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Kerala High Court · body

2014 DIGILAW 210 (KER)

V. T. Madhu v. State of Kerala

2014-03-06

N.K.BALAKRISHNAN

body2014
Judgment 1. The 7th accused in Sessions Case No. 322 of 2012 is the petitioner in this Revision Petition. An application was filed by him before the learned Sessions Judge for getting an order of discharge. It was dismissed by the learned Sessions Judge. That order is challenged in this Revision Petition. 2. It is alleged that the victim girl who was aged about 16 years at the relevant time was coerced and threatened by her own father (accused No.1) to have illicit sexual intercourse with other persons, telling her that she would get an opportunity to act as an actress in Cinemas and Serials. The victim girl (CW1) did not oblige her father. He threatened her and subjected her to all sorts of cruel treatment. She was taken by her father to Kadavanthra, Palarivattom, Chlakkudy, Athirappally, Munnar, Bangalore, Thrissur Maprandom, Mysore, Ootty, Thammanam, Kakkanad, Thiruvananthapuram, Kannur and so many other palaces. She was taken to hotels and flats and allowed persons who reached there to rape her. It continued for days or months together. After several days she could some how escape from the clutches of the accused persons. The statements would show that all those persons had sexual intercourse with her against her will and without her consent. Most often her father had threatened whenever she expressed her unwillingness. 3. It is stated that altogether 52 cases were registered. Some of the cases were charge-sheeted and after complying with the procedure prescribed, those cases were committed to the Court of Session. The learned Director General of Prosecution submits that six cases were already disposed of in which most of the accused including the first accused, (the father of the victim girl) were convicted and sentenced. It is further submitted that the trial is going on in two other cases. 4. The learned Director General of Prosecution submits that six cases were already disposed of in which most of the accused including the first accused, (the father of the victim girl) were convicted and sentenced. It is further submitted that the trial is going on in two other cases. 4. The learned counsel for the petitioner/the 7th accused submits that the learned Sessions Judge dismissed his petition holding that the presumption under Sec. 114A of Evidence Act is available but so far as the petitioner is concerned there is no allegation that he raped or attempted to rape CW1 and so the presumption under Sec. 114A cannot be applied at all by the prosecution against this petitioner and, if there is no other evidence, the trial against this petitioner would be an abuse of the process and so the order passed by the learned trial Judge declining the prayer for discharge made by this petitioner is to be set aside. 5. It is vehemently argued by the learned Senior counsel that even if the statements of the entire prosecution witnesses relied upon by the prosecution in this case are taken as true, there is no material to hold that the accused has committed any offence. In the charge-sheet, the offences alleged are under Sections 366A, 372, 373, 506(i), 511 of 376 and 354 read with 34 I.P.C. and Sec. 23 of Juvenile Justice (Care and Protection of Children) Act, and Sec. 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956. It may be remembered that each of the accused may not be charged with all the offences mentioned above. 6. The petitioner who is the 7th accused was a Motor Vehicle Inspector. There was another person 6th accused, who was also a Motor Vehicle Inspector. This accused and A6 were identified by the victim girl. The statements of the victim were recorded by the Investigating Officer on several occasions. Her statement was also recorded by the learned Magistrate on different occasions under Sec. 164 of Cr.P.C. 7. The identifying features of this petitioner were specifically mentioned by her (CW1) and the name of the petitioner was also mentioned in her statement given to the police and also in the statement given to the learned Magistrate. 8. Her statement was also recorded by the learned Magistrate on different occasions under Sec. 164 of Cr.P.C. 7. The identifying features of this petitioner were specifically mentioned by her (CW1) and the name of the petitioner was also mentioned in her statement given to the police and also in the statement given to the learned Magistrate. 8. No doubt, if the Court upon consideration of the record of the case and the documents submitted therewith considers that there is no sufficient ground for proceeding against the accused, he shall be discharged. Record of the case includes the statements of the witnesses relied upon by the prosecution. 9. The learned Director General of Prosecution would submit that the victim girl has narrated in her statement before the Investigating Officer and also before the Magistrate as to the relevant facts. It was stated that she was taken by this petitioner and the sixth accused to a particular house (the particulars of which were given in her statement). The victim was made to stay in the house. It is submitted by the learned DGP that on that day the sixth accused entered the room where CW1 was staying and when he approached her to have sexual intercourse she told that she was feeling unwell as it was during her menstrual period. Thereafter the sixth accused left that room. It is stated that the petitioner herein also entered that room evidently to have sexual intercourse with her. It is true that the statement would show that the accused did not do anything upon her because the victim told him that she was unwell because of the reason stated above. But the statement would show that the victim girl was taken to a far away place (to a room/rented house mentioned in her statement) for the purpose of having sexual intercourse with her. 10. The consistent statement of the girl was that the other accused persons who had