P L D 1961 Dacca 447 (PLP)

IDRIS, J.‑‑Appellant. Muhammad Ali was convicted under section 377 of the Pakistan Penal Code and was sentenced to rigo rous imprisonment for two years and also to pay a fine of Rs. 200 in default, to rigorous imprisonment for three months more. He was also convicted under section 352 of the Pakistan Penal Code and was sentenced to rigorous imprisonment for three months. Both the sentences were directed to run concurrently. Appellant Kamaruddin was convicted under section 352 of the Pakistan Penal Code and was sentenced to rigorous imprisonment for three months.

2. The accused persons were tried by Mr. A. H. Chowdhury, Additional Sessions Judge, Sylhet, he was aided by three Assessors The three Assessors gave the unanimous opinion that appellant Muhammad Ali was guilty under sections 377 and 352 of the Pakistan Penal Code and appellant Kamaruddin was guilty under section 352 of the said Code. Appellant Kamaruddin was also charged under section 377/511 of the Pakistan Penal Code. The Assessors were of the unanimous opinion that he was also guilty under section 377/511 of the Pakistan Penal Code. But the learned Additional Sessions Judge found Kamaruddin not guilty of that charge and acquitted him of the charge under section 377/511, of the said Code.

3. Briefly stated the prosecution case is that the complainant Giasuddin, a boy of 11 or 12 years, is a student of Class V of Darpanagar Model Primary School within P. S. Kanaighat. On the 24th of August 1959, at about 10 to 11 a.m., he was proceeding to the School with his books and khatas by the side of the river Surma. When he came near an abandoned homestead, the appel lant Muhammad Ali and Kamaruddin came from behind and caught him, and the books and khatas fell down on the ground from the hand of the complainant Giasuddin. Appellant Muhammad Ali picked up the books and khatas and then threw there on the slope of the river Surma. Appellant Muhammad Ali caught Giasuddin by his left arm and appellant Kamaruddin threatened him with a drawn knife. Appellant forcibly took Giasuddin to the abandoned homestead which was surrounded by Jungles. Then appellant Muhammad Ali threw down Giasuddin on the grassy ground. He made him lie with his face upwards ; then his lungi was removed ; at that time the shirt of Giasuddin was torn due to struggle. Appellant Muhammad Ali then got up on Giasuddin against his will, kissed Giasuddin, formed a cavity between the two thighs of Giasuddin, entered his male organ into that cavity and satisfied his lust ; semen discharged from the male organ of appellant Muhammad Ali, and made wet the thighs of Giasuddin and also portion of the ground below. There were also injuries in the thighs. After appellant Muhammad Ali got up leaving Giasuddin, appellant Kamaruddin kissed Giasuddin and wanted to get up on him to commit unnatural offence. At this, Giasuddin raised cries. Hearing the cries, P. W. 2 Kanta Raja, P. W. 3 Abdul Khaleque and P. W 4 Kutub Ali came to the place of occurrence and at their approach, the two appellants ran away towards south‑east. P. Ws. 2, 3 and 4 found Giasuddin naked and weeping : Giasuddin told them of the occurrence. He also showed them semen on his thighs and the grassy ground where the occurrence took place P. Ws. 2 and 3. took him to the river side, picked up some of his books and Khatas from the slope of the river. Giasuddin was washed himself in the river and then went to the School. On reaching the School, he told the Head master, P. W. 6, Abdul Quddus, about the occurrence. P. Ws. 6, sent information to P. W.

7. Rafiqul Huq Chowdhury, the Secretary of the School. Attempts were made by the members of the School Committee to settle the matter; but the attempts failed. So on 26‑8‑59 Giasuddin went to Kanaighat police station and lodged the first information report at 11 a.m., police started investigation. On‑ 27‑8‑59 Giasuddin was examined by the Deputy Superintendent of‑ Civil Hospital, Sylhet. On completion of investigation, police submitted charge‑sheet against both the appellants: After usual preliminary enquiry by a competent Magistrate of Sylhet, the appellants were committed to the Court of Sessions.

4. Defence is that there is enmity between, appellant Muhammad Ali and P. Ws Kanta Raja, Abdul Khaleque, Kutub Ali and Rafiqul Huq Chowdhury with regard to a plot of land on which the accused erected his homestead about two years before in spite of the opposition of these persons. Out of grudge for that, this false case has been started, against appellant Muhammad Ali and his servant appellant Kamaruddin by setting up the complainant Giasuddin who is the son of a domestic servant. The ease is false.

5. Eight witnesses were examined on the side of the prose cution. P. W. 5 Jalaluddin was tendered for cross‑examination but cross‑examination was declined. Evidence of Dr. M. Ahmed, Deputy Superintendent of the Civil Hospital, Sylhet, was put in under section 33 of the Evidence Act. The accused persons did riot examine any witness. The learned Additional Sessions Judge, on a consideration of .the evidence, found the appellants guilty and passed the sentences against them, as already stated: So, this appeal.

6. The first point pressed on behalf of the appellants is that from the evidence adduced, even if it be, accepted as true it cannot be held that appellant Muhammad Ali committed any offence under section 377 of the Pakistan Penal Code. According to P. W. 1, Giasuddin, appellant Muhammad Ali threw him on the grassy land at the deserted homestead, made him lie with his face upwards, removed his lungi, got upon his body, kissed his nose and formed a cavity between his two thighs, put saliva there in the cavity and entered his male organ into the cavity ; some matter fell from the mule organ of Muhammad Ali after this entry, on the thighs and also on the grass below after the discharge, Muhammad Ali got up and left Giasuddin.

