(2014) 387 KLR 121

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN 

THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935 

CRL.A.No. 1599 of 2009 (D)

(S.C. NO.369 AND 429 OF 2008 OF THE COURT OF THE VTH ADDITIONAL- SESSIONS JUDGE, ERNAKULAM DTD. 19/05/2009) 

[COMMON JUDGMENT IN S.C. NOS. 368 TO 371 OF 2008 & 428 & 429 OF 2008]

APPELLANT/ACCUSED NO.1:

SANTHOSH MADHAVAN @ SWAMI AMRITHA CHAITHANYA, S/O. MADHAVAN OF PARAYACHIRA HOUSE, IRUPATHEKKAR KARA, KATTAPPANA, UDUMPANCHOLA, IDUKKI DISTRICT, 4B, FLAT ROYAL STADIUM, MANSION APARTMENT, MARKET ROAD, KADAVANTHRA, ERNAKULAM. 

BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADVS. SRI.P.M.RAFIQ, SRI.P.K.VARGHESE, SRI.THOMAS J.ANAKKALLUNKAL. 

RESPONDENT/COMPLAINANT:

STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 

BY ADDL. D.G.P. SRI. TOM JOSE PADINJAREKKARA, PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN.

JUDGMENT 

The appellant along with his driver were prosecuted for various offences in five cases, namely, S.C. Nos. 368, 369, 370, 371, 428 and 429 of 2008. The appellant was the first accused in all these cases. The second accused, his driver, was acquitted in all cases, but the appellant, who, as already stated, is the first accused in all cases, found himself convicted in S.C. 368, 369 and 429 of 2008. In S.C. 368 of 2008, he was convicted for the offences under 

Sections 342 and 376 of Indian Penal Code 

and he was sentenced to undergo simple imprisonment for three months for the offence under Section 342 of I.P.C. For the offence under Section 376 of I.P.C., he was sentenced to undergo rigorous imprisonment for eight years and to pay fine of Rs.2,10,000/-, in default, to undergo rigorous imprisonment for one year. If the fine amount was realized, a sum of Rs.2,00,000/- was directed to be paid as compensation to P.W.1. In S.C. 369 and 429 of 2008, the appellant, who is the first accused, was found guilty of the offence punishable under Section 376 of I.P.C. and he was sentenced to undergo rigorous imprisonment for eight years and to pay fine of Rs.10,000/- with a default sentence of rigorous imprisonment for two months. In the other cases, both the accused stood acquitted.

2. These appeals tell the shocking tale of a self made thantric, priest, astrologer and what not, who wielded considerable influence among the people and used his privileged position to commit one of the most heinous crimes namely rape, that too on minor girls.

3. As we are concerned with only S.C. 368 of 2008 which gives rise to Crl.Appeal. 1630/2009 and S.C.369 and 429 of 2008 which gave rise to Crl.Appeal. 1599/2009, facts necessary for the disposal of these appeals alone are being referred to. In Crl.Appeal 1630 of 2009 the victim is examined as P.W.1 and in Crl.Appeal 1599 of 2009 the victim is examined as P.W.2.

4. The allegations in S.C. 368 of 2008 are that the victim, namely, P.W.1, who was an inmate of Santhitheeram, 'House of kids' run by the Trust headed by the appellant herein who managed to procure the presence of the girl in his flat on 15.1.2006 and 16.1.2006, was sexually exploited. That was followed on one day in March also. In S.C.369 of 2008, the allegation is that there too the victim, a minor girl, was induced to go from her house to the flat on three holidays in June, 2006 and she was brutally raped.

5. After investigation, final report was laid and finding that the offences are exclusively triable by a court of Sessions, committed the case to Sessions Court, Ernakulam. The said court made over the case to Vth Additional Sessions Court, Ernakulam for trial and disposal. 6. On receipt of records, the latter court framed charges in all cases, to which, the accused pleaded not guilty. It may be noticed here that the accused had filed a petition under Section 218(1) of Cr.P.C. for joint trial of all the cases. After hearing both sides, the court below allowed that petition and all the cases were jointly tried treating S.C. 368 of 2008 as the main case. Though the second accused moved an application to treat him as an approver, that was rejected. On denial of charges by the accused, the prosecution examined P.Ws.1 to 43 and had Exts.P1 to P104(a) marked. M.Os. I to XI were got identified and marked. The court below also viewed A4 and A5 cassettes and C13 multi media card in the presence of the accused and their counsel. After the prosecution evidence was closed, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they are innocent. The first accused, who is the appellant herein, has filed a detailed statement of defence. According to him, while he was studying for B.Com., he gained admission in the Bhrahma Vidyalaya, Sivagiri where he underwent a course in Bharathiya Vedas and Sasthras. He gained proficiency in poojas and homas from Advaidasramam, Aluva. For a brief period, he worked as the Chief Priest in few temples in and around Ernakulam. He gained knowledge in astrology and thantrik vidya and soon he came to be known as an expert astrologer. He claims to have attained popularity within a short span of time and he says that he was invited to various countries for conducting astrology classes, prasnams, poojas and homas. He also conducted discourses on Indian philosophy. People from all walks of life and all religions approached him for redressal of their grievances and for various other matters. He would say that he unfortunately got involved in real estate business and earned substantial profit also. Some persons who were envious about the prosperity and prominence acquired by the appellant, conspired together and he was depicted as Santhosh Madhavan who was involved in shady dealings and who was on the run from the interpol. The appellant claims to have met Shri. Vincent Paul, I.G. of Police, Ernakulam and convinced him that he was not the person whom they were looking for. It was confirmed that there were no proceedings against the appellant pending in any police station. He then gave interview to various news channels clearing his position and the assurance given by the I.G. This annoyed certain people and also the I.G. of Police, who, according to the appellant, conspired to trap him. On 8.5.2008 without any provocation, Santhitheeram Trust run by him was raided, but without much success by the police. His close association with Ministers and families worked to his detriment. On 10.5.2008 without even following the necessary legal procedures, his flat at Kadavanthra was broken open and a search was conducted. All senior police officers of City Police including C.I. Venu was present for search and the search was given wide publicity by the media. In the search so conducted, except his cloths, all the other articles were taken into custody. However, the police included only a few items in the search list. Under the guise that ganja was recovered from the flat, Crime No. 433 of 2008 was registered under the NDPS Act. Finding sandal wood in his flat, offence under the Forest Act was also registered. On the ground that tiger skin was seized from his flat, which was synthetic, crime under the Wild Life Protection Act was also registered. The police force was on the look out to gather materials as against him and register as many cases as possible against him. In fact he would say that he came to understand that they were threatening a lady to come down to India and file a false case against him. 7. The appellant claims that he moved this Court for anticipatory bail. He claims to have contacted the Assistant Commissioner of Police, who assured him that there was no substance in the complaints against him, and that the complaints have been filed only to shut the mouth of the media, and he was asked to meet the Assistant Commissioner on 13.5.2008 at early morning. When he reached the residence of the Assistant Commissioner at 7 a.m. he was taken to the Police Club. His body was searched and articles were seized. According to the appellant, since the police officers knew that in all probability anticipatory bail will be granted to the petitioner, he was falsely implicated in these cases. He narrates about the various illegalities committed by the police officers and also says that the cassettes alleged to have been seized from the locker were played there. He denied having been involved in the sexual exploits of the girls as alleged. His further grievance is that since his 'House of kids' was being run in a proper and disciplined manner, that was not liked by the parallel institutions who were out to destroy the institution. He had visited the Santhitheeram only twice, on one occasion when he received information that one of the inmates was indisciplined and he summoned the inmate and expelled the indisciplined inmate. It is also stated that P.W.1 was expelled in December, 2005 and thereafter she never came to Santhitheeram. He asserted that P.Ws. 1, 5 and 7 are speaking total falsehood and all what they say are untrue. He would conclude by saying that he has been unnecessarily implicated with ulterior motive.

