Case: Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
Court / Bench: Supreme Court of India; Bench: Sanjay Kumar J. & Satish Chandra Sharma J.
Citation / File ref: 2025 INSC 1061; SLP(Crl.) No. 18377/2024 (arising)
Date of Judgment: 01 September 2025
Result: Appeal allowed; High Court acquittal set aside; Trial Court conviction and sentence restored. Respondents (convicts) to surrender within two weeks.
Short headnote (suggested)
The High Court erred in acquitting two accused of rape and POCSO offences primarily on the basis of procedural non-compliance (misjoinder under Section 223 Cr.P.C.) and alleged evidentiary lacunae. Where the victim’s testimony is consistent, corroborated by medical and documentary evidence (including pregnancy and abortion records) and the accused were not misled by a defective charge, mere procedural irregularity (defective charge, non-compliance with s.223) will not vitiate conviction unless actual prejudice or failure of justice is shown. Joint trial irregularity alone does not automatically occasion miscarriage; appellate court must demonstrate real prejudice. Conviction and life sentences restored.
Facts in two lines
Victim (minor female) discovered pregnant in July 2016; alleged rapes by two local men (respondents) occurring after Holi, over a period in which threats were made. FIR lodged 02/07/2016; trial court convicted both under IPC §376 and POCSO §§4 & 6; High Court acquitted mainly citing procedural defects and inconsistencies; Supreme Court restored trial court judgment.
Procedural history
-
FIR / Cr. Case No. 209/2016 (PS Piro) — investigation & chargesheet.
-
Trial Court (Additional District & Sessions Judge-cum-Special Judge, POCSO) — conviction: life imprisonment + fines (for IPC §376 and POCSO §§4 & 6; sentences concurrent).
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High Court — acquittal (procedural defects: date/time, age, proof of pregnancy/abortion, defective charge phrasing, and invalid joint trial under s.223 Cr.P.C.; found prejudice).
-
Supreme Court — allowed appeal by State / father-appellant; restored conviction & sentence.
Issues framed by Supreme Court
-
Whether the High Court erred in acquitting by holding prosecution evidence was inconsistent/contradictory.
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Whether non-compliance with Section 223 Cr.P.C. (joinder of trial) caused prejudice/failure of justice.
Key holdings / ratio (with pointers)
-
Victim’s testimony & corroboration — sufficient. Victim’s statements (trial, s.164 Cr.P.C.), medical reports (ultrasound 01/07/2016 showing ~15 weeks), school transfer certificate, parents’ testimony — taken together show she was a minor (approx. 12–15) and the prosecution case was consistent. Minor variations do not automatically create reasonable doubt. (Paras 15–19, 23)
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Pregnancy & abortion proved. Ultrasound reports and discharge/abortion papers and corroborating oral testimony proved pregnancy and abortion; High Court overlooked this material evidence. (Paras 20–21)
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Delay in FIR explained. Delay explained by intimidation and fear raised by accused; FIR lodged immediately after discovery of pregnancy. (Para 21)
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Defective charge not fatal absent failure of justice. Charge saying “on or about 02.07.2016” (FIR date) was erroneous, but under s.464 & s.215 Cr.P.C. an error in charge vitiates conviction only if it occasioned failure of justice or misled accused. Here accused were aware of time-frame via chargesheet/trial and had no prejudice. (Paras 25–28)
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Non-compliance with Section 223 Cr.P.C. not fatal without showing prejudice. Appellate courts must test whether the misjoinder/joinder caused actual prejudice or failure of justice. High Court stopped at misjoinder and failed to show prejudice; Supreme Court will not set aside convictions without proof of prejudice. (Paras 29–36, 33–35)
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DNA not fatal omission here. Although better investigation (DNA tests) would be preferable, absence of DNA did not create reasonable doubt here because the victim correctly and consistently identified the accused and identity was unrebutted. (Para 24)
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Principle on reasonable doubt. Not every minor inconsistency converts into a reasonable doubt; reasonable doubt must be supported by reason and must make prosecution’s case improbable. (Para 36)
Orders / Relief
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High Court judgment of acquittal set aside. Trial Court judgment of conviction and sentence restored.
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Respondent Nos. 1 & 2 to surrender to trial court within two weeks; otherwise trial court to take steps to take them into custody. Registry to communicate the order. (Paras 38–39)
2025 INSC 1061
SLP(Crl.) No. 18377/2024 Page 1 of 35
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. _______/2025
(arising out of SLP(Crl.) No. 18377 of 2024)
SUSHIL KUMAR TIWARI ….APPELLANT
VERSUS
HARE RAM SAH & ORS. ….RESPONDENT(S)
J U D G M E N T
SATISH CHANDRA SHARMA, J.
1. Leave granted.
2. The struggle for sensitivity towards offences against
women, children and other marginalized groups passes through
various phases of evolution. Whereas, the end goal is most
desirable, the journey is not always a pleasant one. At times, the
victims find themselves pitched against a system full of
SLP(Crl.) No. 18377/2024 Page 2 of 35
insensitive stakeholders and at other times, the victims find
themselves in conflict with the procedural intricacies of the laws
in place. Despite the importance of procedural sanctity, it is
always a matter of utter failure for the system as a whole when a
culprit, that too of a heinous sexual offence, manages to walk free
by entangling the victim in misapplication of procedural rules,
without the knowledge of the victim and without any control of
the victim. The present case presents one such illustration from a
place called Piro, District Bhojpur, Bihar.
3. In 2016, a few months after the festival of Holi, the victim
- the appellant’s daughter – started feeling unwell. Upon finding
that her health was constantly deteriorating, the appellant’s wife
took their daughter to her native place in Ballia, Uttar Pradesh for
treatment. There, she was taken to Zila Mahila Chikitsalaya on
01.07.2016 and upon examination, the victim was found to be 3
months pregnant. Upon questioning, she disclosed that she was
raped by the respondents, namely, Hare Ram Sah and Manish
Tiwari about 3-4 months ago, sometime after the festival of Holi.
