Gujarat High Court
State Of Gujarat vs Hemangbhai Ranjitbhai Mehta on 2 September, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 335 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
HEMANGBHAI RANJITBHAI MEHTA
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Appearance:
MR. JAY MEHTA, APP for the Appellant(s) No. 1
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 02/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. Heard Mr. Jay Mehta, the learned APP appearing for the appellant- State and Mr. Mrudul Barot, learned advocate Page 1 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined appearing for the respondent - accused.
2. The appellant - State being aggrieved and dissatisfied with the impugned judgment and order dated 24.02.2000 of acquittal passed by the Sessions Judge, Mehsana in Sessions Case No. 89 of 1999, for the offences punishable under Sections 366 and 376 of the Indian Penal Code, preferred the present Appeal before this Court. The competent Court after appreciating the evidence laid down by the prosecution, convicted the respondent
- accused for offence under Sections 363 of the Indian Penal Code and ordered to suffer rigorous imprisonment of two years and fine of Rs.1,000/- and in default of the amount of said fine, further rigorous imprisonment of one month, whereas, acquitted the respondent- accused for the offence under Sections 366 and 376 of the Indian Penal Code.
3. The prosecution has relied on the facts narrated in the impugned judgment and in view thereof, the same are not reproduced herein.
4. Upon committal of the case to the Sessions Court, learned Judge framed charge against the respondent -accused for the aforesaid offence. The respondent-accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led evidence and at the conclusion of the trial, the learned Judge acquitted the accused for the aforesaid offence. During the course Page 2 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined of trial, the prosecution had submitted the oral as well as documentary evidence. The details of the aforesaid evidence led by the prosecution is reproduced in the tabular form, which are as under :-
~:: ORAL EVIDENCES ::~ Prosecution PARTICULAR EXH.
Witness 1 Dr. Kantilal Maghabhai Parmar, Medical 11 Officer, Visnagar 2 Dr. Bhogilal Amtharam Patel, Medical 20 Officer, Visnagar 3 Dr. Narendra Gunvantrai Joshi, Medical 25 Officer, Civil Hospital, Ahmedabad 4 Natvarbhai Naranbhai Patel, Clerk, 35 Nagarpalika, Visnagar 5 Madhavlal Shankarlal Patel, Clerk, 38 Nagarpalika, Visnagar 6 Dr. Himmatbhai Fusabhai Patel, Medical 40 Officer, Civil Hospital, Ahmedabad 7 Rameshkumar Chimanlal Modi, 46 Complainant 8 Nitaben Narmadashankar Nayak, Sr.Clerk, 50 Page 3 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined G.D.High School, Visnagar 9 Chetnaben Rameshkumar Modi, Daughter 57 of Complainant and victim 10 Rasiklal Bhaishankar Dave 66 11 Arjunsinh Ratansinh Vaghela, Head 70 Constable, Visnagar Police Station 12 Ganeshlal Mohanlal Pujari 72 13 Padmaben Devchandrabhai Soni, Head 78 Teacher, Primary School No.8, Visnagar 14 Nizamuddin Bauddin Nagori, Investigating 82 Officer, P.S.I, Visnagar 15 Rohitkumar Dhuljibhai Barda, Investigating 98 Officer, P.I, Visnagar.
5. Thereafter, the Prosecution produced the following Documentary evidences in this case.
SR. PARTICULARS EXH.
NO.
(1) Order for Investigation in Crime Register No. 7
I 458/98 at Visnagar Police Station.
(2) M.L.C Certificate No. 1236 of the accused that 12
is obtained from Visnagar hospital.
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NEUTRAL CITATION
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(3) O.P.D case papers of the accused from 14
Visnagar Civil Hospital.
(4) Detailed Examination note prepared by Doctor 15
from Visnagar.
(5) Yadi for examination of accused issued by 16
Visnagar Police Station.
(6) Original Consent letter of Victim Chetnaben 22
Modi.
(7) X-ray of Chetnaben Rameshbhai. 23
(8) M.L.C Certificate of Chetnaben Rameshbhai 24
Modi.
(9) Case papers of Chetnaben Rameshbhai. 27
(10) Yadi for sending Chetnaben for X-ray. 28
(11) Case papers of Chetnaben as an indoor 29
patient. and 30
(12) X-ray of Chetnaben - Three. 31 and 33
(14) Certified copy of the Register regarding the 37
birth registration of Chetnaben.
