Kusum Malik vs State And Anr.
2005 Latest Caselaw 351 Del

JUDGMENT

Manju Goel, J.

1. This criminal revision petition arises from an order of acquittal. The revision petition is filed by the prosecutrix in a case of rape.

2. The first thing to be decided in this case is the scope of the revision petition. The learned counsel for the petitioner relies upon the judgment of the Supreme Court in the case of Ram Briksh Singh and Ors. v. Ambika Yadav and Anr.; 2004 (1) JCC 665. In this case, in a similar revision, the order of acquittal was set aside and the case was sent back by the High Court to the Trial Court on the ground that material available on record has not been considered by the Trial Court. It was a case of murder. There was no eye witness. The prosecution case depended upon circumstantial evidence. However, there were three witnesses who had noticed, the deceased being dragged and the investigating officer who found the body of the deceased in the courtyard of the house of the accused in a mutilated condition. High Court also found that the evidence on the point of dragging of the deceased and on the point of recovery of the dead body from the courtyard of the house of the accused had remained unshaken and had been corroborated by evidence of PW 8. This material evidence had been overlooked by the Trial Court and accordingly, the order was made by the High Court. This order was upheld by the Supreme Court in the judgment. The relevant part of the judgment is extracted below:-

"4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.

5. More than half a century ago, in D. Stephens v. Nosibulla , this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent a gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has misappreciated the evidence on record.

6. In K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr. a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way illustration were mentioned wherein the High Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is overlooked by the trial court."

3. Section 401 of the Criminal Procedure Code says it specifically that on a revision petition, the High Court cannot convert a finding of acquittal into one of conviction. Both counsel agree that when a private party or a complainant files a revision petition over an order of acquittal, High Court can send the case for re-trial. Further following the judgment of the Supreme Court in the case of Ram Briksh Singh and Ors. v. Ambika Yadav and Anr. (supra), the case can be sent back to the Trial Court for reappreciation of evidence in case any evidence on record has not been considered by the Trial Court. For getting an order of re-trial or for return of the file for re-consideration of the evidence, the counsel for the petitioner has to make out a case that either some evidence on record has not been considered or that some evidence which could have been produced was barred by the Court or that some evidence taken by the Court and relied upon by the Court was not admissible in evidence.

4. The prosecution case was that Anil Kumar Malik, the accused/respondent No.2, cousin of the husband of the prosecutrix was on visiting terms with the complainant and her husband. Further, the complainant before her marriage had written letters to the accused about which she had forgotten after her marriage in 1981. Allegedly the accused came to the house some time in 1986 and showed the letters written by her and threatened to show those letters to her husband and under that threat committed sexual intercourse with her. It is further the case of the prosecution that whenever there was no one at home the accused used to come to the house and used to have sexual intercourse with the complainant under coercion. The accused is alleged to have blackmailed the complainant into paying him Rs.50,000/- three times. Thereafter when the complainant stopped giving further money to the accused, the accused brought yet another person with him who also committed rape on her. It is alleged by the complainant that the accused started bringing other persons with him who took turns to rape her. The accused is alleged to have taken her photographs and kept coming to her on the days when her mother-in-law and her children were not at home. The alleged blackmailing and rape continued till 1.8.92 when the accused visited her during the presence of her husband when she told everything to her husband. The rest of the story given in the long complaint is not relevant because that does not contain any allegation of further rape.

5. The prosecutrix herself is a witness in this case who substantiated the complaint on the basis of which FIR PW 1/A was recorded.

6. From her examination in chief and her answers given in cross-examination, the Trial Court gathered that the accused could not come to her house in the absence of her husband unless the complainant/prosecutrix herself allowed him entry into the house. The Trial Court also noticed that the accused could not have known when there was none else in the house unless the prosecutrix told him. The Trial Court also observed that the prosecutrix had written about 12 letters before her marriage to the accused. About the incident of May 1986, the prosecutrix stated in a cross-examination that the accused had come to her house at around 12.30 p.m from the backdoor in the service lane and she took him to the middle room of the house which was a bed room and after talking for a while the accused showed her about 10 letters which she had written and that the accused then had sexual intercourse with her in the room. The Trial Court has taken note of the fact that during the sexual act those letters remained in the pocket of the pant of the accused which he had taken off but she never threatened the accused that she would snatch the letter from him and did not actually make any effort to recover those letters. The Trial Court has taken note of the fact that there were other members in the family at that time and had she resisted the advance of the accused, the act could not have been possible. The Trial Court observed that the sexual act was committed without any resistance.

7. The case depends entirely on the testimony of the prosecutrix because there is no corroborative evidence either of any witness or of any medical opinion. There is no documentary evidence in the form of the alleged letters which she had written and which were used to blackmail her into the relationship. The alleged photographs also were never recovered or shown to the Court. On scrutiny of the entire long testimony of the prosecutrix, the Trial Court found that this relationship or alleged rape under threat of exposure of her photographs and her letters continued from May 1986 to August 1992 and that during this period the accused visited the prosecutrix very frequently. The Trial Court concluded that this relationship could not have continued without the consent of the prosecutrix and consequently held that there was no rape.

8. Learned counsel for the petitioner has repeatedly submitted that Trial Court has totally failed to appreciate the evidence on record and that the total approach of the Trial Court was incorrect. It is stated that accused himself denied having ever committed any sexual intercourse with her and the prosecutrix alleged that sexual intercourse had been committed under threat, and the Court has held that the sexual intercourse was committed with consent which was not the case of any of the two sides. I do not find anything wrong with the Trial Court coming to that finding. The criminal trial is not like a civil trial where the parties are restricted to their pleadings and the Court cannot make a third case. Here on the basis of evidence, the Trial Court has found that the alleged sexual intercourse committed by the accused could not have been committed unless the prosecutrix had consented to it.

9. The learned counsel for the petitioner points to a mistake in recording the testimony of the petitioner/prosecutrix and says that when the prosecutrix has stated before the Court that no family member was present in the house at the time of the first incident, the evidence recorded by mistake was that family members were actually present. The prosecutrix had also made an application to the Court pointing out the mistake. The Trial Court on that application passed an order saying that the statement as recorded be kept on the record and the prayer made by the prosecutrix for correction would be read with the whole statement of the prosecutrix at the time of deciding the case. It is submitted that this order was overlooked and the Trial Court held that the prosecutrix had admitted presence of family members in the house which led him to hold that the prosecutrix had consented to the sexual intercourse.

10. The nature of the case as a whole is not that rape was committed by force. The nature of the case is that the consent of the petitioner to the sexual act was obtained under threat of exposing her love letters written to the accused and subsequently under threat of exposing her photographs which the accused had allegedly taken after giving her some intoxicating or stupefying injection. In this situation, the main thrust of the prosecution should have been to prove that the accused had the tools or material to give threat to the prosecutrix. These tools were the photographs and letters which never came to light during trial. The Trial Court also took note of the fact that the parties had amorous relationship even before the prosecutrix was married. Further important thing in this case was that the long sexual relationship after the marriage of the prosecutrix lasted for more than 6 years. The whole thing put together led the Trial Court to believe that there was consent. The single mistake in recording the testimony of the prosecutrix, assuming that there was one, alone was not of any consequence and could not have caused any mistake in the Trial Court's finding. The alleged mistake was committed in respect of narration of one incident whereas the rape continued over several years. In fact, if a consent is obtained under threat, sexual intercourse can take place even when some member in the family, not so discerning or suspicious, is present in the house.

11. On the whole, it is not a case in which it can be said that the Trial Court has left any evidence out of consideration on account of which this Court should remand the case to the Trial Court for re-appreciation of evidence. Nor is it the case of the petitioner that the prosecutrix had failed to lead some evidence or some evidence had been barred by the Court which can be taken in a re-trial. Re-trial or remand cannot be ordered by the Court in revision simply because the scope of the revision is limited to that relief. In my opinion, no case for remand or re-trial has been made out. There is no gross mistake in the appreciation of evidence by the Trial Court calling for remand of the case for re-appreciation of evidence as was the situation in the case of Ram Briksh Singh and Ors. v. Ambika Yadav and Anr. (supra). The revision petition is accordingly dismissed.