IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 388 of 2004 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI Sd/-

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Approved for Reporting Yes No √

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BHARWAD SOMABHAI RAMBHAI Versus STATE OF GUJARAT ==========================================================

Appearance:

MR ALPESHKUMAR M THAKOR(10931) for the Appellant(s) No. 1 MRS REKHA H KAPADIA(2246) for the Appellant(s) No. 1 MR BHARGAV PANDYA APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 03/03/2026

JUDGMENT

1. The appellant is accused no.1 who came to be convicted under Section 363 of the Indian Penal Code (for short, ‘I.P.C’) by a judgment dated 27.02.2004 passed by the learned Fourth Fast-Track Judge and Additional Sessions Judge, Junagadh in Sessions Case No.48 of 1998.

2. The trial was against six accused under Sections 363, 366, 342 and 376 of I.P.C as well as under Section 135 of the Bombay Police Act, 1951 (for short, ‘the B.P Act’). The offence was registered as 1^st C.R No.69/97 at Bilkha Police Station.

3. Appellant as convicted accused no.1 challenged the judgment under Section 374 of the Code of Criminal Procedure (for short, ‘Cr.PC’), 1973 on the ground that the learned trial Court Judge has committed an error in convicting the accused on unwarranted facts and circumstances. The prosecution has failed to prove that the victim girl was kidnapped and rape was committed on her in an ‘ordi’ situated in the field. Though the FIR came to be registered at Bilkha Police Station, police had not found any case for investigation and thereafter, a written complaint was given to D.S.P., Junagadh. Earlier, only a case of harassment was recorded before the Bilkha Police Station, and no explanation comes forward as to why at a later stage, a complaint of kidnapping and rape was improvised.

4. Learned Advocate Mrs. Rekha Kapadia for the appellant submitted that the learned trial Court Judge had failed to observe and appreciate that the victim girl was in love relation with accused no.1. The relation came to be known to the parents and, therefore, the complaint was filed. The prosecution could not prove as to why the complaint of harassment was later on considered as a case of kidnapping and rape.

4.1 Learned Advocate Mrs. Rekha Kapadia further stated that the age of the victim girl, as per the doctor, examined during the trial was 18 years and the document which has been produced as a birth certificate does not inspire confidence, since the document has been issued after the registration of the complaint. The complaint has been filed on 25.09.1997 and the issuance of the birth certificate Exh.50 is 02.10.1997. Advocate Mrs. Kapadia, thus, submitted that as per the evidence of the victim, she had studied in Bilkha High School and the mandatory requirement under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 as well Rule 12(3) of the Juvenile Justice (Care and Protection of Children), Rules 2007, the first document should be of the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board, if available, and in absence thereof, the birth certificate given by the Panchayat can be relied upon. Advocate Mrs. Kapadia submitted that it has come on record that the victim girl wanted to marry accused no.1. They were also writing letters to each other. There are photographs of the victim with the accused and it was only under the pressure of the police that the complaint has been filed.

4.2 Learned Advocate Mrs. Rekha Kapadia submitted that when the prosecution has miserably failed to prove the age and no case of rape was believed by the trial Court, then there ought not to be any conviction under Section 363 of the I.P.C, where a case of kidnapping has to be pro