Cr. Appeal No.268 of 2001
Against the judgment of conviction and order of sentence dated
15.06.2001
passed by the Sessions Judge, Singhbhum West in
Sessions Trial No. 219 of 1998 arising out of Manjhari P.S. Case
No. 2 of 1998 (G.R.No.30 of 1998).
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Hira Lal Kalundia. ... ... ... ... ...Appellant
-Versus-
The State of Jharkhand. ... ... ... ... ...Respondent
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For the Petitioner: Mr. R.S.Mazumdar, Advocate.
For the State: Mr. Tapas Roy, Advocate.
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C.A.V. on 08.12.2008 : Pronounced on 16 .01.2009
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PRESENT
HON'BLE MR. JUSTICE DILIP KUMAR SINHA
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D.K.Sinha,J. The sole appellant has preferred this appeal for setting aside
the judgment of conviction recorded against him under Section 376 I.P.C.
by the Sessions Judge, Singhbhum West, Chaibasa in Sessions Trial No.
219 of 1998 arising out of Manjhari P.S. Case No. 2 of 1998 whereby he
was sentenced to undergo rigorous imprisonment for a period of 7 years.
2. The prosecution story in short was that the appellant Hira Lal
Kalundia on 15.01.1998 at about 5.30 p.m. entered into the house of the
prosecutrix Yashbanti Purty and after holding her neck dragged her in the
‘Handia’ godown by gagging her mouth where forcibly committed rape on
her and escaped through window. On the alarm, there being raised by the
victim after a short while, the witnesses assembled there including the
elder brother of the appellant Jawaharlal Kalundia, who extended threat to
the victim and others. The matter was reported to the village Manki found
the allegation true in the preliminary enquiry. The police on the basis of
the written report of the prosecutrix Yashbanti Purty duly forwarded by the
said Manki registered Manjhari P.S. Case No.2 of 1998 on 16.01.98 for
the alleged offence under Section 376 Indian Penal Code ( in short I.P.C.).
The Investigating Officer submitted charge-sheet against the appellant
under Section 376 I.P.C. Accordingly, the appellant was put on trial,
convicted and sentenced as stated hereinabove.
3. I find from the Trial Court record that altogether six
witnesses were produced and examined on behalf of the prosecution
including the prosecutrix P.W. 1 Yashbanti Purty who in her testimony
categorically supported her earlier statement before the police with
specific allegation against the appellant that he after entering into the
house took her forcibly to the Handia godown by the side of the house and
committed rape. She was subjected to the test of scrutiny in her cross-
examination but nothing material could be elicited to discredit the veracity
of her testimony. The only fact which could be gathered that at the
relevant time of occurrence she was living with her Mausa and Mausi and
2
that their house was situated by the side of a village path way and the
alleged place of occurrence said to be a ‘Handia’ godown was also in the
neighbour on the same side of path way. She identified her signature on
the written report and also identified the appellant- as the ‘rapist’ in the
dock during her testimony. The prosecutrix denied the suggestion that she
ever had affairs with the appellant prior to the alleged occurrence and also
that such affair was opposed by her Mausa and Mausi because of their
enmity with the elder brother of the appellant and for that a proceeding
under Section 107 Code of Criminal Procedure was going on between
them. She testified that the appellant escaped after jumping through the
window on the alarm raised by her and the witnesses arrived at the scene
after about 5/10 minutes of his escape. P.W. 2 Siwani Kalundia (Aunt of
the prosecutrix) corroborated the allegation of rape against the appellant
in her testimony but she made substantial development by claiming to be
the eye witness of the occurrence in the manner that when she arrived at
her home, she found the appellant committing rape on her niece
(prosecutrix) and that the appellant escaped at her sight from the window.
She admitted that her niece narrated that the appellant committed rape
after gagging her mouth. Yet, she testified by admitting the relationship
between the prosecutrix and the appellant. She affirmed having opposed
together with her husband their relationship and did not allow their
marriage, but at the same time she denied the false implication of the
appellant. The prosecutrix was medically examined on 17.01.1998 by
P.W. 3 Dr. Neeru Jha who at the relevant time was posted as Civil
Assistant Surgeon at Sadar Hospital Chaibasa. The P.W. 3 on the basis
of the external examination as well as X’ray report assessed the age of
Yashwanti Purty about 14/15 years. She testified that no sign of rape was
found on her body and her hymen was found ruptured. The Doctor
admitted in the cross-examination that there could be various reasons for
the rupture of the hymen of a girl. The other witnesses such as P.W. 4
Tunu Kalundia, P.W. 5 Durjodhan Kalundia were declared hostile being
unfavourable to the prosecution and P.W. 6 was the formal witness who
proved the formal F.I.R. and the endorsement made thereon.
