Raman Shukla vs State Nct Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:18.05.2026
Judgment pronounced on:22.05.2026
+ CRL.A. 8/2025
RAMAN SHUKLA .....Appellant
Through: Mr. Sunil Choudhary, Mr. Praveen
Singh and Mr. Rajat Pandey,
Advocates.
Versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Ajay Vikram Singh, APP for the
State with SI Anjali Sharma, PS
Ambedkar Nagar.
Ms. Astha Kaushik and Ms. Megha
Singh, Advocate for respondent no. 2/
prosecutrix (DHCLSC).
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 415(2) read with
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the
BNSS), the sole accused in Sessions Case No. 136/2020 on the
file of the Additional Sessions Judge (Special Court - PoCSO),
South District, Saket Courts Complex, New Delhi, assails the
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judgement dated 15.03.2024 and order on sentence dated
31.05.2024, as per which he has been convicted and sentenced for
the offences punishable under Sections 354, 354A, 376AB of the
Indian Penal Code, 1860 (the IPC) and Section 5(m) read with 6
and Section 9(m) read with 10 of the Protection of Children from
Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that on 10.05.2020, the
accused, at his residence, namely, House No. 2nd/249, Third
Floor, Madangir, New Delhi used criminal force upon PW1, a
minor girl aged about 12 years with intent to outrage her modesty
and committed aggravated sexual assault. This was followed by
digital rape and rape on 14.05.2020 and rape/aggravated
penetrative sexual assault on 15.05.2020 at the same premises. As
per the chargesheet/ final report, the accused is alleged to have
committed the offences punishable under Sections 354, 376, 506
IPC and Sections 4, 6, 8 of the PoCSO Act.
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3. On the basis of Ext. PW1/A FIS/FIR of PW1, given on
19.05.2020, Crime no. 367/2020, Ambedkar Nagar Police
Station, i.e., Ext. PX FIR was registered by PW7, Constable.
PW9,Woman Sub-Inspector(WSI) conducted investigation into
the crime and on completion of the same, filed the
chargesheet/final report alleging commission of the offences
punishable under the aforementioned Sections. Thereafter,
supplementary charge sheet dated 24.10.2020 was submitted by
PW9.
4. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court, vide order dated 25.03.2021, framed a Charge
under Sections 354, 354A, 376AB IPC and Section 5(m) read
with 6 and Section 9 (m) read with 10 of the PoCSO Act, which
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was read over and explained to the accused to which he pleaded
not guilty.
5. On behalf of the prosecution, PWs. 1 to 9 were
examined and Ext. PW1/A-D, Ext. PW2/A-B, Ext. PW3/A-C,
Ext. PW4/A-B, Ext. PW5/A-D, Ext. PW6/A, Ext. PW7/A-C, Ext.
PW8/A, Ext. PW9/A-B, Ext. PX, PX1-6, Ext. A-1 (colly) marked
in support of the case.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the
evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence. The accused
submitted that he had not done any act as stated by the
prosecution witnesses and that he has been falsely implicated for
reasons best known to them.
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7. After questioning the accused under Section. 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In
the case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen done by the trial court. However, non-compliance
of the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have
resulted in serious and substantial prejudice to the accused (See
Moidu K. vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC
OnLine Ker 2888 ). Here, the accused has no case that non-
compliance of Section 232 Cr.P.C. has caused any prejudice to
him.
8. No oral or documentary evidence was adduced by the
accused.
9. Upon consideration of the oral and documentary
evidence on record, and after hearing both sides, the trial court,
vide the impugned judgement dated 15.03.2024 held the accused
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guilty of the offences punishable under Sections 354, 354A,
376AB IPC and Section 5(m) read with 6 and Section 9 (m) read
with 10 PoCSO Act. Vide order on sentence dated 31.05.2024,
sentenced him to undergo rigorous imprisonment for a period of
20 years and to fine of ₹50,000/-, and in default of payment of
fine, to simple imprisonment for a period of 60 days for the
offence punishable under Section 6 PoCSO Act, and to rigorous
imprisonment for a period of 7 years and to fine of ₹10,000/-, and
in default of payment of fine, to simple imprisonment for a period
of 15 days for the offence punishable under Section10 PoCSO
Act. The sentences have been directed to run concurrently.
Aggrieved, the accused has preferred this appeal.
