STATE OF CHHATTISGARH vs SADHAN KUNDU
- Court
- Chhattisgarh High Court
Digitally signed by
MOHAMMED
AADIL KHAN
Date: 2026.11.02
18:52:59 +0530
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CGHC010275102019 2026:CGHC:46324
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on :30-09-2026
Judgment delivered on : 02-11-2026
ACQA No. 605 of 2019
1 - State of Chhattisgarh Through The Special APP, Bhanupratappur, District-
Kanker, Chhattisgarh.
… Appellant
versus
1 - Sadhan Kundu S/o Jatindranath Kundu Aged About 31 Years R/o Village
Panavar Nayapara, P.S. Bande, District- North Bastar, Kanker, Chhattisgarh.
2 - Ku. Usha Kundu (Deleted) In Compliance of Honble Court Order Dated 11-05-
2026
--- Respondents
(Cause title taken from Case Information System)
For Appellant : Mr. R.R. Pithwa, Deputy Govt. Advocate.
For Respondent : Mr. Mukesh Shrivastava, Advocate.
Hon’ble Shri Justice Ravindra Kumar Agrawal, J.
CAV Judgment
1. Present is an acquittal appeal filed by the appellant/State under Section
378(1) of the Cr.P.C. against the impugned judgment of acquittal dated 15-
02-2019 passed by the learned Special Judge, for trial of Protection of
Children from Sexual Offences Act, 2012, Bhanupratappur, Kanker,
Chhattisgarh in Special Case No.37/2017 whereby the accused-
respondent No.1 has been acquitted from the offences under sections 354
A, 354 B, 354 C of the Indian Penal code, of offences defined under
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Sections 7, 11 (III) (V), 13 punishable Sections 8, 12, 14 of the Protection
of Children from Sexual Offences Act, 2012 and Section 67 A of
Information Technology Act, 2000 and accused-respondent No.2 has been
acquitted from the offence under Sections 354 A, 354 B, 354 C, r/w section
109 respectively of the Indian Penal code, of offences defined under
Sections 7, 11 (II) (III) & 13 punishable under sections 8, 12, 14 r/w section
17 respectively of the Protection of Children from Sexual Offences Act,
2012 and Section 67 A r/w section 84 B of Information Technology Act,
2000.
2. Respondent No.2 has died on 14-09-2025 during pendency of the present
acquittal appeal and the appeal against her has been abated.
3. The case of the prosecution in brief is that, on 10-05-2017 a written
complaint Ex.-P/6A was lodged by PW-6 father of the victim with allegation
that on 24-01-2017 in between 10-11:00 a.m. his minor daughter was being
allured by the respondents/accused, took her to his house and applied
vermilion on her head and outraged her modesty and got the outraging her
modesty videographed. The respondent No.2 (since deceased) also
pressurized her to marry with her brother, i.e., respondent No.1, accused-
respondent No.1 threatened the victim that if she would not marry with him
they will get her obscene video viral and blackmailed her. He obtained the
obscene video from the accused-respondents and therefore, appropriate
proceeding may be drawn. Based on this written complaint the FIR Ex.-P/7
was registered against the respondents/accused persons for the offence
under Section 354A, 354B and 354C, 34 of the IPC, Section 67A of the
Information Technology Act, 2000 and Section 8, 12 and 14 of POCSO Act.
The victim was sent for her medical examination to Community Health
Center, Bhanupratappur where she was medically examined by the doctor
PW-3, who after her medical examination gave report Ex.-P/4. While
medically examining the victim the doctor has not noticed any external
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injuries on her body. He referred her to radiologist for age confirmation.
The victim was radiologically examined at District Hospital Kanker by PW-
12, Radiologist who gave his report Ex.-P/14 and opined that the bone age
of the victim is between 16 to 18 years. The school register from the school
with respect to date of birth and age of the victim has been seized by police
vide seizure memo Ex.-P/2 and after retaining attested true copy of the
school register Ex.-P/3C, the original register was returned back to the
school. The statement under Section 164 of the Cr.P.C. of the victim Ex.-
P/5 was recorded by the learned Judicial Magistrate First Class
Bhanupratappur and her statement under Section 161 of the Cr.P.C. Ex.-
P/6 was recorded by the police. Spot map Ex.-P/3 was prepared by police
and Ex.-P/10 was prepared by Patwari. One mobile phone having obscene
video of the victim has been seized from the complainant vide seizure
memo Ex.-P/9. Accused-respondent No.1 was arrested on 10-05-2017 and
from his possession one mobile phone was seized vide seizure memo Ex.-
P/18. The mobile phones seized from the complainant and the accused-
respondent No.1 were sent for its FSL/Cyber report to CFSL, Bhopal.
Statement of the witnesses under Section 161 of the Cr.P.C. have been
recorded and after completion of usual investigation charge sheet was filed
against arrested accused-respondent No.1 before the learned trial Court
showing accused-respondent No.2 absconding.
4. The accused-respondent No.2 surrendered before the learned trial Court
on 13-11-2017 and then charges against her have been framed on 18-01-
2018 and the examined prosecution witnesses were recalled for further
examination/cross-examination with respect to accused-respondent No.2.
The accused persons denied their charge and claimed trial.
5. In order to prove the charge against the accused persons, the prosecution
examined as many as 15 witnesses. Statement of the
respondents/accused persons under Section 313 CrP.C. have been
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recorded, in which they denied the circumstances that appear against
them, pleaded innocence and have submitted that they have been falsely
implicated in the offence.
