BUDH PRAKASH Vs. STATE

JUDGEMENT

(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. 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.

(2.) Record shows that this F.I.R. was registered on the statement of the complainant 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. F.I.R. was registered.

(3.) 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.P.C. 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.