State of Chhattisgarh v. Sadhan Kundu & Anr

Background / Synopsis

● An FIR was registered on 10-05-2017 alleging that on 24-01-2017, respondent No. 1 took the victim to his house, applied vermilion on her head, outraged her modesty, and videographed the act while respondent No. 2 pressurized her to marry respondent No. 1.

● Chronological procedural history: Written complaint Ex.-P/6A lodged on 10-05-2017 -> FIR Ex.-P/7 registered -> Victim medically and radiologically examined (Ex.-P/4, Ex.-P/14) -> Charge sheet filed against respondent No. 1 -> Respondent No. 2 surrendered on 13-11-2017 and charges framed -> Trial Court acquitted both accused on 15-02-2019 -> State filed Acquittal Appeal ACQA No. 605 of 2019 -> Respondent No. 2 died during appeal on 14-09-2025 and appeal abated against her.

● Appellant/State sought setting aside of acquittal and conviction of respondent No. 1.

Issues For Consideration

1. Whether the victim was a minor on the date of incident to attract the provisions of the POCSO Act.

2. Whether the prosecution established the offences of sexual harassment, outraging modesty, and child pornography under Sections 354A, 354B, 354C IPC and Section 67A IT Act against respondent No. 1 beyond reasonable doubt.

3. What is the scope of interference by the Appellate Court in an appeal against acquittal.

Submissions Of Parties

Appellant / State

● Prosecution proved its case beyond reasonable doubt through consistent statements of the victim.

● Trial Court gave undue weightage to minor omissions and contradictions.

● Electronic evidence and physical acts clearly demonstrated commission of sexual harassment and outraging of modesty.

Respondent / State

● Inordinate delay of over 4 months in lodging FIR without explanation.

● Radiologist report proved victim was a major (16-18 years with 2-year error margin).

● Electronic evidence was not proved in accordance with law; no sexual harassment occurred and affairs were consensual.

● Scope of acquittal appeal is limited and plausible view taken by trial court should not be disturbed.

Court's Observations & Analysis

Re: Age of Victim

● School record Ex.-P/3C creator was not examined and basis of birth date entry was not produced.

● Ossification test report Ex.-P/14 estimated age between 16-18 years; applying 2-year margin of error on positive side per Supreme Court precedents (Jaya Mala v. Home Secretary), victim was major (over 18 years).

● Held: Finding of Trial Court that victim was major affirmed; POCSO Act provisions not applicable. (Paras 16-18)

Re: Offence under Section 354A(1)(i) IPC

● Evidence of a hostile witness is not erased in toto and reliable parts can be acted upon (Khujji v. State of M.P.; Rohtash Kumar v. State of Haryana).

● Victim PW-5 explicitly detailed that respondent No. 1 caught hold of her, gagged her mouth, lifted her kurti, and pressed her breasts.

● Positive suggestions put by defence counsel in cross-examination of PW-5 established presence and physical act, binding the accused (Balu Sudam Khalde v. State of Maharashtra).

● Physical contact involving explicit sexual overtures attracts Section 354A(1)(i) IPC.

● Held: Trial Court committed perversity in ignoring material evidence; conviction recorded under Section 354A(1)(i) IPC. (Paras 29-33)

Re: Offences under Sections 354B, 354C IPC & Section 67A IT Act

● Ingredients of disrobing under Section 354B and publication/transmission of private image under Section 354C were not established.

● Prosecution failed to fulfill requirements of proof of electronic records laid down in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal; chain of custody of Bluetooth transfer was doubtful.

● Held: Acquittal under Sections 354B, 354C IPC and Section 67A IT Act affirmed. (Paras 34-36)

Notable Observations

"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." (Para 30)

Decision & Directions

● Acquittal appeal allowed in part.

● Acquittal of respondent No. 1 under Section 354A IPC set aside; conviction recorded under Section 354A(1)(i) IPC.

● Respondent No. 1 sentenced to period of imprisonment already undergone (5 months and 30 days) and ordered to pay fine of Rs. 15,000 within three months.

● In default of fine payment, further undergo R.I. for one month.

● Fine amount upon deposit to be paid to the victim (PW-5) as compensation under Section 395 BNSS, 2023.

● Acquittal of respondent No. 1 for all other offences affirmed.