JUDGMENT 1. - The instant appeal is directed against the judgment and order dated 07.09.2007 passed by learned Sessions Judge, Hanumangarh whereby the learned trial Judge has held the appellant guilty of the offence under Sections 367 and 377 I.P.C. and has convicted and sentenced him as under : 367 I.P.C. Five years' R.I. and a fine of Rs. 3000/-, in default of payment of fine to further undergo one month's R.I. 377 I.P.C. Five years' R.I. and a fine of Rs. 6000/-, in default of payment of fine to o further undergo two months' R.I. It was further submitted that both the sentences were ordered to run concurrently. 2. The factual scenario as emerged from the record of case is that on 04.05.2005 one Bhagirath, resident of village Hardayalpura lodged a written 5 report (Exh.P/8) at P.S. Goruwalla, District Hanumangarh alleging inter alia that his 11 year's old son named Balvindra on 02.05.2005 while he was coming back from field in the evening at 7.30 p.m. after giving him food, at that time, accused-Mohan Lal after putting cloth on his face, abducted his son and took him to a nearby Government school, who after tying his hands and legs, committed sodomy with him in a vacant class-room. On raising shouts by Balvindra, Ram Kumar came there and rescued him and thereafter it was alleged that one person named Surendra took him to his house out on the way accused-Madan Lal followed them and threatened that in case anything was told about the incident, then he would kill the boy. 3. On the basis of the aforesaid reply a case vide FIR No. 58/05 (Exh.P/15) was registered at P.S. Goluwalla for the offence under Sections 377, 365 and 323 I.P.C. and the investigation commenced. During the course of investigation, the police recorded the statements of witnesses, inspected the place of occurrence, prepared the site plan (Exh.P/3), arrested the accused vide arrest memo (Exh.P/16), and got the medical check up of both accused and victim. 4. After completion of investigation, police submitted charge-sheet against the appellant in the court of learned Additional Chief Judicial Magistrate, Hanumangarh for the offence under Sections 367 and 377 I.P.C., from where the case was committed to Sessions Court, Hanumangarh where charges under Sections 367 and 377 I.P.C. were framed against the appellant, to which the accused appellant did no plead guilty and claimed trial. 5. 5. The prosecution in support of its case examined as many as nine witnesses, namely, PW-1 Surendra, PW-2 Ram Kumar, PW-3 Krishan Lal, PW-4 Dr. Hariom Bansal, PW-5 Balvindra, PW-6 Bhagirath, PW-7 Jeet Ram, PW-8 Balwan Singh and PW-9 Keval Ram and got exhibited certain relevant documents as Ex.P/1 to Ex.P/17. The accused appellant in his statement recorded under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him and stated that he has been falsely roped in a false case and he is absolutely innocent. In defence, statement of one Ram Kumar was recorded as DW-1 and got exhibited two documents as Exh.D/1 and Exh. D/2. 6. After finally hearing both the sides, the learned trial court having found the that the prosecution has proved its case against the accused appellant beyond all reasonable doubt, turned down the defence version and held the appellant guilty of committing kidnapping under Section 367 and sodomy under Section 377 I.P.C. on Balvindra and convicted and sentenced the appellant, as mentioned above vide judgment dated 07.09.2007. Hence, this appeal has been filed. 7. I have heard Mr. J.S. Kichhi and Mr. Bhagat Dadhich learned counsel for the accused appellant, learned Public Prosecutor for the State Mr. O.P. Rathi assisted by learned counsel of the complainant-Mr. Rakesh Matoria and have carefully gone through the record of the case. 8. During the course of arguments, learned counsel for the accused appellant submitted that the learned trial court has not properly considered and appreciated the material available on record and gave erroneous finding of guilt under Sections 367 and 377 I.P.C. against the accused appellant, as such, the conviction of the appellant is not sustainable and is liable to be quashed. It was contended that the prosecution has not been able to prove its case beyond doubts against accused appellant by strong, corroborative and reliable evidence. The learned trial court on surmises and conjectures being influenced by the testimony of victim-PW5 Balvindra has held the accused guilty of offence, but that is not sustainable. It was contended that the prosecution has not been able to prove its case beyond doubts against accused appellant by strong, corroborative and reliable evidence. The learned trial court on surmises and conjectures being influenced by the testimony of victim-PW5 Balvindra has held the accused guilty of offence, but that is not sustainable. It was further contended by the learned counsel for the appellant that in this case the incident took place on 02.05.2005 but the report has been lodged with the police on 04.05.2005 at 2.00 P.M., despite the fact that as per record of the case, the factum of happening was immediately conveyed by the victim/boy to the responsible family members. It was urged that, thus, an inordinate delay was caused in lodging the FIR and that has not been satisfactorily explained, which goes to the root of the case and makes the prosecution story doubtful, however, it was submitted that the learned trial court has not considered this aspect of the matter in its right perspective. In this respect it was stated that the boy was kidnapped from a public place and thereafter he was taken upto a distance of one furlong but during that process, the victim has not raised any hue and cry. Further, it was also stated that as per the prosecution story the particular class-room was found open where the offence is alleged to have been committed but nobody has been produced in this respect to corroborate this fact. Thus, it has not been established that the accused kidnapped the boy for the purpose