STATE OF GUJARAT v. BACHMIYA MUSAMIYA — 1992 DIGILAW 389 (GUJ)

J. N. BHATT, J. ( 1 ) ). By this acquittal appeal under S. 378 of the Code of criminal Procedure, 1973, ("code"), the appellant-State has assailed the legality and validity of the judgment and order of acquittal recorded by the learned judicial Magistrate, First Class, Palanpur in Criminal Case No. 3060 of 1981, on 10-2-1983, whereby the respondent herein, original accused came to be acquitted from the charge alleged against him for the offence punishable under S. 377 of the Indian Penal Code, (i. P. C. ). ( 2 ) ). A conspectus of material and salient aspects giving rise to the present appeal needs narration at the outset so that merits of the appeal and challenge against it could be examined threadbare. ( 3 ) ). According to the prosecution case, the respondent/original accused is guilty of an offence punishable under S. 377 of the I. P. C. In that it is alleged that the accused allured a minor child-Atul aged about 7 years at the relevant time, for the purpose of satisfying his ulterior sexual lust. Accused and the father of the child- atul were neighbors at the relevant time. On 23-9-1981, at about 6- 30 p. m. , the accused persuaded the child Atul to go along with him in a bathroom (toilet) near the house of the complainant, who is the father of the child, from the terrace. The child went to the terrace, at that time, the accused was flying kite. It is further alleged that the accused offered Re. 1/- to the child and took him to the bath-room below the terrace and committed sodomy, resulting into injuries on the anus part of the child-Atul and penis part of the accused. The accused had pressed the mouth of the child while committing the unnatural offence of sodomy so that the child may not raise alarm. After commission of the unnatural offence, the child-Atul came to his house where he was questioned by his mother and immediately the child narrated the incident in his own way. The accused had pressed the mouth of the child while committing the unnatural offence of sodomy so that the child may not raise alarm. After commission of the unnatural offence, the child-Atul came to his house where he was questioned by his mother and immediately the child narrated the incident in his own way. In the meantime, the child was complaining of pain on the anus part and the mother of the child examined that part and she became very angry on learning that the accused, who is her neighbour, betrayed her and took undue advantage of the neighbourly relation and committed such a ghastly crime, went along with the child-Atul at his house. The accused was busy in hearing film songs on radio. On being questioned by the mother of the child as to why he did such ghastly crime against the person of her son, the accused denied the same. Thereafter, the mother of the child returned home along with the child. ( 4 ) ). At that time, father of the child, Ramjibhai Manilal Panchal, returned home from work. He was appraised of the incident by his wife and the child. Immediately Ramjibhai went to the police station along with the child-Atul and lodged complaint against the accused, which was recorded by the Police Sub- inspector of Palanpur City Police Station. The First Information Report ("f. I. R. " for short) is produced at Ex. 10, which was recorded on the same day, that is, 23- 9-1981, within one hour after the incident. The offence came to be registered under S. 377 of the I. P. C. against the accused with C. R. No. 153 of 1981 and the investigation commenced. ( 5 ) ). Panchnama of the physical condition of the child-Atul was recorded and the complainant was directed to take the child to the Medical Officer for medical examination. The medical examination was carried out. In the medical examination, injuries were found on the anus part of the child-Atul. Thereafter, the panchnama of the scene of the offence, as shown by the child-Atul, was recorded and the accused was arrested on the same day at 10-15 p. m. The panchnama of recovery of bluecoloured pant of the child and the underwear of the accused had been made on the same day. Thereafter, the panchnama of the scene of the offence, as shown by the child-Atul, was recorded and the accused was arrested on the same day at 10-15 p. m. The panchnama of recovery of bluecoloured pant of the child and the underwear of the accused had been made on the same day. The accused was also examined by the medical officer and injuries were found on his penis. The blood samples of the child-Atul and the accused were taken and they were examined by the analyser and the serologist. ( 6 ) ). Upon completion of the investigation, the accused came to be chargesheeted for the offence punishable under S. 377 of the I. P. C. in Criminal Case no. 3060 of 1981 in the Court of the learned Judicial Magistrate, First Class, palanpur, to which the accused denied and claimed to be tried. xxx xxx xxx ( 7 ) UPON appreciation of the oral and documentary evidence relied on by the prosecution, the learned trial Magistrate came to the conclusion that the prosecution has not proved the guilt of the accused for the offence punishable under S. 377 of the I. P. C. beyond reasonable doubt and, therefore, the accused came to be acquitted from the said charge on 10-2-1983 in the aforesaid trial. ( 8 ) ). Being aggrieved by the said acquittal order recorded by the learned trial magistrate, the State of Gujarat has questioned its legality and validity in this acquittal appeal. ( 9 ) ). Learned Additional Public Prosecutor has seriously and vehemently criticised the impugned acquittal order and has forcefully contended that the prosecution has established the guilt of the accused beyond reasonable doubt and, therefore, it is contended that the impugned acquittal order requires reversal. ( 10 ) ). As against this, the learned Counsel appearing for the respondent/original accused has, inter alia, contended that the scope or powers of this Court in acquittal appeal is very much circumscribed and the impugned acquittal order cannot be said to be unreasonable or perverse and, therefore, this Court should not interfere with the impugned acquittal. ( 11 ) ). No doubt, it is true that the scope for re-assessment and re-examination of the evidence in an acquittal appeal is very much circumscribed. ( 11 ) ). No doubt, it is true that the scope for re-assessment and re-examination of the evidence in an acquittal appeal is very much circumscribed. Unless and until perversity or gross unreasonableness in the appreciation of the evidence is successfully pointed out, this Court will be at loath to interfere with the acquittal recorded by the trial Court. This Court is also conscious about the settled proposition of law that if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating the conviction, the appellate Court should not, in such a situation, reverse the order of acquittal recorded by the trial magistrate. The appellate Court should not reverse the order of acquittal even if it is possible to take different view. ( 12 ) ). The appellate Court has to give proper weighty consideration to such matters as - (1) the view of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused and the assumption certainly not weaken by the fact that there has been acquittal at his trial, (3) the right of the accused to the benefit of any doubt, and (4) slowness of the appellate Court in interfering with the finding of fact arrived at by the trial Court who had the advantage of seeing the witness. It is true that such an approach is required to be made and it has been endorsed by this Court as well as by the Apex Court in catena of judicial pronouncements. ( 13 ) ). However, considering the aforesaid proposition of law on the point, in the factual scenario of the present case, with due respect, it can safely be concluded that the impugned order of acquittal is unreasonable and the conclusion reached by the learned trial Magistrate in acquitting the accused is, totally perverse, warranting interference of this Court. On re-appreciation and re-appraisal of the testimonial and documentary evidence relied on by the prosecution this Court has no option but to hold that the impugned order is erroneous, perverse and unreasonable requiring the reversal of the acquittal by the interference of this court. This Court upon the thorough analysis and careful and threadbare scrutiny of the evidence on record, is satisfied that the prosecution has established the guilt of the accused beyond any shadow of doubt. ( 14 ) ). This Court upon the thorough analysis and careful and threadbare scrutiny of the evidence on record, is satisfied that the prosecution has established the guilt of the accused beyond any shadow of doubt. ( 14 ) ). The evidence of child-Atul inspires the confidence of this Court and there is no reason to disbelieve his testimony. His evidence is also supported by his mother and father and medical evidence and the report of the serologist. Upon examination