Criminal Appeal Nos. 619 of 2018 & 720 of 2018 (Shibu S/o Appukuttan & Balu S/o Harilal) v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** **CRL.A.No.619 OF 2018** **AGAINST THE JUDGMENT IN S.C.NO.528/2014 DATED 30-04-2018 ON THE FILES OF THE I ADDITIONAL SESSIONS COURT, KOLLAM** ## **APPELLANT/2ND ACCUSED:** **SHIBU S/O.APPUKUTTAN, AGED 30 YEARS, THODIYIL PADINJATTATHIL VEEDU, GOPALASSERI, VADAKKEVILA CHERRY, VADAKEVILA VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI. K.K. RAJEEV (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, KOLLAM EAST POLICE STATION IN KOLLAM DISTRICT THROUGH 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 SRI. RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2020, ALONG WITH CRL.A.720/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal Nos.619 & 720 of 2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** **CRL.A.No.720 OF 2018** **AGAINST THE JUDGMENT IN S.C.NO.528/2014 DATED 30-04-2018 ON THE FILES OF THE I ADDITIONAL SESSIONS COURT, KOLLAM** ## **APPELLANT/IST ACCUSED:** **BALU S/O.HARILAL, BALU NIVAS, PATTATHANAM CHERRY, VADALLEVILA, KOLLAM.** **BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN SRI.R.REGHUTHAMAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI. RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2020, ALONG WITH CRL.A.619/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal Nos.619 & 720 of 2018 3 ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------** **Crl. Appeal Nos.619 and 720 of 2018 ---------------------------------------------Dated this the 17[th] day of June, 2020.** ## **J U D G M E N T** The appellant in Crl.A.No.619 of 2018 is the second accused and the appellant in Crl.A.No.720 of 2018 is the first accused in S.C.No.528 of 2014 on the files of the First Additional Sessions Court, Kollam. The appeals are preferred challeging the conviction of the appellants and the sentence imposed on them in the said case. 2. The accusation in the case is that the first accused caused the victim girl aged 14 years to come to the terrace of her house and had sexual intercourse with her on 16.12.2013 and on several days thereafter, and thereby committed the offences punishable under Sections 366 and 376 of the Indian Penal Code (the IPC). It is also the accusation in the case that the second accused, who is a friend of the first accused, later threatened the victim girl that Crl.Appeal Nos.619 & 720 of 2018 4 he would divulge the sexual relationship she had with the first accused to her family members, and thereby took her from her house on two days namely 19.01.2014 and 24.01.2014 to a nearby place and subjected her to oral sex. It is also the case of prosecution that similarly, on 28.04.2014, the second accused took the victim girl to the very same place, disrobed her and had sexual intercourse with her. The offences alleged against the second accused are the offences punishable under Sections 354B, 366 and 376 of the IPC and Section 3(d) read with Section 4 of the Protection of Children from Sexual Offences Act (the Act). 3. On the accused pleading not guilty of the charges, the prosecution examined 21 witnesses as PWs.1 to 21 and proved 26 documents as Exts.P1 to P26. The accused were, 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 pleaded not guilty. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. The accused did not adduce any evidence. Crl.Appeal Nos.619 & 720 of 2018 5 4. Among the witnesses examined, PW1 is the victim girl. She has proved Ext.P1 First Information Statement. PW2 is a person residing in the vicinity of the house of the victim girl. PW3 is the mother of a friend of the victim girl. PW4 is a person who was stated to be present at the house when the second accused allegedly took the victim girl on 24.1.2014. PW5 is the son of the owner of the house from where the second accused has allegedly taken the victim girl on 24.1.2014. PW6 is the father of the victim girl. PW7 is the doctor who examined the victim girl and issued Ext.P2 report of medical examination. PW8 is the mother of the victim girl. PW9 is the witness to Ext.P4 scene mahazar. PW10 is the witness to Ext.P5 scene mahazar. PW11 is the witness to Exts.P6 and P7 mahazars. PW12 is the Motor Vehicles Inspector who issued Ext.P8 inspection report. PW13 is the official of the local authority who issued Ext.P9 birth certificate. PW14 is the Headmistress of the school where the victim girl was pursuing her studies, who issued Ext.P10 extract of the admission register containing the age of the victim girl. PW15 is the village officer who issued Exts.P11 and P12 scene plans. PW16 is the village officer who issued Crl.Appeal Nos.619 & 720 of 2018 6 Ext.P13 scene plan. PW17 is the Women Police Constable who took the statement of the victim girl. PW18 is the doctor who issued Exts.P14 and P15 potency certificates, after examining the accused. PW19 