Patna High Court
Shyam Jee Mishra @ Manindra MishraversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The conviction under Section 376 IPC is not sustainable and is set aside.
Summary
The appellant, a school teacher, was convicted by the Sessions Court for rape of a minor girl under Section 376 IPC and sentenced to seven years' rigorous imprisonment. The prosecution's case relied primarily on the victim's testimony, which alleged that she was abducted, taken to various locations and sexually assaulted by the appellant. The appellate court examined inconsistencies in the victim's statements, the unexplained nine‑day delay in lodging the FIR, and the failure of the investigating officer to verify key allegations such as stays in hotels and the involvement of other persons. Citing precedents on the need for corroboration of a minor's testimony and the adverse inference from investigative lapses, the court held that the conviction could not be sustained on uncorroborated evidence. Consequently, the appeal was allowed, the conviction and sentence were set aside, and no further direction for release was required as the appellant had already served the term.
Issues considered
- The credibility and reliability of the victim's testimony in the absence of corroborative evidence
- Whether the unexplained delay in filing the FIR vitiates the prosecution's case
- The impact of investigative lapses, including failure to verify alleged hotel stays and involvement of other persons
- Whether conviction under Section 376 IPC can be upheld solely on the victim's uncorroborated statements
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Penal Code — s. 366(A), 376
Subjects
- rape
- kidnapping
- minor
- victim testimony
- corroboration
- delay in FIR
- investigative lapse
- criminal appeal
- IPC 376
- evidence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.38 of 2014
Arising Out of PS. Case No.-27 Year-2012 Thana- DUMRAO District- Buxar
======================================================
Shyam Jee Mishra @ Manindra Mishra, Son Of Dina Nath Mishra, Resident
Of Village- Baijnath, P.S.- Ramgarh, District- Kaimur Bhabhua
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Sumeet Kumar Singh, Amicus Curiae
Ms. Deepali Singh, Advocate
Mr. Amarendra Kumar, Advocate
Mr. Kumar Vikram, Advocate
Mr. Anmol Kumar, Advocate
For the State : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 10-02-2026
The instant criminal appeal has been preferred by the
appellant, Shyam Jee Mishra @ Manindra Mishra, against the
judgment of conviction dated 09.12.2013 and the order of sentence
dated 11.12.2013 passed in Sessions Trial Case No. 94/2012 by the
Court of the Additional District and Sessions Judge-II, Buxar,
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. 1,000/-. In default of payment of
fine, he has been directed to undergo simple imprisonment for an
additional period of one month.
Patna High Court CR. APP (SJ) No.38 of 2014 dt.10-02-2026
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Prosecution Story:-
2. The substance of the prosecution case is as follows:
As per the informant, who is the father of the victim, his
daughter (hereinafter referred to as the “victim”, her name being
withheld to conceal her identity) was studying in Class VI at St.
Cambridge Higher Secondary School, Dumrao. Her date of birth is
stated to be in April, 1999, and her class teacher was Shyam Jee
Mishra (the appellant). The appellant had visited his house on one
or two occasions prior to the alleged occurrence. On 22.01.2012,
his daughter (the victim) went missing, whereafter he and his
family members started searching for her. During the course of the
search, they came to learn that his daughter had been taken away
by the appellant. It is alleged that the appellant had hatched a plan
and, in furtherance thereof, allured the victim and took her away.
The informant further alleged that despite extensive efforts, when
his daughter could not be traced and the appellant was also not
found, the appellant’s contact number was obtained from the
victim’s school. Attempts were made to contact him on the said
mobile number, but his phone was found switched off. It is further
alleged that since the disappearance of the victim, the appellant
had not been attending the school. In view of these circumstances,
Patna High Court CR. APP (SJ) No.38 of 2014 dt.10-02-2026
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the informant became convinced that his minor daughter had been
kidnapped by the appellant.
3. The informant filed a written report (Exhibit-1) on
01.02.2012 setting out the aforesaid prosecution case, on the basis
of which a formal FIR bearing Dumrao P.S. Case No. 27/2012 was
registered for the offence under Section 366(A) of the IPC.
Consequently, the criminal law was set in motion and investigation
was taken up.
