Know The Law | When Can Court Convict A Person For A Charge Not Framed? Supreme Court Explains

The Supreme Court has held that an accused charged with one category of offences can be convicted for uncharged offence by the Appellate or Revisional Courts', provided such offences are cognate or minor, and no failure of justice has been occasioned to the accused.

“…in view of Section 464 of the Cr.PC, it is possible for the Appellate Court or Revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself.”, the Court observed.

The judgment delivered by a bench of Justice Prashant Kumar Mishra and Justice NV Anjaria was in the context of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”), where the Appellant's conviction under Section 3 / 4 of the POCSO Act for penetrative sexual assault could not be sustained because of the failure to ascertain the victim's age under Section 94 of the Juvenile Justice Act.

The Appellant claimed acquittal since the age of the victim remained unproved; however, the Court rejected this argument, and instead, convicted the Appellant for the offence of rape punishable under Section 376 IPC.

An argument was raised by the Appellant regarding the non-framing of rape charge and failure to extend a proper opportunity to defend himself of the rape charge.

Rejecting this argument, the judgment authored by Justice Mishra observed that non-framing of rape charges, despite the factum of rape clearly established, wouldn't enure to the accused's benefit, and he can still be convicted for rape since the actus reus for committing the penetrative sexual assault under the POCSO Act and rape is same, with the only difference lying particularly with the age of the victim.

“…for constituting rape is the same as the actus reus specified in cases of commission of penetrative sexual assault within the meaning of Section 3 of the POCSO Act. The only distinguishing feature between Section 375 of the IPC and Section 3 of the POCSO Act is the minority of the victim, which determines the charge of offence under Section 376 of the IPC and/or under Section 4 of the POCSO Act. In such a case, where the victim is a minor, the accused is usually tried for prosecution of a charge under Section 376 of the IPC in addition to charge under Section 4 of the POCSO Act. However, where the Trial Court erred in framing a charge under Section 376 of the IPC but factum of rape is clearly proven, and prosecution failed to establish the age of the victim, charge under Section 4 of the POCSO Act fails, while prosecution for charge under Section 376 of the IPC sustains.”, the Court said.

Moreover, the Court noted that since the offence of rape is cognate to penetrative sexual assault, thus it making no difference for convicting for the former offence, despite the charges framed of the latter offence.

“When the accused has been given an opportunity to defend himself against an offence under Section 3 of the POCSO Act, being of the same nature as offence under Section 376 of the IPC, there is no hesitation in holding that in event of prosecution's failure to prove victim's minority, there would be no failure of justice in proceeding against him under a charge of Section 376 of the IPC…Hence, even in the absence of charge under Section 376 of the IPC, the accused can be convicted under the same where the ingredients are the same as under Section 3 of the POCSO Act, and the accused has been given an opportunity to defend himself against the same.”, the Court said.

“Section 375 of the IPC and Section 3 of the POCSO Act sharing the same ingredients and actus reus, Section 376 of the IPC being cognate offence, there seems to be no failure of justice when accused was given an adequate opportunity to defend himself against a charge under Section 3 of the POCSO Act. In a case where the accused was charged with an offence, different in nature and kind than the offence charged under POCSO Act, it would not have been in the interest of justice to proceed against him in the event of failure to prove the charge under POCSO Act.”, the Court added.

Reference was made to the 2004 judgment in Dalbir Singh v. State of U.P., where the accused, tried for Sections 302, 498-A and 304-B of the IPC, was convicted under Section 306 IPC despite remaining uncharged for it. Therein, it was held that the Appellate Court or Revisional Court has the power to convict the accused even if the accused is uncharged for an offence, if:

(i) the accused was aware of the basic ingredients of that offence,

(ii) the main facts sought to be established against him were explained to him clearly, and

(iii) he got a fair chance to defend himself.

“The powers of the Appellate Court are not curbed due to error by the Trial Court in framing a necessary charge under Section 376 of the IPC. The powers of the Appellate Court are wide enough in such cases to alter the findings and nature and extent of sentence awarded by the Trial Court, including the power to make any amendment, consequential or incidental order that may be just.”, the Court observed.

As a result, the appeal was partly allowed, modifying the Appellant's conviction and sentence under Section 376 of the IPC, in addition to the conviction and sentence under Section 506 of the IPC.

“…the victim was subject to penetrative sexual assault by the appellant/accused, and criminal intimidation under Section 506 of the IPC, established inter alia by way of Medico-Legal Certificate dated 27.11.2019. Resultantly, the appellant can be convicted under Section 376 of the IPC for commission of rape of the victim under Section 375 of the IPC. The conviction under Section 506 of the IPC awarded by Trial Court and upheld by the High Court is confirmed.”, the Court held.

Cause Title: PYNCHEMALANGAKI BAREH VERSUS STATE OF MEGHALAYA

Citation : 2026 LiveLaw (SC) 924

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Also From Judgment: Even If S.376 IPC Charge Not Framed, Rape Conviction Possible When POCSO Case Fails For Not Proving Victim's Age : Supreme Court