As per case facts, a minor victim (13 years old) was allegedly abducted and raped multiple times by a neighbor. The victim reported the incident to her mother, leading to ...
APEAL_1133_23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1133 OF 2023
Ramesh Dada Kalel … Appellant
vs.
The State of Maharashtra and another… Respondents
Mr. Tapan Thatte a/w. Mr. Vivek Arote and Mr. Akshay Dingale, i/b.
Mr.Dayanand Mane for appellant.
Dr. Dhanalakshmi S. Krishnaiyer, APP for respondent No.1-State.
Ms. P. S. Potdar (appointed through legal aid) for respondent No.2.
CORAM : MANISH PITALE &
MANJUSHA DESHPANDE, JJ
RESERVED ON: 16
th
DECEMBER, 2025
PRONOUNCED ON: 19
th
JANUARY, 2026
JUDGMENT: (Per Justice Manish Pitale, J):
. The appellant is aggrieved by judgment and order dated
29.08.2023 passed by the Court of Extra Joint District and Additional
Sessions Judge, Panvel-Raigad (hereinafter referred to as the Trial
Court). By the said judgment and order, the appellant is sentenced to
suffer rigorous imprisonment for life, which shall mean
imprisonment for remainder of life under Section 376(3) of the
Indian Penal Code, 1860 (IPC) and to pay fine of 50,000, in default₹
of which he shall undergo additional rigorous imprisonment of one
month.
2. The challenge to the impugned judgment and order on behalf
of the appellant, has two facets. Firstly, the findings rendered by the
Trial Court have been challenged on merits and secondly, it is
claimed that there has been a fundamental procedural error
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committed by the Trial Court from the stage of framing of charge to
passing the final order of conviction and sentence, which has caused
grave prejudice to the appellant, resulting in failure of justice. On
both counts, it is claimed that the impugned judgment and order,
deserves to be set aside. Before appreciating the contentions raised
on behalf of the appellant, it would be necessary to refer to the
prosecution case in brief.
3. The first informant in the present case, is PW1-Ashabai, who is
the mother of the victim-PW4. At the point in time when the offence
was committed, the victim was said to be 13 years old. According to
the first informant-PW1-Ashabai, on 29.10.2018, her daughter i.e.
the victim-PW4 had gone to school as usual. It was claimed that the
victim was suffering from epilepsy and therefore, she used to return
home at around noon to take a tablet and then, she used to go back
to school. On the aforesaid date, the victim-PW4 is said to have
come home to take medicine at around 12:30 p.m. and after taking
medicine, she left for school. But, when the younger daughter of
PW1-Ashabai returned from school at about 02:30 p.m., she
informed that the victim had not reached school after taking
medicine. Hence, PW1-Ashabhai visited the school along with her
younger daughter, when the class teacher confirmed the fact that the
victim had not come back to school. Thereupon, PW1-Ashabai started
searching for the victim in the locality along with others. Her
husband joined her in the evening, after returning back from work
and it is claimed that the appellant i.e. the accused also joined them
in searching for the victim. But, PW4-victim could not be found.
4. On the next day i.e. on 30.10.2018, the victim is said to have
returned home at about 05:00 a.m. It is claimed that when PW1-
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Ashabai took her daughter-PW4 in confidence, she informed that the
appellant, who was their neighbour, had forcibly taken the victim in
his house and committed rape on her. It is alleged that he had
threatened the victim with dire consequences and it was further
claimed that the victim was kept trapped inside the bedbox and that
through the night, the appellant committed the aforesaid act three
times upon the victim.
5. On the basis of the information given by the victim-PW4, the
first informant-PW1 (Ashabai) reached the police station for
registration of FIR. The victim was sent for medical examination in
the evening on 30.10.2018. The appellant was arrested. The
investigation was completed and chargesheet was filed.
6. Charge was framed against the appellant for offences under
Sections 376(2)(i) and (n) & other provisions of the IPC as also,
offence under Section 5(l) punishable under Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as the POCSO Act). The appellant claims that at the stage
of framing of charge itself, a fundamental defect had arisen, as clause
(i) of sub-section 2 of Section 376 of the IPC, had been already
deleted by an amendment in the year 2018 and hence, charge was
framed against the appellant for an offence, which did not exist in
the statute book.
7. The prosecution examined 11 witnesses to prove its case
against the appellant. PW1-Ashabai (mother of PW4- victim) was the
first informant; PW4 was the victim herself; PW6 was the medical
officer, who had examined the victim; PW10 was the headmistress of
the school attended by the victim and other witnesses were panch
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witnesses for recovery of clothes, etc. as also the investigating
officers, including the officer, who recorded the victim’s statement.
8. Upon recording of evidence of prosecution witnesses, the
incriminating circumstances were put to the appellant under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter referred to
as CrPC). Thereupon, the Trial Court rendered the impugned
judgment and order, convicting and sentencing the appellant. It is the
case of the appellant that while the conviction was, amongst other
provisions, under Section 376(2)(i) of the IPC, which did not exist on
the statute book, the sentence was imposed under Section 376(3) of
the IPC, while there was no charge and conviction under the said
provision.
