| SooperKanoon Citation | sooperkanoon.com/509014 |
| Subject | Criminal |
| Court | Madhya Pradesh High Court |
| Decided On | Apr-05-1995 |
| Case Number | Cri. Appeal No. 1329 of 1986 |
| Judge | P.N.S. Chouhan, J. |
| Reported in | 1995(0)MPLJ1009 |
| Acts | Evidence Act - Sections 114A; Indian Penal Code (IPC) - Sections 376, 376(1) and 376(2) |
| Appellant | Sitaram Rameshwar Kewat |
| Respondent | State of Madhya Pradesh |
| Appellant Advocate | A.D. Deoras, Adv. |
| Respondent Advocate | L.S. Singh, Deputy Adv. General |
| Disposition | Appeal allowed |
Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened.
sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963.
section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - 3. it is admitted by both sides that since it was a case of simple rape under section 376(i) indian penal code, the presumption aforesaid was not applicable which is attracted only in case of offences under section 376(2) clauses (a) to (e) or (g) of the indian penal code (45 of 1860). 4. the submission is that the evidence of the prosecutrix and her dewar aagar singh clearly indicates that the prosecutrix was a consenting party. this is clear from the evidence of aagar singh that hearing his alarm itwari came there, but by that time the appellant had made good his escape.p.n.s. chouhan, j.1. the appellant challenges his conviction under sections 376 and 457 of the indian penal code and sentence of 7 years r.i. and r.i. for 1 year respectively with direction for concurrent running of sentences, recorded vide judgment dated 5-12-1986 passed in s. t. no. 157 of 1986 of raipur sessions division.2. prosecutrix kumari bai (pw-1), a married woman, was all alone in her house on 23-3-1986 in the afternoon. the appellant then aged 19 years entered inside and committed rape on her. her husband's younger brother aagar singh (pw-2) came and saw the appellant mounted on the prosecutrix. it is said that the appellant got up and gave a push to aagar singh and ran away. at that time itwari, a neighbour, had also come who was told of the incident by the prosecutrix. the husband of the prosecutrix was out. he returned late in the night. the next day village panchayat was convened and the appellant denied his guilt. a decision was taken to inform the police. accordingly, the first information report was lodged two days later. the distance of police station from the village is only 8 kms. after registering crime, the prosecutrix was sent for medical examination. the doctor did not find any external or internal injury on her. the doctor could not give any definite opinion on the question of recent intercourse as kumari bai was used to sexual intercourse. though the defence did not specifically urge consent, suggestion to that effect was made in the cross-examination of the prosecution witnesses. the learned trial judge accepted the prosecution evidence and held that under section 114a of the evidence act in view of kumari bai's denial of consent, it had to be held that the act was without her consent.3. it is admitted by both sides that since it was a case of simple rape under section 376(i) indian penal code, the presumption aforesaid was not applicable which is attracted only in case of offences under section 376(2) clauses (a) to (e) or (g) of the indian penal code (45 of 1860).4. the submission is that the evidence of the prosecutrix and her dewar aagar singh clearly indicates that the prosecutrix was a consenting party. had not the learned trial judge resorted to the statutory presumption under section 114a of the evidence act, the accused may not have been convicted. the prosecutrix has stated that she had received bleeding injuries on her wrist and back and had shown them to the doctor, who examined her, but the report of the said doctor ex. p.-5 shows that the prosecutrix did not have any external or internal injury. it is, therefore, reasonable to hold that the prosecutrix has resorted to deliberate falsehood in this behalf. we were taken through the evidence of pws 1 and 2. evidence of the prosecutrix shows that the appellant committed the act for an hour and during all this time she kept screaming, but no one came to her rescue. we find it strange that no one including her neighbour itwari was attracted by her screams which lasted for an hour, whereas itwari immediately came on the scene of incident when aagar singh arrived home and shouted. this is clear from the evidence of aagar singh that hearing his alarm itwari came there, but by that time the appellant had made good his escape. from this we infer that itwari must have been nearabout. in such circumstances, the fact that he did not hear the screaming of the prosecutrix which lasted for an hour belies the version of the prosecutrix in this behalf. the observation of the learned trial judge that the prosecutrix is to be, believed because no married woman will lay such a false charge which was likely to stigmatise her in society appears to be misconceived. the evidence of aagar singh shows that when he entered the , room he found the prosecutrix in a compromising posture with the appellant and then the appellant ran away after pushing him aside. his evidence during cross-examination in para-2 is quoted below :^^vfhk;q esjs ldwy esa ugha i
Judgment:P.N.S. Chouhan, J.
1. The appellant challenges his conviction under Sections 376 and 457 of the Indian Penal Code and sentence of 7 years R.I. and R.I. for 1 year respectively with direction for concurrent running of sentences, recorded vide judgment dated 5-12-1986 passed in S. T. No. 157 of 1986 of Raipur Sessions Division.
