Kerala High Court
Aliyar vs State Of Kerala on 20 February, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA,
1945
CRL.A NO. 802 OF 2017
AGAINST THE JUDGMENT DATED 28.07.2017 IN SC 854/2015 OF
THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR
APPELLANT/1ST ACCUSED:
ALIYAR
AGED 52, S/O.IBRAHIM, AATTAYAM HOUSE, NELLIKUZHI
VIA, KOTHAMANGALAM, ERNAKULAM, NOW UNDERGOING
IMPRISONMENT IN CENTRAL PRISON, VIYOOR, THRISSUR
DISTRICT, PIN-680010.
BY ADVS.
SRI.MANJU ANTONEY
SRI.R.ANAS MUHAMMED SHAMNAD
SRI.K.S.KESHOR KUMAR
SMT.P.MAMATHA
RESPONDENT/PROSECUTION/STATE:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
THRISSUR EAST POLICE STATION, (CRIME
NO.2481/2015 OF TOWN EAST POLICE STATION),
THROUGH PUBLIC PROSECUTER, HIGH COURT OF KERALA,
ERNAKULAM,PIN-682031.
SMT.AMBIKA DEVI SPL PP
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON
08.02.2024, ALONG WITH CRL.A.803/2017, THE COURT ON
20.02.2024 DELIVERED THE FOLLOWING:
Crl.A. Nos.802 and 803 of 2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA,
1945
CRL.A NO. 803 OF 2017
AGAINST THE JUDGMENT DATED 28.07.2017 IN SC 854/2015 OF
THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR
APPELLANT/2ND ACCUSED:
AMINA @ REENA
AGED 42, W/O.MUHAMMED, PAZHAYERIYIL HOUSE,
KAVALANGAD DESOM, PALLARIMANGALAM, ERNAKULAM,
NOW UNDERGOING IMPRISONMENT IN WOMENS' PRISON,
VIYOOR, THRISSUR DISTRICT, PIN-680010.
BY ADVS.
SANDHYA RAJU
GAJENDRA SINGH RAJPUROHIT
MANJU ANTONEY
RESPONDENT/PROSECUTION/STATE:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
THRISSUR EAST POLICE STATION, (CRIME
NO.2481/2015 OF TOWN EAST POLICE STATION),
THROUGH PUBLIC PROSECUTER, HIGH COURT OF KERALA,
ERNAKULAM,PIN-682031.
SMT.AMBIKA DEVI SPL PP
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON
08.02.2024, ALONG WITH CRL.A.802/2017, THE COURT ON
20.02.2024 DELIVERED THE FOLLOWING:
Crl.A. Nos.802 and 803 of 2017
3
P.B.SURESH KUMAR & JOHNSON JOHN, JJ.
-----------------------------------------------
Criminal Appeal Nos.802 and 803 of 2017
-----------------------------------------------
Dated this the 20th day of February, 2024.
JUDGMENT
P.B.Suresh Kumar, J.
Accused in S.C.No.854 of 2015 on the files of the
Additional Sessions Court, Thrissur - I are the appellants in
these appeals. Among them, the first accused is the appellant
in Crl.A.No.802 of 2017 and the second accused is the appellant
in Crl.A.No.803 of 2017. The appellant in Crl.A.No.802 of 2017
stands convicted for the offences punishable under Sections
376(2)(l) and 376(2)(n) of the Indian Penal Code (IPC) and the
appellant in Crl.A.No.803 of 2017 stands convicted for the said
offences read with Section 109 of IPC.