of the aforesaid testimonial and documentary evidence with full circumspection, there is no any (sic.) iota of doubt in holding that the complicity and the culpability of the accused is, succinctly, established without any shadow of doubt for the offence punishable under S. 377 of the I. P. C. ( 15 ) ). It is, inter alia, contended by the learned Counsel for the respondent/ original accused that the evidence of the child should not be relied on as he did not understand the sanctity of oath. Prima facie, this contention may appear to be subtle but not sustainable in the facts of the present case. It may be mentioned at this stage that competency, adequacy and admissibility, all these things are different. No doubt, the line dividing the three aspects is very thin but real in nature. ( 16 ) ). It is true that child witness was not administered oath. However, there is no rule of law that the evidence of a witness who has not administered oath cannot be relied upon ipso facto on that ground. At this stage, the provisions of the Oaths Act, 1969 ("oath Act" for short) and the provisions of S. 118 of the evidence Act, 1872 ("evidence Act" for short) are required to be considered. Section 118 of the Evidence Act reads as under :"118. Who may testify :- All persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Explanation :- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. " ( 17 ) ). Explanation :- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. " ( 17 ) ). It could be very well seen from the aforesaid provision that the general rule is that capacity of the person offered as a witness is presumed, i. e. , to exclude a witness on the ground of mental or moral incapacity the existence of the incapacity must be made to appear. No doubt, it is true that a special duty is required to be observed by the Court in the case of a child witness. Under S. 118 of the Evidence Act, it is also the duty of the Court to test the capacity of the witness, if the witness is of a tender age by putting questions to ascertain his/her intellectual capacity and the faculty of understanding. After the capacity of the witness is ascertained, question of administering oath would assume significance. ( 18 ) ). The power to administer oaths is enshrined in S. 3 of the Oaths Act. It would be, therefore, appropriate and interesting to refer to the said provisions at this juncture. Section 3 of the Oaths Act reads as under :"3. Power to administer oaths :- (1) The following Courts and persons shall have power to administer, by themselves or, subject to the provisions of sub-S. (2) of S. 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely :- (a) all Courts and persons having by law or consent of parties authority to receive evidence; (b) the commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmations is administered within the limits of the station. (2) Without prejudice to the powers conferred by sub-S. (1) or by or under any other law for the time-being in force, any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf - (a) by the High Court, in respect of affidavits for the purpose of judicial proceedings; or (b) by the State Government in respect of other affidavits (1873-S. 4.)"it may be mentioned that S. 5 of the Oaths Act provides that witnesses, interpreters and jurors may instead of making oaths may make affirmation. Incidentally, it may also be stated that S. 7 of the Oaths Act provides that the proceedings and evidence recorded in the Court shall not be invalidated by omission of oath or irregularity. (emphasis supplied) ( 19 ) ). Although it is not necessary for preliminary examination, i. e. , voire dire of a child witness in order to make his testimony admissible, nevertheless, such a course is desirable and should be resorted to for it offers and opportunity to the court to assess the mental capacity of a child witness. In the instant case, the victim child was aged about 7 at the relevant time. The main anxiety of the Court should be to see and ascertain as to whether the child has given his evidence free from any tutoring or prompting. The difficulty with child witness often is that they can be made to believe in thing which they themselves have not seen and this belief, when once it gets hold of child witnesses can be tutored much better than adults. Therefore, preliminary examination before commencement of recording of evidence of tender age witness is desirable so that the Court recording the evidence could find and notice as to whether the child has that capacity to understand the sanctity of oath and what is the extent of faculty of his understanding. Thus, preliminary examination has the merit of leaving the child witness in the hands of the Court for it to discover by asking questions which have no relevance or connection with the facts about which that witness was expected to give evidence so that the evil effects of tutoring could not mark the assessment of the mental capacity of the witness by the Court. It is very desirable that a trial Judge, who has child witness before him, should preserve on the record, apart from the child witnesss evidence in the case, some other questions and answers which could help the Court of Appeal to come to the conclusion whether or not the trial Judges decision in regard to the competency of the child witness was right or erroneous. In other words, it is desirable that the Judges and magistrates should always record their opinion that the child understand the duty of speaking the truth and state why they think that otherwise the credibility of the witness may be affected so much so that in some cases it may be necessary to reject the evidence altogether. This proposition is very well established and this court would like to highlight and reiterate that the trial Courts and Magistrates should invariably adhere to such a practice so as to assess and ascertain the competency and extent of faculty of understanding of the child witness, like Atul as in the present case. ( 20 ) ). It would be interesting to refer to the relevant record in the present case. The learned trial Magistrate had put four questions at the initial stage to the child- atul with a view to ascertain as to whether he understood the questions put to him. After having seen the answers given by the child-Atul, the learned trial magistrate has recorded that child-Atul understood clearly the questions put to him. Thus, it was clearly ascertained by the learned trial Magistrate that child-Atul was in a position to understand the duty of speaking the truth. Therefore, it is clear from the record of the present case that child-Atul was not administered oath looking to his tender age but his evidence was recorded after ascertaining the extent of his faculty of understanding. Therefore, the contention that the evidence of the child-Atul should not be relied on as oath had not been administered, cannot be accepted. . ( 21 ) ). As could be seen from the record of the present case that the child-Atul was competent to depose. The question of competency of a witness to depose should not be mixed up with admissibility or credibility. The trial Magistrate verified by putting questions before the commencement of recording his evidence that the child-Atul was competent to depose. As could be seen from the record of the present case that the child-Atul was competent to depose. The question of competency of a witness to depose should not be mixed up with admissibility or credibility. The trial Magistrate verified by putting questions before the commencement of recording his evidence that the child-Atul was competent to depose. The record also shows that the child was not prevented from understanding the questions put to him. He had given rational answers to the questions put to him. Therefore, it cannot be contended even for a moment that the child was incompetent to depose in view of the clear provisions of S. 118 of the Evidence Act while viewed in the light of the present case. It is very clear that the boy who was aged about 7 at the relevant time was competent to depose. Though he was not administered the oath in view of his tender age, he understood the duty of speaking the truth. ( 22 ) ). The contention that omission to administer oath to the child-Atul has rendered his evidence inadmissible is not well-founded. No provision is shown under which such a contention can be supported. Omission to administer oath even to an adult and competent witness would only affect his credibility and not his competence. The question of competence of a witness is dealt with by the provisions of S. 118 of the Evidence Act. The provisions of the Oaths Act do not deal with the competence. In fact, omission to take oath by the witness does not affect the admissibility of his or her evidence. At the best, it can, alternatively, be said that it is an irregularity but it would not affect the admissibility of evidence of the witness. In the present case, as such, the questions which were put