Kerala High Court
Shinoj vs State Of Kerala on 13 October, 2025
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CRL.A NO. 2389 OF 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 13TH DAY OF OCTOBER 2025 / 21ST ASWINA, 1947
CRL.A NO. 2389 OF 2024
CRIME NO.359/CB/TVM/2019 OF CRIME BRANCH, THIRUVANANTHAPURAM,
AGAINST THE JUDGMENT DATED 30.11.2024 IN SC NO.261 OF 2020 OF
ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF CASES RELATING TO
ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN &
CHILDREN),THIRUVANANTHAPURAM
APPELLANT:
SHINOJ
AGED 41 YEARS
S/O REVINDRAN, T.C.14/338, 'PANCHAMI', VARUVILA,
NEAR PUTHENKADA JUNCTION, THIRUPURAM VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM., PIN -
695502
BY ADVS.
SHRI.SREEJITH S. NAIR
SRI.V.S.THOSHIN
SRI.SATHEESH MOHANAN
SMT.MAHIMA
SRI.AKHIL SUSEENDRAN
SHRI.SEKHAR G. THAMPI
SHRI.ABHISHEK NAIR M.R.
SHRI.SASTHAMANGALAM S. AJITHKUMAR (SR.)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM, PIN - 682031
SMT. SEENA.C. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2024
AND HAVING BEEN FINALLY HEARD ON 18.08.2025, THE COURT ON
13.10.2025 DELIVERED THE FOLLOWING:
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CRL.A NO. 2389 OF 2024 2
'C.R'
JUDGMENT
This appeal is filed challenging the conviction and sentence
imposed on the appellant in S.C.No.261/2020 on the file of the
Additional Sessions Judge for the Trial of Cases relating to Atrocities and
Sexual Violence against Women and Children, Thiruvananthapuram
(hereinafter referred to as 'the trial court'). S.C.No.261/2020 arises out of
Crime No.359/CB/TVM/2019 of Crime Branch, Thiruvananthapuram
unit which was registered alleging commission of offences under Sections
376(2)(k), 376(2)(l), 376(2)(n), 376 of the Indian Penal Code (hereinafter
referred to as 'the IPC') and Sections 4 r/w 3(a), 6 r/w 5(j)(i), 6 r/w 5(l), 6
r/w 5(k), 6 r/w 5(p), 10 r/w 9(j)(i), 10 r/w 9(l), 10 r/w 9(p), 12 r/w 11(ii),
12 r/w 11(iii) of the Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as 'the POCSO Act').
The brief facts:-
2. The appellant (hereinafter referred to as the accused) is a
physiotherapist by profession. During the period relevant for the
purposes of this case, he was employed as a physiotherapist at the KIMS
Hospital, Thiruvananthapuram (initially), and thereafter, he established
his independent practice and set up a centre with the name 'TIMS' near
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Ayurveda College Junction in Thiruvananthapuram. The victim in this
case (PW1) was, at that time, a child suffering from certain mental and
physical disabilities. In order to address certain physical disabilities of
the victim, she was required to undergo physiotherapy. Her parents were
referred to the accused, who agreed to offer his services. The victim was
treated by the accused at her residence for the period between 2011 and
2019. According to the prosecution, the accused had sexually abused and
exploited the victim from August 2014 till about March 2019.
3. The prosecution examined PWs 1 to 15 and marked Exts. P1 to
P36 documents to establish its case against the accused. DWs 1 to 4 were
examined for the defence, and Exts. D1, D1(a), D2, D2(a), D2(b), D2(c),
D2(d), D2(e), D2(f), D3, and D4 documents were marked for the defence.
4. On an appreciation of the evidence adduced in the case, the trial
court concluded that the prosecution has succeeded in establishing that
the accused committed offences punishable under Sections 4 r/w 3(a), 6
r/w 5(j)(i), 6 r/w 5(k), 6 r/w 5(l), 6 r/w 5(p), 10 r/w 9(j)(i), 10 r/w 9(l),
10 r/w 9(p), 12 r/w 11(ii), and 12 r/w 11(iii) of the POCSO Act and under
Sections 376(2)(k), 376(2)(l), and 376(2)(n) of the IPC. The accused was
found not guilty of the offence punishable under Section 376C of the IPC.
The trial court sentenced the accused to rigorous imprisonment for ten
years and to pay a fine of Rs.2,00,000/- (Two lakhs only) for the offence
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punishable under Section 6 r/w 5(j) (i) of POCSO Act; to rigorous
imprisonment for ten years and to pay a fine of Rs.2,00,000/- (Two lakhs
only) for the offence punishable under Section 6 r/w 5(k) of the POCSO
Act; to rigorous imprisonment for ten years and to pay a fine of
Rs.2,00,000/- (Two lakhs only) for the offence punishable under Section
6 r/w 5(l) of the POCSO Act; to rigorous imprisonment for ten years and
to pay a fine of Rs.2,00,000/- (Two lakhs only) for the offence
punishable under Section 6 r/w 5(p) of the POCSO Act; to rigorous
imprisonment for two years and to pay a fine of Rs.25,000/- (Twenty five
thousand only) for the offence punishable under Section 12 r/w 11(ii) of
the POCSO Act; to rigorous imprisonment for two years and to pay a fine
of Rs.25,000/- (Twenty five thousand only) for the offence punishable
under Section 12 r/w 11(iii) of the POCSO Act. The trial court did not
impose any punishment for the offences under Sections 4 r/w 3, 8 r/w 7,
10 r/w 9(j)(i), 9(l), and 9(p) of the POCSO Act and Sections 376(2)(k),
376(2)(l), and 376(2)(n) of the IPC in view of the provisions contained in
Section 42 of the POCSO Act. The substantive sentence of imprisonment
was directed to run concurrently. In the event of failure to pay the fine
amounts, a default sentence was also imposed by the trial court. The
court permitted the set-off for the period from 25.05.2019 to 17.07.2019
against the substantive sentence of imprisonment. It is further directed
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that, if the fine amount is paid or realised, a sum of Rs. 8,00,000/- (Eight
lakhs only) shall be released to the victim as compensation under Section
357(1)(b) of the Code of Criminal Procedure, 1973 (hereinafter referred to
as 'the Cr.P.C').
