HIRA LAL KALUNDIA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) 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 15-1-1998 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 16-1-98 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 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 prosecution 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 17-1-1998 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 fond 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 FIR and the endorsement made thereon.