4. Learned Counsel for the appellant submitted that the
conviction of the appellant by the Trial Court is based upon the single
uncorroborated testimony of the prosecutrix P.W. 1 by ignoring the
defence of the appellant of his false implication on account of previous
enmity between the Mausa of the prosecutrix in whose custody she was
living and, the brother of the appellant, for that a proceeding under Section
107 Code of the Criminal Procedure was going on between them. The
occurrence as alleged took place on 15.01.1998 at about 5.30 p.m. but the
written report was presented before Manjhari Police Station on 16.01.1998
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at 15 hours without explaining the inordinate delay in such lodging of the
F.I.R. The prosecution was further silent as to why the F.I.R. was
transmitted to the C.J.M. after three days of the lodging of the case and
such unexplained delay clearly indicates that the case was instituted after
consultation and due deliberation and hence the false implication of the
appellant could not be ruled out. The Investigating Officer of the case
abstained from the witness box for the reasons best known to the
prosecution and therefore, his objective finding in relation to the alleged
place of the occurrence said to be a ‘Handia’ godown and its surroundings
whether accessible and open from all sides could not be brought on the
record hence the appellant was denied the opportunity to cross-examine
the Investigating Officer as to what incriminating he could observe when
he visited the place of occurrence. Similarly, the alleged entry and exit of
the appellant was found in the objective finding in consonance with the
allegation made by the prosecutrix.
5. On the medical evidence, with reference to the statement of
P.W. 3 Dr. Neeru Jha, the learned Counsel pointed out that the secondary
sex characters of the prosecutrix were found visible with the developed
breasts and the pubic hair. No scratch mark was found either on her body
or on the private part, though, there was allegation that the prosecutrix
was dragged from the house to the ‘Handia’ godown by gagging her
mouth. Her hymen was found ruptured but without bleeding and
tenderness on her private parts. The doctor testified that Interoitus
admitted two fingers and on the examination of her vaginal swab, no
spermatozoa either dead or alive was found. The witness came to
conclusion therefore, that no sign of rape was found and the age of the
victim was assessed 14 to 15 years. The place of the occurrence which
was the house of the uncle (Mausa) of the prosecutrix was surrounded by
the neighbours but none of the independent witnesses has claimed having
seen the appellant running away from the house of the prosecutrix so as
to infer a circumstance against him. It was the January of winter at about
5.30 p.m. when the occurrence was alleged. The statement of P.W. 2 who
happens to be the aunt (Mausi) of the prosecutrix is of great relevance.
The prosecutrix was consistent that the witnesses arrived no sooner did
the appellant escaped after committing rape on her. Yet, contrary to it,
P.W. 2 claimed to be the eye witness who testified that when she entered
into her house she found the appellant who had been committing rape on
her niece and on alarm he escaped. She further admitted that there was
affairs between the prosecutrix and the appellant but she was opposed to
their association as also their marriage. In the backdrop of her statement
is accepted in totality, the possibility of consent sex cannot be ruled out
but the fact remains that she was minor about 14/15 years of age.
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6. Mr. Mazumdar the learned Counsel however urged no doubt
conviction of an accused can be recorded on the charge of Section 376
Indian Penal Code on the single testimony of the prosecutrix provided the
same was reliable, acceptable and worthy of credence but in the instant
case the situation is otherwise in view of the fact that they had prior affairs.
The delay in lodging the F.I.R. as well as its transmission to the Court
which took about 5 days could not be explained. Similarly, the
Investigating Officer of the case abstained from the witness box giving
room for adverse inference to the prosecution case. Even in the medical
evidence, no sign of rape was found, therefore, the prosecution miserably
failed to establish the charge against the appellant beyond the shadow of
all reasonable doubts.
7. The offence ‘rape’ is defined in Section 375 of the I.P.C.
which speaks;
” A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions:-
Sixthly- with or without her consent when she is under
sixteen years of age.”
8. The definition of rape clearly indicates that if the prosecutrix
is below 16 years of age, her consent or no consent for sex has got no
relevance and therefore, even if assumed to be the consent sex, it attracts
the offence under Section 376 I.P.C.
