Sambhu Sada vs The State Of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.529 of 2015
CNR No. BRHC010876672015
Arising Out of PS. Case No.-387 Year-2010 Thana- MADHEPURA District- Madhepura
======================================================
Sambhu Sada, Son of Kari Sada, Resident of Village Khopaiti, P.S.
Madhepura, District Madhepura.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
Appearance :
Amicus for the Appellant : Mr. Paritosh Parimal, Adv.
For the Respondent : Ms. Anita Kumari Singh, APP,
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 27-10-2026
Heard the parties.
2. The present appeal has been preferred against
the judgment of conviction dated 23.06.2015 and order of
sentence dated 09.07.2015 passed by the learned Second
Additional Sessions Judge, Madhepura in Sessions Trial No.
53A of 2011, arising out of Madhepura P.S. Case No. 387 of
2010, whereby the appellant has been convicted for the
offences punishable under Sections 366-A and 376 of the
Indian Penal Code and has been sentenced to undergo
rigorous imprisonment for four years with fine for the
offence under Section 366-A IPC and rigorous imprisonment
for five years with fine for the offence under Section 376
IPC, the sentences having been directed to run concurrently.
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The appellant has questioned the aforesaid finding of
conviction and sentence primarily on the ground that the
prosecution evidence, when examined in its entirety, does
not inspire confidence and is insufficient to sustain the
conviction beyond reasonable doubt.
3. The prosecution case, in brief, as emerging from
the written report, is that the informant, namely, Vidyanand
Bhagat, father of the victim Soni Kumari, alleged that on the
night of 12.09.2010 his minor daughter had been taken
away by the accused persons. The allegation was that the
victim had been taken away by Sambhu Sada, Rajan Sada,
Kari Sada and Sandeep Sada and that certain amount of
money was also found missing from the house. On the basis
of the written report, Madhepura P.S. Case No. 387 of 2010
came to be instituted under Sections 366-A, 379 and 376 of
the Indian Penal Code. The prosecution thereafter proceeded
with the investigation and the matter ultimately culminated
in trial. The record discloses that the victim was recovered
on 17.09.2010 and was thereafter medically examined on
18.09.2010.
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4. The prosecution, in order to substantiate its
case, examined altogether ten witnesses. PW-1 Sonu Kumar
is the brother of the victim; PW-2 Mala Devi is her mother;
PW-3 Lalo Bhagat is her cousin brother; PW-4 Vidyanand
Bhagat is the informant and father of the victim; PW-5 Dr.
A.K. Verma, PW-6 Dr. Nisha and PW-7 Dr. B.K. Gupta are
the medical witnesses; PW-8 Brij Banshi Kumar Singh is the
Investigating Officer; PW-9 Soni Kumari is the victim herself
and PW-10 Manshur Alam is the learned Judicial Magistrate
who recorded the statement of the victim under Section 164
Cr.P.C. The prosecution also brought on record the medical
documents and the statement of the victim under Section
164 Cr.P.C.
5. Learned counsel appearing for the appellant has
submitted that the learned Trial Court has not properly
appreciated the evidence available on the record. It has been
submitted that PW-1 to PW-4 are members of the same
family and, except PW-4 who subsequently claimed himself
to be an eye-witness, the other family witnesses admittedly
had no personal knowledge of the occurrence. It has further
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been submitted that PW-4 has materially improved his
version during trial and his conduct is wholly inconsistent
with the conduct of a father who had actually witnessed his
minor daughter being forcibly taken away. It has also been
submitted that the victim herself has materially varied her
version, particularly with regard to the persons who allegedly
committed rape upon her. Whereas in her deposition she
attributed rape to all the three persons, her statement under
Section 164 Cr.P.C. confined the allegation of rape to
Sambhu Sada. The learned counsel has further relied upon
the medical evidence and the absence of any finding of
recent intercourse, as well as the deficiencies in
investigation.
6. Learned counsel has also submitted that the
essential ingredients of Section 366-A IPC are not
established. Reliance has been placed upon the judgment of
the Hon'ble Supreme Court in Sat Parkash v. State of
Haryana and another, (2015) 16 SCC 475 : 2015 SCC
OnLine SC 1310 , particularly paragraphs 5 and 6, wherein
the Hon'ble Supreme Court has held that for attracting
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Section 366-A IPC, the inducement of the minor girl must be
with the requisite intent that she may be forced or seduced
to illicit intercourse with another person.