8. The court below found that the accused could not be acquitted under Section 232 of Cr.P.C. and they were asked to enter on their defence. They examined D.Ws.1 to 4 and had Exts.D1 to D20 marked. Later P.W.43 had to be recalled and examined. After doing so, the accused were again questioned under Section 313 of Cr.P.C. 9. On an appreciation of the evidence in the case, in S.C.368 of 2008, the court below found the evidence of P.Ws.1, 5, 6 and 7 to be convincing enough and held the appellant guilty of the offence already made mention of. As far as S.C. 369 of 2008 was concerned, even though the principal witnesses including the victim turned hostile, the learned Judge viewed A4 and A5 cassettes and C13 multi media card and was satisfied that the participants seen involved in the sexual exploit in those cassettes were none other than the appellant herein and P.W.2 and on that basis, found the accused guilty. Conviction and sentence in each of these cases as already mentioned followed.

10. As a matter of convenience, since the question involved in Crl.Appeal. 1599 of 2009 is extremely limited, the said appeal shall be considered first.

11. As already noticed, the victim in this case is P.W.2. The evidence in S.C. 369 of 2008 consists of the evidence of P.Ws.2, 8, 9, 14, 15, 26, 29, 33, 35, 38, 41 and 43. The documents relied on were Exts.P3, P4 to P4(b), P14 to 17, P23 to 25, P37, P44, P46, P49, P54, P59 to 64, 66, 68 and 77 to 100.

12. The evidence of P.W.2, who is the defacto complainant, indicated that she was born on 5.1.1992. She hails from a poor family. Her father is a tea vendor moving on a bicycle. They did not have a permanent place of abode. She was admitted as an inmate of House for Kids at Ponekkara along with eight other children. The expenses for education and such other matters of P.W.2 were being met by P.Ws.11 and 12 who were running the institution. When examined in court, P.W.2 resiled from the statements given to the police and she denied having been an object of sexual exploits at the hands of the appellant. She turned completely hostile to the prosecution and the prosecution did not find support from her evidence on any count. All that she admitted was that she was examined at Government Hospital, Ernakulam. Her parents examined as P.Ws.8 and 9 also betrayed the prosecution though they admitted that P.W.2 was an inmate of the House of Kids for a period of one year. However, they too accepted that their daughter was examined by the doctor at the Government Hospital, Ernakulam.

13. P.Ws.14 and 29 are Revenue Officers who claimed to have been witnesses to the seizure of various articles from the locker which belonged to the appellant herein. In their presence, locker No.7 of Federal Bank which belonged to the appellant was opened and seven cassettes were recovered. The cassettes were numbered as A1 to A7. Another cover contained seven cassettes of Hi8 which were marked as B1 to B7. The third cover contained 11 cassettes of Hi8 make which were marked as C1 to C11. Besides that, there was a pen drive and a multi media card in the third cover which were marked as C12 and C13 respectively. P.Ws.14 and 29 deposed that the seizure was made in their presence and they had occasion to view the cassettes at the Bank itself in the presence of the police officers. The pen drive and the multi media card were played on a lap top. As per their evidence, A4 and A5 cassettes contained visuals of sexual intercourse by the first accused and a lady and they have heard the first accused telling the Circle Inspector that the lady was P.W.2. P.W.15 is the Chief Manager of Federal Bank, M.G. Road Branch, from where the articles were seized. P.Ws.26 and 33 were examined to prove the age of P.W.2 and Exts. 37 and 44 certificates show that the date of birth of the victim was 15.1.1992.

14. P.W.35 is the Civil Surgeon who had examined P.W.2 on 13.5.2008 at 5.45 p.m. at the General Hospital, Ernakulam and issued Ext.P46 certificate. In her evidence, she narrates about the findings which were recorded in Ext.P46 and her final opinion and the findings are consistent with regard to the fact that there is evidence of penetration. The rest of the witnesses are the police officers who registered crime and investigated the crime.

15. The main items of evidence in this case are A4 and A5 cassettes and C13 multi media card. When P.W.2 was being examined, the Public Prosecutor moved the court for playing the cassettes which the court declined at that point of time and deferred that exercise. Later the court below had the cassettes played and viewed the same. The court, having viewed the cassettes, prepared a memorandum of the same which is extracted in paragraph 94 of the judgment and it is not necessary for the purpose of this case to reiterate it in this judgment.

16. The evidence in the case, in the light of the fact that P.Ws.2, 8 and 9 had turned hostile, remained confined to the cassettes produced and naturally the main issue involved was the admissibility, relevancy and evidentiary value of the cassettes. The court below found that the cassettes are admissible in evidence and fall within the definition of document contemplated under the Indian Evidence Act and on viewing the same, the learned Judge formed the opinion that the two persons who were seen involved in sexual activities in A4 and A5 and C13 were none other than the appellant herein and P.W.2, and based on the identification made by the court, entered a finding of guilt against the appellant.

17. Learned Senior Counsel appearing for the appellant very vehemently challenged the act of the learned Judge in viewing the cassettes and making an identification of the participants of the sexual exploits seen in the cassettes and based on his identification entering the finding of guilt as against the appellant. Learned Senior Counsel went on to point out that even assuming that the cassettes are admissible in evidence, and could be viewed by the learned Judge, it is absolutely essential that their authenticity should have been established and without establishing their authenticity and accuracy, they could not have been relied on. Apart from that, the learned Senior Counsel raised a more serious contention that even accepting that the learned Judge could view the cassettes, he can make use of the same only for the purpose of appreciation of evidence in the case and could not substitute himself as a witness in the case and enter a finding of guilt. In the case on hand, the learned Senior Counsel appearing for the appellant went on to contend that that had what happened in this case. None of the main witnesses, namely, P.Ws.2, 8 and 9 nor P.W.43 viewed the cassettes and had identified the participants as the appellant and P.W.2. In fact, learned Senior Counsel went on to point out that P.Ws.2, 8 and 9, the victim and her parents were not shown the cassettes and questioned on that basis. Learned Senior Counsel went on to contend that the mere fact that in Ext.P23 mahazar which evidenced the seizure of the cassettes, the investigating officer has stated that he had viewed the cassettes and was satisfied that it was P.W.2 and the appellant, will not be sufficient in law as long as the investigating officer has not deposed to that effect in court after viewing the cassettes in court. It was quite improper and illegal on the part of the Judge to have based a conviction solely on the basis that he was able to identify the participants in the cassettes and by doing so he has assumed the role of a witness and if that be so, he could not have continued considering the case. If he was transformed to the status of a witness, he would be subjected to cross examination, which was not done in the case on hand. It was contended that in the light of the said fact, the formation of opinion by the learned Judge could not have support in law and is quite illegal. For the said proposition, the learned Senior Counsel relied on the decisions reported in 

Keisam Kumar Singh v. State of Manipur (AIR 1985 SC 1664) 

and 

State of Kerala v. Aboobacker (2006(3) ILR Kerala 672)

According to the learned Senior Counsel appearing for the appellant, if A4 and A5 cassettes and C13 multi media card are eschewed from consideration, there is absolutely no evidence at all in this case to prove the allegations against the appellant.

18. Learned Additional Director General of Prosecution appearing on behalf of the State pointed out that it is by now well settled that tape recorders and video cassettes fall within the category of documents as envisaged under the Indian Evidence Act and therefore, are admissible in evidence. It was pointed out by the learned Addl.D.G.P. that there have been innumerable cases where tape recorders have been treated as part of the evidence and video cassettes have been viewed as in this case. It is significant to notice, according to the learned Addl.D.G.P. that the cassettes which were played in court and also the multi media card were seized from the locker which exclusively belonged to the accused and therefore, there was no doubt that it belonged to him. The seizure of these items were sworn to by P.W.14 and 29 and the evidence of P.W.43 the investigating officer is sufficient to show that the seizure was proper and in accordance with law. It was also pointed out that a camera was seized from the flat which belonged to the accused and there is nothing to show that the cassettes are not authentic and accurate.

