IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 OP(Crl.).No. 2626 of 2011() --------------------------- SC.100/2000 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM .................... PETITIONER /DEFACTO COMPLAINANT --------------------------------------------------------- SEENA, AGED 29 YEARS, D/O. ABDUL WAHID, THOTTARIKATHU VEEDU, THOTTUMUKKU, THOLIKODE, NEDUMANGADU, TRIVANDRUM. BY ADVS. SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE SRI.PRASAD CHANDRAN SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE SMT.H.SUBHALEKSHMI RESPONDENT(S)/STATE AND RESPONDENT ----------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. THE SPECIAL PUBLIC PROSECUTOR FOR VITHURA CAES, ADDITIONAL SESSIONS COURT (SPI) KOTTAYAM - 686 001. R1 BY PUBLIC PROSECUTOR SMT.R.REMA R2 BY ADV. SRI.C.P.UDAYABHANU THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(Crl.).No. 2626 of 2011() --------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.100 OF 2000, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. EXT.P2. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.267 OF 2000, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. EXT.P3. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.268 OF 2000, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. EXT.P4. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.236 OF 2009, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. EXT.P5. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.237 OF 2009, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. EXT.P6. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.238 OF 2009, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. EXT.P7. COPY OF THE SUMMONS ISSUED IN SESSIONS CASE NO.239 OF 2009, BY THE ADDITIONAL SESSIONS COURT (SPI), KOTTAYAM DATED 30.6.2011. RESPONDENT'S EXHIBITS : NIL ------------------------------------ / TRUE COPY / P.. TO JUDGE VK N.K.BALAKRISHNAN, J ------------------------------------------------- O.P(Crl.) No.2626 of 2011 -------------------------------------------------- Dated this the 24th day of October, 2011 J U D G M E N T The petitioner is a victim/defacto complainant in the 'Vithura sex scandal case'. The case was registered in the year 1996 on the basis of a statement given by the petitioner. It was alleged that she was raped by different persons on several occasions. Altogether 22 cases were charge sheeted by the Police. It is stated that out of the 22 cases, after trial one case was disposed of in 2007. In another case, the accused therein filed certain petitions and it is now stated to be pending before the Apex Court. The trial of that case is reported to be stayed. 2. The petitioner states that she had to suffer acute trauma and misery at the hands of the accused and later due to the adverse publicity during investigation of the case. It is stated that subsequently she got married and is living in anonymity and is leading a secluded life. It is seen that a petition was filed by her before this Court earlier for a direction that if she is to appear in each case, it would cause hardship to her. The contention raised on behalf of the petitioner was that if O.P(Crl.) No.2626 of 2011 2 her evidence is recorded on the same day, or on the succeeding days in all the cases, the agony for giving evidence would be shortened as far as possible. In view of that submission this Court directed the Special Judge/Addl. Sessions Judge, Kottayam to consider the request of the petitioner to examine her on a day or on the succeeding dates and if the examination is not completed in all the cases separately, and continue the trial of the cases separately thereafter. Accordingly, the learned trial judge was directed to re-schedule the cases to enable the examination of the prosecutrix as directed. 3. Pursuant to that order, the learned trial judge issued summons in seven out of 21 cases which are stated to be available for trial. The summonses were issued to the petitioner in those cases. The cases were scheduled for trial for her examination to start on 11.8.2011. 4. It is a case where the prosecutrix has to give evidence pertaining to each of those cases separately. The date, time and place of incident in each of the cases are different. The evidence that may have to be given by her pertaining to each of the incident would certainly be different. The examination of the victim in one case itself may sometimes take the whole day. O.P(Crl.) No.2626 of 2011 3 Unless the victim gets a breathing time to get the facts of the first case erased or effaced from her memory, it would be difficult for the victim to state with reference to the second incident. That would be the position with regard to the incident in the subsequent cases as well. The facts of the case would get mixed up with the facts of other cases. 5. Though the cases stood posted for examination to commence on 11.8.2011 it could not be proceeded with because she did not appear and also because this petition was filed by that time pointing out the difficulties as mentioned in the petition. The cases are to be disposed of after trial. Without examining her those cases cannot be disposed of. 6. It has been reported that the accused in some of the remaining cases are absconding. Therefore, it is not possible to post all the 21 cases for trial one after the other. Not only that when the trial is in progress if the accused in one of the cases/ absconds or does not appear, then the trial of that case may have to be stopped since the identity of the accused would be very much relevant in cases of this nature. 7. It was in tune with the direction of this Court, the learned Judge posted seven cases available for trial to be started O.P(Crl.) No.2626 of 2011 4 on a particular date. The prayer in the petition is to set aside the seven summons issued to the petitioner to give evidence in respective cases. The other prayer is to direct the Additional Sessions Judge not to compel the petitioner to give evidence in those sessions cases. The reliefs sought for are misconceived if not mischievous. Without examining the victim, it is not known how the case can be disposed of. 8. The petition was not filed through the Special Public Prosecutor appointed for trial of that case. It is submitted by the learned counsel appearing for the petitioner as well as the learned Special Prosecutor that the petitioner is now residing some where in Thiruvananthapuram district. The suggestion made by the learned counsel is that as she is residing in Thiruvananthapuram, the Special Court constituted for that purpose which is now functioning at Kottayam may be ordered to be shifted to Thiruvananthapuram. That request does not come within the scope of the relief claimed by the petitioner, besides being impracticable. 9. Though it is not stated in the petition, the other grievance stated by the learned counsel is that since the victim has to come from Thiruvananthapuram to Kottayam to give O.P(Crl.) No.2626 of 2011 5 evidence, it may not be possible for her to come alone. She may have to incur expenses for the same. If she remains in Kottayam, and if she has no other house to occupy there may be difficulty for her. As said earlier these are not the grounds stated in the petition but only raised in the course of the argument. 10. It is inconceivable how the evidence in all such cases can be taken together. Inspite of the fact that all the 21 cases cannot be taken up together because of the fact that some of the accused have not even appeared still the argument is that all the cases should be taken together for trial. Bearing in mind the directions issued by this Court, the learned trial judge has taken seven cases for trial. The examination of the petitioner in those seven cases itself may take a few days. Therefore, the request to have the trial of all the 21 cases together cannot be sustained. 11. The Superintendent of Police, Kottayam District will discuss the matter with the District Collector, Kottayam and if necessary with the Additional Chief Secretary/Home Secretary to the Government to see whether any advance amount can be made available for securing the presence of the victim and her near relative, who may have to accompany her and also as to the possibility of providing accommodation to the victim, (if there is O.P(Crl.) No.2626 of 2011 6 no house of her near relatives in Kottayam District) so that trial of these cases is not stalled or impeded on the ground which is raised in the course of the argument made by the counsel. The learned Special Prosecutor will also have his suggestion to the District Collector and Superintendent of Police, Kottayam to see that the trial is not in any way hampered. A decision as aforesaid should be taken within one month from today. The learned trial judge will be at liberty to schedule the cases for trial but posting to a date/dates after one month. It is also made clear that what has been stated above with regard to the arrangement for providing expenses, accommodation etc. shall not be allowed to be taken as a ground for postponement of trial of the cases which were registered in the year 1996. This petition is disposed of accordingly. N.K.BALAKRISHNAN JUDGE ab