to the child were answered by him before the commencement of recording of his evidence and the learned Magistrate was satisfied and has certified that the child understood the duty of speaking the truth. ( 23 ) ). However, it may be noted that it is always advisable and expedient that judges and Magistrates should record their opinion after putting the questions and recording answers as to whether the child understands the duty of speaking the truth. ( 23 ) ). However, it may be noted that it is always advisable and expedient that judges and Magistrates should record their opinion after putting the questions and recording answers as to whether the child understands the duty of speaking the truth. It would be also very useful for the appellate Court to examine and assess the credibility of such witness. It is time and again pointed out that the trial courts in such a situation should always record their opinion after putting questions and recording the answers as to whether the child undertakes the sanctity of speaking the truth and also with regard to the sanctity of oath. ( 24 ) ). It may be recalled even at the cost of repetition that preliminary inquiry has the merit of leaving the child-witness in the hands of the Court for it to discover by asking questions which have no relevance or connection with the facts about which that witness was expected to give evidence, so that the evil effects of tutoring could not mark the assessment of the mental capacity of the witness by the Court. It is, therefore, desirable and expedient that the trial Court Judge who has a child witness before him should preserve on record, apart from the child witnesss evidence in the case, some other questions and answers which could also help the Court of Appeal to come to the conclusion whether or not the trial judges decision in regard to the competency of the child witness was right or erroneous. Thus, apart from the provisions of S. 118 of the Evidence Act that it becomes imperative on the part of the Court to test the capacity of the witness of tender age and the Court must put questions and ascertain the extent of faculty of understanding of the witness of tender age. Therefore, a preliminary inquiry or test as to the competence of the child witness is always desirable and helpful in search of the truth. ( 25 ) ). If the witness of the tender age is in a position to understand and appreciate the duty of speaking the truth and if the Court certifies by holding a preliminary inquiry, the evidence of the child cannot be excluded from the consideration on the ground that the witness was not administered the oath. ( 25 ) ). If the witness of the tender age is in a position to understand and appreciate the duty of speaking the truth and if the Court certifies by holding a preliminary inquiry, the evidence of the child cannot be excluded from the consideration on the ground that the witness was not administered the oath. It may happen in a given case when the witness of tender age may not understand the sanctity of oath. However, the Court may ascertain and certify that such a witness understands the duty of speaking the truth and then the evidence of such a witness is not rendered inadmissible though oath is not administered to him or her, as the case may be. This proposition of law is very well settled since long. It is very clear from the record of the present case that the evidence of child-Atul cannot be discarded from the consideration as he understood the duty of speaking the truth. In short, insofar as the competence of the witness is concerned, this court is satisfied that the child-Atul was competent to depose. ( 26 ) ). Thus, unsworn evidence of a child witness cannot be said to be inadmissible. Section 7 of the Oaths Act, 1969 (S. 13 of the Old Act of 1873) clearly provides that an omission of taking any oath or any irregularity whatever in the administration of any oath or affirmation shall not invalidate the evidence of such a witness. Section 7 of the Oaths Act reads as under :"7. Proceedings and evidence not invalidated by omission of oath or irregularity :- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. " ( 27 ) ). In view of the provisions of the Oaths Act, it becomes clear that unsworn testimony of a child witness is not only admissible but also can be acted upon, if found credible and reliable. " ( 27 ) ). In view of the provisions of the Oaths Act, it becomes clear that unsworn testimony of a child witness is not only admissible but also can be acted upon, if found credible and reliable. This Court can receive the evidence of a child witness who does not understand the nature of an oath and to whom, therefore, oath was not administered. Of course, the necessity of speaking truth is not dispensed with. ( 28 ) ). In the case of Mohamed Sugal Esa v. The King, reported in AIR 1946 pc 3, it was held that unsworn evidence of a child is admissible. Not only that it was also held that corroboration in material particular implicating the accused is not necessary. The corroboration goes only to weigh the value of evidence. It was further held in the said case that there is no any rule of law that uncorroborated evidence of a child cannot be relied on. The contention that the evidence of the child witness should not be relied upon without material corroboration also cannot be accepted. It is not necessary that the evidence of child witness should be corroborated on all the points. Evidence of a child witness who is the victim of sexual assault is not like the evidence of an accomplish. It is rightly said that it would be impossible and it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration because its nature and extent must be necessarily with the circumstances of each case and also according to the particular circumstances of the offence charged. There is no rule of law that the uncorroborated testimony of a child witness and or a victim of sexual offence cannot be relied on without corroboration. It may be true that the evidence of a child of tender age, may be examined, with more and extra caution or full of circumspection. If the evidence of the victim of sexual offence who is of tender age, if found creditworthy and reliable, can be accepted without any corroboration. In the present case, the evidence of the child witness-Atul is quite creditworthy and reliable. The learned trial Magistrate has committed serious error in rejecting his evidence without corroboration. In fact, the evidence of the child witness is creditworthy, reliable and acceptable without any corroboration. In the present case, the evidence of the child witness-Atul is quite creditworthy and reliable. The learned trial Magistrate has committed serious error in rejecting his evidence without corroboration. In fact, the evidence of the child witness is creditworthy, reliable and acceptable without any corroboration. Although the evidence of the child-Atul is fully corroborated from the evidence on record, the learned trial Magistrate has observed that no corroboration is emerging from the evidence on record to the evidence of the child. ( 29 ) ). As observed earlier, again it may be noted, at this stage, that it is extremely difficult to formulate the kind of evidence which should or would be regarded as corroboration because its nature and extent may necessarily vary with the circumstances of given case and also according to the particular circumstances of the culpability charged. However, the following principles may be borne in mind while seeking for such corroboration in the light of the settled proposition : (1) It is not necessary that there should be an independent confirmation of every material circumstances in the sense that the independent evidence in the case apart from the testimony of the child witness should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the child witness is true and it is reasonably safe to act upon it. (2) The corroboration need not be direct evidence that the accused committed the offence in question. It can be also corroborated by substantial evidence. Thus, criminality of the accused could be transfixed on the basis of corroboration from the circumstantial evidence. (3) That the corroboration ordinarily should come from independent sources, but, of course, the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances conviction could be based on the sole testimony of a rape victim or victim of sexual offence. (4) The independent evidence must not only make it safe to believe that the crime was committed but it must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular to the testimony of the child witness that the accused committed the offence. (4) The independent evidence must not only make it safe to believe that the crime was committed but it must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular to the testimony of the child witness that the accused committed the offence. When the corroboration of evidence is available and relied on by the