On the strength of this disclosure, the appellant lodged a
complaint at PS Piro, District Bhojpur, Bihar on 02.07.2016,
which culminated into FIR/Criminal Case No. 209/2016.
Investigation commenced and chargesheet was filed in the
concerned Court.
SLP(Crl.) No. 18377/2024 Page 3 of 35
4. After trial, Learned Additional District & Sessions Judgecum-Special Judge, POCSO Act, Bhojpur at Ara found the
Respondent Nos. 1 and 2 guilty for the commission of offences
under Sections 376(2) of Indian Penal Code, 18601
, and Sections
4 & 6 of Protection of Children from Sexual Offences (POCSO)
Act, 20122
. For the commission of the offence under Section 376
IPC, the Respondent Nos. 1 and 2 were sentenced to undergo
rigorous life imprisonment along with a fine of Rs. 50,000/- each.
In default of payment of fine, additional sentence of
imprisonment for one year was imposed. For the commission of
the offence under Section 6 of POCSO Act, the Respondent Nos.
1 and 2 were sentenced to undergo rigorous life imprisonment
along with a fine of Rs. 25,000/- each. In default of payment of
fine, additional sentence of imprisonment for one year was
imposed. For the commission of the offence under Section 4 of
POCSO Act, the Respondent Nos. 1 and 2 were sentenced to
undergo rigorous imprisonment of 7 years along with a fine of
Rs. 10,000/- each. In default of payment of fine, additional
sentence of imprisonment for three months was imposed. The
sentences were directed to run concurrently.
1 Hereinafter referred as “IPC”
2 Hereinafter referred as “POCSO Act”
SLP(Crl.) No. 18377/2024 Page 4 of 35
IMPUGNED JUDGMENT
5. In appeal, the High Court examined the entire evidence on
record and came to the conclusion that the prosecution did not
succeed in proving the case against the Respondent Nos. 1 and 2.
In doing so, the High Court primarily found the following
infirmities in the prosecution case:
i. The date and time of the alleged incident were not
proved;
ii. The determination of age of the victim was not
carried out;
iii. No proof of abortion of the victim was placed on
record;
iv. The charge was not framed properly as it recorded
the date as 02.07.2016, whereas the incident was
reported on 01.07.2016 and offence was committed
3-4 months prior to its reporting;
v. The Trial Court committed an error in conducting
the joint trial of the Respondent Nos. 1 and 2,
despite the case not falling within the conditions
stipulated in Section 223 of the Code of Criminal
Procedure, 19733
for conducting joint trial. The
3 Hereinafter referred as “Cr.P.C.”
SLP(Crl.) No. 18377/2024 Page 5 of 35
High Court observed that the trial was bad in law, as
the Respondent Nos. 1 and 2 were accused of
committing different offences committed at
different points of time, and the joinder of trial had
caused grave prejudice to them and led to
miscarriage of justice.
6. The High Court emphasized that in addition to the
procedural infirmities that resulted from the non-compliance of
Section 223 Cr.P.C., there were major inconsistencies in the
deposition of prosecution witnesses. However, it clarified that the
conviction was not set aside solely due to procedural lapses. The
relevant para reads thus:
“42. As per the principles laid down by the
Hon’ble Supreme Court, and the two pronged test
satisfies this case that the joint trial conducted has
prejudiced the defence of the accused and has
successfully proven to cause a miscarriage of
justice. In view of the aforesaid facts and
circumstances of the present case, we are of the
view that the prosecution has failed to prove the
case on various grounds. The conviction of the
present appellants is not being set aside on the
mere ground that the procedure of Section 223 of
the Code has not been adhered to but there are
numerous laches on the part of the prosecution in
proving the case beyond reasonable doubt. The
learned Trial Court has also failed to consider the
fact that Section 223 was applicable in this matter,
but the same has not been considered in this case
SLP(Crl.) No. 18377/2024 Page 6 of 35
and the appellants have been tried jointly, causing
prejudice to the appellants, despite which, the
learned Trial Court has recorded the impugned
judgment of conviction and the order of sentence.
As such, the same are required to be quashed and
set aside.”
THE CHALLENGE
7. Taking exception to the impugned judgment, Learned
Counsel on behalf of the appellant submits that the High Court
fell in a grave error in concluding that prejudice was caused to
the Respondent Nos. 1 and 2 due to non-compliance of Section
223 Cr.P.C. He submits that the ground qua non-compliance of
Section 223 was never taken by the Respondent Nos. 1 and 2 and
the High Court examined the same on its own. To buttress the
submission, it is submitted that even if Section 223 was not
complied, it did not cause any prejudice to the Respondent Nos.
1 and 2 and they had sufficient opportunity to participate and
defend themselves during the trial.
8. It is further submitted that the age of the victim was
established to be under 18 years without any doubt, on the
strength of the school transfer certificate, statement of the victim
under Section 164 Cr.P.C. and the medical report dated
01.07.2016. It is further submitted that there was no reason to
doubt the testimony of the victim and in a case of this nature, the
testimony of the victim could form the sole basis of conviction.
SLP(Crl.) No. 18377/2024 Page 7 of 35
It is further submitted that the aspects of pregnancy and abortion
were duly proved in the case on the basis of the medical reports
and abortion papers.
9. It is further submitted that there was no enmity between
the victim and the Respondent Nos. 1 and 2 and thus, there was
no motive to implicate the Respondent Nos. 1 and 2. It is further
submitted that even if the High Court had found any procedural
irregularity, it ought to have remanded the matter back for fresh
adjudication instead of acquitting the Respondent Nos. 1 and 2.
