Delhi High Court
Rekha vs State Govt. Of Nct Of Delhi & Ors. on 4 January, 2016
Author: Suresh Kait
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 04th January, 2016
+ CRL.M.C. No.9/2016
REKHA
..... Petitioner
Represented by: Mr.Puneet Yadav and
Mr.Akshay Raj Verma,
Advs.
versus
STATE GOVT. OF NCT OF DELHI & ORS.
..... Respondents
Represented by: Mr.Kamal Kumar Ghei, APP
for the State with SI Ram
Pratap Meena, PS Rajinder
Nagar, Delhi in person.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl. M.A.No.40/2016 (for exemption)
Exemptions allowed, subject to all just exceptions.
Accordingly, the application is allowed.
CRL.M.C. No.9/2016
1. By way of this petition filed under Section 482 of the Code of
Criminal Procedure, 1973, petitioner has assailed the order dated
08.12.2015 passed in Criminal Revision Petition no.26/2015 by learned
Special Judge, CBI-03, (PC Act), Tis Hazari Courts, Delhi thereby
dismissed the said petition filed by petitioner.
2. Initially, the petitioner moved an application for amendment of
charge which came up for hearing on 09.09.2015 before learned Trial
Court and was dismissed. Being aggrieved, the petitioner filed
aforementioned Revision Petition and resulted with same fate.
3. Learned counsel appearing on behalf of petitioner submits that the
petitioner made a complaint against respondent No.2 that he had
intentionally and deliberately got aborted the child of the complainant, but
in the FIR, the Sections relating to that offences were not added. It is also
submitted that complainant had contended said fact in the complaint
before the CAW Cell and despite the material on record, charge under
Section 313 of the IPC has not been framed against the respondent No.2.
4. Further submits that there were specific allegations against the
respondent No.2 that marriage between petitioner and respondent No.2
was solemnised according to the Hindu rites and customs on 29.05.2001.
After the marriage she was brought to matrimonial home at Gandhidham
Gujarat and stayed there for three months and cohabited as husband and
wife. Thereafter, the petitioner and her husband shifted to Vidya Nagar,
Anand, Gujarat and after a few months, she became pregnant. She was
called by her husband to the hospital and he told that it was just check-up
and she believed him accordingly. The doctor over there gave an
injection and she felt asleep and became unconscious. When she regained
her consciousness, she went home with respondent no. 2 and his parents.
She was completely shocked and physically weak. She asked them as to
why they killed her baby. There was no response from their side.
5. It is not in dispute that the provisions of Section 216 of the Cr. PC.
applies to all Courts. Alteration in charge must be done on the basis of
the some evidence on record. Power to alter charge should be exercised
with caution. The power to add to, or alter, a charge under Section 216 of
the Cr P C cannot be exercised unless there is evidence on record to
support the addition or alteration.
6. It is also not in dispute that in the complaint which is Ex.PW1/B on
the basis of which the Rukka was prepared and the FIR bearing
No.85/2007 was registered at police station Rajinder Nagar, Delhi for the
offences punishable under Sections 498A/406 of the IPC finds the
allegations relating to miscarriage. However, charge under Section 313 of
the IPC was not framed by learned Trial Court on 01.06.2010. After the
conclusion of prosecution evidence, when the matter was listed for
defence evidence, the application for amendment of the charge under
Section 216 of the Cr P C was moved on behalf of petitioner, which was
dismissed vide order dated 09.09.2015 by learned Trial Court.
7. It cannot be disputed that there were allegations in the initial
complaint regarding the fact that husband of petitioner had taken her to
hospital for check up after she became pregnant. There, doctor gave
injection and she asleep and became unconscious. However, the fact
remains that neither the name of hospital nor the doctor were mentioned
in the said complaint. In fact in her cross-examination as PW1 on
12.09.2011, she deposed that she does not remember the name of the
doctor and hospital where her abortion was done. She disclosed said fact
to her parents after 11 months of abortion, when she came back to Delhi.
Even in her testimony recorded on 12.09.2011 during cross-examination,
she cannot spell out the date, month and place as well as the name of
doctor or the hospital where her abortion was done.
8. It can be believed that that at the time of making of complaint, the
complainant was mentally disturbed and she could not mention the above
facts in the complaint, however when she was tested at the floor of the
witness box, she failed to disclose the date, month and name of the doctor
and hospital. In view of that if the charge under Section 313 of the IPC is
framed against respondent No.2 that will not change the fate of the case
because no evidence would come on record against respondents.
Accordingly, the entire allegations made by the petitioner falls in the
realm of vagueness and uncertainty and it would not be proper to amend
the charge at this stage, when the statements of accused persons under
Section 313 Cr.P.C. have already been recorded and matter is listed for
final arguments.
9. Accordingly, in view of the facts recorded above, I am of the
considered opinion that two Courts below have passed the proper orders
in the facts of the case. There is no illegality or perversity in the said
orders.
10. Consequently, finding no merits in the instant petition, same is
hereby dismissed with no order as to cost.
Crl.M.A.No.41/2016(for Stay)
Dismissed as infructuous.
SURESH KAIT
(JUDGE)
JANUARY 04, 2016
M/jg
