Rape -- Failure to Prove Age of Victim Under POCSO -- Conviction under IPC still sustains if rape is proved
(i) Indian Penal Code, 1860, S.376 -- Rape -- Failure to Prove Age of Victim Under POCSO -- Failure of prosecution to prove age of victim as required for an offence under Section 3 of POCSO Act does not absolve accused of liability for rape. Since offence under Section 376 IPC shares the same ingredients as offence under Section 3 of POCSO Act, accused already defending against the POCSO charge can be convicted under Section 376 IPC even without a separate charge, once commission of rape stands proved. (ii) Criminal Procedure Code, 1973, S.464 -- Charge -- Omission to Frame Charge Under S.376 IPC -- Omission of trial court to frame a charge under Section 376 IPC, in the alternative to a POCSO charge, does not by itself invalidate a conviction under that section. Such irregularity is curable and does not vitiate the trial unless it has actually occasioned a failure of justice to the accused.
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