19. The learned Addl.D.G.P. also pointed out that since the cassettes have been seized from the locker which exclusively belonged to the accused, it was for him to explain if there was any defect in the cassette going by Section 106 of Indian Evidence Act because those matters are within his exclusive knowledge. For the said position, the learned Addl.D.G.P. relied on the decisions reported in 

Madan Lal v. State of Jammu and Kashmir (1997 KHC 521) 

and 

Neel Kumar @ Anil Kumar v. State of Haryana (2012 KHC 4275)

For the proposition that video cassettes and tape recorders are admissible in evidence, the learned Addl.D.G.P. relied on the decisions reported in 

Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010 KHC 4268) 

and 

State of Maharashtra v. Praful B Desai (2003 KHC 581) 

According to the learned Addl.D.G.P., if there is any illegality or irregularity in the seizure, that is also not a ground to discard the evidence going by the decision reported in State Rep. By Inspector of Police v. N.M.T. Joy Immaculate (2004 KHC 1886). The learned Addl.D.G.P. went on to point out that the investigating officer, namely, P.W.43 has stated in Ext.P23, the mahazar by which the seizure of the cassettes were made, that they had occasion to view the cassettes and the first accused had told him that the lady involved was P.W.2. This is sufficient evidence, according to the learned Addl.D.G.P.

20. The core issue involved in the appeal is whether A4, A5 and C13 multi media card are admissible in evidence and if so, what is the criterion to be applied. It also falls for consideration as to whether the learned Judge was justified in viewing the cassettes and based on an identification made by him entering a finding that the offences have been committed.

21. For the present purpose, it shall be assumed that the seizure was proper and the articles were seized from the locker which belonged to the appellant herein. True, there is some controversy regarding the seizure. The appellant has a case that the cassettes were planted there and did not belong to him. There is also some controversy thrown up regarding the key of the locker also. It has come out in evidence that the Bank was informed about the loss of key on 13.5.2006. The accused was arrested and produced before the Magistrate and remanded to police custody only on 14.5.2006 and it is pointed out that it was on search of the accused on getting police custody that the key was recovered from his possession. A question is posed that if as a matter of fact the key was recovered only on 14.5.2013, how could the police report the loss of key to the Bank on 13.5.2006.

22. Assume that there is some anomaly in that respect and assume that, that may not have much force on the seizure of the cassettes from the locker and also assume that the locker belonged to the appellant herein, the question that still arises is whether they are admissible in evidence and what is the procedure to be followed. Recapitulating what the court has done in this case, it viewed the cassettes A4 and A5 and C13 multi media card. The court below in its judgment observed that no prosecution witness except the investigating officer P.W.43 identified the participants in A4 and A5 and C13. The lower court in its judgment gives a vivid description of what it had seen in the cassettes.

23. It is based on the viewing of cassettes that the court below initially draws a presumption that there was vaginal penetration in relation to P.W.2. The medical evidence does reveal that she was subjected to sexual intercourse and there is no other material to show that she was sexually assaulted by any other person.

24. But a far more important question remains to be answered. One needs to consider the category of evidence under which the cassettes fall? Are they admissible in evidence? If so, what are the conditions for receiving them in evidence? Finally, is the learned Judge justified in importing his views regarding the participants in the cassettes and also that there was vaginal penetration solely based on what he had seen in the cassettes. There is no other evidence regarding the identification of the victim or the act committed by the accused. As to what constitutes evidence and the rules of admissibility and relevancy of the evidence are covered by the provisions of the Indian Evidence Act. The Act defines 'evidence' as follows: "Evidence" .-"Evidence" means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence." 25. The Act defines 'document' also. The Indian Penal Code as well as the General Clauses Act also define 'document'. The definition of 'document' takes in photographs as could be seen from the illustration to the Section. Going by the definition, 'document' includes all materials or substance upon which thoughts of a man are represented by writing or any other specious of conventional mark or symbol. The essence of a document is that they record information of some sort. Though the definition of document in Indian Evidence Act and General Clauses Act are in pari materia, the definition in I.P.C. slightly differs. 26. In Halsbury's Laws of India, 2007 Reissue, Vol. 15 at page 343 Note 145.142, 'documentary evidence' is defined as follows: " 'Documentary evidence' means and includes all documents including electronic records produced for the inspection of the court. 'Document' means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter. A writing is a document; as are words printed, lithographed or photographed; a map or a plan; an inscription on a metal plate or stone; and also a caricature." In the light of the long line of decisions and the principles laid down therein, it is clear that photographs, audio and video cassettes have all been treated as falling within the ambit of the term 'document'.

27. But there are two categories of such documents. They are, (i) those which fall within the pictorial testimony theory and (ii) those which fall under the silent witness theory category. Pictorial testimony theory or communication theory is based on the notion that any witness with knowledge that a photograph is a fair and accurate representation may testify to the fundamental facts. There is no requirement that the person who took the photograph should testify in order to authenticate the photograph. It is enough that the individual testifying recognises the subject that is depicted in the photograph. Authenticity of the photograph is to be established like in the case of any other document. It must be noticed that documentary testimony theory only covers the admissibility of evidence and it does not refer to the evidence of the photographer as a fact finder. Under the silent witness theory, the following factors will have to be established: "Under "silent witness" theory, testimony, establishing authenticity, integrity, and competency of video recording. Photograph expert's determination that video recording was not altered in any way, built-up or faked. Continuous chain of custody established. Video camera or camcorder was checked and property operating. Video recording is same as what witness saw on playback immediately after recording. No material alteration, surreptitious editing, or fabrications have taken place." 28. In Black's Law Dictionary , 9th Edition, at page 1508, 'silent witness theory' is mentioned as follows: "A method of authenticating and admitting evidence (such as a photograph), without the need for a witness to verify its authenticity, upon a sufficient showing of the reliability of the process of producing the evidence, including proof that the evidence has not been altered." 29. In Halsbury's Laws of England, Fourth Edition, Vol.17, at page 158, it is noticed as follows: "224. Photographs. Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task, or radar echoes or the contents of a lost document. In the High Court a photograph is receivable in evidence at the trial only when certain provisions have been complied with." 30. In Halsbury's Laws of England, Fifth Edition, Vol. 11, at page 723, it is noticed as follows: "958. Photographs, films, records, tape recordings and video recordings. At common law, photographs properly verified on oath by a person able to speak to their accuracy were generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task), or radar echoes or the contents of a lost document. For the purpose of Civil Evidence Act 1995, 'document' means anything in which information of any description is recorded and a similarly wide definition applies for the purposes of disclosure under the Civil Procedure Rules. Thus photographs, films, records, tape recordings and video recordings are all admissible in evidence, subject, if appropriate, to the statutory safeguards with regard to hearsay evidence. Prior notice must be given of a party's intention to put photographs and certain other items in evidence. The court has power to order the photographing of property which is, or may become, the subject matter of proceedings. A witness's evidence may be given by means of a video link where such facilities are available and in appropriate cases, court hearings may be conducted by means of such a link." 31. In Law of Evidence by C.D. Field, Vol.1, 13th Edition at page 355 it is mentioned as follows: "18. Documents.- Besides the Evidence Act, term "document" has been defined in the General Clauses Act, 1897, and Indian Penal Code, 1860, for purposes of comparison the definition given in both these statutes are reproduced below: Section 3(18), General Clauses Act.- "Document" shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter. Section 29, Penal Code.- The word "document" denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter Explanation 1. It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not." It is also clear that photographs, tape recorders, picture clips, video tapes can be used as evidence provided certain conditions are satisfied.

