[Cites 10, Cited by 0]
Bombay High Court
Sanjay Hardas Bhagchandani vs State Of Maharashtra And Anr. on 19 December, 2025
2025:BHC-AS:56350
Shubhada S Kadam Criminal Appeal No.1174-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1174 of 2022
Sanjay Hardas Bhagchandani,
Age : 44 years,
Occupation : Coaching,
Residing at : Flat No.603, Prajapati Park,
Plot No.14/5, Sector 11, Koparkhairne,
Navi Mumbai.
Currently Lodged in Nashik Central Jail. ... Appellant/s
versus
1. The State of Maharashtra
(Through Koparkhairne Police Station,
Navi Mumbai.) Respondent/s
....
2. XYZ
Mr. Siddh Vidya along with Ms. Shalaka Karkar, Ms. Divya Maniar, Ms.
Mansi Sahani and Ms. Sandhya Tiwari i/b. Siddh Vidya & Associates,
Advocates for the Appellant.
Mr. Mayur S. Sonavane, APP for Respondent No.1-State.
Mr. Ganesh Shelar, Advocate Appointed for Respondent No.2.
CORAM : R. M. JOSHI, J.
RESERVED ON : 15th DECEMBER, 2025.
PRONOUNCED ON : 19th DECEMBER, 2025.
Judgment:
1. By the judgment and order dated 14th September 2022 passed
in Special (POCSO) Case No.562 of 2020, the appellant is convicted for
the offences punishable under Sections 376(2)(f)(n) and 506 of the Indian
Digitally
signed by
SHUBHADA Penal Code, 1860 (for short "the IPC") and Section 6 of the Protection of
SHUBHADA SHANKAR
SHANKAR KADAM
KADAM Date:
2025.12.19 Children Against Sexual Offences, 2012 ( for short "the POCSO Act") and
17:03:50
+0530
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sentenced to suffer rigorous imprisonment for 20 years and 2 years with
fine of Rs.25,000/- and 5000/- respectively. Being aggrieved by the said
judgment, the present appeal.
2. It is the case of the prosecution that on 7th October 2020, the
victim at the time of lodging of the report was about 18 years of age, she
claimed that in April 2019, she took admission in a tutorial at Vashi for
12th Standard Account subject. The accused used to teach accounts.
She claims herself to be a bright student and stood first in the class. This
fact was appreciated by the accused and the accused used to throw ice-
cream party as and when she received first rank in the examination. It is
further claimed by the victim that in October 2019, accused told her that
he has prepared special notes of accounts subject, which are meant only
for her and that he would give the same to her at his house at
Koparkhairne. When the victim told accused that she is required to attend
mathematics classes at 6.00 p.m, he told her that he would drop her at the
said place. She, therefore, went along with the accused in his vehicle to
his house. He took her to Room No.603 on the 6 th Floor of the said
building. The victim claims that he caught hold of her hand and hugged
her. She shouted and resisted to the advances made by the accused. He
further forcibly established sexual/physical relations with her and told her
not to disclose the incident to anyone. He also told her that he would give
good education to her. Thereafter,she was dropped by the accused to her
mathematics class. She did not inform about the said incident to anyone
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out of fear of defamation. In February 2020, she went to the tutorials to
attend the test of Accounts' subject. The accused then asked her to
accompany him to his residence and told her that he has made a video
which he would like to show her. On her refusal, he threatened to make
the video viral. She then went to the house of the accused in his car. The
accused established forcible physical relations with her and told her that
he would make the video viral, if she talks about the incident to anyone.
According to the victim, after February 2020, her classes came to an end
and, therefore, she stopped going to the class. In June 2020, the accused
called her and asked her to message him and call him, otherwise if she
does not do as told, the accused threatened her that he will make the
video viral. The accused started asking her to come to his house to meet
him. Due to such threats, she was under immense pressure. Since the
harassment of the accused intensified, on 6 th October 2020, she confided
with her mother about the incident, who in turn, told the same to the father
of the victim. As the parents gave courage to her, she lodged report
against the accused. The crime was registered by C.R. No.221 of 2020
with Koparkhairne Police Station. The investigation was carried out in the
said crime. The victim was sent for medical examination. Her statement
was recorded under Sections 161 and 164 of the Cr.P.C.. The statements
of the witnesses were recorded, panchanamas were drawn of the spot as
well as seizure of incriminating articles. On conclusion of investigation,
charge-sheet came to be filed before the competent Court.
