Chattisgarh High Court
Kunjbihari Hathile vs The State Of Chhattisgarh on 9 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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CGHC010134102024 2026:CGHC:28393-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
BABLU
RAJENDRA
BHANARKAR
Digitally signed by
BABLU RAJENDRA
CRA No. 829 of 2024
BHANARKAR
Date: 2026.07.13
10:24:34 +0530
Kunjbihari Hathile S/o Bhajram Aged About 42 Years R/o Ward No. 17
Raipur Bypass Kawrdha, District Kabirdham (C.G.)
... Appellant
versus
The State Of Chhattisgarh Through Police Station Pipariya, District
Kabirdham (C.G.)
... Respondent
For Appellant : Ms.Fouzia Mirza, Senior Advocate assisted by
Mr.Aman Kesharwani, Advocate
For Respondent : Mr.Saumya Rai, Deputy Government
Advocate
Hon’ble Shri Justice Ramesh Sinha, Chief Justice and
Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, CJ
09/07/2026
1. Today, the matter is listed for hearing on I.A.No.01/2024
application for suspension of sentence and grant of bail to the
appellant. However, with the consent of learned counsel for the
parties, the appeal itself is heard finally.
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2. Notice issued to the complainant / father of the victim (PW-1) has
been served to him, but none has appeared on his behalf to
oppose the appeal or an application for suspension of sentence
and grant of bail.
3. This criminal appeal arises out of the judgment of conviction and
order of sentence dated 30.03.2024 passed by the Special Judge
(Protection of Children from Sexual Offences Act 2012),
Kabirdham, District Kabirdham in Special Sessions Case
No.122/2023, whereby the appellant has been convicted for
offence under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter called as “POCSO Act“) and
sentenced to undergo RI for twenty years and fine of Rs.1000/-, in
default of payment of fine to further undergo additional
imprisonment for six months.
4. The prosecution story, in brief, is that on 21.02.2023, a written
complaint was submitted by the father of the victim in the Police
Station that his daughter is studying in class 5 th in the Primary
School of village Jaitpuri, the school teacher Kunjbihari is
demanding sex by sending filthy obscene sex related messages
on WhatsApp from her mobile number 9981901830 to her mobile
number 9575280014, he had sent a message on the mobile that
he is sending his wife to her parents’ house, he came to her
house on 25th with full preparation, he came to know about the
above fact on 20.02.2023 after checking his mobile, on
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questioning his daughter, it was found that after school was over,
Kunjbihari takes his daughter to a separate room, removes her
clothes, kisses her, presses her private parts with his hand, and
seduces his innocent daughter. He is trying to have sex by luring
her, he demands sex by threatening to show his private parts. On
the written complaint of the victim’s father (Ex.P-1), a case was
registered against accused Kunjbihari in the police station under
Crime No.79/23 for offence under Sections 354, 354A, 354B, 509
of the IPC and Sections 8, 10 & 12 of the POCSO Act and 67A of
the Information and Technology Act 2000 and first information
report (Ex.P-2) was recorded. A site map of the incident (Ex.P-3)
was drawn. An application was made to the Tehsildar to get the
site map drawn by the Patwari (Ex.P-20). After obtaining consent
from the victim and her mother (Exs.P-6 and 9), the victim was
sent to Community Health Centre, Pandaria for examination
(application Exs.P-7 and 8) and opinion was sought regarding
preservation of the vaginal slide of the victim, and a report (Exs.P-
7 and 8) was received and after sending the victim to Civil
Surgeon, District Hospital for expert examination (application
Ex.P-21), a report (Ex.P-10) was received.
