IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28..04..2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. Appeal No.263 of 2011 and Crl. Appeal No.57 of 2004 Ganesan [A1] ... Appellant/Accused in Crl.A.No.263 of 2011 Vijayasanthi [A2] ... Appellant/Accused in Crl.A.No.57 of 2004 -Versus- State Rep. By The Inspector of Police, R-2, Kodambakkam Police Station, Chennai. [Crime No.1915 of 1998] ... Respondent in both appeals/ complainant Memorandum of Grounds of Criminal Appeals under Section 374 (2) of the Criminal Procedure Code against the judgement dated 05.12.2003 made in C.C.No.9 of 2000 on the file of the learned Sessions Judge, Mahila Court, Chennai. For Appellant in Crl.A.No.263 of 2011 [A1] : Mr.A.Thiyagarajan, for Mr.T.Balaji For Appellant in Crl.A.No.57 of 2004 [A2] : Mr.A.V.Somasundaram for M/s.Lakshmipriya Associates For Respondent in both Criminal Appeals : Mr.P.Kumaresan, Public Prosecutor and Mr.S.Rajakumar,Governmen t Advocate [Criminal Side] Assisted by Mr.V.Rajagopal COMMON JUDGEMENT These appeals arise out of the judgement of conviction of the appellants imposed by the learned Sessions Judge, Mahila Court, Chennai in C.C.No.9 of 2000 wherein the appellant in Crl.A.No.263 of 2011 by name Mr.Ganesan [1st accused] has been convicted for offence under Section 354 of IPC and sentenced to undergo R.I. for a period of 1 year and to pay a fine of Rs.5,000/- in default to undergo S.I. for a period of 3 months. https://hcservices.ecourts.gov.in/hcservices/ The appellant in Crl.A.No.57 of 2004 Mrs.Vijayasanthi [2nd Accused] has been convicted for offence under Section 354 r/w 109 of IPC. However, the trial court did not impose sentence on the accused Vijayasanthi [2nd accused] for this offence. 2. These appellants and Mr.Suryakumar were arrayed as accused in C.C.No.8 of 2000 arising out of the same first information report. In said case also the accused Ganesan [appellant herein] stood charged for offence under Section 354 of IPC; accused Mr.Suryakumar and the accused Vijayasanthi [appellant herein] stood charged for offence under Section 324 of IPC. 3. Yet another case in S.C.No.448 of 2010 arising out of the same first information report [FIR] was also tried by the same Court. In the said case, Mr.Suryakumar and Vijayasanthi [appellant herein] were the accused. Mr.Suryakumar stood charged for offence under 376 of IPC and the appellant Vijayasanthi stood charged for offence under Section 372, 376 r/w 109 of IPC. 4. Similarly, in yet another case in S.C.No.451 of 2000 arising out of the same first information report, Mr.Suryakumar stood charged for offence under Section 376 of IPC and the appellant Vijayasanthi stood charged for offence under Sections 372 and 376 r/w 109 of IPC. 5. The trail court tried all the four cases separately, but delivered a common judgement in all the four cases on 05.12.2003. In C.C.No.9 of 2000, as stated above, the trial court convicted both the accused Mr.Ganesan [A1] and the accused Mrs.Vijayasanthi [A2]. The trial court in S.C.No.448 of 2000 convicted the accused Mr.Suryakumar for offence under Section 376 of IPC and convicted the accused Vijayasanthi for offence under Section 372 and 376 r/w 109 of IPC. Similarly, in C.C.No.8 of 2000 , the trial court convicted the appellant Mr.Ganesan [1st accused therein] for offence under Section 354 of IPC and acquitted the accused Suryakumar [2nd accused therein] and Vijayasanthi [3rd accused therein] from the charge under Section 324 of IPC. Similarly, in the other case in S.C.No.451 of 2000, the trial court convicted the accused Suryakumar for offence under Section 376 of IPC as well as the accused Vijayasanthi for offence under Section 372 and 376 r/w 109 of IPC. Separate appeals have been preferred in respect of the conviction and sentence imposed in S.C.Nos.448 and 451 of 2000, and C.C.No.8 of 2000. Those appeals are dealt with separately. This judgement governs only the conviction and sentence imposed in C.C.No.9 of 2000. 