Kerala High Court
Thankamani @ Mini vs The State Of Kerala on 5 December, 2024
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
1
2024:KER:91505
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
CRL.A NO. 485 OF 2016
CRIME NO.100/2008 OF CBCID, KOTTAYAM
AGAINST THE JUDGMENT DATED 27.05.2016 IN SC NO.323 OF 2011 ON THE
FILE OF COURT OF SESSION, KOTTAYAM
CP NO.74 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
CHANGANACHERRY
APPELLANT/5TH ACCUSED:
SATHEESH KUMAR
S/O. CHELLAPPAN PILLAI, UTHRITTATHY VEEDU,
THRIKKARUVA VILLAGE, THRIKKADAVOOR, KOLLAM DISTRICT.
BY ADV SRI.B.MOHANLAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE,
CBCID, KASARGOD THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SRI.VIPIN NARAYAN, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINAL HEARD ON 18.11.2024, THE
COURT ON 05.12.2024, ALONG WITH CRL.A.487/2016, 540/2016, 566/2016 AND
671/2016, DELIVERED THE FOLLOWING:
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
2
2024:KER:91505
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
CRL.A NO. 487 OF 2016
CRIME NO.100/2008 OF CBCID, KOTTAYAM
AGAINST THE JUDGMENT DATED 27.05.2016 IN SC NO.323 OF 2011 ON THE
FILE OF COURT OF SESSION, KOTTAYAM
CP NO.74 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
CHANGANACHERRY
APPELLANT/6TH ACCUSED:
RAKHI @ PRIYA @ KEERTHY @ SUMA
AGED 33 YEARS
D/O RAMACHANDRAN, KIZHAKKUMPURATHU VEEDU, NEAR GOPI MATCH
COMPANY, ARIMPOOR NALAMKALLUDESAM, PARAKKADU VILLAGE,
THRISSUR DISTRICT
BY ADVS. SRI.NANDAGOPAL S.KURUP
SRI.G.SREEKUMAR CHELUR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN
CHILDREN
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
3
2024:KER:91505
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2024, THE
COURT ON 05.12.2024, ALONG WITH CRL.A.485/2016, 540/2016, 566/2016 AND
671/2016, DELIVERED THE FOLLOWING:
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
4
2024:KER:91505
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
CRL.A NO. 540 OF 2016
CRIME NO.100/2008 OF CBCID, KOTTAYAM, Kottayam
AGAINST THE JUDGMENT DATED 27.05.2016 IN SC NO.323 OF 2011 ON THE
FILE OF COURT OF SESSION, KOTTAYAM
CP NO.74 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
CHANGANACHERRY
APPELLANTS/2ND AND 3RD ACCUSED:
1 JOMINI
AGED 34 YEARS
W/O JYOTHISH, VADAKKEL VEEDU,
NEAR VELATHUSSERY CATHOLIC CHURCH, THEEKOY KARA,
THEEKOY VILLAGE, KOTTAYAM
2 JYOTHISH @ JOY
AGED 35 YEARS
S/O FRICHU JOSEPH @ APPACHAN,
CHANGANARIPARAMBU VEEDU, VELATHUSSERY KARA,
POONJAR VILLAGE, KOTTAYAM
BY ADVS. SRI.K.A.SALIL NARAYANAN
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.S.RAJEEV
SRI.V.VINAY
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
5
2024:KER:91505
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN
CHILDREN
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2024, THE
COURT ON 05.12.2024, ALONG WITH CRL.A.485/2016, 487/2016, 566/2016 AND
671/2016, DELIVERED THE FOLLOWING:
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
6
2024:KER:91505
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
CRL.A NO. 566 OF 2016
CRIME NO.100/2008 OF CBCID, KOTTAYAM, Kottayam
AGAINST THE JUDGMENT DATED 27.05.2016 IN SC NO.323 OF 2011 ON THE
FILE OF COURT OF SESSION, KOTTAYAM
CP NO.74 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
CHANGANACHERRY
APPELLANT/ACCUSED NO.4:
THANKAMANI @ MINI
AGED 47 YEARS
D/O.RAMAKRISHNAN, KOTTARAMPARAMBU HOUSE, KUNNONI KARA,
POONJAR THEKKEKARA, KOTTAYAM DISTRICT.
BY ADVS. SRI.KARJET KODUVATH
SRI.S.NIDHEESH
SMT.M.S.PAMILA
C.S.MANILAL(K/686/1992)
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV.SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2024, THE
COURT ON 05.12.2024, ALONG WITH CRL.A.485/2016, 487/2016, 540/2016 AND
671/2016, DELIVERED THE FOLLOWING:
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
7
2024:KER:91505
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
CRL.A NO. 671 OF 2016
CRIME NO.100/2008 OF CBCID, KOTTAYAM, Kottayam
AGAINST THE JUDGMENT DATED 27.05.2016 IN SC NO.323 OF 2011 ON THE
FILE OF COURT OF SESSION, KOTTAYAM
CP NO.74 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
CHANGANACHERRY
APPELLANT/1ST ACCUSED:
LIZY TOMY
AGED 50 YEARS, W/O.TOMI THOMAS,MUNDANTHARAYIL VEEDU,
THALIKKALLU BHAGOM, AYARKUNNAM KARA,AYARKKUNNAM VILLAGE,
KOTTAYAM.
BY ADVS.SRI.V.JOHN SEBASTIAN RALPH
SMT.P.V.DENCY
SRI.M.S.IMTHIYAZ AHAMMED
SRI.K.J.JOSEPH ERNAKULAM
SRI.V.JOHN THOMAS
SRI.JACOB J. ANAKKALLUNKAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM -682 031.
BY ADV.SRI.VIPIN NARAYAN, SR.PUBLIC PROSECUTOR
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN
CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2024, THE
COURT ON 05.12.2024, ALONG WITH CRL.A.485/2016, 487/2016, 540/2016 AND
566/2016, DELIVERED THE FOLLOWING:
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
8
2024:KER:91505
C.S.SUDHA, J.
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Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016
-----------------------------------------------------------------------
Dated this the 5th day of December 2024
JUDGMENT
In these appeals filed under Section 374(2) Cr.P.C., the appellants who are accused 1 to 6 in S.C.No.323/2011 on the file of the Court of Session, Kottayam, (Crl.A.No.485/2016 by A5, Crl.A.No.487/2016 by A6, Crl.A.No.540/2016 by A2 and A3, Crl.A.No.566/2016 by A4, Crl.A.No.671/2016 by A1) challenge the conviction entered and sentence passed against them for the offences punishable under Sections 366A, 372 and 373 read with Section 120B IPC.
2. As per the charge sheet/final report, the prosecution case is as follows- the first accused Lizy Tomy (A1) is the cousin of PW1, the mother of the victim girl. Accused nos.1 to 6 (A1 to A6) Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 9 2024:KER:91505 and the eleventh accused (A11) hatched a criminal conspiracy to procure the victim girl for the purpose of prostitution. A1 with the intention of using the victim for the purpose of prostitution and making money induced the victim girl to leave her parents and to stay with her and thus succeeded in getting control of the girl. The parents, namely, PW1 and CW2 were made to believe that their daughter was being taken for the purpose of looking after the grand daughter of A1. On 06/10/2007, A1 took the girl to the house owned by PW24, which was taken on rent by accused no.4 (A4) and A11 and handed over the girl to the latter. A1, A4 and A11 invited the twelfth accused (A12) and after taking money for the purpose of illicit intercourse, provided the girl to A12 who by force and under threat raped the victim girl in the bedroom of the aforesaid house.
2.1. On the same day on 06/10/2007, A1 induced the victim girl and took her to the house rented out by accused no.2 and 3 (A2 Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 10 2024:KER:91505 and A3) at Tiruvalla and handed over the girl to A2 and A3. A1 to A3 then invited PW66 Dinu, to the house and after taking money from him provided the girl for the purpose of illicit intercourse. On 15/12/2007, A3 took the girl from the custody of A1 and took her to Kumarakom along with another woman and six men to the houseboat by name Ashadam owned by PW104 with the intent to use the girl for the purpose of prostitution. On the said day during night when the girl expressed reluctance to have sexual intercourse with an elderly man among the six men present in the boat, she was physically manhandled and assaulted. On 11/03/2008 at about 10:00 a.m, A1 to A3 took the victim near the RMS office, Kottayam Railway Station and after receiving money handed her over to the fifth accused (A5). A5 in furtherance of the conspiracy hatched with the other accused took the victim girl to his rented house in Thiruvananthapuram, which house was owned by CW66. A5 then invited PW123 to his house and handed over the victim to PW123 Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 11 2024:KER:91505 for the purpose of illicit intercourse after receiving money from PW123.
2.2. A6 in furtherance of a conspiracy with A5, accused no.9 (A9) and accused no.10 (A10), took the victim girl on 12/03/2008 at about 08:30 a.m., in a Swift car owned by PW87 to Shangumugham, Thriuvananthapuram. A9 and A10 arrived there in an Alto Car in the possession of PW29 and they along with A6 took the victim to Kanyakumari, Tamil Nadu. The victim girl was taken to room no.504 Sangam Hotel, situated by the side of Kanyakumari
- Nagarcoil road in Tamil Nadu where accused no.9 and 10 repeatedly had sexual intercourse with the victim girl between 06:00 p.m. on 12/03/2008 and 10:00 a.m. on 13/03/2008.