Submissions of counsel:
5. Sri. Sasthamangalam S. Ajith Kumar, learned senior counsel,
instructed by Sri. Sreejith S. Nair, appears for the appellant. He contends
in the main that this is a case where there is no evidence that the accused
had sexually abused the victim during the period of her minority. It is
submitted that even if this court were to believe the case of sexual abuse,
a holistic view of the evidence tendered for the prosecution as also the
evidence tendered for the defence, including messages and videos sent to
the accused after the case was registered and after the accused was
released from detention as an under-trial prisoner, will indicate that the
relationship, if at all, between the accused and the victim was a
consensual relationship and that too after the victim attained the age of
majority. It is submitted that since the victim had denied sending any
messages etc. to the accused after he was released on bail at the pre-trial
stage and since it had thereafter been proved to the contrary, the victim's
testimony is wholly unreliable and in the absence of corroboration, no
conviction can be sustained based on her sole testimony. It is submitted
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that the victim is not a 'sterling' witness. It is submitted that Ext.P5 is the
report of a Medical Board consisting of doctors serving the Government,
in different disciplines, including psychiatry, constituted to assess the
disability of the victim in the year 2016. It is submitted that, if the case of
the prosecution that sexual abuse had commenced from August 2014 is
correct, the Medical Board would have made some observations. It is
submitted that the victim had not revealed any instances of sexual abuse
to the members of the Medical Board, and this fact is crucial to determine
whether the case of the prosecution that the victim was sexually abused
from August 2014 is correct or not. It is submitted that a reading of the
statement given by the victim under Section 164 of the Cr.P.C. before the
Magistrate (Ext.P3) indicates that though the victim had initially stated
that she had been abused from August 2014, she later confirmed that the
abuse was from December 2018 to March 2019. It is submitted that if the
dates mentioned in the latter part of Ext.P3 were to be taken into
consideration, the alleged abuse is only after the date on which the victim
had attained the age of majority, in which case, the question of consent
becomes relevant.
6. The learned senior counsel would urge that the alleged case of
sexual abuse was revealed initially by the victim to PW2, a psychologist
attached to the KIMS Hospital, Thiruvananthapuram. It is submitted
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that PW2 had reported the matter to her senior, Dr. Jameela Warrier,
who was examined as PW3. It is submitted that the accused, who had
initially been working in the KIMS Hospital, had left the services of the
KIMS Hospital and had started his independent practice, as a result of
which several patients who were earlier being treated at the KIMS
Hospital had stopped going to the KIMS Hospital and had started
attending physiotherapy sessions at the establishment started by the
accused, and there was every reason for those associated with the KIMS
Hospital to raise baseless allegations against the accused. It is submitted
that the conduct of the victim after the accused was released on bail at
the pre-trial stage indicates beyond doubt that the relationship between
the victim and the accused could be consensual and only after the victim
had attained the age of majority. It is submitted that the evidence of
DW2 indicates that, considering the medical condition of the victim, she
may have conditions such as psychosis, epilepsy, anxiety and depression.
It is submitted that there is a possibility that the victim was having
hallucinations and was making statements about sexual abuse from
August 2014 only on account of such hallucinations. It is submitted that
the defence has established that the evidence tendered for the
prosecution was inconclusive and there is nothing to indicate that the
accused had committed the alleged offences.
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7. It is submitted that, though the principle of reverse burden of
proof is applicable at a trial for commission of offences under the POCSO
Act, the question of requiring the accused to adduce evidence to show
that an offence had not been committed will arise only if the foundational
facts are established by the prosecution. It is submitted that in the facts
of the present case, the prosecution has miserably failed in establishing
the foundational facts for a successful prosecution under the provisions
of the POCSO Act, and therefore, the principle of reverse burden cannot
apply in this case. It is submitted that if the relationship between the
accused and the victim was consensual and after the victim had attained
the age of majority, none of the offences under the IPC are attracted. It is
submitted that unless there is clear evidence, this Court should not
convict the accused for the offences alleged against him.
8. Smt. Seena C., the learned Public Prosecutor, submits that there
is no merit whatsoever in the contentions raised by the learned counsel
for the accused. It is submitted that the evidence of the victim (PW1) and
PWs 2 and 3 (Dr. Praseetha and Dr. Jameela Warrier) read together will
indicate that the victim has been consistent in her stand that she was
sexually abused for the period from August 2014 to March 2019. It is
submitted that the theory of a false case having been foisted on the
accused on account of professional rivalry cannot be accepted, as there is
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no material to suggest so. It is submitted that it is the duty of every
person who becomes acquainted with the fact of commission of an
offence under the POCSO Act to immediately report the matter to the
Police, and this is all that has been done by Dr. Praseetha (PW2) and Dr.
Jameela Warrier (PW3). It is submitted that in the latter part of the
statement given under Section 164 Cr.P.C before the Magistrate, the
victim is speaking of certain specific sexual acts, and the dates mentioned
towards the concluding part of the statement only refer to such specific
sexual acts and do not in any manner contradict her evidence in the box.
It is submitted that even if there is any minor embellishment in the dates
mentioned in the statement recorded under Section 164 of the Cr.P.C, the
same cannot be a ground to acquit the accused. It is submitted that PW1
is a sterling witness, and that all the witnesses for the prosecution have
spoken in one voice. It is submitted that the evidence tendered
establishes the case beyond all reasonable doubt and therefore, the
accused is not entitled to an acquittal.
9. Both sides have also taken me through the oral evidence
tendered by the witnesses for the prosecution, as well as the witnesses for
the defence. They have also referred to the Exhibits marked in evidence
to the extent necessary.
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Findings of the Court:-
10. On a consideration of the submissions made across the bar
and after perusing the records, I conclude that this appeal must be
dismissed, confirming the conviction and sentence imposed on the
accused. The reasons for such a conclusion are given below.
11. The victim was examined in the case as PW1. Given the
health condition of PW1, a voir dire test was conducted. The formal
questions put to PW1 were answered rationally, and therefore, the trial
court concluded that the witness was competent to testify. The victim
deposed that her date of birth is 28.08.1998. The attested copy of the
Secondary School Leaving Certificate (SSLC certificate) of the victim was
marked as Ext.P1. The prosecution has succeeded in proving the date of
birth of the victim to be 28.08.1998 in the manner contemplated by the
law. To be fair to the learned Senior Counsel for the accused, it must be
recorded that he has not attempted to argue that the date of birth of the
victim has not been proved in accordance with the law. The victim
deposed that the accused, her physiotherapist since May 2011, had been
treating her at her residence. She deposed that from August 2014, while
she was studying in the 8th standard and was around 16 years old, the
accused started sexually abusing her by displaying pornographic videos
on his phone and asking her to do the same. She deposed that multiple
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times during the years 2014 to 2019, the accused had asked her to
remove her clothes and stand behind the door of the room where the
physiotherapy sessions were undertaken, and had inserted his penis into
her vagina. The victim deposed that she would usually give a missed call
to the accused whenever her mother went out to purchase groceries, etc.,
as instructed by the accused and whenever the victim's mother was not in
the house, the accused would make the victim lie down on the cot and
would commit penetrative sexual assault, including oral sex. It is stated
that the accused used to help the victim to stand, jump and walk when
her mother was in the house. The victim deposed that in 2018, the
accused called the victim on a video call, asked her to remove her clothes
and to perform sexual acts, and even exposed his genitals to her. The
victim further testified that the accused repeatedly assaulted her sexually.
