Important Points
1. Having regard to the amplitude of the gravity of the offence of rape of Ashram girls by the Swamy, perpetrated in an organized and systematic manner, the nature of the offence and its deleterious effects not only against the victims, but the civilized society at large, needs to be curbed by a strong judicial hand, the Supreme Court confirmed the conviction and sentence as recorded by the Courts below against Swamy Premananda and abettors of the crime.
2. When all the victim girls were the inmates of the Ashram, they were raped by Swamy in the Ashram, who had dominion control over the Ashram, the Ashram cannot be the place for the purposes of Section 160 Cr.P.C. and the victim girls were rightly examined and interrogated in women police station.
3. Misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby.
4. If there is any contamination in DNA sample, it would result only in non-matching of bands but not into proper match.

Headnote:(i) Indian Penal Code, 1860—Sections 376(2)(c), 376/109, 354, 302, 302/34, 201, 343, 506, 420—Rape and Murder—Raping of 13 Ashram girls by A1, Swami Premananda—Murder of one boy who was shouting that A1 was having sex with Ashram girls—He was beaten up by the accused and confined without food and water where he succumbed to injuries—Many girls had to undergo abortion because of the rapes committed on them by the Swami—Prosecution case was set in motion pursuant to the news item in ‘The Indian Express’ followed by a complaint by PW3—Victims tolerated beastly assault of A1 as they were orphans and totally dependent on A1 Ashram for their food and shelter—They were warned and threatened not to disclose to any body about the misdeed of A1—Prosecutrix were examined by the doctor—Their hymen was not intact—Potency of A1 was also established— Prosecutrix were subjected to incisive cross examination—No material could be brought out to discredit the credit worthiness of the statement in chief—Consent of many of the prosecutrix had been obtained by deceitful means—Whether charge of rape leveled against A1 falls within the definition of Section 375 IPC—(Yes)—Whether the Courts below were justified in convicting the accused persons—(Yes)—Sentence and conviction as recorded by the trial Court and confirmed by the High Court confirmed.
       Held : The facts of this case, as revealed by the prosecution, shocked the judicial conscience. It illustrate a classic example as to how the insatiable lust for sex of A-1 Swami Premananda leads to the raping of 13 Ashram girls and murder of one Ravi. The Ashram which is supposed to be God abode turned out to be devil’s workshop. A-1 to whom the inmates of the Ashram regarded as God having the divine power turned out to be a monster. It is a classic case of betrayal of fatherly and divinely trust of the inmates of the Ashram girls who were mostly orphans and destitutes, brought from Srilanka except PW-4 Nallammal and PW-6 Mary. The facts of the case also illustrate a classic example as to how a game-keeper has become a poacher or a treasury guard has become a robber. From the facts as disclosed by the prosecution, some of the victim girls were brought up by A-1 since when they were aged about 2,3 and 6 years. They were reared to be butchered later when they attained the age. (Paras 3 and 4)
       It is trite law that the prosecutrix is not an accomplice. The evidence of victim of sexual assault, if inspires confidence, conviction can be founded on her testimony alone unless there are compelling reasons for seeking corroboration. Her evidence is more reliable than that of injured witness. In a case of sexual assault corroboration as a condition for judicial reliance is not a requirement of law but a guidance of prudence. Examining the testimony of prosecutrix in the background, as stated above, and in the facts and circumstances of this case, we are of the clear view, that the testimony of prosecutrix inspires confidence, on the basis of which alone conviction can be safely sustained. Moreover, in the instant case we find that the statements of the prosecutrix are well corroborated by medical and other contemporaneous documents. It is also well established principle of law that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. (Para 35)
       This case has more than one rarest of rare cases. It is rare that A-1, supposed to be incarnation of God and allegedly having divine powers has been alleged of raping 13 of Ashram girls systematically and murder of Ravi. It is rare that out of 62 prosecution witnesses examined none of them turned hostile. It is rare that in an institution like Ashram, P.W.62 I.O. seized amongst other things two new packets of nirodh vide Ex. P.83 from the kudil of Divya Devi in the Ashram. (Para 39)