6. After appreciating the oral and documentary evidence led by the
prosecution, the learned trial Court has acquitted the respondents/accused
persons from all the alleged offences, hence, this appeal against acquittal.
7. Learned counsel for the appellant/State would submit that the prosecution
has proved its case beyond reasonable doubt. But for minor omissions and
contradictions the evidence of prosecution witnesses are reliable and
sufficient to hold the respondents/accused persons guilty for the alleged
offence. Even though in the radiological report the victim was opined to be
aged about 16 to 18 years, yet there are positive allegation that accused-
respondent No.1 has committed offence of outraging her modesty, sexual
harassment and child pornography. Right from the FIR till the evidence
recorded before the Court the victim has consistently stated about the
alleged offence of sexual harassment by accused-respondent No.1. There
is specific allegation of outraging her modesty and applying vermilion on
her head and recording of obscene video of her. The minor and trivial
omissions and contradictions have been given weightage by the learned
trial Court while acquitting the respondents/accused persons. The
electronic evidence led by the prosecution in which the alleged act of the
respondent-accused No.1 clearly demonstrated that he committed the
offence and the same has been proved as per its requirement and the
learned trial Court also fortified the same by playing it in the Court in
presence of the respondents/accused. It is further submitted by him that
the evidence of the victim has been duly corroborated by the other
witnesses, yet the learned trial Court has acquitted him from all the
offences. The impugned judgment of acquittal suffers from illegality and
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perversity and in view of the evidence of the victim, the acquittal is liable to
be set aside and the accused-respondent No.1 is liable to be convicted.
8. On the other hand, learned counsel appearing for the respondent/accused
opposes the submissions made by learned counsel for the appellant/State
and has submitted that the prosecution has utterly failed to prove its case
beyond reasonable doubt. Suspicion howsoever strong it cannot take place
of proof. The learned trial Court after playing the alleged obscene video in
the Court disbelieved its contents that it constitute the alleged offence
against the respondents/accused. From the radiologist report Ex.-P/14 the
victim is found to be major and no offence under the POCSO Act are made
out. Looking to her conduct, age and the videography recorded in the
mobile phone, the learned trial Court rightly comes into conclusion that
there was no any sexual harassment to the victim and they were enjoying
the affairs consensually. The electronic record has not been proved in
accordance with law which has been elaborately dealt with by the learned
trial Court in its judgment. The incident is alleged to be occurred on 24-01-
2017. The written report has been lodged by the complainant on 10-05-
2017 which is after more than 4 months and there is no explanation for
delay in lodging the report. In between alleged period the victim frequently
met with the respondents. Had there been any incident on 24-01-2017 she
would not have met accused-respondent No.1 again even when she was
being called by his sister i.e. accused-respondent No.2. He would further
submit that even if the two views are possible, the view which would be in
favour of the accused should be taken into consideration and in the present
case the learned trial Court rightly did the same. In the appeal against
acquittal the scope is very limited and the appellate Court though can
reappreciate the evidence, but without any clinching evidence or glaring
error in the impugned judgment cannot revert the same by setting aside the
judgment of acquittal. Therefore, there is no merit in the acquittal appeal
and the same is liable to be dismissed.
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9. I have heard learned counsel appearing for the parties and perused the
record of the trial Court.
10. In the case of Ramanand Yadav v. Prabhu Nath Jha , AIR 2004 SC 1053,
the Hon'ble Supreme Court has held that the Appellate Court in considering
the appeal against judgment of acquittal is to interfere only when there are
compelling and substantial reason for doing so. If the impugned judgment
is clearly unreasonable and relevant and convincing material have been
unjustifiably eliminated in the process, it is a compelling reason for
interference.
11. The scope of interference in appeal against the judgment of acquittal is
also considered by the Hon'ble Supreme Court in the case of Tota Singh
and another v. State of Punjab , AIR 1987 SC 1083, in which the Hon'ble
Supreme Court has held that:-
“6. The High Court has not found in its judgment that the
reasons given by the learned Sessions Judge for
discarding the testimony of PW 2 and PW 6 were either
unreasonable or perverse. What the High Court has
done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal
merely on the ground that as a result of such re-
appreciation, the High Court was inclined to reach a
conclusion different from the one recorded by the
learned Sessions Judge. This Court has repeatedly
pointed out that the mere fact that the appellate court is
inclined on a re-appreciation of the evidence to reach a
conclusion which is at variance with the one recorded
in the order of acquittal passed by the court below will
not constitute a valid and sufficient ground for setting
aside the acquittal. The jurisdiction of the appellate
court in dealing with an appeal against an order of
acquittal is circumscribed by the limitation that no
interference is to be made with the order of acquittal
unless the approach made by the lower court to the
consideration of the evidence in the case is vitiated by
some manifest illegality or the conclusion recorded by
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the court below is such which could not have been
possibly arrived at by any court acting reasonably and
judiciously and is, therefore, liable to be characterised
as perverse. Where two views are possible on an
appraisal of the evidence adduced in the case and the
court below has taken a view which is a plausible one,
the appellate court cannot legally interfere with an
order of acquittal even if it is of the opinion that the
view taken by the court below on its consideration of
the evidence is erroneous.”
12. In the case of Chandrappa v. State of Karnataka , 2007 (4) SCC 415, the
Hon'ble Supreme Court has authoritatively laid down that the Appellate
Court has full power to review, re-appreciate and reconsider the evidence
upon which the order of acquittal is founded, and that there is no limitation
in law on its power to review such evidence. It has been held that:-
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its
own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling
reasons", "good and sufficient grounds", "very strong
circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive
powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of
"flourishes of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to
its own conclusion.
