Allowed

Aliyar v. State of Kerala

Kerala HC20 Feb 2024CRL.A/802/2017

Case brief

AI extract

What is this about?

Two accused convicted for raping a girl allegedly suffering from mental disability were acquitted after the High Court found the victim's testimony doubtful: no voir dire competency test was done, nude photographs alleged to exist were absent from the recovered data, and witnesses present at the alleged offence were not examined.

What did the court decide?

Impugned judgment set aside; both appellants acquitted and ordered released from prison forthwith if not required in other cases.

Aliyar Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN

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TUESDAY, THE 20^TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA,

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1945

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CRL.A NO. 802 OF 2017

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AGAINST THE JUDGMENT DATED 28.07.2017 IN SC 854/2015 OF THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR APPELLANT/1ST ACCUSED:

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ALIYAR

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AGED 52, S/O.IBRAHIM, AATTAYAM HOUSE, NELLIKUZHI VIA, KOTHAMANGALAM, ERNAKULAM, NOW UNDERGOING IMPRISONMENT IN CENTRAL PRISON, VIYOOR, THRISSUR DISTRICT, PIN-680010.

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BY ADVS. SRI.MANJU ANTONEY SRI.R.ANAS MUHAMMED SHAMNAD SRI.K.S.KESHOR KUMAR SMT.P.MAMATHA

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RESPONDENT/PROSECUTION/STATE:

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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

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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:

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Crl.A. Nos.802 and 803 of 2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN

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TUESDAY, THE 20^TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA,

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1945

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CRL.A NO. 803 OF 2017

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AGAINST THE JUDGMENT DATED 28.07.2017 IN SC 854/2015 OF

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THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR

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APPELLANT/2ND ACCUSED:

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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

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RESPONDENT/PROSECUTION/STATE:

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SMT.AMBIKA DEVI SPL PP

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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:

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P.B.SURESH KUMAR & JOHNSON JOHN, JJ.

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Criminal Appeal Nos.802 and 803 of 2017

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Dated this the 20^th day of February, 2024.

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J U D G M E N T

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P.B.Suresh Kumar, J.

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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, th e 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 app ellant 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.

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The victim in the case, a girl alle gedly aged 17 years was a student in a special school. The father of the victim

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is mentally ill and left the family of the victim. Therefore, the victim and her siblings, viz, her younger sister and younger brother were und er 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 vict im back to the schoo l 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 th e Special Court for Trial of Offences under the Protection of Children from Sexual

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Offences Act (POCSO Act) d isclosing commission of the offences by the accused punishable under Sections 376(2)(l) and 376(2) (n) read wi th 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.

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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 eng aged 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

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the second accused.

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On taking cognizance of the offence, the Special Court framed charg es ag ainst the accus ed 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 a re the material objects in the case. After the closure of the prosecution evidence, the accused were questioned un der 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.

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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 estab lished 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 commissio n of the offences punishable under Sections 376(2)(l) and (n) IPC read with Section 109 of IPC. The accused were according ly convicted for the said offences and sentenced, among others, to undergo imprisonment for life.

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Heard the learned counsel for the appellants as also the learned Special Public Prosecutor.

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As PW1, the victim gave evidence more or less in

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tune with the prosecution case. The learned counsel for the first

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accused poin ted 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 dis c. Ext.P34 is the compact disc. It was argued by the learn ed 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

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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 cann ot be believe d, 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

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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 insist ed upon in dependent evidence from the prosecution to prove the guilt of the accused. It was also argued by the learned counsel tha t 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 ag ainst her younger si ster, the very same Special Court acquitted the accused hold ing that the testimony of the younger sister as also th e 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.

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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.

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8 . The learned counsel for the second accused

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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

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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.

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The learn ed Special Public Prosecutor re futed 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 Publi c 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 wh o issu ed Ext.P8 identification data of the victim. O n the request

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made by this Court, the learned Public Prosec utor, having gone through Ext.P34 compact disc played in court , conceded f airly 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 l ow 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 agai nst 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 a lso argued by the learned Public Prosecutor placing reliance on the order sheet in th e case that the younger sister of the victim could not be examined as she wa s unwell at the relevant time. According to the learned Public Prosecutor,

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non-examination of the younger sister of the victim cannot, in the circumstances, be taken as fatal to the prosecution case.

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We have examined the contentions raised by

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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 co mmitted 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 i n 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 cann ot be

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heard together.

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Let us now consider the arguments advanced

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by the learned counsel for the accus ed. In order to consider the same, it is necessary to refer to th e 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 dispu te. 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

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was repelled by the Special Court. No argument has been advance d 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.

