2026 INSC 984 Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 1 of 30

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 4337 OF 2026

[ARISING OUT OF S.L.P. (CRIMINAL) NO.9809 OF 2025]

PYNCHEMALANGAKI BAREH … APPELLANT

VERSUS

STATE OF MEGHALAYA … RESPONDENT

J U D G M E N T

PRASHANT KUMAR MISHRA , J.

1. Leave granted.

2. The present Appeal challenges the final judgment and order dated

08.07.2024 in Crl.A. No. 38/2023 passed by the High Court of Meghalaya at

Shillong, whereby the High Court upheld the conviction of the appellant by

Special Judge (POCSO) vide judgment and order dated 16.06.2021 in Special

(POCSO) Case No. 9/2020 for the offences under Sections 506 of the Indian

Penal Code, 1860

1

and Section 3(a) of the Protection of Children from Sexual

Offences Act, 2012

2

punishable under Section 4 of the POCSO Act. The

appellant was sentenced to rigorous imprisonment of twenty years with a fine of

Rs. 5,000/-, in default to undergo six months simple imprisonment under

1

For short, ‘IPC’

2

For short, ‘POCSO Act’

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 2 of 30

Section 4 of the POCSO Act and rigorous imprisonment of two years for offence

under Section 506 of the IPC.

FACTUAL MATRIX

3. On 27.11.2019, the informant Lainehskhem Sutnga (P.W.-2) of Sutnga

village, Wallong, East Jaintia Hills, lodged an FIR to the effect that on 26.11.2019

her daughter (victim/prosecutrix) 13 years of age was raped at Mokoidaling,

Sutnga by the accused Pynchemalangaki Bareh, a resident of Sutnga village,

Wallong, who is the appellant before us.

4. On receipt of the FIR, the Officer-in-Charge of Khliehriat Women Police

Station accordingly registered the case vide Khliehriat Women P.S Case No.49

(11) 19 under Section 3/4 of the POCSO Act and entrusted to WPSI. S Kharsati

for carrying out the investigation.

5. After investigation, a charge-sheet dated 27.11.2019 was laid before the

Court of the Chief Judicial Magistrate and the case was committed to the Special

Judge (POCSO) for trial and charges were framed against the accused under

Section 506 of the IPC and under Sections 3 and 4 of the POCSO Act.

6. The prosecution, in order to substantiate the commission of the offence

against the accused, examined 14 witnesses and exhibited 11 material exhibits

and one paper mark (Baptismal Certificate). A statement under Section 164 of

the Code of Criminal Procedure, 1973

3

was obtained from the victim girl. The

accused denied the charges levelled against him.

3

For short, ‘Cr.PC’

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 3 of 30

7. On perusal of the depositions of all the witnesses (P.W.1 to P.W.14), the

Trial Court concluded that they were unanimous in their oral testimony that the

appellant had sexually assaulted the victim and nothing could be elicited in cross

to disbelieve their depositions as their statements are firm and convincing.

Additionally, at the conclusion of examination of the prosecution witnesses, the

appellant was examined under Section 313 of the Cr.PC, however, he declined

to adduce defence evidence.

8. The Trial Court vide judgment dated 16.06.2021 convicted and sentenced

the appellant as mentioned in paragraph 2 above. Basing the statement of the

mother of the victim and the Baptismal Certificate, which was found to be proved

in the course of trial and also the medical report (Annexure P-3), the age of the

victim was found to be 13 years.

9. Under the impugned judgment dated 08.07.2024, the High Court

dismissed the criminal appeal filed by the appellant and upheld the conviction

and sentence imposed by the Trial Court. Hence, the present Appeal.

APPELLANT’S SUBMISSIONS

10. Assailing the conviction under the POCSO Act, it was argued that the age

of the victim has not been proved as per Section 94 of the Juvenile Justice (Care

and Protection of Children) Act, 2015

4

. Therefore, in view of this Court’s

4

For short, ‘JJ Act’

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 4 of 30

judgment in P. Yuvaprakash v. State

5

, the conviction under the POCSO Act is

not sustainable.

11. It was further submitted that the prosecution failed to duly prove the age

of the victim, as it solely relied on the Baptismal Certificate dated 18.09.2016

reflecting her date of birth as 05.03.2006 without examining the Church Minister

nor is there any proof basing which the date of birth of the victim was recorded

in the Baptismal Certificate. It was further contended that the Baptismal

Certificate, having been issued by a private church authority, is not a public

document and is, therefore, inadmissible under Section 35 of the Indian

Evidence Act, 1872 and, moreover, the document was merely marked as

“Papermark-I” and was not formally exhibited. Hence, the same cannot be relied

upon in evidence.

12. It was further submitted that the Investigating Officer (P.W.-13) neither

recorded the statement of the Church Minister nor subjected the victim to an

ossification test. Resultantly, the mandatory requirements under Section 94 of

the JJ Act were not complied with, thereby rendering the presumption regarding

the victim’s minority unsustainable and, consequently, vitiating the applicability

of the POCSO Act.

13. It was next submitted that the determination of the age of the victim was

crucial, as proof that the victim was 13 years old would attract Section 4(2) of

the POCSO Act and Section 376(3) of the IPC, both prescribing a minimum

5

2023 SCC OnLine SC 846

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 5 of 30

sentence of 20 years, whereas if she was a major, only Section 376(1) of the IPC

carrying a minimum sentence of 10 years would apply. Hence, the benefit of

doubt ought to go to the accused.

