Gujarat High Court
State Of Gujarat vs Shardul Kana Khambhaliya on 20 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 979 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE R. T. VACHHANI Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
SHARDUL KANA KHAMBHALIYA & ORS.
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Appearance:
MR HARDIK MEHTA, APP for the Appellant(s) No. 1
MS. ALVEERA S KACHARA(11935) for the Opponent(s)/Respondent(s) No.
1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 20/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment and order of acquittal.
2. Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Rajkot, passed in Sessions Case No.15 of Page 1 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025 NEUTRAL CITATION R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025 undefined 2002, dated 15.05.2003, acquitting the respondents from the offence under Section 376 read with Section 114 of the IPC, the State has preferred instant appeal under Section 378 of the Cr.P.C.
3. This Court has heard Mr. Hardik Mehta, learned Additional Public Prosecutor and learned advocate Ms. Alveera Kachra, for the respective parties.
4. Brief facts giving rise to file the present Appeal are that, the minor prosecutrix, resident of Village: Vichhiya, District: Rajkot was working as a helper with accused no.2 - Dinesh Sharma. Mr. Dinesh Sharma was used to come at the house of accused no.2 and 3, as a result, the victim got acquainted with accused no.1 and was abused sexually by him in the house of accused no.3 and after some time, the accused no.2 abused her sexually and got pregnant. In these background facts, the FIR came to be lodged against the respondents - accused and at the end of investigation and filing of chargesheet, they were tried and prosecuted by the Sessions Court, Rajkot.
5. Since the case was exclusively triable by the Sessions Court, the Court committed the case to the Sessions Court, who has been culminated into Sessions Case No. 15 of 2002.
6. The learned Sessions Judge, Rajkot framed charge under Section 376 read with Section 114 of the IPC, against the accused to which, they pleaded not guilty and claimed trial.
7. In the course of trial, the prosecution adduced the following oral Page 2 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025 NEUTRAL CITATION R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025 undefined as well as documentary evidence in support of his case:
Oral evidence - 12 PW 1 - Exh.12 Dr. Kishore Limbabhai Ramani PW 2 - Exh.20 Dr. Premji Bhura Nariya PW 3 - Exh.24 Hetal Narayanbhai PW 4 - Exh.31 Naryan Bachubhai Miyatra PW 5 - Exh.32 Chand Zaver, Panch witness PW 6 - Exh.35 Kishorsinh Gambhirsinh Gohil, Panch witness PW 7 - Exh.36 Razaqdadan, Panch witness PW 8 - Exh.38 Vijay Devayat, Panch witness PW 9 - Exh.39 Valji Amrabhai PW 10 - Exh.41 Dr. Paresh Jerambhai Lakani PW 11 - Exh.55 Jethabhai AapabhaiMesuriya, Panch witness PW 12 - Exh.58 Praveensinh Jorubha Jadeja, IO Documentary evidence - 30 Exh.13 Police yadi to Hospital medical officer Exh.14 Certificate by gynecologist Dr. KL Ramani Exh.15 Sonography and OPD case papers Exh.18 Birth certificate by school Exh.21 Yadi by police to medical officer rajkot to confirm the age of the victim Exh.22 Rajkot government hospital MLC case papers Exh.23 Age determination certificate by rajkot government hospital Exh.65 Note by IO to medical officer for treatment of victim Exh.66 Note regarding taking of sample from the body of victim and forwarding the same to laboratory Exh.67 OPD and MLC case papers Exh.68 Treatment certificate Exh.69 Forwarding letter Exh.59 Complaint Exh.40 Panchnama of clothes of victim Exh.34 Panchnama of place of offence Exh.37 Arrest panchnama and panchnama of clothes of Page 3 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025 NEUTRAL CITATION R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025 undefined accused Exh.60 letter by IO to medical officer for examination of victim Exh.43 Letter by IO to medical officer for examination of accused Exh.44 Examination certificate of accused Shardul Kana Exh.45 Examination certificate of accused Dinesh Ravji Exh.73 Letter by medical officer regarding forwarding of samples to laboratory taken from the body accused Shardul Exh.74 Letter by medical officer regarding forwarding of samples to FSL Junagad taken from the body accused Dinesh Exh.75 Letter by medical officer regarding forwarding of samples to FSL Junagad taken from the body victim Exh.76 Receipt of articles Exh.61 Forwarding notes of articles Exh.77 Receipt of articles Exh.50 Forwarding letter Exh.51 FSL report Exh.62 FSL forwarding letter Exh.63 Serological report
8. On conclusion of oral evidence, the trial Court recorded further statements of the accused as provided under Section 313 of the Code, wherein, they claimed their innocence.
9. The learned Sessions Judge after appreciating and examining the oral as well as documentary evidence acquitted the accused herein for the offences with which they were charged, on the ground that, the age of the victim has not been proved by adducing admissible and conclusive proof and the factum of forceful intercourse being not established and proved.
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10. In view of the aforesaid facts and circumstances, this acquittal appeal has been preferred by the State.
11. Oral Evidence adduced by the prosecution:
11.1 Dr. Kishor Ramani(PW.1):
This witness being a medical officer of Civil Hospital, Rajkot had examined the victim and after taking necessary samples, he had issued the certificate at Exh.14.