7. The learned Advocate for the appellants argued that as there was no penetration of the male organ of appellant Muhammad Ali into the anus of Giasuddin, there could not be any offence under section 377 of the Pakistan Penal Code: In support of this contention; reference was made to the case of (Meharban) Nowshirwan Irani v. Emperor (36 Cr. L J 718). That was the decision of a single Judge. In that case; the accused removed his own pants, loosened the trousers of the complainant and made the complainant sit on the top of his organ. The complainant got up from the lap ; but in the meanwhile the accused had spent himself, wiped his organ and put on his pants. It was held that there was no offence under section 377 of the Pakistan Penal Code, as there was no penetration of the male organ of the accused into the anus of the complainant, or no activity on the part of the accused in that particular direction. But in the case of Khanu v. Emperor (A I R 1925 Sind 236), it was held that though there was neither actual penetration per anus or in a legal sense attempt at such penetration, the accused was guilty under section 377 of the Pakistan Penal Code as the accused committed the sin of Gomorrah, coitus peros, with a certain little child. That was a decision of a Division Bench consisting of Kincaid J. C. and Kennedy A.J.C. This decision was subsequently followed in the case of Kandu v. Emperor (A I R 1934 Lah. 261) which was. a case of unnatural penetration of the mile organ into the nostril of a bullock. It was held that though there was no penetration into the anus that would be an offence under section 377 of the Code. Section 377 provides :‑ "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal" commits the offense sander that section. .

8. In this case, the evidence is to the effect that the appellant Muhammad Ali after throwing down the complainant on the ground formed a cavity between his thighs and then entered his male organ into the cavity and after discharge of semen, he got up. The entry of the male organ of the accused into this artificial cavity between the thighs of Giasuddin, would mean penetration and' would amount to carnal intercourse. There was carnal intercourse as the visiting organ was enveloped by the visited organs namely, the thighs of the complainant Giasuddin. We accept the principle enunciated in the above mentioned two cases namely, the cases reported in A I h 1925 Sind 286 and A I R 1934 Lah. 261 and accept that penetration into anus would not be essential in every case for constituting the offence under section 377 of the Pakistan Penal Code. So, the contention that even if the prosecution evi dence be accepted as true there would be no offence under sec tion 377 of the Pakistan Penal Code by appellant Muhammad Ali, cannot be accepted.

9. The second point urged is that the prosecution evidence regarding the occurrence should have been disbelieved and' the appellants should have been acquitted of the charge under sec tions 377 and 352 of the Pakistan Penal Code: P. W. 1 Giasuddin is the victim. He is aged 11 to 12 years. He has stated how he was caught hold of by appellant Muhammad Ali, while on the way to School, by the side of the river‑Surma and how appellant Kamaruddin threatened him with a knife and how his books were thrown away by the appellant Muhammad Ali into the river ; then the appellant took him to a deserted homestead surrounded by a jungles; he was thrown down on the ground there, the appellant Muhammad Ali removed his lungi, got upon his body and entered his male organ into the cavity fromed between the two thighs of Giasuddin; there was discharge of semen, from the organ of appel lant Muhammad Ali; after discharge of semen. Muhammad Ali got up; at that time appellant Kamaruddin came to him and kissed him and was about to get up on him; he cried; hearing the cries P. Ws. 2, 3 and 4 came there. He told them of the occurrence. He showed them the matter on his thighs which omitted from the male organ of appellant Muhammad Ali; he had also received injuries on his thighs. He was taken to the river side by P. Ws. 2 and 3; some of his books were picked up from slope of the river by P. Ws. 2 and 3 ; he washed his body and then he went to the School and toll the Headmaster, P. W. 6 about the occurrence; he left his books and Khatas (Exh. II) with the Headmaster. [The discussion of evidence on facts omitted‑Ed].

10. The learned Additional Sessions Judge discussed the evidence in details. He believed P. Ws. 1, 2, 3, 4, 6 and

7. We have also no reason to disbelieve these witnesses. Conceding for the sake of the argument that P W. 2 is to be disbelieved on the ground that he deposed in a case against appellant Muhammad Ali yet there remains the evidence of P. Ws. 3. 4, 6, 7 and 8 whom we have no reason for disbelieve. From the evidence of P. W. 1 corroborated by the evidence of P. Ws. 3, 4, 6 and 7 we are satis fied that the appellant Muhammad Ali committed unnatural offence with Giasuddin and also used criminal force to him; so, he has been rightly convicted under sections 377 and 352 of the Pakistan Penal Code. The sentences passed against him do not appear to be severe.

11. From the evidence of P. W. I corroborated by the evi dence or P. Ws. 2, 3; 4, 6 and 7 in material particulars, we are also satisfied that appellant Kamaruddin kissed complainant Giasuddin against his will and thereby committed an offence under section 352 of the Pakistan Penal Code. This was not a kiss of affection. This kiss was given by Kamaruddin in preparation to commit unnatural offence with him, but which he failed to commit because of the arrival of P. Ws. 2, 3 and

4. The sentence passed against him, is also not severe.

12. There is no ground for interference in this appeal and the appeal is accordingly dismissed and the conviction and sentence of the appellants are upheld. We direct that the appellants will now surrender forthwith to their bail bond and serve out the remainder of their sentences. HAMOODUR RAHMAN, J.‑I agree. K. B. A. Appeal dismissed.