' MUHAMMAD SAFDAR KHAN SIKANDRI, J.---Convictappellant Ehsanullah faced the trial in the Court of Additional Sessions Judge-IV, D.I. Khan in case F.I.R. No,79 dated 29-6-2007 registered under section 377, P.P.C. In Police Station Chaudhwan, District D.I. Khan and on conclusion of the trial, he was convicted under section 377, P.P.C. And sentenced seven years' R.I. With fine of Rs,30,000 as compensation under section 544-A, Cr.P.C. Or in default of payment of fine, to undergo further one months' S.I. With benefit of section 382-B, Cr.P.C. Extended to him. Feeling aggrieved from the impugned judgment of conviction and sentence, the convict-appellant has filed the instant appeal against his conviction under section 410, Cr.P.C.
2. The brief facts forming the background of this case are to the effect that victim-complainant Ghafoor son of Mehmood Khan lodged the report in Police Station concerned that on the eventful day he was grazing the goats in the fields situated in the limits of village Azak. It was above 9-00 A.M. When the convict-appellant reached the place of occurrence while grazing the herd of goats and asked the victim-complainant to undergo sodomy with him, however, the complainant refused but he was fallen down on the ground forcibly with his face inverted to the ground and removed his trousers, The complainant raised hue and cry, however, his mouth was shut by putting hand by the accused on his mouth. The convict-appellant inserted his private organ to the anus of the victim while applying the spit at the anus as lubricant and discharged inside the anus and thereafter the perpetrator decamped from the spot. The complainant put on his trousers, went to his house and informed his father about the incident who proceeded with him to the Police Station where the report was lodged and hence the present occurrence.
3. After arrest of the convict-appellant, completion of investigation, submission of complete challan in the Court, framing of charge, recording evidence of the prosecution and examining the convict-appellant under section 342, Cr.P.C., hearing the arguments, the learned trial Court convicted and sentenced the convict-appellant as aforementioned.
4. Learned counsel for the convict-appellant contended that the solitary statement of the victim is not worthy of credence for sustaining the conviction of the convict-appellant and in this regard the findings of the trial Court are based on erroneous presumptions and against law and facts. He further urged that inordinate delay in lodging the F.I.R. Suggests consultations and deliberations on the part of the victim with his father and other relatives as well as the local police and as such the evidence put forth by the victim is inadmissible under the law for the conviction of the convict- appellant for such a harsh punishment of seven yeaRs, He urged before me that the medical evidence does not support the story of the victim as the doctor has not opined that there was any bleeding from the private parts of the body of the victim or otherwise redness, tenderness or pain in walking. He further contended that the clothes worn by the victim at the time of occurrence were not taken into possession by the police to send the same to F.S.L. Along with the swabs taken from the anus of victim for grouping of the semen of the accused and thus, the F.S.L report in respect of swa bs is doubtful. Learned counsel for the convict-appellant placed reliance on 1996 SCMR 53 1997 PCr.LJ 1107 and 2009 SCM R 230.
5. On the other hand, learned State counsel assisted by privately engaged counsel for the complainant vehemently urged that the convict-appellant has committed an unnatural offence of heinous nature very callously while subjecting a tender age boy of 8/9 years to sodomy by force for satisfaction of his lust. He further contended that such-like offences of shameful nature do not occur in presence of witnesses normally and the only circumstantial medical evidence is sufficient to establish the guilt of the accused. He contended that being ,a juvenile victim, the complainant has advanced evidence in the Court not shattered by the defence in cross-examination which itself speaks volumes that the same being believable and worthy of credence. Further contended that the positive result of F.S.L. Is sufficient to prove the penetration of the male organ into the private parts of the victim and that is why the swabs were stained with semen of the accused and nothing else which fully corroborated the version put forth by the victim and the trial Court has correctly held the convict-appellant responsible for the commission of offence and awarded the sentence justifiably. Reliance was placed on 2005 PCr.LJ 617.
6. The submissions addressed before me at the Bar by the counsel for the parties were assessed in the light of materials on record and my findings in respect of the conviction assailed in appeal are as under:--
7. Admittedly, Ghafoor victim-complainant has lodged the report and has directly charged the convict-appellant for committing sodomy on his person and the said averments were also put forth before the trial Court being a victim of unnatural offence of tender age of 8/9 years but his veracity has not been shattered by the defence in cross-examination and his statement was found consistent throughout, therefore, his deposition cannot be thrown out just because he is a solitary witness as well as he has lodged the report at some belated stage. Superior Courts have repeatedly held that the delay in such-like offences is not materially fatal for the prosecution case.
The complainant lodged the report in the Police Station though accompanied by his father being an innocent boy and whatever he has stated in the F.L R. Has been endorsed by him in the Court without any exaggeration or discrepancy in it, thus, the trial Court has rightly believed his statement for sustaining the conviction of the convict appellant. The swabs taken from the anal canal of this victim was sent to Laboratory and the result was received in positive, therefore, it is undoubtedly proved that the semen on the swabs was of the accused and honestly taken by the doctor from the inner side of the anal canal of the victim which fully proved that penetration has taken place which establishes the offence of carnal intercourse. Reference can be given to 2005 PCr.LJ 617 wherein it is held that even in absence of Chemical Examiner's report, commission of sodomy against accused can be proved beyond doubt, where the victim made consistent and coherent statement in which he fully implicated the accused for the commission of unnatural offence with him, however, in view of this dictum, the case in hand is very well established on the basis of medical report supported by Chemical Examiner's report, therefore, the arguments raised at the Bar by the defence counsel that there was no bleeding or abrasion inside the anus of the victim, is without weight and based on mere hypothesis because as alleged by the victim in his report, spit was applied on his anus, therefore, while inserting the penis in his anal canal, no laceration or redness will be caused due to lubrication and gentle friction without causing any harm to the main surface of anal cavity. Moreover, in certain cases, as per Modi's jurisprudence, when the passive agent was used to sodomy frequently by habit, then normally, no laceration or redness occur due to space being open enough as like in the instant case that the doctor has not found such-like symptoms and as such this aspect of the case will not give premium in favour of the convict-appellant.
8. Admittedly, the offence committed by the convict-appellant is of moral turpitude and an offence against the society most particularly shameful to he victim's family, therefore, normally, no one would come with such allegations against an accused because it puts a stigma of bad name to the parents and anguish to the victim himself and the population of surrounding vicinity, therefore, bringing of such charge against a person will not be without any truth or falsity on the part of complainant can not be expected and thus, the findings given by the trial Court about the conviction of appellant are well-founded, reasonable and appealing to mind and do not warrant setting aside. However, one thing is noticeable that conviction and sentence awarded against the convict appellant, to my mind, is somewhat harsh while keeping in view the poor financial position and lifestyle not only of the convict-appellant but the complainant also and as such I deem it appropriate to reduce the sentence. Accordingly, on partial acceptance of the appeal the sentence of seven years' R.I. Awarded to the convict appellant is reduced to four years R.I. And the amount of compensation is reduced from Rs,30,000 (Thirty thousand) to Rs,20,000 (Twenty thousand) or in default to undergo four months further S.I. The benefit of section 382-B, Cr.P.C. Shall remain extended to the convict-appellant.