IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.341 of 2003 Date of decision: March 03, 2010 Arvinder Singh .. Petitioner Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. G.C. Gupta, Advocate for Mr. Dinesh Nagar, Advocate for the petitioner. Mr. Rajiv Malhotra, Addl. A.G. Haryana for the respondent. A.N. Jindal, J This petition has arisen out of the judgment dated 6.2.2003 passed by the learned Additional Sessions Judge, Ambala, dismissing the appeal filed by the accused-petitioner (herein referred as 'the accused') against the judgment dated 22/23.2.1999 passed by the Judicial Magistrate Ist Class, Ambala Cantt. convicting and sentencing him to undergo rigorous imprisonment for three years and to pay fine of Rs.3000/- under Section 377 IPC; and rigorous imprisonment for six months under Section 506 IPC. The case relates to the heinous crime of sodomy upon a five years old child. The case was registered on the complaint Ex.PA filed by Rishi Pal complainant (herein referred as 'the complainant') disclosing that on 1.6.1991, at about 11.00 a.m. the accused enticed away Parveen Kumar- victim (herein referred as 'the victim') from his house and committed sodomy upon him. The accused also threatened him of dire consequences if he disclosed the same to any one. The victim returned home while bleeding and could not disclose the name of the accused. He took the victim to Dr. V.K. Garg and Dr. P.P. Sharma for medical examination. After the victim was somewhat recovered, then he recognized and named the accused. A case under Section 377/506 IPC was registered on the basis of the said complaint. Statements of the witnesses were recorded. The accused was arrested and on completion of the investigation, challan was presented against him. Criminal Revision No.341 of 2003 -2- He was charged under Sections 377/506 IPC, to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined as many as ten witnesses. When examined under Section 313 Cr.P.C. he denied all the incriminating circumstances appearing against him and pleaded his false implication. After appreciation of the evidence, the trial court convicted and sentenced the accused accordingly. His appeal was also dismissed. Arguments heard. Record perused. The prime contention raised in this case is an unexplained delay in lodging the FIR. Learned counsel has urged that though the occurrence had taken place on 1.6.1991, but the matter was reported on 10.6.1991, as such the benefit should go to the accused. In this regard, it may be observed that the delay in the instant case appears to have been duly explained. It has come in evidence that Naresh Kumar (PW9) had seen the accused taking the victim at about 12 noon and this witness further explained that after some time he heard cries. He came out and saw that the victim was weeping. However, he had told the complainant on that day that the accused might have been sodomized by the accused. The victim was under immediate fear and remained under treatment of Dr. V.K. Garg (PW10). It has also come in evidence that the victim was under the shadow of such fear psychosis that he could not recognize the accused, therefore, in the absence of any name and identification of the accused, FIR appears to have been lodged only on the identification. No sane person would involve a wrong person for such a heinous crime. The prosecution case stands fully established by sufficient cogent and convincing evidence. At the time of occurrence, victim was only about 5 years old and remained under terror due to the obnoxious act committed by the accused. Even otherwise, in this tradition bound society, people feel shy of taking their reputation and prestige to the streets and attract stigma. Thus, obviously, the complainant may have to think hundred times before lodging the FIR. It would also be significant to mention here that the complainant was not in any way inimical against the accused to falsely implicate him. Thus, delay of 10 days' in lodging the FIR, in the Criminal Revision No.341 of 2003 -3- instant case, stands duly explained and is not fatal to the prosecution case. The next contention of the learned counsel that the case is based on the testimony of the child witness aged about 8 years, the children are very dangerous witnesses and could be tutored to depose in any manner, therefore, no reliance could be placed on his testimony without any corroboration from other sources. Having considered the aforesaid contentions, the same lacks merit. The victim after clearing the test of being a competent witness has categorically testified that he was enticed away by the accused to the room at the first floor of his house and was sodomized by him there after removing his underwear; he cried and blood was oozing from his anus. The victim identified the accused in the court amongst many persons. He denied the suggestion put to him by the learned counsel in the trial court that he was tutored by his father. Thus, this case cannot be of a mistaken identity. The chain of events which happened with the victim and the long time he stayed with him and that the accused committed the offence upon him are certainly sufficient to hold that he could recognize him, though he may not be knowing his name at that time. It is noticed that though the victim was eight years old at the time of his statement in the court yet he possessed sufficient intelligence to answer all the questions put to him and he answered the same to the satisfaction of the court, therefore, he cannot be said to be untrue in his statement against the accused particularly when he had no animus against the accused. His statement cannot be ignored only for the reason that the matter was reported by Rishi Pal father of the victim to the police on the same day. Though, Naresh Kumar (PW9) has disclosed about the commission of the sodomy by the accused but as he was also not sure about the commission of such offence but it was only after the victim described about the occurrence in detail and named him as accused, the matter was reported to the police. No doubt, the children are not always reliable witnesses; they live in the realm of imagination and could be tutored to tell any sort of assertion and the court before placing reliance upon such witnesses should satisfy its conscience to form an opinion that the witness was conscious enough to know about the sanctity of oath and to understand as to what he was doing. However, once the court is so satisfied, and testimony of such witness stands corroborated by the medical Criminal Revision No.341 of 2003 -4- or other evidence, the reliance could be placed over the same to record the conviction. In the present case, besides the testimony of the victim, there is a testimony of Naresh Kumar (PW9), who had seen the accused taking the victim to his house and then had seen the child weeping. The testimony of these two witnesses stand corroborated by Dr. P.P. Sharma (PW5), who stated that he examined the victim on 1.6.1991 and had given the preliminary medical aid to him, and thereafter, he was sent to Garg Nursing Home. The child was having an anal tear. No such suggestion was given to this witness by the learned defence counsel that the victim was not taken by his parents with the injury on the anus on 1.6.1991. No such suggestion was given that the victim or his parents were in any way inimical to the accused. Then, there is a testimony of Dr. V.K. Garg of Garg Nursing Home (PW10) who has stated that he had seen a cut in his anus and treated him for the said injury and advised him to go to the Civil Hospital. No meaningful cross examination was conducted upon him. Dr. R.K. Aneja (PW8) who examined the victim on 10.6.1991 also opined that there was a tear of the size of 2- ½ cm x 3 0'clock position in his anus which was bleeding on touching. He has also detected an abrasion of ¼ cm scattered around the anus. He has also opined that the probable duration of the injury could not be ascertained. During cross examination, he admitted that the injury on the person of the victim could be fresh. Thus, the medical evidence as discussed above, also goes a long way to establish that it was the accused who had committed the sodomy upon the victim. Notwithstanding the fact that Rishi Pal complainant appeared at the time of examination in chief, but could not be tendered for cross examination, but, when the case stands otherwise proved against the accused and the victim has made a categoric statement indicting the accused as perpetrator of the crime, in such situation, even on excluding the testimony of Rishi Pal, the prosecution case is not in any manner effected. No other argument has been advanced. Now coming to the quantum of sentence, the learned counsel has urged that the occurrence in this case took place in the year 1991. The accused continued suffering agony of trial for a long time, therefore, some leniency may be extended on the quantum of sentence. Criminal Revision No.341 of 2003 -5- Having heard the contentions, since the accused has committed this obnoxious act against the order of nature, while disturbing the skeleton of the minor child, therefore, longevity of the trial or the proceedings are no ground to delete the entire sentence, yet, it could be made a ground for some reduction in the same. Resultantly, finding no merit in the petition the same is dismissed with the modification in the sentence which is reduced to two years without alteration in the sentence of fine under Section 377 IPC. However, no alteration is ordered in the sentence awarded under Section 506 IPC. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Ambala for compliance. March 03, 2010 (A.N. Jindal) deepak Judge