Suresh Kumar and Dilla Vs. the State - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]dharam veer, j.1. both the above-said criminal appeals have been arisen out of the common judgment and order dated 4.4.1997 and the incident in both the appeals is one and the same as well as the evidence is also common in the said trial, hence both of them are being disposed of by this common judgment and order.2. both the criminal appeals, preferred under section 374(2) of the code of criminal procedure, 1973 (hereinafter to be referred as cr.p.c.), are directed against the common judgment and order dated 4.4.1997 passed by the ii addl. sessions judge, haridwar in sessions trial no. 389 of 1993, state v. dilla & suresh kumar, whereby the learned ii addl. sessions judge has convicted each of the appellants/accused dilla and suresh under section 376 of the indian penal code, 1860 (hereinafter to be referred as i.p.c.) and sentenced each of them to ten years' rigorous imprisonment with fine of rs. 2,000/- each and in default of payment of fine, further one months' r.i. each.3. i have heard learned counsel for the parties and perused the entire material available on record.4. in brief, the prosecution case is that complainant km. umesh kumari (p.w.1) lodged an fir stating therein that on 18.8.1988, she reached at the laksar railway station to catch the train for fajjalpur, distt. bijnaur so as to go at her sister's house. however, she could not catch the train going for nazibabad. from there she reached at raisi where she was advised to go for balawala so as to catch the bus for madawar. after that she started moving towards balawala adjacent to the railway line. when she reached farther 11/2-2 kms. towards balawala, then two persons came and enquired about her going, to whom she informed that she was going at her sister's house. when she inquired about the name of those two persons, they disclosed their names as suresh kumar and dilla (appellants). the appellants-accused told her that if she would go alone, then she would be taken away by the miscreants and further told her to go along with them. it was further stated that after that the appellants-accused forcibly took her below the railway line where firstly the appellant-accused dilla and subsequently, suresh committed rape with her forcibly. after committing the rape, both the appellants-accused warned her that if she would inform about their names, then she would be killed. after that the appellant- accused suresh gone from there and the appellant- accused dilla brought her in a carpenter shop at raisi. meanwhile, two police constables, namely, deep chandra and rajendra prasad reached at that shop where she informed about the entire incident to them. the appellant-accused dilla was arrested over there and after that the appellant-accused suresh was also been searched and at railway station, raisi, suresh was also arrested by the police constables. with the same averments, the fir ex.ka-1 was lodged by p.w.1 umesh kumari. on the basis of the fir (ex.ka-1), head moharrir ramanand sharma prepared the chik fir of the case on 18.9.1988 at 8:15 pm, i.e. ex.ka-7. he also made entry in the g.d., carbon copy thereof is ex.ka-8. investigation of this case was entrusted to p.w.3 s.i. pramod kumar. victim km. umesh was sent for the medical examination where she was medically been examined by p.w.2 dr. smt. s.gupta and medical report ex.ka-2 was prepared. the same medical officer also prepared the supplementary medical report of victim, i.e. ex.ka-3. the i.o. during investigation took in his possession the under-wears worn by the appellants-accused at the time of above said incident and prepared fard, i.e. ex.ka-4. during the course of investigation the i.o. inspected the place of occurrence and prepared the site plan, i.e. ex.ka-5. the i.o. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellants/accused, i.e. ex.ka-6.5. after receiving the charge sheet, learned cjm, haridwar committed the case to the court of sessions on 7.09.1993 after giving necessary copies to the appellants/accused as provided under section 207 cr.p.c.6. on 14.7.1994, the learned sessions judge, haridwar has framed the charge against the appellants/accused dilla and suresh under section 376/506(2) ipc. the charges were read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. thereafter, the case was transferred to ii addl. sessions judge by the sessions judge for disposal as per law.7. to prove its case, the prosecution has examined p.w.1 smt. umesh, victim, p.w.2 dr. smt. s.gupta, who medically examined the victim and p.w.3 s.i. pramod kumar singh, i.o. of the case.8. after that the statements of the appellants/ accused was recorded under section 313 cr.p.c. the oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. however, they did not produce any oral or documentary evidence in defence.9. after hearing learned counsel for the parties and appreciating the entire material available on record, the learned ii addl. sessions judge, haridwar vide judgment and order dated 4.4.1997 has convicted and sentenced the appellants/accused as above discussed. feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal.10. before further discussion, it is pertinent to mention the medical report (ex.ka-2) of the victim km. umesh who was medically examined on 18.9.1988 at 10 pm by p.w.2 dr. s.gupta, which is as under:local examination-a xillary and pubic hairs present, well developed. no mark of injury in lower abdomen, inner side of thigh or breast.clothes are stained, sealed and handed over to constable no1.43 deep chand.p/v-external genitalia normal, hymen ruptured, easily admits 2 fingers, uterus size normal, bleeding absent.vaginal smear taken and sent for pathological examination.11. thereafter, the same medical officer prepared the supplementary report of the victim (ex.ka-3) which is as under:vaginal smear report-shows no spermatozoa dead or alive.x-ray report-in spia gram-the epiphysis around right elbow joint have been completely fused with their respective bones.the epiphysis of distal ends of right radius and ulna bones have also fused and only fusion lines are visible.conclusion-the age of girl is about 17 years. no definite opinion rape can be given.12. to prove the above-said reports, the prosecution has examined p.w.2 dr. smt. s. gupta who has proved the medical report ex.ka-2 and supplementary medical report ex.ka-3 prepared by her. she has stated that no definite opinion about the rape can be given and in the vaginal smear report, no spermatozoa was found. in cross-examination she stated that there may be age variation of 1-2 years about the age opined by her in respect of victim.13. to further prove its case the prosecution has examined p.w.1 smt. umesh who has reiterated the entire version of the fir in her examination in chief. in her cross-examination she stated that she had come to laksar from