NIRMAL SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE judgment dated 24.7.2008 in Criminal Appeal No. 40 of 2007 passed by learned Sessions Judge, Hamirpur convicting and sentencing the petitioner after reversing judgment of acquittal dated 7.5.2007 in case No. 91 -1 -2005/58 -II -2005 passed by learned Judicial Magistrate 1st Class, Barsar has been assailed by the petitioner by way of revision. The facts, in brief, are that complainant PW -1 Pardeep Kumar accompanied with his father PW -10 Tirth Ram visited the Police Station, Barsar on 3.5.2005 at about 5.45 p.m. and lodged FIR Ex. PW -1/A. He alleged that on 29.4.2005 at about 7.30 p.m. he came to his home from the playground and found petitioner in the house. The petitioner had come as a guest. The family took meals and went to sleep. The complainant and accused slept in one room on separate beds. At about 1.00 or 1.30 a.m. the petitioner lifted the complainant from the bed and took him to his own bed and committed sodomy on the complainant due to which he felt pain. The complainant protested, but the petitioner slapped him and gagged his mouth. He threatened the complainant that in case he would disclose the incident to anyone, he would be killed. The petitioner had been coming to the house of the complainant to treat his sister as the petitioner is a "Tantrik". The complainant for this reason did not disclose the incident to anyone. On 3.5.2005, he felt pain and then he disclosed the incident to his father PW -10. Thereupon the case was registered.

(2.) AFTER investigation the report under Section 173 Cr.P.C. was submitted. The petitioner was charged for offences punishable under Sections 377 and 506 IPC. The petitioner did not plead guilty and claimed trial. The prosecution has examined 13 witnesses. The petitioner denied the prosecution case. He pleaded that on the date of alleged incident, he was at some other place and not in the house of PW -10 as claimed by the prosecution. The petitioner examined in defence DW -1 Vijay Singh. On conclusion of trial, the learned Judicial Magistrate acquitted the petitioner on 7.5.2007.

(3.) I have heard learned Counsel for the parties and I have also gone through the record. In order to appreciate the contentions raised on either side, it is relevant to refer to evidence which has come on record. It appears from the stand of the petitioner that he has denied the prosecution case altogether. He has examined DW -1 to establish that on 29.4.2005 he was at some other place and not in the house of PW -10, The statements of PW -1 Pardeep Kumar, PW -2 Dr. Arun Saxena, PW -4 Dr. H.R. Kalia, PW -5 Smt. Saroj Devi, PW -10 Tirth Ram, PW -11 ASI Parkash Chand, PW -13 ASI Karam Singh and DW -1 Vijay Singh are relevant, the other witnesses examined by the prosecution are formal in nature.