Chandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** **CRL.A.No.1429 OF 2018** **IN SC 305/2016 OF THE COURT OF THE 1ST ADDITIONAL SESSION COURT, PALAKKAD** **CRIME NO.64/2016 OF Kottayi Police Station , Palakkad** ## **APPELLANT/ACCUSED:** **CHANDRAN, AGED 61 YEARS S/O.LATE NAGAN, PANANKAVU, KOTTAYI, PALAKKAD-678 572.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.THOMAS J.ANAKKALLUNKAL SRI.VIPIN NARAYAN SRI.AJEESH K.SASI SRI.V.C.SARATH SMT.POOJA PANKAJ SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** ## **OTHER PRESENT:** ## **SRI.RAMESH CHAND PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Criminal Appeal No. 1429 of 2018 ..2.. ## **P.B.SURESH KUMAR, J.** **------------------------------------Criminal Appeal No.1429 of 2018 -------------------------------------Dated this the 25[th] day of August, 2020** ## **JUDGMENT** The sole accused in S.C. No.305 of 2016 on the files of the First Additional Sessions Court, Palakkad is the appellant in the appeal. He challenges in this appeal, his conviction and sentence in the said case. 2. The case of the prosecution is that on 20.01.2016, at about 9.00 a.m., the accused along with a Juvenile in Conflict with Law (the JCL) committed gang rape on the victim girl aged 13 years, in the cattle shed attached to the house bearing No.XI/159 situated at Panankavu, and thereby committed the offences punishable under Sections 376D and 376(2)(i) of the Indian Penal Code (the IPC) and Section 5(g) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). 3. On the accused pleading not guilty of the Criminal Appeal No. 1429 of 2018 **==> picture [20 x 9] intentionally omitted <==** charges levelled against him, the prosecution examined 19 witnesses as PW1 to PW19 and proved through them 19 documents as Exts.P1 to P19. The witnesses examined on the side of the prosecution have also identified MO1 and MO2 series material objects. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence, and he then examined two witnesses as DW1 and DW2 on his side. 4. Among the witnesses examined, PW1 is the victim girl, PW2 is the mother of the victim girl, PW3 is a person residing near the scene of occurrence, PW4 is a relative of the victim girl, PW8 is the Women Civil Police Officer who recorded the statement of the victim girl, PW11 is the doctor who examined the victim girl on 22.01.2016, PW14 is the Headmistress of the school where the victim girl was pursuing her studies, PW16 is the police official who registered the First ..4.. Criminal Appeal No. 1429 of 2018 Information Report and PW18 is the police officer who conducted part of the investigation. Among the documents proved, Ext.P1 is the First Information Statement given by the victim girl, Ext.P6 is the report of medical examination issued by PW11 and Ext.P10 is the extract of the school admission register of the victim girl. 5. On an appraisal of the materials on record, the court below found the accused guilty of the offences punishable under Sections 376D and 376(2)(i) of the IPC and Section 5(g) read with Section 6 of the POCSO Act, convicted him for the said offences and sentenced him to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.2,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years, for the offence punishable under Section 376D of the IPC. Separate sentences were not awarded for the offences under Section 376(2)(i) of the IPC and Section 5(g) read with Section 6 of the POCSO Act. As noted, the accused is aggrieved by the conviction and sentence imposed on him by the court below. 6. Heard the learned counsel for the accused as also the learned Public Prosecutor. Criminal Appeal No. 1429 of 2018 ..5.. 7. The learned counsel for the accused, at the outset, pointed out that as regards the core aspect of the crime namely the sexual assault, the only evidence available is the evidence of the victim girl. It was the submission of the learned counsel that the evidence of the victim girl is not credible and trustworthy so as to rest the conviction of the accused solely based on the same. The learned counsel pointed out various circumstances to demonstrate his case that PW1 is not a sterling witness at all. I am not referring to the various circumstances pointed out by the learned counsel for the present, for I am dealing with the same elaborately later. It was the submission of the learned counsel that this being a case arising also under the POCSO Act, it was incumbent upon the prosecution to prove the fact that the victim is a child and that the prosecution has not satisfactorily proved the said fact. Placing reliance on the decision of the Apex Court in **Kali Ram** v. **State of Himachal Pradesh,** (1973)2 SCC 808, the learned counsel contended that Ext.P10 extract of the school admission register relied on by the prosecution to prove the age of the victim girl is a document hit by Section 162(1) of the Code. It was also argued by the ..6.. Criminal Appeal No. 1429 of 2018 learned counsel that at any rate, to convict a person for the offence of gang rape provided under Section 376D of the IPC, it was incumbent upon the prosecution to establish the common intention the accused shared with the JCL, and there is nothing on record to indicate that they shared any common intention at all to commit rape on the victim girl. The submission of the learned counsel