32. It could thus be seen that the tape recorders, audio and video cassettes fall within the definition of 'document'. Wigmore on Evidence, Chgadbourn Revision, Vol.III at page 220, it is observed as follows: 

33. In the decision reported in 

Grant v. Southwestern Properties ((1974 ) 2 All.E.R. 465)

it was held as follows: 

34. In the decision reported in 

Taylor v. Chief Constable Cheshire ((1987) 1 All.E.R. 225)

it was held as follows: 

35. In the decision reported in 

R v. Khan(Sultan) ((1996) 3 All.E.R. 289) 

it was held as follows: 

36. In the decision reported in 

State of Maharashtra v. Praful B. Desai (AIR 2003 SC 2053) 

video recording of evidence has held as proper mode of obtaining evidence. 

37. In the decision reported in 

Tukaram S. Dighole v. Manikrao Shivaji Kokate ((2010) 4 SCC 329) 

it was held as follows: 

38. In the decision reported in 

Nilesh Dinkar Paradkar v. State of Maharashtra ((2011) 4 SCC 143) 

it was held as follows: 

39. Going by the above decisions, though it is clear that tape recordings, video and audio are admissible in evidence, in the decision reported in 

Tukaram S. Dighole v. Manikrao Shivaji Kokate ((2010) 4 SCC 329)

the conditions to be satisfied before their acceptance have been laid down. Going by the literature on the subject and also the principle laid down in the various decisions, it is quite evident that even though the degree or probative value of such evidence may vary depending upon the facts. The method adopted may be the pictorial testimony theory or the silent theory. One fact is absolutely essential and that is, it should be established that they are authenticated copies and accurate copies. 

40. In the decisions relied on by the learned Addl.D.G.P. it is true that video recordings and audio cassettes have been accepted as evidence. There can be no quarrel that they fall under the category of documents and are admissible in evidence provided the conditions are satisfied.

41. In the case on hand, there is no authentication by any expert or any other person regarding the authenticity of the cassettes or in other words, there is no expert's evidence to show that there has not been any tampering with the cassettes. Further, Ext.P70 is the memorandum prepared by the Tahsildar concerned who was asked to view the cassettes as per the orders of the learned CJM Court. He had viewed the cassettes and recorded what he had seen in the cassettes. Shockingly and surprisingly, the said person was not examined and Ext.P70 was marked through the investigating officer and one fails to understand the mode adopted by the prosecution in doing so. 

42. It is stated that a camera was seized from the premises of the accused. But there is no evidence to show that the contents of A4, A5 and C13 multi media card were filmed through that camera. It is also surprising to note that P.Ws. 2, 8 and 9 were not shown the cassettes and questioned as to the other member apart from the accused who was seen in the cassettes.

43. The learned Addl.D.G.P. contended that in the light of the fact that cassettes have been recovered from the locker exclusively belonged to the accused, it was for him to explain its contents. It was further contended on behalf of the State that the evidence of P.W.43, the Investigating Officer, is sufficient.

44. True, in the decisions cited by the learned Addl.D.G.P., it has been held that the evidence of police officer cannot be brushed aside and that may be sufficient under certain circumstances. But that has no application to the case on hand for, in the case on hand, P.W.43 had not seen the cassettes and made identification of the participants in court. All that he says in his evidence is that Ext.P23 mahazar was prepared by him and in that he had stated that he had identified the participants.

45. The evidence furnished by P.W.43 to that effect may not be sufficient in law. Therefore, it follows that none of the prosecution witnesses have identified the participants who was seen along with the appellant herein in A4, A5 and C13 multi media card. Nor is there any authentication of the cassettes or confirmation about its accuracy.

46. Relying on the decision reported ion 

P.C. Purushothama Reddiar v. S. Perumal (1972 KHC 350)

it was contended that once a document is admitted, its contents are also deemed to have been admitted. 

47. It is well settled that admissibility of a document and proof of contents of a document are two entirely different things. More so because even if a document is admitted, it does not follow that contents are proved. Further here it is more a question of identification of the person in A4, A5 and C13.

48. Even assuming that all those infirmities can be overlooked, the question would be whether the court below was justified in viewing the cassettes and based on the identification made by the Judge, entering a finding of guilt.

49. There can be no quarrel regarding the right of the court to view the cassettes like the court is entitled to make a visit of the scene of offence etc. But those are all only for the purpose of appreciating the evidence in the case in a proper manner. However, in the case on hand, based on the identification made by the Judge on viewing the cassettes, a finding of guilt has been entered into. The learned Judge observed that on seeing the cassettes, he is satisfied that one of the participants in A4, A5 and C13 multimedia card is P.W.2.

50. By doing so, as rightly pointed out by the learned counsel for the appellant, he transformed himself as a witness. In the decision reported in 

Pritam Singh v. State of Punjab (AIR 1956 SC 415)

it was held as follows: 

51. In the decision reported in 

Keisam Kumar Singh v. State of Manipur (AIR 1985 SC 1664)

it was held as follows: 

52. In the decision reported in 

State of Kerala v. Aboobacker (2006(3) ILR Kerala 672) 

it was held as follows: 

53. Following the principle laid down in the above decisions, it becomes clear that the act of the learned Judge in substituting himself in the place of a witness and entering a conclusive finding on that basis has no sanction of law. If he acts as a witness, he has necessarily to offer himself for cross-examination and that has not been done in the case on hand. In fact, the only substantive evidence is the impression formed by the learned Judge by viewing the cassettes.

54. The said act of the learned Judge suffers from serious legal infirmities and the said opinion cannot be accepted in evidence. If that evidence is eschewed, there is no evidence in this case to show that the offensive act has been committed by the appellant.

55. Therefore, Crl.Appeal No. 1599 of 2009 has necessarily to be allowed and the conviction and sentence of the accused for the offences under Section 376 of I.P.C are set aside and he is acquitted of the charge against him.

56. Crl.Appeal No. 1630 of 2009 This appeal arises from the conviction and sentence in S.C. 368 of 2008. The victim is P.W.1.

57. The evidence in this case consists of the oral testimony of P.Ws.1, 5 and 7. The court below chose to accept their evidence and also based on the medical evidence made available came to the conclusion that the offences have been committed.

58. Assailing the finding of the court below in this case, the learned Senior Counsel appearing for the appellant contended that the court below was not justified in accepting the evidence of P.W.1 as it does not stand scrutiny nor can it be termed as evidence of a sterling character which would justify a conviction on the sole basis of the evidence of P.W.1. The inherent discrepancies in her evidence, the contradictions brought out in her evidence and inconsistencies in her evidence compared to the evidence of P.Ws.5, 6 and 7 have not been properly considered and had her evidence been considered in the light of the other evidence, it could have been found that P.W.1 is not a reliable witness. The evidence of P.W.5, the father of the victim, is only with regard to what was told to him by his daughter and that does not advance the case of the prosecution much. The evidence of P.W.6 is of no help to the prosecution. The learned Senior Counsel went on to point out that unfortunately the evidence of P.W.7 has been treated as corroborating the evidence of P.W.1 taking aid of Section 157 of the Indian Evidence Act. The learned Senior Counsel went on to point out that even going by the evidence of P.W.7, it was long after the incident that the so-called narration was made by P.W.1 about the incident and if that be so, Section 157 of Evidence Act cannot be attracted. In order to attract Section 157 Evidence Act, the learned Senior Counsel went on to point out that time when the fact took place has considerable relevance and importance. A statement made long after the fact does not fall within the ambit of Section 157 Evidence Act. Learned Senior Counsel went on to contend that it is another facet of res gestea evidence.

