Kerala High Court · 2008

Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:2:-Philip Perumal @ Divin) all of whom are 3rd year nursing students inthe School of Medical Education at Gandhinagar, in furtherance of theircommon intention to rag and ravish Supimol (Charge Witness No.2)who was a first year nursing student of the said institution situated onthe northern side of the Gandhinagar - Panampalam Road, behaved ina disorderly and improper manner towards the said Supimol, who wasdescending the staircase from the 2nd floor of the said building. A1 toA6 ridiculed, humiliated, mentally tortured and thereby ragged thesaid Supimol from the staircase. Thereafter, A1 to A3 took her to theHistopathology Laboratory situated in the 1st floor of the school ofMedical Education and bolted the door from inside preventing herfrom proceeding in any direction. The 1st accused then forciblyadministered a 'ladu' which was mixed with the drug called calmpose.Supimol who became physically and mentally exhausted was thentaken and made to lie on the work - bench situated towards thesouthern wall of the said laboratory. Thereafter accused Nos.1 and 2ravished her and the 3rd accused outraged her modesty by squeezingher breasts and fondling her belly and caused physical harm to her.The 1st accused then criminally intimidated her by saying that if shedivulged the occurrence to anybody they would pour acid on her face. Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:3:-Accused Nos.4 to 6 were at that time guarding the Histopathology labfrom the staircase and nearby places to ensure that nobody elseentered the said laboratory and thereby rendered aid and support toA1 to A3. Thereafter accused Nos.7 and 8 who are respectively thePrincipal and Director of the said institution, in spite of gettingcomplete information regarding the occurrence, refrained fromconducting any enquiry according to law or from taking action byreporting the matter to the nearest Magistrate or the Police. Theabove conduct of accused Nos.7 and 8 was to screen A1 to A6 frompunishment and also to cause disappearance of the evidence of theoffence which might have been obtained. Supimol, the victim wasthereafter undergoing treatment in the psychiatry ward of the MedicalCollege, Kottayam under the 9th accused, Dr.Saibunneesa Beevi.While so, with a view to conceal the offences committed by A1 to A6and to screen them from punishment and also with a view to causedisappearance of the evidence, during the period from 30.10.05 till12.11.05 accused Nos.7 & 9 entered into a criminal conspiracy fromthe house of the 9th accused as also through mobile phones andcaused disappearance of evidence by preventing a gynecologicalexamination of the victim and by the 9th accused making corrections Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:4:-in the case sheet pertaining to the victim on 14.11.05 to the effectthat the victim had suicidal tendencies and had consumed anoverdose of medicine on 6.11.05 with a view to commit suicide andthat the victim girl was discharged from the psychiatry ward on15.11.05 whereas the girl had actually been discharged on 14.11.05.Accused Nos.1 to 6 have thereby committed offences punishable underSections 342,354,366A,328,376(2)(g) and 506(ii) read with 34 IPCand Section 4 of the Kerala Prohibition of Ragging Act, 1998. AccusedNos.7 & 8 have committed offences punishable under Sections 201and 202 read with 34 IPC and Section 4 read with Section 7 of theKerala Prohibition of Ragging Act, 1998. Accused Nos.7 & 9 havecommitted offences punishable under Sections 120B, 201, 202 and218 read with 34 IPC.THE COGNIZANCE AND POST-COGNIZANCE EVENTS3. The charge sheet was filed by the Circle Inspector ofPolice, Kottayam East Police Station before the J.F.C.M,Ettumannor on 18.1.06. On 24.1.06, the learned Magistrate tookcognizance of the offences and registered the case asC.P.No.3/2006. During the committal stage, the 1st accused Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:5:-moved the Magistrate for a direction to the investigating Agencyto subject the victim girl, Supimol as well as the 1st accused toBrain mapping, Polygraph and other scientific tests. The accusedhad also filed a petition before this Court seeking a direction toentrust the investigation with the Central Bureau of Investigation(CBI). The committal Magistrate dismissed the application forscientific tests. Aggrieved by the said order, the accused filedCrl.R.P.No.597/2006 before this Court. The request made beforethis Court for handing over the investigation to the CBI wasturned down by this Court and was confirmed by the SupremeCourt. In the meanwhile, as per order dated 2.06.06, this Courtdisposed of Crl.R.P.No.597/2006 directing the investigatingagency to subject all the accused persons in the case as well asthe victim girl to brain mapping and Polygraph tests. The reportof the expert was directed to be filed before the Magistrate whoin-turn was directed to consider this report along with otherrecords during the committal proceedings and pass appropriateorders. Aggrieved by the said order passed