6. Before going into the facts of the case, it would be very appropriate for this court to highlight the serious illegalities / irregularities committed by the trial court, which in fact, have resulted in failure of justice. A little narration of facts would be sufficient to highlight the same. https://hcservices.ecourts.gov.in/hcservices/ 7. P.W.1 is the victim. She is the daughter of the accused - Vijayasanthi [the 2nd accused]. Accused – Vijayasanthi's husband passed away. The accused Vijayasanthi was thereafter in living in relationship with Suryakumar [accused in the other case]. It is alleged that during the year 1988, P.W.1, the victim was hardly aged 14 years. She was acting in tele serials. The accused Vijayasanthi was having an ambition to make her as an actress in films. Suryakumar was promising that he would get a chance for her to act in films. Under the said premise, it is alleged that on 29.05.1998, the son in law of Suryakumar took P.W.1 to the house of the accused Ganesan [1st Accused] at No.19-A, 1st Street, Vathiyar Street, Rangarajapuram, Chennai. The accused Vijayasanthi also accompanied him. The accused Vijayasanthi wanted P.W.1 to go into a room where the accused Ganesan was waiting. As soon as P.W.1 entered into the room, the accused Ganesan closed the door. When she questioned as to why he closed the door, he asked her as to whether, her mother did not say anything about the purpose of her visit. Then , he told her that he would get a chance in cinema provided she conceded to his sexual advances. The accused Ganesan attempted to hug and kiss her. But, she pushed him away and ran out of the room. When she told the same to her mother [2nd accused] , she in turn told her that if only she conducted herself as desired by the accused Ganesan, he would get cinema chance. Then, the accused Vijayasanthi told the accused Ganesan that she would persuade P.W.1 and bring her back again for the said purpose. These are the allegations which are the foundations for the charges under Section 354 of IPC against the accused Ganesan, the 1st accused and under Section 354 r/w 109 of IPC against Vijayasanthi, the 2nd accused in C.C.No.9 of 2000. 8. Again on 05.06.1998, accused Ganesan, Suryakumar and the accused Vijayasanthi took P.W.1 to Alapuzha in Kerala informing P.W.1 that she was being taken to the cinema shooting spot. In Alleppey, they stayed in a lodge. Mr.Suryakumar and Vijayasanthi along with P.W.1 stayed in a room whereas the accused Ganesan and yet another girl by name Rama stayed in the next room. In the presence of P.W.1, Mr.Suryakumar and Vijayasanthi indulged in sexual activities in the room. Thereafter, they took P.W.1 to the next room where the accused Ganesan was staying. When Ms.Rama went out of the room, P.W.1 was asked to go into the room. The accused Vijayasanthi and Suryakumar instructed P.W.1 to concede to the sexual overtures of the accused Ganesan. They promised her that if she did so, she would get cinema chance and earn a lot. But, she did not bow to the pressure. She bite the hand of the accused Ganesan and cried. Enraged over the same, the accused Vijayasanthi and Suryakumar burnt her back and legs with lighted cigarette buds. The accused Ganesan also helped them to do so. At that time a worker in the lodge came and therefore, they left her. The accused Mrs.Vijayasanthi put ointment for the injuries. Then, they confined P.W.1 alone in the room, locked it from outside and went away. In the night, they returned and thereafter brought P.W.1 https://hcservices.ecourts.gov.in/hcservices/ back to Chennai. These are the allegations which are the foundations for the charges in C.C.No.8 of 2000 wherein the Ganesan [1st Accused therein] stood charged for offence under Section 354 of IPC and Mr.Suryakumar and the accused – Vijayasanthi stood charged for offence under Section 324 of IPC. 9. Again on 14.06.1998, the accused Mrs.Vijayasanthi sent P.W.1 along with Mr.Suryakumar to a cinema company for getting a chance. Mr.Suryakumar took her to the house of a cinema producer by name R.B.Choudry. It was around 7.00 p.m. As soon as they entered into a room in the house, Mr.Suryakumar beat her with hands and removed her dress. He closed her mouth and had sexual intercourse. Then, he took her back to her house. P.W.1 told the accused Vijayasanthi about the said incident. But, the accused Vijayasanthi told that she had sent her along with the accused Suryakumar only for the said purpose so that she would not have fear in future to have sex with anybody. The accused Vijayasanthi and Suryakumar threatened her of dire consequences and warned her not to disclose the same to anybody. These are the allegations which are the foundations for the charges in S.C.No.448 of 2000 wherein Mr.Suryakumar [A1 therein] stood charged for offence under Section 376 of IPC and the accused Vijayasanthi [A2 therein] stood charged for offence under Sections 372 and 376 r/w 109 of IPC. 10. Again on 17.06.1998 around 2.00 p.m. at the house of P.W.1, Mr.Suryakumar [A1 therein] again had forcible intercourse with P.W.1 against her wish on the inducement made by the accused Vijayasanthi [A2 therein]. This is the foundation for the charges in S.C.No.451 of 2000 wherein Mr.Suryakumar stood charged for offence under Section 376 of IPC and the accused Vijayasanthi stood charged for offence under Section 372 and 376 r/w 109 of IPC. 11. Again on 25.06.1998, one Selvam, a person involved in flesh trade came to the house of P.W.1. He gave a sum of Rs.5,000/- to the accused - Vijayasanthi and wanted to send P.W.1 with him for prostitution with one Panchatcharam. But, the accused Vijayasanthi did not disclose the same truly to the victim. Instead, she took her in a car driven by Selvam telling her that they were going for purchasing cloths. In the said car, a person by name Panchatcharam was also travelling. The car was proceeding towards Mahabalipuram. After some time, P.W.1 asked the Accused Vijayasanthi as to why the car was proceeding towards Mahabalipuram. For that , she told P.W.1 that if she conceded to the sexual desires of Panchatcharam, he himself would get cloth for her. When Panchatcharam put his hand on her shoulder, P.W.1 raised hue and cry. Thereafter, when Panchatcharam asked the Accused Vijayasanthi as to whether she did not tell P.W.1 about the purpose. she answered in the negative. Thereafter, she was again brought back to her house. 12. On 26.06.1998, P.W.1 escaped from the house of the 2nd Accused Vijayasanthi fearing for further sexual assault by the accused. She went to the house of her friend at Ambattur and https://hcservices.ecourts.gov.in/hcservices/ stayed there for about 3 days. Thereafter, she came to Tambaram bus stand and got into a bus. A woman by name Sakunthala was sitting by her side. P.W.1 was weeping. When Sakunthala enquired as to what had happened, P.W.1 narrated the events. Then, Sakunthala took her to police on 04.08.1998 where P.W.1 preferred a complaint to the Inspector of Police, Kodambakkam Police Station. Ex.P.1 is the complaint. In the said complaint, she narrated all the events right from 29.05.1998. To be precise, she vividly narrated about all the four occurrences on 29.05.1998, 05.06.1998, 14.06.1998 and 17.06.1998 respectively. Based on the said complaint, P.W.7, the then Sub Inspector of Police attached to Kodambakkam Police Station, registered a case in Crime No.1915 of 1998 for offences under Sections 342, 372, 376, 354 and 506 of IPC. Ex.P.3 is the FIR. He forwarded both the complaint and the FIR to the jurisdictional Magistrate and then handed over the case records to P.W.11 for investigation. 13. P.W.11, the then Inspector of Police took up the case for investigation , examined P.W.1, P.W.2 [younger sister of P.W.1], P.W.3, an employee in the proprietary concern owned by Ganesan, P.W.4 - a resident of an apartment where P.W.1 was residing, P.W.5 - Panchatcharam referred to above, P.W.6, the husband of P.W.1 and other witnesses and recorded their statements. On 05.08.1998, he arrested the accused Suryakumar and Vijayasanthi and sent them for judicial remand. He made a request for conducting medical examination for P.W.1 and Suryakumar. P.W.10 examined Suryakumar on 06.08.1998 and gave opinion that he was capable of performing sexual intercourse with a woman. One Dr. Kamala Anantharaman, the professor of Forensic Science, Madras Medical College examined P.W.1 on 05.08.1998 and gave opinion that P.W.1 had accustomed to sexual intercourse. There were no external injuries found. The hymen in the vaginal cavity was found ruptured. The vaginal cavity freely allowed two fingers to enter. From these, Dr.Kamala Anantharaman opined that P.W.1 had undergone sexual intercourse. Dr. Kamala Anantharaman also found scars on the body of P.W.1. Since Dr. Kamala Anantharaman was unable to appear before the court and depose, one Dr.R.Selvakumar [P.W.12] was examined who has deposed to about the said facts. 14. On completing the investigation, P.W.11 rightly laid four separate charge sheets. The first charge sheet is in respect of the alleged occurrence on 29.05.1998. The learned Metropolitan Magistrate took cognizance on the said report in C.C.No.7708 of 1999 [renumbered as C.C.NO.9 of 2000 on the file of the learned Principal Sessions Judge, Chennai] for offence under Section 354 and 354 r/w 109 of IPC. 15. The 2nd charge sheet was in respect of the alleged occurrence on 05.06.1998 against the accused Ganesasn and two other accused namely Suryakumar and the accused Vijayasanthi. The charges are under Sections 354 of IPC against accused Ganesan and under Section 324 of IPC against the others. The learned Magistrate took cognizance on the said final report in C.C.No.7707 of 1999 [renumbered as C.C.No.8 of 2000 on the file of https://hcservices.ecourts.gov.in/hcservices/ the learned Principal Sessions Judge, Chennai.] 16. Third charge sheet is in respect of the alleged occurrence on 14.06.1998 against Suryakumar and the accused Vijayashanthi. The charges are under Section 376 of IPC against Mr.Suryakumar and under Sections 376 r/w 109 and 372 of IPC against the accused Vijayasanthi. The learned Metropolitan Magistrate took cognizance on the same in P.R.C.No.7706 of 1999 [relating to S.C.No.448 of 2000]. 17. The 4th charge sheet is in respect of the alleged occurrence on 17.06.1998 against Suryakumar and the accused Vijayashanthi. The charges are under Section 376 against Mr.Suryakumar and under Section 372 and 376 r/w 109 of IPC against the accused Vijayasanthi. The learned Metropolitan Magistrate took cognizance of the same in P.R.C.No.7709 of 1999 [relating to S.C.No.451 of 2000]. 18. Thereafter, the learned Magistrate by two separate proceedings committed the cases in P.R.C.Nos.7706 and 7709 of 1999 since some of the offences were triable exclusively triable by the court of sessions. The case in P.R.C.No.7706 of 1999 was taken on file in S.C.No.448 of 2000 and the case in P.R.C.No.7709 of 1999 was taken on file in S.C.No.451 of 2000 by the Principal Sessions Judge, Chennai. Then, the learned Principal Sessions Judge made over these two cases to the file of the Additional Sessions Judge [Mahila Court], Chennai, for trial. 19. When the above appeals as against the convictions in all the four cases were heard, this court had a doubt as to how the cases in C.C.Nos.8 of 2000 and 9 of 2000, which are not exclusively triable by court of sessions, came up for trial before the learned Additional Sessions Judge. A perusal of the judgement of the trial court revealed that as recorded in the judgement by the trial court, these two cases in C.C.Nos.8 and 9 of 2000 were also committed to the Principal Sessions Court and the Principal Sessions Court, in turn, made over the same to the learned Additional Sessions Judge, Mahila Court, Chennai, for trial. But, this court, on a perusal of records, found that there was no committal orders in respect of these two cases in C.C.Nos. 8 & 9 of 2000 passed by the learned Metropolitan Magistrate. A perusal of the records revealed that the then XVIII Metropolitan Magistrate, Saidapet, Chennai had written a letter to the Principal Sessions Judge, Chennai, through the Chief Metropolitan Magistrate stating that all the above four cases arose out of a single FIR, but four different charge sheets were filed, on which, cognizance was taken separately. Since two cases had already been committed to the Court of Sessions for trial as some of the offences involved therein were exclusively triable by a Court of Sessions, the learned Metropolitan Magistrate sought for orders from the learned Principal Sessions Judge to withdraw and transfer the cases in C.C.No.7707 and 7708 of 1999 also to the Court of Sessions. The records, however, did not contain any further order passed by the Court of Sessions or the High Court to the https://hcservices.ecourts.gov.in/hcservices/ Metropolitan Magistrate in this regard in pursuance of the said request. However, the learned counsel appearing for the appellants reported that there was no committal order passed in respect of these two cases , but the records were simply submitted by the Metropolitan Magistrate to the Principal Sessions Judge, Chennai. In view of the above conflicting statements, this court called for remarks from the learned Principal Sessions Judge, Chennai, in respect of the following queries:- (1) Whether the case in C.C.Nos.7707 and 7708 of 1999 were committed by the learned Magistrate to the learned Principal Sessions Judge? (2) If there was no committal order, how the case in C.C.Nos.7707 and 7708 of 1999 were entertained by the learned Principal Sessions Judge and forwarded to the Mahalir Neethimandram, Chennai, for trial? (3) How the cases in C.C.Nos.7707 and 7708 of 1999 were again re-numbered as C.C.Nos.8 and 9 of 2000 and is there any Calendar Case Register maintained in the Sessions Court? 20. For the above queries, the learned Principal Sessions Judge, City Civil Court, Chennai, by his letter dated 05.04.2011 has submitted the following remarks:- (1) They were not committed by the learned Magistrate to this Court. As seen above, committal of such cases will not arise at all. (2) Since those two Calendar Cases are connected to the two Sessions Cases, based on the report of XVII Metropolitan Magistrate, the then Principal Sessions Judge, in exercise of his power under Section 408 (1) of Cr.P.C. withdrawn those cases to his file and under Section 194 of Cr.P.C. made over them to the II Additional Sessions Court and then to Mahila Court, when it was constituted. (3) Merely because those two Calendar Cases were transferred by the Sessions Court under Section 408 of Cr.P.C. they will not cease to be Calendar Cases and transform into Sessions Cases. A warrant case can never become a Sessions Case unless it is covered u/s.323 of Cr.P.C. So, the said two Calendar Cases in the Metropolitan Magistrate Court , necessarily have to be received and taken on file as Calendar Cases only. So, they were rightly taken on file in this Court as C.C.Nos.8 & 9 of 2000. In this Court, there is a separate Calendar Register for these type of connected/counter-cases, which are to be tried along with Sessions Cases. https://hcservices.ecourts.gov.in/hcservices/ 21. The learned Principal Sessions Judge, while justifying the action of his predecessor in entertaining these two Calendar Cases without there being committal orders, has concluded his remarks as follows:- “In view of the foregoing, in my considered view, in making over of these two Calendar Cases the then Principal Sessions Judge Mr.V.Viswanathan, now retired, to the II Additional Sessions Judge and then to the Mahalir Needhimandram and disposing of these two cases by the then Additional Sessions Judge, Mahalir Needhimandram, now, Registrar-General, High Court, Madras have not committed any illegality and what they have done is in accordance with law.” 22. From the above report submitted by the learned Principal Sessions Judge, now, it is crystal clear that the above two Calendar Cases in which the offences are not exclusively triable by the Court of Sessions were withdrawn by the learned Principal Sessions Judge and accordingly they were entertained. That is how, all the four cases were before the Mahila Court, Chennai. Therefore, it is manifest that the statement of the learned Additional Sessions Judge, Mahila Court, Chennai, in the judgement under appeal that the above two cases in C.C.No.7707 and 7708 of 1999 [ renumbered as C.C.Nos.8 & 9 of 2000 on the file of the learned Principal Sessions Judge, Chennai] were also committed to the Principal Sessions Judge, Chennai, from where ultimately they were made over to the Mahila Court for trial is not correct. As stated by the learned Principal Sessions Judge, there was no committal order passed by the learned Metropolitan Magistrate in respect of these two cases in C.C.Nos. 8 & 9 of 2000. 