59. The learned Senior Counsel appearing for the appellant did not have any quarrel with the proposition that if the evidence of the prosecutrix is of a sterling character and convincing enough, a conviction can certainly be based on the same. But, according to the learned Senior Counsel, when the evidence suffers from intrinsic defects and is belied by other evidence in the case, then the court has to necessarily look for corroboration. If that be the position, in the case on hand, there is no evidence corroborating the version given by P.W.1 and the finding of guilt solely based on the evidence of P.W.1 cannot stand. For the said proposition learned counsel relied on the decisions reported in 

Ramdas v. State of Maharashtra ((2007) 2 SCC 170)

Rai Sandeep v. State (NCT of Delhi) ((2012) 8 SCC 21)

Kaini Rajan v. State of Kerala (2013) 9 SCC 113)

Narender Kumar v. State (NCT of Delhi) ((2012) 7 SCC 171) 

and 

Rajesh Patel v. State of Jharkhand ((2013) 3 SCC 791). 

Accordingly, it is contended that the court below was not justified in coming to the conclusion that the offences have been made out.

60. Learned Senior Counsel also pointed out that the investigation conducted in this case, to say the least, is miserable and several aspects which would have been gone in favour of the accused were deliberately omitted to be looked into by the investigating officer. A reading of the evidence would disclose that there are serious flaws in the investigation which have caused considerable prejudice to the accused and that should have been taken note of by the court below. Viewed from this angle also, learned Senior Counsel went on to point out that the finding of guilt cannot stand. 

61. The learned Addl.D.G.P. on the other hand pointed out that the court below has analysed the evidence of P.Ws.1, 5, 6 and 7 and has come to the conclusion that the evidence of P.W.1 clearly shows that the offences have been made out. The evidence of P.W.7, according to the learned Addl.D.G.P. falls within the ambit of Section 157 of the Indian Evidence Act and sufficiently corroborates the version given by P.W.1. According to the Addl.D.G.P., if the evidence of the prosecutrix is above board and is found to be convincing, certainly a conviction can be based on the same and the court need not look for corroboration. For the above proposition, learned Addl.D.G.P. relied on the decisions reported in 

State of M.P. v. Dayal Sahu ((2005) 8 SCC 122)

Vishnu v. State of Maharashtra (2006(1) K.L.T. SN 80) 

and 

Kamalanantha v. State of Tamil Nadu (2005 KHC 751).

62. As regards the discrepancies and inconsistencies in the evidence of P.W.1, the learned Addl.D.G.P. pointed out that such minor inconsistencies and contradictions are bound to arise and that only shows that P.W.1 is speaking the truth. She has properly explained the delay in lodging the FIS and that seems to be justified also. Learned Addl.D.G.P. pointed out that she is the victim of a most heinous crime and her evidence will have to be appreciated in the light of the said fact. She is an injured witness who now suffers a stigma as a result of the act committed by the accused. The court has to be sensitive in appreciating her evidence and contradictions and inconsistencies which do not affect the core of the prosecution case cannot be given undue importance to doubt the prosecution version. The age of the victim will have to be taken note of while appreciating her evidence. For the above proposition, learned Addl.D.G.P. relied on the decisions reported in 

Muniappan. C v. State of Tamil Nadu (2010 KHC 4621)

Chandrasekhar Sureshchandra Bhatt v. State of Maharashtra (2000 KHC 1674) 

and 

Bhajan Singh @ Harbhajan Singh v. State of Haryana (2011 KHC 4542).

63. The learned Addl.D.G.P. then contended that even assuming that there are some flaws in the investigation, that cannot be a ground to acquit the accused if it is found that the evidence furnished by P.W.1 is sufficient to warrant a conviction. According to the learned Addl.D.G.P. even accepting the contentions raised by the learned Senior Counsel for the appellant, eschewing and discarding the portion of the evidence which consists of inconsistencies and contradictions etc., the core of the prosecution evidence still remains and the evidence of P.W.1 remains unimpeached as regards the actual incident. Relying on the principle falsus in uno falsus in omnibus which does not apply in India, learned Addl.D.G.P. pointed out that there is no harm in eschewing those portions of the evidence which are unacceptable and relying on those portions of the evidence which are sufficient to establish the offence against the accused. Under such circumstances, there is no reason to discard her testimony because some of her statements are found to be false.

64. The main evidence in the case consists of the testimony of P.W.1. She says that she was born on 19.2.1991. Her mother had committed suicide and her sister was married and her father was a carpenter. Her step mother is Tessy. Upto the 4th standard she studied in L.P.School, Thattaram. From the 5th standard to 10th standard, she schooled at LMCC, Pachalam run by Christian nuns. While P.W.1 was studying in the 10th standard, she acquired friendship with one Preety, who came from Santhitheeram and she told her about the life at that place and also that the said institution met the necessary expenses of the poor girls. Food and accommodation are provided there and Preety found it comfortable to stay there. While she was studying in the 10th standard, marriage of her sister had taken place and that had resulted in financial burden to her father who found it difficult to make both ends meet. At that point of time, P.W.6 and Smt.Jannet came to her house and asked her to move to Santhitheeram. They told the father of P.W.1 that there were only a few students there and the institution needed more students. P.W.1 would say that on the next day her father went along with the Sisters to Santhitheeram and he was impressed by the state of affairs there. According to her, her father felt that there was a family atmosphere that prevailed in Santhitheeram. They were given to understand that P.Ws.10 and 11 were running the institution and Warden of the institution was one Santha. The children of P.W.10 and 11 were also staying there. Impressed by the conditions, P.W.1 would say that she was taken to the institution by her father and she joined the institution. She would say that after she joined the institution, three more students came to stay there. As per her evidence, three months after she joined Santhitheeram, the accused happened to come there and she came to know that Santhitheeram was run by a Trust of which the appellant was the President. He was popularly known as Amritha Chaithanya. He used to take children to the park. On one occasion, after taking the children to the park, five of them were taken to his flat including P.W.1. They were taken in the car owned by the appellant. The rest of the children were taken to Santhitheeram in the van owned by Santhitheeram. On reaching the flat, the children were made to stay overnight. P.W.1 would say that in the night the accused slept along with them. But he did no mischief. The next day, one of the children namely, Abhaya, informed P.W.6 about what had transpired on the previous night. P.W.1 would say that P.W.6 immediately contacted the appellant and told him that what he did was wrong. According to P.W.1, the reply given by the appellant was that he was running the Trust and the children were entrusted placing trust on him and no one needs to question his activities.

65. P.W.1 in her evidence says that it so happened that she was weak in mathematics. According to P.W.1, the accused used to verify her performance in examination quite often. Finding that she was weak in mathematics, he asked her to attend tuition class for the same. She was told that she need to attend tuition classes for two days staying in the tuition centre at Panampally Nagar. P.W.1 would say that the appellant contacted P.W.6 and obtained leave from the school. P.W.12 told P.W.1 that her father would come and take her to the tuition centre on the next day, otherwise, the appellant would take her to the tuition centre. According to P.W.1, on 5.1.2005, her father did not come and on getting into contact with the accused, she was told that the second accused would pick her up. The second accused arrived with the vehicle and she was taken to the flat of the appellant. When she asked about going for tuition, the accused is alleged to have told her that since it was afternoon, she could attend the tuition on the next day. P.W.1 would say that while she was being taken to the flat, the second accused bought her food. P.W.1 would further say that on reaching the flat of the accused, she did not find Smt.Princy working there who normally would be there on every day. She was taken to the room and TV was switched on. P.W.1 would say that she was asked to pick lice from his head. While she was doing that act, the accused began to caress her body. She warded off his act. At that time, a telephone call made him leave the place. She would say that she was confused and cried. She thought of escaping from the place and went to the door and found it bolted from outside. On that day, after about 6.30 p.m., P.W.1 would say that the appellant is alleged to have reached the place. P.W.1 was asked to lay on bed and he undressed her. So did the appellant. P.W.1 would say that she was brutally ravished. Though she cried in pain, the accused pacified her by saying that these are normal things and there is nothing wrong in the act. He also cautioned her that if she disclosed the incident to anybody, her future will be in jeopardy and he had nothing to lose. The next day morning, the second accused came and picked her up and took her to the tuition centre. At the tuition centre, she was introduced as an inmate of Santhitheeram and one Shalini teacher took her tuition classes. She would say that food was provided from the tuition centre. At about 3 p.m. on that day, i.e. on 6.6.2006, she was picked up from the tuition centre and taken to the flat. When she reached the flat, the accused was not there. She was left alone in the flat. She did not know what to do. The appellant came in the night and repeated the act. On the next day, she was given a sum of Rs.100/- and she was asked to phone him frequently. P.W.1 would say that she went to the school from the flat and then she went to her house. The further evidence of P.W.1 is to the effect that during the study holidays, the accused came to her house and asked her to return to Santhitheeram. When she refused, she was threatened that he had her nude photographs which he would circulate and that would humiliate the victim. Though he went away on that day, he returned on another day and on that day P.W.1 was alone at home. She was taken by the accused to the flat. The act was repeated. P.W.1 would say that she felt helpless and hopeless and she did not resist.

