Kerala High Court
State Of Kerala vs K.M.Mariam on 29 May, 2008
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3304 of 2007()
1. STATE OF KERALA,REPRESENTED BY THE
... Petitioner
Vs
1. K.M.MARIAM, NEDUMTHAKIDIYIL,
... Respondent
2. DR.MURALEEDHARAN NAIR,
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.BECHU KURIAN THOMAS
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/05/2008
O R D E R
CR
V. RAMKUMAR, J.
....................................
Crl.R.P.Nos. 3304, 3800 of 2007
& 1052 of 2008
.......................................
Dated this the 29th day of May, 2008
ORDER
Crl.R.P.No.3304 of 2007 is filed by the State challenging the discharge of accused Nos.7 and 8 in S.C.No.79/2007 on the file of the Sessions Court, Kottayam for an offence under Section 7 and punishable under Section 4 of the Kerala Prohibition of Ragging Act, 1998 ('the Ragging Act' for short). Crl.R.P.Nos.3800 of 2007 and 1052 of 2008 have been filed by accused Nos.7 and 8 respectively challenging the order passed by the Sessions Court below refusing to discharge them for the offences under the Indian Penal Code.
THE PROSECUTION CASE
2. The case of the prosecution can be summarised as follows:-
On 21.10.2005 at 4 p.m at Gandhinagar in Arpookara village of Kottayam district, accused Nos. 1 to 6 (Ranjith Varghese, Sherin, Shafeek Yousuf @ Shafeek, Ashly Varghese, Robin Paul and Divin Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:2:- Philip Perumal @ Divin) all of whom are 3rd year nursing students in the School of Medical Education at Gandhinagar, in furtherance of their common intention to rag and ravish Supimol (Charge Witness No.2) who was a first year nursing student of the said institution situated on the northern side of the Gandhinagar - Panampalam Road, behaved in a disorderly and improper manner towards the said Supimol, who was descending the staircase from the 2nd floor of the said building. A1 to A6 ridiculed, humiliated, mentally tortured and thereby ragged the said Supimol from the staircase. Thereafter, A1 to A3 took her to the Histopathology Laboratory situated in the 1st floor of the school of Medical Education and bolted the door from inside preventing her from proceeding in any direction. The 1st accused then forcibly administered a 'ladu' which was mixed with the drug called calmpose. Supimol who became physically and mentally exhausted was then taken and made to lie on the work - bench situated towards the southern wall of the said laboratory. Thereafter accused Nos.1 and 2 ravished her and the 3rd accused outraged her modesty by squeezing her breasts and fondling her belly and caused physical harm to her. The 1st accused then criminally intimidated her by saying that if she divulged the occurrence to anybody they would pour acid on her face. Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:3:- Accused Nos.4 to 6 were at that time guarding the Histopathology lab from the staircase and nearby places to ensure that nobody else entered the said laboratory and thereby rendered aid and support to A1 to A3. Thereafter accused Nos.7 and 8 who are respectively the Principal and Director of the said institution, in spite of getting complete information regarding the occurrence, refrained from conducting any enquiry according to law or from taking action by reporting the matter to the nearest Magistrate or the Police. The above conduct of accused Nos.7 and 8 was to screen A1 to A6 from punishment and also to cause disappearance of the evidence of the offence which might have been obtained. Supimol, the victim was thereafter undergoing treatment in the psychiatry ward of the Medical College, Kottayam under the 9th accused, Dr.Saibunneesa Beevi. While so, with a view to conceal the offences committed by A1 to A6 and to screen them from punishment and also with a view to cause disappearance of the evidence, during the period from 30.10.05 till 12.11.05 accused Nos.7 & 9 entered into a criminal conspiracy from the house of the 9th accused as also through mobile phones and caused disappearance of evidence by preventing a gynecological examination of the victim and by the 9th accused making corrections Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:4:- in the case sheet pertaining to the victim on 14.11.05 to the effect that the victim had suicidal tendencies and had consumed an overdose of medicine on 6.11.05 with a view to commit suicide and that the victim girl was discharged from the psychiatry ward on 15.11.05 whereas the girl had actually been discharged on 14.11.05.
Accused Nos.1 to 6 have thereby committed offences punishable under Sections 342,354,366A,328,376(2)(g) and 506(ii) read with 34 IPC and Section 4 of the Kerala Prohibition of Ragging Act, 1998. Accused Nos.7 & 8 have committed offences punishable under Sections 201 and 202 read with 34 IPC and Section 4 read with Section 7 of the Kerala Prohibition of Ragging Act, 1998. Accused Nos.7 & 9 have committed offences punishable under Sections 120B, 201, 202 and 218 read with 34 IPC.