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3. The charge was framed against the accused vide Exhibit-15.
He abjured the charge. The prosecution examined five witnesses to prove
the guilt of the accused which included victim PW1 (Exhibit-26), her
father-PW2 (Exhibit-37), Medical Officer - Dr.Anuja Bhobe (Exhibit-44),
student of class (Exhibit-44) and Investigating Officer-PI-
SutarPW5(Exhibit-51). Apart from the oral evidence, the prosecution has
also relied upon the documentary evidence which is specifically set out in
paragraph 11 of the impugned judgment. The defense examined wife of
the accused at Exhibit- 73 after denying the incriminating circumstances
put to the accused in statement under Section 313 of Cr.P.C..
4. The Trial Court found evidence led by the prosecution sufficient
to bring home guilt of the accused beyond reasonable doubt and hence
recorded conviction against him as stated hereinabove.
5. Learned counsel for the appellant/accused submits that there is
an inordinate delay in lodging FIR and the same has not been explained
satisfactorily. It is her contention that any unexplained delay would make
the Court to consider the allegations against the accused and scrutinize
the same with more rigor. It is her submission that there is nothing placed
on the record to show as to what prompted the informant to lodge report
against the accused in October 2020. It is her submission that from the
evidence on record, it can be seen that the parents of the victim went
through her mobile phone and found her conversation with the accused
and which led them to call upon the informant/victim to lodge report
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against him. It is submitted that the prosecution has placed reliance on
the testimony of victim as well as so called extrajudicial confession
recorded by the accused for proof of guilt. It is argued that evidence of
victim does not inspire confidence as she fails to satisfactorily explain the
delay in the lodging report so also her contention is unsupported by the
medical evidence. According to her, law on the point of the appreciation
of evidence of a victim of sexual assault is clear to say that in case the
testimony of the victim is free from doubt and inspires confidence, the
same can become the basis for conviction of the accused without
insisting for corroboration. It is her submission that in the facts of the case
and also having regard to the evidence led before the Trial Court, the
victim cannot be termed as a sterling witness in order to accept her
statement as gospel truth without seeking any corroboration thereto. It is
submitted that though the medical evidence indicates about hymen being
ruptured, the medical officer has categorically admitted that she will not be
in a position to state about rupturing of the hymen on account of the
sexual intercourse unless it is supported by FSL Report. It is argued that
FSL Report is not placed before the Trial Court and as such, it cannot be
held that the fact of the rupture of hymen can be connected with the
alleged intercourse committed by the accused with victim.
6. It is further argued that the statement of the victim with regard
to she being threatened of defamation by publication of video by the
accused is unsustainable for the reason that the father of the victim has
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gone through the laptop as well as mobile phone of the accused when he
along with his wife visited the residence of the accused and that nothing
could be found from the said gadgets. It is submitted that there is no
evidence to show that any video was prepared by the accused. It is thus
argued that the evidence of the prosecution falls short of bringing home
the guilt of the accused beyond reasonable doubt. To support her
submissions, she placed reliance on following judgments:
1. State (GNCT of Delhi) versus Vipin @ Lalla in Criminal Appeal
No.94 of 2025 dated 7th January 2025;;
2. Santosh Prasad @ Santosh Kumar versus The State of Bihar
(2020) 2 SCR 798;
3. Rai Sandeep @ Deepu versus State of NCT of Delhi in
Criminal Appeal No.2486 of 2009 with Hari Singh versus State
(NCT) of Delhi in Criminal Appeal No.2487 of 2009 dated 7 th
August 2012.
