Supreme Court of India· 10 September 2026

Can an accused charged under Section 3 of the POCSO Act be convicted under Section 376 IPC where minority is not proved?

PYNCHEMALANGAKI BAREH v. STATE OF MEGHALAYA

2026 INSC 984 · CRIMINAL APPEAL NO. 4337 OF 2026
Coram: Justice Prashant Kumar Mishra · Justice N.V. Anjaria

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Answer

An accused charged under Section 3 of the POCSO Act can be convicted under Section 376 IPC where minority is not proved.

Yes. Section 375 IPC and Section 3 of the POCSO Act share the same actus reus, so an accused who had an adequate opportunity to defend against the Section 3 charge can be convicted under Section 376 IPC even in the absence of a charge, as no failure of justice is occasioned. Here the factum of rape was established by medical evidence, so the conviction under Section 4 of the POCSO Act failed but Section 376 IPC sustained.

Headnote

Juvenile Justice (Care and Protection of Children) Act, 2015 — s.94 — Protection of Children from Sexual Offences Act, 2012 — ss.3, 4 — Indian Penal Code, 1860 — s.376 — Code of Criminal Procedure, 1973 — s.464 — Age Of Victim — Baptismal Certificate — Omission To Frame Charge — Juvenile Justice (Care and Protection of Children) Act, 2015 — s.94 — Baptismal Certificate Not Prescribed Document — Held: Where the age of a victim under the POCSO Act is in dispute, courts have to take recourse to Section 94 of the JJ Act. A Baptismal Certificate is not a document prescribed there, even if the mother's deposition corroborates it. (¶36, 38) Code of Criminal Procedure, 1973 — s.464 — Omission To Frame Charge Under s.376 IPC — Failure Of Justice — Held further: An omission to frame a charge under Section 376 IPC does not bar conviction where the accused knew the ingredients, had the main facts explained and a fair chance to defend, and no failure of justice was occasioned. (¶44, 54) Indian Penal Code, 1860 — s.376 — POCSO Act, 2012 — s.4 — Minority Not Proved — Conviction Altered — Held further: Where minority is not proved but rape is established, the charge under Section 4 of the POCSO Act fails and Section 376 IPC sustains. The Appellate Court may alter the finding and sentence. Appeal partly allowed. (¶44, 45, 58)

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In the Court's own words

Paragraph 44On a perusal of Section 375 of the IPC and Section 3 of the POCSO Act, the actus reus mentioned, for constituting rape is the same as the actus reus specified in cases of commission of penetrative sexual assault within the meaning of Section 3 of the POCSO Act. The only distinguishing feature between Section 375 of the IPC and Section 3 of the POCSO Act is the minority of the victim, which determines the charge of offence under Section 376 of the IPC and/or under Section 4 of the POCSO Act. In such a case, where the victim is a minor, the accused is usually tried for prosecution of a charge under Section 376 of the IPC in addition to charge under Section 4 of the POCSO Act. However, where the Trial Court erred in framing a charge under Section 376 of the IPC but factum of rape is clearly proven, and prosecution failed to establish the age of the victim, charge under Section 4 of the POCSO Act fails, while prosecution for charge under Section 376 of the IPC sustains. However, in cases where charge under Section 376 of the IPC has not been framed, nothing impairs the Appellate Court to proceed on examination of commission of offence under Section 376 of the IPC by the accused.

Paragraph 50When the accused has been given an opportunity to defend himself against an offence under Section 3 of the POCSO Act, being of the same nature as offence under Section 376 of the IPC, there is no hesitation in holding that in event of prosecution’s failure to prove victim’s minority, there would be no failure of justice in proceeding against him under a charge of Section 376 of the IPC.

Paragraph 51Hence, even in the absence of charge under Section 376 of the IPC, the accused can be convicted under the same where the ingredients are the same as under Section 3 of the POCSO Act, and the accused has been given an opportunity to defend himself against the same. This Court in Rafiq Ahmad (supra) held:

Acts & Sections

s.94 Juvenile Justice (Care and Protection of Children) Act, 2015s.3 Protection of Children from Sexual Offences Act, 2012s.4 Protection of Children from Sexual Offences Act, 2012s.376 Indian Penal Code, 1860s.506 Indian Penal Code, 1860s.464 Code of Criminal Procedure, 1973s.222 Code of Criminal Procedure, 1973s.386 Code of Criminal Procedure, 1973

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Also decided in this judgment

Can a Baptismal Certificate prove a POCSO victim's age under Section 94 of the JJ Act?Can an Appellate Court convict for an offence for which no charge was framed, without a failure of justice?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections