K.C.Peter vs State Of Kerala

O R D E R V.K.MOHANAN,J. ---------------------------------------------------------- Crl.R.P.No. 624 of 2011 'C.R.' --------------------------------------------------------- Dated this the 14th day of March,2011

O R D E R

An unfortunate, innocent and illiterate rustic village girl

was trapped by a sex racket and she is subjected to flesh trade and

according to the prosecution, the present petitioner is one of the

customers, who committed rape on her, and it is that accused

preferred this Criminal Revision Petition, against the order dated

16.2.2011 of the court of Additional Sessions Judge (Special),

Kottayam in Crl.M.A.No.249 of 2011 in S.C.No.89 of 2010, by which

the learned Sessions Judge rejected the plea of the petitioner for a

discharge under Section 227 of the Criminal Procedure Code

(hereinafter referred to for short as 'the Cr.P.C.' only)

2. The brief facts which led to the impugned order are as

follows:-

Originally, Crime No.5 of 1996 of Vanitha Police Station,

Ernakulam, was registered on 24.7.1996 for the offences punishable Crl.R.PNO.624 of 2011

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under Sections 366A,372,373,376 and 344 r/w S.34 of the Indian

Penal Code. Subsequently, the investigation was handed over to

Crime Branch CID, Ernakulam and the case was re-registered as

Crime No.192/CR/96 of CB CID, SIG II, Ernakulam. The case of the

prosecution is that the victim, who was a minor girl, belonging to a

remote village in Nedumangadu in Thiruvananthapuram District, was

enticed and thus abducted by one Ajitha from the lawful custody of

her parents on 21.10.1995 and then, she was entrusted with the first

accused for the purpose of prostitution and for their unlawful

enrichment. According to the prosecution, the victim was trapped by

offering her job at Ernakulam and thus, she was under the illegal

confinement of the first accused from 21.10.1995 onwards and she

was subjected to sexual intercourse with several persons for hire.

Thus, according to the prosecution case, CW1, the girl was molested

about 124 persons during the period from 21.10.1995 till the time of

lodging the F.I.statement. According to the prosecution, during the Crl.R.PNO.624 of 2011

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investigation, though the victim was subjected to molestation by more

than 124 persons, only 45 persons were located and identified. Thus,

finally the prosecution has preferred 23 separate charge sheets. The

present petitioner is the eighth accused in such split charge sheet

No.13, on the basis of which S.C.No.89 of 2010 is instituted in the

above special court. Thus, in the present case, the allegation is that

the first accused entrusted CW1/the victim to accused Nos.2 to 5 and

they confined her in their residential building viz., Karottu Koyikkal

House No.297 situated in Division No.38 of the Cochin Corporation

in Ernakulam Village, which was being conducted as a brothel, and

those accused confined her in that house for 15 days. Thereafter,

according to the prosecution, on 14.11.1995 during night, the 4th

accused, by sharing common intention along with accused Nos.1 to 3

and 5, entrusted the victim, CW1- a minor girl to accused No.6, who

in turn entrusted her to accused Nos.7 and 9 for illicit sexual

intercourse for a remuneration of `.6000/-. The 7th and 9th accused, Crl.R.PNO.624 of 2011

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thus, got possession of the victim and had taken her to the restaurant

attached to the International Hotel at Ernakulam and entrusted her

with accused Nos.8 and 10. The petitioner herein is the 8th accused.

Accordingly, it is the further case of the prosecution that the revision

petitioner and 10th accused took her to room No.406 which is situated

on the 4th floor of the International Hotel at Ernakulam and accused

Nos.7 and 8 had illicit sexual intercourse with CW1 against her will

and without her consent. It is the further allegation that thereafter,

accused Nos.9 and 10 outraged the modesty of the victim CW1. Thus,

according to the prosecution, the accused including the revision

petitioner have committed the offences punishable under Sections

344,372,373,376(1),354 and 109 read with Section 34 of I.P.C. and

with Sections 3(1),5(1)(d)(ii) of the Immoral Traffic (Prevention)

Act,1956 (for short 'the Act'). Before the present proceedings, the

petitioner approached this Court by filing Crl.M.C.No.1544 of 2010 to

quash the entire proceedings in S.C.No. 89 of 2010 pending before the Crl.R.PNO.624 of 2011

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Special Court, more or less on the same grounds as raised herein, but

this Court, by order dated 28.9.2010 in Crl.M.C.No.1544 of 2010,

rejected the prayer and relegated the petitioner to approach the trial

court for discharge under Section 227 of the Cr.P.C. Thus, the

petitioner herein moved Crl.M.P.No.249 of 2011 in S.C.No.89 of

2010 before the court of Additional Sessions Judge, Special Court,

Kottayam seeking his discharge under Section 227 of Cr.P.C., which

was dismissed by the learned Sessions Judge by the impugned order

and accordingly, on 19.2.2011, charge was framed against the

petitioner/8th accused for the offences punishable under Section 342

read with Section 34, 373 read with Section 34, 376 of I.P.C. and

Section 5(i)(a)(1) of the Act read with Section 34 I.P.C. It is the

above charge and order dated 16.2.2011 in Crl.M.P.No.249 of 2011

are challenged in this Crl.R.P.

3. The above revision petition came up for consideration and

admission on 1.3.2011 and at the request of the Public Prosecutor and Crl.R.PNO.624 of 2011

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the Special Public Prosecutor, for getting instructions, the matter was

adjourned and posted to 7.3.2011 for hearing on admission. So, this

matter is heard in the noon session of this Court on 7.3.2011,8.3.2011

and 9.3.2011. Such a schedule was fixed since more time is required

for hearing, which would likely to affect the consideration of other

matters posted for admission and hearing on those dates.

4. Thus, I have heard Sri.C.C.Thomas, learned Senior Counsel

appearing for the revision petitioner, Sri.C.P.Udaya Bhanu, learned

Special Public Prosecutor and Sri.C.K.Suresh, learned Public

Prosecutor of this Court.

5. Sri.C.C.Thomas, learned Senior counsel, in support of the

fervent plea of the revision petitioner for a discharge from the above

Sessions Case, strenuously submitted that the order of the court below

and the charge framed by it are liable to the set aside and the revision

petitioner is entitled to get a discharge. Learned counsel took me

repeatedly through the four statements of the victim recorded under Crl.R.PNO.624 of 2011

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Section 161 of Cr.P.C. on various occasions. Learned counsel also

took me through the 161 statement of the witnesses viz.,

Cws.13,14,15,16,17,18,19 and 20 and submitted that the finding of the

court below that there are grounds to proceed against the revision

petitioner is absolutely incorrect and illegal. According to the learned

counsel, even though the petitioner is forced to undergo the ordeal of

trial, no conviction can be possible. It is the specific submission of

the learned counsel that CW1 is a person, who voluntarily left her

house and parents and came to Ernakulam and subjected herself to

sexual intercourse with various persons voluntarily and at the time of

the alleged rape, that attributed against the revision petitioner, the

victim was not a minor and she had not made any complaint till the

time of launching the F.I. statement and therefore, even if the entire

allegations are accepted as true, no offence under Section 376 of

I.P.C. is attracted against the revision petitioner since CW1 was a

consenting party, especially in view of Section 90 of I.P.C. It is the Crl.R.PNO.624 of 2011

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further submission of the learned counsel that in none of the

statements of victim recorded on various occasions i.e., on

23.7.1996,24.8.1996,25.8.1996 and 30.9.1996, the name of the

petitioner is mentioned by the victim except giving the features of a

person and calling him as 'Big Sir'. In support of the above

contention, the learned counsel invited my attention to a common

order dated 27.12.1996 of this Court in Crl.M.C.Nos.2797 and 2798

of 1996, whereby, while granting anticipatory bail to the petitioner

herein and some other accused, this Court had observed "The

prosecutrix had not either in the F.I.statement or when she was

questioned, said anything against the petitioners." It is also the

contention of the learned counsel that the Police did not conduct any

test identification parade during the investigation and there was no

attempt from the side of the investigating agency to get identified the

revision petitioner/8th accused by CW1 during the course of the

investigation. Thus, according to the learned counsel, the revision Crl.R.PNO.624 of 2011

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petitioner is entitled to get an acquittal, otherwise, no purpose will be

served even if he is forced to face the trial. Learned counsel pointed

out that even according to the case of the prosecution, the revision

petitioner is implicated in the crime on the basis of the confession

statement of A7, who allegedly surrendered before the Police on

10.10.1996. On the strength of Sections 24,25 and 26 of the Indian

Evidence Act, 1872 (for short 'the Evidence Act'), learned counsel

submitted that the confession made by an accused before the Police

either during the custody or otherwise is not admissible. So,

according to the learned counsel, there is no legal evidence to connect

the revision petitioner with the alleged offence especially when the

victim did not identify the revision petitioner. The learned counsel

further submitted that the confession statement of the co-accused, viz.,

A7 has not been produced by the prosecution along with the charge

and as such, there is no document before the court to show that A7

had made a confession. In order to strengthen the above contention, Crl.R.PNO.624 of 2011

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learned counsel further pointed out that according to the prosecution,

A7 has made the alleged confession before Sri.T.P.Sen Kumar, the

S.P. who was supervising the investigation, but the said Police Officer

is not cited as a witness and therefore, the prosecution cannot invoke

the provisions of Section 30 of the Evidence Act and if that be so, the

prosecution will not be in a position to prove the complicity and

involvement of the revision petitioner/accused in the alleged offence.

Learned counsel, after inviting my attention to the various provisions

contained in the Act and the decisions of this Court, has contended

that the owner of the International Hotel or the persons who are

responsible for the conduct of the above International Hotel are not

made as accused and therefore, none of the allegations raised against

the petitioner under the provisions of the Act are attracted.

6. During the hearing of the matter, the learned counsel invited

my attention to a decision of this Court in Tony Antony v. Director

General of Police [1997(2) KLT 853], wherein the Division Bench, in Crl.R.PNO.624 of 2011

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two writ petitions filed by two accused in this case, with a prayer to

quash the criminal proceedings against them, after considering the

arguments advanced in that case and after examination of the materials

thereon, formulated 11 facts which are as emerged in the light of the

facts and circumstances involved in that case and finally observed as

follows:-

"This is not a case where the allegation of rape is levelled against one or two persons who have committed it on one or two occasions. This is not a case where a minor girl was lured into this abominable activity. This is not a case where consent of the victim was obtained by force or on threat of death or hurt everytime when a man had sexual intercourse with her. The version of a woman of this disposition is not so sacrosanct as to be taken for granted."

Thus, according to the learned counsel, the finding on facts arrived on

by the Division Bench are strictly applicable in the present case and

therefore, the petitioner is entitled to get a discharge. Learned

counsel, in the light of the order passed by this Court while granting

bail to the petitioner which indicated earlier, also submitted that there Crl.R.PNO.624 of 2011

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is no possibility to convict the petitioner even if he is compelled to

undergo the trial. Learned counsel also invited my attention to the

decision of the Honourable Supreme Court in State of Kerala v.

O.C.Kuttan (1999 (1) KLT 747 (SC)] whereby the Apex Court has

directed the investigating agency to proceed with the investigation and

to conclude the same as expeditiously as possible, in accordance with

law, but, according to the learned counsel, the present charge against

the revision petitioner was filed only after nine years from the date of

the judgment of the Supreme Court. In the light of the findings and

observations made in the above two quoted cases and the above order

of this Court, the learned counsel submitted that the Division Bench of

this Court has found that the materials furnished by the prosecution at

that time, were not sufficient to convict the accused. It is also the

submission of the learned counsel that even after the judgment of the

Honourable Apex Court in the decision reported in O.C.Kuttan's

case (cited supra), though therein the prosecution submitted that they Crl.R.PNO.624 of 2011

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were at the threshold of the investigation and wanted time to collect

materials, at the time of filing the present charge against the petitioner

and other accused, there are no fresh materials other than what

collected by the prosecution at the time of disposal of those matters.

