JUDGMENT Kuldip Singh, J. (oral) The judgment dated 24.7.2008 in Criminal Appeal No. 40 of 2007 passed by learned Sessions Judge, Hamirpur convicting and sentencing the petitioner after reversing judgment of acquittal dated 7.5.2007 in case No. 91-I-2005/58-II-2005 passed by learned Judicial Magistrate 1st Class, Barsar has been assailed by the petitioner by way of revision. 2. The facts, in brief, are that complainant PW-1 Pardeep Kumar accompanied with his father PW-10 Tirth Ram visited the Police Station, Barsar on 3.5.2005 at about 5.45 p.m. and lodged FIR Ex.PW-1/A. He alleged that on 29.4.2005 at about 7.30 p.m. he came to his home from the playground and found petitioner in the house. The petitioner had come as a guest. The family took meals and went to sleep. The complainant and accused slept in one room on separate beds. At about 1.00 or 1.30 a.m. the petitioner lifted the complainant from the bed and took him to his own bed and committed sodomy on the complainant due to which he felt pain. The complainant protested, but the petitioner slapped him and gagged his mouth. He threatened the complainant that in case he would disclose the incident to anyone, he would be killed. The petitioner had been coming to the house of the complainant to treat his sister as the petitioner is a “Tantrik”. The complainant for this reason did not disclose the incident to anyone. On 3.5.2005, he felt pain and then he disclosed the incident to his father PW-10. Thereupon the case was registered. 3. After investigation the report under Section 173 Cr.P.C. was submitted. The petitioner was charged for offences punishable under Sections 377 and 506 IPC. The petitioner did not plead guilty and claimed trial. The prosecution has examined 13 witnesses. The petitioner denied the prosecution case. He pleaded that on the date of alleged incident, he was at some other place and not in the house of PW-10 as claimed by the prosecution. The petitioner examined in defence DW-1 Vijay Singh. On conclusion of trial, the learned Judicial Magistrate acquitted the petitioner on 7.5.2007. 4. The State assailed the acquittal of the petitioner before learned Sessions Judge, who accepted the appeal on 24.7.2008, convicted and sentenced the petitioner under Sections 377 and 506 IPC. The petitioner examined in defence DW-1 Vijay Singh. On conclusion of trial, the learned Judicial Magistrate acquitted the petitioner on 7.5.2007. 4. The State assailed the acquittal of the petitioner before learned Sessions Judge, who accepted the appeal on 24.7.2008, convicted and sentenced the petitioner under Sections 377 and 506 IPC. The petitioner was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.25,000/- under Section 377 IPC. In default of payment of fine, to further undergo rigorous imprisonment for one year. The petitioner was sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.1,000/- under Section 506 IPC. In default of payment of fine, he was directed to undergo simple imprisonment for one month. The petitioner has assailed his conviction and sentence in the revision. 5. I have heard learned counsel for the parties and I have also gone through the record. In order to appreciate the contentions raised on either side, it is relevant to refer to evidence which has come on record. It appears from the stand of the petitioner that he has denied the prosecution case altogether. He has examined DW-1 to establish that on 29.4.2005 he was at some other place and not in the house of PW-10. The statements of PW-1 Pardeep Kumar, PW-2 Dr. Arun Saxena, PW-4 Dr. H.R. Kalia, PW-5 Smt. Saroj Devi, PW-10 Tirth Ram, PW-11 ASI Parkash Chand, PW-13 ASI Karam Singh and DW-1 Vijay Singh are relevant, the other witnesses examined by the prosecution are formal in nature. 6. PW-1 Pardeep Kumar was minor when he was examined on 7.11.2005. The learned Magistrate after satisfying himself that the witness had intellectual capacity and understanding to depose before the Court recorded the statement of PW-1 complainant. The complainant has stated that he knew the accused. He was treating his sister. On 29.4.2005 after taking meals, he and accused slept in a room in the upper storey, his parents slept in a room in the lower storey, whereas his grand-mother and sisters slept in a different room. He and accused slept on separate beds. 7. PW-1 continued that at about mid-night, the accused lifted him from his bed and committed sodomy upon him. He felt pain. He objected, the accused slapped him and gagged his mouth. He and accused slept on separate beds. 7. PW-1 continued that at about mid-night, the accused lifted him from his bed and committed sodomy upon him. He felt pain. He objected, the accused slapped him and gagged his mouth. The accused also threatened that in case he would disclose the incident to anyone then he would kill the complainant. He did not disclose the incident for 3 days to anyone. After three days, he disclosed the incident to his parents when he felt pain in the anus. Thereupon he lodged FIR Ex.PW-1/A. The accused performed sodomy upon him for 30-45 minutes. He denied that on 29.4.2005 accused did not visit his house. 8. PW-2 Dr. Arun Saxena examined PW-1 Pardeep Kumar on 3.5.2005 and found as follows : “General Examination of Patient: Person is conscious, co-operative and well oriented regarding time and place. B.P. 110/80, pulse 80 per minute regular. Physical examination: No marks of violence is present on any part of body. Local examination of anal region: Pubic hair of grey colour is present on anus. Anus is of normal shape. No marks of abrasion and laceration is present around anus. P/R Examination: P/R examination done on consent of father as victim is minor. P/R examination permit index finger of mine difficulty which suggest that victim is not used to carnal intercourse. A deep rectal swab is taken and a slide is made for chemical examination. Impression: However there is nothing to suggest of sodomy act forcibly on victim but as 4-5 day have passed if there was any evidence of forced sodomy that may have disappeared during this period. I had prepared slide of anus swab and trouser of the patient and handed it over to the police for chemical analysis. Probable duration of patient being subjected to carnal intercourse was 4-5 days approximately.” He issued MLC Ex.PW-2/A. In cross-examination, he has stated that no semen was found in the anal swab. No blood/semen was found. He has also stated that if a person is subjected to carnal intercourse he will sustain injuries in the surrounding area of anus, voluntary stated that these injuries can vanish in 4-5 days. He did not even find any injury in the anal region of patient at the time of examination. 9. PW-4 Dr. No blood/semen was found. He has also stated that if a person is subjected to carnal intercourse he will sustain injuries in the surrounding area of anus, voluntary stated that these injuries can vanish in 4-5 days. He did not even find any injury in the anal region of patient at the time of examination. 9. PW-4 Dr. H.R. Kalia examined Nirmal Kumar on 6.5.2005 and observed as under : “Examination of private parts: No external injury seen on inner side of bilateral thighs, penis, glass penis and scrotum. The semen and blood stains were present on the underwear. Smegma was noticed underneath the prepuce, pubic hairs were well developed and not matted. No blood and semen was seen on the pubic hair, scrotum and bilateral thighs. Penis was well developed, 3 inches long & 1½ inch wide while flacced. However, at the time of examination the patient was suffering from fungal infection of inguinal region. In my opinion, there was nothing to suggest that the person was not able to do the sexual assault. . Since, there was not matting of pubic hair, so these were not preserved. The person had not worn any under garment on April 29, 2005 during the day and night. However, it was stated by the patient and he further stated that he had worn ‘Lal Chola’ on that day. The underwear which was preserved was green in colour. No blood or semen stains were seen on it and it was stated by the patient that it was worn on 30.4.2005 after taking bath. The same was preserved and handed over to police under seal.” He issued MLC Ex.PW-4/B. In cross-examination, he has stated that he has not seen injuries on the private parts of the person. 10. PW-5 Saroj Devi is the mother of the complainant. She has stated that her family slept in the lower house whereas the accused and the complainant slept in a different house. The complainant had not gone to the school for 3-4 days. On inquiry, he disclosed that he had stomach pain, but lateron he disclosed that accused committed sodomy upon him. 11. PW-10 Tirth Ram is the father of the complainant. He has stated that on the relevant date he was on leave. The complainant had not gone to the school for 3-4 days. On inquiry, he disclosed that he had stomach pain, but lateron he disclosed that accused committed sodomy upon him. 11. PW-10 Tirth Ram is the father of the complainant. He has stated that on the relevant date he was on leave. On 29.4.2005 the complainant and accused had slept in a room in a upper storey, he, his wife and three daughters slept in another house, which is at a distance of 15 meters. Next day, the accused had gone to his own house. The complainant had not gone to school for 2-3 days, he rather complained pain in the stomach and back. On 3.5.2005 in the morning the complainant disclosed to him and his wife that his back was paining as accused committed sodomy upon him. He accompanied his son to Barsar Police Station, where FIR Ex.PW-1/A was lodged. 12. PW-11 ASI Parkash Chand has stated that on 3.5.2005 at the instance of Pardeep Kumar he registered FIR Ex.PW-1/A. PW-13 Karam Singh, ASI is the Investigating Officer. In the statement under Section 313 Cr.P.C. the petitioner has denied the prosecution case. He has stated that on 29th/30th he was in village Suhari. DW-1 Vijay Singh has stated that he knew Nirmal Kumar. On 29.4.2005 Nirmal was in his house at about 5.30 p.m. alongwith Satish. Nirmal Kumar and others visited his house from the side of the girl with whom the witness married. There was function on 30.4.2005 in his house. Nirmal left his house on 2.5.2005. 