STATE OF HIMACHAL PRADESH Vs. FAJALDEEN

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 26.10.2004 passed by learned Chief Judicial Magistrate, Chamba, District Chamba in Crl. Case No. 62 -II of 2002, thereby acquitting the respondent / accused for the offence under Section 377 of the Indian Penal Code.

(2.) THE prosecution case is that one child (victim, name not given), while playing on roof of his house at village Dhiloi was taken by the accused/respondent to the field on 19.8.2001 on the pretext that the victim would be provided cucumber. In the field, after opening his own pent, accused committed carnal intercourse with the victim. Despite crying for help, none being available came to the rescue the victim. After commission of crime, accused left the place and victim returned to his house and disclosed this fact to his mother after two days. The matter was reported to the police. After investigation, the accused was charged for the aforesaid offence.

(3.) VICTIM /(PW -2) was examined by (PW -10) Dr. K.L. Sharma while he was working as SMO, ZH, Chamba, who observed that there was injury in the anus in interior. No bleeding was observed. In the opinion of PW -10, injury was the result of an act of sodomy and the probable duration of the injury was of 72 hours. PW -10 further stated in the cross examination that he clinically examined the victim and did not perform any test. PW -10 further stated that if a person fall on sharp hard wood or maize, stick/stumps, then such injury is possible. (PW -12) Dr. Om Parkash, while posted as Medical Officer in CHC, Kihar, examined the victim and issued MLC Ext PW -12/B and for final opinion, victim was referred to ZH, Chamba PW -12 observed 2 x 2 centimeter scratch on the right forearm and after perusing FSL report, Junga Ext PA, victim was found the subject of sodomy. PW - 12 in cross -examination has suggested that he has checked up the complainant after 22 hours and at that time, victim had taken bath. PW -12 further stated that on 22.8.2001, he examined the accused/respondent Fazaldeen, who was found to be capable of performing sexual intercourse.