High Court of Gujarat
STATE OF GUJARATversusCHANDUBHAI SENDABHAI PATANI
- Disposal
- 39-RULE DISCHARGED/DISMISSED @ FH
Holding
The appellate court held that the trial court’s acquittal was correct and that no error of law or fact warranted interference.
Summary
The State appealed the acquittal of Chandubhai Sendabhai Patani under Section 378 of the Cr.P.C., challenging his discharge from charges of kidnapping, kidnapping for ransom, rape (IPC ss. 363, 366, 376) and offences under the SC/ST (Prevention of Atrocities) Act. The trial court had found that the prosecution failed to prove the victim’s minority, that the alleged sexual intercourse was consensual, and that there was no kidnapping or force. The High Court re‑appraised the evidence, noting contradictions in the victim’s statements, the lack of corroboration for the school‑leaving certificate, and the absence of proof of force or non‑consent. Applying the Supreme Court’s principles on appeals against acquittal, the Court held that the trial court’s findings were not perverse or erroneous and that the prosecution had not established guilt beyond reasonable doubt. Consequently, the appeal was dismissed and the acquittal confirmed.
Issues considered
- Whether the trial court erred in acquitting the accused of offences under IPC ss. 363, 366, 376 and the SC/ST (Prevention of Atrocities) Act.
- Whether the prosecution proved that the victim was a minor at the time of the alleged offence.
- Whether the evidence established kidnapping, force, and non‑consensual sexual intercourse.
- Whether an appellate court may interfere with an order of acquittal under Section 378 Cr.P.C. in the circumstances of this case.
Legislation cited
- Code of Criminal Procedure, 1973s. 157, s. 313, s. 378
- Indian Evidence Act, 1872s. 35
- Indian Penal Code, 1860s. 363, s. 366, s. 376
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 3(1), s. 3(11), s. 3(12)
Subjects
acquittal appealkidnappingrapeminor victimage proofSC/ST Actevidentiary valueSection 378 CrPCconsentforensic evidence
Judgment
R/CR.A/530/2003 JUDGMENT DATED: 09/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 530 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
=============================================
Approved for Reporting Yes No
✔
=============================================
STATE OF GUJARAT
Versus
CHANDUBHAI SENDABHAI PATANI
=============================================
Appearance:
MR. RONAK RAVAL APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 09/01/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA)
1. The present acquittal appeal has been preferred by the
State under Section 378 of the Criminal Procedure
Code, 1973 (In short “The Cr.P.C”) challenging the
judgment and order dated 10.01.2003 passed by learned
Special Judge, City, Civil & Sessions Court No.20,
Ahmedabad in Atrocity Criminal Case No.11 of 2002 by
way of the impugned judgment and order, the present
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respondent no.1 – original accused has been acquitted
for the charge under Sections 363, 366, 376 of the
Indian Penal Code (Hereinafter referred as the ‘IPC’)
and Sections 3(1), 3(11) and 3(12) of the Scheduled
Castes and Scheduled Tribes (Prevention of the
Atrocities) Act, 1989 (Hereinafter referred as the
‘Atrocity Act’).
2. The short facts of the prosecution case reads as under:
3. It is the case of the prosecution that on 21.10.2001, at
around 01:30 A.M., the accused has kidnapped
Parvatiben, minor daughter of the complainant –
Gopalbhai Viththalbhai Parmar from his lawful
guardianship and by giving false temptation and promise
of marrying with her and with intention to seduce her,
took the victim away and kept her in a guest house at
Palanpur and at Jantanagar from 21.10.2001 to
07.12.2001 and during that period, he had sexual
intercourse with the victim and thereby committed the
offence under Sections 363, 366, 376 of the IPC and
Sections 3(1), 3(11) & 3(12) of the Atrocities Act and for
that, the complaint came to be given by the complainant
- Mr. Gopalbhai Parmar before the Odhav Police Station
on 07.12.2001 vide first C.R. No.430 of 2001.
4. The investigation was subsequently started, and the
statements of the concerned witnesses were recorded,
along with the necessary documents and Muddamal
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articles. After completion of the investigation, the
chargesheet came to be filed before the learned Court,
and thereafter, it was registered as Special Atrocity
Criminal Case No. 11 of 2002 before the Special Court.
Thereafter, the learned Trial Court framed the charge
against the accused vide Exhibit-1 for the offence
punishable under Sections 363, 366, and 376 of the IPC
and Sections 3(1), 3(11) and 3(12) of the Act. The
accused denied the contents of the charge, and the
entire evidence of the prosecution was recorded by the
learned Trial Court.
5. To bring home the charge against the accused, the
prosecution has examined the following oral and
documentary evidence.
