Sections 366A and 506 of the Indian Penal Code, 1860 (“IPC”). – The trial Court has summarily disregarded the contradictions highlighted by the defense side, on the premise that such contradictions had no material bearing and that there was no reason to disbelieve the prosecutrix. The High Court too has opined that PW­1 and PW­2 have completely corroborated each other and their testimonies were impeccable. These reasons, in our considered opinion, are not only contrary to the record but they also lead to an impermissible reversal of the burden of proof imposed in criminal trials. There are numerous clear contradictions between the testimonies of these two star­witnesses, which we find fatal to the prosecution case.

Parminder Kaur @ P.P. Kaur @ Soni ….. Appellants(s)
State of Punjab …..Respondents(s)

  1. The present Criminal Appeal has been preferred by Parminder
    Kaur, impugning the judgment dated 30.11.2009 of the High Court of
    Punjab and Haryana through which her challenge to a judgment dated
    27.02.1999 passed by the Additional Sessions Judge, Barnala was
    turned down, thereby confirming her conviction of three years rigorous
    imprisonment and fine of Rs. 2000 under Sections 366A and 506 of
    the Indian Penal Code, 1860 (“IPC”).
  2. The prosecution story, as recorded in the FIR at around noon on
    24.02.1996, was that the appellant was a single lady living with her
    child, mother and a young boy as her tenant in the neighbourhood of
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    the prosecutrix’s1
    house. About a week prior to registration of the
    police complaint, the appellant called the prosecutrix to her house and
    tried to entice her to indulge in illicit intercourse with the rich tenant
    boy in return for clothes and trips from him. The appellant at about
    6.00 A.M. on 19.02.1996, allegedly pushed the visiting prosecutrix
    into the room occupied by the tenant boy and bolted it from the
    outside. It was only on hearing the prosecutrix’s screams that after
    five minutes the door was unlocked, with her father (Hari Singh, PW2), Bhan Singh and Karnail Singh standing outside. Swiftly, the boy
    ran out of the room and successfully escaped. Upon the prosecutrix
    emerging from the room, her father protested and expressed his
    dismay to the by­standing appellant. Scared for their reputation, the
    prosecutrix and her father returned to their home without reporting
    the matter to anyone, except the prosecutrix’s mother. However, on
    24.02.1996 at 7.00 A.M., the appellant caught hold of the prosecutrix
    outside her house and threatened to kill her brother if anyone was
    informed of the matter. The prosecutrix was able to escape the
    appellant’s clutches and worried at this high­handedness, proceeded
    with her father towards the police station to report these two incidents
    and lodged a complaint.
  3. During trial, the prosecution examined five witnesses, including
    1 The name of the prosecutrix/victim has been withheld, in compliance with the ratio
    in Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551.
    Page | 2
    the prosecutrix (PW­1), her father (PW­2), the draftsman who prepared
    the site plan (PW­3), the headmistress who proved the prosecutrix’s
    age (PW­4) and the investigating officer (PW­5). The appellant, in turn,
    both denied all allegations and examined one witness of her own – a
    neighbour, Gurnail Singh (DW­1) and offered an alternate version in
    her statement under Section 313 of the Code of Criminal Procedure,
    1973 (“CrPC”), claiming that there was no tenant at all in her home
    and that the complaint was nothing but motivated revenge at the
    instance of one Bhola Singh against whom she had levelled allegations
    of rape a few months ago.
  4. This alternate version was summarily rejected by the trial Court
    which concluded that the appellant’s claim of the complaint being at
    the instance of Bhola Singh was unlikely both because malicious
    prosecution of sexual abuses involving minors, at the instance of third
    parties, was improbable; and even DW­1 in his cross­examination had
    admitted that Hari Singh was a permanent employee of the Irrigation
    Department and could not be a Karinda (employee) of Bhola Singh as
    claimed by the appellant.
  5. Relying upon the school records produced by DW­4, the Court
    observed that the prosecutrix was studying in Class VII with date of
    birth as 12.04.1982, thereby unimpeachably making her a minor.