14. It was submitted that the Medico-Legal Certificate

6

only recorded the

victim’s statement regarding menarche and did not contain any independent

medical findings. Clause 14 titled “Relevant Medical/Surgical History”, which

merely documents the victim’s version and does not constitute a medical finding.

It was argued on behalf of the appellant that P.W.-9’s opinion regarding the

victim being a minor was unsupported by any scientific or forensic examination,

as no ossification or dental test was conducted. It was further contended that

P.W.-9’s claim regarding the vaginal swab not being menstrual blood lacked any

laboratory or medical support. Accordingly, the prosecution failed to conclusively

establish the age or biological status of the victim, rendering the enhanced

sentence under Section 4(2) of the POCSO Act unsustainable.

15. The learned counsel would further submit that there are material

contradictions and progressive embellishments in the victim’s statement

affecting the credibility of the prosecution’s case. The learned counsel would

take this Court through the statements of the victim and the other witnesses.

16. It was submitted that the forensic evidence failed to corroborate the

prosecution’s case. The defence pointed out that although blood was detected on

the vulval swab, the FSL report did not identify its origin and no seminal stains

6

For short, ‘MLC’

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 6 of 30

were found, thereby undermining the allegation of penetrative sexual assault. It

was further argued that despite the MLC recording anal bleeding, the anal swab

tested negative for blood, and no DNA analysis was conducted on the biological

material found on the victim’s clothes to link it to the appellant. Additionally, the

stone allegedly used by the victim to strike the appellant tested negative for

blood, thereby failing to support her version of events.

17. Without prejudice to the preceding submissions, it was argued that even

if the victim were assumed to be a minor, her testimony was not of sterling

quality and could not safely sustain the conviction.

RESPONDENT’S SUBMISSIONS

18. Shri Amit Kumar, learned Advocate General for the respondent-State

submitted that the present Appeal challenges concurrent findings of conviction

recorded by both the Trial Court and the High Court without demonstrating any

manifest illegality or perversity in the impugned judgments. It was contended

that the appellant merely seeks re-appreciation of evidence and re-agitation of

issues already settled, which falls beyond the scope of the present proceedings,

and reliance was placed on settled precedents of this Court in this regard, Pappu

v. State of Uttar Pradesh

7

and Dalbir Kaur and Others v. State of Punjab

8

.

19. It was submitted on behalf of the respondent-State that both the Trial

Court and the High Court, after meticulous appreciation of the evidence on

7

(2022) 10 SCC 321

8

(1976) 4 SCC 158

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 7 of 30

record, passed detailed and well-reasoned judgments finding the appellant guilty

under the POCSO Act. It was contended that the present challenge is based on

untenable and unsubstantiated grounds, including disputes regarding the

victim’s minority, alleged inconsistencies in her statements, discrepancies

between medical evidence and oral testimony, lack of linkage between the

appellant’s injuries and the alleged incident, and purported inconsistencies in

the FSL report.

20. It was further submitted on behalf of the respondent-State that the age of

the victim stood conclusively established through documentary and oral

evidence, particularly the Baptismal Certificate dated 18.09.2016 issued by the

Khasi Jaintia Presbyterian Assembly, which recorded her date of birth as

05.03.2006. It was contended that the victim was, therefore, approximately

13 years old at the time of the incident and squarely fell within the definition of

a minor under the POCSO Act, and that the said certificate remained

uncontroverted on record.

21. Learned Advocate General for the respondent-State submitted that the

validity of the Baptismal Certificate as proof of age stands supported by the

decision of this Court in Luis Caetano Viegas v. Estrelina Mariana R.M.A

Da’Costa and Others

9

, wherein it was held that a birth certificate based on

baptism records, read and verified before the godparents, constitutes valid

evidence and cannot be discarded merely on that ground. It was , therefore,

9

(2002) 9 SCC 144

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 8 of 30

contended that the Baptismal Certificate relied upon in the present case was a

valid and reliable document for establishing the age of the victim.

22. It was submitted on behalf of the respondent-State that the minority of the

victim was further corroborated by the MLC dated 27.11.2019, which recorded

under “Relevant Medical History” that the “Onset of Menarche” was “No,” and

further noted that emergency contraception was not advised as she had not

attained menarche. It was contended that these medical findings conclusively

established that the victim was in a pre-pubescent stage, thereby reinforcing

proof of her minority.

23. It was further submitted that both the victim and her mother categorically

deposed during trial that the victim was a minor at the time of the incident. It

was further contended that the appellant did not dispute the victim’s age during

cross-examination, thereby impliedly admitting her minority.

24. It was submitted that the alleged contradictions in the victim’s statements

under Sections 161 and 164 of the Cr.PC regarding the place of occurrence and

threats extended by the appellant were minor and did not affect the core of the

prosecution’s case. It was contended that the victim consistently maintained that

the appellant dragged her into the bushes, threatened to kill her, committed

sexual assault upon her, and that she struck him with a stone before fleeing,

thereby rendering her testimony cogent, consistent, and reliable.