9. Mr. Thatte, the learned counsel appearing for the appellant
made submissions on the two aspects indicated hereinabove i.e.
(i) the contentions pertaining to the merits of the matter, in order to
demonstrate that the evidence of prosecution witnesses was not
sufficient to prove the case against the appellant beyond reasonable
doubt and (ii) that the fundamental procedural defect in the present
case, completely vitiated the impugned judgment and order, as grave
prejudice was caused to the appellant and that there was complete
failure of justice.
10. On the merits of the matter, the learned counsel for the
appellant attacked the evidence of the victim-PW4. It was submitted
that although as per settled law, the evidence of the victim i.e. the
prosecutrix can be enough for convicting the accused for the offence
of rape, such an evidence has to be of sterling quality. It was
submitted that the evidence of the victim, in the present case, was
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riddled with inconsistencies, thereby demonstrating that
corroboration of her testimony was required. It was further
submitted that the evidence of the first informant-PW1 Ashabai i.e.
the mother of the victim and other witnesses, such as the PW6-doctor
and PW10-headmistress of the school, was not enough to corroborate
the evidence of the victim/prosecutrix i.e. PW4.
11. The learned counsel for the appellant contended that there
was glaring contradiction in the victim’s evidence, as she claimed
that she used to return home during the school timings to take
medicines as a usual practice, whereas, in the cross-examination, she
conceded that it was a one-time act. There was also clear
contradiction in the timing of the school, as claimed by her, when
compared with the testimony of her mother PW1-Ashabai and PW10-
headmistress of the school.
12. It was further contended that the narration of the incident
dated 29.10.2018 and through the intervening night between
29.10.2018 and 30.10.2018, as given by PW4-victim, was highly
improbable, for the reason that the victim remaining trapped inside
the bed, was wholly unbelievable. This was compounded by the fact
that PW2, who was the
panch witness for the scene of offence, no
where stated that when the
panchnama was drawn, the victim
informed the police team or the said
panch about the aforesaid fact
of being trapped inside the bed. It was further contended that
contemporaneously, the victim also did not narrate this part of the
incident to her mother at 05:00 a.m. on 30.10.2018 or to anybody
else, thereby demonstrating material omission in her testimony. It
was contended that the victim also claimed that she had shouted
while suffering sexual assault at the hands of the appellant. But
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nobody from the neighbourhood came to help her, while
simultaneously claiming that she could hear her mother, while
searching for her on 29.10.2018. It was further claimed that she was
concealing the love affair between her and the appellant and that
this was evident from some of the answers given in the cross-
examination.
13. On this basis, it was submitted that the testimony of the victim
was not of sterling quality and yet, the Trial Court chose to rely upon
the same, while holding against the appellant. In support of the said
submission, the learned counsel for the appellant placed reliance on
the judgment of the Supreme Court in the case of
Rai Sandeep alias
Deepu vs. State (NCT of Delhi)
[
(2012) 8 SCC 21].
14. It was further submitted that the medical evidence did not
support the victim’s version. The testimony of PW6-doctor
demonstrated that statements were made recording opinion based on
the medical report. But, such opinion was not found in the report
itself. The three tears in the hymen were old and there were no
external injuries to support victim’s version that she suffered rape
and sexual assault at the hands of the appellant at least 3 times
through the night. As regards absence of physical injuries and
medical evidence not corroborating her version, reliance was placed
on the judgment of the Supreme Court in the case of
State of
Haryana vs. Bhagirath and others
[
(1999) 5 SCC 96].
15. It was further submitted that the statements of PW1-first
informant Ashabai and PW4-victim, recorded under Section 164 of
the CrPC, were deliberately suppressed by the prosecution, for the
reason that the said statements did not support the versions
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portrayed before the Court by the prosecution witnesses. It was
claimed that in the facts of the present case, registration of FIR after
about 10 hours of the victim first reporting the incident to PW1-
Ashabai, demonstrated that the FIR was delayed. But, this aspect was
also ignored by the Trial Court. On this basis, it was submitted that
the impugned judgment and order of the Trial Court, cannot be
sustained on merits.
16. As regards the second aspect concerning serious procedural
defect causing prejudice to the appellant, attention of this Court was
invited to the charge framed by the Trial Court. It was submitted that
the charge specifically referred to Section 376(2)(i) of the IPC, apart
from referring to Section 376(2)(n) of the IPC and Section 5(l)
punishable under Section 6 of the POCSO Act, apart from other
offences under the IPC. It was submitted that the charge itself was
fundamentally defective, for the reason that clause (i) of sub-section
2 of Section 376 of the IPC, was deleted by Act 22 of 2018 with
effect from 21.04.2018 and sub-section 3 to Section 376 was added
by the very same amendment. The incident in the present case,
having allegedly taken place on 29.10.2018, offence under clause (i)
of sub-section 2 of Section 376 of the IPC, no longer existed in the
statute book and yet, charge was framed under the same. According
to the learned counsel for the petitioner, this fundamental defect
further caused grave prejudice to the appellant at every stage of trial
and particularly, when the Trial Court sentenced the appellant.