(15) Certificate of Chetnaben issued by Doctor at 34
Ahmedabad Civil.
(16) Certificate for birth of Chetnaben issued by 39
Visnagar Nagarpalika.
(17) O.P.D case papers of Chetnaben issued by 42
Ahmedabad Civil.
(18) Transfer form of Chetnaben. 43
(19) Office copy regarding handing over samples of 44
blood, saliva, pubic hair of Chetnaben.
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(20) Certificate of Chetnaben which is issued by 45
Ahmedabad Civil Hospital.
(21) Certified copy of extract of M.L.C register - 49
Visnagar Hospital.
(22) Certified copy of General Register for the 51
students enrolled in G.D High School.
(23) Leaving Certificate of Chetnaben. 52
(24) Admission form obtained by Chetnaben Modi 54
for G.D.High School.
(25) Xerox of a School Leaving Certificate of 55
Chetnaben.
(26) Letter written by Chetnaben to her father. 60
(27) Photographs of marriage of the accused and 62
victim.
(28) Certified copy of visitor register at Bechraji 68
Dharmshala.
(29) Certified copy of receipt that was issued to 69
the accused by Bechraji Dharmshala.
(30) Original complaint by the complainant. 71
(31) Certified copy of visitor register Ambaji 74 and 75
Dharmshala.
(32) Form filled by the guardians of Chetnaben in 79
Primary School No. 8.
(33) Certified copy of the Student register 81
maintained at Visnagar Primary School No.8.
(34) Dispatch Note. 83 and 85 Page 6 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined (35) Receipt issued by F.S.L. 84 and 86 (36) Letter of F.S.L. 87 and 90 (37) Reports by F.S.L. 88, 89 and 91
6. The defence has examined the following witnesses in this case.
Vijay Indravadan Pandit Exhibit- 102
7. On conclusion of evidence on the part of the
prosecution, the trial Court recorded further statement of the accused as provided u/s. 313 of the Code, wherein, the accused herein denied his involvement in the offence and stated that, false case had been filed against him. After hearing both the sides and after appreciating evidence adduced by the prosecution, the competent Court acquitted the accused herein, from the charge of offences as referred above.
8.1. Mr. Jay Mehta, learned APP relied on the reasons and grounds stated in the memo of the Appeal.
8.2. Mr. Mehta, learned APP submitted that the impugned judgment and order rendered by the competent Court is required to be interfered with, the same having been passed without considering the evidence on record in true spirit.
8.3. Mr. Jay Mehta, learned APP submitted that, once the Page 7 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined respondent - accused has been convicted under Section 363 of the Indian Penal Code and the competent Court has given a finding of fact that, the age of the prosecutrix was below 18 years, the respondent - accused is erroneously acquitted for the charge with respect to offence punishable under Sections 366 and 376 of the Indian Penal Code. It is submitted that, the prosecutrix had deposed below Exh.57, that she was induced by the accused herein, and in view thereof, the Sessions Court has erred in acquitting the accused - respondent herein, though he having committed the offence of rape.
8.4. Placing reliance on the aforesaid submissions, it is submitted that the present Appeal be allowed and the impugned judgment may kindly be quashed and set aside.
9.1. On the other hand, Mr. Mrudul Barot, learned advocate appearing for the respondent - accused supported the impugned judgment rendered by the competent Court and submitted that, no interference is called for in the impugned judgment, as the competent Court has considered in detail, the depositions of the witnesses and the documents on record.
9.2. Mr. Barot, learned advocate relied on the deposition of PW-4 Natvarbhai Naranbhai Patel below Exh.35 that, the birth certificate was not proved, wherein, the column of name in the birth register was unfilled, as stated in Entry No. 1023 and Page 8 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined column of name was blank and in view thereof, the date of birth i.e. 13.07.1983 being that of the victim, was not proved by the prosecution.
9.3. Reliance is placed on the Affidavit filed by the prosecutrix, which was produced by the respondent - accused, wherein, age was mentioned as 20 years. It was also stated by her that, her correct date of birth was 15.07.1980 and her birth place was Visnagar, Gujarat. It was also stated by the prosecutrix that, there were no other documents or documentary evidence with respect to her date of birth, except her school leaving certificate.
9.4. Reliance is also placed on the letter written by the prosecutrix to her father, viz. Rameshkumar Chimanlal Modi on 11.06.1999 that, she wishes to live with the respondent- accused.
