Bombay High Court Dismisses Appeals Against Conviction for Rape of a Three-Year-Old Girl Under Section 376(f) IPC and Section 34. The Court Held That Non-Examination of the Infant Victim and Mother Was Not Fatal Due to Credible Eye-Witness Account, and Charging Under Section 376(f) Instead of Gang Rape Provision Did Not Cause a Failure of Justice.

Criminal appeals against conviction for rape of a minor girl.

Appellants sought to set aside their conviction and sentence.

The appellants were convicted under Section 376(f) read with Section 34 IPC and sentenced to 10 years rigorous imprisonment; they challenged the conviction on grounds of incorrect charge, non-examination of material witnesses, and insufficiency of evidence.

The trial court convicted both appellants on 10th February 2012 in Sessions Case No. 489 of 2010.

Whether conviction under Section 376(f) with Section 34 IPC is sustainable when the evidence suggests gang rape under Section 376(2)(g)? Whether non-examination of the infant victim and her mother vitiates the trial? Whether the evidence on record is sufficient to prove guilt beyond reasonable doubt?

Appellants contended that the conviction under Section 376(f) with Section 34 was illegal as the facts constituted gang rape under Section 376(2)(g); non-examination of the victim's mother and other independent witnesses rendered the prosecution case doubtful; and the eye-witness was partisan. The State argued that no failure of justice resulted from the error in the charge, relying on Sections 215 and 464 CrPC and Dalbir Singh case; the eye-witness testimony was credible; and minor contradictions were immaterial given the nature of the offence.

In sexual assault cases involving minors, the testimony of an eye-witness, even if acquainted with the victim's family, can form the sole basis for conviction if found credible; non-examination of the victim child due to infancy is not fatal. An error in the charge under Section 376(f) instead of Section 376(2)(g) does not vitiate the trial if the accused were aware of the basic ingredients and no failure of justice is caused, as per Sections 215 and 464 CrPC. Minor inconsistencies in such cases are to be overlooked if the evidence otherwise establishes guilt.

The prosecution has not examined the minor girl victim of the crime in question, probably because, according to its case, she was just 3 years old, when the incident in question took place. Section 118 of the Evidence Act recognizes infancy and consequent inability to understand the question and give rational answers. ... Non examination of such infant victim by the prosecution is of no consequence, if ultimately by other trustworthy evidence the prosecution is successful in establishing the offence. (Para 6) If evidence on record points out guilt of the accused in such offence, minor contradictions and inconsistencies are required to be overlooked. (Para 5) Thus, I see no reason to disbelieve version of PW4 Masihuljama Qureshi about the incident in question. (Para 8)

On 14 April 2010, FIR was lodged by the father of the victim, Crime No. 175 of 2010 was registered under Section 376(f) read with 34 IPC. After investigation, chargesheet was filed. The trial court framed charge under Section 376(f) read with 34 IPC. The prosecution examined eight witnesses. By judgment dated 10 February 2012, the trial court convicted both appellants and sentenced them to rigorous imprisonment for 10 years and fine of Rs.5,000/-. The appellants filed criminal appeals before the High Court challenging the conviction.

• Indian Penal Code, 1860: 376(f), 34, 376(2)(g)
• Code of Criminal Procedure, 1973: 215, 464
• Indian Evidence Act, 1872: 118