It is stated that the victim's brother scolded the victim and seized her
phone due to her continuous chatting with the accused. During that
time, she was taking sessions for remedial therapy at KIMS Hospital
under Dr. Praseeda (PW2). She disclosed her dire situation to
Dr. Praseeda when the doctor enquired about her excessive use of the
mobile phone. Dr. Praseeda then inquired about the matter in detail, and
the victim narrated the entire story of sexual abuse by the accused.
Dr. Praseeda informed Dr. Jameela (PW3), the Head of the Department,
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and both of them asked the victim about the incidents, and they later
conveyed the details to the victim's mother. A complaint was filed. The
victim identified the accused in the dock. She further testified that she
had also reported the incident to the doctor who medically examined her.
She further testified that fear prevented her from disclosing these facts to
her mother. In cross-examination, the victim reiterated that she had been
sexually assaulted since the age of 16 and that she felt ashamed while
watching the pornographic videos. The victim stated that there were
occasions when the accused played pornographic videos while her
mother was sitting in the hall. She admitted that she had never told her
mother about the incidents because she feared it would upset her, and
she acknowledged that her relationship with the doctor was unhealthy.
She deposed that soon after she turned 16, she used to give missed calls
to the accused. During the year 2018, the accused started video calls with
her. The victim deposed that she never messaged the accused after the
complaint was filed. She rejected multiple suggestions made by the
defence counsel regarding WhatsApp messages sent to the accused using
her mother's mobile phone, but expressed her willingness to send further
messages. The victim confirmed her mother's mobile number. She
further deposed that during physiotherapy sessions, whenever assistance
was required, the victim's mother helped the accused. The victim
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confirmed that Elizabeth and Susmitha (stated to be colleagues of the
accused) were not present with the accused at any time. The victim also
admits that she attended the marriage of the accused.
12. PW2 (Dr. Praseeda) was working as a Remedial
Tutor/Psychologist and PW3 (Dr. Jameela Warrier) was working as a
Consultant Psychologist at KIMS Hospital, Thiruvananthapuram.
Dr. Praseeda was giving remedial education classes twice a week to the
victim and had known the victim since 26.11.2018. She deposed that on
22.04.2019, the victim's mother specifically had shared with her an
incident where the victim's brother had taken away the phone being used
by the victim due to excessive use of the phone, and consequently, the
victim became distressed and attempted to commit suicide by cutting her
veins. The victim's mother asked Dr. Praseeda to find out why the victim
was always glued to the phone. Dr. Praseeda enquired about it and spoke
to the victim in detail about her mother's concern. Then, the victim
disclosed the entire story of sexual abuse at the hands of the accused.
Dr. Praseeda learnt that the victim had deleted the messages sent to the
accused, as instructed by the accused, and was threatened not to disclose
the incident. Dr. Praseeda asked the victim's mother to return the next
day, during which time she had also informed Dr. Jameela, the Head of
the Department. The following day, Dr. Praseeda and Dr. Jameela
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shared the information obtained from the victim with the victim's
mother. Later that day, the doctors spoke with the victim, met with her
parents and one of her brothers, and subsequently, Dr. Jameela filed a
complaint after discussing the matter with the management of KIMS
Hospital. During cross-examination, PW2 deposed that if it had been an
incident of sexual abuse that took place suddenly, it would have been
easier to make out; however, since the abuse had been over a period of
time, it was not identified during earlier sessions. She added that after
being questioned about the incident, the victim became depressed and
came to realise that she had done something wrong. Dr. Jameela Warrier
(PW3) deposed that she had known the victim since 2013. She deposed
that the victim underwent various treatments in KIMS Hospital till 2015,
and thereafter shifted her treatment to TIMS (the institute of the
accused) and later continued her sessions with psychologists at KIMS
Hospital in the year 2018. She deposed regarding the incidents that
happened on 22.04.2019, in detail. PW3 then conducted an assessment
using the interview method to determine whether the victim's statements
were influenced by delusion, hallucination or disorientation. She
examined the victim's statements and concluded that they were not the
product of delusion, hallucination or disorientation, but were grounded
in reality. Later, with the permission of the management of KIMS
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Hospital, she made a complaint to the Director General of Police (DGP)
(Ext P6). PWs 2 and 3 were also of the opinion that the incidents of
sexual abuse described by the victim were not products of any delusion.
13. PWs 5 & 6 are the parents of the victim. The mother of the
victim (PW 5) testified that the victim had disabilities affecting her ability
to speak and walk. The date of birth of the victim was stated to be
28.08.1998. She also deposed regarding the treatments given to the
victim in various hospitals, including PRS Hospital, NIMHANS
(Bangalore), KIMS Hospital (Thiruvananthapuram), and TIMS (the
institute of the accused). She further testified that the victim's father met
the accused through his friend. Subsequently, the accused had served as
the victim's physiotherapist since 2011. It was deposed that the accused
used to treat the victim six days a week, and at his convenience,
conducted physiotherapy sessions in the master bedroom of the house
where PW5 and PW6 were residing, along with the victim. She further
testified that the victim initially used a Nokia make phone. Later, in
2018, the victim began using her father's old Samsung make phone,
which was subsequently lost. From December 2018 onwards, the victim
used a brand-new Redmi make mobile phone. She further deposed that
because the victim was using her mobile phone excessively, her brother
confiscated the mobile phone, causing substantial distress to the victim,
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resulting in a violent outburst. She then informed the victim's remedial
tutor, Dr. Praseeda, and requested her to inquire about the reason behind
the victim's excessive phone usage. She testified that Dr. Praseeda asked
her to come the next day. The next day, she came to know from Dr.
