{"id":39009,"date":"2009-01-16T00:00:00","date_gmt":"2009-01-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hiralal-kalundia-vs-state-of-jharkhand-on-16-january-2009"},"modified":"2016-08-28T11:11:02","modified_gmt":"2016-08-28T05:41:02","slug":"hiralal-kalundia-vs-state-of-jharkhand-on-16-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hiralal-kalundia-vs-state-of-jharkhand-on-16-january-2009","title":{"rendered":"Hiralal Kalundia vs State Of Jharkhand on 16 January, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Hiralal Kalundia vs State Of Jharkhand on 16 January, 2009<\/div>\n
                                  Cr. Appeal No.268 of 2001\n             Against the judgment of conviction and order of sentence dated\n             15.06.2001<\/pre>\n
 passed by the Sessions Judge, Singhbhum West in
\n             Sessions Trial No. 219 of 1998 arising out of Manjhari P.S. Case
\n             No. 2 of 1998 (G.R.No.30 of 1998).\n<\/p>\n
                                  ————\n<\/p>\n
             Hira Lal Kalundia.            ...   ...   ...    ...   ...Appellant\n                                  -Versus-\n             The State of Jharkhand. ...         ...   ...    ...   ...Respondent\n                                  ------------\n             For the Petitioner:           Mr. R.S.Mazumdar, Advocate.\n             For the State:                Mr. Tapas Roy, Advocate.\n                                  ------------\n             C.A.V. on 08.12.2008                :     Pronounced on 16 .01.2009\n                                  ------------\n                                  PRESENT\n             HON'BLE MR. JUSTICE DILIP KUMAR SINHA\n                                  ------------\nD.K.Sinha,J.                The sole appellant has preferred this appeal for setting aside\n<\/pre>\n
             the judgment of conviction recorded against him under Section 376 I.P.C.
\n             by the Sessions Judge, Singhbhum West, Chaibasa in Sessions Trial No.
\n             219 of 1998 arising out of Manjhari P.S. Case No. 2 of 1998 whereby he
\n             was sentenced to undergo rigorous imprisonment for a period of 7 years.\n<\/p>\n
             2.            The prosecution story in short was that the appellant Hira Lal
\n             Kalundia on 15.01.1998 at about 5.30 p.m. entered into the house of the
\n             prosecutrix Yashbanti Purty and after holding her neck dragged her in the
\n             ‘Handia’ godown by gagging her mouth where forcibly committed rape on
\n             her and escaped through window. On the alarm, there being raised by the
\n             victim after a short while, the witnesses assembled there including the
\n             elder brother of the appellant Jawaharlal Kalundia, who extended threat to
\n             the victim and others. The matter was reported to the village Manki found
\n             the allegation true in the preliminary enquiry. The police on the basis of
\n             the written report of the prosecutrix Yashbanti Purty duly forwarded by the
\n             said Manki registered Manjhari P.S. Case No.2 of 1998 on 16.01.98 for
\n             the alleged offence under Section 376 Indian Penal Code ( in short I.P.C.).
\n             The Investigating Officer submitted charge-sheet against the appellant
\n             under Section 376 I.P.C. Accordingly, the appellant was put on trial,
\n             convicted and sentenced as stated hereinabove.\n<\/p>\n
             3.            I find from the Trial Court record that altogether six
\n             witnesses were produced and examined on behalf of the prosecution
\n             including the prosecutrix P.W. 1 Yashbanti Purty who in her testimony
\n             categorically supported her earlier statement before the police with
\n             specific allegation against the appellant that he after entering into the
\n             house took her forcibly to the Handia godown by the side of the house and
\n             committed rape. She was subjected to the test of scrutiny in her cross-
\n             examination but nothing material could be elicited to discredit the veracity
\n             of her testimony. The only fact which could be gathered that at the
\n             relevant time of occurrence she was living with her Mausa and Mausi and
\n                            2<\/span><\/p>\n
that their house was situated by the side of a village path way and the
\nalleged place of occurrence said to be a ‘Handia’ godown was also in the
\nneighbour on the same side of path way. She identified her signature on
\nthe written report and also identified the appellant- as the ‘rapist’ in the
\ndock during her testimony. The prosecutrix denied the suggestion that she
\never had affairs with the appellant prior to the alleged occurrence and also
\nthat such affair was opposed by her Mausa and Mausi because of their
\nenmity with the elder brother of the appellant and for that a proceeding
\nunder Section 107 Code of Criminal Procedure was going on between
\nthem. She testified that the appellant escaped after jumping through the
\nwindow on the alarm raised by her and the witnesses arrived at the scene
\nafter about 5\/10 minutes of his escape. P.W. 2 Siwani Kalundia (Aunt of
\nthe prosecutrix) corroborated the allegation of rape against the appellant
\nin her testimony but she made substantial development by claiming to be
\nthe eye witness of the occurrence in the manner that when she arrived at
\nher home, she found the appellant committing rape on her niece
\n(prosecutrix) and that the appellant escaped at her sight from the window.
