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

The Supreme Court on Thursday (September 10) held that the prosecution's failure to prove the victim's age, essential for sustaining a conviction under the POCSO Act, does not automatically absolve the accused of liability for rape under Section 376 of the IPC. The Court added that even in the absence of a formal charge under Section 376, the accused can be convicted under that provision as it is a cognate offence sharing the same actus reus as Section 3 of the POCSO Act.

“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.”, observed a bench of Justice Prashant Kumar Mishra and Justice NV Anjaria.

The bench also upheld the Appellate Court / Revisional Court power under Section 464 Cr.P.C. 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.”

The case arose from an FIR lodged in 2019 by one-Lainehskhem Sutnga (PW-2), a resident of East Jaintia Hills, Meghalaya, alleging that her 13-year-old daughter was raped by the appellant.

Following the complaint, a case was registered under Sections 3 and 4 of the POCSO Act. After investigation, a chargesheet was filed, and the matter was committed to the Special Judge (POCSO) for trial. Charges were framed under Section 506 IPC and Sections 3 and 4 of the POCSO Act. The prosecution examined 14 witnesses and produced 11 material exhibits and one paper mark, including the Baptismal Certificate relied upon to establish the victim's age. The victim's statement was recorded under Section 164 CrPC. The appellant denied the allegations.

The trial court convicted the appellant under Section 4 of the POCSO Act and sentenced him to 20 years' rigorous imprisonment and a fine of ₹5,000, with six months' simple imprisonment in default. He was also sentenced to two years' rigorous imprisonment under Section 506 IPC.

The Meghalaya High Court dismissed the appellant's criminal appeal and affirmed the conviction and sentence, following which an appeal was filed before the Supreme Court by the accused.

The appellant primarily challenged the prosecution's determination of the victim's age. He relied on P. Yuvaprakash v. State to contend that a POCSO conviction could not stand without determination of age in accordance with Section 94 of the JJ Act.

The State opposed the appeal, arguing that the Supreme Court should not interfere with concurrent findings of guilt in the absence of manifest illegality or perversity. The State maintained that the victim's age had been established through the Baptismal Certificate and the oral testimony of her mother.

While finding force in the Appellant's contention that the prosecution failed to prove the age of the victim in the manner required under Section 94 of the JJ Act, the judgment authored by Justice Misra, however, noted that this itself would not enure to the benefit of the Appellant-accused, when the factum of rape was otherwise proved.

“…we have found that the factum of rape clearly stands established by way of medical evidence and the said finding cannot be set aside merely on the ground of absence of medical evidence establishing the age of the victim.”, the Court said, adding that “Letting guilty escape is not doing justice to a rape victim.”\

Omission to frame a particular charge would not prevent Court from convicting an accused under that particular charge

Since, the Trial Court had not framed a specific charge under Section 376 IPC, the Court held that this omission did not prevent it from convicting the appellant for rape in the facts of the case.

The Court observed that the Trial Court ought to have framed a charge under Section 376 IPC in the alternative to the POCSO charge, particularly when the prosecution case disclosed the commission of rape. However, the Court held that an omission to frame such a charge is not automatically fatal.

"An omission to frame a charge cannot absolve the accused of liability for commission of offence of rape of the victim, where such irregularity can be cured.", the Court said.

The Court relied on Section 464(1) CrPC, which provides that a conviction is not invalid merely because no charge was framed, or because of an error or omission in the charge, unless such omission has actually occasioned a failure of justice.

“…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. However, in cases where charge under Section 376 of the IPC has not been framed, nothing impairs the Appellate Court to proceed on examination of commission of offence under Section 376 of the IPC by the accused.”, the Court said.

As a result, since the prosecution failed to establish that the victim was a child for the purposes of the POCSO Act, the conviction under Section 4 of the POCSO Act could not be sustained.

The Court instead convicted the appellant under Section 376 IPC and imposed 10 years' rigorous imprisonment with a fine of ₹10,000.

Thus, the appeal was partly allowed, with the judgments of the Trial Court and High Court modified to that extent.

Headnote

Protection of Children from Sexual Offences Act, 2012 – Section 34 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Determination of Age of Child/Victim – Inadmissibility of Baptismal Certificate Alone - The procedure for determining the age of a victim under the POCSO Act is strictly governed by the hierarchy of documents prescribed under Section 94 of the JJ Act, 2015 - Age must be proved firstly by the date of birth certificate from the school / matriculation certificate; in its absence, by a birth certificate issued by a corporation, municipal authority, or panchayat; and only in the absence of both, by an ossification test or latest medical age determination test - A Baptismal Certificate issued by a church authority, even if supported by oral testimony of parents, does not fall within the statutory classes of documents enumerated in Section 94 of the JJ Act - In the absence of statutory certificates or an ossification test, the prosecution fails to establish minority, rendering conviction and enhanced punishment under Section 4(2) of the POCSO Act unsustainable. [Paras 35- 38]

Code of Criminal Procedure, 1973 – Sections 222, 386(b), & 464 – Conversion of POCSO Conviction to Section 376 IPC in Absence of Formal Charge – Cognate Offences & Absence of Failure of Justice - The omission to frame a specific or alternative charge under Section 376 IPC does not bar the Appellate Court from convicting the accused under Section 376 IPC where the charge under Section 4 POCSO Act fails due to lack of proof of the victim's age, provided the actus reus of rape is conclusively proved - Section 375 IPC and Section 3 of the POCSO Act share identical ingredients and actus reus, with the victim's minority being the sole distinguishing feature - Where the accused was put to notice and given full opportunity to defend against penetrative sexual assault, no prejudice or failure of justice is occasioned under Section 464 CrPC - Under Section 222 and Section 386(b) CrPC, the Appellate Court is fully empowered to alter the finding and convict the accused for the cognate/minor offence under Section 376(1) IPC and modify the sentence accordingly. [Distinguished from Luis Caetano Viegas v. Estrelina Mariana R.M.A Da'Costa, (2002) 9 SCC 144; Relied on P. Yuvaprakash v. State, 2023 SCC OnLine SC 846; Jarnail Singh v. State of Haryana, (2013) 7 SCC 263; Sandeep Yadav v. Satish, 2026 SCC OnLine SC 474; State of Uttar Pradesh v. Ram Swaroop @ Barkat, 2026 SCC OnLine SC 442; Sachin v. State of Maharashtra, (2025) 9 SCC 507; Paras 41–47, 50-58]

Cause Title: PYNCHEMALANGAKI BAREH VERSUS STATE OF MEGHALAYA

Citation : 2026 LiveLaw (SC) 924

Appearance:

For Petitioner(s) : Mr. Shashank Bajpai, Adv. Ms. Prachi Nirwan, Adv. Mr. Akshit Saxena, Adv. Ms. Shakun Sudha Shukla, Adv. Ms. Vaishnavstuti, Adv. Ms. Vidula Mehrotra, AOR

For Respondent(s) : Mr. Amit Kumar, Advocate General Mr. Avijit Mani Tripathi, AOR Mr. T.k.nayak, Adv. Mr. Aditya Kumar, Adv. Mr. Aditya S. Pandey, Adv.