To buttress, it is submitted that the impugned decision
completely disregarded the rights of the victim.
10. Per contra, the respondents advanced submissions in
support of the impugned decision. On their behalf, it is submitted
that the investigation was carried out in a completely casual and
negligent manner and the same cause prejudice to the Respondent
Nos. 1 and 2. The submissions draw attention to the aspects of
age determination, absence of proof of pregnancy and abortion,
lack of investigation qua the date, time and place of the incidents,
etc. It is further submitted that the charges framed by the Trial
Court were defective and the entire trial was conducted on the
basis of defective charges, thereby disentitling the Respondent
Nos. 1 and 2 from a fair participation.
SLP(Crl.) No. 18377/2024 Page 8 of 35
11. It is furthersubmitted that the Trial Court conducted a joint
trial of the Respondent Nos. 1 and 2 in utter violation of Section
223 Cr.P.C. and without fulfilment of the conditions
contemplated thereunder. It is further submitted that even at the
stage of Section 313 Cr.P.C., the incriminating evidence was not
put properly to the Respondent Nos. 1 and 2 and consequently,
the Respondent Nos. 1 and 2 were prevented from explaining the
evidence against them in a proper manner. Further, it is submitted
that the version of the prosecution witnesses, especially that of
the victim, was not consistent and the Trial Court committed an
error in placing reliance upon their testimonies. It is further
submitted that the defence witnesses presented a valid defence
and the same out to have been considered.
12. Both the parties have filed written submissions and
compilation of judgments in support of their case. We have
considered the same.
DISCUSSION
13. We have carefully considered the contentions advanced by
the parties, impugned judgment, judgment of the Trial Court and
the decisions relied upon by the parties. In light of the
controversy involved in the matter, the following two issues arise
for our consideration:
SLP(Crl.) No. 18377/2024 Page 9 of 35
i. Whether the High Court fell in a grave error in
acquitting the Respondent Nos. 1 and 2 by holding
that the prosecution failed to discharge its
evidentiary burden as the evidence led by the
prosecution was full of inconsistencies and
contradictions?
ii. Whether the High Court erred in its finding that the
trial was carried out in violation of Section 223
Cr.P.C. and non-adherence to the same had caused
prejudice to the Respondent Nos. 1 and 2, thereby
leading to miscarriage of justice?
14. We may first consider the issue regarding inconsistencies
and contradictions in the prosecution evidence, which would
require some degree of examination of the evidence on record.
At the outset, it needsto be noted that the High Court has outlined
a few specific issues in the case i.e. victim’s age, date and time
of the incident, proof of pregnancy and abortion, and delay in
lodging the FIR.
15. Before appreciation of evidence led on these aspects, we
may first traverse through the testimony of the victim, examined
before the Trial Court as PW-2, in order to understand the precise
allegations. After the discovery of pregnancy, PW-2 deposed that
the incident took place in 2016, a few days after the festival of
SLP(Crl.) No. 18377/2024 Page 10 of 35
Holi. She deposed that one afternoon, her mother and father were
not at home and she was sleeping alone in the house. Respondent
No. 2 Manish Tiwari entered the house and raped her, and before
leaving, he threatened her saying that should she tell anyone
about it, she would be killed. Two or three days after this
incident, the victim went near Shivala in the evening hours to
look for her brother Himanshu. On the way, she passed
respondent No. 1 Hare Ram Sah’s room and inquired if he had
seen her brother. The said respondent pointed towards an inner
room (used as coaching center) and suggested to the victim that
her brother had gone in that direction. She went to check inside
the room and found no one there. At the same time, Hare Ram
Sah came from behind and grabbed her. She deposed that he took
her inside and raped her. He also threatened her by saying that
should she tell anyone about it, she would be killed. The victim
further deposed that she got scared and told no one about it. The
story does not end here. She further deposed that after this
incident, for two-three successive months, the Respondent
Nos. 1 and 2 took turns and raped her multiple times. Thereafter,
she fell sick and started experiencing stomach pain and vomiting.
She informed her mother and her mother firstly took her to a
doctor in Ara. Despite administration of medicines, her health did
not improve. Thereafter, the victim was taken to her maternal
uncle’s house in Ballia, Uttar Pradesh, where an ultrasound was
SLP(Crl.) No. 18377/2024 Page 11 of 35
conducted and the pregnancy was discovered. It is noteworthy
that the statement of the victim recorded by the police, statement
recorded by the concerned Magistrate under Section 164 Cr.P.C.
and the deposition recorded in the Court, are fairly consistent.
There appears to be no variance insofar as the material aspects of
the offence are concerned.
16. As regards the first issue concerning the age of the victim,
it is quite understandable that for an offence under the POCSO
Act, the victim must be aged under 18 years. In order to prove so,
the prosecution has relied upon both oral and documentary
evidence. The oral testimony of the mother of the victim,
examined before the Trial Court as PW-3, reveals that the victim
was 12 years old at the time of incident. Further, the statement of
victim under Section 164 Cr.P.C. also bears an endorsement
regarding her age. The concerned ACJM, examined as PW-4, has
recorded her age as 13 years. The father of the victim, examined
as PW-5, has deposed that the victim’s age at the time of incident
was 12 years. Insofar as the documentary evidence is concerned,
the Transfer Certificate (Annexure P-10) issued by the
government school attended by the victim records her date of
birth as 03.10.2004, thereby meaning that during the concerned
time-frame of the year 2016, the victim was around 12 years old.
The medical report dated 01.07.2016 (Annexure P-1) is also
relevant on this aspect. The said medical report pertains to the
SLP(Crl.) No. 18377/2024 Page 12 of 35
ultrasound examination of the victim and records her age as 15
years.
