PARMINDER KAUR @ P.P. KAUR @ SONI versus STATE OF PUNJAB on 28 July 2020

SUPREME COURT REPORTS

[2020] 6 S.C.R.

APARMINDER KAUR @ P.P. KAUR @ SONI

v.

STATE OF PUNJAB

(Criminal Appeal No. 283 of 2011)

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JULY 28, 2020

[N. V. RAMANA, SURYA KANT ANDKRISHNA MURARI, JJ.]

Penal Code, 1860 – ss.366A and 506 – Case of prosecutionthat the appellant, a single lady who had a young boy as her tenant,Clived in minor prosecutrix’s (PW1) neighbourhood – She tried toentice the prosecutrix to indulge in illicit intercourse with the richtenant boy and allegedly pushed her into the room occupied by himand bolted it from outside – Door was unlocked after five minutes,with prosecutrix’s father (PW2) standing outside – Boy escaped–DMatter was reported only after the appellant allegedly threatenedto kill prosecutrix’s brother if anyone was informed – Alternateversion given by appellant u/s.313,CrPC was rejected – Convictedu/ss.366A, 506 – Held: Five day delay in registration of FIR gainsimportance as the father of the victim is an eye-witness to a part ofthe occurrence – Difficult to appreciate that a father would await aEsecond incident to happen before moving the law into motion – Nocomplaint registered against the tenant boy who was not even traced– Numerous contradictions between testimonies of PW1 & PW2,which are fatal to prosecution’s case – Important links of the story,including what happened in the crucial five minutes when the girlFwas locked inside the room or how the male tenant reacted, aremissing – Appellant’s alternate version that there was no male tenantat all and no one except her child and mother lived with her andthat she was falsely implicated as vengeance for filing rape complaintagainst the person with whom the prosecutrix’s father used to work,could not be lightly brushed aside – Prosecution failed to proveGappellant’s guilt u/ss.366A & 506 beyond reasonable doubt – CrPC,1973 – s.313.

Code of Criminal Prcedure, 1973 – s.313 – Held: Once aplausible version is put forth in defence at the s.313 examinationstage, then it is for prosecution to negate such defense plea.H

Criminal Law – Sexual Offences – Delay in FIR – Sweepingassumptions by Courts – Effect of – Discussed.

Criminal Law – Re-appreciation of evidence by Supreme Court– Discussed.

Allowing the appeal, the Court

HELD 1.1 The five-day delay in registration of the FIR, inthe facts and circumstances of this case, gains importance as thefather of the victim is an eye-witness to a part of the occurrence.It is difficult to appreciate that a father would await a secondincident to happen before moving the law into motion. Sweepingassumptions concerning delays in registration of FIRs for sexualoffences, send a problematic signal to society and createopportunities for abuse by miscreants. Instead, the facts of eachindividual case and the behaviour of the parties involved oughtto be analysed by courts before reaching a conclusion on thereason and effect of delay in registration of FIR. In the presentcase, neither is Section 366A by itself a sexual offence in thestrict sense nor do the inactions of the prosecutrix or her fatherinspire confidence on genuineness of the prosecution story. PW-1 and PW-2 differed in their physical description of the boy’s age,clothing and his whereabouts. If the boy was indeed a tenant andif he did live there for months, it is highly mootable that hecouldn’t have been traced. Lack of examination of materialindependent witnesses, adversely affects the case of theprosecution. [Paras 11, 13, 15][515-A-C; 516-A; 516-D]

1.2 Ordinarily, the Supreme Court ought not to re-appreciateevidence. However, where the courts below have dealt with thematerial-on-record in a cavalier or mechanical manner likely tocause gross injustice, then this Court in such exceptionalcircumstances may justifiably re-appraise the evidence to advancethe cause of justice. Such re-assessment ought not to take placeroutinely and ought not to become substitution of an otherwiseplausible view taken by the Courts below. There are numerousclear contradictions between the testimonies of the two star-witnesses, which is fatal to the prosecution case. Important linksof the story, including what happened in the crucial five minuteswhen the girl was locked inside the room or how the male tenant A

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Areacted, are missing. Similarly, other links of the story are grosslyinconsistent and don’t fit with each other. [Paras 16, 17, 19 and20][516-G-H; 517-A, C; 518-B-C]

