Kunjbihari Hathile v. The State Of Chhattisgarh

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 4 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 5 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), 6 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, 7 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 the victim, did not find or opine about any signs suggestive of 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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.

26. Mother of the victim (PW-5) in para 2 of her evidence has stated 16 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 17 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 18 where 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 20 starting 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 21 version 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 22 sexual 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.

37.The prosecution case primarily rests upon the testimony of the 24 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) Chief Justice Judge Bablu