Praseeda and Dr. Jameela Warrier about the sexual abuse inflicted upon
her daughter by her physiotherapist (the accused). She further deposed
that while the victim was attending her classes at KIMS, she informed her
husband and younger son. Later that day, she checked the victim's phone
and found messages sent by the accused and the victim. When PW5
confronted the victim, she (the victim) informed her that in 2014, the
accused had shown her a pornographic video and asked her to do the
same. She testified that the accused had repeatedly inserted his genitals
into the victim's private parts and her mouth. She deposed that she only
learnt of these facts when the doctors (PW2 and PW3) informed her. She
further deposed that the victim later understood what she did was wrong
after Dr. Praseetha explained it to her. She also testified that the victim's
mental state worsened following this, and they stayed away for a while to
support her recovery. Subsequently, PW5, along with her husband
(PW6) and PW3, made a complaint to the DGP. She also identified the
accused in the dock. In cross-examination, she testified that the accused
used to come to their house to treat the victim when no one else was
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present. She answered a suggestion stating that it didn't concern her that
a young doctor treated her daughter in her absence, because the victim
regarded the accused as an elder brother. She deposed that she and her
husband fully trusted the accused and never imagined that he would
betray that trust. The victim's mother also testified that neither she nor
the victim contacted the accused after he was released on bail. She
further confirmed that the phone number suggested by the defence
counsel was her number. PW5 also denied the defence counsel's
suggestion regarding the messages, videos, and voice notes sent from her
phone. PW5 also rejected the defence counsel's suggestion that Elizabeth
and Susmitha (stated to be colleagues of the accused) had always assisted
the accused during physiotherapy sessions for the victim. PW6 (father of
the victim) testified that the victim revealed the entire incident only
during her 20th remedial session with Dr. Praseetha and at the
prompting of Dr. Praseetha. PW6 deposed that he has been told that the
victim has a condition called cerebral palsy, and does not know if a
person with this condition can have delusions, hallucinations and
disorientation. Further, he testified that the victim did not have any prior
incidents of delusions, hallucinations or disorientation.
14. PW7 (Dr. Christy) deposed that at the relevant time, she was
working as a Jr. Consultant at the Women & Child Hospital, Thycaud,
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Thiruvananthapuram. She testified that she had examined the victim and
issued Ext.P2, medical certificate. She deposed that the victim herself
narrated the history of sexual assault committed by the accused. Upon
examination, she found that both of the victim's legs were weak. In cross-
examination, she has deposed that she was not aware that the victim had
cerebral palsy and had never seen Ext.P5, the disability certificate. She
also deposed that if she had known the victim was suffering from cerebral
palsy, she might have referred her for a psychiatric examination to assess
her memory and emotional state. Furthermore, she testified that the
victim's hymen was torn, but clarified that a torn hymen alone does not
conclusively indicate penile penetration; it could also result from
masturbation or finger penetration.
15. PW9 (Dr. Manoj) deposed that at the relevant time, he was
working as Asst. Surgeon at the General Hospital, Thiruvananthapuram,
and issued Ext.P11 Potency Certificate. He examined the accused on
25.05.2019 and issued Ext.P11, suggesting the accused is capable of
performing sexual acts.
16. PW11 (Dr. Arun A. John) was a member of the Medical Board
that examined the victim in 2016, and issued Ext.P5 disability certificate.
He testified that he was one member of a team comprising five specialists
for determining the victim's disability. The Board assessed the victim to
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have 50% locomotor disability and 74% permanent disability. In cross-
examination, he testified that he could not say whether the victim was
suffering from cerebral palsy, nor could he confirm whether the victim
had any cognitive impairment. He further deposed that he was not aware
whether children with such conditions experience mental delusions or
orientation and clarified that such assessments can only be made by a
psychiatrist. He also deposed that he was not aware that the victim had
been sexually abused.
17. PW15 (Deepa A.S) was at the relevant time the Assistant
Director, State Forensic Science Laboratory, Thiruvananthapuram. She
prepared Ext.P36 report which shows that two mobile phones were
examined {Q1 (Redmi Phone) - Q1sim (idea) & Q2 (Samsung) - Q2sim1
(BSNL) - Q2sim2 (Jio)}. She deposed that Q1 and Q2 were subjected to
forensic mobile phone analysis using the universal forensic mobile phone
data extraction device (UFED). On examination, obscene image files
were present in the phone memory of Q1 and Q2. The soft copy of the
same was enclosed along with the report (as Annexure 1 Pendrive). The
pendrive was marked as MO1.
18. DW1 (Dr. Susmitha) deposed that she was acquainted with the
accused while working at TIMS (the institute of the accused), where they
worked together from 2016. She further deposed that she accompanied
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the accused to the victim's house for physiotherapy treatments, as the
victim was unable to move. She also deposed that she knows Dr.
Elizabeth, who worked at TIMS before her. It was testified that during
the treatment sessions, she and the victim's mother assisted the accused.
In cross-examination, she testified that she could not recall the exact
days and times she visited the victim's house. She further testified that
she was highly inspired by the accused's efficiency in providing
treatment. She added that the accused genuinely helped her in building
her career. She expressed her utmost respect and admiration for the
accused. She also testified that the victim's family considered the accused
as part of their extended family. DW2 (Dr. R. Jayakumar) is a clinical
psychologist. He testified that the victim's medical condition is such that
she can be prone to epilepsy, psychosis, anxiety and depression. He
opined that psychosis in such individuals may lead to delusions and
hallucinations. He also deposed that due to their gullibility and limited
ability to assess risk, such children may give false statements under the
influence of others. Additionally, he testified that such children should
be treated by a multidisciplinary team, including a psychiatrist,
psychologist, psychiatric social worker and occupational therapist.
During cross-examination, he testified that he had never treated the
victim and was not aware of the victim's mental condition, and the
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situation may vary from individual to individual. DW3 (Balu) is a person
who was working with the victim's father at Federal Bank. He deposed
that the victim's father was a senior officer in the same bank. He deposed
that he had introduced the accused to the victim's father. He further
deposed that he had requested the accused for a female assistant to
support the treatment of the victim. He also deposed that on one
occasion, he saw the accused and a female assistant at the victim's
residence. During cross-examination, he testified that he frequently
contacted the accused and also testified that he was aware of the facts of
the case.
19. The accused examined himself as DW4. He deposed that he
has been working as a physiotherapist since 2008. He further deposed
that he became acquainted with the victim in 2010 while he was
employed at KIMS Hospital. He deposed that DW3 (Balu) introduced
him to the victim's father, and due to the victim's medical condition, he
agreed to conduct physiotherapy sessions at the victim's residence. He
also deposed that the victim's father encouraged him to provide
treatment at their home, as the victim was bedridden. He testified that
he brought certain equipment to the victim's house for treatment and
also required manual assistance, which he deemed necessary. He further
deposed that he began treating the victim six days a week starting in
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2011. From 2011 to 2015, he was assisted by his colleague Elizabeth, and
after 2015, his colleague Susmitha began assisting him. He also testified
that the victim's mother, father and the victim herself had sent him
messages and videos after the crime was registered, and a copy of these
materials was submitted to the court on a pen drive, which was marked
as Ext.D2. The trial court granted permission to view the contents of the
pen drive using a videoconferencing device in court. He further deposed
that the recordings dated 12.12.2019 were made by him and were marked
as Ext.D2(a). In those recordings, the victim was seen calling the
accused. He deposed that the victim had contacted him to offer an
unconditional apology for initiating the case and claimed that the case
had been filed under the influence of authorities from KIMS Hospital.