5. Realm company’s mobile (Article 3) and WhatsApp chat screen
shot (Article 4) were seized from the possession of the victim’s
father (seizure memo Ex.P-5), Vivo company’s mobile (Article 5)
was seized from the possession of accused Kunjbihari (seizure
memo Ex.P-14), call details of the mobile phones seized from the
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accused and the victim’s father from 01.12.2022 to 22.02.2023
(Exs.P-31 & 32) and copy of customer application of mobile
number 7987757182 and mobile number 9575280014
respectively (Exs.P-33) and P-34) in respect of which a certificate
under Section 65 of the Indian Evidence Act (Ex.P-30) was sent to
the Station House Officer along with the report. Both the seized
mobile phones and screen shot were sent to Assistant Inspector
General of Police, Technical Services, Raipur (Memorandum
Ex.P-22) along with Chain of Custody Certificate (Ex.P-27) and
Certificate (Ex.P-29) along with the authority letter (Ex.P-26) of
Superintendent of Police for which there is acknowledgment
(Ex.P-23) and report (Ex.P-36) and certificate under Section 65 of
Indian Evidence Act (Ex.P-37). Detailed report has been
submitted in pen drive (Articles 6 and 7). Application (Ex.P-15)
was sent to Headmaster, Government Primary School, Jaitpuri for
production of dakhil kharij register related to the victim. The
attested copies of the dakhil kharij register and date of birth
affidavit register (Exs.P-12C and 13C) were seized vide seizure
Memo Ex.P-11.
6. The victim was produced before the Judicial Magistrate First
Class for statement under Section 164 CrPC (application Ex.P-
17). Her 164 CrPC statement was recorded by the Judicial
Magistrate First Class, Pandariya vide Ex.D-5 (page 552 of paper
book). The vaginal slide of the victim was seized (seizure memo
Ex.P-16) from the possession of constable Poonam Tiwari. A
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memorandum (Ex.P-24) was sent to the State Forensic Science
Laboratory for examination of the vaginal slide of the victim, the
acknowledgment of which is (Ex.P-25). The accused were
arrested (arrest memo Exs.P-18 and 19). After investigation, a
case was registered against the accused / appellant under
sections 354, 354B, 354A, 354E, 376(2)(f), 376 (3), 509B, 202 of
the Indian Penal Code, 1860, Sections 4, 6, 8, 10, 12, 16, 17, 21
of the POCSO Act and 67A of the Information Technology Act,
2000. The charge sheet was presented before the jurisdictional
Criminal Court on 06.03.2023.
7. The trial Court framed the charge against accused Kunjbihari
under Sections 354, 354B, 354A (II), 354A (III), 376 (2) (f), 376
(3), 509 B IPC, Sections 4, 6, 8, 10, 12 POCSO Act and 67A
Information Technology Act 2000 and against accused Vijay
Janardhan under Sections 202, 354D IPC, Sections 16 & 21
POCSO Act, however, the accused denied the charges and
sought trial.
8. In support of its case, the prosecution has examined the father of
the victim (PW-1), the victim (PW-2), Patwari Amit Joshi (PW-3),
Medical Officer Dr. Deepali Hatwar (PW-4), mother of the victim
(PW-5), elder mother of the victim (PW-6), Kumari Mahi (PW-7),
Sonakshi Gendre (PW-8), Medical Officer Dr. Anju Sonwani (PW-
9), In-charge Head Teacher Suresh Kumar (PW-10), Shanta Lakra
(PW-11), Rajendra Singh Rajput (PW-12), Dujram Sahu (PW-13),
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Assistant Sub-Inspector Chandrakant Tiwari (PW-14), Sub-
Inspector P.S. Thakur (PW-15), Inspector Vikram Dhruv (PW-16)
have been recorded. Under Section 313 of the CrPC, accused
while claiming to be innocent and falsely implicated, stated that
they have been falsely implicated. Accused / appellant Kunjbihari
further stated that he had beaten the victim because she was not
educated. The accused also stated that he did not wish to lead
any evidence in his defence.
9. After appreciation of evidence available on record, learned trial
Court while acquitting accused Vijay Kumar has convicted the
present appellant for offence under Section 6 of the POCSO Act
and sentenced to undergo as mentioned in paragraph 3 of this
judgment. Hence, this appeal.
10. Learned Senior Advocate for the appellant submits that the
impugned judgment of conviction and order of sentence passed
by the learned Trial Court is contrary to the facts, evidence on
record, and settled principles of law. The findings recorded by the
Trial Court are based on an erroneous appreciation of the
evidence and have resulted in a miscarriage of justice. The
prosecution has failed to establish the guilt of the appellant
beyond reasonable doubt, yet the appellant has been convicted
on the basis of conjectures and surmises. It is further submitted
that the learned Trial Court failed to appreciate that the
prosecution evidence suffers from serious inconsistencies,
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omissions, and contradictions. The appellant has been falsely
implicated, and the evidence led by the prosecution falls far short
of the standard required for recording a conviction in a criminal
case.
