Act and Section 17 of the POCSO Act. The learned Trial Court
was required to examine each ingredient of the offences and
the evidence establishing the same against this particular
appellant.
Page 12 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
4.12 It is submitted that the learned Trial Court has failed to
properly appreciate the defence advanced on behalf of the
accused. The defence had pointed out the material
contradictions and omissions in the prosecution evidence, the
failure of the principal witnesses to support the prosecution
case, the deficiencies in the investigation, the evidentiary
limitations of the statements relied upon by the prosecution
and the absence of reliable corroboration connecting the
individual appellants with the alleged offences. It is submitted
that the authorities relied upon by the defence concerning
appreciation of criminal evidence and the requirement of
proof beyond reasonable doubt were also required to be
considered in their proper factual and legal context. The
learned Trial Court, according to the appellants, has not
adequately dealt with these submissions and has rejected the
defence case without properly examining the cumulative
effect of the circumstances relied upon by the appellants.
4.13 It is further submitted that the statement of the accused
recorded under Section 313 of the Code of Criminal
Procedure has also not been properly appreciated. The
answers given by the accused constituted their explanation to
the circumstances put to them by the prosecution and were
required to be considered along with the entire evidence on
record. It is stated that though a statement under Section 313
Cr.P.C. cannot by itself discharge the prosecution burden, the
explanation furnished by an accused to material
circumstances relied upon by the prosecution is, however
Page 13 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
required to be considered while determining whether the
prosecution has established its case beyond reasonable doubt.
The learned Trial Court has, according to the learned
advocate for the appellants, failed to consider the defence
explanation in its true perspective and has instead drawn
adverse inferences from disputed circumstances.
4.14 Mr. Oza, learned senior advocate for the appellants
further submitted that the finding of the learned Trial Court
concerning the payment of Rs.6,50,000/- to the victim also
requires reconsideration. It is further submitted that the said
amount was not paid voluntarily as an inducement or as
consideration for the victim not supporting the prosecution.
The amount was paid pursuant to the order passed by the
Hon'ble High Court while enlarging the accused persons on
bail.
4.15 Learned Senior advocate Mr. Oza for the appellants
stated that insofar as the appellant in Criminal Appeal
No.1611 of 2019 is concerned, it is submitted that an amount
of Rs.3,00,000/- was paid by the said appellant pursuant to the
aforesaid order. The payment was therefore made in
compliance with a judicial order and was in the nature of
compensation. There is no independent evidence establishing
that the payment was made with an intention to influence,
threaten, induce or otherwise win over the victim. The learned
Trial Court, therefore, could not have treated the fact of
payment, by itself, as proof that the victim had been won over
Page 14 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
by the accused. Such an inference, as submitted, is not
supported by independent evidence and amounts to drawing a
conclusion beyond the material actually proved on record.
4.16 Mr. Oza learned senior advocate for the appellants
submitted that the learned Trial Court has failed to appreciate
the cumulative effect of the deficiencies in the prosecution
case. The issue was not whether each individual discrepancy,
omission or infirmity could independently destroy the
prosecution case, but whether the prosecution evidence,
considered as a whole, was of such quality as to establish the
guilt of each appellant beyond reasonable doubt. In the
present case, the material witnesses did not support the
prosecution case, the victim did not support the prosecution
version during trial, the panch witnesses did not support
important panchnamas, material variations emerged between
the FIR and the statement under Section 164 Cr.P.C., the
investigation did not satisfactorily address such discrepancies,
and the medical and investigative evidence did not
independently establish the individual role of the appellants.
These circumstances required the learned Trial Court to
exercise greater caution before recording a conviction.
4.17 Learned Senior advocate Mr. Oza for the appellants
submitted that the findings recorded by the learned Trial
Court are, in several respects, based upon inferences and
assumptions rather than upon evidence which conclusively
establishes the allegations against the individual accused. In a
Page 15 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
criminal trial, the prosecution is required to establish the
charge by legally admissible, reliable and cogent evidence,
and the burden does not shift merely because the prosecution
has raised suspicion against an accused. It is submitted that
where material doubt remains concerning the occurrence, the
identity or participation of an accused, or the reliability of the
principal evidence, such doubt is required to be considered in
accordance with the fundamental principles governing
criminal adjudication.
4.18 Learned Senior advocate Mr. Oza for the appellants
further submitted that the learned Trial Court has not
separately and adequately considered the question of
sentence in respect of each accused. The maximum
punishment imposed under the applicable provisions,
including Section 376(d) of the Indian Penal Code and Section
4 of the POCSO Act, required specific and adequate reasons
based upon the individual role and circumstances of each
accused. The sentencing exercise could not have proceeded
merely on a generalized consideration of the prosecution
allegations.
4.19 It is therefore, submitted by learned senior advocate
Mr. Oza for the appellants that the learned Trial Court has
failed to appreciate the prosecution evidence in its proper
perspective and has not adequately considered the material
contradictions, the failure of the principal witnesses to
support the prosecution case, the evidentiary limitations of
Page 16 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
the Section 164 Cr.P.C. statement, the absence of satisfactory
corroboration, the infirmities in the investigation, the failure
of the panch witnesses to support important panchnamas, the
absence of reliable evidence establishing the individual role of
each appellant, the explanation furnished under Section 313
Cr.P.C., and the circumstances in which compensation was
paid to the victim. The cumulative effect of these
circumstances goes to the root of the prosecution case and,
according to the appellants, renders the findings of conviction
and sentence unsustainable.
5. Learned APP Ms. Divyangna Jhala submitted that it is a
very serious case where the mother had been sending the
daughter for being sexually exploited by the co-accused, for
securing money for personal gain. Ms. Jhala, learned APP,
submitted that the mother had taken the girl to a hotel, where
the child was exploited by accused No.4. The prosecution
could prove the said fact by the documentary evidence of the
hotel, where the victim girl and accused Nos.1 and 4 had
made a temporary stay.
5.1 Learned APP Ms. Jhala submitted that accused Nos.2
and 3 had acted as tout and had taken the victim girl to the
co-accused, the facts could be proved by drawing the
panchnama of the places and that the police could identify
those accused, on the complaint of the victim.
5.2 Ms. Jhala, learned APP submitted that though the victim
girl has not supported the prosecution case during the trial,
however corroboration could be drawn from the statement
Page 17 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
recorded under section 164 Cr.P.C. and even from the
complaint given by the victim to the Investigating Officer.
Further, the corroboration could be found from the evidence
of the Doctors, who had examined the victim girl.
5.3 Leaned APP Ms. Jhala submitted that the birth
certificate has been given by the victim herself and looking to
the date of birth, the victim’s age was 15 years at the time of
offence and thus submitted that the reason given by the trial
Court Judge are consistent with the evidence proved on
record. Thus, Ms. Jhala stated that the appeals are required to
be dismissed.
6. Heard learned senior advocate Mr. Oza for the
appellants and learned APP Ms. Divyangna Jhala for the
respondent State.
7. The case against the accused is both under the POCSO
as well as under the Immoral Traffic Act. The victim girl was
examined as P.W.10, while she was examined in the Court her
age was recorded as 18 years. She had not supported the
prosecution case and thus was declared hostile and the
Additional Public Prosecutor had sought the permission of the
Court to cross-examine the victim in accordance with the
provision of Section 154 of the Evidence Act.
7.1 In the examination-in-chief she has stated that, she was
residing with her mother and brothers at the time of incident.
They are three sisters and three brothers. She stated that her
rd
date of birth is 15.05.2000 and she studied upto 3 standard
Page 18 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
in Lal School. She had denied the prosecution case even after
her being declared as hostile. She denied of her mother
instructing her for such activity. She had denied of any such
incident, where her sister had rebuked her. She also denied of
going to any hospital and denied of knowing accused Nos.4 to
8. The complainant had also denied of leaving Jamnagar and
had stated that none have committed offence of rape against
her.
7.2 The victim girl produced her certificate of date of birth
at Exh.79, which reflects her birth date as 15.05.2000. The
victim was referred to her original complaint Exh.80. The
complaint was read over and she stated that such complaint
has not been given by her and no such incident has taken
place with her. The victim girl also stated that after the
complaint, she was brought before the Court, that she does
not remember her statement, further stating that even if the
statement recorded in Court is read over to her she would not
be in a position to recollect it.
7.3 In the cross examination by the learned APP, the whole
complaint was referred. The witness as complainant has
denied of the facts written in the complaint Exh.80.
