JUDGMENT :

The petitioner has been convicted and sentenced to RI for 3 years and a fine of Rs.1000/-under sections 377/511 of the Indian Penal Code (in short, IPC) with a default stipulation to undergo RI for further one month.

2. Mr. Naresh Pd. Thakur, the learned counsel for the petitioner states that after conviction of the petitioner in T.R No. 170 of 2009 he remained in jail for about 5 months, before bail was granted to him by a co-ordinate Bench of this Court vide order dated 10th October 2017.

3. Briefly stated, on the basis of a written report given by Girija Nandan Pd. Singh who is father of the victim boy, a First Information Report vide B.T.P.S PS Case No. 5 of 2007 was drawn on 31st January 2007 under sections 377/511 IPC. After the investigation, the petitioner was sent up for trial and a charge for the aforesaid offence was framed against him on 23rd May 2007. In the trial, the prosecution examined six witnesses to prove the charge under sections 377/511 IPC – PW3 is the informant of this case.

4. The learned trial Judge believed evidence of PW1 who is the victim boy and PW3 who is the informant and arrived at a conclusion that the prosecution succeeded in proving the charge under sections 377/511 IPC against the accused.

5. The learned A.C.J.M., Bermo at Tenughat pronounced the judgment of conviction in T.R. No. 170 of 2009 on 30th April 2009 holding the petitioner guilty under sections 377/511 IPC and, as noticed above, sentenced him to undergo RI for 3 years and a fine of Rs.1000/-.

6. Criminal Appeal No. 49 of 2009 filed by the convict was dismissed on 22nd January 2015 on the ground that the convict could not prove any evidence showing his innocence nor the defence witnesses could satisfactorily prove his evidence rather they made contradictory statements.

7. This is fundamental in criminal jurisprudence that except in a very limited class of cases in which the accused suffers reverse burden it is the prosecution which has to prove its case beyond all reasonable doubt. Even in cases where by operation of statutory provisions such as section 106 of the Indian Evidence Act the burden shifts on the accused, to show by preponderance of probability that the accusations against him are not proved, the persecution cannot shy away from its duty to prove its case.

8. In “Shambhu Nath Mehra v. The State of Ajmer” AIR 1956 SC 404 the Hon'ble Supreme Court has held that section 106 of the Indian Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and that never shifts.

9. The reasoning provided by the appellate Court recorded in paragraph no.21 of the judgment in Criminal Appeal No. 49 of 2009 reveals that the criminal appeal preferred by the petitioner was dismissed on a wrong legal premise, assuming that the accused has to prove his innocence.

10. In paragraph no.21, the appellate Court has held as under :

“21. Having considered the oral and documentary evidences as well as the materials and circumstances available in the record this court arrived at that Dhananjay Choudhary has committed the offence U/S 377/511 IPC. It further appears that the Ld. Counsel appearing on behalf of the appellant neither produced any evidence for his innocence in the cross-examination of the P.Ws nor the defence witnesses examined on his behalf have satisfactorily proved about his innocence rather the defence witnesses made contradictory statements.”

11. Even on merits, this Court is satisfied that the charge under sections 377/511 IPC was not proved against the petitioner.

12. The offence under section 377 IPC requires voluntary carnal intercourse against the order of nature with any man, woman or animal. Explanation to section 377 IPC clarifies that penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. On admitted facts, carnal intercourse did not happen and, as provided under section 5