11. Learned Senior Advocate further submits that the testimony of the
father of the victim (PW-1) demolishes the prosecution case.
PW-1 categorically stated that he had neither lodged the written
report (Ex.P/1) nor was he aware of its contents. He also admitted
that he had not produced any document relating to the date of
birth of the victim or any record showing the basis on which her
date of birth was entered in the school register. He further
admitted that the WhatsApp chats (Article A-1) did not contain any
obscene photographs. It is also submitted that the testimony of
the victim is not reliable, as it is riddled with material omissions
and contradictions. Her evidence does not inspire confidence and,
in the absence of independent corroboration, could not have
formed the sole basis of conviction.
12. Learned Senior Advocate also admits that the medical evidence
does not support the prosecution case. Dr. Deepali Hatwar (PW-
4), who medically examined the victim, expressed doubt regarding
her age and advised a radiological examination for age
determination. She further recorded in Ex.P/7 that no definite
opinion regarding sexual violence could be given. Likewise, Dr.
Anju Sonwani (PW-9), who conducted the physical examination of
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the victim, did not find or opine about any signs suggestive of
sexual assault.
13. Learned Senior Advocate also draws attention to the testimony of
the mother of the victim (PW-5), who admitted that the appellant
had earlier slapped the victim in school, thereby suggesting the
existence of prior animosity and providing a motive for false
implication. It is also significant that PW-7 and PW-8, who were
students of the same school and cited as prosecution witnesses,
did not support the prosecution case and were declared hostile. It
is further submitted that the investigation conducted by the
prosecution was perfunctory and incomplete. The Investigating
Officer Rajendra Singh Rajput (PW-12) admitted that he did not
seize the mobile phone allegedly used by the appellant. He also
failed to properly investigate the WhatsApp screenshots and the
mobile number in which the appellant’s surname was allegedly
reflected. No attempt was made to verify the authenticity, origin,
ownership, or integrity of the electronic material relied upon by the
prosecution.
14. Learned Senior Advocate emphatically submits that the
prosecution has utterly failed to recover the alleged WhatsApp
data from the mobile phone purportedly used by the appellant.
Neither the handset nor the original electronic records containing
the alleged conversations were seized or produced before the
Court. No extraction of data from the appellant’s mobile device
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was carried out, nor was any certificate under Section 65B of the
Indian Evidence Act produced to establish the admissibility and
authenticity of the electronic evidence. In the absence of recovery
of the original WhatsApp data from the appellant’s mobile phone,
the screenshots relied upon by the prosecution remain unverified
and cannot be treated as reliable evidence. It is also submitted
that no call recordings, WhatsApp messages, or other electronic
communications allegedly exchanged by the appellant were sent
for forensic examination by the Forensic Science Laboratory
(FSL). The prosecution failed to obtain any expert opinion to
establish the genuineness, integrity, or authorship of the alleged
electronic evidence. Such serious lapses in the investigation
create substantial doubt regarding the prosecution case and
materially weaken its evidentiary value. In view of the aforesaid
facts and circumstances, it is submitted that the prosecution has
failed to prove the guilt of the appellant beyond reasonable doubt.
The findings recorded by the learned Trial Court are unsustainable
in law and on facts, having been based on unreliable oral
testimony, inconclusive medical evidence, doubtful proof
regarding the age of the victim, and unverified electronic
evidence. The appellant is, therefore, entitled to the benefit of
doubt, and the impugned judgment of conviction and order of
sentence deserve to be set aside.
15. On the other hand, learned Deputy Government Advocate
appearing for the respondent/State opposes the submissions
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made by learned Senior Advocate for the appellant and submits
that the impugned judgment of conviction and order of sentence
passed by the learned Trial Court is legal, well-reasoned, and
based upon proper appreciation of the oral as well as
documentary evidence available on record. It is contended that
the learned Trial Court has meticulously considered the entire
evidence and has rightly recorded the finding of guilt against the
appellant. It is further submitted that the prosecution has
succeeded in proving the guilt of the appellant beyond all
reasonable doubt. The evidence adduced by the prosecution
forms a complete chain establishing the culpability of the
appellant. Minor discrepancies or omissions in the testimony of
prosecution witnesses are natural and do not affect the core of the
prosecution case.
