Crl.Rev.No. 314 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 314 of 2009 (O&M) Date of decision: 2.8.2010 Monika ......Petitioner Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Jagjeet Beniwal, Advocate, for the petitioner. **** SABINA, J. This petition has been filed by the petitioner-complainant under Section 401 of the Code of Criminal Procedure challenging order dated 19.8.2009 passed by the Sessions Judge, Bhiwani, whereby respondent No. 2 was acquitted of the charge framed against him. Prosecution case, as noticed by the trial Court in para No. 2 of its judgment, is reproduced herein below:- “As per the prosecution case on 28.7.2008 prosecutor came to police station along with her father Puran Chand and moved application Ex.PA to the effect that she was married to Gejender son of accused approximately 7-8 years ago. She is having two years old daughter. Crl.Rev.No. 314 of 2009 (O&M) 2 Accused Bhoop Singh was sexually harassing her since two years. Her mother-in-law, both 'Nanads' (sisters-in- law) and 'dever' (brother-in-law) had gone to the house of their maternal uncle. His mother-in-law left her at Bhiwani, because accused quarreled after consuming liquor. Her husband Gajender took her from Bhiwani to Paintawas. Thereafter he went to Haridwar to bring 'Kawar'. She was all alone at the house. On 26.7.2008 at about 8.30 p.m. she was sleeping in the room along with her daughter. In the meantime, accused came to room and raped her. She raised noise, but nobody came to her rescue, because none else was in the house. In the morning at about 8.00 a.m. accused again raped her. Thereafter she called her father through telephonic message.” After hearing learned counsel for the petitioner, I am of the opinion that this petition deserves to be dismissed. Learned trial Court, after appreciating the evidence led by the parties on record, in para Nos. 13 and 14 of its judgment, has observed as under:- “Before placing reliance upon solitary statement of prosecutrix all these things are to be kept in mind. Keeping in view all these aspects if we scrutinize the evidence available on the file then it will be clear that Crl.Rev.No. 314 of 2009 (O&M) 3 story put forward by the prosecutrix is not believable. As per evidence available on the file it is clear that accused is blind. Certificate Ex.D-1 was issued by the office of CMO on 28.8.1991, about 17 years before this incident. As per this certificate accused is having 100% disability of vision, it shows that accused is unable to see. This certificate is proved by Yogender Kumar, clerk of the office of CMO, who appeared as DW-1. In such a situation had accused tried to rape prosecutrix she could have saved herself. It is very much easy to give dose to blind person. It is nowhere stated by prosecutrix that accused was having any stick or any type of weapon in his hand at that time. She could have easily pushed him and went away. If it was not possible for her to go away in the night, she could have easily escaped in the morning of 27.7.2008. As per statement of PW-3 there was no injury mark on the person of PW-1. It is stated by her that if a blind person will try to rape young lady then possibility of injury marks can not be ruled out. As per prosecutrix accused raped her on 2.5.2006. Had it been so she was staying at her matrimonial house all alone. It is admitted by PW-1 in her cross-examination that there was dispute in between her and her husband and a panchayat was convened at the instance of her husband.” Crl.Rev.No. 314 of 2009 (O&M) 4 “It is stated by prosecutrix that after the incident she stayed at her matrimonial house for about 15 days. Had she been raped by accused she would have gone to her parental house after lodging report on 28.7.2008. Nobody would like to stay in the house where atrocities have been done upon her. It is stated by her that at the time of medical examination her mother-in-law was present in the hospital and she brought another set of clothes. If she was not aware about the incident then why she brought another set of clothes. It is stated by her that at the time of medical examination and recording her statement under Section 164 Cr.P.C.her father was there, but PW-2 stated that he was not with prosecutrix at the time of her medical examination or when her statement was recorded under Section 164 of Cr.P.C. PW-10 also stated that her father was present at hospital and when her statement was recorded under Section 164 Cr.P.C. Both of them are contradicting each other's statement. As per statement of PW-1 her father came to her matrimonial house on 28.7.2008 at about 12.00 o' noon. When she was all alone it was very much possible for her to go to her parental house or to police. It is nowhere stated by PW1 or PW2 that accused locked the door and did not allow her to go out of the house. Had Crl.Rev.No. 314 of 2009 (O&M) 5 accused committed rape on prosecutrix previously, her husband or other family members would not have left her at the house all alone. It is alleged in Ex.PA that her mother-in-law etc. left her in house at Bhiwani, but her husband took her to Paintawas Kalan. It is nowhere stated by PW1 that where she was left at Bhiwani, because her parental house is at village Manheru. Had her father-in-law raped her previously her husband i.e. DW3 would not have brought and left her all alone at his house with the company of accused. Keeping in view all these facts and circumstances it is clear that reliance cannot be placed upon the solitary statement of prosecutrix. Prosecution cannot derive any benefit from the cited case laws, because they are based upon altogether different facts. In those cases sole statement of prosecutrix was believable, whereas, it is not so in the present case.” Learned trial Court further held that the statement of the prosecutrix was not corroborated by the medical evidence. The reasons given by the trial Court, while acquitting respondent No. 2 of the charge levelled against him, are sound reasons. Learned counsel for the petitioner has failed to point out any mis-reading of evidence by the trial Court. As per certificate Ex.D-1, respondent No.2 was having Crl.Rev.No. 314 of 2009 (O&M) 6 100% disability of vision and was thus unable to see. The prosecutrix stayed in her matrimonial home for about 15 days after the alleged occurrence. There was some material contradictions in the statement of the prosecutrix recorded under Section 164 Cr.P.C. and her statement when she appeared in the witness box. It has been held by the 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 instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case does not warrant a 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. Accordingly, this revision petition is dismissed. Hence, the application seeking condonation of delay in filing the revision petition is merely academic and is disposed of as such. SABINA) JUDGE August 02, 2010 anita