1.3 Once a plausible version has been put forth in defenceat the s.313 CrPC examination stage, then it is for the prosecutionBto negate such defense plea.The alternate version given by theappellant could not be lightly brushed aside. Her two-part defencewas that first there was no male tenant at all and no one exceptfor her child and mother lived with her, and second, that she wasbeing falsely implicated as vengeance for filing a rape complaintagainst one ‘BS’ with whom the prosecutrix’s father used to work.CA rape complaint had indeed been made by the appellant againsthim approximately seven months previous to the present incident.DW-1, who lived in the neighbourhood of the parties, bothsupported the appellant’s claim that there was no male tenant inher home and created sufficiently reasonable connection between D‘BS’ and the prosecutrix’s father by volunteering that PW-2 wasresiding in BS’s premises. The trial Court’s analysis of theappellant’s Section 313 defence ought to have been deeper, beforeconcluding it as being false or untrustworthy. Given the facts ofthis case where the common testimony of PW-1 on both chargeswas doubted, it would be unwise to rely upon it as the sole pieceEof evidence to convict the appellant for criminal intimidationwithout any other corroboration. [Paras 21-25][518-F-H;519-A-G]

Kamij Shaikh v. Emperor AIR 1948 Pat 73 – approved.

FMusauddin Ahmed v. State of Assam, (2009) 14 SCC541 : [2009] 9 SCR 1135; Takhaji Hiraji v. ThakoreKubersing Chamansing and Ors. (2001) 6 SCC 145;Reena Hazarika v. State of Assam (2019) 13 SCC 289 :[2018] 13 SCR 1108; M Abbas v. State of Kerala (2001)10 SCC 103; Manik Taneja & Anr. v. State ofGKarnataka & Anr. (2015) 7 SCC 423 : [2015] 1 SCR156 – relied on.

Bhupinder Sharma v. State of Himachal Pradesh (2003)8 SCC 551 : [2003] 4 Suppl. SCR 792 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.283 of 2011.

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From the Judgment and Order dated 30.11.1999 of the Punjaband Haryana High Court at Chandigarh in Criminal Appeal No. 305-SBof 1999.

Dushyant Parashar, Dinesh Pandey, Manu Parashar, Ms. JaspreetGogia, Advs. for the appearing parties.

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The Judgment of the Court was delivered by SURYA KANT, J.

1. The present Criminal Appeal has been preferred by ParminderKaur, impugning the judgment dated 30.11.2009 of the High Court ofPunjab and Haryana through which her challenge to a judgment dated27.02.1999 passed by the Additional Sessions Judge, Barnala was turneddown, thereby confirming her conviction of three years rigorousimprisonment and fine of Rs. 2000 under Sections 366A and 506 of theIndian Penal Code, 1860 (“IPC”).

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FACTS & CASE HISTORY

2. The prosecution story, as recorded in the FIR at around noonon 24.02.1996, was that the appellant was a single lady living with herchild, mother and a young boy as her tenant in the neighbourhood of theprosecutrix’s[1] house. About a week prior to registration of the policecomplaint, the appellant called the prosecutrix to her house and tried toentice her to indulge in illicit intercourse with the rich tenant boy in returnfor clothes and trips from him. The appellant at about 6.00 A.M. on G

1 The name of the prosecutrix/victim has been withheld, in compliance with the ratio inBhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551.

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A19.02.1996, allegedly pushed the visiting prosecutrix into the roomoccupied by the tenant boy and bolted it from the outside. It was only onhearing the prosecutrix’s screams that after five minutes the door wasunlocked, with her father (Hari Singh, PW-2), Bhan Singh and KarnailSingh standing outside. Swiftly, the boy ran out of the room andsuccessfully escaped. Upon the prosecutrix emerging from the room,Bher father protested and expressed his dismay to the by-standing appellant.Scared for their reputation, the prosecutrix and her father returned totheir home without reporting the matter to anyone, except theprosecutrix’s mother. However, on 24.02.1996 at 7.00 A.M., the appellantcaught hold of the prosecutrix outside her house and threatened to killCher brother if anyone was informed of the matter. The prosecutrix wasable to escape the appellant’s clutches and worried at this high-handedness, proceeded with her father towards the police station toreport these two incidents and lodged a complaint.

