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2004 DIGILAW 1259 (PNJ)

Kahna Ram v. State Of Punjab

2004-11-17

HARJIT SINGH BEDI

body2004
Judgment H.S.Bedi, J. 1. The facts giving rise to the present appeal are as under :- Balram husband of Kamla (PW-3) was working as a Siri with Har Singh Arora of village Kera Khera. On 24.2.1992, Balram was irrigating the fields and Kamla left the house to serve tea to him. As Kamla reached near her house at about 3.30 p.m. on her return, she heard the screams of her daughter Vinod and on going inside the room, found Kahna Ram accused committing rape on her whereas Kanshi Ram was holding her by her arms. Vinods screams also attracted Ganga Ram (PW-4) and on seeing them, the two accused ran away from the spot. Kamla and her husband, however, decided not to report the matter to the police so as to avoid any stigma on the family but as Vinods condition deteriorated, they thought it advisable to lodge the report, which was ultimately lodged on 28.2.1992. Vinod was also subjected to a medical examination at 5.20 P.M. on 28.2.1992 by Dr. Sarla Sethi (PW-1), who observed that her hymen was torn, there was a tear on her vagina which extended to her rectum upto 2 cms. and that pus was being discharged and faecal matter was present. The accused were duly arrested and on the completion of the investigation, Kahna Ram accused was charged for an offence punishable under Section 376 of the Indian Penal Code whereas Kanshi Ram was charged for an offence punishable under Section 376/34 of the Indian Penal Code and as they pleaded not guilty, were brought to trial. 2. In order to prove its case, the prosecution relied on the evidence of PW-1 Dr. Sarla Sethi, who had medico-legally examined the victim; PW-2 Dr. D.P. Godara, who had examined the two accused and opined that there was nothing to suggest that they were not capable of performing sexual intercourse; PW-3 Kamla and PW-4 Ganga Ram, the two eye-witnesses; and PW5 ASI Des Raj, the Investigating Officer. The report of the Laboratory, Exh. PL, that semen stains had been found on the clothes of the victim and the swabs taken from her were also produced in evidence. 3. The prosecution case was then put to the accused and their statements recorded under Section 313 of the Code of Criminal Procedure. They denied the allegations and pleaded false implication. PL, that semen stains had been found on the clothes of the victim and the swabs taken from her were also produced in evidence. 3. The prosecution case was then put to the accused and their statements recorded under Section 313 of the Code of Criminal Procedure. They denied the allegations and pleaded false implication. They also took up the plea that they had been involved at the instance of the Sarpanches of their respective villages as they bore them some animosity. They also examined Karnail Singh as DW-1 in defence. 4. The trial Court in its judgment dated 4.2.1993 held that the fact that the rape had been committed stood proved on record from the evidence of Dr. Sarla Sethi (PW-4). The Court also relied upon the evidence of Kamla (PW-3) and Ganga Ram (PW-4) and accepted the story given by them that they had in fact witnessed the rape being committed by Kahna Ram. The Court, however, held that as Kamla had not been able to give the name of Kanshi Rams father, there was a possibility that he had been falsely roped it. The Court accordingly, while acquitting Kanshi Ram of the charge, convicted Kahna Ram for an offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year. 5. The present appeal has been filed by Kahna Ram accused-appellant impugning the judgment of the trial Court. 6. Mr. D.D. Sharma, the learned counsel appearing for the accused-appellant has argued that there was a delay of four days in the lodging the FIR, which clearly proved that no rape had in fact been committed and the appellant had been roped in at the instance of his enemy, i.e. the Sarpanch of his village. It has also been submitted that the factum of rape was itself in dispute as Dr. Sarla Sethi (PW-1) had, in response to a question put to her, stated that the injuries could have been caused by a blunt weapon and in this view of the matter, no case of rape was made out against the appellant. 7. Mr. Jayender S. Chandail, the learned State counsel has, however, supported the judgment of the trial Court. 8. Sarla Sethi (PW-1) had, in response to a question put to her, stated that the injuries could have been caused by a blunt weapon and in this view of the matter, no case of rape was made out against the appellant. 7. Mr. Jayender S. Chandail, the learned State counsel has, however, supported the judgment of the trial Court. 8. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record very carefully. 9. It is true that there is a delay of four days in lodging of the FIR. It is equally true that victims of rape and their guardians are hesitant to approach the police to lodge the report as they wish to avoid publicity of a crime which has huge physical and social implications, for the victim herself and her family. Moreover, it has come in the evidence of Kamla (PW-3) that they had waited for four days to avoid publicity but as, in the meanwhile, Vinods condition had deteriorated, they had decided to lodge the report with the police. The fact that Vinod was in a very serious condition at the time of her medical examination finds support from the evidence of Dr. Sarla Sethi (PW-1), who opined that there was a tear of the vagina upto the rectum and faecal matter and pus was present. It is, therefore, evident that the young girl had been in great agony when she had been finally brought to the doctor. 10. I find absolutely no reason to doubt the evidence of Kamla (PW-3) and Ganga Ram (PW-4). Kamla is the mother of the prosecutrix whereas Ganga Ram is her neighbour. Nothing has been brought out on record to show as to whey they would connive with the two Sarpanches to concoct a story. 11. It is true as contended by Mr. Sharma that Kanshi Ram has been acquitted on the same evidence. I have gone through the evidence and am prima facie of the opinion that even the acquittal of Kanshi Ram was in error but as the State has not filed any appeal against his acquittal, this Court is precluded from taking any action against him. The erroneous acquittal of Kanshi Ram, however, would not mean that appellant Kahna Ram is entitled to the same benefit. The appeal is accordingly dismissed.