17. It cannot be denied that there are slight variations in the
age of the victim at the relevant point of time, as discernible from
the oral and documentary evidence. However, we do not find
ourselves in agreement with the High Court that the age was not
proved during trial. The oral testimonies of PW-3, PW-5 and PW6 are consistent inter-se as well as with the Transfer Certificate
issued by the government school. The age of the victim appears
to be within the range of 12-13 years at the relevant point of time.
The medical report records the age as 15 years. However, we
cannot lose sight of the fact that the age of the victim was not
challenged during cross-examination of any of the witnesses
mentioned above. Their testimonies, on the point of age, have
largely remained unrebutted, thereby meaning that the
Respondent Nos. 1 and 2 had no claim that she was not a minor
at the relevant point. We do not mean to say in cases involving
POCSO Act or Juvenile Justice (Care & Protection) Act, 2015,
the determination of age is not required. Most certainly, the
determination of minority is essential to extend the protection of
these legislations, however, as long as the age conclusively
appears to be under 18 years, the special protections carved out
in favour of children cannot be diluted by insisting upon a rigid
determination of the age, that too when it was not even
SLP(Crl.) No. 18377/2024 Page 13 of 35
questioned at the right time. In the present case, even if it is
believed that the age of the victim was not determined to the hilt,
the Trial Court had concluded that the victim was aged between
12 to 15 years at the relevant point of time and thus, was a minor.
Thus, it could not be stated that the Trial Court had not
determined the minority of the victim. It was done and, in our
opinion, rightly so, on the basis of the unrebutted oral and
documentary evidence.
18. Interestingly, the Respondent Nos. 1 and 2 neither claimed
that the victim was not a minor at any point of time nor led any
evidence to that effect. We find that the High Court has erred in
raising a doubt where none existed, even inter-se the parties to
the case. We are also of the opinion that once the minority of the
victim was beyond doubt, the special protection of POCSO Act
ought not to have been diluted by raising a fictious doubt
regarding the precise age of the victim. For, the Courts must
remain alive to the socio-economic circumstances of the victims,
especially those who are based in remoter regions of the country.
In rural regions, discrepancies in the educational and
identification documents are not unknown and, in such
circumstances, the Courts must be sensitive to the ground
realities of the society, so as to ensure that the intent of the law is
not suppressed and protections created by the legislature reach
the intended persons in their right spirit.
SLP(Crl.) No. 18377/2024 Page 14 of 35
19. As regards the issue regarding date and time of the
incident, the High Court has observed that the prosecution had
failed to prove the date and time of the offence. In order to
examine this aspect, we must appreciate the circumstances in
which the offence was committed and discovered. The main
witness pertaining to the commission of the offence is the victim
herself, examined as PW-2. She has expressed the entire chain in
a consistent manner and her version is also consistent with other
PWs. She has deposed that the offence took place in the days
following the festival of Holi and the same is corroborated by the
medical report dated 01.07.2016, which indicates that she was 3-
4 months pregnant as on 01.07.2016. The medical report
corroborates the time frame stated by the victim. Further, as
regards the time, the victim has deposed that the first incident
took place during the afternoon and the second incident took
place in the evening. Importantly, it is not a case wherein the
victim reported the offence immediately after its commission.
The victim was scared to report the incident to anyone as she was
threatened by the Respondent Nos. 1 and 2 and probably, if not
for the pregnancy and deterioration of health, she would not have
reported either. Therefore, the inability of the victim, a minor girl,
to recollect the precise time and date of the offence is completely
natural. Furthermore, the victim has specified the places used for
the commission of the alleged offence, including her house and
SLP(Crl.) No. 18377/2024 Page 15 of 35
coaching center of Respondent No. 1-Hare Ram Sah, and has also
correctly identified both the respondent Nos. 1 and 2. during trial.
Therefore, the victim has deposed in a completely natural manner
and her inability to depose about some facts in precise terms is
not only natural, but is also inconsequential as the medical report
has corroborated the time-frame of the offence. The testimony of
the victim is fairly consistent and there is no reasonable ground
to doubt the same. Moreover, this deficiency has not caused any
prejudice to the Respondent Nos. 1 and 2.
20. As regards the proof of pregnancy and abortion, we find
that the High Court has fell in a grave error by failing to
acknowledge the evidence on record. The medical report dated
01.07.2016 categorically indicates that at the time of ultrasound,
the victim was 15 weeks pregnant. In the subsequent examination
conducted on 02.07.2016 at Ara, the victim was again found to
be 16 weeks pregnant and in support of the same, PW-7 has
deposed before the Trial Court. No infirmity has been pointed out
in the examination of PW-7. The factum of abortion has been
proved on the basis of the medical documents/Discharge Ticket
dated 30.07.2016 issued by Sadar Hospital, Ara. Further, the
Trial Court has noted that the letter dated 28.07.2016 bearing
Letter No. 60/BSLSA/AccT/2472 issued by the Bihar State Legal
Services Authority indicated that the victim’s father had sought
permission for her abortion. The said letter is Annexure P-4 and
SLP(Crl.) No. 18377/2024 Page 16 of 35
it aligns with the observation of the Trial Court. It is also averred
that abortion was conducted after the constitution of medical
board by the Executive Chairman, BSLSA, Patna High Court, a
fact which has not been disputed. Thus, it appears preposterous
to hold that the prosecution could not prove the elements of
pregnancy and abortion. There is ample documentary and oral
evidence to prove these elements and we feel that the High Court
has overlooked relevant evidence in arriving at its finding. This
fact was duly proved in the common course of natural events, but
the natural events were overlooked.
