Crl.Misc. No.A. 40-MA of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.A. 40-MA of 2010 (O&M) DATE OF DECISION: MARCH 05, 2010 State of Haryana .....APPLICANT Versus Manoj Kumar ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.S.S. Randhawa, Addl.A.G., Haryana, for the applicant. .. SATISH KUMAR MITTAL, J. The State of Haryana has filed this application for grant of leave to appeal under Section 378(3) Cr. P.C. against the judgment dated 28.7.2009 passed by the Additional Sessions Judge, Faridabad, whereby respondent Manoj Kumar has been acquitted of the charge under Sections 452, 376 and 506 IPC. In the present case, the prosecution was launched against the respondent on the complaint made by the prosecutrix to the police wherein it was stated that on the day of the occurrence, her brother had gone out to his native village for some personal work. Therefore, the prosecutrix was asked by her mother to sleep with her sister-in-law (brother's wife) in her room in the night of 22.3.2008. At about 11.00 PM in the night, respondent Manoj Kumar entered in the room and committed rape upon the prosecutrix against her wishes. It has been further alleged that during the course of Crl.Misc. No.A. 40-MA of 2010 (O&M) -2- incident, the accused threatened her to kill if she raised any noise. It has been further alleged that while the respondent was inside the room, one Tulsi was kept standing outside the house. After the incident, the respondent ran away from the house and thereafter the prosecutrix raised noise. Then her brother's wife, who was sleeping in the nearby cot and her parents, who were sleeping on the roof of adjoining house, got up. They saw the respondent and said Tulsi running away from the spot. During the course of investigation, Tulsi was found innocent and charge-sheet was submitted only against respondent Manoj Kumar. The aforesaid complaint was made to the police after two days. After registration of the formal FIR, the prosecutrix was medico-legally examined. Dr. Veena Rani (PW6) had medico-legally examined the prosecutrix on 24.3.2008. According to her, secondary characters of prosecutrix were fully developed and the vagina was admitting two fingers. In the opinion of the doctor, the prosecutrix was habitual of sexual intercourse. The vaginal swab of the prosecutrix was taken. However, according to the report of the Forensic Science Laboratory (Ex.P6), the semens were not detected either on the underwear of the prosecutrix or her vaginal swab. In support of its case, the prosecution examined the prosecutrix herself as PW1 and Preeti (sister-in-law of the prosecutrix) as PW2. PW3- Dr. Govind Sharan was examined to prove the medico-legal report (Ex.P2), whereby on medico-legal examination of the respondent, he had opined that the accused was capable to perform sexual intercourse. The prosecution also produced some formal witnesses as well as PW11-Vijay Pal, Investigating Officer. Crl.Misc. No.A. 40-MA of 2010 (O&M) -3- In his statement under Section 313 Cr.P.C., the respondent denied the prosecution version and pleaded that he has been falsely implicated. After considering the prosecution evidence and hearing the arguments of both the sides, the trial Court acquitted the respondent by giving him the benefit of doubt. Against the said judgment, the instant application for grant of leave to appeal has been filed. We have heard the learned counsel for the applicant. After going through the judgment of the trial Court and considering the submissions made by the learned counsel for the applicant, we do not find the instant case a fit case for grant of leave to appeal. In our opinion, after appreciating the evidence available on the record, the trial Court has rightly come to the conclusion that the prosecution has failed to prove its case against the respondent beyond reasonable doubt. The manner in which both the prosecution witnesses, i.e., PW1-prosecutrix and PW2- Preeti, had narrated the alleged incident, the trial Court has believed their testimony and has come to the conclusion that the respondent has been falsely implicated in this case. It has been found that as per the deposition made by PW2- Preeti, the room in which the prosecutrix and she was sleeping in the night of the alleged occurrence, was having two doors. Before sleeping, both the doors were bolted by them from inside. She has further stated in her statement before the Court that she did not find the bolt of any door in broken condition. In these circumstances, it was found that the prosecution has failed to explain how the respondent came in the room and then committed the rape. Crl.Misc. No.A. 40-MA of 2010 (O&M) -4- It has been further found that when the prosecutrix was sleeping in the room along with her sister-in-law, it is highly improbable that the respondent had forcibly committed the rape and sister-in-law of the prosecutrix remained sleeping. As per the statement of the prosecutrix, when after committing the rape, the respondent ran away from the house, then she raised alarm, on that her sister-in-law and mother woke up. It has been noticed that when a suggestion was put that she did not cry when the respondent was committing rape, she gave the explanation that she could not do so because the respondent had gagged her mouth. However, while lodging the FIR, this fact was not stated by the prosecutrix. Therefore, the trial Court has rightly come to the conclusion that the aforesaid explanation given by the prosecutrix was an after thought. It has further come in evidence that the respondent was not carrying any weapon. In that situation, the story put forward by the prosecution that he gave threat to the prosecutrix not to raise voice otherwise he would kill her and her father, does not inspire any confidence. It was noticed that the conduct of the prosecutrix seems to be improbable that she raised noise only when the respondent ran away from the house and why she did not raise any noise when the respondent was sexually assaulting her. It has been further found that no external injury was found on the person of the prosecutrix during the medico-legal examination. The clothes worn by the prosecutrix at the time of the alleged occurrence were also not found to be torn. It has been noticed by the trial Court on the opinion of Dr. Veena Rani (PW6) that the prosecutrix was habitual to sexual intercourse. However, in this regard no explanation was given by the prosecution, as according to the prosecutrix, the alleged act was the first act of sexual intercourse with her. The trial Crl.Misc. No.A. 40-MA of 2010 (O&M) -5- Court has further relied upon the medical evidence, the underwear, which the prosecutrix was wearing at the time of the alleged incident and the vaginal swab, which was taken during the medico-legal examination, and as per the Forensic Science Laboratory report, no semens were detected either on the underwear of the prosecutrix or her vaginal swab. On these basis, the trial Court came to the conclusion that the commission of the rape in the manner itself becomes doubtful. The trial Court has also come to the conclusion that the delay of two days in filing the complaint has not been satisfactorily explained. Taking into consideration all these aspects, the trial Court has come to the conclusion that in the present case the prosecution has failed to establish its case against the respondent beyond reasonable doubt and the possibility cannot be ruled out that the respondent might have been falsely implicated in this case, as claimed by him. Learned counsel for the applicant could not point out any illegality or perversity in the impugned judgment. He also could not point out any misreading or wrong appreciation of any evidence by the trial Court. In our opinion, the view taken by the trial Court in the case, on the basis of the evidence led by the prosecution, is the only possible view and no second view can be taken. In view of the above, we do not find any ground to grant leave to appeal against the judgment dated 28.7.2009 passed by the Additional Sessions Judge, Faridabad. Hence, the application is dismissed. (SATISH KUMAR MITTAL) JUDGE March 05, 2010 ( JORA SINGH ) vkg JUDGE