Patna High Court
Shankar Singh and Anr.versusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The trial court erred in convicting the appellants; the judgment is quashed and the appellants are acquitted of all charges.
Summary
The appellants, Shankar Singh and Raju Singh, were convicted by a Sessions Court for kidnapping a minor girl and raping her under Sections 366‑A/34 and 376/34 IPC, based largely on the victim’s testimony that identified another accused, Chandan Kumar, as the rapist. The prosecution alleged that the appellants were present in a vehicle that later transported the victim, but no direct allegation or evidence linked them to the kidnapping or rape. The appellants appealed, arguing that the trial court failed to establish a prior meeting of minds or common intention required under Section 34 IPC and that the evidence against them was speculative. The High Court examined the victim’s statement, the prosecution witnesses, and the investigative lapses, concluding that the essential ingredients of the offences were not proved against the appellants. Consequently, the Court quashed the conviction, acquitted the appellants, and ordered the refund of any fine, allowing the appeal.
Issues considered
- Whether the prosecution proved the appellants' participation and common intention in the kidnapping and rape under Sections 366‑A and 376 IPC.
- Whether conviction under Section 34 IPC is sustainable in the absence of evidence of a prior meeting of minds or overt act by the appellants.
- Whether the evidence on record establishes the elements of the offences beyond reasonable doubt.
Legislation cited
- Code of Criminal Procedure — s. 164, 313, 374(2), 389(1)
- Indian Penal Code — s. 34, 366-A, 376
Subjects
- kidnapping
- rape
- minor
- common intention
- Section 34 IPC
- acquittal
- quash
- appeal
- evidence
- conviction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.261 of 2013
Arising Out of PS. Case No.-249 Year-2011 Thana- SAUR BAZAR District- Saharsa
======================================================
1. Shankar Singh S/O Pradeep Narain Singh Resident Of Village- Dhanchhoha,
P.S.- Saur Bazar, District- Saharsa.
2. Raju @ Rupesh Singh S/O Naresh Singh @ Naresh Pd. Singh Resident Of
Village- Arraha Mahuwa, P.S.- Ghelarh, District- Madhepura
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms. Sarandha Suman, Amicus Curiae
For the Respondent/s : Mr. S.N. Pd., A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 01-07-2026
Heard Ms. Sarandha Suman, learned Amicus
Curiae for the appellants and Mr. S.N. Prasad, learned APP for
the State through 'Virtual Hybrid Mode'.
2. The appellants have preferred the present appeal
under Section 374(2) read with Section 389(1) of the Code of
Criminal Procedure challenging the judgment dated 01.04.2013
and order of sentence dated 04.04.2013 passed in Sessions Trial
No. 187 of 2012 arising out of Saur Bazar P.S. Case No. 249 of
2011 by Adhoc Additional Sessions Judge- 1 st, Saharsa,
whereby and whereunder, the appellants have been convicted
for the offence punishable under Sections 366-A/34 and 376/34
of the Indian Penal Code and have been sentenced to undergo
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rigorous imprisonment for five years and Rs. 5000/- fine and in
default of payment of fine, to undergo rigorous imprisonment
for six months under Section 366-A/34 IPC and to undergo
rigorous imprisonment for ten years and Rs. 5,000/- fine and in
default of payment of fine, to undergo rigorous imprisonment
for six months under Sections 376/34 of the IPC. Both the
sentences were directed to run concurrently.
3. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence, the appellants
have preferred the present appeal before this Court. The
appellants have assailed the impugned judgment primarily on
the ground that the learned trial court failed to appreciate the
evidence available on record in its proper perspective and has
wrongly recorded the conviction of the appellants.