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 9 of 30

25. The respondent-State placed reliance on State of Punjab v. Gurmit

Singh and Others

10

wherein this Court held that in cases of sexual offences,

the sole testimony of the prosecutrix is sufficient to sustain conviction if it

inspires confidence and is found reliable. It was contended that minor

discrepancies or inconsistencies which do not affect the core of the prosecution’s

case cannot be grounds to discard the testimony of the victim, and corroboration

is not an indispensable requirement in every case of sexual assault.

26. It was submitted on behalf of the respondent that the testimony of the

victim stood corroborated by the medical evidence, particularly the MLC dated

27.11.2019, which recorded findings such as “Hymen Open Torn” and noted

“Partial Penile Penetration of the Vagina.” It was contended that these medical

findings were fully consistent with the victim’s account of forcible sexual assault

and strongly supported the prosecution’s case.

27. It was submitted by the respondent-State that the appellant’s MLC dated

27.11.2019 recorded abrasions and a cut injury on the forehead, consistent with

the victim’s allegation that she struck him with a stone while resisting the

assault, thereby lending credibility to her version of events. It was further

contended that the FSL report dated 29.05.2020 strengthened the prosecution’s

case, as Exhibit M (Pink and Dark Blue Jacket of the Victim) and Exhibit N(i)

(Black Long Pant of the Victim) tested positive for human blood of Group “B,”

matching the appellant’s blood group and thereby linking him to the offence.

10

(1996) 2 SCC 384

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 10 of 30

28. It was submitted by the respondent-State that since the present case falls

under the POCSO Act, once the prosecution establishes a prima facie case,

Section 29 of the Act raises a presumption of guilt against the accused, shifting

the burden to him to prove his innocence. It was contended that the appellant

failed to discharge this burden, as he neither explained his injuries nor led any

defence evidence or established an alibi.

29. It was submitted by the respondent-State that, in view of the overwhelming

material on record, the presence of the appellant at the scene of occurrence stood

established beyond reasonable doubt. It was contended that the cumulative

effect of the victim’s testimony, medical evidence, and forensic findings,

including blood of the appellant’s group allegedly found on the victim’s clothing,

unerringly pointed to his involvement in the commission of the offence. It was

further argued that the appellant failed to discharge even the basic burden of

rebuttal, as his statement under Section 313 of the Cr.PC consisted only of bald

denials without any plausible explanation to dislodge the prosecution’s case.

30. The learned Advocate General for the respondent-State has relied upon

the decisions rendered by this Court in Madan Gopal Kakkad v. Naval Dubey

and Another

11

; Ranjit Hazarika v. State of Assam

12

; State of H.P. v. Gian

Chand

13

; State of Rajasthan v. Om Prakash

14

; State of T.N v. Ravi alias

11

(1992) 3 SCC 204

12

(1998) 8 SCC 635

13

(2001) 6 SCC 71

14

(2002) 5 SCC 745

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 11 of 30

Nehru

15

; Ganesan v. State

16

; Phool Singh v. State of Madhya Pradesh

17

;

and Nawabuddin v. State of Uttarakhand

18

.

ANALYSIS AND CONCLUSION

31. Considering the submissions made by the learned counsel for the parties,

as noted above, and the material on record, this Court needs to dwell upon the

following issues:

(i) Whether the age (minority) of the victim has been rightly determined by

the Trial Court and affirmed by the High Court for convicting the

appellant for committing offence under Section 3 of the POCSO Act

punishable under Section 4 of the said Act?

(ii) If the age (minority) of the victim has not been proved in accordance

with law, whether the appellant can be held guilty for committing

offence under Section 376(1) of the IPC?

ISSUE NO.(I)

32. The issue as to legal requisite for determination of age of a victim under

the POCSO Act has been considered by this Court in at least following three

judgments cited before us.

33. In Jarnail Singh v. State of Haryana

19

, a two-Judge Bench of this

Court, referred to Rule 12 of the Juvenile Justice (Care and Protection of

15

(2006) 10 SCC 534

16

(2020) 10 SCC 573

17

(2022) 2 SCC 74

18

(2022) 5 SCC 419

19

(2013) 7 SCC 263

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 12 of 30

Children) Rules, 2007

20

to hold that the said statutory provisions could be the

basis for determining the age, even of a child who is a victim of crime. Following

has been held in paragraphs 22 and 23:

“22. On the issue of determination of age of a minor, one only needs

to make a reference to Rule 12 of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 (hereinafter referred to as “the

2007 Rules”). The aforestated 2007 Rules have been framed under

Section 68(1) of the Juvenile Justice (Care and Protection of Children)

Act, 2000. Rule 12 referred to hereinabove reads as under:

“12.Procedure to be followed in determination of age .—(1) In

every case concerning a child or a juvenile in conflict with law, the

court or the Board or as the case may be, the Committee referred

to in Rule 19 of these Rules shall determine the age of such juvenile

or child or a juvenile in conflict with law within a period of thirty

days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee

shall decide the juvenility or otherwise of the juvenile or the child

or as the case may be the juvenile in conflict with law, prima facie

on the basis of physical appearance or documents, if available, and

send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law,

the age determination inquiry shall be conducted by the court or

the Board or, as the case may be, the Committee by seeking

evidence by obtaining—

(a)(i) the matriculation or equivalent certificates, if available;

and in the absence whereof;

(ii) the date of birth certificate from the school (other than a

play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause

(a) above, the medical opinion will be sought from a duly

constituted Medical Board, which will declare the age of the

juvenile or child. In case exact assessment of the age cannot

be done, the court or the Board or, as the case may be, the

Committee, for the reasons to be recorded by them, may, if

considered necessary, give benefit to the child or juvenile by

considering his/her age on lower side within the margin of

one year,

and, while passing orders in such case shall, after taking into

consideration such evidence as may be available, or the medical

opinion, as the case may be, record a finding in respect of his age

and either of the evidence specified in any of the clauses (a)(i), (ii),

(iii) or in the absence whereof, clause (b) shall be the conclusive

20

For short, ‘2007 Rules’

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 13 of 30

proof of the age as regards such child or the juvenile in conflict with

law.