    Without delving into the elements of Section 366A or 506 IPC, or
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    whether each individual ingredient had been satisfied by the
    prosecution, the learned Additional Sessions Judge focused on
    negating the defences projected by the appellant. In response to the
    contradictions between important aspects of the prosecutrix and her
    father’s testimonies, like differences in physical description and
    antecedents of the male tenant and the inability of the witnesses and
    the police to catch or trace the boy, the trial Court instead noted that
    there was no reason to disbelieve the prosecutrix and her father. The
    five­day delay in registration of the FIR was condoned for having
    arisen out of natural fear of reputation of the prosecutrix and her
    family, as well as the mild severity of the case. Similarly, the nonexamination of the other two independent witnesses, Bhan Singh and
    Karnail Singh was ignored as being normal reluctance of bystanders in
    cases where there was no rape or assault.
  6. Accordingly, the trial Court held that the appellant had
    intentionally induced the prosecutrix to perform illicit intercourse with
    her male tenant, and that she had also criminally intimidated the
    prosecutrix by threatening her family member. Noting the large
    number of dependents that the appellant had to support as a single
    lady, and considering the lack of commission of any assault or rape
    against the prosecutrix, the appellant was concurrently sentenced to
    three years rigorous imprisonment and fine of Rs 2,000 (or further six
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    months rigorous imprisonment in lieu thereof) under Section 366A,
    and one year rigorous imprisonment and fine of Rs. 1,000 (or further
    three months rigorous imprisonment in lieu thereof) under Section
    506 of IPC.
  7. The aggrieved appellant approached the High Court which too
    refused to interfere with the order of conviction. While dismissing the
    appeal, the High Court observed that the statement of the accused
    under Section 313 CrPC appeared to be an after­thought, and that in
    the absence of any evidence proving enmity between the parties it was
    impossible that anyone would falsely implicate a woman in such like
    offence. The minority of the prosecutrix was noted as having been
    proved, and the testimonies of PW1 and PW2 were held to be
    impeccable and corroborating each other completely. Similar to the
    trial Court, the High Court also explained­away the delay in
    registration of FIR as a result of family reputation put at stake in
    matters of sexual offence cases. Other omissions in the form of nonexamination of Bhan Singh and Hari Singh and failure to catch or
    trace the identity of the male tenant were deemed insignificant and
  8. The judgments of the trial Court and High Court have been
    elegantly assailed before us by learned counsel for the appellant who
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    contended that the testimonies of the two star­witnesses, being full of
    material contradictions, are far from reliable. The delay in registration
    of the FIR and the lack of any attempt to catch or even later trace the
    male tenant showed that the story was concocted by the prosecutrix’s
    family with ulterior motives. Reliance was also placed on the denial
    and alternate version put forth by the appellant in her statement
    under Section 313 CrPC, and the failure of the Courts below to either
    examine such statutory statement in­depth or for the prosecution to
    belie it effectively. Emphasis was laid on the statement of DW­1 who
    volunteered during his cross­examination that PW­2 was then living in
    the house owned by Bhola Singh, the person against whom the
    appellant had alleged rape. The deleterious effect of these proceedings
    on Bhola Singh’s trial and his subsequent acquittal on grounds that
    Parminder Kaur (the appellant here) was a lady of questionable
    character who indulged in trafficking of minors, was highlighted to
    show colourable motive behind registration of this case against the
  9. On the contrary, learned state counsel supported the impugned
    judgment(s) by placing emphasis on the concurrent findings of the
    Courts below. Reliance was also placed on PW­2’s cross­examination
    wherein he himself denied knowing Bhola Singh, to counter the
    allegation of false implication by the prosecutrix.
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    I. Sweeping generalisations and superficial analysis
  10. Having heard learned counsel for the parties at considerable
    length through video conferencing, we find from the impugned orders
    that the Courts below failed in making the desired attempt to delve
    deep into the factual matrix of this case. Many aspects, as discussed
    hereunder, have completely been ignored or only dealt with hastily.
