The main legal point established in the judgment is the wide definition of carnal intercourse against the order of nature under Section 377 IPC and the legal interpretation of sodomy, emphasizing the orifice of the mouth not being meant for sexual or carnal intercourse.

1. This Criminal Appeal arises out of the judgment and order of the trial court dated 1.8.2001 passed by the learned Sessions Judge, Dehradun in Sessions Trial No. 100 of 1998 convicting the present appellant under Section 377 IPC and thereby sentencing him for 4 years of rigorous imprisonment. The accused appellant stood acquitted under Section 376 IPC read with Section 511 IPC, the other charges on which he had faced the trial.

2. Since in this case the appellant was not being represented by any counsel at the time of final hearing, the Court appointed Mr. R.C. Tamta a practising lawyer of this Court as Amicus Curiae in the matter, to present the case of the appellant before this Court. He was given the paper book of the case, free of cost and time to prepare the matter. It is listed today now for final hearing.

3. The State is being represented by Ms. Mamta Bisht, Assistant Government Advocate.

4. Matter heard at length.

5. The facts of the case are like this. The incident from which the present case arises before this Court happened in the hill station of Mussoorie, Dehradun. On 19.4.1998, the complainant took his nine years old daughter to the neighbourhood barber’s shop, belonging to the accused Naeem Ahmad, to have a hair cut of his daughter. The time was 4:30 P.M. At that time there were four to five people already sitting in queue in the shop, waiting for their turn and since the accused asked the complainant to leave his daughter at his shop, assuring that he will do the needful, his father asked the girl to sit in the shop and wait for her turn. So he left his daughter at the shop of the accused and returned to his shop which was also in the neighbourhood. At about 5:00 PM, he was informed by one Ram Kumar who had a hotel in the area that something wrong has happened to his girl. He immediately went to the barber’s shop where he found that a large number of people had gathered outside the barber’s shop and when he enquired from her girl who was also standing outside the shops (the name of girl is not being given here and she will simply be mentioned as the prosecutrix), the prosecutrix who was continuously sobbing informed him that the accused had placed his genital organ on her private part initially but thereafter he placed his genital organ in her mouth. She consequently started crying as a result of which a number of people gathered outside the shop. The prosecutrix was also threatened by the accused that if she said about this to anybody then she would be killed. The father of the prosecutrix on getting this information promptly lodged a First Information Report at the police station Mussoorie. The FIR was lodged on 19.4.1998 at about 5:00 PM. Apart from narrating the incident as has already been referred above, the complainant also states that at that time number of people had gathered outside the shop of the accused, to name a few Radheshyam Tayal, Shravan Kumar, Tribhuvan Singh, Devendra Jain, Lala Kapoor Chand, etc. who had seen the incident. The F.I.R. was registered under Section 376 IPC read with Section 511 IPC as well as Section 377 IPC. After the investigation, the police has filed the chargesheet and the matter was committed to the Sessions for trial vide order dated 5.8.1998. The accused was charged under Section 376 IPC read with Section 511 IPC as well as under Section 377 IPC.

6. The prosecution in order to support its case produced as many as 6 witnesses i.e. the prosecutrix herself as PWI, Ashok Kumar P.W.2 who is father of the prosecutrix, Tribhuwan Kumar P.W. 3 and Shravan Kumar P.W. 4 who are eyewitnesses to the incident, P.W. 5 constable Jasveer Singh and P.W.6 Sub-Inspector Laik Singh who conducted the investigation.

7. After the said incident though the prosecutrix was not put to any medical examination, as her father i.e. P.W.2 refused to grant such permission to the police for conducting medical examination on a nine year old girl. In absence of the medical report therefore t