of satisfying his un-natural lust, as such, charge under Section 367 I.P.C. is not established but the learned trial court without any strong and corroborative evidence, has convicted the accused under this charge. It was also contended that the total prosecution case is based on the narration of eye-witness PW-2 Ram Kumar and one another witness i.e. PW-1 Surendra and both have not supported the prosecution case and were declared hostile. It was further urged that a most important witness of this case i.e. Dr. Hariom Bansal (PW-4) is also not supporting the prosecution case. It was further urged that a most important witness of this case i.e. Dr. Hariom Bansal (PW-4) is also not supporting the prosecution case. Though he has examined the victim but he has ruled out that the factum of commission of sodomy and has reserved his opinion subject to receipt of FSL Report and stated that possibility of blood coming from anus cannot be ruled out due to constipation. FSL report has not been produced, thus, the statement of doctor remains of no use, therefore, it was stated that the charge under Section 3* I.P.C. is also not sustainable. Thus, on the basis of the above submissions it was prayed that none of the offences alleged are found proved against the appellant but the learned trial Judge seems to have been influenced by the tender age of victim/boy. My attention was also drawn towards the statement of victim-Balvinder (PW-5). He being a child witness, it was urged that the possibility of tutoring cannot be ruled out. Further his statement is not corroborated by the other evidence available on record and is full of contradictions. Alternatively, it was submitted by the learned counsel that the accused is behind bars and out of total five years' sentence on each count, which was ordered to run concurrently, the accused has already undergone more than two years' R.1., thus, it was urged that a lenient view be taken and the accused be set free on the basis of period of sentence already undergone by him. In support of his contention, learned counsel for the appellant cited decision of Hon'ble Apex Court given in the case of Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323 and stated that in that case the Hon'ble Apex Court has observed that where the accused was convicted for committing an unnatural offence upon a young boy, in view of the fact that no force was used, the sentence of three years' imprisonment was reduced to six months'. He also cited decision of this Court given in the case of Gomaram v. State (RCC, April 1988 p. 154) and ultimately prayed that the appeal may be allowed. 9. On the other hand learned Public Prosecutor assisted by the counsel for complainant supported the findings and conclusions drawn by the learned trial court and contended that the prosecution has placed a chain of evidence to prove its case. 9. On the other hand learned Public Prosecutor assisted by the counsel for complainant supported the findings and conclusions drawn by the learned trial court and contended that the prosecution has placed a chain of evidence to prove its case. It was urged that the delay in lodging the report is not going to be fatal to the prosecution case as there was no occasion for the prosecution to have falsely implicated the accused in the crime. It was also contended that the accused appellant has committed serious offence with a boy of 11 years of age and in such type of cases, the statement of victim alone is sufficient to maintain conviction. The learned trial court has rightly convicted and sentenced the appellant. There is no illegality or infirmity in the judgment, as such, the conviction of appellant be maintained and the appeal may be disallowed. 10. I have considered the rival submissions and perused the findings and conclusions drawn thereon. I have also perused the authorities 1 - Fazal Rab Choudhary v. State of Bihar ( AIR 1983 SC 323 ) and (2- Gomaram v. State (RCC April 1988 p. 154) . The main question which remains for consideration in this appeal is whether the conviction and sentence of the appellant for the offence under Sections 367 and 377 I.P.C. are not sustainable? 11. Before adverting to the rival contentions, a brief scan of evidence and other material would be just and proper. 12. PW-1 Surendra is the person, who allegedly accompanied the boy to his house, but in his statement, he has not supported the prosecution version and deposed on oath that he did not talk with the boy as to what had happened him, thus, he has been declared hostile.PW-2 Ram Kumar is alleged to be eye-witness of occurrence but in his statement he has not supported the prosecution case. PW-3 Krishan Lal is the witness of site-plan (Exh.P/3) and recovery memo of 'pyjama and shirt' of victim (Exh.P/5). He stated that at the site no blood-stains or footmarks were present. PW-4 Dr. Hariom Bansal is the doctor who examined both the victim and the accused. He stated that on 04.05.2005 he was working as Medical Officer at C.H.C., Peelibanga. He examined Balvindra S/o Bhagirath for the injuries caused to him and prepared medical report (Exh.P/6). He stated that at the site no blood-stains or footmarks were present. PW-4 Dr. Hariom Bansal is the doctor who examined both the victim and the accused. He stated that on 04.05.2005 he was working as Medical Officer at C.H.C., Peelibanga. He examined Balvindra S/o Bhagirath for the injuries caused to him and prepared medical report (Exh.P/6). He stated that at the instance of police he also examined the accused-Madan Lal on 10.05.2005 for the potency test and injury on his penis. He has stated that blood-stains were found on anus canal but has stated that no external injury was noticed and the victim was only complaining of pain. He has opined that no sodomy has been committed, however, has reserved his opinion subject to receipt of F.S.L. Report. It is pertinent to mention here that neither any opinion was sought from the doctor nor the FSL report