Likewise, each image and video produced by the defence was marked
separately as Ext.D2(a) to D2(e). He produced his phone and the SIM
card, which were marked as Ext.D3. He testified that he had submitted a
complaint to the DGP, requesting that the contents of Ext.D3 be duly
received and examined. He deposed that there was no specific or ulterior
reason for submitting the pen drive at a later stage, after the examination
of PW1, PW5 and PW6 and asserted that the defence had already
produced the said mobile phone and pen drive before the examination of
those witnesses. He further admitted that he had produced only those
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portions of the messages which he considered relevant and supportive of
his case, to present evidence that would effectively and efficiently support
his position. It was suggested by the prosecution that certain other
messages, which were not included, could lead to a different inference;
however, this suggestion was denied. He firmly deposed that he had not
altered or tampered with any dates, messages or mobile numbers
contained in the evidence submitted. He further affirmed that his
relationship with the victim was solely professional, limited to that of a
doctor and patient. In re-examination, he deposed that his father had
initiated proceedings to retrieve data from his mobile phone.
20.From the analysis of the evidence, it is evident that the victim
has clearly and lucidly deposed that she was sexually abused and was
subjected to penetrative sexual assault by the accused from August 2014.
It is true that in Ext.P3 statement recorded under Section 164 of the
Cr.P.C., the victim has recalled certain incidents of sexual abuse in
February, November and December 2018, and two incidents in March
2019. However, a reading of the statement in its entirety will indicate
that the dates mentioned by the victim as above relate to certain specific
acts of sexual abuse by forcing the victim to undertake acts of oral sex,
etc. In the initial part of the statement given by the victim, she deposed
that the instances of sexual abuse by the accused started in August 2014.
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She has mentioned the specific acts of sexual abuse, including penetrative
sexual assault. On a reading of Ext.P3 statement given by the victim
under Section 164 of the Cr.P.C, in its entirety, it is difficult to accept that
there is a contradiction with the evidence tendered by her in the box as
PW1. Therefore, I find it difficult to accept the argument of the learned
senior counsel appearing for the accused that the testimony of PW1 does
not lead to a conclusion that there were instances of sexual abuse and
penetrative sexual assault, even at a time when the victim was a minor.
The cross-examination of PW1 has not brought out any material which
would help the case of the accused. The testimonies of PWs 2, 3, 5 and 6
corroborate the victim's account of all the events that culminated in the
revelation of the allegation of sexual abuse. While acknowledging that the
evidence presented by PWs 2, 3, 5 and 6 supports the evidence for PW1, I
refrain from employing the word 'corroborate' in the sense that there is
any direct evidence tendered by prosecution witnesses other than PW1
that the accused committed the crime for '...it is sufficient if it is merely
circumstantial evidence of his connection with the crime' [See paragraph
22.4 of the decision of the Supreme Court in the decision in
Rameshwar v. State of Rajasthan, 1951 SCC OnLine SC 83,
referred to and extracted below]. The medical evidence also supports the
prosecution's case. Despite the vehement suggestion of the learned
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senior counsel for the accused that there was some professional rivalry
which led to a false complaint being registered against him at the
instance of the management of the KIMS Hospital, there is no material
before this court to conclude so. Further, as rightly held by the trial
court, though a suggestion of professional rivalry was put up at the stage
of examination of the accused under Section 313(1)(b) of the Cr.P.C., the
accused has no such case when he was examined as DW4.
21. It is settled law that in a prosecution alleging commission of
offences such as offences under the POCSO Act, the solitary evidence of
the victim is generally deemed sufficient to hold an accused guilty, and
no corroboration is generally necessary 1. In Rameshwar (supra) Vivian
Bose J. elaborated on the legal principles in the following words:-
"19. In my judgment, this branch of the law is the same as in
England and I am of opinion that the lucid exposition of it given by
Lord Reading, the Lord Chief Justice of England, in R. v.
Baskerville cannot be bettered. In that case, Baskerville had been
convicted of having committed acts of gross indecency with the two
boys. (There the boys were accomplices because they were freely
consenting parties and there was no use of force.) The learned
Chief Justice says at KB p. 663:
"There is no doubt that the uncorroborated evidence of an
accomplice is admissible in law.... But it has long been a rule
of practice at common law for the judge to warn the jury of
1. On this point also see State of H.P. v. Raghubir Singh, (1993) 2 SCC 622,
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384,
Wahid Khan v. State of M.P., (2010) 2 SCC 9,
Vijay v. State of M.P., (2010) 8 SCC 191 and,
State of Orissa v. Thakara Besra, (2002) 9 SCC 86
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the danger of convicting a prisoner on the uncorroborated
testimony of an accomplice or accomplices, and, in the
discretion of the Judge, to advise them not to convict upon
such evidence; but the Judge should point out to the jury that
it is within their legal province to convict upon such
unconfirmed evidence....
This rule of practice has become virtually equivalent to a rule
of law, and since the Court of Criminal Appeal came into
operation this Court has held that, in the absence of such a
warning by the Judge, the conviction must be quashed.... If
after the proper caution by the Judge the jury nevertheless
convict the prisoner, this Court will not quash the conviction
merely upon the ground that the accomplice's testimony was
uncorroborated."
20. That, in my opinion, is exactly the law in India so far as
accomplices are concerned and it is certainly not any higher in the
case of sexual offences. The only clarification necessary for
purposes of this country is where this class of offence is sometimes
tried by a Judge without the aid of a jury. In these cases it is
necessary that the Judge should give some indication in his
judgment that he has had this rule of caution in mind and should
proceed to give reasons for considering it unnecessary to require
corroboration on the facts of the particular case before him and
show why he considers it safe to convict without corroboration in
that particular case. I am of opinion that the learned High Court
Judges were wrong in thinking that they could not, as a matter of
law, convict without corroboration.
21. There is a class of cases which considers that though
corroboration should ordinarily be required in the case of a grown-
up woman it is unnecessary in the case of a child of tender years.
