IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Revision Petition No.1235 of 1998 Date of Decision: 2.9.2009 Pale Ram. ....... Petitioner through Shri Vikram Singh, Advocate. Versus State of Haryana. ....... Respondent through Mrs.Sushma Chopra, Additional Advocate General. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition is directed against judgment dated 6.10.1998 of the Sessions Judge, Ambala (hereinafter described as `the appellate Court') vide which judgment of conviction dated 26.8.1998 and order of sentence dated 27.8.1998 passed by the Chief Judicial Magistrate, Panchkula (referred to hereinafter as `the trial Court') were upheld and the appeal of the petitioner was dismissed. Briefly stated the facts of the case are that on 6.9.1994 at about 2.30 P.M., complainant-Mukesh Kumar Arya, who was a first year student at Government College, Panchkula, was going to his electronic appliances Crl. Revision No.1235 of 1998 -2- .... shop at Majri Chowk, when the petitioner-Pala Ram accosted him and enquired about his identity and particulars. The complainant told his name and his father's name to the petitioner. Thereafter, the petitioner put his hand on the shoulder of the complainant and took him forcibly behind the college. On denial of the complainant to go ahead, the petitioner slapped him and threatened him to take to the Old Police Station, Panchkula. Upon this, he went with the petitioner in the bushes behind Saket Hospital, Panchkula where also he was given beating and, therefore, he felt frightened. Then, the petitioner removed the clothes of the complainant below the waist and sodomised him. When he resisted, he was again beaten and threatened with dire consequences if he disclosed the same to any person. The petitioner then left the place of occurrence. Thereafter, the complainant went to the nearby shop of his uncle- Dr.Yash Pal Arya and narrated the incident to him. Dr.Yash Pal Arya called the brother of the complainant, namely, Roshan Lal and all of them went to Police Station, Sector 5, Panchkula for reporting the matter to the police. There, the petitioner was also found standing as he was posted in the Police Station. The complainant identified him. On the basis of the statement of the complainant, an F.I.R. was registered. The investigation was handed over to A.S.I. Om Parkash. The petitioner was arrested. On his disclosure statement, the clothes of the petitioner were recovered which were kept in a almirah in the police station. The complainant and the petitioner were got medico-legally examined. After completion of investigation, the petitioner was challaned. Crl. Revision No.1235 of 1998 -3- .... The trial Court charge-sheeted the petitioner for having committed offences punishable under Sections 323, 377, 506 of the I.P.C. To which he pleaded not guilty and claimed trial. In order to establish its case, the prosecution examined as many as five witnesses. In his statement recorded under Section 313 of the Cr.P.C., the petitioner claimed innocence and pleaded false implication. To substantiate his defence, he examined DW1-Constable Daya Nand and DW2-Constable Balwan Singh. After appraisal of the entire evidence on record, the trial Court convicted the petitioner and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- under Section 377 of the I.P.C.; to undergo rigorous imprisonment for one year under Section 323 years and another one year rigorous imprisonment for offence under Section 506 of the I.P.C. All the sentences were, however, ordered to run concurrently. Feeling aggrieved, the petitioner filed an appeal which was dismissed by the appellate Court vide the impugned judgment, resulting in the filing of the instant revision petition. Learned counsel for the petitioner contended with reference to the evidence on record that the incident is highly improbable as it is alleged to have taken place in a busy place which is surrounded by shops and a hospital and, therefore, it is not believable that the petitioner has committed the alleged offences by taking an unwilling young person behind the bushes. Crl. Revision No.1235 of 1998 -4- .... He further contended that as per the allegations of the prosecution, the complainant had raised an alarm,but no body came to the spot which is again improbable since the place of incident is an open and busy place. Learned counsel for the petitioner argued that in his statement before the trial Court, the complainant has stated that the pant of the petitioner remained with him, but it is very strange that the investigating officer had recovered his clothes on a disclosure statement from the almirah in the police station and this itself creates a doubt on the veracity of the prosecution version. He then referred to the medical evidence on record to contend that there was no injury or bleeding in or around the anus of the complainant and, therefore, it could not be established that he was sodomised. Lastly, he contended that if this Court comes to the conclusion that the petitioner was rightly held guilty by the Courts below, then a lenient view may be taken as the career of the petitioner is at stake. In support of his contentions/submissions/ argument, he placed reliance on Chitranjan Dass Versus State of U.P., 1974(4) S.C.C. 454 and Fazal Rab Choudhary Versus State of Bihar, 1983 Crl.L.J. 632 (S.C.). In Chitranjan Dass's case (supra), it was observed as follows:- “In view of the material which has been placed before us indicating that the appellant, a highly educated and cultured individual, was suffering from mental aberration when he committed the offence of sodomy, and that, as a result of this conviction, he will suffer loss of service and other serious consequences