16. Learned State Counsel further submits that the testimony of the
victim is cogent, consistent, and inspires confidence. Her
evidence has remained substantially intact despite lengthy cross-
examination. It is well settled that the sole testimony of a victim, if
found reliable and trustworthy, is sufficient to sustain a conviction
and does not require corroboration as a matter of law. The learned
Trial Court has rightly placed reliance upon her testimony after
finding it to be credible. It is further contended that the statement
of PW-1, the father of the victim, cannot be read in isolation so as
to discredit the entire prosecution case. His statement regarding
the written report or the contents thereof does not materially affect
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the substantive evidence of the victim. The admission regarding
the absence of obscene photographs in the WhatsApp chats is
also inconsequential, as the prosecution case is not founded
solely upon the existence of obscene photographs but upon the
overall conduct of the appellant and the evidence adduced during
trial.
17. Learned State Counsel also submits that the medical evidence
does not negate the prosecution case. The opinion of Dr.Deepali
Hatwar (PW-4) that no definite opinion regarding sexual violence
could be given does not amount to a finding that no offence was
committed. Medical evidence is corroborative in nature, and
where the ocular testimony of the victim is found trustworthy, the
absence of conclusive medical findings is not fatal to the
prosecution. Similarly, the evidence of PW-9 does not disprove the
allegations levelled against the appellant. It is further submitted
that the testimony of mother of the victim (PW-5) regarding an
earlier incident in which the appellant had slapped the victim does
not establish any false implication. Rather, it demonstrates the
prior acquaintance between the parties. Learned State Counsel
submitted that the prosecution had duly seized the WhatsApp
data from the mobile phone used by the appellant during the
course of investigation. The electronic data, including the relevant
WhatsApp conversations, was collected and brought on record in
accordance with the investigation, thereby corroborating the
prosecution case. It is contended that the electronic evidence was
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properly seized and forms part of the chain of circumstances
connecting the appellant with the commission of the offence.
Merely because the defence disputes the authenticity or
evidentiary value of such electronic material does not render it
inadmissible or unreliable. The learned Trial Court has rightly
considered the said electronic evidence along with the oral and
documentary evidence while recording the conviction of the
appellant. As such, the appeal deserves to be dismissed.
18. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
19. The first question for consideration before this Court would be,
whether the trial Court is rightly held that on the date of incident,
the victim was minor?
20. When a person is charged for offence punishable under the
POCSO Act, or for rape punishable in the Indian Penal Code, the
age of the victim is significant and essential ingredients to prove
such charge and the gravity of the offence gets changed when the
child is below 18 years, 12 years and more than 18 years. Section
2(d) of the POCSO Act defines the “child” which means any
person below the age of eighteen years.
21. In the present case, the prosecution has seized dakhil-kharij
register of the victim (Ex.P-12C), on which her date of birth is
mentioned as 01.08.2010 and since defence has not challenged
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the documentary and oral evidence presented by the prosecution
regarding the victim’s date of birth being 01.08.2010, it is
established that the age of the victim on the date of incident is 12
years and 05 months. Thus, at the time of the incident, the victim
is a minor girl below 18 years of age.
22. The next question for consideration before us is whether the
appellant has committed rape on minor victim ?
23. The victim has been examined as PW-2. In para 2 of her
examination-in-chief, she stated that in December 2022, all the
children and teachers from their school went on a trip to Kanan
Pendari. Their teacher, Kunjbihari, accompanied them. After
returning, Kunjbihari Sir began making indecent advances
towards her and asked for her father’s mobile number in the name
of teaching her online. Accused Kunjbihari Sir had inserted his
finger into her private parts and asked her to take a photo of her
chest and send it to him. She took this photo and sent it to him. In
para 3, she further stated that accused Kunjbihari Sir also told her
that when she come to take the Navodaya School exam on
25.2.2023, she should stay at his house. He would send his wife
to her parents’ home and they would sleep together. She also told
Vijay Janardhan Sir about this, but he took no action and
supported Kunjbihari. In para 4 of her evidence, she stated that on
19.2.2023, her elder father and elder mother came to their house
and her elder mother asked for her mobile. She gave her mobile
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to her elder mother, and then she found out. Kunj Bihari Sir had
sent a message on her mobile saying that he would send his wife
to her parents’ home and she should stay with him. Her elder
mother saw this message and when she asked her, she told her
everything. In para 6, she admitted that Kunjbihari Sir’s phone
number is 7987757182 and her mobile number is 9575280014.