17. It was submitted that when the Trial Court heard the appellant
on the point of sentence, he was given an impression that the
hearing was being conducted in the context of offence under Section
376(2)(i) of the IPC, amongst other offences, and submissions were
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made on behalf of the appellant without realizing that the Trial Court
was considering sentencing him under Section 376(3) of the IPC. On
this basis, it was contended that effective hearing was not given to
him, thereby vitiating the sentence. On the question as to whether
the aforesaid defect could be cured at the appellate stage, it was
submitted that the Supreme Court, in the case of
X vs. State of
Maharashtra
[
(2019) 7 SCC 1], had indicated that if meaningful
hearing was given at the appellate stage, the defect could be cured in
a given case. But, subsequent judgment and order of the Supreme
Court dated 19.09.2022, passed in
Suo Moto Writ Petition (Crl.)
No.1 of 2022, pertaining to framing of guidelines regarding potential
mitigating circumstances to be considered while imposing death
sentences, some doubt was expressed about the decision in the case
of
X vs. State of Maharashtra (supra). On this basis, it was submitted
that this Court may consider remanding the matter to the Trial Court
for a meaningful hearing on sentencing.
18. It was submitted that an even more fundamental defect could
be demonstrated in the impugned judgment and order of the Trial
Court, which cannot be addressed or cured by this Court exercising
appellate powers under Section 386 of the CrPC. It was submitted
that in this case, a peculiar situation has arisen, for the reason that
while the appellant has been convicted under Section 376(2)(i) of
the IPC, amongst other offences, he has not been sentenced under
the said provision. Further, he has been sentenced under Section
376(3) of the IPC, in the absence of conviction under the said
provision. It was submitted that this Court, while considering the
appeal, could certainly not convict the appellant for the first time
under Section 376(3) of the IPC. It was submitted that this was
clearly impermissible in law, particularly when neither the State, nor
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the informant or the victim, had come before this Court to raise any
ground of challenge about the impugned judgment and order. In
such circumstances, remand would be impermissible, in terms of law
laid down by the Supreme Court in the case of
Sachin vs. State of
Maharashtra
[(2025) 9 SCC 507].
19. Thereupon, it was submitted that even if this Court is not with
the appellant on the merits of the matter, there was no way the
conviction and sentence, as imposed by the Trial Court, could be
upheld. In such a situation, it was indicated that the error committed
by the Trial Court, has created a situation, where the procedural
mechanism provided under the CrPC, may not provide a solution at
this appellate stage and therefore, remand to the Trial Court would
perhaps be inevitable.
20. On this basis, it was submitted that the appeal deserved to be
allowed, firstly on merits, by setting aside the entire judgment and
order of the Trial Court and in the alternative, at least to the extent
of setting aside the order and remanding the matter to the Trial
Court for re-trial or at least for fresh hearing on sentence.
21. On the other hand, Dr. Krishnaiyer, learned APP appearing for
the State, submitted that the appeal deserves to be dismissed, as the
appellant had failed to make out his case on both the aspects of the
matter i.e. on merits as well as alleged procedural defects.
22. On the merits of the matter, the learned APP submitted that
the evidence of the victim/prosecutrix-PW4 in the present case itself,
was enough to sustain the conviction. It was submitted that her
testimony was believable and that it inspired confidence, thereby
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demonstrating that there was no necessity of any corroboration. In
any case, the evidence of PW1-Ashabai i.e. the mother of the victim;
PW6-doctor and PW-10-headmistress of the school, further supported
the case of the prosecution.
23. It was submitted that the testimony of rape victim ought not be
looked at with suspicion, as it is the testimony equivalent to that of
an injured witness. Unnecessary scrutiny and hyper-technicality is to
be eschewed and if the testimony of the prosecutrix is found to be
believable and consistent, inspiring confidence, conviction ought to
be sustained on her evidence itself.
24. Reliance was placed on the judgments of the Supreme Court in
the cases of
State of Punjab vs. Gurmit Singh and others [
(1996) 2
SCC 384], Ranjit Hazarika vs. State of Assam [(1998) 8 SCC 635],
State of Himachal Pradesh vs. Asha Ram [(2005) 13 SCC 766] and
Deepak Kumar Sahu vs. State of Chhattisgarh (2025 SCC OnLine SC
1610).
