Rajesh Khalkho vs The State of Jharkhand

D.K. Sinha, J.—Instant criminal appeal is directed against the judgment of conviction of the appellant u/s 376 of the Indian Penal Code recorded by Sri R.P. Srivastava, 4th Additional Judicial Commissioner, Ranchi in S.T. No. 28/96, arising out of Lalpur P.S. Case No. 2/95, corresponding to G.R. No. 4/95 by which he was sentenced to undergo rigorous imprisonment for five years.

Prosecution story in short was that the appellant Rajesh Khalkho had visited the house of the prosecutrix Shanti Minz in the evening of 1st January, 1995 at about 7:00 p.m. and asked meal from her. Considering his request, the prosecutrix served meal to him and after he had finished his meal, the appellant was asked to go back to his home but the appellant with the mala fide intention expressed his desire to sleep in her home, to which she guided him to go and sleep in the Kumbha made of straw with her son and brothers. Prosecutrix further narrated that she then retired to her bed after closing the door and slept there with her minor children. At about 12''0 clock she woke up when the appellant entered into her room by forcibly opening the door. The appellant immediately overpowered her by climbing on her body and also thrashing her by fist blows and cautioned that she would be killed in case she would raise alarm. He put out the lamp, tore her blouse and pushed her undergarments upward and committed rape on her. Her minor child, who was sleeping by her side, woke up and his screaming caused commotion as a result whereof the witnesses entered into her room and found the prosecutrix partially naked. They tried to overpower the appellant at the door itself but he escaped. The statement of the prosecutrix was recorded at the police station on the subsequent day morning. The Investigating Officer after investigation of the case submitted charge-sheet against the appellant for the offence u/s 376, Indian Penal Code. Consequently, charge was framed under such Section and the appellant was put on trial.

Learned Sr. Counsel Mr. P.P.N. Roy appearing on behalf of the appellant submitted by placing the defence of the appellant that it was a case of consent sex between the parties and both were major at the relevant time. The appellant had easy access to the house of the prosecutrix and the offer made by the appellant expressing his desire to stay in the night was easily accepted by the prosecutrix who suggested a suitable place for his stay in the night. After getting opportunity, the appellant opened the door, entered inside her room and while both were indulged in sex, her minor child woke up and started crying, as a result of which the witnesses arrived but the appellant escaped. At no point of time the prosecutrix had raised alarm or put any kind of resistance if at all, according to the prosecution case, she was not a consenting party.

Advancing his argument, Mr. Roy pointed out that the prosecutrix was quite older, married lady having several children, whereas the appellant was only 25 years old.

It would be relevant to mention, Mr. Roy added, that no injury whatsoever was found either on her face or on any part of her body including on her private part when the prosecutrix was medically examined in the backdrop of the allegation that the appellant had inflicted fists blows on her face and chest. She alleged that her blouse was torn and mouth was gagged but neither the torn blouse nor the cloth, which was used in gagging her mouth, could be produced to substantiate the charge u/s 376 of the Indian Penal Code against the appellant. The entire case was cooked up by the prosecutrix to save her skin from humiliation from husband and brothers. Admittedly, both were known to each other, living in the same village and the learned Trial Court failed to consider the circumstances of the case and alleged participation of the appellant therein, which could not have been possible without the consent of the prosecutrix. It was stated that several witnesses had arrived at the scene upon hearing the crying and commotion of the child but not on the alarm of the prosecutrix and the prosecution failed to satisfy as to what prevented the prosecutrix from raising alarm when all her relatives were sleeping around her room and some of them in the Kumbha. None of the witnesses claimed having seen the appellant in the compromising position with the prosecutrix. He was not even initially apprehended from the room of the prosecutrix rather from outside, as such it could not be established beyond doubt that he had committed rape upon the prosecutrix. Mr. Roy submitted that the prosecutrix was examined by P.W.-2 Dr. Rita Lal but no injury either on her body or on her private parts could be found contrary to the prosecution version of assault on her face and chest. The trial Court disbelieved the medical version that no sign of rape was found yet considering the fact that the victim was mother of five children, and he was convicted for the charge u/s 376, Indian Penal Code in mechanical manner and without application of judicial mind.