9.5. Reliance is placed on the impugned judgment, wherein, the competent Court has considered the deposition of the Senior Clerk of Birth & Death Registrar. The birth certificate was held not to be proved.
9.6. In view of the aforesaid submissions, Mr. Barot, learned advocate submitted that, the prosecution has failed to establish its case beyond reasonable doubt, and therefore, the impugned judgment is such, the same may not be interfered with.
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10. POSITION OF LAW:
i. At this stage, it is appropriate to refer to the ratio laid down by the Hon'ble Apex Court in case of Sanjeev v. State of Himachal Pradesh reported in 2022 (6) SCC 294. Para 7 of the judgment is reproduced herein below:
"7. It is well settled that:-
7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).
7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v. State of Uttar Pradesh).
7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."
ii. At this stage, it is absolutely apt to refer to the decision in case of Bhupatbhai Bachubhai Chavda and another reported in [2024] 4 S.C.R. 322. Relevant paragraphs of the judgment read as under:
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment Page 10 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well- settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.
...
11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."
Page 11 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined iii. It is well settled position of law as held by the Hon'ble Apex Court in the case of Jaya Mala v/s. Home Secretary, Government of J. & K. and others reported in AIR 1982 SC 1297, relevant para-9 reads thus:
"9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated 3.05.1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed."
iv. In the case of Ram Suresh Singh v/s. Prabhat Singh @ Chhotu Singh & Anr. reported in (2009) 6 SCC 681, relevant para-12 to 15 reads thus:
"12. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in a school admission register is to be considered for the purpose of determining the relevance thereof. But in this case, the said condition must be held to have been satisfied. An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in the case of Birad Mal Singhvi (supra), but, in this case the said entry has been proved.
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13. Even if we had to consider the medical report, it is now well known that an error of two years in determining the age is possible. In Jaya Mala V/s. Home Secretary, Government of Jammu and Kashmir & Ors. [AIR 1982 SC 1297 = (1982) 2 SCC 202], this Court held:
"9.....However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
14. There cannot furthermore be any doubt whatsoever that same standard is required to be applied for the purpose of Section 35 of the Evidence Act both in civil as also criminal proceedings, as was held by this Court in the case of Ravinder Singh Gorkhi V/s. State of U.P. (2006) 5 SCC 584, stating:
"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
However, the medical opinion rendered in this case corroborates the entry made in the register. Admission register of the school having been proved in accordance with law, we do not see any reason as to why the same should not be taken Page 13 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined into consideration.
15. We are not oblivious of the fact that it is difficult to lay down a law as to whether in a case of this nature, the lower or the upper age or the average age should be taken into consideration. Each case depends on its own facts. In the case of Jyoti Prakash Rai @ Jyoti Prakash V/s. State of Bihar 2008(3) SCALE 348 this Court, upon consideration of large number of decisions, opined :
"23. Appellant herein had produced a large number of documents to prove his age purported to be as on the date of commission of the crime. The genuineness of the school certificate and the horoscope had been questioned. The school certificate produced by the appellant was found to be forged and fabricated and as a matter of fact a criminal case was directed to be instituted against the Head of the Institution.
24. The court, therefore, had no other option but to determine the age on the basis of the Medical Reports. Both the medical reports dated 24.04.2001 and 29.06.2001 opined the age of the appellant between 18 and 19 years. In terms of first medical report, the age of the appellant came to be 18 years 5 months 8 days and in terms of the second medical report, it came to be between 18 and 19 years. The High Court opined that the appellant on 1.04.2001 was definitely above 18 years of age and not below 18 years of age.
25. The courts have considered this aspect of the matter on earlier occasions also. If, thus, on the basis of several factors including the fact that school leaving certificate and the horoscope produced by the appellant were found to be forged and fabricated and having regard to two medical reports the courts below have found the age of the appellant as on 1.04.2001 to be above 18 years, we are of the opinion that no exception thereto can be taken."
