J.N. Wazir, C.J.
1. The three accused persons, Ghulam Nabi, Ghulam Mohiuddin constables and Faiz Ullah cook of K. A. P. Third Battalion were put on trial under Section 377, R. P. C. before the Additional District Magistrate, Kathua. They denied the charge and pleaded not guilty. On examination of the evidence the trial Magistrate found the accused guilty of the offence under Section 377, R. P. C. and sentenced them each to two years' rigorous imprisonment with a fine of Rs. 500, in default to undergo six months further rigorous imprisonment. The accused appealed against their convictions and sentences and the learned Sessions Judge giving them the benefit of doubt quashed their convictions and sentences and acquitted them. The State has filed an appeal against the order of acquittal through the Advocate General.
2. The prosecution case, briefly put, is as follows:
On 5th April, 1964 the accused took Parmanand alongwith themselves to see cinema show at Kathua. After the cinema show was over they went to a hotel in the bazar where they took liquor and had their evening meals. After that they proceeded towards the Police Lines. Having covered some distance they were on wrong track. They turned back and reached the school compound. It was a dark night and the accused, it is alleged, forcibly threw down Parmanand on the ground and each one of them had carnal intercourse with him. His pants were torn from behind and he was forced to submit himself to the carnal passion of the accused. Parmanand tried to extricate himself but he found it impossible to do so as he was held by two accused and the third committed sodomy on him. Parmanand managed to escape from the clutches of the accused. He came to the camp and reported the matter to his brother-in-law, Bansi Lal who advised him to go to sleep as his officers who were to be informed were resting at that time. Bansi also advised him to report the matter to them in the morning. Parmanand slept in the camp during the night and early in the morning reported the matter to the Commanding Officer The victim was sent for medical examination and on the 9th of April the matter was reported to the police. After investigation the accused were challaned as stated above.
3. The prosecution has produced Parmanand, Bansi Lal, S. Anup Singh, Dr. Narang who had examined Parmanand, Devkinandan and S. Balwant Singh S. H. O. The accused had denied having committed the offence and had pleaded alibi. In support of that plea they produced Dalip Singh H. C., Munshi Khan H. C., Ali Mohd H. C., Ghulam Mohd. Khan, Inspector, Triloki Nath Sub Inspector and Moh'd Maqbool Battalion Havaldar Major. [After discussing the evidence the judgment proceeds :] Dr. Narang examined Parmanand and found the following:
1. His anus was funnel shapped and there were abrasions all over it.
2. Sperms were found in his anus as seen under the microscope on examination.
The doctor stated that he examined rectal smear on slide under microscope and found sperms in it. According to the doctor sodomy had been committed on Parmanand within 24 hours of the time of examination. He had given the certificate in which he had mentioned the result of his examination which is marked Ex. P2. The doctor had examined the accused Ghulam Mohiuddin, Faiz Ullah and Ghulam Nabi. According to the doctor Ghulam Mohiuddin had a bruise 1/2' x 1/4' on the body of penis. Faiz Ullah had a braise (liner) 1/2' in length on the Glans penis. Constable Ghulam Nabi had no injury on the penis but there was an abrasion on his scrotum 1/2' x 1/4'. The doctor further stated that the injuries found on the person of the accused were simple and had been caused by some blunt weapon and could have been caused within six days of the examination. The doctor was further of the opinion that the injuries could be caused due to sodomy in which these persons functioned as active agents.
Devkinandan has been produced to show that the accused as well as Parmanand came to his hotel and had liquor and some eatables there. The witness stated that having had (their meals the accused and Parmanand went away from his shop. Bansi Lal another wit-mess produced by the prosecution deposed that Parmanand is his brother-in-law. The witness was sleeping in his camp and at night Parmanand came to him and told him about the occurrence. The witness advised Parmanand to rest for the night and to report the matter to the Commanding Officer in the morning. According to the witness Parmanand did not mention to him the names of the accused who had committed sodomy on him. The witness also did not enquire from him the names of those accused.
S. Anup Singh H. C. deposed that on 6th April, 1964 Parmanand had produced the trousers before the Commanding Officer who ordered the witness to keep the trousers in his charge and the same trousers were handed over by him to the Inspector of Police who prepared the recovery list and he signed that list. According to the witness the trousers were torn at the back. The witnesses produced in defence by the accused deposed to the effect that the accused as well as Parmanand were present in the Police Lines on the date of occurrence. Their roll call was called and they were found present.
From the evidence of Dalip Singh H. C. we have it that Ghulam Nabi was present in the squad on Sunday, the 5th of April, 1964. He further stated that the Squad Officer en-quires whether every one is present in the squad and the reply is given in accordance with what the actual position be. It appears from the statements of these witnesses that regular roll call is not held but on the report of Squad Officer it is taken for granted whether the members of the squad are present or not. Munshi Khan H. C. stated in his cross-examination that roll call was taken in the presence of the Inspector and Ghulam Moh'd Khan was the Inspector before whom roll call was taken. We have it from the statement of Ghulam Moh'd Khan Inspector that on 5th April, 1964 Ghulam Mohiuddin and Faiz Ullah were present in the lines as was reported by Company Havaldar Major. This witness also based his knowledge on the report of Company Havaldar Major that the accused Faiz Ullah and Ghulam Mohiuddin were present in the Lines.