So, according to the learned Senior Counsel, after the Supreme Court

decision referred to above, the investigating agency has not collected

any fresh or more materials and therefore, the position will be restored

to the stage, at which this Court has disposed of the matters as per the

decision reported in Tony Antony's case (cited supra) and the above

referred order of this Court. Thus, in substance, the submission of the

learned counsel is that this Court, on two occasions as per the decision

in Tony Antony's case [1997(2) KLT 853] and as per the order in

Crl.M.C.Nos.2797 and 2798 of 1996, has categorically observed and

found that no prosecution would lie against the accused in the present

case. So according to the learned counsel, following the said

observations and findings in the above decisions of this Court, this Crl.R.PNO.624 of 2011

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Court can also allow this revision petition and discharge the petitioner

from the above Sessions Case. In support of the above, learned

counsel placed reliance on the following decisions viz., Mandesan v.

State of Kerala[1995 Crl.L.J. 61 ], Jagannivasan v. State of Kerala

[1995 Supp(3) SCC 204], State of Kerala v. O.C.Kuttan [1999(1)

KLT 747], Kurien v. Ranjitha [2000(1) KLT 388], Dilawar Balu

Kurane v. State of Maharashtra [2002)2 SCC 135], Jinish Lal

Sah v. State of Bihar [(2003)1 SCC 605], Uday v. State of

Karnataka [(2003)4 SCC 46], Bhavsingh D.Rathod

v.Asst.Collector of Customs [2005(3) KLT 210], Kurian v. State

of Kerala [2007(3) KLT 36], John Varghese v. Central Bureau of

Investigation [2009(1) KHC 702], X v. State of Kerala[2009(2)

KLT 7] and Joseph v. S.I. of Plice, Munnar [2005(2) KLT 269].

7. On the other hand, Sri.C.P.Udayabhanu, learned Special

Public Prosecutor submitted that the prosecution had recorded the

statements of the victim CW1 on four occasions and in those Crl.R.PNO.624 of 2011

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statements, she explained how she was trapped and the circumstances

under which she was forced to subject herself to various persons at the

instance of the accused. The learned Special Public Prosecutor further

pointed out that the present revision petitioner is a well experienced

Advocate, who occupied various posts relating to the prosecution for

and on behalf of the State and by his experience in the profession and

being a Prosecutor, he knows how a prosecution case and the

investigation can be hijacked. It is the further submission of the

learned Special Public Prosecutor that though the investigating agency

on several occasions required the revision petitioner to co-operate

with the investigation particularly for the test identification parade and

also for the potency test of the petitioner, he never co-operated and

therefore, there is no meaning in the submission of the learned Senior

Counsel that the prosecution has not conducted any test identification

parade or potency test. It is also the submission of the learned

counsel that the materials now referred to by the senior counsel are Crl.R.PNO.624 of 2011

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yet to be adduced and to attain in the form of evidence and the learned

Sessions Judge has already considered the same and found against the

revision petitioner and therefore, there is no ground to interfere with

the order impugned and the petitioner is not entitled to get a discharge.

8. Sri.C.K.Suresh, learned Public Prosecutor emphatically

submitted that the trial court is perfectly legal and correct in exercising

its powers under Section 227 of the Cr.P.C. and the Sessions Court at

the time of framing charge and this Court while exercising the

revisional jurisdiction against an order dismissing the petition for

discharge, need to only consider whether there are grounds to proceed

against the accused including the revision petitioner. Any attempt to

exceed the above limit of jurisdiction will render the entire

proceedings as illegal, improper and irregular. The learned Public

Prosecutor strenuously submitted that the trial court, while framing the

charge, is expected to see whether there is a prima facie case and

ground to proceed against the accused and at the time of framing Crl.R.PNO.624 of 2011

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charge, it is not the duty of the court to see whether the materials

furnished by the prosecution are sufficient to end in a conviction or

otherwise. The learned Public Prosecutor further submitted that at the

time of consideration of the matters pending before this Court or

before the Apex Court, the investigation was not completed and the

observations and findings are made only on the basis of the

preliminary investigation and the initial materials collected and no

report under Section 173(2) of Cr.P.C. was filed. Therefore, the

superficial findings or observation shall not be a guidance for

considering the plea for discharge. Learned Public Prosecutor

emphatically submitted that all the observations and findings made by

this Court in the decision reported in Tony Antony's case (1997(2)

KLT 853) are overruled and set aside by the Apex Court through the

decision reported in O.C.Kuttan's case (1999(1) KLT 747). The

learned Public Prosecutor further submitted that the trial court issued

the impugned order and framed the charge against the revision Crl.R.PNO.624 of 2011

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petitioner after satisfying that the materials and documents furnished

by the prosecution have manifestly made out a prima facie case and

grounds to proceed against the revision petitioner and therefore, the

revision petition is liable to be dismissed. The learned Public

Prosecutor cited the following decisions in support of his arguments,

viz., Matru v. State of U.P.[1971 Crl.L.J.913], State of Maharashtra v.

Priya Sharan Maharaj and Others [(1997)4 SCC 393], Visveswaran

v. State Rep.by S.D.M. [(2003)6 SCC 73], Sarafat v. State of

Uttaranchal [2006 Crl.L.J.654], Vijayan v. State of Kerala [2007(3)

KLT 495], Hem Chand v. State of Jharkhand [AIR 2008 SC 1903]

Sanghi Bros. (Indore)(P) Ltd. v. Sanjay Choudhary [(2008)10 SCC

681], Palwinder Singh v. Balwinder Singh and others [(2008)14 SCC

504],Ram Babu v. State of U.P. [AIR 2010 SC 2143], C.Muniappan

v. State of Tamil Nadu [AIR 2010 SC 3718], P.Vijayan v. State of

Kerala and Another [(2010)2 SCC 398 ], Musheer Khan v. State of

M.P. [(2010)2 SCC 748], Vijay Alias Chinee v. State of Crl.R.PNO.624 of 2011

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Madhyapradesh [(2010)8 SCC 191], Sajjan Kumar v. Central Bureau

of Investigation [(2010)9 SCC 368] and Motilal v. State of

Madhyapradesh [(2008)11SCC 20].