Oral evidence:
PW Name of the witness Exhibit
1 Complainant – Gopalbhai Vithhalbhai 7
2 Parvatiben Gopalbhai Parmar 9
3 Laxmanbhai Somabhai Chauhan 11
4 Chhaganbhai Shivabhai 12
5 P.I. - Bhupendra Jayantilal Kansara 15
6 Assistnat Police Commissioner – 21
Chandrakant Lallukant Vora
7 Devidan Ravidan Gadhvi 23
8 P.S.I. - Pratapbhai Nishabhai Damor 25
9 P.S.I. - Dasharathsinh Karansinh 26
Chudasama
10 Ranchhodbhai Karshanbhai Patel 30
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The following documentary evidence has been produced
by the prosecution:
Sr.No. Particular Exhibit
1 FIR 8
2 Report under Section 157 of the Cr.P.C 27
3 Panchnama to recover the cloth of the 13
victim
4 Panchnama to recover the cloth of the 13
accused
5 School Leaving Certificate of the victim 16
6 Certificate of the caste of the victim 10
7 Medical Certificate of the victim 17
8 Medical Certificate of the accused 18
9 Muddamal Ravanagi note 28
10 Receipt issued by FSL 29
11 Report of the FSL 19
12 Serological Examination 20
6. Thereafter, the learned prosecution has closed the
evidence of the prosecution by giving the closing pursis
and further statement of the accused under Section 313
of the Cr.P.C. was recorded, wherein the accused has
denied the evidence of the prosecution on record and
the accused refused to step into the witness box for
examining any witness on his behalf and stated that a
false case has been filed against him and stated that he
voluntarily appeared before the concerned police station
and the victim is ready to marry with him but because of
the society, they will not be able to marry and the
accused denied marriage, that is why a false case is filed
against him. Thereafter, learned APP for the State has
submitted his arguments and learned advocate for the
accused has also stated his arguments and after hearing
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the rival submissions of the learned advocates for the
respective parties, the Trial Court, by the impugned
judgment and order, was pleased to acquit the accused
from all the charges levelled against him.
7. Being aggrieved and dissatisfied with the said judgment
and order of the acquittal, the appellant – State has filed
the present appeal mainly stating that the impugned
judgment and order passed by the learned Trial Court is
contrary to the evidence available on record of the case
as well as to the provisions of law.
8. Heard the learned APP Mr. J. K. Shah for the State. He
submitted that the impugned judgment and order passed
by the learned Trial Judge is contrary to the evidence
available on record of the case as well as the provisions
of the law and requires to be quashed and set aside.
Further, he submitted that the learned trial Judge has
erred in coming to the conclusion that the prosecution
has failed to prove the charge against the accused
person that on 21.10.2001 at about 01:30 A.M., the
accused has kidnapped the victim who is aged about 17
years, the minor at the time of the incident, is the
daughter of complainant – Govindbhai Viththalbhai
Parmar and from his lawful guardianship, he kidnapped
the victim by giving the inducement of marriage with an
intention to seduce to have illicit intercouse. Further, he
submitted that the learned trial Judge has also erred in
holding that the prosecution failed to prove that during
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the period from 21.10.2001 to 07.12.2002, accused has
illicit intercourse with minor victim at Palanpur guest
house, at Jantanagar and various other places without
consent of the victim and committed rape on her.
Further, the learned Trial Judge has also erred in
holding that the prosecution has failed to prove beyond
reasonable doubt that the accused has committed an act
to outrage the modesty of the victim and exploided her
sexually without her consent and thereby, committed the
offence under the provisions of the Act. Further, he
submitted that the learned trial Court has also not
considered the fact and erred in holding that the
prosecution failed to prove the offence committed under
Sections 363, 366, 376 of the IPC and Section 3(1), 3(11)
and 3(12) of the Act. Further, he stated and submitted
that the prosecution has examined 8 witnesses in
support to prove the charges against the evidence and
all the witnesses have fully supported the case of the
prosecution. Further, he submitted that the prosecution
also proved the documentary evidence produced in the
trial before the Court and the evidence like FIR, Report
under Section 157 of the Cr.P.C, Panchnama to recover
the cloth of the victim, Panchnama to recover the cloth
of the accused, School Leaving Certificate of the victim,
Certificate of the caste of the victim, Medical Certificate
of the victim, Medical Certificate of the accused,
Muddamal Ravanagi note, Receipt issued by FSL, Report
of the FSL, Serological Examination and it has been
established by the prosecution, the age of the victim at
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the time of incident, was 16 years and 8 months.