8. The complaint Exh.80, could be read by bifurcating the
specific allegation against all the accused.
8.1 In connection with the accused No.4 – Basirbhai
Shanbhai, the complainant victim has shown the connection,
through her mother, accused No.1 – Rukshnaben wife of
Page 19 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Anwarsuleman Fulgobal. The said part of the complaint, thus
read in, translated form as under:
“About three years ago today, when I was
young, I used to joke and banter with
Jitubhai Darbar, alias Bathiya, who lived
next door. My mother Rukshanaben saw this
and scolded me, so after that, about a year
ago, my mother told me, "Do whatever
Jitubhai Bathiya tells you to do." She also
told me that we had to go to Diu with
Bashirbapu, who is our relative—Bashirbhai,
alias Bashirbapu Hasanbhai Veerparia—who
has done favors for us and gives us money.
She told me to do whatever Bashirbapu said,
and when I refused to do so, my mother told
me, "If you don't do as told, I will burn
you alive and kill you." Out of fear and
terror, around 6:00 PM in the evening, I
left Jamnagar for Diu in a black car with
Bashirbapu and reached Diu at around 12:00
midnight. Bashirbapu booked two rooms in a
hotel; I and Bashirbapu stayed in one room,
while my mother Rukshanaben stayed in the
other room. Bashirbapu drank beer and also
made me drink a glass of beer. Afterwards,
Bashirbapu told me, "Your mother has spoken
to you, get ready." He then inappropriately
touched my body, and when I refused, he
committed an ill act (sexual
assault/misconduct) against me against my
will. About an hour later, Bashirbapu
committed an ill act against me again
against my will, and then we went to sleep.
In the morning, around 10:30 AM, we left
Diu and returned to Jamnagar.
About a month after that, this Bashirbapu
came to my home. While I and my mother
Rukshanaben were at home, Bashirbapu spoke
with my mother, and my mother told me, "Go
to Bashirbapu, I am going into a terrace
(Ravesh)," and sent me to Bashirbapu. My
mother went into trance, and Bashirbapu
Page 20 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
committed an ill act with me. A few days
later, Bashirbapu came back and was
committing an ill act against my will when
my sister Karishmaben arrived and knocked
on the door. Bashirbapu went into the
bathroom, and when I opened the door, my
sister came inside, saw Bashirbapu in the
bathroom, and scolded me and my mother.
About fifteen days after that,
Bashirbapu's wife was admitted to the
hospital, so he took me in his car to his
home. At that time, a friend of his was
with him, and both of them took me to
Bashirbapu's house. Since no one was there,
Bashirbapu committed an ill act with me.
When Bashirbapu went to another room, his
friend came to me and committed an ill act
with me in Bashirbapu's room. Late at
night, they dropped me off at my home. A
short time later, this Bashirbapu and his
friend, the owner of Sayeed Hotel, both
took me in Bashirbapu's four-wheeler car
towards Balachadi Road and on the way, in
the car, both of them committed sexual
assault against me against my will, and a
few days after that, both of these persons
spoke with my mother, took me in the car on
the road to Rajkot, and both of them turn-
by-turn committed sexual assault against
me.”
8.2 For the case against accused No.2 – Rajeetsing
Dasrathsinh Jadeja, the complainant victim had alleged him
to be an agent, who had taken her to accused No.8 –
Kiranbhai Jairambhai, further stating that accused No.8 did
pay money to the complainant as well as accused No.2. The
complainant has also complained of sexual assault even by
accused No.2. The said content of the complaint in English
would read thus:
Page 21 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
“Thereafter, about six months ago from
today, around 1:00 PM in the afternoon,
Ranjitsinh alias Dashrathsinh alias Dashubha
Khumansinh Jadeja, who lives next to us, took
me to Kiranbhai in Dared. There, in a room,
this Kiranbhai committed sexual assault
against me, gave me fifteen hundred rupees,
and Kiranbhai went outside. Thereafter, this
Dashubha took 500/- rupees from me, and
Dashubha Darbar committed sexual assault
against me, and after that, we/this Dashubha
alias Ranjitsinh kept coming to my home on
his Luna motorcycle.
8.3 Another instance connecting accused No.2 and accused
No.8 has been recorded in the complaint as under:
Thereafter, about three months ago,
Dashubha alias Ranjitsinh Darbar took me on
his Luna to Kiranbhai in Udyognagar, and
Kiranbhai committed sexual assault against me
and gave me three thousand rupees, out of
which Dashubha Darbar took five hundred
rupees.
8.4 Connecting accused No.2 – Dashubha alias Ranjitsinh
Darbar, the case was also alleged against accused No.5 –
Bhavesh Natwarlal of sexual assault by him and accused No.5
having paid money to her.
Thereafter, this Dashubha alias Ranjitsinh
Darbar enticed me by saying that "Go with my
friend Bhaveshlal Sanyani, by caste Luana, he
will give you money," and took me to the house
of Bhaveshbhai Luana located near Viralbag.
Dashubha alias Ranjitsinh talked to Bhaveshbhai,
sent me with him, while Dashubha sat in another
room there. Even though I was young in age,
Bhaveshbhai committed sexual assault against me
and gave me two thousand rupees. Thereafter, at
Page 22 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Bhaveshbhai's house, this Dashubha alias
Ranjitsinh abused me, intimidated and threatened
to kill me and ruin my reputation, and dropped
me off four times. Bhaveshbhai committed sexual
assault against me, and took me about ten times
to his office located at Indraprastha near
Pancheshwar Tower and committed sexual assault.
Each time, he gave me Rs. 1000/-, and Dashubha
took money from Bhavesh separately.
8.5 The complaint connects accused No.3 – Muskanben
Rafiquebhai Sama alleging her to have acted as an agent, who
had taken the victim to one fair complexion boy. The narration
in the complaint is as under:
Thereafter, about one month ago,
Muskanben, who lives next to us and is the wife
of Rafikbhai, took me to a farm (vadi) near
Hapa. There, a fair-complexioned boy with a
gold tooth committed sexual assault against me
on a cot in his room.
Thereafter, about three days later, I and
Muskan both went to this fair boy's farm. At
that time, this fair boy committed sexual
assault against me. The fair boy gave me his
mobile numbers 992495304 and 762108648_ and
told me that he would give me seven thousand
five hundred rupees later for committing sexual
assault against me, but has not given it till
date.
8.6 The complainant victim further in her complaint stated
that 15 days prior to her complaint dated 15.03.2016, she
refused to go for prostitution, but her mother forcefully sent
her, therefore she ran away from her home to her sister’s
house. For that purpose, the content, which gets reflected in
the complaint Exh.80 runs as under:
Page 23 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
About fifteen days ago, when I refused to
do this work/prostitution, my mother forcefully
sent me. As I said I would run away from home,
my mother left me at my sister Karishma's home
in Dharannagar. While I was at my sister
Karishma's home—that is, about eight days ago—
my sister Karishma's brother-in-law (husband's
younger brother) Ashib was harassing me, so
after staying for two days, I came back to our
home.
8.7 The complainant, thereafter states that four to five days
prior to the complaint, her mother, her sister, brothers and
accused No.2 and Ashib took her to one Bapu in
Dharannagar-1 for performing thread-ritual/amulet rituals
(dora-dhaga), and before that Bapu, she made complaint
about her mother subjecting her for sexual assault and
sending her for prostitution and the said Bapu had advised
her to give police complaint. The relevant paragraph making
her complaint to Bapu of Dharannagar-1 is reproduced herein
under:
About four to five days ago, my mother
Rukshanaben, my sister Karishma, my brother
Saukat, along with Dashubha and Ashib—all of
them took me to a Bapu in Dharannagar-1 for
performing thread-rituals/amulet rituals (dora-
dhaga). While I was alone with Bapu and his
wife and everyone else from our home was
sitting outside, I told Bapu that I have no
problem, but my mother makes me commit sexual
assault/prostitution, and for money, my mother
sends me with Dashubha Darbar to commit sexual
assault with others, and this Bashirbapu, his
friends, and Bhaveshbhai Luwana, etc., had
committed wrongful acts against me. I had
talked to Bapu, and I am fed up with my mother
and all these people, and when I asked what I
should do, Bapu told me, "If you go to the
police station and inform the police, your life
Page 24 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
will improve." He had made me stay at his home
overnight and sent my mother and others who
came with me back home, and told me to inform
the police. My sister Karishma came and took me
away the next day and dropped me off at my
home. Yesterday, I ran away from my home, and
when I returned home to get clothes, my mother
did not give me clothes, due to which I was fed
up; hence, I have come here to the police
station to lodge a complaint.