was got exhibited. PW-5 Balvindra is the victim. He alleged that Madan met on the way near 'pulia' lying nearby the house of Sohan Bavari and told to accompany him and when he refused, Madan forcibly after putting cloth on his mouth took him to Government school and took him to a vacant class-room, there he slapped him, opened his 'pyjama' and with that he tied his hands and then after removing the 'neckar' (half-pant), took out its 'nada' and then tied his hands and then committed "dirty work" with him. On his raising shouts, Ram Kumar came. He freed his legs and thereafter ran behind the accused-Madan, who after putting his clothes managed to jump from wall and could not be apprehended. In cross-examination this witness has stated that the accused forced cloth in his mouth. He denied the suggestion that he had lodged false case because of dispute between his father and Sultan regarding some money. PW-6 Bhagirath is the father of Balvindra (the victim). He is not the real eye-witness of occurrence but has stated the things on the basis of information given to him. PW-7 Jeet Ram is the Malkhana Incharge. PW-8 Balwan Singh is the carrier. PW-9 Kewal Ram is the Investigatinc Officer of the case. He stated that on 05.05.2005 he was working as A.S.I Police Station, Goguwala. He prepared the site report (Exh.P/3) in relation to FIR No. 48/05, got recorded the statements of witnesses. Arrested the accused-Madan Lal vide arrest memo (Exh.P/16). PW-8 Balwan Singh is the carrier. PW-9 Kewal Ram is the Investigatinc Officer of the case. He stated that on 05.05.2005 he was working as A.S.I Police Station, Goguwala. He prepared the site report (Exh.P/3) in relation to FIR No. 48/05, got recorded the statements of witnesses. Arrested the accused-Madan Lal vide arrest memo (Exh.P/16). Seized the 'pyjama' of victim (Exh.P/17) and got his medical done and after completing the investigation handed-over the case diary to the S.H.O. concerned. Thus, on the basis of the aforesaid evidence, keeping in mind the contentions raised by the learned counsel for the appellant, the prosecution story only remains on the sole statement of PW-5 Balvinder as the other witnesses are not supporting the prosecution case and have been declared hostile. In addition, it has come on record that the victim narrated the facts with regard to the happening with him to his grand-father and uncle on the day of the incident but neither any report was lodged on that day nor on the second day but it has been lodged after a considerable delay i.e. on 04.05.2005 at 2.00 PM. Thus, on the basis of the material available on record with regard to charge under Section 367 I.PC., there is only evidence of PW-5 Balvinder for abducting him. The victim has stated that he was taken from 'pulia' to a distance of one furlong to a Government school but no other independent witness has been produced in that respect. Thereafter he has stated that the accused appellant committed sodomy with him and as per his statement, PW-2 Raj Kumar intervened but PW-2 Raj Kumar has not supported his version. Thus, the prosecution has not been able to establish the charge against the accused by corroborative evidence but looking to the nature of the offence the sole statement of PW-5 Balvindra remains for consideration. Contentions were placed that he is a child witness and contentions were placed with regard to tutoring him but looking to the age of victim, which has come on record as 11 years, he being of understanding age, his evidence cannot be brushed aside. There are no reasons to believe that he has falsely implicated the accused. His sole statement is having force. Further to this extent that there were injuries on his body and out of that one injury was on anus, that corroborates his version. There are no reasons to believe that he has falsely implicated the accused. His sole statement is having force. Further to this extent that there were injuries on his body and out of that one injury was on anus, that corroborates his version. During the course of arguments one contention was raised with regard to the delay in lodging the report but from the record it is revealed that the boy was taken to hospital for treatment, thus, taking into consideration this fact the delay is not fatal to the prosecution case. Further there are no grounds to believe that there was any intention to implicate the accused falsely. Thus, the contentions are of no force. Thus, on the basis of his evidence the charges against the accused are found sustainable and the findings given by the learned trial court are not suffering form any infirmity or illegality. 13. I have also considered the contentions raised with regard to the quantum of sentence. Looking to the overall facts and circumstances of the case and taking into consideration the fact that the incident is of 02.05.2005 and at present the accused has remained under judicial custody for more than two years, in view of the ratio given in Fazal Rab Choudhary (supra) and Gomaram (supra), I feel that the sentence is required to be modified and is hereby modified. The ends of justice would be met if the sentence of five years' R.1. on each count is reduced to the period of sentence already undergone. Further, out of the total fine imposed of Rs. 9000/-, that is reduced to Rs. 6000/- and out of that, a sum of Rs. 5000/- is be paid to the complainant. 14. On the, basis of the aforesaid discussion, the appeal is partly allowed. The conviction of the the accused appellant for the offences under Sections 367 and 377 I.P.C. is maintained, however, the sentences awarded are reduced to the period already undergone. Further out of the total fine imposed Rs. 9000/- it is reduced to total Rs. 6000/-, and out of that Rs. 5000/- will be paid to the complainant, failing which, the appellant will have to undergo one months' additional imprisonment. He shall be released thereafter if not needed in connection with any other case.Appeal Partly Allowed. *******