25. It was submitted that the medical evidence in the present case,
in the form of medical examination report of the victim-PW4 and the
testimony of PW6-doctor, sufficiently demonstrated that the version
of the victim was supported by medical evidence. Tenderness on
private parts as well as redness surrounding the hymen showed signs
of sexual assault upon the victim. Mother of the victim i.e. PW1-first
informant as well as PW10-headmistress of the school, corroborated
the victim’s version, although considering the sterling quality of
victim’s evidence, such corroboration was not necessary. On this
basis, it was submitted that the appellant has absolutely no case on
merits.
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26. On the aspect of technical and procedural defect, it was
submitted that the error in the judgment and order of the Trial Court,
allegedly from the stage of framing of charge, at worst, could be said
to be an error covered under Section 215 of CrPC. The said provision
indicates that such an error cannot be treated as a material error
vitiating the prosecution case, unless it has resulted in failure of
justice. Reference was also made to Section 216 of CrPC, to contend
that the Court could always alter the charge and that in the facts of
the present case, the appellant had suffered no prejudice.
27. The learned APP relied upon judgments of the Supreme Court
in the cases of
Dalbir Singh vs. State of U.P. [
(2004) 5 SCC 334] and
State of Haryana vs. Janak Singh and others [(2013) 9 SCC 431], to
contend that on proper application of the relevant provisions of
CrPC, including Sections 215, 386 and 464 thereof, it was clear that
if the accused was aware about the basic ingredients of the offence
and the facts had been established against him, which were
explained to him clearly, coupled with the fact that he had fair
chance to defend himself, the procedural defect cannot inure to the
benefit of the appellant. It was submitted that in a given case, the
appellate Court could convict the accused for the offence, for which
he was not charged, so long as there is no failure of justice.
28. In the present case, although the Trial Court did refer to a
provision that was deleted, the basic ingredients of the offence under
the said provision were retained by the very same amendment in the
form of Section 376(3) of the IPC. It was submitted that the
appellant did not suffer any prejudice in the facts and circumstances
of the present case and he has not been able to demonstrate failure
of justice, as a consequence of which this Court exercising appellate
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power, can certainly correct the error and sustain the punishment
imposed upon the appellant. On this basis, it was submitted that the
appeal deserves to be dismissed.
29. Ms. Potdar, learned counsel appointed through legal aid, to
appear on behalf of respondent No.2 (victim), supported the
submissions made by the learned APP and prayed for dismissing the
appeal.
30. It is evident from the submissions made on behalf of the
appellant as also the State and respondent No.2, that two aspects
arise for consideration firstly, on the merits of the matter, as to
whether the impugned judgment and order of the Trial Court, can be
sustained on the basis of the evidence led by the prosecution and
secondly, as to whether the errors committed in the present case,
from the stage of framing of charge by the Trial Court, completely
vitiated the conviction and sentence, thereby requiring the appeal to
be allowed to the extent of the matter being remanded to the Trial
Court.
31. On the merits of the matter, we have considered the evidence
of 11 prosecution witnesses, particularly PW1-Ashabai (first
informant), PW4-victim, PW6-doctor and PW10-headmistress of the
school. The omissions and contradictions relied upon by the learned
counsel for the appellant, to attack the testimony of PW4-victim,
deserve to be considered at the outset. The alleged discrepancy about
timing of the school is a very minor and trivial issue. In any case,
nothing much turns on the said aspect of the matter, for the reason
that the PW4-victim herself, PW1-first informant i.e. victim’s mother
and PW10-headmistress of the school, have indicated the the school
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used to start at about 10:00 a.m. and it used to be over for the day in
the evening. Merely because there was difference in the timing of
about an hour in the evening in the testimonies of the witnesses,
would not create any serious doubt about the victim’s version. The
prosecution witnesses have consistently stated that since the victim
was suffering from epilepsy, she was required to visit home during
school hours for taking medicine and then returning back to school.
We are not in agreement with the learned counsel for the appellant
that there is some glaring contradiction about the same being the
usual practice or a one-time act. On proper appreciation of the
evidence of the prosecution witnesses, it becomes clear that it was a
daily routine of the victim to come back home to take medicine
during the school hours and then return back to school.
32. The victim has specifically described as to the manner in which
the appellant forcibly took her to his house, when she was going
back to school, after taking medicine. She has also stated as to the
manner in which he committed rape on her and trapped her inside
the bedbox. She also stated that the appellant committed the said act
thrice on her during the time she was confined in his house. She had
narrated all of this to her mother on the next day in the morning,
when she reached her home.
33. Much emphasis was placed on behalf of the appellant on the
aspect that the victim did not mention to her mother about she
having remained trapped inside the bedbox during the
contemporaneous period. It was indicated that this was a material
improvement in her version. It was also sought to be indicated that
the victim had suppressed her love affair with the appellant and after
referring to the medical evidence, it was sought to be indicated that
this could not be a case of forcible sexual assault.
