When Law Identifies a Wrong, Can Justice Still Be Denied?
On 9 July 2026, the Patna High Court decided Himanshu Kr. Pathak v. State of Bihar. The appellant had been convicted by the trial court for attempt to rape and wrongful confinement (under Sections 376 read with 511 and 342 of the Indian Penal Code, 1860), and sentenced, respectively, to three years and six months of imprisonment, with the sentences to run concurrently. The High Court set aside the conviction and acquitted him of all charges.
According to the prosecution, the survivor went with her father to the appellant’s photography studio. The appellant sent the father outside, locked the door, undressed himself, untied the survivor’s salwar and used sexual force against her. Thereafter, she cried out; her father opened the door, whereupon the appellant fled. The trial court convicted him in 2013. The appeal remained pending for nearly thirteen years.
The High Court recorded that the survivor had consistently maintained her version during cross-examination. It also held that confinement inside the studio, closing the door, attempting to remove her salwar and pressing her chest satisfied the ingredients of Section 354 (the use of criminal force against a woman with the intent to outrage her modesty). The Court recorded that the allegations “proved on record” squarely fell within the ambit of that provision. Yet the operative order acquitted the appellant completely.
The judgment has drawn attention for acquitting the appellant of all charges despite finding that the proved conduct satisfied Section 354. The judgment was also brought to the notice of the Supreme Court on 14 July 2026, and the Court reportedly expressed serious concern over it. The deeper concern is what the case reveals about the administration of criminal justice from the filing of the charge-sheet until the final appellate order.
The result raises a simple but troubling question. If the criminal process identifies a completed legal wrong, and the law provides a route to ensure justice is meted out to the survivor, then how does the case end as though no offence was ever committed?
A charge which ought to have been framed: the first failure
The first failure occurs at the stage of charge framing. The appellant was charged under Sections 376 read with 511 and 342 IPC. No charge under Section 354 was framed, even though the evidence, as later understood by the High Court, disclosed that offence.
The filing of a charge-sheet by the investigating agency and the framing of charges by the trial court are distinct stages, but both require an application of mind. The investigating agency should identify the offences disclosed by its investigation and place the relevant material before the court. At the stage of framing charges, the trial judge must independently consider that material and determine the offences for which the accused should be tried. The charge so framed gives the accused precise notice of the case to be met and identifies the legal issues that the trial court must decide. The responsibility for getting the charge right therefore does not rest on one institution alone.
Section 216 of the Code of Criminal Procedure, 1973 allowed the trial court to add a charge at any time before judgment. Section 217 protected the accused against prejudice by allowing witnesses to be recalled or re-examined after such alteration. If the evidence disclosed an offence under Section 354, the omission ought to have been cured while the evidence was still being recorded and the parties were before the court. An error at the beginning travelled through the entire proceeding, including the appellate stage and the present judgment.
A Sessions trial without its investigator and doctor: the second failure
The second failure occurred at the level of the prosecution and the trial court. The police officer who recorded the statements under Section 161 CrPC, completed the investigation, and submitted the charge-sheet was not examined. A police witness who had briefly taken over the investigation and recorded a supervision note appeared instead.
The survivor cannot be faulted for this omission. She did not control the prosecution’s witness list or the attendance of police officers. It was for the prosecution to produce the witnesses necessary to prove its case. If the investigating officer’s evidence was essential for ensuring justice in this case, then the trial court also had sufficient powers under Section 311 CrPC to summon him.
It is settled law that non-examination of an investigating officer does not destroy every prosecution case. However, such an omission in a sexual-offence case of this nature should not be viewed lightly. Sometimes, the investigating officer would be required to prove the steps taken during investigation, and more importantly, to deal with any contradictions or improvements in witness statements.
Additionally, as the High Court judgment notes, no medical officer was examined either. The record does not explain whether a medical examination was conducted or, if it was, why the doctor and report were not produced. In a case alleging an attempt to commit rape, medical evidence may have limited probative value but could still have identified any injuries that may have happened during the crime. Indeed, the High Court itself recognised that non-examination of a medical officer is not ipso facto fatal. Yet its conclusion also drew strength from the absence of medical corroboration.
In a situation such as this, where the State fails to produce crucial witnesses, the court ought to have exercised its powers under the criminal procedure (for instance, Section 311). Otherwise, the loss is suffered by every participant: the accused, the survivor and the legitimacy of the process itself.
The act that disappears from the conclusion: the third failure
The alleged offence took place inside a studio after the survivor’s father had deliberately been sent outside and the door had been locked. The absence of an independent eyewitness was therefore not an unusual gap in the prosecution case. The judgment records that she consistently stated that the appellant sent her father outside, bolted the door, undressed himself, untied her salwar and used force with the intention of raping her. It notes that she gave precise details of the studio during cross-examination and denied the suggestion that the appellant’s undressing was an improvement. The trial judge had also recorded that she broke down and wept while narrating the incident.