10. The learned counsel for the appellant/accused
submitted that the prosecution has failed to establish that PW1
was below 12 years of age, which is a prerequisite for bringing
home the charge under POCSO Act as well as Section 376AB
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IPC. It was contended that Ext. PW5/A school affidavit which
was relied upon to prove the age of PW1, bears the signature of
one “Dolly”, whereas the name of the mother as reflected in the
charge sheet and her testimony is “Poornima”. In the absence of
any evidence to establish that “Dolly” and “Poornima” refer to
the same person, the reliability of the said document is doubtful,
thereby weakening the prosecution’s case on the aspect of age.
10.1. The learned counsel for the appellant/accused pointed
out certain inconsistencies in the version of PW1 regarding the
overt act attributed to the accused. In the Ext.PW1/A FIS, PW1
stated that the accused attempted to molest her ("chhed chhad
karne ki koshish ki"). In her statement under Section 164 Cr.P.C.,
she stated only that he held her hand ("mera hath pakda tha"). In
her examination before the Court, however, she alleged that he
tried to touch her private parts. Ext.PW2/A MLC records the
history provided to the doctor at the earliest opportunity as the
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accused having "tried to penetrate", an allegation materially
different from what is reflected in Ext.PW1/A FIS, the Section
164 statement, and the oral testimony, all of which allege
aggravated sexual assault. It was further contended that the
medical history recorded is more reliable as it was recorded by an
independent professional before any potential tutoring could
occur.
10.2. The learned counsel for the accused also challenges the
reliability of Ext. A-1 RFSL report, contending that the
prosecution failed to establish a proper chain of custody. A towel
allegedly containing blood stains and other garments are stated to
have been seized, and that PW3, the mother of PW1 is an attester
to the seizure memo. But PW3 never testified that a towel had
been seized in her presence. It was further contended that there
was an unexplained delay of nine days in lodging the FIR,
inasmuch as the alleged incidents are stated to have occurred
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between 10.05.2020 to 15.05.2020, whereas Ext.PW1/A FIS/FIR
came to be lodged only on the 19.05.2020, thereby casting a
doubt on the prosecution version.
11. Per contra , the learned Additional Public Prosecutor
submitted that the impugned judgment does not suffer from any
infirmity warranting interference by this court as the trial court
has duly considered each and every ground raised in the present
appeal and, upon an overall appreciation of the materials on
record, adjudicated the matter on merits. It was further contended
by the learned APP that the version of PW1 has remained
consistent throughout, from her initial statement to her testimony
before the trial court, and the same stands duly corroborated by
Ext. 2/A MLC, which records injuries on her private parts. It was
submitted that the inconsistencies pointed out by the defence
counsel are trivial in nature and do not go to the root of the
prosecution case.
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12. Heard both sides and perused the materials on record.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgement calling for an interference by this court.
14. I make a brief reference to the oral and documentary
evidence relied on by the prosecution in support of the case. Ext.
PW1/A, the FIS/FIR of PW1, the victim, recorded in Hindi on
19.05.2020 roughly translated reads thus: “ …I live at the above
address with my family in a rented house for the past four
months. Before this, we used to live in Lal Kuan, Prahladpur, and
th
I used to study there in the 5 class at SDMC Primary School. At
the aforementioned address, there are two rooms built on the
third floor, wherein I and my family live in one room, and a boy
named Raman Shukla (the accused) lives in the other room, who
used to visit our house. On 10.05.2020, Raman had called me to
his room during the afternoon. That day, Raman tried to molest
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me (chhed chhad karne ki koshish), so I got scared and returned
to my room. After this, on 14.05.2020 as well, Raman called me
to his room on the pretext of playing a game on the phone,
touched my private part, and told me not to tell my mother at
home. Out of fear, I did not tell anything to my mother or anyone
else. On 15.05.2020 at 07:00 in the morning, I was playing on the
roof outside my room. Right then, Raman gestured and called me
into his room, bolted the door, and forcefully removed the clothes
I was wearing, and then removed his own clothes as well.