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34. The said line of submissions adopted on behalf of the
appellant, is wholly misdirected, for the reason that age of the victim
was never disputed. Sufficient evidence was led to prove the fact that
she was 13 years old, when the incident took place, thereby
demonstrating that consent was irrelevant and that the act attributed
to the appellant, amounted to rape and that too, on a girl, who was
less than 16 years old.
35. There is substance in the contention raised by the learned APP,
by relying upon the judgments of the Supreme Court in the cases of
State of Punjab vs. Gurmit Singh and others (supra), Ranjit Hazarika
vs. State of Assam (supra), State of Himachal Pradesh vs. Asha Ram
(
supra) and
Deepak Kumar Sahu vs. State of Chhattisgarh (supra). In
the aforesaid judgments, the Supreme Court has questioned as to
why the evidence of a girl, who complains about the offence of rape,
is to be viewed with doubt, disbelief or suspicion. It is laid down that
once the judicial conscience of the Court is satisfied that the evidence
of the prosecutrix inspires confidence, further corroboration is not
necessary. It is emphasized that the evidence of a victim of sexual
assault, is entitled to great weight, absence of corroboration
notwithstanding.
36. The Supreme Court has held in the said judgments that if, for
some reason, the Court finds it difficult to place implicit reliance on
the testimony of the prosecutrix, it may look for evidence that would
lend assurance to her testimony, short of corroboration required in
the case of an accomplice. The Supreme Court has indicated that in
cases where victims are minor, appropriate sensitivity is to be
observed and the evidence of such a minor victim of sexual offence,
needs to be taken into account without showing undue suspicion or
hyper technicality.
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37. When the aforesaid tests are applied to the testimony of the
victim in the present case, this Court finds that her version is
believable and the omissions or contradictions sought to be
highlighted on behalf of the appellant, cannot be said to be material
omissions, adversely affecting her credibility. Even if the judgment in
the case of
Radhu vs. State of Madhya Pradesh [
(2007) 12 SCC 57]
on which the learned counsel for the appellant, has placed reliance,
has to be taken into consideration, there is nothing to indicate that
the Supreme Court has taken a view different from the judgments
upon which the learned APP has relied. On the facts of each case and
on an overall appreciation of the material on record, the Court may
reach a particular conclusion. But, applying the tests as indicated
hereinabove, this Court finds no reason to doubt the victim’s version.
38. It is crucial to note that in the present case, the prosecution did
prove that at the relevant time, the victim’s age was 13 years, thereby
indicating that she was less than 16 years of age. This fact has a
crucial bearing on the question of rape and the aspect of consent,
pales into insignificance.
39. Nonetheless, this Court has considered the evidence of PW1-
mother of the victim along with the evidence of PW10-headmistress
of the school. The testimonies of these two witnesses clearly support
the victim’s version, as regards the chain of events that occurred on
29.10.2018 and 30.10.2018, leading to registration of FIR.
40. The testimony of PW6-doctor was criticized on behalf of the
appellant, on the ground that the medical examination report was
interpreted in such a manner by the said witness, that such
interpretation, on the face of it, was in the teeth of the contents of
the said report itself.
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41. In this context, we have perused the evidence of the said
witness. At one place, the said witness does state that the medical
examination report opined that it was a case of sexual violence,
suffered about 29 hours and 14 minutes ago. The medical
examination report indeed shows that this was not a part of the
opinion and it was merely narration of the report given by the victim
herself, at the time when the alleged incident took place.
42. Be that as it may, the said witness went on to depose about
hymenal tear and redness on private parts and the fact that the
victim was a known case of epilepsy. The said testimony of PW6-
doctor, when read with the medical examination report, clearly
demonstrates that the contentions raised on behalf of the appellant
in this regard, cannot be accepted.
43. It is crucial to note that in the history recorded by the said
witness, the victim herself narrated that there had been 4 episodes of
such sexual assault by the appellant, details of two being given with
date and time. The report further recorded that there was old hymen
tear, coupled with redness around the hymen, tenderness of breasts
and anus as also supra pubic tenderness. The said contents of the
medical report sufficiently corroborate the victim’s version. Even
otherwise, it is settled position of law that ocular evidence always
prevails over medical evidence.
44. In the present case, there is direct evidence of the victim
herself as regards the acts of the appellant, of inflicting rape and
violence upon her throughout the period when she was confined in
the appellant’s house from the afternoon of 29.10.2018 to early
morning hours of 30.10.2018. Hence, we find that the appellant is
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unable to dislodge the findings rendered by the Trial Court on proper
appreciation of the evidence of the prosecution witnesses. Therefore,
on the first aspect of the matter, this Court is not with the appellant.
45. The second aspect concerns procedural error, which according
to the appellant, caused him grave prejudice and resulted in failure
of justice. A perusal of charge framed by the Trial Court indeed
shows that an error was committed. The charge framed on
13.06.2019, pertained to offences under Section 342 of the IPC
pertaining to wrongful confinement; Section 363 thereof pertaining
to kidnapping; Section 376(2)(i) thereof (deleted from IPC with
effect from 21.04.2018) pertaining to rape on a woman under 16
years of age, Section 376(2)(n) thereof pertaining to rape being
committed repeatedly on the same woman; Section 506 thereof
pertaining to criminal intimidation and Section 5(l) punishable
under Section 6 of the POCSO Act, pertaining to aggravated
penetrative sexual assault on a child more than once or repeatedly.