2. The victim in the case, a girl allegedly aged 17
years was a student in a special school. The father of the victim
Crl.A. Nos.802 and 803 of 2017
is mentally ill and left the family of the victim. Therefore, the
victim and her siblings, viz, her younger sister and younger
brother were under the custody of her mother. On 23.08.2015,
the victim was sent home for Onam vacation along with the
second accused namely, her mother, who went to the school
along with the siblings of the victim, to pick her up. After the
vacation, the second accused dropped the victim back to the
school on 31.08.2015. The Counsellor attached to the school
found the victim to be in a disturbed mood and in the
conversation that ensued, the victim allegedly revealed to the
Counsellor that she was sexually abused on the way to her
house when she left for Onam vacation. The matter was
informed by the Counsellor to the Principal of the school and
she, in turn, produced the child before the Child Welfare
Committee. The Child Welfare Committee lodged a complaint to
the police, and a case was registered on that basis after
recording the statement of the victim. After due investigation,
the final report was filed in the case before the Special Court for
Trial of Offences under the Protection of Children from Sexual
Crl.A. Nos.802 and 803 of 2017
Offences Act (POCSO Act) disclosing commission of the offences
by the accused punishable under Sections 376(2)(l) and 376(2)
(n) read with Section 34 IPC and Sections 5(k) and (l) read with
Sections 6, 14(3) and 16 of the POCSO Act. Among the accused,
the first accused is Aliyar, the person who used to frequently
visit the house of the victim, after her father had left therefrom.
3. The accusation in the case is that on the way
home on 23.08.2015, when the victim and her family reached
the K.S.R.T.C bus stand, Thrissur, the first accused was waiting
for them in the bus stand as per a pre-arranged plan with the
second accused. The first accused then took them to a lodge
where he, with the knowledge that the victim is a minor and a
person suffering from mental disability, took nude pictures of
the victim on his mobile phone. Thereafter, the first accused
showed pornographic videos to the victim and required her to
indulge in sexual acts as depicted in the videos. Thereupon, the
first accused engaged in sexual intercourse with the victim
twice. It is alleged in the final report that the first accused
committed the offences aforesaid with the aid and instigation of
Crl.A. Nos.802 and 803 of 2017
the second accused.
4. On taking cognizance of the offence, the Special
Court framed charges against the accused to which they
pleaded not guilty. Thereupon, the prosecution examined 17
witnesses as PW1 to 17 and proved through them 34
documents as Exts.P1 to P34 series. Among the witnesses
examined, PW1 was the victim. Mos.1 to 3 are the material
objects in the case. After the closure of the prosecution
evidence, the accused were questioned under Section 313 of
the Code of Criminal Procedure (the Code) so as to explain the
incriminating circumstances against them in the case. They
denied the circumstances and maintained that they are
innocent. The stand taken by the first accused at that stage
was that the victim did not like his acquaintance with the
second accused and it is on account of the said reason that he
was falsely implicated in the case. Similar was the stand taken
by the second accused also, and that as the mother of the
victim, she cannot commit a cruelty of this nature to her
daughter.
Crl.A. Nos.802 and 803 of 2017
5. The Special Court, thereupon, after affording the
accused an opportunity of hearing, found that the prosecution
has failed to prove that the victim was a child as on 23.08.2015
and that therefore, the offences alleged against the accused
under the POCSO Act had not been established in the case. The
Special Court, however, found that the victim was suffering
from mental disability and that the first accused committed
rape on her twice on 23.08.2015. It was also found by the
Special Court that the second accused intentionally aided the
first accused to commit rape on the victim on 23.08.2015 and
thereby abetted the commission of the offences punishable
under Sections 376(2)(l) and (n) IPC read with Section 109 of
IPC. The accused were accordingly convicted for the said
offences and sentenced, among others, to undergo
imprisonment for life.
6. Heard the learned counsel for the appellants as
also the learned Special Public Prosecutor.