    Further, the reasoning is generic and is premised upon generalisations
    which may not be necessarily true always. It is indisputable that
    parents would not ordinarily endanger the reputation of their minor
    daughter merely to falsely implicate their opponents, but such clichés
    ought not to be the sole basis of dismissing reasonable doubts created
    and/or defences set out by the accused.
  11. Similarly, the five­day delay in registration of the FIR, in the
    facts and circumstances of this case, gains importance as the father of
    the victim is an eye­witness to a part of the occurrence. It is difficult to
    appreciate that a father would await a second incident to happen
    before moving the law into motion. Sweeping assumptions concerning
    delays in registration of FIRs for sexual offences, send a problematic
    signal to society and create opportunities for abuse by miscreants.
    Instead, the facts of each individual case and the behaviour of the
    parties involved ought to be analysed by courts before reaching a
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    conclusion on the reason and effect of delay in registration of FIR. In
    the facts of the present case, neither is Section 366A by itself a sexual
    offence in the strict sense nor do the inactions of the prosecutrix or
    her father inspire confidence on genuineness of the prosecution story.
    No steps were taken to avail of medical examination of the victim, nor
    was the Panchayat or any social forum approached for any form of
    redress till the occurrence of the second alleged incident.
  12. Further, it is beyond comprehension that the prosecutrix’s father
    and his two male associates failed to stop the tenant boy who was
    allegedly about to commit a sexual offence with the minor victim and
    neither did they later make any attempt to even register a complaint
    against him. Strangely, the prosecution has acquiesced to such
    disappearance of the boy from the scene. Still further, the father of the
    prosecutrix merely registered his protest to the appellant on the scene,
    instead of reacting instinctively and approaching police authorities
    when faced with possible trafficking of his daughter. This conduct of
    belatedly proceeding against only the prosecutrix creates a lurking
    suspicion against the prosecution case and it may not be totally
    improbable to infer that it was a malicious attempt at the behest of
    Bhola Singh to falsely implicate a weak rape victim and stifle her
    ability to seek justice.
    II. Shoddy investigation and prosecution
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  13. The original record elucidates the lack of serious effort on part of
    either the investigation agency or the prosecutor to bring home the
    appellant’s guilt. Save for the initiative of the prosecutrix and her
    father to register the complaint, no substantive evidence has been
    gathered by the police. Despite the male tenant having been residing
    with the appellant allegedly for many months, the police were unable
    to even discover his name, let alone his antecedents or location.
    Further, DW­1 casts an impressionable doubt on the existence of the
    boy in the first place. This is further buttressed by the fact that PW­1
    and PW­2 differed in their physical description of the boy’s age,
    clothing and his whereabouts. If the boy was indeed a tenant and if he
    did live there for months, it is highly mootable that he couldn’t have
    been traced.
  14. The spot map prepared by PW­3 also has glaring omissions. The
    location of Bhan Singh’s house and the place where the appellant
    allegedly threatened the prosecutrix on 24.02.1996 are not even
    marked. Letters which the prosecutrix alleged in her examination­inchief and police complaint that the appellant got written from her,
    have not been produced during trial. These could have shed light on
    the relationship between the accused, prosecutrix and the male tenant
    prior to the incident. It is the duty of the prosecution to lead the best
    evidence in its possession, and failure to do so ought to lead to an
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    adverse inference.2
  15. Non­examination of Bhan Singh and Karnail Singh is also a
    noticeable lapse, given the gaps in the prosecution story. It appears
    that no serious attempt was made to get them examined to resolve the
    contradictions in the testimonies of PW­1 and PW­2. Such lack of
    examination of material independent witnesses, adversely affects the
    case of the prosecution. This Court in Takhaji Hiraji v. Thakore
    Kubersing Chamansing and others3
    , viewed that:
    “19. … It is true that if a material witness, who would unfold the
    genesis of the incident or an essential part of the prosecution case,
    not convincingly brought to fore otherwise, or where there is a gap or
    infirmity in the prosecution case which could have been supplied or
    made good by examining a witness who though available is not
    examined, the prosecution case can be termed as suffering from a
    deficiency and withholding of such a material witness would oblige
    the court to draw an adverse inference against the prosecution by
    holding that if the witness would have been examined it would not
    have supported the prosecution case. …”
    III. Gross mis­appreciation of conflicting testimonies
  16. Ordinarily, the Supreme Court ought not to re­appreciate
    evidence. However, where the courts below have dealt with the
    material­on­record in a cavalier or mechanical manner which is likely
    to cause gross injustice, then this Court in such exceptional
    2 Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, ¶ 11­15.