Further, he submitted that all other documentary
evidences have fully supported the version of the
prosecution. Further, it has been established by
producing the certificate of the caste of the prosecutrix
at Exhibit-17 established that the prosecutrix (minor)
belonging to the SC community and she was minor and
offence was committed againt her consent by the
accused person but this aspect has not been appreciated
by the learned trial Court. Further, he submitted that
the prosecutrix has been examined before the learned
trial Court vide Exhibit-9 and she has specifically
submitted that her date of birth is 02.01.1985. It has
been supported by the Birth Certificate produced at
Exhibit-16 by the principal of the school who has
examined at Exhibit-30 and the prosecutrix has clearly
stated in her evidence that the accused has given her
threat that if he is not acting as per his say, then he has
raped later to her after and her threatened in case of
failure as per the direction, he would commit the murder
of the brother of the victim and on the date of incident,
when the accused entered to the house of the victim, the
victim tried to shout but the accused has threatened her
with the point of knife and also told her that she
disclosed anything to anyone, he would commit the
murder of her brother and because of threat, the
prosecutrix accompanied the accused and she has also
specifically on oath, stated that how the incident took
place and when the accused took her and also narrated
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the place of the incident and the accused has committed
offence against her consent and also stated that she was
forced to sign the marriage registration form by the
accused under the threat. Further, he stated and
submitted that the learned Trial Court has not
appreciated the fact that the since the age of the
prosecutrix is about 16 years and 8 months, there is
offence of rape against her but while coming to the said
conclusion, learned Trial Judge has not properly
appreciated the evidence of the prosecutrix. She has
very specifically stated all those acts were committed
against her will and consent and in spite of the fact that
she was minor and she accompanied the accused, the
accused has threatened the victim that if she will not
accompany, he will murder his brother. Therefore, the
findings of the learned Trial Court that there is no
offence committed by the accused under Section 376 of
the IPC is not correct, legal, valid and proper and the
judgment is required to be quashed and set aside.
Further, learned Trial Judge has also failed to appreciate
the fact that it has been proved that the prosecution is
minor girl below the age of 18 years and she had no
money or any of the resources with her and in such
situation, it is not possible for the prosecutirx at that age
to believe trust on outside person even she informed
anybody else or tried to escape from the accused person
then, there is a chances of her victimization by other
person. This aspect has not also been considered by the
learned Trial Court. Further, he submitted that as per
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the medical evidence and also the FSL report, it clearly
supported the oral version of the prosecution case and
submitted that considering this, learned Trial Court has
not appreciated the evidence produced by the
prosecutrix before the learned Trial Court and not
properly appreciated the oral deposition or oral
testimony of the prosecutrix before the Court. Hence,
the present appeal is required to be allowed and the
judgment passed by the learned Trial Court is required
to be quashed and set aside.
9. Respondent – original accused is concerned, as per the
report, notice has been duly served but nobody has
appeared on behalf of the respondent no.1 – original
accused.
10. We have gone through the records and the judgment
passed by the learned Trial Court after appreciating the
evidence and keeping in mind the ratio laid down by the
Hon’ble Apex Court while deciding the acquittal appeal.
In that parameters, we deem it appropriate to decide the
said appeal.
11. Before dealing with the merits of the appeal, at this
stage, it is required to consider the decision of the law
settled by the Hon’ble Apex Court in various decisions
whereby, it has laid down several criteria while deciding
the acquittal appeal.
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12. It would be apt to refer the recent decision of the
Hon’ble Apex Court in the case of Babu Sahebagauda
Rudragoudar and Others Vs. State of Karnataka
reported in (2024) 8 SCC 149 wherein, it has been held
as under:
“39. This Court in Rajesh Prasad v. State of Bihar
encapsulated the legal position covering the field after
considering various earlier judgments and held as below:
“29. After referring to a catena of judgments, this Court
culled out the following general principles regarding the
powers of the appellate court while dealing with an
appeal against an order of acquittal in the following
words: (Chandrappa case [Chandrappa v. State of
Karnataka, (2007) 4 SCC 415]
“42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 1973 puts
no limitation, restriction or condition on
exercise of such power and an appellate court
on the evidence before it may reach its 42.
The appellate Court, in order to interfere with
the judgment of acquittal would have to
record pertinent findings on the above factors
if it is inclined to reverse the judgment of
acquittal rendered by the trial Court.own
conclusion, both on questions of fact and of
law.
(3) Various expressions, such as, “substantial
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and compelling reasons”, “good and sufficient
grounds”, “very strong circumstances”,
“distorted conclusions”, “glaring mistakes”,
etc. are not intended to curtail extensive
powers of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of “flourishes of language”
to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail
the power of the court to review the evidence
and to come to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person shall
be presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding
of acquittal recorded by the trial court.”
