STATE OF H P Vs. ANMOL KUMAR

JUDGEMENT

(1.) State of Himachal Pradesh is aggrieved by the judgment dated 25-3-1987 passed by Sessions judge, Hamirpur whereby the appeal of respondent Anmol Kumar was accepted and the judgment dated 6-3-1984 passed by Chief Judicial Magistrate, Bilaspur was set aside by Sessions judge, Hamirpur. Chief Judicial Magistrate Bilaspur had convicted Anmol Kumar under section 377 I.P.C. and sentenced him to undergo rigorous imprisonment for one year and pay a fine of Rs. 500/-.

(2.) We have heard learned counsel for the parties and gone through the record. Prosecution story emerging from the record is that on 19-4-1981 child Sunil Dutt aged 7 years was playing in front of the house of Anmol Kumar. Anmol Kumar called the child inside the house and committed sodomy with him, as a result of which he felt pain in his anus and returned to his home crying and reported the matter to his mother Reshmo Devi P.W. 2. Thereafter she called her husband Joginder Lal P.W. 4 who reported the matter to police and Anmol Kumar was arrested on mid-night of 19th and 20th April, 1981. On the basis of disclosure statement made by him a piece of cloth and his Pajama were recovered from his house and sent to Chemical Examiner. After completion of investigation challan was put-up and Anmol Kumar was charged, tried and convicted under section 377 IPC by the trial Court but acquitted by the Sessions Court in appeal. The main ground for acquittal as given by Sessions judge was that the statement of child Sunil Dutt who appeared as PW-1 was not admissible as such the evidence of his mother Reshmo Devi PW-2 and father Joginder Lal PW-4 which was relevant under section 8 of Indian Evidence Act cannot be relied upon to hold him guilty. The recovery of incriminating articles, a piece of cloth and Pajama of Anmol Kumar was also rejected as not trustworthy in the facts and circumstances proved on record. The Sessions Judge has also found that F.I.R. was recorded on the basis of statement of child Sunil Dutt under section 154 Cr. P.C. which he had denied and it was not proper to do so.

(3.) First of all we would like to deal with the law point involved in this case whether a statement of child witness is admissible or not, if yes, how it is required to be recorded and what is its evidentiary value. Section 118 Evidence Act provides as under: