Patna High Court
Farman Khan vs The State Of Bihar on 8 November, 2023
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh, Nawneet Kumar Pandey
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
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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
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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
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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:
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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: -
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"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
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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
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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
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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
23.03.2021passed 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.