Accused Kunjbihari committed crime against her in the office
room and in the third and fourth grades classrooms. She further
admitted that the children at school told Janardan Sir about
Kunjbihari Sir’s indecent behavour. She admitted that Kunjbihari
Sir gave her lipstick and instructed her to use it every day. She
admitted that after Janardan Sir left school, Kunjbihari Sir would
call her into his room, kiss her, and fondle her. He did this daily.
She voluntarily stated that Janardan Sir knew about this. In para
13 of cross-examination, the victim (PW-2) admitted that when
Hathile Sir did indecent things to her, fingered her, pressed her
breasts and gave her lipstick, she did not tell her family or friends
about it that day, nor did she report it. She voluntarily said that Sir
had told her he would fail her and kill her parents, so she did not
tell her parents or report it.
24. The victim (PW-2) in her 164 CrPC statement (Ex.D-5) has stated
that she study in 5th grade at the Government Primary School.
Kunjbihari Hathile is the Headmaster at her school. Since
December 2022, Kunjbihari Hathile has been taking her to the
office and 4th grade classroom while the other children are playing
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on the ground. Kunjbihari Hathile would press her breasts, insert
his finger into her private parts, kiss her lips, and even insert his
finger into her private parts once. She had her father’s mobile
phone to prepare for exams, and Kunjbihari would send her
obscene messages. When she had her exam on 25.02.2023,
Kunjbihari told her that they would sleep together that day and
told her to convince her family to let him stay with him. Her friend
also told her that Kunjbihari Hathile had done the same things to
her. Kunj Bihari Hathile had threatened her that he would fail her
in the exam and had threatened to kill her family members, hence
she did not tell her family members.
25. Father of the victim (PW-1) has admitted in para 9 of his evidence
that after the exam on 25.2.2023 his wife told him that in January
2023, Kunjbihari Sir took the victim to the class 3rd/4th room,
made her remove her clothes, removed her underwear, kissed
her, pressed her breasts and inserted his finger into her private
parts once and asked her to insert her finger as well. He further
admitted that the victim told this to her mother and then his wife
told him. He also admitted that Kunjbihari Sir committed all these
inappropriate acts and the children studying in the school also
informed Vijay Janardhan Sir about the incident. Even after this,
Janardhan Sir did not cooperate, did not report the matter to the
police station or filed any complaint against Kunjbihari in his
department.
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26. Mother of the victim (PW-5) in para 2 of her evidence has stated
the elder mother of the victim came to their house from Bilaspur
on 19.2.2023, who on 20.2.2023 asked the victim for her mobile
for some work, then the elder mother of the victim checked the
victim’s mobile and saw Kunjbihari Hathile’s WhatsApp in which
obscene messages had been sent. On 25.2.2023, the victim had
Navodaya exam in Bhoramdev campus, so Kunjbihari Hathile was
saying that convince her parents to stay at his place for the night
and was saying that he will send his wife to her maternal home
and said that they will stay together at night, will eat gupchup and
will sleep on the same bed. In para 3, she stated that after seeing
the message when the victim was asked she told fearfully that
accused Kunjbihari had kissed her, pressed her chest, removed
her clothes and tried to put his finger in her private parts. The
victim was saying that dirty acts were done with her and she was
saying that everyone laughs her and she will die.
27. Inspector Vikram Dhruv (PW-16) stated in paragraph 6 of his
deposition that the data retrieved from the seized Article A
revealed that obscene messages had been sent through
WhatsApp from mobile number 9981901830 to mobile number
9575280014, and that the retrieved data matched the screenshots
produced during the investigation.
28. Assistant Sub-Inspector Chandrakant Tiwari (PW-14) in para 8 of
his cross-examination has admitted that Kunjbihari’s Aadhar card
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was not attached to his application, he does have an E-KYC,
which contains his Aadhar card number.