7. Learned APP and learned counsel for respondent No. 2
supported the impugned judgment of the conviction. Learned counsel for
respondent No. 2 /victim submits that the victim was admittedly minor at
the relevant time and hence the provisions of the POCSO Act are rightly
invoked against the accused. It is his further submission that the victim
has stuck to her earlier statements in her substantive evidence before the
Trial Court. It is submitted that a threat to a young girl of making her
videos viral was sufficient to pressurize her to succumb to the demands of
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the accused so also not to disclose the incident to anyone. It is submitted
that merely on the count of delay in lodging of the report, she cannot be
disbelieved. It is further argued that the act of the father of going to the
house of accused is a natural conduct and that any person would
definitely go to the perpetrator of the crime to question him about the acts
done by him with his daughter. It is submitted that the accused not only
sent message accepting his guilt but has also recorded a voice message
indicating that he committed sexual intercourse with his students. It is
argued on behalf of the learned prosecutor that in statement under
Section 313 of the Cr.P.C, the accused has accepted love relations so
also the defense witness i.e. the wife of the accused has also accepted
that at the time of occurrence of the incidents, the victim was aged about
13 years. It is his submission that the evidence of the victim is duly
corroborated by the medical evidence which indicates that the possibility
of the sexual assault is not ruled out. According to him, the accused has
failed to rebut the presumption as contemplated by Section 29 of the
POCSO Act.
8. There cannot be any dispute with regard to the proposition of
law sought to be canvassed on behalf of learned APP and learned
counsel for respondent No.2 that in case of the offences of sexual assault,
the reliable testimony of victim can become the basis of conviction of the
accused without seeking any further corroboration thereto. In this regard,
it would be fruitful to make reference to the judgment of the Honorable
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Supreme Court in case of Nirmal Premkumar and Anr. Versus State
Rep. By Inspector of Police in Criminal Appeal No. 1098 of 2024
dated 11th March 2024; wherein it is held that :
11. Law is well settled that generally speaking, oral testimony
may be classified into three categories, viz.: (i) wholly reliable;
(ii) wholly unreliable; (iii) neither wholly reliable nor wholly
unreliable. The first two category of cases may not pose serious
difficulty for the Court in arriving at its conclusion(s). However,
in the third category of cases, the Court has to be circumspect
and look for corroboration of any material particulars by reliable
testimony, direct or circumstantial, as a requirement of the rule
of prudence.
12. In Ganesan v. State (2020) 10 SCC 573, this Court held
that the sole testimony of the victim, if found reliable and
trustworthy, requires no corroboration and may be sufficient to
invite conviction of the accused.
13. This Court was tasked to adjudicate a matter involving gang
rape allegations under section 376(2)(g), I.P.C in Rai Sandeep
v. State (NCT of Delhi) (2012) 8 SCC 21. The Court found
totally conflicting versions of the prosecutrix, from what was
stated in the complaint and what was deposed before Court,
resulting in material inconsistencies. Reversing the conviction
and holding that the prosecutrix cannot be held to be a 'sterling
witness', the Court opined as under:
"22. In our considered opinion, the 'sterling witness' should
be of a very high quality and calibre 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 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
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the sequence of it. Such a version should have co-relation
with each and every one 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 such similar tests to be applied, can it 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 version to sieve
the other supporting materials for holding the offender
guilty of the charge alleged."
(underlining ours, for emphasis)
14. In Krishan Kumar Malik v. State of Haryana (2011) 7
SCC 130, this Court laid down that although the victim's solitary
evidence in matters related to sexual offences is generally
deemed sufficient to hold an accused guilty, the conviction
cannot be sustained if the prosecutrix's testimony is found
unreliable and insufficient due to identified flaws and lacunae. It
was held thus:
"31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of
the prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been projected
hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the
appellant guilty of the said offences.
32. Indeed there are several significant variations in
material facts in her Section 164 statement, Section
161 statement (CrPC), FIR and deposition in court.
Thus, it was necessary to get her evidence
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corroborated independently, which they could have
done either by examination of Ritu, her sister or Bimla
Devi, who were present in the house at the time of
her alleged abduction. The record shows that Bimla
Devi though cited as a witness was not examined and
later given up by the public prosecutor on the ground
that she has been won over by the appellant."
