JUDGMENT :

This appeal is against the judgment and order dated 22.8.2009/24.8.2009 passed by the Additional Sessions Judge, Court No. 1, Budaun in S.T. No. 1151 of 2007, arising out of case crime No. 155 of 2007, P.S. Kadar Chowk, district Budaun, whereby the appellant Sunil Singh has been convicted under Section 377 and 302 IPC and sentenced as follows: 10 years R.I. as well as fine of Rs. 25,000/-, coupled with a default sentence of one year, under Section 377 IPC; and imprisonment for life as well as fine of Rs. 25,000/-, coupled with a default sentence of one year, under Section 302 IPC. Both sentences to run concurrently.

INTRODUCTORY FACTS

2. On 28.5.2007 a written report (Ex. Ka-1) was submitted by Raj Kumar (PW-1) at P.S. Kadar Chowk, Budaun, at 11.00 hours, giving rise to Case Crime No. 155 of 2007 in respect whereof GD entry, vide report No. 19 (Ex. Ka-13), and chik FIR (Ex. Ka-12) was prepared by S.I. Jagdish Prasad Verma (PW-6). In the written report it was alleged that in the morning, at about 7 a.m., on 28.5.2007, the appellant Sunil, who is brother of informant's brother's Sadhoo, came to informant's house in a drunken condition. At that time, informant's Bua and informant's son Kamal (the deceased), aged about two years, were present and fritters (Pakaudi) were being cooked. Sunil had fritters and, as usual, took Kamal to play with him. But when he did not return with Kamal, informant, his brothers Krishna Pal and Tussam (PW-2), alongwith other villagers went in search of Kamal and Sunil. While they were searching for Sunil and Kamal, in the sugarcane field of Viram Singh, Sunil was noticed lying over Kamal and committing unnatural offence. When informant and others raised alarm, Sunil left Kamal and escaped. When informant went near Kamal, he found him dead. Alleging that the body is lying in the sugarcane field, the written report was lodged with a prayer to take appropriate action.

3. After registration of the FIR, inquest was conducted by Sri Nivas Yadav (PW-4) and an inquest report (Ex. Ka-2) was prepared. The inquest report was witnessed by Krishna Pal Singh (i.e brother of the informant - not examined), Raj Kumar (the informant- PW-1), Tussam Singh (another brother of the informant - PW-2), Ram Singh (not examined) and Rajveer Singh (not examined). As per the inquest report, the inquest was conducted in a sugarcane field and was completed by 13.30 hours on 28.5.2007.

4. The cadaver was sent for autopsy. Autopsy was conducted by Dr. D.V. Shakya (PW-5) on 28.5.2007 at 4.30 p.m.. The autopsy report (Ex. Ka-11) records :

Age - about two years.

External Examination :

Average built body. R.M. passed off from upper limbs present in lower limbs. Eyes closed. Mouth closed. Conjunctivitis both eyes congested.

Ante-mortem injuries.

(1) An abrasion of size 9 cm x 5 cm on left side face near cheek lateral to angle of mouth.

(2) An abraded contusion of size 11 cm x 3 cm present on front and both sides of neck at the level of thyroid cartilage underneath on dissection subcutaneous tissues and muscle found congested. Right side hyoid bone found fractured. Trachea found congested.

(3) An abraded contusion of size 7 cm x 5 cm on top of left shoulder.

(4) An abrasion of 1 cm x 1.5 cm on exterior aspect of left wrist joint.

(5) Multiple abrasions in an area of 15 cm x 10 cm on back of chest both sides.

(6) Lacerated wound of size 1 cm x 0.7 cm x muscle deep present on posterior margin of anus with clotted blood.

(7) Abrasion of size 4 cm x 2 cm on back of left thigh just below left buttock.

Internal examination:

Skull: NAD

Thorax :

Larynx and Trachea (see above).

Lungs- congested.

Abdomen : Stomach contains 50 gram of semi digested food matter; Small intestine- Chyme and gases; Large intestine- faecal matter and gases.

Cause of death : asphyxia as a result of ante mortem injury over neck.

Duration after death: About one day.

Note : Two glass slides smear prepared by anal swab for pathological examination of dead sperm and handed over to accompanyin