The Gujarat High Court dismissed a criminal appeal against acquittal in a POCSO case, holding that a birth certificate alone cannot prove the victim's minority without proof of its source and authenticity, and that the victim's conduct - no hue and cry, voluntary travel, and failure to disclose alleged force - negated charges of kidnapping and rape. The Division Bench affirmed the Sessions Court's appreciation of evidence and refusal to invoke the POCSO presumption.
Background & Facts
The Dispute
The appellant, Bhimabhai Virabhai Dhangri, father of the alleged victim, challenged the acquittal of the respondent-accused by the Second Additional Sessions Judge and Special (POCSO) Judge, Banaskantha at Palanpur. The accused was charged under Sections 363, 366, and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 for allegedly abducting and sexually assaulting a minor girl on 07.06.2024.
Key Facts
- The victim's date of birth was recorded as 10.09.2007, making her approximately 16 years, 8 months, and 27 days old on the date of the incident (07.06.2024).
- The accused allegedly gave his mobile number to the victim at a marriage function, developed a telephonic relationship, and on 07.06.2024 at around 2:00 AM, went to her house and asked her to elope and marry him.
- The victim stated she was young, studying, and did not wish to go; the accused threatened to die if she refused, held her hand, and took her down from the terrace.
- He took her to a house in the outskirts of village Vashi Dabheli belonging to Hajiben Vajabhai Mansa and, allegedly against her will, committed sexual intercourse once.
- The victim's father lodged an FIR on 07.06.2024 at Amirgadh Police Station.
- The investigation concluded with a chargesheet for offences under Sections 363, 366, 376 IPC and Section 4 POCSO Act.
- The prosecution examined 12 witnesses (including the prosecutrix as PW-4) and relied on 28 exhibited documents.
- The Talati-cum-Mantri of Dholiya Gram Panchayat (PW-10, Gami Nareshbhai Ramabhai) produced the birth register (Exh.46) and copy of birth certificate (Exh.47).
Procedural History
- 07.06.2024: FIR registered at Amirgadh Police Station.
- Investigation completed; chargesheet filed.
- Special (POCSO) Case No. 29 of 2024 commenced before the Second Additional Sessions Judge and Special (POCSO) Judge, Banaskantha at Palanpur.
- Charges framed; accused pleaded not guilty and claimed trial.
- Prosecution evidence recorded (12 witnesses, 28 documents).
- Accused's statement recorded under Section 313 CrPC; claimed innocence and false implication.
- 06.09.2025: Sessions Court acquitted the accused on all charges.
- 2025: Appellant filed Criminal Appeal No. 3123 of 2025 under Section 413 BNSS before the Gujarat High Court.
- 22.10.2026: High Court heard arguments and dismissed the appeal at admission stage.
The Parties' Positions
Appellant (Original Complainant): Contended the Sessions Court's findings were contrary to law and evidence; the victim was a minor (birth certificate showed age 16); the victim's testimony established forcible detention and rape; the Sessions Court made baseless presumptions favouring the accused; the acquittal was palpably erroneous.
Respondent (State): Supported the Sessions Court's judgment; the birth register was not proved as the Talati had no personal knowledge of the registration; the victim's conduct was inconsistent with forcible abduction and rape; the acquittal was based on proper appreciation of evidence.
Relief Sought
The appellant sought setting aside of the acquittal order dated 06.09.2025, conviction of the accused under Sections 363, 366, 376 IPC and Section 4 POCSO Act, and imposition of appropriate sentence.
The Legal Issue
The central questions were: (1) Whether the prosecution proved beyond reasonable doubt that the victim was below 18 years of age on 07.06.2024, relying solely on a birth register and certificate produced by a Talati who had no personal knowledge of the registration; (2) Whether the victim's conduct - no outcry, voluntary accompaniment, travel in a rickshaw without disclosure, and failure to alert others - was consistent with the allegations of kidnapping and forcible rape.
Arguments Presented
For the Appellant/Petitioner
Learned counsel submitted that the Sessions Court erred in discarding the birth certificate (Exh.47) and birth register (Exh.46) which clearly indicated the victim's date of birth as 10.09.2007. The Talati-cum-Mantri (PW-10) had produced these documents in his official capacity, and their evidentiary value could not be nullified merely because he lacked personal knowledge of the original registration. The victim's chief examination testimony established forcible taking and sexual intercourse without consent. The Sessions Court's inference of consent from the victim's conduct was based on irrelevant considerations and ignored the power imbalance and fear inherent in such situations. The POCSO Act's presumption under Section 29 should have been invoked once minority was established.
