A conviction under Section 376(1) of the IPC is valid even if the specific charge was not framed, provided the accused was made aware of the substantive accusation and no prejudice was caused to their defense, consistent with the principle that procedural technicalities should not override substantive justice.

JUDGMENT Meenakshi Madan Rai, J.

1. The questions that fall for determination before this Court are, (i) whether the Appellant perpetrated sexual assault on the victim; (ii) whether such act could be described as a sexual assault; or (iii) whether it was consensual.

2. On 07-02-2022, Exbt 1, the FIR, was lodged by PW-1, the sister-in-law of the victim PW-2, informing the jurisdictional Police Station that, the Appellant had raped the victim on the same day, at about 01.22 p.m. She witnessed the incident while returning after completing an errand. On the basis of the FIR, the concerned PS registered the case against the Appellant, under Section 376 of the Indian Penal Code, 1860 (hereinafter, “IPC”) and endorsed it for investigation to PW-7. Charge-Sheet was filed against the Appellant under Section 376 of the IPC.

(i) The Learned Trial Court proceeded to frame Charge against the Appellant under Section 376(2)(j) for raping a specially- abled person who was unable to give her consent. The second Charge was under Section 376(2)(l) for raping a person who suffers from mental or physical disability and thirdly, for committing the offence repeatedly on the same woman under Section 376(2)(n) of the IPC. The Appellant having understood the Charge, entered a plea of “not guilty” and claimed trial. The Prosecution examined seven witnesses, which included the Investigating Officer (I.O.) of the case. The closure of the evidence led to the examination of the Appellant under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”), affording him an opportunity to explain the incriminating evidence appearing against him. While claiming innocence, he asserted ignorance of the incident and stated that he did not rape the victim.

(ii) The final arguments of the opposing parties were heard. The Trial Court on consideration and appreciation of the evidence on record came to a finding that, the Prosecution had proved its case beyond reasonable doubt under Section 376(1) of the IPC. While doing so, the Court reasoned that although no Charge had been framed under Section 376(1) of the IPC, against the Appellant, but he was aware of the basic ingredients of the Charge. As regards the Charges under Sections 376(2)(j), 376(2)(l) and 376(2)(n) of the IPC, the Trial Court opined that no credible evidence was adduced by the Prosecution, leading to the Appellant’s acquittal of the said Charges.

3. Learned Counsel for the Appellant contended that in fact no such act of sexual intercourse took place between the Appellant and the victim. However, if indeed such an act did take place it was entirely consensual. Learned Counsel raised doubts about the date of offence and argued that the Prosecution has failed to establish the correct date of the offence. PW-1 in her FIR mentioned that, the offence took place on 07-02-2022 but the victim PW-2, during her medical examination told the Doctor that the offence took place on 06-02-2022, at 3 p.m. The date and time of the offence are contradictory in the evidence of PW-1 and PW-2. Although an abrasion was detected in the labia minora of the victim but the age of the injury was not discerned. Considering the age difference between the Appellant who was fifty-five years and the victim aged thirty-five years, she could well have defended herself, being younger and presumably physically stronger. The FIR was not scribed by PW-1, but the scribe was not examined for verification. The victim did not raise any hue and cry when the Appellant allegedly disrobed her, and since she was in a state of total nudity it implied her consent. Her Section 164 Cr.P.C. statement reveals that she was not aggrieved by the incident. Hence, the impugned J