Crl. Revision No. 2264 of 2008 {1} In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 2264 of 2008 Date of Decision:February 18, 2009 Sunita ---Petitioner versus Ram Kumar Gupta and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Rohit Ahuja,Advocate, for the petitioner None for respondents No. 1 and 2 Mr. Sidharth Sarup, AAG, Haryana for respondent No. 3 *** SABINA, J. Ram Kumar Gupta and Kunwar Chand-respondents No. 1 and 2 respectively were tried for an offence under Sections 452, 376(2)(g) and 506 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC') in FIR No. 265 dated 10.6.2004 under Section 452, 376(2)(g), 506, 34 IPC registered at Police Station Old Faridabad by the Additional Sessions Judge, Faridabad. Vide the impugned judgment dated 5.7.2008, accused Ram Kumar Gupta and Kunwar Chand were acquitted on the charge framed against them. Aggrieved by the same, complainant-Sunita has filed the present revision petition. Prosecution story, in brief as noticed by the learned trial court in Crl. Revision No. 2264 of 2008 {2} para 2 to 5 is as under:- “2.Briefly stating the prosecution case is that the FIR of this case was lodged at the instance of Smt. Sunita wife of Shri Mahesh Singla (hereinafter being referred as prosecutrix). As per prosecution version, initially the prosecutrix sent the complaint dated 13.10.2003 by post to the then Superintendent of Police, Faridabad and in response to the above said complaint, the DDR No. 8 dated 15.10.2003 Ex. PF was recorded in the daily dairy register of police station Saran. Later on, when the report from the Forensic Science Laboratory, Haryana Ex. PH was received, the formal FIR of the case Ex. PF/1 was lodged on 10.6.2004. 3. As per the contents of the FIR, the allegations of the prosecutrix were that on 8.`0.2003 at about 9-00 p.m., she was present in her home and when somebody knocked the door of her house, she thought that her husband might have returned and when she opened the door of her house, she found Ram Kumar Gupta and Kunwar Chand @ Khappi on the door. They entered in her home and bolted the door from inside and then Ram Kumar Gupta picked up a knife and put it on her neck and threatened that if she raised alarm for held, he will hill her'. As per complainant, on the point of knief, the above said two person removed her clothes and against her consent raped her one by one. Crl. Revision No. 2264 of 2008 {3} 4. As per complainant, both the accused left the spot and threatened that in case she disclosed the incident to anybody else, they will kill her family members and that she kept on weeping the whole night and in the morning she visited the police station at 7-00 a.m. And narrated the entire incident before the police officials but the police officials advised her that she should not put her reputation on stake and that the accused are well connected persons and no action can be taken against them. As per complainant, she was advised by the police officials to return home and that she came back to her home and being aggrieved of the incident, she wrote a letter to the Superintendent of Police seeking justice. 5. Once the DDR Ex. PF was lodged, the police approached the prosecutrix and got her examined medico legally and collected the medicolegal report Ex. PB. The vaginal swab was collected by the Medical Officer, which were seized by the Investigating Officer vide memo Ex. PA and the same was sent to the Forensic Science Laboratory for testing. On receipt of report Ex. PH, the investigation was set into motion. The accused were arrested. Both of them were got examined medico legally. The Investigating Officer collected the report of medico legal examination of the accused Ram Kumar Gupta Ex. PD and Kunwar Chand Ex. PC. The Investigating Officer also inspected the spot and prepared the site plan Ex. PA on 12.6.2008 and also got the scaled site plan of the place of occurrence prepared b y Crl. Revision No. 2264 of 2008 {4} Draftsman on 1.8.2004 as Ex. PE and recorded the statement of witnesses. On completion of usual formalities of investigation, the report under Section 173 Cr.P.C. was prepared and presented in the court.” Learned counsel for the petitioner has submitted that the trial court had erred in acquitting respondents No. 1 and 2 of the charge framed against them. Prosecution had been successful in proving its case. Testimony of the prosecutrix was duly corroborated by medical evidence. Occurrence in this case is alleged to have taken place on 8.10.2003 at about 9-00 p.m. However, DDR was got lodged on 15.10.2003. Thereafter the formal FIR was registered on 10.6.2004 after getting the medical report. A perusal of the judgment of the trial court reveals that prosecutrix in her cross examination admitted that her husband was running committees and was collecting money from various persons. Accused -Kunwar Chand was also a member of the said committee. Some of the members of the said committee had departed with money and due to this loss accused Kunwar Chand and Parmod Rana were pressing hard her husband for return of their money. Ram Kumar Gupta-accused was the relative of Kunwar Chand and was residing in the same locality. Her husband met her on 12.10.2003 and then had gone somewhere to get the application typed. Her husband has taken her signatures on four papers but did not visit the police station. Thereafter, her husband did not meet her for one and a half month. Her husband surrendered before the police in connection with a case lodged against him at the instance of Parmod Rana. Police had visited her residence on 14.10.2003 and that during the period i.e. between the occurrence on 8.10.2003 till 15.10.2003, she was not Crl. Revision No. 2264 of 2008 {5} medically examined. Learned trial court further observed that PW 10 -Mahesh husband of the prosecutrix in his examination-in-chief had supported the prosecution case and deposed that on 9.10.2003 he had received a telephonic call from his wife with regard to the occurrence. Thereafter, he met his wife on 12.10.2003. After getting the complaint typed he got the signatures of his wife on the complaint and sent the copies of the complaint by post to the Chief Minister of Haryana, Hon'ble Chief Justice of Punjab and Haryana High court, Women Cell, Superintendent of Police, Faridabad. In his cross examination, he admitted