7. As PW1, the victim gave evidence more or less in
tune with the prosecution case. The learned counsel for the first
Crl.A. Nos.802 and 803 of 2017
accused pointed out that it is solely based on the evidence let
in by the victim that both the accused were convicted. After
taking us through the evidence let in by the victim, the learned
counsel submitted that the said evidence cannot be regarded
as a piece of evidence of sterling quality and therefore, the
same should not have been acted upon by the Special Court. In
order to bring home the said point, it was pointed out by the
learned counsel that to establish the case of the prosecution
that the first accused took nude photographs of the victim, a
few photographs retrieved from the memory card seized from
the mobile phone possessed by the first accused at the time of
his arrest, were produced in a compact disc. Ext.P34 is the
compact disc. It was argued by the learned counsel that Ext.P34
compact disc was played in the court during the trial and the
photographs contained in the said compact disc were shown to
the victim and she admitted only one photograph therein as her
photograph and the same was not a nude photograph, although
the remaining photographs therein were nude photographs of
the first accused and the younger sister of the victim. The
Crl.A. Nos.802 and 803 of 2017
argument advanced by the learned counsel is that it is a case
where the photographs contained in the memory card were
retrieved by experts and if the same does not contain nude
photographs of the victim as alleged by the prosecution, it has
to be presumed that the first accused had not taken any nude
photographs of the victim, for the prosecution has no case that
the photographs contained in Ext.P34 compact disc were
photographs taken on the date of occurrence in the lodge or
that all the photographs contained in the memory card could
not be retrieved. According to the learned counsel, the said
circumstance cuts the very root of the prosecution case, and if
this part of the evidence deposed by the victim cannot be
believed, the remaining part of the evidence of the victim also
cannot be believed. It was pointed out that it is in the said
circumstances, it was argued that the evidence tendered by the
victim cannot be regarded as evidence of sterling quality. It was
also argued by the learned counsel for the first accused that
there is nothing on record to indicate that the victim was
suffering from any mental disability. According to the learned
Crl.A. Nos.802 and 803 of 2017
counsel, if it is accepted that the victim was suffering from any
mental disability, her evidence should not have been acted
upon and the Special Court, in the circumstances, should have
insisted upon independent evidence from the prosecution to
prove the guilt of the accused. It was also argued by the
learned counsel that the deposition of the victim in the court
was to the effect that the first accused had committed
penetrative sexual assault on her younger sister also on the
date of occurrence, after having committed rape on the victim
and in the case registered simultaneously against the accused
in respect of the offence committed against her younger sister,
the very same Special Court acquitted the accused holding that
the testimony of the younger sister as also the victim who was
examined in the said case as PW2 are not trustworthy. It was
further argued by the learned counsel that under normal
circumstances, there may not be any eye witnesses to the
commission of the offences of the present nature and the courts
have to examine the correctness of the case put forward by the
prosecution, solely by analysing the evidence of the victim.
Crl.A. Nos.802 and 803 of 2017
However, in the case on hand, the specific case of the
prosecution being that the offences were committed in the
presence of the younger siblings of the victim, at least one of
them, should have been certainly examined in the case. It was
forcefully argued by the learned counsel that even though the
younger sister of the victim was cited as a witness, the
prosecution chose not to examine her. The non-examination of
the siblings of the victim, according to the learned counsel, is
fatal to the prosecution case. It is all the more so, since the
victim was examined in the case registered simultaneously
against the accused in respect of the offence committed
against her younger sister and also since the prosecution has a
case that the victim was suffering from mental disability,
argued the learned counsel.
8. The learned counsel for the second accused
endorsed all the arguments raised by the learned counsel for
the first accused. In addition, the learned counsel also argued
that the only allegation against the second accused is that she
did not prevent the conduct of the first accused in committing
Crl.A. Nos.802 and 803 of 2017
rape on the victim and it is on that basis that the second
accused is also convicted for the same offences applying
Section 109 IPC. According to the learned counsel, mere failure
to prevent the commission of an offence, is not by itself an
abetment of that offence. The learned counsel has relied on the
decision of the Apex Court in Kulwant Singh v. State of Bihar,
(2007) 15 SCC 670, in support of the said proposition.
9. The learned Special Public Prosecutor refuted the
arguments advanced by the learned counsel for the accused.
At the outset, it was pointed out by the learned Public
Prosecutor that the acquittal of the accused in the connected
case has not become final, inasmuch as the State has preferred
an appeal against the same. The learned Public Prosecutor has
also requested this court to withdraw the said case for it to be
heard along with this appeal. It was also argued by the learned
Public Prosecutor that the fact that the victim is suffering from
mental disability has been established by the prosecution
through the evidence of PW16, the Clinical Psychologist who
issued Ext.P8 identification data of the victim. On the request
Crl.A. Nos.802 and 803 of 2017
made by this Court, the learned Public Prosecutor, having gone
through Ext.P34 compact disc played in court, conceded fairly
that even though the same contains obscene photographs of
others, the only photograph of the victim contained therein is
not a nude photograph. It was also argued by the learned Public
Prosecutor that going by the evidence tendered by PW16, the
victim being a person who has learning disability and low I.Q.,
she would not be in a position to manipulate facts, and merely
for the reason that the answers given by her to some of the
leading questions put to her in the cross-examination goes
against the prosecution case, her evidence cannot be rejected.
