Criminal Revision No. 1060 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1060 of 2009 Date of Decision: 21.5.2009 Jaibir alias Sushil …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Anshuman Dalal, Advocate for the petitioner. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana. Kanwaljit Singh Ahluwalia, J. (Oral) Jaibir alias Sushil son of Darshan Kumar, resident of village Kosli, was tried by the Court of the Sub Divisional Judicial Magistrate, Kosli, in case FIR No. 178 dated 26.10.1999 registered at Police Station Kosli, under Section 377 IPC. The Court of Sub Divisional Judicial Magistrate, Kosli, found the petitioner guilty of offence and convicted him under Section 377 IPC and awarded sentenced of three years rigorous imprisonment and to pay a fine of Rs.500/-, in default whereof to further undergo rigorous imprisonment for three months. Aggrieved against the same, petitioner has filed an appeal. The Appellate Court upheld the conviction and also maintained the sentence. Hence, present petition has been filed assailing conviction and sentence awarded by the two Courts below. Criminal Revision No. 1060 of 2009 2 In the present case, FIR was lodged on the statement made by Babu Lal son of Jagmal. He had made statement Ex.PW.6/A to Om Parkash, Assistant Sub Inspector. In his statement, complainant Babu Lal stated that he is resident of Vishwakarma Colony, Kosli and is having a retail shop at village Juddi. He further stated that at about 2.30 P.M., his son Krishan Kumar aged about six & a half years told his wife that Jaibir alias Sushia son of Darshan Kumar had taken him to a room in his house and after removing his underwear performed bad act forcibly. At the time when the offence was committed, due to pain child had wept. After committing the offence, accused had left the spot. The wife of complainant had examined the anus of the victim and found swelling and blood there. On this complaint, case under Section 377 IPC was registered against the petitioner. Prosecution examined. Dr. Karan Singh as PW.1. Mother of the child Lela Wati appeared as PW.2, and Munshi Ram appeared as PW.3. Munshi Ram, PW.3, is brother of the complainant. PW.4 Dr. Chitranjan had medicolegally examined the accused. PW.5 Surajbhan, Sub Inspector, had prepared the report under Section 173 Cr.P.C.. Complainant Babu Lal appeared as PW.6. Sat Narain, Head Constable, appeared as PW.7 and proved registration of FIR as Ex.PW.7/A. PW.8 Radhey Shyam, stated that he was present along with Om Parkash, Assistant Sub Inspector, when complainant appeared and made statement. Criminal Revision No. 1060 of 2009 3 The victim appeared as PW.8. Bijender, Head Constable, appeared as PW.9, Shiv Charan, EHC, appeared as PW.10 and Investigating Officer Om Parkash, Assistant Sub Inspector, appeared as PW.11. Statement of accused was recorded under Section 313 Cr.P.C. All the incriminating evidence was put to him. He denied the allegations and pleaded false implication. In defence, Ranjit Singh, DW.1, and Jagdish, DW.2, were examined. DW.2 Jagdish stated that petitioner has been falsely implicated. Mr. Anshuman Dalal, Advocate, appearing for the petitioner, submitted that he will not assail the conviction of petitioner as two Courts below have given findings of fact on basis of evidence led that petitioner is guilty of offence. Mr. Dalal has further submitted that he is conscious that revisional Court cannot re-appreciate and do re-appraisal of the evidence. Counsel further stated that in the present case occurrence pertains to year 1999 and petitioner has already suffered a protracted trial of about ten years. Counsel for the petitioner has relied upon judgment rendered in Fazal Rab Choudhary v. State of Bihar AIR 1983 Supreme Court 323 to urge that for an offence under Section 377 IPC, the Hon'ble Apex Court had reduced the sentence to six months. Counsel for the petitioner has further relied upon judgment rendered in Chitranjan Dass v. State of U.P. AIR 1974 Supreme Court 2352 wherein sentence was reduced to already undergone. In that case accused Chitranjan Dass had undergone two months' Criminal Revision No. 1060 of 2009 4 sentence. Counsel for the petitioner further relied upon the judgment of this Court rendered in Om Parkash v. State of Haryana 1994(2) Recent Criminal Reports 78 where taking into consideration that accused has faced trial for eight & a half years, sentence was reduced to already undergone. To fortify his submissions, counsel for the petitioner has further relied upon judgment rendered in Mohan Ojah v. State of Bihar 2002(4) Recent Criminal Reports 397 where sentence was reduced to one & a half years. Counsel for the petitioner has further submitted that at the time of commission of offence, petitioner was young man of 21 years. Though protracted trial is one mitigating circumstance and in the judgments relied upon by counsel for the petitioner, sentence has been reduced to already undergone, yet I am of the view that taking into consideration age of the victim as six & a half years, sentence cannot be reduced to already undergone. However, I am of the view that taking into consideration protracted trial and age of victim reasonable view in the facts & circumstances of the case, can be formulated, thus, sentence awarded upon the petitioner is reduced from three years to one & a half years. With these modifications, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge May 21, 2009 “DK”