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.

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).

• 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

1. Whether the High Court erred in acquitting by holding prosecution evidence was inconsistent/contradictory.

2. Whether non-compliance with Section 223 Cr.P.C. (joinder of trial) caused prejudice/failure of justice.

Key holdings / ratio (with pointers)

1. 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)

2. 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)

3. Delay in FIR explained. Delay explained by intimidation and fear raised by accused; FIR lodged immediately after discovery of pregnancy. (Para 21)

4. 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)

5. 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)

6. 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)

7. 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

• High Court judgment of acquittal set aside. Trial Court judgment of conviction and sentence restored.

• 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