IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 12/12/2002 Coram The Honourable Mr. Justice P. SHANMUGAM and The Honourable Mr. Justice M. CHOCKALINGAM Criminal Appeal No.895 of 1997 and Criminal Appeal No. 896 of 1997 and Criminal Appeal No. 897 of 1997 and Criminal M.P. Nos.780 to 782 of 1998 Chandradevi (A-3) .. Appellant in C.A. No.895 of 1997 1. Kamalanantha (A-2) 2. Balan @ Balendran (A-4) 3. Mayilvaganan (A-5) 4. Nanda @ Nandakumar (A-6) .. Appellants in 5. Sathish @ Sathiskumar (A-7) C.A. No.896 of 1997 Premananda @ Premkumar .. Appellant in @ Ravi (A-1) C.A. No.897 of 1997 -Vs- State of Tamil Nadu by Inspector of Police, C.B., C.I.D., Pudukkottai (Crime No.1183 of 1994 of Viralimalai Police Station) .. Respondents in all the three appeals. Prayer: Appeals against the judgment of the learned Principal Sessions Judge, Pudukkottai Division at Pudukkottai dated 20.8.1997 made in Sessions Case No.7 of 1996. !For Appellants : Mr. U.R. Lalith, Senior Counsel assisted by Mrs. D. Revathi for appellant (A-1) in C.A. No.897/97 Mr. Shanmuga Velayutham for appellants 1, 2, 4 and 5 (A-2, A-4, A-6 & A-7) in C.A. No.896/97 3rd appellant (A-5) in C.A. No.896/97 died. Mr. M.G.L. Sankaran for appellant (A-3) in C.A. No.895/97 ^For Respondents : Mr. M.S. Kandasamy, Special Public Prosecutor. Mr. K.G. Kannabhiraman, Senior Counsel assisted by M/s. Sudha Ramalingam for the impleading parties in the Crl. M.Ps. :J U D G M E N T P. SHANMUGAM, J. The above appeals arise out of the judgment of the Sessions Court of Pudukottai Division at Pudukottai in S.C. Nos.7 of 1996, etc. The Sessions Court found the accused/appellants guilty under various charges and convicted them as follows : Charge Offence Accused Convicted/ Acquitted Sentence Charge-1 Conspiracy S.120-B IPC A1 to A7 Conviction No separate Sentence Charge-2 376(2)(C) IPC (14 counts) A1 Conviction for 13 counts P.Ws.3 to 15 Life + Rs.5,10,000/= i/d 2 years, 6 months under each count. Life sentence for 13 counts to run concurrently. Charge-3 S.376/109 IPC A2 to A7 A2 to A7 u/s.376/109 IPC Life imprisonment for A2, A4 to A7 - 2 years, 7 months 2D and fine Rs.10,000/= i/d 3 months RI for A3. Charge-4 S.354 IPC (4 counts) ref:P.W.3, P.W.5, P.W.10, D.W.10 A3 Conviction 354 IPC-(1 count only) with regard to P.W.10 - Acquittal w.r.t. P.W.3, P.W.5, D.W.10. No Separate Sentence Charge-5 Sec.313 IPC (8 counts) P.W.4, P.W.5, P.W.6, P.W.7, P.W.9, P.W.13, P.W.14, P.W.15 A3 Conviction of A3 u/s.312 IPC (4 counts) w.r.t. P.W.4, P.W.5, P.W.6, P.W.14 - Acquitted w.r.t. P.W.7, P.W.9, P.W.13, P.W.15 2 years 7 months 2D + Fine Rs.5,000/- i/d 45 days R.I. (Total fine Rs.20,000/-) Charge-6 S.302 IPC S.302/34 IPC A1 A2 Conviction u/s 302 IPC - A1 Conviction u/s.302/34 IPC - A2 Life Impisonment + fine Rs.10,000/- i/d R.I. for 3 months. A2 - Life imprisonment + fine Rs.10,000/- i/d. R.I. for 3 months Charge-7 S.302/109 IPC A4 to A7 A4 to A7 Convicted u/s. 302/109 IPC A4 to A7 Life imprisonment + fine Rs.10,000/- i/d. 3 months R.I. Charge-8 S.343 IPC A1, A2, A4 to A7 A1, A2, A4 to A7 - Convicted u/s. 343 IPC No separate sentence Charge-9 S.201/302 IPC A5 to A7 Convicted - A5 to A7 u/s. 201/302 IPC A5 to A7 Sentenced to R.I. for One year + fine Rs.2,500/- i/d R.I. for one month. Charge-10 S.201/114 IPC A2 A2 is convicted u/s.201/114 IPC A2 is sentenced to R.I. for one year + fine Rs.2,500/- i/d. R.I. for one month. Charge-11 S.506 II IPC (4 counts) P.W.4, P.W.5, P.W.6 and P.W.9 A1, A2, A4 to A7 A1, A2, A4 to A7 Convicted u/s.506 II IPC (2 Counts) P.W.4, P.W.6 only. Not guilty w.r.t. P.W.6, P.W.9. No separate sentence Charge-12 S.420 IPC A1 Convicted u/s.420 IPC R.I. for one year. 2. Three sets of appeals are before us. Criminal Appeal No.895 of 1 997 is filed by the third accused in the case. Accused Nos.2, 4, 5, 6 and 7 have filed Criminal Appeal No.896 of 1997. Since the third appellant, namely the fifth accused in the case, is reported to have died, Criminal Appeal No.896 of 1997 abates insofar as the third appellant is concerned. The first accused has filed Criminal Appeal No.89 7 of 1997. 