In the present case, however, the documents produced by the respondent no.1 were not found to be forged, fabricated or otherwise inadmissible in law. If a document is proved to be genuine and satisfies the requirements of law, it should be, Page 14 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined subject to just exceptions, relied upon. 20. However, in the case of Vimal Chadha V/s. Vikas Choudhary & Anr. 2008(8) SCALE 608, this Court remitted the matter back for consideration of the age in terms of the rules keeping in view of the provisions contained in Section 472 of the Code of Criminal Procedure."
v. In the case of Manoj @ Monu @ Vishal Chaudhary v/s. State of Haryana & Anr. reported in (2022) 6 SCC 187 , relevant paras 17 to 23 reads thus:
"17. A textbook of Medical Jurisprudence and Toxicology by Modi, 26th Edition, pg. 221, delineates the factors relevant to determining the age-
(1) Height and Weight- it is opined that progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depended upon in estimating age in medico-legal cases.
(2) Ossification of Bones- this sign is helpful for determining the age until ossification is completed, for skiagraphy has now made it possible to determine even in living persons, the extent of ossification, and the union of epiphysis in bones.
18. Hence, it cannot be reasonably expected to formulate a uniform standard for determination of the age of the union of epiphysis on account of variations in climatic, dietetic, hereditary and other factors affecting the people of the different States of India.
19. Furthermore, this Court in a judgment reported as Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 held that the medical report determining the age of a person has never been considered by courts of law as also by the medical scientist to be conclusive in nature. It was also found that though the Act is a beneficial legislation but principles of beneficial legislation are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not.
20. The Court held as under:
"12. The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving Page 15 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on record by the parties. In the absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant.
13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] opined : (SCC p. 290, para 20) "20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."
In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side.
21. In a judgment reported as Mukarrab v. State of U.P., (2017) 2 SCC 210 it was observed that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by the radiological examination. It was also held that the purpose of 2000 Act is not to give shelter to the accused of grave and heinous offences. Relying upon judgment of this Court reported as Abuzar Hossain v. State of West Bengal, (2012) 10 SCC 489 and Parag Bhati v. State of Uttar Pradesh, (2016) 12 SCC 744 it was held as under:
Page 16 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined "27. In a recent judgment, State of M.P. v. Anoop Singh [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208] , it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266] and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208] , we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age."
22. This Court in a judgment reported as Babloo Pasi v. State of Jharkhand and Anr., (2008) 13 SCC 133 held that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It was held as under:
"22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence."
23. In Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714, it was held that X-Ray Ossification Test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate test so as to indicate the exact date of birth of the person concerned. It was held as under:
"21. Relying upon a judgment of this Court in Jaya Mala v. Home Secy., Govt. of J&K [(1982) 2 SCC 538 : 1982 SCC (Cri) 502 : AIR 1982 SC 1297 : 1982 Cri LJ 1777] the learned defence counsel submitted that the Court can take notice that the marginal error in age ascertained by radiological examination is two years on Page 17 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined either side. The aforesaid case is of no help to the accused inasmuch as in that case the Court was dealing with the age of a detenu taken in preventive custody and was not determining the extent of sentence to be awarded upon conviction of an offence. Otherwise also even if the observations made in the aforesaid judgment are taken note of, it does not help the accused in any case. The doctor has opined the age of the accused to be admittedly more than 20 years and less than 25 years. The statement of the doctor is no more than an opinion, the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon textbooks, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform."
11. In the aforesaid judgments, it is held that the ossification test is not conclusive for determination of age, as it does not reveal the exact age of the person, but leaves the margin of two years on either side of the age range, as prescribed by the test. The Hon'ble Apex Court has further held that the benefit of doubt in age estimation by bone ossification test is to go to the accused, as held in Triveniben V/s. State of Gujarat reported in (1989) 1 SCC 678 and Maru ram V/s. Union of India reported in (1981) 1 SCC 107 and as further confirmed in Shweta Gulati v/s. State (NCT of Delhi) reported in 2019 SCC OnLine Del 10448 in Para-14 which reads thus:
Page 18 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined "14. The settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions, has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side."
12. Having heard the learned advocates appearing for the respective parties, having considered the depositions of the prosecution witnesses and the documents on record, following emerge:
A. It is the case of the prosecution that, the complainant
- Rameshbhai Chimanlal Modi, resident of Visnagar lodged a complaint on 30.10.1998 at Visnagar Police Station stating that, before 2 years one Mr. Hemang Ranjitbhai Mehta, who was a tenant in Maholla in Bhandiya Por, who used to visit the complainant's house in his absence and harassed his younger daughter - Chetnaben aged 15 years and because of which, the complainant used to scold him.
