Jharkhand High Court
Dharmeshwar Oraon vs The State Of Jharkhand on 13 February, 2026
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1169 of 2018
Dharmeshwar Oraon ... ... ... Appellant
Versus
The State of Jharkhand ... ... ... Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
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For the Appellant: Mr Akhouri Awinash Kumar, Advocate
Ms Ashwini Priya, Advocate
For the State: Mr Manoj Kumar Mishra, A.P.P.
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11 /Dated: 13.02.2026
1. Heard Mr Akhouri Awinash Kumar, learned counsel for the
appellant, and Mr Manoj Kumar Mishra, learned A.P.P. for the State.
2. This matter is referred for my opinion under the provisions of Section
392 of the Cr.P.C., 1973, because the two learned Judges of this Court,
constituting the Division Bench, were divided in their opinions delivered on
06.05.2025.
3. Hon’ble Mr Justice Rongon Mukhopadhyay opined that the appeal
should be allowed, the appellant-accused must be acquitted of the
offences punishable under Sections 376 and 346 of the Indian Penal
Code, and set at liberty if not wanted in any other case. However, Hon’ble
Mr Justice Sanjay Prasad disagreed with Hon’ble Mr Justice
Mukhopadhyay’s opinion and maintained the appellant’s conviction for the
offences punishable under Sections 376 and 346 of the Indian Penal
Code. Nevertheless, Hon’ble Mr Justice Sanjay Prasad also held that the
sentence for life be modified and reduced to the extent of the period
undergone by the appellant in jail custody, “i.e., approximately 12 years”.
Accordingly, even Hon’ble Mr Justice Sanjay Prasad directed that the
appellant be set at liberty forthwith, if not wanted in any other case(s).
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4. In compliance with the provisions of Section 392 of the Cr.P.C., this
matter was assigned to Hon’ble Mr Justice Ambuj Nath on 05.08.2025.
However, Hon’ble Mr Justice Ambuj Nath retired on superannuation on
23.12.2025. Thereafter, the matter was placed before me on 11th
February 2026, and I directed that it be listed before me on 13.02.2026.
5. Section 392 of the Cr.P.C. provides that when an appeal under this
Chapter is heard by a High Court before a Bench of Judges and they are
divided in opinion, the appeal, with their opinions, shall be laid before
another Judge of that Court, and that Judge, after such hearing as he
thinks fit, shall deliver his opinion, and the judgment or order shall follow
that opinion. Provided that if one of the Judges constituting the Bench, or,
where the appeal is laid before another Judge under this section, that
Judge, so requires, the appeal shall be re-heard and decided by a larger
Bench of the Judges.
6. In this case, the proviso to Section 392 is not attracted. Therefore,
this appeal is laid before me for delivering an opinion as contemplated by
the main portion of Section 392 of the Cr.P.C.
7. At the outset, I enquired whether there was any interim application
for suspension of sentence. However, there was no clarity on this aspect.
Although the two learned Judges of this Court were divided in their
opinions, both opinions were unanimous in holding that the appellant
should be released from incarceration forthwith, unless required in any
other case(s). Therefore, if there was clarity on the issue of the institution
of an I.A. seeking suspension of sentence, or clarity on whether the
appellant continues to be in custody as of today, I would have been
inclined to suspend the sentence and order the appellant’s release
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forthwith, unless, of course, his custody was relatable to some other case
or matter.
8. In any event, in light of the above position, the appeal was
considered. Mr Akhouri Awinash Kumar argued for the appellant-accused
and Mr Manoj Kumar Mishra, for the State.