was that if the court finds that the prosecution has not established the common intention, the accused can be convicted only for the penetrative sexual assault allegedly committed by him. 8. The learned Public Prosecutor conceded that as regards the core aspect of the crime namely the sexual assault, the only evidence available in the case is the evidence of the victim girl. He, however, contended that the evidence tendered by the victim girl is natural and consistent with the evidence given by the other witnesses examined on the side of the prosecution namely, PW2, PW3, PW4 and PW11. It was also argued by the learned Public Prosecutor that nothing was brought out in the cross examination of the victim girl to discredit her version, and the evidence tendered by the victim girl being of a sterling quality, the court below cannot be found Criminal Appeal No. 1429 of 2018 ..7.. fault with for having convicted the accused based on her evidence. With reference to the submission made by the learned counsel for the appellant that the prosecution has not produced any evidence to prove the previous acquaintance of the JCL aged 16 years with the accused aged 58 years for them to share common intention to commit gang rape on the victim girl, it was argued by the learned Public Prosecutor that offences of this nature have now become the order of the day and merely for the reason that there is no evidence to prove that they had previous acquaintance, the court need not be suspicious about the occurrence. 9. Having heard the learned counsel for the parties on either side and having perused the materials on record, the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Sections 376D and 376(2)(i) of the IPC and Section 5(g) read with Section 6 of the POCSO Act. 10. Before I deal with the contentions raised by the learned counsel for the parties on either side, it is necessary to refer to a few facts which are not disputed by the parties, and the evidence let in by the prosecution to prove the Criminal Appeal No. 1429 of 2018 **==> picture [20 x 9] intentionally omitted <==** alleged act of sexual assault attributed against the accused. 11. The victim girl was studying in VII standard during the relevant period in Kottayi Higher Secondary School. The JCL who is a neighbour of the victim girl was also studying in the same school at the relevant time. The scene of occurrence, going by the evidence let in by the prosecution, is a place called Akkaraparambuu. Akkaraparambu is a an isolated place in the vicinity of the residences of the victim girl and the JCL and it is a place lying below the road level and covered by thick vegetation. PW3 is a lady aged 60 years residing near Akkaraparambu. The victim girl need not have to go to Akkaraparambu for going to her school, for she has a road directly to the school from her house. 12. The victim girl as PW1 has deposed that she used to go to school normally through a different route; that the JCL who is her neighbour wanted her to come near a Shiva Temple in the vicinity on the relevant day; that she accordingly went to that place on her way to the school by about 8.30 in the morning; that the JCL who was waiting there for her then asked her to come to Akkaraparambu and that when she reached Akkaraparambu, the JCL asked her to wait. PW1 ..9.. Criminal Appeal No. 1429 of 2018 deposed that the JCL then told her that he wants to call somebody and thereafter called the accused to that place. She deposed that the JCL then showed the accused some obscene pictures and shared with him the idea of doing the acts shown in the obscene pictures with the victim girl. PW1 deposed that the JCL then undressed her, kissed at her neck, placed his genital organ into her vagina and kept the same at her vagina for some time. She deposed that after sometime, the accused also did the same thing with her. PW1 deposed that they have, thereupon, threatened to do away with her, if she discloses the incident to anybody. She deposed that thereafter, she wore her uniform and went to the school and on her way, she saw PW3. PW1 deposed that PW3 then questioned her as to the reason for coming to that area and she replied that she came there to see her friend. She deposed that since PW3 was not satisfied with her answer and insisted her to say the truth, she disclosed to her the sexual assault to which she was subjected to by the JCL and the accused, and thereafter, she went to the school. PW1 deposed that when she came back from the school on that day, PW4 questioned her as to the purpose for which she went to Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** Akkaraparambu and she disclosed the sexual assault to which she was subjected to, to her also. PW1 deposed that from PW4, her mother came to know of the incident and accordingly, her father lodged the complaint to the police. To a specific question put by the Public Prosecutor as to the number of assaults to which she was subjected to, she answered that the accused and the JCL have assaulted her twice. She also deposed that the accused and the JCL have assaulted her once at the place Akkaraparambu and the other near a cattle shed in that area. 13. PW2, the mother of the victim girl has only deposed that the victim girl has told her about the occurrence when questioned. PW3 deposed that on the relevant day, she