9. The Apex Court in Sudhansu Sekhar Sahoo Vrs. State of
Orissa, reported in A.I.R. 2003 Supreme Court 2136 observed:-
” It is true that the evidence of the prosecutrix in a
rape case is to be given due weight. The sexual violence
is a dehumanising act and it is an unlawful
encroachment into the right to privacy and sanctity of
woman. The Courts also should be strict and vigilant to
protect the society from such evils. It is in the interest of
the society that serious crimes like rape should be
effectively investigated. It is equally important that there
must be fairness to all sides. In a criminal case, the
Court has to consider the trangulation of interests. It
involves taking into account the position of the accused,
the victim and his or her family and the public. The
purpose of criminal law is to permit everyone to go
about their daily lives without fear of harm to person or
property.”
The Apex Court further held,
" We must bear in mind human, psychology
and behavioural probability when assessing the
testimonial potency of the victim’s version. What girl
would foist a rape charge on a stranger unless a
remarkable set of facts or clearest motives were made
out? The inherent bashfulness, the innocent naivete and
5the feminine tendency to conceal the outrage of
masculine sexual aggression are factors which are
relevant to improbabilise the hypothesis of false
implication. The injury on the person of the victim,
especially her private parts, has corroborative value.”
10. In the instant case, I find that soon after the alleged
occurrence the matter was informed to the village Manki on the arrival of
the uncle (Mausa) of the prosecutrix. Thereafter the case was instituted on
the subsequent day on the written report of the prosecutrix duly forwarded
by the Manki and in that manner the delay has been explained. The fact
cannot be lost sight of that the alleged place of occurrence as situated in
the District of Singhbhum West, Chaibasa is a backward area where the
Manki and Munda system is still prevailing who used to enquire into the
allegation preliminary and even tried to settle the issue but in the instant
case keeping in view the gravity of the allegation, the matter was reported
to the police on forwarding of the Manki and after investigation, charge-
sheet was submitted against the appellant. Admittedly, the village chieftain
(Manki) was not examined.
11. I further find that the occurrence as alleged took place on
15.01.1998 and the case was instituted on 16.01.1998 but the prosecution
was produced and medically examined by the P.W. 3 Dr. Neeru Jha on
17.01.1998 at the Sadar Hospital, Chaibasa at about 2.30 p.m.
approximately about after 45 hours of the occurrence. It was not the
allegation that the appellant had demonstrated violence in commission of
rape causing injuries to the prosecutrix rather, it was alleged that after
gagging her mouth rape was committed and therefore, it was not unusual
if injury could not be found either on her private parts or any other part of
her body. The prosecutrix being the rustic girl, the probability of having
taken bath after the occurrence of rape cannot be ruled out and such
attending circumstances could safely ruled out the presence of
spermatozoa dead or alive in the vaginal swab of the prosecutrix which
was examined under microscope. Even otherwise also the spermatozoa
being washed away with the force of urine within 45 hours cannot be ruled
out.
12. Apart of the testimony of the prosecutrix the evidence of her
aunt P.W. 2 Shiwani Kalundia is of great relevance on two counts viz. She
witnessed the appellant committing rape on her niece prosecutrix and that
the prosecutrix had affairs with the appellant since prior to the alleged
rape. It is equally remarkable and I have noticed that the prosecutrix
testified in unequivocal terms that on her alarm the witnesses arrived after
the appellant jumped and escaped but she did not whisper about the
appearance of her aunt P.W. 2 at the scene either at the time of
commission of rape or at the time of arrival of the witnesses including the
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elder brother of the appellant. But the fact remains that the hymen of the
prosecutrix was found ruptured when examined after 45 hours of the
alleged offence so other corroborative symptom of recent sexual assault
could not be found on her. In the alternative if the fact that the P.W. 2
Shiwani Kalundia was not the eye witness of the occurrence, her
testimony that the prosecutrix had affairs with the appellant is a relevant
fact and her statement stood to the test of scrutiny under cross-
examination and its veracity remained unimpeachable. Therefore, the
facts emerge from the statements of P.W. 1 Yashwanti Purti and her aunt
P.W. 2 Shiwani Kalundia that the appellant committed sexual intercourse
with a minor girl aged about 14/15 years which comes within the purview
of ‘sixthly’ within the definition of rape under Section 375 I.P.C. which is an
offence under Section 376 Indian Penal Code.
I find that the judgment of conviction recorded under Section
376 I.P.C. against the appellant Hiralal Kalundia and order of sentence
passed by the Sessions Judge, Singhbhum West, Chaibasa in Sessions
Trial No.219 of 1998 is well discussed and no grounds could be shown at
the argument stage to call for interference in the judgment and order
aforesaid. In the result, I find no merit in the appeal hence it is dismissed.
[D.K.Sinha,J.]
Jharkhand High Court, Ranchi
Dated the 16.01.2009
P.K.S./A.F.R.