Vikrant Tomar and Others vs State of U.P. and Others

Anjani Kumar Mishra, J.—Heard Sri. Gaurav Kakkar learned counsel for the applicants and learned AGA for the State. This application under Section 482 , Cr.P.C. has been filed challenging the order dated 09.06.2015 passed by the Additional Sessions Judge (F.T.C.), Court No. 3, Bulandshahar in Sessions Trial No. 397 of 2015 whereby charges under Sections 498A , 323 , 324 , 307 , 376 , I.P.C. and 3 /4 , Dowry Prohibition Act, Police Station Mahila Thana, District Bulandshahr has been framed against the applicants.

The contention of learned counsel for the applicants is that the FIR is highly belated and self contradictory. There are material contradictions in the case as set up in the FIR and the statement of witness recorded during investigation. As regards the contradictions, it has been submitted that in the FIR, it was stated that the vehicle by which the first informant and the accused were travelling stopped as it ran out of diesel while in the statement under Section 161 , it has been stated that it ran out petrol.

It has further been submitted that there is no allegation of rape either in the FIR or in the statement of Reetu under Section 161 , Cr.P.C. This new allegation has been introduced for the first time under Section 164 , Cr.P.C. There is absolutely no medical evidence in support of the charge under Section 376 , I.P.C. and neither any medical examination in this regard has been conducted. The applicant No. 2 who has been charged of rape is the father-in-law of the victim. It is therefore, contended that no charge under Section 376 could have been framed against the applicant. Lastly, it has been submitted that the alleged injuries suffered on the side of the first informant are simple in nature and the case shall not travel beyond under Section 324 , I.P.C. The charges therefore, have been framed in a mechanical manner without due appreciation of the material collected during investigation.

Learned AGA on the other hand has refuted the submissions made on behalf of the applicants and prayed for dismissal of the application.

On the basis of submissions made by learned counsel for the parties, it is clear that the primary thrust of the argument on behalf of the applicant is as regards the charge under Section 376 , Cr.P.C.

It is therefore, clear that the applicants especially applicant No. 2 is praying for deletion of the charge under Section 376 , I.P.C. While considering this aspect, this court in the judgment rendered in the case of Vibhuti Narayan Chaubey alias Lala Chaubey and Others Vs. State of U.P., has held that a charge framed on the basis of material available on record cannot be deleted. Once the charge has been framed, it can be withdrawn under Section 224 , Cr.P.C. only after the judgment is pronounced. It has also been held that once charge is framed the case will result, either in acquittal or in conviction in accordance with the provisions of trials prescribed under the Chapters 18, 19 and 20 of the Cr.P.C. and that a charge cannot be deleted.

Moreover, in the judgment in the case of Krishnammal Vs. The Revenue Divisional Officer and Others, it has been held that in view of the provisions of Section 211 and Section 216 of the Cr.P.C., the court alone has power to frame charge or alter it or add new charges and neither the prosecution nor person interested has locus standi to file a petition for framing additional charges. It therefore, necessarily follows that the relief prayed for by means of the application cannot be granted on an application under Section 482 , Cr.P.C.

Further in the case of Verghese Stephen Vs. Central Bureau of Investigation, , it has been observed in paragraph 13 of the judgment:--

"There is, therefore, some indication that once the charges are framed, the same can be altered and/or added to, provided that there is some progress in the trial and some material comes before the trial Court enabling it to alter or add to the charge already framed."

In this connection it would further be relevant to note that allegations of rape are to be found in the statement of victim Reetu recorded under Section 164 , Cr.P.C. as also in the statement of the alleged eye-witness Mohan Lal. Therefore, in view of the foregoing discussion and also case laws referred to, the application is liable and is hereby dismissed.