3. The facts of the case are stated hereunder :- A news item in "The Indian Express" dated 15.11.1994 under the caption, "Tale of the two who were able to get away" (Ex.D.29), followed by a complaint, Ex.P.25 dated 16.11.1994 given by R. Sureshkumari @ Baby to the Inspector of Police, Viralimalai has laid the foundation for this unparalleled and sensational case of rape of 13 girls and one murder in an Ashram near Tiruchirappalli. In that brief complaint, Sureshkumari has stated that she joined the Premananda Swami Ashram, Mathalai, Sri Lanka when she was six years of age. She was taken to India by the Swami along with 12 other girls in the year 1984 when the ashram was formed at Tiruchy. She had alleged that she was subjected to sexual harassment by the Swami four times even before she attained puberty at the age of 13 and that she was raped within a month on her attaining puberty by the Swami by threat and by beating her with stick. Unable to withstand this torture, she left the ashram at the age of 14 and came to Madras, but she was caught by the police and sent back to the ashram. Inspite of her complaint to her mother, she did not come forward to help her and she had to suffer the torture in the ashram as she had no other place to go. She came to know from some inmates of the ashram that Premananda had not only raped her, but also many other girls in the ashram, and she recorded their conversation in a cassette. In these circumstances, she approached one of her relatives, Ananda Mohan who helped her and Latha, another inmate, to come out of the ashram to Chennai, with the assistance of a Women Organisation. In the ashram, Premananda would not allow them to talk freely to others and they were compelled to undergo this ordeal. Divya Devi knew all this and was abetting the misdeeds of the Swami. Ultimately, unable to bear the torture, she left the ashram on 1.11.1 994, but could not gather the courage to give a police complaint. However, with the assistance and encouragement given by the All India Women Democratic Association and in order to see that other girls also are not subjected to the same fate, she had come forward to expose the misdeeds of the Swami and the suffering undergone by her even at the cost of her dignity and modesty. She had stated that many girls had to undergo abortion because of the rapes committed on them by the Swami. She had alleged that one Balan had acted as a pimp for the Swami. She had requested for an appropriate action against the Swami, Divya Devi and Balan. The subsequent news report on these allegations was followed by the registration of a crime, investigation, enquiry, seizure of incriminating documents, materials, evidence and filing of charge sheet. I. Background 4. The further facts with a little more background of the case are as follows :- One Premananda alias Prem Kumar alias Ravi, son of Somasundaram Malavarayar, called Swami Premananda, was running an orphanage in the name of Boopalakrishna Ashram, Mathalai at Sri Lanka. Due to the ethnic violence in that region, Swami Premananda came over to India in the year 1984. About 12 young Tamil girls and a few women, who were in the ashram in Sri Lanka, were also brought to Tiruchy through Rameswaram and Vedaranyam by boat. Initially, Swami Premananda set up an ashram in a rented building at Tiruchy and then shifted and constituted it into a big institution at Fathima Nagar in the year 1989 in a sprawling space spread over nearly 150 acres. The ashram had in itself, laid out areas for residence, eating place, press, school, etc. Admittedly, about 100 girls and 100 boys, mostly orphans, were staying in the ashram. There are separate hostels for the stay, education and training for boys, girls and women. Besides, the devotees as well as the parents of some of the