Man Singh vs State of Haryana

S.S. Dewan, J.

This is a revision petition filed by Man Singh against the judgment dated March 16, 1981 of the learned Additional Sessions Judge, Bhiwani, by which he dismissed his appeal against the judgment dated November 25, 1980 of the Additional Chief Judicial Magistrate, Bhiwani, by which he convicted him under Ss. 377 and 342, Indian Penal Code and sentenced him to undergo rigorous imprisonment for 3 years and a fine of Rs. 500/ under the first count and to 6 months rigorous imprisonment under the second count with the direction that the substantive sentences so awarded to him shall run concurrently.

The prosecution story, in brief, is that on the night intervening 11/12.8.1977 Satbir Singh, Ravi Kumar Metha and Nitin Kumar were sleeping on the railway platform of Railway Station Bhiwani. The accused Man Singh came there and took the aforesaid three boys in a barrack at the police post and directed them to take off their clothes and then the accused committed carnal intercourse with them. At that time, Bansi Lal, P.W. came to the platform for urinating and on hearing the cries he went towards the police post, peeped inside barrack and found that the accused was committing carnal intercourse with the boys, who were standing naked. bansi Lal called Gulshan Kumar to that place and he also saw the unnatural act being committed by the accused with the boys. Both of them then came to the railway platform after bolting the room of the barrack from outside. Leaving Gulshan Kumar near the barrack Bansi Lal se tout for the police station to lodge the report. Inspector Banarsi Lal met him in the way and he made a statement Exhibit P.B., before him. Inspector Banarsi Lal went to the spot, opened the door of the barrack and found the accused and the victims present there. The accused and the victims were sent to the hospital for medical examination. Dr. O.P. Kakkar medically examined them and observed as follows :

Man Singh accused :

The patient was under the influence of alcohol. Alcoholic breath was coming out of his mouth and nostrils. He had got control over the tongue. The gait was normal.

Mann Singh, a young man of 35 years of age, was having normal genitalia. He attained puberty at about 18 years as he said. At that time he was fit to perform coital process.

Local examination : On the body there was no evidence of any fight with the passive agent as there was not even a single mark of injury on the active agent (as brought to me.)

In genital area : The pubic hair were small in size. The prepuce was covering the glans penis on averting prepuce glan penis was red in colour but no injury was observed. Smegma was absent on the glans. The glans penis was clean and there was not any stains of faecal matter etc. on the genital organ. The penis was normal in shape.

Nitin Kumar :

A very small abrasion on the skin near posterior surface of the anus was seen. The part affected was painful during examination.

The splinter ani were normal. No blood; no semen found on the region.

No signs of struggle e.g. bruises or scratches etc.

Ravi Kumar Mehta :

There was an abrasion on the skin near the anus and the boy felt pain during examination.

There was a laceration produced on the mucous membranes within the splinter ani. There was effusion of blood on the wound. The base was in continuity to injury No. 1.

Very little quantity of blood was around the anus.

No semen found at the anus,

No signs of struggle.

No foreign pubic hair seen and there was presence of anal hair and public hair in the region with full growth seen.

No lubricant round about anus seen.

Satbir Singh :

There was an abrasion on the region of anus seen which was painful on walking and on examination. This abrasion was around the margins of anus.

Lacerations found was extending in the mucous membrane within the anus.

Blood clot seen on the anus.

Semen found on the anus, slide prepared and sealed for police purpose.

No signs of struggle.

No bruises seen on the body.

No loose foreign body seen but passive agent was not having shaved the parts.

After investigation, the accused was challened.

To connect the accused with the crime, the prosecution examined 10 witnesses. The accused denied the prosecution allegation and pleaded that in fact he came to Bhiwani with dak and was sleeping on the platform and that Prem Singh, incharge of the Police Post was present when the inspector awakened him and arrested him in this case. Head Constable Jaswant Singh was examined in defence.

Mr. S.S. Rathor, learned counsel for the petitioner has urged that the order of conviction passed against the petitioner cannot be sustained in law as there is only the uncorroborated testimony of Satbir Singh PW, who is one of the victims of the offence. Even if the conviction is based on such an uncorroborated testimony of a victim of the offence, conviction cannot be said to be illegal. As a rule of prudence, corroboration to the evidence of Satbir Singh. Bansi Lal and Gulshan Kumar had fully supported the version given by Satbir Singh, PW. Further corroboration was from the medical evidence. The learned Addl. Chief Judicial Magistrate as well as the learned Addl. Sessions Judge have found that there was sufficient corroboration and further found that the evidence of Satbir Singh against whom no reason was shown to indicate that he was in any way interested in falsely implicating the petitioner, is true evidence and deserves credence. It cannot, therefore, be said that the order of conviction could not have been passed in law.

It was then contended by the learned counsel for the petitioner that no offence under S. 377 of the Indian Penal Code, could be said to have been established because if there is no penetration there would not have been any carnal intercourse. S. 377 of the Indian Penal Code, with which we are concerned in the present petition runs as under "

"377. Unnatural offences : Whoever voluntarily has carnal intercourse against the order of the nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Explanation : Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section".

It will, therefore, mean that even mere penetration will be sufficient to constitute the carnal intercourse. There need not be necessarily a seminal discharge for constituting the carnal intercourse. In the instant case, the medical evidence reveals that there were abrasions and some blood clots on the region of the anus of the victims and they felt pain at the time of their medical examination. What penetration connotes is piercing or forcing ones'' way etc. Dr. O.P. Kakkar found injuries in the region of the aus of each of the three victims and according to him they were subjected to sodomy. Dr. Kakkar examined the petitioner and found that he had taken liquor and he also found redness on his penis, which is a gravely incriminating circumstance against the petitioner for which there is not the least explanation given on his behalf apart from a false denial in toto. It could, therefore, be said without any doubt in my mind that the petitioner had committed carnal intercourse with the victims and it will amount to an offence punishable under Section 377 of the Indian Penal Code.

The learned counsel had prayed for reduction in the sentence. Emphasis is laid on the fact that the petitioner has already lost his job. There is some scope for reduction in the sentence. I accordingly reduce his sentence of imprisonment to 2 years but impose a fine of Rs. 1000/ on him in addition to the fine imposed by the trial Court under Section 377, Indian Penal Code, as in my opinion, it will meet the ends of justice. In case of default of payment of fine, he shall suffer rigorous imprisonment for 9 months. The fine, if realized, whole of it shall be paid to the victims of the crime in equal share. The conviction under S. 343, Indian Penal Code and the sentence awarded thereunder shall, however, remain.

With this modification in the sentence, the revision petition fails and is herein dismissed.