Patna High Court
Dheeraj SahniversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The conviction under Sections 376 and 511 IPC cannot be sustained and is set aside.
Summary
The appellant Dheeraj Sahni appealed a conviction for rape and attempt to commit rape under IPC sections 376 and 511, arguing that the trial court relied solely on the testimony of the mother (PW‑7) without independent corroboration. The prosecution’s case rested on the informant’s account, while the child victim denied the assault, failed to identify the accused, and no medical injuries were found. The High Court examined contradictions in the informant’s version, the absence of a Section 164 statement, and the lack of corroborative medical evidence, concluding that the evidence did not meet the standard of proof beyond reasonable doubt. Citing Supreme Court precedents on the reliability of victim testimony, the necessity of corroboration, and the benefit of doubt, the Court held the conviction unsustainable. Consequently, the conviction and sentence were set aside and the appeal was allowed.
Issues considered
- The reliability of the sole testimony of the informant (PW‑7) in the absence of corroboration
- The impact of the victim’s hostile testimony and the non‑recording of a Section 164 statement
- Whether the medical evidence corroborates the alleged rape
- Whether contradictions in the informant’s evidence render it unreliable
- Whether the benefit of doubt applies to overturn the conviction
Legislation cited
- Criminal Procedure Code — s. 164, 313, 374(2)
- Indian Penal Code — s. 375, 376, 511
Subjects
- rape
- child sexual abuse
- evidentiary reliability
- hostile witness
- medical evidence
- benefit of doubt
- conviction set aside
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.167 of 2014
Arising Out of PS. Case No.-329 Year-2012 Thana- KHAGARIA District- Khagaria
======================================================
Dheeraj Sahni S/O Dinesh Sahni Resident of Village South Bhadas, P.S.
Muffasil, District Khagaria.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rudra Pratap Singh, Amicus Curiae. .
For the Respondent/s : Mr. Binod Bihari Singh, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
C.A.V. JUDGMENT
Date : 07-05-2026
Heard Mr. Rudra Pratap Singh, learned Amicus
Curiae and Mr. Binod Bihari Singh, learned APP for the State.
2. The appellant has preferred the present appeal
under Section 374(2) of the Code of Criminal Procedure
challenging the judgment of conviction dated 11.02.2014 and
order of sentence dated 14.02.2014 passed by the learned
Additional District and Sessions Judge-I, Khagaria in Sessions
Case No. 342/2012, arising out of Khagaria (Muffasil) P.S.
Case No. 329 of 2012, whereby and whereunder, the appellant
has been convicted for the offence punishable under Section
376/511 of the Indian Penal Code and has been sentenced to
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undergo rigorous imprisonment for five years and Rs. 5000/-
fine and in default of payment of fine, to undergo rigorous
imprisonment for three months and the amount of fine shall be
paid to the mother of the victim.
BRIEF FACTS OF THE CASE
3. The prosecution story, in brief, is that the informant
Pinki Devi, wife of Hare Ram Sahni, submitted a written report
before the Superintendent of Police, Khagaria, on 30.06.2012,
wherein she categorically alleged that on 29.06.2012 at about
1:00 p.m., while her daughters, namely Deepika Kumari, aged
about 5 years, and Daizy Kumari, aged about 4 years, were
playing in front of the house of Dinesh Sahni. The appellant
who is son of Dinesh Sahni, allegedly lured the victim Deepika
Kumari on the pretext of giving money and then took the victim
along with her younger sister Daizy Kumari inside the room and
committed rape upon her. On hearing the cry of her daughter,
the informant rushed to the house and allegedly witnessed the
accused through a window committing rape upon the victim.
However, upon raising an alarm, the accused fled away through
the roof. It is further alleged that the informant found her
daughter lying naked, with dust on her body. Thereafter, the
informant took her daughter (the victim). Subsequently, she
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went to the Police Station, where she was advised to approach
the Sarpanch for redressal of her grievance. She approached the
Sarpanch of the Gram Katchahari who did not meet her. On the
basis of the written report filed by the informant before the
Superintendent of Police, Khagaria, Khagaria (Mufassil) P.S.