prosecution it is also to be weighed and valued as with other evidence. There is also no rule or practice that in every case there must be corroboration before a conviction can be allowed to sustain. ( 30 ) ). In view of the facts and circumstances of the present case, the evidence of child-Atul is creditworthy and conviction can be based solely on his testimony. However, it is contended that apart from the corroboration, the evidence of child- atul cannot be relied on in view of certain discrepancies. The discrepancies which are pointed out are quite at micro-level and do not, as such, affect the very substratum of the prosecution version. Therefore, undue weight cannot be attached to such minor discrepancies. The evidence of the victim of sexual offence is not like the evidence of an accomplice. It is like the evidence of an injured witness. On principle, the evidence of victim of sexual assault must stand at par with the evidence of an injured witness. Just as the witness who has sustained injuries is the best witness, who is not likely to exculpate, the victim of sexual assault is entitled to higher rate of credibility. The discrepancies which are relied on by the defence as such do not affect the main core of the prosecution case. In the opinion of this Court, the evidence of the child-Atul is natural, straightforward and weighty and could be accepted without any corroboration so as to transfix the complicity of the accused with which he is charged. ( 31 ) ). It may also be noted that it is a settled proposition of law that minor discrepancies cannot be allowed to operate as impediments if the overall evidence of the witness is found creditworthy and reliable. ( 31 ) ). It may also be noted that it is a settled proposition of law that minor discrepancies cannot be allowed to operate as impediments if the overall evidence of the witness is found creditworthy and reliable. It would be appropriate to reiterate the observations of the Apex Court in the case of Bharwada Bhoginbhai hirjibhai v. State of Gujarat, AIR 1983 SC 753 : [1983 (2) GLR 1073 (SC)], in this regard, as under :"overmuch importance cannot be attached to minor discrepancies. The reasons are obvious : (1) By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one persons mind, whereas it might go unnoticed on the part of another. (4) By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequences of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequences of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by Counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. " ( 32 ) ). The evidence of the child-Atul is, no doubt, also corroborated from various sources. His evidence is fully supported by the evidence of his mother and father. The contention that the evidence of the mother and father of the child cannot be said to be evidence of independent witnesses and, therefore, no reliance should be placed on their testimony is also unsustainable. Independent evidence means, an independent of sources which are untainted and which are reliable. The evidence of the mother, especially in the case of a child witness, who is the victim of sexual assault, cannot be said to be not sufficient to corroborate the version of the victim-child. The child-Atul had immediately narrated the incidence to the mother and both of them had gone to the house of the accused within a period of half an hour after commission of the sexual crime. Immediately the father of the victim was also given the version of the incidence. The evidence of the child is fully reinforced by the evidence of the father and mother, P. Ws. 1 and 2, at Ex. 9 and 11 respectively. In the opinion of this Court, the evidence of the child, who is the victim of the offence of sodomy is corroborated in material particulars by the evidence of his parents. Therefore, alternatively the contention that there is no sufficient corroboration to the evidence of the child-Atul is also without any substance. 9 and 11 respectively. In the opinion of this Court, the evidence of the child, who is the victim of the offence of sodomy is corroborated in material particulars by the evidence of his parents. Therefore, alternatively the contention that there is no sufficient corroboration to the evidence of the child-Atul is also without any substance. The learned trial Magistrate has committed a serious error in discarding the evidence of the child and his parents. ( 33 ) ). It was also, seriously, contended before this Court that the prosecution has failed to prove the guilt of the accused under the provisions of S. 377 of the i. P. C. In that it has been, vehemently urged that there is no evidence to show that the accused had any carnal intercourse against the order of nature with the child- atul. This contention is also meritless in the facts of the present case. ( 34 ) ). In order to hold the accused guilty for the offence punishable under S. 377 of the I. P. C. , it is obligatory on the part of the prosecution to prove - (1) that the accused had carnal intercourse with man, woman or animal; (2) such intercourse was against the order of nature; (3) the act by the accused was done voluntarily; and (4) there was penetration. ( 35 ) ). It is very clear from the provisions of S. 377 of the I. P. C. , that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation to S. 377 clarifies as to what the penetration means. It is explained that penetration is sufficient to constitute the carnal intercourse necessary to the offence described in S. 377 of the I. P. C. ( 36 ) ). At this stage, it would be appropriate to refer to the medical evidence relied on by the prosecution. The child-Atul was examined by the Medical Officer, p. W. 6, Dr. B. M. Chaudhari, at 9 p. m. , on the same day, that is, 23-9-1981, in civil Hospital at Palanpur. Dr. Chaudhari is examined, at Ex. At this stage, it would be appropriate to refer to the medical evidence relied on by the prosecution. The child-Atul was examined by the Medical Officer, p. W. 6, Dr. B. M. Chaudhari, at 9 p. m. , on the same day, that is, 23-9-1981, in civil Hospital at Palanpur. Dr. Chaudhari is examined, at Ex. 19 and the medical certificate in respect of the injuries sustained by the child-Atul is produced, at ex. 21. According to the medical evidence, the child-Atul had sustained following injuries and marks on examination by Dr. Chaudhari which was done within a period of less than 3 hours after the occurrence of the sexual assault on the child- atul :" (1) There was a tear on anterior aspect of anus of 3 cms. long starting from anterior anal margin extending into the mucosa of anus in anterior-posterior direction and margins of tear was bright, red, tender and painful. (2) Contusion around the anus was present. (3) Seminal stain was not present around the anus and on the clothes. (4) Swab taken from anus is negative for spermatozoa, and (5) Blood group of the child is o "positive". The evidence of the child that there was an act of sodomy committed by the accused on his person is also corroborated by the evidence of his parents. Their evidence is also reinforced by the medical evidence of Dr. Chaudhari. Not only that the accused was also examined by Dr. Chaudhari on the same day at about 10-40 p. m. , i. e. , within almost 3 hours after the occurrence of the unfortunate act of sodomy. The medical certificate in respect of medical examination of the person of the accused is produced, at Ex. 23. It is clearly certified by Dr. Chaudhari that upon examination of the person of the accused, on 23-9-1981, he found the following injuries on the person of the accused :" (1) Injury on penis. Frenum is teared. (It should be as torn ). (2) Smegma is absent. (3) Seminal stain not present on penis and any part of the body and clothes. (4) Blood group of the accused was b positive". The evidence of the child is also fortified by the medical evidence of Dr. Chaudhari in view of the injuries noticed by him on the person of the accused immediately after the occurrence of the incident. (3) Seminal stain not present on penis and any part of the body and clothes. (4) Blood group of the accused was b positive". The evidence of the child is also fortified by the medical evidence of Dr. Chaudhari in view of the injuries noticed by him on the person of the accused immediately after the occurrence of the incident. Thus, the contention that the prosecution has failed to prove material ingredients of the provisions of S. 377 of the I. P. C. , is, totally, meritless. The offence made punishable under this section requires that penetration, however little, should be proved strictly. Thus, an attempt to commit this offence should be an attempt to thrust the male organ into the anus of the passive agent. Some activity on the part of the accused in that particular direction ought to be proved. The evidence of the child that the accused had carnal intercourse with him is not only corroborated by the evidence of his parents but is also materially reinforced by the medical evidence of Dr. Chaudhari. In an attempt to satisfy his beastly lust by carnal intercourse against the order of nature, the accused who was a young man of 21, made the child-Atul, who was aged 7, the victim of sexual assault and committed an act of sodomy. It cannot be said that the material ingredients attracting the rigors of S. 377 are not established. Looking to the nature and number of injuries on the anus portion of the child and the injuries on the part of penis of the accused, who were examined, immediately, after occurrence of the offence of sodomy, leaves no any manner of doubt that there was an offence of sodomy. The evidence of the child- atul is also reinforced by the evidence of serologist. P. W. 10, Mr. C. M. Patel, is examined, at Ex. 36. His report is produced, at Ex. 37. It is very clear from the evidence of serologist that the under-garment (white-coloured chaddi) was found tainted with human blood and the pant of the child was also stained with human blood and semen. Version of the prosecution is also fully supported by the prosecution witness No. 7, Mahendrakumar Gyanchand, who is examined at Ex. 24. 