8.8 The complainant victim, thus had prayed to take legal
action against the accused as named in the final paragraph of
the complaint, which reads thus:
Thus, despite knowing that I am a minor,
my mother, for her own benefit, scared and
threatened me, gave threats to kill me, and
forced me into illicit/wrongful acts. Also,
accused Muskanben and Ranjitsinh alias Dashubha
took brokerage/commission to push me into
prostitution, forced me to have physical
relations with Bashirbhai, Bhaveshbhai,
Bhurabhai, Kiranbhai, and Bashirbhai's friend
Sayadi hotel owner, and detained me for
prostitution. The accused Dashrathsinh alias
Ranjitsinh, Bashirbhai, Bhaveshbhai, Bhurabhai,
Kiranbhai, and Bashirbhai's friend Sayadi hotel
owner repeatedly called me turn by turn,
verbally abused me, intimidated me, gave
threats to kill me, made me drink beer, and
repeatedly raped me against my will at
different places and times by different
individuals, ruining my dignity and committing
wrongful acts against me. I have come to lodge
a complaint against the persons mentioned
above, and my complaint is to take legal action
against them.
9. In a case under POCSO Act, the Court in view of the
provision of Section 29, is statutorily bound to draw
presumption for the offences committed under sections 3, 5, 7
Page 25 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
and 9, unless the contrary is proved. These sections in the
statute is supported by the Comments based on the Notes of
Clauses of the Bill, where the comments explains that the
section provides for presumption of accused committing the
offence and those abetting or attempting to commit the
offence, and where the victim child is below the age of 16
years, the Special Court shall have to presume that such
person has committed the offence unless the contrary is
proved. Now, when the victim girl has turned hostile, then the
Court would have to examine the case by referring to other
evidence on record. Section 25 of the POCSO Act, provides
that the statement of the child would be recorded as spoken
by the child under Section 164 of the Cr.P.C. The statement of
the victim child before the Magistrate soon after the incident
under section 164 Cr.P.C. would have more value than the
hostile deposition of the victim girl, if such statement under
section 164 Cr.P.C. stands proved during the trial. For further
corroboration the Court can also look into the history given by
the child before the Doctor/Medical Officer and such medical
evidence under section 164A of the Cr.P.C. would bring the
details of the medical examination of the victim girl.
Disclosure before the Doctor or the medical evidence
recorded by the Doctor could be referred for corroboration.
9.1 The Court can also, in case where the child witness turns
hostile, then can rely on the disclosure to the
mother/relative/teacher or any other reliable person, such
evidence can be considered in view of the provision under
section 6 of the Indian Evidence Act by applying the rule of
Page 26 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
res-gestae. Further, the school living certificate or the
ossification test for the age of the child could be used to
analyze that the victim as a child, at the relevant time was
minor and relevantly the conduct of the accused could be
considered for drawing the presumption of offence.
Corroboration is not imperative but a guidance of prudence
under given circumstances. Thus, even if when the victim
turns hostile, the Court may consider other evidences for
analyzing the guilt of the accused.
9.2 The complainant in her testimony, Exh.78, as P.W.10 had
rd
deposed that she had studied in Standard 3 in Lal School.
The POCSO Act has been invoked against the accused persons
by contending that the complainant was minor at the relevant
time. The reliance was placed on the birth certificate Exh.79.
The date of issuance of the document Exh.79 is 21.06.2000.
The document is issued by birth and death Registrar,
Municipal office Songadh. The person, who has signed the
document had not been examined to prove Exh.79. No
document from the Lal School was produced, though the
rd
victim had studied upto standard 3 . The FIR registered is of
15.03.2016 and the Juvenile Justice (Care and Protection of
Children) Act, 2015 came into force with effect from
15.01.2016. Thus, the provision of the J.J. Act, 2015 would be
applicable and the age of the minor would have to be
determined in accordance to the provision of Section 94 of the
J.J. Act, 2015, as has been observed in the case of
Pynchemalangaki Bareh Vs. State of Meghalaya , reported
in 2026 (0) INSC 984: 2026 (0) JX(SC) 1158. The Hon’ble
Page 27 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Supreme Court referred to the determination of the age of the
victim under the POCSO Act. It has been noted that the
statutory prescription under Section 94 of the J.J. Act applies
to determination of age of a victim under the POCSO Act. The
hierarchy of documents prescribed under Section 94(2) for
determining the age is required to be followed, which lays
down the documents namely; (i) date of birth certificate from
school or matriculation or equivalent certificate from
examination Board; (ii) birth certificate given by corporation,
municipal authority or panchayat; and (iii) only in absence of
(i) and (ii), by ossification test or any other test or any other
latest medical age determination test.
10. In the said judgment reference has been made of the
case of Jarnail Singh Vs. State of Haryana reported in
(2013) 7 SCC 263 , in context with 2007 Rules, where
connection is drawn with Juvenile Justice (Care and Protection
of Children) Rules, 2007.
10.1 It has been held in para-23 of Jarnail Singh (supra) as
under:
“ 23. Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict with
law, we are of the view that the aforesaid statutory
provision should be the basis for determining age,
even of a child who is a victim of crime. For, in our
view, there is hardly any difference insofar as the
issue of minority is concerned, between a child in
conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW, PW 6. The manner of determining
age conclusively has been expressed in sub-rule
Page 28 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
(3) of Rule 12 extracted above. Under the
aforesaid provision, the age of a child is
ascertained by adopting the first available basis
out of a number of options postulated in Rule
12(3). If, in the scheme of options under Rule
12(3), an option is expressed in a preceding
clause, it has overriding effect over an option
expressed in a subsequent clause. The highest
rated option available would conclusively
determine the age of a minor. In the scheme of
Rule 12(3), matriculation (or equivalent) certificate
of the child concerned is the highest rated option.
In case, the said certificate is available, no other
evidence can be relied upon. Only in the absence
of the said certificate, Rule 12(3) envisages
consideration of the date of birth entered in the
school first attended by the child. In case such an
entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied
upon. Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by
a corporation or a municipal authority or a
panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to
be taken into consideration for determining the
age of the child concerned, as the said certificate
would conclusively determine the age of the child.
It is only in the absence of any of the aforesaid,
that Rule 12(3) postulates the determination of
age of the child concerned, on the basis of medical
opinion.” (emphasis supplied)
10.2 Thereafter the case of State of Madhya Pradesh Vs.
Anoop Singh , reported in (2015) 7 SCC 773, was considered
by relying upon the judgment of Mahadeo Vs. State of
Maharashtra and Anr. , (2013) 14 SCC 637, to determine the
age of the victim and the yardstick directed to be followed by
the Court, for ascertaining the age of victim was as contained
in 2007 Rules.
Page 29 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
10.3 The judgment of P.Yuvaprakash V. State , reported in
2023 OnLine SC 846, was also referred in the case of
Pynchemalangaki Bareh (supra), where the age of the
accused under the POCSO Act was dealt with under Section
94 of the J.J. Act, 2015.
11. Section 94 of the J.J. Act, 2015 becomes relevant and
applicable in view of Section 34 of the POCSO Act, 2012.
Section 34 of the POCSO Act is reproduced herein under:
“ 34. Procedure in case of commission of offence by
child and determination of age by Special Court .—(1)
Where any offence under this Act is committed by a child,
such child shall be dealt with under the provisions of
30[the Juvenile Justice (Care and Protection of Children)
Act, 2015 (2 of 2016)].
(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person and it shall
record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to
be invalid merely by any subsequent proof that the age of a
person as determined by it under sub-section (2) was not
the correct age of that person.”
12. Section 34 of the POCSO Act by the provision under Sub-
section (2) mandates for determination of age of the child by
the Special Court, while such question arises in such
proceedings. The Special Court shall have to determine such
question, after the courts having satisfaction about the age of
such person, and the courts shall record in writing its reasons
for such determination.
Page 30 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
13. In P.Yuvaprakash V. State (supra) after having
considered the provision of section 34 of POCSO Act and
section 94 of the J.J. Act, it has been laid down in paras 15 and
16 as under:
15. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to the age
of a person arises in the context of her or him being a victim
under the Pocso Act, the courts have to take recourse to the
steps indicated in Section 94 of the JJ Act. The three
documents in order of which the Juvenile Justice Act
requires consideration is that the court concerned has to
determine the age by considering the following documents:
“94. (2)(i) The date of birth certificate from the
school, or the matriculation or equivalent certificate
from the examination Board concerned, if available;
and in the absence thereof;
(ii) The birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) And only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board.”