46. Before considering the effect of the apparent error committed
by the Trial Court in the present case, it would be appropriate to
refer to the position of law laid down by the Supreme Court in
various judgments.
47. In the case of
Willie (William) Slaney vs. State of Madhya
Pradesh
[
(1955) 2 SCC 340], the Supreme Court recognized that
while framing of charge does constitute an important step during the
course of trial, if an error occurs, which is not corrected during the
course of trial and the accused is convicted, the High Court would be
required to order a re-trial, only if in the opinion of the Court, the
accused was misled in his defence. It was held that if the error or
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defect goes at the root of the trial, then the conviction would not
stand. It was further held that the conviction must stand, if on a
careful consideration of all the facts, it is found that no prejudice or a
reasonable and substantial likelihood of it, was caused. The Supreme
Court further held that it would always be material to consider
whether the objection as to the nature of the charge, was taken at an
early stage on behalf of the accused.
48. In the case of
K. Prema S. Rao and another vs. Yadla Srinivasa
Rao and others
[
(2003) 1 SCC 217], reference was made to Section
215 of the Cr.P.C., concerning effect of error in framing of charge and
it was emphasized that such an error would be material, only if it
resulted in any failure of justice.
49. In the case of Dalbir Singh vs. State of U.P. (supra), the
Supreme Court reiterated that the accused must demonstrate that
failure of justice had occasioned due to such an error. In this context,
reference was made to Section 464 of Cr.P.C., which specifically
pertains to error in charge and indicates that even if there is an error,
omission or irregularity or for that matter, absence of charge, the
Court of appeal would not interfere, unless there was failure of
justice.
50. The said position of law was reiterated by the Supreme Court
in the cases of
Sanichar Sahni vs. State of Bihar [
(2009) 7 SCC 198]
and State of
Uttar Pradesh vs. Paras Nath Singh [
(2009) 6 SCC 372].
51. In the case of
Darbara Singh vs. State of Punjab [
(2012) 10
SCC 476], the Supreme Court explained the expressions ‘failure of
justice’ and ‘prejudice’, while considering such situation of error in
framing of charge. It was held in the said judgment as follows:
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“20. The defect in framing of the charges must be so
serious that it cannot be covered under Sections
464/465 CrPC, which provide that, an order of
sentence or conviction shall not be deemed to be
invalid only on the ground that no charge was
framed, or that there was some irregularity or
omission or misjoinder of charges, unless the court
comes to the conclusion that there was also, as a
consequence, a
failure of justice. In determining
whether any error, omission or irregularity in
framing the relevant charges, has led to a failure of
justice, the court must have regard to whether an
objection could have been raised at an earlier stage
during the proceedings or not. While judging the
question of prejudice or guilt, the court must bear in
mind that every accused has a right to a fair trial,
where he is aware of what he is being tried for and
where the facts sought to be established against
him, are explained to him fairly and clearly, and
further, where he is given a full and fair chance to
defend himself against the said charge(s).
21. "Failure of justice" is an extremely pliable or facile
expression, which can be made to fit into any
situation in any case. The court must endeavour to
find the truth. There would be "failure of justice",
not only by unjust conviction, but also by acquittal
of the guilty, as a result of unjust failure to produce
requisite evidence. Of course, the rights of the
accused have to be kept in mind and also
safeguarded, but they should not be
overemphasised to the extent of forgetting that the
victims also have rights. It has to be shown that the
accused has suffered some disability or detriment in
respect of the protections available to him under the
Indian criminal jurisprudence. "Prejudice" is
incapable of being interpreted in its generic sense
and applied to criminal jurisprudence. The plea of
prejudice has to be in relation to investigation or
trial, and not with respect to matters falling outside
their scope. Once the accused is able to show that
there has been serious prejudice caused to him, with
respect to either of these aspects, and that the same
has defeated the rights available to him under
criminal jurisprudence, then the accused can seek
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benefit under the orders of the court. (Vide Rafiq
Ahmed v. State of U.P.
, SCC p. 320, para 36;
Rattiram v. State of M.P. and Bhimanna v. State of
Karnataka
)”
51. Thus, the aforesaid second contention raised on behalf of the
appellant in the present case, is required to be tested on the said
position of law, requiring the appellant to show that framing of
charge for the deleted Section 376(2)(i) of the IPC, had caused
prejudice to his defence or that he was misled about the case of
prosecution and/or this had resulted in failure of justice.