7. Per contra, learned Additional Public Prosecutor
has supported the judgment of conviction and has submitted
that the victim was admittedly a minor and her evidence
regarding commission of rape by the appellant deserves to
be accepted. It has further been submitted that minor
discrepancies in the statements of the prosecution witnesses
should not be given undue importance and the testimony of
the victim of sexual assault, if otherwise credible, can by
itself form the basis of conviction.
8. I have given anxious consideration to the rival
submissions and have carefully gone through the evidence
available on the record. The appellate jurisdiction in a
criminal appeal carries with it a duty to independently
scrutinize the entire evidence and to arrive at its own
conclusion regarding the reliability of the prosecution case.
The presumption of innocence is not effaced merely because
the Trial Court has recorded a conviction. It continues until
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the prosecution succeeds in establishing guilt beyond
reasonable doubt before the appellate court also. The
Hon'ble Supreme Court in Kamlesh Prabhudas Tanna v.
State of Gujarat, (2013) 15 SCC 263 , relying upon
Padam Singh v. State of U.P ., has reiterated that the
appellate court has to independently examine whether the
evidence can be relied upon and whether the prosecution has
proved its case beyond reasonable doubt.
9. Before examining the evidence of the victim, it
would be appropriate to notice the broad contours of the
prosecution evidence. There are ten prosecution witnesses,
but PW-1 to PW-4 are closely related to the victim. PW-1,
PW-2 and PW-3 admittedly do not claim to have witnessed
the occurrence. Their evidence, therefore, cannot
independently establish either the taking away of the victim
or the commission of rape upon her. The Investigating
Officer, PW-8 , also admitted during cross-examination that
none of the witnesses had claimed before him to have seen
the accused persons taking away the victim. The co-ordinate
Bench, while considering the Criminal Appeal (SJ) No.468 of
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2015 of co-accused Sandeep Sada, has specifically noticed
this aspect of the investigation.
10. PW-1 Sonu Kumar, the brother of the victim,
has stated that he came to know about the occurrence and
has narrated what was subsequently disclosed regarding the
victim being taken away. He is not an eye-witness. PW-2
Mala Devi, mother of the victim, is also not an eye-witness
and her evidence substantially rests upon what she
subsequently came to know. PW-3 Lalo Bhagat, cousin
brother of the victim, similarly does not claim to have
witnessed the actual occurrence and his evidence is based
upon information received from others. Thus, the evidence
of these witnesses, though relevant to the subsequent
circumstances, does not furnish direct corroboration to the
allegation that the present appellant forcibly took away the
victim or committed rape upon her.
11. The most important evidence, therefore, is
that of PW-4 Vidyanand Bhagat, the informant and father
of the victim, and PW-9 Soni Kumari, the victim herself.
Their evidence requires close and cautious scrutiny because
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the conviction of the appellant substantially rests upon the
acceptance of this evidence.
12. PW-4 has claimed himself to be an eye-
witness. According to his deposition, while he was sleeping at
his Darwaja, he woke up and allegedly saw the appellant
Sambhu Sada and Sandeep Sada along with his daughter on
a motorcycle, taking her away. However, the difficulty which
arises is that the claim of PW-4 as an eye-witness does not
satisfactorily stand the test of his own cross-examination. He
has admitted that it was a dark night and that he had seen
the occurrence from a considerable distance. The co-ordinate
Bench while deciding the appeal of co-accused Sandeep
Sada has also noticed that PW-4's assertion of being an
eye-witness was an improvement over the earlier version
and that his conduct, in the circumstances narrated by him,
was improbable.
13. The question which assumes significance is as
to why, if PW-4 had actually witnessed his minor daughter
being forcibly taken away in front of him, he did not raise an
alarm, did not chase the persons allegedly taking her away
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and did not immediately approach the police. The
prosecution case itself is that the occurrence took place at
night. Yet the written report was lodged on 14.09.2010 in
respect of an occurrence stated therein to have taken place
on 12.09.2010. Thus, there is a delay of two days.
Ordinarily, delay by itself cannot be treated as fatal in a case
of sexual offence; however, when the person explaining the
occurrence claims to be an eye-witness and the prosecution
does not furnish a convincing explanation for his conduct in
remaining silent or inactive, such delay assumes significance
in assessing the overall credibility of the prosecution version.
