Baptismal certificate fails Section 94 test, POCSO conviction altered to rape under IPC
A Supreme Court division bench held a baptismal certificate does not prove a POCSO victim’s age under Section 94 of the JJ Act, but altered the conviction to rape under Section 376 IPC.
The Supreme Court has held that a baptismal certificate issued by a church authority cannot, by itself, prove the age of a victim under the Protection of Children from Sexual Offences Act. Because the prosecution did not produce a school or municipal birth record or conduct any medical age test, the Court found the victim’s minority was not established as required by Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Yet the appellant did not walk free. Finding the fact of rape proven through medical and forensic evidence, the bench of Justice Prashant Kumar Mishra and Justice N.V. Anjaria used Section 464 CrPC to convict the appellant under Section 376 IPC despite no charge having been framed under that section. His twenty-year sentence under the POCSO Act was reduced to ten years’ rigorous imprisonment under the IPC.
How the appeal reached the Court
The appellant, Pynchemalangaki Bareh, was convicted by the Special Judge (POCSO), Meghalaya, on 16 June 2021 for offences under Section 3(a) of the POCSO Act, punishable under Section 4, and under Section 506 IPC. He was sentenced to twenty years’ rigorous imprisonment with a fine of Rs. 5,000 under the POCSO Act, and two years under Section 506 IPC.
The FIR, lodged on 27 November 2019 by the victim’s mother (P.W.-2), alleged that on 26 November 2019 her 13-year-old daughter was raped at Mokoidaling, Sutnga. The prosecution examined 14 witnesses and exhibited 11 material exhibits, along with a baptismal certificate marked as a paper mark. The High Court of Meghalaya at Shillong dismissed the appellant’s appeal on 8 July 2024, prompting the present appeal.
Why the baptismal certificate did not prove age
The defence argued that the victim’s age had not been proved as Section 94 of the JJ Act requires. It pointed out that the prosecution relied solely on a baptismal certificate dated 18 September 2016, without examining the church minister or any proof of how the recorded date of birth was arrived at. No ossification or other medical age test was conducted.
The Court traced the settled position through Jarnail Singh v. State of Haryana, State of Madhya Pradesh v. Anoop Singh and P. Yuvaprakash v. State. Section 94(2) sets an order of preference: a date of birth certificate from the school or matriculation certificate first; then a birth certificate from a corporation, municipal authority or panchayat; and only in their absence, an ossification or other medical age test.
Here, the investigating officer obtained none of these documents, and the victim was not sent for any age determination test. Although the mother’s deposition corroborated the date of birth of 5 March 2006, the Court held the baptismal certificate was not a document prescribed under Section 94.
The State relied on Luis Caetano Viegas v. Estrelina Mariana R.M.A Da’Costa to support the certificate. The Court distinguished it: that case concerned inventory proceedings for partition, and there a birth certificate had also been issued and proved, so it did not rest on baptism records alone. It held the decision inapplicable to the statutory scheme governing proof of a POCSO victim’s age.
On this issue, the Court concluded that the prosecution failed to prove the victim’s age in the manner required by Section 94, so the charge under Section 4 of the POCSO Act could not be sustained.
Conviction under Section 376 IPC without a charge
Having found minority unproven, the Court turned to whether the appellant could still be held guilty of rape under Section 376 IPC, given that the Trial Court had framed no such charge. It observed that the Trial Court ought to have framed a charge under Section 376 IPC in the alternative to Section 4 of the POCSO Act.
Under Section 464(1) CrPC, an omission to frame a charge does not invalidate a finding unless it occasions a failure of justice. The Court noted that the actus reus of rape under Section 375 IPC and penetrative sexual assault under Section 3 of the POCSO Act is the same, the only distinguishing feature being the victim’s minority.
Relying on Sandeep Yadav v. Satish, Rafiq Ahmad alias Rafi v. State of Uttar Pradesh, Shamnsaheb M. Multtani v. State of Karnataka and Section 222 CrPC, the Court held that a person charged with a graver offence may be convicted of a cognate lesser offence sharing the same ingredients. It found the appellant had a fair opportunity to defend himself against the Section 3 POCSO charge, so there was no failure of justice in convicting him under Section 376 IPC.
The Court set out the test drawn from Dalbir Singh v. State of U.P.: conviction is possible if the accused knew the basic ingredients of the offence, the main facts were clearly explained to him, and he got a fair chance to defend himself. It also cited the Constitution Bench in Willie (William) Slaney v. State of Madhya Pradesh on curable procedural errors.
The evidence of rape
On the fact of rape, the Court relied on the Test Identification Parade of 13 December 2019, where the victim identified the appellant on all three rounds. The doctor (P.W.-11) who examined the appellant found a cut injury on his left forehead, consistent with the victim’s account that she struck him with a stone.
The FSL established the appellant’s blood group on the victim’s jacket, pant and underwear, and a seminal stain on the appellant’s underwear. The clinical findings recorded “Hymen torn, partial penile, penetration of the vagina.” The victim’s statement under Section 164 CrPC established the sexual intercourse.
Citing Sucha Singh v. State of Punjab, the Court said an exaggerated devotion to the benefit of doubt must not destroy social defence, adding that letting the guilty escape is not doing justice to a rape victim.
Order
The Court partly allowed the appeal. It modified the judgments of the High Court dated 8 July 2024 and the Special Judge (POCSO) dated 16 June 2021, convicting the appellant under Section 376 IPC in addition to the confirmed conviction under Section 506 IPC.
The appellant was sentenced to ten years’ rigorous imprisonment with a fine of Rs. 10,000 under Section 376 IPC, in default of which he would undergo an additional six months’ rigorous imprisonment. The conviction and sentence under Section 506 IPC were confirmed.