Kum. Bandela Nirmala vs The State Of Telangana
2021 Latest Caselaw 4533 Tel

                  HONOURABLE JUSTICE G.SRI DEVI

                 CRIMINAL PETITION No. 1310 of 2020

ORDER:

The present Criminal Petition is filed, under Section 482 of Cr.P.C.,

seeking to set aside the order, dated 17.01.2020, passed in Crl.M.P.No.710 of

2019 in SC/ST S.C.No.78 of 2015 on the file of the Special Sessions Judge for

Trial of Cases under SCs & STs (POA) Act-cum-VII Additional District and

Sessions Judge, Ranga Reddy District at L.B.Nagar.

The facts of the case are that basing on a complaint filed by the

petitioner/de facto complainant, a case in crime No.75 of 2014 was registered

by the police, Alwal Police Station, against the 2nd respondent herein for the

offences punishable under Sections 417, 493 of I.P.C. and Section 3 (1) (x) of

the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 and after completion of investigation, a charge sheet was filed for the

said offences, which was taken cognizance as SC/ST S.C.No.78 of 2015.

During the course of trial, the petitioner-de facto complainant, who was

examined as P.W.1, categorically deposed that herself and the 2nd

respondent/accused fell in love and on the pretext of false promise to

marry her, the 2nd respondent/accused took her to Yadagiri Gutta and

Alankritha Resorts many times and had sexual intercourse with her

forcibly and that while having sexual intercourse, the 2nd

respondent/accused used to take precautions to avoid pregnancy.

Therefore, the State filed Crl.M.P.No.710 of 2019, under Section 216 Cr.P.C.,

before the trial Court seeking to add Section 376 of I.P.C in addition to the

existing Section of law. It is stated in the petition that complaint, the

statement of P.W.1 recorded by the police under Section 161 Cr.P.C and the

evidence of P.W.1, clearly reveal that the accused had committed an offence

under Section 376 of I.P.C. It is further stated that P.Ws.2 to P.W.7, have

categorically deposed in their evidence that the accused had physical

relation with P.W.1 on the pretext of false promise of marrying her.

The 2nd respondent/Accused filed counter before the trial Court,

inter alia, contending that none of the ingredients of Section 375 I.P.C.

reflect in the evidence of the prosecution witnesses and that P.Ws.1 to 7,

categorically stated that the petitioner/de facto complainant fell in love with

the 2nd respondent/accused. It is further contended that P.W.1 in her cross-

examination stated that she did not remember the date and month when

the accused took her to Yadagirigutta and when she had physical intimacy

with the accused. She further stated that they used to stay at Yadagirigutta

temple in a room arranged by a friend of the accused and as such it can be

said that the petitioner/de facto complainant is a consenting party as she had

accompanied with the 2nd respondent/accused to Yadagirigutta and

Alankritha Resorts voluntarily. It is also stated that the evidence of P.W.1

does not indicate that the accused had sexual intercourse with the

petitioner/de facto complainant with a promise to marry her. It is further

contended that the petition filed by the prosecution is devoid of merits and

is liable to be dismissed.

The trial Court, after considering the material available on record,

dismissed the said application by order dated 17.01.2020. Questioning the

said order, the de facto complainant filed the present Criminal Petition

seeking to set aside the impugned order.

Heard the learned Counsel for the petitioner/de facto complainant,

learned Assistant Public Prosecutor appearing for the 1st respondent and

the learned Counsel for the 2nd respondent.

Learned Counsel for the petitioner/de facto complainant would

submit that the trial Court passed the impugned order without looking into

the evidence of the petitioner/de facto complainant in proper perspective

even though the evidence of the petitioner and the contents of the charge

sheet clearly constitute the offence punishable under Section 376 of I.P.C.

It is further submitted that a plain reading of the contents of the charge

sheet, statements of witnesses recorded by the police under Section 161

Cr.P.C. and the evidence of P.Ws.1 to 7, prima facie constitute an offence

under section 376 of I.P.C. It is further submitted that if the charge under

Section 376 of I.P.C. is added, no prejudice would be caused to the accused

as he can have fair chance of trial and, therefore, the trial Court out to have

allowed the petition.

Learned Assistant Public Prosecutor appearing for the 1st

respondent-State supports the version of the learned Counsel for the

petitioner/de facto complainant.

Learned Counsel appearing for the 2nd respondent/accused would

submit that Section 216 of Cr.P.C. provides that any Court may alter or add

to any charge at any time before judgment is pronounced. Therefore, after

recording of the entire evidence and after consideration of the evidence at

the time of judgment, if it is found that the accused has committed an

offence punishable under Section 376 of I.P.C., then the Court can

amend/alter the charge, but prior to it merely on the basis of evidence of

some of the witnesses, there does not appear to be any justification of

amending the charge. Therefore, there is no illegality in the impugned

order.

It is provided in sub-section (1) of Section 216 of Cr.P.C. that any

Court may alter or add to any charge at any time before the judgment is

pronounced. The object of Section 216 of Cr.P.C. is to ensure a fair trial and

the Court is to see as to whether alteration or addition to any charge at any

time before the judgment is pronounced is called for or not and if it is

called for, such alteration or addition to any charge must be on the basis of

some evidence on record.

From a perusal of the impugned order, it appears that the

application under Section 216 of Cr.P.C. was moved on behalf of the

prosecution after the evidence of P.Ws.1 to 7 had been recorded. No

doubt Section 216 Cr.P.C. provides that a charge can be altered at any stage

prior to delivery of the judgment, but this does not imply that in all cases

decision should be deferred to the judgment stage. The very object of

Section 216 of Cr.P.C. to provide fair trial will be defeated, if such an

approach is adopted. P.W.1, in her evidence, deposed that the 2nd

respondent/accused took her to Yadagirigutta and Alankitha Resorts by

inducing her to marry her and had sexual intercourse with her forcibly. A

plain reading of the contents of the charge sheet, 161 Cr.P.C. statements of

P.Ws.1 to 7, prima facie, constitute an offence under Section 376 of I.P.C.

Therefore, I am of the considered view that the impugned order is not

legally sound and the trial Court has committed manifest error in passing

the impugned order and, as such, it is not sustainable and deserves to be

set aside.

Accordingly, the Criminal Petition is allowed and the order, dated

17.01.2020, passed in Crl.M.P.No.710 of 2019 in SC/ST S.C. No.78 of 2015

on the file of the Special Sessions Judge for trial of cases under SCs and STs

(POA) Act-cum-VII Additional District and Sessions Judge, Ranga Reddy

District at L.B.Nagar, is hereby set aside. Consequently, the learned trial

Judge is directed to frame a charge under Section 376 of I.P.C. against the

2nd respondent/ accused and proceed with the matter.

Miscellaneous petitions, if any, pending shall stand closed.

____________________ JUSTICE G.SRI DEVI

22.12.2021 Gsn