3. During trial, the prosecution examined five witnesses, includingDthe prosecutrix (PW-1), her father (PW-2), the draftsman who preparedthe site plan (PW-3), the headmistress who proved the prosecutrix’s age(PW-4) and the investigating officer (PW-5). The appellant, in turn, bothdenied all allegations and examined one witness of her own – a neighbour,Gurnail Singh (DW-1) and offered an alternate version in her statementunder Section 313 of the Code of Criminal Procedure, 1973 (“CrPC”),Eclaiming that there was no tenant at all in her home and that the complaintwas nothing but motivated revenge at the instance of one Bhola Singhagainst whom she had levelled allegations of rape a few months ago.

4. This alternate version was summarily rejected by the trial Courtwhich concluded that the appellant’s claim of the complaint being at theFinstance of Bhola Singh was unlikely both because malicious prosecutionof sexual abuses involving minors, at the instance of third parties, wasimprobable; and even DW-1 in his cross-examination had admitted thatHari Singh was a permanent employee of the Irrigation Department andcould not be a Karinda (employee) of Bhola Singh as claimed by theGappellant.

5. Relying upon the school records produced by DW-4, the Courtobserved that the prosecutrix was studying in Class VII with date ofbirth as 12.04.1982, thereby unimpeachably making her a minor. Withoutdelving into the elements of Section 366A or 506 IPC, or whether each H

individual ingredient had been satisfied by the prosecution, the learnedAdditional Sessions Judge focused on negating the defences projectedby the appellant. In response to the contradictions between importantaspects of the prosecutrix and her father’s testimonies, like differencesin physical description and antecedents of the male tenant and the inabilityof the witnesses and the police to catch or trace the boy, the trial Courtinstead noted that there was no reason to disbelieve the prosecutrix andher father. The five-day delay in registration of the FIR was condonedfor having arisen out of natural fear of reputation of the prosecutrix andher family, as well as the mild severity of the case. Similarly, the non-examination of the other two independent witnesses, Bhan Singh andKarnail Singh was ignored as being normal reluctance of bystanders incases where there was no rape or assault.

6. Accordingly, the trial Court held that the appellant hadintentionally induced the prosecutrix to perform illicit intercourse withher male tenant, and that she had also criminally intimidated the prosecutrixby threatening her family member. Noting the large number of dependentsthat the appellant had to support as a single lady, and considering thelack of commission of any assault or rape against the prosecutrix, theappellant was concurrently sentenced to three years rigorousimprisonment and fine of Rs 2,000 (or further six months rigorousimprisonment in lieu thereof) under Section 366A, and one year rigorousimprisonment and fine of Rs. 1,000 (or further three months rigorousimprisonment in lieu thereof) under Section 506 of IPC.

7. The aggrieved appellant approached the High Court which toorefused to interfere with the order of conviction. While dismissing theappeal, the High Court observed that the statement of the accused underSection 313 CrPC appeared to be an after-thought, and that in the absenceof any evidence proving enmity between the parties it was impossiblethat anyone would falsely implicate a woman in such like offence. Theminority of the prosecutrix was noted as having been proved, and thetestimonies of PW1 and PW2 were held to be impeccable andcorroborating each other completely. Similar to the trial Court, the HighCourt also explained-away the delay in registration of FIR as a result offamily reputation put at stake in matters of sexual offence cases. Otheromissions in the form of non-examination of Bhan Singh and Hari Singhand failure to catch or trace the identity of the male tenant were deemedinsignificant and immaterial.

