ABDUL SALAM Vs. STATE

JUDGEMENT

(1.) This revision petition is directed against the judgment of the court of Additional Sessions Judge in an appeal from the judgment of conviction dated 5.2.2002 in the case of State vs. Abdul Salam FIR No.659/2001 of P.S. Hauz Khas under Sections 377/506 IPC. The facts leading to the present revision petition in brief are as under: On 20.8.2001 on receipt of a PCR call the police officers of P.S. Hauz Khas reached the Madarsa of village Adchini where Mohd. Wasil, a boy aged 11 years, made a statement that he had been staying at the Madarsa for studying Urdu and on 15.8.2001 his teacher, namely, Abdul Salam (petitioner herein), called him to his room at around 5 p.m. and asked him to press his legs and thereafter closed the door and bolted the same from inside. The statement given by the boy further says that the petitioner thereafter lay down on the floor and forced him to lie by his side and asked him not to raise any noise. Thereafter, the boy stated that the petitioner removed his (Mohd. Wasil's) lungi and forced him to lie down by his abdomen and thereafter he also removed his own lungi and committed anal intercourse. The boy further stated that two of his fellow students, namely, Mohd.Nasir and Mohd.Manzar, saw the unnatural act being done from the window of the same room. He also says that his mouth was closed by the petitioner to prevent him from crying in pain. Mohd.Wasil was thereafter threatened of dire consequences if he disclosed the facts to anyone else. Mohd. Wasil concluded saying that he did not tell the fact to anyone but when his uncle Mohd. Rahman came to Madarsa he told everything to him who thereafter called the police. The petitioner was challaned and tried. During trial Mohd.Wasil deposed against the petitioner. The two boys who allegedly saw the offence being committed, namely, Mohd. Nasir and Mohd. Manzar, were produced as PW-1 & PW- 2 and they both denied having seen anything. The uncle of Mohd. Wasil, PW-3, Mohd. Rahman, deposed that on his visit to Madarsa, Mohd. Wasil told him about the offence on which he telephoned the police. PW-4, Dr.Samuel Sarkar, who had examined the victim deposed that he did not find any injury on the anus of the victim and that in case an intercourse had taken place five days before the examination, there should have been some mark of healed injury which he did not find. He also deposed in cross-examination that injury was likely to be caused in this case since the boy was of tender age. PW-7, Dr.Arun Kumar Agnihotri, who had examined the petitioner deposed that the petitioner was capable of performing the sexual act and that on his examination of the petitioner on 20.8.2001 he did not find any mark of injury on the penis of the accused. Mohd. Wasil himself supported the prosecution case. Apart from deposing as per his earlier statement, he stated that after the offence he and the petitioner both took bath before going to namaz, that two boys who had seen the offence told some persons of the adjoining settlement and one of those persons took from him the telephone number of his uncle, Mohd. Rahman, who was called by that neighbour. In cross-examination, he deposed, inter alia, that the petitioner was in the habit of beating up the students and had also beaten him up on certain occasions. To a question from the court he stated that he did not receive any injury on account of the offence and that there was no bleeding.

(2.) The learned Magistrate found that although the other witnesses had turned hostile, Mohd. Wasil, himself was a truthful witness and had narrated all the facts correctly. The Magistrate reconciled the fact of the commission of the offence and the absence of injury by saying that the accused despite his effort could not insert his organ into the anus of the child because of the great disproportion in the size between the anal orifice of the victim and the virile member of the accused. He convicted the petitioner for the offence of attempt of commission of sodomy under section 377/511 IPC. In appeal the learned court of Additional Sessions Judge agreed with the Metropolitan Magistrate and upheld the conviction. It has, inter alia, observed that corroboration is required only as a matter of caution and prudence but not as a rule of law and that the corroborative witnesses being also students of the petitioner were obviously under fear of authority and could not depose in favour of the prosecution. The delay in lodging the FIR was found to be natural.

(3.) What is contended before this court is that the finding of the Metropolitan Magistrate was not supported by any evidence and was, therefore, perverse requiring interference by this court in exercise of the revisional power. I have, therefore, examined the evidence of the prosecution in this case and have carefully considered and weighed the same.