children were also living in the various quarters in the ashram. The ashram was obviously headed by Swami Premananda (Accused No.1) for the spiritual upliftment of the devotees and assistance of the inmates. The Swami claimed to have mystic powers and perform miracles to materialise viboothi (sacred ash) and Lingams from stomach (Lingothbhavam). It is stated that four poojas were performed everyday and the first accused used to give spiritual discourses, apart from giving 'Arulvakku' (Trance-Interviews) on weekend days and full moon days. It is claimed that the ashram has branches all over the world, especially in England, Switzerland, Belgium, Sri Lanka and other countries. A number of devotees coming from abroad were also staying in the ashram. There were different categories of people in the ashram, namely Sanyasins who were called 'Mathajis', assistants, devotees, orphans, etc. 5. P.W.3 to P.W.16 (excepting P.W.4 and P.W.6) and P.W.55 are girls who had joined the ashram in Sri Lanka in their tender ages and subsequently shifted to India and depended on the ashram for their food, shelter and clothing. Being immigrants from Sri Lanka with no papers and nobody either to take care of them or make any provision for their future, they were under the total control and mercy of the authority of the ashram. 6. During the period between 1990 and October 1994, which is the charge period, it is alleged that Swami Premananda (A-1) committed rape on 13 girls. It is seen from the allegations that A-1 used to commit rape immediately some time after the girls attain puberty while they were put on guard duty during nights and at other odd hours and places. A-2 to A-7 assisted and abetted the acts of A-1. It is also alleged that one Ravi, who had tried to expose the misdeeds of A-1, was done to death and was buried in the ashram itself. The allegations that a spiritual guru misused the faith reposed in him by the devotees, and a father-like person had raped tender girls, subjected them to torture and the murder of one Ravi, another inmate of the ashram, had created a sensational news, resulting in the investigation, commencing from Ex.P.25, complaint dated 16.11.1994 referred to above. 7. On the basis of the said complaint, a case was registered before the Viralimalai Police Station in Crime No.1183 of 1994 on 17.11.1994 under Sections 142 and 376 of the Indian Penal Code. Miss Sureshkumari and Miss Latha were examined by the Inspector of Police, P.W.61. They were medically examined in pursuance to the requisition sent by P.W.61 as per the permission granted by the Chief Metropolitan Magistrate. Thereafter, on verifying the statements on 19.11.1994, Section 506(2) I.P.C. was added to the case and a report, Ex.P.197 was submitted. A team of seven Inspectors of Police was constituted to investigate the case. In the morning of 19.11.1994, at 9 am, the ashram was inspected in the presence of P.W.29, the Village Administrative Officer and other witnesses (Ex.P.68 is the Observation Mahazar and Ex. P.199 is the Rough Sketch) and on the same day, P.Ws.4 to 10 were examined and their statements were recorded by P.W.62. P.W.3 was examined by P.W.57 on the same day. A-1 was arrested at 11.30 am on 19.11.1 994. The victim girls, viz. P.W.4 to P.W.14, P.W.55, D.W.31, D.W.33 and one Vasantha, Kanchana and Geetha were medically and radiologically examined by P.W.19, P.W.20, P.W.21, P.W.22 and P.W.23 on 19.11.199 4 and on 21.11.1994. A-1 was also medically examined on 20.11.1994. 8. In the medical examination, the victim girls namely P.W.4 to P.W.15 and P.W.55 were found to have been accustomed to sexual intercourse. All the victim girls were sent for radiological examination for determining their age. Their statements under Section 164 Cr.P.C. were recorded by the Judicial Magistrate No.I, Pudukkottai. A-2 to A-7 were arrested on 23.11.1994. On the basis of the admissible portion of the confession statement of A-7, that he was prepared to identify and show the place of burial of the deceased Ravi, Sections 302 and 2 01 I.P.C. were added to Crime No.1183 of 1994 in Ex.P.200, Express Report. 