to his career, we confirm the conviction but Crl. Revision No.1235 of 1998 -5- .... reduce the sentence to the period already undergone, which is said to be more than two months. The appellant, who is in jail, shall be released forthwith.” In Fazal Rab Chouhdary's case (supra), the Apex Court observed as under:- “3. The offence is one under Section 377, I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. However, in judging the depravity of the action for determining the quantum of sentence, all aspects of the matter must be kept in view. We feel there is some scope for modification of sentence. Having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to R.I. For 6 months. To the extent of this modification in the sentence, the appeal is allowed.” On the other hand, learned counsel for the respondent-State contended that there is cogent evidence on record to establish the guilt of the petitioner and, therefore, the revision petition is liable to be dismissed. She further contended that the petitioner was a member of a disciplined force and he was expected to protect the public and not to make them a victim and, therefore, keeping in view the gravity of the offence committed by him, he does not deserve any leniency. Crl. Revision No.1235 of 1998 -6- .... I have thoughtfully considered the rival contentions and have gone through the whole record. The testimony of PW4-Dr.Manoj Gupta reveals that after seeing the report of the Forensic Science Laboratory, he had opined that the act of sodomy was performed with the complainant. The relevant part of his statement is as under:- “After seeing report of the F.S.A., in my opinion, the act of sodomy was performed with Mukesh Arya. The police gave me the application Ex.PG for conducting the medical examination of Mukesh Arya.” In cross-examination, this witness reiterated that “it cannot be said that the sodomy was not committed with the victim.” In so far as the injury or violence to the local area is concerned, PW4 specifically stated in his cross-examination that “if the person is used to this act of sodomy then in that event the injuries would not occur on the anal region. It is not necessary that if the force is used to widen the hips, then there would be redness on the inner side of the hips. It is not necessary that if the full developed penis is inserted in the rectum then it would result in bleeding, even if the victim is a consenting party and is also minor. If the act is done with consent and the victim is used to it then there would not be any bleeding.” In view of the above statement of PW4, it is apparent that the presence of injury or bleeding of the anus is not a relevant factor. It may or may not be so. But, since the doctor has clearly opined that the victim was Crl. Revision No.1235 of 1998 -7- .... sodomised, the factum of the victim being subjected to unnatural sexual act stands established. Now, the next question that is to be seen is regarding the identity of the perpetrator. In an offence, such as like this, it is the statement of the victim which assumes paramount importance. If the victim in his testimony comes out as a straight-forward witness whose testimony can be said to be inspiring, then it can safely be relied upon. In some ways, such a victim of unnatural sex subjected to sodomy against his wishes is at par with a victim of rape punishable under Section 376 of the I.P.C. In the light of the above, now I proceed to evaluate the testimony of the complainant-Mukesh Arya, who appeared as PW1. He has unequivocally stated that he was subjected to sexual intercourse by the petitioner against his wishes. The F.I.R. was lodged almost instantly after the incident and the petitioner was apprehended immediately as he was posted in the same police station and was also identified by the complainant at that very moment. The petitioner also got recovered the clothes which he was wearing at the time of commission of offence. These are over- whelming pieces of evidence which support the case of the prosecution and point to the veracity of the statement of the complainant. In my considered opinion, therefore, the petitioner cannot escape his culpability. The conviction awarded by the Courts below, in these circumstances, deserves to be upheld. The next issue that is to be determined is as to whether the petitioner is entitled to any leniency or not in the matter of sentence. The Crl. Revision No.1235 of 1998 -8- .... petitioner is a man in uniform, who has subjected the victim to his perversity. There is, thus, no mitigating circumstance in his favour except to say that he was 39 years old when he committed the offence in the year 1994 and that almost fifteen yeas have elapsed since then. He has faced the mental agony all these years on account of criminal proceedings pending against him. Therefore, in my view, some reprieve in the matter of sentence deserves to be given to him. In the result, it is directed that the conviction of the petitioner as recorded by the Courts below shall remain intact, but for the offence punishable under Section 377 of the I.P.C., he shall be required to undergo rigorous imprisonment for four years, whereas the sentences awarded for the offences under Sections 323 and 506 of the I.P.C. will remain unchanged. The amount of fine for the offence under Section 377 of the I.P.C. as imposed by the Courts below will remain the same and in default of payment thereof, he shall be required to undergo one month's rigorous imprisonment. All the substantive sentence are directed to run concurrently. The impugned judgment is upheld with the above modification in the sentence and the revision petition is dismissed. September 02,2009 ( Mahesh Grover ) “SCM” Judge