HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL REVISIGK NO. 184 OF 2000 APPLICANT Sudesh Verma. ACCUSED (m JAEL) VERSUS NON—APPLICANT State of Madhya Pradesh. ‘ f i Post for pronouncement of order on I K / 3/ 20 10. Sdl- ' T. P. Sharma Judge } g/s/zo‘m C: AM / 513 EIGH CQURT QF CHHATTESGARI—E AT BILASPUR CRIMINAL REVISEGN m1 1&4 mr 2000 ‘4: CRIMINAL REVISION PETITION UNDER SECTION 401 OF THE I CODE OF CRIMINAL PROCEDURE. 1973.: (SB :I-Ion’ble Mr. T.P.Sharma, Ja) $ Presentz— Shri Somnath Verma, Advocate for the applicant/ petitioner. Shri Rakesh Jha, Dy. GA. for the State/respondent. ORDER (Passed on \g ISIZOIO) By this criminal revision petitioner has challenged the legality and propriety of the judgment dated 25/ 1/2000 passed, by First Additional Sessions Judge, Raipur in Cr. A. No. 392/ 1999 affirming the judgment of conviction and order of sentence dated 8/ 10/99 passed by Judicial Magistrate First Class, Raipur in criminal case N0. 513j96 whereby and where under learned Judicial Magistrate First Class, Raipur after holding the petitioner guilty for the commission of unnatural od‘ence convicted the petitioner under Section 377 of the Indian Penal Code and sentenced rigorous imprisonment for 2 years 85 6 months and fine l xA APPLICAR‘T Suiiesh Verma, son of late Shri RS. ACCUSED Verma, aged about/m, 24 yeam, (IN JAILk resident of Tiiak Nagar, Bilaspur, M.P. VERSUS NON-APPLICANT ‘ State of Madhya Pradesh‘, through ‘f Police StatiOn ViShwa Vidyalaya, Raipur, M.P. @ of Rs. 1,000/— in default additional rigorous imprisonment for 1 month. The conviction is impugned on the gound that without any legal and clinching evidence Court below have convicted and sentenced the petitioner and thereby committed illegality. Brief case of the prosecution is that victim PW2 Jaipal Chandrawanshi was a student of B.A.M.S, lst year, he was junior u student: Petitioner was also a studentpof B.A.M.S. 3rd year. He was lsenior student. Victim was residing in a Ayurvadic Hostel, . Raipur in Room No. 32. O‘n 11/4/95 at about 2.45 p.111. victim PW2 Jaipal Chandrawanshi was present‘in his room No. 32 at Hostel, petitioner came to his room and after closing the door he committed unnatural intercourse on the anus of‘the Victim, again he took the victim in room No. 16 Where he again committed unnatural intercourse on the anus‘of the victim. 9n 11/4/95 victim lodged the written complaint to the Police Station vide Ex. P—2, First Information Report was lodged vide Ex. P—6 and P—3. Victim also made complaint to his Principal and Principal issued Show-cause—notice vide Ex. P—4. He was examined by PW9 Dr. Kamal Kumar Gajbhiye, vide EX. P-7. No visible injury was found on the body of victim. Petitioner was also examined by PWI 1 Dr. R.K. Pandey Vide EX. P-13 no injury was found. His underwear was seized and sent for chemical examination Vide Ex. P—12. Presence of sperms and semen was confirmed on the underwear of the petitioner Vide Ex. P—13. Offence was investigated and charge 3L“ . . Sheet was med before the Judiciaj Magistrate First Class, Raipur ‘who after affording an opporfgunity of hearing convicted and sentenced the ”petitioner as aforementioned. Conviction and sentence was challenged by the petitioner in appeal same was l dismissed vide judgment impugned. 4, i Shrl Somnath Verrna, counsel for the petitioner and Shri Rakesh ‘ 3ha, Dy. GA. for the State/non—applicant are heard. 5. Judgment impugned and record of the Elourt below perused A 6. Learned counsel for the petitioner vehemently argued that learned trial Court has not considered the fact that no injury was found over the body of the petitioner or victim which are suggestive of the fact that no offence has been committed. There was dispute between students relating to the leadership and on account of his meritorious position petitioner was claimant for President of the Union and only with a view to denial his claim he has been falsely implicated. Learned counsel for the petitioner further argued that evidence of PWQ Jaipal Chandrawanshi is full of contradiction and omission and is unnatural. Learned counsel for the petitioner placed reliance in the matter of Birkha v. State of M;P.1 in which High Court of Madhya Pradesh has held that allegation under Section 377 of the Indian Penal Code is easy to make but to refute it is very difficult, therefore, unless there is some corroboration of the evidence of the complainant, ‘ 1978 JLJ 559 . @ there should be no conviction under Section 377 of the Indian Penal Code. " 8. Learned counsel for the petitioner further placed reliance in the matter of Nand Kishore Vs. State of M.P.2 in which High Court of Madhya Pradesh has held that in case of conviction under Section 377 of the Indian Penal Code it 1S a rule of prudence that the conviction should not be based merely on the uncorroborated testimony olithe subject of the oil‘ence whether girl or boy. 9. Learned counsel for the petitioner also placed reliance in the matter of Ishahue Mohammad v. State of M.P.3 in which High Court of Madhya Pradesh has held that Statement of the complainant not corroborated even with medical evidence is not sufficient for conviction. 10‘ Learned counsel for the petitioner also placed reliance in the matter of Arjunsingh v. State of MIP.4 in which High Court of Madhya Pradesh has held that in case of anal intercourse medicinal evidence is of vital importance. Learned counsel for the petitioner also placed reliance in the matter of Gowrishankara Swamigalu v. State of Karnataka 8a Anr.5 in which Apex Court has held that in absence of corroboration from medicinal evidence conviction of accused is not sustainable. 2 Vet. XIX i970 am. use) t 5 1985 M P WN (202) 4 w N. 19.86 (292) l 4 5 QoOBAIR sew 3881 c—fg" 12. On the other hand, 1€arned counssl fOr the respondent/State opposed the revision and submits that petitioner is senior student of the professional college has committed aforesaid offence upon 1111s junior student i.e. victim. The evidence of PW2 Jaipal iChandrawanshi is sufncient for drawing an inference that {petitioner has committed the aforesaid oifence. Both the Courts ibelow has Iightly convicted and sentenced the petitioner as w: aforementioned. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf prosecution. This is a criminal revision after rejection of criminal appeal the concurrent finding of facts of two lower Courts below cannot be disturbed on the ground of triile discrepancy unless substantially injustice caused to the petitioner has been shown. PW2 Jaipal Chandrawanshi, the junior student of the Ayurvadic College has deposed in his evidence that’on 11/4/95 he was present in his room No. 32, petitioner came to his room and bolted x the door from inside, he directed the victim to remove the cloths then he committed anal intercourse with him, again petitioner took him into room No. 16 where he committed anal intercourse with him He was under fear, then he narrated the incident to Premlal Bharti and went to the police station and lodged the written report Vide EX. P—2. First Information Report was recorded Vide EX. P—3 8L P—6. He was sent for medical examination and he examined by doctor. PW3 Dr. Dineshwar Sharma has deposed IH (4 r that at the time of commission of incident petitioner was student of B.A.M.S. 2nd year and victim was student of B.A.M.S. 15‘ year, l Some students made complaint relating to unnatural activity then L he issued Ex. 13-4, show cause notice to him. In his cross ‘ examination he has admitted that petitioner was brilliant student. fPW7 Dhanaram Gaikwad has corroborated'the evidence of PW2 cien'pal Chandrawanshi, Vlctim was examined by PW9 Dr’ Kamal Kumar Gajbhiye on same day at about 10.10 p.111. vide Ex. P—7 1 but no injufy or stain was found. Accused was also examined by 1 PWll Drl RK. Pandey vide Ex. P— 13 but no injury was foundon i the body of the accused. Accused has taken the defence that as a result of rivahy in the goup he has been falsely implicated. He was topper in his college and there was every likelihood for his becoming the President of Union therefore with a View to debar him from the opportunity of becoming President he has been falsely implicated. Defence has cross examined PW2 Jaipal Chandrawanshi indetail, in his cross examination he has admitted that petitioner was meritorious student. In Para— 6 of his cross examination he has admitted that he was junior and petitioner has threatened him at the time of commission of offence therefore he has not shouted. He has further denied the suggestion that he has lodged the report at the instance of other students. PW? I Dhanaram Gaikwad has stated in Para. -4 of his evidence that the complainant was junior and was not associated in any group. In /7" the present case, no injury was found on the anus 0r around the anus of the complainant or even on the male organ of the accused. Modi’s has opined in his Medical Jurisprudence and Toxicology 23rd edition on Page - 955 that the following signs may be discovered if the boy (passive agent) is not accustomed to sodomy: — (i)‘ Abrasions on the skin near the anus with pain in . walking and on defecation, as well as, during examination, These injuries are extensive and we}? as, £ during examination. These injuries are extensive and well ‘denned in cases where there is a great disproportion in size between the anal orifice of the- victim and the vin'le member of the accused Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus, These injuries, gfslight, heal very rapidly in two or three days. In most of the cases brouéht before Modi, he had seen supey‘icial abrasions, varying from 1/6” to 1’ x 1/6” to 1/4”, external to the sphincter ani. In Some cases, there may be bruising of the parts round about the anus and the abrasions may extend into the anus beyond its sphincter. (it) Owing to the strong contraction of the sphincter ani, the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less e}?usion of blood is usually