But when the judgment assembled the acts for its legal conclusion, it referred to confinement, closing the door, attempting to remove the survivor’s salwar and pressing her chest. The appellant’s own undressing did not appear in the conclusion. The conclusion then stated that the prosecution had “miserably failed” to prove attempted rape.
Intention is inferred from conduct, circumstances and the sequence in which acts occur. Closing a door, excluding the accompanying parent, undressing oneself, untying the survivor’s clothing and applying sexual force cannot be assessed as isolated physical acts. The legal question is whether, taken together, they crossed the line from preparation to a direct movement towards the commission of rape.
Two Supreme Court decisions show why the omitted fact ought to have been considered more carefully. In Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) 8 SCC 560, the Court held that an attempt to rape had not been proved, noting, among other facts, that the accused had not undressed himself and had not asked the victim to undress. Crucially, however, the Court did not order a complete acquittal. It invoked Section 222 CrPC and convicted the accused under Sections 354 and 366 IPC.
In State of M.P. v. Mahendra alias Golu, (2022) 12 SCC 442, the accused had closed the doors, undressed the victims and himself, and committed sexual acts before being interrupted. The Supreme Court held that the conduct had moved beyond preparation and restored the conviction for attempt. The facts are not identical to those in Himanshu Pathak, but the reasoning is relevant to this case: self-undressing and the cumulative progression of conduct are material when the court determines whether the execution of the intended offence had begun.
The Patna High Court could have concluded, after a complete appraisal, that the threshold of attempt was not crossed. But it ought to have confronted the most material fact bearing on that threshold.
Further, the occurrence was in January 2008. The applicable definition and punishment were therefore those in force before the 2013 amendments to the IPC. The judgment reproduces the later amended provisions. Mahendra demonstrates the correct approach by applying the law that existed on the date of the occurrence. The error may not, by itself, have determined the result in this case, but the identification of the correct provision is the starting point of every criminal adjudication.
An offence found, yet resulted in an acquittal: the fourth failure
Even if the High Court was correct that attempted rape was not proved, its own findings could not have resulted in a complete acquittal. The Court held that the conduct satisfied Section 354 and that the allegations “proved on record” fell squarely within it. The Court’s formulation that the conduct “at best” disclosed an act ‘intended’ to outrage modesty, also understates the Court’s own factual finding. On those findings, the appellant had not merely formed an intention to outrage the survivor’s modesty. The use of criminal force in the circumstances described constituted the completed offence.
No doubt, there was no charge under Section 354. However, Tarkeshwar Sahu is a direct answer to this issue. While considering an appeal arising from a charge under Sections 376/511 IPC, the Supreme Court considered whether it should acquit the accused or convict him of another offence. The Supreme Court convicted the accused under Sections 354 and 366 by applying Section 222 CrPC. Sections 386(b) and 464 CrPC also gave the appellate court powers to alter the finding and to address an omission in the charge, subject to the requirement that such alteration should not result in prejudice or a failure of justice.
What the judgment does not explain is why none of the routes supplied by the CrPC could be used after the Court found the offence proved.
The same problem arises under Section 342 IPC (wrongful confinement). Wrongful confinement was a charge on which the trial court had convicted the appellant. The High Court’s factual account includes sending the father outside, locking the door and confining the survivor inside. Yet the final acquittal covers Section 342 as well, without any analysis on why the ingredients of that offence were not proved.
Concluding remarks
Himanshu Pathak indicates how institutional lapses can result in the failure of the criminal justice system. The prosecution and the trial court allowed the case to proceed without a charge that the eventual evidence would establish. Neither the investigating officer, nor the medical officer were examined. Notably, the High Court judgment omitted an important act from its concluding analysis which could have had a bearing on the finding on attempt to rape. Still further, it found that Section 354 stood proved, and yet ordered an acquittal.
In In Re: Order dated 17.03.2025 passed by the High Court of Judicature at Allahabad in Criminal Revision No. 1449/2024 and Ancillary Issues, 2026 INSC 165, the Supreme Court recently observed that sound legal principles must be accompanied by compassion, humanity and an understanding of factual realities if the system is to deliver justice. This is an important observation, one that would require the court to apply the law without losing sight of the human circumstances in which it operates.
From the alleged assault to the final order, the survivor’s agency appears to diminish at every stage. Her evidence was recorded, but the reason why her consistent account was not relied upon while deciding the charge of attempt remains unclear. The offence the High Court found proved did not result in a conviction. The conviction for wrongful confinement for which the appellant had already been convicted was also set aside without any reasons.
In order to uphold the rule of law, the criminal justice system should ensure that institutions perform their assigned functions and that legal consequences follow from what the court has found to be proved. When a judgment recognises an offence, the statute provides an alternative route, and the order still leaves the wrong without consequence, law risks becoming an end in itself. This, in my view, is a failure in the administration of justice. I conclude with a statement from Salmond’s work in Jurisprudence:
Justice is the end, law is merely the instrument and the means; and the instrument must be defined by reference to its end.