52. This would necessarily require perusal of the order framing the
charge, which recorded at five places that the victim’s age was 13
years. Thus, the appellant was clearly put to notice and made aware
about the fact that the charge was framed on the basis that the victim
was less than 16 years of age. The appellant was never prejudiced on
that count. It is also evident that the major offence in the present
case, pertained to rape of the victim, who was less than 16 years old
at the time of the incident.
53. The evidence of the prosecution was led on this basis and the
line of cross-examination adopted on behalf of the appellant, clearly
indicated that he was indeed aware about the basic charge against
him, of having committed rape of a girl, who was less than 16 years
old. The cross-examination of PW7-PSI attached with the concerned
police station, conducted on behalf of the appellant, shows that
questions were put to the said witness, referring to the fact that the
victim was hardly 13 to 13½ years old. Thus, the defence of the
appellant and cross-examination of the prosecution witnesses on his
behalf, proceeded on the basis that the victim was clearly below 16
years of age. Hence, it cannot be said that mere error in framing of 20/26
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charge, had caused any prejudice to the appellant (accused) in
conducting his defence, during the course of trial.
54. Judgment of the Supreme Court in the case of Dalbir Singh vs.
State of U.P. (supra) holds that while considering the appeal of an
accused, the Appellate Court can convict the accused for an offence in
respect of which charge was not framed, so long as the accused is
aware about the basic ingredients of such offence and the main facts
established against him were explained to him clearly and that he
had a fair chance of defending himself. On the said touchstone, in the
present case, the appellant cannot claim that he was completely
unaware about the ingredients of the offence for which he was facing
trial, because the fundamental ingredient of the offence under
Section 376(2)(i) of the IPC (deleted) and 376(3) thereof (added), is
that the victim is less than 16 years old. Therefore, the plea of
prejudice being suffered by the appellant and failure of justice,
cannot be accepted in the facts and circumstances of the present case.
55. As held in the above-quoted portion of the judgment of the
Supreme Court in the case of Darbara Singh vs. State of Punjab
(
supra), when this Court considers whether there has been failure of
justice, the rights of the appellant (accused) alone cannot be kept in
mind. Although they have to be certainly considered, the rights of the
victim also cannot be forgotten or ignored.
56. In our system, sometimes there is a danger of over-emphasis
on the rights of the accused, while completely forgetting or ignoring
the rights of the victim. It is often observed that the accused raises a
plethora of contentions regarding his or her rights claiming fair trial,
while the victim is forgotten. It has to be kept in mind that the victim
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triggers the criminal justice system and quite often, the focus on the
rights of the accused is over-emphasized to such an extent that the
victim is bewildered and feels completely lost, as regards his or her
rights and concerns. Therefore, the rights of the accused as well as
the victim should be balanced because the enquiry in a criminal trial
and also, while considering an appeal against order of conviction, is
to cut to the truth of the matter to examine as to whether the guilt of
the accused has been proved beyond reasonable doubt. So long as no
prejudice is caused to the accused and there is no failure of justice,
even if there is an error in framing of charge, the appellant cannot
claim re-trial and remand of proceedings to the Trial Court. Instead,
the appellate Court can correct the error.
57. It is in the backdrop of the said position of law that we have
examined the material on record, starting from the order of the Trial
Court framing charge to ascertain as to whether the appellant in the
facts of the present case, can claim that the appeal deserves to be
allowed, at least to the extent of directing re-trial. While examining
such material, we have applied the aforementioned position of law,
clarified by the Supreme Court in the said judgments.
58. As noted hereinabove, in the order framing charge itself, at
number of places, the age of the victim was specifically stated to be
13 years and therefore, on this basis, the appellant cross-examined
the prosecution witnesses, particularly PW7 i.e. the PSI attached to
the concerned police station. The material clearly indicates that the
appellant was never misled about the case against him and hence, he
had full opportunity to defend himself, which he indeed utilized.
There was no prejudice caused to the appellant and failure of justice
was certainly not occasioned.
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59. The judgment upon which the learned counsel for the
appellant has placed much reliance i.e. Sachin vs. State of
Maharashtra (supra), concerns a different set of facts, where a
learned Single Judge of the High Court had remanded the matter
back to the Special Court on the aspect of conviction and sentencing
and eventually, the Special Court, on remand, convicted and
sentenced the accused therein for a higher offence, which provided
for imprisonment for life. In other words, the Supreme Court found
that the appellant was worse-off, having filed appeal against his
conviction and sentencing.
60. In the present case, this Court, in appeal, altering the
conviction to Section 376(3) of the IPC, would not have the effect of
convicting the appellant for a higher offence, for the reason that
maximum punishment prescribed in the now deleted Section
376(2)(i) of the IPC and Section 376(3) thereof, is the same i.e.
imprisonment for life, which means imprisonment for remainder of
the natural life of the convict. As noted hereinabove, the ingredients
of the offences are also the same.
