BIRKHA Vs. STATE OF M.P.
LAWS(MPH)-1980-1-25
HIGH COURT OF MADHYA PRADESH
Decided on January 02,1980

Birkha Appellant
VERSUS
STATE OF M.P. Respondents


Referred Judgements :-

NANDKISHORE V. STATE OF M.P. [REFERRED TO]
EMPEROR V. SAIN DAS [REFERRED TO]


JUDGEMENT

A.R. Navkar, J. - (1.)THIS is a revision against an order of conviction recorded by the Chief Judicial Magistrate, Morena, convicting the petitioner under section 342 and 377 of the Indian Penal Code and sentencing him to six months and three years' rigorous imprisonment respectively in Criminal Case No. 299 of 1975 through judgment dated 14 -6 -1977 which is confirmed in appeal by the Additional Sessions Judge, Morena in Criminal Appeal No. 84 of 1977 through the judgment dated 30 -9 -1977.
(2.)THE facts giving rise to this petition are that the petitioner and co -accused Banne Khan were tried under sections 342 and 377 IPC on the allegation that they wrongfully confined complainant Prahladsingh and committed unnatural offence with him. The case of the prosecution, in short, is that on 11 -6 -1975, complainant Prahladsingh had come to see a 'Jalsa' with his friend Jagannath. After the 'Jalsa' was over, petitioner asked the complainant to help him in starting his tempo. The complainant refused to accompany the petitioner. Thereupon, it is alleged that the petitioner slapped him and took him to a place behind Nagar Palika Park. At that time, Jagannath came there, but he was slapped by the petitioner. Then the petitioner called the co -accused Banne Khan and both of them took the complainant to a pond near the roadside. The accused persons asked the complainant to bring Rs. 1,000/ -. He was slapped and was threatened on the on the point of knife. Then both the accused persons took him behind the High School building. It is alleged that there, first accused Banne Khan and then the petitioner committed unnatural offence on him. It is further alleged that the accused persons released the complainant in the morning.
The defence of the petitioner was that he has been falsely implicated on account of professional jealousy. According to the petitioner, the complainant's elder brother is a tempo driver and the petitioner is also a tempo driver.

(3.)ON behalf of prosecution Prahlad (PW 1), Jagannath (PW 2), Dwarka Prassad (PW 3), Sureschandra (PW 4), Dr. A. K. Chaturvedi (PW 5) and Dr. S. P. Jain (PW 6) were examined, It was admitted by Prahlad (PW 1) in para 1 of his statement that he does not know the accused persons at all. Even though the prosecution knew that the complainant was not knowing the accused persons, no identification parade was held. Why it was not held, there is no explanation by the prosecution. But, in my opinion, that has no material bearing on the case itself. It has come in evidence that the accused persons dragged the complainant nearly for half a mile and there were other buildings nearby. But, he did not do anything. Neither he asked for any help by crying aloud. This fact throws much light on the story put forward by the complainant. Even when the accused persons were committing unnatural offence on him, he did not raise hue and cry. Apart from this, I will have to examine whether the story put forward by the prosecutions proved by evidence or not. I may refer hereto Nandkishore v. State of M.P. [1970 JUJ SN 153], In which it was held as under: - -
In cases arising under S. 357 IPC, it is a rule of prudence that the conviction should not be based merely on the uncorroborated testimony of the subject of the offence whether girl or boy. It is no doubt true that in exceptional cases the rule may not apply and the statement of the boy or girl, who is the victim of the offence, may be so reliable that corroboration may not be needed for convicting the accused. But this Court is of opinion that the instant case is not an exceptional one and, it would be unsafe, having regard to the facts of the case, to convict the accused solely on the statement of Bisram who is the subject of the offence. Bisram who was the student of the appellant did not mention to anybody the actual commission of the offence by the accused and did not report the matter to the Principal or his parents. These facts coupled with the absence of any medical evidence to support the prosecution, call for corroboration which is entirely absent.'

In that judgment Emperor v. Sain Das [ : AIR 1926 Lah 375] is relied on. In above Lahore case, it was held that to make allegation under section 377, IPC is very easy, but to refute it is very difficult, therefore, unless there is some corroboration of the evidence of the complainant, there should be no conviction under section 377, IPC.



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