\nShe admitted that her niece narrated that the appellant committed rape
\nafter gagging her mouth. Yet, she testified by admitting the relationship
\nbetween the prosecutrix and the appellant. She affirmed having opposed
\ntogether with her husband their relationship and did not allow their
\nmarriage, but at the same time she denied the false implication of the
\nappellant. The prosecutrix was medically examined on 17.01.1998 by
\nP.W. 3 Dr. Neeru Jha who at the relevant time was posted as Civil
\nAssistant Surgeon at Sadar Hospital Chaibasa. The P.W. 3 on the basis
\nof the external examination as well as X’ray report assessed the age of
\nYashwanti Purty about 14\/15 years. She testified that no sign of rape was
\nfound on her body and her hymen was found ruptured. The Doctor
\nadmitted in the cross-examination that there could be various reasons for
\nthe rupture of the hymen of a girl. The other witnesses such as P.W. 4
\nTunu Kalundia, P.W. 5 Durjodhan Kalundia were declared hostile being
\nunfavourable to the prosecution and P.W. 6 was the formal witness who
\nproved the formal F.I.R. and the endorsement made thereon.\n<\/p>\n
4.            Learned Counsel for the appellant submitted that the
\nconviction of the appellant by the Trial Court is based upon the single
\nuncorroborated testimony of the prosecutrix P.W. 1 by ignoring the
\ndefence of the appellant of his false implication on account of previous
\nenmity between the Mausa of the prosecutrix in whose custody she was
\nliving and, the brother of the appellant, for that a proceeding under Section
\n107 Code of the Criminal Procedure was going on between them. The
\noccurrence as alleged took place on 15.01.1998 at about 5.30 p.m. but the
\nwritten report was presented before Manjhari Police Station on 16.01.1998
\n                            3<\/span><\/p>\n
at 15 hours without explaining the inordinate delay in such lodging of the
\nF.I.R. The prosecution was further silent as to why the F.I.R. was
\ntransmitted to the C.J.M. after three days of the lodging of the case and
\nsuch unexplained delay clearly indicates that the case was instituted after
\nconsultation and due deliberation and hence the false implication of the
\nappellant could not be ruled out. The Investigating Officer of the case
\nabstained from the witness box for the reasons best known to the
\nprosecution and therefore, his objective finding in relation to the alleged
\nplace of the occurrence said to be a ‘Handia’ godown and its surroundings
\nwhether accessible and open from all sides could not be brought on the
\nrecord hence the appellant was denied the opportunity to cross-examine
\nthe Investigating Officer as to what incriminating he could observe when
\nhe visited the place of occurrence. Similarly, the alleged entry and exit of
\nthe appellant was found in the objective finding in consonance with the
\nallegation made by the prosecutrix.\n<\/p>\n
5.           On the medical evidence, with reference to the statement of
\nP.W. 3 Dr. Neeru Jha, the learned Counsel pointed out that the secondary
\nsex characters of the prosecutrix were found visible with the developed
\nbreasts and the pubic hair. No scratch mark was found either on her body
\nor on the private part, though, there was allegation that the prosecutrix
\nwas dragged from the house to the ‘Handia’ godown by gagging her
\nmouth. Her hymen was found ruptured but without bleeding and
\ntenderness on her private parts. The doctor testified that Interoitus
\nadmitted two fingers and on the examination of her vaginal swab, no
\nspermatozoa either dead or alive was found. The witness came to
\nconclusion therefore, that no sign of rape was found and the age of the
\nvictim was assessed 14 to 15 years. The place of the occurrence which
\nwas the house of the uncle (Mausa) of the prosecutrix was surrounded by
\nthe neighbours but none of the independent witnesses has claimed having
\nseen the appellant running away from the house of the prosecutrix so as
\nto infer a circumstance against him. It was the January of winter at about
\n5.30 p.m. when the occurrence was alleged. The statement of P.W. 2 who
\nhappens to be the aunt (Mausi) of the prosecutrix is of great relevance.