According to the learned Public Prosecutor, inasmuch as the
victim was a person suffering from mental disability, if the
evidence tendered by her is appreciated in the above
background, the evidence of the victim is totally reliable and
trustworthy. It was also argued by the learned Public Prosecutor
placing reliance on the order sheet in the case that the younger
sister of the victim could not be examined as she was unwell at
the relevant time. According to the learned Public Prosecutor,
Crl.A. Nos.802 and 803 of 2017
non-examination of the younger sister of the victim cannot, in
the circumstances, be taken as fatal to the prosecution case.
10. We have examined the contentions raised by
the learned counsel for the parties on either side. As rightly
pointed out by the learned counsel for the first accused, the
case registered in connection with the offences allegedly
committed by the first accused against the younger sister of the
victim on the date of occurrence at the same place and time
has ended in acquittal, holding that the prosecution could not
establish beyond reasonable doubt its case that the victim
therein, namely the younger sister was subjected to sexual
abuse by the first accused. True, the decision in the said case
has not become final inasmuch as the State has preferred an
appeal against the same before this court. We cannot, however,
agree with the stand taken by the learned Public Prosecutor
that the said appeal is to be heard along with this appeal, as
the same is a decision taken by the Special Court on a totally
different set of evidence. Merely for the reason that the victims
in both cases are sisters, according to us, the appeals cannot be
Crl.A. Nos.802 and 803 of 2017
heard together.
11. Let us now consider the arguments advanced
by the learned counsel for the accused. In order to consider the
same, it is necessary to refer to the relevant evidence in the
case. But, before referring to the evidence, we deem it apposite
to mention that there is no dispute that the victim in the case at
the relevant time, was studying in a special school for
intellectually weak and mentally retarded students. The fact
that the victim was taken home for Onam vacation by the
second accused who came to the school along with the siblings
of the victim and the fact that on their way home, the first
accused took them to a lodge and stayed together therein in
one room on that night, are also not in dispute. It is seen that
inasmuch as it was found by the Special Court that the
prosecution had not established that the victim was a child at
the relevant time, it was argued on behalf of the first accused
before the Special Court that in the circumstances, even if the
case of the prosecution is admitted, the evidence would only
show that it is a case of consensual sex, and the said argument
Crl.A. Nos.802 and 803 of 2017
was repelled by the Special Court. No argument has been
advanced by the learned counsel for the first accused against
the said finding rendered by the Special Court. As such, the
points that arise for consideration are (i) whether the victim was
suffering from any mental disability, (ii) whether the first
accused had committed rape on the victim on the night of
23.08.2015 twice as alleged and (iii) if issue (ii) is answered in
the affirmative, whether the second accused had intentionally
aided the first accused to commit rape on the victim.