B. On 29.10.1998 his daughter - Chetnaben had gone in the neighborhood, while he was at home. She did not return within one hour and in view thereof, the complainant inquire at nearby places, but when her whereabouts could not be traced, complainant lodged the complaint against Hemangbhai, which was registered by Arjunsinh Ratansinh Waghela on 30.10.1998 at Page 19 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined Visnagar Police Station between 8:00 a.m. and 12:00 p.m., during which he was in-charge of the Police Station. The F.I.R. which was registered, was handed over to P.S.I. Mr. Nagori. The prosecutrix - Chetnaben was traced on 06.12.1998 from Paldi Gam, however, accused could not be traced. Upon taking Chetnaben to Visnagar Police Station, the prosecutrix's statement was recorded. On 09.12.1998, the accused also produced himself. The accused was arrested and he was also sent for medical examination. During the course of the investigation, Section 376 of the I.P.C. was added. On 13.12.1998, the statement of the Manager of Guest House, Ganeshbhai Mohanbhai Joshi was taken, where the accused and prosecutrix had resided. Thereafter, the complainant's aunt's statement was taken. Further, investigation was handed over to P.S.I. Shri Baranda, statements of sister and brother-in-law of the accused were also taken, who had come from Mumbai to Visnagar. The statement of Rajnibhai Savjibhai Kansara was taken from Idar by Head Constable Dhulaji. The statements of Babupuri Goswami of Becharji and Jay Sukhadiya Dharamshala Accountant were also taken. Thereafter, the statement of Sureshkumar Vasudev was taken. Upon recording such statements, the same were placed before the Judicial Magistrate, that the case was sessions triable and in view thereof, by order dated 06.03.1999 the case was committed to the Court of Session.Page 20 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025
NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined C. That four issues for the purpose of determination came to be framed by the competent Court, which read thus:
"(1) Whether the Prosecution proves that the accused has committed an offence punishable under Section 363 of the Indian Penal Code by taking away the daughter of complainant, Chetna, who was below 18 years of age, a minor person from the lawful custody of her guardian without permission or by taking her away by enticing and luring her?
(2) Whether the Prosecution proves that the accused has committed an offence punishable under Section 366 of the Indian Penal Code by kidnapping/abducting the complainant's daughter, namely Chetna with the intention of forcing her to marry against her will or knowing that there was probability of doing so or she was likely to be forced into illicit intercourse or with the intentions to entice her or knowing that it was probable that it can be done? (3) Whether the Prosecution proves that the accused has committed an offence punishable under Section 376 of the Indian Penal Code by kidnapping Chetna from the above mentioned date, time and place and took her to Mumbai, Ranivada, Bechraji and also Ambaji and committed rape on her by doing illicit intercourse against her will or permission?
(4) What Order?"
D. The respondent- accused has been convicted for the aforesaid charge punishable under Section 363 of the Indian Penal Code. The point nos. 2 and 3, whether the accused was punishable under Sections 366 and 376 of the Indian Penal Code were held in negative and the accused was acquitted for the said charges.
E. The aforesaid has given rise to the filing of the Page 21 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined present Appeal, by the appellant- Sate being aggrieved and dissatisfied with the impugned judgment and order of acquittal by the competent Court, so far as offence under Sections 366 and 376 of the IPC were concerned.
F. We have considered the depositions of the prosecution witnesses, the documents produced on record and the impugned judgment rendered by the competent Court, to arrive at a final conclusion, the following emerge:
(a) We have considered the birth certificate of the prosecutrix, which in our opinion was not proved, wherein, Entry No. 1023 though records the date of birth as 13.07.1983, mentioned - Stree (female/girl) in the column of name, though column no.8 records the father's name as Rameshkumar Modi and column no. 13 records the mother's name as Hemlattaben. In our opinion, in absence of the name on the birth certificate, unless the same has been proved, the authenticity of the document cannot be taken as it is. We have perused the school leaving certificate produced on record by Nitaben Narmadashankar Nayak, PW-8, who has deposed below Exh.50, has produced the general register maintained by G.D. High School, by entry no. 12325, which was exhibited at Exh.51 recording the date of birth of the prosecutrix as 13.07.1983. The prosecutrix had earlier studied in Madhyavarti Kanya Shala No.1 and from that school, she was admitted in Page 22 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined G.D. High School. A certificate was duly placed on record below Exh.52, wherein, date of birth of the prosecutrix was 13.07.1983.
