IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 466 of 2002 Date of Decision: 23.11.2011. State of H.P. ….. Appellant Versus. Avtar Singh and another …. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No For the Appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the Respondents: None for the respondents. Deepak Gupta, J.(oral) 1. This appeal by the State is directed against the judgment dated 16.3.2002 passed by the learned Chief Judicial Magistrate, Una whereby he acquitted the accused of having committed offences punishable under Sections 377, 363, 343, 353, 506 read with Section 34 IPC. 2. The prosecution story, in brief, is that the complainant (name withheld), who was young boy aged 14 years, was returning to his village after taking ‘Parshad’ at Gurudwara Dehlan. His village is only 1 k.m. from Gurudwara. When he was near the house of Jaswant Singh, a truck bearing No.HP-20-5549 halted near him. The truck was driven by accused Avtar Singh and co- accused Vikram Singh was also sitting in the truck. Avtar 2 Singh asked the complainant whether he wanted to go to Mehatpur and the complainant boarded the truck. Thereafter, Avtar Singh took the truck to Mehatpur and then turned towards Una and after crossing Dehlan near the village of the complainant, the complainant asked Avtar Singh to drop him. However, instead of dropping him, both the accused threatened the complainant and told him to sit quietly in the truck. Thereafter, the truck was taken to Hoshiarpur where it was loaded with potatoes. Then the truck alongwith potatoes went to Nasibabad and there the two accused took drinks and sodomised the complainant on 19.3.1998 at Nasibabad. They also wrongfully confined him and gave beatings. 3. After about a fortnight on 28.3.1998, accused Avtar Singh gave Rs.65/- to the complainant and sent him back by bus. The complainant reached home on 28.3.1998 at about 9.30 a.m. and then narrated the incident to his family members. The family members had already lodged a missing report with regard to the child being missing on 21.3.1998 and on 31.3.1998 FIR was registered. The police investigated the matter. The complainant was got examined from a Doctor who gave his MLC Ext.PW-4/A. After completion of the investigation, the accused were charged with having committed the offences as aforesaid. They have been acquitted after trial. Hence, this appeal. 3 4. The complainant appeared as PW-8. Though in the FIR Ext.PW-6/A, it was stated that the truck stopped near the complainant and accused Avtar Singh asked the complainant whether he wanted to go to Mehatpur and thereafter the complainant sat in the truck, while appearing in the witness box the complainant stated that he refused to go alongwith Avtar Singh and then Avtar Singh and Vikram Singh forcibly made him board the truck. However, he later clarified that it was on their asking that he got on into the truck. He admits that he remained with the accused for about 14 days and that during this time on a number of occasions they had food at Dhabas and other places. The truck was stopped on various barriers on the way. The complainant never raised any alarm nor did he complain to the officials at any barrier or the people at the Dhabas that he had been sexually molested by the accused. He also states that the accused made him board the bus for Nangal and gave him Rs.65/- but he is unable to state as to from where he actually boarded the bus. The complainant was 14 years old and studying in school and he should have known from which station he had boarded the bus. 5. In the FIR Ext.PW-6/A he had stated that on 28.3.1998 accused Avtar Singh gave him Rs.65/- and that he reached his home at 9.30 a.m. The FIR is recorded on 31.3.1998. 4 There is no explanation as to why the parents of the complainant did not deem it fit to inform the police about the incident immediately on 28.3.1998 when the complainant had reached there at 9.30 a.m. They had already filed a missing report Ext.PW-5/A and once their son came back and had complained about such a heinous crime they should have, in normal course, immediately gone to lodge the complaint. 6. The learned trial Court came to the conclusion that from the material on record, it appeared that the complainant had voluntarily boarded the truck and therefore there was no question of illegal confinement or kidnapping. He, during this period, had meals at Dhabas and even as per the version of the complainant some time the accused would leave him for more than an hour alone in the truck. If he had actually been sexually abused he would have complained to some person or would have raised an alarm. 7. As far as commission of the unnatural sexual offence is concerned, PW-4 Dr.Shiv Paul Kanwar who examined the complainant found the following injuries: “1.Bruise 5 cm x 0.5 cm on lateral aspect of left thigh, greenish yellow in colour; 2.Bruise 4 cm x 0.5 cm on left buttock, greenish yellowish in colour. 5 3.Bruise 5 cm x 0.5 cm on left iliac region, greenish yellowish in colour. 4.No external mark of injury near or around anus, mucous MM slightly congested. No evidence of any discharge from the anus. Anal Sphincter is tight, and does not admit tip of little finger, have strong contraction.” 8. He opined that it was not possible for him to give any opinion, whether any unnatural sexual act had been committed upon the complainant. The injuries were simple in nature and he admitted in cross examination that they could be caused by a fall. The Anal Sphincter was tight and did not admit even the tip of the little finger. Therefore, it does not appear that any unnatural offence was committed with the accused. 9. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), Judge. November 23, 2011 ( V.K. Ahuja ), PV Judge.