23. The trial court rightly conducted separate trials in all the four cases. But, in paragraph 7 of the judgement, the trial court has made the following statement:- “Parallel trial has been conducted, evidence was taken and documents were marked in S.C.No.448 of 2000 and the same set of evidence and documents were substituted in rest of the cases.” 24. A perusal of the records would reveal that the trial court framed charges in all the four cases as detailed in the earlier paragraphs of this judgement. As many as 12 witnesses were examined and 10 documents were exhibited in S.C.No.448 of 2000. P.W.1, the victim was examined in S.C.No.448 of 2000 on 04.01.2002 and she was cross examined by the counsel for all the three accused including Ganesan [the appellant herein] who is not an accused in S.C.No.448 of 2000. In chief examination as well as in cross examination, she had vividly narrated about the occurrences https://hcservices.ecourts.gov.in/hcservices/ in respect of all the four cases. P.W.2 is her sister. She has turned hostile and she has not supported the case of the prosecution in any manner. P.W.3 is an employee of Ganesan. He has also turned hostile and has not supported the case of the prosecution in any manner. P.W.4 is a resident of the apartment where P.W.1 was also residing. He has stated that accused Ganesan was an astrologer. He has not stated anything incriminating against the accused. P.W.5 has stated that on one occasion one Selvam, a real estate broker approached him and offered to fix a house for him. At that time, P.W.1 and the accused Vijayasanthi also came along with Selvam. At that time accused Vijayasanthi told P.W.5 that she would send her daughter with him provided he paid Rs.5000/-. P.W.6 is the husband of P.W.1. According to him, he had fallen in love with P.W.1 for quite some time. He has further deposed that the accused Vijayasanthi offered to give P.W.1 in marriage to him. But, subsequently, she had given a complaint as though P.W.1 was missing. He has further stated that he married P.W.1 in the year 2000. He has not stated anything incriminating against the accused. P.W.7 was the then Sub Inspector of Police, who registered the case on the complaint of P.W.1. P.W.8 has deposed that he is the friend of the husband of the accused Vijayasanthi. After the demise of her husband, accused Vijayasanthi was in living in relationship with Suryakumar. He has not stated anything incriminating against the accused. Therefore, he was treated as hostile. P.W.9 has also not stated anything in favour of the prosecution. Therefore, he was treated as hostile. P.W.10 Dr. Madhikaran has spoken to the fact that Suryakumar is capable of performing sexual intercourse with a woman. P.W.11 is the Investigating Officer. He has spoken to about laying of four different charge sheets in respect of the above four occurrences. P.W.12 Dr.Selvakumar has spoken to about the opinion offered by Dr.Kamala Anantharaman in respect of P.W.1. 25. When the incriminating evidences were put to the accused under Section 313 of Cr.P.C. they denied the same as false. On the side of the accused, 2 witnesses by name Mrs.Chandrabai [D.W.1] and Mrs.Priya [D.W.2] were examined. D.W.1 is the mother of accused Vijayasanthi and the grand mother of P.W.1. She has stated that accused Vijayasanthi hails from a very reputed family and there was no need for involving P.W.1 in prostitution. She would further state that because the accused Vijayasanthi did not give consent for the