Case No. 329 of 2012 was lodged on 30.06.2012 under Section
376 of the I.P.C. against the sole accused, appellant hereof. After
institution of the F.I.R., the Investigating Officer conducted
investigation and found the case to be true under Section 376 of
the I.P.C., and accordingly submitted charge-sheet before the
learned court below. Thereafter, the learned Magistrate, upon
perusal of the materials on record, took cognizance of the
alleged offence on 10.09.2012, and the case was subsequently
committed to the Court of Sessions on 01.11.2012. Pursuant to
the conclusion of the trial, impugned judgment was passed.
ARGUMENT ON BEHALF OF AMICUS CURIAE
4. Learned Amicus Curiae, submitted that the
testimony of Prosecution Witness No. 7, the informant, is not
reliable and does not inspire confidence, so as, to sustain the
conviction in the absence of independent corroboration. It was
contended that the entire prosecution case rests upon her sole
testimony and single identification. The informant is an
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interested witness, being the chachi of the appellant and they
reside in the same house with a common courtyard giving rise to
the possibility of prior animosity or ulterior motive, which the
prosecution has failed to dispel. Learned counsel drew the
attention of this Court to paragraph 22 of the case diary and
submitted that, as per the description therein, the alleged place
of occurrence had no door or window; however, PW-7 in her
examination-in-chief deposed that the door was closed from
inside and that she witnessed the occurrence by peeping through
a window and thereafter instructed her younger daughter aged
about 4 years to open the door. This material contradiction, it
was urged, strikes at the root of the prosecution case and renders
her version inherently unreliable.
5. It was further submitted that the testimony of
PW-7 suffers from serious improbabilities, inasmuch as her
claim of having witnessed the occurrence through a window
appears doubtful. It is contended that, instead of raising an
alarm and calling other family members, the informant allegedly
instructed her minor daughter to open the door, who was unable
to reach the bolt to unlock it. Moreover, the fact that the
Investigating Officer did not find any such door at the place of
occurrence renders the entire version unnatural and improbable.
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6. Learned counsel further submitted that the
condition of the victim, as described by PW-7, finds no
corroboration from the medical evidence, which assumes
significant importance in a case of this nature. It was also urged
that the statement of the victim under Section 164 Cr.P.C. was
not recorded, and, more importantly, the victim child, in her
deposition before the learned trial court, did not support the
prosecution case and categorically stated that no wrongful act
had been committed against her. The victim further failed to
identify the appellant, who is admittedly her own cousin brother,
thereby creating a serious dent in the prosecution case.
7. In view of the aforesaid material contradictions,
inherent improbabilities, absence of medical corroboration, and
the failure of the victim to support the prosecution case, learned
counsel submitted that the testimony of PW-7 cannot be said to
be of sterling quality so as to form the sole basis of conviction.
It was thus urged that the prosecution has failed to establish the
charge beyond reasonable doubt and the appellants are entitled
to the benefit of doubt.
ARGUMENT ON BEHALF OF THE STATE
8. Per Contra, learned APP appearing on behalf of the
State while opposing the appeal submitted that the learned
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District court, after considering all the evidences, both oral and
documentary, adduced during the course of trial, has committed
no error, either of fact or of law, in recording the conviction of
the appellant on the basis of cogent and reliable material on
record, warranting no interference by this Court.
ANALYSIS AND CONCLUSION
9. Heard the parties.
10. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
PROVISION OF LAW
11. Before I proceed to analyze the evidences in support
of the allegation both oral i.e. direct evidence what the witnesses
personally said, heard or perceived and the documentary
evidences, both primary and secondary evidences which needs
consideration to decide the appeal, I find it gainful to reproduce
the provisions of Sections 375, 376 and 511 of the Indian Penal
Code, which are as under:-
375. Rape.— A man is said to commit
"rape" if he—(a) penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a woman
or makes her to do so with him or any other person;
or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so
with him or any other person; or
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(c) manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or makes
her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of
a woman or makes her to do so with him or any
other person,under the circumstances falling under
any of the following seven descriptions:
(First.)— Against her will.