On the other hand, Mr. Md. Hatim, the learned A.P.P. opposed the contention and submitted that it was a clear case of rape upon the prosecutrix, which could be proved against the appellant, who by committing breach of trust, entered into the room of the prosecutrix in the dead of night and after putting out the lamp forcibly committed rape by tearing her blouse and raising her garments. Judgment of conviction and order of sentence recorded against the appellant is well discussed which did not call for interference.

Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties and perusal of the record, I find that altogether six witnesses were produced and examined on behalf of the prosecution including the prosecutrix (P.W.-6) Shanti Minz and P.W.-2 Dr. Rita Lal. Investigating Officer of the case could not be examined for the reasons best known to the prosecution.

Prosecution had proved the injury report of the victim (Ext. 1) and signature of the prosecutrix on her statement in the F.I.R. (Ext. 2).

P.W.-1 Ram Nath Swansi narrated that in the night of 1/2.1.1995 he had taken meal with the appellant Rajesh Khalkho in his house and thereafter, he along with his younger brother Jungle and the appellant Rajesh Khalkho slept in the Kumbha, his friends were sleeping in one room, whereas his sister Shanti Minz was sleeping in another room along with her minor child. At about 1''O Clock in the night the appellant entered into the room of his sister Shanti Minz by forcibly opening the door and committed rape upon her. On alarm raised by her, he along with other witnesses went there and tried to catch hold Rajesh Khalkho but he escaped after removing his body. In the cross-examination, the witness admitted that he had returned to his home; at about 6:00 p.m. after vending snacks in the market and the appellant Rajesh Khalkho had come at about 8:00 p.m. while they were taking their meals. He demanded food from his sister Shanti Minz and thereafter, he went to Kumbha. He admitted in the cross-examination that he woke up on the alarm there being raised by his sister and then immediately rushed to her room along with his brother followed by his father. She was there in the petticoat and blouse and by that time, Rajesh Khalkho escaped from the room but before that he was caught hold by the witnesses, however, he removed his body and ran away. The witness admitted having not seen the occurrence of rape rather the occurrence was narrated by his sister.

P.W.-2 Dr. Rita Lal had examined the victim Shanti Minz on 2.1.1995 at Sadar Hospital, Ranchi but she did not find any sign of rape. The trial Court explained that such evidence could not be possible only because of the fact that the victim was a married woman having five children.

P.W.-3 Amit Minz was the son of the prosecutrix whose age was assessed about 14 years. He testified that the occurrence took place in the night of 1.1.1995 at about 11/12''O Clock while he was sleeping in the room of his maternal grandfather and his mother Shanti Minz was sleeping in the another room. Witness further added that the appellant Rajesh Khalkho came to the house in the evening and demanded food and after taking his meal, he returned back to his house. He woke up in the midnight on commotion of his younger brother who was sleeping with their mother and went inside the room of his mother where he found the appellant Rajesh Khalkho climbing over and ravishing his mother. He pulled out the appellant whose pant was open and brought him outside of the room but Rajesh Khalkho escaped in spite of attempt made by his maternal grandfather and grandmother to catch holdjhim. In the cross-examination, he expressed his ignorance as to where Rajesh Khalkho was sleeping in the night of occurrence in the house of his maternal grandfather. The appellant was not known to him prior to the occurrence but he admitted that he belonged to Karamtoli. The witness further admitted that he had narrated before the police that he was the person who pulled out the appellant while he was indulged in ravishing his mother and brought him outside the room from where he escaped. I find that the defence failed to put any question by drawing his attention towards his earlier statement before the police u/s 161, Code of Criminal Procedure contrary to his statement made before the trial Court as such, it can safely be held that the credibility of his testimony could not be shaken.