37. It is very clear from the evidence of serologist that the under-garment (white-coloured chaddi) was found tainted with human blood and the pant of the child was also stained with human blood and semen. Version of the prosecution is also fully supported by the prosecution witness No. 7, Mahendrakumar Gyanchand, who is examined at Ex. 24. Panchnama with regard to the physical condition of the victim was prepared at 8-35 p. m. , on the same day, that is, 23-9-1981 and it is produced, at Ex. 25. It also supports the version of the prosecution. Evidence of P. W. 8, Gangaram mitharam, is, at Ex. 26. It is very clear from his evidence that Panchnama in respect of the recovery of the under-garment or white-coloured chaddi of the accused which was made on the same day at 9-30 p. m. The physical condition of the accused was also mentioned in the said Panchnama. It is also very clear from the Panchnama of physical condition that there was an injury on the penis of the accused and the under-garment was tainted with blood and semen. Thus, both panchnamas have fully supported the prosecution case. There is clear evidence to show, without any shadow of doubt, that the accused had committed an offence of sodomy which is punishable under S. 377 of the I. P. C. ( 37 ) ). Assuming even for the sake of argument that there was no penetration in the anus as argued on behalf of the defence, then also the accused is unable to run away from the rigors of the provisions of S. 377 of the I. P. C. Section 377 of the I. P. C. reads as under :"377. Unnatural offence :- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation :- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. " ( 38 ) ). The word "intercourse" means sexual connection as per the definition given in Concise Oxford Dictionary. Explanation :- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. " ( 38 ) ). The word "intercourse" means sexual connection as per the definition given in Concise Oxford Dictionary. In the case of Khanu v. Emperor, AIR 1925 sind 286, the meaning of the word intercourse has been considered :"intercourse may be defined as mutual frequent action by members of independent organisation. "then commercial intercourse, social intercourse, etc. , have been considered; and held that :"by a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped atleast partially by the visited organism, for intercourse connotes reciprocity. "therefore, to decide whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped atleast partially by the visited orgasm. In intercourse between the thighs, the visiting male organ is enveloped partially by the orgasm visited, the thighs; the thighs are kept together and tight. ( 39 ) ). It is very clear from the aforesaid definition that even mere penetration will be sufficient to constitute carnal intercourse. For constituting carnal intercourse there need not necessarily be seminal ejaculations. There is no doubt about the fact that the accused had voluntarily done the act of sodomy. It would be without any doubt, an act against the order of nature. ( 40 ) ). The question which is raised for consideration is as to whether the accused had carnal intercourse with the victim child-Atul, or could it be said that there was an attempt to commit this offence in question. In other words, is the act here committed by the accused one of carnal intercourse ? In this connection, it may be noted that the expression "carnal" means sensual or bodily or sexual as per the definition of Chambers English Dictionary. "carnal knowledge" means sexual intercourse. In other words, is the act here committed by the accused one of carnal intercourse ? In this connection, it may be noted that the expression "carnal" means sensual or bodily or sexual as per the definition of Chambers English Dictionary. "carnal knowledge" means sexual intercourse. " As per the Strouds Judicial Dictionary, 4th Edition, at page 387, "carnal knowledge" means penetration to any slightest degree of the organ alleged to have been carnally known by the male organ of generation. Thus, S. 377 of the I. P. C. , defines unnatural sexual intercourse against the order of nature and it lays down the punishment for the same. This offence includes sodomy, buccial coitus, tribadism and bestiality. Practice of sodomy is illegal and punishable under S. 377 of the I. P. C. Incidentally, it may be mentioned that this was a practice in a town named Sodom from which the name of sodomy is derived. In modern practice the term sodomy is confined to sexual connection with two males and possibly unnatural connection between a male and female. It is also called buggery. The word "intercourse" means sexual connection as per plain dictionary meaning. . ( 41 ) ). Attention of this Court is also invited to the observations of this Court in the case of Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252 : [ 1968 GLR 1052 ]. Para 7 of the said judgment reads as under :" (7) The learned Advocate, Shri Mehta, invited my attention to the opinion expressed by the learned author, Mr. Havelock Ellis, in his book psychology of sex Twelfth Impression, 1948, London. The relevant comments on page 41 made by him are as under :-"while the kiss may be regarded as the typical and normal erogenic method of contrectation for the end of attaining tumescence, there are others only less important. Any orificial contact between persons of opposite sex is sometimes almost equally as effective as the kiss in stimulating tumescene; all such contacts indeed, belong to the group of which the kiss is the type. Cunnilincuts (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototype forms among animals, and they are found among various savage races. Cunnilincuts (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototype forms among animals, and they are found among various savage races. As forms of contrectation and aids to tumescene they are thus natural and are sometimes regarded by both sexes as quintessential forms of sexual pleasure, though they may not be considered aesthetic. "they become deviations, however, and thus liable to be termed "perversions", when they replace the desire of coitus". These latter words which are underlined by me (put in " " here Ed.), are very important. If the stage of the aforesaid act was for stimulating the sex urge, it may be urged that it was only a prelude to carnal intercourse. But when there is a deviation liable to be termed perversion, it would not be a mere prelude to carnal intercourse as it replaces the desire of coitus. In the instant case, it could hardly be said that the act was a prelude to sexual intercourse, i. e. , it was with a view to excite passions, for having a sexual intercourse. The obvious reason being that this act was done not against a person of opposite sex i. e. , woman and eventually, there was no question exciting passions for a sexual intercourse. In the instant case, the evidence reveals that after the petitioner Nos. 1 and 3 had already committed the offence in question, which was carnal intercourse per anus, the boy began to get a lot of pain and hence, the petitioner No. 2 could not succeed in having that act. He, therefore, voluntarily did the act in question by putting his male organ in the mouth of this boy and there was also a seminal discharge and the boy had to vomit it out. It is, therefore, evident that this act was the actual replacement of the desire of coitus. " ( 42 ) ). In Corpus Juris Secundum, Volume 81, at page 367, sodomy is defined as follows :"in its broadest meaning, sodomy is the carnal copulation by human beings with each other against nature, or with a beast, in which sense it includes the crime against nature, bestiality, buggery, cunniligus and fellatio. In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast. In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast. Sodomy may be distinguished from rape, as discussed in rape. Carnal copulation, as the phrase has been used in the law relating to sodomy, means sexual intercourse, including such intercourse through the mouth. The phrase "carnal copulation", as employed in a statute defining sodomy, must be given a meaning consistent with the entire context of the statute, and does not have one meaning in connection with such copulation between human beings and a different meaning with respect to copulation between a human being and an animal. Carnal knowledge, as the term has been used in statutes relating to sodomy, has been said to include such knowledge of the body of another person by either natural or unnatural copulation, and, in this connection, the word "carnal" has been defined as pertaining to the body, its passions and appetites. Lewd and lascivious conduct. Under statutes defining sodomy and including in addition to the elements of the crime, as known at connection law, other acts of carnal copulation and declaring any person "who shall voluntarily permit the use of his own sexual parts in a lewd or lascivious manner by any minor" to the guilty of sodomy, the words "lewd and lascivious" if not defined in the statute, must be given their ordinary meaning as determined in the light of the legislative intent, and as thus construed the words "lewd or lascivious manner" mean in a vulgar manner inciting sexual desire, and connote lust, indecency, and sexual indulgence. In this connection it has been said that the words "lewd" and "lascivious" are similar in meaning and signify that form of immorality which has relation to sexual impurity. " ( 43 ) ). Therefore, carnal knowledge or intercourse committed by the accused against the order of nature, by a man with a man, or in the same unnatural manner with a woman, or by a man or woman in any manner with a beast. This is called buggery. In Strouds Judicial Dictionary, 3rd Edition, on page 347, the word buggery is said to be synonymous with sodomy. It could be very well seen from S. 377 of the I. P. C. , that penetration itself is sufficient to constitute carnal intercourse. The word penetration is not statutorily defined. This is called buggery. In Strouds Judicial Dictionary, 3rd Edition, on page 347, the word buggery is said to be synonymous with sodomy. It could be very well seen from S. 377 of the I. P. C. , that penetration itself is sufficient to constitute carnal intercourse. The word penetration is not statutorily defined. However, it is explained in Websters New 20th Century Dictionary, unabridged, 2nd Edition, on page 1324 as under :"penetration : v. t. penetrate, p. t. pp. , penetrating, ppr. (L. Penetratus, pp. of penetrate, penas, within, and root tra, seen in intrere, to enter, trans, across ). 1. to enter by piercing; to find or force a way into or through; as, the dart penetrated his skin; oil penetrates wood. 2. to imbue, to cause to feel; to move deeply; as, to penetrate with grief. 3. to reach mentally; to understand; to grasp the hidden meaning of; as, to penetrate his motives. " ( 44 ) ). In view of the clear evidence on record, the prosecution has, successfully, established that there was penetration of penis by the accused in the anus of the child- atul. Even assuming that there was no penetration in the anus of the child as per the case of the prosecution, then also, the accused cannot escape from the provisions of S. 377 of I. P. C. , as there was intercourse between the thighs of the child-Atul and it would also constitute an unnatural sexual intercourse. To decide whether there was an intercourse or not what is to be considered is whether the visiting male organ is enveloped atleast partially by the visited organism. In intercourse between the thighs, the visiting male organ is enveloped atleast partially by the organism visited, the thighs; the thighs are kept together and tight. As could be seen from the dictionary meaning the word penetrate means find access into or through, pass through. When the male organ is inserted between the thighs kept together and tight, is there no penetration ? The word insert means, place, fit, thrusts. Therefore, if the male organ is inserted or thrust between the thighs, there is penetration to constitute unnatural offence. When the male organ is inserted between the thighs kept together and tight, is there no penetration ? The word insert means, place, fit, thrusts. Therefore, if the male organ is inserted or thrust between the thighs, there is penetration to constitute unnatural offence. What is required to be considered is not the definition of rape but the definition of unnatural offence as contemplated under the provisions of S. 377 of the I. P. C. , and any act of committing intercourse between the thighs is unnatural offence punishable under Secs. 377 of I. P. C. Distinction may be observed between the provisions of Secs. 376 and 377 of the I. P. C. The offence under S. 376 of the I. P. C. , is sexual intercourse whereas the definition given in S. 377 of i. P. C. , is unnatural intercourse against the order of nature. ( 45 ) ). In the case of Khandu v. Emperor, AIR 1934 Lah. 261, it was held that carnal intercourse with a bullock through nose is also an unnatural offence punishable under S. 377 of the I. P. C. In the case of State of Kerala v. Kundumkara Govindan and Anr. , 1969 Cri. LJ 818, the Kerala High Court has held that an act of committing intercourse between thighs is an intercourse against the nature. Therefore, committing intercourse by inserting the visiting male organ between the thighs of another is nothing but an unnatural intercourse and is punishable under S. 377 of the I. P. C. Therefore, the aforesaid contention that since penetration of penis in the anus of the child is not established beyond doubt and, therefore, the accused cannot be held guilty for the offence punishable under s. 377 of the I. P. C. , as there was only penetration between the thighs, also cannot be accepted. ( 46 ) ). Since statute does not specify any particular opening to which penetration can be made, penetration into any orifice of ones body except the vaginal opening of a female is sufficient for establishment of the crime. ( 46 ) ). Since statute does not specify any particular opening to which penetration can be made, penetration into any orifice of ones body except the vaginal opening of a female is sufficient for establishment of the crime. This Court in lohana Vasantlals case (supra) has held that insertion of the penis even in the mouth is nothing but an act of actual replacement of desire of coitus and, therefore, would amount to the offence punishable under S. 377 of the I. P. C. Therefore, the aforesaid contention that there was no evidence to connect the accused with the complicity punishable under S. 377 of the I. P. C. , is required to be straightaway rejected. ( 47 ) ). It was contended vehemently by the learned Advocate for the accused that in absence of the stain of semen in the anus portion or on the pant of the victim, it cannot be contended that there was any unnatural offence as contemplated by the provisions of S. 377 of the I. P. C. This contention was wrongly accepted by the learned trial Magistrate while acquitting the accused. The learned trial Magistrate had also observed that in absence of semen stain on the pant as well as anus part of the child-Atul, it was likely that there was no act of sodomy and, therefore, benefit of doubt was accorded to the accused. The trial court also did not rely on the injury certificate in which injury was found on the penis of the accused. The trial Court observed that such an injury was possible also because of normal sexual intercourse by the accused or because of masturbation. Therefore, the medical evidence and the report of the serologist were not relied on. With due respect, the aforesaid observations, as such, are not acceptable in the light of the overwhelming evidence on record to connect the accused with the complicity with which he is charged. In fact, it may be again mentioned that mere penetration itself is sufficient to constitute the offence of unnatural intercourse. It is not necessary to have emission or ejaculation to constitute the offence of unnatural intercourse. The benefit of doubt given by the trial Court to the accused is not supportable from the overwhelming evidence on record. It is true that the prosecution is obliged to establish the offence of the accused beyond any shadow of doubt. It is not necessary to have emission or ejaculation to constitute the offence of unnatural intercourse. The benefit of doubt given by the trial Court to the accused is not supportable from the overwhelming evidence on record. It is true that the prosecution is obliged to establish the offence of the accused beyond any shadow of doubt. There can be no any quarrel on this proposition of criminal jurisprudence which is applicable to the proceedings in our criminal Courts. However, the