Patna High Court
Md. Saheb vs The State Of Bihar on 28 April, 2026
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.253 of 2012
Arising Out of PS. Case No.-283 Year-2010 Thana- BAHADURPUR District- Darbhanga
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Md. Saheb S/O Late Noor Mohammad Resident Of Village- Chanoti, P.S.-
Bahadurpur, District- Darbhanga.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Thakur Brajesh Singh, Advocate
For the Respondent/s : Mr.Mukeshwar Dayal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 28-04-2026
Heard Mr. Thakur Brajesh Singh, learned counsel
appearing on behalf of the appellant and Mr. Mukeshwar Dayal,
learned APP for the State.
2. The present appeal has been filed under Section
374(ii) read with Section 389(1) of Code of Criminal Procedure,
challenging the judgment of conviction and order of sentence
dated 02.03.2012 and 03.03.2012 passed by the learned
Additional Session Judge Ist District Darbhanga in Sessions
Trial No. 120/2011, G.R. No.2853 of 2010 arising out of
Bahadurpur P.S.Case No.283 of 2010 whereby and whereunder
the appellant has been convicted for the offence punishable
under Section 376 of the Indian Penal Code and has been
sentenced to undergo Rigorous Imprisonment for the period of
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ten years along with a fine of Rs.10,000/- and in default payment
of fine or to further undergo six months Rigorous Imprisonment.
3. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence, the appellant has
preferred the present Appeal before this Court.
4. The prosecution case, in brief, is that the fardbeyan
of the informant, Ruhi Khatoon wife of Md. Saheb of village
Chandi, Police Station Bahadurpur, District Darbhanga, recorded
by A.S.I. S.N. Yadav of Bahadurpur Police Station on
29.09.2010
at 12:30 PM is that on the night of 28 September
2010 at 10:00 P.M., the informant Ruhi Khatoon was sleeping at
the door (Deouri) of her house situated at village Chandi, Police
Station Bahadurpur, District Darbhanga and her minor daughter
namely Ladli Khatoon aged about 13 years was also sleeping by
her side, when at the said time and place the husband of the
informant namely Md. Saheb came there and pulled the said
Ladli Khatoon and tried to get her naked in order to commit rape
upon her, whereupon the informant woke up and raised alarm
upon which the nearby people assembled there and caught hold
of the husband of the informant namely Md. Saheb. It is further
alleged that on 24th September 2010 at about 2:00 P.M. in the day
hour, when the informant had gone outside the house to collect
Patna High Court CR. APP (SJ) No.253 of 2012 dt.28-04-2026
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soil and upon her return back home she found that her minor
daughter Ladli Khatoon was lying unconscious and
simultaneously she saw that her husband Md. Saheb was trying
to conceal himself, and that after regaining consciousness the
victim girl Ladli Khatoon narrated the fact that her father i.e. the
husband of the informant had committed rape upon her, and that
although due to prestige the informant narrated such incident to
some of the people around her but did not go to the local police
to lodge the case, and that it was due to the habitual heinious acts
of her husband that the informant was ultimately constrained to
approach the police and subsequently filed the instant case, on
the basis of which the fardbeyan was recorded by A.S.I. S.N.
Yadav of Bahadurpur Police Station on 29.09.2010 at 12:30
Hours at village Chandi and Bahadurpur P.S. Case No. 283/10
was instituted and registered against the sole accused Md. Saheb
for the offence punishable under Section 376 of the Indian Penal
Code for committing forceful rape upon the minor victim girl
Ladli Khatoon aged about 13 years.
ARGUMENT ON BEHALF OF THE APPELLANT
5. Learned Counsel appearing on behalf of the
appellant submitted that the impugned judgment of conviction
dated 02.03.2012 and order of sentence dated 03.03.2012 passed
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by the learned 1st Additional Sessions Judge, Darbhanga in S.T.
No. 120/11, G.R. No. 2853/10 arising out of Bahadurpur P.S.