by this Court both Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:6:-the State Government as well as the father of the victim girl filedSpecial Leave Petitions ( Crl) Nos.3609/2006 and 3356/2006before the Hon'ble Supreme Court of India. After granting leavethose S.L.Ps were numbered as Crl.Appeal Nos.106 and107/2007 respectively. Subsequently, as per common orderdated 23.1.07, the Apex Court set aside the order passed by thisCourt and directed that the committal proceedings be expedited.During the course of the order the Apex Court observed asfollows:-“We have considered the rival submissions and weare of the opinion that no useful purpose would be servedby subjecting the victim again to undergo a Polygraph testor Brain Mapping test as she had already alleged to havesuffered enough of agony and further to put her to this testwill add to her agony which we do not want the victim tosuffer. There is also no use of subjecting the accusedpersons to this test. The case is at the committal stage.The learned Magistrate shall take into consideration all thematerial available on record and pass the order ofcommitment in accordance with law. During the trial, if thetrial court feels any further investigation or any othernecessity of any kind of scientific opinion in the matter, itwill be open for him to proceed in accordance with law. Butit will not serve a useful purpose to send either the victimor the accused persons to undergo further test at thisstage, which will unnecessarily delay the trial. Therefore,we set aside the order and direct the trial court to proceedin committal proceedings and in case the case is committedbefore the court of Sessions Judge, then it will be open tothe Sessions Judge to proceed in accordance with law and Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:7:-consider all the aspects if it is in accordance with law. Wedo not want to make any observation either way. We,further, direct that any observation made by the learnedSingle Judge in his order dated 2.06.06 shall not affect thecourse of the trial.Any observation in this order will also not affectthe trial. Both these appeals are allowed and theimpugned order of the learned Single Judge is set aside.The matter is already delayed. Let the committalproceedings be expedited by the committing court”.4. Thereafter, as per order dated 6.3.07, the J.F.C.M,Ettumannor committed the case to the Court of Sessions underSection 209 Cr.P.C. The case was then made over to theAdditional Sessions Court(Special), Kottayam for trial anddisposal. It was thereafter that accused Nos.5 and 6 filed CMPNo.1538 of 2007, the 8th accused filed CMP No.1539/2007 andthe 7th accused filed CMP No.1679(a) of 2007 before theAddl.Sessions Court(Special), Kottayam seeking a dischargeunder Section 227 Cr.P.C. As per common order dated 14.8.07,the trial court discharged accused Nos.7 & 8 of the offences underthe Kerala Prohibition of Ragging Act, 1998 but declined to give adischarge to accused Nos.7 & 8 for the remaining offences. Thetrial court also dismissed the application for discharge filed by Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:8:-accused Nos. 5 & 6. It is the said common order which isassailed in these revisions by the State and accused Nos. 7 & 8.5. I heard the Senior Advocate, Sri.P.G.Thampi, theDirector General of Prosecution representing the State,Adv.Sri.Bechu Kurian Thomas, the learned counsel for A7 andAdv.Sri.S.Rajeev, the learned counsel for A8.6. The following points arise for consideration in theserevisions :-1. Is the order passed by the trial court discharging A7 &A8 of the offences punishable under the KeralaProhibition of Raging Act, 1998 liable to be set aside?2. Is the order passed by the court below declining todischarge A7 and A8 of the remaining offences, legaland proper?Point No.1PROSECUTION PLEA AGAINST DISCHARGE UNDER THE RAGGING ACT 7.Sri.P.G.Thampi, the learned State Public Prosecutormade the following submissions before me, assailing thedischarge of A7 and A8 as granted by the court below:- The discharge of A7 and A8 by the court below for offences Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:9:-under the Ragging Act cannot be sustained. Even in the complaintpreferred by Gopi (the father of Supimol, the victim in this case) tothe 7th accused Principal it was clearly stated that something hadhappened to his daughter during her studies in the College resulting inher examination by the psychiatrist. Under these circumstances, alegal duty was cast upon the 7th accused to enquire into the saidcomplaint. Another important aspect which has come out duringinvestigation is that the 7th accused Principal is a close relative of thefirst accused. This explains the conduct of the 7th accused indeliberately suppressing the offence committed by the first accusedevidently to protect him from criminal prosecution. The occurrencetook place on 21-10-2006. The age of Supimol the victim was 17years and 8 months. After the occurrence the girl became morose anddid not divulge the occurrence to anybody presumably out of a feelingof shame or out