P.W.-4 Rupan Mali was the father of the victim Shanti Minz, who admitted that in the night of occurrence he was sleeping in a room with his grandson Amit Minz, whereas his daughter Shanti Minz was sleeping in another room. He deposed that Amit Minz pulled out Rajesh Khalkho from the room of his daughter Shanti Minz. He tried to catch hold him but he escaped after thrashing him. In the cross-examination, the witness testified that his daughter was sleeping in the adjacent room. Rajesh Khalkho was known to him from before and he had taken his food in his house at about 6/7''0 Clock in the night. The witness admitted having accompanied his victim daughter to the police station where her statement was recorded. He was cross-examined at length but stood to the test.

P.W.-5 Mona Swansi was declared hostile by the prosecution however, nothing could be elicited from his cross-examination to discredit the prosecution case.

P.W.-6 Shanti Minz categorically supported the prosecution case before the trial Court by giving a detailed description of the manner of occurrence and the complicity of the appellant Rajesh Khalkho therein. She testified that the appellant demanded food in the evening by addressing her sister(didi). After finishing his food Rajesh Khalkho expressed his desire to sleep in the house but she suggested him to go and sleep in Kumbha (hut). Thereafter, she retired to her bed with her small child by closing the door of the room from inside. At about 12''0 Clock in the night of 1.1.1995 Rajesh Khalkho entered into her room by heavily pushing the door and she woke up on the sound created by such pushing of the door and she identified him. Rajesh Khalkho immediately put out the lamp and started strangulating her neck by extending threat that in case of raising alarm she would be killed. He even blew fists on her chest, tore her blouse, removed her undergarments upward and committed rape. In the said process, she pinched her nails in the body of her minor child, aged about four years, sleeping by her side as a result of which her son started crying and on his alarm her elder son immediately entered into her room one pulled out Rajesh Khalkho from her body. By that time, her father and mother had also arrived who caught hold Rajesh Khalkho but he escaped by thrashing them. She went to the police station on 2.1.1995 where her statement was recorded and she put her signature in English (Ext. 2). Rajesh Khalkho was known to her from before for the reason that she had been going to her place of working on the way situated opposite his house and that he had never visited her house prior to the occurrence. She admitted having not refused him when demanded food by addressing her as sister. She was cross-examined at length on several issues including on the factum of rape and identification of the appellant Rajesh Khalkho but nothing material could be elicited to discredit her testimony. She admitted that she had delivered her semen stained petticoat and torn blouse to the police and her vaginal swab was taken after substantial time of the occurrence for test. She denied the suggestion that she was brought to the jail for identification of the culprit and further denied having identified the appellant for the first time there in the jail.

The trend of the defence of the appellant could be evident from the suggestion made to the prosecutrix that the appellant was falsely implicated in this case only because he refused to embrace the Christianity which she tried to impress upon him. The appellant was examined and he was confronted with the relevant materials which could be collected in course of the evidence of the prosecution witnesses but he denied his guilt and took the plea of false implication in his statement recorded u/s 313, Code of Criminal Procedure. He explained further that he did not know ever any Shanti Minz. I further find that though the appellant was convicted u/s 376, Indian Penal Code by the trial Court but was sentenced to undergo rigorous imprisonment only for a period of five years below the limitation of seven years as prescribed for the said offence and no explanation has been given or the reasons has been recorded for giving such concession to the appellant. The prosecution did not point out as to whether any appeal has been preferred by the State for the enhancement of the sentence.

Be that as it may, I find that the prosecution could be able to prove the charge u/s 376, Indian Penal Code against the appellant that he committed rape on Shanti Minz in the night of 1st January, 1995 in her room and without her consent. The learned Sr. Counsel for the appellant had raised the core issue that it was a consent sex but I find from the statement of the appellant recorded u/s 313, Code of Criminal Procedure that (he had not ever come across Shanti Minz. The learned Sr. Counsel for the appellant failed to show any ground to call for interference in the judgment of conviction and order of sentence recorded against the appellant. In the result, upholdng the conviction and sentence of the appellant in S.T. No. 28/96, arising out of Lalpur P.S. Case No. 2/95 this appeal is dismissed. Let process be issued by the trial Court for remanding the appellant to serve out the sentence in the judicial custody as his bail stands vacated.