11.2 Babubhai Ramanuj (PW.2):
This witness being a Principal of Girls Primary School, Vichhiya, had issued a birth certificate (Exh.18) on the basis of birth date mentioned in the school's General Register. The witness had admitted in the cross-examination that, at the time of admission, no any birth certificate being produced by the parents of the girl, nor, he had filled a guardian's form and according to his version, the birth date may be mentioned by the parents as per convenience for getting admission.
11.3 Dr. Premji Nariya (PW.3):
This witness being a Medical Officer, Civil Hospital, Rajkot, determined the radiological age of the victim and according to his opinion, the age of the girl may be between 15 to 16 years and in cross-examination, he admitted that, she might be 17 or 17.5 years, but below 18 years.Page 5 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025
NEUTRAL CITATION R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025 undefined 11.4 Prosecutrix (PW.4) This witness in her chief-examination, had refused to identify the accused, nor alleged against them about the sexual abuse and her pregnancy at the behest of the accused. She has been declared hostile. In the cross-examination, she had admitted that, the accused no.1 and 2 abused her sexually repeatedly and the accused no.2 Dinesh is the biological father of the girl.
11.5 Naranbhai Miyatra (PW.5);
This witness being a father of the victim, did not have supported to the prosecution and in the cross-examination also, on the aspect of the age of the victim and alleged sexual abuse being denied in toto.
12. Mr. Hardik Mehta, learned Additional Public Prosecutor appearing for the appellant - State assailing the judgment and order of acquittal, has submitted that the findings of acquittal are contrary to law and evidence on record and the findings recorded are palpably erroneous and based on the irrelevant material. The victim's evidence has been discarded by the trial court. She has admitted in the cross- examination about the alleged sexual intercourse being committed by the accused and resultant pregnancy and delivery of the child. Thus, the trial court in a mechanical manner, has failed to appreciate the evidence of the victim in its true prospective and therefore, the findings of the acquittal are seems to be contrary to the evidence on record and palpably wrong.
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13. In such circumstances, as referred above, it has been submitted that while acquitting the respondents accused, the trial Court has discarded and ignored the truthful, reliable and acceptable evidence and as such, no cogent reasons being assigned while discarding such evidence. Therefore, it is submitted that the conclusion of acquittal recorded by the Trial Court is contrary to the evidence on record and upon erroneous understanding of law. Thus, it is prayed that the prosecution has succeeded in proving the charge against the respondents accused and the judgment and order of acquittal be set aside and accused may be convicted and sentenced for the offence as referred above.
14. Ms. Alveera Kachra, learned advocate appearing for the respondents accused has submitted that the High Court in a case of Appeal against the acquittal, can interfere only when there are compelling substantial reasons for doing so and more particularly, the findings are without reasons and unreasonable and contrary to the evidence. In the facts of the present case, the Principal of the school has no authority to issue a birth certificate. The birth date as referred in the certificate of the school does not reflect the true date of birth and same has not been proved by the prosecution in accordance with law. In such circumstances, it is submitted that, when the age is not proved, then, the victim presumed to be adult and the theory of consent cannot be ruled out.
15. In such circumstances, referred to above, learned counsel appearing for the respondents accused, has submitted that the Trial Page 7 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025 NEUTRAL CITATION R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025 undefined Court while acquitting the accused has assigned cogent and sufficient reasons and therefore, the judgment of acquittal passed is well reasoned, legally sustainable and does not suffer any infirmity warranting interference by this Court.
16. Before proceeding to address the rival submissions, we would like to place on record the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the judgment of acquittal. The Appellate Court should bare in mind the presence of innocence of the accused and further that, the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner, where the other view of possible should be avoided, unless there are reasons for interference.
17. In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused?
18. We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court. In the facts of the present case, parties have settled their dispute and that is why the victim and her father did not have deposed against the accused, however, in the natural way, the victim in her deposition, admitted the facts of incident and subsequent consequences. However, fact remains that, in order to prove the age of the victim, the prosecution is obliged to prove the date of birth of the victim and on Page 8 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025 NEUTRAL CITATION R/CR.A/979/2003 JUDGMENT DATED: 20/11/2025 undefined what basis, the school authority had registered the said date of birth in their record. In the present case, the father and victim did not have stated the date of birth, nor, the father has stated that, while getting the admission, the date of birth being given by him to the school authority. Thus, no reliable material available on record to show that the date of birth was recorded in the school register on the basis of statement of any responsible person. It is settled position of law that, an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of The Evidence Act, but the entry regarding the age of a person in a school register is of no much evidentiary value to prove the age of the person in absence of the material on which the age was recorded. (Babloo Pasi vs. State of Jharkhand (2008) 13 SSC 133. Thus, in our opinion, the prosecution miserably failed to prove the entry of date of birth registered in the school records in accordance with law. Thus, therefore, the view of the Trial Court as to the admissibility of the entry of date of birth is possible and plausible view and the Trial Court while analyzing the evidence has assigned cogent and sound reasons while not accepting the evidence of age and the statement of the victim and therefore, findings of acquittal are reasonable and based on the evidence on record and we do not find any perversity in the findings of acquittal so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same.
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19. With the observations as aforesaid, the appeal is accordingly dismissed. The Registry is directed to send back the R & P to the Trial Court. Bail bonds are cancelled, if any, and surety is discharged.
Sd/-
(ILESH J. VORA,J) Sd/-
(R. T. VACHHANI, J) TAUSIF SAIYED Page 10 of 10 Uploaded by TAUSIF SAIYED(HC01401) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:06:40 IST 2025