40. Further, in the case of H.D. Sundara & Ors. v. State
of Karnataka this Court summarized the principles
governing the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section
378 of CrPC as follows: (SCC p. 584, para 8)
“8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the
oral and documentary evidence;
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8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the
evidence, is required to consider whether the view
taken by the trial court is a possible view which
could have been taken on the basis of the evidence
on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was also
possible; and
8.5. The appellate court can interfere with the
order of acquittal only if it comes to a finding that
the only conclusion which can be recorded on the
basis of the evidence on record was that the guilt of
the accused was proved beyond a reasonable doubt
and no other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the
judgment of acquittal recorded by the trial Court in
favour of the accused has to be exercised within the four
corners of the following principles:-
41.1 That the judgment of acquittal suffers from
patent perversity;
41.2 That the same is based on a
misreading/omission to consider material evidence
on record;
41.3 That no two reasonable views are possible
and only the view consistent with the guilt of the
accused is possible from the evidence available on
record.
42. The appellate Court, in order to interfere with the
judgment of acquittal would have to record pertinent
findings on the above factors if it is inclined to reverse
the judgment of acquittal rendered by the trial Court.”
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13. Now, keeping in mind the aforesaid ratio and after re-
appreciating the evidence, the serious contradictions
and improbable story of the prosecution noticed by the
learned Sessions Court are required to be considered
while deciding the present appeal.
14. As per the case of the prosecution, the accused has
kidnapped the victim girl prosecutrix on 21.10.2001 and
subsequently, a complaint came to be given by the
father of the prosecutrix before the Odhav Police Station
on 07.12.2001 and subsequently, the prosecutrix and the
accused were appeared before the concerned police
station and the accused was arrested. So far as the main
evidence is the deposition of the prosecutrix is required
to be considered as the prosecutrix has been examined
as PW-2 vide Exhibit-9. As per the deposition before the
Court, it is admitted by the prosecutrix that the Birth
Date is 02.01.1985 and she studied up to standard 8 but
she does not remember the name of the school and she
knew the accused Chandubhai as he was residing at
Bhavaninagar Tekara. Initially she had affair with the
accused, subsequently, she stopped it and thereafter,
she went to her uncle’s home at Ahmedabad and
thereafter, as per the deposition before the Court, she
stated that she was threatened by the accused that if she
will not come with him then, she will murder his brother
and because of that, she accompanied the accused and
during that period, she was subjected to the sexual
intercourse without her consent. This is the deposition
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before the Court but certain fact which has been stated
in the deposition, which has not been stated in the
statement recorded under Section 161 of the Cr.P.C
before the police and for the first time, she stated that
she was subjected and threatened by the accused as he
came with the knife and threatened the prosecutrix that
if she will not accompany with him, he will murder his
brother.
15. In this regard, the said contradiction and the addition
has been proved by defence counsel by putting her
question to the Investigating Officer. So, before the Trial
Court, original complainant has already been examined
and the complainant who has been examined as PW – 1
Exhibit – 7 with the father of the prosecutrix has stated
that he knew accused – Chandubhai Sendhabhai and as
her daughter was eloped with the accused on
21.10.2001 but they are in search of the daughter and
that is why they have not filed any complaint and the age
of the daughter is about 16 years and 8 months. In this
regard, it is required to consider the findings recorded
by the learned Trial Court. The learned Trial Court, in
his judgment, mainly recorded the finding that looking
to the overall evidence of the prosecutrix and the father
of the complainant, it is coming on record or it has been
established that initially that there was love affair
between the accused and the prosecutrix and it has not
been established by the prosecution that the accused
has forcefully taken the prosecutrix.
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16. On the contrary, it has been coming in evidence that
before the police, when the statement of the prosecutrix
victim was recorded, she specifically stated that on
21.10.2001, victim herself has voluntarily left her
parental home and met the accused at CMC where he
was there and she willfully and with the consent, has
gone with the accused and in the statement, it has been
stated that she initially went to the Sidhdhpur
thereafter, they went to the Ambaji and thereafter,
Palanpur and they also stayed at one guest house and
they have given their wrong identity in this guest house
also and they have stayed in the guest house in the name
of one – Pujaben and Ajaybhai thereafter, they went to
Palanpur and residing at Jantanagar and subsequently,
they had sexual intercourse. In this regard, the findings
recorded by the learned Sessions Court that it is not
established by the prosecution that accused has lured
the victim by giving false promise or anything and the
accused has been having sexual intercourse with the
victim against her will and accused has taken the victim
from the lawful guardianship of the father of the victim
by giving false temptation and promise of bearing her
and with an intention to seduce the victim. The findings
recorded by the learned Sessions Court is found to be
just and proper as for the first time, certain facts have
been stated before the Court and the said fact has never
been disclosed before that even before the police. So,
learned Sessions Judge has rightly come to the
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conclusion that the evidence of the prosecution cannot
be relied upon and even considering that there was
sexual intercourse with the consent of the victim even
before the amendment in the IPC before Criminal
Amendment Act, 2013, if the age of the victim is
between 16 to 18 years then, accused can take the
defence of the consent. So, learned Sessions Judge has
rightly come to the conclusion that the prosecution has
miserably failed to establish that the victim – accused
has raped the victim.