21. As regards the delay in lodging the FIR, we feel that the
same has been appropriately explained. The incident came to
light only after the ultrasound conducted on 01.07.2016 and the
FIR was lodged on the very next day. Before the discovery of
offence, the delay of 3-4 months was a consequence of the
intimidation made by the Respondent Nos. 1 and 2, which
prevented the victim from opening up before her parents. It is
completely natural and understandable. We do not find that the
victim could be faulted in any manner on account of delay.
22. On an examination of the concerns, which formed the basis
of the impugned decision, we are of the view that undue emphasis
has been laid on these aspects by the High Court. One of the
foremost principles of appreciation of evidence is that natural
SLP(Crl.) No. 18377/2024 Page 17 of 35
variations, errors and inconsistencies are not to be elevated to the
standard of a reasonable doubt or to hold that the prosecution has
failed. There is nothing like perfect evidence in a Court and in
fact, perfection is often suggestive of tutoring and manufacturing
of evidence. The availability of evidence as well as the quality of
evidence are not open to judgment on any pre-determined
parameters. For, these aspects not only depend upon the quality
of investigation but also upon the societal circumstances
prevalent in the area of crime. They also depend upon the level
of awareness, not only of the persons involved in the case but also
of the members of the locality who often appear as witnesses.
Therefore, the Courts must be alive to the state of affairs on the
ground and in that backdrop, it must examine whether the
inconsistencies and gaps have been properly explained or not. If
so, such inconsistencies and gaps may not affect the case of the
prosecution. However, if the prosecution fails to explain the
inconsistencies in its case, an adverse inference may be drawn
against it.
23. Be that as it may, the present case does not fall in such
category, as the prosecution witnesses have invariably deposed
in support of the version put across by the victim. The medical
reports and other documentary evidence have corroborated the
oral statement of the victim. Moreover, the oral statement of the
victim has remained fairly consistent at all levels of the
SLP(Crl.) No. 18377/2024 Page 18 of 35
proceeding, including before the Magistrate who recorded her
statement under Section 164 Cr.P.C. and the Trial Court where
she was subjected to cross examination. The version of the victim
has remained completely natural and consistent with the chain of
circumstances of the case. Despite cross-examination, there is
nothing to suggest that she is not creditworthy as a witness.
24. Having said so, we do agree that better investigation could
have been conducted in the present matter on certain aspects. For
instance, the accused persons ought to have been tested for DNA
analysis as it could have enabled more fool-proofing of the
prosecution’s case. This argument has been taken by the
Respondent Nos. 1 and 2 in the written submissions and reliance
has been placed upon the decision of this Court in Krishan
Kumar Malik v. State of Haryana4
. We have carefully
considered this aspect and are of the opinion that despite this
error, the case of the Respondent Nos. 1 and 2 cannot be
advanced as it does not give rise to any reasonable doubt. It is so
because the factual matrix of the present case is substantially
distinct from that in Krishan Kumar Malik. In the said case, the
version of the prosecutrix was found to be doubtful as she had
failed to disclose the name of the accused in the FIR, despite
admitting that she knew his name. She had also failed to explain
4
(2011) 7 SCC 130
SLP(Crl.) No. 18377/2024 Page 19 of 35
the identity of the accused in an accurate manner and in fact,
stated that the accused was a short-structured person, which was
found to be contrary to his appearance. The prosecutrix had also
concealed and falsely presented certain material aspects of the
case. Thus, in this backdrop, the Court had observed that the
prosecution had failed to prove the identity of the accused therein
and DNA test ought to have been carried out to obtain scientific
evidence of identification. However, in the present case, the
victim has correctly named and identified both the Respondent
Nos. 1 and 2 right from the beginning of the case. In the Trial
Court as well, she had correctly identified them and no doubt qua
identity was raised at that stage. On the point of identity, the
victim has not even been rebutted at any stage. The Respondent
Nos. 1 and 2 have not shown any circumstance which could
enable this Court to raise a question on the identification of the
Respondent Nos. 1 and 2 by the victim. Perhaps, there is none.
Therefore, merely on account of non-availability of DNA
analysis, the case of the prosecution cannot be discarded,
especially because the purpose of identification has been fulfilled
on the strength of other credible evidence. The reliance placed on
Krishan Kumar Malik (supra) is, thus, wholly misplaced.
25. Another important aspect that has weighed
with the High Court is the manner of framing
SLP(Crl.) No. 18377/2024 Page 20 of 35
of charge by the Trial Court. On this aspect, the High Court has
noted thus:
“25. The Code lays down various provisions with
regard to the framing of charges against an
accused. On perusal of charge sheet dated
06.12.2017, it is mentioned that the date of
occurrence of the incident was on 02.07.2016, but
the ferdbeyan dated 02.07.2016, states that the
daughter of the informant was pregnant for three
months and few days as according to the treatment
of the victim which was done on 01.07.2016.
Further, on perusal of the F.I.R and case diary,
the statement of the victim which is in para-3 of
the case diary dated 02.07.2016, she has stated
that the first incident, where Manish Tiwary
(appellant no. 2) raped her three to four months
back during the time of Holi and after a few days,
the victim stated that Hare Ram Sah (appellant no.
1) raped her while she was searching for her
brother. It is factually impossible that the incident
was reported on 01.07.2016 and the charge was
framed for the occurrence of incident dated
02.07.2016, but the ferdbeyan and the statement
of the victim itself states that the incident had
occurred three to four months before the F.I.R was
filed.
26. Thus, it is clear to us that the charges framed
are not in accordance with law and, thus, causing
prejudice to the accused persons / appellants as
mentioned in the trial court record. The framing
of charge is the most basic step of the process of
initiation of a trial in a criminal proceeding.
Utmost care must be taken while the charges are
being framed as wrong framing may lead to denial
SLP(Crl.) No. 18377/2024 Page 21 of 35
of justice. Therefore, one should abstain from
wrongful framing and joinder of charges as such
an inefficiency would vitiate the very basic
essence of a fair trial.”