(Secondly.) — Without her consent.
(Thirdly.) — With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt,
(Fourthly.) — With her consent, when the man
knows that he is not her husband and that her
consent is given because she believes that he is
another man to whom she is or believes herself to be
lawfully married.
(Fifthly.) — With her consent when, at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of that to
which she gives consent.
(Sixthly.) — With or without her consent, when she
is under eighteen years of age.
(Seventhly.) — When she is unable to communicate
consent.
Explanation 1.— For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2.— Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting
to the sexual activity.
Exception 1.— A medical procedure or intervention
shall not constitute rape.
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Exception 2.— Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under
fifteen years of age, is not rape.”
376. Punishment for rape.— (1)Whoever,
except in the cases provided for in sub-section (2),
commits rape, shall be punished with rigorous
imprisonment of either description for a term which
[shall not be less than ten years, but which may
extend to imprisonment for life, and shall also be
liable to fine]
511. Punishment for attempting to commit
offences punishable with imprisonment for life or
other imprisonment.—Whoever attempts to commit
an offence punishable by this Code with
imprisonment for life or imprisonment, or to cause
such an offence to be committed, and in such
attempt does any act towards the commission of the
offence, shall, where no express provision is made
by this Code for the punishment of such attempt, be
punished with imprisonment of any description
provided for the offence, for a term which may
extend to one-half of the imprisonment for life or, as
the case may be, one-half of the longest term of
imprisonment provided for that offence, or with such
fine as is provided for the offence, or with both.
Illustrations
(a) A makes an attempt to steal some jewels by
breaking open a box, and finds after so opening the
box, that there is no jewel in it. He has done an act
towards the commission of theft, and therefore is
guilty under this section.
(b) A makes an attempt to pick the pocket of Z by
thrusting his hand into Z’s pocket. A fails in the
attempt in consequence of Z’s having nothing in his
pocket. A is guilty under this section.”
STATEMENT RECORDED UNDER SECTION
164 CR.P.C. AND ITS RETRACTION DURING
THE COURSE OF TRIAL
12. The law in this regard is well settled by the
Apex Court in the case of Vijaya Singh & Anr. v State of
Uttarakhand reported in 2024 INSC 905, that the statement
under Section 164 Cr.P.C. can not be discarded, which finds
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reference in Paragraph No.31, which is reproduced inter alia
hereinafter :
“31. Having said so, we deem it fit to observe that a
statement under Section 164 CrPC cannot be discarded
at the drop of a hat and on a mere statement of the
witness that it was not recorded correctly. For, a judicial
satisfaction of the Magistrate, to the effect that the
statement being recorded is the correct version of the
facts stated by the witness, forms part of every such
statement and a higher burden must be placed upon the
witness to retract from the same. To permit retraction by a
witness from a signed statement recorded before the
Magistrate on flimsy grounds or on mere assertions
would effectively negate the difference between a
statement recorded by the police officer and that recorded
by the Judicial Magistrate. In the present matter, there is
no reasonable ground to reject the statements recorded
under Section 164 CrPC and reliance has correctly been
placed upon the said statements by the courts below.”