2.3. On 13/03/2008, A6 brought the victim girl to Thiruvananthapuram and stayed in a house belonging to PW26 along with PW87. On 14/03/2008, A6 took the victim girl to the house taken on rent by her along with CW94, which house was Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 12 2024:KER:91505 owned by PW37 and stayed there along with the victim till 17/03/2008 where also she was used for prostitution/illicit intercourse.
2.4. By the evening of 17/03/2008 A6 took the victim girl back to Thiruvananthapuram. A9 and A10 thereafter took the victim girl in a car to Kollam where they were joined by A5. After giving money and a gold chain, the victim girl was handed over to A1 to A3.
2.5. A1 to A3 took the victim to a house in Tiruvalla which was taken on rent by A2 and A3. On 19/03/2008, A2 and A3 invited A7 and A8 to the said house and after receiving money from them, sent the victim girl along with A7 and A8 in a car owned by the father of A7. A7 and A8 repeatedly had sexual intercourse with the victim between 12.30 p.m. and 07:00 p.m. on 19/03/2008 in room no.207, Tilak hotel, situated near the KSRTC bus stand, Thiruvalla.
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 13 2024:KER:91505 2.6. Thus, A1 to A6 along with A11 at different times entered into criminal conspiracies and after taking money from A7, A8, A9, A10, A12 as well as several other men, sold the victim girl for prostitution. As the victim was subjected to sexual intercourse by several men, she contracted Hepatitis-B and AIDS from one of the said several men pursuant to which she was under treatment at various hospitals from 26/03/2008 to 05/05/2008. On 05/05/2008, she succumbed to the disease. Hence, the accused persons 12 in number were alleged to have committed the offences punishable under Sections 366A, 120B, 372, 373, 376, 506 Part I r/w Section 34 IPC.
3. Based on Ext.P1 FIS of PW1, PW99, Addl.S.I., Changanassery police station registered crime No.251/2008, that is, Ext.P128 FIR, on 27/05/2008 at 18:00 hours. Investigation was conducted by PW127, the then Circle Inspector, Changanassery, who after completing the investigation filed the final report alleging Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 14 2024:KER:91505 the commission of offences punishable under the aforementioned Sections before the jurisdictional magistrate.
4. After complying with the necessary formalities contemplated under Section 209 Cr.P.C., the jurisdictional magistrate committed the case to the Court of Session, Kottayam where the case was taken on file as S.C. No.323/2011. The case was made over to the Additional Sessions Judge for trial and disposal. On 16/01/2014, a charge for the offences punishable under Sections 366A, 120B, Part I of 506, 372, 373, 376 and 34 IPC was framed, read over and explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 127 were examined and Exts.P1 to P220, and MOs.1 to 14 were got marked in support of the case. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 15 2024:KER:91505 in the evidence of the prosecution. All the accused persons denied those circumstances and maintained their innocence. A1 submitted that while the victim girl was undergoing treatment at the Medical College Hospital, Kottayam, at the request of PW1, she was the bystander. When the girl was taken to the Medical College Hospital, Theni, the movables belonging to the victim had been entrusted to her. After the death of the victim, on 25/05/2008 PW1 came to her residence for collecting the said movables at which time a quarrel took place between them in respect of the gold ornaments of the victim. Due to the said enmity, PW1 gave a false complaint as the gold ornaments were not returned to her. A6 submitted that she had no connection whatsoever with the incidents alleged by the prosecution. She has been falsely implicated in the case.
6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 16 2024:KER:91505 on their defence and adduce evidence in support thereof. DWs.1 to 4 were examined and Exts.D1 to D14 were marked on the side of the defence. Exts.X1 to X8, third party exhibits, were also marked.
7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found A1 to A6 guilty of the offences punishable under Sections 120B, 366A, 372 and 373 IPC. A1 to A6 have been acquitted of the offences punishable under Sections 506 Part I and 376 read with Section 120B IPC. A7 to A12 have been acquitted under Section 235 (1) Cr.P.C. of all the offences for which they have been charged. Aggrieved, A1 to A6 have come up in appeal.
8. A5 was reported to be no more and hence the appeal against the substantive sentence of imprisonment stands abated. However, the appeal as against the sentence of fine does not abate. The legal representatives of A5 have not come on record. Hence, I proceed to consider the case of A5 also on merits after examining Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 17 2024:KER:91505 the entire records in the case.
9. The only point that arises for consideration in these appeals is whether the conviction entered, and sentence passed against A1 to A6/appellants by the trial court are sustainable or not.
10. Heard Adv.John S.Ralph, the learned counsel for A1; Adv.S.Rajeev, the learned counsel for A2; Adv.K.A.Salil Narayanan, the learned counsel for A3, Adv.C.S.Manilal, the learned counsel for A4; Adv.Nandagopal S.Kurup, the learned counsel for A6 and Adv.Vipin Narayan, the learned Senior Public Prosecutor and Adv.Sheeba Thomas, the learned Public Prosecutor.
11. As per the prosecution case, the victim was a minor. PW1 deposed that her daughter was born in August 1993. Ext.P144 the birth certificate issued from grama panchayat, Karunapuram shows that the victim girl was born on 27/08/1993. PW11, the Headmistress of the school in which the victim girl was studying gave evidence to the effect that as per records maintained Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 18 2024:KER:91505 in the school, the date of birth of the girl was 27/08/1993. From the materials on record, the prosecution has been successful in establishing that the victim was a minor at the time of the incident.
11.1. According to the prosecution, as the victim was subjected to repeated sexual intercourse by A7 to A12 as well as various other men to whom she was sold by A1 to A6 and A11, she contracted AIDS resulting in her death. As noticed earlier, A7 to A12 have been acquitted of all the offences charged including the offence punishable under Section 376 IPC. A1 to A6 have been found guilty only of the offences punishable under Sections 366A, 372, 373 read with Section 120B IPC and they have been acquitted of the offences punishable under Section 506 Part I and Section 376 IPC. The prosecution relies on the testimony of PW81, PW90, PW91 and PW101 as well as Exts.P104, P117, P118 and X series documents to prove that the death of the victim was due to AIDS. It was submitted on behalf of the accused persons that no Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 19 2024:KER:91505 postmortem of the victim had been conducted and hence there is no evidence to prove the cause of death or that the death of the victim was due to AIDS.
12. As per Ext.X1(a) certificate issued by PW101, Assistant Professor, Medical College, Theni, the cause of death is stated to be: -
"I. Immediate cause a. Cardio respiratory arrest State the diseas [Sic], injury or complication which caused death, not the mode of dying such as b. ...(not legible) MCA Stem heart failure, asthenia, etc., occlusion Antecedent cause morbid conditions, if any giving c. Infective endocarditis rise to the above Cause, stating underlying conditions last.
II.
Other significant conditions contributing HBV infection to the death but not related to the disease or conditions caushing [Sic] it"
12.1. The testimony of PW81, Head Of Department, Micro biology, Medical College, Kottayam; PW90, Assistant Professor, Department of Medicine, Medical College, Kottayam; Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 20 2024:KER:91505 PW91, Medical Officer, A.R.T. Unit, Medical College, Kottayam and PW101, Assistant Professor, Medical College, Theni, to which reference is seen made in paragraphs 83 to 87 of the impugned judgment, has not been disproved or discredited in any way. On going through their testimony and the medical records, namely, Exts.P104, P117, P118 and X Series, I find no reasons to disbelieve them. It is true that the prosecution was unable to pinpoint the person from whom the victim had contracted AIDS. However, the aforesaid evidence shows that the victim girl died due to complications resulting from AIDS.
13. Now coming to the identity of the victim which is seriously disputed. Prosecution relies on MO.5 and MO.6 photographs to prove the identity of the victim. It was argued on behalf of the accused persons that MO.5 and MO.6 photographs were not liable to be marked as material objects. On the other hand, they are documents and hence it could be proved only by Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 21 2024:KER:91505 examining the photographer who took the photos as well as by producing the negatives. As they are documents, the accused persons as of right were entitled to be given a copy of the same under Section 207 Cr.P.C. However, no copy was furnished to the accused persons causing prejudice to them and hence no evidence based on MO.5 and MO.6 is admissible and the same cannot be used against the accused persons. The learned counsel for A4 relied on the dictum in Laxman Ganpati Khot v. Anusyabai, AIR 1976 Bombay 264; Sabera Begum v. G.M.Ansari, 1979 Bombay CRR 110 and Gopalakrishnan @ Dileep v. State of Kerala, 2019 (4) KLT 853 (SC) and the learned counsel for A6 relied on the dictum in Sherin V.John v. State of Kerala, 2018 (3) KHC 725 in support of the arguments. The remaining accused persons also supported the aforesaid argument.
13.1. Per contra it was submitted by the learned Public Prosecutor that the purpose for which a thing is produced Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 22 2024:KER:91505 determines the question as to whether it is a document or material object. In the case on hand, MO.5 and MO.6 were produced for the purpose of identification of the victim. As the purpose is not to prove the genuineness of MO.5 and MO.6 photographs, it was unnecessary to examine the photographer or to produce the negatives. Reference was made to the dictum in Ram Lochan Ahir v. State of West Bengal, AIR 1963 SC 1074 in which case it was held that even a superimposed photograph was admissible under Section 9 of the Evidence Act for proving the identity of a person.