benefit of doubt should not be of a man of timid nature who is afraid of legal consequences. It is the main anxiety of the Court in such a case to see as to whether the substratum of the prosecution story is succinctly established without any doubt. The benefit of the doubt to be accorded to the accused in such a situation is a doubt which a rational and reasonable man would entertain. It cannot be contended even for a moment that there is any doubt to transfix the culpability of the accused with the offence punishable under S. 377 of the I. P. C. Therefore, there is not an iota of doubt in establishing the guilt of the accused for the offence punishable under S. 377 of the I. P. C. In the circumstances, the observations of the learned trial Magistrate in according the benefit of doubt and resultant acquittal of the accused from the aforesaid charge are neither reasonable nor sustainable. ( 48 ) ). The following circumstances unerringly support the prosecution version and indicate the culpability of the accused beyond all reasonable doubts : (1) The child-Atul though aged 7 years at the relevant time has narrated the entire incidence in a very natural way, directly involving the accused and his evidence is found quite trustworthy. (2) The evidence of the child-Atul is also supported by the evidence of his mother and father. (3) Immediately after the incident of ghastly sodomy, the child-Atul tearfully and painfully narrated the incident to his mother, who in turn, took Atul at the residence of the accused, who is their neighbour. (4) Immediately thereafter, the father of the child-Atul, Ramjibhai, who is the complainant, is informed by the child and the mother of the child and he took the child to the police station immediately. (4) Immediately thereafter, the father of the child-Atul, Ramjibhai, who is the complainant, is informed by the child and the mother of the child and he took the child to the police station immediately. (5) The F. I. R. came to be recorded as narrated by the father of the child within two hours after the incident. (6) Find of injury marks on the anus portion by the medical officer immediately after the complaint was lodged on examination by the medical officer at Palanpur Hospital. (7) Medical certificate at Ex. 21 in respect of the injuries sustained by the child shows that the child-Atul had sustained serious injuries on the portion of anus. (8) The accused was arrested from his residence within 3 hours after the incident. (9) As per the medical evidence, the accused had sustained injuries on his penis. (10) According to the serological report, the under-garment (white coloured chaddi) of the accused was tainted with human blood and the pant of the child was also found to be tainted with human blood of same group and also with semen. ( 49 ) ). The aforesaid facts and circumstances emerging from the record undoubtedly go to indicate that the view adopted and the conclusions reached by the learned trial Magistrate, with due respect, are not only erroneous and illegal but are also totally perverse. No any other view is possible on appreciation of the evidence on record other than the one which is being taken by this Court from the detailed analysis and the scrutiny of viva voce and documentary evidence relied on by the prosecution. ( 50 ) ). In the light of the entire conspectus of the testimonial collections, while viewed in the light of the overwhelming and supporting evidence, there is no slightest hesitation in holding that the prosecution has established the complicity of the accused beyond any shadow of doubt for the offence punishable under S. 377 of the I. P. C. With the result, the acquittal order recorded by the learned trial magistrate is not only erroneous but is illegal and perverse and is required to be set aside. ( 51 ) ). ( 51 ) ). In the result, the impugned acquittal order is quashed and the respondentoriginal accused is held guilty for the said offence punishable under S. 377 of the I. P. C. Insofar as the question of quantum of sentence is concerned, the accused is required to be heard. Since the accused is not present, notice is ordered to be issued to the respondent-accused for the purpose of hearing him on the quantum of sentence, returnable on 21-12-1992. 19-10-1994 ( 52 ) ). It has been reported by the learned A. P. P. that despite serious several efforts, the police has not been able to serve the accused so as to presenting for hearing on the quantum of sentence. However, it is assured that again, serious efforts shall be made to serve the notice on the accused and he will be kept present before the Court as and when he is served and available for his say on the quantum of sentence. 10-8-1998 ms. Katha Gajjar, A. P. P. , for the Appellant-State. B. N. Raval, for the Respondent. ( 53 ) ). Despite various attempts and serious several endeavours, the police has not been able to serve the non-bailable warrant. Therefore, the accused has not been brought for hearing him on the quantum of sentence. The first part of the judgment convicting the accused after reversing the acquittal recorded by the trial court, came to be passed on 8-12-1992. Thereafter, despite various attempts, the accused has not been traced as he is absconding. Therefore, opportunity of being heard as per provisions of S. 235 (2) of the Code of Criminal Procedure, 1973 (the Code) has not been availed of and the accused has been absconding. It could very well be seen from various actions including actions under Secs. 82 and 83 of the Code for proclamation and declaration, that the accused has been found absconding. ( 54 ) ). Misc. Criminal Application No. 4346 of 1997 was submitted by the State for actions under Secs. 82 and 83 of the Code for proclamation and declaration of the respondent-accused as an absconder. After following the procedure, the said application has been allowed and accused has been found absconder and he is evading process of the Court and the sentence that may be imposed upon him. ( 55 ) ). 82 and 83 of the Code for proclamation and declaration of the respondent-accused as an absconder. After following the procedure, the said application has been allowed and accused has been found absconder and he is evading process of the Court and the sentence that may be imposed upon him. ( 55 ) ). Section 235 (2) of the Code provides for hearing the accused on the question of sentence. Section 235 thus prescribes procedure in case of trial culminating into acquittal or conviction. It reads as under :" (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall unless he proceeds in accordance with the provisions of S. 360, hear the accused on the question of sentence, and then pass sentence on him according to law. "section 235 (2) provides that it is incumbent upon the Court to hear the accused on the question of sentence and thereafter it can pass appropriate sentence on him according to law once the accused is found convicted. Giving an opportunity of hearing to the accused after conviction is recorded on the question of sentence is a new provision in the Code. There is purpose and policy behind such important and salutary provision. ( 56 ) ). Requirement about hearing the accused on the question of sentence before passing the sentence order has been added as a desirable provision. It has been provided because it may happen that the accused may have some grounds to plead for giving more consideration with regard to sentence such as he is a bread-winner of the family of which the Court may not be made aware during the trial. So, after recording conviction upon finding the accused guilty, sub-S. (2) of S. 235 provides that opportunity of hearing may be given to theo the accused on the question of sentence. No doubt, provision contemplated under S. 235 (2) is a mandatory provision. Therefore, deviation from it cannot be described as mere irregularity in the course of the trial. Non-compliance with the new provision would lead to bypassing an important stage of the trial, and by omitting altogether, the trial cannot be said to be as contemplated in the Code. Such a provision was not there in the old Code. Therefore, deviation from it cannot be described as mere irregularity in the course of the trial. Non-compliance with the new provision would lead to bypassing an important stage of the trial, and by omitting altogether, the trial cannot be said to be as contemplated in the Code. Such a provision was not there in the old Code. The Parliament has incorporated designedly such provision in the new Code in S. 235 (2 ). ( 57 ) ). It becomes very clear from the provisions of sub-S. (2) of S. 235 that after recording finding of guilt and order of conviction, it is obligatory for the Court to hear the accused on the question of sentence, unless it releases him on probation of good conduct or after admonition under S. 360 of the Code. There is beneficial purpose in the right of hearing of accused on the question of sentence. For variety of facts and