13. In the case of State of Rajasthan v. Om
Prakash reported in (2002) 7 SCC 745 the Apex Court sounded
a warning against offences of sexual nature against children, in
the following terms in Paragraph no.19, which inter alia is
reproduced as under:
“19. Child rape cases are cases of
perverse lust for sex where even innocent children
are not spared in pursuit of sexual pleasure. There
cannot be anything more obscene than this. It is a
crime against humanity. Many such cases are not
even brought to light because of the social stigma
attached thereto. According to some surveys, there
has been a steep rise in child rape cases. Children
need special care and protection. In such cases,
responsibility on the shoulders of the courts is more
onerous so as to provide proper legal protection to
these children. Their physical and mental immobility
call for such protection. Children are the natural
resource of our country. They are the country's
future. Hope of tomorrow rests on them. In our
country, a girl child is in a very vulnerable position
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and one of the modes of her exploitation is rape
besides other modes of sexual abuse. These factors
point towards a different approach required to be
adopted…”
14. In case of Pradeep v. State of Haryana
reported in (2023) SCC OnLine SC 777, it was held that the
role of the trial Judge, when a case involves a child witness,
becomes heightened. The Apex Court held as under :
“10. Before recording evidence of a
minor, it is the duty of a Judicial Officer to ask
preliminary questions to him with a view to
ascertain whether the minor can understand the
questions put to him and is in a position to give
rational answers. The Judge must be satisfied that
the minor is able to understand the questions and
respond to them and understands the importance of
speaking the truth. Therefore, the role of the Judge
who records the evidence is very crucial. He has to
make a proper preliminary examination of the minor
by putting appropriate questions to ascertain
whether the minor is capable of understanding the
questions put to him and is able to give rational
answers. It is advisable to record the preliminary
questions and answers so that the Appellate Court
can go into the correctness of the opinion of the
Trial Court.”
15. In case of Hemudan Nanbha Gadhvi v. State
of Gujarat, reported in, (2019) 17 SCC 523, the Apex Court
held that a nine year old prosecutrix turning hostile would not
be fatal blow to the prosecution case when other evidence can
establish the guilt of the accused.
16. In case of Ganesan v. State, reported in, (2020)
10 SCC 573, held that the sole testimony of the victim, if found
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reliable and trustworthy, requires no corroboration and may be
sufficient to invite conviction of the accused also the reliance
has correctly been placed upon the said statements by the courts
below, the Court observed.
17. During the trial, the prosecution has examined
altogether nine witnesses, namely:
1) PW-1 Leela Devi ( Co - Villager)
2) PW-2 Mahesh Tanti, ( Co - Villager)
3) PW-3 Dilip Kumar Tanti ( Co - Villager)
4) PW-4 Hare Ram Sahni, father of the victim
5) PW-5 Deepika Kumari (victim)
6) PW-6 Dr. Manju Kumari (Doctor)
7) PW-7 Pinki Devi (informant)
8) PW-8 Rajpati Devi ( Co – Villager)
9) PW-9 Dasrath Yadav ( Co – Villager)
18. The prosecution has also relied upon following
documents exhibited during the course of trial:
(i) Exhibit- 2- Medical Report
(ii) Exhibit-2/1- Pathology Report
19. On the basis of materials surfaced during the
trial, the appellant/accused Upon a meticulous examination of
the record, it appears that the PW-1, PW-2 and PW-3 turned
hostile and the evidence of other prosecution witnesses (PWs)
are summarized as follows:
(I) P.W. 4 - Hare Ram Sahni, the father of the
victim, establishes that upon hearing an alarm (halla), he
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proceeded to the appellant's door where he observed his
daughter in a nude state. He admitted in his cross-examination
that the appellant is his cousin-nephew and that they share the
same courtyard. Crucially, he conceded that no physical injuries
were found on the victim's body and clarified that his
understanding of the alleged assault was based entirely on the
account provided by his wife.
(II) P.W. 5, Deepika Kumari, the victim, stated that
she is aged about five years, but notably turned hostile to the
prosecution's case. In her testimony before the court, she
categorically denied the allegations set forth by her mother and
stated that no rape had been committed upon her. Furthermore,
she failed to identify the appellant.
(III) P.W. 6, Dr. Manju Kumari, - She deposed that
she conducted the physical examination of the victim. She did
not find any external injury on the victim’s body. She confirmed
that there was no medical sign or traumatic indicator of rape
found in the private parts of the victim.