found the victim girl in uniform in the road near Akkaraparambu along with a boy. She deposed that initially, they were moving to the paddy field from that road, and thereafter, about half an hour, she saw them returning. PW3 deposed that when she questioned PW1, she did not disclose the reason for coming to that area initially. PW3 deposed that later, PW1 told her that she has come to the area to see a friend. She deposed that though she scolded PW1 and Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** informed her that she will not let her go unless she tells the truth, PW1 did not disclose anything to her. PW4 deposed that one lady named Kuncha told her that PW1 and the JCL were found together, and requested her to inform the parents of PW1 about the same. PW4 deposed that when she questioned the victim girl about the same, she replied that she went along with the JCL for fishing. PW4 also deposed that after sometime, PW1 told her that she was taken to that place by the JCL and the accused and she did not say anything further. PW11, the doctor who examined the victim girl on 22.01.2016 deposed that PW1 was brought before her for examination with the history “Vinod, Chandran എന�വർ 20.01.2016 ര�വ�ല� school ൽ പ��കന വഴ� ഒര ല��ട�യ�ൽ വച� �റയ�ൽ ബ�മ�യ� ക�ടത� ല��ഗ�കമ�യ� ��ഡ�പ�ക�ൻ ശമ�ച��ൽ വച�. 3 മ�സ� മൻ�� Vinod വ�ട�ന� അടത� വച� ല��ഗ�കമ�യ� ��ഡ�പ�ക�ൻ ശമ�ച.” PW11 deposed that on examination, her hymen was found torn. 14. As rightly pointed out by the learned counsel for the appellant, as regards the core aspect of the crime namely the sexual assault, the only evidence available is the evidence of the victim girl. As pointed out by the learned Public Prosecutor, it is now trite that in a case of this nature, if ..12.. Criminal Appeal No. 1429 of 2018 the evidence tendered by the victim girl is of a sterling quality, the conviction of the accused can be rested solely based on the same. In **Rai Sandeep v. State (NCT of Delhi)** , (2012) 8 SCC 21, the Apex Court had occasion to consider the question as to who can be said to be a sterling witness. Paragraph 22 of the judgment of the Apex Court in the said case reads thus: “In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such Criminal Appeal No. 1429 of 2018 ..13.. similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” It is evident from the aforesaid decision that the evidence of a sterling witness is one that appears to the Court to be natural and consistent with the case of the prosecution qua the accused and which under no circumstances give room for any doubt as to the factum of the occurrence and which is consistent with other evidence let in by the prosecution including expert opinions. It is also evident from the said case that such evidence should also satisfy the test applied in cases involving circumstantial evidence. The moot question therefore, is as to whether the de facto complainant can be said to be a sterling witness. 15. As noted, the JCL is the immediate neighbour of the victim girl. Both of them were studying in the same school. The victim girl has stated in her evidence that when the JCL required her to come near a temple on the relevant ..14.. Criminal Appeal No. 1429 of 2018 day, she went to that place by about 8.30 in the morning under the pretext of going to the school. It was also stated by the victim girl that when the JCL met her near the temple and required her to come to Akkaraparambu, she followed him and went to Akkaraparambu. The evidence tendered by the victim girl would indicate that after the alleged gang rape, she went to the school as usual. The victim girl does not admit in her evidence any sort of relationship with the JCL other than friendship. It is very difficult to believe that a girl in the age group of the victim girl would go along with a boy wherever he wants her to go, on a working day when she was supposed to be there in the school at the relevant time. 16. Be that as it may. The victim girl has stated in her evidence that on her way to the school from Akkaraparambu , she met PW3. She admits that PW3 who had prior acquaintance with her, questioned her as to the reason for coming to that area and she stated to her falsely that she came to that area to see her friend. PW1 admits that PW3 was not convinced by her answer and PW3 told her that she will not let her go unless she tells her the truth. PW1 deposed that she then informed PW3 about the sexual assault. PW3, an Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** elderly lady aged about 60 years deposed that she knows the victim girl and on the relevant day, when she saw the victim girl going to Akkaraparambu along with a boy and coming back after sometime along with him, she questioned them and the victim girl though did not say anything initially, later she informed her that she came there to see her friend. PW3 also deposed that she then told the victim girl that since she does not have any friend in that locality, she would certainly inform her parents that she has seen her in that locality. PW3 deposed that she did not ask anything further to the victim girl. In cross-examination, PW3 admitted that she informed the matter to a lady named Kuncha for informing the matter in turn to the parents of the victim girl. A reading of the evidence of PW3 would indicate that she is a responsible lady who promptly made