14. Laxman Ganpati Khot (Supra) inter alia dealt with a case of adoption. A photo taken at the adoption ceremony was introduced in evidence to prove adoption. The genuineness of the photo was in question and hence in such circumstances it was held that it was necessary to examine the photographer who took the photo as well as production of the negative, to prove the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 23 2024:KER:91505 photograph. Sabera Begum (Supra) was a case in which a claim for maintenance was made under Section 125 Cr.P.C. The petitioner therein claimed to be the second wife of the respondent and to prove the marriage, relied on certain photographs. It was held that the mode of proving the photographs is by examining the person who took the photographs and by production of the negatives.
14.1. The learned counsel for A6 supplemented the above argument by referring to the second proviso to Section 60 of the Evidence Act and submitted that it is only those material things referred to in the oral evidence of a witness about what he has seen, heard or perceived by any of his senses, that could be produced as a material object. In the case on hand, the testimony of PW1 does not refer to any photographs. Therefore, the photos could not have been marked as material objects.
14.2. In Sherin V. John (Supra) it was held that the test Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 24 2024:KER:91505 to determine whether a thing produced is a document or material object is to look into the purpose for which the thing upon which a matter has been expressed or described, is produced. In paragraph 17 of the judgment certain illustrations are referred to. My attention was drawn to illustration (f) which reads- "a photograph in which a male is seen in a compromising position with the wife of his neighbour." The learned single judge has explained the circumstances in which the photograph would become a material object or a document. In cases where the question arises as to whether the photo is genuine, the prosecution will have to prove that it is genuine by examining the person who took it. In cases where the prosecution wants to prove that the photograph was seized from the custody of the accused, then the only requirement is to prove the seizure from the custody of the accused, in which case the identity of the person who took the photograph would be irrelevant. Referring to this illustration, it was submitted that in the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 25 2024:KER:91505 case on hand, the prosecution is trying to prove the contents of MO.5 and MO.6 and hence the photographer who took the photos ought to have been examined and the negative of the photographs produced.
15. I am afraid I cannot agree to the argument advanced on behalf of the accused persons. MO.6 is a group photo in which the victim girl, in a yellow dress, is seen in the company of others. From MO.6 group photograph, MO.5 photo was made by enlarging the photo of the victim. PW1 identified her daughter in the photos. PW14, the son-in-law of A1, admitted that MO.6 had been taken in connection with his wedding, which was solemnised at his house in Chalakkudy. PW14 feigned ignorance when asked whether he had produced MO.6 before the investigating officer. PW127, the investigating officer, deposed that MO.5 and MO.6 had been seized as per Ext.P89 mahazar. According to the prosecution, MO.6 photograph was taken at the time of marriage of PW14 to PW13, Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 26 2024:KER:91505 the daughter of A1. PW1 deposed that she had not attended the marriage of PW14. However, A1 had taken both her daughters including the victim for the marriage. PW14 admitted that his wife's relatives are seen in MO.6. He again feigned ignorance when he was asked whether the girl in the yellow dress is the victim. PW14 on further questioning deposed that he does not know whether the victim had attended his marriage. PW13, the wife of PW14 and daughter of A1, admitted that PW1 is her close relative and that the latter has two daughters. However, she deposed that both the daughters of PW1 had not attended her marriage. According to PW13, she came to know about the death of the victim from the newspapers. She admitted that MO.6 photo was taken on the day of her marriage to PW14. But she denied the prosecution case that the girl in the yellow dress is the victim. She deposed that the victim had never resided in her house.
15.1. A reading of the deposition of PW13 and PW14 would Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 27 2024:KER:91505 make it quite obvious that they are deposing falsehood. If PW13 is to be believed, the victim had never ever resided in her house. But A1, her mother, has no such case, which is revealed from what she submitted while she was questioned under Section 313 Cr.P.C. The fact that the victim had attended the marriage of PW13 and PW14 is deposed by PW1, which testimony has not been challenged or discredited. Therefore, there is no reason to disbelieve her version that the victim had in fact attended the marriage of PW13 and PW14. Apart from PW1, the classmates of the victim, namely, PW16 and PW17, have also identified the victim in MO.5 and MO.6 photographs. PW22, the paternal grandfather of the victim, also identified her in the photographs. These photographs have not been produced or relied on for the purpose of proving the marriage of PW13 to PW14 or to establish that the victim had attended their marriage. Had it been so, the genuineness of the photos would have been in question and then, proof of the photographs by Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 28 2024:KER:91505 examining the photographer and production of the negative would have been necessitated. That is not the purpose for which MO.5 and MO.6 have been produced. On the other hand, they have been produced only for the purpose of identifying the victim, who died even before the crime was registered, and hence is admissible under Section 9 of the Evidence Act [See Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 12 SCC 512]. The arguments to the contrary advanced on behalf of A1 to A6, are liable to be rejected.
16. Now coming to the evidence relied on by the prosecution against A1 to A6 to prove the offences punishable under Sections 366A, 372, 373 read with Section 120B IPC. According to the learned prosecutor, apart from the testimony of other prosecution witnesses, to which I shall refer to shortly, the statements made by the victim to PW1, as well as to PW6, her lover, shortly before her death relating to the acts of A1 to A6 in subjecting her to prostitution/illicit intercourse, are Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 29 2024:KER:91505 statements/dying declarations coming under Section 32(1) of the Evidence Act and hence are admissible and rightly relied on by the trial court. PW1 in the box deposed that her daughter was in the Medical College Hospital for about a month during which time A1 was the bystander. One day, when A1 went to the house of PW13 Divya, the victim girl developed pain in her legs. PW1 consulted the doctor at which time she was told that her daughter had AIDS; that her daughter had contracted the disease through sexual contact and that there was no treatment for the same. On enquiry, she was told by her daughter that A1 Lizy had taken her to the house of A2 Jomini and A3 Jyothish at Changanassery and subjected her to prostitution. Her daughter also told her that A1 Lizy, had sent her along with a person named Achayan (A5) and Rakhi (A6). A1 also sent her with Mini (A4) to the latter's house in Pala. On getting this information, when she questioned A1 about the same, the latter denied it.
Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 30 2024:KER:91505 16.1. PW6 stated to be the boyfriend of the victim deposed that he was in a relation with the victim; that a month before the victim fell ill, he had been informed by the victim over phone that she was locked up in a house at Changanassery, at which time the victim was crying. He also deposed that while the victim was in the hospital, A1 informed him that the victim had expressed a desire to see him. Hence, he went to meet her at the hospital. While at the hospital when A1 Lizy went out, the victim told him that she would die (ഞ ൻമര ക ). The victim also told him that A1 Lizy, A2 Jomini and the husband of Jomini had showcased her before several men and subjected her to prostitution. She was taken to Thiruvananthapuram, from where A6 Rakhi and two men had taken her to Kanyakumari, Kumarakom, Shanghumugham etc. and handed her over to several men for sexual intercourse. The victim also told him that the accused persons had threatened her by saying that they had her photographs in their mobile phones and hence the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 31 2024:KER:91505 reason why the victim did not reveal the incidents to others ( അവർ മമ ബ ലൽ ര ജ യമ ഫ ഫ എ ത ണ എന ഭ ഷണ മ" ത യത ക രണമ ണ ര ജയ ക ര%ങൾ ആഫര പറയ മത ഇര നത) .
16.2. These statements of PW1 and PW6 were taken to be statements/dying declarations of the victim admissible under Section 32(1) of the Evidence Act by the trial court. The defence team takes strong exception to this finding and submitted that a statement to be admissible under Section 32(1) must relate to the cause of death of a person. According to Adv. John S. Ralph, the learned counsel for A1, the scheme of Section 32(1) is to admit statements of a dead person only in cases when the person's death comes into question. The first part of Section 32 can be treated as substantive evidence and the second part, as corroborative evidence. The Section uses only the words 'relevant facts'. The words 'facts in issue' have been specifically omitted in the Section. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 32 2024:KER:91505 The learned counsel also drew my attention to Section 6 of the Evidence Act and submitted that there is conspicuous absence of the term 'relevant facts' in the Section. The words 'relevant facts' have been included in Section 4 of the Bharatiya Sakshya Adhiniyam, 2023 (the BSA), based on the judgment of the Apex Court on the point. However, Section 26 of the BSA, which corresponds to Section 32 of the Evidence Act, the words 'facts in issue' have not been included, which is a clear indication that the legislature wanted to confine the matters referred to in the eight clauses of Section 32 only to 'relevant facts' and not to 'facts in issue'. This would indicate that the matters coming within the eight clauses in Section 32 including dying declaration can be used only as corroborative evidence going by the wordings in the Section. The illustrations referred to in Section 32 would indicate that they only corroborate the 'relevant facts' and not the 'facts in issue'. The only method through which the prosecution could have brought in the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 33 2024:KER:91505 statements of the victim girl under Section 32(1) was to make a charge for culpable homicide by incorporating an allegation that an accused knowing that he was having HIV, had carnal intercourse with the victim and thereby knowingly inflicted an injury, that is, an injury likely to cause death or sufficient in the ordinary course of nature to cause death. In such a charge, rape could also be additionally charged so that death would be in question. In such cases, even if the accused is acquitted of the charge of homicide, evidence in the form of dying declaration could be let in. To substantiate this argument, reference was made to illustration (j) to Section 8 of the Evidence Act. The said illustration says that if a person dies in an incident of rape, it could be used as dying declaration under Section 32(1) and if the person survived, it could be used as corroborative evidence under Section 157 of the Evidence Act. In the case on hand, the facts in issue were only whether the victim, a minor, was procured for illicit Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 34 2024:KER:91505 intercourse/prostitution and whether she had been subjected to rape/sexual intercourse by several men to whom A1 to A6 had sold her for money. The cause of death of the victim was never in question and hence the statements alleged to have been made by the victim to PW1 and PW6 relied on by the trial court as admissible under Section 32(1) of the Evidence Act is apparently an incorrect/wrong finding, goes the argument. Reference was made to the dictum in Inderpal v. State of Madhya Pradesh, (2001) 10 SCC 736 to substantiate the arguments. This argument advanced by the learned counsel for the 1st accused is adopted by the other accused also.
