Mere Production Of Birth Register Without Proving Source Of Information Cannot Prove Minority Under POCSO Act: Gujarat High Court

"The evidentiary value of such an entry made in public or official register may be admissible in evidence under Section 35 of the Indian Evidence Act, however, admissibility is distinct from probative value. While such documents may be admitted in evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information." Gujarat High Court has observed that the mere exhibition and production of a birth register entry under Section 35 of the Indian Evidence Act does not establish minority in the absence of substantive proof showing the underlying source of the date of birth, holding that the statutory presumption under the POCSO Act cannot be invoked unless minority is proved beyond reasonable doubt.

A Division Bench comprising Justice Ilesh J. Vora and Justice R. T. Vachhani delivered the ruling while dismissing an appeal against acquittal preferred under Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The appellant-complainant had assailed an order of the Special POCSO Judge, Palanpur, acquitting the accused of offences punishable under Sections 363, 366, and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleged that the accused eloped with the prosecutrix, purportedly aged 16 years and 8 months, from her terrace at night and subjected her to non-consensual sexual intercourse. However, the trial court acquitted the accused after finding that the prosecution failed to prove the victim's minority and that her conduct demonstrated consensual accompaniment.

Whether mere production of a birth register entry through a panchayat official satisfies Section 35 of the Indian Evidence Act to establish minority under the POCSO Act without proving the underlying informant or source?

Whether an appellate court is justified in reversing an order of acquittal when the victim's conduct demonstrates consent and the prosecution fails to establish that she was below eighteen years of age?

The High Court commenced its analysis by addressing the limited scope of appellate interference against a judgment of acquittal, reiterating that an acquittal reinforces the presumption of innocence in favor of the accused. The Bench observed that routine interference is impermissible unless compelling circumstances exist and the trial court's view is palpably perverse.

Admissibility under Section 35 of the Evidence Act does not equate to probative value of document contents

Examining the evidence concerning the victim's age, the Bench noted that the prosecution relied on a birth register entry and certificate produced by the Talati-cum-Mantri of the Gram Panchayat. However, the witness admitted in cross-examination that he lacked personal knowledge regarding the registration and could not state at whose instance the date of birth had been recorded.

The Court pointed out that no supporting hospital communication or underlying application was brought on record, and while the father of the victim was literate, the birth register entry bore only a thumb impression. Consequently, the Bench held that the source of the date of birth remained unverified, rendering the documentary entry insufficient to prove minority beyond reasonable doubt.

Execution of public register entries must be established through substantive evidence of underlying informants

Relying on the Supreme Court's ruling in Birka Shiva v. State of Telangana, the Bench highlighted that an official entry's evidentiary weight is contingent upon proof of its authenticity and underlying source. The Court held:

"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 these principles, the High Court held that the prosecution had failed to establish that the victim was minor on the date of the incident. In the absence of definitive proof establishing minority, the statutory presumption under the POCSO Act was unavailable, and the victim had to be treated as an adult.

Voluntary conduct and absence of resistance demonstrate consensual relationship when prosecutrix is treated as adult

Assessing the charges of kidnapping and rape under the IPC, the Bench scrutinized the prosecutrix's conduct on the night of the incident. The evidence showed that she descended silently from the terrace where her siblings were sleeping, raised no hue and cry, travelled in an auto-rickshaw without alerting the driver, and stayed in a inhabited house without seeking help.

The Bench concluded that such conduct revealed consensual accompaniment and contradicted allegations of forcible confinement or sexual assault. Finding no perversity in the trial court's assessment, the High Court affirmed the acquittal.

The High Court dismissed the criminal appeal at the admission stage and upheld the trial court's judgment acquitting the accused of all charges.

Date of Decision: October 22, 2026