9. A requisition was made for exhumation of the remains of the deceased Ravi and as per the directions of the Tahsildar, they were exhumed on 24.11.1994 at 10 am in the presence of the Tahsildar, Dr. Ravi Shankar and other police officials. Ex.P.62, observation mahazar was prepared. Inquest was conducted on the body of the deceased Ravi by P.W.28 and Ex.P.65 is the inquest report. P.W.46, who conducted the post-mortem, found eleven ante-mortem injuries . P.M.O.10 is the chemical analysis report of the soil collected from and around the various bones and human blood was detected on them. Ex.P.47 is the report of the Anthropological Division of the Tamil Nadu Forensic Science Laboratory in reference to the Super Imposition Test. P.W.47, Anthropologist, opined under Ex.P.126, report that the skull-Item No.1 in P.M.O.66 belonged to the individual seen in the life size photograph P.M.O.69, the enlarged size of P.M.O.69. Various places in the ashram were searched and articles were seized in the presence of the Village Administrative Officer on 25.11.1995, including the letters and correspondence from the kudil of A-1 and the absconding accused Divya Devi as well as that of A-2, Kamalananda. 10. P.W.1 and P.W.2, who were arrested on 21.12.1994, were examined in the presence of the witnesses and their confession statements were recorded. As they were in a remorseful mood, the investigating agency, after remanding P.W.1 and P.W.2, sent their requisition for recording their statements under Section 164 Cr.P.C., which were recorded on 29.12.1994. On the basis of the said confession statement, the investigating agency proposed to take P.W.1 and P.W.2 as Approvers and thereafter, a requisition was made to the Chief Judicial Magistrate, Pudukkottai to record the Tender of Pardon in respect of P.W.1 and P.W.2. P.W.1 and P.W.2 were summoned before the Chief Judicial Magistrate, Pudukkottai and after being satisfied, he granted them conditional Tender of Pardon. 11. One of the victim girls, P.W.14, Aruljothi, who was taken for medical examination along with the other girls and was entrusted to ' Udavum Karangal' at Madras on 21.11.1994, did not get her menstruation. On the other hand, in the month of December 1994, she developed vomitting and giddiness. While she was examined in the Government Hospital, Kilpauk on 15.1.1995 and on 17.1.1995, she was found to be pregnant. P.W.14 requested for termination of her pregnancy. On 21.1.199 5, her statement was recorded by the Metropolitan Magistrate, P.W.50. As per Ex.P.97, a requisition was sent to the Judicial Magistrate, Keeranur to direct the doctors to abort the foetus of P.W.14 and to collect the products of conception and her sample blood for D.N.A. Testing. After obtaining the consent of P.W.14, her pregnancy was terminated on 29.2.1995 by P.W.44, Dr. Shantha Gokuldoss with the assistance of Dr. Kamala. Ex.P.100 is the Abortion Certificate issued by Dr. Kamala. The products of conception and 10 ml. sample blood of P.W.14 were collected in the special containers sent by the Centre for Cellular and Molecular Biology (C.C.M.B.) Hyderabad by P.W.56, Dr. Cycillia Cyril. On the same day, at 4.30 pm, P.W.35, Inspector of Police collected the sealed parcel from P.W.56 and the same was handed over in C.C.M.B., Hyderabad on 22.2.1995 at 10 am. P.W.59, Dr. Lalji Singh had issued the acknowledgment. 