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ACONTENTIONS OF PARTIES

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ACONTENTIONS OF PARTIES

8. The judgments of the trial Court and High Court have beenelegantly assailed before us by learned counsel for the appellant whocontended that the testimonies of the two star-witnesses, being full ofmaterial contradictions, are far from reliable. The delay in registration ofBthe FIR and the lack of any attempt to catch or even later trace the maletenant showed that the story was concocted by the prosecutrix’s familywith ulterior motives. Reliance was also placed on the denial and alternateversion put forth by the appellant in her statement under Section 313CrPC, and the failure of the Courts below to either examine such statutorystatement in-depth or for the prosecution to belie it effectively. EmphasisCwas laid on the statement of DW-1 who volunteered during his cross-examination that PW-2 was then living in the house owned by BholaSingh, the person against whom the appellant had alleged rape. Thedeleterious effect of these proceedings on Bhola Singh’s trial and hissubsequent acquittal on grounds that Parminder Kaur (the appellant here)Dwas a lady of questionable character who indulged in trafficking of minors,was highlighted to show colourable motive behind registration of thiscase against the appellant.

9. On the contrary, learned state counsel supported the impugnedjudgment(s) by placing emphasis on the concurrent findings of the CourtsEbelow. Reliance was also placed on PW-2’s cross-examination whereinhe himself denied knowing Bhola Singh, to counter the allegation of falseimplication by the prosecutrix.

ANALYSIS

I. Sweeping generalisations and superficial analysisF

10. Having heard learned counsel for the parties at considerablelength through video conferencing, we find from the impugned ordersthat the Courts below failed in making the desired attempt to delve deepinto the factual matrix of this case. Many aspects, as discussed hereunder,have completely been ignored or only dealt with hastily. Further, theGreasoning is generic and is premised upon generalisations which maynot be necessarily true always. It is indisputable that parents would notordinarily endanger the reputation of their minor daughter merely to falselyimplicate their opponents, but such clichés ought not to be the sole basisof dismissing reasonable doubts created and/or defences set out by theaccused.H

11. Similarly, the five-day delay in registration of the FIR, in thefacts and circumstances of this case, gains importance as the father ofthe victim is an eye-witness to a part of the occurrence. It is difficult toappreciate that a father would await a second incident to happen beforemoving the law into motion. Sweeping assumptions concerning delays inregistration of FIRs for sexual offences, send a problematic signal tosociety and create opportunities for abuse by miscreants. Instead, thefacts of each individual case and the behaviour of the parties involvedought to be analysed by courts before reaching a conclusion on the reasonand effect of delay in registration of FIR. In the facts of the presentcase, neither is Section 366A by itself a sexual offence in the strictsense nor do the inactions of the prosecutrix or her father inspireconfidence on genuineness of the prosecution story. No steps were takento avail of medical examination of the victim, nor was the Panchayat orany social forum approached for any form of redress till the occurrenceof the second alleged incident.

12. Further, it is beyond comprehension that the prosecutrix’s fatherand his two male associates failed to stop the tenant boy who wasallegedly about to commit a sexual offence with the minor victim andneither did they later make any attempt to even register a complaintagainst him. Strangely, the prosecution has acquiesced to suchdisappearance of the boy from the scene. Still further, the father of theprosecutrix merely registered his protest to the appellant on the scene,instead of reacting instinctively and approaching police authorities whenfaced with possible trafficking of his daughter. This conduct of belatedlyproceeding against only the prosecutrix creates a lurking suspicion againstthe prosecution case and it may not be totally improbable to infer that itwas a malicious attempt at the behest of Bhola Singh to falsely implicatea weak rape victim and stifle her ability to seek justice.

II. Shoddy investigation and prosecution

13. The original record elucidates the lack of serious effort onpart of either the investigation agency or the prosecutor to bring homethe appellant’s guilt. Save for the initiative of the prosecutrix and herfather to register the complaint, no substantive evidence has been gatheredby the police. Despite the male tenant having been residing with theappellant allegedly for many months, the police were unable to evendiscover his name, let alone his antecedents or location. Further, DW-1casts an impressionable doubt on the existence of the boy in the first AB

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Aplace. This is further buttressed by the fact that PW-1 and PW-2 differedin their physical description of the boy’s age, clothing and hiswhereabouts. If the boy was indeed a tenant and if he did live there formonths, it is highly mootable that he couldn’t have been traced.