Bishram Bahorik Satnami v. Emperor is typical of that point of
view. On the other hand, the Privy Council has said in Mohd. Sugal
Esa Mamasan Rer Alalah v. R. that as a matter of prudence a
conviction should not ordinarily be based on the uncorroborated
evidence of a child witness. In my opinion, the true rule is that in
every case of this type the rule about the advisability of
corroboration should be present to the mind of the Judge. In a jury
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case he must tell the jury of it and in a non-jury case he must show
that it is present to his mind by indicating that in his judgment. But
he should also point out that corroboration can be dispensed with
if, in the particular circumstances of the case before him, either the
jury, or, when there is no jury, he himself is satisfied that it is safe
to do so. The rule, which according to the cases has hardened into
one of law, is not that corroboration is essential before there can be
a conviction but that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense
with it, must be present to the mind of the Judge, and in jury cases,
must find place in the charge, before a conviction without
corroboration can be sustained. The tender years of the child,
coupled with other circumstances appearing in the case, such, for
example, as its demeanour, unlikelihood of tutoring and so forth,
may render corroboration unnecessary but that is a question of
fact in every case. The only rule of law is that this rule of prudence
must be present to the mind of the Judge or the jury, as the case
may be and be understood and appreciated by him or them. There
is no rule of practice that there must, in every case, be
corroboration before a conviction can be allowed to stand.
22. I turn next to the nature and extent of the corroboration
required when it is not considered safe to dispense with it. Here
again, the rules are lucidly expounded by Lord Reading in
Baskerville case at KB pp. 664 to 669. It would be impossible,
indeed it would be dangerous, to formulate the kind of evidence
which should, or would, be regarded as corroboration. Its nature
and extent must necessarily vary with circumstances of each case
and also according to the particular circumstances of the offence
charged. But to this extent the rules are clear.
22.1. First, it is not necessary that there should be independent
confirmation of every material circumstance in the sense that the
independent evidence in the case, apart from the testimony of the
complainant or the accomplice, should in itself be sufficient to
sustain conviction. As Lord Reading says : (Baskerville case , KB p.
664)
"... Indeed, if it were required that the accomplice should be
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confirmed in every detail of the crime, his evidence would not
be essential to the case, it would be merely confirmatory of
other and independent testimony."
All that is required is that there must be "some additional evidence
rendering it probable that the story of the accomplice (or
complainant) is true and that it is reasonably safe to act upon it".
22.2. Secondly, the independent evidence must not only make it
safe to believe that the crime was committed but must in some way
reasonably connect or tend to connect the accused with it by
confirming in some material particular the testimony of the
accomplice or the complainant that the accused committed the
crime. This does not mean that the corroboration as to identity
must extend to all the circumstances necessary to identify the
accused with the offence. Again, all that is necessary is that there
should be independent evidence which will make it reasonably safe
to believe the witness's story that the accused was the one, or
among those, who committed the offence. The reason for this part
of the rule is that:
"a man who has been guilty of a crime himself will always be
able to relate the facts of the case, and if the confirmation be
only on the truth of that history, without identifying the
persons, that is really no corroboration at all.... It would not
at all tend to show that the party accused participated in it".
22.3. Thirdly, the corroboration must come from independent
sources and thus ordinarily the testimony of one accomplice would
not be sufficient to corroborate that of another. But of course the
circumstances may be such as to make it safe to dispense with the
necessity of corroboration and in those special circumstances a
conviction so based would not be illegal. I say this because it was
contended that the mother in this case was not an independent
source.
22.4. Fourthly, the corroboration need not be direct evidence that
the accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were it
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otherwise, "many crimes which are usually committed between
accomplices in secret, such as incest, offences with females" (or
unnatural offences) "could never be brought to justice".
In State of Maharashtra v. Chandraprakash Kewalchand
Jain, (1990) 1 SCC 550 it was held:-
"16. A prosecutrix of a sex offence cannot be put on par with an
accomplice. She is in fact a victim of the crime. The Evidence Act
nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must receive
the same weight as is attached to an injured in cases of physical
violence. The same degree of care and caution must attach in the
evaluation of her evidence as in the case of an injured complainant
or witness and no more. What is necessary is that the court must be
alive to and conscious of the fact that it is dealing with the evidence
of a person who is interested in the outcome of the charge levelled
by her. If the court keeps this in mind and feels satisfied that it can
act on the evidence of the prosecutrix, there is no rule of law or
practice incorporated in the Evidence Act similar to illustration (b)
to Section 114 which requires it to look for corroboration. If for
some reason the court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for evidence which may
lend assurance to her testimony short of corroboration required in
the case of an accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each case. But if a
prosecutrix is an adult and of full understanding the court is
entitled to base a conviction on her evidence unless the same is
shown to be infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely involve the
person charged, the court should ordinarily have no hesitation in
accepting her evidence. We have, therefore, no doubt in our minds
that ordinarily the evidence of a prosecutrix who does not lack
understanding must be accepted. The degree of proof required
must not be higher than is expected of an injured witness. For the
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above reasons we think that exception has rightly been taken to the
approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the court finds that the
testimony of the prosecutrix is so trustworthy, truthful and
reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is
just the reverse. Ordinarily the evidence of a prosecutrix must
carry the same weight as is attached to an injured person who is a
victim of violence, unless there are special circumstances which call
for greater caution, in which case it would be safe to act on her
testimony if there is independent evidence lending assurance to her
accusation.
17. We think it proper, having regard to the increase in the number
of sex violation cases in the recent past, particularly cases of
molestation and rape in custody, to remove the notion, if it persists,
that the testimony of a woman who is a victim of sexual violence
must ordinarily be corroborated in material particulars except in
the rarest of rare cases. To insist on corroboration except in the
rarest of rare cases is to equate a woman who is a victim of the lust
of another with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a woman
that her story of woe will not be believed unless it is corroborated
in material particulars as in the case of an accomplice to a crime.
Ours is a conservative society where it concerns sexual behaviour.
Ours is not a permissive society as in some of the western and
European countries. Our standard of decency and morality in
public life is not the same as in those countries. It is, however,
unfortunate that respect for womanhood in our country is on the
decline and cases of molestation and rape are steadily growing. An
Indian woman is now required to suffer indignities in different
forms, from lewd remarks to eve-teasing, from molestation to
rape. Decency and morality in public life can be promoted and
protected only if we deal strictly with those who violate the societal
norms. The standard of proof to be expected by the court in such
cases must take into account the fact that such crimes are generally
committed on the sly and very rarely direct evidence of a person
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other than the prosecutrix is available. Courts must also realise
that ordinarily a woman, more so a young girl, will not stake her
reputation by levelling a false charge concerning her chastity."
In Phool Singh v. State of M.P., (2022) 2 SCC 74, it was held:-
"7. At the outset, it is required to be noted that in the present case,
the prosecutrix has fully supported the case of the prosecution. She
has been consistent right from the very beginning. Nothing has
been specifically pointed out why the sole testimony of the
prosecutrix should not be believed. Even after thorough cross-
examination, she has stood by what she has stated and has fully
supported the case of the prosecution. We see no reason to doubt
the credibility and/or trustworthiness of the prosecutrix. The
submission on behalf of the accused that no other independent
witnesses have been examined and/or supported the case of the
prosecution and the conviction on the basis of the sole testimony of
the prosecutrix cannot be sustained is concerned, the aforesaid has
no substance."