9. Mr Akhouri Awinash Kumar, primarily relied on the reasoning in the
opinion delivered by Hon’ble Mr Justice Rongon Mukhopadhyay. In
addition, he submitted that the prosecution made no effort to prove the age
of the prosecutrix. He submitted that there is no evidence of whether the
appellant was medically examined, and if so, of the medical examination
report. He submitted that the defence as articulated by the appellant in his
Section 313 statement was completely ignored. He submitted that there
were serious inconsistencies and improvements in the prosecutrix’s
version, which were brought about during her cross-examination. However,
since the I.O. was never examined in this matter, such contradictions,
inconsistencies, omissions and improvements could not be brought on
record. He submitted that such a factor should be considered against the
prosecution. He also submitted that the evidence of the semen on the
undergarment of the prosecutrix was inconclusive, and it was, with respect,
incorrectly held as relatable to the appellant in the opinion expressed by
Hon’ble Mr Justice Sanjay Prasad. For all these reasons, Mr Akhouri
Awinash Kumar submitted that the appellant was entitled to be acquitted
or, in any event, entitled to be extended the benefit of the doubt.
10. Mr Akhouri Awinash Kumar submitted that while conviction could be
based on the sole testimony of the prosecutrix, the same was subject to an
important safeguard that such testimony should be of sterling quality and
inspire confidence. He submitted that in the present matter the testimony
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of the prosecutrix did not meet with this benchmark. Further, even the
medical and other evidence was inconsistent with the prosecutrix’s version.
There were serious discrepancies in the prosecutrix’s version in her
Section 164 Cr.P.C. statement and her deposition before the Court. Similar
inconsistencies and discrepancies continue between the version in Chief
and the cross-examination. Her version was inherently improbable. There
was evidence of an earlier love affair and a break-up, possibly because the
prosecutrix felt that the appellant was interested in some other girl. There
was also the issue of previous enmity because the appellant’s cousin had
alleged rape against the prosecutrix’s uncle. For all these reasons, Mr
Akhouri Awinash Kumar submitted that any conviction based solely on the
uninspiring testimony of the prosecutrix could not be sustained. He relied
on State (GNCT of Delhi) Vs. Vipin alias Lalla, 2025 SCC OnLine SC 78
and Santosh Prasad alias Santosh Kumar Vs. State of Bihar, (2020) 3
SCC 443 to support his contentions.
11. Mr Manoj Kumar Mishra, learned Additional Public Prosecutor for
the State, relied mainly on the opinion of Hon’ble Mr Justice Sanjay Prasad
and submitted that the appellant’s conviction was legal and proper and
warranted no interference. He submitted that the version of the prosecutrix
on the material aspects inspired confidence, and there were no
contradictions as such involved. He submitted that even the medical
evidence referred to the hymen tear and recent sexual activity. He
submitted that the prosecutrix had categorically denied any prior love
affair. In view of all this, Mr Manoj Kumar Mishra submitted that the
appellant’s conviction and sentence deserve to be maintained. He also
relied upon the decisions referred to in the opinion of Hon’ble Mr Justice
Sanjay Prasad to the effect that a conviction can be maintained on the sole
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testimony of the prosecutrix, particularly in a case where such testimony
inspired confidence.
12. The rival contentions now fall for my determination.
13. The prosecution’s case arises from the prosecutrix’s complaint,
which states that on 21.04.2013, while grazing cattle with her two younger
brothers, she became separated from them at approximately 5:00 P.M.
while searching for missing livestock. As she reached near a hillock, the
appellant, who was concealed behind a bush, apprehended her. He
allegedly tied her hands with her ‘dupatta’, gagged her, and proceeded to
disrobe and rape her. According to the complainant, she remained at this
location with the appellant until about 1:00 A.M. on 22.04.2013, during
which time she was raped thrice. She further alleges that although she
heard her father calling out for her during his search, she remained silent
due to the appellant’s threats to kill her.
14. The complainant further alleges that, following the initial incident, the
prosecutrix and the appellant travelled to the house of the appellant’s
friend, Lalit, after 1:00 A.M. on 22.04.2013. The evidence indicates this
residence was situated approximately 5 to 10 kilometres from the site of
the alleged rape. It is further stated that the prosecutrix was once again
raped at Lalit’s home. At approximately 8:00 A.M. that morning, the
prosecutrix managed to leave the premises and sought refuge at her
aunt’s house, located about 1.5 kilometres away. Upon being informed, the
prosecutrix’s father arrived to collect her and subsequently reported the
matter to the police station.