4. After completion of the investigation, the police
submitted a charge-sheet against the appellant for the alleged
offences. Thereafter, the learned Chief Judicial Magistrate took
cognizance of the offences under Sections 366(A) and 376 of the
IPC and committed the case to the Court of Sessions for trial.
5. The appellant was charged with the offences under
Sections 366(A) and 376 of the IPC. The charges were read over
and explained to him in Hindi, to which he pleaded not guilty and
claimed to be tried.
6. During the trial in ocular evidence the prosecution
examined altogether ten witnesses who are as under:-
Sl. No. Name Relevancy
PW-1 xxxxx The brother of the victim
PW-2 xxxxx The cousin brother of the informant
PW-3 xxxxx An uncle of the victim
PW-4 xxxxx The father of the victim and the Informant
PW-5 xxxxx The mother of the victim
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PW-6 Dr. Bharti Doctor who examined the victim and prepared
Dwivedi medical report
PW-7 xxxxx The victim herself
PW-8 Chedi Ram Judicial Magistrate who recorded the victim’s
statement under Section 164 of Cr.P.C.
PW-9 Rama Shankar The investigating officer
Singh
PW-10 Dr. Anil Kumar The doctor who examined the victim
Singh medically and prepared the X-Ray report
7. In documentary evidence, the prosecution proved and
exhibited the following documents:-
Sl. No. Relevancy
Ext.-1 The Fardbeyan of the informant
Ext.-2 A signature of PW-10 on X-Ray report
Ext.-3 A signature of PW-6 on Medical report
Ext.-3/1 A signature of PW-10 on Medical Board’s opinion
Ext.-4 A signature on the statement of victim
Ext.-5 The statement recorded by victim under Section 164
of Cr.P.C written and signed by PW-8
Ext.-6 An application of FIR No. 27/12 identified by the
I.O. (PW-9)
Ext.-7 The formal FIR
Ext.-8 The chargesheet
8. After completion of the prosecution evidence, the
statement of the appellant was recorded by the trial court under
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, he did not take any
specific defence in the said statement.
9. The appellant did not give any evidence in his
defence.
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10. While convicting the appellant, the trial court
observed that the victim stated in her evidence that she had been
taken by the appellant to Pune and Bokaro and that, at Bokaro, she
was kept in a hotel. However, in the same concluding paragraph,
the trial court mentioned that the Investigating Officer had not
investigated any of the hotels where the victim was allegedly kept
by the appellant. In the same paragraph, the learned trial court
relied upon the prosecution’s case, observing that since the victim
was a minor girl, there was no reason for her to make a false
allegation against the appellant. The trial court further placed
reliance upon the opinion of the Medical Board, wherein it was
mentioned that signs of sexual intercourse cannot be ruled out. The
learned trial court concluded that there was no reason for the
prosecution to falsely implicate the appellant and that no evidence
to that effect had been adduced by the defence.
Submissions made by learned Amicus Curiae:-
11. Mr. Sumeet Kumar Singh, learned Amicus Curiae,
submits that, as per the prosecution, the victim was recovered on
19.02.2012 and thereafter produced before the Judicial Magistrate
on 21.02.2012 for recording her statement under Section 164 of
the Cr.P.C but before recording of the said statement, the victim
remained under the influence and in the custody of her parents
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and, therefore, there was a possibility of her being tutored by them.
Learned Amicus Curiae further submits that the victim made
contradictory statements, particularly with regard to the presence
of the appellant and his father at the time when she was being
dropped near the police station. Before the Judicial Magistrate, the
victim stated that from Mohaniya she was brought in a private car
by two persons, namely, Baru Singh and Shankar Acharya, and
after some time of travelling she was shifted to a Bolero vehicle
and taken a little ahead of Naya Bhojpur Police Station, with a
police van following behind. Thereafter, she was made to sit in the
police vehicle, whereafter the said persons fled away. In the said
statement, while describing her last company with Baru Singh and
Shankar Acharya, the victim did not mention the presence of the
appellant or his father. However, before the trial court, she deposed
that at that time the appellant and his father were also present in
the vehicle. In view of the aforesaid contradiction, learned Amicus
Curiae submits that the victim does not appear to be a witness of
high quality, as she did not remain consistent with the prosecution
story. Placing reliance upon the observations made by the Hon’ble
Apex Court in Rai Sandeep alias Deepu vs. State (NCT of Delhi),
reported in (2012) 8 SCC 21, it is contended that the informant’s
daughter (victim) does not qualify as a sterling witness. In support
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of this submission, reliance has also been placed upon the
judgment of the Hon’ble Apex Court in Santosh Prasad alias
Santosh Kumar vs. State of Bihar, reported in (2020) 3 SCC 443,
wherein the observations made in Rai Sandeep (supra) were
followed. It has been further submitted by learned Amicus Curiae
that, as per the victim, she was taken by the appellant to different
places and kept in hotels at Bokaro and Mohaniya, but the
Investigating Officer did not investigate any of those hotels,
despite the fact that at least one of them was accessible to him.