       It is in the evidence of the prosecutrix, as already referred above, consent of many of the prosecutrix has been obtained by deceitful means that if they had sex with A-1 they would cure the asthma or that if they had sex with A-1 it is service to God or some of the girls have been raped under threat of dire consequences. As already stated A-1 had dominion control over the Ashram girls and most of them are orphans and no alternative place to go. Therefore it clearly falls within the thirdly clause of Section 375 IPC. Furthermore, if the consent is obtained by deceitful means or under threat of death or hurt, it is no consent at all and it is without her consent. Therefore, the charge of rape leveled against A-1 falls within the definition of Section 375 I.P.C. This apart, under sixthly clause the consent is immaterial when she is under 16 years of age. PWs. 6, 8, 9, 10 were below 16 years of age when they were raped by A-1. (Para 41)
       Similarly, the contention of breach of Section 160 Cr.P.C. is unacceptable. All the victim girls were the inmates of the Ashram. They were raped by A-1 in the Ashram, who had dominion control over the Ashram. The victim girls were being threatened not to disclose to anybody about the misdeeds of A-1 or face the dire consequences including the threat of death. In such circumstances, the Ashram cannot be the place for the purposes of Section 160 Cr.P.C. and the victim girls were rightly examined and interrogated in woman police stations. They were removed from the Ashram to erase the fear psychosis from them. It was for the safety and to serve the interest of justice, they were removed from the clutches of A-1. Section 160 Cr.P.C. must be understood and appreciated in the context of given situation. (Para 43)
       The prosecution relied upon the eye witness namely P.Ws. 1, 3, 5, 8, 11, 16, 17 and 18. From the evidence of the eye witnesses it is clearly established that Ravi died of the injuries suffered by him. Following facts are established :
       (1) Ravi died of the injuries suffered by him.
       (2) The death of Ravi was not reported either to the police or to the Revenue Authorities.
       (3) Ravi was confined in a room after the injuries he sustained without food and water for several days.
       (4) The skeletal remains were found to be that of the deceased Ravi.
       From the evidence on record, it is also clear that :
       (1) Ravi died and he was buried on 17.4.1991.
       (2) Before burial, Ravi was given a bath, his face was shaved and he was clad with a full sleeved sweater and a dhoti.
       (3) The death of Ravi was not informed to the police. No information or complaint was given either to the village Administrative officer or any revenue officer.
       (4) No prior treatment was given to the deceased before his death.
       From the statement of P.Ws. aforesaid, the prosecution has clearly established its case that Ravi died out of the injuries caused by A-1 and A-2 and subsequent confinement and starvation accelerated his death. (Para 73)
       In the aforesaid facts and circumstances, we see no infirmity in the well merited findings concurrently recorded by the two Courts below, which do not warrant our interference. The appeals are, accordingly dismissed. Having regard to the amplitude of the gravity of the offence, perpetrated in an organized and systematic manner, the nature of the offence and its deleterious effects not only against the victims, but the civilized society at large, needs to be curbed by a strong judicial hand. We are inclined to confirm the sentence and conviction as recorded by the Trial Court and confirmed by the High Court. The order of the Trial Court that any remission of sentence or amnesty on any special occasions announced or to be announced be either by the Central or the State Government shall not apply to the sentence and imprisonment imposed on all the accused is also maintained. (Paras 79 and 80)
       (ii) Criminal Procedure Code, 1973—Sections, 218, 464 and 465—Misjoinder of charges—Accused represented by a very senior and abled criminal lawyer—Accused was afforded an opportunity to explain all the circumstances appearing against him—Whether any failure of justice had occasioned by alleged misjoinder of charges or whether any prejudice is caused to the accused—(No).
       Held : Misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the light of the aforesaid principle, let us now examine the facts of the present case, as to whether any failure of justice had occasioned thereby or whether any prejudice is caused to the accused. The accused was represented by a very senior and abled criminal lawyer. All the prosecution witnesses were subjected to incisive cross-examination. The accused put up 49 defence witnesses. In his cross-examination under Section 313 altogether 445 questions were put to him, affording an opportunity to explain all the circumstances appearing against him. Having regard to these facts, in our opinion, no failure of justice has occasioned and both the Courts below are justified in rejecting the contention. (Paras 51 and 52)