16. Section 94(2)(iii) of the JJ Act clearly indicates that the
date of birth certificate from the school or matriculation or
equivalent certificate by the examination board concerned
has to be firstly preferred in the absence of which the birth
certificate issued by the Corporation or Municipal Authority
or Panchayat and it is only thereafter in the absence of these
such documents the age is to be determined through “an
ossification test” or “any other latest medical age
determination test” conducted on the orders of the authority
concerned i.e. Committee or Board or Court.”
14. Here, in this present case, no entry from death and birth
register had been produced to consider the entry made in the
statutory register admissible in evidence in terms of Section
35 of the Act. In the present case, it has not come on record,
at whose instance the date of birth was registered in the
Page 31 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Municipal Office, Songadh; whether Exh.79 is the original
document issued from that office as a birth certificate of the
victim girl. Here, the certificate (Exh.79) has not been proved
through the office of birth and death registrar, Municipal
Office, Songadh. The mandatory document, as laid down
under Section 94 of the J.J. Act, has first to be considered, as
the date of birth certificate from the school or the
matriculation or equivalent certificate from the examination
board concerned, if available. The victim girl herself has
rd
stated that she has studied upto standard 3 in Lal school.
The Investigating Officer has made no attempts to procure
date of birth certificate from the school. In absence of date of
birth certificate from the school, no reliance could be placed
on the birth certificate produced by the victim, as referred to
have been issued by the Municipal Authority. Neither birth
and death registrar was examined, nor any person from the
office of Municipal Corporation was examined to prove
Exh.79, and when the document produced is not as prescribed
in sequence provided under section 94 of the J.J. Act, we are of
the considered view that the prosecution has failed to prove
the age of the victim in the manner required under Section 94
of the J.J. Act.
15. The offence registered under the POCSO Act for
penetrative sexual assault, punishable under Section 4 and for
offence under section 5(g) and (l), punishable under section 6
for the allegation of gang penetrative sexual assault on the
child, and penetrative sexual assault on the child more than
once or repeatedly could be considered, only if the age of the
Page 32 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
victim girl has been established to be below 18 years, hence
considering the provision of section 42 and 42A of the POCSO
Act, in failure to prove the basic facts necessary for the
appreciation of offence under POCSO, the case now has to be
examined for the offence under the IPC under sections 376
and 376D of IPC, as charged.
16. The provisions of Immoral Traffic Act drawing Sections
4, 5, 6 have been invoked against the accused. The allegation
is that the mother had sent the child to accused No.4 in their
own house and accusation is also that accused No.4 along
with owner of the Sayeed Hotel had gang raped victim in a
running car. Accused Nos.2 and 3 have acted as tout and have
earned by the sexual exploitation of victim by accused Nos.5
to 8 at different places.
17. Section 4 of the Immoral Traffic Act, 1956 punishes the
person, who makes their living on the earning of prostitution
and Section 5 is the penal provision for procuring, inducing or
taking a person for the sake of prostitution and section 6 is
with regard to detaining a person in premises, where
prostitution is carried on. Section 6 describes the offence of
detaining a person with or without the consent in any brothel
or in or upon any premises with intent that such person may
have sexual intercourse with the person, who is not the
spouse of such person.
18. Section 6 of the Immoral Traffic Act is reproduced
herein below to consider the case against accused Nos.4 to 8.
Page 33 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
“ 6. Detaining a [person] in premises where
prostitution is carried on. - Any person who detains [any
other person, whether with or without his consent],-
(a) in any brothel, or
(b) in or upon any premises with intent [that such person
may have sexual intercourse with a person who is not the
spouse of such person],
shall be punishable [on conviction, with imprisonment of
either description for a term which shall not be less than
seven years but which may be for life or for a term which
may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years.]
[(2) Where any person is found with a child in a brothel, it
shall be presumed, unless the contrary is proved, that he
has committed an offence under sub-section (1).
(2-A) Where a child found in a brothel, is on medical
examination, detected to have been sexually abused, it shall
be presumed, unless the contrary is proved, that the child
or minor has been detained for purposes of prostitution or,
as the case may be, has been sexually exploited for
commercial purposes.]
(3) A person shall be presumed to detain a woman or girl in
a brothel or upon any premises for the purpose of sexual
intercourse with a man other than her lawful husband, if
such person, with intent to compel or induce her to remain
there,—
(a) withholds from her any jewellery, wearing apparel,
money or other property belonging to her, or
(b) threatens her with legal proceedings if she takes away
with her any jewellery, wearing apparel, money or other
property lent or supplied to her by or by the direction of
such person.
(4) Notwithstanding any law to the contrary, no suit,
prosecution or other legal proceeding shall lie against such
woman or girl at the instance of the person by whom she
has been detained, for the recovery of any jewellery,
wearing apparel or other property alleged to have been lent
or supplied to or for such woman or girl or to have been
pledged by such woman or girl or for the recovery of any
money alleged to be payable by such woman or girl.”
Page 34 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
19. Herein in this case, the premises, where the victim girl
was detained with the accused Nos.4 to 8 has to be proved by
leading definite cogent evidence, where the victim girl was
detained for the purpose of sexual intercourse.
19.1 Here, the case was that the mother of the victim girl,
accused No.1, had taken the victim girl to Diu with Bashir
Bapu (Accused No.4), who is also a relative of the accused
No.1 and who had done favours to the victim’s family and was
giving money, thus, the mother told the victim girl to do
whatever Bashir Bapu say and if she refused, the mother
threatened that she would burn her alive and kill her. So the
victim girl had left Jamnagar for Diu in a black car with Bashir
Bapu and reached Diu at around 12:00 midnight, where
Bashir Bapu booked two rooms. According to the victim girl,
Bashir Bapu and the victim were in one room and her mother
stayed in another room, where Bashir Bapu made her drink
Beer and committed illegal act and in the morning at 10:30
a.m., they left Diu to return back to Jamnagar.
19.2 When the provision of Immoral Traffic Act, has been
invoked, then as per 1956 Act, the arrest in such matters
would only be by the Special Police Officer or under his
direction or guidance or subject to his prior approval, in case
when the Special Officer required any officer sub-ordinate to
him, to arrest without warrant otherwise than in his presence,
the Special Officer shall give the subordinate officer an order
in writing specifying the person to be arrested and the offence
for which the arrest is being made. The officer before the
Page 35 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
arrest, shall inform the substance of the order to the
concerned person and on being required by such person,
show him the order. In case, when the police officer, not below
the rank of sub-inspector specially authorized by the Special
Officer, may if he has reason to believe that on account of
delay involved in obtaining the order from the police officer
any valuable evidence relating to any offence under the
Immoral Traffic Act is likely to be destroyed or concealed or
the person, who has committed or is suspected to commit the
offence is likely to escape and the name and address of such
person is unknown and there is reason to suspect that a false
name or address has been given, then such officer may arrest
the person concern without an order of Special Police Officer
and thereafter as soon as may be, shall report to the Special
Police Officer about the arrest and the circumstances under
which the arrest was made.
20. Here, in this case, Digvijaysinh Chandubha Jadeja as
witness no.13, stated that when he was on his duty on
15.03.2016 at ‘C’ Division Police Station, Jamnagar City, at
about 14:00 hours, police inspector C.M. Parmar (P.W.14) had
sent the complaint for registration and after registering the
complaint further investigation was deputed and the
concerned superior officers were reported. The witness had
brought station diary with him and by referring to page No.44
at Serial No.17, he identified his handwriting for the entry at
14:00 hours. The true copy was placed in evidence at Exh.19.
The witness in the cross-examination stated that he had no
information about the incident.
Page 36 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
21. P.W.14 – Chhaganbhai Nathubhai Parmar was a P.I. at C
Division Police Station, Jamnagar City in the year 2016, he
stated that during that period the complainant had come
before him and the complaint was recorded as narrated by her
and in the end of the complaint, the complainant had put her
signature before him. The witness as P.I. was referred to
complaint Exh.80, which he affirmed to have been by the
complainant and thereafter he had sent the complaint for
registration to P.S.O. with a Yadi and after the registration
number, the investigation was carried by him. The witness
stated that he had taken the birth certificate from the victim.
P.W.14 identified Exh.79 as a birth certificate with the birth
date as 15.05.2000.