is the Motor Vehicle Inspector who furnished the registration particulars of the auto rickshaw in which the second accused has allegedly taken the victim girl to various places. PW20 is the police official who registered Ext.P17 FIR. PW21 is the investigating officer in the case who laid the charge. He proved Ext.P19 to P21 mahzars, Ext.P22 arrest memo of the first accused, Ext.P22(a) custody memo of the first accused, Ext.P22(b) Inspection memo of the first accused, Ext.P22(c) arrest memo of the second accused, Ext.P22(d)custody memo of the second accused, Ext.P22(e) Inspection memo of the second accused, Ext.P23 remand application, Ext.P24 report, Ext.P25 mahazar and Ext.P26 Report of the Forensic Science Laboratory. Through PW21, the accused also proved Exts.D1 to D12 contradictions. 5. On an appraisal of the materials on record, the court below found that the first accused is guilty of the offences punishable under Section 376 of the IPC and Section 3 read with Section 4 of the Act and the second accused is Crl.Appeal Nos.619 & 720 of 2018 7 guilty of the offences punishable under Section 366 of the IPC and Section 7 read with Section 8 of the Act and convicted them for the aforesaid offences. Consequent to the conviction, the court below sentenced the first accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for three months, under Section 376 of the IPC. Separate sentence was not imposed on the first accused for the offence punishable under the Act, in the light of the provisions contained in Section 42 of the Act. Similarly, the court below sentenced the second accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 366 of the IPC. The second accused was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 7 read with Section 8 of the Act. The accused are aggrieved by their conviction and sentence. Crl.Appeal Nos.619 & 720 of 2018 8 6. The learned counsel for the appellant in Crl.Appeal No.720 of 2018 contended, at the outset, that in a case of this nature, it is obligatory for the prosecution to prove the age of the victim girl and the age of the victim girl has not been proved by the prosecution by adducing satisfactory evidence. Referring to Ext.P9 birth certificate and Ext.P10 extract of the school admission register containing the date of birth of the victim girl, the learned counsel contended that the said documents are not sufficient to conclusively prove the age of the victim girl. The argument of the learned counsel was that the said documents can be accepted as conclusive proof only if such documents are supported by the evidence tendered by the persons at whose instance the date of birth is recorded in the Birth Register and School Admission Register concerned. It was also argued by the learned counsel that it is a case where best evidence to prove the prosecution case is withheld, and a serious doubt is therefore cast as to the genuineness of the prosecution case. The learned counsel elaborated the said submission pointing out that the very case of the prosecution is that the first accused used to contact the victim girl over mobile phone for the purpose of causing her to Crl.Appeal Nos.619 & 720 of 2018 9 come out of her house for having sex with her. The best evidence in a case of this nature, according to the learned counsel, are the mobile phones of the accused and the victim girl. It was pointed out that the investigating agency has neither seized the mobile phone of the victim girl nor produced its call records. Similarly, it was pointed out by the learned counsel that it is a case in which the statement of the victim girl was recorded under Section 164 of the Code and the same has also not been produced before the court. It was also argued by the learned counsel that the only evidence in the case against the first accused is the evidence tendered by the victim girl and the same is not reliable and trustworthy. The learned counsel elaborated the said submission pointing out that the evidence tendered by the Investigating Officer and other witnesses in the case would establish beyond doubt that the victim girl was not speaking the truth before court and such evidence cannot be the sole basis of a conviction. Lastly, it was contended by the learned counsel that at any rate, the materials on record would establish that it is a case where the prosecution has not placed true facts before the Crl.Appeal Nos.619 & 720 of 2018 10 court and the accused is, therefore, entitled to the benefit of doubt. 