16.3. In support of the aforesaid argument, A2 relied on the dictums in Suresh Babu v. State of Kerala, 2022 ICO 2118; Eby @ Philip Ninan v. State of Kerala, 2024 ICO 544 and Pradeep @ Kannan v. State of Kerala, 2024 ICO 879. A4 relied on the dictums in Sudhakar v. State of Maharashtra, (2000) 6 SCC Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 35 2024:KER:91505 671; Jayendra Saraswathi Swamigal v. State of Tamil Nadu, AIR 2005 SC 716; Bhairon Singh v. State of Madhya Pradesh, AIR 2009 SC 2603; Ramkrishna Roy v. The State, AIR (39) 1952 Calcutta 231 and Surendran v. State of Kerala, AIR 2022 SC 2322. A6 relied on the dictum in Irfan @ Naka v. State of Uttar Pradesh, AIR 2023 SC 4129.
16.4. Per contra, it was submitted by the learned Public Prosecutor that Section 32(1) of the Evidence Act does not specify that the statement must be relating to a 'fact in issue'. On the other hand, the Section only says that the statement must be of a 'relevant fact'. The Prosecutor drew my attention to Section 7 which says that facts which are the occasion, cause or effect, immediate or otherwise of relevant facts, or facts in issue, or which constitute the state of things under which they happen, are also relevant. In the case on hand, the victim contracted AIDS during the course of the transaction, that is, sexual intercourse with several persons, which Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 36 2024:KER:91505 was a fact in issue. It was the effect of the fact in issue and hence a relevant fact. Illustration (a) of Section 32 and (j) of Section 8 clearly shows that dying declaration can be taken as a relevant fact in the case of rape. It was also submitted that whether circumstances of transaction can be a substantive piece of evidence, or a corroborative one depends on the facts and circumstances of each case. In Pakala Narayana Swami v. Emperor, (1939) 41 BombayLR428 case a statement which only constituted a part of the chain of circumstances was considered. But in the case on hand, the entire abuse is narrated by the victim and hence the same can be treated as substantive evidence and so the testimony of PW1 and PW6 in which they narrate the statements given by the victim are admissible under Section 32(1) of the Evidence Act, goes the argument. In support of the argument, she relied on the dictum in Rattan Singh v. State of Himachal Pradesh, (1997) 4 SCC 161 in which it has been held that 'circumstances of the transaction which Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 37 2024:KER:91505 resulted in death' is of wider amplitude than 'circumstances which caused death'. There need not necessarily be a direct nexus between 'circumstances' and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub- section, provided it has nexus with the transaction which resulted in the death.
16.5. It was also pointed out by the learned Prosecutor by referring to the court charge that the question regarding the cause of death of the victim also came into question and therefore the statements made by the victim to PW1 and PW6 are admissible under Section 32(1). The relevant portion of the court charge which Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 38 2024:KER:91505 was referred to reads thus: -
"............you the accused 1 to 6 conspiring with the 11 th accused caused the minor girl subjected to illicit intercourse by persons like accused Nos.7,8,9,10 and 12 and several other persons by taking money from them and the minor girl contracted serious deceases [Sic] like Hepatitis-B and AIDS from either the aforesaid accused or from some other persons and was treated at Kottayam, Manganam Menacherry Vydhyashala as an outpatient from 26.03.2008 and Kottayam Govt. Medical College, Hospital from 09.04.2008 till 26.04.2008 and from 29.04.2008 till 01.05.2008 and at Theny Medical College Hospital as an inpatient from 01.05.2008 to 05.05.2008 and she succumbed to her ailment and decease [Sic] on 05.05.2008 form Theny Medical College Hospital ...."
17. It would be apposite to refer to Section 32(1) of the Evidence Act which reads thus-
"32- Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 39 2024:KER:91505 without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) when it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." (Emphasis supplied).
A reading of the Section makes it clear the statements made by a dead person becomes relevant and admissible only when they relate to the cause of his/her death or to any circumstances of the transaction which resulted in his/her death and that too in cases in which the cause of that person's death comes into question. There is Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 40 2024:KER:91505 no other provision apart from this Section which makes a dead person's statement admissible in evidence.
18. Inderpal (Supra) was a case involving offences punishable under Sections 306 and 498A IPC. The appellant therein was acquitted of the offence punishable under Section 306 IPC but was convicted under Section 498A IPC. The question that arose was whether the statements attributed to the deceased could be used as evidence. There was a dying declaration recorded by the Executive Magistrate in which the deceased had stated that she sustained burns accidentally from a stove. There was no appeal by the State challenging the finding that death was not due to commission of suicide. It was held that unless the statement of a dead person falls within the purview of Section 32(1) of the Evidence Act, there is no other provision under which the same could be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal), the statement must be as to Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 41 2024:KER:91505 the cause of the death or as to any of the circumstance of the transactions which resulted in death, in cases in which the cause of death comes into question. It has been further held that when the question is whether an offence under Section 498A IPC has been committed, the question of death would never be an issue or that it does not arise for consideration and hence Section 32(1) would not be applicable.
18.1. The aforesaid principle has been followed in all the other decisions cited on behalf of the accused persons except in Surendran (Supra) in which a slight change has been brought in. The said case involved commission of offences punishable under Sections 304(b) and 498A IPC. The wife of the appellant therein due to continued harassment by the appellant was alleged to have committed suicide by hanging herself. A three judge Bench of the Apex court noticed that all the earlier decisions on the point had held that once the court acquitted an accused of the charge relating Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 42 2024:KER:91505 to the death of an individual, the evidence of the deceased would be inadmissible to prove the charge under Section 498A IPC simpliciter as then the case would no longer relate to the death of the deceased. The Apex court did not agree to the said proposition and held that the dictum in Gananath Patnaik v. State of Orissa, (2002) 2 SCC 619, Inderpal (Supra), Bhairon Singh (Supra) and Kantilal Martaji Pandor v. State of Gujarat, (2013) 8 SCC 781, wherein it had been held that evidence of the deceased was inadmissible under Section 32(1) to prove the charge under Section 498A IPC because the accused stood acquitted of the charge relating to the death of the deceased was wrong and hence the said judgments were overruled to the said extent. It has been held that in certain circumstances, the evidence of a deceased person with respect to cruelty would be admissible under Section 32(1) in a trial for a charge under Section 498A IPC provided certain conditions were satisfied/fulfilled. The first condition is that the cause of Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 43 2024:KER:91505 death must come into question. This would include, for instance, matters where along with the charge under Section 498A IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B IPC. As long as the cause of death comes into question, whether the charge relating to death is proved or not would be immaterial with respect to admissibility. The second condition is that the prosecution will have to prove that the evidence that is sought to be admitted with respect to Section 498A IPC must also relate to the circumstances of the transaction of death. How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case for which no specific straitjacket formula or rule can be given.
18.2. The dictum in Surendran (Supra) also makes it clear that the cause of death must come into question, or it must be a fact in issue, only then the provisions of Section 32(1) would apply. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 44 2024:KER:91505 Here as rightly pointed out by the defence team, the mention or reference of death of the victim girl in the court charge is not sufficient because the prosecution has no case that any of the accused persons suffering from AIDS knowingly or with intention had sexual intercourse with the victim because of which the victim was also inflicted with the said disease resulting in her death. As per the original Charge the offences alleged to have been committed were under Sections 120B, 366A, 372, 373, 376 and 506 Part I IPC. A1 to A6 have only been found guilty of the offences punishable under Sections 120B, 366A, 372 and 373 IPC. In none of the aforesaid offences, the question of cause of death of the victim girl arose for consideration unlike in Surendran (Supra) where the charge was under Section 304B and Section 498A IPC and where the cause of death of the deceased arose for consideration though the accused was acquitted for the offence punishable under Section 304B IPC. Therefore, the statements alleged to have been made by Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 45 2024:KER:91505 the victim to PW1 and PW6 are not admissible under Section 32(1) of the Evidence Act. Hence the finding of the trial court on the said aspect is incorrect and needs to be interfered with.
