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
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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.
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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
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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
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.