sexual intercourse with her did so without her consent and against her will. What was the occasion or necessity for this petitioner (A7, a Motor Vehicle Inspector) to take this girl who was far below 18 years, from Aryas Hotel in Chandranagar at Palakkad, in his (petitioner's) car to a house in his possession and make her stay during that night. What was the occasion or necessity for this petitioner (A7, a Motor Vehicle Inspector) to take this girl who was far below 18 years, from Aryas Hotel in Chandranagar at Palakkad, in his (petitioner's) car to a house in his possession and make her stay during that night. The learned Director General of Prosecution submits that the sixth accused approached her to have sex with her and only because of the reason stated above he could not do it. The further fact that this petitioner also approached her for the very same purpose is clear from the statement given by her. The fact that because of the reason stated above, they could not have sexual intercourse with her is no reason to say that this petitioner is an innocent naive as the petitioner wanted to contend, the learned Director General of Prosecution submits. 11. The statements would show that A6 and A7 reached in front of Aryas Hotel at Chandranagar in a Maruthi Swift Car having a particular registration number. (Number is seen mentioned in her statement). That car was used by the petitioner. According to the prosecution, actually A6 and A7 purchased the victim girl to be used during that whole night for the purpose of having sexual intercourse or to rape that girl. The amount fixed was Rs. 10,000/-which was to be paid to the 3rd accused as a reward/consideration for giving the girl to the petitioner and A6. Thus, this petitioner and the 6th accused took that girl to the room in the car owned and used by this petitioner. How could the petitioner who is not his relative or friend or anybody else, get her custody from the 3rd accused, and take her to be stayed in his room for one day. The purpose is very clear as can be seen from the statement given by the witness that the sixth accused at first approached her as has been mentioned earlier and thereafter this petitioner also approached for the same purpose, though they could not have sexual intercourse with her on that day because of the reason stated above. 12. The purpose is very clear as can be seen from the statement given by the witness that the sixth accused at first approached her as has been mentioned earlier and thereafter this petitioner also approached for the same purpose, though they could not have sexual intercourse with her on that day because of the reason stated above. 12. The learned Director General of Prosecution submits that but for that reason the petitioner and the sixth accused would have had sexual intercourse on that day and it was for that purpose the girl was taken by this petitioner and the sixth accused to that room where she was made to stay during the whole night. The statement would also show that on the next day in the Maruti Swift Car mentioned earlier he took the victim and handed her over to the 3rd accused in front of Aryas hotel. The statements given by CW1 and other witnesses would show that the petitioner had assisted in the aforesaid acts which according to the prosecution would certainly attract the offence under Section 373 of I.P.C. 13. The girl was then aged far less than 18 years. Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The statements which have been earlier referred to would clearly show that this petitioner has also obtained CW1 for rape or for illicit intercourse. At any rate, this petitioner had the knowledge that CW1 was likely to be used for any of the purposes mentioned above.; it is so gatherable from the statement of CW1. 14. It is not a case where the petitioner or the sixth accused had any sort of relationship with CW1. At any rate, this petitioner had the knowledge that CW1 was likely to be used for any of the purposes mentioned above.; it is so gatherable from the statement of CW1. 14. It is not a case where the petitioner or the sixth accused had any sort of relationship with CW1. The statements given by CW1, if accepted as true at the trial, can certainly be made use of to hold that this petitioner can also be found guilty of the offence under Sec. 373 of I.P.C. The learned Director General of Prosecution submits that there are other materials also to connect the petitioner. Those materials are now not dealt with in detail, lest it should prejudice the prosecution at the time of trial. 15. I have gone through the case diary statements and the statements of the victim recorded by the learned Magistrate on various occasions. The learned Director General of Prosecution would submit that the house in question where CW1 was taken for the purpose as aforesaid was taken on rent by the petitioner herein in November 2009 and it was to that place he and the 6th accused knowingly took that girl to have their 'night stay' there. The sixth accused is also an officer of the Motor Vehicles Department. Therefore, that is also a circumstance to hold that the sixth accused and the petitioner herein had shared the common intention, the learned Director General of Prosecution submits. How the evidence given by CW1 and other witnesses can be connected to find whether the offence complained of against the petitioner would be proved or not is not something to be meticulously examined at this stage. At the time of framing charge the court is not expected to embark upon a roving enquiry into the pros and cons nor should the court scrutinize or analyse each and every sentence as if the argument is addressed after the culmination of the trial. 16. What was the occasion or necessity for the petitioner and the sixth accused to purchase the girl and why they happened to take that girl to the room mentioned earlier in the petitioner's car is the pertinent question, posed by the prosecution. True, that in respect of those factors the evidence has to be adduced. 