IN THE HIGH COURT OF HIMACHAL PRADESH , SHIMLA Cr.Revision No.: 7 of 2002 Reserved on: 24.2.2009 Decided on: March 4th, 2009. __________________________________________________ Sumit Singh @ Nikka Petitioner Versus State of H.P. Respondent Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? Yes. For the petitioner : Mr. Anup Chitkara, Advocate. For the respondent : Mr. J.S.Guleria, Asstt. Advocate General. Surinder Singh, J. The present criminal revision petition has been filed by the convict, feeling aggrieved and dissatisfied by the concurrent findings of conviction and sentence, passed by the learned trial court whereby the petitioner stands convicted and sentenced as follows: Under section 342 IPC Simple imprisonment for three months Under section 377 IPC Simple imprisonment for one year and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo simple imprisonment for three months Under section 506 IPC Simple imprisonment for six months. __________________________________________________ Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. It is contended in this revision petition that the entire evidence was wrongly appreciated by the courts below. There was a delay of six days in filing the FIR, which was after due deliberation and concoction. Further that the courts below relied upon the contradictions, embellishments and improvements in the statements of material prosecution witnesses whereas prosecution had failed to bring home the guilt, against the petitioner, beyond a reasonable doubt. The provisions of Probation of Offenders Act were not applied, therefore, the impugned judgment of conviction and sentence passed by the learned court below and affirmed in appeal by the learned Sessions Judge in Criminal Appeal No. 6 of 1999 decided on 28.9.2001 is wrong and illegal. Shri Anup Chitkara, learned counsel for the petitioner has vehemently urged that the contradictions appearing in the statement of the complainant coupled with the delay in FIR make the entire story of prosecution a suspect. Further that father of the victim and accused petitioner, both were running tea shops at the same place. The Tea shop of the accused-Petitioner was vacant, which brought bitterness to the complainant party and their relations became strained. Ultimately a clever method was devised to tarnish the image of the accused petitioner with an ulterior motive. It is also argued that the medical opinion is discrepant, as it was never opined by the Doctor that there was any carnal intercourse as alleged by the victim. He also pointed out that the clothes of the victim as also the mattress, over which the alleged act was committed by the petitioner were sent for forensic examination but it did not contain any blood. Whereas the victim deposed that by the said act, anus started profuse bleeding, in that event, the bed should have stained with blood. Learned counsel further pointed out that story of lending of wooden plank (Phatta) does not inspire confidence in view of the animosity, but these facts were ignored by the learned trial court, as such the revision petition deserves to be allowed. Contra, Mr. Guleria, learned Assistant Advocate General, has supported the judgment of conviction and sentence passed by the courts below and vehemently argued that the delay in lodging the FIR stands cogently explained on record. The statement of the victim inspires confidence, which is also corroborated by the other evidence on record in material particulars. The petitioner was rightly convicted by the courts below and further argued that the courts have already taken a lenient view on the point of sentence. Therefore, no further reduction is called for. He also argued that in the circumstances the release of the petitioner on probation is also uncalled for. With these submissions, the learned Assistant Advocate General prays for dismissal of the revision petition, being legally and factually sustainable. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully gone through the record. Admittedly, Krishan Kumar (PW2) (father of the victim) was running a tea shop at Village Baru, three kilometers away from the police station, Hamirpur. According to him, on 28.7.1992 he had gone to Reckong Peo to meet his brother and returned on 24. 8. 992 to his village. He was informed by his wife that their son (PW1) was suffering from piles, then he asked his son ( the victim) it was then the victim revealed that he had gone to the shop of the petitioner to bring the wooden plank (Phatta) from where he was taken to another room by the petitioner, he lowered the shutter and gagged his mouth and was made to lie on the cot and then committed sodomy. Next day, PW2 Krishan Kumar took him to a Hakim and thereafter lodged a report in the police station. His medical examination was also got done from the Doctor. As PW1 the victim deposed about the incident in verbatim before the court and further explained how the petitioner committed the act of carnal intercourse against the order of nature against him clearly and vividly. He also deposed that the petitioner had inserted his private part into his anus and behaved with him as if he was a woman. When he started vomiting, it was then the petitioner left him. He further disclosed that he did not disclose about this fact to any one, as the petitioner had threatened him to kill. He only revealed it to his father on 24.8.1992 when he returned from Reckong Peo and lodged the FIR Ex.PW1/A. Even during his cross- examination when the details of act were being asked and replied by him, he felt unwell. His remaining statement was recorded after respite on the same day. Although, he admitted that the petitioner runs a tea shop in vicinity but he expressed his ignorance that at the time of opening of the shop some dispute had arisen between them. PW2 Krishan Kumar, father of the victim when asked about it had denied this fact. PW-3 Smt. Pushpa Devi, mother of the victim has lent corroboration to the version of victim. He did not disclose this fact to his mother but, she is alleged to have taken her son to the Doctor for the treatment of piles when she noticed that her son was unwell, but according to her the Doctor without examining her son gave medicine to him. Against this background, it is surprising that in his statement under section 313 Cr.P.C. the petitioner did not make any specific allegation nor alleged false implication in the case on account of enmity, as alleged even in the cross-examination of the witnesses. Dr.PW4 K.C.Chopra has materially corroborated the version of the victim. He deposed that on examining the victim on 25. 8.1992 he found marks of swelling, redness and tenderness on the skin near the anus with pain in walking. The alleged incident had taken place on 19.8.1992. Even after about 6 days, he noticed redness of mucous membrane in the anus. He had referred the said injuries for the opinion to the skin specialist, who opined it to be traumatic and not due to the infection. Doctor also proved the medico-legal-certificate Ex.PW4/A issued by him and further stated that the aforesaid injuries were quite possible in carnal intercourse against the order of nature. On the close scrutiny of the above material witnesses, there is no indication that the petitioner herein was framed in the case by the complainant party on account of enmity as alleged. Version of the victim is natural and probable, which stands corroborated in material particulars. The delay in this case stands properly explained and it cannot be used as ritualistic formula for doubting the prosecution case to reject the testimony of the victim out- rightly. The points taken by the learned counsel for the petitioner are not enough to doubt the prosecution case. Therefore, in these circumstances, I am of the considered opinion that there is no error in the impugned judgment passed by the learned trial court and affirmed in appeal. In so far as the sentence is concerned, the petitioner has committed an un-natural offence upon a young boy, who had come to his shop to take back his wooden plank (Phatta). Though, the offence under section 377 of the Indian Penal Code implies sexual perversity yet there is some scope for modification of sentence in this case, for the reason that the petitioner was aged about 28 years when his statement was recorded under section 313 of the Cr.P.C. meaning thereby, at the relevant time he was around 22 years of age. Thus, keeping in view the age of the petitioner and in view of the judgment passed by the Apex Court in Fazal Rab Choudhary vs. State of Bihar [1982 SCC (Cri) 529] , the sentence passed under section 377 for one year is reduced to six months without disturbing the fine and the sentence passed under sections 342 and 506 of the Indian Penal Code. However, all the sentences shall run concurrently. The petitioner is hereby directed to surrender before the learned trial court, for serving out the sentence on 31.3.2009, failing which the learned trial court shall take appropriate steps for execution of the sentence against the appellant, as modified heretofore. Send down the records well before the date fixed. The revision petition stands disposed of. March 04,2009 (Surinder Singh), (D/Pds) Judge.