Crl.R. No.618 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: Crl.R. No.618 of 2004 DATE OF DECISION: May 12, 2009 LAKHWINDER SINGH ...PETITIONER VERSUS STATE OF PUNJAB ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. PRESENT: MR. H.S. DHANDI, ADVOCATE FOR THE PETITIONER. MR. A.S. GREWAL, ADDL.A.G., PUNJAB. ASHUTOSH MOHUNTA, J. The petitioner Lakhwinder Singh S/o Sh. Barkha Ram has filed this revision petition against the judgement of conviction and order of sentence dated 12.9.2002, passed by the Judicial Magistrate Ist Class, Rajpura vide which he was convicted under Section 377 IPC and sentenced to undergo R.I. for 3 years and to a pay a fine of Rs.3000/- and in default to further undergo R.I. for 9 months. The petitioner preferred an appeal before the Addl. Sessions Judge, Patiala who upheld the conviction of the petitioner and order of payment of fine under Section 377 IPC and reduced the sentence of R.I. for 3 years to R.I. for 2½ years. Briefly the facts of the case are that on 12.5.1996, the complainant Surmukh Singh met the Police party near JMA Factory G.T. Road and stated that he is a resident of Devi Nagar and is a labourer by profession. He is having four children. On 9.5.1996, the complainant alongwith his wife Kamaljit Kaur had gone to Dargarh of a Pir for offering Crl.R. No.618 of 2004 -2- prayer and his eldest son, namely, Baljit Singh, aged 6½ years was also accompanying them. At about 1.00 p.m. the accused Lakhwinder Singh met them and offered that they can go for prayer and he will take care of Baljit Singh. When the complainant and his wife returned after 20/25 minutes they heard shrieks of their child Baljit Singh. On hearing this the complainant and his wife saw that the accused Lakhwinder Singh was having un-natural intercourse with Baljit Singh. On seeing the complainant and his wife, the accused ran away from the spot. As Baljit Singh was bleeding profusely, the complainant took him to his house and was given medical aid. The whole incident was narrated to one Baldev Singh, who was a relative to the accused and on the statement of the complainant FIR was registered and the accused was charge-sheeted under Section 377 IPC. In order to prove its case, the prosecution examined Dr. Ram Kumar as PW1, Kamaljit Kaur Wd/o of Surmukh Singh (complainant) as PW3 and Doctor R.P. Bansal as PW4 who conducted the medical examination of the child. The complainant Surmukh Singh was not examined as he had already expired during trial. The statement of Kamaljit Kaur Wd/o of Surmukh Singh (complainant) who was also the eye witness of the incident was recorded. It has been stated that by Kamaljit Kaur that the incident was witnessed by her and the accused was caught red-handed. The injuries suffered by Baljit Singh were fully corroborated by the statement of PW4. The trial Court considering the statement of eye witness Kamaljit Kaur (PW3) and the medical evidence convicted the accused under Section 377 IPC and sentenced the accused as mentioned in the opening paragraph. The appeal filed by the accused-appellant was dismissed and the order of conviction Crl.R. No.618 of 2004 -3- was upheld, however, the sentence was reduced to 2½ years under Section 377 IPC. I have heard the learned counsel for the parties at length and have perused the judgement of both the Courts carefully. It has been argued by the counsel for the petitioner that there is a delay of 3 days in lodging of the FIR as the incident took place on 9.5.1996, whereas the FIR was registered on 12.5.1996. It is contended that the entire incident has been concocted and the petitioner has been falsely implicated in the case because of previous enmity. A perusal of the statement the complainant on the basis of which FIR was registered clearly shows that efforts were made that the petitioner should come and apologize to the complainant party for having committed the shameful act, however, as the accused never came to apologize for his act, therefore, the FIR was registered on 12.5.1996. Apart from the above, it has come in evidence that that accused was a resident of village Kharabgarh which was 70 kms. Away form the village of the complainant. The complainant side did had some enmity with Baldev Singh, but as far as the petitioner is concerned, they have no enmity with him. Thus, there was no occasion to falsely implicate the petitioner. Hence the argument of the counsel for the petitioner is without merit. It was next contended by the counsel for the petitioner that the petitioner was a juvenile and was below the age of 18 years. A perusal of both the judgments passed by the Courts below shows that this point was never raised before either of the Courts. No attempt was made on behalf of the accused to prove that he was a juvenile. Hence, as no evidence was led with regard to the age of the petitioner, therefore, this argument cannot be Crl.R. No.618 of 2004 -4- considered in the revisional stage. The case of the prosecution has been stated in detail by Kamaljit Kaur PW3, who is the mother of young child Baljit Singh. She has given a detailed account about the manner in which the unnatural crime was committed by the petitioner. She had also stated that her son was bleeding from his anus and was taken to the Doctor for treatment. The ocular version as stated by Kamaljit Kaur is fully supported by the statement of PW4 Dr. RP. Bansal who conducted the medico-legal examination of the victim Baljit Singh. He has stated that the injuries were fresh. Two injuries were found n the shape of ulcers in the anus of Baljit Singh which suggests that the child was subjected to unnatural offence. It is thus clear that Baljit Singh, who was a minor of 6½ years was abused sexually by the petitioner. It was also contended on behalf of the petitioner that the victim has not been produced and therefore, the case of the prosecution has not been proved. This argument is also bereft of merit as in the present case the victim was a young child of 6½ years at the time of occurrence and hence no adverse inference can be drawn against the prosecution for non-examination of the victim. It is to be kept in mind that the entire occurrence was witnessed by Surmukh Singh and his wife Kamaljit Kaur, parents of the victim which has been duly supported by the evidence of PW4 Dr. R.P. Bansal and hence the non-examination of the victim would not be fatal to the case of the prosecution. It was lastly contended on behalf of the petitioner that the occurrence took place on 9.5.1996 and as 13 years have elapsed since the date of occurrence, therefore, a lenient view be taken in the case of the petitioner. Crl.R. No.618 of 2004 -5- Although the incident has occurred way-back on 9.5.1996, nevertheless, the petitioner has committed a heinous crime inasmuch as he has sexually abused a young child of 6½ years. The petitioner is absolutely sexually depraved person and does not deserve any leniency. In view of the aforementioned facts, I find no merit in the revision petition and the same is dismissed. The petitioner is on bail and therefore, his bail bonds are cancelled and he is directed to be taken in custody forthwith to serve out the remaining portion of his sentence of R.I. for 2½ years under Section 377 IPC as awarded by the Addl. District Judge, Patiala vide his judgement dated 3.2.2004. The imposition of fine is also maintained. May 12, 2009 (ASHUTOSH MOHUNTA) Gulati JUDGE