12. After getting the consent of A-1 Premananda, 10 ml. of sample blood was taken from him by P.W.46, Dr. Ravi Shankar on 22.2.1995 as per the direction of the Judicial Magistrate, Keeranur passed in pursuance to the requisition by the C.B.,C.I.D. Exhibit (A) Identification Card-1 is the said proforma. After obtaining the permission from the Judicial Magistrate, Keeranur, P.W.33 collected the parcel containing the sample blood of A-1 from P.W.46. He then travelled in an air-conditioned car to Madras and the sample blood was handed over to P. W.34, Inspector of Police. The said parcel was handed over to C.C.M. B., Hyderabad by P.W.34, for which Ex.P.95 is the acknowledgment. As per Ex.P.185, Dr. Lalji Singh opined that A-1 was responsible for the product of conception/aborted foetus beyond reasonable doubt, whose biological mother is P.W.14. Exs.P.189 to P.191 are the further reports of the tests. 13. The sample writings and signatures of A-1 and A-2 were obtained in the presence of P.W.53, Superintendent of Central Prison, Tiruchy. The letters, Exs.P.8 to P.19 and P.20 series, along with the sample writings of A-1 and A-2 were sent for hand-writing expert's opinion. P.W.54, the Finger Print Expert, had opined that the disputed signatures in Ex.P.20 must have been those of A-1, Kamalananda whose sample writings are found in Ex.P.166 and P.170 series. Ex.P.171, the hand-writing expert's report, after comparing Exs.P.8 to P.19 with Ex.P.167, states that the disputed writings must have been written by A-2, Kamalananda. 14. The Inspector of Police, C.B.,C.I.D. had filed a charge sheet on 25.1.1995 on completion of investigation against A-1 to A-7 and the absconding accused Divya Devi as second accused in the original charge sheet. Despite the efforts by the investigating agency, she could not be arrested. Hence, she was declared as a proclaimed offender on 27.4.1995 by the Judicial Magistrate, Keeranur. The investigating agency could not arrest the absconding accused till 7.6.1995 and thereafter, the case against the absconding accused was split up as P.R.C. No.9 of 1995. The case against accused 1 to 7 is P.R.C. No.1 of 199 5. 15. When the accused A-1 to A-7 were questioned at length under Section 313 Cr.P.C. about the evidence and the circumstances incriminating them, all the accused denied them specifically and also contended that a false case was foisted against them. The learned Sessions Judge, after considering the prosecution witnesses P.W.1 to P.W.64 and the witnesses for the defence D.W.1 to D.W.49, the exhibits marked on the side of the prosecution Ex.P.1 to Ex.P.220 and those marked on the side of the defence Ex.D.1 to Ex.D.109 as well as the material objects P.M.O.1 to P.M.O.73 for the prosecution and D.M.O.1 to D.M.O. 37 for the defence, found the charges levelled against the accused as having been established and the accused guilty of those charges, thereby imposing a sentence of imprisonment and fine and compensation as detailed separately. The appeals are against this judgment. II. Submissions By Counsel 16. Mr. U.R. Lalith, learned senior counsel appearing on behalf of A-1 made his submissions under the following heads : (1) Charge of conspiracy is unfounded. (2) Misjoinder of charges. (3) Charge of rape on 13 girls. (4) Ravi's murder. (5) Charge of cheating. 16(a) According to the learned senior counsel, the charge does not set out the particulars like the age, date and the manner of the act etc. and that the charge is rolled into one of the rape of all the 13 girls, which has caused great prejudice to the appellants. This had also caused judicial bias against the appellants. According to him, the mandatory requirements of the charge as se t out under Sections 21 1, 212, 213, 213(b), 218, 219, 220 and 223 of the Code of Criminal Procedure, 1973 have not been complied with. He pointed out that even at the initial stage, the attention of the court was drawn to this infirmity. In terms of Section 464, there is a failure of justice because of the legal bias and prejudice by allowing inadmissible evidence, for instance, the correspondence by A-2 with Mathaji and the marking of the photographs. He further submits that the conduct of A-1 is not an issue and that evidence has been permitted to be led in to paint A-1 as a womanizer and of an immoral character. 