JUDGMENT

Sema, J.—These appeals by special leave are preferred by accused nos. 1, 2, 4, 6 and 7 against their conviction concurrently recorded by two Courts. A-3 served out the sentence and A-5 died during the pendency of the appeal before the High Court and his appeal stands abated. They were convicted and sentenced to imprisonment as under :-

Charge Convicted Accused Sentence of Imprisonment/ Nos. under Fine imposed Section

(1) (2) (3) (4)

1. 120(B) I.P.C. A-1 to A-7

2. 376(2)(c) A-1 I.P.C. (12 Counts)

3. 376 r/w A-2, A-4, 109 I.P.C. A-6 and A-7, A-3

4. 354 I.P.C A-1 (One Count)

5. 312 I.P.C. A-3 (Four Counts)

6. 302 I.P.C. A-1

302 r/w A-2 34 I.P.C.

7. 304 I.P.C. A-4 A-6 and A-7

8. 343 I.P.C. A-1, A-2, A-6 to A-7

9. 201 r/w A-6 & A-7

304 I.P.C

10. 201 r/w A-2 114 I.P.C.

11. 506 (Para II) A-1, A-2, I.P.C. (2 A-4, A-6 Counts) and A-7

12. 420 I.P.C. A-1

1st Accused : The sentence imposed on A-1 on charge Nos. 2 and 6 are to run consecutively. Total fine on A-1 is Rs.61,30,000/- (Rs. 61,20,000/- + Rs. 10,000). Sentences imposed on A-1 in default of payment of fine on each count are to run separately and consecutively apart from the above sentence of imprisonments. In default of payment of fine, Total further sentence to undergo; 32-1/2 years + 3 months.

2nd Accused : The sentences imposed on A-2 on Charge Nos. 3 and 6 are to run consecutively. Total fine on A-2 Rs. 12,500/- (Rs. 10,000/-+Rs. 2,500). The Sentences imposed on A-2 in default of payment of fine is to run consecutively apart from the above sentenced of imprisonments.

4th Accused : The sentence of imprisonment of Charge Nos. 3 and are to run concurrently. Fine amount on A-4 : Rs. 10,000/- The sentence of imprisonment imposed in default of payment of fine is to run separately.

Accused 6 and 7 : The sentence of imprisonment imposed on each of these Accused on Charge Nos. 3 and 7 are to run concurrently. Total Fine Rs. 12,500/- each (Rs. 12,500/- X 2 = Rs. 25,000). The sentence of imprisonment imposed in default of payment of fine is to run separately and consecutively.

Total fine on A-1 to A-7 Rs.62,07,500/-

Out of the payment of fine of Rs. 51,30,000/- collected from A-1 under Sec. 357(1) a (3) Cr.P.C., a compensation of Rs. 5,00,000/- is to be paid to each of the victim girls, P.W.3 Sureskumari; P.W.4 Nallammal; P.W.5 Princy, P.W.6 Mary; P.W.7 Selvakumari @ Manjula; P.W.8 Sugunakumari @ Sudha; P.W.9 Pushparani; P.W.10 Sasikumari @ Jaya P.W.12 Udayakumari; P.W.13 Vanitha; P.W.14 Aruljothi and P.W.15 Malligadevi (Rs. 5,00,000 X 12 = Rs. 60,00,000/-.

Accused Related :

2. Accused No. 2 is the Secretary of A-1, A-6 is the younger broth

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2005 Supreme(SC) 575

Cases Referred (5)