- (1.) SHIV Charan, J. The instant revision has been instituted against the order dated 19. 9. 2007 passed by Additional Sessions Judge/special Judge (C. B. I.) Prevention of Corruption Act, Ghaziabad in ST. No. 439 of 2007 (State v. Surendra Koli and others) under Sections 364, 302, 376/511, 201, I. P. C. , P. S. S. C. B. 1st New Delhi. By the impugned order the learned Special Judge allowed the application of the complainant namely, Nand Lal moved under Section 216, Cr. P. C. For addition/alteration of the charges framed against revisionist Mohinder Singh Pandher for the offence under Sections 302,376 and 201 read with Section 120-B, I. P. C.
(2.) THE facts of the case shows that a case was registered at Crime No. 838 of 2007, P. S. Sector 20 NOIDA for the offences under Sections 364, 302, 201, 376, 120-B, I. P. C. Later on the investigation of the case was entrusted to the C. B. I. THE C. B. I, recorded the statement of the witnesses under Sections 161 and 164, Cr. P. C. D. N. A. and lie detector test were conducted of the applicant at the instance of the C. B. I. After completion of the investigation the C. B. I, submit ted the charge-sheet against the applicant and other co-accused. But the. charge-sheet was submitted against the revisionist for the offence under Sections 302, 376 and 201 read with Section 120-B, I. P. C. THE charge-sheet was submitted against the co-accused Surendra Koli and the revisionist. THE charge-sheet was submitted against Mohinder Singh Pandher for the offence under Sections 213, 214, 218 read with Section 120b and Sections 214, 201, 212, I. P. C. and 3/5 Immoral Traffic Prevention Act and Section 7 of Prevention of Corruption Act read with Section 120-B, I. P. C. the charge was not framed against the revisionist fpr the offence under Sections 364, 376, 302, 201 read with Section 120-B, I. P. C. , because the charge-sheet was not submitted by the C. B. I, against the revisionist for these offences. Statement of complainant Nand Lal was recorded on 6. 7. 2007 and in this statement Nand Lal witness also stated about the involvement of revisionist in the offence under Sections 302, 376, 201 read with Section 120b, hence the complainant Nand Lal moved an application for addition and alteration of these offence also and by the impugned order the learned Special Judge al lowed the application and framed the charges against the revisionist for these offences also. I have heard Sri V. P. Srivastava, Senior Advocate and also Sri Satish Kumar Tyagi, advocate for the revisionist and Sri G. S. Hajela Senior Advocate for the C. B. I, and A. G. A. also and perused the entire material on record. It has been argued by learned Counsel for the revisionist that the learned Sessions Judge was not justified in allowing the application for addition/alteration of the charge. That the C. B. I. Prime Investigating Agency of the country did not submitted the charge-sheet against the revisionist for the offence under Sections 302, 364,201, 376 read with Section 120-B, I. P. C. when there was no evidence at all in the case diary, hence the learned Special Judge acted illegally in framing the charges of these offence also without evidence. That Payal deceased had relation with the revisionist from earlier to the incident. And after payment to her he was in the habit of having sexual intercourse with her. Utmost against the revisionist offence can be of Prevention of Immoral Traffic Act. But there can be no offence under Section 376, IPC. against the revisionist considering the facts and circumstance, learned Counsel for the revisionist also argued that the charge was altered/added on the basis of statement of examination-in-chief of complainant Nand Lal. That in view of the judgment of Hon'ble Apex Court the Sessions Judge was not ji|[sti-fied in altering the charge without cross-examination of the witnesses. Thafno evidence was collected by C. B. I, of the murder of Payal. He also argued that the charge is to be framed only on the basis of the evidence available in the case diary and charge cannot be framed only on the basis of surmises and conjecture of the complainant. In the present case there was no evidence against the ac cused revisionist for the offence under Sections 364, 302, 376, I. PC. hence it can be said that the learned trial Court framed the charge for these offence only on the basis of surmises and conjecture without any evidence. The learned Counsel for the revisionist further argued that if the statement of Nand Lal is to be accepted as gospel truth then also on the basis of this evidence it cannot be stated that he was involved in the commission of offence of murder and rape. The statement of Nand Lal is only reliable to this extent that on the telephonic communication of co-accused Surender Koli, Payal deceased went at the house of the revisionist. But it cannot be inferred that he is a witness of the factum of murder and rape. He also argued that much has been alleged on behalf of the complainant that there was recovery out of the pointing out of the applicant of bones, skulls and weapons used in the commission of offence. But in this connection, the perusal of fard recovery is material and in view of the fard recovery it was Surendra Koli on whose pointing out bones, skulls and weapons of offence was recovered. On the basis of these recoveries also it cannot be said that the applicant is involved in the com mission of murder and rape. That in the present case prior to passing the im pugned order 5 witnesses were examined and no other witnesses except Nand Lal has stated about the involvement of revisionist in the offence of murder, kid naping or rape and his statement also does not inspire any confidence. The C. B. I, collected no evidence against the applicant of murder and race. Learned Counsel for the C. B. I, has denied the argument of the Counsel for the revisionist and it has been argued that the learned Sessions Judge has got every right to amend/alter the charge at any stage of trial prior to the pronounce ment of the judgment. In the present case, the learned Special Judge after perus ing the entire material on record including the statement of Nand Lal arrived at the conclusion that there is prima facie evidence for the offence under Sections 302, 376, 364,501 read with Section 120-B, I. PC. and the charges were framed for these offence also accordingly.
(3.) I have considered all facts and circumstances of the case, argument of the revisionist's Counsel as well as Counsel for the C. B. I. It is material to decide whether the trial Court was justified in framing the charge for the offence for which the charge-sheet was not submitted by the C. B. I, investigating Agency. Although the learned Senior Advocate of the revisionist has not disputed the competency of the trial Court in altering and adding of the charge at any stage of the case. But the contention of the learned Counsel for the revisionist is that there must be some substance on file for framing the charges for these offence. And in the present case there is no evidence at all to frame the charge for these offence. It will be material to mention in this case that this is very highlighted case known as Nithari Kand. And in the house of the revisionist D-5 Sector 31 NOIDA several innocent girl were raped and murdered. That the co-accused Surendra Koli used to allure the innocent adolescent girl and he took them inside the house of D-5 Sector 31 NOIDA and there Surendra Koli and revisionist assaulted them and committed sexual intercourse and then committed their murder. When the matter was highlighted then raid was conducted and bones and skulls as well as weap ons used in the offence were recovered from this house D-5. The application was moved under Section 216, Cr. P. C. for amending alter ation and addition of the charge so as to frame charge against the accused for the offence under Sections 302, 376, 364 read with Section 120-B, I. P. C. It has been provided under Section 216: "court may alter charge.-) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding imme diately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. ";