14. The spot map prepared by PW-3 also has glaring omissions.BThe location of Bhan Singh’s house and the place where the appellantallegedly threatened the prosecutrix on 24.02.1996 are not even marked.Letters which the prosecutrix alleged in her examination-in-chief andpolice complaint that the appellant got written from her, have not beenproduced during trial. These could have shed light on the relationshipbetween the accused, prosecutrix and the male tenant prior to the incident.CIt is the duty of the prosecution to lead the best evidence in its possession,and failure to do so ought to lead to an adverse inference.[2]

15. Non-examination of Bhan Singh and Karnail Singh is also anoticeable lapse, given the gaps in the prosecution story. It appears thatno serious attempt was made to get them examined to resolve theDcontradictions in the testimonies of PW-1 and PW-2. Such lack ofexamination of material independent witnesses, adversely affects thecase of the prosecution. This Court in Takhaji Hiraji v. ThakoreKubersing Chamansing and others[3], viewed that:

“19. … It is true that if a material witness, who would unfoldEthe genesis of the incident or an essential part of theprosecution case, not convincingly brought to fore otherwise,or where there is a gap or infirmity in the prosecution casewhich could have been supplied or made good by examininga witness who though available is not examined, theFprosecution case can be termed as suffering from a deficiencyand withholding of such a material witness would oblige thecourt to draw an adverse inference against the prosecutionby holding that if the witness would have been examined itwould not have supported the prosecution case. ...”

GIII. Gross mis-appreciation of conflicting testimonies

16. Ordinarily, the Supreme Court ought not to re-appreciateevidence. However, where the courts below have dealt with the material-on-record in a cavalier or mechanical manner which is likely to cause 2 Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, 11-15.H3 (2001) 6 SCC 145.

gross injustice, then this Court in such exceptional circumstances mayjustifiably re-appraise the evidence to advance the cause of justice. Thereis no gainsaying that such re-assessment ought not to take place routinelyand ought not to become substitution of an otherwise plausible viewtaken by the Courts below.

17. The trial Court has summarily disregarded the contradictionshighlighted by the defense side, on the premise that such contradictionshad no material bearing and that there was no reason to disbelieve theprosecutrix. The High Court too has opined that PW-1 and PW-2 havecompletely corroborated each other and their testimonies wereimpeccable. These reasons, in our considered opinion, are not onlycontrary to the record but they also lead to an impermissible reversal ofthe burden of proof imposed in criminal trials. There are numerous clearcontradictions between the testimonies of these two star-witnesses, whichwe find fatal to the prosecution case.

18. First, PW-1 states that when the door was unlocked fromoutside, only her father (PW-2) and Bhan Singh were present outside.However, this contradicts both the information she gave in the policecomplaint and the testimony of her father (PW-2) who states thatadditionally a third person, Karnail Singh, was also present. Second, theprosecutrix’s description of the male tenant differs significantly fromthat of her father. Whereas PW-1 estimated his age at about 26 yearsand described him as wearing a pant-shirt, PW-2 believed the boy to be18-19 years’ old and wearing a banian, underwear and dirty shirt. Third,on the antecedents of the anonymous boy, the prosecutrix stated that hewas residing with the appellant for a year, whereas this period wasmaterially less at only 2-3 months per her father. Fourth, whereasprosecutrix claimed that her father and Bhan Singh unsuccessfullyattempted to catch the tenant while he was escaping from the room,PW-2 himself states that he was too perplexed to either run or raise anyalarm. Fifth and most notably, on the point of recording of the FIR, thetestimonies of PW-1, PW-2 and PW-5 all differ noticeably. WhereasPW-1 claims that the complaint was recorded by PW-5 while sitting ona “patthar” (stone), PW-2 claims that the same was recorded by PW-5while sitting on a “concrete bench” in the waiting shed of a bus stand inthe presence of two other policemen. Most intriguingly, PW-5 gives anentirely third version, claiming that he was present at the bus stand withfive other police officials and that the statement was written not by him A

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Abut by another ASI, who placed the papers on the bonnet of the jeepwhile standing.

19. In addition to these inconsistencies which cast a serious shadowof doubt over the version of events put forth by the prosecution, theaccounts of PW-1 and PW-2 are superficial and lack detail. ImportantBlinks of the story, including what happened in the crucial five minuteswhen the girl was locked inside the room or how the male tenant reacted,are missing.