15. The prosecution examined eight witnesses in support of its case.
P.W. 1, Ranjit Oraon, is the uncle of the prosecutrix; P.W. 2, Gondo Devi,
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is her grandmother; P.W. 3, Nandiya Devi, is her mother; and P.W. 4, Ajit
Oraon, is her brother. The testimonies of these witnesses are not
particularly significant, as none provides substantial clarity on the material
aspects of the charges against the appellant. Similarly, the evidence of
P.W. 6, Balmohan Oraon (the father of the prosecutrix), and P.W. 7,
Sundari Devi (the aunt), is also not crucial to the determination of the core
allegations. None of these is an eyewitness. None of these has
significantly corroborated the prosecutrix’s evidence.
16. The learned Sessions Judge and Hon’ble Mr Justice Sanjay Prasad
primarily relied upon the testimonies of the prosecutrix (P.W. 5) and Dr
Asha Ekka (P.W. 8), the Medical Officer who examined the prosecutrix
following the filing of her complaint.
17. The conviction in this case is almost entirely based upon the
testimony of the prosecutrix with some corroborative evidence tendered
by Dr Asha Ekka (P.W.8). Therefore, the main question which arises in
this matter is well settled that in a rape case, the conviction can be
sustained based on even the sole testimony of the prosecutrix. However,
the caveat sounded by the Courts is that such testimony must be of a
high standard, sterling quality and inspire confidence. Therefore, the main
question in this matter is whether the prosecutrix’s testimony meets the
standard.
18. In such matters, it need not be reiterated that the burden is on the
prosecution, and if there is any reasonable doubt, then the benefit of such
doubt must be extended to the accused person. Again, if the conviction is
to be based primarily on the sole testimony of the prosecutrix, such
testimony must be of a sterling quality and must inspire confidence of the
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Court. These are the basic principles to evaluate and assess the evidence
led in such matters.
19. In State (GNCT of Delhi) (Supra), the Hon’ble Supreme Court
noted that although it was absolutely true that in case of rape, conviction
can be made on the sole testimony of the prosecutrix as her evidence is
in the nature of an injured witness which is given a very high value by the
Courts, nevertheless, when a person can be convicted on the testimony
of the single witness, the Courts are bound to be very careful in
examining such a witness and thus the testimony of such a witness must
inspire confidence of the Court.
20. In Santosh Prasad (supra), the Hon’ble Supreme Court, while
reiterating that even the solitary evidence of the prosecutrix is sufficient to
convict the accused charged of rape, such evidence must be absolutely
trustworthy, unblemished and of sterling quality so as to inspire the
confidence of the Court.
21. The Hon’ble Supreme Court, after relying on Rai Sandeep alias
Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, explained that the
“sterling witness” should be of a very high quality and calibre whose
version should, therefore, be unassailable. The Hon’ble Court further
explained that the Court considering the version of such witness should
be in a position to accept it for its face value without any hesitation. The
test for such a witness is absolute truthfulness and consistency,
maintained from the initial statement through to the testimony before the
Court. Such a version must be natural, devoid of prevarication, and
capable of withstanding strenuous cross-examination without leaving
room for doubt regarding the factum of occurrence, the identity of the
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persons involved, or the sequence of events. Furthermore, a sterling
witness’s account must correlate with all supporting material, including
recoveries, scientific evidence, and expert opinions, akin to the unbroken
chain required in cases of circumstantial evidence. Only when a witness
qualifies under these rigorous tests, remaining intact on the core
spectrum of the crime while matching all attendant oral and documentary
evidence in material particulars, can they be classified as a “sterling
witness” upon whose sole testimony a conviction may safely be sustained
without corroboration.
22. Before evaluating the evidence of the prosecutrix and the medical
evidence, it is necessary at the outset to note that the prosecution did not
examine two crucial witnesses. The first is the I.O and the second is the
Appellant’s friend Lalit. This was, for reasons discussed hereafter,
necessary.
