K. Lakshmana Rao Vs. Public Prosecutor, State of Andhra Pradesh and anr. - Court Judgment

Excerpt:
criminal - assault on women to outrage her modesty - section 354 of indian penal code, 1860 - appeal against conviction for offence under section 354 - appellant was charged for outraging the modesty of x - acquitted by session judge but acquittal set aide by high court - facts revealed that when the case came before trial court she made improvements and orientations win what was stated in fir and thus throwing serious doubt over prosecution story - view of session judge looked more probable and thus high court not justified in taking another view - appeal allowed. - maharashtra regional and town planning act, 1966 (37 of 1966)sections 126 & 159 & development control regulations for greater bombay (1991), appendix vii para 6: [markandey katju & aftab alam, jj] granting of additional fsi (floor space index) or tdr (transferable development rights) held, for granting additional fsi or tdr for amenities on surrendered lands at owners cost, area of construction/development was fixed as measure of equivalence, by development regulations, any other basis such as value cannot be used for determining equivalence because that is not the law as it stands and the value of the development/construction can only be made the basis for granting additional fsi or tdr by making suitable amendments in the law and not by an executive circular. consequently, additional fsi/tdr cannot be denied to the appellant on the basis of circular which made provision for graded scheme on basis of value of construction which was, therefore, liable to be quashed. in such a case, it is to be noted that both section 126(1)(b) of the act and paragraph 6 of appendix vii to the regulations provide for additional fsi or tdr for construction or development of amenity which term is defined both in the act and the regulations. but in the circular 100% fsi (built up area) is reserved for public utilities none of which is expressly mentioned in the definition of amenity in clause 3(7) of the regulations. furthermore municipal transport garage, fire station, auditorium, electric crematorium, municipal workshop, town duty office and office building are not even covered by the definition of amenity under section 2(2) of the act. it is highly debatable if those public utilities can be introduced through the circular as amenities within the meaning of the act or the regulations. moreover, surrender of the land in terms of clause (b) of section 126(1) of the act cannot be subjected to any further conditions than those already provided for in the statutory provisions. it is of course open to the legislature to add to the conditions provided for in the statute (or for that matter to do away with certain conditions that might be in existence). but it certainly cannot be left in the hands of the executive to impose conditions in addition to those in the statutes for accepting the offer to surrender the designated land. in such a case, the fact that, the constituted attorney of the appellant was present as representative of the industry in the meeting wherein the measure of 15% of the area of road constructed which was later on increased to 25%, was decided, would not be relevant. he might have been present in the meeting and he might or might not have voted for the graded scheme for grant of additional tdr but that would not authorise the municipal authorities to override or supersede the statutory provisions by issuing circulars in the nature of executive instructions. - further more, it appears that even though the appellant had made indecent advances towards the informent and had gone to the extent of attempting to rape her but they failed to take the precaution of bolting the doors from inside knowing full well that her brother was sitting outside the room. if she bad decided to take the matter to the court by moving the criminal machinery of law, she had to give the facts necessary to constitute offences lodged against the accused, otherwise she took the risk of the case failing in the court if improvements and orientations were made after the f. at any rate, having considered the judgment of the sessions judge and of the high court and the evidence of the complainant we are satisfied that the view taken by the sessions judge was, undoubtedly, one which could be taken on the evidence and even if the high court may not have agreed with that view and was prepared to take another view, that however was no ground to reverse the judgment of the acquittal passed by the learned sessions judge, as baa been held by this court in several cases.s. murtaza fazal ali, j.1. in this appeal by special leave the appellant has been convicted by the trial magistrate under section 354 ipc and sentenced to a fine of rs. 100/. on an appeal to the sessions judge the appellant was acquitted. the state thereafter filed an appeal before the high court against the order of the acquittal passed by the sessions judge. the high court in appeal reversed the judgment of the sessions judge and set aside the order of acquittal and convicted the appellant under section 354 ipc and sentenced him to a fine of rs. 100/- and hence this appeal by special leave. 