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(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.”
13. Further, in the case of Ghurey Lal v. State of U.P. , 2008 (10) SCC 450,
the Hon'ble Supreme Court has held that, interference with an order of
acquittal is justified, where the trial court conclusion are manifestly
erroneous, based on misreading of evidence, or where material evidence
has been ignored, leading to miscarriage of justice.
14. While exercising the appellate jurisdiction against judgment of acquittal, the
Appellate Court are fully empowered to appreciate and re-appreciate the
evidence adduced on behalf of the parties while reversing the judgment of
the learned trial Court. The Appellate Court is required to discuss the
grounds given by the learned trial Court to acquit the accused and then to
dispel those reasons. In this context, we have gone through the evidence
available on record and examined the judgment passed by the learned trial
Court.
15. The first and foremost question arises for consideration would be the age
of the victim as to whether the victim was minor on the date of incident or
not.
16. The prosecution has relied upon the school record Ex.-P/3C which is
sought to be proved by PW-2 who is the teacher of the school and the
ossification test report Ex.-P/14 which is sought to be proved by PW-12
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Radiologist. The learned trial Court after having examined the evidence
available on record with respect to age and date of birth of the victim, the
school record Ex.-P/3C, ossification test report Ex.-P/14 and in view of the
judgment passed by the Hon’ble Supreme Court in the case of Birad Mal
Singhvi Vs. Anand Purohit , AIR 1988 SC 1786, Alamelu and another
Vs. State, represented by Inspector of Police, A.I.R. 2011 SC 715, Jaya
Mala Vs. Home Secretary, Government of Jammu & Kashmir @ other ,
AIR 1982 SC 1297 and K.P. Thimmappa Gowda Vs. State of Karnataka ,
AIR 2011 SC 2564 came into conclusion that the prosecution has failed to
conclusively prove that the victim was below 16 years of age on the date of
incident, i.e., 24-01-2017 and the victim was minor on the date of incident
and held the victim major and more than 18 years of age.
17. From the evidence of PW-2 it transpires that he was posted in the school
from 2017 and he is not the author of the school register. The basis on
which the date of birth of the victim is recorded in the school register has
not been produced by the prosecution. Further, in the ossification test
report Ex.-P/14 proved by PW-12, Radiologist opined that the age of the
victim is between 16 to 18 years. He admitted in his cross-examination
about the error of margin of 2 years in either side and therefore, the
learned trial Court by considering the error of margin of 2 years in positive
side as has been observed by the Hon’ble Supreme Court in case of Jaya
Mala (supra) held that the victim was not minor but was major and more
than 18 years of age on the date of incident. The finding recorded by the
learned trial Court with respect to the age of the victim does not suffer from
any perversity or illegality and therefore, the said finding is hereby affirmed.
18. So far as the other offences of sexual harassment and making her obscene
video recording are concerned, this Court again examine the evidence of
the victim.
19. PW-5 is the victim. She stated in her evidence that the accused persons
are residing nearby her house. Accused-respondent No.2 is her aunt in
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relation and accused-respondent No.1 is her uncle in relation. On 24
January accused-respondent No.2 came to her house and asked her to
come with her. When she had gone to her house and watching T.V. after
preparation of the report, all of sudden the accused-respondent No.1 came
from her backside and applied vermilion on her head. She protested and
abused him. Then, the accused-respondent No.1 proposed her and shown
his intimacy and also threatened her that if she disclosed the incident to
anyone she would see dead body of her parents. Thereafter, she returned
back to her house and later on when she informed it to the accused-
respondent No,2 she also supported the accused-respondent No.1 that her
brother has never committed any wrong and asked her to follow his
instruction. After about ½ month when she had gone to the house of
accused-respondent No.2 to collect Mahua seeds, the accused-respondent
No.1 again came there and she made conversation with her elder sister
from the mobile phone of the accused-respondent No.1, thereafter she had
gone inside the house of accused-respondent No.2 to leave Mahua seeds,
at that time, accused-respondent No.1 again came from her backside,
caught her hold, gagged her mouth by one hand and pressed her breasts
by his other hand. He lifted her kurti and pressed her breasts. After 2-3
days her father asked about the incident and then she disclosed all the
incident to him and then her father lodged report to P.S. Bandhe. The
accused-respondent No.1 had threatened her also not to disclose the
incident to her parents. At this stage, the victim was declared hostile and
she was asked leading question by the prosecution then she admitted by
giving his police statement Ex.-P/6. In cross-examination she admitted that
her elder brother was in jail 1 and ½ years back. She admitted that
accused-respondent No.2 usually called her to complete the report. She
further admitted that the incident of applying vermilion on her head by
accused-respondent No.1 has not been informed to anyone by her. Since
accused-respondent No.1 threatened her, therefore, she has not disclosed
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it to anyone. She denied that on 24-01-2017 the accused-respondent No.1
has not committed any offence. She further admitted that she disclosed in
her police statement Ex.-P/6 that at the time when accused-respondent
No.1 applied vermilion on her she abused him. She also admitted giving
statement before the police about the threatening given by the accused.