of fear on account of the threat by A1 to pour acid onher face in case she revealed the occurrence to anybody. On 27-10-2005 while attending the class she fainted and fell down. She wastaken to the Psychiatry ward of the Medical College Hospital, Kottayamof which Dr. Saibuneeza Beevi (A9) was the Head. She conducted adetailed examination of the girl and noted her findings in the case Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:10:-sheet. But she intentionally omitted to report the matter to the police.She did not also cause a gynecological examination of the victim.Subsequently on 29-10-2005 she had even made corrections in thecase sheet pertaining to the victim. A7 the Principal had consulted A9by visiting her in her house as also by contacting her through themobile phone indicating the criminal conspiracy to hush up theoccurrence presumably due to her close relationship with A1 who wasthe principal offender . On 28-10-2005 Seena Antony (CW10) whois a social worker attached to the Medical College hospital, Kottayamhad interrogated the girl in detail in the presence of Dr. Diana(CW60). The victim had then narrated the whole story. SeenaAntony reported the matter to A7 the Principal as well as to Gopi(CW3) the father of the victim. Gopi and the victim belong to Ezhavacommunity and Gopi is a rubber tapper by avocation. Seena Antonyhad also met A8 the Director and had informed him about theoccurrence. Eventhough both A7 and A8 had obtained completeinformation about the occurrence from Seena Antony, both of themfailed to take action and perform their respective duties. Even the 7thaccused when interrogated by the investigating officer has confessedthat she is related to A1 although she would say that it is a distant Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:11:-relationship. It is true that both Seena Antony and Dr. SaibuneesaBeevi had revealed the experience of the victim to A7 and A8 onlyorally. It is also true that Gopi, the father of the victim gave awritten complaint to A7 only on 9-11-2005 and even in that complaintwhat was stated was that something happened to his daughter fromthe nursing college. But then, the fact that on 5-11-2005 A7 hadissued a memo to A1 alleging that A1 had behaved in a disorderlymanner will show that A7 had complete knowledge of the occurrenceon 5-11-2005. Except going to Gandhinagar Police Station on 10-11-2005 and handing over the written complaint dated 9-11-2005 givenby Gopi, the father of the victim, A7 did not conduct any enquiry, nordid she place A1 under suspension. A reading of Section 6 of theRagging Act will clearly show that the word used is “complains” andnot “complaint” and hence it is obviously clear that even a bonafideoral complaint is taken in by Section 6 of the Ragging Act. Evenassuming but not admitting that Section 6 envisages only a writtencomplaint, still there was no justification in discharging the 7th accusedwho is the Principal of the Institution as she was legally bound toconduct an enquiry as envisaged by Section 6 of the Act. Her dutywas not merely to forward the complaint to the Police by rendering a Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:12:-post office service. She had a duty to conduct an enquiry and suspendthe erring students besides reporting the matter to the concernedpolice . Hence, the 7th accused had committed the offence of“deemed abetment” under Sec. 7 of the Ragging Act and punishableunder Sec. 4 of the said Act. The faciculous of the memo dated 5-11-2005 issued by A7 to A1, if read along with the definition of “Ragging”contained in Section 2 (b) of the Ragging Act will clearly show that ifnot Section 6, Section 7 of the Ragging Act is attracted and Section 7does not contemplate any written complaint.DISCHARGE UNDER THE RAGGING ACT - JUDICIALEVALUATION 8.I am afraid that I cannot agree with the abovesubmissions. 7th accused ( Smt. K.M. Mariyam) is admittedly thePrincipal of the Gandhinagar School of Medical Education which is oneof the self financing institutions directly run by the Mahatma GandhiUniversity. The 8th accused (Dr. Muraleedharan Nair) is admittedly theDirector of a chain of institutions of which the Gandhinagar School ofMedical Education is one . Section 6 of the Ragging Act reads asfollows:“6. Suspension of student - (1) Whenever anystudent or, as the case may be, the parents orguardian, or teacher of an educational institution Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:13:-complains, in writing of ragging to the head of theeducational institution, the head of that educationalinstitution shall, without prejudice to the foregoingprovisions, within seven days of the receipt of thecomplaint, enquire into the matter mentioned in thecomplaint and, if prima facie, it is found true,suspend the student who is accused of the offence,and shall immediately forward the complaint to thepolice station having jurisdiction over the area inwhich the educational institution is situate, for furtheraction”Thus, if a student, parent or guardian or a teacher of an EducationalInstitution complains in writing to the head