29. As per MLC report (Ex.P-10), on genital examination, the doctor
has hymen membrane rupture old and healed.
30. In the Indian society refusal to act on the testimony of the victim of
sexual assault in the absence of corroboration as a rule, is adding
insult to injury. A girl or a woman in the tradition bound non-
permissive society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her chastity had
ever occurred. She would be conscious of the danger of being
ostracized by the society and when in the face of these factors the
crime is brought to light, there is inbuilt assurance that the charge
is genuine rather than fabricated. Just as a witness who has
sustained an injury, which is not shown or believed to be self-
inflicted, is the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of sex offence
is entitled to great weight, absence of corroboration
notwithstanding. A woman or a girl who is raped is not an
accomplice. Corroboration is not the sine qua non for conviction in
a rape case. The observations of Vivian Bose, J. in Rameshwar
v. The State of Rajasthan (AIR 1952 SC 54) were:
“The rule, which according to the cases has hardened
into one of law, is not that corroboration is essential
before there can be a conviction but that the necessity
of corroboration, as a matter of prudence, except
18where the circumstances make it safe to dispense with
it, must be present to the mind of the judge…”.
31. A victim of a sex-offence cannot be put on par with an accomplice.
She is in fact a victim of the crime. The Evidence Act nowhere
says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must
receive the same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is necessary is
that the Court must be conscious of the fact that it is dealing with
the evidence of a person who is interested in the outcome of the
charge levelled by her. If the Court keeps this in mind and feels
satisfied that it can act on the evidence of the victim. There is no
rule of law or practice incorporated in the Indian Evidence Act,
1872 (in short ‘Evidence Act‘) similar to illustration (b) to Section
114 which requires it to look for corroboration. If for some reason
the Court is hesitant to place implicit reliance on the testimony of
the victim it may look for evidence which may lend assurance to
her testimony short of corroboration required in the case of an
accomplice. The nature of evidence required to lend assurance to
the testimony of the victim must necessarily depend on the facts
and circumstances of each case. But if a victim is an adult and of
full understanding the Court is entitled to base a conviction on her
19
evidence unless the same is own to be infirm and not trustworthy.
If the totality of the circumstances appearing on the record of the
case discloses that the victim does not have a strong motive to
falsely involve the person charged, the Court should ordinarily
have no hesitation in accepting her evidence.
32. The Supreme Court in the matter of Ranjit Hazarika v. State of
Assam, AIR 1998 SC 635 has held that the evidence of a victim
of sexual assault stands almost on a par with the evidence of an
injured witness and to an extent is even more reliable. It must not
be overlooked that a woman or a girl subjected to sexual assault
is not an accomplice to the crime but is a victim of another
person’s lust and it is improper and undesirable to test her
evidence with a certain amount of suspicion, treating her as if she
were an accomplice.
33. The Supreme Court in the matter of Rai Sandeep @ Deenu v.
State of NCT of Delhi, 2012 (8) SCC 21 held as under:-
“22. In our considered opinion, the ‘sterling witness’
should be of a very high quality and caliber whose
version should, therefore, be unassailable. The Court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from the
20starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately
before the Court. It should be natural and consistent
with the case of the prosecution qua the accused. There
should not be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as, the sequence of it. Such a version should have co-
relation with each and everyone of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
other similar such tests to be applied, it can be held that
such a witness can be called as a ‘sterling witness’
whose version can be accepted by the Court without
any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order to
enable the Court trying the offence to rely on the core
21version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
34. The Supreme Court in the matter of Nawabuddin v. State of
Uttarakhand, (2022) 5 SCC 419 has held as under:-
“17. Keeping in mind the aforesaid objects and to
achieve what has been provided under Article 15 and
39 of the Constitution to protect children from the
offences of sexual assault, sexual harassment, the
POCSO Act, 2012 has been enacted. Any act of sexual
assault or sexual harassment to the children should be
viewed very seriously and all such offences of sexual
assault, sexual harassment on the children have to be
dealt with in a stringent manner and no leniency should
be shown to a person who has committed the offence
under the POCSO Act. By awarding a suitable
punishment commensurate with the act of sexual
assault, sexual harassment, a message must be
conveyed to the society at large that, if anybody
commits any offence under the POCSO Act of sexual
assault, sexual harassment or use of children for
pornographic purposes they shall be punished suitably
and no leniency shall be shown to them. Cases of
sexual assault or sexual harassment on the children
are instances of perverse lust for sex where even
innocent children are not spared in pursuit of such
debased sexual pleasure.
