1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.500 of 2000 Decided on: December 13, 2010. State of H.P. …Appellant. VERSUS Ajay Kumar ….Respondent Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General with Sh.Rajinder Dogra, Addl. AG For the respondent: Mr. Neeraj Sharma, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration in reference to judgment dated 30.6.2000, passed by learned Judicial Magistrate, 1st Class Court No.5, Shimla H.P. in Cr. Case No. 10/2 of 2000, thereby acquitting the respondent/accused for the offence under Section 377, 506 IPC. 2. The prosecution case is that complainant (name not given) was student of 2nd Class in Arya Samaj Public School, Lower Bazar. Whether the reporters of the local papers maybe allowed to see the judgment? 2 On 29.11.1999 at about 7.30 PM when he was going towards his shop, accused met him in front of the shop of Bata shoes allured him to offer money and VDO game. When the victim was coming towards his home, the unknown person caught him and closed his mouth and the victim was taken towards Lakkar Bazar bus stand parking via Shiv Mandir behind the bushes by the accused where accused put off the clothes of victim and was forced to rely on the earth and carnal intercourse was made with the victim. The complainant sustained abrasion on his person. The matter was reported by the victim to his mother and grand mother and accordingly FIR was lodged. After investigation, accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution has examined as many as ten witnesses, PW-1 Saurav Aggarwal, PW-2 Anu Rag Aggarwal, PW-3 Dr. Lalit Mahajan, PW-4 Laxay, PW- 5 Naresh Sood, PW-6 ASI Sohan Lal, PW-7 C. Ranjeet, PW-8 Het Ram, PW-9 Dr. Jatinder Kumar and PW-10 SI Ram Lal, whereas, the respondent/accused, through his statement under Section 313 Cr.P.C., has denied the charges and prosecution case. 4. PW-2 Anu Rag Aggarwal, stated that he knew Raj Kumar Aggarwal and his cousin. On 29.11.1999, he received information that his 3 nephew victim was missing and thereafter he came to know that the victim has been assaulted by way of carnal intercourse. Statement Ext PW-1/A was recorded and he accompanied on 30.11.1999 with police to the place of occurrence. 5. PW-3 Dr.Lalit Mahajan has stated that on 30.11.1999 at about 1 AM, on the receipt of police application, he examined the victim and on examination he detected multiple red colour abrasions on his chest at the lever of nipple, extending up to lower abdomen running vertically down wards out of which some were horizontal and oblique, mud stains were present on the lower abdomen and over upper thighs. PW-3 also detected fecal stains around anus. On receipt of the lab report examination, PW-2 was of the opinion that carnal intercourse took place. On radiologist test of victim-injured, his aged was assessed as 12 years and Dr. Jitender Jhingta also examined the victim and as per report Ext PW-3/A he opined that victim was assaulted in forcible sexual intercourse. However, no blood stain was found on medical examination on the anus. PW-4,victim, in support of the prosecution case has stated that he was student of 2nd class and when he was coming from the school and reached at Ram Bazar chowk, accused met him and offered him VDO game and when he accompanied him, accused took him to Shankli 4 Jungle and committed carnal intercourse on him. Victim further stated that he narrated the storey to his mother and report was lodged accordingly to the police station. 4. PW-5 Naresh Sood deposed that he along with police, Sareb, Lakshay and Munish were searching for the accused, then at 7 PM at Rivoli Road, Munish and Soreb identified one person who had committed the carnal intercourse with victim. PW-6 ASI Sohan Lal deposited that on 29.11.99 at about 10 PM, he received information that someone has committed carnal intercourse on the victim and accordingly FIR Ex PW-6/N was registered. PW- 7, C. Ranjeet and PW-8 Het Ram are formal official witnesses and have supported the prosecution case to the extent the role assigned to them. PW-9 Dr. Jatinder Kumar, examined the accused brought to the hospital by the police and found him capable of sexual intercourse. PW-10 SI Ram has deposed that on the basis of Ex PW- 1/A,FIR Ex PW-1/D was registered. 5. On analysis of the prosecution witnesses and materials on record learned Judicial Magistrate has rightly arrived at the finding that the accused/respondent has committed carnal intercourse with the victim-complainant. In view of the testimony of PW-1, victim- complainant, he was allured by the accused to 5 show VDO game and was taken towards Lakkar Bazar via Shiv Mandir behind the bushes and was forced to lie on the earth and thereafter carnal intercourse was committed on him. Such fact is also reported by PW-4 who was also minor and also supported the prosecution case. Medical report also shows that the abrasions were present on the chest at the level of nipple, which could have been caused when the victim was laid down. As such, learned Judicial Magistrate has rightly found the accused/respondent guilty of offence under sections 377 whereas, prosecution was also rightly found not to have led any evidence for the offence under Section 506 IPC. 6. Keeping in view the facts and circumstances of the case and that the sole accused was bread earner and was supporting his family members and old mother, therefore, he was rightly sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- failing which to undergo rigorous imprisonment for a further period of one month. 7. It has been brought to our notice that the accused/respondent has already undergone period of sentence so awarded, therefore, in the facts and circumstances, conviction and sentence awarded to the respondent/accused needs no 6 interference. The criminal appeal, being devoid of any merit, is accordingly dismissed. (R.B.Misra), J. December 13, 2010 (Sanjay Karol),J. (sl)