of the EducationalInstitution about ragging , such a head of the institution is to conductan enquiry into the matter and if the complaint is prima facie found tobe true, he or she should suspend the student who has committed theoffence and forward the complaint to the police concerned for furtheraction. In case, the enquiry reveals that prima facie there is nosubstance in the complaint, then the head of the institution is tointimate the said fact in writing to the complainant. Section 7 of theAct reads as follows:-“7. Deemed abetment:- If the head of the educationalinstitution fails or neglects to take action in the mannerspecified in Sec. 6 when a complaint of ragging is made,such persons shall be deemed to have abetted the offence ofragging and shall, on conviction, be punished as provided forin Section 4”.Thus, failure to take action under Section 6 of the Act gives rise Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:14:-to a statutory fiction by way of deemed abetment rendering the headof the institution liable for punishment under Sec. 4 of the RaggingAct. Section 4 of the Ragging Act reads as follows:-“4. Penalty for ragging - Whoever commits,participates in, abets or propagates ragging within, orwithout, any educational institution shall, on conviction, bepunished with imprisonment for a term which may extendto two years and shall also be liable to a fine which mayextend to ten thousand rupees.The word “Ragging” has been defined under Sec. 2(b) as follows:“(b) “Ragging” means doing of any act, by disorderlyconduct, to a student of an educational institution,which causes or is likely to cause physical orpsychological harm or raising apprehension or fear orshame or embarrassment to that student andincludes - “9.The expression “head of the Educational Institution” hasbeen defined under Sec. 2(a) as follows:“(a) 'head of the educational institution' means thePrincipal or the Headmaster or the person responsiblefor the management of that education institution”.(emphasis supplied)Thus, head of the educational institution means either theprincipal or the headmaster or the person responsible for themanagement of that educational institution. Going by the abovedefinition, there can only be a single person functioning as the head Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:15:-of the institution. Even otherwise, the said expression “the head ofthe educational institution” can obviously take in only a singleperson or authority as there cannot be more than one head for aneducational institution. In this case, if the 7th accused who is thePrincipal of Gandhinagar School of Medical Education is the head ofthe Institution, then the 8th accused who is the Director of a chain ofinstitutions including the Gandhinagar School of Medical Educationcannot also be the head of the particular educational Institution. Inother words, if the responsibility under Sec. 6 of the Act is on thePrincipal, then there cannot be a similar responsibility on any person(including the 8th accused) other than the Principal. Hence, it is notpossible to blame both A7 and A8 for the alleged failure to complywith the formalities under Sec. 6 of the Act. Going by the respectivepositions occupied by accused Nos. 7 and 8, I have no hesitation toconclude that what the statute envisages is the head of the particularinstitution who can obviously be the 7th accused and not the 8thaccused. Hence, I am of the view that the head of the educationalinstitution with regard to Gandhinagar School of Medical Education isthe 7th accused in this case and not the 8th accused. 10. The further question is as to whether there has been any Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:16:-failure or neglect on the part of the 7th accused in complying with themandate under Sec. 6 of the Ragging Act. Before deciding thisquestion it will have to be seen as to whether the statutory obligationunder Sec. 6 on the head of the institution can arise only on receiptof a written complaint or whether such head of the institution isbound to comply with the formalities stipulated thereunder even onreceipt of an oral complaint. The words “complains in writing”occurring in Sec. 6 of the Act do not admit of any doubt,particularly when one of the duties cast on the head of the institutionis to forward the complaint to the police station having jurisdictionover the area. Unless it is a written complaint there cannot be anyquestion of the head of the institution forwarding the same to thepolice. Moreover, having regard to the purposes for which such anobligation has been cast on the head of the educational institution, itwill be unreasonable to expect such a person occupying a pivotal roleto act upon oral grievances and thereafter to be found guilty forfailure to act on such grievances. The legislature has guardedlyemployed the words “complains in writing”. Thus, it is only when thehead of the Institution receives a written complaint that he or she isobliged to perform the duties cast on him or her under Sec. 6 of the Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:17:-Act. When the prosecution has no case that either Seena Antony orA9 had given a written complaint to A7, it cannot be held that A7committed breach of her obligations under Sec. 6 of the Ragging Act.It is true that on 5-11-05 she is alleged to have issued a writtenmemo to A1 imputing disorderly behaviour on the part of A1. Butthat was an action done by A7 not in discharge of her statutoryobligation under Sec. 6 of the Act. It was presumably an actionactuated by a moral obligation on being told that A1 had behaved in adisorderly manner towards a female student. Being the head of theEducational Institution concerned she had a moral duty to do so. 11. Except alleging that she is a close relative of A1, theexact relationship, if any, between A1 and A7 has not been revealedthrough the statements of any of the prosecution witnesses. Wheneven without a written complaint, A7 had issued a memo to A1 on 5-11-2005, and had thereafter on 10-11-2005 personally handed overthe written complaint dated 9-11-2005 given by Gopi, the father ofthe alleged victim, to the officer in-charge of the Gandhinagar PoliceStation, it cannot be said that A7 was protecting A1 out of thealleged relationship which A7 had with A1. The only written complaintwhich A7 received was from the father of the victim and that was Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:18:-on 9-11-2005. In that complaint there is no allegation of any rape ormolestation or sexual exploitation of his daughter. All that is stated inthe written complaint is that something happened to his daughterwhile at the nursing college. Despite the fact that it was a vaguecomplaint A7 was acting in a responsible manner by handing overthe complaint to the police for appropriate action. It must benoted in this context that A7 is stated to be a teacher of great reputeand a recipient of several pedagogues' medals. It is admitted thatA1 was soon arrested by the police. Hence even assuming that A7had an obligation under Sec. 6 of the Ragging Act to place A1 to A6under suspension even without a written complaint, it could not havebeen possible for A7 to place A1 under suspension. I am, therefore,of the view that in the absence of a written complaint, A7, who wasthe head of the institution had no statutory obligation to comply withthe formalities under Sec. 6 of the Ragging Act. It is true that Sec. 7does not mention about any written complaint but only envisages themaking of a complaint of ragging. But then, Sec. 7 is attracted only ifthere is a failure to take action under Sec. 6 which in turn, postulatesa written complaint. If so, there cannot be any deemed abetmentby A7 of the offence of ragging so as to attract Sec. 7 and punishable Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:19:-under Sec. 4 of the Ragging Act. This point is accordingly answeredagainst the prosecution and in favour of the defence holding that theCourt below was right in discharging accused Nos. 7 and 8 of theoffences under the Ragging Act. POINT NO. 2DEFENCE PLEA FOR DISCHARGE OF A7 AND A8 FOR THE I.P.C.OFFENCES 11.Assailing the impugned order so far as it refused todischarge A7 and A8 for the I.P.C. offences, their learned counselmade the following submissions before me :-There is nothing to show that A7 and A8 hatched a criminalconspiracy with a view to hush up the whole episode. No writtencomplaint had been given to A7 either by Seena Antony or anybodyelse prior to 9-11-2005. Supimol the alleged victim did not attendthe college from 21-10-2005 to 28-10-2005. Even in the writtencomplaint preferred by her father Gopi before A7 it was not stated thatSupimol was ragged or ravished. The complaint only mentioned thatsomething happened to the complainant's daughter while she was inthe nursing college. Still A7 went out of the way to set the criminallaw in motion by personally handing over the said complaint to theGandhinagar Police on 10-11-2005. A7 was the head of an Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:20:-educational institution and is a teacher having an unblemished career.If a student of hers was admitted in the hospital, she being the headof the Institution had not only a moral duty but also a legal obligationto make enquiries with the doctor about the condition of her student.In that connection if A7 had contacted the doctor concerned (A9)either through the mobile phone or by paying a visit to the house ofthe doctor, no criminal conspiracy can be inferred between A7 and A9or between A7 and A8. The allegation against A7 with regard to theoffences punishable under Sections 201 and 202 is that A7 did notinform the authorities. In the absence of a written complaint underSec. 