9. I have carefully considered the arguments advanced by

Sri.C.C.Thomas, learned Senior Counsel who appeared for the

revision petitioner and also the arguments advanced by the Special

Public Prosecutor Sri.C.P.Udayabhanu and Sri.C.K.Suresh, the

learned Public Prosecutor and I have carefully scrutinised the

materials and documents made available to me including the C.D. and

the report filed by the prosecution agency after investigation. I have

also gone through the decisions cited by the counsel with utmost care.

10. At the outset, it is to be noted that except the framing of

charge, the trial has not commenced and the process of recording of

evidence is yet to be commenced.

11. The prosecution case, as indicated earlier, is that a minor girl

was removed from the custody of the lawful guardian for the purpose Crl.R.PNO.624 of 2011

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of subjecting her to prostitution by a sex racket and she was subjected

to various persons for sexual intercourse under threat, coercion and

duress and that too without her consent and against her will. Thus, the

specific allegation against the revision petitioner is that he is one of

the customers and on 14.11.1995, he obtained possession of the victim

CW1, a minor girl from the restaurant of the International Hotel at

Ernakulam and took her to Room No.406 of that hotel and committed

rape on her without her consent and against her will.

12. In the light of the above prosecution allegations and the

materials and documents relied on by the prosecution, and in view of

the rival pleadings taken by the contesting parties, the question to be

considered is whether the learned Judge of the Special Court, by his

order dated 16.2.2011 in Crl.M.P.No.249 of 2011 in S.C.No.89 of

2010, is justified in rejecting the plea of the petitioner for discharge

under Section 227 of the Cr.P.C. and whether the said order and the

charge dated 19.2.2011 framed against the petitioner are legally Crl.R.PNO.624 of 2011

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sustainable or the same are liable to be interfered with on the ground

of any illegality, impropriety or irregularity in exercise of the

revisional jurisdiction of this Court.

13. The main argument advanced by Sri.C.C.Thomas, learned

senior counsel in support of the prayer for discharge is that even if the

prosecution materials and evidence are admitted as such, no offence

would lie against the revision petitioner. In support of the above

submission, the learned counsel submitted that CW1 did not mention

the name of the petitioner in any of her statement under Section 161 of

Cr.P.C. and at the most, what can be seen from the statement is that

she called one person as 'Big Sir', but there is no evidence to show that

she inculpated the petitioner in the above crime by using the words as

'Big Sir'. In support of the above point, the learned counsel further

pointed out that no test identification parade was conducted during

the investigation and therefore, there will not be any evidentiary value

even in case CW1 identifies the petitioner during the trial. So, Crl.R.PNO.624 of 2011

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according to the learned counsel, there is no substantial evidence to

connect the petitioner with the crime. It is also the submission of the

learned counsel that even if the allegation of sexual intercourse with

CW1 is admitted, no offence under Section 376 will be attracted since

at the time of the alleged incident, the victim was a major and she had

voluntarily subjected herself for such sexual intercourse. The above

conduct itself is sufficient to show that she was a willing party and

accorded consent for the same. To substantiate the above contention,

learned counsel banked upon the findings and observations of this

Court in the decision in Tony Antony's case (1997(2) KLT 853) and

the bail order dated 27.12.1996 in Crl.M.C.Nos.2797 and 2798 of

1996. Learned counsel further pointed out that in order to connect the

petitioner with the crime, except the confession statement of co-

accused viz, A7, there is no other evidence or material and on the

basis of the confession statement of a co-accused, no conviction can

be sustained. It is also the submission of the learned counsel that the Crl.R.PNO.624 of 2011

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confession statement is not produced and the person before whom the

confession allegedly made is not cited as a witness also.

14. I am unable to sustain the above arguments of the learned

Senior Counsel. As indicated earlier, now the trial is only at the stage

of framing of charge and the process of recording the evidence has

not been started. The scope and jurisdiction of a trial Judge while

framing a charge and while considering the application for discharge

are now well-settled through a catena of the decisions of the

Honourable Apex Court. In State of Maharashtra v. Priya Sharan

Maharaj and others [(1997) 4 SCC 393], the Apex Court has held that

while framing charge, the purpose is limited to find out whether a

prima facie case is made out or not and at that stage, the court is not

required to undertake an elaborate enquiry in sifting and weighing the

material to arrive at the conclusion that it will not lead to conviction. In Palwinder Singh v. Balwinder Singh and Others [(2008) 14 SCC

504], the Apex Court has held that marshalling or appreciation of Crl.R.PNO.624 of 2011

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evidence is not permissible at the stage of framing of charge. It is

also relevant to note that in the decision reported in P.Vijayan v. State

of Kerala and another [(2010) 2 SCC 398], it was held that the court is

not a mere post office and also held that the court has no jurisdiction

to see on the basis of the materials that whether the trial will end in

conviction or acquittal. In Sajjan Kumar v. Central Bureau of

Investigation [(2010) 9 SCC 368], the Apex Court has clearly laid

down the principles and scope of Sections 227 and 228 of Cr.P.C. and

the guidelines to be followed at the time of framing charge. It may be

true that in none of the statements of the victim under Section 161 of

Cr.P.C., the victim has mentioned the name of the revision petitioner.

In this juncture, it is pertinent to note that CW1 is yet to be examined

as a prosecution witness and now at this stage, we cannot anticipate as

to what would be her deposition before the trial court. It is for the trial

court to satisfy as to why the victim failed to mention the name of the

petitioner and under what circumstances the victim mentioned the Crl.R.PNO.624 of 2011

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words 'Big Sir'. It is thereafter only for the trial court to consider the

question whether there is evidence to connect the petitioner with the

alleged incident. It is also for the trial court to appreciate the evidence

in case the victim identifies the petitioner in the box during the trial.

