HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 13
Case :- CRIMINAL REVISION No. – 269 of 2009
Revisionist :- Shiv Pratap @ Babban Singh
Opposite Party :- State of U.P.
Counsel for Revisionist :- Arun Kumar Pandey,I.M. Pandey,Vinod Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh,J.
1. The present revision petition has been filed against the judgment and order dated 01.04.2009 passed by Additional Sessions Judge/F.T.C.-2, Faizabad in Criminal Appeal No.06 of 2007 which was preferred by the revisionist against the judgment and order dated 20.01.2007 passed by Judicial Magistrate-I, Faizabad in Criminal Case No.730 of 2004. The trial Court convicted the accused-revisionist under Section 377 IPC and sentenced him to three years simple imprisonment with fine of Rs.4,000/- and under Section 363 IPC the imprisonment of three years with fine of Rs.2,000/-. It was directed that both the sentences would run concurrently.
2. The Appellate Court vide impugned judgment and order has acquitted the accused under Section 363 IPC, however, in respect of the offence under Section 377 IPC the conviction and sentence of the accused-revisionist has been upheld.
3. Heard Mr. Vinod Kumar Pandey, learned counsel for the accused-revisionist and Mr. Ashwini Kumar Singh, learned A.G.A. appearing for the State.
4. Learned counsel for the accused-revisionist submits that there was enmity between the father of the victim and the revisionist. The enmity is proved from the statement of the victim. The FIR was registered on the asking of the Village Pradhan. There are contradictions in the statements of the victim. The victim specifically said that he had stated what was told to him by his father. He further said that the medical evidence does not support the commission of the offence and, therefore, the impugned judgment and order passed by learned Appellate Court is liable to be set aside. He also submits that on the same set of facts the Appellate Court has acquitted the accused-revisionist under Section 363 IPC and therefore, order of conviction under Section 377 IPC is unsustainable.
5. On the other hand, learned A.G.A. submits that from the medical evidence and statement of the victim who was 8-10 years old boy, commission of offence is clearly established beyond reasonable doubt, therefore, there is no illegality or impropriety in the judgment and order passed by the Appellate Court and, the revision is liable to be dismissed.
6. I have considered the submissions carefully advanced on behalf of the revisionist and the State.
7. The victim at the time of incident was 8-10 years of age. The incident took place at 9:00 P.M. when his parents were not present at the home. The accused forcibly made him to sit on the bicycle and took him to a secluded place where he forced himself upon him. The injury report of the victim clearly established the commission of the offence with him. The injury report cannot be discarded merely on the statement of the doctor that the injury could have been caused to the victim on falling on some hard and sharp object. That was a probability but when the victim himself had stated the commission of the offence in categorical terms which is fully corroborated from the medical report, the testimony of the victim cannot be discarded. From the evidence on record and the oral testimony of the victim, the medical evidence, commission of offence by the accused-revisionist is clearly established.
8. Considering the scope of provision of Section 397 Cr.P.C., it is not a case where this Court should take any lenient view. In view of the aforesaid, the present revision is dismissed.
9. Let trial Court record be sent back immediately.
10. The accused-revisionist is directed to surrender immediately. If he does not surrender, learned Magistrate/trial Court is required to take effective steps for his arrest to undergo the sentence as awarded by the learned trial Court and affirmed by Appellate Court.
Let the Trial Court record be sent back forthwith.
Order Date :- 20.11.2019
prateek
