Saddam Hussain @ Daddam Hussain vs The State Of Bihar
2023 Latest Caselaw 5575 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.406 of 2021
    Arising Out of PS. Case No.-31 Year-2019 Thana- BETTIAH CITY District- West
                                      Champaran
======================================================

Saddam Hussain @ Daddam Hussain Son of Late Wadood Alam Resident of Village - Chhavni, P.S.- Manuwapul, District - West Champaran ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 515 of 2021 Arising Out of PS. Case No.-31 Year-2019 Thana- MUFFASIL District- West Champaran ====================================================== Farman Khan S/O Mansaf Khan R/O Village-Chhauni, Ward No.5, P.S- Bettiah Mufassil (MANUAPUL), District-West Champaran.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 406 of 2021) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mrs. Vaishnavi Singh, Advocate Mr. Imteyaz Ahmad, Advocate Mr. Ritwik Thakur, Advocate Mr. Purushottam Kumar, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP (In CRIMINAL APPEAL (DB) No. 515 of 2021) For the Appellant/s : Mr. Sanjeev Kumar, Advocate Mr. Raushan Raj, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY

C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH) Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

Date : 08-11-2023 These appeals have been preferred by the appellants

under Section 374(2) of the Code of Criminal Procedure, putting

to challenge the judgment of conviction dated 17.03.2021 and the

order of sentence dated 23.03.2021, passed by learned Additional

District and Sessions Judge-VI-cum-Special Judge POCSO,

Bettiah, West Champaran, in CIS No. 09 of 2019, arising out of

Bettiah (Mufassil) P.S. Case No. 31 of 2019, whereby the

appellants have been convicted and sentenced as under:

Cr. Appeal (DB) No. 406 of 2021 Sentence Appellant Penal Provision In default of Name Imprisonment Fine (Rs.) fine Under Section 363 of the R.I. for Seven 20,000/- --

                      IPC                               years
        Saddam    Under Section 377 of the             R.I. for life   50,000/-        --
        Hussain @ IPC
        Daddam    Under Section 376DB of               R.I. for life   50,000/-        --
        Hussain   the IPC
                      Under Section 8 of the       R.I. for Five       20,000/-        --
                      POCSO Act                        years
                                  Cr. Appeal (DB) No. 515 of 2021
                                                                       Sentence
         Appellant        Penal Provision
          Name                                    Imprisonment Fine (Rs.)         In default of
                                                                                      fine
                      Under Section 363 of the     R.I. for Seven      20,000/-        --
                      IPC                               years
                      Under Section 377 of the         R.I. for life   50,000/-        --
        Farman        IPC
        Khan          Under Section 376DB of           R.I. for life   50,000/-        --
                      the IPC
                      Under Section 8 of the       R.I. for Five       20,000/-        --
                      POCSO Act                        years

2. All the sentences have been ordered to run

concurrently.

3 From the lower court's records and the impugned

judgment of conviction also, it appears that the appellants were Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

charged for commission of offence punishable under Sections 363,

365, 377, 376D read with Section 34 of the IPC and Sections 6 and

8 of the Protection of Children from Sexual Offences Act (POCSO

Act). The said charges were read over to the appellants and

evidently the appellants faced the trial for commission of the

offences punishable under various provisions of the IPC and the

POCSO Act in respect of the aforesaid charges.

4. By the impugned judgment of conviction, the trial

court has held the appellants guilty of the offences punishable

under Section 376DB of the IPC instead of Section 376D of the

IPC in respect of which the appellants were charged in addition to

other offences, after appreciation of evidence adduced at the trial.

After having convicted the appellants of the offences punishable

under Section 376DB of the IPC, the trial court has sentenced

them to undergo imprisonment for life which shall mean

imprisonment for remainder of the appellants' natural life with

fine.

5. Section 376D of the IPC reads thus: -

[376-D. Gang rape.--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:

Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.]

6. Section 376DB of the IPC reads as under: -

"[376-DB. Punishment for gang rape on woman under twelve years of age.--Where a woman under twelve years of age 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 imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.]"

7. There is no gainsaying that the offence punishable

under Section 376DB of the IPC is graver than Section 376D of

the IPC from the perspective of the gravity of the sentence. We

also notice that the trial court, at no point of time, had altered the

charge.