In the facts of the present case, the evidence tendered by PW1 is clear,
lucid and free from any embellishment that would require this Court to
look for any corroborating evidence. However, the conviction would be
wrong if the victim's testimony is found unreliable for any reason
whatsoever.
22. The question to be considered next is whether the deposition of
the victim as PW1 is of a quality that would lead the Court to conclude
that the same can be accepted in toto2.
23. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC
21 it was held:-
2. On this point also see Ganesan v. State, (2020) 10 SCC 573
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"22. 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 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."
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24. In Nirmal Premkumar v. State Rep. by Inspector of
Police, 2024 SCC Online SC 260, referring to Ganesan (supra),
and Rai Sandeep (supra) it was held:-
"11. Law is well settled that generally speaking, oral testimony may
be classified into three categories, viz. : (i) wholly reliable; (ii)
wholly unreliable; (iii) neither wholly reliable nor wholly
unreliable. The first two category of cases may not pose serious
difficulty for the Court in arriving at its conclusion(s). However, in
the third category of cases, the Court has to be circumspect and
look for corroboration of any material particulars by reliable
testimony, direct or circumstantial, as a requirement of the rule of
prudence."
25. In State of Haryana v. Bhagirath, (1999) 5 SCC 96
it was held:-
8. It is nearly impossible in any criminal trial to prove all the
elements with a scientific precision. A criminal court could be
convinced of the guilt only beyond the range of a reasonable doubt.
Of course, the expression "reasonable doubt" is incapable of
definition. Modern thinking is in favour of the view that proof
beyond a reasonable doubt is the same as proof which affords
moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in the
United States has quoted from judicial pronouncements in his book
Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as
follows:
"It is difficult to define the phrase 'reasonable doubt'.
However, in all criminal cases a careful explanation of the
term ought to be given. A definition often quoted or followed
is that given by Chief Justice Shaw in the Webster case. He
says: 'It is not mere possible doubt, because everything
relating to human affairs and depending upon moral
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evidence is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the
jurors in that consideration that they cannot say they feel an
abiding conviction to a moral certainty of the truth of the
charge.' "
10. In the treatise The Law of Criminal Evidence authored by H.C.
Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest,
sensible and fair-minded man might, with reason, entertain
consistent with a conscientious desire to ascertain the truth.
An honestly entertained doubt of guilt is a reasonable doubt.
A vague conjecture or an inference of the possibility of the
innocence of the accused is not a reasonable doubt. A
reasonable doubt is one which arises from a consideration of
all the evidence in a fair and reasonable way. There must be a
candid consideration of all the evidence and if, after this
candid consideration is had by the jurors, there remains in the
minds a conviction of the guilt of the accused, then there is no
room for a reasonable doubt."
11. In Shivaji Sahabrao Bobade v. State of Maharashtra this Court
adopted the same approach to the principle of benefit of doubt and
struck a note of caution that the dangers of exaggerated devotion
to the rule of benefit of doubt at the expense of social defence
demand special emphasis in the contemporary context of
escalating crime and escape. This Court further said: (SCC p. 799,
para 6)
"The judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law
should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt."
12. These are reiterated by this Court in Municipal Corpn. of
Delhi v. Ram Kishan Rohtagi .
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In the facts of the present case, apart from the fact that the victim (during
cross-examination) denied having sent any messages to the accused
(after the crime was registered and the appellant/accused was released
on bail pending trial), no part of her testimony can be termed unreliable
or untrustworthy or unbelievable. The testimony of the victim has not
been inconsistent with the case of the prosecution. No part of her
testimony would make her a 'wholly unreliable' witness. On the other
hand, her evidence appears to be 'wholly reliable' and on principles
culled out from the decisions in Rai Sandeep (supra), Ganesan
(supra) and Nirmal Premkumar (supra), I find that PW1 is a sterling
witness and that her testimony can be safely relied upon.
26. The evidence of DW1 (a female colleague of the victim) does
not in any manner help the accused. The trial court has held that DW1 is
an interested witness. Even if I were to discount this finding, there is
nothing in the evidence of DW1 that would help to prove the case of the
accused. The evidence of DW2 at best indicates that persons with a
medical condition like that of the victim may experience epilepsy,
psychosis, anxiety and depression, and that psychosis in such individuals
may lead to delusions and hallucinations. Though he has also deposed
that due to their gullibility and limited ability to assess risk, such children
may give false statements under the influence of others, the fact remains
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that he admitted that he had never treated the victim and was not aware
of the victim's mental condition. The deposition of DW3 has to be
disregarded as he has admitted during cross-examination that he
frequently contacted the accused (after the case was registered) and that
he was aware of the facts of the case. DW3 is clearly an interested
witness. Moreover, apart from the statement that he had requested the
accused to treat the victim along with a female assistant and that he had
once seen the accused along with a female colleague at the house of the
victim, there is nothing in the evidence of DW3 that would go in favour of
the accused.
27. Nothing turns on the digital evidence produced by the
accused (D2 series and D3 Mobile Phone), though it was marked in
evidence and was supported by a certificate under Section 65B of the
Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act').
As rightly held by the trial court, the accused produced only an edited
version of the conversations that he wished to rely on in the sense that he
produced only selected data. The trial court has rightly held that such
redacted portions of a conversation cannot be admissible in evidence
even if they are supported by a certificate under Section 65B of the
Evidence Act. Sections 65A3 and 65B4 of the Evidence Act read thus:-
3.The provisions are in pari materia with Section 62 of Bharatiya Sakshya Adhiniyam, 2023
4.The provisions are in pari materia with Section 63 of Bharatiya SakshyaAdhiniyam, 2023
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"Section 65A - Special provisions as to evidence
relating to electronic record.--
The contents of electronic records may be proved in accordance with the
provisions of section 65B.
Section 65B - Admissibility of electronic records.--
(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed on a
paper, stored, recorded or copied in optical or magnetic media produced
by a computer (hereinafter referred to as the computer output) shall be
deemed to be also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer in question and
shall be admissible in any proceedings, without further proof or
production of the original, as evidence of any contents of the original or
of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer
output shall be the following, namely:--
(a) the computer output containing the information was produced by the
computer during the period over which the computer was used regularly
to store or process information for the purposes of any activities
regularly carried on over that period by the person having lawful
control over the use of the computer;
(b) during the said period, information of the kind contained in the
electronic record or of the kind from which the information so contained
is derived was regularly fed into the computer in the ordinary course of
the said activities;
(c) throughout the material part of the said period, the computer was
operating properly or, if not, then in respect of any period in which it
was not operating properly or was out of operation during that part of
the period, was not such as to affect the electronic record or the accuracy
of its contents; and
(d) the information contained in the electronic record reproduces or is
derived from such information fed into the computer in the ordinary
course of the said activities.
