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2005 DIGILAW 1266 (RAJ)

Budhdhu v. State of Rajasthan

2005-04-28

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This is a criminal revision under Sec.397 read with Sec. 401 of the CrPC against the Judgment and order dated 17.06.1995 passed by the learned Addl. Sessions Judge No.4, Jaipur City, Jaipur in Criminal Appeal No.18/95 -Budhdhu vs. State, whereby the Judgment and order passed by learned Addl. Munsif & Judicial Magistrate No.4, Jaipur City, Jaipur dated 01.02.1995 passed in Criminal Case No. 99/1984 (State vs. Budhdhu) has been affirmed and the appeal has been dismissed. The accused-petitioner was convicted and sentenced as under:- Under Section Sentence 377 IPC Two years simple imprisonment with a fine of Rs.100/-, in default of payment of fine to further undergo three months simple imprisonment. 323 IPC Three months simple imprisonment. 2. Both the sentences were ordered to run concurrently and the accused was allowed the benefit under Section 428 CrPC. 3. Briefly stated, the facts giving rise to the present case are that on 19.04.1983 a written report (Ex.P/1) was submitted by one Akbar in the Police Station Brahmpuri, Jaipur with the averments that when he returned home in the evening after doing his job, his nephew Munna alias Naimudeen told him that Budhdhu (the accused petitioner), had come in the morning at about 11 AM and on the pretext of taking him to Amer taken him (the victim) to Karbala on a cycle and there in a deserted building committed intercourse with him despite resistance and bite his cheeks. 4. On this report, case No. 35/1982 was registered in the police station and during the course of investigation Ex.P/2 Site-plan was prepared. Munna was medically examined but the report was not proved. After recording statements of witnesses and usual investigation, challan was submitted in the Court of Munsif & Judicial Magistrate, First Class, No.12, Jaipur City, Jaipur. 5. The learned trial Court framed charges against accused petitioner under Sec. 377 and 324 IPC. Accused denied the charges framed against him and claimed trial. The prosecution in support of its case examined as many as 9 witnesses and tendered some documents in evidence. The accused petitioner in his statement under Section 313 Cr.P.C. denied the prosecution version and stated that he has been falsely implicated in the case. The matter was later on transferred to the Court of Munsif & Judicial Magistrate, First Class, No.4, Jaipur City, Jaipur and decided by that court. The accused petitioner in his statement under Section 313 Cr.P.C. denied the prosecution version and stated that he has been falsely implicated in the case. The matter was later on transferred to the Court of Munsif & Judicial Magistrate, First Class, No.4, Jaipur City, Jaipur and decided by that court. The said Court after hearing both sides, convicted and sentenced the accused petitioner under Sections 377 and 323 IPC vide its Judgment and order dated 01.02.1995. .6. Aggrieved by the aforesaid Judgment and order dated 01.02.1995 passed in Criminal Case No. 99/1984, an appeal bearing No. 18/95 was preferred by accused-petitioner, which came to be decided by the Judgment and order passed by learned Addl. District & Sessions Judge No.4, Jaipur City, Jaipur on 17.06.1995 affirming the Judgment and order passed by the learned trial Court. Hence, this revision petition has been filed. 7. None has given appearance on behalf of accused petitioner. 8. I have heard learned Public Prosecutor and perused the material available on record. 9. The matter relates to an incident which took place in the year 1982. More than 23 years have passed but that is not sufficient to show latitude to the accused without taking into consideration the nature of the offence. However, at the same time, while convicting and sentencing an accused, it is essential that the conscious of the Court is satisfied that the evidence led by the prosecution is trustworthy and reliable. 10. In the instant case, except the statement of victim, the other statements are not of much significance. Though it has been stated that intercourse was done but this aspect of the matter when examined by the doctor has not been confirmed. The doctor has also not been produced in the evidence. 11. In such cases, to prove the guilt of accused persons, same yardstick is required to be applied as is applied in the cases of rape. In the present matter, there is variance in the statements of prosecution witnesses regarding lodging of FIR and the investigating agency has not bothered to send the clothes of victim for chemical examination. .12. I have examined the matter thoroughly and am of the opinion that in absence of corroboration of the testimony of victim, it is not safe to uphold the conviction and sentence recorded by the Courts below. .12. I have examined the matter thoroughly and am of the opinion that in absence of corroboration of the testimony of victim, it is not safe to uphold the conviction and sentence recorded by the Courts below. The rule of corroboration of the testimony of the victim in the case of an offence under Section 377 is the same as under Section 376 and to bring the guilt of the accused under Section 377, the prosecution must prove the following, as has been held in Rameshwar Vs. State ( AIR 1952 SC 54 ): .(1) That the accused had carnal intercourse with a man, woman or animal; .(2) That such intercourse was against the order of nature; .(3) That the accused did the act voluntarily; and .(4) that there was penetration. 13. Earlier in Emperor Vs. Sain Das (AIR 1926 Lahore 375) also it has been held that a charge under Section 377 must be very convincing and the guilt of accused is to be established by prosecution as a charge under Section 377 is one which is very easy to bring and very difficult to refute. In another case of Mirro Vs. Emperor, [AIR (34) 1947 Allahabad 94] it has been held that offence under Section 377 alleged to be complete and medical evidence against accused should be definite. 14. On analyzing the evidence, I found that the findings of guilt recorded are not legally sustainable and further there are material contradictions in the evidence of the prosecution witnesses. The revision petition is, therefore, required to be accepted and the Judgment and orders passed by the Courts below are liable to be set aside. 15. In the result, the revision succeeds and the Judgment s and orders passed by the courts below are set aside. The accused petitioner is on bail. His bail bonds stands discharged.