STATE OF HIMACHAL PRADESH Vs. FARUK ALI

JUDGEMENT

(1.) THE present criminal appeal has been preferred by the appellant-State under Section 378 of the Code of Criminal Procedure Whether reporters of Local Papers may be allowed to see the judgment? No. against the judgment/order dated 16.07.2007, passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., in Criminal Appeal No. 4-N/10 of 2002, acquitting the accused-respondents for the offence punishable under Section 377 read with Section 34 of the Indian Penal Code, against the judgment dated 20.03.2002 of learned Judicial Magistrate, Court No. 2, Paonta Sahib, District Sirmaur, H.P., passed in Criminal Case No. 4/2 if 1998 (State of Himachal Pradesh vs. Faruk Ali and another), whereby the Judicial Magistrate had convicted both the accused-respondents for the offence punishable under Section 377 by awarding sentence of three years' rigorous imprisonment to both the accused-respondents and fine of Rs. 3000/- each and in default of payment of fine, both the accused-respondents were to undergo simple imprisonment for three months.

(2.) THE prosecution case in brief is that on 12.08.1997, at about 10 a.m. when Dara Singh (PW-1) alongwith Sanju and Tej Singh had gone to Kata Pathar Forest for grazing their cattle, they saw a cow tied with a tree with the help of a rope and accused-respondent, Anwar Ali, was committing carnal intercourse with the cow and the accused- respondent Faruk Ali was also present there. Both the accused- respondents were apprehended by Dara Singh (PW-1) and Sanju. The rope, with which the cow was tied, was cut with the help of an axe by them and the cow was freed, which/cow was belonging to Sada Ram (PW-2). The occurrence was narrated to Naresh Kumar (PW-3), Baljeet Singh (PW-5), Rajender Kumar (PW-6), Phool Singh (PW-8) and Girdhari Lal (PW-10), who also conducted inquiry from the accused-respondents and in their presence the accused-respondents admitted their guilt. Accordingly, the matter was reported to the police by Baljeet Singh (PW-5) by moving an application, Ex. PW-5/A, and in that reference FIR, Ex. PW-14/A, was recorded by PW-14, Inspector Om Parkash, the then SHO Police Sation, Paonta Sahib. Dr. Rajeev Khurana (PW-4) conducted medical examination of the cow and submitted his report, Ex. PW-4/A. After completion of investigation, accused-respondents were charged for the aforesaid offences.

(3.) ON analysis of the prosecution witnesses and the material on record, we notice that PW-1 (Dara Singh) being eye-witness of the occurrence, has stated that he had seen the occurrence with Sanju and Tej Singh, whereas, surprisingly, Sanju and Tej Singh have not been examined by the prosecution.