12. As noticed, there is no dispute in the case that
the victim at the relevant time was studying in a special school
for intellectually weak and mentally retarded students. As
noted, PW16 is the Clinical Psychologist attached to the special
school. PW16 deposed that Ext.P8 is the data identification
sheet prepared by her in respect of the victim, after assessing
her I.Q. level and that the victim was suffering from a
comparatively low I.Q. level and Attention Deficiency Hyper
Activity Disorder. PW16 also deposed that the I.Q. level of the
victim at the time of test was only 58 and the normal I.Q. level
Crl.A. Nos.802 and 803 of 2017
of similar children would be between 90 and 110. What is noted
in Ext.P8 as Complaint (Disability) is Scholastic Backwardness,
and what is noted therein as provisional diagnosis is 'Mild
Mental Retardation' (ADHD). In the cross-examination of the
first accused, PW16, who is not a doctor, conceded that she had
not seen the medical records of the victim while preparing
Ext.P8 and what is recorded therein is her impression about the
victim. PW16 clarified later that learning disability is not a
mental ailment and conceded that mental retardation is
something connected to the brain. PW16 denied the suggestion
made to her that she is not competent to certify whether a
person is suffering from mental retardation. In the cross-
examination of the second accused, PW16 deposed that if the
I.Q. level is 58, the person concerned would behave like a child
and such children need to be supervised. PW16 also deposed in
the said cross-examination that such children cannot
manipulate facts and they would be in a position to relate the
affairs in their childhood. It was also deposed by PW16 that if
one maintains good rapport with them, one can understand
Crl.A. Nos.802 and 803 of 2017
things from such children. It is based on the said evidence that
the Special Court came to the conclusion that the victim was
suffering from mental disability and convicted the accused
under Section 376(2)(l) IPC. We have not examined the
question whether low I.Q. and mild mental retardation can be
regarded as mental disability within the scope of Section 376(2)
(l) IPC. However, from the evidence tendered by PW16, it can
be concluded that the victim in the case on hand is a person
suffering from low I.Q and behaves like a child who needs to be
supervised, notwithstanding her age.
13. If the victim was a person suffering from a
comparatively low I.Q level and mental retardation, even
though in a mild form, as deposed by PW16, the question that
springs up at once is whether such a person could be regarded
as competent, to testify as a witness in a court of law in terms
of the provisions contained in Section 118 of the Indian
Evidence Act. No doubt, in terms of the said provision, all
persons shall be competent to testify unless the court considers
that they are prevented from understanding the questions put
Crl.A. Nos.802 and 803 of 2017
to them, or from giving rational answers to those questions, by
tender years, extreme old age, disease, whether of body or
mind, or any other cause of the same kind. But, in the case on
hand, the materials do not indicate that the Special Court had
conducted the voir dire test to assess the competency of the
victim to testify, as is usually done in such cases. As such, in
the light of the evidence tendered by PW16, there is serious
doubt as to whether the victim in the case was one who was
competent to testify.
14. Be that as it may, let us now see the evidence
given by the victim as PW1. The case deposed by the victim is
that on 23.08.2015, while she was studying in seventh
standard, her mother, younger sister and younger brother came
to the special school to take her home for Onam vacation. They
got down at K.S.R.T.C. bus stand. At that time, the first accused
was seen waiting for them at the said bus stand. The first
accused had brought an auto-rickshaw and they went to Mini
Lodge near the K.S.R.T.C. stand. It was about 6 p.m. then. They
were lodged in room No.1. Inside the room, they had food. It
Crl.A. Nos.802 and 803 of 2017
was the first accused who signed the register in the lodge. They
went to sleep by about 9 p.m. There were two cots in the room
put together. It was the first accused who laid down on the cot
initially. Thereafter, the mother and sister and after that she
and her brother laid down. After that the first accused started to
undress her mother. Then they indulged in some acts. After
some time, the first accused came towards the victim. The first
accused removed her clothes. Then with his mobile phone, the
first accused clicked her nude photographs. Then this was
shown to her and thereafter, the first accused had shown her
obscene videos depicting hugging and kissing. Then the first
accused licked her breast. Then the first accused inserted his
organ into her private part. The victim suffered pain. Blood
came out. While the first accused was committing the said act,
he lifted the clothes of her younger sister lying beside her and
rubbed on her breast. The first accused removed the clothes
including the inner wear of her sister. Thereafter he laid on top
of the body of her younger sister. The first accused asked the
brother to hold the breast of her sister. After sometime, all of
Crl.A. Nos.802 and 803 of 2017
them slept. In the early morning hours of the following day also,
the first accused called the victim and repeated sexual
intercourse with her.