After applying vermilion by the accused-respondent No.1 she returned
back to her house by covering her head through scarf and washed her
head in the house. She admitted that she had a conversation with her
sister through mobile phone of accused-respondent No.1. She admitted
that she had gone to the house of the accused persons to collect Mahua
seeds and at the time when she had gone to the house of accused-
respondent No.2 she was not there. She also admitted that during that
period accused-respondent No.1 gagged her mouth by one hand and after
lifting her kurti pressing her breast by another hand. She further admitted
that after the said incident she rushed to her house. She further admitted
that gagging of her mouth by one hand and pressing her breast by another
hand by accused-respondent No.1 was videographed and recorded in the
camera which was fixed in the house of the accused. She further admitted
that recording was made through camera and the accused has fixed the
mobile phone after fixing it in the specific place so that the obscene video
could be recorded. She further admitted that the obscene video was given
to her father by her maternal uncle. In further cross-examination she stated
that the accused-respondent No.2 pressurized her to marry with accused-
respondent No.1.
20. PW-6 is the father of the victim. He stated in his evidence that the accused-
respondent No.1 informed him that his daughter is having conversation
with another boy and then he raised suspicion and asked his brother-in-law
to search the mobile phone of accused-respondent No.1. His brother-in-law
watched the mobile phone of the accused-respondent No.1 and obtained
the obscene video of outraging modesty of his daughter in a mobile chip.
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The accused-respondent No.1 after lifting kurti of his daughter pressed the
breasts of his daughter. The said obscene video was recorded by the
mobile phone kept at the roof level. He asked from his daughter and then
she disclosed about the incident that the accused-respondent No.1 applied
vermilion on her head and after 20 days he recorded her obscene video.
She also disclosed about threatening given by accused-respondent No.1 to
her that if she would not marry with him she would see dead body of her
parents. The accused-respondent No.2 regularly called his daughter to
help in Aganbadi work and she also pressurized her to marry with accused-
respondent No.1. The accused-respondent No.1 displayed the said
obscene video to 3-4 villagers and one of them had informed and asked
him to call Panchayat meeting. Thereafter, he lodged the report Ex.-P/6. In
cross-examination he admitted that the accused-respondent No.1 is
working with him as labourer. He admitted that there was an outstanding
amount of Rs.2000/- which he has to pay to the accused-respondent No.1.
He denied that there was outstanding amount of Rs.40-50 thousand. He
admitted that the written report of Ex.-P/6A was scribed at Tahsil office
Pakanjur. He admitted that his brother-in-law has given him mobile chip in
which the said obscene video was taken by him. He kept the said chip in
his house for about 8-10 days. He did not know the mobile number of the
accused. He further admitted that the had shown the place where the
incident was photographed. From the evidence of this witness it transpires
that when he came to know about the incident he asked his daughter who
disclosed the incident to him and then he obtained the videography in chip
and then he lodged the report. He deposed against the accused persons
on the basis of the said information disclosed by the victim PW-5 and the
alleged chip in which the alleged obscene video was there.
21. PW-7 is the mother of the victim. She stated in her evidence that she came
to know about the fact that her daughter was being taken by the accused-
respondent No.2 to her house for Anganbadi work which has been
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informed to her by her husband. Her husband had also informed that the
accused-respondent No.1 applied vermilion on the head of her daughter
and asked her not to disclose the incident to her parents. Her husband has
also disclosed about the video recording, except this she did not know
anything. At this stage, she was declared hostile and when the leading
question was asked she admitted giving her police statement Ex.-P/12. In
cross-examination she reiterated that she came to know about the incident
when her husband informed her. She did not know about date when her
husband informed about the incident. Her statement was recorded by the
police on 25-06-2017. In further cross-examination she admitted that she
has not made any enquiry from the accused-respondent No.2.
22. PW-4 is the Sub-Inspector of Police. She recorded the statement of the
victim on 10-05-2017. In cross-examination she admitted that the victim
was produced at Police Station Bhanupratappur for recording of her
statement. On the telephonic instruction of SHO, P.S. Bande she recorded
her statement.
23. PW-8 is the villager who stated in his evidence that his son had shown him
the obscene video of the victim which was recorded in the mobile phone of
accused-respondent No.1. After seeing the video he was annoyed and
when he asked from the accused-respondent No.1, he admitted that he
recorded the said video. At this stage he also turned hostile and leading
question was asked from him. He admitted giving his police statement Ex.-
P/13. In cross-examination he admitted that since he is an old aged
person, his vision is not clear. He admitted that his son had not shown any
video and he saw the video in mobile phone by opening it by another child.
At that time his son was not present there. The said video was brought by
his son from the mobile phone of accused-respondent No.1.
24. PW-9 is the son of PW-8. He stated in his evidence that the victim is his
niece and her father is his brother-in-law. His brother-in-law asked him to
obtain the videography related to his daughter which was in the mobile
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phone of accused-respondent No.1. In the night, at the time when the
accused-respondent No.1 was watching TV he took his mobile phone and
took a copy of the same in his mobile phone through bluetooth and gave it
to his father, PW-8. In the said video it was seen that accused-respondent
No.1 was pressing breasts of his niece. In cross-examination he admitted
that on being asked by his brother-in-law on 30-04-2017 he checked the
mobile phone of the accused-respondent No.1. He informed the police
person that he had taken the obscene video through bluetooth. He also
admitted that while transferring the data through bluetooth the mobile
number of the person concerned were not displayed. He admitted that the
second mobile number from which he transferred the data from bluetooth
belongs to whom, he did not know. He voluntarily stated that the said
mobile phone belonged to the accused-respondent No.1. He further
admitted that he himself had not produced the said video recording to the
police. He further admitted that he had never transferred the obscene video
from his mobile phone to the mobile phone of his brother-in-law. He did not
disclose it in his police statement Ex.-D/2 and if it is there he could not tell
the reason. In further cross-examination he admitted that he did not know
about the accused-respondent No.2.