19. Now I will refer to the remaining evidence on record to see whether the trial court was justified in convicting the accused persons for the offences under Sections 366A, 372, 373 and Section 120B IPC. Firstly, I shall refer to the role of A1 and A4 and the evidence on record against them. As referred to earlier A1 Lizy Tomy is a close relative of PW1 and the victim. PW1 deposed that A1 Lizy Tomy used to take her daughter to the latter's residence. Initially it was during Saturdays and Sundays that the victim girl was being taken by A1. While the victim was studying in the 8 th standard, that is, from the year 2007 onwards she was regularly taken to the residence of A1. When her daughter used to return from the residence of A1, PW1 would find her sad and depressed. However, her daughter never disclosed anything to her. A1 used to Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 46 2024:KER:91505 take her daughter home under the pretext of looking after her granddaughter when the former went out for work. This practice of taking her daughter continued for some time. While so, one day A1 informed PW1 that her daughter had jaundice and so was undergoing ayurveda treatment. Subsequently, PW1 was informed that her daughter had been admitted in the Medical College Hospital, Kottayam. Her daughter remained in the hospital as an inpatient for about a month. During the time of the hospitalization, it was A1 who was always communicating with the doctors who were treating her daughter. One day when A1 went out, PW1 enquired about the physical condition of her daughter to the doctor. She was then told that her daughter had contracted AIDS. PW1 made enquiries with her daughter, who revealed the acts of A1 to A6 in subjecting her to prostitution. Thereafter, she took her daughter to Asha Kiran, an institution established to rehabilitate AIDS patients at Pampadi. During the stay there, her daughter's Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 47 2024:KER:91505 health condition worsened and so she was then taken to the Medical College Hospital, Kottayam. A1 thereafter never came to the hospital. While her daughter was being treated at the Medical College Hospital, Theni she died on 05/05/2008. On 26/05/2008 she gave Ext.P1 FIS to the Superintendent of Police, Kottayam based on which Ext.P128 FIR was registered. She also gave Ext.P2 164 statement before the JFCM-I, Changanassery. PW1 identified MO.1 and MO.2 series as the notebooks of her daughter. PW1 identified her daughter in M.O.5 and M.O.6 photographs. PW1 also deposed that the handwriting seen in MO.1(a), a page in MO.1 notebook is that of her daughter.
20. PW2, the Managing trustee of Santhwanam deposed that she knows PW1 who had come to her office in May 2008 along with her cousin PW20. PW1 told her about the circumstances leading to the victim's death. She reduced the compliant of PW1 into writing. She went along with PW1 when the complaint, that is, Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 48 2024:KER:91505 Ext.P1 was handed over to the police along with Ext.P3 covering letter.
20.1. PW3, Ambily deposed that she knows the victim as well as A1 Lizy Tomy and A4 Mini @ Thankamani. PW3 identified the victim in M.O.5 photograph. According to PW3, A1 Lizy used to address the victim as Divya. She also identified A1 and A4 before the Court. For taking a house in Kottayam, A4 Mini had pledged her gold chain. However, A4 was unable to redeem the pledge. A4 promised to return some money and invited PW3 to the former's house at Pala, Kottayam. PW3 Ambily went to Pala by bus and got off at the private bus stand. A4 Mini was waiting for her at the bus stand, from where she was taken to the house of the former. As it was late in the evening and as insisted by A4 Mini, PW3 stayed there for the night. The next day morning, sometime between 10:00 and 11:00 a.m. A1 Lizy Tomy along with a child and the victim girl came to the house. The victim was then taken to a Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 49 2024:KER:91505 room in the said house and A4 Mini permitted some men to enter the room in which the victim girl was sitting. The men had been invited by A4 Mini, to her residence. At this time A1 Lizy Tomy was at the courtyard of the house. PW3 Ambily was unable to identify the men who had been permitted to go inside the room in which the victim girl was kept. PW3 also deposed that on the said day, she had seen A4 Mini, paying an amount of ₹1,200/- to A1 Lizy Tomy, which was after the men had left. There was a quarrel between A1 Lizy Tomy and A4 Mini, regarding the amount that was given to A1. Thereafter, she along with A1 Lizy Tomy and the victim girl left the place in an autorickshaw. The victim girl gave her a phone number and requested her help to save the former from the clutches of the accused. PW3 gave the number to PW2, who then told her that she did not have the time to go after the victim girl. The 164 statement of PW3 has been marked as Ext.P4.
20.2. PW4, PW5 and PW7 are the neighbours of the victim. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 50 2024:KER:91505 They deposed that they had seen the victim girl in the company of A1 several times; that on few occasions they had seen A1 coming to the residence of PW1 and taking the victim along with her. PW8 and PW9 are neighbours of A1. They deposed that they had seen the victim girl in the house of A1 and that they had also seen the victim in school uniform going to her school from the house of A1.
20.3. PW6 Renjith, claimed to be in a relationship with the victim girl. According to him, he got acquainted with the victim girl at Poovarani church. He started maintaining contact with the victim over the telephone. He knows A1 Lizy Tomy, and he had seen the victim girl at the residence of A1. On one occasion he had met the victim at Vaikkom at which time she told him that she had been confined in a house at Changanassery. Later when PW6 tried to contact the victim girl over mobile, it was A1 who attended the call. A1 instructed him not to contact the victim thereafter. I have already referred to the rest of his testimony. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 51 2024:KER:91505 20.4. PW127, the investigating officer deposed that he had seized M.O1 to M.O.3 series books belonging to the victim girl from the residence of A1. According to him Exts.P178 and P179 are the search memo and the search list respectively prepared by him on the said occasion.
21. To prove the role of A4 in crime, the testimony of PW3, PW21, PW23, PW24 and PW25 is relied on. The testimony of PW3 relating to the role of A4 has already been referred to. PW21 deposed that he is an attestor to Ext.P20 mahazar prepared relating to a house at Kadalikkad. The said house belongs to his brother which was later sold to one Mary who had given the house for rent to A11. PW21 identified A4 as the person who was stated to be the wife of A11. PW21 deposed that he is not aware whether A4 is in fact the wife of A11.
21.1. PW23 is partly hostile to the prosecution case. PW23 deposed that he is an attestor to Ext.P22 mahazar prepared Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 52 2024:KER:91505 by the police relating to a house at Kadalikkad parambu. The said house belonged to one Kuriachan, who later sold it. The house was rented out. He has seen A4 in the locality (തങമണ എന ഫപര ള അവമര ഞ ന പര സരത കണ ണ ). He identified A4 in the box. In the cross-examination he deposed that he does not know whether A4 had resided in the house taken on rent, but he had seen her in the locality.
21.2. PW24 Mary Sebastian deposed that she had rented out her building situated at Kadalikkad purayidom as per Ext.P23 rental agreement to A11 Bino Augustine. Three weeks after the house was taken on rent, the tenant vacated the building, complaining about the presence of rodents. PW24 deposed that she is unaware as to the people residing in the house along with A11.
21.3. PW25 deposed that he knows PW24 Mary Sebastian, and that he had gone for work in her property, in which property there is a building which had been rented out to A11. PW25 further Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 53 2024:KER:91505 deposed that while A11 Bino Augustine was residing in the said house, he had occasion to go there about two to three times. Once when he went to the said house, he had seen a young girl and few women in the house, which included A1 and A4. He denied having seen the girl in M.O.5 photo in the house.
22. According to the learned Public Prosecutor the aforesaid evidence will show the complicity of A1 and A4 in the crime. The testimony of the aforesaid witnesses would show that the girl was in the custody of A1 and A4 and on receipt of money they had sold her to several men for sexual intercourse. On the other hand, it was submitted by the learned counsel for A4 that the testimony of PW3, a partially hostile witness, is not reliable as there are several inconsistencies and contradictions in her 164 statement as well her testimony before the court. In her 164 statement, PW3 stated that A4 was accompanied by A11 on a bike, when she had met A4 for the first time near the bus stand at Pala. However, she denied the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 54 2024:KER:91505 statement in the box. PW3 deposed that she does not remember whether she had stated to the magistrate that A4 had sent A12 Jose into a room in which the victim was present. Going by the prosecution case it was A1, A4 and A11 who had invited A12 to the house and the latter after giving money to the former had raped the victim. PW3 admitted that she had stated to the police that A12 had sexual intercourse with the victim in the house rented out by A4 and A11. But she failed to identify A11 or A12 in the box. The prosecution has never had a case that the victim was ever known as Divya. But according to PW3, A1 used to address the victim as Divya. PW3 admitted that she had not seen A4 receiving money from any men and that she does not know whether A1 and A4 had any financial transactions between them. It was also pointed out that the definite case of the prosecution is that A4 and A11 entered into a conspiracy with A1 to use the victim girl for prostitution and to achieve this object A11 along with A4 took the residential Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 55 2024:KER:91505 building of PW24 on rent. Thereafter A1 on 06/10/2007 took the victim girl to the rented house of A4 and A11 and all 3 of them invited A12 and after taking money for the purpose of illicit intercourse, provided the girl to A12 who by force and under threat raped the victim girl in the bedroom of the aforesaid house. The prosecution has no case that A11 had been put in possession of the house before 16/10/2007. No documents have been produced to establish that the house had been given for rent prior to 16/10/2007. The testimony of PW24, the landlord and one of the parties to Ext.P23 rent deed would show that the rent deed was executed on 16/10/2007 by A11 Bino Augustine. PW24 also deposed that she had not given the house for rent to anybody other than A11. There is no evidence to show that A4 had any connection whatsoever with the said house taken on rent by A11. PW21 admitted that apart from A11 he does not know the names or the details of the other inhabitants in the house. Further, in Ext.P20 Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 56 2024:KER:91505 mahazar as well as in Ext.P22 scene mahazar relating to the said house, namely, Kadalikkad house, Ramapuram, bears the house number VI/566. However, DW3, the officer-in-charge of Secretary, Ramapuram Panchayat deposed that there is no building bearing number VI/566 in the said panchayat. DW3 deposed that Ext.X7 is the certified copy of the Property tax Assessment register relating to the building bearing no. XII/608. The new number of the building is 8/278 and the owner is Aniyamma Cheriyan. It was also pointed out that in paragraph 163 of the impugned judgment there is a clear finding that there is no material to show the existence of any conspiracy between A11 and A4. When it is found that there was no material to show conspiracy between A4 and A11 regarding the incident at Kadalikkad house, Ramapuram, the same standard will have to be applied to A4 also as the prosecution case is that it was pursuant to the criminal conspiracy entered into by A4 and A11, the victim girl had been taken to the house taken on rent by A11. When Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 57 2024:KER:91505 A11 has been acquitted on the ground of lack of evidence, the principle of parity requires A4 also to be acquitted. In support of this argument, reference was made to the dictums in Topandas v. the State of Bombay, AIR 1956 SC 33; Javed Shaukat Ali Qureshi v. State of Gujarat, AIR 2023 SC 4444; Joginder Singh v. State of Punjab, 1994 SCC (Cri) 46 and Balla @ Farhat v. State of Madhya Pradesh, AIR 2023 SC 4566.