26. A perusal of the charge framed by the Trial Court in this
matter reveals that the charge stated to the Respondent Nos. 1 and
2 pertained to the commission of offences “on or about the 2
nd
day of July 2016”. It is an admitted position that the date of
offence was a few days after the festival of Holi and 3-4 months
prior to the date of discovery of the offence i.e. 01.07.2016. In
fact, 2
nd July, 2016 was the date of registration of FIR and the
same has been put to the Respondent Nos. 1 and 2 as the date of
commission of the offences. We have no doubt in observing that
the charge stated to the Respondent Nos. 1 and 2 was not free
from defects. Even if the exact date of commission of the offence
was not known, the charge ought to have stated that the offences
was committed before 2
nd July 2016 and a few days after the
festival of Holi, so as to correctly state the time frame. The Trial
Court clearly fell in error in not doing so. However, the
consequence of error or defect in charge is to be determined in a
nuanced manner. Section 464 Cr.P.C. is of instructive value in
this regard and it provides that no finding, sentence or order of
any Court shall be deemed invalid merely on account of any
error, omission or irregularity in the framing of charge, unless the
SLP(Crl.) No. 18377/2024 Page 22 of 35
same has occasioned any failure of justice. Sub-section (1) of
Section 464 Cr.P.C. reads thus:
“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.”
Thus, mere discovery of an error, irregularity or omission in the
framing of charge does not ipso facto render the decision of the
Court as invalid. In fact, even a case of non-framing of charge is
not liable to be discarded on that ground alone. In order to vitiate
the decision, what is necessary is the failure of justice as a result
of such error or omission or irregularity. Thus, the quintessential
issue that requires an answer is whether the defect in the framing
of charge in the instant matter has occasioned a failure of justice
for the Respondent Nos. 1 and 2. In other words, has it prevented
the Respondent Nos. 1 and 2 from having a fair trial or has denied
them any opportunity to present a valid defence before the Trial
Court? We feel not.
27. Ordinarily, in a criminal trial, the stage of charge is
sandwiched between the stages of investigation and trial. It is the
SLP(Crl.) No. 18377/2024 Page 23 of 35
gateway to trial and prior to this stage, the stages of registration
of FIR, filing of chargesheet and arguments on charge occur.
During all these stages, the accused has a right to be informed,
and is informed, about the allegations against him and the
chargesheet finally culminates the entire case of the prosecution
and makes it clearly known to the accused persons the colour and
content of the allegations. Thus, on receipt of the chargesheet, the
Respondent Nos. 1 and 2 were conscious of the allegations.
Merely for non-statement of the correct date in the formal charge,
it could not be said that the accused persons have been robbed of
a fair trial or that failure of justice has been occasioned.
Throughout the trial, there was no confusion regarding the date
or time frame of the commission of the offence. Had there been
so, the error in charge could have been suitably corrected under
Section 216 Cr.P.C. However, the error in question did not have
the effect of misleading the Respondent Nos. 1 and 2 in any
manner during the trial. Section 215 Cr.P.C., which finds place
in the chapter of “Charge” and deals with the effect of errors, also
provides that no error in the framing of charge shall be regarded
as material, unless it has the effect of misleading the accused and
results into failure of justice. In this matter, there is no
explanation as to how the Respondent Nos. 1 and 2were misled
by the charge or had suffered any failure of justice. During their
statements under Section 313 Cr.P.C. and defence evidence as
SLP(Crl.) No. 18377/2024 Page 24 of 35
well, the allegations were fully addressed by the Respondent Nos.
1 and 2 without any confusion with respect to the time-frame of
offence. The time frame alleged by the victim was well known to
the Respondent Nos. 1 and 2 and there was no occasion for any
confusion on that count, let aside any failure of justice. The
decision relied upon by the Respondent Nos. 1 and 2, rendered
by this Court in Soundarajan v. State (Represented by the
Inspector of Police, Vigilance Anti-Corruption, Dindigul)5
, is
of no consequence in the present matter. Ironically, in the said
decision, the contention regarding failure of justice due to
defective framing of charge was turned down by the Court.
Despite finding that non-statement of correct date in the charge
had rendered the charge as defective, the Court went on to hold
that it had not occasioned any failure of justice.
28. Nevertheless, we consider it a fit matter to call upon the
Trial Courts to be vigilant and cautious in framing of charges.
The prosecutors representing the State are also duty bound to
render suitable assistance during the trial and to remain vigilant
in identifying the errors in statement of charges. For, timely
intervention is always better in a trial and the criminal procedure
provides ample provisions for rectifying the mistakes in framing
of charges during the trial itself. The identification of such
5
(2023) 16 SCC 141
SLP(Crl.) No. 18377/2024 Page 25 of 35
mistakes at appellate stages, which could have easily been
spotted and corrected during the trial, does not only affect the
finality of cases but also affects the credibility of the criminal
justice system as a whole. The Trial Court does the job of raising
the building from the scratch, brick by brick. In the performance
of this onerous task, some mistakes are quite natural. While
finding defects in the building, the Appellate Court must
carefully weigh the mistakes and analyze their consequence on
the outcome of the trial. We may suffice to observe that not every
mistake is fatal.
29. As an extension of the same discussion, we must also refer
to the next ground of contention i.e. non-compliance of Section
223 Cr.P.C. The High Court has observed that the joinder of trial
of both the Respondent Nos. 1 and 2 was impermissible and
consequently, the Respondent Nos. 1 and 2 have been prejudiced
before the Trial Court. Ordinarily, distinct offences committed by
different persons are to be tried separately. The principle
becomes clear from a reading of Section 218 Cr.P.C. However,
from Sections 219 to 223 of Cr.P.C., various situations are
envisaged wherein multiple offences committed by the same
person could be tried together or different offences committed by
different persons could be tried together. Whereas, a joint trial of
different offences committed by the same person is contingent
upon the fulfilment of the conditions envisaged in Sections 219
SLP(Crl.) No. 18377/2024 Page 26 of 35
to 221; a joint trial of different offences committed by different
persons is solely governed by Section 223. In the present case,
we are concerned with the second scenario.