25. PW-11 is the Constable posted at Police Station Bande. He is a witness of
seizure memo Ex.-P/9 through which the micro chip was seized from the
complainant.
26. PW-13 is the Investigating Officer who has stated about the investigation
which he carried out after registration of the FIR. He being the procedural
witness supported the prosecution case about the investigation which he
conducted.
27. PW-14 is another Constable witnessing the seizure of school register
through seizure memo Ex.-P/2.
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28. PW-15 is another witness to the seizure memo Ex.-P/9 by which the micro
chip has been seized from the complainant and the mobile phone of the
accused-respondent No.1 through seizure memo Ex.-P/18.
29. From the evidence available on record, this Court finds that the learned trial
Court has not properly appreciated the material part of the testimony of the
victim, PW-5. Though the victim has subsequently been declared hostile, in
the leading question asked from her, she supported the prosecution’s case
that she had given the police statement Ex.-P/6. The portion of her
testimony which inspires confidence and is consistent with the other
evidence on record can be relied upon. In Khujji alias Surendra Tiwari v.
State of Madhya Pradesh , (1991) 3 SCC 627, the Hon’ble Supreme Court
has held that the evidence of a hostile witness is not liable to be rejected in
toto and that the part of the testimony which is otherwise acceptable can be
relied upon. Further, in the case of Rohtash Kumar v. State of Haryana ,
2013 (14) SCC 434, the Hon’ble Supreme Court has held in para Nos. 25
to 27 that:-
“25. It is a settled legal proposition that evidence of a
prosecution witness cannot be rejected in toto, merely
because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses cannot
be treated as effaced, or washed off the record altogether.
The same can be accepted to the extent that their version is
found to be dependable, upon a careful scrutiny thereof.
26. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC
360] this Court held, that evidence of a hostile witness would
not be rejected in entirety, if the same has been given in
favour of either the prosecution, or the accused, but is
required to be subjected to careful scrutiny, and thereafter,
that portion of the evidence which is consistent with either the
case of the prosecution, or that of the defence, may be relied
upon. [See also C. Muniappan v. State of T.N. [(2010) 9 SCC
567], Himanshu v. State (NCT of Delhi) [(2011) 2 SCC 36] and
Ramesh Harijan v. State of U.P. (2012) 5 SCC 777]
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27. Therefore, the law permits the court to take into
consideration the deposition of a hostile witness, to the extent
that the same is in consonance with the case of the
prosecution, and is found to be reliable in careful judicial
scrutiny.”
30. In the present case, the victim PW-5 has specifically deposed that when
she went to the house of accused/respondent No. 2 to collect Mahua
seeds, accused-respondent No. 1 came from behind, caught hold of her,
gagged her mouth with one hand and pressed her breasts with the other
hand after lifting her kurti. She has further stated that immediately after the
incident, she rushed back to her house. In her cross-examination, she
reiterated the material facts concerning the physical acts committed by
accused-respondent No. 1. These acts, if considered in their entirety,
clearly establish unwelcome physical contact accompanied by an explicit
sexual overture. The absence of external injuries on the victim's body does
not, by itself, discredit her testimony regarding the incident. Further, the
defence had given the positive suggestion during the cross-examination of
the victim PW-5 in para 30, 31, 33, 34, 39, 42, 44, 45, 47, 48, 49, 51 in
which she deposed about the alleged act of respondent No.1/accused. The
positive suggestion given by the defence is an incriminating circumstance
against him as has been held by the Hon’ble Supreme Court in the case of
Balu Sudam Khalde and another v. State of Maharashtra , 2023 (13)
SCC 365 in which the Hon’ble Supreme Court has held in Para Nos. 32 to
39 that:-
“32. We noticed that in the cross-examination of the original first
informant, PW 1 Asgar Shaikh (Ext. 7), few suggestions were put
to him by the defence counsel. We quote the relevant part of the
cross-examination of the first informant:
"The attack on us was sudden. The first blow was hit on
my head. I was assaulted severely on the head. Due to
assault, I suffered a bleeding injury. It is not true that I felt
17
giddy due to assault. Yes I however suffered pain. At that
time, I did not feel that I should save my life. I dia not feel
that I should run away or I should try to hide myself. I
went towards the side of Lohiya Nagar Police Chowkey. I
did feel that I was being assaulted without any reason.
Abbas was screaming while he was being assaulted.…"
33. We are of the view from the aforesaid that the suggestions put
by the defence counsel in the cross-examination of the
eyewitnesses establishes the presence of PW 1 Asgar Shaikh at
the scene of offence and the factum of assault could also be said
to have been admitted. The reply to the suggestions answers the
submission canvassed by the learned counsel for the appellants
that PW 1 Asgar Shaikh should not be believed or relied upon as
there is nothing on record to indicate that he was an injured
eyewitness. The defence could be said to have admitted the
presence of PW 1 Asgar Shaikh. When the aforesaid part of the
cross-examination of PW 1 Asgar Shaikh was brought to the notice
of the defence counsel, he submitted that a suggestion put by
defence counsel to a witness in his cross-examination has no
evidentiary value and even if the same is incriminating in any
manner would not bind the accused as the defence counsel has no
implied authority to admit the guilt of the facts incriminating the
accused.
34. According to the learned counsel such suggestions could be a
part of the defence strategy to impeach the credibility of the wit
ness. The proof of guilt required of the prosecution does not de
pend on the satisfaction made to a witness.