In short, the question regarding the identity of the revision petitioner

is a matter fully within the jurisdiction of the learned trial court Judge

during the time of appreciation of evidence connected with the

identification of the accused. The Apex Court time and again has

held that the sole testimony of prosecutrix can be based for conviction

even in the absence of any corroboration from independent source if

such evidence of the prosecutrix is free from any infirmities and

worthy of credence. The above legal position is settled through the

decision of the Apex Court reported in Vijay alias Chinee v. State of

Madhya Pradesh [(2010) 8 SCC 191]. In this juncture, it is also

relevant to note that the failure on the part of the investigating agency

in conducting test identification parade is not a ground to acquit an Crl.R.PNO.624 of 2011

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accused, especially when the evidence under Section 9 of the

Evidence Act, collecting through the test identification parade only

corroborative in nature and not a substantive evidence. The position

will be more clear from the following decisions. The Apex Court in

the decision reported in Visveswaran v. State Rep.by S.D.M. [2003

(6) SCC 73] has held that non-holding of Test Identification Parade is

not fatal to prosecution especially when accused has not co-operated

during investigation. In C.Muniappan v. State of Tamil Nadu (AIR

2010 SC 3718), the Apex Court has reiterated the position that the

evidence collected through the test identification parade is only to

corroborate the substantial evidence and in the decision reported in

Ram Babu v. State of U.P. [AIR 2010 SC 2143], the Honourable

Apex Court has laid down the use and object of the test identification

parade. So, in the light of the above authorities, I am of the view that

the non-conduct of test identification parade is not a ground to

discharge the revision petitioner at this stage. In this juncture, it is Crl.R.PNO.624 of 2011

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relevant to note that the learned Special Public Prosecutor has pointed

out that in spite of legal notice issued by the investigating agency, the

petitioner did not care to attend the test identification parade and

therefore, the petitioner cannot now turn up and say, no test

identification parade is conducted. The above submission, according

to me, is not baseless, since the same is supported by materials

available in the C.D. Therefore, regarding the arguments with respect

to the identity of the accused and sufficiency of evidence is a matter to

be looked into and to be considered at the time of appreciation of

evidence, that too after the entire evidence is recorded.

15. Another contention advanced by the learned senior counsel

is that the victim is a consenting party and therefore, even if it is

proved that the petitioner had sexual intercourse with CW1, no

offence would lie under Section 376 of I.P.C. against the revision

petitioner. The above contention is also, according to me, to be

appreciated in the light of the evidence yet to be adduced during the Crl.R.PNO.624 of 2011

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trial. As indicated earlier, the specific prosecution case is that CW1,

the victim, when she was a minor, was fraudulently taken from the

custody of her parents by a sex racket and subjected her to sexual

intercourse with several persons. The specific allegation against the

revision petitioner is that he had sexual intercourse with the victim

who was entrusted with him by A7 and A9 in the night of 14.11.1995

in Room No.406 of International Hotel, Ernakulam, without her

consent and against her will. Though I have perused the C.D., I never

come across with any evidence or material of physical resistance from

the part of the victim at the time of alleged rape by the petitioner. It is

true that the victim never made any complaint on or after the alleged

date of incident. It is also true that the statement was launched before

the Police only on a later stage i.e., on 23.7.1996 and thereafter. But

those facts itself are not sufficient for a discharge. The learned

counsel took me through Section 90 of I.P.C. which reads as follows:-

"90. Consent known to be given under fear or misconception.--A consent is not such a consent Crl.R.PNO.624 of 2011

:-29-:

as it intended by any section of this Code, if the consent is given by a person under fear or injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or xxxx xxxx xxxx xxx"

According to the counsel, unless it is proved that the consent was

given under fear or mis-conception, no prosecution would lie against

the petitioner. The learned counsel further submitted that the

prosecution has also to prove that the person doing the act knows, or

has reason to believe, that the consent was given consequent to such

fear or mis-conception. But, according to the learned counsel, there is

no such material or evidence. In this juncture, it is relevant to note

that the prosecution allegation is that after the kidnapping of CW1,

she was under the unlawful custody of the sex racket and she was

forced to undergo sexual intercourse with several other persons before

whom the sex racket produced her for money. According to the

prosecution, the girl was abducted from the lawful custody of her Crl.R.PNO.624 of 2011

:-30-:

parents on 21.10.1995 when she was a minor and she preferred a

complaint before the Police only when she was released from their

illegal custody and confinement. Thus, it can be seen that the incident

connected with revision petitioner/accused had taken place on

14.11.1995, within one month from the date of abduction. According

to the prosecution, the victim is an illiterate village girl. Therefore,

whether the ingredients of Section 90 and Sections 375 and 376 of

I.P.C. are attracted or not is a question to be decided on the basis of

evidence, that is yet to be adduced during the trial. Referring to

Section 90, the learned Senior Counsel submitted that the prosecution

has no case that either the petitioner or any other accused have created

fear of injury or any mis-conception of fact and it is the further

argument of the learned counsel that the prosecution has no case that

the revision petitioner had sexual intercourse with the revision

petitioner by showing any weapon so as to create fear of injury in the

mind of the victim.

Crl.R.PNO.624 of 2011

:-31-:

16. As I indicated earlier, that is a matter to be considered at the

time of trial. Section 375 of I.P.C. defines 'rape' which reads as

follows:-

"375.Rape.-- A man is said to commit "rape"

who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--

First.-- Against her will.

Secondly.-- Without her consent.

Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.-- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-- With or without her consent, when she is under sixteen years of age.

Explanation.-- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Crl.R.PNO.624 of 2011

:-32-:

Exception.-- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."

On a reading of the above section and the exception, among others the

prosecution has to prove the above essential ingredients which are in

the form of exceptions. In the present case, in the light of the

argument advanced by the learned Senior counsel, the exceptions

first,second and third become relevant. On the basis of the facts and

circumstances involved in the case, the learned counsel submitted that

the victim was a consenting party and her consent was obtained not by

putting her or any person in whom she is interested in fear of death or

of hurt. The learned counsel also sought the aid of Section 90 of

I.P.C. which I indicated earlier. It is to be noted, at this stage, no court

can come into a conclusion whether the prosecution has succeeded in

establishing the above essential ingredients of Section 375 I.P.C. since

the recording of evidence is yet to be started. But, it is pertinent to

note that the consent can be obtained under various methods and Crl.R.PNO.624 of 2011

:-33-:

always necessarily need not be a one which is given voluntarily. For

e.g., if a victim is intoxicated without her knowledge or consent and if

the rape is committed while the victim was intoxicated or drunken, it

cannot be said that she had voluntarily given the consent. The third

exception is also one of the situations contemplated where the consent

can be obtained without her voluntariness. Therefore, such passive

consent cannot be treated as a consent as contemplated by Section 90

of I.P.C. In this juncture, it is relevant to note that the legislature is

not expected to employ words without meaning and out of context.