16. What was the occasion or necessity for the petitioner and the sixth accused to purchase the girl and why they happened to take that girl to the room mentioned earlier in the petitioner's car is the pertinent question, posed by the prosecution. True, that in respect of those factors the evidence has to be adduced. Now what the court is expected to see is whether from the statements given by CW1 and from the statements of other witnesses, court finds materials to prove the identity of this petitioner and the sixth accused and whether the act complained of would attract any of the offences mentioned in the charge-sheet. Though so many sections were mentioned in the charge, so far as the petitioner is concerned, all those other sections may not be relevant. It is for the learned trial Judge to frame the charge pin pointing the allegation against this petitioner in the charge which is to be framed by the learned Judge. For that purpose other provisions like Sections 34, 35, 37 and 38 of IPC can also be made use of by the learned Sessions Judge, the prosecution contends. 17. According to the prosecution, this petitioner had assisted the sixth accused in the commission of offences including one under Sec. 511 of 376 and/or Sec. 354 I.P.C. Now, I am not venturing into all those aspects, since it is for the learned Sessions Judge to frame charge under appropriate sections. There can be alternative heads/charges also. The contention that if at all the allegation made by CW1 can be made use of only against the sixth accused and not against this petitioner is also untenable, the learned Director General of Prosecution submits. The sixth accused and this petitioner went together to Aryas Hotel, they took the girl in the very same car to the room mentioned earlier which belonged to or which was in the occupation/possession of the petitioner. The sharing of common intention,co-operation or assistance they rendered is a matter to be inferred after the evidence is adduced on those points. The contention that there is total absence of material to frame charge against this petitioner, is found to be untenable. It is not for this Court to direct the learned Sessions as to which all are the sections under which the charge can be framed. The contention that there is total absence of material to frame charge against this petitioner, is found to be untenable. It is not for this Court to direct the learned Sessions as to which all are the sections under which the charge can be framed. The learned trial judge after examining the materials and the records produced against each of the accused would certainly frame charges under different heads 18. The learned Sr. Counsel has relied upon the decision in Tarkeshwar Sahu v. State of Maharashtra, (2006) 3 SCC Crl. 556. That has been cited to say what are the ingredients necessary to attract the offence of rape as defined in Sec. 375 I.P.C. It may be correct that there is no specific allegation against this petitioner that he had raped CW1. But there are other offences with which he can be charged. I have already dealt with one of the Sections of offence. The learned Director General of Prosecution submits that the case cited supra above was one where the relevancy or acceptability of the evidence was considered after the trial and not in a case where the application was filed for discharging an accused under Sec. 227 of Cr.P.C. 19. The learned DGP has relied upon the decision in Abhayanand Mishra v. State of Bihar - AIR 1961 SC 2168 in support of his submission that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it and that exhaustive precise definition of what would amount to an attempt to commit an offence is not possible. In the aforesaid decision it was held by the Hon'ble Supreme Court thus: “There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence”. 20. The question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependant on the nature of the offence and the step necessary to take in order to commit it. A culprit first intends to commit the offence and makes preparation for committing it. Thereafter, he attempts to commit the offence. If the attempt succeeds he is held to have committed the offence. But if it fails due to reasons beyond his control he is said to have attempted to commit the offence. Therefore, it can be said that the attempt to commit an offence beings when the preparations are complete and the culprit commences to do something with the intention of committing the offence which is a step towards the commission of the offence. Therefore, the moment he commences to do an act when the necessary intention commences to commit the offence, he must be said to have attempted to commit the offence. The learned DGP submits that if the attempt made by the accused had succeeded the offence charged would have been committed but only because of the reasons stated earlier, this petitioner and the 6th accused could not do the act. True that intention alone is not punishable. But the prosecution contends that here certain acts and circumstances attributed against this petitioner and the 6th accused would clearly show that he has committed the offence or attempted to commit the offence punishable under Section 373 I.P.C. 21. It is vehemently argued by the learned Sr. True that intention alone is not punishable. But the prosecution contends that here certain acts and circumstances attributed against this petitioner and the 6th accused would clearly show that he has committed the offence or attempted to commit the offence punishable under Section 373 I.P.C. 21. It is vehemently argued by the learned Sr. Counsel that if at all it can only be said that there was a desire, something in the mind of the petitioner, to have sex with the girl or something of that nature and if at all it can only be said, even if the entire case of the prosecution is accepted, that there was a preparation also but did not go further so as to contend that there was an attempt. As held by the Hon'ble Supreme Court, there is a thin line between the preparation and attempt to commit an offence. It is too early for this Court to say whether there was only a preparation or an attempt. 