Thereafter, he put his private part on my urinating part and
committed a wrong act. When I tried to make a noise (scream), he
shut my mouth with his hand. There was lot of pain in my private
part, and blood was also coming out from there. The towel on the
bed and my underwear became blood stained. The pyjama that I
was wearing, I took it off and put it for wash. But I did not change
the underwear and continued wearing it. I was extremely terrified
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by this incident and so stayed quiet. My mother noticed this and
on her asking, I told her everything. I told her that Raman, on
14.05.2020 and 15.05.2020, had called me to his room, forcefully
committed a wrong act, and threatened me that if I told anyone
about the incident, he would kill me. So today, my mother called
the police. Legal action should be taken against Raman. ”
15. Ext. PW1/C, Section 164 statement of PW1, seen
recorded on 21.05.2020 in Hindi roughly translated reads :-
“ …Raman Shukla (the accused) , who lives in my neighbourhood,
held my hand on 10.05.2020; I got scared and came back to my
house. On 14.05.2020, Raman inserted a finger into my private
part. On 15.05.2020, when I was playing on the roof outside my
room at 7 o’ clock, he bolted the door of his room, forcefully took
off my clothes, and taking off his own clothes as well, put his
private part on my private part, and committed a wrong act with
me. He closed my mouth with his hand. I was bleeding from my
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private part and so my clothes also get blood stained. Raman
threatened me that if I told anyone about this incident, he would
kill me. I had told my mother about this on 18.05.2020….. ”
16. PW1, when examined before the trial court, deposed
that on 10.05.2020, while she was playing in her house, the
accused called her into his room and started doing “ Ched Chad ”
with her. To a query as to what she meant by the same, she
explained that the accused tried to touch her hand and attempted
to touch her private parts (“ peshab waali jagah touch karne ki
kosis ki ”). She got scared and so left the room of the accused. On
14.05.2020, while she was washing utensils in the courtyard, the
accused approached her and, despite her refusal to comply with
his directions to get up and stand, inserted his finger into her
vagina, causing her pain and fear. The accused also warned her
not to disclose the incident to her mother. PW1 further deposed
that on 15.05.2020 at about 07.00 am, the accused again called
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her into his room on the pretext of playing games. After bolting
the door, he removed her clothes as well as his own and
committed penetrative sexual assault upon her (“ uske baad usne
apni susu karne waali jagah ko meri susu karne waali jagah me
daal diya aur usne galat kaam kiya” ). PW1 further deposed that
during the act, she was lying on the bed and when she raised
alarm, the accused gagged her mouth. Due to the assault, she
started bleeding from her private parts, and the blood stained her
underwear as well as a towel lying on the bed. Thereafter, the
accused opened the door and she returned to her house. When
PW3, her mother asked about her discomfort, she did not
immediately disclose the incident and merely complained of pain
in her thighs. PW1 further deposed that on 18.05.2020 at 04:00
PM, when her mother noticed blood stains on her clothes and
persistently questioned her, she eventually disclosed the entire
incident to her mother.
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16.1. PW1, in her cross examination, denied the
suggestion that both her parents were present at home at all times
during the lockdown. She admitted that at the time of the
incident, her father was at home, but was sleeping. PW1 further
deposed that she used to occasionally visit the room of the
accused either at the instance of her mother or when called by the
accused. She further deposed that although her parents generally
did not visit the room of the accused, the accused used to
frequently visit their room, and her father would also sometimes
go to the accused’s room. PW1 denied the accused having lent
₹35,000/- to her mother. PW1 denied that she was menstruating at
the time of the incident and denied the suggestion that the blood
found on her clothes and towel was menstrual blood.
17. PW3, mother of PW1, when examined before the trial
court, fully supported the prosecution case. PW3 in her cross
th
examination, deposed that PW1, her daughter was born on 19 .
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But she was unable to recall the month or year of birth. PW3
admitted that her husband was not working at the time of the
incident and used to remain at home. PW3 admitted that her
daughter had not disclosed the incident to her during the period
from 10.05.2020 to 19.05.2020. PW3 denied having taken any
loan from the accused and denied the suggestion that a sum of
₹25,000/- had been borrowed from him or that the present case
was instituted when the accused demanded repayment of the loan
amount. According to PW3, her daughter had disclosed the
incident to her in the evening of 18.05.2020. She informed her
husband about the incident, and both of them decided to approach
the police the next day. PW3 denied the suggestions that the
accused had been falsely implicated as he demanded his money
back or that her daughter was a major at the time of the incident,
or that the case was lodged in connivance with the police.