66. In the end of April, 2006, P.W.6 informed P.W.1 about the prayer meeting and convention that was being held at Don Bosco and asked her to attend the same. The function was captioned as 'Arise 2006', which was a five day camp. P.W.1 would say that she stayed there for all the five days. While attending the function she says that she had occasion to meet P.W.7 Rexy who was working as Counsellor, and she narrated the traumatic experience to him. P.W.1 would say that P.W.7 advised her not to agitate the issue in court and God will take care of the sinners. P.W.1 would say that she came to know that P.W.7 conveyed the information to P.W.6. P.W.1 then would say that she disclosed the entire incidents to her father, P.W.5. After completing the 10th standard, she procured admission in a College at Aluva at the behest of P.W.6. P.W.1 would say that she happened to come across news item regarding the exploits of the appellant and then she felt that she too should complain about the experience she had. She says that she along with her father went to the police station on 18.5.2006 and gave first information statement. She would say that she was taken for medical examination.

67. In cross-examination, she deposed that all the details were not given at the time of furnishing FIS. Two or three weeks thereafter the C.I. took the statement and she gave more details. On the second occasion she mentions about the incident in the flat. The next day further statement was taken. The victim would say that she had narrated the incidents to the police officer. At the relevant time her father was injured and was remaining at home. She would also say that though her sister was very affectionate to her, she did not disclose the incidents to her. P.W.1 would say that she used to be threatened and harassed over phone. Then ultimately she disclosed the incident to her sister also. She would say that three others also used to threaten her and one of them is Abhilash, the cousin of the accused and he offered her money.

68. It was pointed out by the learned Senior Counsel for the appellant that even going by the evidence of P.W.1, P.W.6 was her class teacher and it was at her behest she was taken to Santhitheeram. In cross-examination, P.W.1 did say that P.W.6 liked her very much, but not vice versa. In cross-examination, she corrected herself that she had gone to the flat of the appellant on the last occasion in April and not in May. In cross-examination, she also stated that after the results of SSLC examination was announced, she had gone to the flat of the accused. She denied the suggestion in cross-examination that she had infact stated that the last incident occurred in May and finding it incompatible, at the time of evidence, she switched the last incident to April to suit the convenience of the prosecution. Her statement is to the effect that she had disclosed to the doctor that she was assaulted two years before, but that was not seen recorded. Her statement in cross-examination was that she had complained to the doctor that she had been repeatedly harassed by the appellant. Her attention was drawn to the fact that on 16.1.2008 and the subsequent working day she had not informed the police that she had taken leave and gone to tuition. Her attention was drawn regarding the absence of mention of the name of the tuition teacher. In cross-examination she stated that tuition centre was not at Panampally Nagar, but actually situate in Ernakulam North. In cross-examination, she also stated that the first incident was not on 15.1.2006, but on 16.1.2006 and this according to the learned Senior Counsel is deliberate because 15.1.2006 is a Sunday and if that be so, it will not be in consonance with the statement given by P.W.1 in chief-examination. According to the learned Senior Counsel, very cleverly she therefore switched the first incident to 16.1.2006. It was suggested to P.W.1 that she had signed in a blank paper on which a statement was later drawn up. She also denies the suggestion that she was thrown out of Santhitheeram due to her indiscipline.

69. P.W.5 is the father of P.W.1. He stays with his wife Tessy, P.W.1 himself and Albil. The elder daughter had been given in marriage. He speaks about the circumstances under which P.W.1 happened to be put in Santhitheeram and the association with P.W.6. He deposed that P.W.6 had high opinion about the institution. According to him, P.W.1 joined Santhitheeram in 2005. In December, 2005, a meeting of the parents was convened and he had attended the same. P.W.5 would say that then the appellant told him that his daughter is weak in mathematics and he has arranged tuition for her. According to him, for 3-4 days she had gone for tuition and he asked her where she had stayed in the night. P.W.1 is alleged to have told him that she had stayed in the flat of the accused. That was not to the liking of P.W.5 who claims that he scolded her. He says that on one occasion he was called urgently to Santhitheeram and P.Ws.10 and 11 told him about the disobedience displayed by P.W.1 and sent her away with him. He says that thereafter on two or three occasions, the appellant had taken his daughter to his flat.

70. P.W.6 was once the class teacher of P.W.1. She would say that she was a teacher in LMCC School. In 2005 she was the class teacher of X-C standard. Preethy, a student of her class came from Santhitheeram and she found a person outside the class room on various occasions. When enquired about it, the person introduced himself as Purushothaman and told her about Santhitheeram and the facilities offered to the students from Santhitheeram. P.W.6 would say that Sister Jannet and she had visited Santhitheeram, P.W.6 would say that when she visited Santhitheeram she had not met the appellant. She in her evidence says that after the students joined Santhitheeram, they were found to be less talkative and were seen moody. She then says about the five day programme at Don Bosco School which was attended by P.W.1. She stated that on the last day of the convention, P.W.7 had told her that the appellant could not be trusted.

71. P.W.7 claims to have taken classes in the five day convention at Don Bosco School and also acted as a Counsellor. He was a member of a social organization and he had taken courses in Counselling. During his class, he indicated to the children that if any one of them needed his advise, they could approach him. He would say that P.W.1 later came crying to him and narrated to him what had transpired at Santhitheeram. He would say that he had conveyed the information to P.W.6.

72. P.W.1's evidence is sufficiently corroborated by the medical evidence furnished by P.W.35 which would indicate that P.W.1 suffered vaginal penetration.

73. The main criticism levelled against the evidence of P.W.1 is that she is a witness unworthy of credit. Her evidence is full of inconsistencies and contradictions and she keeps on developing her case from stage to stage. The last of the incidents occurred in 2006 and she did nothing till 2008. Attention was drawn to the fact that finding that her claim that the first incident was on 15.1.2006 would not stand scrutiny, according to the learned Senior Counsel for the appellant, she conveniently changed it to 16.1.2006 and if that be so, the second incident would have taken place on 17.1.2006. Her versions in chief-examination are proved to be false in cross-examination. It was pointed out that the evidence shows that she was expelled from Santhitheeram in December, 2005 and there is nothing to show that she had rejoined the institution. Drawing attention to the evidence of P.W.6, it was pointed out by the learned counsel that the claim of P.W.1 that P.W.6 was in the know of things of what had transpired in Santhitheeram is not correct because P.W.6 would deny such information. It was further pointed out that P.W.1 has also shifted the tuition centre from Panampally Nagar to another place. It is significant to notice, according to the learned Senior Counsel that the tuition centre has not been located and there is nothing to show that P.W.1 had gone for tuition as claimed by her. If the tuition theory fails, then the entire prosecution case falls to the ground. Learned Senior Counsel for the appellant also pointed out that if the two days on which tuition was arranged were 16th and 17th of January, 2006, those was working days. The prosecution deliberately did not produce the attendance register of the school to show whether P.W.1 had actually attended the school on those days. It is significant to notice, according to the learned Senior Counsel for the appellant that there was no attempt to locate the tuition centre even after P.W.1 mentions about the name of the teacher and also that lunch was provided from the tuition centre. These facts would make the evidence of P.W.1 open to serious doubt and it will be imprudent on the part of the court, according to the learned Senior Counsel, to simply accept the evidence of P.W.1 to find the accused guilty.