(4) If the age of a juvenile or child or the juvenile in conflict with

law is found to be below 18 years on the date of offence, on the

basis of any of the conclusive proof specified in sub-rule (3), the

court or the Board or as the case may be the Committee shall in

writing pass an order stating the age and declaring the status of

juvenility or otherwise, for the purpose of the Act and these Rules

and a copy of the order shall be given to such juvenile or the person

concerned.

(5) Save and except where, further inquiry or otherwise is required,

inter alia, in terms of Section 7-A, Section 64 of the Act and these

Rules, no further inquiry shall be conducted by the court or the

Board after examining and obtaining the certificate or any other

documentary proof referred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply to those

disposed of cases, where the status of juvenility has not been

determined in accordance with the provisions contained in sub-

rule (3) and the Act, requiring dispensation of the sentence under

the Act for passing appropriate order in the interest of the juvenile

in conflict with law.”

23. Even though Rule 12 is strictly applicable only to determine

the age of a child in conflict with law, we are of the view that the

aforesaid statutory provision should be the basis for determining

age, even of a child who is a victim of crime. For, in our v iew,

there is hardly any difference insofar as the issue of minority is

concerned, between a child in conflict with law, and a child who

is a victim of crime. Therefore, in our considered opinion, it would

be just and appropriate to apply Rule 12 of the 2007 Rules, to

determine the age of the prosecutrix VW, PW 6. The manner of

determining age conclusively has been expressed in sub-rule (3) of

Rule 12 extracted above. Under the aforesaid provision, the age of a

child is ascertained by adopting the first available basis out of a

number of options postulated in Rule 12(3). If, in the scheme of options

under Rule 12(3), an option is expressed in a preceding clause, it has

overriding effect over an option expressed in a subsequent clause. The

highest rated option available would conclusively determine the age of

a minor. In the scheme of Rule 12(3), matriculation (or equivalent)

certificate of the child concerned is the highest rated option. In case,

the said certificate is available, no other evidence can be relied upon.

Only in the absence of the said certificate, Rule 12(3) envisages

consideration of the date of birth entered in the school first attended

by the child. In case such an entry of date of birth is available, the

date of birth depicted therein is liable to be treated as final and

conclusive, and no other material is to be relied upon. Only in the

absence of such entry, Rule 12(3) postulates reliance on a birth

certificate issued by a corporation or a municipal authority or a

panchayat. Yet again, if such a certificate is available, then no other

material whatsoever is to be taken into consideration for determining

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 14 of 30

the age of the child concerned, as the said certificate would

conclusively determine the age of the child. It is only in the absence of

any of the aforesaid, that Rule 12(3) postulates the determination of

age of the child concerned, on the basis of medical opinion.”

(emphasis supplied)

34. Thereafter, in State of Madhya Pradesh v. Anoop Singh

21

, this Court

referred and relied upon its earlier judgment in Mahadeo v. State of

Maharashtra and Another

22

, to hold that the age of a rape victim should be

determined on the basis of the provisions contained in the 2007 Rules and the

same yardstick can be rightly followed by the Courts for the purpose of

ascertaining the age of a victim as well.

35. While the above two judgments were in the context of a minor victim where

the accused was charged for commission of offence of rape under the IPC, the

recent judgment in the case of P. Yuvaprakash (supra) dealt with a matter

where the accused was tried for offences under the POCSO Act. By referring to

Sections 34 and 94 of the JJ Act, this Court in P. Yuvaprakash (supra) held

thus:

“14. In view of Section 34(1) of the Pocso Act, Section 94 of the JJ Act,

2015 becomes relevant, and applicable. That provision is extracted

below:

“94. Presumption and determination of age .—(1) Where, it is

obvious to the Committee or the Board, based on the appearance

of the person brought before it under any of the provisions of this

Act (other than for the purpose of giving evidence) that the said

person is a child, the Committee or the Board shall record such

observation stating the age of the child as nearly as may be and

proceed with the inquiry under Section 14 or Section 36, as the

case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for

doubt regarding whether the person brought before it is a child or

21

(2015) 7 SCC 773

22

(2013) 14 SCC 637

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 15 of 30

not, the Committee or the Board, as the case may be, shall

undertake the process of age determination, by seeking evidence

by obtaining—

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the examination

Board concerned, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal

authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be

determined by an ossification test or any other latest

medical age determination test conducted on the orders of

the Committee or the Board:

Provided such age determination test conducted on the order of the

Committee or the Board shall be completed within fifteen days from

the date of such order.

(3) The age recorded by the Committee or the Board to be the age

of person so brought before it shall, for the purpose of this Act, be

deemed to be the true age of that person.”