\nThe prosecutrix was consistent that the witnesses arrived no sooner did
\nthe appellant escaped after committing rape on her. Yet, contrary to it,
\nP.W. 2 claimed to be the eye witness who testified that when she entered
\ninto her house she found the appellant who had been committing rape on
\nher niece and on alarm he escaped. She further admitted that there was
\naffairs between the prosecutrix and the appellant but she was opposed to
\ntheir association as also their marriage. In the backdrop of her statement
\nis accepted in totality, the possibility of consent sex cannot be ruled out
\nbut the fact remains that she was minor about 14\/15 years of age.\n<\/p>\n
                             4<\/span><\/p>\n
6.            Mr. Mazumdar the learned Counsel however urged no doubt
\nconviction of an accused can be recorded on the charge of Section 376
\nIndian Penal Code on the single testimony of the prosecutrix provided the
\nsame was reliable, acceptable and worthy of credence but in the instant
\ncase the situation is otherwise in view of the fact that they had prior affairs.
\nThe delay in lodging the F.I.R. as well as its transmission to the Court
\nwhich took about 5 days could not be explained. Similarly, the
\nInvestigating Officer of the case abstained from the witness box giving
\nroom for adverse inference to the prosecution case. Even in the medical
\nevidence, no sign of rape was found, therefore, the prosecution miserably
\nfailed to establish the charge against the appellant beyond the shadow of
\nall reasonable doubts.\n<\/p>\n
7.            The offence ‘rape’ is defined in Section 375 of the I.P.C.
\nwhich speaks;\n<\/p>\n
              ”      A man is said to commit “rape” who, except in the
\n              case hereinafter excepted, has sexual intercourse with a
\n              woman under circumstances falling under any of the six
\n              following descriptions:-\n<\/p>\n
                     Sixthly- with or without her consent when she is under
\n              sixteen years of age.”\n<\/p>\n
8.            The definition of rape clearly indicates that if the prosecutrix
\nis below 16 years of age, her consent or no consent for sex has got no
\nrelevance and therefore, even if assumed to be the consent sex, it attracts
\nthe offence under Section 376 I.P.C.\n<\/p>\n
9.             The Apex Court in Sudhansu Sekhar Sahoo Vrs. State of
\nOrissa, reported in A.I.R. 2003 Supreme Court 2136 observed:-\n<\/p>\n
              ”      It is true that the evidence of the prosecutrix in a
\n              rape case is to be given due weight. The sexual violence
\n              is a dehumanising act and it is an unlawful
\n              encroachment into the right to privacy and sanctity of
\n              woman. The Courts also should be strict and vigilant to
\n              protect the society from such evils. It is in the interest of
\n              the society that serious crimes like rape should be
\n              effectively investigated. It is equally important that there
\n              must be fairness to all sides. In a criminal case, the
\n              Court has to consider the trangulation of interests. It
\n              involves taking into account the position of the accused,
\n              the victim and his or her family and the public. The
\n              purpose of criminal law is to permit everyone to go
\n              about their daily lives without fear of harm to person or
\n              property.”<\/p><\/blockquote>\n
\n\n              The Apex Court further held,\n              \"           We must bear in mind human, psychology\n              and behavioural probability when assessing the\n<\/pre>\n
              testimonial potency of the victim’s version. What girl
\n              would foist a rape charge on a stranger unless a
\n              remarkable set of facts or clearest motives were made
\n              out? The inherent bashfulness, the innocent naivete and
\n                            5<\/span><\/p>\n
              the feminine tendency to conceal the outrage of
\n              masculine sexual aggression are factors which are
\n              relevant to improbabilise the hypothesis of false
\n              implication. The injury on the person of the victim,
\n              especially her private parts, has corroborative value.”\n<\/p><\/blockquote>\n
10.           In the instant case, I find that soon after the alleged
\noccurrence the matter was informed to the village Manki on the arrival of
\nthe uncle (Mausa) of the prosecutrix. Thereafter the case was instituted on
\nthe subsequent day on the written report of the prosecutrix duly forwarded
\nby the Manki and in that manner the delay has been explained. The fact
\ncannot be lost sight of that the alleged place of occurrence as situated in
\nthe District of Singhbhum West, Chaibasa is a backward area where the
\nManki and Munda system is still prevailing who used to enquire into the
\nallegation preliminary and even tried to settle the issue but in the instant
\ncase keeping in view the gravity of the allegation, the matter was reported
\nto the police on forwarding of the Manki and after investigation, charge-
\nsheet was submitted against the appellant. Admittedly, the village chieftain
\n(Manki) was not examined.\n<\/p>\n
11.           I further find that the occurrence as alleged took place on
\n15.01.1998 and the case was instituted on 16.01.1998 but the prosecution
\nwas produced and medically examined by the P.W. 3 Dr. Neeru Jha on
\n17.01.1998 at the Sadar Hospital, Chaibasa at about 2.30 p.m.
