IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 800 of 1996 Date of Decision : March 19, 2010 Ashok Kumar @ Kala ....Petitioner Versus State of Haryana .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Baljinder Singh, Advocate for Mr. K.S.Dhaliwal, Advocate Ms. Hem Lata Balhara,Assistant Advocate General,Haryana T.P.S. MANN, J. (Oral) The petitioner alongwith Suresh Kumar @ Kaka was tried for offences under Sections 377/506/34 IPC on the allegations that both of them committed sodomy upon complainant Raman Sethi on the night intervening 21/22.10.1989, besides threatening him with dire consequences in case he disclosed about the incident to any person. Vide judgment and order dated 6/8.1.1992 learned Sub Divisional Judicial Magistrate, Dabwali convicted the petitioner and his co-accused for the aforementioned offences. Both of them were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- each for the offence under Sections 377/34 IPC. In default of payment of fine, the defaulter was to undergo simple imprisonment for one month. For the offence under Section 506 Crl. Revision No. 800 of 1996 -2- IPC, they were sentenced to undergo rigorous imprisonment for a period of six months each. Both the sentences were ordered to run concurrently. Aggrieved of his conviction and sentence, the petitioner filed an appeal whereas his co-convict Suresh Kumar @ Kaka chose not to file any appeal. However, the appeal filed by the petitioner was dismissed by learned Additional Sessions Judge, Sirsa on 1.10.1996. He then filed the present revision, which was admitted on 8.11.1996 and the concession of bail was extended to him. In support of the ocular incident, the prosecution had relied upon the testimony of complainant Raman Sethi, who appeared as PW3. He supported the prosecution version as contained in FIR Ex.PW3/A by stating that both the accused committed carnal intercourse with him forcibly and against his consent. Sanjiv Kumar, brother of the complainant, appeared as PW4 and testified that he was informed by the complainant about the occurrence. According to PW5 Girdhar, the cousin of the complainant, he had accompanied the complainant on 21.10.1989 when they were returning after attending Jagrata near Post Office, Dabwali and at about 10.30 p.m. when they reached near Punjab National Bank, he parted company from the complainant and both of them went towards their respective houses. PW1 Dr. R.C. Choudhary, who had medically examined the complainant on 22.10.1989, found that there was swelling on the left side of the face of the complainant and bruises in an area of 1 cm. around the anus and mucosa. Both the accused were also found fit to do sexual act as is clear Crl. Revision No. 800 of 1996 -3- from the testimonies of PW1 Dr. R.C. Choudhary and PW2 Dr.P.R.Golyan. The prosecution had sought supported to its case by examining Naresh Kumar PW10. According to Naresh Kumar, the petitioner had appeared before him on 30.10.1989 and confessed that he had committed carnal intercourse with the complainant against his consent. Though Naresh Kumar PW10 was none else but first cousin of the complainant yet there was no material on the file that he was inimical towards the petitioner. The prosecution case was that Suresh Kumar @ Kaka-accused was accompanied by one person, who had met the complainant when he was passing near Punjab National Bank. Both the accused shut his mouth and after dragging him into the fields, put off his trouser and underwear and then committed carnal intercourse with him. According to the complainant, Suresh Kumar @ Kaka-accused was naming his companion as Kala at the time of the occurrence. Moreover, when the petitioner was produced before the police by PW10 Naresh Kumar, the complainant was present and he identified him to be the one, who had committed the offence. Even when PW3 Raman Sethi appeared before the trial Court, he identified him as one of the accused, who had committed the crime. Therefore, the identity of the petitioner as one of the accused, who committed sodomy upon the complainant, stands established. In view of the above, no case is made out for any interference in the conviction of the petitioner for the offences under Sections 377/34 and 506 IPC. Crl. Revision No. 800 of 1996 -4- As regards the quantum of sentence, the petitioner was noticed by the trial Court to be 18 years of age. The occurrence had taken place more than 20 years ago. This appeal has remained pending in this Court for more than 13 years. All these years the sword of criminal prosecution has remained hanging on his head. Under these circumstances, it is a fit case to reduce the sentence of imprisonment of three years' imposed upon the petitioner for offence under Sections 377/34 IPC to two years. Resultantly, the conviction of the petitioner for offences under Sections 377/34 and 506 IPC is maintained. His substantive sentence of rigorous imprisonment for three years for offence under Sections 377/34 IPC is reduced to rigorous imprisonment for two years. The fine imposed upon him for the said offence alongwith its default clause is maintained. Similarly, the sentence of six months imposed upon the petitioner for offence under Section 506 IPC is also maintained. Both the substantive sentences of imprisonment shall run concurrently. Except for the modification in the quantum of sentence, as indicated above, the revision fails and is, therefore, dismissed. ( T.P.S. MANN ) March 19, 2010 JUDGE ajay-1