(IV) P.W. 7, Pinki Devi, the informant and mother of
the victim, remained consistent with her initial version of the
incident as alleged in the F.I.R. She maintained in her testimony
that she was the sole eyewitness to the occurrence. However, it
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was noted that she did not disclose the existence of any land
dispute between her family and the accused during her
deposition.
(V) P.W. 8, Rajpati Devi, - She serves as hearsay
evidence regarding the immediate aftermath of the incident. She
stated that she rushed to the spot upon hearing the cries of P.W.
7 and was informed by the informant at the scene that a rape had
been committed upon the child.
(VI) P.W. 9, Dashrath Yadav, testified as a formal
witness. While he successfully proved his signature on the
F.I.R., he did not provide any substantive evidence regarding the
commission of the alleged offense or the involvement of the
appellant.
20. On the basis of materials surfaced during the
trial, the appellant/accused was examined under Section 313 of
the CrPC by putting incriminating circumstances/evidences
surfaced against him, which he denied and showed his complete
innocence.
21. The record reveals that PW-1, PW-2 and PW-
3 ,were declared hostile during the trial as they did not support
the prosecution case on material particulars, and nothing
substantive transpired from their testimonies which could be
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said to corroborate or lend assurance to the version of the other
prosecution witnesses. Their evidence does not advance the
prosecution case with regard to the allegations of dowry
demand, cruelty, or the alleged disappearance of the deceased.
Therefore, the testimonies of these witnesses are not relevant
qua establishing the guilt of the accused/appellants.
22. On a careful perusal of the evidence, facts, and
law, it emerges that the prosecution case suffers from serious
infirmities and lacks the degree of proof required to sustain
conviction. P.Ws. 1, 2, and 3 have admittedly turned hostile and
have not supported the prosecution case in any manner. P.W. 4,
the father of the victim, is not an eyewitness and has clearly
deposed that his knowledge regarding the alleged occurrence is
based solely on what was narrated to him by his wife (P.W. 7);
he has further admitted that no injury was found on the body of
the victim and that the parties are closely related, residing in the
same premises with a common courtyard. P.W. 5, the victim
herself, who is the most material witness, has turned hostile and
categorically denied the allegation of rape and has even failed to
identify the appellant in Court, thereby striking at the very root
of the prosecution case. The medical evidence, as deposed by
P.W. 6, does not support the prosecution version, as no external
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or internal injury or any sign suggestive of sexual assault was
found on the victim. P.W. 8 is merely a hearsay witness, having
reached the place of occurrence after the alleged incident and
having derived knowledge only from the informant, while P.W.
9 is a formal witness who has only proved the formal aspects of
the case. Thus, the entire prosecution case essentially rests upon
the sole testimony of P.W. 7, the informant, whose version, as
discussed, suffers from material contradictions, inherent
improbabilities, and lack of corroboration from both ocular and
medical evidence. In such circumstances, where the star witness
(victim) has not supported the case, the medical evidence does
not corroborate the allegations, and the independent witnesses
have turned hostile, it would be unsafe to base the conviction
solely on the testimony of P.W. 7.
23. In the present case, the most crucial aspect,
namely, the statement of the victim, does not advance the
prosecution case, rather, it creates a serious dent in it. It is an
admitted position on record that the statement of the victim
under Section 164 Cr.P.C. was not recorded at all, thereby
depriving the prosecution of a vital piece of substantive
corroborative evidence ordinarily relied upon in cases of this
nature. Further, when the victim herself entered the witness box
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as P.W. 5 before the learned trial court, she did not support the
prosecution version and categorically denied that any such
occurrence had taken place. She also failed to identify the
appellant, who is admittedly her close relative, thereby
rendering the prosecution story highly doubtful. In the absence
of a statement under Section 164 Cr.P.C., coupled with the
victim turning hostile in court, the evidentiary foundation of the
prosecution case stands considerably weakened, and no reliance
can safely be placed on the uncorroborated testimony of the
informant (P.W. 7) to sustain the conviction.