14. It is well settled that delay in lodging the FIR
is not an inflexible ground for rejection of the prosecution
case, particularly in cases involving sexual offences. The
Hon'ble Supreme Court has repeatedly held that the
circumstances causing delay must be examined. At the same
time, where the alleged eye-witness had the immediate
opportunity to report the occurrence but his conduct is
inconsistent with the natural course of human behaviour,
such delay becomes one of the surrounding circumstances
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requiring careful consideration. In the present case, the
delay is not being considered in isolation; it is being
considered along with the material improvement made by
PW-4 , his inability to satisfactorily explain his conduct and
the other contradictions appearing in the prosecution
evidence.
15. PW-4 has further stated that the victim was
taken away towards Bishunpur. He has also stated about the
alleged missing money and, subsequently, ornaments.
However, the prosecution has not produced any satisfactory
material showing recovery of the alleged money or
ornaments. PW-8 , the Investigating Officer, has admitted
that the amount allegedly taken away was not recovered. He
has further stated that none of the witnesses had claimed to
have seen the accused persons taking away the victim. He
also admitted that no document regarding the age of the
victim was seized during investigation.
16. The conduct of PW-4 becomes still more
relevant when considered in the light of the alleged manner
of occurrence. If the father had actually awakened upon
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hearing some sound and thereafter seen his daughter being
taken away in his immediate presence, the natural human
response would ordinarily have been to raise an alarm,
attempt to prevent the taking away, pursue the alleged
offenders or immediately approach the police or neighbours.
None of these circumstances finds satisfactory support from
the evidence. The absence of such contemporaneous
conduct, coupled with the unexplained delay and the
subsequent improvement in the version of PW-4 , creates a
serious dent in his claim of being an eye-witness.
17. The evidence of PW-9 , the victim, now
requires consideration. It is undoubtedly true that in a
prosecution for rape the testimony of the victim occupies a
position of considerable importance. There is no requirement
of law that the testimony of a prosecutrix must invariably be
corroborated before it can be acted upon. If the testimony is
natural, cogent, consistent and of sterling quality, conviction
can be based upon it. But the converse proposition is equally
important: the status of a prosecutrix does not dispense with
the judicial duty of testing the intrinsic worth of her
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evidence. Where her testimony suffers from material
contradictions, improvements and circumstances which
create a reasonable doubt about the prosecution version, the
Court cannot convict merely because the allegation is of a
serious nature.
18. The Hon'ble Supreme Court in Nirmal
Premkumar and another v. State represented by
Inspector of Police, 2024 SCC OnLine SC 260 , has
recently reiterated that oral testimony can broadly be
examined in three categories, namely, wholly reliable, wholly
unreliable and neither wholly reliable nor wholly unreliable.
In the third category, the Court has to be circumspect and
look for corroboration in material particulars. The Hon'ble
Supreme Court further observed that a victim can be relied
upon as a “sterling witness” without further corroboration
only when the quality and credibility of her evidence is
exceptionally high and her statement remains substantially
consistent from the beginning to the end. Material
contradictions and missing links may make conviction
unsafe. It would be apposite to reproduce paragraph no. 22
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of the Nirmal Premkumar case (supra) which are as
under:-
“22. This Court was tasked to adjudicate a
matter involving gang rape allegations under Section
376(2)(g)IPC in Rai Sandeep v. State (NCT of Delhi)
[Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC
21 : (2012) 3 SCC (Cri) 750] . The Court found totally
conflicting versions of the prosecutrix, from what was
stated in the complaint and what was deposed before
Court, resulting in material inconsistencies. Reversing
the conviction and holding that the prosecutrix cannot be
held to be a “sterling witness”, the Court opined as
under: (SCC p. 29, para 22)
“22 [ Ed. : Para 22 corrected vide Official Corrigendum
No. F.3/Ed.B.J./48/2012 dated 18-8-2012.] . In our
considered opinion, the “sterling witness” should be of a
very high quality and calibre whose version should,
therefore, be unassailable. The court considering the
version of such witness should be in a position to accept
it for its face value without any hesitation. To test the
quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency
of the statement right from the starting point till the
end, namely, at the time when the witness makes the
initial statement and ultimately before the court. It
should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it
may be and under no circumstance should give room for
any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such a
version should have co-relation with each and every one
of other supporting material such as the recoveries
made, the weapons used, the manner of offence
committed, the scientific evidence and the expert
opinion. The said version should consistently match with
the version of every other witness. It can even be stated
that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as
well as all other such similar tests to be applied, can it
be held that such a witness can be called as a “sterling
witness” whose version can be accepted by the court
without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the
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said witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order to
enable the court trying the offence to rely on the core
version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
19. The present case, in my considered view, does
not fall within the category of a case where the testimony of
PW-9 can safely be characterised as wholly reliable or of
sterling quality. PW-9 , in her deposition before the learned
Trial Court, initially attributed the commission of rape to all
the three persons, but during the course of her evidence she
corrected herself and stated that it was Sambhu Sada who
had committed rape and that the others were merely
present. Her statement under Section 164 Cr.P.C., however,
contains an allegation regarding the present appellant alone.
