The High Court allowed the criminal appeal filed by Appellant against his conviction and life imprisonment under Section 376(3) of the Indian Penal Code, 1860 (IPC) for alleged rape of a minor. The Court found fundamental procedural defects as the Trial Court had framed charge under Section 376(2)(i) of IPC which had been deleted by amendment in 2018, making it a non-existent provision. The conviction was recorded under this deleted provision while sentence was imposed under Section 376(3)- No prejudice caused to accused-- Conviction altered-- Appeal disposed of
Criminal Law-- Indian Penal Code, 1860-- Sections 376(3),376(2)(i) &(n)-- Protection of children from sexual offences Act, 2012(POCSO)-- Sections 5(1) and 6-- Rape on minor girl aged 13 years-- Complaint-- Conviction-- Appeal against conviction preferred by convict/accused-- Contention raised by appellant side that the error committed by trial court in framing of charge u/s 376(2)(i) of IPC which is already deleted in 2018-- Contentions of fundamental procedural defect and also challeged on other counts-- Once the judicial conscience of the court is satisfied that the evidence of the prosecution inspire confidence, further corroboration of not require-- Testimony of victim found believable-- Prosecution proved that the age of victim was 13 years at relevant time-- Consent of victim irrelevant-- Mother of victim and headmistress supported the case of prosecution-- Medical evidence sufficiently corroborate the victim's version-- Ocular evidence always prevails over medical evidence-- Clear evidence as to victim was confined by accused- Cases referred-- No prejudice caused to the appellant even on count of error in framing of charge-- Awarness on the part of appellant about ingredients of offence-- No prejudice caused to the appellant -- Ingredients of offence is same-- Proper appreciation of evidence-- No benefit to appellant for his contention as to technical error in framing of charge as no prejudice caused to him-- Conviction altered to u/s 376(3) of IPC- Conviction under POCSO maintained-- Appeal disposed of
Para-- 35, 37, 38, 39, 43, 44, 49, 52, 54, 61 and 62
The High Court allowed the appeal, set aside the conviction and sentence imposed by the Trial Court, and acquitted the appellant
Citation: 2026 LawText (BOM) (01) 71
Case Number: Criminal Appeal No. 1133 of 2023
Date of Decision: 2026-01-19
Case Title: The Issue of consideration was whether the conviction under Section 376(3) of the Indian Penal Code, 1860 (IPC) was sustainable given procedural defects in charge framing and evidentiary inconsistencies
Before Judge: Manish Pitale J. , Manjusha Deshpande J.
Equivalent Citations: 2026:BHC-AS:2309-DB
Advocate(s): Mr. Tapan Thatte a/w. Mr. Vivek Arote and Mr. Akshay Dingale, i/b. Mr. Dayanand Mane for appellant, Dr. Dhanalakshmi S. Krishnaiyer, APP for respondent No.1-State, Ms. P.S. Potdar (appointed through legal aid) for respondent No.2
Appellant: Ramesh Dada Kalel
Respondent: The State of Maharashtra and another
Nature of Litigation: Criminal appeal against conviction and sentence for rape of a minor
Remedy Sought: Appellant sought setting aside of conviction and sentence imposed by Trial Court
Filing Reason: Appellant aggrieved by judgment dated 29.08.2023 convicting him under Section 376(3) of IPC and sentencing to life imprisonment
Previous Decisions: Trial Court convicted appellant under Section 376(2)(i) of IPC (deleted provision) and sentenced under Section 376(3) of IPC
Issues: Whether conviction under Section 376(3) of IPC was sustainable given procedural defects in charge framing Whether evidence of prosecution witnesses was sufficient to prove case beyond reasonable doubt
Submissions/Arguments: Charge was framed under Section 376(2)(i) of IPC which was deleted by 2018 amendment Conviction was recorded under non-existent provision while sentence imposed under Section 376(3) Evidence of victim (PW4) showed inconsistencies regarding medical routine and school timings Evidence was not of sterling quality and required corroboration Procedural defect caused grave prejudice to appellant
Ratio Decidendi: Conviction under a non-existent provision of law is unsustainable, Procedural defects causing grave prejudice vitiate the trial, Evidence of prosecutrix must be of sterling quality for conviction without corroboration
Judgment Excerpts: The appellant claims that at the stage of framing of charge itself, a fundamental defect had arisen, as clause (i) of sub-section 2 of Section 376 of the IPC, had been already deleted by an amendment in the year 2018 It is the case of the appellant that while the conviction was, amongst other provisions, under Section 376(2)(i) of the IPC, which did not exist on the statute book, the sentence was imposed under Section 376(3) of the IPC It was submitted that although as per settled law, the evidence of the victim i.e. the prosecutrix can be enough for convicting the accused for the offence of rape, such an evidence has to be of sterling quality The learned counsel for the appellant contended that there was glaring contradiction in the victim's evidence, as she claimed that she used to return home during the school timings to take medicines as a usual practice, whereas, in the cross-examination, she conceded that it was a one-time act
Procedural History: FIR registered on 30.10.2018 -- Investigation completed -- Chargesheet filed -- Charge framed under Section 376(2)(i) of IPC and Section 5(l) of POCSO Act -- Trial conducted -- 11 prosecution witnesses examined -- Statement under Section 313 of CrPC recorded -- Judgment dated 29.08.2023 convicting appellant -- Appeal filed before High Court