Thus, regarding the alleged incidents happened from the time of
the victim’s disappearance till her recovery, the Investigating
Officer made no attempt to verify the alleged events. As such, the
investigation conducted by PW-9 remained wholly unsatisfactory
and tainted. What effect would be of such faulty investigation
upon the case of prosecution, learned Amicus Curiae has placed
reliance upon the judgment of the Hon’ble Apex Court in
Parminder Kaur alias P.P. Kaur alias Soni vs. State of Punjab,
reported in (2020) 8 SCC 811. The relevant paragraph No. 15 upon
which reliance has been placed, is reproduced hereunder:
“ 15. The spot map prepared by PW 3 also has
glaring omissions. The location of Bhan Singh's house
and the place where the appellant allegedly threatened
the prosecutrix on 24-2-1996 are not even marked.
Letters which the prosecutrix alleged in her
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examination-in-chief and police complaint that the
appellant got written from her, have not been produced
during trial. These could have shed light on the
relationship between the accused, the prosecutrix and the
male tenant prior to the incident. It is the duty of the
prosecution to lead the best evidence in its possession,
and failure to do so ought to lead to an adverse
inference. [Mussauddin Ahmed v. State of Assam, (2009)
14 SCC 541, paras 11-15 : (2010) 1 SCC (Cri) 1445]”
11.1. It is also submitted by learned Amicus Curiae that,
as per the prosecution case, the victim went missing from her
house on 22.01.2012, which came to the knowledge of her father
on the next morning. Thereafter, he made efforts to search for the
victim and went to the school of the appellant, where he came to
know about the appellant’s absence. On that basis, he developed
suspicion regarding the role of the appellant in the disappearance
of the victim. It is further submitted that this prosecution version
clearly indicates that the appellant was only suspected by the
victim’s father at an early stage. It has further come in the
evidence of the informant that the appellant’s family was residing
in the same town of the informant, yet he did not take any steps to
visit the appellant’s family members to ascertain the whereabouts
of the appellant. It is further submitted that even after two or three
days, when the informant became aware of the appellant’s alleged
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role in the disappearance of his daughter, he remained silent for
several days and ultimately lodged the FIR after a delay of nine
days from the date of disappearance, which remained unexplained.
Learned Amicus Curiae submits that it is a settled position of law
that delay in lodging the First Information Report results in
embellishment and exaggeration and creates the possibility of
introduction of a coloured version. In support of this submission,
reliance has been placed upon the judgment of the Hon’ble Apex
Court in State of Andhra Pradesh vs. M. Madhusudhan Rao,
reported in (2008) 15 SCC 582, whereof the relevant paragraph
No. 30, upon which reliance has been placed, is reproduced
hereunder:
“ 30. Time and again, the object and
importance of prompt lodging of the first information
report has been highlighted. Delay in lodging the first
information report, more often than not, results in
embellishment and exaggeration, which is a creature of an
afterthought. A delayed report not only gets bereft of the
advantage of spontaneity, the danger of the introduction of
a coloured version, an exaggerated account of the incident
or a concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its
veracity. Therefore, it is essential that the delay in lodging
the report should be satisfactorily explained.”
Patna High Court CR. APP (SJ) No.38 of 2014 dt.10-02-2026
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Submissions made by learned Addl. Public
Prosecutor:-
12. On the other hand, Mr. Bipin Kumar, learned
Additional Public Prosecutor for the State, submits that the
appellant has failed to show any reason on the part of the
informant to falsely implicate him in a case of rape and kidnapping
with the help of his minor daughter. He contends that from the
evidence of the informant as well as other family members of the
informant, who were examined by the prosecution before the trial
court, the reasons for the delay in initiating legal action against the
appellant have been satisfactorily explained. It is further submitted
that the informant belongs to a respectable family and had initially
made efforts to search for the victim, and only when he failed to
trace his daughter then he approached the police station and filed a
written report. In such types of occurrences, some delay in lodging
the FIR normally occurs. Learned Additional Public Prosecutor
further submits that the victim remained consistent in her version,
as is evident from a comparison of her statement recorded before
the Judicial Magistrate under Section 164 of the Cr.P.C. and her
testimony before the trial court. From the inception of the
occurrence till the culmination of events, the prosecution case
stands fully established through the victim’s evidence, as she was
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the solitary witness to the said events. It is further submitted that
although the Investigating Officer did not investigate the locations
or hotels where the victim was allegedly taken and kept by the
appellant, the same is not fatal to the prosecution, as such lapse
was attributable to the Investigating Officer. Moreover, the
Investigating Officer was not cross-examined on this aspect, and
during cross-examination, the victim remained firm and consistent
in her allegations regarding being taken by the appellant to the said
places and being kept there by him. Thus, the lapses in
investigation are not fatal to the prosecution case. It is lastly
submitted that the most material witness of the prosecution, the
victim herself, is a sterling witness, and therefore, the conviction
of the appellant for the alleged offence is proper and sustainable in
the eye of law, as victim’s evidence is wholly reliable and
trustworthy.
Consideration and Analysis:-
13. I have heard both sides, perused the evidence
adduced by the prosecution, and also taken into consideration the
statement of the appellant as well as the findings recorded by the
trial court in the impugned judgment. As per the prosecution case,
the victim went missing on 22.01.2012 and on the very next
morning her parents came to know about her disappearance.
Thereafter, the victim’s father went to her school to verify her
Patna High Court CR. APP (SJ) No.38 of 2014 dt.10-02-2026
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presence and, upon finding that she was not there and that the
appellant was also absent, he suspected the appellant of having
taken the victim away. At the time of registration of the FIR by the
victim’s father, the allegations were based only on suspicion. So far
as the delay of nine days in lodging the FIR is concerned, the same
has remained unexplained for the major part of the period.
Although some justifiable explanation appears to exist for the first
two days, no explanation has been furnished for the remaining
period of about seven days. The informant did not offer any
explanation for this delay either in the FIR or during his evidence
before the trial court. In view of the principles laid down by the
Hon’ble Apex Court, such inordinate and unexplained delay goes
against the prosecution and casts a serious doubt on its allegations.
In this regard, the observations made by the Hon’ble Apex Court in
M. Madhusudan Rao (supra), as discussed hereinabove, are
relevant.
13.1. Now, I come to the veracity of the victim’s
evidence. In cases of rape or kidnapping of a minor girl, the victim
herself is considered the most important witness, particularly with
regard to allegations attracting such offences when they are stated
to have been committed at isolated places. As per the victim’s
statement recorded before the Judicial Magistrate, which was
proved by the prosecution as Exhibit-5, she stated that she was
Patna High Court CR. APP (SJ) No.38 of 2014 dt.10-02-2026
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first taken to Dumraon Station, from where she was taken to
Buxar, and thereafter to Pune, Maharashtra, by train, where she
stayed only during the daytime. She further stated that she returned
to Tatanagar by train and from there was taken by the appellant to
Bokaro, where she was kept in a hotel for about 12–13 days.
During that period, the appellant allegedly established sexual
relations with her on 5–6 occasions, and although she resisted, the
appellant caught hold of her hands and legs while committing the
alleged sexual offence. Similar evidence was given by the victim
before the trial court. The victim was recovered on 19.02.2012 and
on the next day, i.e., 20.02.2012, she was medically examined.