18. Children are precious human resources of our
country; they are the country’s future. The hope of
tomorrow rests on them. But unfortunately, in our
country, a girl child is in a very vulnerable position.
There are different modes of her exploitation, including
22sexual assault and/or sexual abuse. In our view,
exploitation of children in such a manner is a crime
against humanity and the society. Therefore, the
children and more particularly the girl child deserve full
protection and need greater care and protection
whether in the urban or rural areas.
19. As observed and held by this Court in State of
Rajasthan v. Om Prakash, (2002) 5 SCC 745,
children need special care and protection and, in such
cases, responsibility on the shoulders of the Courts is
more onerous so as to provide proper legal protection
to these children. In Nipun Saxena v. Union of India,
(2019) 2 SCC 703, it is observed by this Court that a
minor who is subjected to sexual abuse needs to be
protected even more than a major victim because a
major victim being an adult may still be able to
withstand the social ostracization and mental
harassment meted out by society, but a minor victim
will find it difficult to do so. Most crimes against minor
victims are not even reported as very often, the
perpetrator of the crime is a member of the family of
the victim or a close friend. Therefore, the child needs
extra protection. Therefore, no leniency can be shown
to an accused who has committed the offences under
the POCSO Act, 2012 and particularly when the same
is proved by adequate evidence before a court of law.”
35. The Trial Court, in paragraph 40 of its judgment, observed that the
defence had argued that any person can save another person’s
mobile number under any name in a mobile phone. The Trial
Court noted that, although the WhatsApp chats seized from the
victim’s father displayed the contact name as “Hathile Sir” and did
23
not reflect the mobile number, the testimony of the technical
expert, Vikram Dhruv (PW-16), established that the obscene
messages had been sent from mobile number 9981901830 to the
victim’s father’s mobile phone. Further, the Customer Application
Form obtained from the concerned telecom company and proved
by Assistant Sub-Inspector Chandrakant Tiwari (PW-14), who was
posted in the Cyber Cell, Kabirdham, established that the said
mobile number was registered in the name of the accused,
Kunjbihari. The Trial Court further observed that, since the case
arose under the POCSO Act, once the prosecution had
discharged its initial burden, the statutory presumption operated
against the accused. In the present case, despite the prosecution
having led evidence linking the mobile number with the accused,
no evidence was adduced by the accused to establish that the
said mobile phone was not being used by him.
36. This Court has carefully considered the rival submissions
advanced by learned counsel for the parties and has
independently re-appreciated the oral and documentary evidence
available on record. In an appeal against conviction, interference
is warranted only when the findings of the Trial Court are shown to
be illegal, perverse, or based on a material misappreciation of
evidence. The evidence on record does not disclose any such
infirmity.
24
37.The prosecution case primarily rests upon the testimony of the
victim (PW-2). A careful reading of her deposition, together with
her statement recorded under Section 164 CrPC, shows
consistency on the material aspects of the prosecution case.
Though certain omissions and discrepancies have been pointed
out by the defence, they do not relate to the core allegations and
are not of such nature as to render her testimony wholly
unreliable. The explanation offered by the victim for not making an
immediate disclosure, namely the threats allegedly extended to
her by the appellant, cannot be said to be unnatural in the facts
and circumstances of the case.
38.The evidence of PW-1 and PW-5 lends assurance to the version
of the victim insofar as it relates to the disclosure made by her
after the alleged electronic communications came to the notice of
the family. Their evidence substantially supports the fact that the
allegations were disclosed within the family after the relevant
messages were noticed. The contention that PW-1 denied
authorship of the written report or was unaware of certain contents
thereof does not, by itself, render the substantive evidence
adduced before the Court unacceptable.
39.The medical evidence has also been considered. The medical
witnesses did not express a conclusive opinion regarding the
allegations. However, the absence of a definite medical opinion
does not necessarily negate the prosecution case. Medical
evidence is ordinarily corroborative in nature, and where the
25
ocular evidence is found reliable, inconclusive medical findings
are not, by themselves, sufficient to discard the prosecution
version. The Trial Court has appreciated the medical evidence in
that perspective.
