KALI DAS vs STATE OF JHARKHAND
- Court
- Jharkhand High Court
2026:JHHC:32756
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 667 of 2009
[ Against the Judgment of conviction dated 15.05.2009 and Order of
sentence dated 16.05.2009 passed by learned Additional Sessions
Judge, F.T.C.-II, Dhanbad, in Sessions Trial No. 177 of 2004 ]
Kali Das, son of Charku Das, Resident of Village –
Phulwar, P.S. – Katras, District – Dhanbad.
Appellant
… …
Versus
The State of Jharkhand … … Respondent
…..
For the Appellant : Mr. Lukesh Kumar, Advocate
For the Respondent : Mr. Fahad Allam, A.P.P.
For the Informant : Mr. Sidharth Sudhanshu, Adv.
…..
P R E S E N T
HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 16.09.2026 Pronounced on 06.11.2026
1. Heard learned counsel for the parties.
The present criminal appeal is directed against the
2.
judgment of conviction dated 15.05.2009 and order of
sentence dated 16.05.2009 passed by learned
Additional Sessions Judge, F.T.C.-II, Dhanbad in
Sessions Trial No. 177 of 2004, whereby and
whereunder, the appellant has been held guilty for the
offence under Section 366 of the I.P.C. and directed to
undergo R.I. of 5 years along with fine of Rs. 2000/-
with default stipulation.
FACTUAL MATRIX
3. The factual matrix giving rise to this appeal is that on
08.12.1997, the informant along with his wife had
gone to his sasural and he returned to his own house,
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leaving his family. It is further alleged that on
10.12.1997, informant’s son-in-law Subhash Dhobi
and eldest daughter Nupur Dhobi informed that in the
night of 09.10.1997, informant’s minor daughter,
aged about 15 years went away with Kali Das. The
informant enquired at the house of Kali Das, then
came to know that he has gone to fetch Kulti Barakar
mela along with his daughter. The family members of
Kali Das also assured that when his daughter will
return, they will send back to her home. Therefore,
informant immediately did not institute any case.
Later on, informant came to know that his daughter
has been taken away elsewhere by Kali Das, then he
lodged a written report before Katras Police Station.
Accordingly, F.I.R. being Katras P.S. Case No. 345 of
1997 was registered for the offence under Section 363
and 366(A) of the I.P.C.
4. In course of investigation, victim girl was recovered.
Her statement was also got recorded under Section
164 Cr.P.C. and she was medically examined. Finding
sufficient evidence against the accused, the I.O. has
submitted charge sheet for the offence under Sections
363 / 366(A) of I.P.C. The case was committed to the
court of Sessions, where S.T. No. 177 of 2004 was
registered. The trial court has framed charge under
Sections 363 and 366 (A) of the I.P.C. against the
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accused, to which, he pleaded not guilty and claimed
to be tried.
5. In course of trial, altogether 08 witnesses were
examined by the prosecution. Apart from oral
testimony of witnesses, following documentary
evidence were adduced by the prosecution :-
Exhibit-1 : Formal F.I.R.
Exhibit-2 : Signature of informant on written report.
Exhibit-3 : Statement of victim recorded under
Section 164 Cr.P.C.
6. The case of defence is denial from occurrence and
false implication and plea of innocence. On behalf of
defence only one witness has been examined.
However, no documentary evidence has been adduced
by the defence.
The learned trial court, after evaluating the evidence
7.
do not find ingredients of offence under Sections 363
and 366A of the I.P.C. but on the basis of evidence of
victim girl, recorded the findings of guilt for the
offence under Section 366 of I.P.C. against the
appellant and convicted and sentenced him
thereunder, as stated above, which has been assailed
in this appeal.
8. Learned counsel for the appellant has vehemently
argued that most of the witnesses including the
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victim, who has been examined as P.W.-8, have
admitted that the victim was major, aged about 20
years on the date of occurrence and she voluntarily
went with the appellant and solemnized marriage with
him and started living as husband and wife. Later on,
under pressure of her parents, she resiled from her
earlier version, as stated in Section 164 Cr.P.C. and
contested the case against the appellant, due to
which, the appellant has been convicted in this case.
There are material exaggerations and improvement in
the testimony of the victim girl (P.W.-8), which
demolishes her veracity. Other witnesses are not eye-
witness of the occurrence. The learned trial court
without taking into consideration that he has already
acquitted the appellant for the offence under Section
363 / 366A of I.P.C. finding the victim girl to be major
one, but without any ingredients proved by
prosecution for the offence under Section 366 I.P.C.
has convicted him without framing alternate charge
against the appellant. Therefore, the impugned
judgment of conviction and order of sentence of the
appellant is absolutely illegal and liable to be set
aside. This appeal may be allowed.
On the other hand, learned APP appearing for the
9.
State assisted by learned counsel for the informant
has opposed the aforesaid contentions raised on
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behalf of the appellant and submitted that there is
clinching and consistent evidence of victim girl
against the appellant, who has categorically stated
about kidnapping and rape by the appellant. There is
no reason to disbelieve the testimony of victim girl.
The learned trial court has very wisely and aptly
analyzed and scanned the evidence available on
record, while recording the findings of guilt of the
appellant, which suffers from no illegality or infirmity,
calling for any interference in this appeal, which is
devoid of merit and fit to be dismissed.
10. I have gone through the record of the case along with
impugned judgment and order in the light of
contentions raised on behalf of both side.
11. The only point for determination is that “as to whether
the impugned judgment of conviction and order of
sentence of appellant is legally sustainable or not?”.
12. Before adverting to adjudicate upon above point, it
appears pertinent to take brief resume of the evidence
of witnesses examined during trial.
13. It appears that out of eight witnesses examined in this
case, the most important witness is the P.W.-8.
According to her testimony dated 18.07.2006, she has
disclosed her age as 28 years. Even 09 years is
deducted from the above disclosed age, the age of the
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victim comes around 19 years on the date of
occurrence. It also appears that on the date of her
evidence, she was married with one Rajinder. This
witness has given absolutely go-bye to her earliest
version as contained in statement recorded under
Section 164 Cr.P.C. and stated that on the date of
occurrence at about 10 to 10:30 P.M. in the night, she
was at her parental home alone. Her door was opened,
in the meantime, Kali Das entered in her room and
started saying to follow him, but she denied, then the
accused gaged her mouth and something was sprig in
the cloth, due to which, she became unconscious.
When she regains conscious, she finds herself at the
sister’s house of Kali Das, where Kali Das committed
rape with her and also went along with her to her
brother’s sasural at Kultipara and stayed about 2-4
days. She also states that in the Bengal at any place
like Court, Kali Das also solemnized marriage with
her. She was also brought to Dhanbad Civil Court,
where police arrested both of them and she was
handed over to her parents. Her statement was also
recorded by Magistrate under Section 164 Cr.P.C.,
which was read over and explained to her and after
understanding the contents put her thumb
impression, she was also medically examined at the
instance of police.
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In her cross-examination, she states that at
present, she does not re-collect whatever was stated
before Magistrate under Section 164 Cr.P.C.
statement, but she denies that she has not stated
before the Magistrate that she voluntarily
accompanied with the accused and solemnized
marriage with her at Kali Temple.
She has denied suggestion of defence that she is
giving false evidence at the instance of her parents.
14. P.W.-1 Bhushan Ch. Mahto is a formal witness-cum-
Advocate Clerk, who has proved the formal F.I.R. as
Exhibit-1.
15. P.W.-2 Badri Rajak has stated that on the date of
occurrence at about 9:00 P.M., he saw accused Kali
Das was forcibly taking away the victim girl. He raised
alarm and also informed to father of Kali Das and
parents of victim girl. After 12 days, Kali Das and
victim girl returned and the victim was handed over
from the court of C.J.M. to her parents.
P.W.-3 Baishali Devi is the mother of the victim.
16.
According to her evidence also, she had gone along
with her husband. Her minor daughter was alone in
the house with two other small children. She was
informed that Kali Das has kidnapped her daughter
for solemnizing marriage with her. Her daughter was
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handed over by the Court. Now she has been married
living at her matrimonial home.
17. P.W.-4 Ranglal Dhobi is the father of the victim girl –
cum – informant. He has proved the contents of his
written report and consistently stated that he lodged
the case against the accused for kidnapping his
daughter for solemnizing marriage with her. His
daughter was recovered by police and her daughter
has made statement before Magistrate and after
medical examination, she was handed over to him.
The victim girl has disclosed about solemnization of
marriage and commission of rape by the accused.
18. P.W.-5 Sarju Gope has been declared hostile.
19. P.W.-6 Dhaneshwar Dhobi came to know about the
occurrence in the next day morning that the victim
girl has been taken away by Kali Das for solemnizing
marriage with her. He made a search of victim, but no
clue was found and after 15-20 days, she was handed
over from the court of C.J.M. to her parents.
In his cross-examination, he reiterates that he
heard the incident and has no personal knowledge.
20. P.W.-7 Sarju Singh is also hearsay witness and
simply stated that he heard about kidnapping of
victim girl by the accused for solemnizing marriage.
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On the other hand, one defence witness Kishun
21.
Rajak , who is none else but real brother of the victim
has been examined. According to his evidence, the
occurrence is of the year 1998. At that time, his
younger sister (victim girl) was aged about 21 years.
He also admits that Kali Das has not enticed and
taken her away, rather she voluntarily went with the
accused of her own accord.
There is nothing in his cross-examination to rebut
his above testimony.
22. It appears that although medical examination of
victim was conducted by Medical Officer, but her
medical examination report has not been proved and
brought on record.
23. From the aforesaid discussions of prosecution
evidence, it is crystal clear that there is no authentic
evidence about age of the victim at the relevant time
of occurrence. The victim in her statement under
Section 164 of Cr.P.C. disclosed her age to be 20
years. The own brother of the victim (D.W.-1)
disclosed her age as 20 years on the date of
occurrence, who accompanied with the accused on
her own accord and also solemnized marriage against
the will of her parents. It also appears that in her
initial statement before Magistrate, which was
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recorded on Oath, the victim has stated in clear terms
that she voluntarily
went with the accused and residing with him as
husband and wife, no force or violance was used
against her, rather there was love affair. The victim,
while examination during trial, has also admitted that
her statement was recorded by Magistrate, which was
read over and explained to her and after finding
everything correct, she put her thumb impression.
Therefore, the evidence of the victim during trial,
which has tendency of material improvement in her
earlier version and levelling accusation against the
appellant that he forcibly gaged her mouth and
something obnoxious was smelt and she became
unconscious. Thereafter, she found herself in the
sister’s house of the accused and other story of
forcible marriage and sexual intercourse has been
alleged, all these material improvements are indicative
of the facts that under influence of her parents, she
has given false evidence to implicate the accused and
get his conviction. It further transpires that the
learned trial court has absolutely ignored the evidence
of D.W.-1, who is none else, but the own brother of
the victim, to the extent that on the date of
occurrence, the victim was 21 years old. The learned
trial court, although acquitted the appellant from the
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offence under sections 363 and 366A of the I.P.C., but
placing reliance upon truthfulness of the story
depicted by victim in her evidence before court,
convicted him for the offence under Section 366 of the
I.P.C.
24. The overall factual aspects, which emerges from the
very inception clearly, goes to show that there was
love affair between appellant and victim girl. The
victim girl taking advantage of absence of her parents
voluntarily accompanied with the accused calling her
at her house at odd time of night i.e. 10-10:30 P.M., it
is quite unbelievable that anything was smelt to her,
due to which she became unconscious. If that be so,
how she was taken by the accused under unconscious
state also proves the falsity of the case. The victim has
travelled several places along with appellant without
raising any hue and cry which also indicates her
voluntariness and consent throughout. It is also
evident that on the date of occurrence, the victim girl
was major and she has taken extreme steps of fleeing
away from her house of her own accord. Therefore, no
ingredients of offence under Section 366 of I.P.C. is
also proved in this case against the appellant.
25. In view of above discussions and reasons, the
judgment of conviction and order of sentence passed
by the learned trial court is hereby set aside. The
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appellant is acquitted from the charges leveled against
him.
26. Accordingly, this appeal is allowed .
27. The appellant is on bail. He is discharged from the
liability of bail bonds.
28. Pending I.A., if any, stand disposed of.
29. Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
( Pradeep Kumar Srivastava , J.)
Jharkhand High Court, Ranchi
th
Dated, the 6 November, 2026
.
Sunil /
N.A.F.R.
Uploaded on 06/11/2026
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