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2011 (1) LW(Crl) 709, 2011 (2) MWN(Cr) 261, 2011 (5) CTC 747
High Court of Judicature at Madras
S. NAGAMUTHU
Ganesan & Another
Versus
State Rep. By The Inspector of Police, Chennai
Crl. Appeal No.263 of 2011 & Crl. Appeal No.57 of 2004
Decided On: 28-04-2011
The court set aside the conviction and sentence imposed on the appellants in two separate appeals, acquitting them of the charges against them. The court found that the trial court had committed serious procedural lapses and substantive illegalities, including conducting a common trial for four separate cases, substituting evidence from one case to another, and delivering a common judgment. The court held that these illegalities vitiated the entire judgment and that a retrial would not be in the interest of justice, as the sole witness had turned hostile and disowned her earlier testimony. The court emphasized the importance of following established procedures and the right to a speedy trial, and laid down several legal principles to be followed in similar cases.
Fact of the Case:
The case involved four separate incidents of alleged sexual assault and related offenses against the same victim, P.W.1, by different accused. The trial court conducted a common trial for all four cases, substituted evidence from one case to another, and delivered a common judgment convicting the appellants in two of the cases. The appellants challenged their convictions in separate appeals.
Finding of the Court:
The court found that the trial court had committed serious procedural lapses and substantive illegalities, including conducting a common trial for four separate cases, substituting evidence from one case to another, and delivering a common judgment. The court held that these illegalities vitiated the entire judgment and that a retrial would not be in the interest of justice, as the sole witness had turned hostile and disowned her earlier testimony.
Issues: 1. Whether the trial court erred in conducting a common trial for four separate cases, substituting evidence from one case to another, and delivering a common judgment? 2. Whether the appellants were denied a fair trial due to the procedural lapses and substantive illegalities committed by the trial court? 3. Whether a retrial would be in the interest of justice, considering that the sole witness had turned hostile and disowned her earlier testimony?
Ratio Decidendi: 1. The court held that the trial court erred in conducting a common trial for four separate cases, substituting evidence from one case to another, and delivering a common judgment. The court relied on the principle that each case must be decided on the basis of the evidence recorded in that particular case and that there cannot be a common judgment delivered in two or more cases. 2. The court held that the appellants were denied a fair trial due to the procedural lapses and substantive illegalities committed by the trial court. The court found that these illegalities had resulted in a failure of justice and that the appellants had not received a fair and impartial trial. 3. The court held that a retrial would not be in the interest of justice, considering that the sole witness had turned hostile and disowned her earlier testimony. The court found that even if the case was remitted for retrial, the prosecution could not expect the witness to depose against the accused, and that remitting the case for retrial would only add to the workload of the trial court and result in a waste of time.
Final Decision: The court allowed the appeals, set aside the conviction and sentence imposed on the appellants, and acquitted them of the charges against them. The court also directed that the fine, if any, paid by the appellants be refunded to them.
1. These appeals arise out of the judgement of conviction of the appellants imposed by the learned Additional 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. 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.
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 Vijayasanth
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