30. Section 223 lays down various conditions wherein
different persons who have committed different offences could
be charged and tried jointly. Amongst other things, it provides
that the persons alleged of committing different offences, but as
a part of the same transaction, could be charged and tried jointly.
It is contended that the offences alleged upon the Respondent
Nos. 1 and 2 pertained to two completely independent acts and
thus, they could not be considered to have formed part of the
same transaction. It has also been contended that there was no
allegation qua commission of any offence jointly by the
Respondent Nos. 1 and 2. It is stated that the incidents took place
at different points of time and there was no unity between them.
The High Court has accepted this factual position. The statement
of the victim reveals that allegations pertain to two specific
instances of rape along with a general allegation that for 2-3
months, the Respondent Nos. 1 and 2 continued to rape her.
However, we cannot lose sight of the fact that there is no direct
allegation that the offences were committed together by the
Respondent Nos. 1 and 2 and on a plain view of the matter, it is
not a case wherein the principles of common intention under
Section 34 of IPC or conspiracy would be attracted. The only
SLP(Crl.) No. 18377/2024 Page 27 of 35
question is whether the offences committed by the Respondent
Nos. 1 and 2 formed part of the same transaction, so as to attract
clause (d) of Section 223 Cr.P.C., which permits joint trial of
persons accused of different offences committed in the course of
the same transaction.
31. In criminal law, the question whether certain acts and
omissions form part of the same transaction often troubles the
Courts. There is no definition of “same transaction” in the Code
and more often than not, this determination is contingent upon
the peculiar facts and circumstances of the case. To make it
judicially determinable, we have often applied the three tests of
“unity of purpose and design”, “proximity of time or place” and
“continuity of action”. Reference may be drawn to the decision
of this Court in State of Andhra Pradesh Vs. Cheemalapati
Ganeswara Rao and another6
. Let us have a look at some
admitted facts. The victim and the Respondent Nos. 1 and 2 were
residing in the same village, the house of respondent No. 2-
Manish Tiwari was situated one house away from that of the
victim, respondent No. 2-Manish had taken the victim’s father to
hospital a few days prior to the incident, respondent No. 1-Hare
Ram Sah was running a coaching center adjacent to his house and
in the same vicinity, and both the respondents threatened the
6 AIR 1963 SC 1850
SLP(Crl.) No. 18377/2024 Page 28 of 35
victim of similar consequences if she dared to disclose their acts
to anyone. Evidently, the nature of acts committed by the
Respondent Nos. 1 and 2 herein and subsequent intimidation to
keep the victim silent were of a similar design. Further, there was
a certain proximity of time and place as the incidents were
committed within a continuous time-frame and at different places
in the same village. However, it is also admitted that they never
committed the acts together and always acted separately.
Therefore, there is no direct evidence of commission of offences
in the same transaction, however, an inference may be drawn. Be
that as it may, we need not render a finding on this aspect and we
are not inclined to disturb the factual finding of the High Court.
For, even if the conclusion of the High Court, that the joint trial
was conducted in violation of Section 223 Cr.P.C., is accepted,
the Respondent Nos. 1 and 2 would still have to further show that
the joint trial had caused prejudice to them and had occasioned a
failure of justice. Mere irregular conduct of a joint or separate
trial does not vitiate the trial as a whole and the proof of failure
of justice is sine qua non for holding the trial as invalid.
32. The legal position on Section 223 could not be termed as
res integra, especially in light of the pronouncement in Nasib
SLP(Crl.) No. 18377/2024 Page 29 of 35
Singh v. State of Punjab and another7
, also relied upon by the
High Court. The relevant extract of the decision reads thus:
“51. From the decisions of this Court on joint trial
and separate trials, the following principles can
be formulated:
51.1 Section 218 provides that separate trials
shall be conducted for distinct offences alleged to
be committed by a person. Sections 219 - 221
provide exceptions to this general rule. If a person
falls under these exceptions, then a joint trial for
the offences which a person is charged with may
be conducted. Similarly, under Section 223, a joint
trial may be held for persons charged with
different offences if any of the clauses in the
provision are separately or on a combination
satisfied;
51.2 While applying the principles
enunciated in Sections 218 - 223 on conducting
joint and separate trials, the trial court should
apply a two-pronged test, namely, (i) whether
conducting a joint/separate trial will prejudice the
defence of the accused; and/or (ii) whether
conducting a joint/separate trial would cause
judicial delay.
51.3 The possibility of conducting a joint trial
will have to be determined at the beginning of the
trial and not after the trial based on the result of
the trial. The Appellate Court may determine the
validity of the argument that there ought to have
been a separate/joint trial only based on whether
7 2021 INSC 642
SLP(Crl.) No. 18377/2024 Page 30 of 35
the trial had prejudiced the right of accused or the
prosecutrix;
51.4 Since the provisions which engraft an
exception use the phrase ‘may’ with reference to
conducting a joint trial, a separate trial is usually
not contrary to law even if a joint trial could be
conducted, unless proven to cause a miscarriage
of justice; and
51.5 A conviction or acquittal of the accused
cannot be set aside on the mere ground that there
was a possibility of a joint or a separate trial. To
set aside the order of conviction or acquittal, it
must be proved that the rights of the parties were
prejudiced because of the joint or separate trial,
as the case may be.”