23. Though the prosecutrix stated that while resisting rape, she actually
hit the appellant and scratched him, there is no evidence that the
appellant was medically examined, or if medically examined, no medical
examination report was ever produced in evidence to corroborate the
version of the prosecutrix about the nail scratches. There is no evidence
of the taking of any semen samples from the appellant and matching
them to the semen stain on the undergarments of the prosecutrix. One of
the opinions refers to the FSL report holding that the semen on the
undergarments of the prosecutrix belonged to the appellant. However, on
the perusal of the FSL report, there is no such conclusion drawn. The FSL
report only refers to the semen being human and nothing further. Only the
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I.O. would be in the best position to explain such discrepancies. There is
no explanation for the I.O.’s failure to depose in this matter.
24. The prosecution also did not examine Lalit, the appellant’s friend, to
whose house the appellant and the prosecutrix are said to have travelled
in the night intervening 21st and 22nd April 2013. Prosecutrix has deposed
that she, along with the appellant, stayed at Lalit’s home, which was
almost 5 to 10 kilometres from the site at which she was thrice raped. The
prosecutrix has also deposed that she was raped in Lalit’s house. She
has deposed that she sought Lalit’s help, but he was more interested in
helping the appellant. Despite all of the foregoing, the prosecution chose
not to examine Lalit. Since the I.O. also did not depose in this matter, no
explanation was offered as to why Lalit was never examined.
25. Now coming to the deposition of the prosecutrix, it is difficult to hold
that the same was of some sterling quality. The prosecutrix admitted to
having written the two letters produced on record during her cross-
examination. In one of the letters, she professed her love for the
appellant. Her denial during cross-examination regarding the love affair
must yield to what she stated in the letter, which she admitted was written
by her. It was suggested that the love affair was one-sided, i.e. on her
side alone, and there is evidence of the relationship between the
prosecutrix and the appellant being strained because the prosecutrix
suspected that the appellant was having an affair with some other girl.
26. The prosecutrix admitted that her uncle was accused of and even
arrested on the charge of rape, being levelled by the appellant’s cousin.
There were suggestions that, apart from being jilted in the affair, there
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were some other reasons for making false accusations against the
appellant.
27. Although the prosecutrix admitted to the bare facts, she denied the
imputation of motives. Still, the bare facts were admitted, and the same
cannot be completely ignored, particularly since the appellant referred to
these facts during his Section 313 statement. In this context, reliance can
be placed on the dicta of the Hon’ble Supreme Court in the case of
Parminder Kaur @ P.P. Kaur Vs. State of Punjab, arising out of
Criminal Appeal No. 283 of 2011, 28.07.2020), wherein the Hon’ble
Court categorically held that any plausible defence version put forth in
Section 313 Cr.P.C. must be carefully analyzed and considered, and
failure to do so endangers the conviction. In the instant case, the
prosecution has failed to rebut this plausible defence. Moreover, the trial
court’s complete non-consideration of the appellant’s Section 313 Cr.P.C.
statement violates the mandatory requirement of the Hon’ble Apex
Court’s judgment in Parminder Kaur (supra), rendering the conviction
unsafe.
28. The prosecutrix spoke in her deposition of several injuries on her
person, including black injury marks. She also stated that it was difficult
for her to walk. Yet, the medical evidence of P.W. 8 reports that no marks
of violence were present on the external part of her body. Besides, after
claiming she was unable to walk, the prosecutrix deposed that she walked
almost 5 to 10 kilometers to Lalit’s home post 1:00 AM on 22.04.2013. All
this, after she claimed that she was raped thrice between 5:00 P.M. and
1:00 A.M. Even the assertion that she was kept confined on the hillock
from 5:00 PM to 1:00 AM is difficult to believe, particularly in the absence
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of medical evidence suggesting resistance. Although the prosecutrix did
depose of injuries on her person, surprisingly no such injuries were found
by the Doctor who examined her. Furthermore, the prosecution failed to
medically examine the appellant, even though the prosecutrix claimed to
have hit and scratched him.