1
35. In Tarun Bora v. State of Assam , a three-Judge Bench of this
Court was dealing with an appeal against the order passed by the
Designated Court, Guwahati, in TADA Sessions case wherein the
appellant was convicted under Section 365 IPC read with Sections
3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention)
Act, 1987.
36. In Tarun Bora case, this Court, while considering the evidence
on record took note of a suggestion which was put to one of the
witnesses and considering the reply given by the witness to the
1 (2002) 7 SCC 39
18
suggestion put by the accused, arrived at the conclusion that the
presence of the accused was admitted. We quote with profit the
following observations made by this Court in paras 15,16 and 17,
respectively, as under: (Tarun Bora case, SCC pp. 43-44).
15. The witness further stated that during the assault, the
assailant accused him of giving information to the army
about the United Liberation Front of Assam (ULFA). He
further stated that on the third night he was carried away
blindfolded on a bicycle to a different place and when his
eyes were unfolded, he could see his younger brother-
Kumud Kakati (PW 2) and his wife Smt Prema Kakati (PW
3). The place was Duliapather, which is about 6-7 km away
from his Village Sakrahi. The witness identified the appellant
Tarun Bora and stated that it is he who took him in an
Ambassador car from the residence of Nandeswar Bora on
the date of the incident.
16. In cross-examination the witness stated as under:
'Accused Tarun Bora did not blind my eyes nor he assaulted
me.'
17. This part of cross-examination is suggestive of the
presence of accused-Tarun Bora in the whole episode. This
will clearly suggest the presence of the accused Tarun Bora
as admitted. The only denial is that the accused did not
participate in blind-folding the eyes of the witness nor
assaulted him."
2
37. In Rakesh Kumar v. State of Haryana , this Court was dealing
with an appeal against the judgment of the High Court affirming the
order of the Sessions Judge whereby the appellant and three other
persons were convicted under Section 302 read with Section 34
IPC. While reappreciating the evidence on record, this Court
noticed that in the cross-examination of PW 4 Sube Singh, a
suggestion was made with regard to the colour of the shirt worn by
one of the accused persons at the time of the incident. This Court
taking into consideration the nature of the suggestion put by the
defence and the reply arrived at the conclusion that the presence
2 (1987)2 SCC 34
19
of the accused, namely, Dharam Vir was established on the spot at
the time of occurrence. We quote the following observations made
by this Court in paras 8 and 9, respectively, as under: (SCC p. 36)
"8. PW 3, Bhagat Singh, stated in his examination-in-chief
that he had identified the accused at the time of occurrence.
But curiously enough, he was not cross-examined as to how
and in what manner he could identify the accused, as
pointed out by the learned Sessions Judge. No suggestion
was also given to him that the place was dark and that it
was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4 Sube Singh, stated that
the accused Dharam Vir, was wearing a shirt of white colour.
It was suggested to him on behalf of the accused that
Dharam Vir was wearing a shirt of cream colour. In answer
to that suggestion, PW 4 said ‘It is not correct that Dharam
Vir accused was wearing a shirt of cream colour and not a
white colour at that time. The learned Sessions Judge has
rightly observed that the above suggestion at least proves
the presence of accused Dharam Vir, on the spot at the time
of occurrence.”
38. Thus, from the above it is evident that the suggestion made by
the defence counsel to a witness in the cross-examination if found
to be incriminating in nature in any manner would definitely bind
the accused and the accused cannot get away on the plea that his
counsel had no implied authority to make suggestions in the nature
of admissions against his client.
39. Any concession or admission of a fact by a defence counsel
would definitely be binding on his client, except the concession on
the point of law. As a legal proposition we cannot agree with the
submission canvassed on behalf of the appellants that an answer
by a witness to a suggestion made by the defence counsel in the
cross-examination does not deserve any value or utility if it
incriminates the accused in any manner.”
31. Section 354A(1)(i) of the IPC provides that a man who commits physical
contact and advances involving unwelcome and explicit sexual overtures is
guilty of sexual harassment. In Amit @ Lalu v. State , decided on
20
25.05.2017, the Delhi High Court, in Criminal Appeal No. 858 of 2016,
considered the distinction between Sections 354 and 354A of the IPC and
explained that unwelcome physical contact involving explicit sexual overtures
attracts Section 354A, whereas assault or criminal force accompanied by the
requisite intention to outrage the modesty of a woman attracts Section 354
IPC. In the case of Amit @ Lalu (supra) it has been held in para Nos. 7 to 9
that:-
“7. The issue whether an accused could be simultaneously con
victed for offences punishable under Sections 354 and 354A IPC
came up for consideration before this Court in the decision re
ported as 237 (2017) DLT 271 T. Manikandan v. The State (Govt. of
NCT of Delhi) wherein this Court held-
"6. Sections 354 and 354A to 354D IPC read as under:
"354. Assault or criminal force to woman with intent to
outrage her modesty. Whoever assaults or uses criminal
force to any woman, intending to outrage or knowing it
to be likely that he will thereby outrage her modesty,
shall be punished with imprisonment of either descrip
tion for a term which shall not be less than one year but
which may extend to five years, and shall also be liable
to fine.
354 A. Sexual harassment and punishment for sexual
harassment.-(1) A man committing any of the following
acts-
(i) physical contact and advances involving unwelcome
and explicit sexual overtures, or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman;
or
(iv) making sexually coloured remarks, shall be guilty of
the offence of sexual harassment.
