Considering the inconsistencies and improvements in the minor victim's testimony, the conduct of her father and the absence of corroborative medical evidence, a Bench of Justice Siddhartha Varma and Justice Jai Krishna Upadhyay set aside a 2019 judgment of the trial Court that had sentenced the accused to life imprisonment.

"In the absence of definitive corroborative medical evidence, and viewing the improvements in the child witness's testimony and other circumstances of the case including the statements of father of the victim, it becomes highly unsafe to sustain the conviction of the accusedappellant", the bench observed in its Judgment.

Case in brief

Briefly put, the Court noted that the victim's father (PW-2/Informant) initially lodged a Non-Cognizable Report (NCR) in May 2017, alleging only that the appellant pressed the victim's throat, causing her to fall unconscious.

This led to the registration of the case under Section 323 of the IPC, which was later converted into a case of molestation under Section 354B of the IPC by the father of the victim (informant).

Subsequently, during the investigation, the severe offence of rape under Section 376 of the IPC was added to the matter based on the statement of the prosecutrix recorded under Section 164 of the CrPC.

Following the completion of the investigation, a charge sheet was submitted against the accused, Kuntesh, under Sections 323 and 376 of the IPC and Sections 3 and 4 of the POCSO Act.

He was convicted by the trial court in January 2019. Challenging this judgment and sentence, he moved the High Court. Crucially, the accused remained in custody throughout the trial and the pendency of his appeal.

It was his case before the HC that he had been falsely implicated in the present case due to an old enmity.

High Court's observations

Considering the appeal as well as the evidence on record, the High Court found glaring infirmities which "severely vitiated" the prosecution's narrative.

The bench noted a glaring issue with the prosecution's case: even though the victim accompanied her father to the police station to file the initial report about the incident, the complaint was “conspicuously silent on any sexual assault”.

While the Court observed that a mere delay in reporting sexual offences is not necessarily fatal due to the inherent societal stigma, it found the factual matrix of this case to be entirely different.

Crucially, the Court pointed out that even during his deposition before the Trial Court years later, the father/informant completely confined his testimony to his original written complaint of physical assault, and he never made any allegation regarding the commission of rape.

The father explicitly admitted that he had only narrated the specific incident to the police exactly as his daughter had told him.

The Court observed that this material omission at the earliest opportunity “casts a heavy shadow of doubt on the genesis of the prosecution's case”.

Furthermore, the Court also found inconsistencies in the testimony of the 8-year-old victim.

The division bench noted that in her initial statement to the police under Section 161 of the CrPC, the minor had merely alleged that the accused had done "gandi baat" with her, without alleging any physical or sexual act.

However, the allegation of rape was introduced as a gross improvement for the very first time, much later, when her statement was recorded under Section 164 CrPC before the Magistrate.

Relying on the Supreme Court's judgment in Panchhi and Ors. v. State of UP, the High Court emphasized that the evidence of a child witness “must be evaluated more carefully and with greater circumspection because a child is susceptible to being swayed by what others tell him and thus a child witness is an easy prey to tutoring”.

Considering the improvements made by her in her statements, the Court opined that it was highly doubtful the victim could be elevated to the status of a "sterling witness" whose version requires no corroboration

In this regard, the Bench referred to the recent Himachal Pradesh High Court's judgment in Urmila Devi vs State of HP to note that when a prosecutrix makes "improvements in her statements step by step, it becomes difficult to ascertain that which of her version is trustworthy and reliable."

The Court also took into account the absence of definitive corroborative medical evidence in the present case. It remarked thus:'

"…medical findings on record fail to conclusively establish or medically corroborate the allegations of sexual assault as narrated by the victim. No internal and external injuries, intact hymen and complete absence of seminal fluids when considered with other circumstances of the case cast a shadow of doubt on the case of the prosecution".

Against this backdrop, the High Court observed that the surrounding circumstances of the case, combined with the victim's shifting statements and her father's conduct, made the prosecution's narrative highly doubtful.

Stressing that when two views are possible on the evidence adduced in a case, the view favourable to the accused must be adopted, the Bench acquitted the accused, granting him the benefit of the doubt and allowing his appeal.

Consequently, the accused (Kuntesh), who had remained in jail for 9 years since his arrest in May 2017 after failing to secure bail, was directed to be released from custody forthwith.

Advocate Kamlesh Kumar Tripathi appeared for the appellant

Case title - Kuntesh vs State of UP 2026 LiveLaw (AB) 328

Case Citation: 2026 LiveLaw (AB) 328

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