\napproximately about after 45 hours of the occurrence. It was not the
\nallegation that the appellant had demonstrated violence in commission of
\nrape causing injuries to the prosecutrix rather, it was alleged that after
\ngagging her mouth rape was committed and therefore, it was not unusual
\nif injury could not be found either on her private parts or any other part of
\nher body. The prosecutrix being the rustic girl, the probability of having
\ntaken bath after the occurrence of rape cannot be ruled out and such
\nattending circumstances could safely ruled out the presence of
\nspermatozoa dead or alive in the vaginal swab of the prosecutrix which
\nwas examined under microscope. Even otherwise also the spermatozoa
\nbeing washed away with the force of urine within 45 hours cannot be ruled
\nout.\n<\/p>\n
12.           Apart of the testimony of the prosecutrix the evidence of her
\naunt P.W. 2 Shiwani Kalundia is of great relevance on two counts viz. She
\nwitnessed the appellant committing rape on her niece prosecutrix and that
\nthe prosecutrix had affairs with the appellant since prior to the alleged
\nrape. It is equally remarkable and I have noticed that the prosecutrix
\ntestified in unequivocal terms that on her alarm the witnesses arrived after
\nthe appellant jumped and escaped but she did not whisper about the
\nappearance of her aunt P.W. 2 at the scene either at the time of
\ncommission of rape or at the time of arrival of the witnesses including the
\n                             6<\/span><\/p>\n
elder brother of the appellant. But the fact remains that the hymen of the
\nprosecutrix was found ruptured when examined after 45 hours of the
\nalleged offence so other corroborative symptom of recent sexual assault
\ncould not be found on her. In the alternative if the fact that the P.W. 2
\nShiwani Kalundia was not the eye witness of the occurrence, her
\ntestimony that the prosecutrix had affairs with the appellant is a relevant
\nfact and her statement stood to the test of scrutiny under cross-
\nexamination and its veracity remained unimpeachable. Therefore, the
\nfacts emerge from the statements of P.W. 1 Yashwanti Purti and her aunt
\nP.W. 2 Shiwani Kalundia that the appellant committed sexual intercourse
\nwith a minor girl aged about 14\/15 years which comes within the purview
\nof ‘sixthly’ within the definition of rape under Section 375 I.P.C. which is an
\noffence under Section 376 Indian Penal Code.\n<\/p>\n
              I find that the judgment of conviction recorded under Section
\n376 I.P.C. against the appellant Hiralal Kalundia and order of sentence
\npassed by the Sessions Judge, Singhbhum West, Chaibasa in Sessions
\nTrial No.219 of 1998 is well discussed and no grounds could be shown at
\nthe argument stage to call for interference in the judgment and order
\naforesaid. In the result, I find no merit in the appeal hence it is dismissed.<\/p>\n
\n\n\n\n\n                                                         [D.K.Sinha,J.]\nJharkhand High Court, Ranchi\nDated the     16.01.2009\nP.K.S.\/A.F.R.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Hiralal Kalundia vs State Of Jharkhand on 16 January, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-39009","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nHiralal Kalundia vs State Of Jharkhand on 16 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hiralal-kalundia-vs-state-of-jharkhand-on-16-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hiralal Kalundia vs State Of Jharkhand on 16 January, 2009 - 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