Patna HC Acquits Studio Owner Of Attempt To Rape Charge, Converts Conviction To Outraging Modesty

Bihar: The Patna High Court has set aside the conviction of a photo studio owner in Banka district who had been sentenced to three years' rigorous imprisonment for attempt to rape, holding that the prosecution's evidence, even if accepted in its entirety, did not establish penetration or an unequivocal attempt to commit rape, and instead fell within the offence of outraging a woman's modesty.

Case Sent Back For Fresh Sentencing Under Lesser Charge

Justice Purnendu Singh was hearing a criminal appeal filed by Himanshu Kr. Pathak, alias Mithiya Pathak, owner of Chhaya Studio in Amarpur, against his conviction under Sections 376/511 and 342 of the Indian Penal Code by the Adhoc Additional Sessions Judge-I, Banka. The trial court had sentenced him to three years' rigorous imprisonment with a fine for attempt to rape, along with six months' imprisonment for wrongful confinement, both sentences to run concurrently.

Background Of The Case

As per the prosecution's case, the minor victim had accompanied her father to the appellant's studio for photography on January 19, 2008. The appellant allegedly took her photograph, sent her father outside on the pretext of showing him the image on a computer, bolted the studio door from inside, and attempted to remove her clothing with the intent to commit rape. On the victim raising an alarm, her father forced the door open and the accused fled the scene as a crowd gathered. The FIR was registered the following day, and after investigation, a charge-sheet was filed leading to trial before the Sessions Court.

Arguments Before The High Court

Counsel for the appellant argued that the conviction was illegal and unsustainable, pointing in particular to the delay of nearly 24 hours in lodging the FIR, for which no satisfactory explanation had been furnished. The State, opposing the appeal, submitted that the trial court had rightly held the offence to be serious in nature after considering the evidence on record.

Court's Assessment Of The Evidence

The High Court noted that the prosecution examined only five witnesses, of whom the independent local witness turned hostile and did not support the case. The investigating officer who filed the charge-sheet was never examined at trial, and no Medical Officer was called to substantiate the allegation, leaving no medical evidence on record. The case therefore rested substantially on the testimony of the victim and her father, with the mother's evidence being purely hearsay.

Citing Supreme Court precedent on the standard required for a victim's testimony to be treated as that of a "sterling witness," the Court observed that where witnesses are neither wholly reliable nor wholly unreliable, their evidence must be corroborated by independent and credible material before a conviction can be sustained. It held that the father and mother, being interested witnesses, could not be relied upon without careful scrutiny.

On the delay in lodging the FIR, the Court accepted the victim's explanation that the family had first approached the nearest police station, where the officer in charge had refused to register the complaint, and the FIR was recorded only the next day, ruling out any inference of delay attributable to the prosecution.

Conviction Modified To Section 354 IPC

Examining the ingredients of Sections 375 and 376 IPC, the Court held that in the absence of evidence of penetration, or of any overt act unequivocally amounting to an attempt to commit rape, the offence of attempt to rape was not made out. It found, however, that the appellant's acts of confining the victim, closing the studio door, attempting to remove her clothing, and physically molesting her did establish the use of criminal force intended to outrage her modesty, thereby satisfying the ingredients of Section 354 IPC.

Holding that the conviction under Section 376 read with Section 511 IPC could not be sustained in law, and noting that the appellant had already remained in judicial custody for nearly three and a half months, the Court set aside the trial court's judgment of conviction and sentence in its entirety and acquitted the appellant of all charges. His bail bond was discharged, and any fine deposited was ordered to be refunded.

Case: Himanshu Kr. Pathak @ Mithiya Pathak v. The State of Bihar, Criminal Appeal (SJ) No. 775 of 2013 Court: High Court of Judicature at Patna Coram: Justice Purnendu Singh CAV Date: June 29, 2026 Judgment Pronounced: July 9, 2026 Counsel for the Appellant: Mr. Ajay Mukherjee and Mr. Ganesh Sharma, Advocates Counsel for the Respondent: Mr. Abhay Kumar, APP