2. Prosecutrix Kumari Bai (PW-1), a married woman, was all alone in her house on 23-3-1986 in the afternoon. The appellant then aged 19 years entered inside and committed rape on her. Her husband's younger brother Aagar Singh (PW-2) came and saw the appellant mounted on the prosecutrix. It is said that the appellant got up and gave a push to Aagar Singh and ran away. At that time Itwari, a neighbour, had also come who was told of the incident by the prosecutrix. The husband of the prosecutrix was out. He returned late in the night. The next day Village Panchayat was convened and the appellant denied his guilt. A decision was taken to inform the police. Accordingly, the First Information Report was lodged two days later. The distance of Police Station from the village is only 8 Kms. After registering crime, the prosecutrix was sent for medical examination. The Doctor did not find any external or internal injury on her. The Doctor could not give any definite opinion on the question of recent intercourse as Kumari Bai was used to sexual intercourse. Though the defence did not specifically urge consent, suggestion to that effect was made in the cross-examination of the prosecution witnesses. The learned trial Judge accepted the prosecution evidence and held that under Section 114A of the Evidence Act in view of Kumari Bai's denial of consent, it had to be held that the act was without her consent.
3. It is admitted by both sides that since it was a case of simple rape under Section 376(i) Indian Penal Code, the presumption aforesaid was not applicable which is attracted only in case of offences under Section 376(2) Clauses (a) to (e) or (g) of the Indian Penal Code (45 of 1860).
4. The submission is that the evidence of the prosecutrix and her Dewar Aagar Singh clearly indicates that the prosecutrix was a consenting party. Had not the learned trial Judge resorted to the statutory presumption under Section 114A of the Evidence Act, the accused may not have been convicted. The prosecutrix has stated that she had received bleeding injuries on her wrist and back and had shown them to the Doctor, who examined her, but the report of the said Doctor Ex. P.-5 shows that the prosecutrix did not have any external or internal injury. It is, therefore, reasonable to hold that the prosecutrix has resorted to deliberate falsehood in this behalf. We were taken through the evidence of PWs 1 and 2. Evidence of the prosecutrix shows that the appellant committed the act for an hour and during all this time she kept screaming, but no one came to her rescue. We find it strange that no one including her neighbour Itwari was attracted by her screams which lasted for an hour, whereas Itwari immediately came on the scene of incident when Aagar Singh arrived home and shouted. This is clear from the evidence of Aagar Singh that hearing his alarm Itwari came there, but by that time the appellant had made good his escape. From this we infer that Itwari must have been nearabout. In such circumstances, the fact that he did not hear the screaming of the prosecutrix which lasted for an hour belies the version of the prosecutrix in this behalf. The observation of the learned trial Judge that the prosecutrix is to be, believed because no married woman will lay such a false charge which was likely to stigmatise her in society appears to be misconceived. The evidence of Aagar Singh shows that when he entered the , room he found the prosecutrix in a compromising posture with the appellant and then the appellant ran away after pushing him aside. His evidence during cross-examination in Para-2 is quoted below :
^^vfHk;q esjs Ldwy esa ugha i<+rk gSA eSaukys ij vdsyk [ksy jgk FkkA tc eSa [kksyh esa igqpk Fkk rc esjh HkkHkhvfHk;q ls dg jgh Fkh fd tk Hkkx ;gk lsA vfHk;q dh pkM~Mh fyax dh txg lsQVh gqbZ Fkh vkSj vkSj pM~Mh ds Nsn esa ls viuk fyax ckgj fudkys gq, FkkAvfHk;q us esjh HkkHkh ds ij ls mBdj igys isUV iguh Fkh vkSj fQj og HkkxkFkkA**
This, in our opinion, is clear indication of the fact that Aagar Singh happened to enter the room suddenly and found the prosecutrix and the appellant in a compromising position. Had the story of rape been true, the natural impulse of the miscreant would have been to run away without caring for his pant. The fact that he got down from the prosecutrix and then picked up his pant and put it on before running away and the prosecutrix asked him to go away unmistakably shows that it was a consented act and the prosecutrix was left with no option but to present it as a case of rape as she was caught unaware by her Dewar who raised alarm and the matter became known to Itwari. There are other indications in the evidence of prosecutrix to show that it was a consented act. The prosecutrix has given the description of her house from which it appears that there is an outer veranda, then an Aangan. then an inner veranda touching the three rooms. She claims that the appellant had come in the outer veranda and demanded fire to light his Bidi then after smoking then he caught hold of her hand and committed rape. In para-6 during cross-examination she admitted that the appellant had caught hold of her hand not in the outer veranda but in the inner veranda. When she was asked as to how the appellant had reached the inner veranda, she stated that she was not aware as to how he came there. From this also we infer that the appellant was there by invitation. Once we hold it to be a consented act, since the presumption under Section 114A is not attracted, it has to be held that the charge of rape is not made out.
5. In result, this appeal is allowed. Appellant's conviction and sentence as aforesaid are hereby set aside and he is acquitted of the charges. He is already on bail. His bail bonds are cancelled.