17. So far as another findings recorded by the learned Trial
Court regarding the age of the victim is concerned as
the birth date has been stated is 02.01.1985 and to
prove that, she produced School Leaving Certificate vide
Exhibit-16 and to prove the School Leaving Certificate,
they have examined one witnesses - Ranchhodbhai
Karsanbhai Patel vide Exhibit-30 as PW-10 vide Exhibit–
30. As per his deposition, he stated that he is working as
Clerk in the Dr. N. N. Patel Sarasvati Vidyalaya and he
came with the O.C. book of the school from which the
School Leaving Certificate has been issued by the school
and stated that the victim was studying in their school
and School Leaving Certificate which has been produced
vide mark Exhibit-16 has been issued by the school and
it was signed by the Principal - Nagarbhai Shakarabhai
and he identified that signature and has stated that as
per the school register, the date of birth is 02.01.1985
and the said witness was thoroughly cross-examined by
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the learned advocate for the accused and cross-
examined the said witness and admitted that the victim
had taken the admission in their school from other
school and they have written the date of birth as per the
earlier School Leaving Certificate of earlier school and
on the basis of that, they have mentioned the date of
birth and he has not seen the Birth Certificate and even
no Birth Certificate has been produced in their school.
So, considering this, learned Trial Court has found that
the School Leaving Certificate has not been proved by
the prosecution and the age of the victim has not been
proved. In this regard, now, it is required to consider the
judgment of the Hon’ble Apex Court in the case of Birka
Shiva Vs. State of Telangana arising out of SLP
(Criminal) No.1445 of 2025 reported in 2025 INSC 863,
Hon’ble Apex Court held as under:
“7. The prosecution has relied primarily on Ex.P11,
the birth certificate issued by the Zilla Parishad
High School, to establish that the victim was below
the age of sixteen years on the date of the alleged
offence, i.e., 4th August 2012. According to Ex.P11,
the victim's date of birth was 3rd November 1996,
which, if accepted, would make her approximately
15 years 9 months old at the relevant time.
8. The evidentiary value of such an entry made in
public or official registers may be admissible in
evidence under Section 35 of the Indian Evidence
Act, 18727. However, admissibility is distinct from
probative value. While such documents may be
admitted into evidence, their evidentiary weight
depends on proof of their authenticity and the
source of the underlying information. Mere
production and marking of a document as exhibited
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by the Court does not amount to proof of its
contents. Its execution has to be proved by leading
substantive evidence, that is, by the ‘evidence of
those persons who can vouchsafe for Hereinafter
referred to as the ‘Evidence Act’ the truth of the
facts in issue’. [See: Narbada Devi Gupta v.
Birendra Kumar Jaiswal] We may refer to a few
judicial pronouncements of this Court in this
regard:
8.1. This Court, in Birad Mal Singhvi v.
Anand Purohit, held that the entries
contained in the school register are relevant
and admissible but have no probative value
unless the person who made the entry or
provided the date of birth is examined. It was
observed:
“14. … If entry regarding date of birth in
the scholar's register is made on the
information given by parents or
someone having special knowledge of
the fact, the same would have probative
value. … The date of birth mentioned in
the scholars' register has no evidentiary
value unless the person who made the
entry or who gave the date of birth is
examined. The entry contained in the
admission form or the scholar's register
must be shown to be made on the basis
of information given by the parents or a
person having special knowledge about
the date of birth of the person
concerned. If the entry in the scholar's
register regarding date of birth is made
on the basis of information given by
parents, the entry would have
evidentiary value, but if it is given by a
stranger or by someone else who had no
special means of knowledge of the date
of birth, such an entry will have no
evidentiary value. …
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15. Section 35 of the Indian Evidence
Act lays down that entry in any public,
official book, register, record stating a
fact in issue or relevant fact and made
by a public servant in the discharge of
his official duty specially enjoined by the
law of the country is itself the relevant
fact. To render a document admissible
under Section 35, three conditions must
be satisfied, firstly, entry that is (2003) 8
SCC 745 1988 Supp SCC 604 relied on
must be one in a public or other official
book, register or record; secondly, it
must be an entry stating a fact in issue
or relevant fact; and thirdly, it must be
made by a public servant in discharge of
his official duty, or any other person in
performance of a duty specially enjoined
by law. An entry relating to the date of
birth made in the school register is
relevant and admissible under Section
35 of the Act, but the entry regarding
the age of a person in a school register
is of not much evidentiary value to prove
the age of the person in the absence of
the material on which the age was
recorded. … The courts have
consistently held that the date of birth
mentioned in the scholar's register or
secondary school certificate has no
probative value unless either the
parents are examined or the person on
whose information the entry may have
been made is examined…"
(Emphasis Supplied)
This decision has been consistently followed
by this Court in Pratap Singh v. State of
Jharkhand; Babloo Pasi v. State of
Jharkhand; Murugan v. State of T.N.;
State of M.P. v. Munna; C.
Doddanarayana Reddy v. C. Jayarama
Reddy; and Manak Chand v. State of
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Haryana.
8.2. A coordinate Bench of this Court in State
of Chhattisgarh v. Lekhram, through S.B.
Sinha, J., clarified that though entries in
school registers are admissible under (2005)
3 SCC 551 (2008) 13 SCC 133 (2011) 6 SCC
111 (2016) 1 SCC 696 (2020) 4 SCC 659 2023
SCC OnLine SC 1397 (2006) 5 SCC 736
Section 35 of the Evidence Act, their
evidentiary value improves only when
corroborated by oral testimony of persons
who are aware of its content, such as parents
or the person who made the entry at the time
of admission. It held as under:
“12. A register maintained in a school is
admissible in evidence to prove date of
birth of the person concerned in terms
of Section 35 of the Evidence Act. Such
dates of births are recorded in the
school register by the authorities in
discharge of their public duty. PW 5,
who was an Assistant Teacher in the
said school in the year 1977,
categorically stated that the mother of
the prosecutrix disclosed her date of
birth. The father of the prosecutrix also
deposed to the said effect.
13. …The materials on record as regards
the age of the prosecutrix were,
therefore, required to be considered in
the aforementioned backdrop. It may be
true that an entry in the school register
is not conclusive, but it has evidentiary
value. Such evidentiary value of a school
register is corroborated by oral evidence
as the same was recorded on the basis
of the statement of the mother of the
prosecutrix."
8.3. Similarly, this Court in Satpal Singh v.
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State of Haryana, stated that though a
document may be admissible, but to
determine whether the entry contained
therein has any probative value, may still be
required to be examined in the facts and
circumstances of a particular case. It held as
follows:
“26. In Vishnu v. State of Maharashtra
[(2006) 1 SCC 283 : (2006) 1 SCC (Cri)
217] while dealing with a similar issue,
this Court observed that very often
parents furnish incorrect date of birth to
the school authorities to make up the
age in order to secure admission for
their children. For determining the age
of the child, the best evidence is of
his/her parents, if it is supported by
unimpeccable documents. In case the
date of birth depicted in the school
register/certificate stands belied by the
unimpeccable evidence of reliable
persons and contemporaneous
documents like the date of birth register
of the municipal corporation,
government hospital/nursing home, etc.,
the entry in the school register is to be
discarded.
x x x
28. Thus, the law on the issue can be
summarised that the entry made in the
official record by an official or person
authorised in performance of an official
duty is admissible under Section 35 of
the Evidence Act but the party may still
ask the court/authority to examine its
probative value. The authenticity of the
entry would depend as to on whose
instruction/information such entry stood
recorded and what was his source of
information. Thus, entry in school
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register/certificate requires to be proved
in accordance with law. Standard of
proof for the same remains as in any
other civil and criminal case.”
8.4. In Madan Mohan Singh v. Rajni Kant,
this Court held that the entries made in the
official record may be admissible under
Section 35 of the Evidence Act, but the Court
has a right to examine their probative value.
The authenticity of the entries would depend
on whose information such entries stood
recorded. It was held as follows :
“20. So far as the entries made in the
official record by an official or person
authorised in performance of official
duties are concerned, they may be
admissible under Section 35 of the
Evidence Act but the Court has a right
to examine their probative value. The
authenticity of the entries would depend
on whose information such entries stood
recorded and what was his source of
information. The entries in school
register/school leaving certificate
require to be proved in accordance with
law and the standard of proof required
in such cases remained the same as in
any other civil or criminal cases.
21. … For determining the age of a
person, the best evidence is of his/her
parents, if it is supported by
unimpeachable documents. In case the
date of birth depicted in the school
register/certificate stands belied by the
unimpeachable evidence of reliable
persons and contemporaneous
documents like the date of birth register
of the Municipal Corporation,
government hospital/nursing home, etc.,
the entry in the school register is to be
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discarded. …”
8.5. This Court, in Alamelu v. State19, while
dealing with a similar factual matrix, held
that the prosecution had failed to prove that
the girl was a minor at the relevant date since
the transfer certificate of a Government
School showing age was not duly proved by
witnesses. It observed as under:
“40. Undoubtedly, the transfer
certificate, Ext. P-16 indicates that the
girl's date of birth was 15-6-1977.
