IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 344/2000 Decided on: 18.10.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Gurcharan Singh alias Kala. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Addl. Advocate General. For the Respondent : Mr. Rajiv Rai, Advocate vice Mr. Jagdish Vats, Advocate. _____________________________________________________ Surjit Singh, J (oral). This appeal by the State is directed against the judgment of Trial Magistrate whereby respondent Gurcharan Singh, who was tried for offence under section 377 of the Indian Penal Code, has been acquitted. 2. A report was lodged with the Police on 14.5.1996 by Bhago (PW-2), mother of a child, namely, PW-5 Gurdeep Singh, that her above named child Gurdeep Singh had been subjected to sodomy by the respondent on 11.5.1996. On the 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 basis of that report, case was registered. Gurdeep Singh, the alleged victim of the offence, was medically examined. Medical examination did not show any mark of injury, swelling laceration etc. Statement of the child was also recorded during the investigation, which indicated that respondent had committed offence of sodomy. So, the respondent was challaned. 3. Prosecution examined the child and his parents, namely, Bhago (mother) PW-2 and Dev Raj (father) PW-3, besides examining the doctor to prove the charge. Trial Court came to conclusion that child had been tutored by his father and that there was no evidence corroborating the tutored testimony of the child. 4. We have heard the learned Additional Advocate General and also the counsel for the respondent and gone through the record. 5. Gurdeep Singh, the child (victim) was examined on 3.8.1998. He testified his age to be 10 years on that date, meaning thereby he was about 8 years of age at the time of incident. Though the testimony of the witness suggests that he was an intelligent child, capable of understanding and answering the questions correctly, yet his saying in the court that he had been tutored by his father on the day of his 3 making statement in the court, to make the statement involving the respondent, suggests that what he has stated may have an element of falsity, inherent in it. This is particularly so, when the statement of the mother of the child, which she made as PW-2 is contrary to the earliest version, which she gave to the police vide report Ex.PW-3/A. 6. According to Ex.PW-3/A, the child after return from the school had gone to play with other children when the respondent took him to the house of one Dharam Pal, Chacha of the respondent, but in the court she (mother of the child PW-2 Bhagi) stated that on that day the child had not gone to the school as it was a Sunday. Again, though in the earliest version, she stated that the child had been playing with other children living in the neighbourhood, while in the witness box, she stated that the child had gone to buy some merchandise from the village shop. Similarly, in the earliest version, there is no mention that the child came crying but in the court she stated that the child came crying and when she asked him, he narrated the incident to her. In fact, in the earliest version, she stated that when she came to know about the act of sodomy, she called the child and questioned him and it was then that the child confirmed the incident. Similarly, in the earliest version, there is no reference that the rectum of the 4 child was bleeding or was even swollen but when in the witness box, she not only stated that the rectum was bleeding and was swollen but also stated that the underwear of the child was also having semen like stains. Moreover, there was delay of three days in lodging the FIR for which no plausible explanation has been put forward. Medical evidence also does not corroborate the allegation of sodomy. 7. For the foregoing reasons, we see no merit in the present appeal. The same is, therefore, dismissed. (Surjit Singh), J. (Rajiv Sharma), J. 18.10.2010 *awasthi*