15. In cross-examination, PW1 deposed that they
had food on that day by about 7 p.m. in the room and the food
was brought by the first accused. Later, in answer to a leading
question, PW1 deposed that she saw the first accused for the
first time when he brought food. The relevant portion of the
deposition reads thus:
"ഭകണ ക ണ വരമ ൾ ആമണ അല യ ക അന ആദ മ യ ണനത ? (Q)
അകത. (A) "
After having said so, deviating from the chief-examination, PW1
deposed that after providing food to them, the first accused left
the room and when the first accused left the room, her mother
closed the door. It was also deposed by PW1 that her mother
was talking to her siblings for quite sometime thereafter and
they slept later after switching off the light. PW1 specifically
stated that while switching off the light, only her mother, her
siblings and she alone were there in the room. PW1 also
Crl.A. Nos.802 and 803 of 2017
deposed that on the morning of the next day, they went to
Kumbalangad from the lodge. The relevant portion of the
deposition reads thus:
"ഭകണ വ ങ തന ട അല യ ർ കറചമ" പറതമ% യ . ഭകണ ഴഞ ഉമച
സമ, ദ ന , സമ, ദ യമ യ ഒര% ടമ" വർതമ " %റമഞ (Q) %റഞ (A)
വർതമ " %റഞ ഉറക വമന (Q) ഉറക വന ല (A) അല യ ർ പറതമ% യമ5 ൾ
ഉമച വ തൽ അ ത "ന അടചരന. ഊണ ഴഞ ഒര മണകമറ ള ഉമച
ഞങമള ട വർതമ " %റഞ രന. ഞ ൻ വ ച ക ട റല. lodge കല മറയൽ clock
ഇല യരന. ഉറങ ൻ ടനമ5 ൾ Light അണചരമന (Q) ഉവ (A). Light
ക ടതയത ഞ ൻ ആണ. Light ക ടതയമ5 ൾ ഉമചയ , xxx , സമ, ദ ൻ,
സമ, ദ യ മ തമകല ഉണ യരനത (Q) അകത (A) Light അണച കറച
ഴഞമ5 ൾ എ"ക ഉറക വന. "ന യ ഉറങ . % മDദ വസ വകല Lodge-ൽ
"ന ക ളങ ട" മ% യ . ഉമചയ , ഞ ന , അനജൻ, അനജതയ മറവട മ% യ . "
During cross-examination, when PW1 was asked whether she
likes the relationship between her mother and the first accused,
she replied in the negative. PW1 also admitted that the first
accused used to financially help her mother. PW1 also admitted
in her evidence that the first accused considers her as his own
daughter. The relevant portion of the deposition reads thus:
"xxx ക" അല യ ർ ഒരമമ കളമ5 കലയ ണ രതനത എന%റഞ ൽ അറയ മമ (Q)
അകത (A)"
Despite all that, PW1 denied the suggestion that the first
Crl.A. Nos.802 and 803 of 2017
accused had not physically or mentally abused her. Even
though she admitted that the police have informed and taught
her certain things, she denied the suggestion that she was
saying falsehood in court. In the cross-examination of the
second accused, PW1 admitted that her mother was taking care
of her all throughout and that PW1 very much likes her. PW1
also deposed that even though her father left the company of
her mother, her mother is living for her and her siblings. PW1
also deposed that her mother never compelled her to do
anything she does not like. To a specific question put to PW1
that it was on account of the inability of her mother to travel
with young children namely, the victim and her younger siblings
that they had to stay in a lodge, she answered in the
affirmative. PW1 also deposed that she was very happy to stay
with her mother during her Onam vacation. To the specific
question whether the victim was taught as to what she should
state in court by the police, she answered in the affirmative.
PW1 also deposed that her mother would only do things which
are in her best interest. The relevant portion of the deposition
Crl.A. Nos.802 and 803 of 2017
reads thus:
"മ ടതയൽ %റയണ ങൾ police %റഞ തന രമന (Q) %റഞ തന രന
(A) police %റഞ തനതനസ ച ണ കമ ഴ xxx %റയനത (Q) എകG അഭപ യ
ആണ %റഞത. (A) ഉമച കടയകട ഭ വക , "നയ രത ഉതമമ യത മ തമമ
കKയടള എന %റയന. (Q) ശ യ ണ (A) "
Originally PW1 was examined on 20.06.2016. Later, she was
recalled and examined again by the prosecution in order to
identify the photographs retrieved from the memory card
seized from the mobile phone of the first accused. All the
photographs contained in Ext.P34 compact disc were shown to
the victim and she admitted that the only photograph therein is
the photo of her marked as Ext.P34(f).