arrangements for informing the parents of the victim girl the unwanted presence of the victim girl with a boy in a remote place far away from her school at a time when she was expected to be there in the school. While PW3 has stated that the victim girl has not stated anything about the sexual assault to her, the version of the victim girl was that she disclosed the sexual assault then and there to PW3. Going by Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** the admitted case spoken to by the victim girl, the boy who was found along with the victim girl as stated by PW3 is the JCL. PW3 who has seen the victim girl going with the JCL to Akkaraprambu and coming back from Akkaraparambu after half an hour did not see the accused either while going to Akkaraparambu or returning back from Akkaraparambu. Further, there is absolutely no reason to disbelieve the evidence of PW3, whose evidence the prosecution relies on to prove the guilt of the accused. If the version of PW3 is believed, no doubt, the victim girl was not telling the truth, for her stand that she disclosed about the sexual assault to PW3 is belied by PW3. 17. The victim girl has admitted in crossexamination that she usually goes to school along with her other friends at about 8.30 a.m. and comes back with her friends at about 4.30. She also admitted that it is not necessary for her to go to Shiva Temple for the purpose of going to the school and that she had gone near the Shiva Temple as required by the JCL on the previous day. The victim girl stated in the chief examination that at the Shiva Temple, the JCL wanted her to come to akkaraparambu and she Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** accordingly went to that place. In cross-examination, she admitted that both of them were going together to Akkaraparambu from Shiva temple. Though the version of the victim girl in chief examination was that she was waiting near the Shiva Temple to meet the JCL, she admitted in crossexamination that she went to the house of the JCL first and waited outside. She admitted that Akkaraparambu is an empty area (ഒഴ�ഞ �റമ�) away from the road and that there is only a pathway leading to that place. She admitted that nobody saw her and the JCL at Akkaraparambu while they were going to Akkaraparambu and it is not possible for anybody to see them once they enter Akkaraparambu. It is clear from the aforesaid evidence that the victim girl was going with the JCL to a place where they will not be seen by anybody. The reason for the victim girl to go along with the JCL to a place like that in the pretext of going to the school would though appear to be irrelevant in the context of the allegation against the accused, it was obligatory for the prosecution to explain to the court the reason, when the prosecution seeks the conviction of the accused solely based on the evidence of the victim girl. From the available materials, the court is unable to make any ..18.. Criminal Appeal No. 1429 of 2018 inference about the said conduct, especially when the victim girl stoutly denies any sort of relationship with the JCL with whom she had gone to that place. 18. Now I shall come to the evidence tendered by the doctor who examined the victim girl. As noted above, while referring to the evidence tendered by the doctor as PW11, I have extracted the allegation made by the victim girl to the doctor when she was brought for medical examination. It was stated by the victim girl when she was brought before PW11 that about three months prior to the alleged occurrence which is the subject matter of the case, the JCL has made an attempt to commit sexual assault on her. If JCL is a person who has assaulted the victim girl sexually on an earlier occasion against her wish, then there is no reason why the victim girl had gone with him to a place like Akkaraparambu in the pretext of going to the school again. As noted, PW11 has stated that on examination, she found the hymen of the victim girl torn. In Ext.P6 report of medical examination, PW11 has recorded that the tear of hymen was complete and old. As indicated, the occurrence alleged in the case on hand is one took place on 20.01.2016 and the medical examination was on 22.01.2016. Criminal Appeal No. 1429 of 2018 ..19.. The authorities on Medical Jurisprudence categorically state that it will take a minimum of a week's time for a tear of hymen to heal completely. The relevant portion of Dr.K.S. Narayana Reddy's Medical Jurisprudence and Toxicology reads thus: “The semilunar hymen usually ruptures on both sides. In the case of annular hymen, several tears are produced. Soon after the act, the margins of the torn hymen are sharp and red which bleed on touch, the tissues round about them are tender. After 3 to 4 days, the edges of tear are congested and swollen, which completely heal in a week. ” In other words, it can be easily concluded that the tear of hymen noticed by the doctor was not attributable to the alleged occurrence which is the subject matter of the case and as admitted by the victim girl herself, in all probability, the tear of hymen might have been attributable to the previous instance of sexual assault committed by the JCL as disclosed by the victim girl to the doctor. Further, in the statement given by the victim girl before the Magistrate under Section 164 of the Code, the