24. The primary challenge in the present appeal
lies in the fact that the material prosecution witnesses, including
the victim (P.W. 5) and other independent witnesses, have not
supported the prosecution case and have been declared hostile
during trial. While it is a settled principle of law that the
testimony of a hostile witness is not to be discarded in total and
that the Court may rely upon such portions of the evidence
which find corroboration from other reliable material on record,
the said principle does not aid the prosecution in the facts of the
present case. Significantly, the statement of the victim under
Section 164 Cr.P.C., which could have lent some degree of
assurance to the prosecution version, was admittedly not
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recorded. In such a situation, there remains no prior consistent
statement of the victim before a judicial authority which could
be used even for the limited purpose of corroboration. On the
contrary, the victim, in her deposition before the learned trial
court, has categorically denied the occurrence and has not
supported the allegations levelled against the appellant. In the
absence of any substantive or corroborative material, and
particularly when the star witness has resiled from the
prosecution case, the evidentiary foundation becomes too fragile
to sustain conviction.
25. Further, it is evident from the medical
evidence on record that the same does not provide any
unimpeachable scientific support to the prosecution case so as to
bridge the gaps created by the hostility of the witnesses. On the
contrary, P.W. 6, the doctor who examined the victim, has
categorically deposed that “no external injury was found on the
body of the victim and there were no signs or indicators
suggestive of rape on her private parts.” The medical findings,
thus, do not disclose any evidence of recent sexual assault or
penetration. In such circumstances, where the medical evidence
fails to corroborate the ocular version and does not indicate any
genital injury or trauma, the evidentiary chain stands seriously
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weakened. In absence of any supportive medical findings,
coupled with the victim turning hostile and denying the
occurrence, it cannot be said that the prosecution has been able
to establish its case through reliable scientific or medical
evidence.
26. In the case of Sadashiv Ramrao Hadbe v.
State of Maharashtra, reported in (2006) 10 SCC 92, the
Hon’ble Supreme Court held that when the version of the
prosecutrix is not of sterling quality and is inconsistent with the
medical evidence, and when the surrounding circumstances
render the prosecution story doubtful, the accused is entitled to
the benefit of doubt. The Court further held that conviction
cannot be sustained where the prosecution has failed to prove its
case beyond reasonable doubt.
27. Applying the aforesaid settled principles of law
to the facts of the present case, and bearing in mind that material
contradictions between the version of the informant as set out in
the F.I.R. and her deposition before the Court render her
testimony unreliable, this Court finds that the prosecution case
does not inspire confidence. In the present matter, not only has
the victim failed to support the allegations during trial and even
failed to identify the appellant, but the sole testimony of the
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informant (P.W. 7) also suffers from material inconsistencies
and inherent improbabilities. Further, the medical evidence, as
deposed by the doctor (P.W. 6), clearly indicates absence of any
injury or sign suggestive of sexual assault and does not
corroborate the prosecution version. In such circumstances,
where the ocular testimony is inconsistent and stands
uncorroborated by medical evidence, the prosecution has failed
to establish the charge beyond reasonable doubt. Consequently,
the appellant is entitled to the benefit of doubt and the
conviction cannot be sustained.
28. Accordingly, this Court finds that the impugned
judgment of conviction dated 11.02.2014 and order of sentence
dated 14.02.2014 passed by the learned Additional District and
Sessions Judge-I, Khagaria in Sessions Case No. 342/2012,
arising out of Khagaria (Muffasil) P.S. Case No. 329 of 2012,
whereby, the appellant has been convicted under Section
376/511 of the Indian Penal Code, is hereby set aside.
29. Accordingly, the present appeal stands allowed.
30. The Patna High Court, Legal Services
Committee is, hereby, directed to pay a sum of Rs. 10,000/-
(Rupees Ten Thousand) to Mr. Rudra Pratap Singh, learned
Amicus Curiae, as consolidated fee, for rendering his valuable
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professional service for disposal of the present appeal.
31. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR
CAV DATE 24.04.2026
Uploading Date 07.05.2026
Transmission Date 07.05.2026
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