15. It is evident from conjoint reading of the above provisions

that wherever the dispute with respect to the age of a person

arises in the context of her or him being a victim under

the Pocso Act, the courts have to take recourse to the steps

indicated in Section 94 of the JJ Act. The three documents in

order of which the Juvenile Justice Act requires consideration is

that the court concerned has to determine the age by considering

the following documents:

“94. (2)(i) The date of birth certificate from the school, or the

matriculation or equivalent certificate from the examination Board

concerned, if available; and in the absence thereof;

(ii) The birth certificate given by a corporation or a municipal

authority or a panchayat;

(iii) And only in the absence of (i) and (ii) above, age shall be

determined by an ossification test or any other latest medical age

determination test conducted on the orders of the Committee or the

Board.”

16. Section 94(2)(iii) of the JJ Act clearly indicates that the date

of birth certificate from the school or matriculation or equivalent

certificate by the examination board concerned has to be firstly

preferred in the absence of which the birth certificate issued by

the Corporation or Municipal Authority or Panchayat and it is

only thereafter in the absence of these such documents the age is

to be determined through “ an ossification test” or “any other

latest medical age determination test” conducted on the orders

of the authority concerned i.e. Committee or Board or Court.

17. In the present case, concededly, only a transfer certificate and not

the date of birth certificate or matriculation or equivalent certificate

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 16 of 30

was considered. Ext. C-1 i.e. the school transfer certificate showed the

date of birth of the victim as 11-7-1997. Significantly, the transfer

certificate was produced not by the prosecution but instead by the

court summoned witness i.e. CW 1. The burden is always upon the

prosecution to establish what it alleges; therefore, the prosecution

could not have been fallen back upon a document which it had never

relied upon. Furthermore, DW 3, the Revenue Official (Deputy

Tahsildar) concerned had stated on oath that the records for the year

1997 in respect to the births and deaths were missing. Since it did not

answer to the description of any class of documents mentioned in

Section 94(2)(i) as it was a mere transfer certificate, Ext. C-1 could not

have been relied upon to hold that ‘M’ was below 18 years at the time

of commission of the offence.

*****

22. It is clear from the above narrative that none of the

documents produced during the trial answered the description of

“the date of birth certificate from the school ” or “the

matriculation or equivalent certificate” from the examination

board concerned or certificate by a corporation, municipal

authority or a Panchayat. In these circumstances, it was

incumbent for the prosecution to prove through acceptable

medical tests/examination that the victim's age was below 1 8

years as per Section 94(2)(iii) of the JJ Act. PW 9, Dr Thenmozhi,

Chief Civil Doctor and Radiologist at the General Hospital at Vellore,

produced the x-ray reports and deposed that in terms of the

examination of ‘M’, a certificate was issued stating “that the age of the

said girl would be more than 18 years and less than 20 years”. In the

cross-examination, she admitted that M's age could be taken as 19

years. However, the High Court rejected this evidence, saying that

“when the precise date of birth is available from out of the school

records, the approximate age estimated by the medical expert cannot be

the determining factor”. This finding is, in this Court's considered view,

incorrect and erroneous.

23. As held earlier, the documents produced i.e. a transfer certificate

and extracts of the admission register, are not what Section 94(2)(i)

mandates; nor are they in accord with Section 94(2)(ii) because DW 1

clearly deposed that there were no records relating to the birth of the

victim, ‘M’. In these circumstances, the only piece of evidence,

accorded with Section 94 of the JJ Act was the medical ossification

test, based on several x-rays of the victim, and on the basis of which

PW 9 made her statement. She explained the details regarding

examination of the victim's bones, stage of their development and

opined that she was between 18-20 years; in cross-examination she

said that the age might be 19 years. Given all these circumstances,

this Court is of the opinion that the result of the ossification or bone

test was the most authentic evidence, corroborated by the examining

doctor, PW 9.”

(emphasis supplied)

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 17 of 30

36. In the case at hand, the Investigating Officer did not obtain the birth

certificate from the school where the victim had studied or the matriculation or

equivalent certificate from the examination Board concerned or birth certificate

given by a corporation, a municipal authority or a panchayat, to prove that the

victim was a minor on the date of offence. The victim was also not sent for any

age determination test as provided under Rule 12 of the 2007 Rules or under

Section 94(2)(iii) of the JJ Act which is in pari materia with Rule 12 of the 2007

Rules. The said provision prescribes that in the absence of the date of birth

certificate from the school or the matriculation or equivalent certificate from the

examination Board concerned, or birth certificate given by a corporation, a

municipal authority or a panchayat, the age shall be determined by an

ossification test or any other latest medical age determination test conducted on

the orders of the Committee or the Board. Admittedly, the victim was not

subjected to any ossification test or any other latest medical age determination

test. The only document available on the record for proving the age of the victim

is the Baptismal Certificate issued by the Khasi Jaintia Presbyterian Assembly.

Although the date of birth in the Baptismal Certificate finds corroboration in the

deposition of P.W.-2, the mother of the victim girl, stating the girl was born on

05.03.2006, yet since the document itself is not the one prescribed under Section

94 of the JJ Act, we are of the considered view that the prosecution has failed to

prove the age of the victim in the manner required under Section 94 of the JJ

Act.

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 18 of 30

37. The learned Advocate General for the respondent-State has strenuously

urged before this Court that the Baptismal Certificate should be taken to be a

document which duly proves the date of birth of the victim. For this, reliance

has been placed on the decision of this Court in Luis Caetano Viegas (supra).