6 of the Ragging Act, A7 had no obligation to inform theauthorities. A9 the doctor was not a subordinate of A7 nor was sheunder the control of A7. A7 had absolutely no authority over theMedical College Hospital, Kottayam so as to influence A9. There is noallegation of A7 causing disappearance of the evidence of the offenceso as to attract Sec. 201 I.P.C. The police charge does not contain theingredients of the said offence. Vide Roshan Lal and Others v.State of Punjab - AIR 1965 SC 1413 and para 16 of KodaliPurnachandra Rao and Another v. The Public Prosecutor,Andhra Pradesh - 1975 (2) SCC 570. There was no intentional Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:21:-omission to give information of the offence by A7 as he was not legallybound to do so. If it was illegal for him to omit to do a particular thingthen only it could be said that he was legally bound to do that thingin view of Sec. 43 I.P.C. Even assuming that A7 had informationabout the commission of an offence punishable under Sec. 376 I.P.C.she had no obligation to give information of the same to the nearestMagistrate or police officer under Sec. 39 Cr.P.C. since the saidprovision excludes Sec. 376 I.P.C. It is only if there is grave suspicionthat A7 and A8 had committed the alleged offences could a charge beframed against them. Where there is only some suspicion and twoviews are possible, this Court is bound to discharge the accused. SeeUnion of India v. Prafullakumar Samal and Another 1979 (3)SCC 4. Since R8 is the superior of R7, there is nothing wrong if R7and R8 had some discussion between themselves about theunfortunate incident. From that alone a criminal conspiracy cannot bespelt out. If the statement of Seena Antony is to be believedwhatever the girl told her was conveyed to her mother. C.W.1 themother would say that she was not aware of the sexual exploitation till9-11-2005. 9-11-2005 is the date on which the girl's fathercomplained about the occurrence. A8 also became aware of the Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:22:-occurrence only on 9-11-2005 as mentioned to him by A7. The nextday was a public holiday due to the expiry of the former PresidentSri. K.R. Narayanan. The subsequent day i.e. 11-11-2005 is thedate on which A8 was brutally manhandled by members of the YouthWing of the C.P.I (M) while A8 was attending a departmental meeting.Hence, A8 cannot be blamed for not taking any action in the matter. DISCHARGE UNDER I.P.C. OFFENCES - JUDICIAL EVALUATION 12.I am afraid that I cannot agree with the above defencesubmissions. It is too early to conclude that there was nocriminal conspiracy between A7 and A9 or between A7 and A8. Theinvestigating agency had produced the print outs showing the numberof times A7 and A9 had communicated between each other throughmobile phones. There is also the statement of a neighbour of A9 toshow that A7 had frantically gone to the residence of A9 and both ofthem had some secret conversation. C.W.3 the father of the victimhas stated that on 11-11-2005 when he went to ascertain as to whataction had been taken on his written complaint which he had givento A7, he saw A7 and A8 engaged in a conversation and on seeinghim they told him that whatever happened is happened and whateverhelp including monetary assistance that was needed could be provided Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:23:-and the girl could be treated for her mental turmoil. The father thenproceeds to say that from the attitude of A7 and A8 the impressionwhich he gathered was that both of them were having full knowledgeof the occurrence and were deliberately suppressing the same. 13.In the confessional statement given by A7 she hasadmitted that A1 who is a 3rd year student of that nursing college is adistant relative of hers. No doubt , it is only if the prosecutionwitnesses testify before court can it be said that there is legalevidence before court and until then there is only material which iscapable of becoming legal evidence. But then, this is sufficient to,prima facie, conclude in support of the prosecution case. Thelearned trial judge who had the advantage of perusing the entireprosecution records running into several volumes has found , a primafacie, case against A7 to A9. This Court sitting in revision will beloathe to interfere with the discretion validly exercised by the trialjudge. I therefore, hold that the order of the court below refusing todischarge A7 and A8 of the offences under the Indian Penal Code doesnot call for any interference. This point is accordingly answered infavour of the prosecution and against the defence. 14. It is made clear that the observations and findings in the Crl.R.P.Nos. 3304, 3800 of 2007 & 1052 of 2008-:24:-impugned order as well as in this order shall not in any way influencethe trial judge while proceeding to try the accused persons. It shall beopen to A7 and A8 to apply for personal exemption during the trialand pre-trial stages of the case provided they file the necessaryaffidavit before the trial court giving the requisite undertaking whichwill also cover the question of their identity. These Revision Petitions are accordingly dismissed upholding thecommon order passed by the trial judge. Since the Court of theSpecial Judge at Kottayam is lying vacant and the trial of the caseshould have been over long ago, S.C. No. 79 of 2007 shall standtransferred to the Principal Sessions Court, Kottayam. The PrincipalSessions Judge shall try and dispose of the case without any furtherdelay. V. RAMKUMAR, JUDGE.ani.