23. On going through the materials on record, I find the arguments advanced on behalf of A4 to be justified. As noticed earlier, the prosecution case is that A11 along with A1 Lizy Tomy and A4 Mini hatched a conspiracy to obtain custody/possession of the victim girl in building no.VI/566 and thereafter on 06/10/2007 subjected her to prostitution by selling the victim to men for sexual intercourse after taking money from them. Ext.P23 rent deed is dated 16/10/2007 and the testimony of PW24 Mary Sebastian, the owner of the building, shows that A11 obtained possession of the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 58 2024:KER:91505 building only after the execution of the rent deed. PW25 Shaji found A11 Bino Augustine in the company of A4 Mini and A1 Lizy in the said building. However, PW25 does not specify the date on which he had seen them in the said building. The trial court found that there was no evidence to show that on 06/10/2007 A11 was found in the company of any of the other accused persons and the victim girl; that is, Ext.P23 would show that A11 obtained possession of building no. XII/608 (old no. VI/566) only on 16/10/2007 and so doubt arises as to the involvement of A11 in the alleged conspiracy in either buying or selling the victim girl and therefore he was held entitled to the benefit of doubt and acquitted.
24. There is no evidence on record that A4 had independently taken the residential building of PW24 Mary Sebastian for rent. On the other hand, the evidence on record is that PW24 gave the house for rent to A11 and no others. The testimony of PW24 shows that A11 was put in possession after the execution of Ext.P23 rent deed Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 59 2024:KER:91505 dated 16/10/2007. The incident at the said house is alleged to have taken place on 06/10/2007 at which time there is no evidence to show that A11 was in possession of the house. The evidence on record to prove the case against A11 has been found unsatisfactory by the trial court. Hence the same benefit has to be given to A4 also. The remaining evidence relied on by the prosecution is also not sufficient to prove the offences for which A4 has been charged with and so I find that A4 is entitled to the benefit of doubt and to be acquitted. I will shortly refer to the complicity and the guilt of A1.
25. Now coming to the role of A6. The prosecution relies on the testimony of PWs.26, 65, 85, 87, 120 and 127 to prove the guilt of A6. PW85 Geejo when examined deposed that he knows PW86 Sabu and PW87 Sanal and that PW86 had introduced him to A6 Rakhi. He also knows the girl seen in M.O.5 photograph. He identified A6 before the court. Earlier he was conducting rent a car Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 60 2024:KER:91505 business. One day Rakhi (A6) telephoned and told him that she wanted to go to the church at Vettukkad and hence needed a car. At that time no car was available and hence he contacted PW87 Sanal. The next day he went to the house of PW87 Sanal, took the latter's car and along with the latter went near the G.G. Hospital as instructed by A6 Rakhi. When they reached there A6 Rakhi and the girl seen in M.O.5 photograph was waiting for him. They took A6 Rakhi and the girl to the church, Vettukkad. After they visited the church, A6 Rakhi wanted to have breakfast and hence all of them had breakfast at the Indian Coffee House. Then he received a call from his wife. He got out of the restaurant and was talking to his wife over the phone, when an Alto car arrived there, from which two persons got down. Then he saw Rakhi (A6) and the girl seen in MO.5 photograph get into the Alto car and leave.
25.1. PW87 Sanal Kumar supports the version of PW85. He identified A6 before the court. After A6 Rakhi and the girl had left Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 61 2024:KER:91505 in the Alto car, the next day A6 called him and asked for a car. He went and picked up A6 and the girl shown in MO.5 photograph from Karamana, Thiruvananthapuram. As requested by A6 he took them to the railway station and dropped them there. After some time A6 again called him saying that they had missed the train and hence wanted a place to stay for the night. He then took them to PW26 Saju, his friend's house. On the said day he also stayed in the house of PW26 with A6 and the girl. A6 and the girl shown in MO.5 photograph stayed in one room and he along with PW26 in another room. The next day he dropped A6 and the girl at the bus stand at Thampanoor from where they left for Kottayam by bus. A few days after he had met A6 Rakhi and the girl in MO.5 photograph, he had an occasion to have sexual intercourse with A6 Rakhi.
25.2. PW26 deposed that during 2008 he was staying with his family in a house at Vattiyoorkavu, Thiruvananthapuram. PW87, Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 62 2024:KER:91505 his friend, requested to arrange accommodation for two women. He along with PW87 Sanal, took the two women to his house in the car of the latter. PW87 and the women stayed in his house for a day. They left the next day. PW26 deposed that it was A6, and the girl seen in M.O.5 photograph who had stayed for a night in his house.
25.3. PW120, a technician in Mariya Marketing Corporation deposed that he had seen the girl in Mo.5 photograph. He had seen her on the first floor of a house situated near Marappalam, Pattom, Thiruvananthapuram. According to PW120, his phone number was given by one Preetha to A5, also known by the name Achayan. A5 Achayan contacted him on his mobile phone and invited him to come to the house situated near Marappalam, Pattom, Thiruvananthapuram, and said that a girl was available. Accordingly, he went to the house of A5, whom he identified before the court. He was shown the girl in MO.5 photograph. However, he refused to have any sexual contact with her. He admitted that he Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 63 2024:KER:91505 had gone to the house for sexual intercourse, and it was for the said purpose he had seen the girl also. A5 told him that apart from the victim there was another girl in the room. But he left the place stating that he did not have money with him. Another woman was shown to him. He identified the said woman as A6. The aforesaid incident happened in March 2008.
25.4. PW65 deposed that he is a contractor and that he knows A3. He is acquainted with Rakhi (A6) as well as Jomini (A2). He used to have telephonic conversations with Jyothish (A3). He got acquainted with A2 Jomini at Hobmob Hotel. He had sexual intercourse with Rakhi (A6) and Jomini (A2). ( ഞ ൻ ഫനരമത പറഞ Hobmob എന ഫ1 ല ൽ മവച ഞൻ ഫജ മ ന മയ പര ചയമ" ണ. ഞ ൻ അവമര ഉപഫയ ഗ ച ണ . ആറ പപത യ മ യ ത ലക ഫ1 ല ൽമവച ഞ ൻ ബല ഗ ക നത ൽ ഏർ" ണ).
25.5. The testimony of PW127, the investigating officer, Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 64 2024:KER:91505 would show that four calls were made on 11/03/2008 from the phone of A5 to A6. According to the Prosecutor, the victim was found in the custody of A5 on 11/03/2008 and in the custody of A6 on the subsequent two days under suspicious circumstances. In the light of the evidence tendered by PW65, PW87 and PW120, the burden is on A6 to rebut the presumption contained under Explanation I of Section 373 IPC, argued the prosecution.
25.6. It was submitted by the learned counsel for A6 that the testimony of the aforesaid witnesses would in no way prove the offences alleged against A6. PW26 and PW85 had met A6 and the victim only once. No test identification parade (TIP) was conducted. It was years thereafter they were examined before the court. They identified A6 and the victim for the first time after the alleged incident in the court. Therefore, the identification of A6 in the absence of TIP is doubtful. Further, there is also no evidence adduced to show that A6 had offered the victim to PW85 or PW87 Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 65 2024:KER:91505 for illicit intercourse. The testimony of PW120 to establish the connection between A5 and A6 was also referred to. According to PW120, when he visited the house of A5 in Thiruvananthapuram, A5 had taken him into a room and showed the girl seen in MO.5 and had offered her for prostitution. But PW120 refused to have any relation with the victim girl. Thereafter PW120 was taken by A5 into another room and offered A6. It was pointed out that PW120 had never stated so in his statement to the police. When he was asked whether he had stated to the police that A5 had shown A6 to him on the said day, answered that he does not remember. Thus, the witness was deposing for the first time in court after six years that he had seen A6 in the flat of A5. PW65 was examined to prove that he had intercourse with A6 at Tilak Hotel, Thiruvalla. But PW65 had never stated so to the police at any point in time. Even going by the prosecution case, A6 has no connection with A1 to A4 and that she had played no role in the incidents that transpired Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 66 2024:KER:91505 in Thiruvalla or Kottayam. PW37 to PW39, who were examined to prove the incidents at Palarivattom, turned hostile. None of the said witnesses stated that they had seen A6 or the victim. The only witnesses who stated about A6 are PWs.26, 65, 85, 87 and 120. However, none of the said witnesses stated that A6 had sold the victim for prostitution. Therefore, no intention can be attributed to A6. By virtue of explanation 1 to Section 373 IPC, a prostitute or a person keeping or managing a brothel, who buys, hires, or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. The prosecution examined PW65 and PW120 to show that A6 is a prostitute. However, neither of the witnesses have stated so in their statements to the police. PW87 deposed that he had intercourse with A6 but that was several days after he met A6 in the company of the victim. PW87 also Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 67 2024:KER:91505 deposed that while A6 was with the victim, A6 never gave any signal or indication that she was interested in any sexual activities with him. Therefore, the incident of sexual intercourse between A6 and PW87 many days after A6 was seen in the company of the victim, can only be stated to be a consensual act between two adults. There is no evidence that A6 is a prostitute. Through the testimony PW87, A6 rebutted the presumption cast on her and therefore, no intention can be presumed against A6, goes the argument.
