Pynchemalangaki Bareh v. State of Meghalaya – Criminal Appeal No. 4337 of 2026 (Arising out of S.L.P. (Criminal) No. 9809 of 2025) – 2026 INSC 984 – September 10, 2026 – Hon’ble Mr Justice Prashant Kumar Mishra and Hon’ble Mr N.V. Anjaria.
Analysis of the Judgment
Appeal and Impugned Order
The appellant has filed the present criminal appeal challenging the final judgment and order dated 08.07.2024 passed by the High Court of Meghalaya at Shillong in Crl. A. No. 38/2023. The impugned order upheld the Trial Court’s verdict convicting the appellant under Section 506 of the Indian Penal Code (IPC) and Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, sentencing him to twenty years of rigorous imprisonment. (Paragraph 1-2).
Factual Matrix and Lower Courts Verdicts
On 27.11.2019, an FIR was lodged by the victim’s mother alleging that her 13-year-old daughter was dragged into the bushes, sexually assaulted, and threatened by the appellant. After investigation, charges were framed, and the prosecution examined 14 witnesses while introducing a Baptismal Certificate as proof of the victim’s age. The Special Judge (POCSO) vide judgment dated 16.06.2021 convicted the appellant, relying on the mother’s testimony, the Baptismal Certificate, and medical reports to conclude that the victim was a 13-year-old minor, sentencing him to twenty years of rigorous imprisonment. Subsequently, the High Court of Meghalaya dismissed the appellant’s criminal appeal and upheld the Trial Court’s conviction and sentence in its entirety. (Paragraph 4-9).
Core Legal Arguments
The appellant principally argued that the conviction under the POCSO Act was unsustainable because the prosecution failed to prove the victim’s age strictly in accordance with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, contending that a Baptismal Certificate issued by a private church is legally inadmissible. The defense also highlighted the lack of an ossification test or independent forensic findings. Conversely, the respondent-State argued that the Baptismal Certificate, corroborated by the mother’s testimony and medical records indicating the victim was in a pre-pubescent stage, conclusively established her minority, rendering the appellant’s challenge based on alleged procedural discrepancies untenable. (Paragraph 10-24).
Ratio Decidendi
The Supreme Court established that a Baptismal Certificate is not a statutorily prescribed document under Section 94 of the Juvenile Justice Act, meaning the prosecution failed to legally establish the victim’s minority, which is a fundamental jurisdictional prerequisite for a conviction under the POCSO Act. However, the Court ruled that the failure to prove minority does not completely absolve an accused when the underlying substantive offence of sexual assault is independently proven beyond a reasonable doubt. Applying Section 464 of the CrPC, the Court held that the omission to frame a specific alternative charge under Section 376 IPC does not vitiate the trial or cause a failure of justice if the accused had ample opportunity to defend against the factual allegations, thus allowing the Court to convert the invalid POCSO conviction into a valid conviction for the cognate offence of rape under Section 376(1) of the IPC. (Relevant final paragraphs of the judgment).
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 the following three judgments cited before us.
How to prove the age of the victim? Explained
34. Thereafter, in State of Madhya Pradesh v. Anoop Singh, this Court referred and relied upon its earlier judgment in Mahadeo v. State of Maharashtra and Another, 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.
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.
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).
Age proved based on baptism birth certificate case is distinguished
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.
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 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 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, reiterated this position, relying on Rafiq Ahmad alias Rafi v. State of Uttar Pradesh, 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 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.
The appellate court can examine offence under section 375 IPC even if the charge was not framed
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.
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 Section 304B of the IPC, this Court in Shamnsaheb M. Multtani v. State of Karnataka, 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. …
What is minor offence explained?
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-àvis the other offence.”
Court can convict the accused under section 376 IPC even if he tried for the charges framed under POCSO Act
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.
Charge how to frame? Explained
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 Section 306 of the IPC in the absence of charge framed under it, this Court in Dalbir Singh v. State of U.P. 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.
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.
Conclusion
Conviction modified to rape
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.
Judgments Cited:
- P. Yuvaprakash v. State: Cited by the appellant to argue that the conviction under the POCSO Act is unsustainable since the victim’s age was not proved as per the mandatory procedure of Section 94 of the Juvenile Justice Act.
- Luis Caetano Viegas v. State of Goa: Cited by the respondent-State to argue in favour of the validity of the Baptismal Certificate as reliable proof of age.
- Sucha Singh and Another v. State of Punjab: Quoted by the Court to emphasise that an exaggerated devotion to the rule of benefit of doubt must not destroy social defence, and justice cannot be made sterile by letting the guilty escape.
Acts and Sections:
- Protection of Children from Sexual Offences (POCSO) Act, 2012: Sections 3, 3(a), 4, 4(2).
- Indian Penal Code (IPC), 1860: Sections 375, 376, 376(1), 506.
- Juvenile Justice (Care and Protection of Children) Act, 2015: Section 94.
- Code of Criminal Procedure (CrPC), 1973: Sections 161, 164, 222, 313, 386, 464.
- Indian Evidence Act, 1872: Section 35.
