IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD TUESDAY, THE TWENTY SIXTH (26TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.R.C.No.689 of 2011 Between: C.Narasimha Reddy … Petitioner And: State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.R.C.No.689 of 2011 JUDGMENT: This criminal revision case is directed against the order dated 25.02.2011 in Crl.M.P.No.68 of 2011 in S.C.No.81 of 2008, on the file of the Special Sessions Judge for SC and ST (POA) Act, Ranga Reddy District, wherein the said petition filed by the prosecution under Section 216 Cr.P.C., for framing of additional charge for the offence under Section 376 IPC, was allowed. 2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent/State. Perused the record. 3. The petitioner herein is facing prosecution for the offences under Sections 493 and 478 IPC in S.C.No.81 of 2008. According to the prosecution, the accused developed intimacy with the victim girl P.W.1 who is of the same village and had physical contact with her and promised to marry her, but subsequently went back on his promise after she became pregnant. It is stated that the trial of the accused has been completed in the sense that recording of entire evidence is over and the matter is at the stage of examination of the accused under Section 313 Cr.P.C. At that stage, the prosecution filed Crl.M.P.No.68 of 2011 under Section 216 Cr.P.C seeking framing of additional charge under Section 376 IPC on the ground that consent given by P.W.1 was under the belief that the accused would marry her as promised by him. The petitioner filed counter opposing the said application and contending that there is absolutely no material on record to show even prima facie that the ingredients of the offence under Section 375 IPC are attracted. The learned Sessions Judge, by a cryptic order, which is impugned herein, allowed the application, observing that developing love and continuing physical contacts by the accused with the victim in the name of love or in the name of marriage amount to rape, is a debatable question that can be decided only after trial. The learned Sessions Judge declined to deal with the decisions of the Apex Court cited by the learned counsel for the petitioner on the ground it was not appropriate to discuss the same at that stage. 4. In the charge sheet, it is no where alleged that the accused had sexual intercourse with the victim girl against her will or without her consent. Admittedly, the victim girl is a major, aged about 24 years. To constitute an offence under Section 376 IPC and for framing a charge for the said offence, there shall have to be some basis or justification in the material available on record prima facie attracting the ingredients of the said offence. In a decision i n HARIHAR CHAKRAVARTY V. THE STATE OF WEST BENGAL[1] cited by the learned counsel for the petitioner, the Apex Court held that the trial Court would have altered the charge or added an offence for which the accused was not originally charged if there were material before it either in the complaint or in the evidence to justify such action. In the complaint, the victim girl has not alleged that accused had sexual intercourse with her against her will or without her consent. What all she alleged is that the accused used to have sexual intercourse with her on the promise of marrying her and subsequently after she became pregnant, he stopped coming to her and thereby cheated her. In the charge sheet also, there is no allegation to the effect that the accused had sex with the complainant against her will or without her consent. In the evidence also, the complainant, as P.W.1, deposed that believing the words of the accused that he would marry her, she submitted herself to the accused. In the cross-examination, P.W.1 stated that herself and accused used to participate in sexual intercourse even prior to his promise to marry her. Thus, as per the evidence of P.W.1, the sexual life between the accused and P.W.1 commenced and continued even prior to the promise of marriage made by the accused. When that is so, P.W.1 was a consenting partner and it cannot be said that the accused had sexual intercourse with her either against her will or without her consent. It may be that the accused, after exploiting P.W.1 sexually on the promise of marriage, subsequently betrayed her after she came pregnant. The truth or otherwise of the said allegations made against the accused is a matter to be considered by the trial Court on evidence adduced during the trial. The complaint or the charge sheet or the evidence on record do not contain any specific allegation or any other incriminating material against the petitioner/accused warranting framing of additional charge under Section 376 IPC, inasmuch as the sexual intercourse between the accused and P.W.1, even according to P.W.1, she was a willing and consenting partner in the sexual life with the accused. No doubt, Section 216 Cr.P.C enables the Court to frame an additional charge at any time as observed by the trial Court. The Court can exercise its power to alter or add to any charge under the said enabling provision, provided there is justification for doing so,, as held by the Apex Court in the decision cited supra. 5. In UDAY V. STATE OF KARNATAKA[2], the Apex Court held that consent given by the prosecutrix to have sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date cannot be said to be under a misconception. The said decision was followed by this Court in SURAPATHI LAXMANA RAO V. STATE OF A.P. REP. BY PUBLIC PROSECUTOR[3]. The above two decisions though cited before the trial Court were not taken into consideration by the learned Sessions Judge while passing the impugned order. In the present case, the material on record does not disclose the existence of any such basis justifying framing of additional charge under Section 376 IPC. 6. In the circumstances, it is held that the impugned order, permitting framing of additional charge under Section 376 IPC, is held unsustainable and the same is accordingly set aside. The trial Court shall dispose of the case on its own merits without in any way being influenced by any of the observations made hereinabove. 7. In the result, the criminal revision case is allowed. ______________________ G.V.SEETHAPATHY, J 26th July, 2011 Lrkm. [1] AIR 1954 SC 266 [2] 2003(1) ALT (Crl.) 326 (SC) [3] 2004(1) ALT (Crl.) 251 (A.P)