Crl. Revn. No.3184 of 2009 (O&M) (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revn. No.3184 of 2009 (O&M) DATE OF DECISION: Krishan ..........Petitioner Versus State of Haryana ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. R.S. Malik, Advocate for the petitioner. Mr. S.S. Mor, Sr. DAG, Haryana. **** DAYA CHAUDHARY, J. The present revision petition has been filed against judgment dated 13.11.2009 passed by Additional Sessions Judge, Panipat vide which the appeal filed by the petitioner against judgment and order dated 16/21.10.2008 passed by Additional Chief Judicial Magistrate, Panipat convicting and sentencing the petitioner to undergo RI for four years under Section 377/511 IPC and to pay a fine of Rs. 5000/- and in default of payment of fine to further under simple imprisonment of eight months, has been dismissed. On 14.12.2009, while issuing notice of motion, following order was passed by this Court:- “Crl. Misc. No. 63428 of 2009 Prayer is for placing on record the questions addressed to the child witness and their answers. Allowed. Questions and Crl. Revn. No.3184 of 2009 (O&M) (2) answers are taken on record. Application disposed of. Crl. Revn. No. 3184 of 2009 It appears that the questions addressed in Hindi have not been properly translated. The answers given by the child witness would indicate that it could not be said that he was not capable of deposing on the facts. Thus, the victim could have given evidence but has not been examined by the Court. Complainant-father has also resiled from his earlier statement. Notice of motion for 25.1.2010.” Learned counsel for the petitioner contends that both the Courts below have failed to appreciate that there was delay of more than 27 hours in lodging the FIR. There was previous enmity between both the parties and the present case was registered just to put undue pressure upon the petitioner by filing false complaint against him. Learned counsel further contents that during cross-examination the complainant himself admitted that there was dispute previously between him and father of petitioner with regard to land and house of petitioner's father was demolished by Panchayat upon his complaint. It was also admitted by the complainant that he did not see anything with his own eyes and the petitioner was named only on the basis of suspicion. He further stated that he had given the statement only on the asking of the police and subsequently the matter was compromised between the parties. Learned counsel also submits that there is no independent corroboration of the allegations levelled against the petitioner and all witnesses being family members are interested witnesses. It is also the argument of learned counsel that the punishment awarded is on the excessive side as only the attempt was there and there was no commission of offence. Learned counsel for the respondent-State states that both the Crl. Revn. No.3184 of 2009 (O&M) (3) Courts below have rightly convicted and sentenced the petitioner as he has committed a henious crime with a boy of tender age by committing unnatural offence and the incident was witnessed by the complainant himself, which has been proved by medical evidence also. I have heard the arguments advanced by learned counsel for the parties and have also gone through the judgments of both the Court below. As per case of the prosecution, FIR was registered on the basis of statement made by complainant-Randhir Singh to the effect that he had two sons. The elder son named Vishal was studying in class nursery. On 2.3.2008 i.e. Sunday at about 12.30 pm, Vishal was playing and he was found missing subsequently. The complainant heard the voice of his son from the house of accused and saw him while committing unnatural act with his son. On seeing the complainant, accused ran away from the spot. Blood was coming from the anus of the child. A panchayat was convened but accused did not join and case was registered on the basis of statement made by complainant. Investigation was conducted. Statement of witnesses under Section 161 Cr.P.C. were recorded and accused was arrested. On completion of other formalities of investigation, final report under Section 173 Cr.P.C. was prepared and presented before the trial Court. The accused was chargesheeted under Section 377/511 IPC to which he pleaded not guilty and claimed trial. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein, he pleaded false implication. The trial Court on appreciation of evidence convicted and sentenced the petitioner under Section 377/511 IPC, RI for four years and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo simple imprisonment for eight months. Against the judgment of conviction and order of sentence, an Crl. Revn. No.3184 of 2009 (O&M) (4) appeal was filed before learned Additional Sessions Judge, Panipat, which was also dismissed vide order dated 13.11.2009 and judgment of conviction and order of sentence passed by trial Court were upheld. The present revision petition has been filed against the judgments passed by both the Courts below. The argument of learned counsel for the petitioner that there is delay in lodging the FIR and the FIR was the result of previous enmity between the parties, has no merit, as the complainant has properly explained the delay in lodging the FIR by specifically mentioning in his complaint that a Panchayat was held in village and accused was called but he did not come present. Moreover, delay in such like cases takes place as the complainant thinks many a times before reporting the matter to the police as a stigma remains forever in such like cases. Moreover, the victim is a small kid and with the intervention of the respectables of the village, a Panchayat was convened to settle the dispute between the parties. The delay has been explained by the complainant before the police as well as before the Court. As far as cross-examination of complainant is concerned, he has supported the case of the prosecution and corroborated his earlier version given to the police. Later on the matter was compromised with the complainant and an application under Section 311 Cr.P.C. was moved before the trial Court, which was dismissed on 21.7.2008. The revision was filed which was allowed vide order dated 23.8.2008 and accordingly Randhir Singh, complainant was recalled for further cross-examination which was recorded on 24.8.2008, wherein, he admitted with regard to pendency of civil litigation. This was an improved version made by complainant at the instance of accused, which may be because of some compromise. It appears that the complainant changed his version and backed out from his earlier statement made before the Court. Moreover, the case has been proved by the statement of Dr. Nitin Crl. Revn. No.3184 of 2009 (O&M) (5) Kalra, Medical Officer, Civil Hospital, Panipat, who had examined victim on 3.3.2008 and find lacerated wound over the anal reason 2 x 5 inch deep with redness and there was a complaint of pain also, which has been proved by him as Ex. P3/A. As per medical evidence also, the case of the prosecution has been proved. In view of the facts mentioned above, there is no illegality in the judgment of conviction and order of sentence passed by Courts below. The petitioner has committed a henious crime, therefore, he does not deserve any leniency in reducing the sentence also. There is no merit in the present revision petition and the same is dismissed accordingly. , 2010 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No