2. mr. kohli in support of the appeal has raised a short point before us. he has submitted that the entire prosecution case appears to be a complete after thought and cooked up after the police came into the picture. he has drawn our attention to the first information report which may lodged by the informant which may be extracted to show the nature of allegations made by the informant against the appellant: i, the petitioner working as health visitor at d. m. & h. o. office nalgonda, for the last 5 years. in our office there is one l. d. c named murelidhar rao recently i got transfer order to huzurnagar. i requested to d. m. & h. o. to stop my transfer order for some time as my younger brothers studies are not disturbed. my request was granted by the d. m. & h. o.on the very day i.e on 30.12.1971 at about 8.30 p, m. the said muralidhar rao accompanied by one l. i. c. officer, named laxman rao came to my residence by the jeep murelidhar rao entered my room and asked me to come in the jeep to the house of l. i. c. officer laxman rao, as they want to talk for the cause of my transfer orders i said that i would come the next day morning. but muralidhar rao asked me to follow them immediately, otherwise they will go to d. m. & h. o. and see that my transfer orders are complied with. doing nothing i followed them with my younger brother radha krishna, in their jeep. the no. of the jeep is a. d. x 6904. they took me to the house of laxman rao. muralidhar rao asked me to enter in the room for discussion above cited. my brother was not allowed inside the room. when i entered in the room laxmana rao kept the doors closed and not bolted. then muralidhar rao grew wild and caught hold of my hand, and asked me that i am making propaganda against him, that he is the cause for my transfer, i said that his allegation is not correct. again he said 'i know you are blaming me, i shall take the vengeance.' i requested him to leave me, but he misbehaved with me and challenged that he would spoil me. he caught hold of me with his two hands and forced me. i started crying. listening to my alarm my brother entered in the room by pushing the doors. on seeing my brother muralidhar rao left me. by the acts of maralidhar rao, i came to understand and that if my brother was not present there, he would have harmed me by doing some wrongful act against my body. laxman rao is found to have supported the wrong acts of muralidhar rao. muralidhar rao challenged me while myself and my brother were coming out of the house that he would was that who will protect me, and that he will take the vengeance against me. 3. analysing this complaint it would appear that the main allegation made by the informant-saraswati devi were as follows: that accused nos. 1 & 2 came to her house on 30th december, 1971 and on the pretext of getting her transfer orders cancelled accused no. 1 took her to the house of accused no. 2 in a jeep. when they reached the house of accused no. 2 the informant was taken into the room of the house but the brother was asked to remain outside. the room in which the informant was taken, however, was neither locked nor bolted from inside. thereafter, accused no. 1 murelidhar rao grew wild and caught hold of the hand of the informent and said that as she had been making propaganda against him, he would wreak vengeance. she, however, requested accused no. 1 to spare her but he misbehaved and he said that he would spoil her. she than goes on to state that while these talks were going on, her brother who had accompanied her to the house of the appellant, entered into the room and on seeing him, accused no. 1. muralidhar rao left her. no allegation at all was made so far as the appellant-lakshmana rao was concerned excepting a bare statement that he was found to have supported the wrong acts of muralidhar rao. considering the statements given by the informant at its face value it is extremly doubtful if any offence under section 354 was made out against accused no. 1 much less against the appellant. when the case came up before the trial court, a completely new case was made out by the informant and all sorts of allegations were made in her evidence when saraswati devi was examined by the court the integral part of the complaint was given a complete go by the certain overt acts which were neither mentioned nor indicated in the first information report were brought out for the first time in the evidence. in the evidence, the complainant for the first time mentioned the facts that the first accused kissed her and the second accused caught hold of her and both of them tried to put her on the cot, tried to undress her and also attempted to unbutton her blowse. she further stated that she kicked the first accused and gave a tooth bits to the second accused. none of these facts had been mentioned in the first information report which was lodged at the police station which constituted her first statement. further more, it appears that even though the appellant had made indecent advances towards the informent and had gone to the extent of attempting to rape her but they failed to take the precaution of bolting the doors from inside knowing full well that her brother was sitting outside the room. these allegations being an after thought appear to us to be inherently improbable. the high court seems to have brushed aside the conviction and sentence passed by the s:ssions judge on the ground that as the complainant was a woman, she might have felt shy to make allegation against accused, involving her honour. this reason does not appeal to us. indeed, if the complainant was so much concerned with her honour, she would have rest contened by making a complaint to her superior officers instead of taking the matter to the court. it, however, appears that the complainant was a fully nature & educated lady & had filed a written report previously prepared with due deliberation before the police. if she bad decided to take the matter to the court by moving the criminal machinery of law, she had to give the facts necessary to constitute offences lodged against the accused, otherwise she took the risk of the case failing in the court if improvements and orientations were made after the f. i. r. was lodged, which may throw serious doubt on the truth of the prosecution story. at any rate, having considered the judgment of the sessions judge and of the high court and the evidence of the complainant we are satisfied that the view taken by the sessions judge was, undoubtedly, one which could be taken on the evidence and even if the high court may not have agreed with that view and was prepared to take another view, that however was no ground to reverse the judgment of the acquittal passed by the learned sessions judge, as baa been held by this court in several cases. taking an overall picture of the fundamental aspects of the prosecution case, we are unable to uphold the judgment of the high court. the result is that the appeal is allowed. the judgment of the high court is set aside and the appellant is acquitted of the charges framed against him.