40.The appellant has also questioned the investigation relating to
the electronic material relied upon by the prosecution. It has been
argued that deficiencies existed regarding the collection and proof
of such evidence. Even assuming that certain shortcomings
existed in the investigation concerning the electronic material, it is
well settled that lapses in investigation do not automatically result
in acquittal unless they create a reasonable doubt regarding the
prosecution case as a whole. In the present case, the Trial Court
has not based the conviction exclusively upon the electronic
evidence but has considered the oral and documentary evidence
available on record.
41.Upon an independent consideration of the evidence on record,
this Court finds no infirmity in the reasoning adopted by the
learned Trial Court on this aspect. Though the WhatsApp chats
displayed the sender as “Hathile Sir” and not by a mobile number,
the prosecution did not rely solely on the saved contact name. The
evidence of the technical expert, Vikram Dhruv (PW-16),
establishes that the relevant WhatsApp communications
originated from mobile number 9981901830, while the customer
application form obtained from the concerned service provider and
proved through Assistant Sub-Inspector Chandrakant Tiwari
26
(PW-14) links the said mobile number with the appellant. The Trial
Court has appreciated this evidence in conjunction with the other
material available on record and has concluded that the electronic
communication was attributable to the appellant. The mere
possibility that a contact may be saved under any name in a
mobile phone does not, by itself, discredit the prosecution case
when there is independent evidence connecting the relevant
mobile number with the appellant. The appellant has not pointed
to any material demonstrating that the Trial Court’s appreciation of
this evidence is perverse or contrary to law. Accordingly, the
finding recorded by the Trial Court on this aspect does not warrant
interference in the present appeal.
42.Likewise, the fact that certain prosecution witnesses did not
support the prosecution in its entirety cannot, by itself, be treated
as fatal to the prosecution case. It is equally settled that the
testimony of a hostile witness is not to be rejected in toto and that
a conviction can rest upon other reliable evidence if the Court
finds the same trustworthy.
43.The law governing appreciation of evidence in cases involving
sexual offences is well settled. As noticed in the decisions referred
to hereinabove, the testimony of the victim does not require
corroboration as an invariable rule of law. If, upon careful scrutiny,
the Court finds such testimony to be reliable and trustworthy, it
may form the basis of conviction. At the same time, the Court is
27
required to evaluate such evidence with due care, keeping in view
the facts and circumstances of each case.
44.Having independently examined the evidence on record, this
Court finds that the learned Trial Court has assigned cogent
reasons for accepting the prosecution evidence. The defence has
not demonstrated any material contradiction, omission or
circumstance which would make the prosecution version
inherently improbable or render the findings of the Trial Court
perverse. The conclusions recorded by the Trial Court are
supported by the evidence available on record and are consistent
with the settled principles governing appreciation of evidence.
45. Considering the statement of the victim (PW-2) who has
specifically stated the conduct of the appellant, the statement of
her father (PW-1), material available on record and the law laid
down by the Supreme Court in the above-stated judgments, we
are of the considered opinion that learned Special Judge has
rightly convicted and sentenced the appellant for the above-
mentioned offence. We do not find any illegality and irregularity in
the findings recorded by the trial Court.
46. In the result, this Court comes to the conclusion that the
prosecution has succeeded in proving its case beyond all
reasonable doubts against the appellant. The conviction and
sentence as awarded by the Special Judge to the appellant is
28
hereby upheld. The present criminal appeal lacks merit and is
accordingly dismissed.
47. It is stated at the Bar that the appellant is in jail. He shall serve out
the sentence as ordered by the trial Court.
48. Registry is directed to send a certified copy of this judgment along
with the original record of the case to the trial court concerned
forthwith for necessary information and compliance and also send
a copy of this judgment to the concerned Superintendent of Jail
where the appellant is undergoing his jail sentence to serve the
same on the appellant informing him that he is at liberty to assail
the present judgment passed by this Court by preferring an
appeal before the Hon’ble Supreme Court, if so advised, with the
assistance of High Court Legal Services Committee or the
Supreme Court Legal Services Committee.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Bablu