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18. PW2, DM Resident, Department Obstetrics and
Gynaecology, AIIMS Hospital, New Delhi, when examined,
deposed that on 19.05.2020, she had examined PW1. She had
recorded the history as narrated to her by PW1. According to
PW2, she had collected samples from PW1, sealed it and handed
it over to PW4. During examination, she noticed a small tear
measuring approximately 0.5 cm on the posterior surface of the
fourchette, along with an abrasion on the inner margin of the left
labia minora. In response to a Court question, PW2 deposed that
semen may be detected on the undergarments of a child for a
variable duration, generally up to 72 hours from the time of the
offence, and in rare cases, even up to 100 days.
19. PW5, Teacher, MCD, Prathmik Vidyalaya, New Delhi,
when examined, deposed that as per school records, PW1 was
admitted in Class I and that her name has been recorded at serial
no. 6797 in the Admission and Withdrawal Register. At the time
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of admission, the mother of PW1, had furnished an affidavit
regarding the date of birth of the latter, which is Ext. PW5/A, as
per which the date of birth of PW1 is 19.05.2008. During the
course of investigation, the Investigating Officer (IO) visited the
school and made inquiries regarding the admission of PW1. The
Principal, Ms. Sujata Baudh, verified the record and issued a
certificate regarding the admission and date of birth of PW1. As
per the official record, the date of birth of PW1 is 19.05.2008.
The date of Birth Certificate issued by the Principal is Ext.
PW5/B. The attested copy of the Admission Form is Ex. PW5/C,
and the attested copy of the Admission and Withdrawal Register
is Ex. PW5/D.
19.1. PW5, in her cross examination, denied the suggestion
that the date of birth of PW1 had been manipulated. PW5 further
deposed that no previous school record of PW1 had been provided
at the time of admission of PW1. PW5 denied the suggestion that
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children up to the age of 12 years are given admission in Class I.
According to PW5, children up to the age of five years are
admitted in Class I, and if a child is six years old, admission is
granted in Class II as per the prevailing norms. PW5 further
admitted that no identity proof had been given by Dolly who gave
the affidavit regarding the date of birth at the time of admission
and that no birth certificate issued by a municipal authority had
been furnished at the time of admission.
20. The trial court has found the accused guilty of the
offences punishable under Sections 354, 354A, 376AB, IPC,
Section 5(m) r/w Section 6 and Section 9(m) r/w Section 10
POCSO Act. In the light of Section 42 PoCSO Act, no separate
sentence is seen passed for the offence punishable under Sections
354, 376AB and 354A IPC. But Section 42 does not include
Section 354 IPC. Both Section 5(m) read with Section 6 of the
POCSO Act and Section 376AB IPC prescribe punishment for
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penetrative sexual assault or rape committed upon a child below
12 years of age. Therefore, in order to bring home the charge
under either of the aforesaid sections, the prosecution must first
conclusively establish that the age of the victim was below 12
years at the time of the incident before proceeding to examine the
remaining ingredients of the offences.
21. In the case on hand, the prosecution has relied upon
Ext. PW5/B date of birth certificate, supported by Ext. PW5/A
affidavit allegedly furnished by the mother of PW1, along with
Ext. PW5/C copy of the admission form and Ext. PW5/D copy of
admission and withdrawal register, to establish that PW1 was
below 12 years of age at the relevant time. According to PW5,
Ext.PW5/B certificate was issued by the Principal of the school to
the I.O. A birth certificate issued by the Principal to the
I.O. during the course of investigation is nothing but a
statement under Section 161 CrPC, although signed. Therefore, it
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is hit by Section 162 Cr.P.C. The prosecution has to produce the
extract of the birth register or the extract of the school admission
register or any other similar document to prove the age of the
victim. Therefore, the certificate marked as Ext PW5/B, a
certificate prepared by the Principal, signed and handed over to
the IO, can be treated only as a statement of the Principal given to
the IO under Section 161 of Cr.PC, although signed. Ext PW5/B
is hit by Section 162 of Cr.PC and is not admissible in evidence
and hence is liable to be discarded (See Sasi v. State of Kerala
2019 KHC 465: 2019 (3) KLT 561).[ See also Kali Ram v.
State of H.P., 1973 KHC 634:1973 (2) SCC 808;
Kanu AmbuVish v. State of Maharashtra, 1971 KHC 469:
1971 (1) SCC 503; Datar Singh v. State of Punjab, 1975 KHC
789 : (1975) 4 SCC 272 and C. Chenga Reddy v. State of A.P.,
1996 KHC 1264 : 1996 (10) SCC 193 ].
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22. It is true that a copy of the admission and withdrawal
register has also been produced. But as is evident from the
testimony of PW5, the entries in the admission register was made
on the basis of Ext. PW5/A affidavit alleged to have been given
by the mother of PW1 at the time of her admission in the school.
