Yamunabai v. The State of Maharashtra

Judgment

3. The State of Maharashtra The Maharashtra State Road Transport Corporation, Maharashtra Vahatuk Bhavan, Central Offices, Dr. BYL Nayar Road, Mumbai The Depot Manager, Akkalkuwa Depot of Maharashtra State Road Transport Corporation Taluka : Akkalkuwa, District Dhule Mr R.R. Mantri, Advocate for the petitioner; Mr K.J. Ghute Patil, A.P.P. for respondent no.1; Mr D.S. Bagul, Advocate for respondent no.3. ..PETITIONER ..RESPONDENTS CORAM : P.V. HARDAS AND

SHRIHARI P. DAVARE, JJ. DATE : 27th January, 2010 2 ORAL JUDGMENT (PER HARDAS, J.) This is a petition under Article 226 of the Constitution of India by which the petitioner prays for issuance of a writ of mandamus directing the respondents to pay compensation of Rs.10,00,000/- or such other reasonable amount as may be determined by this Court. Certain ad interim relief is prayed for in the prayer clause (B) of the petition, which is not germane in the light of the fact that Rule in this petition came to be issued on 20.4.2004.

2. Such of the facts as are necessary for the decision of this petition may briefly be stated thus :- The petitioner claims to be resident of Decoti Resettlement No.2, Taluka Taloda, District Dhule. According to the petitioner on 23.6.1996 the petitioner was intending to go to her paternal house situated at village Kathi. Her husband had accordingly reached her on his bicycle up to Budhavali Bus Stand. The petitioner was accompanied by her daughters and was, therefore, intending to board a Bus to village Kathi. While she was waiting for the Bus, at about 11.00 p.m. she was forcibly taken to the cabin of State Transport Stand by one of the employees while four other employees committed gang rape on the petitioner. Then she was taken in a jeep with her daughters and left at forest. The petitioner 3 ultimately reached one temple at Songad, District Surat and the Priest in the temple informed her husband. In the mean time a complaint that the petitioner was missing came to be lodged by her husband. On being informed about her whereabouts, her husband and other family members reached Songad and took the petitioner back to their house. It appears that on 23.7.1996 i.e. practically a month after the incident the complaint came to be lodged, on the basis of which an offence under section 376 (g) and 342 of the Indian Penal Code came to be registered. The first information report came to be forwarded to the police station, Akkalkuwa which commenced the investigation with the addition of certain provisions under the Atrocities Act. A charge-sheet against the accused named by the petitioner in her first information report came to be filed. It appears that the trial was conducted by the Trial Court and upon recording of the evidence and appreciation of the evidence, the Trial Court has acquitted the accused named therein. This petition seeking compensation for the alleged rape committed on the petitioner in the premises of the State Road Transport Corporation office has been filed by the petitioner against the State of Maharashtra, Maharashtra State Road Transport Corporation and the Depot Manager of the Akkalkuwa Depot of the Maharashtra State Road Transport Corporation. We may incidentally state here that the so called accused who are alleged to have committed rape on the petitioner are not parties to this petition. 4

3. The respondents no.2 & 3 have filed their affidavit in reply. Mr R.R. Mantri, learned Counsel for the petitioner has invited our attention to averments in paragraph 4 of the affidavit in reply filed on behalf of respondents no.2 & 3. It is stated in the affidavit in reply at paragraph 4 that it was reported by the Vigilance Officer to the Corporation that four employees of the Corporation had committed an offence punishable under section 376 of the Indian Penal Code and they had committed rape. The Corporation considering the serious misconduct on the part of the accused, who were the employees of the Corporation, conducted a Departmental Enquiry and accordingly took disciplinary action against the said employees. According to the affidavit in reply, the charge-sheet came to be issued to the four employees as it had transpired that they had committed rape in the premises of the Corporation. It is further stated that the four employees have been dismissed from service. Our attention has also been invited to paragraph 5 of the affidavit in reply of respondents no.2 & 3 in which it is stated that it was noticed by the Corporation that rape had been committed by five employees in the premises of the State Transport Bus Stand. However, it was denied whether the petitioner was a genuine and a bonafide passenger travelling on the S.T. Bus or whether she had travelled by the said Bus.

4. Mr R.R. Mantri, learned Counsel for the petitioner has invited our attention to the judgment of the Supreme Court in Chairman, Railway Board and others vs. Mrs Chandrima Das and others, AIR 2000 5 Supreme Court 988 . Reliance is placed on paragraphs 5 and 12 of the judgment, which read thus :- "5. In the present appeal, we are not concerned with many directions issued by the High Court. The only question argued before us was that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon who was a foreigner and was not an Indian national. It is also contended that commission of the offence by the person concerned would not make the Railway or the Union of India liable to pay compensation to the victim of the offence. It is contended that since it was the individual act of those persons, they alone would be prosecuted and on being found guilty would be punished and may also be liable to pay fine or compensation but having regard to the facts of this case the Railways or for that matter, the Union of India would not even be vicariously liable. It is also contended that for claiming damages for the offence perpetrated on Smt. Hanuffa Khatoon, the remedy lay in the domain of Private Law and not under Public Law and, therefore, no compensation could have been legally awarded by the High Court in a proceeding under Article 226 of the Constitution and that too, at the instance of a practising advocate who, in no way, was concerned or connected with the victim. 6

12. In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Smt. Hanfulla Khatoon was a victim of rape. This Court in Bodhisattwa vs. Ms. Subhra Chakraborty (1996) 1 SCC 490 : (1996) AIR SCW 325 : AIR 1996 SC 922) has held "rape" as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as under (Para 10 of AIR) : "Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroyes the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article

21." According to Shri Mantri, learned Counsel for the petitioner since respondents no.2 & 3 have more or less admitted in their affidavit in reply that rape was committed on the petitioner, the respondents no.2 & 3 cannot escape from the liability of paying compensation for the heinous act of its employees. It is also urged that acquittal of the original accused in the Sessions Trial would have no bearing whatsoever on the outcome of the present petition. It is also urged before us by Shri Mantri, learned 7 Counsel for the petitioner that the deposition of the petitioner recorded in the Sessions Trial is inadmissible and no reliance can be placed on the said deposition for deciding the present petition. Mr Bagul, learned Counsel for respondents no.2 & 3 has tendered before us the certified copy of the deposition of the petitioner, who was examined as prosecution witness no.3 in the said trial. According to Shri Bagul, learned Counsel for respondents no.2 & 3 , the petitioner therein in no uncertain terms had stated that no rape was committed on her and consequently the findings, if any, arrived at in the Departmental proceedings would not bind respondents no.2 & 3 as respondents no.2 & 3 have no personal knowledge whatsoever of any rape being committed on the petitioner.

5. The petitioner was examined as a witness in the said trial which had been instituted on the basis of the report of the petitioner complaining therein that gang rape was committed on her by the employees of respondents no.2 & 3. We are not dealing with the question of admissibility of the deposition or otherwise of the petitioner. In this petition on oath the petitioner states that gang rape was committed on her, whereas in her deposition recorded in the Sessions Trial the petitioner has taken a different stand altogether. The evidence of the petitioner, therefore, recorded in the Sessions Trial would certainly have a great bearing for deciding this petition. The petitioner in her examination- in-chief had stated "on the day of the incident, I was raped. No one had committed rape on me except my husband. After incident I had filed 8 report to Taloda police station. I had given that report against my husband." The petitioner, since she had resiled from her previous statement was declared hostile and was cross-examined by the learned A.P.P. before the Trial Court. It appears that in the cross-examination on behalf of the learned A.P.P., she claimed that a rape had been committed on her. However, in the cross-examination on behalf of the accused in the said trial, she has again admitted "no one raped me." Further, in the cross-examination she has admitted "the incident as stated by me had no taken place. My thumb impression was obtained on the report which was already written. The contents of the report were not read over and explained to me. None of the accused raped me."

6. It is no doubt true that the jurisdiction of this Court is extremely wide in respect of awarding compensation in a petition filed under Article 226 of the Constitution of India. Under the present petition what we find is that this petition was filed by the petitioner on the allegation that she had been gang raped by the employees of the Corporation in the premises of the Corporation. None of the accused or the persons who are alleged to have committed rape on the petitioner are parties to this petition. Be that as it may, the deposition of the petitioner which has been reproduced by us in extenso, clearly indicate that no rape was committed on the petitioner. In fact, the petitioner in no uncertain terms has admitted at two stages of her evidence i.e. in her examination-in-chief and in cross-examination on behalf of the accused that rape had not 9 been committed on her. In the cross-examination on behalf of the learned A.P.P. she admits the contents of the first information report. No reliance whatsoever can be placed on such prevaricating testimony. The testimony on oath clearly disentitles the petitioner from claiming any compensation from the respondents. Prima facie the evidence of the complainant, therefore, indicates that no rape was committed on the petitioner. The petitioner has not been able to rebut what was stated by her before the Trial Court and thus there is no prima facie evidence at all to indicate that the employees of the Corporation on the day alleged, had committed any rape on the petitioner. If that be the position, according to us the petitioner is not entitled to succeed in this petition for claiming compensation of Rs.10,00,000/- as prayed for.

7. After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, according to us there is no merit in the petition and the petitioner is not entitled to the relief prayed for in this petition. Consequently, this petition is dismissed with no orders as to costs. Rule stands discharged. ( SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criwp135.04