(emphasis supplied)
33. On a reading of the provision as well as the exposition
reproduced above, it is discernible that when a ground of nonjoinder or misjoinder of charges/trial is taken before an Appellate
Court, the test to be applied is whether such non-joinder or
misjoinder has resulted into a failure or miscarriage of justice and
has prejudiced the accused. It is not enough for the Appellate
Court to merely hold that the Trial Court ought to have tried
certain persons jointly or separately in the facts and
circumstances of the case. That is where the High Court has
clearly fell in error in the present case.
SLP(Crl.) No. 18377/2024 Page 31 of 35
34. In its appellate capacity, the High Court was required to
address two aspects – first, whether the Respondent Nos. 1 and 2
ought to have been tried separately and second, whether the
misjoinder of trials had caused prejudice to the Respondent Nos.
1 and 2 and resulted in failure of justice. We are afraid, the High
Court restricted itself to the first aspect and did not deal with the
second aspect in the manner required by law. On the first aspect,
as already expressed above, we refrain from disturbing the factual
finding rendered by the High Court that the offences were not
committed in the same transaction. We feel that both views
appear to be possible on that aspect and therefore, we do not
consider it necessary to disturb the finding. On the second aspect,
which is more important, the observation of the High Court reads
thus:
“33. Considering the above provision of the Code,
the present case of the appellants is nowhere
applicable for joint trial and learned trial Court
has convicted both the accused persons through a
joint trial. For a joint trial to be conducted for two
persons committing an offence at different place
and at different time, the trial Court shall mention
this on record or an application should be moved
for conducting a joint trial, and the learned Trial
Court shall apply a judicial mind while
considering the matter, and the Judicial Officer
while performing the duties shall make sure that
the procedure prescribed in the Code is followed
and no prejudice be caused to any person. But, in
the present case, on perusal of the entire record,
SLP(Crl.) No. 18377/2024 Page 32 of 35
no such application or mention of conducting joint
trial has been brought on record. This causes a
great prejudice on the accused persons as the
victim herself states in para-30 of her deposition
that both the appellants raped her at different
time at different places and they never raped her
together …”
(emphasis supplied)
35. It could be seen that the sole basis of the High Court’s
reasoning in arriving at a finding of prejudice in the impugned
decision is that a joint trial was not permissible. The finding is
unsustainable and in fact, there is no finding of actual prejudice
or failure of justice as a result of the joint trial, as necessitated by
law. As noted above, the High Court ought to have analyzed the
facts of the case to return a finding of actual prejudice. Mere noncompliance of the procedure contemplated under Section 223
does not ipso facto render the trial as invalid, and the same cannot
form the basis of returning a finding of prejudice and failure of
justice. The said conclusion must emanate from the facts of the
case, after a thorough examination of the facts and evidence on
record. It is not a case wherein the joint trial precluded the
Respondent Nos. 1 and 2 from presenting a valid defence. It is
also not a case wherein separate evidence of the prosecution
witnesses could have made any difference to the end result. There
is no explanation as to how separate trials could have made any
SLP(Crl.) No. 18377/2024 Page 33 of 35
difference to the outcome of the case, except causing harassment
to the victim by compelling her to face her offenders twice in the
witness box for explaining the same version. Thus, we are of the
considered view that the joint trial of the Respondent Nos. 1 and
2 did not cause any prejudice to them and no case for failure of
justice, on account of the said irregularity, appears to be made
out.
36. Before closing, we deem it fit to observe that noticeably,
the principle of beyond reasonable doubt has been misunderstood
to mean any and every doubt in the case of the prosecution. Often,
we come across cases wherein loose acquittals are recorded on
the basis of minor inconsistencies, contradictions and
deficiencies, by elevating them to the standard of reasonable
doubts. A reasonable doubt is one that renders the version of the
prosecution as improbable, and leads the Court to believe in the
existence and probability of an alternate version of the facts. It is
a serious doubt which must be backed by reason. The underlying
foundation of the principle of beyond reasonable doubt is that no
innocent should face punishment for a crime that he has not done.
But a flipside of the same, of which we are conscious, is that at
times, owing to a mis-application of this principle, actual culprits
manage to find their way out of the clutches of law. Such
misapplication of this principle, resulting into culprits walking
free by taking benefit of doubt, is equally dangerous for the
SLP(Crl.) No. 18377/2024 Page 34 of 35
society. Every instance of acquittal of an actual culprit revolt
against the sense of security of the society and acts as a blot on
the criminal justice system. Therefore, not only should no
innocent face punishment for something that he has not done, but
equally, no culprit should manage an acquittal on the basis of
unreasonable doubts and misapplication of procedure.
37. In the present case, a fairly consistent and creditworthy
case of the prosecution has been discarded on what could only be
termed as misapplication of procedure. It takes us back to the first
principle that procedure is not supposed to control justice.
38. In view of the foregoing discussion, we are of the
considered view that the impugned judgment is liable to be set
aside being unsustainable. The view taken by the Trial Court was
correct and we find no infirmity in the same. The judgment of the
Trial Court stands restored, both on conviction and sentence.
39. The Respondent Nos. 1 and 2 shall surrender before the
trial court within a period of two weeks from today. In case the
Respondent Nos. 1 and 2 do not surrender within the stipulated
time, the trial court shall take appropriate recourse to take them
into custody for serving the remaining part of sentence. Registry
is directed to suitably communicate this judgment to ensure due
compliance.
SLP(Crl.) No. 18377/2024 Page 35 of 35
40. The captioned appeal stands disposed of in the aforesaid
terms. Interim application(s), if any, shall also stand disposed of.
……………………………….J.
[ SANJAY KUMAR ]
……………………………….J.
[ SATISH CHANDRA SHARMA ]
NEW DELHI
SEPTEMBER 01, 2025