38. In Luis Caetano Viegas (supra), this Court was dealing with an issue

concerning inventory proceedings for partition of inheritance of the property of

common ancestors. In the said context, dealing with the issue of parentage, this

Court in paragraph 9 held thus:

“9. The emphasised portion stated above clearly indicates that the

baptismal record was read and checked before the godparents, and

the same has been signed by the Parson along with them. The learned

District Judge felt that the certificate of registration of birth merely

proceeds on the basis of the baptism certificate. If the birth certificate

is a true reflection of the baptism record and it contains the fact that

it was read and checked before the godparents, the same need not be

discarded and it must be held that the same had been made in the

presence of both godparents. In that view of the matter, the trial court

was justified in the conclusion it reached and not the learned District

Judge who proceeded on misreading of the record. Hence the High

Court ought to have reversed the finding recorded by the learned

District Judge who ignored this crucial aspect in the course of his

order.”

It is, thus, apparent that in the above matter, in addition to the Baptismal

Certificate, a birth certificate was also issued and was duly proved in the course

of proceedings. Thus, the said case did not rest only on the basis of the

Baptismal Certificate. Moreover, the present is a case where this Court is dealing

with the issue relating to proof of age of a POCSO victim for which a statutory

prescription is put in place by the legislation in the form of Section 94 of the JJ

Act which had been found applicable in the case of POCSO victims also as held

by this Court in the judgments discussed by us in the preceding paragraphs.

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 19 of 30

Thus, the case of Luis Caetano Viegas (supra) is not only distinguishable, but

it does not apply in the background of the statutory mechanism for proving the

age of the POCSO victim with which we are concerned in this case. The argument

raised by the learned Advocate General for the respondent-State basing on Luis

Caetano Viegas (supra) is, thus, rejected.

39. Reverting to the facts of the case insofar as the proof of commission of rape

is concerned, 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. In

such a case, it has been rightly observed in Sucha Singh and Another v. State

of Punjab

23

that exaggerated devotion to the rule of benefit of doubt must not

nurture fanciful doubts or lingering suspicion and thereby destroy social

defence. Justice cannot be made sterile on the plea that it is better to let a

hundred guilty escape than punish an innocent. Letting guilty escape is not

doing justice to a rape victim.

ISSUE NO.(II)

40. Minority of the victim has not been established by the prosecution.

Therefore, we are required to consider the next limb of the argument raised by

the appellant that the conviction and sentence for commission of rape is not

23

(2003) 7 SCC 643

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 20 of 30

sustainable as no charge was framed against the appellant for commission of

offence under Section 376 of the IPC.

41. The issue regarding conviction of accused under Section 376 of the IPC

arises only due to absence of a charge framed thereunder by the Trial Court. In

the facts of the present case, it was the duty of the Trial Court to be careful in

framing charges, particularly charge under Section 376 of the IPC in the

alternative to Section 4 of the POCSO Act, in view of prima facie commission of

said offence. However, 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.

42. In view of Section 464(1) of the Cr.PC, such error will not be material

unless it has occasioned a failure of justice, stated as below:

“464. Effect of omission to frame, or absence of, or error in,

charge.—(1) No finding, sentence or order by a Court of competent

jurisdiction shall be deemed invalid merely on the ground that no

charge was framed or on the ground of any error, omission or

irregularity in the charge including any misjoinder of charges, unless,

in the opinion of the Court of appeal, confirmation or revision, a failure

of justice has in fact been occasioned thereby.”

43. This Court in Sandeep Yadav v. Satish and Others

24, reiterated this

position, relying on Rafiq Ahmad alias Rafi v. State of Uttar Pradesh

25

,

wherein Court held that when a charge of a major offence is not made out,

conviction for a minor offence even in the absence of the charge for the said

minor offence can be sustained. It has also been held that the purpose of framing

24

2026 SCC OnLine SC 474

25

(2011) 8 SCC 300

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 21 of 30

of charge is to put the accused to notice regarding the offence for which he is

being tried. It was further held that non-framing of a charge or defects therein

would not ipso facto vitiate the trial and that the question must always be

examined in the facts of each case to determine whether prejudice or failure of

justice has been occasioned.

44. On a perusal of Section 375 of the IPC and Section 3 of the POCSO Act,

the actus reus mentioned, 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. 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.

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 22 of 30

45. Hence, 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 same has been provided under Section 386 of the Cr.PC in case of an

appeal filed against conviction, under clauses (b) and (e) of Section 386 of the

Cr.PC in the following words:

“386. Powers of the Appellate Court.- …

(b) in an appeal from a conviction—

(i) reverse the finding and sentence and acquit or discharge the

accused, or order him to be re -tried by a Court of competent

jurisdiction subordinate to such Appellate Court or committed for

trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent,

or the nature and extent, of the sentence, but not so as to enhance the

same;...

(e) make any amendment or any consequential or incidental order that

may be just or proper:...”

