NARAIN AGNIHOTRI,J. - (1.) Feeling aggrieved with the judgment and order dated 29.9.2008 passed by learned Additional Special Chief Judicial Magistrate, C.B.I. (Ayodhya Matter), Lucknow in Criminal Case No.502 of 2007 arising out of Crime No.8 of 2007, under Sections 342, 377 and 506 I.P.C., Police Station Mahanagar, District Lucknow, the appellant Annu Kananojia filed this appeal, whereby learned Special Additional Chief Judicial Magistrate held guilty to the appellant accused and punished him under Section 377 I.P.C. six years rigorous imprisonment and fine of Rs.4000/-, under Section 342 I.P.C. one year rigorous imprisonment and under Section 506(2) I.P.C. two years rigorous imprisonment and fine of Rs.1,000/-. It was further ordered that in default of payment of fine accused appellant shall serve additional one year simple imprisonment under Section 377 I.P.C. and two months simple imprisonment under Section 506(2) I.P.C.
(2.) Facts of the case of prosecution may be summarized as under: The complainant Ramu Bajpayee lodged a complaint on 5.1.2007 at 23.05 hours with the assertion that he is aged about 12 years and he came to Lucknow in search of livelihood and was staying in Aminabad Labour Mandi. About four days earlier from 5.1.2007 in the greed of getting a blanket which was being distributed by peoples of means, he came at Hanuman Temple and was sitting at the roadside patri. At about 9.00 P.M. four accused persons named Baba Mohd. Jalil, Shiv Kumar, Annu Kananojia and Ram Prasad forcibly brought away the complainant under the bridge in a thatched house where they took intoxicant and also forced the complainant to take the same. Later on appellant with other co-accused persons undressed the complainant and applied oil and cream at his anus and one by one inserted their penis in the anus of the complainant. The complainant tried to raise alarm but one of them respectively shut the mouth of the complainant and all of four committed sodomy one by one with the complainant. The appellant with other co-accused persons confined the complainant in the thatched house about four days and on each and every day they committed sodomy with complainant. During day time they did not permit the complainant to go any where and when the complainant wanted to answer the call of nature they guarded and watched the complainant and threatened to kill him if he told anyone about the incident. It was also stated in the F.I.R. that appellant with other co-accused one by one inserted their penis in the mouth of the complainant and forced him to suck it. After getting himself freed from the place of incident, the complainant reached at the temple of Lord Hanumanji where he got scribed F.I.R. Exibit Ka-2 from an unknown person and submitted it in the office of Police Station Mahanagar pursuant to which formal first information report was registered.
(3.) After registration of the crime, the matter was investigated by Sri Ram Surat Gautam, Sub Inspector who arrested the accused persons and collected the cloths from the thatched house on 6.1.2007 and prepared site plan Exhibit Ka-3. The complainant was examined on 6.1.2007 by P.W.-4 Dr. Javed Ahmad Khan who proved medical report Exhibit Ka-8 and stated on oath that at the time of medical examination there was one injury upon the anus of the complainant. "(i) Abrasion 1x0.5 at inferior side of anus. Swab taken and preserved. Patient admitted. Injury about within one day old. Cause by K.U.O. (kept under observation). Nature simple. Referred to Surgeon and Pathologist." It is further stated by doctor that the injury was one day old and was kept under observation. The swab was prepared and was sent for examination to the pathology. The pathologist reported that there was no sperm and spermatozoa seen. ;