that at the time of incident, he was hiding because a criminal case was registered against him regarding financial transaction of committee/lottery and one of the accused was a member of the said committee. He had also got a criminal case registered against Khafi. He did not visit the police station with regard to the incident of rape and had requested his brother to help his wife. It has further been observed by the trial court that prosecutrix was medically examined on 15.10.2006. As per PW-3 no mark of injury was present on the person of the prosecutrix and two vaginal swabs were sent for chemical analysis for human semen. The possibility of sexual intercourse could not be ruled out and that in her report she had not mentioned the time of recent intercourse. Semen remains present for 3-4 days only and after 7-10 days of such intercourse, only dead sperms may be seen. Doctor-Veena Sharma PW-3 further deposed that the finding recorded by her in the Medico Legal Report were generally seen in case of a married woman. Learned trial court had further given the following reasons for Crl. Revision No. 2264 of 2008 {6} doubting the prosecution case in para 30 of its judgment and the same are reproduced herein below:- “As for as the above said point for determination is concerned, in this context, first of all, it is pertinent to mention that the prosecutrix when appeared in the witness box, could not retain the same stand which was taken by her by virtue of application Ex. D2. The narration of incident in Ex. D2 is slightly different than the narration of incident as PW9 in the Court. In her complaint Ex. D2, the prosecutrix came forward with the stand that the knife was held by accused Ram Kumar and he kept the knife on her neck but while deposing in the court, the PW9 has deposed that it was the accused Kunwar Chand who was holding the knife. Secondly, in the complaint Ex. D2, it was mentioned by the prosecutrix that when the accused left the home, she kept on weeping and in the morning at about 7-00 a.m. she went to the police station Saran to lodge the report against the accused. However in the court, the PW9 came forward with a version that just after the incident she raised alarm and started weeping and after sometime, her sister-in-law Nemwati came down and she narrated the entire incident to her sister-in-law. Thirdly, as per the contents of the complaint Ex. D1, she did not act till 7.00 a.m. In the morning nor informed anybody about the incident including her husband but in the court the prosecutrix has deposed that she narrated the incident Crl. Revision No. 2264 of 2008 {7} not only to her sister-in-law but kept on trying to contact her husband on telephone and informed him about the incident at about 6.00 p.m. Fourthly, as per complaint Ex. D1 viz-a-viz report Ex. PF, some indecent words were spoken by accused Kunwar Chand and he had removed her clothes. But in the court, the PW9 has improved her version by deposing the fact that her clothes were removed by breaking open the string of her petticoat. Fifthly, as complaint Ex. D1 viz-a-viz the report Ex. PF, once she was raped by accused Kunwar Chand, he took over the knife from accused Ram Kumar Gupta and kept it on her neck and allowed Ram Kumar Gupta to rape her but in her cross-examination, the PW9 has deposed that she never told the police that the knife was ever carried by accused Khafi. Sixthly, as per prosecution version i.e. the testimony of draftsman and Investigating Officer, the prosecutrix was raped in the room shown with 'mark-A' in the site plan Ex. PE but as per prosecutrix, herself as PW9, she was raped in room shown with 'mark-B' in the site plan. Seventhly, as per site plan Ex. PE, on the southern side of room, shown as 'mark-C' and 'mark-B, there is a street but as PW9, there is another room which was occupied by her tenant 'Rakhi'.” Trial court has further observed that delay in lodging the DDR is also very material in this case. It was further observed that the Crl. Revision No. 2264 of 2008 {8} prosecutrix and her husband were residing in a thickly populated area. There were five rooms in the house where the prosecutrix was staying and three rooms were occupied by families of three tenants and one of whom is a very close relative, sister-in-law of the prosecutrix. In these circumstances, learned trial court observed that it was doubtful that the offence of rape was committed and the persons residing in the rooms nearby did not come to know about the incident. Prosecutrix was also having four grown up children. They must have been present in the adjoining rooms. . In these circumstances it was held to be impossible that despite raising alarm they did not come to know about the occurrence. It was further held that since the prosecutrix was a married woman then in these circumstances it was necessary for the prosecution to establish that the human semen present on the vaginal swab actually belong to the accused. Learned trial court in view of the above findings/observations has rightly held that the prosecution had failed to prove its case against the accused. The delay in lodging the DDR with the police is significant in the facts and circumstances of the present case as the accused Kunwar Chand and Parmod Rana were pressing the husband of the complainant to return their money and he had gone into hiding due to registration of criminal case against him. In these circumstances possibility of false involvement of respondents No. 1 and 2 cannot be ruled out. It has been held by Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the Crl. Revision No. 2264 of 2008 {9} instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect or procedure or manifest error of law resulting in flagrant miscarriage of justice. In these circumstances, the learned trial court rightly held that the prosecution had failed to prove its case against respondents No. 1 and 2. The reasons given by the trial court for acquitting the respondents No. 1 and 2 are sound reasons. The present case does not warrant retrial. As per Section 401(3) of the Code of Criminal Procedure, a finding of acquittal cannot be converted into a finding of conviction by this Court. The impugned judgment of the trial court, thus, calls for no interference. Accordingly, this petition is dismissed. (SABINA) JUDGE February 18, 2009 PARAMJIT