Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and NAWNEET KUMAR PANDEY, JJ.
Criminal Appeal (DB) No.406 with 515 of 2021
(8.11.2023)
Saddam Hussain
@ Daddam Hussain (in 406)
Farman Khan (in 515) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Criminal Procedure Code, 1973 – Sections 216 and 217 – Alteration of charge – Court's power to alter or add any charge any time before judgment is pronounced is subject to conditions prescribed thereunder – Such alteration or addition shall be read and explained to accused – If alteration or addition to a charge is such that proceeding immediately with trial is not likely to prejudice accused in his defence or Prosecutor in conduct of case, Court may, in its discretion, after alteration or addition has been made, proceed with trial as if altered or added charges had been the original charge – Section 216 of Cr.P.C., which gives wide power to court to alter or add any charge at any time before judgment is pronounced, also takes care of interest not only of Prosecutor, but of defence also to a fair trial – Power under Section 216 of Cr.P.C. is subject to condition that accused has not to face a charge for a new offence or is not prejudiced either by keeping him in dark about 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. (Paras 10 and 12)
Protection of Children from Sexual Offences Act, 2012 – Sections 6 and 8 – Indian Penal Code, 1860 – Section 376DB – Criminal Procedure Code, 1973 – Sections 216 and 217 – Gang rape of woman under twelve years of age – Trial Court has held appellants guilty of offences punishable under Section 376DB of IPC instead of Section 376D of IPC in respect of which appellants were charged in addition to other offences – Offence punishable under Section 376DB of IPC is graver than Section 376D of IPC from perspective of gravity of sentence – Appellants have been convicted of a charge for graver offence than what they were charged with by Trial Court and have been sentenced to imprisonment accordingly – Case of appellants stood prejudiced in their defence – Such alteration was required to be read and explained to appellants in conformity with requirement under sub-section (2) of Section 216 of Cr.P.C. – Conviction of appellants for offence punishable under Section 376DB of IPC is unsustainable – Impugned judgment of conviction and order of sentence set aside and matter remitted back to Trial Court for limited purpose for Trial Court to comply with requirements of Sections 216 and 217 of Cr.P.C. and proceed accordingly. (Paras 4, 7, 13 and 14)
Chakradhari Sharan Singh, J. – 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
| Appellant Name | Penal Provision | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Saddam Hussain @ Daddam Hussain | Under Section 363 of the IPC | R.I. for Seven years | 20,000/- | -- |
|
| Under Section 377 of the IPC | R.I. for life | 50,000/- | -- |
|
| Under Section 376DB of the IPC | R.I. for life | 50,000/- | -- |
|
| Under Section 8 of the POCSO Act | R.I. for Five years | 20,000/- | -- |
Cr. Appeal (DB) No. 515 of 2021
| Appellant Name | Penal Provision | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Farman Khan | Under Section 363 of the IPC | R.I. for Seven years | 20,000/- | -- |
|
| Under Section 377 of the IPC | R.I. for life | 50,000/- | -- |
|
| Under Section 376DB of the IPC | R.I. for life | 50,000/- | -- |
|
| Under Section 8 of the POCSO Act | R.I. for Five years | 20,000/- | -- |
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 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:
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
The court clarified that the power to alter or add charges under Section 216 Cr.P.C. is solely within the discretion of the court, ensuring that the rights of the accused are protected and the trial ....
Alteration of charge – Jurisdiction of Section 216 Cr.P.C. cannot be exercised on application made by any of parties but on its own satisfaction.
Alteration of charge – Charge can be altered even after trial has progressed to a large extent.
The Court upheld its power under Section 216 of the CrPC to add charges upon prosecution request, emphasizing the trial's necessity and the end of justice.
The main legal point established in the judgment is that the power to alter or add charges under Section 216 of the Cr.P.C. lies exclusively with the court and cannot be exercised at the instance of ....
The power to alter the charge under Section 216 Cr.P.C. is exclusive to the Court and can be exercised at any time before the judgment is pronounced. The alteration must be founded on material availa....
Sentence – Court has to balance scales of retributive justice and restorative justice.
The power to alter the charge exists only with the court and cannot be based upon an application by any of the parties.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