15. What flows from the aforesaid decisions is that in cases
where witnesses are neither wholly reliable nor wholly
unreliable, the Court should strive to find out the true genesis
of the incident. The Court can rely on the victim as a "sterling
witness" without further corroboration, but the quality and
credibility must be exceptionally high. The statement of the
prosecutrix ought to be consistent from the beginning to the
end (minor inconsistences excepted), from the initial
statement to the oral testimony, without creating any doubt
qua the prosecution's case. While a victim's testimony is
usually enough for sexual offence cases, an unreliable or
insufficient account from the prosecutrix, marked by identified
flaws and gaps, could make it difficult for a conviction to be
recorded.
Keeping in mind, the aforesaid law laid down by the
Honourable Supreme Court, the evidence of the present case deserves to
be scrutinized.
9. At the outset, it needs to be recorded that the prosecution has
proved that at the time of occurrence of the alleged incident, the victim
was minor. The defense also has not taken exception to the said fact. It is,
therefore, held that victim was a child as contemplated by Section 2(d) of
the POCSO Act at the relevant time. The victim in her testimony before
the Trial Court claims that she joined the concerned classes in the year
2019. It is her contention that the accused used to show special interest in
her for the reason that whenever she got first rank in the examination, he
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used to throw ice cream party. In this regard, in the cross-examination,
she accepts that accused used to give ice cream party even in case other
students get first rank in the test. It is thus clear that there is no substance
in the contention that accused was giving special treatment to the victim.
The victim claimed that accused assured her of giving special notes and
on that count, he took her to her to his house. It has, however, come in
evidence that the notes were already circulated to all the students and
there was nothing like special notes which were circulated by the
accused. If it was the case of the victim that special notes were given to
her, it was necessary for the prosecution to bring the same on record.
There is nothing on record to indicate so. In this regard, it would be
relevant to take note of testimony of PW4 who is a student of same
tutorial admits in her cross-examination that in the classes they were
getting periodical notes from the tuition teachers and no notes were given
separately and in case any additional notes were required to be given, the
same were provided in the classroom itself. In view of the said fact, it was
necessary for the prosecution to bring on record, the special notes given
by accused to victim, which were not circulated to other students. There
is, however, no evidence to indicate so. Thus, it cannot be said that there
is any evidence on record to hold that the victim was given any special
treatment by the accused.
10. In this backdrop, it is pertinent to note that the alleged incidents
have occurred in February 2020, whereas the report came to be lodged in
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October 2020. Thus there is a delay of around 8 months in lodging of the
report. The delay in lodging of the report in all cases will not become fatal
to the case of the prosecution and more particularly, in case of the offence
of sexual assault against a minor girl. However, at the same time, the
delay will be required to be explained by the prosecution. Only for the
reason that the offenses are against the minor girl, the fact of delay
cannot be ignored. It is, therefore, necessary to see as to what made the
victim to lodge report in October 2020.
11. The victim claims that after the occurrence of the incident and
after she completed her classes in February 2020, in June 2020, the
accused started to blackmail her by sending messages on phone and also
by making phone calls. Because of this , she was under stress and,
therefore, narrated the incident to her parents on 6th October 2020. In this
regard, it is pertinent to note that there is no evidence collected during the
investigation and placed before the Trial Court indicating that any
messages were sent by the accused to the victim or calls made in June
2020 or at any time thereafter or before.. It was not impossible for the
prosecution to bring the said evidence on record, however, the
prosecution has failed to place the same before the Trial Court. Adverse
Inference, therefore, needs to be drawn against the prosecution that the
said evidence was not supporting the case of the prosecution and hence it
was withheld from the Court.
12. This becomes relevant in the backdrop of the defence taken by
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the accused. DW1 i.e. wife of the accused states about the victim having
feelings towards the accused and the same was reflected from her
messages. It is claimed by her that since the said fact became known to
the parents of the victim, they came to the house of the accused
confronting him with the same. This witness claims that the father of the
victim went through the mobile phone as well as the laptop of the accused
and found nothing incriminating therein. It is her statement that the father
of the accused sent messages on various groups indicating that the
accused has confessed of having sexual relations with his students. Since
no one believed the said message, he pressurized the accused to record
a voice message and in order to avoid any action, at the instance of this
witness, he recorded the voice message. It would be relevant to consider
evidence of PW4, who is student of same tutorial. She candidly states
that inspite of the said message, she did not believe truth in it. Thus,
there is support to the evidence of defense witness about accused being
told to record voice message, since no one believed the text message.