7. The learned counsel for the appellant in Crl. Appeal No.619 of 2018 endorsed the arguments advanced by the learned counsel for the appellant in Crl. Appeal No.720 of 2018. In addition, it was argued by the learned counsel that it is a case where the maxim _“Falsus in uno, falsus in omnibus”_ applies. Taking cue from the submissions made by the learned counsel for the first accused, it was also submitted by the learned counsel that in so far as it is established that a portion of the evidence tendered by the victim girl, at any rate, is false, her testimony has to be rejected in its entirety. Placing reliance on the prosecution case that the victim girl has gone to the house of one of her friends immediately after the last occurrence falsely pretending that she has been chased out from her house by her parents, the learned counsel submitted that the evidence of such a girl who admittedly tells lies to others cannot be relied on in a case of this nature. It was also argued by the learned counsel that if the evidence tendered by the victim girl is eschewed, the second accused cannot be convicted. Crl.Appeal Nos.619 & 720 of 2018 11 8. Per contra, the learned Public Prosecutor submitted that there is no substance in the contentions raised by the learned counsel for the appellants as regards the age of the victim girl. It was also submitted by the learned Public Prosecutor that in the light of the decision of this court in **Maju @ Manu v. State of Kerala** (2020 (3) KHC 22), Ext.P9 and P10 documents conclusively establish that the victim girl was aged only 14 years at the time of occurrence. It was also submitted by the learned Public Prosecutor that the evidence tendered by the victim girl has not been discredited in any manner in cross examination and the same has been corroborated in material particulars by the evidence tendered by other witnesses examined in the case. The learned Public Prosecutor has also submitted that merely for the reason that there is a reference to the mobile phone conversation between the victim girl and the accused, it is not obligatory for the prosecution to seize the mobile phone of the victim and produce its call records. Similarly, it was submitted by the learned Public Prosecutor that non-production of the statement of a witness recorded under Section 164 of the Code is of no Crl.Appeal Nos.619 & 720 of 2018 12 consequence, if the court finds that the evidence tendered by the prosecution is otherwise acceptable. 9. The point arising for consideration is as to whether the prosecution has established the guilt of the first accused under Section 376 of the IPC and Section 3 read with Section 4 of the Act and the guilt of the second accused under Section 366 of the IPC and under Section 7 read with Section 8 of the Act. I shall first deal with the contention raised by the learned counsel for the accused as regards the proof of the age of the victim girl. True, in a case of the instant nature, it is obligatory for the prosecution to prove the age of the victim girl. In **Maju @ Manu** , I have rejected an identical contention raised by the learned counsel as regards proof of age of the victim, in cases arising under the Act, and held that in the absence of any contrary evidence, School Certificates and Birth Certificates can be accepted as conclusive proof of the age of the victim. In the case on hand, the learned counsel has no case that the materials on record would suggest that the date of birth of the victim girl shown in Exts.P9 and P10 is incorrect. Therefore, in the light of the Crl.Appeal Nos.619 & 720 of 2018 13 decision of this court referred to above, the contention raised in this regard is liable to be rejected and I do so. 10. The prosecution mainly relies on the evidence of the victim girl to prove the guilt of the accused. The victim girl has deposed as PW1 that on 28.04.2014, at about 10.30 p.m., the second accused caused her to come out of her house threatening that he would otherwise inform her relationship with the first accused to her parents. PW1 deposed that she knows the second accused as a friend of the first accused. She deposed that she was in love with the first accused and during 2014, the first accused used to tell her to come to the terrace of her house late night and they had physical relationship on several occasions. She deposed that on 28.04.2014, when she came out of her house at about 11.00 p.m., she found the accused near her residence. PW1 deposed that the second accused then took her in his auto rickshaw, informing her that the first accused would follow them. PW1 deposed that the second accused took her to a house at Meyvaram first, where some of his friends were available and he communicated with them something secretly. PW1 deposed that there occurred a fight in that house after sometime Crl.Appeal Nos.619 & 720 of 2018 14 between the second accused and his friends. She deposed that the second accused thereafter took her to a house under construction near Karuthara temple informing her that the first accused will be waiting there. She deposed that at that house, the second accused attempted to disrobe her and to penetrate his genital organ into her mouth. PW1 deposed that she then cried aloud and the people in the neighbourhood consequently switched on