46. In Sachin v. State of Maharashtra

26, this Court held:

“40. The question for consideration in this case is, whether, in an

appeal against conviction, the appellate court could have directed

enhancement of the sentence in an appeal filed by the accused. Under

clause (b) of Section 386 CrPC, firstly, the appellate court can no doubt

alter the findings and sentence and acquit or discharge the accused

or order him to be retried by a Court of competent jurisdiction

subordinate to such appellate court or committed for trial. Secondly,

the appellate court can also alter the findings but maintain the

sentence. Thirdly, the appellate court can, in an appeal from a

conviction, with or without altering the finding, alter the nature or the

extent, or the nature and extent, of the sentence but not so as to

enhance the same. A plain reading of this would imply that in an

appeal against conviction which is obviously filed by the accused, the

challenge could be two-fold: firstly, it could be against the conviction

itself in which case there is a challenge to the sentence also; and

26

(2025) 9 SCC 507

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 23 of 30

secondly, the challenge could be only to the sentence while accepting

the conviction. In other words, the challenge would also be only for

reduction of the sentence. …”

47. The only determinative test under Section 464 of the Cr.PC is whether

there occasioned a failure of justice in upholding findings of the Trial Court. The

Trial Court and High Court have concurrently recorded a finding of fact regarding

commission of penetrative sexual assault by the accused/appellant within the

meaning of Section 3 of the POCSO Act. 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. Barring the case of

commission of sexual assault on a child below the age of sixteen years, a close

analysis of punishment provided under clause (1) of Section 376 of the IPC and

clause (1) of Section 4 of the POCSO Act also reveals that they are offences of the

same nature, both providing for a minimum imprisonment of ten years.

48. The appellant/accused was convicted by the Trial Court for a grave offence

under Section 4(2) of the POCSO Act, providing a minimum sentence of twenty

years. In a question before this Court on conviction under Section 304B in a trial

for offence under Section 302 of the IPC, in the absence of charge framed under

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 24 of 30

Section 304B of the IPC, this Court in Shamnsaheb M. Multtani v . State of

Karnataka

27, on a conjoint reading of Section 222 of the Cr.PC and Section 464

of the Cr.PC held that such conviction would be valid even if there is any

omission or irregularity in the charge, provided there was no failure of justice.

This Court held:

“15. Section 222(1) of the Code deals with a case "when a person is

charged with an offence consisting of several particulars". The section

permits the court to convict the accused "of the minor offence, though

he was not charged with it". …

16. What is meant by "a minor offence" for the purpose of Section 222

of the Code? Although the said expression is not defined in the Code

it can be discerned from the context that the test of minor offence is

not merely that the prescribed punishment is less than the major

offence. The two illustrations provided in the section would bring the

above point home well. Only if the two offences are cognate offences,

wherein the main ingredients are common, the one punishable among

them with a lesser sentence can be regarded as minor offence vis-à-

vis the other offence.”

49. Recently, this Court in State of Uttar Pradesh v. Ram Swaroop @

Barkat

28

reiterated that Section 222(1) of the Code deals with a case where a

person is charged with an offence consisting of several particulars. The section

permits the Court to convict the accused of the minor offence though he was not

charged with it. Section 222 states as below:

“222. When offence proved included in offence charged.— (1) When

a person is charged with an offence consisting of several particulars,

a combination of some only of which constitutes a complete minor

offence, and such combination is proved, but the remaining

particulars are not proved, he may be convicted of the minor offence,

though he was not charged with it.

27

(2001) 2 SCC 577

28

2026 SCC OnLine SC 442

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 25 of 30

(2) When a person is charged with an offence and facts are proved

which reduce it to a minor offence, he may be convicted of the minor

offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of

an attempt to commit such offence although the attempt is not

separately charged.

(4) Nothing in this section shall be deemed to authorise a conviction of

any minor offence where the conditions requisite for the initiation of

proceedings in respect of that minor offence have not been satisfied.”

50. 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.

51. 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. This Court in Rafiq Ahmad

(supra) held:

“31. With the passage of time more and more such cases came up for

consideration of this Court as well as the High Courts. The

development of law has not changed the basic principles which have

been stated in the judgments afore-referred. Usually an offence of

grave nature includes in itself the essentials of a lesser but cognate

offence. In other words, there are classes of offences like offences

against the human body, offences against property and offences

relating to cheating, misappropriation, forgery, etc. In the normal

course of events, the question of grave and less grave offences would

arise in relation to the offences falling in the same class and normally

may not be inter se the classes. It is expected of the prosecution to

collect all evidence in accordance with law to ensure that the

prosecution is able to establish the charge with which the accused is

charged, beyond reasonable doubt. It is only in those cases, keeping

in view the facts and circumstances of a given case and if the court is

of the view that the grave offence has not been established on merits

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 26 of 30

or for a default of technical nature, it may still proceed to punish the

accused for an offence of a less grave nature and content.

***

43. Having stated the above, let us now examine what kind of offences

may fall in the same category except to the extent of ‘grave or less

grave’. We have already noticed that a person charged with a heinous

or grave offence can be punished for a less grave of-fence of cognate

nature whose essentials are satisfied with the evidence on record.

Examples of this kind have already been noticed by us like a charge

being framed under Section 302 IPC and the accused being punished

under Section 304, Part I or II, as the circumstances and facts of the

case may demand. Furthermore, a person who is charged with an

offence under Section 326 IPC can be finally convicted for an offence

of lesser gravity under Section 325 or 323 IPC, if the facts of the case

so establish.”

