STATE OF GUJARAT Vs. BACHMIYA MUSAMIYA

JUDGEMENT

(1.) By this acquittal appeal under Section 378 of the Code of Criminal Procedure, 1973, ("Code"), the appellant-State has assailed the legality and validity of the judgment and order of acquittal recorded by the learned Judicial Magistrate, First class, Palanpur in Criminal case No. 3060 of 1981, on 10.2.1983, whereby the respondent herein, original accused came to be acquitted from the charge alleged against him for the offence punishable under Section 377 of the Indian Penal Code, ('IPC').

(2.) A conspectus of material and salient aspects giving rise to the present appeal needs narration at the outset so that merits of the appeal and challenge against it could be examined threadbare.

(3.) According to the prosecution case, the respondent/original accused is guilty of an offence punishable under Section 377 of the IPC. In that it is alleged that the accused allured a minor child-Atul, aged bout 7 years at the relevant time, for the purpose of satisfying his ulterior Setting. Accused and the father of the child-Atul were neighbours at the relevant time. On 23.9.1981, at about 6.30 P.M., the accused persuaded the child Atul to go alongwith him in a bath room (toilet) near the house of the complainant, who is the father of the child, from the terrace. The child went to the terrace, at that time, the accused was flying kite. It is further alleged that the accused offered Re. 1/- to the child and took him to the bath room below the terrace and committed sodomy, resulting into injuries on the anus part of the child-Atul and penis part of the accused. The accused had pressed the mouth of the child while committing the unnatural offence of sodomy so that the child may not raise alarm. After commission of the unnatural offence, the child-Atul came to his house where he was questioned by his mother and immediately the child narrated the incident in his own way. In the meantime the child was complaining of pain on the anus part and the mother of the child examined that part and she became very angry on learning that the accused, who is her neighbour, betrayed her and took undue advantage of the neighbourly relation and committed such a ghastly crime, went alongwith the child-Atul at his house. The accused was busy in hearing film songs on radio. On being questioned by the mother of the child as to why he did such ghastly crime against the person of her son, the accused denied the same. Thereafter the mother of the child returned home alongwith the child.