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Azad vs State Of Haryana on 25 August, 2017

CRR-4319-2016 (OM) -1-

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRR-4319-2016 (OM)

Date of decision: 25.08.2017

Azad
….. Petitioner

Versus

State of Haryana
….. Respondent

CORAM: HON’BLE MR. JUSTICE RAMENDRA JAIN

PRESENT: Mr. BS Tewatia, Advocate for the petitioner.

Mr. Surender Singh, AAG, Haryana.

RAMENDRA JAIN, J. (ORAL)

1. Through the instant revision petition, order dated 23.08.2016 of

the First Appellate Court, Faridabad, has been challenged, modifying the

judgment of conviction dated 11.06.2013 of the trial Court, thereby

convicting the petitioner under Section 511 read with Section 377 IPC

instead of Section 377 IPC.

2. Learned counsel for the petitioner contends that the Courts

below did not consider the writing Ex. D-1 in between the father of the

petitioner and the complainant-Sham Lal. In fact, there was a money

dispute in between the father of the petitioner and complainant. The

impugned FIR under Section 377 IPC, was falsely got registered against the

petitioner to settle score in the money transaction. The MLR Ex. PW-6/A

signed by PW-6 Dr. Ram Bhagat, was a fabricated document, inasmuch as

the same was prepared in two parts. In the initial part of it, “no external

mark of injury” was shown, but, later on the word “external” was deleted.

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Contrary to it, in the second part of it, in connivance with the complainant

“slight reddened and tenderness” was shown in the area around anus,

besides a superficial abrasion in 2 O’clock position which on examination

and insertion of finger was observed painful. More so, there was a delay of

six hours in lodging the FIR which is fatal to the prosecution case.

3. On the other hand, learned State counsel, while pleading the

legality and validity of the impugned judgments of both the Courts below,

has refuted the above submissions made by learned counsel for the

petitioner and prayed for dismissal of the instant revision petition.

4. I have given my anxious consideration to the submissions made

by learned counsel for the parties.

5. As far as delay of six hours in lodging the FIR is concerned, in

the considered opinion of this Court, the same was not fatal to the

prosecution. According to the prosecution story, the alleged occurrence

took place around 5.00 P.M. on 28.07.2006. The FIR was registered at

11.30 P.M. PW-3 Sham Lal (complainant), had specifically mentioned in

his complaint (Ex. PW-2/A) that the delay in lodging the FIR occurred on

account of consultation with the neighbourers before lodging the same. The

above fact was also stated by victim PW-5 Brijesh. Even otherwise, in such

type of offence under Section 377 IPC, the honour and reputation of the

family and the victim is at stake. Due deliberations and consultations are

also made before adopting any legal recourse or any criminal action. The

victim, in the instant case, was 5 years old, at the time of occurrence. His

entire life, career and reputation was at stake, therefore, the complainant

(PW-3) being his father, might have deliberated the matter with his

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neighbours and other relatives before lodging the FIR. More so, the

aforesaid delay of six hours in lodging the FIR is quite negligible which

otherwise, does not go to the root cause, more particularly, when the

prosecution has been fully able to prove the guilt of the petitioner beyond

any shadow of reasonable doubt. The writing Ex. D-1, relied upon by

learned counsel for the petitioner, is nothing, but a waste paper and, thus,

the same has rightly not been discussed and discarded by both the Courts

below. By drawing attention of this Court to the said document, learned

counsel for the petitioner has made a futile effort to create a confusion, but

when he was specifically asked as to why the petitioner did not take the aid

of writing Ex. D-1 in his statement under Section 313 Cr.P.C., he had no

answer.

6. Perusal of MLR Ex. PW-6/A shows that there is no

interpolation or fabrication in the same, inasmuch it was proved by its

author PW-6 Dr. Ram Bhagat. Accordingly, the submissions of learned

counsel for the petitioner being devoid of any merit are turned down.

7. The prayer for reduction in the sentence of the petitioner is also

declined, because the petitioner has committed a very heinous crime of

carnal intercourse with a minor child of 5 years of age which is a crime

against the society. In the considered opinion of this Court, the sentence

awarded to the petitioner taking into account the nature of offence comitted

by him is on the lower side.

8. I have carefully gone through the impugned judgments of both

the Courts below and find no illegality or perversity in the same. There are

concurrent findings against the petitioner recorded by both the Courts

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below. Accordingly, the instant revision petition, being completely devoid

of any merit, is dismissed.

August 25, 2017 ( RAMENDRA JAIN )
rishu JUDGE

Whether speaking/reasoned Yes/No
Whether Reportable Yes/No

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