The learned Additional District Magistrate had rejected the plea of alibi and relying on the statement of the prosecution witnesses had held the accused guilty of the offence under Section 377, R, P. C. The learned Sessions Judge has been influenced by the fact that the names of the accused persons were not mentioned by Parmanand to his brother-in-law, Bansi Lal when he informed him about the occurrence, We find that the omission on the part of Parmanand to mention the names of the accused to Bansi Lal, his brother-in-law, is not very material in view of the fact that Bansi Lal did not enquire from him as to who the offenders were. He was informed about the occurrence and he advised Parmanand to go to sleep because the officers were resting at that time and to inform them about the occurrence on the next morning. Parmanand on die next morning informed his Commanding Officer giving the names of the accused who had committed sodomy on him. The omission to mention the names of the accused to Bansi Lal is, therefore, not a circumstance which will make the testimony of Bansi Lal unworthy of credence. On the other hand, Bansi Lal appears to be a truthful witness. He could have admitted in his evidence that the names were mentioned to him and as he knew the accused personally it would not have been difficult for him to name them before the Magistrate. But he made a correct statement that at the time the occurrence was detailed to him no mention of the names of the accused was made to him by his brother-in-law, Parmanand.
The Sessions Judge, therefore, was not right in discarding the testimony of Bansi Lal. Another circumstance which has been taken into consideration by the Sessions Judge is that there is a discrepancy in the statement of Devkinandan hotel keeper inasmuch as according to Devkinandan Parmanand was wearing pyjama when he alongwith the other accused took meals at his hotel but afterwards it was found that Parmanand was putting on pants. This also is such trivial matter that the testimony of Devkinandan ought not to have been brushed aside on this score. Bare observation and narration differ from person to person, Devkinandan may not have been able to see accurately as to what Parmanand was wearing when he was having his meals in his hotel. He described the trousers which he was wearing as pyjama whereas it was a pant which Parmanand was wearing. As appears from the recovery list the pants which Parmanand was wearing were of grey colour and it could be easily mistaken for a pyjama.
It is surprising that the Sessions Judge has not taken notice of the statement of Parmanand which is fully corroborated by the medical evidence. Parmanand has stated in detail as to how he was taken away from the Lines to see the picture and from there to the hotel where he was made to take liquor and some eatables. After that he was caught hold by the three accused persons in the field near the school compound and he was thrown on the ground. His pants were torn and sodomy was committed by each of the accused by turns on him. He was caught hold by the two and the third satisfied his carnal passion on him.
Dr. Narang who had examined the victim found injuries on his anus and he further found sperms in the excretion from the anus. The doctor was of the opinion that sodomy was committed on Parmanand. Moreover, the doctor found some marks of injuries on the private parts of the accused, They have not been able to explain in their statements as to how these injuries were caused to them. No good ground has been given by the learned Sessions Judge to discard the testimony of Parmanand which is fully corroborated by the medical evidence.
The accused have taken the plea of alibi. It is easy to take the plea of alibi but very difficult to prove it. The alibi must show that the accused were not physically present at the place and time where the offence was alleged to have been committed but were physically present elsewhere. This they have not been able to show satisfactorily. According to some witnesses produced in support of the alibi it appears that Parmanand as well as the accused persons were present at the time of roll call. We have it from the statement of Parmanand that he was not in the Lines and had gone out in the Company of the accused to see the picture. This statement of Parmanand belies the statement of the officers who deposed that the three accused as well as Parmanand were present in the Police Lines at the time of roll call. Moreover, we have it from some of the defence witnesses that in order to ascertain whether every one is present in the lines, report in regard to this matter is taken from the Company Havaldar Major. It is, therefore, clear that no regular roll call is held to mark the presence or absence of the constables. Reports from their Company Havaldar Major are relied upon for the purposes of roll call. It is difficult to rely upon the plea of alibi in order that it may suffice for the rebuttal of a case made out by the prosecution.
In the present case there is satisfactory evidence produced by the prosecution to establish the offence under Section 377, R. P. C. against the accused and in the circumstances the alibi put forward by them cannot be accepted. In Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369 it has been observed:
Where there is satisfactory evidence that a man committed a crime at a certain place and at a certain time, a Court will never find any difficulty in rejecting an alibi he may seek to establish, even if that alibi be supported by what, on the surface, would appear to be satisfactory evidence.
We are satisfied that the prosecution evidence is reliable and amply corroborated by the medical evidence and other circumstances and was rightly believed by the trial Magistrate who had the opportunity of watching the demeanour of the witnesses in the witness box. We, therefore, allow this appeal, set aside the order of acquittal passed by the learned Sessions Judge and affirm the order of the trial Magistrate convicting the accused under Section 377, R. P. C. and modify the sentences of imprisonment and fine to this extent that instead of two years' rigorous imprisonment the accused shall undergo one year's rigorous imprisonment each and instead of fine of Rs. 500, the accused shall pay Rs. 100 each as fine, in default of payment of fine they will undergo three months further rigorous imprisonment each. The fine of Rs. 300 realised from the accused shall be paid to complainant Parmanand as compensation for the injuries received by him at the hands of the accused.
4. S. Murtaza Fazl Ali, J.
5. I agree.