manna kheri on 18.8.1988 and she started at about 7 am and she had reached from manna kheri to laksar by bus at about 11:30 am. she further stated that at the time of incident, her age was about 18-19 years. after the incident, appellant suresh had gone on foot and she came to raisi along with dilla (appellant). she further stated that while coming to raisi, there were shops in between the railway bridge and raisi station, however she had not disclosed about the incident to any of the shopkeepers. even she had not disclosed to the carpenter about the incident at whose shop, she sat along with the appellant-accused dilla for 10-15 minutes. she further stated that the said carpenter was known to her earlier.14. p.w.3 s.i. pramod kumar singh who stated that investigation was entrusted to him. during investigation, he recovered the under-wears of the appellants-accused and taking the same into possession, he prepared the fard, i.e. ex.ka-4. he also prepared the site plan of the place of occurrence, i.e. ex.ka-5. during the course of investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet, i.e. ex.ka-6. chik fir of this case was prepared by h.m. ramanand sharma, i.e. ex.ka-7. in the same process entry was also made in the g.d., carbon copy thereof is ex.ka-8.15. after that the statements of the appellants/ accused was recorded under section 313 cr.p.c. the oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. however, they did not produce any oral or documentary evidence in defence.16. sri vikas pandey, learned amicus curiae for the appellant-suresh and sri navneet kaushik, learned counsel for the appellant-dilla argued that as per the aforesaid evidence, the prosecution has not been able to prove its case against the appellants-accused beyond reasonable doubt. it was further submitted that there is only a sole evidence of p.w.1 km. umesh against them which does not inspire confidence. i find substance in this arguments put forth on behalf of the appellants for the following reasons:a. the oral evidence of the victim does not get corroboration from the medical evidence. as per the oral evidence of victim km. umesh, the appellants- accused had committed rape forcibly with her on 18.8.1988, but she was medically been examined on 18.9.1988 at 10 pm by p.w.2 dr. smt. s.gupta, and the medical officer has given opinion that no definite opinion about the rape can be given and no spermatozoa dead or alive was found. even otherwise, if it is assumed that if the incident was said to be happened on 18.9.1988, in that case also, the medical evidence does not support the oral evidence of victim for the reason that within eight hours of the incident, she was medically been examined and on the basis of vaginal smear and x- ray report, the medical officer has opinion that no definite opinion about the rape can be given for the reason that no spermatozoa dead or alive was found.in this way, the medical evidence does not corroborate the oral version of victim, which creates a reasonable doubt in the evidence of p.w.1 km. umesh.b. that as per the fir lodged by the victim, rape was committed with her on 18.8.1988 and in her statement recorded before the trial court also, she deposed that the incident was said to be occurred on 18.8.1988, however the chik fir of this case was prepared showing the date of incident as of 18.9.1988 at 2 pm, which goes to create a reasonable doubt in the oral testimony of the victim.c. that the place of occurrence where the incident is said to have taken place is in between the raisi station and the railway bridge which is about 70 kilometers from manna kheri, p.s. mangalore, where the victim was living at the time of the said incident. the prosecution has failed to explain by sufficient cause as to how the victim had come to the place of occurrence after traveling about such a distance of 70 kilometers in an unknown forest area where in the normal circumstances, one cannot be expected to travel.d. that the victim herself has admitted in her testimony that she was about 18-19 years of age on the date of incident and she was major.e. that the constables deep chandra and rajendra prasad, to whom the victim had narrated the entire incident for the very first time at the shop of a carpenter and even who were also cited as witnesses in the charge sheet, were not examined by the prosecution before the trial court as witnesses, which further creates a reasonable doubt in the prosecution story as well as in the statement of victim.f. that the carpenter, in whose shop after the so called incident, the victim stayed for about 10-15 minutes and where she narrated the incident to the police persons, was also not been examined by the prosecution, which further creates a doubt over the prosecution story.g. that after the aforesaid incident, the victim came to raisi along with the appellant-accused dilla. in her cross-examination, she has admitted that while coming to raisi, there were several shops in between the railway bridge and raisi station, however she had not disclosed about the incident to any of the shopkeepers. it is not possible to believe as to why the victim had not informed about the incident to the shopkeepers or other persons who came across her while going towards raisi, which further creates a reasonable doubt in the victim's statement.h. that it is settled law that it is permissible to record and sustain a conviction on the evidence of a solitary witness. but, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. i am fortified in my view with the judgment of hon'ble apex court reported in : 2003 (1) supreme court cases, 465 'joseph v. state of kerala'. para 13 of this judgment is relevant which is reproduced as under:13. to our mind, it appears that the high court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. section 134 of the indian evidence act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. but, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. by this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.17. for the reasons aforementioned, the evidence of p.w.1 km. umesh cannot be said to be reliable, believable or natural evidence and the same does not inspire confidence. hence, no reliance can be put on the statement of p.w.1 km. umesh and as such the judgment and order passed by the trial court in convicting and sentencing the appellants-accused on the basis of sole testimony of p.w.1 km. umesh, is not justified and the same is liable to be set aside.18. resultantly, both the appeals are allowed. the judgment and order dated 4.4.1997 passed by the ii addl. sessions judge, haridwar in s.t. no. 389 of 1993, state v. dilla and anr., convicting and sentencing the appellants-accused as discussed above, is hereby set aside. the appellants are on bail. they need not surrender. their bail bonds are cancelled and sureties are discharged.19. let the lower court record be sent back.