22. The decision of the Supreme Court in State of Maharashtra v. Mohd. Yakub and Others - AIR 1980 SC 1111 has also been relied upon by the learned Director General of Prosecution, to highlight as to what constitutes an attempt. It is most often a question of fact and some times it may be a mixed question of law and fact depending largely on the circumstance of a particular case. It is pointed out that this petitioner and the other accused entertained the idea or intention to commit the offence which is discernible from the fact that they purchased the girl for consideration though it was not paid immediately but promised to be paid on the next day; they took the girl to the room mentioned earlier to use her during the whole night, but they could not do so only because of the reason stated above. There was deliberate overt steps taken by this petitioner also to commit the offence and such overt act or step in the peculiar circumstances of the case would be sufficient to hold that there was an attempt, the Prosecution contends. There was deliberate overt steps taken by this petitioner also to commit the offence and such overt act or step in the peculiar circumstances of the case would be sufficient to hold that there was an attempt, the Prosecution contends. It is also argued that the expression “attempt” is wide enough to take in its fold any one or series of acts committed beyond the stage of preparation as is discernible in this case since the girl was obtained for consideration and she was taken to the room for the purpose as stated above. The inference arising out of the facts and circumstances, according to the Prosecution, if proved at the time of trial would lead to the conclusion that the accused isguilty of 'attempt' to commit the major/main offence. 23. It is also submitted on behalf of the prosecution that the entire factual scenario may have application at the time of the final hearing after the trial The role of the father of the victim who made available the girl for so many other persons on earlier occasions (in respect of which other cases were also registered) and the role of the 3rd accused may have rational nexus with the allegations levelled against this petitioner and the sixth accused. It is in that back ground the evidence has to be appreciated. The acts done were necessarily done towards the commission of the offences and those acts had proximity in relation to the intention. The victim girl is yet to be examined in court. What would be the nature of the evidence that may be given by her and how the evidence given by her can be connected to other circumstances, which could be produced by the prosecution, is not something to be gone into at this stage. It is also not proper for this Court to make any comment on the acceptability or otherwise of such statements or materials or the circumstances which the prosecution can produce at the time of trial, lest it will prejudice the prosecution or the accused. The question is whether the prosecution has made out a prima facie case or sufficient ground to proceed against this accused. The charge need not be on all the heads as shown in the charge sheet since some of the sections may be applicable only against some of the accused persons. 23. The question is whether the prosecution has made out a prima facie case or sufficient ground to proceed against this accused. The charge need not be on all the heads as shown in the charge sheet since some of the sections may be applicable only against some of the accused persons. 23. The learned Director General of Prosecution would also rely upon the decision of the Supreme Court in Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 in support of his submission that where the materials placed before court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge while proceeding with trial. There was absolutely no explanation as to how the petitioner and the other accused happened to receive the girl from A3, and to take her to the room to have stay with her the whole night. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down any rule of universal application. No doubt, even at the time of framing charge, the court has to consider the broad probabilities of the case, the total effect of the evidence and the documents that may be produced before Court or any basic infirmities appearing in the case and so on. But that does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if the court is hearing an argument after the conclusion of the trial. The ground mentioned in Sec. 227 of Cr.P.C. in the context, is not a ground for conviction but the ground for putting the accused on trial It is in the trial the guilt or innocence of the accused is determined and not at the time of framing of charge. Therefore, the Hon'ble Apex Court has held that the court need not undertake an elaborate enquiry in sifting and weighing material nor is it necessary to delve deep into various aspects See State of Bihar v. Ramesh Singh (1977) 4 SCC 39 . It was followed by the Supreme Court in Stree Atyachar V. Parshad Dilip Nathumal (1989) 1 SCC 715 = 1989 KHC 273. It was followed by the Supreme Court in Stree Atyachar V. Parshad Dilip Nathumal (1989) 1 SCC 715 = 1989 KHC 273. The evidence that may have to be adduced in this case has to be analysed bearing in mind the factual matrix of this particular case and the circumstances emerging therefrom. I cannot agree with the submission made by the learned Senior Counsel for the petitioner that there is no sufficient ground to put the accused to trial. The request for discharge was rightly turned down by the learned Sessions Judge. Hence, this Crl. R.P. is dismissed. It is made clear that the observations made by this Court in this order is only for the purpose of this Criminal Revision Petition. The learned Addl. Sessions Judge will dispose of the case uninfluenced by any of the observations made in this order.