Thus, the statement before the Magistrate and the
deposition before the Trial Court cannot be mechanically
treated as identical versions. The expansion of the allegation
before the Trial Court regarding the participation of all the
accused, followed by correction during the same deposition,
is not a minor variation when the very identity and
participation of the persons allegedly committing the sexual
assault are in issue. The co-ordinate Bench has specifically
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noticed this aspect of PW-9's evidence.
20. It is true that a statement recorded under
Section 164 Cr.P.C. is not substantive evidence and the
same cannot be treated as a substitute for evidence recorded
during trial. Nevertheless, the earlier statement can be used
for the purposes recognised by law, including testing the
consistency and credibility of the witness. In the present
case, it is not being treated as substantive evidence against
the appellant; rather, it is being considered as one of the
circumstances while testing whether the subsequent
testimony of PW-9 is consistent, natural and trustworthy.
21. There are other circumstances which require
consideration. The prosecution case as set out in the written
report places the occurrence on 12.09.2010, whereas PW-9
in her deposition has referred to 14.09.2010 as the date of
occurrence. PW-1 has spoken about the occurrence in a
different manner and at a different point of time. Such
variations regarding the date and circumstances of the
alleged occurrence assume importance because the
prosecution seeks to rely upon the testimony of the victim as
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the principal evidence connecting the present appellant with
the offence.
22. The recovery of the victim on 17.09.2010 is,
no doubt, a relevant circumstance. However, recovery of a
victim by itself does not establish who committed rape upon
her. The prosecution was required to establish the
connecting link between the appellant and the commission of
the offence by evidence which inspires confidence. The
Investigating Officer has not brought on record any
independent witness to the recovery. The place where the
victim allegedly remained during the intervening period was
also not satisfactorily established through objective
investigation. The co-ordinate Bench has noticed that the
prosecution remained silent regarding the precise mode of
recovery and that the Investigating Officer had failed to
locate the place where the victim was allegedly confined.
23. Coming to the medical evidence, PW-5
estimated the age of the victim at about 14-15 years. PW-6
Dr. Nisha found the hymen to be torn, but no sign
suggestive of recent intercourse was found. PW-7 , another
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member of the Medical Board, essentially proved his
signature. The medical examination was conducted on
18.09.2010, i.e. soon after the recovery of the victim on
17.09.2010. However, on the date of occurrence as
mentioned in the FIR, namely 12.09.2010, the medical
examination was several days thereafter. Thus, the medical
evidence does not furnish any direct connecting circumstance
showing that the appellant had committed rape upon the
victim at the alleged place and time.
24. This Court is conscious of the settled legal
position that absence of injuries or absence of medical
findings suggestive of recent intercourse cannot, by itself, be
treated as proof that rape did not occur. The medical opinion
is essentially expert and corroborative in nature. In State of
Punjab v. Gurmit Singh, (1996) 2 SCC 384 , the Hon'ble
Supreme Court cautioned that the evidence of the
prosecutrix in a sexual offence must be appreciated with
sensitivity and that irrelevant or minor discrepancies should
not be magnified. The converse, however, is equally true:
where the oral testimony itself suffers from material
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infirmities, the Court cannot use the medical evidence to
supply the missing credibility.
25. In the present case, therefore, the medical
evidence is not being used to hold that rape was medically
impossible. Rather, its significance lies in the fact that it does
not provide the corroborative assurance which could have
become material once the oral evidence is found to suffer
from inconsistencies. The absence of any finding of recent
intercourse, coupled with the absence of any other scientific
or independent material connecting the appellant with the
alleged act, assumes significance in the peculiar facts of the
present case.
26. The principle governing appreciation of a sole
eye-witness is also well settled. In Vadivelu Thevar v.
State of Madras, AIR 1957 SC 614 , particularly
paragraphs 17 and 18, the Hon'ble Supreme Court classified
witnesses into three broad categories—wholly reliable,
wholly unreliable and neither wholly reliable nor wholly
unreliable—and held that where the witness falls in the third
category, corroboration in material particulars is required as
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a matter of prudence. The principle has subsequently been
reiterated in Sunil Kumar v. State (Govt. of NCT of
Delhi), (2003) 11 SCC 367 , particularly paragraph 9, that
there is no legal impediment in acting upon the testimony of
a single witness, but where doubts arise regarding his
testimony, the Court may insist upon corroboration. The
settled rule is that evidence is to be weighed and not
counted; it is the quality and not the quantity which matters.
27. It would be apposite to reproduce paragraph
nos. 17 and 18 of the Vadivelu Thevar case (supra)
which are as under:-
“17. Section 134 of the Indian Evidence
Act, has categorically laid it down that “no particular
number of witnesses shall, in any case, be required for
the proof of any fact”. The legislature determined, as
long ago as in 1872, presumably after due consideration
of the pros and cons, that it shall not be necessary for
proof or disproof of a fact, to call any particular number
of witnesses. In England, both before and after the
passing of the Indian Evidence Act, 1872, there have
been a number of statutes as set out in Sarkar's Law of
Evidence, 9th Edn., at pp. 1100 and 1101, forbidding
convictions on the testimony of a single witness. The
Indian legislature has not insisted on laying down any
such exceptions to the general rule recognised in Section
134 quoted above. The section enshrines the well-
recognised maxim that “Evidence has to be weighed and
not counted”. Our legislature has given statutory
recognition to the fact that administration of justice may
be hampered if a particular number of witnesses were to
be insisted upon. It is not seldom that a crime has been
committed in the presence of only one witness, leaving
aside those cases which are not of uncommon
occurrence, where determination of guilt depends
entirely on circumstantial evidence. If the legislature
were to insist upon plurality of witnesses, cases where
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the testimony of a single witness only could be available
in proof of the crime, would go unpunished. It is here
that the discretion of the presiding Judge comes into
play. The matter thus must depend upon the
circumstances of each case and the quality of the
evidence of the single witness whose testimony has to
be either accepted or rejected. If such a testimony is
found by the court to be entirely reliable, there is no
legal impediment to the conviction of the accused person
on such proof. Even as the guilt of an accused person
may be proved by the testimony of a single witness, the
innocence of an accused person may be established on
the testimony of a single witness, even though a
considerable number of witnesses may be forthcoming to
testify to the truth of the case for the prosecution.
Hence, in our opinion, it is a sound and well-established
rule of law that the court is concerned with the quality
and not with the quantity of the evidence necessary for
proving or disproving a fact.
18. Generally speaking, oral
testimony in this context may be
classified into three categories,
namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no
difficulty in coming to its conclusion either way—it may
convict or may acquit on the testimony of a single
witness, if it is found to be above reproach or suspicion
of interestedness, incompetence or subornation. In the
second category, the court equally has no difficulty in
coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to
look for corroboration in material particulars by reliable
testimony, direct or circumstantial.”
28. It would be apposite to reproduce paragraph
no. 9 of the Sunil Kumar case (supra) which are as
under:-
“9. Vadivelu Thevar case [AIR 1957 SC
614 : 1957 Cri LJ 1000] was referred to with approval
in the case of Jagdish Prasad v. State of M.P. [1995
SCC (Cri) 160 : AIR 1994 SC 1251] This Court held
that as a general rule the court can and may act on the
testimony of a single witness provided he is wholly
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reliable. There is no legal impediment in convicting a
person on the sole testimony of a single witness. That is
the logic of Section 134 of the Indian Evidence Act,
1872 (in short “the Evidence Act”). But, if there are
doubts about the testimony the courts will insist on
corroboration. It is for the court to act upon the
testimony of witnesses. It is not the number, the
quantity, but the quality that is material. The time-
honoured principle is that evidence has to be weighed
and not counted. On this principle stands the edifice of
Section 134 of the Evidence Act. The test is whether the
evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.”
29. The same principle has been reiterated in
Gulam Sarbar v. State of Bihar (now Jharkhand),
(2014) 3 SCC 401 , paragraph 19, and in subsequent
decisions of the Hon'ble Supreme Court. The law, therefore,
does not require plurality of witnesses, but it certainly
requires the quality of the evidence to cross the threshold of
reliability. Thus, even a sole witness can sustain conviction
where the evidence has a ring of truth and is wholly reliable.
Conversely, several witnesses cannot sustain conviction if
their evidence does not inspire confidence.
30. Tested on the aforesaid principles, PW-4
cannot be treated as a wholly reliable eye-witness. His claim
of witnessing the occurrence is surrounded by circumstances
which render his presence in the manner claimed doubtful.
His conduct immediately after the alleged occurrence is not
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consistent with the ordinary course of human conduct. The
delay of two days in lodging the written report, in the facts
of the present case, remains unexplained. His evidence
regarding the occurrence does not stand in harmony with the
earliest version. More importantly, the Investigating Officer
has stated that none of the witnesses had claimed before
him to have seen the accused taking away the victim.
31. PW-9 also cannot be treated as a witness
whose testimony is free from material infirmity. Her version
regarding the persons who committed rape is not consistent
throughout. Her Section 164 statement is confined to the
present appellant, whereas her deposition initially attributes
rape to all three persons and thereafter contains a
correction. There are also variations regarding the date and
circumstances of the occurrence. These are not being treated
as mere discrepancies arising out of lapse of memory. They
relate to the core prosecution story concerning the
occurrence and the participation of the accused persons.
32. It is also significant that the prosecution story
regarding the taking away of the victim on a motorcycle
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suffers from inherent difficulties. The evidence on record
indicates that more than one person was allegedly involved
in taking the victim away on a motorcycle. The co-ordinate
Bench, while examining the same prosecution occurrence in
the appeal preferred by Sandeep Sada, found the manner of
alleged kidnapping to be improbable and also noticed the
absence of any hue and cry or satisfactory evidence
regarding the recovery and place of confinement.
33. I am conscious that the judgment rendered by
the co-ordinate Bench in Criminal Appeal (SJ) No. 468 of
2015, Sandeep Sada v. The State of Bihar, dated
29.03.2017 , is not to be mechanically applied to the
present appellant. The present appellant's liability has to be
determined independently on the evidence led against him.
Nevertheless, the findings recorded therein regarding the
same occurrence, the same victim, the same informant and
substantially the same set of witnesses constitute a relevant
circumstance which cannot be ignored while examining
whether the prosecution version as a whole carries the
required ring of truth. The co-ordinate Bench ultimately
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allowed the appeal and set aside the conviction after finding
material infirmities in the prosecution evidence.
34. So far as Section 366-A IPC is concerned, the
statutory requirement cannot be diluted. The prosecution
was required to establish that the minor girl was induced by
the accused to go from any place or to do any act with the
intent that she may be, or knowing that she was likely to be,
forced or seduced to illicit intercourse with another person.
In Sat Parkash v. State of Haryana and another,
(2015) 16 SCC 475 : 2015 SCC OnLine SC 1310 ,
paragraphs 5 and 6, the Hon'ble Supreme Court has
categorically held that the element of “another person” is an
essential part of the statutory requirement and, in absence
of such allegation and proof, Section 366-A cannot be
sustained.
35. It would be apposite to reproduce paragraph
nos. 5 and 6 of the Sat Parkash case (supra) which are as
under:-
“5. The charge with reference to Section
366-A of the Penal Code needs a closer examination.
Section 366-A of the Penal Code is extracted hereunder:
“ 366-A.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
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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.”
A perusal of the aforesaid section reveals that the
inducing of the minor to constitute an offence under
Section 366-A should have been with reference to an
intent to force or seduce her “… to illicit intercourse with
another person …”. In fact, there is no mention of any
other person in the sequence of allegations levelled
against the appellant.
6. In the above view of the matter we are
satisfied that the charge under Section 366-A IPC was
also not sustainable against the appellant. For the
reasons recorded hereinabove, we are of the view that
the impugned order [Sarla v. State of Haryana, 2011
SCC OnLine P&H 124] passed by the High Court
convicting the appellant under Section 366-A of the
Penal Code is also liable to be set aside. The same is
accordingly hereby set aside.
”
36. In the case at hand, the prosecution evidence
does not establish the necessary mens rea of the present
appellant for procuring the victim for illicit intercourse with
another person. The allegation ultimately emerging against
the appellant is that he himself committed rape. There is no
clear and trustworthy evidence demonstrating that the
appellant induced the victim to go from one place to another
with the intention that she would be forced or seduced to
illicit intercourse with some other person. The necessary
statutory ingredient, therefore, remains unproved. The
conviction of the appellant under Section 366-A IPC cannot
be sustained.