However, no injury or sign on her person suggestive of forcible
sexual intercourse was found by the Medical Board. It is important
to mention here that from the date of her recovery till her
production before the Judicial Magistrate by the police, the victim
remained in the custody of her parents and, therefore, the
possibility of influence or tutoring during that period cannot be
ruled out. So far as the other parts of the events disclosed by the
victim before the trial court and in her statement recorded under
Section 164 of the Cr.P.C. are concerned, certain material
contradictions emerge. Firstly, before the Judicial Magistrate, the
victim stated that from Mohaniya she was taken by two persons,
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namely, Baru Singh and Shankar Acharya, in a car, and after some
distance she was shifted to a Bolero vehicle and thereafter taken
towards Naya Bhojpur Police Station. In this part of the incident,
the victim did not state anything about the presence of the
appellant or his father. However, before the trial court, she deposed
that during this part of the occurrence, the appellant and his father
were also present along with Baru Singh and Shankar Acharya.
Secondly, as per the victim’s deposition before the trial court, the
accused brought her near Naya Bhojpur Police Station and got her
seated in a police vehicle which was present there. Such alleged
conduct of the appellant does not appear to be probable. Moreover,
the Investigating Officer has not stated anything regarding such
conduct of the appellant or about the mode of recovery as
disclosed by the victim herself. Further, in her statement recorded
under Section 164 of the Cr.P.C. before the Judicial Magistrate, the
victim stated that she was brought near Naya Bhojpur Police
Station where a police vehicle was already parked and that the
accused made her sit in the police vehicle and thereafter fled away.
However, before the trial court, she deposed that the police vehicle
came from behind. With regard to the place of recovery, the
Investigating Officer deposed that the victim was recovered from
Naya Bhojpur Chowk. Thus, the manner of recovery as stated by
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the victim does not find corroboration from the evidence of the
Investigating Officer. In view of these contradictions, the victim
does not appear to be a sterling witness of very high quality. In
such circumstances, the main parts of the incidents as disclosed by
the victim ought to have been properly investigated by the
Investigating Officer, such as her alleged movement from
Dumraon to Buxar, thereafter to Pune, Maharashtra, by train, then
back to Tatanagar by train, from where she was taken to Bokaro by
bus, and thereafter to Mohaniya, where she was allegedly kept in
hotels by the appellant. With regard to these places of stay of the
victim with the appellant, the Investigating Officer could have
easily verified the same, but no effort in that regard was made.
Further, with respect to the alleged involvement of the appellant’s
father, brother and brother’s wife, as well as two persons, namely,
Baru Singh and Shankar Acharya, in facilitating the victim’s stay
and in taking her from Mohaniya, no investigation whatsoever was
conducted by the Investigating Officer.
Conclusion:-
14. In these circumstances, I find that there is no
corroborative evidence to support certain parts of the alleged
occurrence. It would, therefore, not be safe for upholding the
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conviction of the appellant solely on the basis of the victim’s
testimony in the absence of corroboration of the ancillary incidents
emerging from her evidence. Moreover, the trial court, in the
concluding portion of the impugned judgment, has not assigned
any cogent or convincing reasons for arriving at the conclusion of
conviction, and the reasons recorded are wholly unacceptable. In
my considered opinion, the appellant is entitled to the benefit of
doubt. Accordingly, the judgment of conviction dated 09.12.2013
passed by the Court of the Additional District and Sessions Judge-
II, Buxar, in Sessions Trial No. 94 of 2012, convicting the
appellant for the offence punishable under Section 376 of the IPC,
and the order of sentence dated 11.12.2013 passed therein, are not
sustainable in the eye of law. Both are, therefore, set aside and the
instant appeal is allowed.
15. As the appellant has already undergone the entire
sentence of imprisonment awarded to him in connection with this
matter, no direction for his release is required.
16. Let the records of the trial court, along with a copy
of this judgment, be sent forthwith to the court concerned for
compliance and for doing the needful.
17. Mr. Sumeet Kumar Singh, learned Amicus Curiae,
shall be entitled to remuneration in terms of the Notification dated
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18.05.2017 issued by the State Government. The said
remuneration shall be paid by the Patna High Court Legal Services
Committee for assisting this Court as Amicus Curiae.
(Shailendra Singh, J)
maynaz/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 18.02.2026
Transmission Date 18.02.2026
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