Birth Register Alone Not Enough To Prove Victim's Age Without Establishing Source Of Information: Gujarat High Court Upholds POCSO Acquittal

The Gujarat High Court has upheld a rape acquittal under the POCSO Act observing that the prosecution failed to prove that on the date of alleged incident the girl was a minor, as they could not prove the source of the alleged victim's date of birth recorded in the birth register. 

In doing so the court reiterated that merely producing birth register is not enough to prove the date of birth of the alleged victim. Substantive evidence has to be lead by those persons who can vouch for the date of birth, i.e., the source of date of birth recorded in birth register must be proved. 

The court was hearing the complainant's appeal against Sessions Court's order acquitting the accused for for raping and kidnapping the complainant's minor daughter. 

It was alleged that the accused was in a relationship with the girl and gone to her house one night asking her to elope and marry him. The girl had told him that she was young, was studying and did not want to go anywhere. However, the accused told her that he would die if she did not come with him and took her away with him.

It was alleged that he thereafter took her to a house in the outskirts of a village and had sexual intercourse with her against her wish. 

The sessions court acquitted the accused holding that the prosecution failed to prove that the victim was below 18 years of age at the time of incident i.e. on 07.06.2024. It had observed that the Talati-cum-Mantri of Dholiya Gram Panchayat, who produced the birth register and the copy of birth certificate, stated in cross examination that no birth was registered in his presence. It had noted that no document sent by any hospital at the time of registration, no written application of the person who got the birth registered was produced nor did the birth register show as to who gave the date of birth.

A division bench of Justice Ilesh J Vora and Justice RT Vachhani referred to a decision of the Supreme Court in Birka Shiva v/s  State of Telangana (2025) which had overturned a rape conviction under POCSO Act, ruling that a school certificate or birth record alone does not prove a victim's age. 

The Supreme Court had said that mere production and marking of documents as exhibits before 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 the truth of the facts in issue. 

"Applying the aforesaid principles of law to the facts of the present case, we have no hesitation to held that, the prosecution failed to prove that, on the day of incident, the victim was minor as the prosecution failed to prove the source of date of birth recorded in the birth register," the high court held. 

On the charge of kidnapping and rape the court noted that on the day the incident happened, the girl was sleeping on the terrace of her house along with her sisters and brother, while her parents had gone to the field.

"The accused came there at about two to three O'clock in the night and she was taken down from the terrace and went on foot a little distance. She did not have make any hue and cry for any help. She did not try to escape from the accused and did not call the persons residing nearby. She travelled with the accused in a rickshaw and did not disclose to the driver that she was being taken forcibly, got down from the rickshaw and walked about one and a half kilometre with the accused. She stayed in a kachcha house, where other persons were also residing, and did not tell those persons that she was brought forcibly or that rape was being committed on her.

When her parents came, she was alone. She has admitted that in her statement before the police she did not state that the accused threatened to kill her brother if she raised hue and cry and that she was forced into the rickshaw. In such circumstances, when the age of the victim has not been proved, then, she presumed to be an adult person and having regard to the conduct of the victim, as discussed, it seems that she is the consenting party and relationship during the stay at Neliyu was consensual in nature," the court said. 

The court said that the version of the girl that she was under confinement of the accused against her wish and will, and that the accused committed rape upon her is not believable and does not inspire confidence.

It thus upheld the sessions court's order observing that the prosecution had failed to prove the charge against the accused beyond reasonable doubt. 

The appeal was dismissed.