Case No. 283/10 convicting the appellant under Section 376
I.P.C. and sentencing him to undergo Rigorous Imprisonment for
10 years with fine of Rs. 10,000. The testimony of P.W.8, the
medical officer, whose evidence does not support the
prosecution’s case. As per his deposition, no external injury was
found on any part of the body, including the genital area. The
hymen was noted to have old, healed tears at three places, and
the vagina admitted one finger. Furthermore, no spermatozoa
whether live or dead, intact or broken were detected in the
samples examined. In such circumstances, the medical evidence
fails to corroborate the allegation of rape, thereby rendering the
finding of the learned court unsustainable in law.
ANALYSIS AND CONCLUSION
6. Heard the parties.
7. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
8. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the judgment
of conviction dated 02.03.2012 for the offences under Section
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376 of the IPC.
9. During the trial, the prosecution has examined
altogether nine witnesses, namely:
(i) (P.W.-1)- Md. Wahid (Hostile)
(ii) (P.W.-2)- Shamina Khatoon (Hostile)
(iii) (P.W.-3)- Md. Shanewaz Alam (Hostile)
(iv) (P.W.- 4)- Ruhi Khatoon (Hostile)
(v) (P.W.-5)- Md. Haidar Ali (Hostile)
(vi) (P.W.-6)- Ladali (Hostile)
vii) (P.W.-7)- Sachidanand Yadav
viii) (P.W. -8) – Dr. Dhruv Kumar Dhiraj
ix) (PW-9)- Amit Raj
10. The prosecution has also relied upon following
documents exhibited during the course of trial:-
(i) Exhibit 1 Signature on fardbeyan through P.W.1
(ii) Exhibit 2 Endorsement on fardbeyan through P.W.1
(iii) Exhibit 3 Formal F.I.R. through P.W.1
(iv) Exhibit 4 Carbon copy of application written by I.O.
to the Medical Officer, D.M.C.H., Darbhanga.
(v) Exhibit 5 Petition for recording statement u/s 164
Cr.P.C.
(vi) Exhibit 6 Medical examination report of victim girl.
(vii) Exhibit 7 Statement u/s 164 Cr.P.C. of victim girl
recorded by the Judicial Magistrate
11. The provisions of Section 376 of the IPC is
reproduced hereinafter as follows : –
“376. Punishment for rape.–
(1)Whoever, except in the cases provided for
in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either
description for a term which [shall not be less
than ten years, but which may extend to
imprisonment for life, and shall also be liable
to fine]
(Subs. by Act 22 of 2018, s. 4, for “shall not
be less than seven years, but which may
extend to imprisonment for life, and shall also
be liable to fine” (w.e.f. 21-4-2018)
Patna High Court CR. APP (SJ) No.253 of 2012 dt.28-04-2026
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(a)being a police officer, commits rape–
(i)within the limits of the police station to
which such police officer is appointed; or
(ii)in the premises of any station house; or
(iii)on a woman in such police officer’s
custody or in the custody of a police officer
subordinate to such police officer; or
(b)being a public servant, commits rape on a
woman in such public servant’s custody or in
the custody of a public servant subordinate to
such public servant; or
(c)being a member of the armed forces
deployed in an area by the Central or a State
Government commits rape in such area; or
(d)being on the management or on the staff of
a jail, remand home or other place of custody
established by or under any law for the time
being in force or of a women’s or children’s
institution, commits rape on any inmate of
such jail, remand home, place or institution;
or
(e)being on the management or on the staff of
a hospital, commits rape on a woman in that
hospital; or
(f)being a relative, guardian or teacher of, or
a person in a position of trust or authority
towards the woman, commits rape on such
woman; or(
g)commits rape during communal or
sectarian violence; or
(h)commits rape on a woman knowing her to
be pregnant; or
(i)commits rape on a woman when she is
under sixteen years of age; or
(j)commits rape, on a woman incapable of
giving consent; or
(k)being in a position of control or dominance
over a woman, commits rape on such woman;
or
(l)commits rape on a woman suffering from
mental or physical disability; or
(m)while committing rape causes grievous
bodily harm or maims or disfigures or
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(n)commits rape repeatedly on the same
woman,
shall be punished with rigorous imprisonment
for a term which shall not be less than ten
years, but which may extend to imprisonment
for life, which shall mean imprisonment for
the remainder of that person’s natural life,
and shall also be liable to fine.