BRIEF FACTS OF THE CASE
4. The case of the prosecution, in brief, is that The
informant who is the father of the victim has alleged that on
12.09.2011 at around 10:00 a.m., his daughter aged about 14
years along with one Doli Kumari went to school. She kept her
books on the desk and went to the shop of Janardan Ram with
one Shabnam Praveen to get some chocolates. While returning
to school, when she reached near Voda's Tower towards north of
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the shop, Chandan Kumar, Munna Kumar and 3-4 unknown
persons called her and locked her in the room constructed in the
tower. Doli Kumari after school went to her house and informed
the informant that the victim was not in the school. Informant
went for her search and found from Bhushan Yadav that she was
seen going inside the tower. When the informant reached there
the room was locked. It is alleged that the room of the tower is
the shelter for criminals and Chandan Kumar is anti-social
element and has committed such type of offences several times.
ARGUMENT ON BEHALF OF Amicus Curiae
5. Learned Amicus Curiae submitted that the
conviction of the appellants under Sections 366-A/34 and
376/34 IPC is wholly unsustainable in law as there is no specific
allegation either in the FIR or in the evidence of the prosecutrix
attributing any act of kidnapping, inducement or rape to the
present appellants. The prosecution case, from its very
inception, is directed against Chandan Kumar and Munna
Kumar, who were alleged to have followed the victim near the
tower and forcibly took her away. The prosecutrix (PW-7)
specifically stated that Chandan Kumar committed rape upon
her and has not alleged that any act of sexual assault was
committed by the appellants. In the absence of any overt act or
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direct participation on the part of the appellants, their conviction
merely on the basis of their alleged subsequent participation
with the co-accused Chandan Kumar and, as such, in absence of
any direct allegation, the learned trial Court erred in convicting
the appellants.
6. It is further case of appellants that the learned Trial
Court erroneously invoked Section 34 IPC without there being
any evidence of prior meeting of minds or common intention
shared by the appellants with the co-accused. The prosecution
has failed to establish that the appellants had participated in the
alleged kidnapping, confinement or commission of rape, or that
they had knowledge of any such criminal design. Significantly,
the learnede trial Court itself recorded a finding that the
prosecution has failed to prove any conspiracy amongst the
accused persons. Once conspiracy and pre-arranged plan were
not proved, mere presence of the appellants in a vehicle, as
alleged by the prosecutrix, could not legally lead to an inference
that they shared the common intention to commit offences under
Sections 366-A and 376 IPC. The conviction, therefore, rests on
presumptions and conjectures rather than on cogent evidence.
7. Learned Amicus Curiae, submitted that the
prosecution case suffers from serious infirmities and
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deficiencies in investigation which create substantial doubt
regarding the involvement of the appellants. The Investigating
Officer admitted that he neither visited the alleged hotel at
Banmankhi, nor examined any hotel employee, driver of the
vehicle, or any independent witness from Banmankhi or
Madhepura. No vehicle number was traced and no material
evidence connecting the appellants with the alleged offences
was collected during investigation. In such circumstances, when
the entire evidence against the appellants is limited to an
uncorroborated allegation of their presence in a vehicle, the
prosecution cannot be said to have proved its case beyond
reasonable doubt. Consequently, the appellants are entitled to
the benefit of doubt and the judgment of conviction and order of
sentence deserve to be set aside.
ARGUMENT ON BEHALF OF THE STATE
8. Per Contra, learned APP appearing for the State while
opposing the appeal submitted that the learned District court,
after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellants for said offences.
ANALYSIS AND CONCLUSION
9. Heard the parties.
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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.
11. It would be appropriate to reproduce the provisions
of Sections 366(A) and 376 of the IPC for the sake of
convenience and better understanding of the facts, which are as
under:-
“366A. Procuration of minor girl.—
Whoever, by any means whatsoever, induces
any minor girl under the age of eighteen
years to go from any place or to do any act
with intent that such girl may be, or knowing
that it is likely that she will be, forced or
seduced to illicit intercourse with another
person shall be punishable with
imprisonment which may extend to ten years,
and shall also be liable to fine.
