IMPORTANT POINT
Words used in section 377 of Indian Penal Code are quite comprehensive and an act like putting male organ into victim's mouth which was an initiative act of sexual intercourse for the purpose of satisfying the sexual appetite would be an act punishable under this provision.

JUDGMENT

A. Pasayat, J. - Petitioner faced trial for allegedly having committed coitus per os (sin of Gomorrah), was found guilty and convicted under section 377 of the Indian Penal Code, 1860 (in short 'I.P.C'), and sentenced to undergo rigorous imprisonment for a period of two years by the learned Judicial Magistrate, First Class, Bhubaneshwar. The conviction was maintained by the learned Additional Sessions Judge, Bhubaneshwar, while the sentence was reduced to one year's rigorous imprisonment.

2. Factual position as described by the prosecution is that on 28.7.1987 at about 5 p.m. the petitioner called Swapna (P.W. 1), a girl aged 6 years, who was playing with his daughter, and inserted his genital organ inside her mouth for which she came spitting and narrated the fact before her mother. After return of her father, a school teacher, the incident was narrated to him and First Information Report was lodged at 6.45 p.m., in the police station. The girl and the accused were sent for medical examination and on completion of investigation charge-sheet was submitted and the petitioner faced trial.

3. The plea of the accused was complete denial of the accusation.

4. Six witnesses were examined to further the prosecution version, P.W. 1 is the victim girl, P.W. 2 and P.W. 3 are her father and mother respectively. P.W. 4 is a witness to the seizure, P.W. 5 is the medical officer and P.W. 6 is the Investigating Officer. No witness was examined by the accused. On evaluation of the evidence, the learned Judicial Magistrate found the petitioner guilty and convicted and sentenced him as aforestated. He did not extend the benefits of the provisions of Probation of Offenders Act, 1958 to the petitioner.

5. Petitioner tried to highlight certain infirmities before the courts below. His primary attack was to the acceptability of evidence tendered by the victim girl (P.W. 1). She being a child witness, it was urged that her evidence was not free from vulnerability and no credence should be attached to her evidence. Non-examination of neighbours was also highlighted. The courts below repelled the contention~ with observations that the evidence of the victim girl was worthy of credence and merely because she was a child witness, her evidence was not to be discarded. It was held that her evidence was truthful even after careful scrutiny. Non-examination of neighbours was held not to be of any material consequence.

6. The learned counsel for petitioner in support of the revision application has urged primarily three points for consideration. (i) Acceptability of the prosecution version mainly depended on the veracity of the alleged victim girl's evidenced and her evidence is too brittle to be worthy of acceptances (ii) non-examination of disinterested witnesses like neighbours, casts grave shadow of doubt over prosecution version; and (iii) in any event, the offence as alleged did not fall within the ambit of section 377, I.P.C. A plea for lel1ient sentence in the alternative has been made.

7. I shall first deal with the point whether the evidence of P.W. 1, the victim girl, is worthy of credence. Her evidence has been scrutinised in great detail by the courts below. Though a child because of the impressionable age can be the victim of tutoring, yet with careful scrutiny, evidence of falsity can be separated from truth. A child witness usually because of his/her age is diversed from the complexities of life, and prone to be swayed by tutoring. Therefore, the evidence of a child witness has to be weighed with caution. The trial court has the opportunity of assessing truthfulness of the witness from dameanour and behaviour in Court and discerning whether truth was spoken or tutoring is evident. When after careful examination, the trial court has accepted the child witness's evidence to be truthful and the conclusion has been affirmed by the appellate court, it is impermissible to take a different view while exercising revisional jurisdiction. The e