IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 62 of 2009 Date of decision : August 07, 2009 NK Nitai Chjandra Das ....Petitioner versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Navkiran Singh, Advocate, for the petitioner L.N. Mittal, J. (Oral) Accused has filed this revision petition assailing order dated 20.8.2008 passed by learned Additional Sessions Judge, Gurdaspur, whereby ordering framing of charge for offence under section 376 IPC read with section 511 IPC. I have heard learned counsel for the petitioner and perused the case file. FIR was lodged by the mother of the prosecutrix aged 5 years. The occurrence took place on 11.4.2008 while prosecutrix was returning from school in school bus belonging to Armed Forces. The petitioner was Conductor of the bus called Danda-man . The prosecutrix on reaching home faced problem while urinating. The complainant herself treated the prosecutrix but in vain. On 16.4.2008, the complainant affectionately Criminal Revision No. 62 of 2009 -2- asked the prosecutrix if somebody has teased her. Thereupon, the prosecutrix disclosed that the petitioner made her sit in his lap on the back seat and picked up her skirt and removed her underwear and inserted finger in the private part i.e. vagina from where she urinates. Vaginal swabs of the prosecutrix were sent for chemical examination. Report of the Chemical Examiner shows that spermatozoa were found in the vaginal swabs. Learned trial court observing that on account of presence of spermatozoa in the vaginal swabs of the prosecutrix, prima facie case under section 376 IPC read with section 511 IPC is made out. Learned counsel for the petitioner vehemently contended that insertion of finger in the vagina of the prosecutrix would not amount to rape or attempt to rape falling within the purview of section 376 IPC. In support of this contention, reliance has been placed on judgment of Hon'ble Supreme Court in Sakshi versus Union of India and others, 2004(5) Supreme Court Cases, 518. There cannot be any quarrel regarding this legal proposition. However, in the instant case, spermatozoa were detected in vaginal swabs of the prosecutrix and thereupon, Medical Officer has opined that rape had been committed. Learned counsel for the petitioner vehemently contended that spermatozoa could not have survived after lapse of such a long time because occurrence had taken place on 11.4.2008 and the prosecutrix was medico legally examined on 17.4.2008 when the vaginal swabs were taken and the said vaginal swabs reached the Chemical Examiner on 21.4.2008 and the report of the Chemical Examiner is dated 6.5.2008. Criminal Revision No. 62 of 2009 -3- However, this has to be probed during trial and no such finding can be recorded at this stage without examination of the concerned witnesses including the Medical Officer and the Chemical Examiner, if necessary. On the other hand, in view of report of Chemical Examiner and opinion of the Medical Officer, which has been placed on record subsequent to the framing of charge by the trial court, it would be desirable for the trial court to reconsider the matter on charge to see if charge under section 376 IPC i.e. rape instead of charge under section 376 IPC read with section 511 IPC i.e. attempt to rape is made out. Finding no merit in the instant revision petition, the same is hereby dismissed. ( L.N. Mittal ) August 07, 2009 Judge 'dalbir'