victim girl has specifically stated about the physical relationship she had with the JCL on 04.01.2016. It is to be noted that the allegation in the case is that a person ..20.. Criminal Appeal No. 1429 of 2018 aged about 60 years has committed rape twice on the victim girl aged about 13 years along with another, that too, in an isolated area. PW11 has categorically stated in her evidence that she did not find any injuries whatsoever in the body of the victim girl. It is relevant in this connection to note that the medical examination was on 22.1.2016 and the alleged occurrence took place on the day previous to the previous day of the medical examination. When a minor girl is allegedly raped by two persons twice in an open yard, it is difficult to believe that there would be no indications whatsoever in the body of the victim girl which cannot be identified by a qualified doctor. In the aforesaid circumstances, it is difficult to accept the case of the prosecution that the medical evidence adduced would support the prosecution case. 19. Further, despite the alleged occurrence of two persons committing sexual assault on the victim girl, she was going to the school as usual and even PW3, an elderly lady aged about 60 years who has seen the victim girl immediately after the alleged occurrence could not notice anything unusual in her appearance or behaviour. 20. In the 313 statement, the explanation offered Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** by the accused is as follows: “ ഞ�ൻ കറ� ഒന� ല0യ�ട�ല. ഞ�ൻ ��ടത �ണ� . ല0യലക�ണ�ര�കകയ�യ�രന ആ സമയത എല: അയൽവ�ട�ല� കട�കൾ അകര�റമ� എനസ�ത ന�ന� ഇറങ� ��ടത കട� പ��കനത കണ. ഞ�ൻ അവലര 0�ത �റഞ. ഉചത���ണ� 0�ത �റഞ��. അവർ തടർന� school പ�ക പ��യ�.” In other words, the accused denies any sort of relationship either with the JCL or with the victim girl. As noted, the accused is a person aged about 60 years and the JCL is a boy aged 16 years. The contention taken by the learned counsel for the appellant that the prosecution has not let in any evidence to show that the JCL had previous acquaintance with the accused in order to share common intention to commit gang rape on the victim girl assumes relevance in this context. In the absence of any material to prove the previous acquaintance of the accused with the JCL, the case of the prosecution that a boy aged about 16 years has taken a girl aged 13 years to a remote place, invited a total stranger aged about 60 years to that place, showed to the stranger some obscene pictures and requested him to have sex with the girl together and the stranger accepted readily the idea shared by ..22.. Criminal Appeal No. 1429 of 2018 the boy for having sex together, cannot be said to be a probable one at all and at any rate, the evidence tendered by the prosecution to prove the said case do not inspire confidence. To sum up, according to me, PW1 cannot be said to be a sterling witness so as to rest the conviction of the accused solely based on her evidence. I take this view since the POCSO Act provides for harsh punishments and when such punishments are provided for certain offences, the court has to insist a higher degree of proof for the prosecution case. 21. In Criminal Appeal No.419 of 2019, this Court interpreted the scope of Section 29 of the POCSO Act and held that what is required to be examined in a case arising under the POCSO Act is as to whether the prosecution has let in legally acceptable evidence to prove all the foundational facts which constitute the offence and if it is found that the prosecution has let in legally acceptable evidence to prove the foundational facts, then the court has to see whether the accused has established his innocence on the principle of preponderance of probability. It was also held by this Court in the said case that if it is found that the accused has established his innocence on the principle of preponderance of Criminal Appeal No. 1429 of 2018 ..23.. probability, he cannot be convicted. The question remaining to be considered is as to whether the accused in the present case has established his innocence on the principle of preponderance of probability. It was held by this Court in Criminal Appeal No.419 of 2019 that for the purpose of establishing the innocence, the accused need not have to adduce evidence and he can place reliance on the evidence adduced by the prosecution and the materials brought by him in the cross-examination of the witnesses examined on the side of the prosecution. Though the accused has examined two witnesses on his side to prove that he was found working in his paddy field on the relevant day at the relevant time, I am not placing reliance on the same, for in the light of the discussion in paragraphs 15 to 20 above, I am of the view that the accused has established his innocence on the principle of preponderance of probability. 22. Insofar as it is found that the prosecution has not proved the occurrence satisfactorily, I am not examining the remaining contentions raised by the learned counsel for the appellant. Criminal Appeal No. 1429 of 2018 **==> picture [26 x 9] intentionally omitted <==** In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him by the Court of Session are set aside and he is acquitted. He shall be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** **==> picture [249 x 47] intentionally omitted <==** ds 14.08.2020