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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 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.

Criminal Appeal Nos.485, 487, 540, 566 and 671 of 2016 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.

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.

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 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 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.