For the Respondent/State
The learned APP contended that the Sessions Court correctly appreciated the evidence. The Talati's cross-examination revealed he had no personal knowledge of the birth registration, no hospital document or written application was produced, and the register did not indicate the informant. The father's signature on the FIR contrasted with the thumb impression on the birth register extract, casting doubt on the entry's authenticity. On the merits, the victim's conduct - sleeping with siblings, no hue and cry, walking 1.5 km, staying in a house with others without complaint - was wholly inconsistent with kidnapping and rape. The prosecution failed to prove the foundational fact of minority, without which the POCSO presumption could not operate.
The Court's Analysis
The Division Bench, per Justice R.T. Vachhani, began by restating the limited scope of appellate interference in acquittal appeals. Citing Tulasareddi @ Mudakappa v. State of Karnataka (2026 INSC 67), the Court held that interference is warranted only in exceptional cases where the judgment is perverse or based on compelling circumstances, bearing in mind that an acquittal bolsters the presumption of innocence.
On the age determination issue, the Court applied the Supreme Court's ruling in Birka Shiva v. State of Telangana (2025 INSC 863). The Talati-cum-Mantri (PW-10) admitted he had no personal knowledge of the birth registration or at whose instance the date was recorded. The Court emphasized that while a birth register may be admissible under Section 35 of the Indian Evidence Act, admissibility is distinct from probative value. The execution and authenticity of such documents must be proved by substantive evidence from persons who can vouchsafe the truth of the facts recorded. Mere production and marking as exhibits does not amount to proof of contents. The prosecution failed to lead evidence from the person who gave the information for the birth registration or from the hospital where the birth allegedly occurred.
"Mere a production and marking of documents as exhibited by the Court, does not amount to proof of its contents. It's execution has to be proved by leading substantive evidence, that is, by the evidence of those persons, who can vouchsafe for truth of the facts in issue."
Applying this principle, the Court held the prosecution failed to prove the victim was a minor on the date of the incident.
On the kidnapping and rape charges, the Court conducted a close scrutiny of the victim's evidence. The victim slept on the terrace with her siblings while her parents were in the field. The accused arrived at 2-3 AM; she came down silently, raised no hue and cry, made no attempt to escape, did not call neighbours, travelled in a rickshaw without informing the driver of any force, walked 1.5 km with the accused, and stayed in a kachcha house near Neliyu where other persons resided without disclosing any wrongdoing. When her parents arrived, she was alone. Crucially, she admitted in her police statement that she had not alleged the accused threatened to kill her brother if she raised an alarm, nor that she was forced into the rickshaw.
Since the victim's minority was not proved, she was presumed to be an adult. Her conduct, the Court found, indicated she was a consenting party and the relationship during the stay at Neliyu was consensual. The version of confinement, threat, and forcible rape was not believable and did not inspire confidence.
The Verdict
The appeal was dismissed at the admission stage. The High Court upheld the Sessions Court's acquittal order dated 06.09.2025 in Special (POCSO) Case No. 29 of 2024. The Court found no perversity in the Sessions Court's findings, which were based on proper appreciation of oral and documentary evidence. The prosecution failed to prove the victim's age below 18 years and failed to establish kidnapping and rape beyond reasonable doubt.
What This Means For Similar Cases
Birth Registers Require Source Verification
- A birth certificate or register entry is not self-proving of age; the prosecution must lead evidence from the informant or hospital personnel who can vouchsafe the accuracy of the recorded date.
- The Talati's official capacity alone does not cure the absence of personal knowledge about the registration.
- Practitioners must examine the chain of custody and source of age documents; mere marking as exhibits is insufficient.
Victim Conduct Is Central To Consent Analysis
- In cases where minority is not established, the victim's conduct before, during, and after the alleged incident becomes determinative of consent.
- Absence of outcry, voluntary movement, failure to seek help from bystanders, and inconsistent statements to police can collectively negate allegations of force.
- Courts will scrutinize whether the conduct is "wholly inconsistent" with the prosecution's version of forcible abduction and rape.
POCSO Presumption Is Not Automatic
- The statutory presumption under Section 29 POCSO Act operates only after the foundational fact of minority (below 18 years) is proved beyond reasonable doubt.
- If age is not proved, the accused is entitled to the presumption of innocence, and the burden does not shift.
- Prosecutors must treat age proof as a threshold evidentiary requirement, not a formality.
