Patna High Court
Mahtab AliversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The conviction under Section 376 IPC is set aside as the prosecution failed to prove the charge beyond reasonable doubt.
Summary
The appellant, Mahtab Ali, was convicted by a Sessions Court for rape under Section 376 of the IPC and sentenced to seven years' rigorous imprisonment. On appeal, the High Court examined the prosecution's evidence, noting a significant delay in filing the complaint, inconsistencies in witness testimonies regarding a Panchayat meeting, and the prosecution's failure to produce DNA test results to establish paternity of the victim's child. The victim's age discrepancy and the vague description of the alleged rape further undermined credibility. Although the appellant admitted a matrimonial relationship with the victim, the Court held that this alone did not prove the rape charge. Consequently, the Court found that the prosecution had not proved the offence beyond reasonable doubt and set aside the conviction and sentence, cancelling the appellant's bail bonds and discharging sureties.
Issues considered
- Whether the prosecution proved the offence of rape under Section 376 IPC beyond reasonable doubt given the delay in filing the complaint, contradictory witness statements, and lack of DNA evidence.
- Whether the appellant's admission of a matrimonial relationship affects the determination of the rape charge.
- Whether the conviction and sentence under Section 376 IPC should be upheld or set aside.
Legislation cited
- Indian Penal Code — s. 120B, 376, 420, 493
Subjects
- rape
- Section 376 IPC
- conviction overturned
- DNA evidence
- delay in filing complaint
- Panchayat
- minor victim
- appeal allowed
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.175 of 2014
Arising Out of PS. Case No.-152 Year-2008 Thana- MANIHARI District- Katihar
======================================================
Mahtab Ali Son of Md. Akbal, Resident of Village- Soharadangi, Police
Station- Manjhari, District- Katihar
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms. Nazia Shabah, Amicus Curiae
For the State : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 19-02-2026
No one appears on behalf of the appellant.
2. On the last occasion, i.e., 18.02.2026, when this
appeal was taken up for final hearing, no one appeared on behalf
of the appellant.
3. Considering this aspect, Ms. Nazia Shabah (AUIN
No. 103824), learned Advocate present in the courtroom, is
appointed to assist this Court as Amicus Curiae in this appeal.
4. After some time, the matter is taken up again. Ms.
Nazia Shabah, learned Amicus Curiae, and Ms. Anita Kumari
Singh, learned Additional Public Prosecutor for the State, are
heard at length.
5. The instant criminal appeal has been preferred by the
appellant, Mahtab Ali, against the judgment of conviction dated
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22.02.2014 and the order of sentence dated 26.02.2014 passed in
Sessions Trial (S.T.) No. 470 of 2010 by the Court of the learned
Adhoc Additional Sessions Judge- 1st, Katihar, whereby and
whereunder the appellant has been convicted of the offence under
Section 376 of the Indian Penal Code (in short, ‘IPC’) and
sentenced to undergo rigorous imprisonment for seven years along
with a fine of Rs. 5,000/-. In default of payment of fine, he has
been directed to undergo simple imprisonment for an additional
period of two months.
Prosecution Story:-
6. As per prosecution, the prosecutrix was a minor girl
aged about 16-17 years at the time of occurrence. The house of the
prosecutrix and the house of the accused are adjacent to each other,
separated only by a small boundary(tati). About six and half
months prior to the filing of the case, when the prosecutrix had
gone to the bamboo grove (Bansbari) of accused persons situated
behind her house to attend the call of nature, the accused No. 1
(the appellant) forcibly committed rape with her without her
consent. When she attempted to raise her alarm, the accused
no.1(appellant) threatened to kill her, if she disclosed the incident.
Despite her resistance and attempt to save her modesty, she could
not prevent that act of the appellant. After the occurrence, the
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prosecutrix wept and expressed her concern that she was an
unmarried girl and questioned the appellant who would marry her
then the accused no.1 (appellant) assured her that he would marry
her and asked her not to worry. On the assurance of marriage, the
accused no. 1 (appellant) continued to establish sexual relations
with her on several occasions. As per prosecution, the prosecutrix,
being a minor and believing the promise of marriage to be true,
submitted herself to such intercourse under that belief. As a result
of the repeated sexual intercourse, the prosecutrix became
pregnant and at present (at the time of filing of complaint) her
pregnancy was about six months. Upon knowing about her
pregnancy, she informed the accused no. 1 (appellant), who again
assured her that he would marry her soon. However, when the
pregnancy reached about three months, the accused persons started
pressurizing her to abort the pregnancy, promising that marriage
would be solemnized after the abortion. The prosecutrix and her
guardians refused to terminate the pregnancy, whereupon the
accused persons declined to perform the marriage. Subsequently,
the father of the prosecutrix convened a village Panchayati
wherein several villagers were present. In the said Panchayati, the
accused no. 1 (appellant) admitted his guilt and agreed to marry
the prosecutrix. A date for marriage was fixed on 2-06- 2008.
