R.L.ANAND, J. - (1.) THIS revision has been directed against the judgment dated 23.8.1991 passed by the Court of learned Sessions Judge, Bhiwani who maintained the conviction of the petitioner Shri Mukhtiar Singh under Section 377 of the Indian Penal Code. The petitioner was sentenced to undergo R.I. for one and half years and to pay a fine of Rs. 2,000/- or in default of payment of fine, to undergo R.I. for four months, by the learned Judicial Magistrate.
(2.) THE brief facts of the case are that on 20.3.1987 at about 3.00 P.M. complainant Nandbir PW-2, a boy of 15 years (a student of 7th class) went to the field to answer the call of the nature along with his younger brother Rajbir. It is a case of the prosecution that the crusher of the petitioner falls on the way. The petitioner was present on the crusher. He was consuming the liquor. He asked both the boys to come near him. He caught hold of Nandbir and dragged him to nearby hut in the fields. The accused torn the pyjama of Nandbir from its back, broke open the string and committed intercourse with Nandbir PW2 against the order of nature. Rajbir, younger brother of Nandbir, kept standing outside the hut and on account of the fear he started weeping. In the meantime, PW3 Ram Mehar happened to pass that way. On seeing Rajbir weeping and hearing the noise he went there. This witness also saw the petitioner committing intercourse with PW2 Nandbir. When this witness was near the door of the hut, the petitioner is alleged to have run away leaving Nandbir at the spot. Ram Mehar PW-3 brought Nandbir to village where the victim narrated the incident to his grandfather Shri Nathu Ram who along with his son started going to police-station to lodge a report. Near Gujrant crossing, ASI Debu Ram PW4 met the PWs and he recorded the statement Ex.PB of PW-2 at 7.20 P.M. It was sent to the police-station for the registration of the case vide endorsement Ex.PB/1 and formal FIR was recorded. Nandbir was sent to the hospital for medical examination vide application Ex.PW4/A. He was medically examined by Dr. Triliki Nath Gupta at 8.55 P.M. and found the following :- "It was a case of sexual assault, patient was fully conscious and was complaining of pain in anal area. The following injuries were found :- 1. Brownish coloured abrasion on the lateral surface of right thigh 1" x 1/2", 2-1/2" interior to the upper border of greater trouchanter. 2. Brownish abrasion measuring 1" X 1/2" just posterior to injury No. 1. With regard to external genitals, pubic hair were well developed, penis was also normally developed, prepuce was retracted up to coronal; no stain of semen were seen on pubic hair. On examination of anus and anal verge, there was matting of hair around the anus. There were superficial tears three in number on the anal verge at 7, 11 and 12 O'Clock position measuring 4 mm x 2 mm. It was painful. There was congestion of mucus membrance of anal canal. On per rectal examination, tone of the anal sphincter was normal and examination was painful. The victim was wearing pyjama sky blue coloured without string. On the front, there was plus shaped tear 9" x 9", another longitudinal tear was found 2-1/2" long 9" above the lower border, stains were present on the front at 3 places which were encircled and signed by me. On the back there was T shaped tear. There were multiple stains on the back of pyjama which were signed after encircled. The shirt was white coloured. Button Nos. 2 and 3 were missing. There were greenish mark on the back of shirt. Shirt was signed by me. In my opinion, Nandbir had been subjected to penetration and there was possibility of sodomy. This was within a probable duration of 12 hours." The petitioner was arrested and after the completion of the investigation of the case, he was challaned in the Court of area Magistrate who vide judgment dated 8.3.1991 convicted the petitioner under Section 377 of the Indian Penal Code and sentenced him to undergo R.I. for a period of one and half years and to pay a fine of Rs. 2000/-.
(3.) THE petitioner filed an appeal before the Court of Sessions Judge, Bhiwani who vide impugned judgment dated 23.8.1991 dismissed the appeal. Still not satisfied with the judgment of the Courts below the present revision.;