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37. The matter concerning Section 376 IPC
requires a still more cautious approach. The seriousness of
an allegation of rape cannot be permitted either to dilute the
standard of proof or to substitute moral conviction for legal
proof. Equally, the Court cannot approach the testimony of a
prosecutrix with a predetermined notion that her evidence
must necessarily be accepted irrespective of its intrinsic
infirmities. The correct approach is one of sensitivity coupled
with judicial scrutiny.
38. The Hon'ble Supreme Court in Nirmal
Premkumar case (supra) has aptly recognised that a
victim's testimony may be sufficient when it possesses
exceptional consistency and credibility, but where material
contradictions and missing links exist, the same may render
conviction unsafe. In the present case, the Court is not
rejecting the testimony of PW-9 merely because there is no
independent eye-witness to the rape. The difficulty is deeper.
Her version, when examined from its earliest available
statement up to her deposition, is attended by material
variation regarding the participation of the accused persons
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
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and the circumstances of the occurrence. Her testimony is
also not supported by the surrounding evidence to such an
extent that the Court may safely conclude that the
appellant's guilt has been proved beyond reasonable doubt.
39. The prosecution has thus failed to bridge the
gap between suspicion and proof. The appellant may have
been named in the prosecution case and the victim may have
subsequently attributed the act of rape to him, but criminal
conviction cannot rest upon the mere possibility that the
prosecution version may be true. The Hon'ble Supreme Court
in Santosh @ Bhure v. State (NCT of Delhi), 2023
INSC 443 , particularly in paragraphs 24, 25 and 86, while
reiterating the principles laid down in Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793
and Devi Lal v. State of Rajasthan, (2019) 19 SCC
447 , has held that the accused must be and not merely may
be guilty before a Court proceeds to convict and that the
prosecution has to elevate its case from the realm of “may
be true” to the plane of “must be true”, as is indispensably
required for conviction on a criminal charge. The Hon'ble
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
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Supreme Court has further reiterated that suspicion,
however grave, cannot substitute proof. Where the evidence
admits of a reasonable doubt regarding the participation of
the accused, the benefit necessarily goes to him.
40. It would be apposite to reproduce paragraph
nos. 24, 25 and 86 of the Santosh @ Bhure case (supra)
which are as under:-
“ 24. In addition to the above, while dealing
with a criminal trial, a Court must not be oblivious of the
most fundamental principle of criminal jurisprudence,
which is, that the accused ‘must be’ and not merely ‘may
be’ guilty before the Court proceeds to convict him. In
Shivaji Sahabrao Bobade & Another v. State of
Maharashtra6, this Court, elaborating upon the above
principle, observed that the mental distance between
‘may be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.
25. Adding on to the aforesaid legal
principles, in Devi Lal v. State of Rajasthan7, a three-
judge Bench of this Court held that in a case based on
circumstantial evidence where two views are possible,
one pointing to the guilt and the other to his innocence,
the accused is entitled to the benefit of one which is
favourable to him. The relevant portion of the judgment
is extracted below:-
“18. … Though the materials on
record hold some suspicion towards them, but
the prosecution has failed to elevate its case
from the realm of "may be true" to the plane of
"must be true" as is indispensably required in
law for conviction on a criminal charge. It is trite
to state that in a criminal trial, suspicion,
howsoever grave, cannot substitute proof.
19. … in the case of circumstantial
evidence, two views are possible on the case of
record, one pointing to the guilt of the accused
and the other his innocence. The accused is
indeed entitled to have the benefit of one which
is favourable to him.”
86. In light of the discussion above, we
have no hesitation in holding that the prosecution has
failed to prove a chain of incriminating circumstances as
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
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to conclusively point out that in all human probability it
was the two accused or any one of them, and no one
else, who had committed the murder. In such
circumstances, even if Santosh failed to explain as to
how the dead body of the deceased was found in his
apartment, an inference of his guilt cannot be drawn. In
a nutshell, it is a case where the prosecution failed to
elevate its case from the realm of "may be true" to the
plane of "must be true" as is indispensably required for
conviction on a criminal charge.”
