Andhra Pradesh High Court - Amravati
Baddu Padma Priya vs The State Of Andhra Pradesh on 23 September, 2022
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL REVISION CASE No.117 OF 2022
ORDER :
This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973, is filed to set aside the Order dated 22.01.2021 in Crl.M.P. No.1591 of 2017 in C.C. No.840 of 2015 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram.
2. A charge sheet has been filed against the respondents 2 and 3 for the offences punishable under Sections 420, 354D, 323, 506 read with 34 IPC and the same was taken on file as C.C. No.840 of 2015 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram. Pending the said case, a petition under Section 216 CrPC was filed by the prosecution praying to frame additional charge for the offence punishable under Section 376 IPC. Vide the impugned order, the learned Magistrate dismissed the said petition. Against the said order, the present revision came to be preferred by the petitioner, who is defacto complainant. Respondents herein 2 and 3 are A.1 and A.2 in the said case.
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3. Brief facts of the case are that defacto complainant is resident of Akiveedu. A.2 is father of A.1. They are residents of Chinapallivari street, Akiveedu village. A report came to be filed on 05.04.2015 at 5.00 PM that A.1 was harassing defacto complainant for sex and demanding her to come with him and he would marry her otherwise he would commit suicide. It is alleged that on one occasion, he attempted to commit suicide by consuming rat poison. Later, he got treatment and discharged. On knowing this, the defacto complainant was discarded by her husband. A.1 took her to Srinivasa Lodge, Akiveedu and kept her in the lodge for 3 days in Room No.106, and later, A.1 and his father A.2 demanded her to sign on Rs.50/- stamp paper and obtained her signature on the stamp paper. On 19.3.2015 at about 10.00 AM, A.2 beat her with hands and threatened with dire consequences. Due to fear, the defacto complainant went to house of one Kapilivai Anand, who is friend of her father, for shelter. Thereafter, the report was lodged as against the accused. Basing on the same, police registered a case in crime No.94 of 2015 of Akiveedu police station for the offences punishable under Sections 354D, 323, 506 read with 34 IPC, and after 3 completion of investigation, filed the charge sheet for the offences punishable under Sections 420, 354D, 323, 506 read with 34 IPC. The same was taken on file as C.C. No.840 of 2015 by the learned Magistrate.
4. During the course of trial, defacto complainant was examined as P.W.1. She deposed that A.1 used to send cell phone messages to her phone; that he threatened her by stating that he would marry her and asked to give divorce to her husband; that the message was seen by her husband and he altercated with her; that she informed the same to her father and the matter was placed before elders; A.1 informed the elders that he would marry her; that the elders admonished A.1, but A.1 did not heed to the words of elders; that in view of the happenings and because of A.1, her husband left her, and thereafter her husband gave divorce to her. She further deposed that A.1 consumed rat poison by threatening that if she did not join with him, he would die; that thereafter, A.1 took her and went to Bhimavaram and stayed there for one day, and later, they went to Akiveedu and A.1 had taken her to Akividu and kept her in Srinivasa Lodge in Room No.106 and locked doors by informing her that he would go to his house and would convince 4 his parents; that parents of A.1 did not consent for their marriage; that A.1 sexually enjoyed her for four days in the lodge, and later, A.2 came to the lodge and obtained her signature on Rs.50/- stamp paper, and when she questioned, the accused replied that they obtained the signatures not to file any cases by her father. It is her further evidence that A.1 asked her to go away to her house by stating that parents of A.1 commit suicide; that A.1 and A.2 beat her in the lodge and later she went to house of her father's friend Kapilivai Anand as she was unable to bear the torture of the accused, and later, her father went and brought her to their house; that the matter was placed before elders, but the accused did not heed to the words of elders, and later, defacto complainant resorted to file the present case as against the accused.
5. Learned counsel for the petitioner contended that P.W.1 categorically stated in her testimony that A.1 committed rape on her person; that at the time of framing additional charge under Section 216 CrPC, what is required is a prima facie material which leads the Court to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged that would justify framing of the additional charge. He vehemently contended that a perusal of the deposition of P.W.1 would go to show that there is prima facie material to frame an 5 additional charge for the offence punishable under Section 376 IPC and the same is sufficient to frame the additional charge, but the learned Magistrate did not consider these aspects in proper perspective.
6. On the contrary, learned counsel for respondents 1 and 2 confined his arguments to the extent of the reasons assigned in order passed by the court below.
7. Perused the record.
8. Section 216 CrPC reads as under:
"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 6 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 santion has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
A bare reading of the aforesaid provision demonstrates that the Court can alter charge at any stage before pronouncement of judgment basing on the material or evidence.
9. In the case on hand, petitioner/ P.W.1 is a married woman. Originally, respondents 2 and 3/A.1 and A.2 were charged for the offences under Sections 420, 354D, 323, 506 read with 34 IPC. The allegation is that A.1 threatened P.W.1 by stating that he would marry her if she gives divorce to her husband, and because of the happenings that took place, husband of defacto comlainant had given divorce to her. Thereafter, A.1 threatened the defacto complainant that if she did not join him, he would die by consuming poison. On one occasion, he had 7 consumed rat poisin and he was given treatment and discharged from the hospital. Thereafter, defacto complainant joined A.1, who kept her in a Lodge and enjoyed her sexually for a period of four days without her consent.
10. Counter came to be filed before the court below wherein it is stated that defacto complainant stated about the sexual enjoyment for the first time in the Court and the same is not stated in her statement under Section 161 CrPC or any other witness has also not stated about the said incident in Section 161 CrPC statements, and the said story is created to harass the accused.
11. Truth or otherwise of the said accusation has to be decided during the course of trial. Recitals in First Information Report can only be used for corroboration or contradiction and recitals in statements in Section 161 CrPC can be used only for contradiction. But, the evidence that has been let in, before the Court, has to be given the prime importance. Going by the evidence of P.W.1, it is categorically shown that A.1 had sexual intercourse with her for four days without her consent. The said aspect has to be adjudicated in the Court. A reading of Section 216 CrPC categorically shows 8 that the Court has got ample power to alter charge or add charge at any stage before pronouncement of judgment. When a new material has come up, the Court has to adjudicate the material available on record as to whether it is true or not. In Ananda v. State of Karnataka1, the issue cropped up before the Karnataka High Court is whether the charge can be altered under Section 216 CrPC after commencement of trial and recording of evidence of witnesses. In paragraph No.9 of the said judgment, it is held thus:
"This power of alteration of the charge, as found in the statute, can be exercised by any Court, before pronouncement of the judgment, which would mean after the matter is reserved for its judgment the charge can be altered. The power of such alteration of charge is also considered by the Apex Court in the case of ANANT PRAKASH SINHA @ ANANT SINHA v. STATE OF HARYANA AND ANOTHER {(2016) 6 SCC 105}, wherein the Apex Court holds that the charge can be altered at any time during the proceedings, which would mean even after the case is reserved for its judgment. But, what has to be seen is, whether there is material and what is the prejudice that would be caused to the accused by such Act."
12. To consider the said issue whether the court is still within its jurisdiction to alter charge at any stage of the proceedings, it is germane to notice the source of such alteration. 1 Order dated 08.06.2022 in Criminal Petition No.1829 of 2022 9
13. The very fact that in the evidence of P.W.1, she categorically deposed that in her chief-examination that she has been sexually enjoyed by A.1 which is sufficient enough and it is a matter for trial. This evidence from the chief-examination of P.W.1 is that she was taken to the lodge and kept there for a period of four days, and according to her evidence, she was sexually exploited, would be sufficient to enquire into the matter whether the said aspect is true or not. When such is the case, the learned Magistrate erred in dismissing the petition on the ground that there is no materal as against the accused at earlier stage and since A.1 refused to marry her, she resorted in filing the present petition. The question of refusing to marry defacto complainant is again a question of fact and the same has to be decided in a full-fledged trial. This is a premature stage where this Court can jump into conclusions. When a prima facie material is found, it is essential that for a just decision of the case, to add the said charge and conduct trial in accordance with law.
14. Accordingly, the Criminal Revision Case is allowed, setting aside the Order dated 22.01.2021 in Crl.M.P. 10 No.1591 of 2017 in C.C. No.840 of 2015 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram, and consequently, Crl.M.P. No.1591 of 2017 stands allowed.
Miscellaneous petitions, if any pending, in the Criminal Revision Case, shall stand closed.
_________________________________ JUSTICE K. SREENIVASA REDDY .09.2022 DRK 11 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL REVISION CASE No.117 OF 2022 .09.2022 DRK