BIREN LAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) 1. In this application the order dated 18.12.1986 and 10.4.1987 have been impugned by reason of which the learned court below has refused to discharge the petitioner and framed charge against him under Sections 377, 511 read with Section 323 of the Indian Penal Code.

(2.) The facts of the case lie in a narrow compass, F.I.R. was lodged by ones Laltoo Vishal on 16.7.1986 a servant working in a hotel alleging that he was sleeping on a road culvert and when he suddenly woke up and found that the petitioner, in order to commit unnatural act, opened his lungi and underwear, The informant raised hulla but the petitioner threatened him with dire consequences. Other servants also woke up and one of the servants was assaulted by the petitioner. The informant, out of fear, entered into a shop. After competition of investigation charge-sheet was filed and cognizance was taken. The petitioner filed a petition for his discharge which was refused and ultimately charge aforesaid was framed against the petitioner.

(3.) Mr. P.S. Dayal, learned Counsel appearing on behalf of the petitioner has submitted that the allegations made in the FIR against the petitioner do not constitute an offence justifying the framing of charge under Sections 377 and 511 of the Indian Penal Code. He submits that in order to sustain conviction there must be proof of allegation of atleast penetration. In support of his contention he has relied on an unreported decision of this Court dated 19.8.1986 passed in Cr. Rev. No. 156/81 (R).