Allahabad High Court
Rishiram vs State Of U.P. & Ors. on 6 March, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- U/S 482/378/407 No. - 1582 of 2020 Applicant :- Rishiram Opposite Party :- State Of U.P. & Ors. Counsel for Applicant :- Alok Kumar Srivastava,Suchita Singh Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the petitioner as well as learned Additional Government Advocate representing respondent no.1 and perused the petition, including the Annexures attached therewith.
2. This petition under Section 482 CrPC has been filed by petitioner Rishiram, impugning the order dated 14th January, 2020 passed by the Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 12, Hardoi in Special Sessions Trial No.422 of 2016, arising out of Case Crime No.236 of 2016, under Sections 363 and 366 IPC and 7/8 POCSO Act lodged at Police Station Harpalpur, District Hardoi.
The learned Sessions Judge, vide the impugned order, has allowed the application under Section 216 CrPC filed by the complainant.
directed to add Sections 376 IPC and 3/4 POCSO Act.
3. The respondent no. 2, Rishipal Singh lodged first information report on 08.06.2016 against three accused, alleging that in the night of 31.07.2016 his daughter, aged about 15 years, was sleeping on the terrace of the house; when the other family members slept off, the daughter of the complainant went out of the house; during the search, it could be known that Sanjay Kumar son of Shrikrishna, Laloo son of Pappu, Devendra alias Lala son of Dharmendra Singh, residents of Village Devipur, Police Station Allhaganj, District Shahjahanpur, enticed away the daughter of the complainant. These persons used to talk to the victim often from their mobile phones. The FIR was registered against three accused named in the complaint. The petitioner was not named in the FIR.
4. During the course of investigation, the investigating officer recorded statement of the victim under Section 161 CrPC on 27th August, 2016. In her statement, the victim stated that she eloped with the petitioner on 31.07.2016. She used to talk to him over mobile phone. The petitioner persuaded her to elope with him, and on his instigation, she went with him. She was in the house of the petitioner for one day, and, thereafter, she went to aunt of the petitioner, who lived at Adamapur. Thereafter, the petitioner brought her to Gurgaon. She was with the petitioner, his brother and sister-in-law. She had performed court-marriage with the petitioner. She said that she wanted to live with the petitioner herein.
5. In her statement recorded under Section 164 CrPC, the victim said that the petitioner and she were talking to each other for one and a half months. She was in love with the petitioner. On 31.07.2016, at around 10:56 p.m., the petitioner called her on mobile phone and she came out of the house to meet the petitioner and one Man Singh; the petitioner forcibly made her to sit in the car, and, thereafter, brought her in his house. In the house, brother, sister-in-law and mother of the petitioner were residing. She further said that neither the petitioner had done anything wrong nor he had established physical relation with her. Thereafter, when the petitioner and Man Singh were taking her to their maternal aunt (Mausi), on the way, the police met and got her freed from them. She further said that she would like to reside with her parents.
6. After completing the investigation, charge-sheet was filed on 5th October, 2016 under Sections 363 and 366 IPC and Section 7/8 POCSO Act against the petitioner and co-accused Man Singh.
7. During the course of trial, the victim has been examined as PW-1. In her statement recorded in the Court, the victim had made specific allegation of rape against the petitioner. The victim has further stated that under threat of use of force, she was subjected to sexual assault by the petitioner. The petitioner also threatened her also that if she would make statement before the Magistrate regarding rape, she and her family would face dire consequences.
8. After recording statement of the victim as PW-1, the complainant filed an application for altering charge and adding Section 376 IPC as well to which the petitioner filed objection.
9. The trial Court vide impugned order has allowed the application under Section 216 CrPC, and considering the statement of the victim given before the Court has added Section 376 IPC and 3/4 POCSO Act.
10. The learned counsel for the petitioner has submitted that in the FIR, the petitioner was not named; his name figured during the course of investigation; in the statement of the victim recorded under Section 161 CrPC she had made no allegation of any wrong doing by the petitioner; similarly in her statement under Section 164 CrPC, she made no allegation regarding sexual assault on her by the petitioner. The learned counsel has further submitted that the statement of the prosecutrix before the Court is tutored one, and cannot be believed. The trial Court has erred in ignoring glaring contradictions in her statements recorded under Section 161 CrPC and 164 CrPC as well as before the Court as PW-1. The learned counsel has further submitted that the impugned order passed by the trial Court suffers from illegality as the trial Court was required to consider whether there is cogent and credible evidence available for altering the charge under Section 216 CrPC inasmuch as the statement of the prosecutrix is a bundle of lies, and cannot be said to be cogent and credible. In view thereof, the learned counsel has submitted that the impugned order is liable to be set-aside and the petition be allowed.
11. The learned counsel has placed reliance on judgment rendered by the Supreme Court in Criminal Appeal No.264 of 2020 'Santosh Prasad alias Santosh Kumar Vs. The State of Bihar. The learned counsel has pressed para 5.4.3 and 6 of Santosh Prasad alias Santosh Kumar's case (supra), which, on re-production read as under:-
"5.4.3 In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix-PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt."
12. The aforesaid judgment is in appeal after conviction. Here, this Court is dealing with a case where the trial Court has altered the charge after considering the evidence on record. Section 216 CrPC reads as under:-
"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."
13. Section 216 gives ample powers to the Court to alter or amend the charge. However, the accused must be given full opportunity of meeting it, and putting forward any defence open to him on the charge finally preferred against him. In Thakur Shah Vs. Emperor, AIR 1943, PC, 192 it has been said that the alteration or addition is "always' of course subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given a full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred."
14. The question, which needs for consideration in the present case, is whether there is evidence to support the charge under Section 376 IPC and 3/4 POCSO Act. If the evidence of the prosecutrix is read, she has made categorical statement regarding rape by the petitioner. There is no doubt that the prosecutrix was minor at the time of incident. Thus, there is prima facie evidence available to support the charge, which is the requirement under Section 216 CrPC for addition/alteration of the charge.
15. In view of the aforesaid discussions, I find that the impugned order does not suffer from any illegality or perversity, which requires interference by this Court in exercise of jurisdiction vested under Section 482 CrPC. Thus, this petition fails and is dismissed.
[D.K. Singh, J.] Order Date :- 6.3.2020 MVS/-