triangular in natura having its base at the anus and the sides extending vertically inwards into the rectum. Modi had found lacerations internal to the sphincter ani in several cases, but a typical triangular wound only in afew cases. These signs may not be present in case where the active agent has used e ¢ ,gb‘/ lubn‘oants or/and has introduoed his penis slowly and carefuliy without using force into the anus of the passive agent who is a consenting party. (iii) Blood may be found arodod the anus, on the perineum or thighs; and also on the clothes. (iv) Semen may befound in or at ‘ihe anus, on the perineum, or on the garments of the boy too young to have seminal emissions, Swabs from inside and around the anus must be taken and examined microscopically. Asfper Modi’s Jurisprudence and Toxicology the sigl may be found on tlie body of active agent if doctors examined him soon hftef the commission of the crime, in case of delay in examination the symptoms may not be found, the presence of blood aild seminal stains wouid only be corroborative evidence. There may be marks of violence on the body if the passive agent is a grown up boy, and if the crime is committed Without his consent. It was also opined that in absence of semen on the cloths of either of the accused or of the passive agent and in absence of injuries the case of unnatural offence would not be made out. The opinion of Modi reveals that injuries must be found in case of aforesaid offence committed with children but in case of adult they may be almost absent specifically when there is‘no resistance to the anal coitus. In the present case, age of the petitioner at the time of such commission of odence was 21 years and age of the complainant was also 21 years, they were full grown up adult In these circumstances, normally no injury over the anus or around the anus was possible. The undergarments of the accused was seized t / ¢ / vide EX‘ P—l 0n 1 1/4/95. He wa‘f; xamined by doctor on 2nd day 12/4/95. In case of ’ examination of accused after lapse of considerable time, the symptoms of the commission of anal coitus would not be possible on the body of passive agent. The midergarment was chemically examined and report vide EX. P—13 reileal the presence of semen and sperm. As held in case of Birkha v. State of M.P., Nand Kishore Vs. u? State of M.P.-, Ishaque Mohammad v. State of M.P,, Ariunsingh v.‘ State of M,P. and Gowrishankara Swainigalu v. State of Karnataka 8a Ant. (supra) the only solitary evidence Without any' corroboration from independent sources or medical evidence is not safe. In the present case evidence of PW2 Jaipal Chandrawanshi has been corroborated by the evidence of PW7 Dhanaram Gaikwad. The positive medical examination was not possible on account of grownup age of the petitioner and victim. The presence of sperm and semen on the undergarment of the petitioner is also corroborative piece of the evidence of the commission of the aforesaid offence. In the present case evidence of PW2 Jaipal Chandrawanshi is well corroborated by the evidence of PW7 Dhanaram Gaikwad and corroborated by the chemical analysis report inspire confidence and trustworthy and are sufncient for drawing an inference that petitioner has committed unnatural offence (anal intercourse) with the complainant. After appreciating the. evidence available on record learned Judicial Magistrate First Class, Raipur has convicted the x 1i K /}a petitioner under Section 377 of the lndian Penal Code and while appreciating the cvidence learned First Additional Sessions Judge, Raipur has afflrmed the éenviction of the petitiener both the Courts below have rightly convicted the petitioner. Courts below have neither exceeded its jurisdiction vested on it nor failed to exerc1se the Jurisdicnon vested on 1t The conwction of the petitioner is based on credible clinching and substantive ev1dence sustainableunder the law. ‘As regard the. question of sentence is concerned present petitioner has committed the on‘enoe under the garb of his seniority which is 1a “trauma in the professional education”. Court below has sentenced the petitioner rigorous imprisonment for 2 years 85 6 months and iine of Rs. 1,000/—. Considering the age of petitioner at the time of commission of oEence some lenient view would be Just and reasonable to meet the ends of Justice Consequentlv, this criminal rev1s1on ls partly allowed Conv1ct10n of the petitioner Under Section 377 of the Indian Penal Code is hereby maintained instead of sentenced rigorous imprisonment for 2 years 81, 6 months and fine of Rs. 1,000/~, he is sentenced to. rigorous imprisonment for 1 year and fine of Rs. 1,000/— in default additional rigorous imprisonment for 1 month. He was in custody for some time. He is entitled for set oh‘. As per present petitioner is in bail, he shall surrender immediately before the Judicial Magistrate First Class, Raipur in criminal case No. 513/96 for serving the remaining sentence. Sdl- T. P. Sharmgig Judge g l8.