On a plain reading of the main part of the definition, an offence of

Section 375 'rape' is attracted if a man had sexual intercourse with a

woman under any of the exceptional circumstances. In the present

case, it is relevant to note that if the consent was obtained/given under

the facts and circumstances indicated earlier, in order to escape from

the penal liability, the accused has to show that the woman has

consented for the same, as contemplated under Section 90 of I.P.C. Crl.R.PNO.624 of 2011

:-34-:

The legislature in their wisdom incorporated the first exception with

abundant caution that even if a passive consent was obtained, the

defence has to further show that she was willing for the same. So, the

legislature incorporated the two exceptions for specific purpose and

with clear intention. Here, the first exception is to secure the sanctity

of feminity and therefore, it has to be shown that the woman, after

evaluation of the entire situation and on the basis of her affection and

passion that may be either because of the marital bondage or

otherwise, voluntarily made up her mind and body for such sexual

relationship including intercourse. So even if the consent is obtained

in any of the way which I indicated earlier, unless it is shown that the

victim was a willing party, the accused cannot escape from the penalty

for the offence under Section 375 of I.P.C. So, the question whether

the sexual intercourse was with the consent of the woman or whether

she was willing for the same are the questions to be answered on the

basis of the evidence and its proper appreciation. But, from 161 Crl.R.PNO.624 of 2011

:-35-:

statements of the victim, i.e., the statements dated

23.7.1996,24.8.1996,25.8.1996 and 30.9.1996, it can be seen that the

victim stated that she was told that "Big Sir is a person who hanged

many persons". According to me, it is for the trial court to consider

that if those words and statements are proved as true and correct, how

far the said words influenced or created fear in the mind of a poor

illiterate village girl. According to me, the above phrase or words, if

proved, is more powerful than a sophisticated weapon, which are

sufficient to create fear or inflict wounds in the mind of an illiterate

rustic village girl. The Apex Court in the decision reported in Vijay

alias Chinee' case (supra), a case in which trial was over and the

accused was convicted, held particularly in para 37 as follows:-

"37. Under Section 114-A of the Evidence Act,1872, which was inserted by way of amendment in the year 1988, there is a clear and specific provision that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and she states in her evidence Crl.R.PNO.624 of 2011

:-36-:

before the court that she did not consent, the court shall presume that she did not consent." (emphasis supplied)

In the above case, the Apex Court has also held that as the accused

was unknown to prosecutrix, there is no possibility for false

implication, especially when there is no evidence to that effect. In the

very same decision, the Apex Court has also held that the discrepancy

found in the testimony of victim is insignificant considering that she is

an illiterate rustic village girl and non-resistance is because of fear and

the same is only natural. In this juncture, it is to be noted that now-a-

days, in the State of Kerala, print media as well as electronic media

cover this kind of sexual harassment or trade and the same are being

increased and several innocent girls are the prey of such flesh trade.

On consideration of the Indian tradition and concept of woman, I can

definitely say that no girl or lady or woman will voluntarily offer their

beauty and body to flesh trade unless they are trapped like the present

one. Thus, the question of consent has to be examined in the given Crl.R.PNO.624 of 2011

:-37-:

facts and circumstances and the particular background of that case.

By the influence of western countries, a section of our people, those

who are claimed to have highly educated and intelligent, are also

promoting the western culture which is not digestive for the Indian

citizen, especially the woman who has faith and belief in Indian

tradition and culture. Recently, similar allegations are appeared in the

media against one or two political leaders and they are involved in

such sexual harassment and if the said allegations are true or proved, it

can be seen that those politicians are also recommending such

inhumane invasion against feminity. But according to me, the

provisions and various clauses of the Indian Constitution as well as

other statutes give high respect to women and therefore, no legal

sanctity can be given for such sexual assault whoever be the accused

whether they are political leaders or persons occupied in higher posts

in the State services. But, the concern of the prophets of those

philosophies is that why the police and prosecution are behind the Crl.R.PNO.624 of 2011

:-38-:

persons who enjoyed the sex of a consenting and willing party? This

is one of the philosophies, which our beloved poet Sri.Vayalar

Ramavarma called to condemn or hate as the same is not loving the

paining soul. This erosion of moral value is because of the influence

of the philosophy which treat the women as trade or saleable goods.

17. The another point taken by the learned senior counsel is that

except the confession of the co-accused viz., A7, there is no other

evidence or materials to connect the petitioner with the crime and

according to the learned counsel, the confession of co-accused cannot

be the basis for a conviction and even if such a confession is there, it

is only a corroborative evidence. In this juncture, it is relevant to note

that even though according to the prosecution, CW1 is subject to more

than 124 instance of molestation, the Police could locate only 45

persons. In the present case, the petitioner is implicated in the above

crime as per the report dated 18.12.1996, that too after the confession

statement of A7 when he was arrested on 10.10.1996. The question of Crl.R.PNO.624 of 2011

:-39-:

using confession statement of a co-accused and its evidentiary value

etc. are to be considered at the time of trial and during the appreciation

of evidence. According to the learned counsel, the confession

statement of co-accused before the Police is hit by Sections 24,25 and

26 of the Evidence Act and in the present case, even according to the

prosecution, A7 made the confession before the Superintendent who

supervised the investigation, but that person is not made as a witness

and such confession statement is not produced. So according to the

learned counsel, the confession statement of the co-accused relied on

by the prosecution has no use in the trial. I am unable to sustain the

above contentions as such. Section 30 of the Evidence Act reads as

follows:-

"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.-- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against Crl.R.PNO.624 of 2011

:-40-:

such other person as well as against the person who makes such confession.

[Explanation.-- "Offence", as used in this section, includes the abetment of, or attempt to commit the offence]"

From the very reading of the above section, it is clear that the purpose

of Section 30 and the purpose of Sections 24,25 and 26 of the

Evidence Act are entirely different and distinct. On a close reading of

Section 30, it can be seen that the confession of co-accused before

Police is not specifically excluded. The confession statement

contemplated by Section 30 need not, necessarily, be made even

before a Magistrate under Section 164 of Cr.P.C. The confession

made by a co-accused, during the joint trial along with the other

accused, before the trial Magistrate or Judge will also come under the

purview of Section 30 of the Evidence Act. Even a statement made

during the stage of Section 313 of Cr.P.C., will attract Section 30 of

the Evidence Act. The main condition to consider and act upon such a

confession statement is that through such confession statement, he Crl.R.PNO.624 of 2011

:-41-:

shall inculpate himself as well as the other accused who jointly tried

along with the maker. A confession statement made by the co-accused

inculpating another accused but exculpating himself-the maker will

not come under Section 30 of the Evidence Act. Of course, the value

of a confession statement made by a co-accused is lesser than the

evidentiary value of the statement of an accomplice. Still then,

according to me, a confession statement of the co-accused can be

considered for the purpose of appreciating the evidence in that trial

and for taking appropriate judicial decision in a criminal trial. The

purpose under which Section 30 was incorporated in the Evidence

Act, according to 69th report of the Law Commission is that if a

person implicates himself (while implicating others), there is some

guarantee that the implication is true. In paragraph 11.78 of the 69th

Law Commission report, it is stated as "It is also said that it is

difficult in such a situation to require the court to exclude the

statement altogether from its mind, when it comes to consider the case Crl.R.PNO.624 of 2011

:-42-:

against the other accused." I am of the view that the above purpose

is more relevant and required in this time. According to me, at the time

of incorporating Section 30 in the Evidence Act, the I.P.C. offences

against the mankind and the society are comparatively lesser than the

present one. Now-a-days, the number of economic offences and other

offences connected with monetary interest are being increased and to

commit such offences, the wrong doers are using all the modern

sophisticated devices so as to screen the offenders, offence and

evidence and to escape from the clutches of law and penal liability.

Such economic offences as well as crimes are being committed in

pursuance of criminal conspiracy and by way of abetment and

particularly with the help of modern devices including computers.

Therefore, though it is not practically impossible, it is difficult to get

direct evidence. Therefore, utility of Section 30 now-a-days is far

more than the earlier time and according to me, in dispensation of

criminal justice, Section 30 of the Evidence Act is inevitable and the Crl.R.PNO.624 of 2011

:-43-:

legal and moral sanctity has to be given to Section 30. For the above

reason, I am of the firm view that the recommendation of the Law

Commission, that contained in its 69th report to delete Section 30 of

the Evidence Act is not in accordance with the demand of the time.

Therefore, as rightly pointed out by the learned Sessions Judge, the

confession statement of the co-accused is admissible or inadmissible

are matters to be considered at the time of trial. Hence, the contention

raised by the learned counsel against the confession statement of the

co-accused is not sustainable at this stage.

18. The next contention of the learned senior counsel is that in

the light of the observation and the findings of this Court in the

decision in Tony Antony's case (1997(2) KLT 853) and

Crl.M.C.Nos.2797 and 2798 of 1996, no conviction is possible. In

this juncture, it is relevant to note that the Honourable Apex Court, as

per its decision reported in O.C.Kuttan's case (1999(1) KLT 747),

has specifically overruled the findings of the Division Bench of this Crl.R.PNO.624 of 2011

:-44-:

Court that contained in the decision reported in Tony Antony's case

(1997(2) KLT 853) which is relied on by the learned senior counsel,

since, according to the Honourable Apex Court, those findings of facts

and the proposition are beyond the jurisdiction of this Court under

Article 226 of the Constitution of India. It is also relevant to note that

at the time of considering the petition for bail or anticipatory bail, this

Court need to look into the prima facie case, if any, made against the

accused by the prosecution and materials collected by them during the

time of consideration of that petition and the other parameters

formulated through rulings of various courts. The consideration, at

the time of prayer for bail or anticipatory bail and the prayer for

discharge, is entirely different. At the time of framing charge, the trial

court has to scrupulously scrutinize the prosecution materials for its

satisfaction whether sufficient grounds are made out to proceed

against the accused and not for any objective assessment as to whether

the trial is likely to end in conviction or acquittal. In the present case, Crl.R.PNO.624 of 2011

:-45-:

after such consideration, the learned Sessions Judge has categorically

found that there are sufficient grounds to proceed against the revision

petitioner. Therefore, this Court is not bound to follow the

observation made by the learned single Judge of this Court while

disposing of the bail application even though the same is connected

with the same crime and the observation and findings of the Division

Bench of this Court in Tony Antony's case (1997(2) KLT 853),

especially when those findings and observations were overruled by the

Honourable Apex Court, through the decision in O.C.Kuttan's case.

19. The Honourable Apex Court, time and again, has held that

the paramount consideration at the time of framing of charge is

whether the prosecution has made out a prima facie case or sufficient

grounds to proceed against the accused. As I indicated earlier, the

consideration is certainly not for an objective assessment as to

whether trial will end in conviction or acquittal. On the basis of the

materials, viz., the prosecution records including various statements of Crl.R.PNO.624 of 2011

:-46-:

CW1 recorded under Section 161 and the 161 statement of

Cws.13,14,15,16,17,18,19 and 20, the learned counsel submitted that

there is no possibility for any conviction. The above submission,

according to me, is against the dictum laid down by the Apex Court in

the decision reported in Sanghi Brothers (Indore) Private Limited v.

Sanjay Choudhary and Others [(2008) 10 SCC 681],. Paragraph 14 of

the above decision reads as follows:-

"14. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."

In the light of the above discussions and observations and in view of

the above decision, it is crystal clear that all those contentions raised

by the Senior Counsel are liable to be considered only after the stage

of evidence and not at this stage.

20. Learned Senior Counsel for the revision petitioner submitted Crl.R.PNO.624 of 2011

:-47-:

that though the Apex Court has directed the investigating agency to

expedite the investigation, they took nine years for filing the report.