THE COGNIZANCE AND POST-COGNIZANCE EVENTS
3. The charge sheet was filed by the Circle Inspector of Police, Kottayam East Police Station before the J.F.C.M, Ettumannor on 18.1.06. On 24.1.06, the learned Magistrate took cognizance of the offences and registered the case as C.P.No.3/2006. During the committal stage, the 1st accused Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:5:- moved the Magistrate for a direction to the investigating Agency to subject the victim girl, Supimol as well as the 1st accused to Brain mapping, Polygraph and other scientific tests. The accused had also filed a petition before this Court seeking a direction to entrust the investigation with the Central Bureau of Investigation (CBI). The committal Magistrate dismissed the application for scientific tests. Aggrieved by the said order, the accused filed Crl.R.P.No.597/2006 before this Court. The request made before this Court for handing over the investigation to the CBI was turned down by this Court and was confirmed by the Supreme Court. In the meanwhile, as per order dated 2.06.06, this Court disposed of Crl.R.P.No.597/2006 directing the investigating agency to subject all the accused persons in the case as well as the victim girl to brain mapping and Polygraph tests. The report of the expert was directed to be filed before the Magistrate who in-turn was directed to consider this report along with other records during the committal proceedings and pass appropriate orders. Aggrieved by the said order passed by this Court both Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:6:- the State Government as well as the father of the victim girl filed Special Leave Petitions ( Crl) Nos.3609/2006 and 3356/2006 before the Hon'ble Supreme Court of India. After granting leave those S.L.Ps were numbered as Crl.Appeal Nos.106 and 107/2007 respectively. Subsequently, as per common order dated 23.1.07, the Apex Court set aside the order passed by this Court and directed that the committal proceedings be expedited. During the course of the order the Apex Court observed as follows:-
"We have considered the rival submissions and we are of the opinion that no useful purpose would be served by subjecting the victim again to undergo a Polygraph test or Brain Mapping test as she had already alleged to have suffered enough of agony and further to put her to this test will add to her agony which we do not want the victim to suffer. There is also no use of subjecting the accused persons to this test. The case is at the committal stage. The learned Magistrate shall take into consideration all the material available on record and pass the order of commitment in accordance with law. During the trial, if the trial court feels any further investigation or any other necessity of any kind of scientific opinion in the matter, it will be open for him to proceed in accordance with law. But it will not serve a useful purpose to send either the victim or the accused persons to undergo further test at this stage, which will unnecessarily delay the trial. Therefore, we set aside the order and direct the trial court to proceed in committal proceedings and in case the case is committed before the court of Sessions Judge, then it will be open to the Sessions Judge to proceed in accordance with law and Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:7:- consider all the aspects if it is in accordance with law. We do not want to make any observation either way. We, further, direct that any observation made by the learned Single Judge in his order dated 2.06.06 shall not affect the course of the trial.
Any observation in this order will also not affect the trial. Both these appeals are allowed and the impugned order of the learned Single Judge is set aside. The matter is already delayed. Let the committal proceedings be expedited by the committing court".
4. Thereafter, as per order dated 6.3.07, the J.F.C.M, Ettumannor committed the case to the Court of Sessions under Section 209 Cr.P.C. The case was then made over to the Additional Sessions Court(Special), Kottayam for trial and disposal. It was thereafter that accused Nos.5 and 6 filed CMP No.1538 of 2007, the 8th accused filed CMP No.1539/2007 and the 7th accused filed CMP No.1679(a) of 2007 before the Addl.Sessions Court(Special), Kottayam seeking a discharge under Section 227 Cr.P.C. As per common order dated 14.8.07, the trial court discharged accused Nos.7 & 8 of the offences under the Kerala Prohibition of Ragging Act, 1998 but declined to give a discharge to accused Nos.7 & 8 for the remaining offences. The trial court also dismissed the application for discharge filed by Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:8:- accused Nos. 5 & 6. It is the said common order which is assailed in these revisions by the State and accused Nos. 7 & 8.
5. I heard the Senior Advocate, Sri.P.G.Thampi, the Director General of Prosecution representing the State, Adv.Sri.Bechu Kurian Thomas, the learned counsel for A7 and Adv.Sri.S.Rajeev, the learned counsel for A8.
6. The following points arise for consideration in these revisions :-
1. Is the order passed by the trial court discharging A7 & A8 of the offences punishable under the Kerala Prohibition of Raging Act, 1998 liable to be set aside?
2. Is the order passed by the court below declining to discharge A7 and A8 of the remaining offences, legal and proper?
Point No.1 PROSECUTION PLEA AGAINST DISCHARGE UNDER THE RAGGING ACT
7. Sri.P.G.Thampi, the learned State Public Prosecutor made the following submissions before me, assailing the discharge of A7 and A8 as granted by the court below:-
The discharge of A7 and A8 by the court below for offences Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:9:- under the Ragging Act cannot be sustained. Even in the complaint preferred by Gopi (the father of Supimol, the victim in this case) to the 7th accused Principal it was clearly stated that something had happened to his daughter during her studies in the College resulting in her examination by the psychiatrist. Under these circumstances, a legal duty was cast upon the 7th accused to enquire into the said complaint. Another important aspect which has come out during investigation is that the 7th accused Principal is a close relative of the first accused. This explains the conduct of the 7th accused in deliberately suppressing the offence committed by the first accused evidently to protect him from criminal prosecution. The occurrence took place on 21-10-2006. The age of Supimol the victim was 17 years and 8 months. After the occurrence the girl became morose and did not divulge the occurrence to anybody presumably out of a feeling of shame or out of fear on account of the threat by A1 to pour acid on her face in case she revealed the occurrence to anybody. On 27-10- 2005 while attending the class she fainted and fell down. She was taken to the Psychiatry ward of the Medical College Hospital, Kottayam of which Dr. Saibuneeza Beevi (A9) was the Head. She conducted a detailed examination of the girl and noted her findings in the case Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:10:- sheet. But she intentionally omitted to report the matter to the police. She did not also cause a gynecological examination of the victim. Subsequently on 29-10-2005 she had even made corrections in the case sheet pertaining to the victim. A7 the Principal had consulted A9 by visiting her in her house as also by contacting her through the mobile phone indicating the criminal conspiracy to hush up the occurrence presumably due to her close relationship with A1 who was the principal offender . On 28-10-2005 Seena Antony (CW10) who is a social worker attached to the Medical College hospital, Kottayam had interrogated the girl in detail in the presence of Dr. Diana (CW60). The victim had then narrated the whole story. Seena Antony reported the matter to A7 the Principal as well as to Gopi (CW3) the father of the victim. Gopi and the victim belong to Ezhava community and Gopi is a rubber tapper by avocation. Seena Antony had also met A8 the Director and had informed him about the occurrence. Eventhough both A7 and A8 had obtained complete information about the occurrence from Seena Antony, both of them failed to take action and perform their respective duties. Even the 7th accused when interrogated by the investigating officer has confessed that she is related to A1 although she would say that it is a distant Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:11:- relationship. It is true that both Seena Antony and Dr. Saibuneesa Beevi had revealed the experience of the victim to A7 and A8 only orally. It is also true that Gopi, the father of the victim gave a written complaint to A7 only on 9-11-2005 and even in that complaint what was stated was that something happened to his daughter from the nursing college. But then, the fact that on 5-11-2005 A7 had issued a memo to A1 alleging that A1 had behaved in a disorderly manner will show that A7 had complete knowledge of the occurrence on 5-11-2005. Except going to Gandhinagar Police Station on 10-11-
2005 and handing over the written complaint dated 9-11-2005 given by Gopi, the father of the victim, A7 did not conduct any enquiry, nor did she place A1 under suspension. A reading of Section 6 of the Ragging Act will clearly show that the word used is "complains" and not "complaint" and hence it is obviously clear that even a bonafide oral complaint is taken in by Section 6 of the Ragging Act. Even assuming but not admitting that Section 6 envisages only a written complaint, still there was no justification in discharging the 7th accused who is the Principal of the Institution as she was legally bound to conduct an enquiry as envisaged by Section 6 of the Act. Her duty was not merely to forward the complaint to the Police by rendering a Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:12:- post office service. She had a duty to conduct an enquiry and suspend the erring students besides reporting the matter to the concerned police . Hence, the 7th accused had committed the offence of "deemed abetment" under Sec. 7 of the Ragging Act and punishable under Sec. 4 of the said Act. The faciculous of the memo dated 5-11- 2005 issued by A7 to A1, if read along with the definition of "Ragging" contained in Section 2 (b) of the Ragging Act will clearly show that if not Section 6, Section 7 of the Ragging Act is attracted and Section 7 does not contemplate any written complaint.
DISCHARGE UNDER THE RAGGING ACT - JUDICIAL EVALUATION
8. I am afraid that I cannot agree with the above submissions. 7th accused ( Smt. K.M. Mariyam) is admittedly the Principal of the Gandhinagar School of Medical Education which is one of the self financing institutions directly run by the Mahatma Gandhi University. The 8th accused (Dr. Muraleedharan Nair) is admittedly the Director of a chain of institutions of which the Gandhinagar School of Medical Education is one . Section 6 of the Ragging Act reads as follows:
"6. Suspension of student - (1) Whenever any student or, as the case may be, the parents or guardian, or teacher of an educational institution Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:13:- complains, in writing of ragging to the head of the educational institution, the head of that educational institution shall, without prejudice to the foregoing provisions, within seven days of the receipt of the complaint, enquire into the matter mentioned in the complaint and, if prima facie, it is found true, suspend the student who is accused of the offence, and shall immediately forward the complaint to the police station having jurisdiction over the area in which the educational institution is situate, for further action"
Thus, if a student, parent or guardian or a teacher of an Educational Institution complains in writing to the head of the Educational Institution about ragging , such a head of the institution is to conduct an enquiry into the matter and if the complaint is prima facie found to be true, he or she should suspend the student who has committed the offence and forward the complaint to the police concerned for further action. In case, the enquiry reveals that prima facie there is no substance in the complaint, then the head of the institution is to intimate the said fact in writing to the complainant. Section 7 of the Act reads as follows:-
"7. Deemed abetment:- If the head of the educational institution fails or neglects to take action in the manner specified in Sec. 6 when a complaint of ragging is made, such persons shall be deemed to have abetted the offence of ragging and shall, on conviction, be punished as provided for in Section 4".
Thus, failure to take action under Section 6 of the Act gives rise Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:14:- to a statutory fiction by way of deemed abetment rendering the head of the institution liable for punishment under Sec. 4 of the Ragging Act. Section 4 of the Ragging Act reads as follows:-
"4. Penalty for ragging - Whoever commits, participates in, abets or propagates ragging within, or without, any educational institution shall, on conviction, be punished with imprisonment for a term which may extend to two years and shall also be liable to a fine which may extend to ten thousand rupees.
The word "Ragging" has been defined under Sec. 2(b) as follows:
"(b) "Ragging" means doing of any act, by disorderly conduct, to a student of an educational institution, which causes or is likely to cause physical or psychological harm or raising apprehension or fear or shame or embarrassment to that student and includes - "
9. The expression "head of the Educational Institution" has been defined under Sec. 2(a) as follows:
"(a) 'head of the educational institution' means the Principal or the Headmaster or the person responsible for the management of that education institution".
(emphasis supplied) Thus, head of the educational institution means either the principal or the headmaster or the person responsible for the management of that educational institution. Going by the above definition, there can only be a single person functioning as the head Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:15:- of the institution. Even otherwise, the said expression "the head of the educational institution" can obviously take in only a single person or authority as there cannot be more than one head for an educational institution. In this case, if the 7th accused who is the Principal of Gandhinagar School of Medical Education is the head of the Institution, then the 8th accused who is the Director of a chain of institutions including the Gandhinagar School of Medical Education cannot also be the head of the particular educational Institution. In other words, if the responsibility under Sec. 6 of the Act is on the Principal, then there cannot be a similar responsibility on any person (including the 8th accused) other than the Principal. Hence, it is not possible to blame both A7 and A8 for the alleged failure to comply with the formalities under Sec. 6 of the Act. Going by the respective positions occupied by accused Nos. 7 and 8, I have no hesitation to conclude that what the statute envisages is the head of the particular institution who can obviously be the 7th accused and not the 8th accused. Hence, I am of the view that the head of the educational institution with regard to Gandhinagar School of Medical Education is the 7th accused in this case and not the 8th accused.
10. The further question is as to whether there has been any Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:16:- failure or neglect on the part of the 7th accused in complying with the mandate under Sec. 6 of the Ragging Act. Before deciding this question it will have to be seen as to whether the statutory obligation under Sec. 6 on the head of the institution can arise only on receipt of a written complaint or whether such head of the institution is bound to comply with the formalities stipulated thereunder even on receipt of an oral complaint. The words "complains in writing"
occurring in Sec. 6 of the Act do not admit of any doubt, particularly when one of the duties cast on the head of the institution is to forward the complaint to the police station having jurisdiction over the area. Unless it is a written complaint there cannot be any question of the head of the institution forwarding the same to the police. Moreover, having regard to the purposes for which such an obligation has been cast on the head of the educational institution, it will be unreasonable to expect such a person occupying a pivotal role to act upon oral grievances and thereafter to be found guilty for failure to act on such grievances. The legislature has guardedly employed the words "complains in writing". Thus, it is only when the head of the Institution receives a written complaint that he or she is obliged to perform the duties cast on him or her under Sec. 6 of the Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:17:- Act. When the prosecution has no case that either Seena Antony or A9 had given a written complaint to A7, it cannot be held that A7 committed breach of her obligations under Sec. 6 of the Ragging Act. It is true that on 5-11-05 she is alleged to have issued a written memo to A1 imputing disorderly behaviour on the part of A1. But that was an action done by A7 not in discharge of her statutory obligation under Sec. 6 of the Act. It was presumably an action actuated by a moral obligation on being told that A1 had behaved in a disorderly manner towards a female student. Being the head of the Educational Institution concerned she had a moral duty to do so.
11. Except alleging that she is a close relative of A1, the exact relationship, if any, between A1 and A7 has not been revealed through the statements of any of the prosecution witnesses. When even without a written complaint, A7 had issued a memo to A1 on 5- 11-2005, and had thereafter on 10-11-2005 personally handed over the written complaint dated 9-11-2005 given by Gopi, the father of the alleged victim, to the officer in-charge of the Gandhinagar Police Station, it cannot be said that A7 was protecting A1 out of the alleged relationship which A7 had with A1. The only written complaint which A7 received was from the father of the victim and that was Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:18:- on 9-11-2005. In that complaint there is no allegation of any rape or molestation or sexual exploitation of his daughter. All that is stated in the written complaint is that something happened to his daughter while at the nursing college. Despite the fact that it was a vague complaint A7 was acting in a responsible manner by handing over the complaint to the police for appropriate action. It must be noted in this context that A7 is stated to be a teacher of great repute and a recipient of several pedagogues' medals. It is admitted that A1 was soon arrested by the police. Hence even assuming that A7 had an obligation under Sec. 6 of the Ragging Act to place A1 to A6 under suspension even without a written complaint, it could not have been possible for A7 to place A1 under suspension. I am, therefore, of the view that in the absence of a written complaint, A7, who was the head of the institution had no statutory obligation to comply with the formalities under Sec. 6 of the Ragging Act. It is true that Sec. 7 does not mention about any written complaint but only envisages the making of a complaint of ragging. But then, Sec. 7 is attracted only if there is a failure to take action under Sec. 6 which in turn, postulates a written complaint. If so, there cannot be any deemed abetment by A7 of the offence of ragging so as to attract Sec. 7 and punishable Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:19:- under Sec. 4 of the Ragging Act. This point is accordingly answered against the prosecution and in favour of the defence holding that the Court below was right in discharging accused Nos. 7 and 8 of the offences under the Ragging Act.
POINT NO. 2 DEFENCE PLEA FOR DISCHARGE OF A7 AND A8 FOR THE I.P.C.
OFFENCES
11. Assailing the impugned order so far as it refused to discharge A7 and A8 for the I.P.C. offences, their learned counsel made the following submissions before me :-
There is nothing to show that A7 and A8 hatched a criminal conspiracy with a view to hush up the whole episode. No written complaint had been given to A7 either by Seena Antony or anybody else prior to 9-11-2005. Supimol the alleged victim did not attend the college from 21-10-2005 to 28-10-2005. Even in the written complaint preferred by her father Gopi before A7 it was not stated that Supimol was ragged or ravished. The complaint only mentioned that something happened to the complainant's daughter while she was in the nursing college. Still A7 went out of the way to set the criminal law in motion by personally handing over the said complaint to the Gandhinagar Police on 10-11-2005. A7 was the head of an Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:20:- educational institution and is a teacher having an unblemished career. If a student of hers was admitted in the hospital, she being the head of the Institution had not only a moral duty but also a legal obligation to make enquiries with the doctor about the condition of her student. In that connection if A7 had contacted the doctor concerned (A9) either through the mobile