MAHAVIR SINGH Vs. STATE

JUDGEMENT

(1.) By this writ petition, order dated 11.10.2002 passed by learned Additional Sessions Judge No.1, Kishangarhbas (Alwar) in regular Criminal Appeal No.21/1996 whereby judgment dated 12.09.1996 passed by Additional Chief Judicial Magistrate, Kishangarhbas (Alwar) in regular Criminal Case No.221/1993 was affirmed and the appeal was rejected. Learned Additional CJM had convicted the petitioner for offence under section 377 Penal Code and sentenced to undergo 5 years rigorous imprisonment and a fine of Rs. 2,000.00 with default stipulation.

(2.) Learned counsel for appellant submitted that information of the incident occurred on 007.1993 was given to the police after lapse of 4 days i.e. on 06.07.1993. Explanation for delay in lodging FIR is insufficient and not cogent one. There was no eye-witness. Geeta Devi (PW-1) and Roop Singh (PW-2) have corroborated the statement of victim Bintu @ Ajay Pal (PW-5). However, they have admitted prior enmity between them and the appellant. It is quite strange that when relations were strained how Geeta Devi (PW-1) would have handed over her child to ply on bicycle driven by his enemy. As per statement of Bintu (PW-5), a child of tender age, on the very day of the incident, he informed the incident to his Tau Jagmal. Geeta Devi (PW-1) has stated in crossexamination that she informed Jagmal about the incident on the very same night. Next day Jagmal Singh talked with Jeet Singh. She admits in cross-examination that there was an enmity with regard to a residential plot between Jagmal and Jeet Singh who is father of the appellant. On the contrary, Jagmal Singh (PW- 7) has stated that he was informed about incident after 3 days. He convened a Panchayat in the village, wherein, father of the appellant Jeet Singh appeared and apologized but since Mahavir Singh himself did not turn up, he lodged the information with police. None of the persons participated in the Panchayat has been produced as witness. There are major contradictions in the statements of the witnesses with regard to explanation given by them relating to delay in informing police. Withholding of witnesses, attended the Panchayat and having knowledge of the incident immediately after the occurrence, affects adversely the story of prosecution. Bintu (PW-5) has stated that on informing Jagmal, he examined his relevant parts of the body so also entered a finger in his anus. Dr. M.K.Gupta (PW-3) has opined that on examination of rectum he found a laceration of 5 cm X 0.3 cm Muscle Deep in anul canal extending upto anul ocifora on left side at 10 O'clock position but as per his opinion rendered in cross-examination, This laceration could be caused by forceful insertion of any hard object, including penis. As per him, the laceration found was not healed. Therefore, he can say that it may have caused within 7 days. It may be caused within two days also. Opinion of Dr. M.K.Gupta (PW-3) and statement of Bintu (PW-5) about physical examination of his relevant parts of the body by Jagmal Singh create a suspicion. Dr. M.K.Gupta (PW-3) has stated that he did not find any other external injury on the body of Bintu. Learned Trial Court did not consider all these aspects. Learned Trial Court has also overlooked these aspects.

(3.) Per contra, learned Public Prosecutor submitted that had there been any enmity, mother could not have handed over her child to the petitioner. There was no enmity at the time of incident between the parties. This fact is corroborated even by the evidence of defence witnesses Rohtash kumar (DW-1) and Jeet Singh (DW-2). Both of them have stated that earlier to the incident, there was some dispute between the parties with regard to residential plot but the same was settled prior to the present incident. Bintu (PW-5) is a child of only 9 years. There is nothing on record to disbelieve his evidence which finds full corroboration from Geeta Devi (PW-1) and Roop Singh (PW-2). Delay in lodging FIR has been properly explained. There is no infirmity in medical evidence. Learned Trial Court has given a right finding.