the lights in their houses. She deposed that the second accused thereupon dropped her near her house. She deposed that a person was found standing at that time near her house and when he questioned her, she thought that the said person is her father and consequently, ran away from there to the house of one of her friends. PW1 deposed that she told falsely to her friend and to her parents that she was chased out from her house. PW1 deposed that at about 10.30 am, PW3, the mother of her friend called her mother and informed her that PW1 is available in her house. PW1 deposed that thereafter, police came to that house and took her to the police station. In cross examination, PW1 has stated that there are many houses near to her house and that the terrace of her house is visible from the first floors of the nearby houses. She Crl.Appeal Nos.619 & 720 of 2018 15 has also stated in cross examination that the house of PW3 is about 3 kms away from her house and that the police came to the house of PW3 first in search of her and it is thereafter her parents came there. 11. In order to corroborate the evidence of PW1, the prosecution relies on the evidence of PW3, the mother of the friend of the victim girl, PW4, the person who claimed to have seen the victim girl along with the second accused at the house at Meyvaram on 28.04.2014, PW6, the father of the victim girl, PW7, the doctor who examined the victim girl on 29.04.2014, and PW8, the mother of the victim girl. Among them, PW3 deposed that one day during 2014, by about 4 am, PW1 came to her house and knocked at the door and when questioned, PW1 told her that she was chased out from her house by her parents. PW3 deposed that the victim girl pleaded ignorance of the telephone numbers of her parents. PW3 deposed that the victim girl thereafter borrowed her telephone and called a friend of her father. PW3 deposed that she then snatched the phone from the victim girl and requested that person to provide the telephone number of the father of the victim girl. PW3 deposed that after sometime, Crl.Appeal Nos.619 & 720 of 2018 16 that person provided the telephone number of the father of the victim girl and she then contacted her father. PW3 deposed that the father of the victim girl then handed over the phone to a police man. She deposed that the police man then ascertained with her as to whether the victim girl is available in her house. PW3 deposed that she answered to the police man in the affirmative and after sometime, the father of the victim girl and police man together came to her house and took the victim girl away. PW4 deposed that one day during 2014, the second accused came to the house where he was residing along with his friends, with the victim girl in an auto rickshaw and introduced to the inmates of that house that the victim is his girl and her name is Swathy. PW4 deposed that the victim girl then corrected the second accused that her name is not Swathy and that she is not the girl of the second accused. PW4 deposed that the inmates of the house then told them that they cannot enter that house. PW4 deposed that the second accused had left the house with the victim girl by about 11 o' clock. PW6 deposed that by about 6 o' clock in the morning on 29.04.2014, his wife told him that the victim girl is missing. He deposed that he immediately lodged a Crl.Appeal Nos.619 & 720 of 2018 17 complaint to the police and pursuant to the complaint, while the police were conducting a search in the room of the victim girl, PW3 called him and informed that the victim girl is available in her house. PW6 deposed that the police then proceeded to that house along with him and took the girl to the police station. PW8 has given evidence in tune with the evidence tendered by PW6, her husband. PW7 has given evidence to the effect that she found evidence of past vaginal penetration on the medical examination of the victim girl. 12. PW21 is the police officer who conducted the investigation in the case. He stated in cross examination that the victim girl was brought to the police station as a person who was found in suspicious circumstances; that he did not find any complaint in the police station concerning the missing of the victim girl; that the victim girl has not disclosed to him the dates on which the accused had sexual intercourse with her and that the victim girl has not stated to him that the second accused told her that the first accused was accompanying them while the second accused was taking her away from her house. PW21 has also admitted in crossexamination that PW6 has made Ext.D2 statement viz, that Crl.Appeal Nos.619 & 720 of 2018 18 when he came to the police station for lodging a complaint about the missing of PW1, PW3 called him over phone to tell him about his daughter and that he then handed over the phone to the police and the police after talking to PW3 told him that the victim girl was found near a railway track at about 11.30 pm on 28.04.2014. 13. The evidence tendered by the victim girl is corroborated by the evidence of PWs.6 and 8 only to the limited extent that she has gone out of her house on the night of 28.04.2014 and has not come back. The evidence tendered by PW1 is corroborated by the evidence of PW3 only to the extent that PW1 came to her house on the morning of 29.04.2014. Similarly, the evidence tendered by the victim girl is corroborated by the evidence of PW4 only to the extent that the second accused took the victim girl to the house where PW4 was residing in an auto rickshaw and left that house after sometime. Similarly, the evidence tendered by the victim girl is corroborated by the evidence of PW7 only to the limited extent that she is a girl who was subjected to sexual intercourse. The aforesaid evidence are not sufficient, according to me, to establish the guilt of the accused as found Crl.Appeal Nos.619 & 720 of 2018 19 by the court below. As noted, the prosecution case involves a series of occurrences. As far as the occurrences are concerned, the prosecution has not adduced any evidence other than the oral evidence of the victim girl. As rightly pointed out by the learned counsel for the first accused, this is a case where the prosecution could have adduced evidence to prove that the accused maintained contact with the victim girl over telephone, and they have not chosen to lead any evidence in that direction. In other words, the only remaining question is as to whether the evidence tendered by the victim girl is reliable and trustworthy. 14. No doubt, the evidence of a rape victim can be the sole basis of a conviction. But, it is trite that in order to base a conviction solely on the evidence of the victim, the evidence of the victim shall be of a sterling quality. 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 Crl.Appeal Nos.619 & 720 of 2018 20 unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such 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 Crl.Appeal Nos.619 & 720 of 2018 21 sieve the other supporting materials for holding the offender guilty of the charge alleged.” The decision aforesaid has been quoted with approval by the Apex Court in its recent decision in Criminal Appeal No.264 of 2020, decided on 14.2.2020. It is evident from the aforesaid decisions that the evidence of a sterling witness is one that appears natural and consistent with the case of the prosecution qua the accused. It was held that such witnesses shall, under no circumstances, give room for any doubt as to the factum of the occurrence and the evidence shall have corelation with each and everyone of other supporting materials including expert opinions. It was also held in the said cases that such evidence should also satisfy the test applied in cases involving circumstantial evidence, viz, that there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence. To put it differently, the version of such witnesses 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. Crl.Appeal Nos.619 & 720 of 2018 22 15. Before considering the question aforesaid, it is necessary to state that the maxim F _alsus in uno, falsus in omnibus_ (false in one thing, false in every thing) is not a principle which has application in Indian scenario, for there would be hardly any witness in India whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. In India, the duty of the Court is to scrutinise the evidence carefully, separate the grain from the chaff and find the truth of the matter. 16. From Ext.D2 statement made by the father of the victim girl to the police that when he came to the police station for lodging the complaint about the missing of the victim girl, PW3 called him over telephone to tell him about his daughter; that he then handed over the phone to the police as directed by them and that the police told him after talking to PW3 that the victim girl was found near a railway track at about 11.30 pm on 28.04.2014 and from the assertion made by PW21, the Investigating Officer that the victim girl was found in suspicious circumstance and brought to the police station accordingly, it is clear that the evidence tendered by the victim girl that she went to the house of PW3 in the early Crl.Appeal Nos.619 & 720 of 2018 23 hours on 29.04.2014 and informed them that she was chased out by her parents from the house cannot be believed. Similarly, the evidence tendered by the victim girl that when she was dropped by the second accused near her house in the morning hours of 29.04.2014, somebody standing near the house started questioning her; that she thought that it is her father who is questioning her; that she misunderstood that person as her father; that she did not therefore enter the house etc. also cannot be believed. First of all, nobody can have any misunderstanding about his/her own