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2014 DIGILAW 2694 (DEL)

Budh Prakash v. State

2014-10-10

INDERMEET KAUR

body2014
JUDGMENT : 1. This revision petition is directed against the impugned order dated 09.08.2012 Wherein the Sessions Judge had modified the order passed by the Magistrate. The Magistrate had discharged the petitioner for both the offences i.e. Section 377 as also Section 270 of the IPC. The impugned order had modified the order passed by the Magistrate and while maintaining the order of discharge under Section 377 of the IPC had held that there is a prima-facie case made out for the offence under Section 270 of the IPC. The petitioner is aggrieved by this order. 2. The foremost submission of the learned counsel for the petitioner is that once the petitioner has been discharged for the offence under Section 377 of the IPC and the Court had returned a finding that no carnal intercourse had been committed by the petitioner qua the victim, the question of the second offence under Section 270 of the IPC which necessarily entails the spreading of an infection of any disease which is dangerous to life could not arise. 3. Record shows that this FIR was registered on the statement of the complaimant Vikram Singh who had stated that his son Himanshu aged 9 years and studying in the 7th class had come weeping to him telling him that the petitioner (shopkeeper of toys) had done a wrong act with him. His son had informed him that the petitioner had called him on the pretext of giving him some money; he had closed the door of the shop and thereafter committed the carnal act upon the victim. The child cried in pain. He informed his father. The child was also medically examined. FIR was registered. 4. Learned Magistrate on the basis of the evidence had held that the statement given by the victim Himanshu was completely contrary to the version given by him in his statement under Section 164 of the Cr.PC. No grave suspicion arose for the offence under Section 377 of the IPC. The petitioner was accordingly discharged both under Sections 377/270 of the IPC. 5. As noted supra, the Sessions Judge had modified the order. 6. Apart from the statement of the victim, the statement of his father and the MLC of the victim has also been perused. This MLC had noted no external injury in the anal region; no pain, no bleeding had also been indicated. 5. As noted supra, the Sessions Judge had modified the order. 6. Apart from the statement of the victim, the statement of his father and the MLC of the victim has also been perused. This MLC had noted no external injury in the anal region; no pain, no bleeding had also been indicated. Medical evidence thus did not indicate that any unnatural sex had taken place upon the victim. It was this oral version of the victim, his father as also the medical evidence which had been taken into account by the Magistrate to discharge the petitioner. 7. The Sessions Judge affirmed the order of discharge under Section 377 of the IPC but thereafter holding held that the petitioner is guilty prima-facie of the offence under Section 270 of the IPC has committed an illegality. Ingredients of offence under Section 270 of the IPC necessarily entails that the act done by the accused was done malignly and with knowledge or reason to believe that such an act was likely to spread an infection of any disease dangerous to life. There is no doubt that the petitioner was suffering from HIV positive but where the Court had returned a finding that there was no prima-facie material to hold that there was any unnatural act committed by the petitioner upon the victim, the question of his having knowledge that by his this act, he was likely to spread infection of a disease dangerous to life did not arise. Where the act itself had been disbelieved, the knowledge on the part of the accused to spread infection of a dangerous disease by doing such an act is a finding contrary to the earlier part of the impugned order. 8. The accused having been discharged under Section 377 of the IPC, the ingredients of the offence under Section 270 of the IPC also did not arise. 9. The petition is allowed. FIR No. 257/2010 registered under Section 377/270 of the IPC at PS Vasant Vihar and all proceedings emanating therefrom stand quashed. Petition disposed of in the above terms.