A perusal of Ext. PW5/A affidavit reveals that the mother’s name
is recorded as “Dolly”, whereas PW3, who was examined as the
mother of PW1, was identified as “Poornima”, which is also the
name reflected in the charge sheet. No explanation whatsoever
has been offered by the prosecution to clarify whether “Dolly”
and “Poornima (PW1)” are one and the same person. In such
circumstances, it can only be held that the evidence regarding the
age of PW1 is quite unsatisfactory. Therefore, when the age of
the victim is not conclusively proved to be below 12 years, the
essential foundational requirement for attracting Section 5(m)
read with Section 6 of the PoCSO Act and Section 376AB IPC
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remains unestablished, and so, the aggravated forms of the
offences under the said provisions cannot be sustained against the
accused.
23. Section 376AB IPC as noticed earlier which deals with
punishment for rape on a woman under 12 years of age, says that
a person who commits rape on a woman under 12 years of age is
liable to be punished. An offence of rape as defined under Section
375 IPC will be made out when a man engages in any of the acts
mentioned in clauses (a) to (d) of the Section which includes the
act of penetrating his penis to any extent into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any
other person. The question is whether the testimony of PW1 and
the materials on record make out an offence under Section 375
IPC. According to the learned counsel for the appellant/accused,
there are several inconsistencies in the testimony of PW1 and
therefore, that is one major reason to disbelieve her testimony.
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24. I have already referred to in detail Exhibit PW1/A FIS;
Exhibit PW1/C 164 statement, and the testimony of PW1. It is
true that there are slight variations in the statements given by
PW1. However, her version regarding the act of digital rape and
rape on 14.05.2020 and 15.05.2020 remain consistent. No
materials have been brought in to show as to why PW1 should
falsely implicate the appellant/accused. Nothing was brought out
in the cross-examination of PW1 to disbelieve her version.
25. The attention of the Court was also drawn to the history
recorded in Exhibit PW2/A MLC. The history recorded is “ Sexual
assault - 5 days back ”. In the second page of the MLC, it is also
recorded thus:-
“As per the patient's history, he (the accused) had tried to
penetrate his penis into the genitalia of the patient. Patient has
been brought by W-Constable Amrawati. Patient had been
pulled into the house of Mr Raman by him & tried to assault
her sexually using his finger and also penis. She has changed
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her clothes, but panty has been preserved. As more than 3 days
have passed, samples can't be collected as per AIIMS protocol.
On examination - No visible marks seen on any of the body
parts except on the Private part.
On Private part examination - a small tear 0.5cm seen on the
fourchette and the panty was seen to be blood stained.
On seeing blood on panty:- patient, her mother & W.
Constable was informed of the need of EUA (examination
under anaesthesia) if they agree; or they may choose to
undergo normal examination - to see for her internal tears.
Patient's mother wishes to discuss with her husband and take
the final decision and needs to take some time to decide. She
has been given time & we are waiting for their decision &
Consent to proceed with the examination or EUA”.
26. Referring to the aforesaid history recorded, the
argument advanced is that the statement given to the doctor is the
statement first in point of time. The same does not tally with the
subsequent statements of PW1 and hence, a further ground to
disbelieve her.
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27. I am unable to agree with the aforesaid argument
because the primary duty of a doctor is only to treat the patient. In
Pattipati Venkaiah vs State of Andhra Pradesh, 1985 KHC
700: AIR 1985 SC 1715, while dealing with the contention that
the eyewitnesses had not cared to disclose the names of the
assailants to the doctor, it was held that a doctor is not at all
concerned as to who committed the offence or whether the person
brought to him is a criminal or an ordinary person. His primary
concern is to save the life of the person brought to him and
inform the police in medico legal cases. In Bhargavan vs. State
of Kerala, 2004 KHC 39 : AIR 2004 SC 1058, also the Apex
Court relying on Pattipati Venkaiah ( supra ) reiterated that non-
disclosure of names of the assailants to the doctor is really of no
consequence as his primary duty is to treat the patient and not to
find out by whom the injury was caused. Therefore, the mere fact
that there are slight variation(s) in the history narrated by PW1 to
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the doctor and her subsequent statements is not of much
consequence in the light of the other evidence before the Court
including the medical evidence.
28. In the MLC the injury noted is:- “ a small tear 0.5cm
seen on the fourchette ”. PW2, the doctor who examined PW1 also
deposed that there was a small tear measuring approximately 0.5
cm on the posterior surface of the fourchette along with a small
abrasion on the inner margin of the left labia minora. Therefore,
the medical evidence also corroborates the allegation of sexual
intercourse.
29. The learned counsel for the appellant/accused further
contended that the chain of custody regarding the material objects
seized has not been properly established. The prosecution case is
that a towel had also been seized by the police. However, PW3,
the mother of PW1, who is stated to be a witness in the seizure
memo has no such case. Even assuming the same to be true, that
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has also not affected the prosecution case because PW1 is not
responsible for the omission(s) or mistakes, deliberate or
otherwise, on the part of the I.O. It is also true that there is slight
delay in reporting the matter to the police. But this is explained in
the testimony of PW1, who deposed that she had initially not
disclosed the assault to her mother. It was only when her mother
noticed her to be unusually quiet and seeing her bloodstained
undergarment and on persistent questioning by her mother, she
had revealed the incident. Moreover, in cases of this nature, it
cannot be expected that the victim or her family would
immediately rush to the police and give a statement. It might be
only after much deliberation or contemplation that the decision to
report the matter to the police will be taken in matters of this
nature. So, merely because there is some delay in reporting the
matter to the police, is also no ground to disbelieve the
prosecution case.
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30. As noticed earlier, PW1 has categorically deposed that
on 14.05.2020, the appellant/accused had inserted his finger into
her private part and that on 15.05.2020 had sexual intercourse with
her. Her testimony is corroborated by the statements contained in
Exhibit PW1/A FIS/FIR and Exhibit PW1/C 164 statement. The
testimony of PW1 is supported by Exhibit PW2/A MLC as well as
Exhibit A1 (colly) FSL report. The materials on record make out a
case under Section 375 IPC.
31. It is true that the trial court had not framed a Charge for
an offence under section 375 IPC against the appellant/accused.
Here it would be apposite to refer to Section 222 Cr.P.C. Section
222(1) Cr.P.C 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". Sub-section (2) deals with a similar, but
slightly different situation. Under Section 222(2) Cr.P.C., when a
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person is charged with an offence, and facts are proved, it is
reduced to a minor offence; he may be convicted of a minor
offence, although he is not charged with it. The meaning of a
"minor offence" for the purpose of Section 222 Cr.P.C. was dealt
with by the Apex Court in S.M. Multtani v. State of Karnataka,
2001 (2) SCC 577 , in which it has been held that, although the
said expression is not defined in Cr.P.C, 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 a minor offence, vis- a-
vis the other offence.
32. I have already referred to the essential ingredients of
Section 375, 376AB IPC and Section 5(m) read with Section 6 of
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the POCSO Act and Section 9(m) read with Section 10 of the
POCSO Act. It is apparent that the ingredients contemplated
under Section 375 IPC and Sections 376AB IPC and Section 5(m)
read with Section 6 of the POCSO Act and Section 9(m) read
with Section 10 of the POCSO Act are identical/same except the
age factor. The punishment contemplated under Sub section (1) of
Section 376 IPC is lesser than the sentence contemplated under
Section 6 PoCSO Act. Therefore, Section 376(1) IPC can be
termed as a minor offence when compared to the offence under
Section 6 PoCSO Act as contemplated under Section 222(1)
Cr.P.C.
33. In the result, the appeal is partly allowed. The
conviction of the appellant/accused for the offences punishable
under Sections 354 and 354A IPC is confirmed. The conviction
of the appellant/accused for the offences punishable under
Section 376AB IPC, Section 5(m) read with Section 6 of the
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POCSO Act and Section 9(m) read with section 10 of the POCSO
Act is set aside. The appellant/accused is found guilty of the
offence contemplated under Section 375 IPC punishable under
Section 376(1) IPC. As per Section 376(1) IPC, whoever commits
rape, except in cases provided in sub-section (2), is liable to be
punished with rigorous imprisonment of either description for a
term which shall not be less than ten years but which may extend
to imprisonment for life and shall also be liable to fine. The
substantive sentence of imprisonment imposed by the trial court
is modified to the minimum sentence of ten years provided under
Section 376(1) IPC.
34. The appeal is allowed to the aforesaid extent.
35. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 22, 2026/ p’ma
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