circumstances, bearing on the sentence can, in exercise of that right, be placed before the Court. The social compulsions, the presence of poverty, the retributive instinct to seek an extra legal remedy, the sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity-all these and similar other considerations can, hopefully and legitimately tilt the balance on the propriety and quantum of sentence. It is in this context that provisions of S. 235 (2) are mandatory. Now, the question which has arisen before me in this appeal is whether in a given case, like the one on hand, opportunity of hearing on the question of sentence of the accused can be said to have been given or not. For this purpose, the following aspects require consideration : (i) the accused came to be convicted by this Court for the serious offence under S. 377, I. P. C. (ii) he is found to have done an unnatural act with a minor boy aged about 7 for the purpose of satisfying his ultimate sexual lust. (iii) order of conviction came to be recorded on 8-12-1992 in this appeal. Thereafter, non-bailable warrant came to be issued. (iv) despite repeated attempts and serious efforts, warrant could not be executed as the accused is absconding and is not traceable; (v) list of events right from June 1983 till today has been submitted by the prosecution on record. (iii) order of conviction came to be recorded on 8-12-1992 in this appeal. Thereafter, non-bailable warrant came to be issued. (iv) despite repeated attempts and serious efforts, warrant could not be executed as the accused is absconding and is not traceable; (v) list of events right from June 1983 till today has been submitted by the prosecution on record. (vi) the accused is also reported to have been involved in a murder case of one Arjan Bharat and the alleged trial has not been proceeded in C. R. No. 181 of 1988 on account of abscondence of the accused. Right from 8-12-1982 till July 1998, the prosecution made serious attempts to trace the accused. (vii) even the proceedings under Secs. 82 and 83 of the Code were held by me - Misc. Cri. Application No. 659 of 1998. (viii) Section 82 of the Code provides for proclamation for a person absconding. After following the procedure prescribed under Secs. 82 and 83 of the code, the accused has been proclaimed absconder. In view of the peculiar facts and special circumstances emerging from the record of the present case and the underlying purport and design of provisions of S. 235 (2), which has also social defence and social interest and purpose, though the court is obliged to hear the accused on the question of sentence, under a situation of a given case, as it is in the present case, it cannot be said that the accused is not afforded sufficient opportunity inviting him to urge on the quantum of sentence. What is required is opportunity of hearing to the accused. But if the accused does not avail it, for any reason including absconding or fleeing away from the process or by absconding, it cannot be said that there is no compliance of S. 235 of the Code. It is the duty the Court to give an opportunity to the accused of hearing on the question of sentence. Therefore, it is obligatory for the court to wait after recording conviction for hearing the accused on the question of sentence at post-conviction stage. The Court is obliged to give opportunity to the accused person so that he can make representation or submissions for lesser punishment or lower sentence. It is equally true that it is not an idle formality. Therefore, it is obligatory for the court to wait after recording conviction for hearing the accused on the question of sentence at post-conviction stage. The Court is obliged to give opportunity to the accused person so that he can make representation or submissions for lesser punishment or lower sentence. It is equally true that it is not an idle formality. But at the same time, if the accused does not remain present, as in the present case, for a long spell of more than six years, after conviction came to be recorded, and absconds from one place to another and hides himself from the agencies of investigation/police machinery and ultimately flees from receiving the sentence, in this peculiar situation in a special factual scenario, could it be conceived even for a moment that no opportunity has been given to the accused for hearing on the question of sentence ? There is one more aspect of the matter which can also be borne in mind. It is a social service and social compulsion which is part of sentencing process and policy. ( 58 ) ). In the circumstances, this Court is left with no alternative and has to raise its hands in helplessness and without having the benefit of version of the accused on the quantum of sentence, considering the facts and circumstances of the case, the sentencing process has to be concluded which has remained inconclusive since last more than six years. ( 59 ) ). The accused is found guilty for the offence under S. 377, I. P. C. , for having done unnatural sexual offence with a boy of about 7 years. Section 377 clearly provides that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. In light of the peculiar facts and special circumstances, the accused has spoiled life of a young boy of 7 years who has been seriously and severely traumatised. By doing carnal intercourse against the order of nature with a young boy of 7 years, the accused has satisfied his sexual lust in an inhuman way. In light of the peculiar facts and special circumstances, the accused has spoiled life of a young boy of 7 years who has been seriously and severely traumatised. By doing carnal intercourse against the order of nature with a young boy of 7 years, the accused has satisfied his sexual lust in an inhuman way. Therefore, in light of the facts and circumstances of the case, prima facie, the Court would be tempted to impose the maximum sentence of imprisonment of life as the heinous crime committed by the accused under S. 377 and that too against a young boy of 7 years, would steal the heart. The accused has been absconding to flee away from acknowledging or receiving sentence. It is also reported that he has also been charged for an offence punishable under S. 302 in a Sessions Case and he is involved in all such cases. ( 60 ) ). Even while taking a lenient view of the matter, the accused should be sentenced to suffer R. I. for ten years with fine of Rs. 10,000. 00 and in default, to undergo R. I. for three years. If the amount of fine is paid, it shall be paid to the guardian of the minor-victim by way of compensation under S. 357 of the code. . ( 61 ) ). In the result, the acquittal of the accused is reversed and he is convicted for the offence under S. 377, I. P. C. He is sentenced to R. I. for ten years and to pay fine of Rs. 10,000. 00 and in default, to undergo R. I. for three years under S. 377, I. P. C. If the amount of fine is paid, it shall be paid to the guardian of the minor-victim Atul aged about 7 years by way of compensation in view of S. 357 of the Code. ( 62 ) ). Before parting, it is painful to observe that the accused who is involved in a serious crime and who is convicted by this Court for the offence punishable under S. 377, I. P. C. , and who is required to be produced before this Court pursuant to non-bailable warrant, has not been brought before this Court despite long spell of six years after his conviction. It is really very unfortunate. It is really very unfortunate. It is, therefore, imperative to direct the Director General of Police, D. S. P. Banaskantha, Gujarat to take immediate appropriate action and issue forthwith necessary instructions for arrest of the respondent-accused so as to serve out the punishment imposed hereinabove. He is also directed to inform this Court in writing if the accused is not arrested on or before 12-10-1998, failing which, further necessary orders shall be passed for effective sustenance, efficient maintenance and implementation of the rule of law which is one of the basic principles of the Constitution of India which is not only imperative more so, on the part of the law and order enforcement agency but it is a constitutional duty and mandate in a place like the State of Gujarat. If the accused is not arrested or he is systematically evading process of law despite the fact that this Court found him guilty for a serious offence under S. 377, I. P. C. ruining life of a young boy of 7 years child, it will manifestly exhibit state of affairs in the realm of law and order. It is hoped and trusted that the Director General of Police will rise to the occasion and will scrupulously follow the directions contained hereinabove. Registrar of this Court is directed to intimate to this Court if compliance is not made and written intimation is not received from the Director General of Police, as directed and put a note accordingly before this Court on 13-10-1998. Office is directed to send a writ of the order to the concerned Director General of Police forthwith. .