1979 P Cr (PLP)

AGHA ALI HYDER, J.

The appellants were convicted for offences under sections 377/342 and 506 read with section 34, P. P. C. On the first count they have been given life imprisonment; on the second six months' R. I. and under the third count a fine of Rs. 1,000 in case of default they were to undergo R. I. for one year more. The various sentences were made to run consecutively. Aggrieved by the conviction and sentences they have come in appeals here separately.

2. On the night of 3rd of August, 1971, Yamin a boy of about 13 to 14 years from old Hyderabad had gone to a nearby hotel run by Sakhi Muhammad to find out his cousin by the name of Yasin. There he met the present appellants and was invited to have a cup of tea with them. After regaling themselves with a cup of tea the boy is alleged to have been lured away to a desolate place near the zachakhana. Once they had reached there, Sher Ali is alleged to have taken out a knife and put it on the neck of the boy asking him to undress. In case of resistance he was to be done away with. The boy had succumbed to the threat and both the appellants had committed sodomy one after the other. He was, however, kept there a little longer.

3. As Yamin had kept away from the house for quite We in the night his mother was apprehensive about him. She had asked her brother who lived in the vicinity to look after the boy. Bhoore Khan had gone to the hotel and learning from the owner thereof, namely Sakhi Muhammad that the boy had gone to zachakhana side, he went that way. On the way he had seen Yamin coming alongwith the present appellants. However, the appellants seeing him coming, had taken to their heels. Yamin bad come out with the details to his uncle as to what had happened to him. Bhoore Khan had proceeded straightaway to the Phuleli Police Station where he had lodged the report of the incident. Both the appellants came to be arrested the same day. Their clothes were secured and they were referred to the Medical Officer for their physical examination. Yamin was also produced before the Medical Officer and certain slides were taken from him also. A. S. I. Nazir Paul had made some enquiries but as he was not examined nor anybody else to give the details of the investigation all we know is that some enquiry was made and the case was challaned in Court. The appellants in their statements at the trial denied the various allegations made against them and maintained that they had been run down at the instance of Sakhi Muhammad.

4. The direct evidence is furnished only by Yamin as was to be expected. He has given all the details as to how he was beguiled from the hotel to the zachakhana side and forced to undress on pain of death. There is no cross-examination worth the name from him. That is also true about Bhoore Khan who had found the party coming back from zachakhana side late in the night. He has also not been subjected to any cross-examination worth mentioning. Under the circumstances, there seems to be no conceivable reason in regard to the broad proposi tion that the boy was subjected to intercourse against the order of nature. There is also injury on his neck as deposed to by the doctor. The absence of semen on the private parts of the two appellants in the wake of their examination next day will be nothing specially when there is a mention of washing also by Yamin. The fact that the Sub-Inspector was not examined will be of no consequence and prejudice as there was no question of omission or contradiction in the case of the witnesses who have even been examined. There is no body who might have been introduced as a witness later on. Under the circumstances, the offence under sections 377 and 506 are substantiated. However, the same cannot be said for the offence under section 342, P. P. C. as there is room fort/ doubt therein.

5. The question remains about the sentence. The sentence awarded on the first count i. e. 377, P. P. C. in the circumstances of the case, is unsustainable. There is no injury on the anal region of the boy though he was subjected to sodomy by two persons. May be he was used to the same. The record also shows that there was no body in the family except a paralysed mother. The incident took place in 1971. We are, therefore, of the opinion that the sentence of two years, in the circum stances, will meet the ends of justice. The sentence under section 506, P. P. C. is reduced to Rs. 50 each or in default R. I. for 1 month. The sentence under section 342, P. P. C. is set aside. With this modification the appeal is dismissed