52. In Willie (William) Slaney v. State of M adhya Pradesh

29

, the

Constitution Bench examined the question of absence of charge in great detail

and made observations in paragraph 6 which are of a general application, stated

as below:

“6. Before we proceed to set out our answer and examine the

provisions of the Code, we will pause to observe that the Code is a code

of procedure and, like all procedural laws, is designed to further the

ends of justice and not to frustrate them by introduction of endless

technicalities. The object of the Code is to ensure that an accused

person gets a full and fair trial along certain well-established and well-

understood lines that accord with our notions of natural justice. If he

does, if he is tried by a competent court, if he is told and clearly

understands the nature of the offence for which he is being tried, if the

case against him is fully and fairly explained to him and he is afforded

a full and fair opportunity of defending himself. Then, provided there

is ‘substantial’ compliance with the outward forms of the law, mere

mistakes in procedure, mere inconsequential errors and omissions in

the trial are regarded as venal by the Code and the trial is not vitiated

unless the accused can show substantial prejudice. That, broadly

speaking, is the basic principle on which the Code is based.”

53. In a case involving trial of an accused under Sections 302, 498-A and 304-

B of the IPC, while answering issue with respect to conviction of accused under

29

(1955) 2 SCC 340

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 27 of 30

Section 306 of the IPC in the absence of charge framed under it, this Court in

Dalbir Singh v. State of U.P.

30

held that having regard to Section 464 of the

Cr.PC, Appellate Court or Revisional Court has the power to convict the accused.

It was held that conviction is possible 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.

54. There is a catena of decisions of this Court on the same lines and it is not

necessary to burden this judgment making reference to each one of them.

Therefore, 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.

55. The victim identified appellant/accused all three times during the Test

Identification Parade conducted on 13.12.2019 as per P.W.-12, a witness during

the same, and the same was also deposed by P .W.-1 during her cross-

30

(2004) 5 SCC 334

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 28 of 30

examination on 10.03.2021. P.W.-14, Magistrate who conducted the Test

Identification Parade, deposed that the victim positively identified the suspect on

all three rounds. As per testimony of the prosecutrix, the accused sustained

injuries on his forehead which is well corroborated by P.W.-11 (Doctor) who

medically examined the accused and found a cut injury 2 x l cm on his left lateral

forehead. In cross-examination, P.W.-11 asserted that the cut injury on the

forehead as per the accused statement was being hit by the survivor with a stone.

P.W.-4 and P.W.-5 deposed in unison that the accused was injured on the

forehead and the accused himself has confessed before them of the crime

committed by him. They even identified him in Court to be perpetrator of the

crime. All the prosecution witnesses, namely P.W.-1, P.W.-2, P.W.-3, P.W.-4,

P.W.-5, P.W.-6, P.W.-7, P.W.-8, P.W.-9, P.W.-10, P.W.-11, P.W.-12, P.W.-13 and

P.W.-14 were unanimous in their oral testimony that the accused person had

sexually assaulted the prosecutrix and nothing was shaken in cross to

disbelieved their depositions as their statement are firm and convincing.

56. The FSL has proved the presence of the blood of the accused which was

present on Exhibit-M (pink and dark blue jacket of the victim), Exhibit N(i) (black

long pant of the victim) and Exhibit-N(ii) (light blue underwear of the victim) and

seminal stain was detected on Exhibit F1x (black underwear of the accused). As

per P.W.-9, Doctor-chief who examined the victim, blood stains were found in

the vaginal swab, which have been further corroborated by the medical

examination report (Ex.P1)/clinical findings, conducted on the victim girl

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 29 of 30

(P.W.-1) showed, "Hymen torn, partial penile, penetration of the vagina". The

factum of sexual intercourse has also been duly established by the victim girl

(P.W.-1) as per statement under Section 164 of the Cr.PC.

57. The said discussion clearly brings out the fact that 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.

58. In view of the above, we find no good reason to interfere with the

concurrent judgments convicting the accused and sentencing him under Section

506 of the IPC, details of which have been set out hereinabove. In the facts of

present case, the appellant/accused is convicted under Section 376 of the IPC

for commission of rape. As provided under sub-clause (iii) to clause (b) of Section

386 of the Cr.PC detailed hereinabove, the powers of the Appellate Court extend

to altering the findings and nature and extent of sentence awarded by Trial

Court. Hence, we hereby sentence the appellant/accused to undergo 10 years of

rigorous imprisonment and fine of Rs.10,000/- under Section 376 of the IPC, in

default of payment of fine to undergo additional rigorous imprisonment for 06

months.

Criminal Appeal @ SLP (Crl.) No.9809/2025 Page 30 of 30

59. Consequently, impugned judgments dated 08.07.2024 of the High Court

and 16.06.2021 passed by the Special Judge (POCSO), District and Sessions

Court in Special (POCSO) Case No. 9/2020, is modified to the extent of conviction

and sentence of appellant/accused under Section 376 of the IPC in addition to

conviction and sentence under Section 506 of the IPC awarded by Trial Court

and upheld by the High Court and the appellant/accused is sentenced to

undergo rigorous imprisonment for 10 years and fine of Rs.10,000/-, in default

of payment of fine to undergo additional rigorous imprisonment for 06 months.

60. We, therefore, partly allow the Appeal in the above stated terms.

.…........................................J.

(PRASHANT KUMAR MISHRA)

...………....….........................J.

(N.V. ANJARIA)

NEW DELHI;

SEPTEMBER 10, 2026.