13. Ex.PW-1/A is the FIR, which was registered on 3.5.2005 at 5.45 p.m. The prosecution case is that after the incident the victim was under fear. PW-1 disclosed the incident on 3.5.2005 and thereupon FIR was registered at the Police Station when victim visited the Police Station alongwith his father PW-10. It has come in the statement of PW-10 that PW-1 complainant disclosed the incident to him and PW-5 Saroj Devi in the morning. PW-10 has not stated at what time PW-1 disclosed the incident to him and his wife PW-5. But certainly he has stated that PW-1 disclosed the incident in the morning. It means PW-1 disclosed the incident at the most at about 9.00 a.m. on 30.5.2005 to PW-10. As per Ex.PW-1/A the distance between the place of occurrence and Police Station is about 8 KM. But certainly he has stated that PW-1 disclosed the incident in the morning. It means PW-1 disclosed the incident at the most at about 9.00 a.m. on 30.5.2005 to PW-10. As per Ex.PW-1/A the distance between the place of occurrence and Police Station is about 8 KM. The FIR has been lodged at 5.45 p.m. There is no explanation when the incident was disclosed by PW-1 to his father PW-10 at the most at about 9.00 a.m. why the FIR was lodged at 5.45 p.m. The possibility cannot be ruled out that FIR Ex.PW-1/A has been lodged after deliberations and it does not reflect true version. 14. PW-1 in the FIR has stated that he felt pain in the anus and therefore, on 3.5.2005 he disclosed the incident to his father. In contradiction PW-10 and PW-5 have stated that the incident was disclosed by PW-1 to both PW-10 and PW-5. This apart, PW-2 Dr. Arun Saxena did not find any injury or sign of sodomy on the person of complainant PW-1. He has rather stated that if a person is subjected to carnal intercourse he will sustain injuries in the surrounding area of anus. He however, volunteered that these injuries can vanish in 4-5 days. It has come in the statement of PW-1 that he was feeling pain in his anus and, therefore, on 3.5.2005 he disclosed the incident to his parents. This means according to PW-1 he was feeling some discomfort in his anus. However, PW-2 Dr. Arun Saxena did not find any worth noticing feature in the anus of the complainant which can be connected with the pain which PW-1 was feeling on 3.5.2005. 15. PW-2 has stated that injuries can vanish in 4-5 days but he has not stated that in all cases the injuries in a case of carnal intercourse will vanish in 4-5 days. PW-1 in his statement has stated that accused committed sodomy upon him for 30-45 minutes and he was under pain during that period but despite that no injury was found in the anus of PW-1 by doctor. In these circumstances the accused will get the benefit that PW-2 did not find any injury in the anus of PW-1 on 3.5.2005 even though on that date PW-1 was feeling some pain. PW-4 Dr. H.R. Kalia has examined the accused on 6.5.2005. In these circumstances the accused will get the benefit that PW-2 did not find any injury in the anus of PW-1 on 3.5.2005 even though on that date PW-1 was feeling some pain. PW-4 Dr. H.R. Kalia has examined the accused on 6.5.2005. He found smegma underneath the prepuce of accused, but presence of smegma on 6.5.2005 after the incident on 29.4.2005 has not been explained by the prosecution. 16. It has come in the evidence that on the date of occurrence PW-1 was sleeping in upper storey of the house, the other family members were also sleeping in the lower storey or nearby. It is not the case of the prosecution that the complainant was a willing party. In normal circumstance, it was expected that complainant would raise hue and cry, his explanation that he was threatened and his mouth was gagged by the accused with his own hand and for that reason he did not raise any alarm. In the facts and circumstances it is not acceptable that such gagging of mouth continued for 30-45 minutes. 17. PW-1 has supported the prosecution case but his statement is not getting any worth believing corroboration from the medical evidence so also from the other facts and circumstances of the case. No doubt, it is the quality of evidence which matters not the number of witnesses to prove the case but in the facts of the case the statement of PW-1 is not enough to convict the accused. The statement of PW-1 does not inspire confidence to the extent that on his statement alone the accused is to be convicted. 18. The trial Court had acquitted the petitioner but the learned Sessions Judge has set-aside the acquittal and convicted the petitioner. However, the learned Sessions Judge while convicting and sentencing the petitioner has misconstrued and mis-interpreted the evidence and has drawn impermissible inferences from the evidence. On the basis of the material on record the learned Sessions Judge has erred in convicting and sentencing the petitioner. The prosecution has failed to prove the case against the petitioner beyond reasonable doubt. The petitioner is entitled to benefit of doubt. 19. On the basis of the material on record the learned Sessions Judge has erred in convicting and sentencing the petitioner. The prosecution has failed to prove the case against the petitioner beyond reasonable doubt. The petitioner is entitled to benefit of doubt. 19. In view of above, revision is allowed, the conviction and sentence of the petitioner recorded by learned Sessions Judge, Hamirpur on 24.7.2008 in Criminal Appeal No. 40 of 2007 is set-aside and petitioner is acquitted of the charge, his bail bonds are discharged.