74. One fact may be noticed. There is clear evidence to show that P.W.1 was subjected to sexual intercourse. She was examined by the doctor on 18.5.2008 and Ext.P1 is the certificate.

75. True, there are contradictions both intrinsic and in other ways regarding the evidence furnished by P.W.1. P.W.1 had initially stated that the first of the incidents had taken place on 15.1.2006 and the second incident on 16.1.2006 and the last of them in April, 2006. There is also some controversy and contradiction with regard to the last of the incidents. In one of the statements she had started that it was in May, 2006, while in court she had stated that it was in April, 2006. The evidence of P.W.1 will be dealt with little later.

76. P.W.5's knowledge regarding the incident is what is told to him by his daughter. However, he admitted that his daughter was sent out of the institution complaining of disobedience. There was no attempt from the side of the prosecution to elicit from him that at the relevant time, P.W.1 was staying in Santhitheeram. How far that failure on the part of prosecution to do so will affect the evidence of P.W.1 is a different question. It has come out from the evidence of P.W.5 that the victim had gone for tuition from the house of P.W.5. He says that 3 - 4 days she went for tuition and on one day she is stated to have stayed in the flat of the accused, to which objection was taken by him. He also says that 2 - 3 times later P.W.1 was taken to the flat by the accused. A reading of his evidence would indicate that the expulsion of his daughter was after all the incidents were over cannot obviously be true. But as already noticed, his evidence needs to be considered only in the context of what was told to him by his daughter. However, the statement made by P.W.5 that the narration of the incident by P.W.1 to him was soon after the convention held in April, 2006 is not seen challenged in cross-examination. He has also offered explanation for the delay in lodging the FIS.

77. It is painful to note that P.W.6 was very keen to withhold the real facts and there was no serious attempt from the side of the prosecution to elicit from this witness the truth. She disowned that it was at her behest that P.W.1 was shifted to Santhitheeram. She also feigned ignorance about the sexual assault on P.W.1. A reading of her evidence along with the evidence of P.Ws.1, 5 and 7 would clearly reveal that she is speaking utter falsehood before court. There is ample evidence or other evidence which will clearly expose her attempt to conceal many crucial aspects.

78. P.W.7 claims to have acted as a Counsellor. He has no qualification justifying his act of counsellng. But however he says that he has undergone a training in that regard. His evidence falsifies the evidence of P.W.6 regarding other aspects.

79. Ultimately, the issue revolves around the credibility, worthiness, weight and acceptance of the evidence of P.W.1. Even if there are infirmities and inconsistencies in her evidence, and even if there is a deviation and departure by her at the time of giving evidence in court compared to her earlier statements, if the residue of her evidence inspires confidence in the mind of court and there is nothing to show that she had any reason to speak falsehood or that her evidence is completely tainted and the available evidence is sufficient to establish the prosecution case, that will satisfy the requirements of law.

80. There may be inconsistencies with regard to the actual date of assault also. But one should remember that the victim is speaking about an incident which is horrifying and shattering and which has affected her both mentally and physically.

81. It is true that the burden is on the prosecution to establish all the ingredients to attract the offences. The presumption of innocence in favour of the accused increases the burden on the prosecution.

82. What constitutes sufficient evidence to establish a fact is a difficult question to answer. There is no universal formula or rule or law regarding that aspect. One could say that it is that evidence which has the power to satisfy the conscience of the court about the existence of a fact and that produce belief. One cannot say what exactly is the quantum or kind of evidence that needs to be adduced in this regard.

83. The weight to be given to the testimony of a witness depends to a large measure upon the credibility of the witness. The evidence adduced may be in the form of oral or documentary evidence.

84. In Halsbury's Laws of England, 5th Edition, Vol.11 at page 568 Note 766, it was held as follows: 

85. It is definitely impossible to get absolute certainty. Pragmatic approach and degree of probability are the criterion. The evidence may often fall short of absolute certainty. The law does not insist upon absolute certainty as could be seen going by the definition of 'proved' in the Indian Evidence Act, which reads as follows: 

No precedents can help in appreciation of evidence. There is no rule that a minimum number of witnesses are necessary to prove a fact and the evidence may consists of the solitary testimony of a prosecutrix. 

86. While suspicion cannot take the place of truth, insistence of absolute certainty will be impracticable as well as imprudent. A fact may be proved by any means known to law. Proof is in fact the effect of evidence. In a case built on circumstantial evidence, there is a probability of conjunctures and surmises creeping in though it is said "men may lie, but circumstances do not".

87. One fact is very clear and that is one does not begins to appreciate the evidence with a suspicion or doubt in mind. Sufficiency of material is a question not to be decided on whether more evidence could have been adduced. It is said that in criminal cases, a higher standard of proof is insisted upon, to be more precise, proof beyond reasonable doubt.

88. In Halsbury's Laws of India, Vol.15 at page 169 Note 145.025 it was held as follows: 

89. In the decision reported in 

Ramesh Harijan v. State of U.P. (AIR 2012 SC 1979) 

it was held as follows: 

90. It is well settled that the evidence has to be read as a whole. By reading the evidence of a witness, his credibility will have to be determined. Creditworthiness means whether the witness is capable of being believed, is he/she is worthy of belief or confidence and of trustworthy. 

91. There is no settled pattern or rule to ascertain the truth. Some of the tests are; 

92. Sarkar on Law of Evidence, 6th Edn. Vol. 2, at page 2396 would observe as follows: 

93. Credibility is something instinctive and personal to a Judge and not amenable to precedents. Credibility in short involves the issue whether the witness appears to be telling the truth as he believes it to be. Slight discrepancies and inconsistencies are not to be given undue importance. One should remember that the capacity of perception, retention and reproduction varies from person to person. Variation may occur due to several other factors and due to passage of time. Those minor inconsistencies and contradictions are not to be taken as indicative of the fact that the witness is not telling the truth. Witnesses are prone to exaggerations, embellishments and developments. The test is to see whether the so-called variations are of material nature affecting the prosecution case. It is infact an objective assessment, but a certain degree of subjective satisfaction is bound to creep in. 

94. In the decision reported in 

Thoti Manohar v. State of Andhra Pradesh ((2012) 7 SCC 723) 

it was held as follows: 

95. In the decision reported in 

Alagupandi v. State of T.N. ((2012) 10 SCC 451) 

it was held as follows: 

96. As regards reliability of witness, in the decision reported in 

Kuria v. State of Rajasthan (AIR 2013 SC 1085) 

it was held as follows: 

97. In appreciating the evidence of witnesses, the court has to make an over all assessment and the function of the court is to sift the chaff from the grain. 

98. In Halsbury's Laws of India, Vol.15 at page 180 it was observed as follows: 

99. The duty of the court in this regard is well settled. In the decision reported in 

State of Maharashtra v. Siraj Ahmed Nisar Ahmed ((2007) 5 SCC 161)

wherein it was held as follows: 

Guidance is available from the decision reported in 

Subal Ghorai v. State of West Bengal ((2013) 4 SCC 607) 

regarding the manner in which evidence is to be appreciated.

