CHANDRESH SHARMA Vs. STATE OF H P

JUDGEMENT

(1.) Order dated 4.8.2017, passed by learned Additional Sessions Judge(II) , Kangra at Dharamshala in an application under Section 216 of the Code of Criminal Procedure framing thereby additional charge under Section 376 IPC against the petitioner (hereinafter referred to as the 'accused') , is under challenge in this petition on several grounds, however, mainly that similar application was previously dismissed by learned trial Court, hence, there being no change in the facts and circumstances, no such order could have been passed.

(2.) On having gone through the entire record and also taking into consideration the submissions made on behalf of the accused as well as the prosecution, it is apparent that similar application filed by the prosecution with a prayer to frame additional charge for the commission of offence punishable under Section 376 of the Indian Penal Code against the accused was dismissed by learned trial Judge with the following observations:-

(3.) Mr. R. K. Bawa, learned Senior Advocate assisted by Mr. Ajay K. Sharma, Advocate strenuously contended that when the application previously instituted with a prayer to frame additional charge against the accused was dismissed with the observations that no oral evidence to show that the deceased was subjected to sexual intercourse by the accused is available on record and that the DNA profiling is not a prefect science, the impugned order could have not been passed in a subsequent application, more particularly, there being no change in the circumstances and the evidence available on record.