Karam Singh vs State of Punjab

B.S. Yadav, J.

Karam Singh appellant, resident of village Mairipur, Police Station Sadar Kapurthala, for having committed the offences under Sections 376 and 312 of the Indian Penal Code. The learned trial court acquitted him for the offence under Section 376 but convicted him under Section 312 read with section 511, Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year.

The prosecution story as gathered from the evidence is that P.W. 4 Paramjit Kaur, aged about 13 years, of village Malian was running temperature about 2� months prior to 5th January, 1980. She went to the clinic of the accused to get medicine. The accused took her to the rear portion of his clinic. After threatening her with a knife he committed rape on her. Thereafter he threatened her that in case she disclosed the incident to anybody he would kill her. Paramjit Kaur returned to her house and did not tell that incident to anybody.

On 5th January, 1980 she again went to the clinic of the accused and told him that she was not having menses for the last 2� months. The accused told her that he would cure her. He took her to the rear portion of his clinic and there gave some injections and with his hands cleaned her uterus and vagina in order to procure abortion. She started bleeding and felt much pain. The accused also administered some medicine to her. She returned to her house. When her bleeding did not stop, she informed her father P.W. 5 Mohinder alias Mohindu and her grandmother. Her father took her with him for lodging the report with the police. At the railway crossing in Pajian, P.W. 9 A.S.I. Hardial Singh met them. Paramjit Kaur made her statement Ex. P.E. before the said officer. After making endorsement Ex. P.E./1 he sent it to the police station Sadar, Kapurthala, for registration of a case and on its basis formal F.I.R. Ex. P.E./2 was recorded by Moharrir Head Constable Atma Singh.

P.W. 9 A.S.I. Hardial Singh took Paramjit Kaur to Civil Hospital Kapurthala where she was medically examined by PW 2 Dr. Shobha Madan. The said doctor did not find any mark of external injury on the body of Paramjit Kuar. The examination of private parts revealed :

"Public hair present and welldeveloped. Labia majora and minor were well developed. Fourchetee is torn. Hymen having old tear healed. Bleeding per vagina."

P/V Examination revealed :

"Admitted two fingers. Cervix downwards. Uterus anteverted, 12 to 14 weeks old. Internal so closed. Forrices cleaned."

Per Spaculum examination revealed :

"Cervix blue. Blood clot at external so present.

Ex. PC is the midcolegal report reported by the said doctor in relation to Paramjit Kaur.

PW4 Paramjit Kuar is Balmiki by caste. When the news about the incident spread, several persons including Balmikis Collected near the clinic of the accused and gave him a beating. PW6 Dalip Singh, Sarpanch of the village, reached there and rescued the accused from the clutches of those persons. The accused confessed before him and others about the rape upon Paramjit Kuar as well as about the incident which took place on 5th of January, 1980. P.W. 9 A.S.I. Hardial Singh reached village Malian on the same day and the villagers produced the accused before him. On the personal search of the accused knife Ex. P2 was recovered. It was taken into possession by P.W. 9 Hardial Singh after preparing usual recovery memo A.S.I. Hardial Singh also got the accused medically examined from PW 1 Dr. Ashwani Kumar Ahuja also found many injuries on his person. It is not necessary to detail those injuries. After necessary investigation, the accused was chargedsheeted.

The accused when examined under Section 313, Code of Criminal Procedure, denied the prosecution allegation except the beating given to him on 5th January, 1980. He took plea that on 5th January 1980. Paramjit Kaur had come to him and informed him that she had taken some medicine for procuring abortion and was bleeding. According to him he advised her that she should be taken to hospital and she should also inform her parents. He also stated that he did not give any medicine to her.

In his defence, the accused examined DW1 Dr. Pushypa Dhir who has stated that there can be no pregnancy in case sexual intercourse is committed with a women during her menses. The accused led this evidence because PW4 Paramjit Kaur had stated during her crossexamination that she was having menses when the accused had committed rape on her.

The learned counsel for the appellant argued that in the present case, the conviction of the appellant has been recorded mainly on the basis of the statement of PW 4 Paramjit Kaur, prosecutrix. He argued that the said witnesses is not reliable because according to her she became pregnant when the accused committed rape on her and that part of her statement is false because according to her she was having menses at that time and vide statement of D.W. 1 Dr. Pushpa Dhir, pregnancy cannot occur when sexual intercourse is committed with a woman during her menses. That part of the statement of the prosecutrix has already been disbelieved by the learned trial court. However, merely because P.W. 4 Paramjit Kuar has not been able to establish that the accused committed rape upon her it does not mean that her whole story about the alleged attempt by the accused to cause the miscarriage is false. The accused in his statement has admitted that on 5th January, 1980 the prosecutrix had come to him and informed him about the pregnancy.

The statement of P.W. 4 Paramjit Kuar that when she went to the accused and informed him about her pregnancy, the accused tried to cause miscarriage of the child is corroborated by the circumstances. She has stated that the accused tried to clean her uterus and vagina with his hands and she felt great pain and also bled. She had further stated that when the bleeding did not stop she informed her father and grandmother. It may be mentioned here that mother is dead. PW 5 Mohinder, father of the prosecturix, has stated that at about 2 p.m. Paramjit Kaur had informed his mother that she was in pain. He further stated that thereupon Paramjit Kaur narrated her the whole occurrence and then he left with her for police station to lodge the report.

Paramjit Kuar was medically examined on the same day at 5.10 p.m. by PW 2 Dr. Shobha Madan and she found that she was bleeding from vagina. Learned counsel for the accused argued that PW/2 Dr. Shobha Madan does not state that the bleeding was due to attempted miscarriage. This argument has no force. If no attempt had been made to cause miscarriage of the child and the prosecturix did not feel pain then the present incident would not have come to light. Therefore, it is futile to argue that the bleeding was not due to the attempted miscarriage.

PW 4 Paramjit Kaur had no motive to falsely implicated the accused. In fact he was denounced in the village even before she lodged the report with the police. As mentioned earlier, the villagers gave a beating to the accused. Hence I do not find any ground to disbelieve the statement of PW 4 Paramjit Kaur. Her statement finds further corroboration from the fact that the accused had made a confessional statement before PW 6 Dalip Singh, who is the Sarpanch of the village, on 5th January 1980, about the rape as well as about the visit of the prosecutrix to his clinic on that date and that he had attempted to procure miscarriage. The learned trial court has not given weight to the extrajudicial confession of the accused on the ground that the accused had been given beating by the villagers. The accused had not been given beating to extort confession from him. The beating had been given to him because he had committed a misdeed. After PW 6 Dalip Singh had rescued him, the accused had made confessional statement before him and other persons. Therefore, I do not find any reason to doubt the statement of PW 6 Dalip Singh who is a respectable person.

Learned counsel for the accused next argued that the bare statement of Paramjit Kaur should not be held sufficient for convicting the accused as in view of the Explanation appended to section 312, Indian Penal Code, she also could have been arranged as a coaccused. It is not necessary to discuss if she can be termed as an accused or not in the light of the said Explanation. The fact remains that she was not arrayed as an accused in this case and, therefore, her statement is admissible in evidence. Her statement finds corroboration from other evidence and circumstances as discussed above. Therefore, conviction of the accused can be based on the statement of Paramjit Kaur.

Lastly, learned counsel for the accused argued that the accused be released on probation. In the circumstances of the present case, I do not find any ground to release him on probation. The prosecutrix had also levelled a charge of rape against the accused though it could not be established when the prosecutrix became pregnant he, tried to cause miscarriage.

For the foregoing reasons I do not find any force in the present appeal and dismiss the same.