20. Similarly, other links of the story are grossly inconsistent anddon’t fit with each other. PW-2 admits to being not at home and insteadCoutside Bhan Singh’s house during the initial part of the incident, whichas per the prosecutrix’s statement was a 10-minute walk from the spotof the crime. It is thus unlikely that PW-2 could have heard theprosecutrix’s screams from such afar or could have covered such asignificant distance in less than five minutes as claimed by PW-1. Thereare, thus, mutual contradictions in the prosecution story.D

IV. Failure to refute Section 313 CrPC statement

IV. Failure to refute Section 313 CrPC statement

21. Under the Code of Criminal Procedure, 1973 after theprosecution closes its evidence and examines all its witnesses, the accusedis given an opportunity of explanation through Section 313(1)(b). AnyEalternate version of events or interpretation proffered by the accusedmust be carefully analysed and considered by the trial Court in compliancewith the mandate of Section 313(4). Such opportunity is a valuable rightof the accused to seek justice and defend oneself. Failure of the trialCourt to fairly apply its mind and consider the defence, could endangerthe conviction itself.[4] Unlike the prosecution which needs to prove itsFcase beyond reasonable doubt, the accused merely needs to createreasonable doubt or prove their alternate version by mere preponderanceof probabilities.[5] Thus, once a plausible version has been put forth indefence at the Section 313 CrPC examination stage, then it is for theprosecution to negate such defense plea.

G22. In the case at hand, the alternate version given by the appellantcould not be lightly brushed aside. Her two-part defence, put succinctly,was that first there was no male tenant at all and no one except for herchild and mother lived with her, and second, that she was being falsely 4 Reena Hazarika v. State of Assam, (2019) 13 SCC 289, 19.H5 M Abbas v. State of Kerala, (2001) 10 SCC 103, 10.

implicated as vengeance for filing a rape complaint against one BholaSingh with whom the prosecutrix’s father used to work.

23. It is revealed that a rape complaint had indeed been made bythe appellant against Bhola Singh approximately seven months previousto the present incident. Not only did she face difficulties in registering anFIR of rape with the police, but she also had to take pains in filing aprivate complaint and prosecuting the case against such third party. Infact, the effect of these proceedings was in line with the appellant’sdefence, for in that rape trial the trial Court drew a damning observationagainst her character (calling her a child trafficker) owing to theseproceedings.

24. Lastly, DW-1, who lived in the neighbourhood of the parties,both supported the appellant’s claim that there was no male tenant in herhome and created sufficiently reasonable connection between BholaSingh and the prosecutrix’s father by volunteering that PW-2 was residingin Bhola Singh’s premises. Reliance on mere admission by DW-1 duringcross-examination that PW-2 was a government employee, neithernegates the defense of false implication nor does it imply that PW-2couldn’t be working with Bhola Singh in a part-time/casual capacity orstaying in Bhola Singh’s house. Thus, the trial Court’s analysis of theappellant’s Section 313 defence ought to have been deeper, beforeconcluding it as being false or untrustworthy.

V. Charge of Criminal Intimidation

25. Proving the intention of the appellant to cause alarm or compeldoing/abstaining from some act, and not mere utterances of words, is apre-requisite of successful conviction under Section 506 of IPC.[6] Thetrial Court has undertaken no such separate analysis or recorded anyfinding on this count, thus calling into question the conviction for criminalintimidation. Further, the nature of this charge is such that it is a derivativeof the main charge of ‘procuration of minor girls’. Given the facts of thiscase where the common testimony of PW-1 on both charges has beendoubted, it would be unwise to rely upon it as the sole piece of evidenceto convict the appellant for criminal intimidation without any othercorroboration.[7]

6 Manik Taneja & Anr. v. State of Karnataka & Anr., (2015) 7 SCC 423, 12.

7 Kamij Shaikh v. Emperor, AIR 1948 Pat 73, 5.

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520SUPREME COURT REPORTS

ACONCLUSION

26. We are thus of the considered view that the prosecution hasfailed to discharge its burden of proving the guilt of the appellant underSection 366A and 506 of the IPC beyond reasonable doubt. Thus, forthe reasons aforesaid, the appeal is allowed and the conviction andBsentence awarded by the Courts below are set aside. The appellant isacquitted and consequently set free.

Divya Pandey

Appeal allowed.

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