Therefore, even according to the
aforesaid certificate, she would be above
16 years of age (16 years 1 month and
16 days) on the date of the alleged
incident i.e. 31-7-1993. The transfer
certificate has been issued by a
government school and has been duly
signed by the Headmaster. Therefore, it
would be admissible in evidence under
Section 35 of the Evidence Act, 1872.
However, the admissibility of such a
document would be of not much
evidentiary value to prove the age of the
girl in the absence of the material on the
basis of which the age was recorded.
The date of birth mentioned in the
transfer certificate would have no
evidentiary value unless the person who
made the entry or who gave the date of
birth is examined.
41. We may notice here that PW 1 was
examined in the Court on 9-8-1999. In
his evidence, he made no reference to
the transfer certificate (Ext. P-16). He
did not mention the girl's age or date of
birth. PW 2 was also examined on 9-8-
1999. She had also made no reference
either to her age or to the transfer
certificate. It appears from the record
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that a petition was filed by the
complainant under Section 311 CrPC
seeking permission to produce the
transfer certificate and to recall PW 2.
This petition was allowed. … In her
cross- examination, she had merely
stated that she had signed on the
transfer certificate, Ext. P-16 issued by
the school and accordingly her date of
birth was noticed as 15-6- 1977. She
also stated that the certificate has been
signed by the father as well as the
Headmaster. But the Headmaster has
not been examined. Therefore, in our
opinion, there was no reliable evidence
to vouchsafe for the truth of the facts
stated in the transfer certificate.”
(Emphasis supplied)
9. In the attending facts, we find that the
evidentiary value of Ex.P11 is significantly
undermined in the absence of corroborating
material. We say so for the following reasons:
(i) PW-13, who is the Headmaster of Zilla
Parishad High School, Chandanapur,
Peddapalli District (erstwhile Karimnagar
District), stated that the victim studied in his
school from 2007 to 2013, i.e., 6th Class to
10th Class and that the Admission Register
records her date of birth as 3rd November
1996. However, in his cross-examination, he
admitted that he had no personal knowledge
as to the source or basis on which the date of
birth was recorded therein or if the recorded
date of birth was correct or not. The relevant
part of his testimony is extracted hereunder:
“…In our school there is not clerk to
maintain records. I did not produce any
certificate pertaining to earlier school I,
In which P.W.3 studies up to 5th Class.
There must be basis for entering date of
birth of a student in our school such as
her earlier school record. I do not have
Page 24 of 29
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personal knowledge as to what record
was produced by parents of P.W. 3 as
basis to enter her date of birth in our
school as I was not Head Master in
2007.
I cannot say in which school P.W.3
studied up to 5th Class. In the nominal
roll register of our school, the signature
of P.W.3 was obtained. I do not have
personal knowledge whether the said
date of birth of P.W.3 was correct or not
and I am giving evidence only on the
basis of record.”
(Emphasis Supplied)
(ii) The prosecution has failed to examine the
person who had made the entry in the
Admission Register to ascertain on what basis
such an entry was made. More so, the entry in
respect of the date of birth of the victim in the
primary school register, i.e., 1st Class to 5th
Class, has not been produced and proved
before the Courts below to verify the age as
per its records. It is also not possible to
ascertain from the records as to whether the
date of birth was provided by the parents or
simply entered at the behest of another party,
without verification, at the time of admission
to Zilla Parishad High School.
(iii) The testimonies of PW-1, PW-2 and PW-3
are also telling that none of them mentioned
the victim's age with specificity. There is no
reference to Ex.P11, and no attempt was
made by the prosecution to adduce
corroborative testimony regarding the
victim's date of birth from her family
members.
Thus, while examining the issue at hand, on the
anvil of the principles elucidated above, it is
essential to notice that the prosecution has failed
to toe the line of legal requisites. There is nothing
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on record to corroborate the date of birth of the
victim as recorded in the birth certificate (Ex.P11)
issued by the school. Therefore, it cannot be relied
upon to definitely determine the age of the victim
and held with certainty that the victim was below
sixteen/eighteen years of age.
10. All three of the I.Os. are curiously silent on the
aspect of age of the alleged rape victim. This, in
itself, raises credible questions about the
investigation since a charge of rape is involved in
which the age of the victim is an essential factor.