The competent Court has arrived at a finding of fact that, as to which Clerk / Teacher had made the entry of the certificate below Exh.51 at Madhyavarti Kanya Shala No.1, Visnagar (school leaving certificate), which was produced by the parents of the prosecutrix was not proved, therefore, the competent Court comes to conclusion that, the date of birth of the prosecutrix was stated in 13.07.1983 in both the schools.
The Hon'ble Apex Court in the case of Ram Suresh Singh v/s. Prabhat Singh @ Chhotu Singh & Anr. reported in (2009) 6 SCC 681, held that the entry in a school register may not be a public document and thus must be proved in accordance with law, as held in Birad Mal Singhvi v/s. Anand Purohit reported in 1988 Supp SCC 604. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in a school admission register is to be considered for the purpose of determining the relevance thereof, but the said condition must be held to be proved and an entry in the school register may not be a public document but, must be proved in accordance with law, as held in Birad Mal Singhvi (supra).
In the facts of the present case, the entry in the school register also not conclusive in nature, wherein, PW-8 Nitaben, Page 23 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined Clerk at G.D. High School in cross had admitted that, it was not known which Clerk made the entry. The parents produced Leaving Certificate from Madhyavarti Kanya Vidhyala No.1. It was not on the school record as to how the said date was on the record of Kanya Vidhyala no.1. At this stage, it is apposite to refer to the decision rendered by the Hon'ble Apex Court in Birka Shiva v/s. State of Telangana reported in 2025 INSC 863, relevant para-8 read thus:
"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, 1872 7. 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 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 the truth of the facts in issue'. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal MANU/SC/0862/2003 :
2003:INSC:595 : (2003) 8 SCC 745] 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 MANU/SC/0052/1988 : 1988 Supp SCC 604, 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 Page 24 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined 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. ...
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 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) T his 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 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 Section 35 of Page 25 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined 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. 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 Page 26 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined 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 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 discarded. ...
8.5. This Court, in Alamelu v. State, 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 Page 27 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined 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 that a petition was filed by the complainant Under Section 311 Code of Criminal Procedure 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)"
(b) At this stage, we deem it fit to consider the history given by the prosecutrix before the Doctor, when she was taken for medical examination, Dr. Bhogilal Amtharam Patel - PW-2 who had deposed below Exh.20 that, on 06.12.1998 he was Medical Officer, General Hospital, Visnagar had examined the prosecutrix
- Chetnaben at about 2:00 p.m., wherein, prosecutrix -Page 28 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025
NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined Chetnaben mentioned in the history, that she had gone on her own will on 29.10.1988 to Bombay and stayed at Bombay at accused - Hemangbhai's sister's house. It was deposed in Para-8 in cross-examination that, the history was given by prosecutrix in the presence of PW-2 and signed by her, which was on record below Exh.22. The Doctor had recorded the case history in the presence of Nurse. The prosecutrix - Chetnaben in her history had informed that, on 29.10.1988 she went to Mumbai with Hemangbhai on her own will, which was forming a part of the case papers. She had further stated that, they resided at Hemangbhai sister's house and that they had intercourse before 2 days and changed their clothes. Pursuant to the history narrated by Chetnaben, the certificate came to be issued by Dr. Bhogilal Patel below Exh.24. It was further stated in the cross-examination that, the ossification test was considered as dependable / authentic to determine the age. Two X-rays of the hipbone were taken to determine the age of the prosecutrix, but they were not sent to the Radiologist, who, upon examining the same would be in a position to opine with respect to the age. PW-2 did not opine about the exact age of the prosecutrix.
(c) The prosecutrix was thereafter transferred to the Civil Hospital at Ahmedabad, who was examined by Medical Officer, Ahmedabad Civil Hospital, PW-3- Dr. Narendra Joshi. Relying on the X-rays below Exs. 31, 32 and 33, it was opined that, the age Page 29 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined of the prosecutrix was between 15 and 16 years. The injury certificate below Exh.34 is also produced. The PW-3 deposed that, the opinion of Radiologist was not taken. The opinion was based on Modi's jurisprudence and considering the development of the shoulder bone, it was opined that the age of the prosecutrix may be between 14 and 16 years. The case papers duly produced below Exh.29 was with regard to the alleged rape. The certificate issued by Dr. Narendra Joshi also was silent about commission of rape.
