Mahesh Bhagwati, J. - (1.) BOTH the aforesaid criminal appeal and criminal revision arises out of and pertain to judgment dated 13th April, 1993 rendered by Sessions Judge, Tonk whereby, the accused -respondent Rambabu was not found guilty and thus acquitted in the offence under Section 377 of IPC, hence, they are being heard and decided by this common judgment.
(2.) THE prosecution case is woven like this: That the accused Rambabu Soni was employed as a teacher in Government Primary School, Kiwada where the victim Mahaveer Prasad was prosecuting his studies. It is alleged that on 3rd May, 1986 the accused Rambabu Soni called Mahaveer Prasad under the pretension to send for cigarettes. It is further alleged that the accused Rambabu first got his legs massaged by Mahaveer Prasad and thereafter, had carnal intercourse with him against the order of nature, when the complainant came to know about this incident, he complained it to the Headmaster of school. It is also stated that the villagers too, condemned his action and the accused tendered an apology before them but since no action was taken by anybody including police, pw -1 Ramesh Chandra the father of the victim submitted a written report Ex.P/1 before S.P. Tonk, whereupon S.H.O., police station Barauni lodged the FIR and commenced investigation. The investigating officer recorded the statements of the witnesses under Section 161 of Cr.P.C, got victim Mahaveer Prasad medically examined and after usual investigation filed the police report under Section 173(2) of Cr.P.C. before the competent court.
(3.) THE accused Rambabu was indicted for the offence under Section 377 of IPC who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined as many as 13 witnesses. In his explanation under Section 313 of Cr.P.C, the accused claimed innocence. The accused also examined two witnesses DW -1 Hukam Chand and DW -2 Ramphopl in his defence. On completion of trial, the Chief Judicial Magistrate, Tonk found the accused Rambabu guilty and convicted him in the offence under Section 377 of IPC and sentenced to a period of one year's rigorous imprisonment together with a fine of Rs. 1,000/ -; in default of payment of fine to further suffer simple imprisonment for two months. Aggrieved with the judgment of C.J.M., Tonk, the accused -respondent filed an appeal before the Sessions Judge, Tonk who did find the accused guilty and set aside the judgment of conviction of C.J.M., Tonk and acquitted him in the alleged offence as indicated hereinabove.;