SAHDEO RAM Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal revision on behalf of one Sahdeo Ram, who has been convicted by an Assistant Sessions Judge under Section 377, Indian Penal Code, and sentenced to two years rigorous imprisonment, 12 stripes and a fine of Rs. 100 or in default four months further rigorous imprisonment. He appealed to the Sessions Judge and his appeal was dismissed. This revision is filed against the appellate order of the Sessions Judge. The facts found by the Sessions Court were that a small boy Modan aged six and a half years was playing with another boy at the house of the accused and that the accused took him into a room and committed the offence of sodomy on him and the boy Modan was seen by two witnesses to run out of the house of the accused weeping, and the boy went to his father and told his father his story and took his father with a constable to the house of the accused and the boy pointed out the house and a head constable was called and the boy pointed out the accused and the accused was arrested and taken to the thana. On the next day medical examination by the civil surgeon took place of the boy and of the accused and injuries, were detected on the anus of the boy which showed that he had been a victim of sodomy and an abrasion was found on the penis of the accused, which the medical witness stated might have been caused by committing sodomy. There were also some blood stains on the dhoti of the boy and none on the dhoti of the accused and the dhoty of the boy was also stained with some kind of oil. This was certified by the chemical examiner and the imperial serologist stated that the dhoty was stained with human blood. A number of witnesses were produced at the trial two of whom stated that they saw the boy coming from the house of the accused weeping, and the medical witness appeared before the Magistrate and gave his evidence. The trial in the first place took place before a Magistrate. The Magistrate convicted, the accused under Section 377, Indian Penal Code, and sentenced him to 18 months rigorous imprisonment and a fine of Rs. 300. The accused made an appeal to the Sessions Judge. The Sessions Judge was of the opinion that the sentience passed by the Magistrate was quite inadequate and that the case ought to have been committed to Sessions. He passed an order stating: I, therefore in the exercise of the power conferred on me by Section 423 (b) of the Criminal P.C. reverse the finding and sentence of the learned Magistrate and direct him to commit the case to the Sessions for trial.

(2.) On this order the Magistrate corrected the charge sheet into a charge triable by the Court of session and passed an order: Under the order of the Sessions Judge dated 5-7-1934 I commit the accused to the Court of Sessions where he will stand his trial. I have amended the charge and explained it to the accused.

(3.) Some argument was made that the accused did not have sufficient opportunity for summoning witnesses, but the record shows that the Magistrate called on the accused to furnish a list of witlessness when he amended the charge and the accused did in fact file such a list next day. The case was tried by an Assistant Sessions Judge and no less than twelve witnesses were produced for the defence, Several points of law have arisen in this proceeding. The first point of law which was argued is in regard to the method adopted by the Assistant Sessions Judge in regard to the boy Madan. This boy was called as prosecution witness No. 2 and the Court noted: No oath was administered, being of tender age cannot understand its significance.