(d) On perusal of the certificate issued below Exh.30, wherein, the prosecutrix was examined by Dr. A.N. Desai, Assistant Professor certified that, the patient is habituated to sex. The prosecutrix was sent for further investigation for examination before PW-6- Dr. Himmatbhai Patel, at Exh.40, who examined the prosecutrix and stated that, the history of the patient was to run away with consent and there were no injury marks over the body or over the external genitals. Dr. Himmatbhai in paragraph 4 of his deposition stated that, she had gone to Mumbai on 29.10.1998 at about 10:00 a.m. on her own will. She was at Mumbai for 15 to 20 days and from there, she had gone to Rajasthan at a friend's place (Rameshbhai's place). From there, they went to Bahuchraji, where they stayed for 2 days. From there, they went to Ambaji and stayed for 2 days. From Ambaji, they came to Pardi, where they stayed for 1 day. The prosecutrix Page 30 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined had stated that, she knows the said person since 2 months. She had done intercourse with the accused for the first time on 10.11.1998 and lastly on 05.12.1998. The said history was recorded in the case papers. Prosecutrix was habituated to intercourse. PW-6 - Dr. Himmatbhai had issued the injury certificate, wherein, it was stated that, there was no injury marks over her body and / or external genitals.
(e) After the prosecutrix was traced on 06.12.1998, she was immediately sent for medical examination. As discussed above, all the three Doctors have opined that the prosecutrix is habitual to sex. There were no signs of force. In view of the above, our view is fortified, considering the deposition of PW-14
- I.O. Nijamuddin Nagori examined by prosecution below Exh.82, wherein, it was deposed that on 06.12.1998, when the complainant's second statement was recorded, it was revealed that, the accused and prosecutrix had married, however, the I.O. never investigated the authenticity of the marriage. The prosecutrix had given the statement on 06.12.1998 that, Hemang used to visit her house and they also met in a room of Dr. Motibhai's clinic at Visnagar. They slept separately at his sister's house.
(f) We have also considered the deposition of PW-15- Rohitkumar Barda, I.O. below Exh.98, who recorded the Page 31 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined statements of Pandit Vijaykumar, in whose presence the marriage was solemnized between the accused and prosecutrix. The brother-in-law of the accused, who gave the statement that the age of the prosecutrix was 18 years and because the financial position of her parent was not sound, she ran with the accused on her own will. It was also stated in his statement that, the prosecutrix was in love with Hemangbhai and wanted to marry him, however, I.O. had never investigated into the same, except for the recording the statement. He also recorded the statement of the sister of the accused, wherein, she gave a statement that the prosecutrix willingly went to Mumbai and that, there was no force or coercion. The said statements were also produced on record. Vijaykumar Pandit was also examined below Exh.102, wherein, he reiterated the aforesaid and deposed that, the accused is his nephew. The prosecutrix stated her date of birth as 15.07.1980 and upon asking, she declined of having any document or documentary proof with regard to her age. That, she filed an Affidavit before Bandra Court, which was on record and the Memorandum of Marriage issued by the competent Court.
(g) Prosecutrix - Chetnaben has been examined by prosecution below Exh.57, wherein, she deposed that she had stated her date of birth as 13.07.1983. It was also stated that, she was threatened by the accused. That she had not read the Page 32 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined papers, which were signed by her at Mumbai. Though, she was raped by the accused, because she was put to threat, she never divulged anything to anybody. The accused and prosecutrix were intercepted by Visnagar police. From the aforesaid, it can be construed that she had supported the prosecution, by her deposition.
(h) It is also apposite to deal with the deposition of the complainant - Rameshbhai Modi PW-7 having deposed below Exh.46, wherein, in his cross-examination in Para-9, he denied that the birth date of Chetnaben was 15.07.1980 and stated that her actual date of birth was 15.07.1983. It was denied that, at the time of date of incident, her date of birth was more than 18 years.
(i) Upon perusal of the deposition of the complainant - Rameshbhai and prosecutrix - Chetnaben, there were material discrepancies, wherein, the said witnesses had improvised their depositions to that were stated before the police by way of F.I.R. or the statement before the police.
