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Madhya Pradesh High Court · body

2001 DIGILAW 621 (MP)

Jaideo v. State of M. P.

2001-08-21

USHA SHUKLA

body2001
JUDGMENT In this appeal, accused-appellant Jaideo has challenged his conviction and sentence under section 376, IPC, passed by 1st Additional Sessions Judge, Betul, on 24.1.1992 in Sessions Trial No. 125/89. The case for the prosecution was that Ramkali Bai (PW 1) was living with Parwati Bai at the time of this incident. On 12th February, 1989, she was returning home around 9.00 p.m. after seeing a movie in the house of Bhoora Kumhar. She was accompanied with Vijay Laxmi (PW 5), daughter of Parwati Bai (PW 6). When she reached nearthe 'Beshram' bushes. accused Jaideo caught hold of her from behind, and covering her mouth with her own shawl, dragged her into the bushes and committed forcible sexual intercourse with her. The story further goes that Vijay Laxmi ran home out of fright. After some time, Ramkali returned home to Parwati Bai and told her about the incident. The first information report Ex. P-l was lodged at the Police Station at 5 minutes past 9 in the morninging. The usual investigation followed. The accused was arrested on 7.4.1989, and in due course. a challan was put up against him for committing rape on Ramkali. The trial resulted in his conviction under section 376. IPC, and sentence of five years' RI. The learned counsel for the accused challenged his conviction on the ground that Ramkali (PW 1) was an unreliable witness. Her statement was not corroborated by Vijay Laxmi (PW 5) or Panvati Bai (PW 6). Even if she was sexually molested that night. she could not identify the culprit. and this accused was falsely implicated. Arguments about Ramkali, being a woman of easy virtue, were also advanced. We have carefully gone through the record of the case. Ramkali (PW 1) says that she was living with Parwati Bai (PW 6) because of her differences with her stepmother. Parwati Bai also admitted in para 6 of her statement that Ramkali had come to stay with her a couple of days prior to the incident. That Ramkali and Vijay Laxmi had gone to the house of Bhoora Kumhar that evening to watch a movie on his T.V. is clear from the evidence of Ramkali (PW 1), Vijay Laxmi (PW 5) and Parwati Bai (PW 6). It is not material whether they left for home at the interval of the movie or after it had ended. That Ramkali and Vijay Laxmi had gone to the house of Bhoora Kumhar that evening to watch a movie on his T.V. is clear from the evidence of Ramkali (PW 1), Vijay Laxmi (PW 5) and Parwati Bai (PW 6). It is not material whether they left for home at the interval of the movie or after it had ended. The material point is that Ramkali and Vijay Laxmi left for home at about 9.00 O'Clock at night. We have been pointed out a contradiction between the versions given by Ramkali before the Court and in her FIR, Ex. P-l about the order in which the two girls were walking. In FIR, she had stated that she was following Vijay Laxmi. But in her deposition before the Court, she stated that Vijay Laxmi was following her. But in our view, this is only a question of detail and cannot be said to be very material. What we find intriguing is the variance between the statements of the two girls about the place from where the accused dragged away the prosecutrix. On this point, they have given totally different and entirely irreconcilable versions. According to Ramkali, she was dragged away by the accused from the road while they were walking towards home. But Vijay Laxmi (PW 5) is very specific in her assertion that accused Jaideo carried away Ramkali from their house. According to Vijay Laxmi, when they reached home that night, they found Jaideo inside their house. and he caught hold of Ramkali and carried her towards the jungle. This is a very significant contradiction between the statements of these two witnesses. Vijay Laxmi (PW 5) deposed in her chief-examination itself that when they returned back home, they found accused Jaideo inside their house fiddling with their boxes. She repeated this in her cross-examination also. She had told her mother too about it, and also that the accused took away Ramkali from the house after pressing her mouth. On this point, she is also corroborated by her mother Parwati Bai (PW 6). If this be so, then why should Ramkali distort the story by alleging that the accused met them on the way and dragged her in the 'Beshram' bushes ? It must be recalled that Ramkali was living with Parwati Bai those days. On this point, she is also corroborated by her mother Parwati Bai (PW 6). If this be so, then why should Ramkali distort the story by alleging that the accused met them on the way and dragged her in the 'Beshram' bushes ? It must be recalled that Ramkali was living with Parwati Bai those days. But Parwati Bai does not appear to have bothered about the fate of Ramkali when her daughter told her that the accused had forcibly dragged her out of the house. Had anything of this sort been reported to her that night, she would not have slept over it as she did. She would have raised hell and would atleast have gone searching for her. Ramkali (PW 1) deposed in cross-examination that she had gone home to Parwati Bai as soon as the accused had released her. According to her, the time was 11.00 in the night when she reached Parwati Bai' s house. This was about two furlong away from the scene of occurrence. But Parwati Bai says that Ramkali returned home next morning in a dishevelled state with rumpled hair, broken bangles and covered all over with dust. This obviously does not tally with the version given by the prosecutrix and we do not consider it to be an insignificant contradiction. The Police Station is only a couple of kilometers away from the village. But the first" information report Ex. P-l was lodged about 24 hours after the incident occurred. It is true that the name of the accused was mentioned in the FIR as the ravisher. But the prosecutrix herself admitted in her cross-examination that when she had narrated the incident to Parwati Bai, she had told her that she was raped by some boy. She admitted that it was Parwati Bai who told her that it must be Jaideo who had committed this crime. She further admitted that she had named Jaideo at the Police Station on the asking of Parwati Bai. She did not know this accused from before. She did not know his name. She says that she had seen his face on the dark night when he was committing rape on her. Under these circumstances, how could the identity of the accused be established without holding a test identification parade at the stage of investigation? But no such identification proceedings were held. She did not know his name. She says that she had seen his face on the dark night when he was committing rape on her. Under these circumstances, how could the identity of the accused be established without holding a test identification parade at the stage of investigation? But no such identification proceedings were held. And that was because it did not appear from the FIR that the culprit was not known to the victim from before. On the basis of the forgoing contradictions and variations between the statements of the witnesses, a strong suspicion arises about the truth of the prosecution case. We, therefore, find that the accused is entitled to be given benefit of doubt. The result is that the appeal is allowed. The conviction and sentence are set aside. The accused is on bail. His bail bonds stand discharged.