Explanation.– For the purposes of this sub-
section, —
(a)”armed forces” means the naval, military
and air forces and includes any member of the
Armed Forces constituted under any law for
the time being in force, including the
paramilitary forces and any auxiliary forces
that are under the control of the Central
Government or the State Government;
(b)”hospital” means the precincts of the
hospital and includes the precincts of any
institution for the reception and treatment of
persons during convalescence or of persons
requiring medical attention or rehabilitation;
(c)”police officer” shall have the same
meaning as assigned to the expression
“police” under the Police Act, 1861 (5 of
1861);
(d)”women’s or children’s institution” means
an institution, whether called an orphanage
or a home for neglected women or children or
a widow’s home or an institution called by
any other name, which is established and
maintained for the reception and care of
women or children.
(3)Whoever, commits rape on a woman under
sixteen years of age shall be punished with
rigorous imprisonment for a term which shall
not be less than twenty years, but which may
extend to imprisonment for life, which shall
mean imprisonment for the remainder of that
person’s natural life, and shall also be liable
to fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under
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12. It would be apposite to discuss the
oral/documentary evidences as available on record to re-
appreciate the evidences for just and proper disposal of the
present appeal
13. From the perusal of records, the statements of the
prosecution witnesses are as under:
P.W.1 – This witness in the deposition submitted that
he is not acquainted with the alleged occurrence and his
statement was not recorded before the police. This witness was
declared hostile.
P.W.2- This witness in the deposition submitted has
completely showed her ignorance about the alleged occurrence
and was declared hostile.
P.W.3 – This witness in the deposition submitted has
completely showed her ignorance about the alleged occurrence
and also stated that he does not know Ruhi Khatoon and her
daughter Ladali and was declared hostile.
P.W.4 – This witness in the deposition submitted that
the accused Md. Saheb is her husband and the victim is their
daughter, but she expressed ignorance about the alleged incident
Patna High Court CR. APP (SJ) No.253 of 2012 dt.28-04-2026
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declared hostile.
P.W.5 – This witness in the deposition submitted has
not supported the prosecution version and completely showed his
ignorance regarding the alleged incident. The witness was
declared hostile.
P.W.6 – This witness in the deposition denied any
wrongdoing by her father and also turned hostile, even disputing
her earlier statement recorded before the Magistrate.
P.W.7 – This witness in the deposition submitted has
supported the prosecution by proving the fardbeyan, formal FIR,
and stating that during investigation the informant, victim, and
local witnesses had initially supported the allegations.
P.W.8 – This witness in the deposition conducted the
medical examination, found no external injuries or evidence of
recent intercourse such as spermatozoa, but noted healed tears in
the hymen and opined that the genital condition was consistent
with sexual intercourse.
P.W.9 – This witness in the deposition proved the
statement of the victim recorded under Section 164 Cr.P.C.,
wherein she had accused her father of rape, and confirmed that
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14. On the basis of materials surfaced during the trial,
the appellant/accused was examined under Section 313 of the
Cr.PC by putting incriminating circumstances/evidences surfaced
against him, which he denied and shows his complete innocence.
15. On a careful perusal of the evidence, facts, and
law it appears that P.W.4, the mother and informant of the case,
was declared hostile as she denied the commission of rape in her
deposition. She has shown her complete ignorance as to what
happened by not supporting the allegations made in the FIR and
stated that nothing had occurred prior to the alleged incident.