(2) Any man who commits the offence specified in
clause(i) or clause (ii) or clause (iii) of sub-section(1)
shall be punished with rigorous imprisonment for a term
21
which may extend to three years, or with fine, or with
both.
(3) Any man who commits the offence specified in
clause (iv) of sub-section (1) shalı be punished with
imprisonment of either description for a term which may
extend to one year, or with fine, or with both
354B. Assault or use of criminal force to woman with
intent to disrobe. - Any man who assaults or uses
criminal force to any woman or abets such act with the
intention of disrobing or compelling her to be naked,
shall be punished with imprisonment of either
description for a term which shall not be less than three
years but which may extend to seven years, and shall
also be liable to fine.
354C. Voyeurism.- Any man who watches, or captures
the image of a woman engaging in a private act in
circumstances where she would usually have the
expectation of not being observed either by the
perpetrator or by any other person at the behest of the
perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either
description for a term which shall not be less than one
year, but which may extend to three years, and shall
also be liable to fine, and be punished on a second or
subsequent conviction, with imprisonment of either
description for a term which shall not be less than three
years, but which may extend to seven years, and shali
also be liable to fine.
354D. Stalking.- (1) Any man who-
(i) follows a woman and contacts, or attempts to contact
such woman to foster personal interaction repeatedly
despite a clear indication of disinterest by such woman;
(ii) monitors the use by a woman of the internet, email
or any other form of electronic communication, commits
the offence of stalking:
Provided that such conduct shall not amount to stalking
if the man who pursued it proves that-
22
(i) it was pursued for the purpose of preventing or
detecting crime and the man accused of stalking bad
been entrusted with the responsibility of prevention and
detection of crime by the State; or
(ii) it was pursued under any law or to comply with any
condition or requirement imposed by any person under
any law; or
(iii) in the particular circumstances such conduct was
reasonable and justified.
(2) Whoever commits the offence of stalking shall be
punished on first conviction with imprisonment of either
description for a term which may extend to three years,
and shall also be liable to fine; and be punished on a
second or subsequent conviction, with imprisonment of
either description for a term which may extend to five
years, and shall also be liable to fine."
7. The short issue before this Court is whether the appellant
can be convicted for both the offences punishable under
Section 354 and 354A IPC simultaneously. Section 354 IPC
provides for the offence relating to assault or criminal force to
woman with intent to outrage her modesty. Section 354A which
was inserted by criminal law (Amendment) Act, 2013 provides
for punishment for sexual harassment.
8. The two necessary ingredients of Section 354 IPC are
'assault' or 'use of criminal force to any woman and with the
intention to outrage or knowing it to be likely that he will thereby
outrage her modesty. Sections 350 and 351 IPC define 'criminal
force' and 'assault' as under:
350. Criminal force. Whoever intentionally uses force to
any person, without that person's consent, in order to
the committing of any offence, or intending by the use of
such force to cause, or knowing it to be likely that by the
use of such force he will cause injury, fear or annoyance
to the person to whom the force is used, is said to use
criminal force to that other.
351. Assault.-Whoever makes any gesture, or any
preparation intending or knowing it to be likely that such
23
gesture or preparation will cause any person present to
apprehend that he who makes that gesture or
preparation is about to use criminal force to that person,
is said to commit an assault.
Explanation.-Mere words do not amount to an assault.
But the words which a person uses may give to his
gestures or preparation such a meaning as may make
those gestures or preparations amount to an assault.
9. Thus when the modesty of a woman is outraged or it is likely
to be an outraged coupled with an assault or criminal force,
Section 354 IPC would be attracted. Though assault can be by
mere gesture or preparation intending or knowing that it is likely
that such gesture or preparation will cause any person present
to apprehend use of criminal force. This is an act more than
mere physical contact with advances involving unwelcome and
explicit sexual overtures. Ingredients of Section 354 IPC would
show that the same mandate an actus reas of assault or
criminal force with an intention to outrage or likely to outrage
the modesty whereas a mere physical contact with advances as
noted above would attract Section 354A IPC Though in certain
fact situations there may be cases where there may be an
overlap of both Sections 354 and 354A IPC however, there may
be cases which may exclusively falı either in Section 354 or
Section 354A IPC Once an offence falls under Section 354 IPC
even it ingredients of Section 354A IPC are satisfied, the
accused will be punished for Section 354 IPC the same being
more serious in nature as it prescribes the minimum sentence
of one year and term for imprisonment which may extend to five
years."
8. On the allegations as proved by the prosecution, ingredients of
offence punishable under Section 354 IPC i.e. assault/criminal
force to a woman to outrage her modesty as well as Section 354A
IPC i.e. physical contact with explicit sexual overtures and demand
of sexual favour are fulfilled. Thus, the prosecution has proved
beyond reasonable doubt that the appellant committed the
offences punishable under Section 354 IPC as well as Section
354A IPC
24
9. As regards offence punishable under Section 8 of the POCSO
Act, the prosecution has proved that the prosecutrix was a minor
studying in 8th standard. The Act of the appellant amounts to a
sexual assault without penetration with sexual intent involving
physical contact satisfying the ingredients for offence punishable
under Section 8 POCSO Act. Hence the conviction of the appellant
for offence punishable under Section 8 of the POCSO Act is also
upheld.”
32. In the present case, the testimony of PW-5 regarding the accused catching
hold of her, gagging her mouth and pressing her breasts after lifting her kurti
establishes, beyond reasonable doubt, the ingredients of the offence
punishable under Section 354A(1)(i) of the IPC.