father. The evidence tendered by the victim girl in this regard would appear to be utter falsehood and the victim girl was building up a story to justify her conduct in not returning to her house, after leaving the house on the previous night voluntarily. Similarly, it is very difficult to believe the evidence given by the victim girl that she was dropped by the second accused in the early hours of 29.04.2014 and she thereafter, ran from there to the house of PW3 which is situated about 3 kms away from her house, that too before 4 o' clock in the morning. If the second accused is a person who could drop the victim girl from the place where he attempted to molest her, to her house in Crl.Appeal Nos.619 & 720 of 2018 24 his autorickshaw, there is no reason why he shall not drop her in the house of PW3, if she does not want to go to her house. 17. Further, a close scrutiny of the evidence of PW1 reveals that PW1 has narrated in her evidence about the sexual intercourse the first accused had with her to justify her conduct in leaving the house late night with the second accused on several occasions and not for ventilating her grievance against him in any manner. Further, she did not even state in her evidence precisely as to when the first accused had sexual intercourse with her. Going by the evidence given by the victim girl as to the visibility of terrace of her house from the nearby houses, it is doubtful as to whether the case put forward by the victim girl that the first accused had sexual intercourse with her in the terrace of her house is correct, especially since there are so many people in her house and she herself has stated that doors of the houses would be closed by the inmates of the house. True, the victim girl has stated in her evidence that while she was going with the second accused in the autorickshaw, the second accused told her that the first accused would accompany them. Similarly, the victim girl has stated that when she came back Crl.Appeal Nos.619 & 720 of 2018 25 home on 29.4.2014, she found the bangle of the first accused at the place where she saw somebody in the early hours of the day. She has also stated that she then realised that it was the first accused who was standing near her house in the early hours of the day. The aforesaid evidence would indicate that the victim girl was attempting to attribute knowledge about the alleged conduct of the second accused in kidnapping her from her house to the first accused as well and thereby establish his complicity in the crime. The aforesaid evidence appears to be highly artificial. First of all, the aforesaid evidence would not go with the prosecution case that the second accused has kidnapped the victim girl threatening her that he would divulge her parents about the sexual relationship she had with the first accused. Further, the evidence of the investigating officer reveals that the victim girl has not stated before him that the second accused told her while going with her in the autorickshaw that the first accused is accompanying them. 18. Coming to the overt acts attributed against the second accused, it is seen that the evidence of PW4 indicates that the victim girl was moving with the second Crl.Appeal Nos.619 & 720 of 2018 26 accused on the night of 28.04.2014 in an autorickshaw. The specific evidence tendered by PW4 is that the second accused introduced the victim to the inmates of his house that it is his girl and her name is Swathy and that the victim girl then corrected the second accused that her name is not Swathy and that she is not the girl of the second accused. The said evidence would certainly cast some suspicion as to the means adopted by the second accused to bring the victim girl along with her, but the same by itself is not sufficient to make out the offences attributed against him, viz, offences punishable under Section 366 of the IPC and Section 7 read with Section 8 of the Act. In short, the evidence tendered by the victim girl does not appear to be natural and consistent and she cannot be regarded as a sterling witness in terms of the standards prescribed by the Apex Court in the decision reported in **Rai Sandeep,** so as to justify the conviction of the accused for the very serious offences attributed against them solely based on the same. 19. In the circumstances aforesaid, I am of the view that the prosecution has not proved the guilt of the Crl.Appeal Nos.619 & 720 of 2018 27 accused. At any rate, the appellants are entitled to the benefit of doubt. In the result, the Criminal Appeals are allowed. The conviction of the appellants and the sentence imposed on them by the Court of Session are set aside and they are acquitted. They shall be set at liberty forthwith and released from custody, if their continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellants are undergoing incarceration. **Sd/P.B.SURESH KUMAR, JUDGE.** DK