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](Subs. by Act 22 of 2018, s. 4,
for “shall not be less than seven years, but
which may extend to imprisonment for life,
and shall also be liable to fine” (w.e.f. 21-4-
2018)
(2)Whoever,—
(a)being a police officer, commits rape—
(i)within the limits of the police station to
which such police officer is appointed; or
(ii)in the premises of any station house; or(
iii)on a woman in such police officer's
custody or in the custody of a police officer
subordinate to such police officer; or
(b)being a public servant, commits rape on a
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woman in such public servant's custody or in
the custody of a public servant subordinate
to such public servant; or
(c)being a member of the armed forces
deployed in an area by the Central or a State
Government commits rape in such area; or
(d)being on the management or on the staff
of a jail, remand home or other place of
custody established by or under any law for
the time being in force or of a women's or
children's institution, commits rape on any
inmate of such jail, remand home, place or
institution; or
(e)being on the management or on the staff
of a hospital, commits rape on a woman in
that hospital; or
(f)being a relative, guardian or teacher of, or
a person in a position of trust or authority
towards the woman, commits rape on such
woman; or
(g)commits rape during communal or
sectarian violence; or
(h)commits rape on a woman knowing her to
be pregnant; or
(i)commits rape on a woman when she is
under sixteen years of age; or
(j)commits rape, on a woman incapable of
giving consent; or
(k)being in a position of control or
dominance over a woman, commits rape on
such woman; or
(l)commits rape on a woman suffering from
mental or physical disability; or
(m)while committing rape causes grievous
bodily harm or maims or disfigures or
endangers the life of a woman; or
(n)commits rape repeatedly on the same
woman,shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and shall also be liable
to fine.
Explanation.— For the purposes of this sub-
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section, —
(a)"armed forces" means the naval, military
and air forces and includes any member of
the Armed Forces constituted under any law
for the time being in force, including the
paramilitary forces and any auxiliary forces
that are under the control of the Central
Government or the State Government;
(b)"hospital" means the precincts of the
hospital and includes the precincts of any
institution for the reception and treatment of
persons during convalescence or of persons
requiring medical attention or
rehabilitation;
(c)"police officer" shall have the same
meaning as assigned to the expression
"police" under the Police Act, 1861 (5 of
1861);
(d)"women's or children's institution" means
an institution, whether called an orphanage
or a home for neglected women or children
or a widow's home or an institution called by
any other name, which is established and
maintained for the reception and care of
women or children.
(3)Whoever, commits rape on a woman
under sixteen years of age shall be punished
with rigorous imprisonment for a term which
shall not be less than twenty years, but
which may extend to imprisonment for life,
which shall mean imprisonment for the
remainder of that person's natural life, and
shall also be liable to fine:Provided that
such fine shall be just and reasonable to
meet the medical expenses and rehabilitation
of the victim:Provided further that any fine
imposed under this sub-section shall be paid
to the victim"
12. On the basis of materials surfaced during the
trial, the appellants/accused were examined under Section 313
of the Cr.PC by putting incriminating circumstances/evidences
surfaced against them, which they denied and show their
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complete innocence.
13. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
judgment dated 01.04.2013 and order of sentence dated
04.04.2013 for the offences under Sections 366-A/34 and
376/34 of the IPC.
14. During the trial, the prosecution has examined
altogether four witnesses, namely:
1. P.W.1 – Dr. Bibha Rani (Doctor who examined the
Victim)
2.P.W.2 – Sunil Kumar Bhagat (S.I.)
3.P.W.3 – Ram Milan Kumar (Hearsay Witness)
4. P.W.4 – Raj Kishore Yadav (Hearsay Witness)
5. P.W.5- Dinesh Yadav (Informant)
P.W.6 - Chandra Bhushan Kumar (Hearsay Witness)
P.W.7- Babita Kumari (Victim)
15. The prosecution has also relied upon following
documents exhibited during the course of trial:-
(i) Ext.1 – Medical Report
(ii) Ext.2 – Forwarding on Written Report
(iii) Ext.3 – Charge-Sheet
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(iv) Ext.3/1- Signature of the informant on Charge
Sheet
(v) Ext. 4 - Formal F.I.R.