33. Consequently, this Court is of the considered opinion that, notwithstanding
the acquittal of accused-respondent No. 1 from the offences under
Sections 354A, 354B and 354C of the IPC by the learned trial Court, the
material evidence of PW-5 establishes the commission of the offence of
sexual harassment punishable under Section 354A(1)(i) of the IPC. The
finding of acquittal, insofar as it relates to the said offence, cannot be
sustained in view of the material evidence which has not been properly
appreciated by the learned trial Court. Accordingly, the acquittal appeal
deserves to be allowed to the aforesaid extent, and accused-respondent
No. 1 is liable to be convicted for the offence punishable under Section
354A(1)(i) of the IPC.
34. So far as the acquittal of accused/respondent No. 1 for the offences
punishable under Sections 354B and 354C of the IPC is concerned, upon
reappreciation of the evidence available on record, this Court finds that the
prosecution has failed to establish all the essential ingredients of the said
offences beyond reasonable doubt. Although the victim PW-5 has deposed
regarding the accused catching hold of her, gagging her mouth, lifting her
kurti and pressing her breasts, the evidence on record does not
satisfactorily establish the specific ingredients necessary to constitute the
offences under Sections 354B and 354C of the IPC. In particular, the
25
prosecution has failed to establish the requisite act contemplated under
Section 354B or the publication or transmission of an image of a private
area in the circumstances contemplated under Section 354C of the IPC.
Consequently, the findings recorded by the learned trial Court acquitting
accused/respondent No. 1 of the offences punishable under Sections 354B
and 354C of the IPC do not warrant interference and are hereby affirmed.
35. As regards the offence punishable under Section 67A read with Section
84B of the Information Technology Act, 2000, this Court finds that the
prosecution has not satisfactorily established, in accordance with law, the
publication or transmission, or the abetment thereof, by
accused/respondent No. 1 of material containing a sexually explicit act in
electronic form.
36. The evidence of PW-9 regarding the transfer of the alleged video through
Bluetooth, coupled with the deficiencies in proving the electronic record,
does not establish the essential ingredients of the said offence beyond
reasonable doubt. The evidence of PW-8 and PW-9, insofar as it relates to
obtaining the alleged video clipping from the mobile phone of
accused/respondent No. 1, does not inspire complete confidence regarding
the manner in which the electronic record was procured and transferred.
PW-8 stated that he had seen the video, but in his cross-examination he
admitted that his son had not shown it to him and that he had viewed it on
a mobile phone operated by another child. PW-9 deposed that, at the
instance of the victim’s father, he accessed the mobile phone of
accused/respondent No. 1 and transferred the video to his own mobile
phone through Bluetooth and thereafter gave it to PW-8. However, he
admitted that he had not produced the video before the police, had not
transferred it from his mobile phone to the victim’s father’s mobile phone,
and had not disclosed these material facts in his police statement Ex. D/2.
He also admitted that he could not identify the mobile number from which
the video had been transferred. These material inconsistencies create
26
doubt regarding the chain of custody and the provenance of the alleged
video clipping. In the absence of satisfactory proof establishing the
authenticity and integrity of the electronic record in accordance with the
applicable law, the testimony of PW-8 and PW-9, by itself, cannot
conclusively establish the alleged publication or transmission of sexually
explicit material by accused-respondent No. 1. In this regard, the principles
laid down by the Supreme Court in Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal , (2020) 7 SCC 1, concerning proof and admissibility
of electronic records, are relevant.
37. Further, as regards the offences punishable under Sections 7, 11(iii) and
11(v), 13, 8, 12 and 14 of the POCSO Act, this Court has already affirmed
the finding of the learned trial Court that the prosecution failed to establish
that the victim was below eighteen years of age on the date of the incident.
Since the applicability of the aforesaid provisions depends upon the victim
being a child within the meaning of the Act, the essential jurisdictional
ingredient for attracting the said provisions is not established. Accordingly,
the acquittal of accused/respondent No. 1 for the aforesaid offences is
affirmed.
38. Consequently, the acquittal appeal is allowed in part and the impugned
judgment of acquittal to the extent of acquitting the respondent/accused
No.1 for the offence under Section 354A of the IPC is hereby set aside
and the acquittal of the respondent/accused No.1 from all other offences
are hereby affirmed. The respondent/accused No.1 is sentenced for the
offence under Section 354A of the IPC.
39. The offence of Section 354A of the IPC does not provide any minimum
sentence which may extend to three years, or with fine, or with both, if the
accused commits the offence specified in clause (i) or clause (ii) or clause
(iii) of sub-section 1 of Section 354A of the IPC. In the present case, the
respondent/accused No.1 is found guilty for commission of offence under
27
Section 354A(1)(i) of the IPC, therefore, the sentence provided in Section
354A(2) of the IPC is applicable here.
40. The respondent No.1/accused has already remained in jail for 5 months
and 30 days; he was 31 years of age at the time of the incident; the offence
is of the year 2017, considering the overall facts and circumstances of the
case, this Court deem it appropriate to sentence the respondent
No.1/accused for the period already undergone by him with fine of
Rs.15,000/- . In default of payment of fine, the respondent No.1/accused
shall further undergo R.I. for one month.
41. The fine amount shall be deposited within three months from today. On
being so deposited the fine amount by the respondent No.1/accused, the
same shall be paid to the victim PW-5 as compensation as provided under
Section 395 of the BNSS, 2023.
42. The record of the trial Court be sent back to the learned trial Court along
with a copy of this judgment for necessary compliance.
Sd/-
(Ravindra Kumar Agrawal)
Judge
Aadil