21.1 In the cross-examination P.W.14 stated that the
complainant had come, to him along with her mother. The I.O.
stated that he had not inquired about the father of the victim
and prior to taking the complaint, he had made a preliminary
inquiry and he could understand that the victim girl’s age was
even less than 16. The I.O. during the inquiry was not aware
that the elder sister of the victim was residing in the
jurisdiction of the police station. The witness stated that the
complaint was registered by him and he had taken the
investigation. The superior officer of Jamnagar City was Dy.
S.P. Jamnagar. The I.O. stated that when he had taken the
complaint he had not talked to the superior officer about the
investigation. The I.O. further stated that after taking the
complainant he had inquired from the complainant’s mother.
He does not remember whether he had permitted the mother
Page 37 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
to go. I.O. sated that as per the complaint, the mother was
accused and on that day he had not made any attempts to
arrest the mother.
21.2 The I.O. Shri Parmar appears be unaware of the
provisions of law. Special police officer is mandatorily to be
appointed under the Immoral Traffic Act. The investigation is
by the Special Police Officer or trafficking police officer. As
recorded under Section 15 of the Immoral Traffic Act, the
special police officer or the trafficking police officer, as the
case may be, may search the premises where the person
aggrieved is living and to avoid delay, such officer after
recording the ground of his belief may enter the premises
without a warrant.
22. Exh.80, the complaint dated 15.03.2016, is not
handwritten. Some Bhavisha Radadia as a counselor of police
station based support center, Janmnagr, has signed . The
counselor has not been examined as a witness. Exh.80 is the
document as per the I.O. given by the complainant and was
recorded as per the complainant’s narration. Exh.80 is a typed
copy. The oral evidence of the I.O. does not make the
clarification, however, considering the evidence co-related
with P.W.15, it could be believed that when P.W.13 was at
Jamnagar ‘C’ Division Police Station, probably P.W.14 was on
his duty at the same police station. Had it been so, then the
complaint was directly required to be given to the PSO. Even
if the fact is considered that the complaint was given to P.W.14
as P.I. of Jamnagar City C Division Police Station, the I.O.
P.W.14 was required to hand over the complaint to the special
Page 38 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
police officer nominated under the immoral traffic Act or the
trafficking police officer. P.W.14 has failed to explain whether
he himself had the authority to investigate the matter as a
special police officer or as trafficking police officer.
22.1 After the registration of the complaint on receiving the
birth certificate and when the mother of the victim girl was
present there P.W.14 as a I.O. has not made any attempt to
arrest the mother of the victim. The strange fact which
becomes noticeable is to why the victim girl who had
complaint against the mother, stating that the mother was
forcing her and sending her for the purpose of prostitution,
had gone with her mother to file the complaint.
23. The fact, as given in the complaint finds a twist in the
statement recorded under Section 164(4) of the Cr.P.C. Before
the Judicial Magistrate the victim had given some version of
the facts which does not get correlated with the complaint
Exh.80. The mother had taken her daughter at the police
station when the daughter had asked for her clothes and had
told her mother that she does not want to stay there in the
house, it was at that time, the mother told the victim that they
would not let her live like that and the mother asked her to
come with her to the police out post, and thereafter the victim
and mother had visited the police station and the mother had
also informed the police that the victim wanted to leave and
the mother had informed the police that the victim was minor,
and thus the officer asked the victim as to why she wanted to
go and with whom, and if she wanted to go with someone, the
officer asked the victim to tell them, so that they could call
Page 39 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
that person, at that time the victim replied that she has no
such person and thereafter made complaint against the
mother stating the reason for not wanting to live with the
mother, and when the police informed the mother about the
complaint made by the daughter the mother said that it was
absolute lie and that victim was instigated and mislead by
someone.
24. As per the statement under Section 164 Cr.P.C., she told
the police that she was not lying and asked the police to call
all those persons to question whose names she had given.
According to the victim thereafter the police had called Bashir
Bapu (A-4), Bhavesh (A-5) and Bashir Bapu’s friend. The
victim stated that Bhuro did not appear and absconded, while
Mahadev had consumed poison four to five days ago because
he had debts.
24.1 According to the statement under Section 164 Cr.P.C.,
10 days prior to the complaint, the victim was staying at her
sister’s house and from there she called her mother stating
that she does not want to stay with sister. According to the
complainant, the mother started hurling abuses and got angry
and had sent Dattubhai to fetch her. According to the victim,
her brother and sister beat her severely and took her to Bapu
near Dharanagar, who performed Tabiz Dhora, and to whom
she told everything, and the Bapu asked the victim to go to
the police station cautioning that there was no other way or
get married.
Page 40 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
24.2 The sequence of the complaint, thus appears that the
victim girl herself wanted to run away from the house and
therefore the mother had taken her to police out post. The
mother was under the impression that the victim girl wanted
to elope with some boy.
24.3 During the trial, the victim girl was ordered to stay at
Kasturba Stree Vikash Gruh and from there she was ordered
to appear during the trial. The evidence of victim girl as
P.W.10 recorded on 01.01.2019 notes that she had married,
she had named her husband and she is staying with her
husband. The victim girl was recalled by Exh.120. The victim
girl was shown her statement Exh.119, which was referred to
her, in view of Exh.120, whereby the learned APP had made
prayer to the Court that earlier inadvertently, the statement
under Section 164 Cr.P.C. was not exhibited with verification
of the signature. After the witness as victim was recalled, she
identified the signature at Exh.119, however in the cross-
examination, she stated that she is not aware of the writing
Exh.119.
24.4 Statement recorded under Section 164 of the Cr.P.C.,
then at the most be used to corroborate or contradict, the
statement by itself has no evidentiary value and the statement
would require corroboration.
24.5 The learned trial Court Judge while appreciating the
evidence and observing that the victim has turned hostile and
was not supporting the prosecution case, the learned trial
Court Judge, in the judgment at page-22 has considered the
Page 41 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
payment of Rs.7,50,000/- by the accused by fulfilling the
condition in the bail order, as the reason for not supporting
the charge framed against the accused, who had paid the
money. This observation of the learned Judge would become
erroneous and contrary to the mandate of the law, where the
victim is entitled to receive the compensation for the offences
suffered by her. Victim Compensation Scheme is in place
adopted by the State Government and the State is bound to
compensate the victim accordingly. Here, in this matter, while
granting bail to the accused, the earlier bench of this Court by
an order dated 27.07.2016 in Criminal Misc. Application (For
Regular Bail) No.16451 of 2016, had laid down three
conditions, relevant in connection with the victim girl, which
are as under:
“[g] deposit an amount of Rs.3.00 lacs before the trial
court within a period of one week from the date of his
release.
[h] The copy of the fixed deposit receipt shall be produced
on record and one xerox copy be given to the learned
Additional Public Prosecutor. The learned Additional Public
Prosecutor shall ensure that out of the said amount,
Rs.2.50 lacs shall be invested by way of a fixed deposit in a
nationalized bank as per the convenience of the victim girl
and Rs.50,000/- shall be paid by account payee cheque to
the victim girl after proper verification.
[I] The victim-girl shall be brought before the concerned
officer in the Registry of the trial court by the responsible
lady social worker of the Kasturba Stree Vikas Gruh of
Jamnagar, where the victim-girl was initially kept. The
office bearers of the Kasturba Stree Vikas Gruh shall
nominate or depute a responsible lady social
worker/official, who shall accompany the victim girl
through out during her visit to the trial court. Likewise, the
Superintendent of Police, Jamnagar, shall also depute one
lady constable to accompany her.”
Page 42 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
24.6 In the cross-examination, the victim girl has denied of
the facts of the document Exh.119, statement under section
164 Cr.P.C. The victim girl has even denied her complaint
Exh.80. It was not that the victim girl was staying at the
mother’s house, while she had come to the Court for
deposition. It cannot be said that the victim girl was won over
by the mother or the other accused persons.
25. The I.O., P.W.14, in the cross-examination from the side
of the accused had affirmed of receiving of copy of the
statement recorded under Section 164 Cr.P.C. of the victim.
The I.O. stated that he felt no need to record the further
statement of the victim. Since the statement is put in evidence
at Exh.119 and the complaint at Exh.80, the comparison
would become relevant to note that the victim girl had not
spared any member of the family. She had even stated against
the two elder brothers in her statement under Section 164
and had alleged of sexual harassment from their side and also
had stated that they were in alcohol, Ganja and gambling. She
has also alleged against the brother-in-law of her sister in her
complaint, Exh.80, of harassment. As per the complaint
Exh.80, fifteen days prior to the complaint, she had gone to
sister Karishma’s house P.W.17, and four to five days prior to
the complaint, her mother, her sister (P.W.17), her brother
Shokat, Dasubha and Aasib had taken the victim girl to Bapu,
who has been examined as P.W.15, Mohsinbhai Yusufbhai
Bhukari and his wife Sherbanu Mohsinbhai Bhukari was
examined as P.W.16.