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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 retarde d 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 th at the victim w as 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 w as only 58 an d t he normal I.Q. level

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of similar children would be between 90 and 110. Wh at is noted in Ext.P8 a s 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 crossexamination 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

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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.

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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

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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 c ase on hand, the materials do not indicate that the Special C ourt 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 w ho was co mpetent to testify.

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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 23.08.20 15, 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 t o Mini Lodge near the K.S.R.T.C. stand. It was abo ut 6 p.m. then. They were lodged in room No.1. Inside the room, they had food. It

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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 toge ther. It was the first accused who laid down on the cot initially. Ther eafter, 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 cloth es. 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 incl uding the inner wear of her sister. T hereafter 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

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them slept. In the early morning hours of the following day also,

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the first accused called the victim and repeated sexual intercour se with her.

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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 ac cused. 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:

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“ഭകണ� ക��ണ വരമ��ൾ ആമണ� അല�യ�ക� അന� ആദ�മ�യ� ��ണനത� ? (Q) അകത. (A) ”

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After having said so, deviating from the chief-examin ation, PW1 deposed that after providing food to them, the first a ccused left the room and when the first accuse d 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

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deposed that on the morning of the next day, they went to Kumbalangad from the lodge. The relevant portion of th e deposition reads thus:

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“ഭകണ� വ�ങ�തന�ട� അല�യ�ർ കറചമ"�� പറതമ%�യ�. ഭകണ� �ഴ�ഞ� 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�ത�ൽ അ�ത� "�ന� അടച�രന. ഊണ� �ഴ�ഞ� ഒര മണ�കമറ�ള� ഉമച� ഞങമള�ട� വർതമ�"� %റഞ�രന. ഞ�ൻ വ�ച ക�ട�റ�ല. lodge കല മറ�യ�ൽ clock ഇല�യ�രന. ഉറങ�ൻ ��ടനമ5�ൾ Light അണച�രമന� (Q) ഉവ� (A). Light ക�ടത�യത� ഞ�ൻ ആണ�. Light ക�ടത�യമ5�ൾ ഉമച�യ�, xxx , സമ,�ദ�ൻ, സമ,�ദ��യ� മ�തമകല ഉണ�യ�രനത� (Q) അകത (A) Light അണച� കറച� �ഴ�ഞമ5�ൾ എ"�ക� ഉറക� വന. "ന�യ� ഉറങ�. %�മDദ�വസ� ��വ�കല Lodge-ൽ "�ന� ക�ളങ�ട�"� മ%�യ�. ഉമച�യ�, ഞ�ന�, അനജൻ, അനജത�യ� മറ�വ�ട� മ%�യ�. ”

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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 use d to financially help her mother. PW1 also admitted in her eviden ce that the first accused considers her as his own

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daughter. The relevant portion of the deposition reads thus:

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“xxx ക" അല�യ�ർ ഒരമമ�കളമ5�കലയ�ണ� �രതനത� എന%റഞ�ൽ അറ�യ�മമ� (Q) അകത (A)”

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Despite all that, PW1 denied the suggestion that the first

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accused had not physically or men tally 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 li ke. 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

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reads thus:

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“മ��ടത�യ�ൽ %റയണ ��ങൾ police %റഞ തന�രമന� (Q) %റഞ തന�രന (A) police %റഞ തനതനസ��ച�ണ� കമ�ഴ� xxx %റയനത� (Q) എകG അഭ�പ�യ� ആണ� %റഞത�. (A) ഉമച� കട�യകട ഭ�വ�ക�, "നയ� �രത� ഉതമമ�യത മ�തമമ കKയ�ടള എന� %റയന. (Q) ശ��യ�ണ� (A) ”

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Originally PW1 was examined on 20.06.2016. La ter, 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 contain ed 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).

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16. There cannot be any doubt to the proposition

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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 j udgment of the Apex Court in the said

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case reads thus:

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“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 crossexamination 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

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Crl.A. Nos.802 and 803 of 2017

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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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It is evident from the aforesaid decision that the evidence of a

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sterling witness is one that appears natural and consistent with the case of the prosecut ion 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 crossexamination, 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 doct or who conducted the

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Crl.A. Nos.802 and 803 of 2017

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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.

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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 abse nce of any case for the prosecution that all the photographs contained in the memory card could n ot 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

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Crl.A. Nos.802 and 803 of 2017

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them should have been examined as a witness in the case. The younger sister of the victim w as unwell, in the facts and circumstances of this case, is not a re ason 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.

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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 accuse d 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 foun d 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.

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In the result, the criminal appeals are allowed, the

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Crl.A. Nos.802 and 803 of 2017

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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.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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Sd/-

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JOHNSON JOHN, JUDGE.

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YKB

Aliyar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Aliyar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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