25.7. Regarding the mobile phones of A6, the prosecution case is that A6 had used two phone numbers, that is, 9388066248 relating to which Ext.P153(a) is the customer application. The other number is 9349319391 and the customer application is Ext.154. The first number is in the name of one Jomon, who was never examined as a witness by the prosecution. None of the witnesses have stated that the said number was used by A6. Prosecution has Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 68 2024:KER:91505 sought to prove the second number through PW119. However, his testimony would show that he has not produced the original of the said document and therefore, Ext.P154 is inadmissible in evidence. There is no certification contemplated under Section 65 B of the Indian Evidence Act, 1872, and hence the same cannot be relied on. Moreover, none of the prosecution witnesses have stated that mobile no.9349319391 had been used by A6. Hence the argument of the learned counsel for A6 is that as there is no satisfactory evidence to prove the offences charged against A6, she is entitled to be acquitted.
26. Section 366A IPC deals with the offence of procuration of a minor girl. It says that whoever by means whatsoever, induces any minor girl under the age of 18 years to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse, is liable to be punished. Section 372 deals with selling minors for the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 69 2024:KER:91505 purpose of prostitution. As per the Section, whoever sells, lets to hire or otherwise disposes of any person under the age of 18 years with intent that such person will be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person would be employed or used for any such purpose is liable to be punished. Section 373 IPC deals with the offence of buying a minor for the purpose of prostitution. The Section says that whoever buys, hires or otherwise obtains possession of any person under the age of 18 years with intent that such person will be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person would be employed or used for any such purpose is liable to be punished. Explanation-I says that any prostitute or any person keeping or managing a brothel, who buys, hires, or otherwise obtains Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 70 2024:KER:91505 possession of a female under the age of 18 years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.
26.1. The aforesaid evidence does not show that A6 entered into any conspiracy with A1 to A4 or A5. Going by the testimony of PW120, it was A5 who had offered the services of the victim and A6. The testimony of PWs.26, 65, 85 and 87 do not show that A6 had sold, let to hire or otherwise disposed of or had bought, hired or otherwise obtained possession the victim with intent that the latter shall be employed or used for the purpose of prostitution or illicit intercourse with any person as contemplated under Sections 372 or 373 IPC. Explanation-I to Section 373 will come into play only if the prosecution succeeds in proving that A6, a prostitute had bought, hired or otherwise obtained possession of a female under the age of 18 years. From the testimony of the aforesaid witnesses, Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 71 2024:KER:91505 at best what can be seen is that the victim was found in the company of A6. But that alone is not sufficient because going by the explanation, the presumption contained therein would arise only if A6 is proved to be a prostitute. That evidence is lacking and hence in the circumstances, it can only be held that A6 is also entitled to the benefit of doubt.
27. Finally, coming to the role of A2, A3, A5 as well as A1 in the crime. PW41 a head load worker when shown MO.5 photograph deposed that he had an occasion to meet the girl seen in the photo at the house of A2 Jomini in Thiruvalla. A2 Jomini was staying in the house along with A3, her husband. He had seen the couple several times. PW41 identified A2 and A3 before the Court. According to PW41, he had seen the girl in MO.5 photograph on 13/10/2007, on which day he had not seen any other persons apart from A2 and A3. He was introduced to A2 Jomini by one Jessy and her husband Sura. A3 had taken him 2 to 3 times in the car of the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 72 2024:KER:91505 former to his house in Thiruvalla. He had gone there for having sexual intercourse with another woman who used to come to the said house (ഞ ൻ അവ മ ഫവമറ ര നത ന ഫവണ ഫപ യത യ ര ന . അവ മ ഫവമറ മപണ വര മ യ ര ന . ആ മപണ മ യ നത ന ഫപ യത യ ര ന ) and it was then he had seen the girl in M.O.5 photograph in the said house. PW41 during his cross-examination was asked the reason why he was able to recollect the girl in M.O.5 photo to which he answered that it was because the girl due to his age refused to have sex with him.
(ന ങൾ MO.5 ൽ കണ ക മയ ഓർക വ ൻ ക രണ എന ണ ? ആ ക എമ< പപ യ ക= തൽ ക രണ ഞ ന മ യ ബല ഗ ക ഫവഴ?ക തയ റ യ ല . അത ണ ആ ക മയ ഞ ൻ പപഫത%കമ യ ഓർക ൻ ക രണ ).
27.1. PW66 Dinu, a medical representative, deposed that he met A2 Jomini for the first time at St.Thomas Hospital, Changanassery, where he had gone to meet some doctors. A2 Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 73 2024:KER:91505 Jomini took his number and later called him about twice or thrice. A2 Jomini asked him whether he was interested in women and if so, she could arrange girls for him. This incident happened in September 2007. On the first Saturday of the next month, that is, October after getting his salary, he along with his friends, that is, CW53, PW67 and CW55 went to Thiruvalla on the invitation of A2 Jomini. A3 Jyothish was waiting for them in a car at the K.S.R.T.C. bus stand, Thiruvalla. They were taken to the house of A2 and A3, where they saw A2 Jomini and an infant aged about 2 to 3 years old. There were four girls inside a room in the house. A2 and A3 demanded an amount of ₹1,200/- each for the girls. All four of them pooled money and gave an amount of ₹4,800/- to A2 Jomini. PW66 was offered a girl who told him that she was only 14 years old and that her house is near Pala. When PW66 heard that the girl was only aged 14 years, he became worried. The girl also told him that it was under the compulsion of A2 Jomini she had agreed to the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 74 2024:KER:91505 sexual relation. PW66 identified the girl in MO.5 photograph as the girl who had been offered to him by A2 and A3. When PW66 realized that the girl was only 14 years, he and his friends demanded their money back, but A2 and A3 refused to accede to their demand. They then left the house. Thereafter, A2 Jomini contacted him and his friend PW67 Sreejesh, a few times and invited them over to her house. PW66 also deposed that he had asked the details of the girl because she was looking scared/terrified.
27.2. PW67 supports the version of PW66. He also identified the girl in M.O.5. as the girl seen in the house of A2 and A3 on the said day.
27.3. PW121, a medical representative by profession deposed that from middle of the year 2006 onwards he is acquainted with A2 Jomini and A3 Jyothish, her husband. He met A3 Jyothish at the district hospital, Kottayam. He had gone to the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 75 2024:KER:91505 house of A2 Jomini and A3 Jyothish. He had occasion to talk to them over the phone several times as his wife was working as financial advisor, MetLife Insurance. It was for the purpose of canvasing a policy that he had spoken to A3 over the telephone several times. On 11/03/2008, while he was on his way to work, he met A3 Jyothish on the way who gestured him to stop. He stopped his vehicle and asked A3 Jyothish regarding the latter's presence there. A3 pointed to a girl and asked whether he was interested and if so, the former would make necessary arrangements for the same. PW121 identified the girl he had seen the said day in the company of A2 and A3 as the girl seen in M.O.5 photograph. A3 Jyothish had told him that the girl was being taken to Thiruvananthapuram and that if he had interest in her, he would make arrangements when she was brought back. At that time A1 Lizy Tomy was also there in the company of A2 and A3. PW121 deposed that soon thereafter A5 Satheesh Kumar joined the other accused persons. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 76 2024:KER:91505 Then he saw A2 Jomini, A3 Jyothish and A5 Satheesh Kumar having a private conversation among themselves. He saw A5 Satheesh Kumar paying some money to A2 Jomini who transferred a portion of the amount to A1 Lizy Tomy. Then he saw A5 Satheesh Kumar going towards the railway station along with the victim girl. Ext.P77 is the 164-statement given by PW121. PW121 also identified A1 to A3 and A5 in the box.
27.4. PW123, a mason deposed that he knows A5 (who is now dead), who had come to the place where he was working. A5 approached him saying that he wanted to construct a house. His mobile number was taken by A5. Thereafter they used to maintain contact over the phone. A5 on the promise that he would arrange sand, took an advance amount of ₹3,000/- from him. However, the sand as promised was not supplied to him. When he demanded the money back, A5 returned an amount of ₹1,000/-. PW123 identified the girl in MO.5 photograph. According to him, he had seen the girl Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 77 2024:KER:91505 in a house situated near the Cosmo Hospital in Thiruvananthapuram. He had gone to the house of A5 to get back his balance money. A5 told him that the house had been taken on rent. When he went to the house of A5, he had seen the girl in MO.5 photograph. A5 had shown the victim girl to him during February/March 2008. A5 asked him whether he was interested in the victim girl to which he answered in the negative.