41. The principle ei incumbit probatio qui dicit, non
qui negat—the burden of proof lies upon the person who
asserts and not upon the person who denies—is embedded
in the criminal justice system. The burden throughout
remains upon the prosecution to establish every essential
ingredient of the offence. The appellant is not required to
establish his innocence by proving an alternative version
beyond reasonable doubt. Equally relevant is the principle in
dubio pro reo, meaning that where two reasonable views are
possible on the evidence, the view favourable to the accused
must prevail.
42. These principles are not merely technical rules
of evidence. They form part of the constitutional guarantee
of a fair criminal process under Article 21 of the
Constitution. Personal liberty cannot be taken away except
by a procedure which is fair, just and reasonable. A
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
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conviction based upon conjecture, suspicion or materially
infirm testimony would be inconsistent with the constitutional
requirement of fairness. The criminal process must protect
the victim's right to justice, but at the same time it must
protect the accused from conviction on evidence which does
not attain the requisite standard of proof. The two principles
are not contradictory; rather, they constitute the balance
upon which the administration of criminal justice rests.
43. The learned Trial Court, in my considered
view, has not adequately appreciated the cumulative effect
of the aforesaid infirmities. The evidence of PW-4 has been
accepted without sufficiently considering his claim of being
an eye-witness vis-à-vis his own conduct, the delay in
lodging the report and the contradictions appearing in his
testimony. Likewise, the material variation in the evidence of
PW-9 and the limited nature of the Section 164 statement
have not been given their proper evidentiary significance.
The Trial Court has also not sufficiently examined whether
the prosecution evidence establishes the ingredients of
Section 366-A in the light of the statutory requirement
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
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explained by the Hon'ble Supreme Court in Sat Parkash
case (supra) .
44. There is another aspect which this Court
cannot lose sight of. The learned Trial Court, while imposing
sentence under Section 376 IPC, awarded five years'
rigorous imprisonment. As the law then applicable to the
offence prescribed a minimum sentence of seven years, the
sentence imposed by the learned Trial Court was lesser than
the statutory minimum. This error was subsequently noticed
by the Hon'ble Co-ordinate Bench of this Court and
clarification was also sought from the learned Trial Court in
respect thereof. The said aspect, however, does not call for
any further adjudication in view of the conclusion reached by
this Court on the merits of the conviction. The conviction
itself having failed, the question of enhancement or
correction of sentence does not survive.
45. On a cumulative consideration of the entire
evidence, this Court finds that the prosecution has not been
able to establish the guilt of the present appellant beyond
reasonable doubt. The evidence of PW-4 does not inspire
confidence as a reliable eye-witness. PW-1 to PW-3 are not
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
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eye-witnesses. The evidence of PW-9 suffers from material
variations between her earlier statement and her deposition.
The medical evidence does not provide the necessary
corroborative assurance in the factual setting of the present
case. The recovery of the victim, by itself, does not establish
the appellant's participation in the alleged offence. The
investigation also leaves material gaps. The statutory
ingredients of Section 366-A IPC are not established.
46. Criminal jurisprudence does not permit a Court
to convict merely because an offence appears to have occurred
or because the accused had an opportunity to commit it. The
prosecution must establish the accused's participation through
evidence which is cogent, credible and trustworthy. Suspicion,
however strong, cannot take the place of proof. Where the
chain of evidence leaves a reasonable possibility inconsistent
with the guilt of the accused, the Court is bound to give effect
to that doubt.
47. Accordingly, this Court is of the considered view
that the judgment of conviction dated 23.06.2015 and the
order of sentence dated 09.07.2015 passed by the learned
Second Additional Sessions Judge, Madhepura in Sessions Trial
Patna High Court CR. APP (SJ) No.529 of 2015 dt.27-10-2026
33/33
No. 53A of 2011 cannot be sustained and are hereby set
aside. The appellant Sambhu Sada is acquitted of the offences
for which he has been convicted.
48. Accordingly, bailors and sureties are discharged
from their liabilities, fine, if any, paid by appellant be returned
forthwith.
49. Before parting with the matter, this Court
records its appreciation for the assistance rendered by the
learned Amicus Curiae. The Patna High Court Legal Services
Committee is directed to pay a sum of Rs.10,000/- (Rupees
Ten Thousand) to Mr. Paritosh Parimal, Amicus Curiae towards
his/her fee and expenses.
50. The appeal stands allowed.
51. Let the trial court records be transmitted to the
court concerned forthwith along with a copy of this judgment.
(Chandra Shekhar Jha, J.)
Aniket/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 30.10.2026
Transmission Date 30.10.2026