12. There is further evidence on record in the form of admissions
given by the victim in her cross-examination stating that she shared
number of details of her family including the details about the ill health of
her father to the accused. She also admits to have given a greeting card
to the accused. She however claims that it was forcibly given at the
instance of the accused. In case there was threat given by the accused
to the victim, there was no reason for the victim to share the information
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and photographs etc about their foreign trip, so also the details about
hospitalization of her father during Covid 19 pandemic. After giving this
admission, she claimed that since the accused was threatening her, the
information was provided to him. This does not stand to the scrutiny of
the conduct of any prudent person.
13. Suffice it to say that there is no satisfactory explanation
provided by the prosecution/victim for lodging report belatedly after eight
months of the incident.
14. The testimony of the victim, therefore, does not inspire
confidence and that she cannot be termed as a sterling witness in order to
accept her version to convict the accused without seeking any
corroboration. It is sought to be contended on behalf of the prosecution
that there is evidence in the form of medical report indicating that the
hymen of the victim was ruptured and the findings are consistent with the
sexual intercourse of the victim. In this regard however, the cross-
examination of the Medical Officer PW3 Dr. Bhobe assumes importance.
She admits that unless and until FSL report is produced, it cannot be said
that the sexual intercourse was the only cause of irregular margins of the
edges of hymen. She also accepts that irregular margins can occur due to
masturbation. Admittedly, there is no FSL report on record which will
support the opinion of the Medical Officer. Thus the evidence led by the
prosecution in the form of medical evidence is not conclusive in nature
and, therefore, not sufficient to corroborate version of victim.
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15. The burden would always be on the prosecution to prove the
guilt of the accused beyond reasonable doubt. The prosecution lays much
stress upon the fact that the accused admitted the guilt and alleged
extrajudicial confession of accused is sought to be relied upon. There is
no dispute about the fact that the said alleged confession i.e. a text
message and voice message was purportedly given by the accused in the
presence of the father of the victim. The circumstances in which the said
messages are made viral, do not inspire confidence of the court to hold
that it is a voluntary admission of guilt by the accused. It becomes more
unacceptable in the fact that he is said to have sent the said message on
the group of the school of his son. It is practically impossible that a father
would send such message on the group of the school of his son. Thus
there is reason to believe that the said message would have been sent
by the father of the victim from the mobile phone of the accused. There is
no dispute made by the father of the victim about he having the mobile
phone as well as laptop of the accused at his house. The burden on
accused is only to create doubt about the case of prosecution and unlike
prosecution, he is not required to prove his case for rebuttal of
presumption beyond doubt. The evidence of extrajudicial confession is
otherwise also a weak piece of evidence and in the facts of the case, it
would be totally unsafe to rely upon the same in order to convict the
accused.
16. The burden is always to be upon the prosecution to prove the
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guilt of the accused beyond reasonable doubt even in case of offences
under POCSO Act. Here in this case as discussed above, the evidence of
the victim does not inspire confidence in view of the fact that there is
delay in lodging of the report with no satisfactory explanation for the
same. On the other hand, by way of cross examination, so also by
examining defense witnesses, the accused was able to rebut the
presumption under Section 29 of the POCSO Act. Consequently, the
judgment and order of conviction cannot sustain for want of proof of the
guilt of the accused beyond doubt.
17. In view of above discussion, the following order :
ORDER
1. The appeal is allowed.
2. The judgment and order dated 14th September 2022 passed
in Spl.(POCSO) Case No.562 of 2020 by the Additional
Sessions Judge, Thane-6, is quashed and set-aside.
3. The appellant stands acquitted of all the charges.
4. The bail bonds of the appellant stands cancelled.
5. Fine, if any paid, be refunded to the appellant.
6. Record and proceedings be returned to the learned Trial
Court.
The appeal stands disposed of.
(R. M. JOSHI, J.)