Similarly, P.W.6 the victim (minor) girl herself, turned hostile
and had denied before the learned trial court that her father
committed rape with her. She also denied that he never attempted
to rape her in her statement recorded before the learned
Magistrate. Among the independent witnesses, P.W.1 P.W.2 ,
P.W.3 and P.W.5 all completely showed their ignorance
regarding the alleged occurrence and were declared hostile by
the prosecution, with nothing important emerging from their
cross-examinations. As regards the medical evidence, the P.W.8
had examined the victim (P.W. 6) on 29.09.2010 and found no
external injury, no spermatozoa in the samples, but significantly
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found that the hymen showed healed tears at three places and the
vagina admitted one finger, with the genital condition being
consistent with sexual intercourse, and his entire findings
remained unchallenged in cross-examination. From the
deposition record, it can be found that despite the hostile
witnesses, the court inferred that family pressure was
suppressing the truth, and placed significant reliance on the
victim girl’s statement recorded under Section 164 Cr.P.C. before
the learned Judicial Magistrate (Ext.7), wherein she had clearly
stated that her father forcibly committed rape upon her on the
day of Jumma and further attempted rape on the night of Tuesday
before being caught by villagers, which statement, corroborated
by the intact medical evidence, led the learned trial court to
conclude that the accused had indeed committed rape upon his
own daughter.
16. In the present case, the most crucial aspect is the
statement of the victim recorded under Section 164 Cr.P.C., duly
proved by P.W.9, the learned Judicial Magistrate, Darbhanga.
The learned Magistrate has categorically deposed that the
statement was recorded after due caution and ensuring that the
victim understood the implications. In the said statement, the
victim has clearly alleged that the accused, her own father,
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committed rape upon her and also attempted to repeat the alleged
act. This statement carries significant evidentiary value,
particularly when recorded before a judicial authority.
17. The primary challenge in this appeal is the
wholesale retraction by the prosecution witnesses, including the
victim (P.W.6) and her mother (the informant) (P.W.4), who have
turned hostile during the trial. It is a well settled legal principle
that the testimony of a hostile witness does not stand completely
effaced, the court can rely on those portions of the testimony that
are corroborated by other material evidences. In the facts of the
present case, the victim(minor) statement recorded under Section
164 of the Cr.P.C remains a crucial piece of a evidence in eye of
law even though Section 164 of the Cr.P.C., statement is not
substantive evidence by itself but it can be used for
corroboration, when the credibility of the witnesses is in
question, who have deviated from their earlier stand and are
close family members of the accused.
18. The law in this regard is well settled by the
Apex Court in the case of Vijaya Singh & Anr. v State of
Uttarakhand reported in 2024 INSC 905, that the statement
under Section 164 Cr.P.C. can not be discarded, which finds
reference in Paragraph No.31, which is reproduced inter alia
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hereinafter :
“31. Having said so, we deem it fit to observe that a
statement under Section 164 CrPC cannot be discarded at
the drop of a hat and on a mere statement of the witness
that it was not recorded correctly. For, a judicial
satisfaction of the Magistrate, to the effect that the
statement being recorded is the correct version of the facts
stated by the witness, forms part of every such statement
and a higher burden must be placed upon the witness to
retract from the same. To permit retraction by a witness
from a signed statement recorded before the Magistrate on
flimsy grounds or on mere assertions would effectively
negate the difference between a statement recorded by the
police officer and that recorded by the Judicial
Magistrate. In the present matter, there is no reasonable
ground to reject the statements recorded under Section
164 CrPC and reliance has correctly been placed upon the
said statements by the courts below.”
19. In the present case, the victim and the informant
have turned hostile during the trial and have not supported the
prosecution case. The statement of the learned Magistrate
assumes significance, who has identified his signature after
recording the statement of the victim and as such possibility of
the victim having tutored and the pressure put on her to retract
from the earlier statement requires a sensitive and protective
approach while appreciating evidence in such cases, particularly
keeping in view the vulnerability of children and the social
stigma attached to such offences, whereas, child rape cases are
cases of perverse lust for sex where even innocent children are
not spared in pursuit of sexual pleasure.