29. There are material discrepancies, inconsistencies and
improvements in the prosecutrix statement under Section 164 Cr.P.C. and
her deposition in the Court. However, even if her statement under Section
164 Cr.P.C. or other, if the improvements, inconsistencies and
contradictions are completely excluded, still, her version in the Chief and
in the cross also do not substantially align.
30. As held in Rai Sandeep (supra), for a witness to meet the
benchmark of “sterling witness”, such a witness must remain consistent
throughout. Moreover, the Hon’ble Supreme Court in the case of Ramdas
and Others Vs. State of Maharashtra, (2007) 2 SCC has categorically
observed that the conviction in case of rape can be based solely on the
testimony of the prosecutrix, but that can be done in a case where the
Court is convinced about the truthfulness of the prosecutrix and there
exist no circumstances which cast a shadow of doubt over her veracity.
31. For all the above reasons, it would be difficult to sustain a
conviction based virtually on the sole testimony of the prosecutrix,
coupled with a solitary statement in the medical examination report
produced by Dr Asha Ekka that there was evidence of a hymen tear and
recent sexual activity. The statement must be evaluated in the context of
the absence of any spermatozoa detected in the vaginal swab and the
absence of any external injuries or violence marks on the person of the
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prosecutrix. The discrepancy between the prosecutrix’s oral evidence and
the medical findings is significant and could not have been ignored.
32. In the context of prior relationship and surrounding circumstances,
the Hon’ble Supreme Court, in the case of Kaini Rajan Vs. State Of
Kerala, (2013) 9 SCC 113 has held that the evidence must be scrutinized
with greater caution. As regards the non-examination of Lalit, who is
undoubtedly a material witness in this case and, more crucially, the
Investigating Officer, an adverse inference is due against the prosecution.
The Hon’ble Supreme Court in the case of Akhaji Hiraji Vs. Thakore
Kubersing Chamansing, (2001) 6 SCC 145, has held that the non-
examination of material witnesses may permit the drawing of an adverse
inference under Section 114 (g) of the Evidence Act. Also, in the case of
State of Haryana Vs. Ram Mehar and others, (2016) 8 SCC 762, the
Hon’ble Apex Court held that non-examination of an Investigating Officer
would prejudice the prosecution case, particularly where lapses in
investigation are alleged.
33. In the present case, several lapses are pointed out in the
investigation, including, but not restricted to, the non-examination of Lalit,
the failure to medically examine the appellant, the fact that no attempt
was made to match the appellant’s semen with the stain noticed on the
undergarment of the prosecutrix and such other matters. These
investigative omissions are particularly glaring when viewed against the
principles elucidated by the Hon’ble Apex Court in the case of Hem Raj
Vs. State of Haryana, (2014) 2 SCC 395. In that case, involving a
strikingly similar factual matrix of detected human semen and a hymen
tear without scientific linkage to the accused, the Hon’ble Supreme Court
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observed that rape cannot be inferred solely from such findings where the
underlying evidence is infirm. Applying that ratio here, the cumulative
effect of the investigative lapses, specifically the failure to link the
scientific evidence to the appellant and the non-examination of the
material witness and the I.O., casts grave doubt on the prosecution’s
case.
34. On a cumulative consideration of all the above factors and for all
the above reasons, I believe the prosecution has failed to prove the
charge against the appellant beyond a reasonable doubt. In such
circumstances, the appellant is, in my opinion, entitled to an acquittal and
to be released immediately, if not already released and if not wanted in
any other case/s.
35. Accordingly, I concur with the opinion expressed by Hon’ble Mr
Justice Rongon Mukhopadhyay.
36. Given that this is a matter of personal liberty, the Registry must
ensure that this matter is placed before the Bench of Hon’ble Mr Justice
Rongon Mukhopadhyay and Hon’ble Mr Justice Sanjay Prasad at the
earliest, if necessary by obtaining orders for the constitution of this Bench,
so that Criminal Appeal (DB) No. 1169 of 2018 is disposed of. The
Registry may act on the operative portion of this opinion.
(M.S. Sonak, C.J.)
February 13, 2026
A.F.R.
APK/VK
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