(j) The complainant - PW-7 Rameshbhai, father of the prosecutrix and PW-9 - prosecutrix in their depositions stated that, the age of the prosecutrix was 15 years and the same was also stated in the complaint below Exh.71 dated 30.10.1998 stating the age of Chetnaben - prosecutrix as 15 years. The same Page 33 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined was not stated by the complainant in his two statements given before the police, considering the evidence of P.S.I. - Nizamuddin Nagori - PW-14. PW-9 - prosecutrix - Chetnaben having deposed below Exh.16 admitted that, she wrote a letter to her father that, it is her signature, but the same was under coercion and signed in Bandra Court by force. She also admitted that, there was no force on her by the accused. She did not disclose that, she was raped by anyone or complained about the same during her stay with the accused, which was for the span of 38 days, because of fear. She had also filed Affidavit, which is on record, that she was aged 21 years.
The aforesaid has to be considered with, (i) the birth certificate of the prosecutrix, which has not been proved(ii) the school leaving certificate of the prosecutrix, which has not been proved and (ii) ossification test of bone conducted by PW-2 - Dr. Bhogilal Patel, the medical examination by Dr. Narendra Joshi- PW-3. Further medical examination of the private part of the prosecutrix by Dr. Himmatbhai Patel.
The age of the prosecutrix as stated to be 15 years is not proved and the same is doubtful.
G. In view of the aforesaid, in our opinion, the competent Court has discussed in detail the evidence and have arrived at the conclusion to acquit the accused, in absence of Page 34 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined cogent evidence on record. The prosecution having failed to prove its case beyond reasonable doubt. From the aforesaid, the impugned judgment and order of acquittal rendered by the competent Court does not call for any interference.
13. Upon harmonious consideration of the documentary evidence of the birth certificate and the school leaving certificate, wherein, both the certificates failed to bring finality with respect to the age of the prosecutrix, where the deposition of the Doctors as discussed above, the exact age of the prosecutrix was not coming out on record, to bring the accused within the ambit of section 366 of the Indian Penal Code, which provides that, even if the act is consensual, if the prosecutrix is below the age of 16 years, would not exonerate the accused from the alleged offence. Admittedly, in the facts of the present case, the age of the prosecutrix is not established to be below 16 years, beyond reasonable doubt.
14. The medical reports are not conclusive and beyond reasonable doubt to bring the accused within the ambit of Section 366 of the I.P.C. The intention of the accused is the basis and the gravamen of an offence punishable under Section 366 of the I.P.C. In the facts of the present case, the unlawful intention as detailed in Section 366 is absent. There is no evidence on record to hold the accused enticed and took the prosecutrix with a view to commit rape, to bring the accused within the ambit of Page 35 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined Section 376 of the Indian Penal Code (before Amendment by Act 13 of 2013), which provides for punishment for offence of rape as defined in Section 375 of the Code (before Amendment by Act 13 of 2013) .
15. It is a cardinal principle of criminal jurisprudence that in an appeal against acquittal, the appellate Court should be slow in disturbing a finding of fact arrived at by the judge who had the advantage of seeing the witness in an order of acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The powers under Section 378 of the Code are not circumscribed as its powers while hearing a revision application. In an appeal against acquittal, the Hon'ble Apex Court has consistently held that, unless the judgment of acquittal is completely contrary to evidence, palpably erroneous or a view could not have been taken by the Court of competent jurisdiction keeping in view well settled cannons of criminal jurisprudence, the appellate Court would be reluctant to interfere in a judgment of acquittal. The appellate Court will not interfere with the order of acquittal rendered by the competent Court unless there are compelling and substantial grounds to overturn the judgment.
16. In the facts of the present case and in light of the ratio laid down by the Hon'ble Apex Court, as referred above, it emerges that the prosecution had failed to prove the case under Page 36 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025 NEUTRAL CITATION R/CR.A/335/2000 JUDGMENT DATED: 02/09/2025 undefined Sections 366 and 376 of I.P.C. against the accused beyond reasonable doubt for this Court to take a view other than that of the competent Court wherein, considering the evidence on record, the competent Court proceeds that when there are two views possible, the view in favour of the accused is a plausible view which, in the opinion of this Court, requires no interference.
17. In light of the position of law as referred above and in the facts of the present case, no case is made out to interfere with the impugned judgment and order dated 24.02.2000 of acquittal passed by the Sessions Judge, Mehsana in Sessions Case No. 89 of 1999 and the the same is hereby confirmed. The Appeal is devoid of merits and is DISMISSED accordingly. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.
(VAIBHAVI D. NANAVATI,J) (UTKARSH THAKORBHAI DESAI, J) Pradhyuman Page 37 of 37 Uploaded by PRADHYUMANSINH D. RAHEVAR(HC01408) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 03:12:58 IST 2025