Page 43 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
26. Both the witnesses P.W.15 and 16 were declared hostile,
as the prosecution felt that they were not supporting the
prosecution case. The witnesses were residing at
Dharanagar-1 and according to P.W.15, when the victim had
come to Dargha she had told that she had dispute with her
family. According to the witness, the victim had stated no
other thing. The witness, thus told the victim that they would
have no say in the family dispute.
26.1 The wife of the witness P.W.16 – Sherbanu Mohsinbhai
Bhukari was at her home and that she has no information of
the incident and she stated that her husband at the Darghah
would offer prayers and that he apart from that had no other
work. Both the witnesses have not supported the prosecution
case. P.W.15 particularly has not corroborated the victim’s say
that she had informed all the facts to P.W.15 and that he had
directed victim to go to the police.
27. The elder sister of the victim Karishmaben Ajitbhai
Babra, who at the time of evidence recording on 06.09.2018,
got her age recorded as 26 years. She stated that they were
three brothers and three sisters. Their mother was
Rukshnaben and father Anwarbhai died. The sister stated that
the age of the victim would have been 15 years at the time of
incident, but she feign ignorance about the incident and
stated that she has no knowledge. Police had inquired from
her; she does not know as to what her mother Rukshnaben
had done. She was staying away from her mother’s house and
that she does not know the name and surname of the person,
who goes to the house of her mother and that she does not
Page 44 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
recognize anyone. She has no information of any incident with
her victim sister, when her statement was read over she
denied of any such statement before the police.
28. The witness relevant as per the prosecution case have
not supported during the trial. The evidence of the witnesses,
who were declared hostile cannot be rejected in toto and the
permission given to the prosecutor to cross examine his own
witnesses characterizing as hostile witness does not
completely efface witness evidence. Reliance can be placed
for that proposition of law on the judgments of (i) Bhagwan
Singh Vs. The State of Haryana , reported in (1976) 1 SCC
389 (ii) Khujji @ Surendra Tiwari Vs. State of Madhya
Pradesh , reported in (1991) 3 SCC 627 (iii) Devraj Vs. State
of Chhattisgarh , reported in (2016) 13 SCC 366.
29. The victim girl in her complaint Exh.80 and statement
under section 164 Cr.P.C., Exh.119, refers to the fact which
she recalls that three years prior to the complaint when her
mother had seen her laughing and talking with Jitubhai
Darbar alias Bhatia of their locality, her mother had scolded
the victim girl. The complaint records that after a year the
mother permitted her to do as what Jitubhai Bhatia tells her to
do. As per the victim, her mother had told her to go to Diu
with her and Bashirbapu Hasanbhai Veerparia, who the victim
stated had done favours for them and lent money for their
family. As per the statement, the victim’s mother had asked
her to do what Bashirbahi told her to do and not to refuse
him. In the complaint Exh.80, she has referred to the threat
given by her mother and so out of fear and terror she stated
Page 45 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
that she had joined her mother and Bashirbapu to Diu where
they reach at 12:00 midnight. Accused No.4 booked two
rooms in the hotel; in one room Bashirbapu and victim stayed
and in another room her mother stayed. This version is not
finding corroboration from the statement under Section 164
Exh.119, wherein the statement she has referred to
Bashirbapu as a leader of the community and appears as per
the statement that she had willingly joined her mother and
Bashirbapu. According to the statement under Section 164
she and the mother stayed in a separate room and they all
drink beer there, when Bashirbapu came to the mother’s
room, then victim alleged that Bashirbapu (A-4) committed ill
acts with her twice.
30. The prosecution has produced the register entry of Hotel
Galaxy at Exh.73, which shows the name of all the three as (I)
Mr. Malik Bashirbhai (ii) Ruksahna Bashirbhai (iii) name of
the victim with the last name Bashirbhai. The document
EXh.72 is a hotel Galaxy bill dated 06.01.2014 with the two
rooms as 211 and 212. The arrival time is shown as 0.30 a.m.
and departure at 11:00 a.m. Though the documents are
produced as Exh.72 and 73, the prosecution has not proved
both these documents by examining the owner of the Hotel
Galaxy or the Manager or any other staff who had executed
the bill. Mere production of the photocopy of the original
would not dispense with the fact that the prosecution is
required to prove the content of the document. The defence
had no opportunity to cross-examine the person, who had
issued the bill and the entry of the hotel register.
Page 46 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
30.1 Victim has also alleged that after a month again accused
No.4 had come to their house and accused No.4 committed ill
act against her and then after few days again A-4 came to
their house and committed ill act against her wish, when her
sister Karishma (P.W.17) knocked the door A-4 went into the
bathroom and when victim opened the door victim’s sister
came inside and saw accused No.4 and thus P.W.17, the sister,
scolded the victim and her mother. This fact does not have
corroboration in the evidence of P.W.17 herself.
30.2 Again after 15 days it is alleged by the victim girl that
accused No.4 took her to his house and his friend too had
come there and both of them sexually assaulted her in A-4’s
room and late at night they dropped her at home, then she
again made statement that A-4 and owner of Sayeed Hotel,
both of them took her in four wheeler car at Balachadi Road
and committed sexual assault against her. As per her
statement Exh.119, prior to this incident Dasrathbhai whose
real name she does not name and who lives near their house
had asked her if she wanted to engage in such act with him
and then he took her to Darade, where she was sexually
assaulted, and then according to the victim girl Dasrathbhai
took her to the house of his friend named Bhavesh at
Virlabhag where she was sexually assaulted by Bhavesh.
31. In the complaint Exh.80, the victim has named the said
Dasrathbhai as Ranjeetsinh Dasrathsinh alias Dasubha
Khumansing Jadeja. In the complaint Exh.80 the victim girl
has given full narration of the communication with the
Page 47 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Dasubha and Bhavesh, who are accused Nos.2 and 5 of the
matter. According to the victim’s complaint Bhaveshbhai (A-5)
had given her Rs.2000/- and it was A-2, who had about four
times taken her to Bhavesh’s house at Indraprastha near
Pancheswari Tower and committed sexual act and Bhavesh
each time had given her Rs.1,000/-. It is the case of the victim
that Dasubha had taken the money from Bhavesh separately.
32. It is required to be noted that such facts of mother,
accused No.1 taking money from the victim girl or from any
other man by sending the victim girl for prostitution does not
come on record. As per the victim A-2 had taken her to A-5.
33. In the statement Exh.119, the victim girl has stated that
when the sister P.W.17 had come to their house, the sister had
scolded her mother of not being ashamed to send her young
daughter for such work. A statement under Section 164
records that it was the mother who had sending her to various
persons like Dasrathbhai A-2 and for sometime to
Bhaveshbhai A-5, while such fact does not get correlated in
the complaint Exh.80.
34. The statement under Section 164 Cr.P.C. Exh.119
suggests that she had gone to the house of Bhavesh for five
time and at his office at Pancheswari tower for ten times and
in that statement she improvised stating that she had come
home and given the money to the mother.
34.1 The victim connected A-3 with one person named Bhura
probably it is A-7, whose name in the trial is recorded as
Page 48 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Vinod alias Bhuro Haribhai Chhaiya, while in her complaint
she stated that Muskanben (A-3) took her to a fair boy who
gave her his mobile number 992495304 and 762108648, and
according to the victim the said person had sexually assaulted
her and had assured her to pay Rs.75,00/-, but yet the same
amount was not paid. According to the victim’s statement
under section 164 of the Cr.P.C. Muskan (A-3) took her to a
boy named Bhura and they had gone to Bhura’s father's farm
near Hapa road and to his friend’s farm, where she was
assaulted. The victim sated that five days prior to the
complaint she had gone to the Bhura’s farm demanding
money. Bhura assured her to give money and made her drink
alcohol, at that time, Bhur’s friends Bharwad and Maharaja
were present there and she was made to drink a lot of alcohol
and was dropped in the morning at 7:00 and she was lying on
the road at Saat Rasta.
34.2 The statement under Section 164 Cr.P.C. records that
Bhura had not paid her money although she had gone thrice.
