BIRKHA Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS is a revision against an order of conviction recorded by the Chief Judicial Magistrate, Morena, convicting the petitioner under section 342 and 377 of the Indian Penal Code and sentencing him to six months and three years' rigorous imprisonment respectively in Criminal Case No. 299 of 1975 through judgment dated 14 -6 -1977 which is confirmed in appeal by the Additional Sessions Judge, Morena in Criminal Appeal No. 84 of 1977 through the judgment dated 30 -9 -1977.

(2.) THE facts giving rise to this petition are that the petitioner and co -accused Banne Khan were tried under sections 342 and 377 IPC on the allegation that they wrongfully confined complainant Prahladsingh and committed unnatural offence with him. The case of the prosecution, in short, is that on 11 -6 -1975, complainant Prahladsingh had come to see a 'Jalsa' with his friend Jagannath. After the 'Jalsa' was over, petitioner asked the complainant to help him in starting his tempo. The complainant refused to accompany the petitioner. Thereupon, it is alleged that the petitioner slapped him and took him to a place behind Nagar Palika Park. At that time, Jagannath came there, but he was slapped by the petitioner. Then the petitioner called the co -accused Banne Khan and both of them took the complainant to a pond near the roadside. The accused persons asked the complainant to bring Rs. 1,000/ -. He was slapped and was threatened on the on the point of knife. Then both the accused persons took him behind the High School building. It is alleged that there, first accused Banne Khan and then the petitioner committed unnatural offence on him. It is further alleged that the accused persons released the complainant in the morning.

(3.) ON behalf of prosecution Prahlad (PW 1), Jagannath (PW 2), Dwarka Prassad (PW 3), Sureschandra (PW 4), Dr. A. K. Chaturvedi (PW 5) and Dr. S. P. Jain (PW 6) were examined, It was admitted by Prahlad (PW 1) in para 1 of his statement that he does not know the accused persons at all. Even though the prosecution knew that the complainant was not knowing the accused persons, no identification parade was held. Why it was not held, there is no explanation by the prosecution. But, in my opinion, that has no material bearing on the case itself. It has come in evidence that the accused persons dragged the complainant nearly for half a mile and there were other buildings nearby. But, he did not do anything. Neither he asked for any help by crying aloud. This fact throws much light on the story put forward by the complainant. Even when the accused persons were committing unnatural offence on him, he did not raise hue and cry. Apart from this, I will have to examine whether the story put forward by the prosecutions proved by evidence or not. I may refer hereto Nandkishore v. State of M.P. [1970 JUJ SN 153], In which it was held as under: - -