Jai Singh alias Mehla vs State

B.S. Yadav, J.

The petitioner Jai Singh was convicted under section 377 of the Indian Penal Code by learned Additional Chief Judicial Magistrate, Kurukshetra, and sentenced to undergo rigorous imprisonment for 11/2 years and to pay a fine of Rs. 500/. It was also ordered that in default of payment of fine he would further undergo rigorous imprisonment for 6 months.

The petitioner filed an appeal which was heard by learned Additional Sessions Judge, Kurukshetra. He maintained the conviction of the petitioner but considering the fact that he was aged about 18 years on the date of the commission of the crime, his sentence of rigorous imprisonment was reduced to 1 year. The sentence of fine was maintained. The petitioner has now come to this Court in revision.

It is not necessary to give the prosecution story in detail. Suffice it to say that on 30th May, 1977. P.W.5 Virender Kumar aged about 10 years had gone to the fields with his grandfather P.W.4 Panch Ram and his uncle P.W. 7 Hakam SIngh. Virender Kumar was left to guard the paddy seedling while Panch Ram and Hakam Singh proceeded towards the tubewell. At about 5 P.M. Panch Ram and Hakam SIngh heard cries emanating from the sugar cane field on the dual of which Virender Kumar had been left. Hakam Singh and Panch Ram ran towards that field and saw that the petitioner Jai Singh alias Mahla was committing sodomy with Virender Kumar in that sugarcane field. On seeing these witnesses, the accused ran away. Virender Kumar was brought to the house. Panch Ram left for Police Station, Thanesar. However, in the way P.W. 10 A.S.I. Labh Singh, who in those days was posted as Head Constable in that Police Station, met him. Panch Ram made his statement, Exhibit PC, before that Police Officer, A.S.I. Labh Singh sent that statement to the Police Station, Thanesar, and on its basis First Information Report, Exhibit PC/1, was recorded. A.S.I. Labh Singh took up the investigation.

P.W. 1 Dr. S.K. Gupta, while he was posted in B.N.C. Hospital, Kurukshetra, medically examined Virender Kumar on 31st May, 1977 at 12.15 P.M. and found the following injuries on his person :

"1. The anal orfice was loose and small amount of faecal matter was coming out. Small multiple abrasions were present all around the anal orfice. A swab was taken from the anal orfice for evidence of spermatozoa and was handed over to the police constable for analysis at Karnal. Bleeding was present from the abrasions.

Contusion 1" x 3/4" on the left side of face, reddish in colour".

In the estimation of the said doctor the probable duration of the injuries found on the person of Virender Kumar was within 24 hours. Exhibit P.W. 1/A is the medical certificate prepared by him in relation to Virender Kumar. After necessary investigation the accused was chargesheeted.

When examined under section 313 of the Code of Criminal Procedure the accused denied the prosecution allegation. He pleaded that on the day of occurrence at about 10 A.M. Panch Ram, Hakam Singh and Ram Singh had belabored his father. He further pleaded that in the evening he was present in his field with the cattle, when he found that Virender Kumar and some other boys, named by him, were playing Peel Plangra. Virender Kumar fell from a tree, as a result of which he sustained injuries caused by the branches of tree and fell on the ground.

Considering the injuries found on the person of Virender Kumar and also believing the prosecution evidence, both the learned Courts below have given a concurrent finding to the effect that the accused had committed sodomy with the boy.

The learned counsel for the accused argued that no injury was found on any part of the body of the accused when he was medically examined by P.W. 1 Dr. S.K. Gupta on 31st May, 1977. I am of the opinion that the prosecution evidence cannot be reappraised at this stage. In this respect reference can be made to State of Orissa v. Nakula Sadhu and others, A.I.R., 1979 Supreme Court 663 wherein it was remarked :

"So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under Section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant error on a point of law which has consequently resulted in flagrant miscarriage of justiceReference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose, 1973(4) SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram, 1973(2) SCC 583 : (AIR 1973 SC 2145). In the latter case viz Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of Section 435 of the Code of Criminal Procedure 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under Section 439 of the Code it can exercise inter alia the power conferred on a court of appeal under Section 423 of the Code the High Court is not expected to act under Section 435 or Section 439 as if it is hearing an appeal".

The learned counsel for the accused lastly argued that the accused was a young boy at the time of the commission of the offence and, therefore, he be released on probation. Considering the nature of the offence committed by him I do not find it a fit case to release him on probation.

For the foregoing reasons I do not find any merit in the present revision petition and dismiss the same.