So, at this belated stage, even if the trial has taken place, there is no

chance for fruitful prosecution and therefore, on that count also, the

revision petitioner is entitled to get discharge. It is true, there is some

delay in the commencement of trial after investigation, but the fact

indicated earlier would show that various accused and prosecuiton

preferred various proceedings either before this Court or before the

Apex Court and such proceedings also affected the investigation

which resulted in delay. However, learned Special Public Prosecutor

has submitted that along with the present Sessions Case, several other

connected cases are also scheduled for trial and as per the present

schedule, the prosecution evidence of all Sessions Cases i.e.,

S.C.Nos.267 of 2000, 268 of 2000, 236 of 2009, 237 of 2009, 238 of

2009, 239 of 2009, 89 of 2010 (the present case) and 100 of 2010 are

scheduled to be started on 15.3.2011 and to be completed on 9.5.2011. Crl.R.PNO.624 of 2011

:-48-:

In all the above cases, the victim is summoned to examine 15.3.2011

(S.C.267 of 2000), 16.3.2011 (SC268 of 2000), 18.3.2011 (SC 236 of

2009), 21.3.2011 (SC 237 of 2009), 22.3.2011 (SC 238 of 2009),

22.3.2011 (SC 239 of 2009), 17.3.2011 (SC 89 of 2010) (the present

case) and 19.3.2011 (SC 100 of 2010). Thus, according to the Special

Public Prosecutor, in case of stay of the trial, the entire schedule will

collapse and the prosecution may not be in a p[position to proceed

with the trial. I find some substance in the above submission. As

indicated above, the continuous examination of the victim/CW1 is

scheduled from 15.3.2011 to 9.5.2011 in all the above Sessions Cases.

21. In this juncture, according to me, the decision of the

Honourable Apex Court in V.S.Achuthanandan v. R.Balakrishna

Pillai [2011(2) Supreme 1] is relevant particularly paragraph 49 which

reads as follows:-

"49. Before winding up, it is our duty to point out in all the cases in which charges relating to corruption by public servants are involved, normally take longer time to reach its finality. The facts and Crl.R.PNO.624 of 2011

:-49-:

figures, in the case on hand, which we have already mentioned clearly show that the contract relates to the year 1982 and the State Government initiated prosecution in 1991, however, the trial prolonged for nearly nine years and the Special Court passed an order convicting the accused only on 19.11.1999. When the matter was taken up by way of appeal by the accused to the High Court even in 1999 itself, the decision was rendered by the High Court acquitting all the accused only in 2003. In the same manner, though the appellant challenged the order of the High Court acquitting all the accused before this Court even in 2005, it has reached its finality only in 2011 by the present order. Though the issue was handled by a Special Court constituted for the sole purpose of finding out the truth or otherwise of the prosecution case, the fact remains it had taken nearly two decades to reach its finality. We are conscious of the fact that the Government of India, Department of Law & Justice is making all efforts for expeditious disposal of cases of this nature by constituting Special courts, however, the fact remains that it takes longer time to reach its destination."

In the present case, though the offences are entirely different from the

above cited case, it can be seen that though the alleged offence was

committed on 14.11.1995, on which date the victim was a minor and

she was abducted from the lawful custody of her parents on

21.10.1995. As on today 15 years and four months are over. All the Crl.R.PNO.624 of 2011

:-50-:

cases are now ripe for trial. In this case also, a Special Court has been

established for the trial of the above case. In the very same paragraph,

the Apex Court has further held as follows:-

"We are of the view that when a matter of this nature is entrusted to a Special Court or a regular Court, it is but proper on the part of the court concerned to give priority to the same and conclude the trial within a reasonable time. The High Court, having overall control and supervisory jurisdiction under Article 227 of the Constitution of India is expected to monitor and even call for a quarterly report from the court concerned for speedy disposal. Inasmuch as the accused is entitled to speedy justice, it is the duty of all in charge of dispensation of justice to see that the issue reaches its end as early as possible."

So, following the letter and spirit of the decision of the Apex Court

cited supra, I am of the view that unless the trial is allowed to carry on

as scheduled, it will be delayed further and the trial will not be ended

in its logical conclusion in the near future. According to me, on a

careful consideration of the prosecution allegations, supported by the

above materials, it can be seen that if the same are not disputed or

controverted, there is every chance for a conviction of the revision Crl.R.PNO.624 of 2011

:-51-:

petitioner. Therefore, the contention raised by the learned counsel

that no conviction would warrant against the revision petitioner even

in case of admitting the prosecution materials, according to me, is not

sustainable.

22. In the light of the above facts, circumstances and the

discussions and in view of the decision cited above, I am of the

opinion that the impugned order and the charge framed against the

revision petitioner require no interference and they are legal, correct

and proper and as such, there is no merit in the revision petition and

the same is liable to be dismissed.

23. It is beyond dispute that the revision petitioner is an

Advocate practising in this High Court and he is having a long

standing and he had occupied the post of Public Prosecutor as well as

the Additional Director General of Prosecutions. The trial court is

situating in Kottayam District. Considering the age of the revision

petitioner and the above indicated facts, I am of the view that it is only Crl.R.PNO.624 of 2011

:-52-:

just and proper to direct the learned Sessions Judge to consider the

request of the petitioner, if any, to exempt him from physical presence

during the trial and I am sure that the learned Sessions Judge will not

insist for the physical presence of the revision petitioner unless the

same is indispensable. It is made clear that the above discussion,

observations and findings are only for the purpose of answering the

issue formulated in this Crl.R.P. and therefore, the learned Sessions

Judge of the trial court is directed to proceed with the trial as

scheduled and dispose of the same untrammelled by any of the above

observations and findings contained in this order.

Subject to the above observation and direction, this

Criminal Revision Petition is dismissed.

V.K.MOHANAN, Judge.

MBS/ Crl.R.PNO.624 of 2011

:-53-:

Thus, it can be seen that the specific allegation against the petitioner is

that during the night of 14.11.1995, the petitioner got the possession

of the victim CW1 a minor girl from the restaurant of the International

hotel and he took her to room No.406 of that hotel and thus committed

rape on the above victim with her consent and against her will Crl.R.PNO.624 of 2011

:-54-: