Deepu And 2 Other vs State Of U.P..And Another
2022 Latest Caselaw 19543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 88
 

 
Case :- APPLICATION U/S 482 No. - 22158 of 2021
 

 
Applicant :- Deepu And 2 Other
 
Opposite Party :- State Of U.P..And Another
 
Counsel for Applicant :- Santosh Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Heard learned counsel for the applicants and learned A.G.A. for the State and perused the record.

This application under Section 482 Cr.P.C. is filed to set aside the order dated 08.01.2021 passed by Additional District and Sessions Judge, Court No.14/POCSO Act, Kanpur Dehat in S.T. No.07 of 2015 (State Versus Deepu and others) arising out of Case Crime No.94 of 2014 under Sections 376-D I.P.C., Police Station Gajner, District Kanpur Dehat.

The applicants are accused in the aforesaid sessions trial. On the basis of charge-sheet trial commenced and on 25.06.2015 charges under Sections 363, 366, 376, 506 I.P.C. and 4 of Protection of Children From Sexual Offences Act were framed against the applicants. During the course of evidence an application dated 10.01.2020 was moved on behalf of the prosecution to amend the charge. Learned trial court by the impugned order dated 08.01.2021 has allowed the aforesaid application and has amended the charge, by framing charge under Section 376-D I.P.C. also.

Learned counsel for the applicants has contended that in the statement of the victim recorded under Section 164 Cr.P.C. she has alleged that only Deepu has committed rape with her while other two accused, Balbir and Indal only tried to commit rape. So no offence under Section 376 I.P.C. is made out against the applicants no.2 and 3 but the trial court has framed charge under Section 376-D I.P.C. It is further contended that the charge has been amended after recording the statement of victim PW-1. In her statement she has reiterated the version mentioned in the statement under Section 164 Cr.P.C. So, there is no sufficient or cogent reason to amend the charge.

Learned A.G.A. opposed the prayer and contended that ingredients of offence under Section 376-D I.P.C. are made out against the applicants and the charge can be amended at any stage of trial. There is no illegality in the impugned order.

The provision of Section 376-D I.P.C. is as below:

"376D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:"

Every person who is a member of gang is liable of the offence under Section 376-D I.P.C.

The provision of Section 216 of Code of Criminal Procedure is quoted below:

"216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused."

Thus, the court is empowered to alter or amend the charge at any stage in view of provisions of Section 216 Cr.P.C.

Learned trial court on the basis of material on record has held that charge is to be amended as offence of Section 376-D I.P.C. is made out against the applicants and has framed amended charge accordingly. So there is no illegality in the impugned order.

The application under Section 482 Cr.P.C. is devoid of merits and is hereby dismissed.

Order Date :- 2.12.2022

MN/-