From Saat Rasta she went to Darbargadh to eat and then
went home and told her mother that she does not want to stay
at home and asked her mother to give clothes and at time her
mother insisted her and told her that she will not let her leave
and asked the daughter to come along with her to the police
outpost.
34.3 Victim had made allegation even against her both
brothers, and the brother-in-law of the sister (P.W.17), her
constant meeting with Bhura and asking money from him, and
even constantly going with Bhavesh and asking for money
Page 49 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
shows that she volunteered to go on her own in this
profession.
34.4 The victim girl was taken to the police station by the
mother herself, the mother and P.W.17 - her sister, as well as
elder brother had taken the victim girl to P.W.15 – Mohsinbhai
Yusufbhai Bhukhari to heal the victim by performing the
religious practice of ‘taavij dora’.
35. The circumstances, which the victim girl has narrated
and in corroboration with the statement under section 164
Cr.P.C., and the complaint Exh.80, it does not appear that the
complainant’s mother was sending her to do such act to
constitute as involving the daughter in prostitution. It appears
from section 164 statement as well as complaint Exh.80 that it
was the victim girl who was asking for money and in her
statement under Section 164 Cr.P.C. while making allegations
against brothers, a statement has been recorded, to have been
noted as communication by the brother stating that she will
have to be taken to the police station and that they knew that
she had kept some boy, that she cannot be allowed to go in
that way. The circumstances under which the complaint has
been given against the mother becomes a curious facts, when
as per the statement, it was the mother who had taken her to
the police station since the mother had feared that the
daughter would leave the house and elope with some
unknown person.
35.1 Examination and analysis of the statement of victim girl,
as complaint and statement recorded under section 164
Page 50 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Cr.P.C. do not conclude that the girl was sent for prostitution
or that the mother was living on the earnings from
prostitution.
36. When the evidence of the victim girl recorded during the
trial does not have corroboration to her complaint and
statement under section 164 Cr.P.C., then now it would be
relevant to examine medical evidence.
37. The evidence of the Doctor - Neetaben Hirabhai Rada,
who has been examined at Exh.84 as P.W.12 has recorded that
on 15.03.2019, while she was present on duty in the Gynec
Department at G.G. Hospital, ASI R.A. Noida brought the
victim to her with a police memo for physical examination and
sample collection. The victim's M.L.C. No. was 2233/19. No
relatives were present with the victim. The victim's mental
condition was normal, and upon explaining to her regarding
the physical examination and collection of samples, she
consented to such procedure. In respect of which, P.W.12 took
her signature and right-thumb impression on the certificate.
37.1 P.W.12, the Doctor further stated that upon conducting
the physical examination of the victim, they noted her
identification marks; (1) A mole mark on her chin (2) A mole
mark on the left side of her mouth. Upon inquiring about the
victim's history, the victim stated that she lived in the Aavas
Colony next to the Andhashram along with her mother and
three brothers. According to the victim's statement, her
mother had been forcibly sending her for the past two years to
have physical relations with different men. The victim's
Page 51 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
mother used to frequently beat her and threaten to throw her
out of the house. Occasionally, the victim's mother would also
send her to unknown men's houses to establish physical
relations, and sometimes, certain persons were called to her
home. The victim knew the names of certain persons. As per
the victim, as recorded by the Doctor, they were Basirbapu,
Bhavlo, Dashbha and Bhuro. Three days prior, the victim was
sent to a person named Bhuro to establish physical relations.
Meanwhile, when an attempt was made to forcefully establish
physical relations with the victim, she complained of pain in
her private parts. The victim filed a police complaint on
14.03.2016.
37.2 During the physical examination of the victim, the
Doctor stated that she was fully conscious. Her vitals were
normal. There were no signs of injury on the outer part of her
body, face, or lips. Her secondary sexual characteristics were
not fully developed. Upon examination of her private parts,
the hymen was torn. There were no signs of swelling, but pain
was present. Along with pain, small scratch marks were seen
on the private parts. Fluid samples were taken from her
private parts and sent to F.S.L. and the laboratory for
examination. The victim did not remember the date of her
menstrual cycle and stated that her period was approximately
one month ago. Upon conducting a sonography of the victim,
the sonography report was normal. Blood samples of the
victim were sent to the hospital laboratory for testing HIV,
Hepatitis-B, and Serum V.D.R.L. The reports, which came
back, were normal.
Page 52 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
37.3 The Doctor stated that the victim arrived with a police
yadi Exhibit–85. The birth certificate of the victim
corresponding to Exhibit–79 was produced before the Doctor
along with the yadi, which the Doctor identified.
37.4 Exh.86 was produced in evidence by the Doctor, which
according to the Doctor was a confidential report which was
prepared by them and the thumb impression and signature of
the victim was taken on it. Exh.86 is about the physical
examination of the victim along with the history given and the
clinical opinion with the finding was recorded. Thus, at the
end of the physical examination, in opinion of the Doctor, the
victim was sexually assaulted in the recent past, as well as the
possibility of sexual intercourse with her in the past could not
be ruled out.
37.5 On the day of the deposition, the Doctor had brought
with her the hospital laboratory report of the samples of
secretions from the private parts of the victim, the presence of
spermatozoa was not found in these secretions, nor were
gonococci seen by direct smear examination. The original
reports was jointly produced during the trial at Exh.-87.
37.6 The Doctor in the cross-examination admitted that she
had not conducted any examination regarding the age of the
patient. It is required to be noted here that when an allegation
is made under the provision of Immoral Traffic Act, as
provided under Sub-section (5A) of Section 15, the person so
produced shall be examined by the registered medical
Page 53 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
practitioner for the determination of age of such person, or for
the detection of any injuries as a result of sexual abuse or for
the presence of any sexually transmitted diseases.
37.7 P.W.12 – Doctor had not undertaken any procedure for
determination of age of the victim girl which would be
necessary when the Immoral Traffic Act makes distinction
between a person as ‘minor’ and ‘major’. Section 2(ca) defines
‘major’ as a person who has completed the age of 18 years,
while section 2(cb) considers a person who has completed the
age of 16 years, but has not completed the age of 18 years as
‘minor’. Section 2(aa) gives the meaning of ‘child’ as a person
who has not completed the age of 16 years. Section 4
punishes any person over the age of 18 years, who knowingly
lives, wholly or in part on the earnings of the prostitution and
the punishment for such offence would be imprisonment for a
term which may extend to two years or with fine which may
extend to Rs.1,000/- or with both and when such earnings
relates to prostitution of a child or a minor the punishment
shall be with imprisonment with a term not less than seven
years and not more than ten years.
38. Sub-section (2) of Section 4 of Immoral Traffic Act is
reproduced herein below for ready reference to read that the
provision presumes unless contrary proved, that the person
knowingly is living on the earnings of prostitution of another
person within the meaning of sub-section (1).
Page 54 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
38.1 Sub-section (2) of Section 4 reads as under:
“(2) Where any person over the age of eighteen years is
proved-
(a) to be living withy, or to be habitually in the company of,
a prostitute; or
(b) to have exercised control, direction or influence over
the movements of a prostitute in such a manner as to show
that such person is aiding, abetting or compelling her
prostitution; or
(c) to be acting as a tout or pimp on behalf of of a
prostitute,
it shall be presumed, until the contrary is proved, that
such person is knowingly living on the earnings of
prostitution of another person within the meaning of sub-
section (1).”
39. On the basis of the facts of the case, Sections 379(d),
504 and 506(2) of the IPC, Sections 4, 5(g), 5(l), 6 and 17 of
the POCSO Act, and Sections 4, 5 and 6 of the Immoral Traffic
Act had been invoked. The prosecution case was that the
accused No. 1 - mother of the victim girl, for her own personal
gain of procuring money, by threatening the victim-
complainant to do away with her life had compelled the
complainant to establish physical relation, though knowing
her to be minor. Before the doctor the victim had not named
accused Nos.2 and 3. The prosecution case is that accused
Nos. 2 and 3 as the agents (tout/pimp) by taking money, took
the complainant to accused Nos.5, 6, 7 and 8, and compelled
her to establish physical relation and had detained her for
prostitution. Rest of the accused, though were knowing that
accused Nos.1, 2 and 3, were compelling the minor
Page 55 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
complainant for such activities, the accused often would call
the complainant alternatively. It was the prosecution case that
accused No.4 made the complainant drink some liquid known
as beer, and it is further alleged that accused No.4 and his
friend owner of Sayeed hotel had gang raped her in a running
car and the other co-accused took the minor-complainant to
different places and had forcibly, without her consent sexually
assaulted her.
40. The panch witnesses, P.W.1 and 2, Kamleshbahi
Samjibhai Lal and Dineshbhai Samjibhai Lal were examined to
prove Exh.32, the panchnama, in connection with the clothes
of the victim girl. They have denied the same stating that the
police had made them signed on some writing. P.W.3 –
Ashoksinh Karubha Jadeja and P.W.4 – Rejeshbhai
Mansukhbhai Nainoji were the witness to Exh.37, the
panchnama drawn of the house belonging to the victim as well
as accused No.1, the mother. The panchnama Exh.37 suggests
that in Jamnagar at Aavas colony, block No.67, room no.11, is
on third floor. The house was in the name of accused No.1
comprising of one room about 10 x 12 foot and thereafter a
kitchen and toilet bathroom. The room was having setti bed
with T.V., Freeze and cupboard. It is alleged that in that room
on the bed accused No.4 had established physical relation
with the victim. The brother of the victim was present at the
house. It is quite difficult to believe that the victim staying
with her three elder brothers and mother could have
entertained accused No.4 in the single room with no other
facilities or accommodation for the rest of the family
Page 56 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
members.
40.1 P.W.5 – Marubhai Narubhai Mayani, is the panch witness
of Exh.41. The witness has not supported the panchnama with
regard to the house of accused No.4. The house was having a
living room and two bedrooms and kitchen with the toilet
bathroom in the street. The panchnama has not recorded any
noticeable sign in the room. When the panchnama was drawn,
as recorded the wife of accused No.4 was present there.
40.2 P.W.6 – Akbar Daud Juneja, the panch witness of mark
15/7. The witness has denied even his own signature and has
also denied of any person named Hussain Habib Dal (P.W.7)
present along with them.
40.3 P.W.7 – Hussain Habibbhai Dal, the panch witness stated
that the police of ‘C’ Division has taken his thumb impression
on some writing. The witness identified his thumb impression
at Exh.47 stating that he has not visited any place. As
recorded in the panchnama Jhasminben Natwarlal Sayani was
present there. The house was near Viralbagh, Shantvan
Apartment room no.203, there was a hall with kitchen and a
store room. There were two single setties with two cupboards
and in the room there was a large bed with one table and one
cupboard and toilet bathroom; the panchnama records that
there was no noticeable signs at the place.
40.4 P.W.8 – Vimalgar Virgar Goswami and P.W.9 - Mayur
Ramnath Gosai were examined as a panch witness for Exh.55.
The panchnama was in connection with six accused, who had
Page 57 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
produced the clothes. Both the witnesses have denied the
panchnama stating that the police has taken the signature on
some prepared writing.
40.5 The police is required to prove the premises, where
sexual assault has taken place or such activity in the form of
prostitution has been committed. The police could have
recorded the statement of the neighbours. The panchnama of
the premises drawn, as referred herein above, shows that they
all are crowded place with the adjoining neighbours in the
flats and street, to substantiate the fact that the victim girl
was seen visiting such places.
40.6 The police had sent 37 parcels for analysis. The report
of serology department at Exh.105 dated 02.06.2016 recorded
the result of blood, saliva, semen sample. The blood group
was recorded against the samples, where antigenicity could
be fixed. The said report could be only support the blood
group of individuals, however the report could not bring
anything to suggest the interlink between the victim and the
accused.
41. It was noted in the complaint that victim was taken to
Bapu (P.W.15) at Dharanagar-1 by mother, sister, brother and
accused No.2 for rituals as dora-dhaga. The victim said that
she had told the facts of the incidents to P.W.15. However,
P.W.15 has not corroborated the said fact.
42. The complaint starts with the narration that the mother
had seen the victim talking and bantering with one Jitubhai
Page 58 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
Darbar residing next door. The mother was not happy.
Accused Nos.2 and 3 are also from the neighbourhood. The
police had not recorded the statements of the persons
residing there, to know the relation of A-2 and A-3 with A-1.
The police could have known through the statement of
neighbours to verify whether A-4 was visiting the house of A-1
often. The facts suggest that the victim had gone overnight
from the house, the brother doubted that the victim had
relation with some person, so had scolded her. The victim was
taken to Bapu for dora-dhaga, and the girl stated that she had
informed about all facts of incident to that Bapu, who has not
corroborated the same. According to that witness, the girl had
informed him of some family dispute and no such facts, as
alleged. The sister of the victim had also not supported the
prosecution case. While the victim was taken to Bapu, she was
accompanied by mother, brother, sister and neighbour.
42.1 The mother had taken the daughter to the police, as
mother feared that the daughter was going to elope with some
person. The Investigating Officer has affirmed that when the
victim had came to him, the victim was joined by the mother
(A-1). The victim thereafter was sent to Kasturba Stree Vikas
Gruh, Jamnagar. During the trial, when she was recalled for
verifying her statement under section 164 Cr.P.C., it was
recorded in the evidence that the victim was married.
42.2 The victim has made allegation against all, she had not
even spared her brothers. The Investigating Officer was
required to handover the investigation to Special Police
Officer or the Trafficking Police Officer. The police could not
Page 59 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
establish the corroboration of such offence by examining the
neighbours, to find out whether such work of prostitution was
going on in the house of A-1. The evidence of the car, where
the victim was alleged to be gang raped has not been brought
on record. The neighbour of the co-accused could have
deposed, if the victim was brought often to their house and
work place. The Investigating Officer had not taken any
instruction from the Superior Officer, in the offence, where
Immoral Traffic Act was invoked.
42.3 The inconsistency in the statement under Section 164
Cr.P.C. with the complaint - Exh.80, the disparity in the
statement before the Medical Officer, the person before whom
the victim had confided, as Bapu and the sister, have not
supported the version of the victim girl. The observation of
the trial Court Judge, without recording the evidentiary need
of finding corroboration, has made the conclusion erroneous.
The victim girl had turned hostile. The Investigating Officer
had not further investigated after receiving the statement
under section 164 Cr.P.C. It appears that Investigating officer
was required to take assistance through Forensic Psychology
to understand the background under which the complaint
came to be filed.
42.4 The evidence were insufficient on record to conclude
conviction. In absence of evidence of the victim during the
trial, the trial Court was required to search for corroboration
from other witnesses. In the present case, as noted, the other
witnesses too have not corroborated the complaint. We are of
the opinion that the prosecution witnesses have failed to
Page 60 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
prove the case, as put forward.
43. In view of the above observations and analysis of the
evidence, this Court is of an opinion that the prosecution had
failed to prove the case against the present appellants, where
no cogent and reliable evidence was on record to convict the
appellants under Sections 376D, 504, 506(2) of the IPC,
Sections 4, 5(g)(1), 6 and 17 of the POCSO Act and Sections 4,
5 and 6 of the Immoral Traffic Act.
43.1 In the present case the age of victim was not proved by
leading the evidence to prove the Birth certificate. The source
of information of birth has not been proved. The mandatory
provision of Section 94 of the J.J. Act was to be followed to
prove the case under POCSO Act. To prove the age of the
victim under the Immoral Traffic Act, the age determination
was required by the Medical Officer, who examined the victim
which the prosecution failed to do so. The prosecution also
failed to prove that the mother of victim was involved in the
said offence. In absence of any cogent corroborative evidence,
more particularly, when the victim and other important
witnesses have turned hostile, the prosecution case becomes
doubtful. The conviction could sustain, only if the prosecution
evidence considered as a whole, establishes the guilt of each
accused beyond reasonable doubt. If material contradictions,
deficiencies in the proof of age, or a failure to establish the
individual role of the accused create a reasonable doubt, the
benefit of that doubt must be extended to the accused.
Page 61 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026

R/CR.A/1512/2019 CAV JUDGMENT DATED: 29/10/2026
(GJHC240485262019)
44. In light of the above reasons, we find that the judgment
of the trial Court is not based on proved facts and evidence. In
the result, the conviction is required to be set aside.
45. In the sequitur, the appeals are allowed. The judgment
of conviction passed by the learned Special (POCSO) Judge,
Jamnagar dated 17.07.2019 in Special (POCSO) Case No.21 of
2016 is set aside. The accused are acquitted of the charges.
Bail Bond, if any stand discharged.
Record and proceedings be send back to the concerned
trial Court forthwith.
(GITA GOPI,J)
(L. S. PIRZADA, J)
Pankaj/1
Page 62 of 62
Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Oct 29 2026 Downloaded on : Fri Oct 30 00:00:57 IST 2026