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(3) Where over any period, the function of storing or processing
information for the purposes of any activities regularly carried on over
that period as mentioned in clause (a) of sub-section (2) was regularly
performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over
that period; or
(d) in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more
combinations of computers, all the computers used for that purpose
during that period shall be treated for the purposes of this section as
constituting a single computer; and references in this section to a
computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the following things,
that is to say,--
(a) identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of
that electronic record as may be appropriate for the purpose of showing
that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate, and purporting to be signed by a person
occupying a responsible official position in relation to the operation of
the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it shall be sufficient
for a matter to be stated to the best of the knowledge and belief of the
person stating it.
(5) For the purposes of this section,--
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(a) information shall be taken to be supplied to a computer if it is
supplied thereto in any appropriate form and whether it is so supplied
directly or (with or without human intervention) by means of any
appropriate equipment;
(b) whether in the course of activities carried on by any official
information is supplied with a view to its being stored or processed for
the purposes of those activities by a computer operated otherwise than in
the course of those activities, that information, if duly supplied to that
computer, shall be taken to be supplied to it in the course of those
activities;
(c) a computer output shall be taken to have been produced by a
computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.
Explanation.--For the purposes of this section any reference to
information being derived from other information shall be a reference to
its being derived therefrom by calculation, comparison or any other
process."
It is evident from the provisions referred to above that any information
contained in an electronic record printed on paper, stored, recorded, or
copied in optical or magnetic media produced by a computer shall be
deemed a document. Consequently, all the provisions applicable to a
document shall also apply to an electronic record printed on paper or
stored in any other form such as pen drives, discs, magnetic tape and so
on. While it may be permissible for a person relying on a document to
mark specific portions of it, it is beyond cavil that a document must be
produced in its entirety. It is evident from the cross-examination of the
accused (DW4), that the accused had admitted to editing the
conversations and producing only those portions that were beneficial to
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his case before the court. Although the learned senior counsel appearing
for the accused has a case that the mobile phone in question had been
produced before the court as Ext.D3, and the prosecution had not taken
any steps to examine whether there were any other parts of the
conversation between the accused and the victim that would further the
case of the prosecution, the fact remains that the accused had himself
admitted to not producing or copying the entire conversation between
him and the victim on Ext.D2. In Ambalal Sarabhai Enterprise
Ltd. v. KS Infraspace LLP Ltd., (2020) 5 SCC 410, it was held:-
"17. The negotiations between the plaintiff and the defendant is
reflected in approximately 17 e-mails exchanged between them
commencing from December 2017 to 31-3-2018. The file size of the
attachment to the mails has varied from 48-50-52-48-57-56 KBs
indicating suggestions and corrections from time to time. The
WhatsApp messages which are virtual verbal communications are
matters of evidence with regard to their meaning and its contents
to be proved during trial by evidence-in-chief and cross-
examination. The e-mails and WhatsApp messages will
have to be read and understood cumulatively to decipher
whether there was a concluded contract or not. The use of
the words "final draft" in the e-mail dated 30-3-2018 cannot be
determinative by itself. The e-mail dated 26-2-2018 sent by the
defendant at 11.46 a.m. had also used the same phraseology. The
plaintiff was well aware from the very inception that the defendant
was negotiating for sale of the lands simultaneously with two
others....." (Emphasis supplied)
When conversations between two persons on platforms such as
WhatsApp/Telegram, etc., are produced before the court and are sought
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to be relied upon in evidence, the failure to produce the entire
conversation between two specified dates would result in a completely
different meaning being ascribed to the conversation. Therefore, I firmly
believe that the case presented by the accused based on Ext.D2 does not
in any manner improve the case of the defence and it also does not lead
this Court to doubt the prosecution version in any manner.
28. There is another aspect of the matter. The learned senior
counsel for the accused has made available for the perusal of this court a
printout of the conversations between the accused and the victim. It is to
be noticed that the mobile phone from which the victim was allegedly
contacting the accused, while he was on bail pending trial of the case, was
the mobile phone belonging to the mother of the victim. The trial court
has noticed that the victim was depressed, and it was distressing for the
victim that the relationship with the accused had come to an end. While
PW1 does not appear to depose so before the court, she has, at the time of
her cross-examination by the learned counsel for the accused, expressed
her willingness to again converse with the accused. This indicates that
she was not maintaining any grudge or dislike for the accused. It is also
pertinent to note that the entire incident of sexual abuse by the accused
came out after the brother of the victim took away her mobile phone, on
finding that she was excessively using her mobile phone. The victim also
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attempted to harm herself after the mobile phone was taken away from
her. This fact also indicates that the victim had developed a liking for the
accused. It is in this context that the court must view the subsequent
conversations between the accused and the victim (Ext.D2). The trial
Court has had the benefit of listening to the deposition of PW1. It is clear
from the decision of the Supreme Court in Shivaji Sahabrao Bobade
v. State of Maharashtra, (1973) 2 SCC 793 that "....... the court
which has seen the witnesses depose, has a great advantage over the
appellate Judge who reads the recorded evidence in cold print, and
regard must be had to this advantage enjoyed by the trial Judge of
observing the demeanour and delivery, of reading the
straightforwardness and doubtful candour, rustic naivete and clever
equivocation, manipulated conformity and ingenious unveracity of
persons who swear to the facts before him.". 5 In that view of the matter,
there is nothing in Ext.D2 that would counter the case of the prosecution.
Further, when the testimonies of PW1 (the victim) and PWs 2, 3, 5 and 6
indicate that the sexual abuse of the victim started at a time when she
was a minor, any consent becomes immaterial. Therefore, even if I were
to ignore the fact that the failure to produce the entire conversation
makes the contents of Ext.D2 unreliable, I find nothing in Ext.D2 that
5. On this point also see the decisions in Sarju Pershad v. Raja Jwaleshwari Pratap
Narain Singh, AIR 1951 SC 120 and Lakshmanan Chettiar v. Periakaruppa Thevar,
1968 SCC OnLine Mad 76.
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would advance the case of the appellant/accused.
29. There is no scope for interference with the sentence of
imprisonment as the learned trial judge has only imposed the minimum
prescribed sentence of imprisonment in respect of the offences for which
the appellant/ accused has been convicted and the substantive sentence
for each of the offences is to run concurrently.
For all these reasons, I find no merit in this appeal. The appeal
is, therefore, dismissed, confirming the conviction and the sentence
imposed on the appellant.
sd/
GOPINATH P.
JUDGE
acd