16. There cannot be any doubt to the proposition
that the evidence of a rape victim can be the sole basis of a
conviction. But, it is trite that in order to base a conviction
solely on the evidence of the rape victim, such evidence shall
be of a sterling quality. In Rai Sandeep v. State (NCT of Delhi),
(2012) 8 SCC 21, the Apex Court had the occasion to consider
the question as to who can be said to be a sterling witness.
Paragraph 22 of the judgment of the Apex Court in the said
Crl.A. Nos.802 and 803 of 2017
case reads thus:
"In our considered opinion, the "sterling witness" should be of a
very high quality and calibre whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely, at
the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be
and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation with
each and every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well as
all other such similar tests to be applied, can it be held that such
Crl.A. Nos.802 and 803 of 2017
a witness can be called as a "sterling witness" whose version can
be accepted by the court without any corroboration and based
on which the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the crime
should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said
version in material particulars in order to enable the court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge
alleged."
It is evident from the aforesaid decision that the evidence of a
sterling witness is one that appears natural and consistent with
the case of the prosecution qua the accused and that such
witnesses, under no circumstances, shall give room for any
doubt as to the factum of the occurrence. If the above
principles are applied, we have serious doubts in our mind as
to whether PW1 could be regarded as a sterling witness. First of
all, going by the varying depositions given by PW1 in her cross-
examination, we have doubts as to whether PW1 was
competent to testify. Be that as it may, the evidence gives
room for doubt as to the factum of the occurrence. Of course,
the evidence tendered by PW6, the doctor who conducted the
Crl.A. Nos.802 and 803 of 2017
medical examination of the victim supports the prosecution
case inasmuch as she deposed that evidence of past vaginal
penetration was found in the victim, but it cannot be said that
the version of PW1 on the core spectrum of the crime, remained
intact.
17. That apart, as rightly argued by the learned
counsel for the first accused, in the absence of any case for the
prosecution that the photographs contained in Ext.P34 compact
disc were not photographs taken by the first accused on
23.08.2015, in the absence of any case for the prosecution that
all the photographs contained in the memory card could not be
retrieved and in the absence of any nude photograph in Ext.P34
compact disc, it is doubtful as to whether the first accused has
taken the nude photographs of PW1 as alleged by the
prosecution and if the said fact is doubtful, it creates a doubt as
to the veracity of the evidence given by PW1. Above all,
inasmuch as the specific case of the prosecution is that the first
accused had sexual intercourse with the victim in the presence
of her younger siblings, according to us, at least one among
Crl.A. Nos.802 and 803 of 2017
them should have been examined as a witness in the case. The
younger sister of the victim was unwell, in the facts and
circumstances of this case, is not a reason to dispense with her
evidence, especially when the competency of the victim to give
evidence itself is in doubt. If the younger sister was unwell
when summons was issued to her to give evidence in the case,
the prosecution should have examined her at a later point of
time, for the evidence of such a witness is not one that could
be dispensed with on the facts of this case.
18. Having regard to the totality of the facts and
circumstances of the case, we are of the view that it is not safe
to hold that the first accused is guilty of the offences alleged
against him. The first accused, in the circumstances, is entitled
to the benefit of doubt and his conviction is liable to be set
aside. Inasmuch as it is found that the conviction of the first
accused is liable to be set aside, needless to say, the conviction
of the second accused for abetment of the offence committed
by the first accused, is also liable to be set aside.
In the result, the criminal appeals are allowed, the
Crl.A. Nos.802 and 803 of 2017
impugned judgment is set aside and the appellants are
acquitted. They shall be set at liberty forthwith from the
concerned prison, if their continued detention is not required in
connection with any other case. Registry shall communicate
this judgment forthwith to the concerned prison, where the
appellants are undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOHNSON JOHN, JUDGE.
YKB
