LAWS(ALL)-2024-1-57

RANJEET Vs. STATE OF UP

Decided On January 31, 2024
RANJEET Appellant
V/S
STATE OF UP Respondents

JUDGEMENT

(1.) Applicants- Accused have filed this application under Sec. 482 Code of Criminal Procedure to challenge the order dtd. 5/12/2023 passed by Special Judge (POCSO Act)/Additional Sessions Judge, court no.8, Ballia in S.S.T. No.391 of 2018, titled State Vs. Arun @ Arun Kumar and others, arising out of case crime no.130 of 2018, under Ss. 363, 366, 376, 504, 506 IPC and Sec. 3/4 of POCSO Act, Police Station Gadwar, District Ballia, whereby the application dtd. 13/9/2021 filed by the prosecution seeking alteration of charge has been allowed. Learned counsel submits that the subject case was registered on the basis of the complaint given by Govind Kumar, wherein it was reported that his daughter has been enticed away by the accused persons, namely, Arun Kumar, Ranjeet, Krishna, Shanker, Ravishanker etc. He submits that after registration of the case, the investigation was carried out and the final report was filed on 13/10/2018, thereby sending the accused- Arun Kumar to face trial for the alleged commission of offence punishable under Ss. 376 IPC etc., whereas the rest of the accused persons (applicants) were forwarded to face trial only for offences punishable under Ss. 504, 506 IPC.

(2.) Learned counsel submits that the trial court upon considering the final report proceeded to frame the charges against the accused persons vide order dtd. 23/10/2019, and while referring to the said order, he highlighted that the accused applicants were charged only for the alleged commission of offences punishable under Ss. 504, 506 IPC. Learned counsel has pointed out that after framing of charges, the prosecution examined its witnesses and after recording the deposition of victim, an application dtd. 13/9/2021 (Annexure No.9) was moved seeking alteration of the charges and the same has been allowed by the trial court vide impugned order dtd. 5/12/2023.

(3.) Learned counsel refers to the statement of victim under Sectin 161 Cr.P.C. and submitted that the charges initially were rightly framed as the names of the applicants were not mentioned, and attribution of the alleged commission of offence of rape is against accused- Arun Kumar. Learned counsel has vehemently argued that the power under Sec. 216 Cr.P.C. vested with the trial court cannot be exercised at least by moving an application by the complainant, and the charge can only be altered suo moto by the court. In support of his submissions, he has placed reliance on the decision of the Supreme Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and another, 2017 3 SCC 347. According to him, the deposition of the victim recorded during trial is in contradiction to her statement under Sec. 161 Cr.P.C., therefore, the impugned order is not sustainable in the eyes of law. He prays that the impugned order be set aside.