JUDGMENT

Mr. Kuldeep Tiwari, J.

The applicant/appellant has filed the instant criminal appeal and application for seeking grant of leave to appeal against the judgement of acquittal passed by the learned trial court in case FIR No. 50 dated 7.2.2009, under Sections 323 , 506 IPC, registered at Police Station Sadar Gurgaon and Criminal Complaint No. 60 of 2014, filed under Sections 376 , 323, 506, 34 IPC, titled as 'Neetu v. Satish etc.', vide which respondents-accused were acquitted of the charges framed against them.

Factual Matrix

2. The case of the prosecution unfolded on a statement made by the prosecutrix on 7.2.2009, (the identity of the prosecutrix has been withheld in view of the provisions of Section 228(A) of IPC hereinafter to refer as the prosecutrix) to the police that her father is living separately from them for the last 15 years and she has been living with her siblings and mother Ramwati and her mother Ramwati is working as a house maid. On that day, at around 2.00 PM, when she was alone at her home, Satish son of Khushi Ram, Tejpal son of Dil Khush entered in her house. Satish grappled her and gagged her mouth and then Tejpal had ravished her. She tried to raise alarm but Satish had gagged her mouth. After the incident, both the accused left the house. When her mother came, she apprised her of the incident and she went to the house of accused to lodge a protest in this regard. There they assaulted her mother and brother Rahul. On the basis of the said statement, the police had registered a case for the commission of offence punishable under Section 376 read with Section 34 IPC. Investigation was carried out. Prosecutrix was medico legally examined through Dr. Alka Singh, PW6. The sample were sent to FSL Madhuban. The investigation was subsequently transferred to Assistant Commissioner of Police, Gurgaon, who after examining the FSL report found that the offence under Section 376 IPC is not made out and found that the present case is only a case of assault, therefore, offence under Section 376 IPC was deleted and offence punishable under Sections 323 , 506 read with Section 34 IPC were added in this case. Both the accused Satish and Tejpal were arrested and upon completion of investigation, final report under Section 173 Cr.P.C., 1973 was filed against accused-respondents Satish and Tejpal only to face the trial for commission of offence under Sections 323 , 506 read with Section 34 IPC.

Proceedings Before The Trial Court

3. After filing of challan, the prosecutrix through the State submitted an application under Section 323 Cr.P.C., 1973 for committing the case to the Court of Sessions for trial as the offences alleged by the prosecutrix in her complaint are exclusively triable by the Court of Sessions. However, the learned ACJM, Gurgaon vide order dated 3.3.2012, dismissed the application. Feeling aggrieved by the order of dismissal (supra), she preferred criminal revision through State before the learned Additional Sessions Judge, Gurgaon. However, the same was also dismissed vide order dated 25.10.2012. The order for not committing the case to the court of trial has attained conclusivity and finality. Feeling aggrieved by the inaction of police and non committal of the case to the court of Sessions, the complainant-prosecutrix filed a private complaint before Illaqa Magistrate on 7.4.2009 alleging therein the same allegations which she reported to police on 7.2.2009 upon which the FIR (supra) was registered. For the sake of brevity, the allegations are not repeated herein again. After the preliminary evidence was recorded by the Illaqa Magistrate, Satish, Tejpal and one Devender accused/respondents were ordered to be summoned for the commission of offence punishable under Sections 376 , 323,506 read with Section 34 IPC vide order dated 3.12.2013 passed by the learned ACJM, Gurgaon. Thereafter, finding that the offence under Section 376 IPC was exclusively triable by the court of Sessions, the complaint case