(vi) Ext. 5 – Signature of the informant on the
Written Report
(vii) Ext. 5/1- Signature of Parmanand Yadav on
the Written Report which was identified by P.W. 5
(viii) Ext. 6- Statement of the victim under Section
164 Cr.P.C.
16. From the perusal of records, I proceed to analyse
the statements of the prosecution witnesses whether they have
supported the prosecution case.
P.W.1 – Dr. Bibha Rani-Examined the victim on 14-
09-2011 at Sadar Hospital, Saharsa. Found her height 4’-11”,
weight 40 kg, with a wound scar on the right side of her face.
Breast well developed, axillary and pubic hair present, no
external injury on the body. Per vaginal examination showed
hymen not intact, with slight erosion on the posterior vaginal
wall but no visible external injury. Pathological examination of
the vaginal swab showed no spermatozoa, with 3-4 epithelial
cells/HPF and 2-3 pus cells/HPF. Radiological examination
assessed her age between 14-16 years. She opined there was
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confirmatory evidence of sexual intercourse. In cross-
examination, she admitted that measurements of breast size and
colour of pubic/vaginal hair were not mentioned in her report,
though she maintained these were not essential for age
assessment.
P.W.2 – S.I. Sunil Kumar Bhagat (Investigating
Officer) Posted at Baijnathpur O.P. on 13-09-2011 when the
informant Dinesh Yadav submitted his written petition, which
was forwarded to Saur Bazar P.S. (Ext.2). He visited village
Khajuri and investigated, recording statements of the informant
and witnesses. On receiving information, he went to Madhepura
where Madhepura Police handed over the victim and accused
Chandan Kumar to him. He recorded the victim’s statement,
sent her for medical examination, and arranged recording of her
statement under Section 164 Cr.P.C. He submitted the charge-
sheet (Ext.3) and the formal F.I.R. (Ext.4). In cross-examination,
he conceded he did not record statements of witnesses from the
hotel in Banmankhi, did not note the vehicle number used to
transport the victim, and did not record statements of witnesses
present when the victim was apprehended at Madhepura —
lapses the trial court treated as investigative deficiencies not
fatal to the prosecution case.
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P.W.5 – Dinesh Yadav (Informant/Father of victim)
Deposed that on 12-09-2011 at about 10 A.M. his daughter
Babita Kumari, aged about 14 years, went to school and later to
purchase a pen, and while returning was caught near the tower
by accused Chandan Yadav and Munna Kumar and locked in a
room there. She was later brought to Banmankhi at night, where
she was raped at a hotel; thereafter the accused were arrested,
though Shankar Singh and Raju Singh fled from Madhepura. He
identified his written petition (Ext.5) and the signature of
Parmanand Yadav (Ext.5/1). In cross-examination, he admitted
he had no opportunity to speak with his daughter between her
kidnapping and recovery, and that his statement was based on
presumption. He denied the defence’s suggestion that he gave
his statement to police on 13-09-2011 at 6 P.M., asserting
instead that he submitted his petition around 8-9 P.M. that day.
He denied any prior enmity with the accused, a suggestion the
defence failed to substantiate with evidence.
P.W.6 – He has deposed that on 12.09.2011 at about
10:00 A.M., he saw the victim, Babita Kumari, taking a pen
from a shop when accused Chandan Kumar and Munna Kumar
forcibly dragged her away. Thereafter, he left the place. On the
following day, i.e., 13.09.2011, he came to know that Babita
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Kumari had been kidnapped and recovered. According to him,
when he met the victim, she disclosed that accused Chandan
Kumar, Munna Kumar, Raju Kumar and Shankar Singh had
taken her to Banmankhi, kept her in a hotel and committed rape
upon her. He further stated that Chandan Kumar was
apprehended at Madhepura, whereas Munna Kumar and Raju
Kumar had fled away. He identified the victim as well as the
accused persons present in Court.