61. A submission was made on behalf of the appellant linked with
the aforesaid contention, that meaningful hearing on sentence was
not granted to the appellant, as the Trial Court had proceeded on the
basis that the appellant was facing trial for offence under Section
376(2)(i) of the IPC, while eventually he was sentenced under
Section 376(3) thereof. Much emphasis was placed on the fact that
the deleted Section 376(2)(i) of the IPC provided for a minimum
punishment of 10 years of rigorous imprisonment, while Section
376(3) of the IPC provides for minimum sentence of 20 years of
rigorous imprisonment. We are unable to understand as to what
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prejudice the appellant suffered, for the reason that when the Trial
Court gave hearing on sentencing to the appellant for offences with
which he was charged, including reference to the erroneous
provision of Section 376(2)(i) of the IPC, he had an opportunity to
argue as to why he should be given minimum sentence of 10 years
rigorous imprisonment. If he was given hearing on the basis of
Section 376(3) of the IPC, he could have argued only for a minimum
sentence of 20 years of rigorous imprisonment.
62. In such a situation, law laid down by the Supreme Court in the
case of X vs. State of Maharashtra (supra), would apply to the effect
that this Court hearing the appeal at the appellate stage, can
certainly rectify such an error, if at all, by granting hearing on
sentence. The appellant in this case, was granted full opportunity
before this Court to demonstrate why maximum sentence ought not
to be imposed upon him and therefore, defect/error, if any, has been
rectified at the appellate stage.
63. We do not find any substance in the contention that
subsequently referred
Suo Moto Writ Petition (Crl.) No.1 of 2022
dilutes the position of law clarified by the Supreme Court in the case
of
X vs. State of Maharashtra (supra) in paragraph Nos.36 to 40.8
thereof. Thus, on this count also, we are not in agreement with the
contentions raised on behalf of the appellant.
64. It was further submitted on behalf of the appellant that the
present case manifests a unique situation, which could not be
rectified under the procedure prescribed as per CrPC and therefore,
this Court would have no alternative but to remand the matter, at
least on the aspect of conviction and sentence. We are unable to
agree with the said contention. It cannot be ignored that the
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appellant was also convicted under Section 376(2)(n) of the IPC,
which we have found to be correct. The said provision also prescribes
maximum sentence of imprisonment for life, which means
imprisonment for the remainder of life. The appellant was certainly
granted proper hearing, while being convicted and sentenced under
the said provision. In fact, the Trial Court correctly appreciated the
material and evidence on record to convict the appellant for the
other offences also.
65. We do find that the Trial Court in the present case, convicted
the appellant for all the offences with which he was charged,
including Section 376(2)(i) of the IPC, which was no longer existing
and made no reference to Section 376(3) thereof. But, while
sentencing, the Trial Court took recourse to Section 42 of the POCSO
Act and at that stage, imposed punishment on the appellant under
Section 376(3) of the IPC, handing down the maximum sentence of
undergoing rigorous imprisonment for life, which shall mean
imprisonment for remainder of life of the appellant along with fine.
Since Section 376(3) of the IPC indeed provides for punishment
greater in degree as compared to punishment pertaining to other
provisions of the IPC and POCSO Act, the Trial Court correctly took
recourse to the same.
66. We are of the opinion that once it is found that at the appellate
stage, this Court has the power to alter the conviction to that under
Section 376(3) of the IPC, to correct the error committed by the Trial
Court, there can be no impediment in sustaining the sentence,
particularly when the alleged defect of ‘lack of meaningful hearing’
does not exist and in any case, it has been cured at the appellate
stage, while hearing this appeal. It cannot be ignored that the
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maximum sentence that could be imposed under the deleted Section
376(2)(i) of the IPC, is exactly the same, as the maximum sentence
that can be imposed under Section 376(3) of the IPC, which was
added by way of the very same amendment, brought into effect in
the year 2018. Thus, the case of prejudice suffered by the appellant
and failure of justice, is not made out on behalf of the appellant and
the contentions raised regarding the same, are rejected.
67. In view of the above, the appeal is disposed of in the following
manner:
(a) The conviction of the appellant under Sections 342, 363, 376(2)
(n) and 506 of the IPC, is maintained, while conviction under
Section 376(2)(i) of the IPC is altered to that under Section
376(3) of the IPC.
(b) The conviction under Section 5(l) punishable under Section 6 of
the POCSO Act is also maintained and we find that the Trial
Court correctly applied Section 42 of the POCSO Act, by
imposing sentence upon the appellant under Section 376(3) of
the IPC, of undergoing rigorous imprisonment for life, which
shall mean remainder of life along with fine of 50,000 and in₹
default, additional rigorous imprisonment for one month. The
same is accordingly maintained and upheld.
68. Pending applications, if any, also stand disposed of.
(MANJUSHA DESHPANDE, J.) (MANISH PITALE, J.)
26/26
Priya Kambli
PRIYA
KAMBLI
Digitally
signed by
PRIYA KAMBLI
Date:
2026.01.19
16:48:08
+0530
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