8. Section 216 of the CrPC confers upon a trial court to

make alteration in the charge and provides procedure therefor. We

consider it apt to reproduce Section 216 of the CrPC, which reads

as under: -

Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

"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.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

9. Section 217 of the CrPC mandates that when a charge

is altered or added by the court after commencement of the trial,

the prosecutor and the accused shall be allowed to recall or

resummon, examine with reference to such alteration or addition,

any witness who may have been examined, unless the court, for

the reason to be recorded in writing, considers that the prosecution

or the accused, as the case may be, desires to recall or re-examine Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

such witness for the purpose of vexation or delay or defeating the

ends of justice.

10. On conjoint reading of Section 216 and 217 of the

CrPC, it can be easily culled out that the court's power to alter or

add any charge any time before judgment is pronounced is subject

to the conditions prescribed thereunder. One of such conditions

under sub-section (2) of Section 216 of the CrPC is that such

alteration or addition shall be read and explained to the accused.

Sub-Section (3), however, prescribes that if alteration or addition

to a charge is such that proceeding immediately with the trial is not

likely, in the opinion of the Court, to prejudice the accused in his

defence or the prosecutor in the conduct of the case, the Court

may, in its discretion, after alteration or addition has been made,

proceed with the trial as if the altered or added charges had been

the original charge.

11. We reiterate, at this juncture, that two distinct

punishments have been proscribed for the offence punishable

under Section 376D and Section 376DB of the IPC, which can be

easily noticed on a comparative reading of the said two provisions.

The appellants have, thus, been convicted of a charge for graver

offence than what they were charged with by the trial court and

have been sentenced to imprisonment accordingly. In our opinion,

the case of the appellants stood prejudiced in their defence, they Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

having been convicted of graver charge than for the offence which

they were charged with and, therefore, such alteration was required

to be read and explained to the appellants in conformity with the

requirement under sub-section (2) of Section 216 of the CrPC. As

has been noticed above, Section 217 of the CrPC safeguards the

interest of the accused and the prosecutor as well in case a charge

is altered or added by the court after commencement of the trial, if,

in the opinion of the trial court, it is required by giving them an

opportunity to recall or resummon and reexamine with reference to

such alteration or addition.

12. Section 216 of the CrPC, which gives wide power to

the court to alter or add any charge at any time before the

judgment is pronounced, also takes care of the interest not only of

the prosecutor, but of defence also to a fair trial. The power under

Section 216 of the CrPC is subject to the condition that an accused

has not to face a charge for a new offence or is not prejudiced

either by keeping him in dark about the charge or giving him a full

opportunity of meeting it and putting forward any defence open to

him, on the charge finally preferred against him. [See: Kantilal

Chandulal Mehta v. State of Maharashtra (AIR 1970 SC 359)].

13. In such view of the matter, the conviction of the

appellants for the offence punishable under Section 376DB of the

Indian Penal Code is unsustainable, the trial court having failed to Patna High Court CR. APP (DB) No.406 of 2021 dt.08-11-2023

comply with the requirements under Section 216 of the CrPC and,

if required, Section 217 of the CrPC.

14. After having held so, we deem it proper, in the

interest of justice, to set aside the impugned judgment of

conviction dated 17.03.2021 and the order of sentence dated

23.03.2021 passed by Additional District and Sessions Judge-VI-

cum-Special Judge POCSO, Bettiah, West Champaran, in CIS No.

09 of 2019, arising out of Bettiah (Mufassil) P.S. Case No. 31 of

2019, and remit the matter back to the trial court for the limited

purpose for the trial court to comply with the requirements of

Section 216 of the CrPC and, if required, Section 217 of the CrPC

and proceed accordingly.

15. These appeals are disposed of with the aforesaid

observations and directions.

(Chakradhari Sharan Singh, J)

Nawneet Kumar Pandey, J: - I agree.

(Nawneet Kumar Pandey, J)

Pawan/-

AFR/NAFR                NAFR
CAV DATE                25.09.2023.
Uploading Date          09.11.2023.
Transmission Date       09.11.2023.