phone or by paying a visit to the house of the doctor, no criminal conspiracy can be inferred between A7 and A9 or between A7 and A8. The allegation against A7 with regard to the offences punishable under Sections 201 and 202 is that A7 did not inform the authorities. In the absence of a written complaint under Sec. 6 of the Ragging Act, A7 had no obligation to inform the authorities. A9 the doctor was not a subordinate of A7 nor was she under the control of A7. A7 had absolutely no authority over the Medical College Hospital, Kottayam so as to influence A9. There is no allegation of A7 causing disappearance of the evidence of the offence so as to attract Sec. 201 I.P.C. The police charge does not contain the ingredients of the said offence. Vide Roshan Lal and Others v. State of Punjab - AIR 1965 SC 1413 and para 16 of Kodali Purnachandra Rao and Another v. The Public Prosecutor, Andhra Pradesh - 1975 (2) SCC 570. There was no intentional Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:21:- omission to give information of the offence by A7 as he was not legally bound to do so. If it was illegal for him to omit to do a particular thing then only it could be said that he was legally bound to do that thing in view of Sec. 43 I.P.C. Even assuming that A7 had information about the commission of an offence punishable under Sec. 376 I.P.C. she had no obligation to give information of the same to the nearest Magistrate or police officer under Sec. 39 Cr.P.C. since the said provision excludes Sec. 376 I.P.C. It is only if there is grave suspicion that A7 and A8 had committed the alleged offences could a charge be framed against them. Where there is only some suspicion and two views are possible, this Court is bound to discharge the accused. See Union of India v. Prafullakumar Samal and Another 1979 (3) SCC 4. Since R8 is the superior of R7, there is nothing wrong if R7 and R8 had some discussion between themselves about the unfortunate incident. From that alone a criminal conspiracy cannot be spelt out. If the statement of Seena Antony is to be believed whatever the girl told her was conveyed to her mother. C.W.1 the mother would say that she was not aware of the sexual exploitation till 9-11-2005. 9-11-2005 is the date on which the girl's father complained about the occurrence. A8 also became aware of the Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:22:- occurrence only on 9-11-2005 as mentioned to him by A7. The next day was a public holiday due to the expiry of the former President Sri. K.R. Narayanan. The subsequent day i.e. 11-11-2005 is the date on which A8 was brutally manhandled by members of the Youth Wing of the C.P.I (M) while A8 was attending a departmental meeting. Hence, A8 cannot be blamed for not taking any action in the matter.
DISCHARGE UNDER I.P.C. OFFENCES
- JUDICIAL EVALUATION
12. I am afraid that I cannot agree with the above defence submissions. It is too early to conclude that there was no criminal conspiracy between A7 and A9 or between A7 and A8. The investigating agency had produced the print outs showing the number of times A7 and A9 had communicated between each other through mobile phones. There is also the statement of a neighbour of A9 to show that A7 had frantically gone to the residence of A9 and both of them had some secret conversation. C.W.3 the father of the victim has stated that on 11-11-2005 when he went to ascertain as to what action had been taken on his written complaint which he had given to A7, he saw A7 and A8 engaged in a conversation and on seeing him they told him that whatever happened is happened and whatever help including monetary assistance that was needed could be provided Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:23:- and the girl could be treated for her mental turmoil. The father then proceeds to say that from the attitude of A7 and A8 the impression which he gathered was that both of them were having full knowledge of the occurrence and were deliberately suppressing the same.
13. In the confessional statement given by A7 she has admitted that A1 who is a 3rd year student of that nursing college is a distant relative of hers. No doubt , it is only if the prosecution witnesses testify before court can it be said that there is legal evidence before court and until then there is only material which is capable of becoming legal evidence. But then, this is sufficient to, prima facie, conclude in support of the prosecution case. The learned trial judge who had the advantage of perusing the entire prosecution records running into several volumes has found , a prima facie, case against A7 to A9. This Court sitting in revision will be loathe to interfere with the discretion validly exercised by the trial judge. I therefore, hold that the order of the court below refusing to discharge A7 and A8 of the offences under the Indian Penal Code does not call for any interference. This point is accordingly answered in favour of the prosecution and against the defence.
14. It is made clear that the observations and findings in the Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008 -:24:- impugned order as well as in this order shall not in any way influence the trial judge while proceeding to try the accused persons. It shall be open to A7 and A8 to apply for personal exemption during the trial and pre-trial stages of the case provided they file the necessary affidavit before the trial court giving the requisite undertaking which will also cover the question of their identity.
These Revision Petitions are accordingly dismissed upholding the common order passed by the trial judge. Since the Court of the Special Judge at Kottayam is lying vacant and the trial of the case should have been over long ago, S.C. No. 79 of 2007 shall stand transferred to the Principal Sessions Court, Kottayam. The Principal Sessions Judge shall try and dispose of the case without any further delay.
V. RAMKUMAR, JUDGE.
ani.