PW-11, the I.O. who registered the FIR,
categorically states that the mother (PW-1) and
brothers (PWs 2 and 4) of the victim did not give
him particulars of her year of birth and age. PW-12,
who was the 3rd I.O., in his cross-examination
admitted to not having pursued the aspect of the
victim's age sufficiently. The relevant portion of his
testimony is as under:
“As per Ex.P1 complaint P.W.3 was studying
in S.R.K. Junior college, Godavarikhani. I have
not visited the said college. I did not examine
her classmates to enquire as to how P.W.3
was going to college. I did not enquire as to
the birth place of P.W.3. It is true every
Grampanchayath will maintain births and
deaths register. I did not verify whether the
date of birth of P.W.3 was got registered in
the Grampanchayath. I did not enquire as to
where P.W.3 completed her primary
education. I did not investigation as to who
got filled in the form of admission of P.W.3 in
the school.”
11. Furthermore, none of the victim's family
members, i.e., her mother and brothers have said
anything about the age of the victim in their
depositions made in the Court. Even the victim is
effectively silent on this aspect, only stating that
she and her siblings were born approximately two
years apart and thereby making an estimation of
their ages as well as her own. Throughout her
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deposition, the victim has remained silent with
regard to her particular date of birth.
12. Well, suffice it to say that Courts of law cannot
make a determination of guilt in thin air, based on
estimations. In the present facts and
circumstances, the proof submitted by the
prosecution in the form of Ex.P11 (birth certificate
issued by the school) was not sufficient to arrive at
a finding that the prosecutrix was less than
sixteen/eighteen years of age, especially when such
a document was not sufficiently corroborated.
Therefore, it was neither safe nor fair to convict the
appellant based on it, particularly in the context
where the age of the victim was such a pivotal
factor.”
18. Considering this, learned Trial Court has rightly come to
the conclusion that the prosecution has not proved the
date of birth of the prosecutrix or the victim as from the
deposition of the witness who has been working as a
Clerk is concerned, the date of birth has been stated in
the School Leaving Certificate issued by the school only
on the basis of that, earlier School Leaving Certificate
from which the victim has been earlier studying and
thereafter, she took the admission in the school merely
on the basis of that, in the School Leaving Certificate,
date of birth of the victim has been stated. So, the
findings recorded by the learned Trial Court that the age
of the victim has not been proved by the prosecution, is
just and proper.
19. So, considering this, the findings recorded by the
learned Trial Court that the victim has accompanied the
accused as she was under threat, is not been
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established. On the contrary, it has been recorded by the
learned Trial Court that there was a love affair between
the accused and the victim and the victim has voluntarily
left the parental home and went with the accused and
the victim has also, with her free will and consent, has
made sexual intercourse with the accused. So, there is
no question that the prosecution has failed to establish
that the accused has taken the victim from the lawful
guardianship and the accused has kidnapped the victim
and thereafter, committed a rape on her. Further, the
learned Court has also recorded that the victim has
stayed with the accused at guest house on the wrong
name also. Considering this, as she has all the
opportunity, if she was forcefully taken by the accused
as the victim has left her home on 21.10.2001 and have
found on 07.12.2001. So, in this period, the prosecutrix
has never shouted anything as they have been travelling
in the ST Bus and the findings recorded by the learned
Trial Court that the prosecution has also failed to
establish that the age of the prosecutrix is below 18 on
the date of an incident.
20. After re-appreciating and re-examining the evidence of
the Court, we could not find that there is an error of law
committed by the learned Trial Court and acquitting the
accused and as such findings recorded are neither
perverse nor erroneous whereby, no interference as
such is required by this Court while exercising its
appellate power under Section 378 of the Cr.P.C.
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21. After coming through the evidence and re-appreciation
as well as reasons assigned by the learned Sessions
Court, the prosecution has failed to prove the charges
against the accused which are just and proper and we
are in complete agreement with the reasons assigned by
the learned Sessions Court while acquitting the accused.
22. Considering the fact on record and light of the judgment
of the Hon’ble Apex Court, more particularly, while
dealing with the appeals on acquittal, we are of the
opinion that no error has been committed by the learned
Special Judge, Court No.20, City, Civil & Sessions Court,
Ahmedabad in Atrocity Criminal Case No.11 of 2002 by
order dated 10.01.2003 acquitting the present
respondent – original accused for the offence punishable
under Sections 363, 366 and 376 of the IPC and Sections
3(1), 3(11) and 3(12) of the Act.
23. The appeal is accordingly dismissed. Resultantly, the
impugned judgment and order of the learned Sessions
Court is hereby confirmed. Bail bond, if any, shall stand
discharged. If any Record & Proceedings has been called
for, be sent back to the concerned Trial Court forthwith.
Rule is discharged.
(SANJEEV J.THAKER,J)
(L. S. PIRZADA, J)
Jaimin
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 09/01/2026
17:22:40
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