27.5. Ext.P162 is the call record details of A2. As per Ext.P162, the first call seen made from the mobile phone of PW67 to A2 was on 15/10/2007. When this was brought to the notice of PW67 he answered that he had nothing to say on the point. On 24/10/2007 it was seen that five calls had been made by PW67 to A2. To this piece of evidence also PW67 answered that he does not recollect. Thereafter several calls were made by the witness to A2 which is revealed from pages 97, 99, 159, 160 and 183 of Ext.P162. Page 236 of Ext.P162 would show that the witness had Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 78 2024:KER:91505 called A2 twice on 15/05/2008. The testimony of PW127 would show that there were calls between A2 and A1 on 10/03/2008; on 11/03/2008 four times between A5 and A1 and on 11/03/2008 six times between A2 and A5. The tower location of A2 on 11/03/2008 at 10:01:39 a.m. was at Collectorate, Kottayam and the tower location of A5 at 10:04:22 a.m. was at Mangalam Junction, Kottayam. The tower location of the mobile phone connections of the accused persons would also probabilise the prosecution version that PW121 had occasion to witness the presence of A2 and A5 at RMS, Kottayam. The victim who was in custody of A1 and A2 was given in custody of A5 on 11/03/2008 and was found in the custody of A6 on 12/03/2008 and 13/03/2008. Therefore, pointing to the aforesaid evidence, it was pointed out by the learned Public Prosecutor that the complicity of A1 to A3 and A5 in the crime is quite clear and that the call record details would show that phone calls were also made by the witnesses to the accused persons which Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 79 2024:KER:91505 would substantiate the prosecution case of conspiracy also.
27.6. Per contra, it was submitted by the learned counsel for A2 that going by the version of PW66 and PW67, they had gone to the house of A2 and A3 on 06/10/2007. This visit is alleged to have been made pursuant to the telephonic conversations they had with A2. To establish the same, the prosecution relies on Ext.P162 which would show that the first call made by PW67 to A2 was on 15/10/2007. There is no material to show that any call was made by PW66 to A2 before the said day. Therefore, the argument is that the incident that is alleged to have taken place on 06/10/2007 involving the victim and PW66 and his friends at the house of A2 and A3 is false. This was pointed out as a major defect in the prosecution case. Referring to the testimony of PW121, the argument is that he is a chance witness. The investigating officer does not explain how he identified PW121. Relying on the dictum in Suresh Babu v. State of Kerala, 2023 (1) KLD 349, it was Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 80 2024:KER:91505 submitted that the evidence of a chance witness requires a very cautious and close scrutiny, and a chance witness must adequately explain his presence at the place of occurrence. Here, the presence of PW121 at the place of the incident is doubtful and hence should be discarded, goes the argument.
27.7. The learned counsel for A1 referring to the testimony of PW1 as well as Ext.P1 FIS and her 164-statement submitted that all the three statements are contradictory and inconsistent and hence PW1 is not a reliable witness.
27.8. An argument was also advanced on behalf of the accused persons that PW6 is only a planted witness. If he was the lover of the victim as claimed by him, he would not have remained passive without taking any steps to save the victim. It was highly improbable for him not to have reported the matter to the authorities concerned or taken steps to save the girl.
28. It is true that the conduct of PW6 seems reprehensible. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 81 2024:KER:91505 But merely because he did not report the matter to the authorities concerned or take any steps to save the girl, can he be disbelieved or his entire evidence discarded on the said ground alone? The answer can only be in the negative. PW6 does not seem to be a planted witness as canvassed by the accused persons. MO.1 is a notebook of the victim which according to the prosecution was recovered by PW127 from the house of A1. PW1 identified the handwriting of her daughter on the second page in MO.1 which has been marked as MO.1(a). This page makes a reference to one Renjith, who according to the prosecution is PW6 in this case. The seizure of this book by PW127 has not been discredited or disproved. This would show that the victim herself has referred to PW6 in her notebook and therefore the argument that PW6 is a planted witness does not appear to be correct.
28.1. Be that as it may, the question is to what extent the testimony of PW6 can be relied on? PW6 has not witnessed any Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 82 2024:KER:91505 incident directly. He only deposed that he was told by the victim of the exploitation by A1 to A6 and some other men. I have already held that the statements alleged to have been made by victim to PW1 and PW6 are inadmissible under Section 32(1) of the Evidence Act and hence their testimony regarding the exploitation of the victim by A1 to A6 cannot be taken into consideration or relied on. But the testimony of PW1 corroborated by the testimony of PWs.4, 5 and 7 will show that A1 used to take the victim to her house and hence it is proved that A1 did obtain possession/custody of the victim girl during the relevant time. The testimony of PW6 to the limited extent that he has seen the victim in the house of A1 can be considered. It is true that Ext.P162 shows that the first call was made by PW67 to A2 on 15/10/2007. However, a whole reading of the testimony of PW67 would show that he was in contact with A2 Jomini and A3 Jyothish even before 06/10/2007. He got acquainted with A2 and A3 sometime in September 2007. Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 83 2024:KER:91505 PW66 also deposed that A2 and A3 had called him as well his friend PW67 several times before and after the incident. In the cross examination quite a pertinent question was put to PW66 which reads - ".....ന ങൾ ആ മപൺക മയ പണ മക ത ലഭ%മ ക യ ഫല? ഈ മപൺക മയ ലഭ%മ ക യ ല . പമDഞങൾ ന ല ഫപര ഒന ച പണ മക ത . നല മപൺക കമF ക നണ പണ മക തത ......" This roughly translated reads- "Did you not give money and avail the services of the girl? No. But all four of us together gave money to get the services of four girls". This by itself would show that the services of the victim girl was indeed offered to the witness. PW66 and PW67 are seen extensively cross examined. But nothing was brought out to discredit their testimony. They have given 164 statements also. It was submitted on behalf of the accused persons that the witnesses were threatened by the police that they would be arrayed as accused in the crime and hence the reason why they have falsely supported the Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 84 2024:KER:91505 prosecution case. The police to ensure that the witnesses did not resile from their statements to the police, got their 164 statements also recorded to tie them down to their statements. PW66 and PW67 denied any such threat by the police and stood by their statements. There is no reason to disbelieve them, because no materials have been brought on record to show as to why they should depose falsehood against the accused persons.
28.2. Coming to the testimony of PW121, who the defence describes as a chance witness. There is nothing suspicious in the presence of PW121 at the place where he is stated to have seen A1 to A3 and A5 along with the victim. The place is stated to be a public place near the RMS Office, Kottayam. PW121 as noticed earlier deposed that on the said day on his way to work, he was proceeding from his house at Pampady towards the Medical College direction, passing the railway station. On the way, he met A1 to A3, A5 and the victim. This testimony of PW121 has not Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 85 2024:KER:91505 been challenged or discredited. PW121 was only questioned regarding his prior acquaintance with A1 and whether he had heard the conversation that took place among the accused persons on the said day. Therefore, there is nothing suspicious in the presence of PW121 at the spot on the relevant day. Moreover, his version that he has prior acquaintance with A2 and A3 and that he had gone to their house as well as spoken to them over telephone several times has not been challenged or discredited. Therefore, it was quite natural for PW121 to stop his bike when A3 gestured him to stop. It was then A3 was asked regarding his presence at the place. Hence, I find no reasons to disbelieve or discard the testimony of PW121.
28.3. The call records relied on by the prosecution prove that A1 to A3 and A5 were in contact with each other. This coupled with the testimony of the other witnesses would show that they were found in custody/possession of the victim girl who was Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 86 2024:KER:91505 offered for illicit intercourse. It was A1 who had initially procured the presence of the victim girl, a minor, from the custody of PW1 and thereafter entered into conspiracies with A2, A3 and A5 and offered the victim for illicit intercourse with other men. Therefore, the ingredients of the offences punishable under Sections 366A, 372, 373 read with Section 120B IPC stands proved and hence the trial court was right in convicting them of the said offences.
In the result, the conviction and sentence of A1 to A3 by the trial court is confirmed and Crl.Appeal No.671/2016 and Crl.Appeal No.540/2016 are dismissed. A5 was reported no more. Hence, Crl.Appeal No.485/2016 of A5 against the substantive sentence of imprisonment stands abated. The sentence of fine is confirmed. Crl.Appeal No.566/2016 and Crl.Appeal No.487/2016 are allowed and the impugned judgment by which A4 and A6 have been convicted and sentenced is set aside. A4 and A6 are acquitted under Section 235(1) Cr.P.C. of the offences punishable under Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 87 2024:KER:91505 Sections 366A, 372, 373 read with Section 120B IPC. They are set at liberty and their bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/ak/jms Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 88 2024:KER:91505 Appendix of Crl.A.No.485 of 2016 APPELLANT'S ANNEXURES :
ANNEXURE A1 : TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED FROM THE MEDICAL BOARD A.A.RAHIM MEMORIAL DISTRICT HOSPITAL, KOLLAM, DATED 26.9.2014 TO THE PETITIONER.
ANNEXURE A2 : TRUE COPY OF THE BLIND CARD FOR CONCESSION CERTIFICATE ISSUED BY THE RAILWAY TO THE PETITIONER.
ANNEXURE A3 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE CONSULTANT, NEPHROLOGIST AND TRANSPLANT PHYSICIAN DATED 23.5.2016 TO THE PETITIONER.