16(b) Learned senior counsel submits that there was no predetermined plan, and even P.W.1, the approver, does not give the particulars of such a plan. It is highly improbable to accept that highly qualified persons like the accused in this case would stoop to the level of agreeing with the said conspiracy of abetting the commission of rape. 16(c) The learned senior counsel also submits that the ashram is an institution for spreading spirituality and the same cannot be treated as an institution for women. According to him, there were men and women, boys and girls and it is not exclusively meant for women. Besides, A-1 has no final authority over the administration of the ashram. Therefore, the question of applying the presumption under Section 114(a) of the Indian Evidence Act, 1872 does not arise. The ashram is a place of voluntary spiritual activity and there is no compulsion that anybody should stay in the ashram. The inmates were staying in the ashram on their own volition. The trial court did not go into this question at all. 16(d) According to the learned senior counsel, the court below has failed to consider that the mandatory requirement of Section 160 Cr.P.C. was violated while taking statements from the victim girls and they were illegally subjected to medical examination. 16(e) Insofar as the charge of murder is concerned, the learned senior counsel submits that the defence witnesses, D.Ws.1, 8, 12, 2, 11, 19 and 22 have all clearly spoken to the fact that the deceased Ravi was an insane person and it is supported by the medical evidence of D.W.46 and Ex.D.66. The trial court had accepted the case of the defence that Ravi suffered insanity during lucid intervals. According to him, there is inordinate delay in registering the complaint of the death of the said Ravi. In Ex.P.25, there was no mention about the murder of Ravi. The oral evidence led in on the side of the prosecution namely P.Ws.1, 3, 5, 8, 11, 16, 17 and 18 are unreliable. All the witnesses admit that they did not mention about the murder in their statements before the police and in their Sec.164 Cr.P.C. statements and therefore, according to him, it is clear that the evidence given by the witnesses before the court is tutored. There is ample evidence to show that the prosecution witnesses were beaten up, pressurized and offered compensation for deposing against the appellants. 16(f) The learned counsel also submits that there are vital contradictions in the evidence of the victim girls, namely that none of them have spoken to about the alleged rape in their statements under Sections 161 and 164 Cr.P.C. Their subsequent statements are only out of inducement and under pressure and therefore, their evidence cannot be worthy of acceptance. 16(g) According to the learned senior counsel, in rape cases, especially in case of a statutory rape, the date and time are important factors and the longer the time, the more the requirement for corroboration. In case of P.W.14, though the police knew the date of her rape, there is no specific charge. 16(h) The learned counsel went on to submit that insofar as the case of statutory rapes against P.W.6, P.W.8, P.W.9 and P.W.10 are concerned, their medical evidence show their age as 16 to 18 years. In the absence of clear evidence, it is unsafe to rely on the medical evidence in this case. 16(i) The learned senior counsel submits that the evidence obtained from the victim girls, including the medical evidence, is taken contrary to the mandatory requirement of Section 160 Cr.P.C. and that their statements were not voluntary and have to be looked with suspicion. 16(j) By referring to the evidence of the victim girls individually, learned senior counsel submits that there are contradictions and improvements in their evidence. It is only during the interregnum, i.e. between their examination under Section 164 Cr.P.C. and their evidence in the court, they have changed their stand and that was