In cross-examination, the witness admitted that his
statement was recorded by the police on 13.09.2011 at about
6:45 P.M. He further admitted that at the time of giving such
statement he had neither met the victim nor visited Madhepura.
He stated that he had earlier deposed before the Court on
04.08.2012 and denied having stated therein that the victim had
disclosed the names of all four accused, that she had been taken
to Banmankhi and raped, or that she had been kept in a hotel at
Banmankhi for 3–4 days. He further stated that he reached
Madhepura at about 9:00 P.M. on 13.09.2011 and denied having
previously stated that he had reached there at 6:00 P.M. The
witness admitted that he had known both the accused persons
for about five years and, therefore, could identify them. He
denied the defence suggestion that he had never gone to
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Madhepura, that no such occurrence had taken place, or that he
was deposing falsely.
P.W.7 – Babita Kumari (Victim) has Deposed that on
12-09-2011 at about 10 A.M. she went to school, then to
purchase a pen, and while returning near the tower was caught
by Munna Kumar and Chandan Kumar, who locked her in the
tower and made her inhale something, causing her to lose
consciousness. She was brought to Banmankhi at night and kept
in a hotel, regaining consciousness around 12-1 A.M. She
clearly stated that Chandan Kumar raped her. On 13-09-2011
around 1:30-2:00 P.M., three persons — Shankar Singh, Raju
Singh, and Munna Kumar — arrived by vehicle and threatened
her en route while transporting her to Madhepura. On sighting
the police, the three fled; she and Chandan Kumar were
apprehended. She was sent to Baijnathpur O.P. via Madhepura
Police, then to Saur Bazar P.S., medically examined on 14-09-
2011, and her statement recorded under Section 164 Cr.P.C. on
15-09-2011 (Ext.6).
In cross-examination, she stated she did not know the
hotel’s name (being unconscious when booked in), could not
describe its boundary or give the vehicle’s number or driver’s
name, but specifically recalled sitting on the middle seat and
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that her mouth was kept closed, preventing her from raising an
alarm. She stated the vehicle was parked at Madhepura, that the
three accused fled leaving her with Chandan Kumar, and that
police then caught them. She confirmed both accused (Shankar
Singh and Raju Singh) were known to her, that her father was
present when she gave her statement, and that she deposed of
her own free will. She denied no incriminating article was
recovered from the vehicle. She firmly denied the defence’s
suggestions that no occurrence took place, that she was never
taken to Madhepura, and that she had a love affair with Chandan
Kumar with both intending to marry at Singheshwar Temple
before being apprehended denying that the accused were falsely
implicated.
17. A careful reading of the testimony of P.W.7
(Babita Kumari), the victim herself, makes it evident that the
specific allegation of rape has been attributed solely to co-
convict Chandan Kumar. In her examination-in-chief, she
categorically stated that after being taken to Banmankhi and
kept in a hotel, "Chandan Kumar committed rape upon her."
Significantly, no allegation has been levelled by the victim that
either of the present appellants, namely Shankar Singh and Raju
Singh, subjected her to any act constituting rape or participated
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in the commission thereof. The role assigned to the appellants is
confined to their alleged presence on 13.09.2011, when they,
along with Munna Kumar, are stated to have arrived in a vehicle
and transported the victim from Banmankhi to Madhepura.
Even in her cross-examination, the victim consistently
maintained that Chandan Kumar alone remained with her when
the police apprehended them, while the other three persons
allegedly fled away. Thus, the prosecutrix has not attributed any
overt act of sexual assault to the present appellants. In the
absence of any specific allegation, cogent evidence, or material
demonstrating their participation in the alleged act of rape, the
essential ingredients of the offence punishable under Section
376 of the Indian Penal Code are not established against the
present appellants. Merely because the appellants are alleged to
have accompanied or assisted the principal accused at a
subsequent stage would not, by itself, be sufficient to attract
liability under Section 376 IPC, particularly when the
prosecutrix has consistently attributed the act of rape
exclusively to Chandan Kumar. Consequently, the conviction of
the present appellants for the offence under Section 376 IPC
cannot be sustained on the basis of the evidence available on
record.
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18. For establishing common intention, the
prosecution is required to prove, firstly, a prior meeting of
minds or a pre-arranged plan; secondly, active participation
indicating that the appellants, Raju Singh and Shankar Singh,
shared the common intention to commit the alleged offences of
kidnapping and rape; or thirdly, circumstances demonstrating
that they had knowledge of and consciously joined the criminal
venture from its very inception. Upon a careful consideration of
the evidence on record, I find that the victim's own testimony
establishes that the alleged rape was committed by co-accused
Chandan Kumar and that she was initially kidnapped by Munna
Kumar and Chandan Kumar. There is no allegation whatsoever
against the present appellants that they committed rape upon the
victim. Further, the materials available on record do not disclose
any circumstance from which it can be inferred that the
appellants had, from the very beginning, shared a common
intention with co-accused Chandan Kumar and Munna Kumar
either to kidnap the victim or to commit rape upon her. In the
absence of any evidence of prior concert, pre-arranged plan, or
active participation in the commission of the offence from its
inception, the essential ingredients necessary to attract the
principle of common intention are not established against the
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present appellants.
19. The case of the prosecution against the appellants
is that of having participated in the alleged commission of rape
with the victim P.W.-7 by having conspired to kidnap the victim
and commit rape.
20. The Hon'ble Supreme Court has consciously held
that common intention cannot be inferred merely from presence,
association, or subsequent conduct unless participation and
shared intention are proved beyond reasonable doubt. It is a
settled principle of law that for convicting the accused with the
aid of Section 34 of the IPC the prosecution must establish
prior meetings of minds. It must be established that all the
accused had preplanned and shared a common intention to
commit the crime with the accused who has actually committed
the crime. It must be established that the criminal act has been
done in furtherance of the common intention of all the accused.
21. In case of Krishnan v. State of Kerala, reported in
(1996) 10 SCC 508, the Hon’ble Supreme court has held as
under:
15. Question is whether it is obligatory
on the part of the prosecution to establish
commission of an overt act to press into service
Section 34 of the Penal Code. It is no doubt true that
the court likes to know about an overt act to decide
whether the person concerned had shared the
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common intention in question. Question is whether
an overt act has always to be established? I am of
the view that establishment of an overt act is not a
requirement of law to allow Section 34 to operate
inasmuch as this section gets attracted when “a
criminal act is done by several persons in
furtherance of the common intention of all”. What
has to be, therefore, established by the prosecution
is that all the persons concerned had shared the
common intention. Court's mind regarding the
sharing of common intention gets satisfied when an
overt act is established qua each of the accused. But
then, there may be a case where the proved facts
would themselves speak of sharing of common
intention: res ipsa loquitur.
22. In case of Jasdeep Singh v. State of Punjab,
reported in (2022) 2 SCC 545, the Hon’ble Supreme court has
held as under:
“20. Section 34 IPC creates a deeming
fiction by infusing and importing a criminal act
constituting an offence committed by one, into
others, in pursuance to a common intention. Onus is
on the prosecution to prove the common intention to
the satisfaction of the court. The quality of evidence
will have to be substantial, concrete, definite and
clear. When a part of evidence produced by the
prosecution to bring the accused within the fold of
Section 34 IPC is disbelieved, the remaining part
will have to be examined with adequate care and
caution, as we are dealing with a case of vicarious
liability fastened on the accused by treating him on
a par with the one who actually committed the
offence.
21. What is required is the proof of
common intention. Thus, there may be an offence
without common intention, in which case Section 34
IPC does not get attracted.
22. It is a team effort akin to a game of
football involving several positions manned by
many, such as defender, mid-fielder, striker, and a
keeper. A striker may hit the target, while a keeper
may stop an attack. The consequence of the match,
either a win or a loss, is borne by all the players,
though they may have their distinct roles. A goal
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scored or saved may be the final act, but the result is
what matters. As against the specific individuals
who had impacted more, the result is shared
between the players. The same logic is the
foundation of Section 34 IPC which creates shared
liability on those who shared the common intention
to commit the crime.
23. The intendment of Section 34 IPC is
to remove the difficulties in distinguishing the acts
of individual members of a party, acting in
furtherance of a common intention. There has to be
a simultaneous conscious mind of the persons
participating in the criminal action of bringing
about a particular result. A common intention qua
its existence is a question of fact and also requires
an act “in furtherance of the said intention”. One
need not search for a concrete evidence, as it is for
the court to come to a conclusion on a cumulative
assessment. It is only a rule of evidence and thus
does not create any substantive offence.
24. Normally, in an offence committed
physically, the presence of an accused charged
under Section 34 IPC is required, especially in a
case where the act attributed to the accused is one
of instigation/exhortation. However, there are
exceptions, in particular, when an offence consists
of diverse acts done at different times and places.
Therefore, it has to be seen on a case-to-case
basis.”
23. The aforesaid judgment was reiterated by the
Apex Court in case of Constable 907 Surendra Singh & Anr.
Versus State Of Uttarakhand reported in (2025) INSC 114.
24. What emerges from the aforesaid legal
principles that the statement of the victim may be treated as a
“sterling witness” and her testimony can be relied upon without
additional corroboration, provided its quality and credibility are
of an exceptionally high standard. The statement of the
prosecutrix should remain consistent throughout, from the initial
Patna High Court CR. APP (SJ) No.261 of 2013 dt.01-07-2026
21/22
version to the oral evidence, barring minor discrepancies, and
should not give rise to any doubt regarding the prosecution’s
case. Although, in cases of sexual offences, the testimony of the
victim is generally sufficient, a version that is unreliable or
inadequate, suffering from evident shortcomings and gaps, may
render it difficult to sustain a conviction.
25. From the above admitted facts, I find that no
case under Section 376 is made out against the appellants in
absence of any allegation made by the P.W.-7 (victim).
26. I find that the learned trial Court has erred in
arriving to conclude that the appellants namely, Shankar Singh
and Raju @ Rupesh Singh had the similar intention like the
accused Chandan Kumar and Munna Kumar, who had actively
participated in the kidnapping of the victim in absence of their
presence at the place of occurrence and had committed rape
cannot be sustained. I am of the opinion that the trial court has
erred in convicting the appellants under Sections 376/34 of the
Indian Penal Code, as such, the impugned judgment is liable to
be quashed and set aside.
27. The impugned judgment dated 01.04.2013 and
order of sentence dated 04.04.2013 passed in Sessions Trial No.
187 of 2012 arising out of Saur Bazar P.S. Case No. 249 of 2011
Patna High Court CR. APP (SJ) No.261 of 2013 dt.01-07-2026
22/22
by Adhoc Additional Sessions Judge- 1st, Saharsa, is hereby
quashed and set aside. Consequently, the above-named
appellants/accused are acquitted from all the charges levelled
against them. Since the appellants are on bail, as such, they are
discharged from the liability of their bail bonds. The fine
deposited by the appellants, if any, shall be refunded to them.
28. Accordingly, the present appeal is allowed.
29. The Patna High Court Legal Services Committee
is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten
Thousand) to Ms. Sarandha Suman, learned Amicus Curiae, as
consolidated fee, for rendering her valuable professional service
for disposal of the present appeal.
30. 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)
Niraj/-
AFR/NAFR
CAV DATE 18.06.2026
Uploading Date 01.07.2026
Transmission Date 01.07.2026
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