100. Next is the need for corroboration. It is not a rule of law but a rule of prudence. Corroboration becomes necessary when the court is not satisfied with the evidence of a particular witness. If the evidence of the witness is clear, cogent and convincing, then the court need not go in search of corroborative items. It is well settled that absence of corroborative evidence does not affect the available evidence. Wigmore on Evidence, Vol.VII at page 342 it was observed as follows: 

101. The next question that arises for consideration is if the prosecution is left with the solitary evidence of P.W.1, will that be sufficient? 

102. Wigmore on Evidence, Vol.VII at page 451, it was observed as follows: 

103. In the decision reported in 

Narender Kumar v. State (NCT of Delhi) ((2012) 7 SCC 171) 

it was held as follows: 

104. In the decision reported in 

Rai Sandeep v. State (NCT) of Delhi (AIR 2012 SC 3157)

it was held as follows: 

105. In the decision reported in 

State of Haryana v. Basti Ram (AIR 2013 SC 1307)

it was held as follows: 

106. Bearing the above principles in mind, an evaluation of the evidence of P.W.1 would be made to ascertain whether it is sufficient to reach a conclusion regarding the offences attributed to the accused. But before going into that aspect, one fact needs to be noticed. The investigation in this case is found to be wanting in many aspects. Many of the crucial aspects have been left untouched by the investigating agency. Quite a few material documents have not been produced and several aspects which needed to be looked into were not probed into also. But the flaws in investigation may not be a ground to throw out the prosecution case.

107. In the decision reported in 

Zindar Ali Sheikh v. State of West Bengal ((2009) 3 SCC 761)

it was held as follows: 

108. In the decision reported in 

Karan Singh v. State of Haryana (AIR 2013 SC 2348)

it was held as follows: 

109. In the decision reported in 

Dayal Singh v. State of Uttaranchal (AIR 2012 SC 3046)

it was held as follows: 

110. Coming back to the evidence in this case, the prosecution has to succeed or to fail depending upon the acceptability or non-acceptability of the evidence of P.W.1. She is a rustic witness though she is a brilliant student. It is quite unfortunate that misfortune of the present nature has fallen on her. 

111. As already noticed, there are certain inconsistencies, developments and contradictions in the evidence of P.W.1. It consists of self contradictions also. But while evaluating the evidence of the victim of rape, one fact will have to be borne in mind. It is an abhorrent crime, something which is unacceptable to both the victim and to the society. The victim of offence is certain to have moral indignation and absolute hate for the accused who has robbed her of a very precious asset. Therefore, there will be a tendency to exaggerate and develop at the stage of giving evidence in court.

112. Even if one concedes that there has been a conscious attempt to shift the incident from 15.1.2006 to 16.1.2006 probably realizing that 15.1.2006 was a Sunday, is it sufficient to disbelieve her whole evidence? Whether the first incident is on 15.1.2006 or 16.1.2006, is not of much significance. At any rate, P.W.1 is consistent that on 16.1.2006 she was raped by the accused. The fact that the investigating agency has not bothered to seize the records of the school or Santhitheeram cannot affect the veracity of the testimony of P.W.1.

113. It is true that there seems to be a lot of confusion regarding the number of times she was subjected to sexual assault. It seems to be on three occasions going by the evidence of P.W.1. Relying on the fact that going by the evidence of P.W.1, on the second day when she was taken from the tuition class to the flat, for a long time she was alone in the flat and she could have sought for help, and the inaction on the part of P.W.1 to draw the attention of people belies her version.

114. Here one has to appreciate the predicament in which P.W.1 was placed. On the previous day she was a prey to the lust of the accused who raped the victim. Considering the age of the victim, the circumstances in which she was placed, the fact that she did not rebel or muster courage to seek help or she did not raise a hue and cry cannot go against her. The agony of a poor girl who felt lost and who was apprehensive about her future could be well understood. She might have not been fully aware of the consequences of what had happened to her. A girl of tender age, who suffered a most inhuman act at the hands of the accused, if was unable to respond considering the influence and cult wielded by the accused, she could not be found fault with.

115. It is here one has to notice that there was no attempt from the side of the defence to show that the victim was not an inmate of Santhitheeram nor was there any attempt to show that the victim was not a resident of Santhitheeram at the relevant time. It is also significant to notice that there is no reason suggested to P.W.1 as to why she should falsely implicate the accused. It is difficult to believe that a girl of her age would have masterminded such a humiliating move especially against the accused who at the relevant time had lot of wealth with him and actually enjoyed patronage from several quarters. One has to be sensitive, considerate and sympathetic to the plight of the victim. One should remember that by deposing before court about the incident, she is made to recollect the harrowing incident. One aspect needs to be noticed here. In cross-examination, to a question she replies as follows: " ." Such spontaneous natural reaction of P.W.1 shows that there is a ring of truth in her evidence.

116. The age of the victim, the position in which she was placed and the impact of disclosing the agonizing incident will have to be taken note of while appreciating her evidence. By disclosing the incident, it is not as if P.W.1 stand to gain anything, but she becomes an object to ridicule before the society. The society will thereafter look upon her with suspicion even though she is an innocent victim. One should remember that the stigma remains forever. Under these circumstances, it is extremely difficult to believe that P.W.1 would come forward with a false story.

117. It is in this context one will have to appreciate the failure of the investigating officer to locate the tuition centre, to seize the records relating to the school and Santhitheeram etc. Of course, as already noticed, there have been some significant departures made by P.W.1 in her evidence. True, there are inconsistencies between her statement in chief-examination as well as in cross-examination. But they are not so material so as to affect the core of the prosecution case. Even assuming that the contradictions, inconsistencies and developments are all eschewed for consideration, there remains the residua evidence furnished by P.W.1 which would show that she had been a prey to sexual assault by the accused. It is not the rule that if a portion of the evidence of a witness is found to be untrue, the entire evidence has to be eschewed from consideration. The court will well within its powers to accept that portion of the evidence which is found reliable and base its conclusion thereon.

118. The non-location of tuition centre and failure to seize attendance register of the school where P.W.1 at the relevant time was studying cannot be grounds to suspect the testimony of P.W.1.

119. One has to remember that in a case of rape, it is extremely difficult to get corroborative items of evidence for, the act is done in secrecy. One should remember in this case, the appellant stood in a fiduciary capacity and he exploited the victim to his advantage. The victim was at his mercy. She had no choice.

120. It will be imprudent on the part of the court to insist for mathematical precision regarding the narration of incident by P.W.1. She was giving evidence after a long time and her statements were taken on several occasions by the police. Merely because there is some deviation from her previous statements, what is obvious, that is not sufficient to impeach her evidence. It is sad to note that the prosecution was betrayed by P.W.6. Such conduct was not expected from P.W.6 who has entered the holy order. Therefore, one is left with the solitary evidence of P.W.1 regarding the incident and medical evidence.

121. It is significant to notice that the evidence of P.W.1 is to a great extent in consonance with the first information statement given by her. The fact that there is no serious contradiction between the evidence in court and the statements contained in the FIS to a great extent guarantees the version given by P.W.1 in court.

122. There is no justifiable reason as to why one should doubt the version given by P.W.1. 

123. The court below was therefore perfectly justified in acting on the testimony of P.W.1 and finding the accused guilty. No grounds are made out to interfere with the conviction and sentence passed by the court below in this regard. The appeal is only to be dismissed. 

In the result, Crl.Appeal No. 1599 of 2009 is allowed setting aside the conviction and sentence passed in S.C. 369 and 429 of 2008 and the appellant is acquitted of the charges levelled against him. Crl.Appeal No. 1630 of 2009 is dismissed confirming the conviction and sentence passed by the court below in S.C. 368 of 2008. 

P. BHAVADASAN, JUDGE 

sb.