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2018 DIGILAW 752 (MP)

Banti Kushwah v. State of M. P.

2018-08-31

S.A.DHARMADHIKARI

body2018
ORDER 1. Petitioner has invoked the supervisory jurisdiction of this Court under sections 397 and 401 of the Code of Criminal Procedure against the order dated 1.6.2018, whereby the trial Court has altered the charges framed against the petitioner for the offences punishable under sections 376 read with 511 of the IPC and 10 of the POCSO Act, 2012 to those under sections 376 (i) of the IPC and 3 read with 4 of the POCSO Act. 2. Prosecution story in short is that on 17.12.2015 at about 1:30 p.m., complainant, who is mother of the prosecutrix, a minor girl aged about 8 years was doing laundry in her courtyard, her husband having gone outside for work while the prosecutrix was playing outside. After some time the prosecutrix came to the complainant crying and informed her that the present petitioner after giving ten rupees for purchasing biscuits had taken her to a secluded place and subjected her to sexual assault and when she had started crying the petitioner fled away from the spot. On such complaint, FIR was registered at Crime No. 590/2015 triggerging the criminal law into motion. 3. Learned counsel for the petitioner submits that initially charges were framed by the trial Court on 10.2.2016 for the offences punishable under sections 376 read with 511 of the IPC and section 10 of the POCSO Act, 2012. It is submitted that after facing trial for about two and half years, at the stage of final arguments, the trial Court, all of a sudden, has modified the charges to the offences punishable under sections 376 (i) of the IPC and section 3 read with 4 of the POCSO Act. It is submitted that the said alteration of charges is against the evidence brought on record, inasmuch as the element of penetration is nowhere reflected therefrom. Besides, earlier also, while framing charges the entire material including the medical report was before the trial Court and the trial Court after due consideration thereof had framed such charges. It is submitted that no subsequent evidence has come up warranting the trial Court to alter the charges, that too at such advance stage of the trial when the same is fixed for final arguments. Accordingly, it is submitted that the order impugned is nothing but a contrivance to harass the petitioner by protracting the trial. 4. It is submitted that no subsequent evidence has come up warranting the trial Court to alter the charges, that too at such advance stage of the trial when the same is fixed for final arguments. Accordingly, it is submitted that the order impugned is nothing but a contrivance to harass the petitioner by protracting the trial. 4. Per contra, learned Public Prosecutor submits that initially, charges were framed for the offences under sections 376 read with 511 of the IPC and 10 of the POCSO Act. However, a bare perusal of the medical report reflects that doctor has clearly opined that there is evidence of attempted sexual intercourse, besides finding a 2 mm tear at 7 O'clock position on hymen of the prosecutrix with redness and inflamation around it. Under such circumstances, the possibility of penetration cannot be ruled out. That apart, prosecutrix is admittedly a minor. Therefore, alteration of charges to those under section 376(i) which pertains to sexual assault on a minor and sections 3 and 4 of the POCSO Act which contemplates penetrative sexual assault is completely justified. It is well settled that even a strong suspicion leading to presumption as to possibility as against certainty makes out as case for it (State of A.P. v. Golconda Linga Swamy and another 2004 SCC (Cri) 1805 referred to). So far as the contention with regard to framing of charge at this belated stage is concerned, reliance has been placed on decision of the apex Court in the case of Anant Prakash Sinha @ Anant Sinha v. State of Haryana and another [ (2016) 6 SCC 105 ] where in it has been held as under : From the aforesaid, it is graphic that the Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of section 216 CrPC. (Emphasis supplied) 5. Reliance has also been placed on the decision of the apex Court in the case of P. Kartikalakshmi v. Sri Ganesh and another [ (2017) 3 SCC 347 ]. wherein it has been categorically held that section 216 of the CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing an application as a matter of right. It may be that if there was an omission in the framing of charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. With the aforesaid submissions, it is contended that no illegality has been committed by the trial Court by modifying the charges as indicated above. 6. Having heard the learned counsel for the parties, this Court finds substantial force in the submission advanced by learned Public Prosecutor. As such, no interference is warrented with the order impugned. 7. Accordingly, revision petition being devoid of merit and substance is dismissed. Needless to say that it is obligatory on the part of the trial Court to see that no prejudice is caused to the accused and he is allowed to have a fair trial.