5 The learned Counsel appearing for the petitioner submitted that there is no ingredient for the commission of alleged offence under Section 376 and the prosecution also, after investigation framed charges under Sections 417 and 420 IPC only. Further he submitted that the first respondent has no locus standi to prefer the petition for alteration of charge, when the State/2nd respondent herein was prosecuting the case. The first respondent/victim women, in chief examination, had clearly stated that the petitioner/accused had promised to marry her and after obtaining consent of the first respondent only the accused had sexual intercourse with her and she further stated that the petitioner/accused is a good person and their parents only misguided him, which clearly shows that the petitioner/accused had no intention to cheat her. The first respondent, being an adult, had given consent for sexual intercourse with the petitioner/accused and hence at any point of time, Section 376 will not attract. Furthermore, FIR is of the year 1999 and evidence commenced in the year 2002 itself and after the lapse of more than a decade, the first respondent had filed a petition, seeking to alter the charges, which itself cannot be entertained. The learned Magistrate failed to consider the above facts and erroneously allowed the petition and altered the charges, which warrants interference.