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However, on the said date, the marriage was not solemnized.
When the father of the prosecutrix and others approached the
accused persons regarding the same, the accused persons flatly
refused to solemnize the marriage, stating that their earlier
assurance was merely a tactic to gain time. Thereafter, the
prosecutrix along with her father approached the police station to
lodge an FIR, but as the Officer-in-Charge was absent and they
were advised to file a complaint before the court. Hence, this
complaint case was filed.
7. On the basis of the complaint petition filed by the
victim herself, Complaint Case No. 1924/2008 came to be
registered. Subsequently, the said complaint was forwarded for
institution of a formal FIR, pursuant whereto Manihari P.S. Case
No. 152 of 2008 was registered for the offences punishable under
Sections 376, 493, 420 and 120(B) of IPC. Consequently, the
criminal law was set in motion and investigation was taken up in
accordance with law.
8. After completion of the investigation, the police
submitted a charge-sheet against the appellant for the offence
under Section 376 of IPC. Thereafter, the learned Judicial
Magistrate took cognizance of the offence under Section 376 of
IPC and committed the case to the Court of Sessions for trial.
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9. The appellant stood charged for the offence under
Section 376 of IPC. The charge was read over and explained to
him in Hindi, to which he pleaded not guilty and claimed to be
tried.
10. During the trial in ocular evidence the prosecution
examined altogether ten witnesses who are as under:-
Sl. No. Name Relevancy
PW-1 Md. Saidur Rahman Villager
PW-2 xxxxx The father of the victim
PW-3 Sajjad Ali Villager
PW-4 Mubarak Hussain Neighbour of the victim
PW-5 Xxxxx The victim
PW-6 Pawan Kumar Singh I.O.
PW-7 Dr. Ram Rekha Suman Doctor who examined the
dead child of the victim
PW-8 Irfan Ali Villager
PW-9 Inamul Haque Villager
PW-10 Junab Ali Villager
11. In documentary evidence, the prosecution proved
and exhibited the following documents:-
Sl. No. Relevancy
Ext.-1, 1/1, 1/2 Report of taking blood samples
Ext.-2 Chargesheet
Ext.-3 Formal FIR
Ext.-4 Postmortem report of victm’s child
Ext.-5 and 5/1 List of exhibits sent for examination of
blood samples
12. After completion of the prosecution evidence, the
statement of the appellant was recorded by the trial court under
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Section 313 of the Cr.P.C., wherein he denied the incriminating
circumstances appearing against him in the prosecution evidence
and claimed himself to be innocent. However, the defence of the
accused was that the prosecutrix falsely implicated him in the
present case and he produced the defence evidence that he had
solemnized marriage with prosecutrix on 25.07.2008.
13. In support of his defence the appellant adduced
evidence comprising one oral witness namely, D.W.-1 Jay Prakash
Pandey. He also produced documentary evidence which was
marked as Exhibit-A (certified copy of charge-sheet in Manihari
Case No. 83/2008 and Exhibit-B (marriage affidavit).
14. While convicting the appellant, the trial court
observed that the prosecutrix (PW-5) fully supported the
prosecution case and her testimony remained unshaken in cross-
examination. Nothing substantial was brought on record to
discredit her version regarding the commission of rape, the
convening of Panchayati, and the admission made by the accused
therein and further the accused (appellant) himself admitted
matrimonial relationship with the victim as having commenced on
25-07-2008. The trial court also placed reliance on the testimonies
of PWs- 1, 2 3, 4, 9, and 10, who affirmed that a Panchayati
meeting was held and the Investigating Officer (PW-6) also
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supported the prosecution case and confirmed that during
investigation it was found that a Panchayati had been held. The
defence plea of false implication and pregnancy by some other
person was found to be untenable, particularly in view of the
subsequent marriage between the appellant and the prosecutrix and
absence of any cogent evidence supporting the defence version.
On an overall appreciation of the oral and documentary evidence
available on record, the learned trial court held that the prosecution
had proved the charge under Section 376 of IPC beyond
reasonable doubt and, accordingly, convicted the accused.
Submissions made by learned Amicus Curiae:-
15. Ms. Nazia Shabah, learned Amicus Curiae, submits
that there was an inordinate delay of several months in taking legal
action by the victim or her family members with regard to the
alleged offence of rape, which was committed by the appellant
with the victim, six and a half months prior to the filing of the
complaint. Though in the complaint, written and typed in English,
some events that happened subsequent to the commission of the
alleged rape are mentioned, the evidence of the prosecution
witnesses, particularly that of the victim and her father, is not fully
corroborative of those subsequent events. For determination of the
paternity of informant's child, who died just some days after birth,
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blood and bone marrow samples were taken from the body of the
deceased child and the blood samples of the appellant, and the
informant, were also taken and sent for DNA examination;
however, before the trial court, the prosecution failed to produce
the conclusion of the DNA examination with regard to those
samples. Hence, scientifically, the paternity of the complainant's
child, who was alleged to be the result of the alleged sexual
relationship, could not be established. Learned Amicus Curiae
further submits that regarding the Panchayat meeting between the
informant's family and the appellant’s family, there are some
serious contradictions among the testimonies of the prosecution
witnesses; however, one thing is quite clear from the defence
evidence (Exhibit-B), that the appellant accepted his matrimonial
relationship with the informant as having commenced on
25.07.2008 or before that. On the other hand, it is also an admitted
position that there was a criminal case bearing Manihari P.S. Case
No. 83 of 2008 lodged against one Aftab Ali by Sahana Khatoon,
and the appellant took the defence that, due to that case, a false
story was fabricated by the prosecution party to create pressure for
withdrawal of that case.
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Submissions made by learned Addl. Public
Prosecutor for the State:-
16. On the other hand, Ms. Anita Kumari Singh, learned
APP appearing for the State, submits that though the prosecution
failed to produce the DNA test report of the informant's child, but
from the defence evidence, Exhibit-B, the appellant himself
accepted his matrimonial relationship with the informant, which
can be deemed to be supportive material to the victim's allegation
as to a physical relationship having been established by the
appellant with her, as otherwise there was no need for the
appellant to enter into a matrimonial relationship with the
informant. Learned APP further submits that all the prosecution
witnesses remained consistent in proving the factum of holding a
Panchayat meeting between the appellant's family and the
informant's family and also remained consistent in proving that, in
that meeting, the appellant accepted his wrongdoing committed by
him with the informant and also accepted the informant's son as
his own son, and these materials are sufficient to bring home the
charge under Section 376 of the IPC, for which the appellant has
been convicted.
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Consideration and Analysis:-
17. I have heard both sides, perused the evidence
adduced by both sides available on the record of the trial court,
and taken into consideration the appellant’s statement recorded
under Section 313 of the Cr.P.C., as well as the findings recorded
by the trial court in the impugned judgment.
17.1. The complaint petition filed by the victim herself
is in English and typed, and the same bears no date and simply
contains the signature of the complainant and the narration of the
incident alleging commission of the offence of rape, indicating that
a legal mind was applied in typing the said complaint, which was
sent to the police by the Chief Judicial Magistrate. The informant,
examined as PW-5, admitted in cross-examination that she studied
up to the 7th standard and did not know English, and in her
examination-in-chief she stated that the advocate wrote the
application, read the same before her, and then she made her
signature on every page of the said application. However, the
informant’s application is in typed form and, further, she did not
state in her examination-in-chief that she had understood the
contents of the FIR before signing it. This aspect of the FIR raises
a question regarding its credibility.
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17.2. Now, I come to the allegations levelled by the
victim as well as other relevant facts emerging from her
complaint/FIR. The informant revealed her age as 16–17 years in
the complaint, which was filed in the month of July, 2008;
however, before the trial court, the complainant/informant revealed
her age as 25 years while recording her evidence on 13.02.2013. If
this declared age is taken into consideration, then the victim’s age
must have been about 20 years at the time of commission of the
alleged occurrence. Hence, a wrong statement with regard to the
age of the informant was given in the complaint. As far as the
commission of the first occurrence of establishing a sexual
relationship with the victim by the appellant is concerned, the
same is stated to have taken place six and a half months prior to
the filing of the complaint; however, paragraph no. 3 of the
complaint, in which that incident was described, does not contain
the time of that incident. In this regard, the allegation as to
committing rape upon the complainant by the appellant appears to
be vague to some extent. In view of the facts stated in the
complaint and in the light of the evidence of the victim’s relatives,
it is evident that the alleged occurrence of rape had come to the
knowledge of the victim’s family members immediately after its
happening, but legal action for lodging the FIR was taken several
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months thereafter. Though, in the complaint, the victim tried to
explain the said long delay, she revealed that the appellant assured
her that he would marry her and, on that assurance, he established
a sexual relationship with her several times. When she became
pregnant, she asked the appellant to marry her immediately, but he
did not pay any heed and again assured her that he would marry
her soon, using delaying tactics. Thereafter, he and his family
members started pressurizing her to abort her unborn child, and
when she refused to do so, the accused flatly denied marrying her.
In respect of these events, some panchayat meetings were also
held between the appellant’s family and the victim’s family, as per
the evidence of the prosecution witnesses. However, in this regard,
some material prosecution witnesses, PW-1 and PW-2, stated
contradictory facts. Among them, PW-2 is very important, as he is
the father of the victim. PW-1 stated in his examination-in-chief
that Makbool, the father of the victim, called the panchayat
meeting, in which he and others went to Sohradangi village, and
that the meeting was held on account of the birth of a male child to
the victim. In that meeting, the appellant allegedly accepted his
wrongdoing and admitted that the child was his. In this way,
according to this witness, the said panchayat meeting was called
by the victim’s father. However, PW-2, the father of the victim,
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deposed in cross-examination that he was not present at the
panchayat meeting and had only heard about it. He further deposed
in cross-examination that at the time of holding the panchayat
meeting, his daughter was carrying a ten-month-old pregnancy,
whereas, as per the evidence of the victim, she was carrying a
seven-month-old pregnancy at that time. In view of these
contradictions, the factum of holding the panchayat meeting and
the alleged acceptance by the appellant regarding the victim’s
child being his, as well as his acceptance of the alleged
wrongdoing, do not appear to be believable. Though samples of
blood and bone marrow, etc., were taken from the body of the
deceased child and blood samples were taken from the victim and
the appellant for DNA examination to ascertain the paternity of the
child, who died just a few days after his birth but very surprisingly,
the prosecution remained careless in bringing the conclusion of the
DNA examination before the trial court. The trial court itself also
remained careless in not calling for the said report from the
concerned Forensic Science Laboratory (FSL), and the conclusion
of DNA examination was very important to substantiate the
victim's allegation. Though the appellant, by adducing his own
defence evidence (Exhibit-B), accepted that he and the
informant/complainant entered into a matrimonial relationship on
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25.07.2008 or before that but merely by this fact the allegations
levelled by the informant in her complaint/FIR cannot be deemed to
have been proved beyond reasonable doubt.
Conclusion:-
18. In view of the facts and circumstances emerging from
the evidence adduced by the prosecution and defence, as discussed
above, this Court is of the considered opinion that the prosecution
did not remain able to prove the charged offence punishable under
Section 376 of the IPC beyond reasonable doubt, as there are
certain circumstances creating serious doubt in the credibility of
victim's allegations such as the long delay in taking legal action by
the victim and her family members with regard to the commission
of the alleged rape, despite the same having come to their
knowledge after its happening; serious contradictions appearing
in the testimony of the prosecution witnesses mainly with regard to
the prosecution’s plea as to holding the panchayat meeting and the
appellant’s admission his wrongdoing in the said panchayat
meeting; and the prosecution’s failure to establish the paternity of
the victim’s child as that of the appellant. Accordingly, this Court is
not persuaded to affirm the conviction of the appellant for the
offence punishable under Section 376 of the IPC; hence, the
judgment of conviction dated 22.02.2014 and the order of sentence
dated 26.02.2014, passed by the Court of the learned Adhoc
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Additional Sessions Judge-1st, Katihar, in Sessions Trial (S.T.) No.
470 of 2010 arising out of Manihari P.S. Case No. 152 of 2008,
convicting and sentencing the appellant for the offence punishable
under Section 376 of the IPC, are hereby set aside.
19. The appeal is allowed.
20. The appellant is on bail. Accordingly, his bail bonds
stand cancelled forthwith, and he, along with his sureties, is hereby
discharged from their respective liabilities.
21. Let the records of the trial court, along with a copy of
this judgment, be transmitted forthwith to the concerned court for
compliance and for taking necessary action.
22. Ms. Nazia Shabah, learned Amicus Curiae, shall be
entitled to remuneration in terms of the Notification dated
18.05.2017 issued by the State Government. The said remuneration
shall be paid by the Patna High Court Legal Services Committee
for the assistance rendered by her to this Court as Amicus Curiae.
(Shailendra Singh, J)
maynaz/Rajiv-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 24.02.2026
Transmission Date 24.02.2026
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