20. In the case of State of Rajasthan v. Om
Patna High Court CR. APP (SJ) No.253 of 2012 dt.28-04-2026
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Prakash reported in (2002) 7 SCC 745 the Apex Court sounded
a warning against offences of sexual nature against children, in
the following terms in Paragraph no.19, which inter alia is
reproduced as under:
“19. Child rape cases are cases of
perverse lust for sex where even innocent children
are not spared in pursuit of sexual pleasure. There
cannot be anything more obscene than this. It is a
crime against humanity. Many such cases are not
even brought to light because of the social stigma
attached thereto. According to some surveys, there
has been a steep rise in child rape cases. Children
need special care and protection. In such cases,
responsibility on the shoulders of the courts is more
onerous so as to provide proper legal protection to
these children. Their physical and mental immobility
call for such protection. Children are the natural
resource of our country. They are the country’s
future. Hope of tomorrow rests on them. In our
country, a girl child is in a very vulnerable position
and one of the modes of her exploitation is rape
besides other modes of sexual abuse. These factors
point towards a different approach required to be
adopted…”
21. In case of Pradeep v. State of Haryana reported
in (2023) SCC OnLine SC 777, it was held that the role of the
trial Judge, when a case involves a child witness, becomes
heightened. The Apex Court held as under :
“10. Before recording evidence of a
minor, it is the duty of a Judicial Officer to ask
preliminary questions to him with a view to ascertain
whether the minor can understand the questions put
to him and is in a position to give rational answers.
The Judge must be satisfied that the minor is able to
understand the questions and respond to them and
understands the importance of speaking the truth.
Therefore, the role of the Judge who records the
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preliminary examination of the minor by putting
appropriate questions to ascertain whether the minor
is capable of understanding the questions put to him
and is able to give rational answers. It is advisable
to record the preliminary questions and answers so
that the Appellate Court can go into the correctness
of the opinion of the Trial Court.”
22. In case of Hemudan Nanbha Gadhvi v. State
of Gujarat, reported in, (2019) 17 SCC 523, the Apex Court
held that a nine year old prosecutrix turning hostile would not be
fatal blow to the prosecution case when other evidence can
establish the guilt of the accused.
23. In case of Ganesan v. State, reported in, (2020)
10 SCC 573, held that the sole testimony of the victim, if found
reliable and trustworthy, requires no corroboration and may be
sufficient to invite conviction of the accused also the reliance
has correctly been placed upon the said statements by the courts
below, the Court observed.
24. I find it fit to observe that a statement recorded
under Section 164 Cr.P.C cannot be discarded at the drop of a hat
and on a mere statement of the witness who is also the victim in
present case, that it was not recorded correctly. For, a judicial
satisfaction of the learned Magistrate, to the effect that the
statement being recorded is the correct version of the facts stated
by the witness, forms part of every such statement and a higher
burden must be placed upon the witness to retract from the same
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to permit retraction by a witness from a signed statement
recorded before the Magistrate on flimsy grounds or on mere
assertions would effectively negate the difference between a
statement recorded by the police officer and that recorded by the
Judicial Magistrate.
25. Further, it appears from the medical report from
Department of Forensic Medicine, Darbhanga Medical College
provides the necessary “unimpeachable scientific evidence” to
bridge the gap left by the witnesses’ hostility. In the present case,
the medical report categorically states that the “Genital condition
is consistent with sexual intercourse,” noting healed hymenal
tears and vaginal changes indicative of penetration. When a
victim’s earlier disclosure is validated through objective medical
findings, the evidentiary chain remains intact despite attempts to
assail the prosecution’s case.
26. The medical evidence may not be available in
which circumstance, solitary testimony of the prosecutrix could
be sufficient to base the conviction. As it is reaffirmed by the
Apex court in number of cases that the testimony of a child
victim, if initially found credible and subsequently validated by
medical report, requires no further corroboration to sustain a
conviction. The court’s “judicial conscience” cannot permit
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casual indulgence in an acquittal where the initial disclosure was
clear and cogently supported by material evidences.
27.Therefore, notwithstanding the hostility of the
witnesses during the trial, the conviction and sentence are found
to be just and lawful.
28. The impugned judgment of conviction and
order of sentence dated 02.03.2012and 03.03.2012 passed by the
learned Additional Session Judge Ist District Darbhanga in
Sessions Trial No. 120/2011 is upheld.
29. Accordingly, the present appeal stands
dismissed.
30. The appellant is directed to be taken into
custody forthwith.
31. The office is directed to send back the lower
court records along with a copy of the judgment to the learned
District Court forthwith.
(Purnendu Singh, J)
chn/-
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