Framing Charge Under Repealed Provision Is A Curable Defect If No Prejudice Is Caused To Accused: Bombay High Court

“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... The victim 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.” — In a seminal ruling, the Bombay High Court, comprising Justice Manish Pitale and Justice Manjusha Deshpande, has upheld the life sentence of a man convicted of raping a 13-year-old girl, ruling that a conviction recorded under a deleted statutory provision is not fatal to the prosecution's case if the accused was fully aware of the core allegations and suffered no failure of justice.

The Factual Matrix: A Harrowing Confinement

The case arose from a disturbing incident in October 2018 involving a 13-year-old victim suffering from epilepsy. The prosecution established that the victim, who followed a routine of returning home from school at noon to take medication, was intercepted by her neighbour, Ramesh Dada Kalel (the Appellant). The Appellant forcibly dragged the minor into his home, confined her inside a bedbox, and subjected her to repeated sexual assault throughout the night.

The defense mounted a vigorous challenge on the merits, highlighting discrepancies regarding school timings and the victim's failure to mention the "bedbox confinement" immediately to the police. However, the High Court dismissed these contentions as trivial. The Bench reiterated the principle that the testimony of a sexual assault victim stands on par with an injured witness.

“Once the judicial conscience of the Court is satisfied that the evidence of the prosecutrix inspires confidence, further corroboration is not necessary.”

Sole Testimony of ‘Sterling Quality’

The Court found the victim's testimony to be of "sterling quality," rendering the need for corroboration secondary. The Bench observed that minor contradictions regarding time or routine do not dilute the credibility of a child victim. The Court also noted that since the victim was proven to be under 16 years of age, the question of consent was "wholly irrelevant." The medical evidence, which showed an old hymenal tear and tenderness, was held to sufficiently corroborate the ocular testimony, with the Court remarking that "ocular evidence always prevails over medical evidence."

The Procedural Quagmire: Conviction Under a Deleted Statute

The most significant legal question in the appeal was a fundamental procedural error committed by the Trial Court. The charges were framed under Section 376(2)(i) of the IPC, a provision that had been repealed by the Criminal Law (Amendment) Act, 2018, prior to the date of the incident. The defense argued that the trial was vitiated as the accused was charged and convicted under a non-existent law.

The High Court, however, invoked Sections 215 and 464 of the Code of Criminal Procedure (CrPC), which deal with errors in charge framing. The Bench held that a mere error in the charge is not a ground for acquittal unless it has occasioned a "failure of justice."

“Failure of justice is an extremely pliable or facile expression... The court must endeavour to find the truth.”

The Court reasoned that the ingredients of the deleted Section 376(2)(i) and the newly inserted Section 376(3) IPC were identical—both penalizing the rape of a woman under sixteen years of age. Since the maximum punishment (life imprisonment) remained the same, the Court held that the accused was not placed in a worse position.

The Bench emphasized that the accused was fully aware throughout the trial that he was defending against the allegation of raping a minor. Consequently, the High Court exercised its appellate powers to alter the conviction from the deleted Section 376(2)(i) to Section 376(3) IPC, ruling that no prejudice was caused to the defense.

Balancing Rights: Accused vs. Victim

In a strong observation regarding criminal jurisprudence, the Court warned against the "danger of over-emphasis on the rights of the accused." The Bench asserted that the criminal justice system must balance the fair trial rights of the accused with the rights of the victim.

Concluding that the Trial Court correctly applied Section 42 of the POCSO Act to impose the higher punishment prescribed under the IPC, the High Court dismissed the appeal and confirmed the sentence of rigorous imprisonment for the remainder of the Appellant's natural life.

Date of Decision: 19/01/2026