Hira Lal Kalundia vs The State of Jharkhand

Dilip Kumar Sinha, J.—The sole appellant has preferred this appeal for setting aside the judgment of conviction recorded against him u/s

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.

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 u/s 376 Indian Penal Code ( in short I.P.C.).

The Investigating Officer submitted charge-sheet against the appellant u/s 376 I.P.C. Accordingly, the appellant was put on trial, convicted and

sentenced as stated hereinabove.

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 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 u/s 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.

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 u/s 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 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.

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.

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.

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.

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 u/s 376 I.P.C.

The Apex Court in AIR 2003 SC 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 the 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.

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.

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.

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 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 u/s 375 I.P.C. which is an offence u/s 376 Indian Penal Code.

I find that the judgment of conviction recorded u/s 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.