    3 (2001) 6 SCC 145.
    Page | 10
    circumstances may justifiably re­appraise the evidence to advance the
    cause of justice. There is no gainsaying that such re­assessment ought
    not to take place routinely and ought not to become substitution of an
    otherwise plausible view taken by the Courts below.
  17. The trial Court has summarily disregarded the contradictions
    highlighted by the defense side, on the premise that such
    contradictions had no material bearing and that there was no reason
    to disbelieve the prosecutrix. The High Court too has opined that PW­1
    and PW­2 have completely corroborated each other and their
    testimonies were impeccable. These reasons, in our considered
    opinion, are not only contrary to the record but they also lead to an
    impermissible reversal of the burden of proof imposed in criminal
    trials. There are numerous clear contradictions between the
    testimonies of these two star­witnesses, which we find fatal to the
    prosecution case.
  18. First, PW­1 states that when the door was unlocked from
    outside, only her father (PW­2) and Bhan Singh were present outside.
    However, this contradicts both the information she gave in the police
    complaint and the testimony of her father (PW­2) who states that
    additionally a third person, Karnail Singh, was also present. Second,
    the prosecutrix’s description of the male tenant differs significantly
    from that of her father. Whereas PW­1 estimated his age at about 26
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    years and described him as wearing a pant­shirt, PW­2 believed the
    boy to be 18­19 years’ old and wearing a banian, underwear and dirty
    shirt. Third, on the antecedents of the anonymous boy, the prosecutrix
    stated that he was residing with the appellant for a year, whereas this
    period was materially less at only 2­3 months per her father. Fourth,
    whereas prosecutrix claimed that her father and Bhan Singh
    unsuccessfully attempted to catch the tenant while he was escaping
    from the room, PW­2 himself states that he was too perplexed to either
    run or raise any alarm. Fifth and most notably, on the point of
    recording of the FIR, the testimonies of PW­1, PW­2 and PW­5 all differ
    noticeably. Whereas PW­1 claims that the complaint was recorded by
    PW­5 while sitting on a “patthar” (stone), PW­2 claims that the same
    was recorded by PW­5 while sitting on a “concrete bench” in the
    waiting shed of a bus stand in the presence of two other policemen.
    Most intriguingly, PW­5 gives an entirely third version, claiming that
    he was present at the bus stand with five other police officials and
    that the statement was written not by him but by another ASI, who
    placed the papers on the bonnet of the jeep while standing.
  19. In addition to these inconsistencies which cast a serious shadow
    of doubt over the version of events put forth by the prosecution, the
    accounts of PW­1 and PW­2 are superficial and lack detail. Important
    links of the story, including what happened in the crucial five minutes
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    when 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 and
    don’t fit with each other. PW­2 admits to being not at home and
    instead outside Bhan Singh’s house during the initial part of the
    incident, which as per the prosecutrix’s statement was a 10­minute
    walk from the spot of the crime. It is thus unlikely that PW­2 could
    have heard the prosecutrix’s screams from such afar or could have
    covered such a significant distance in less than five minutes as
    claimed by PW­1. There are, thus, mutual contradictions in the
    prosecution story.
    IV. Failure to refute Section 313 CrPC statement
  21. Under the Code of Criminal Procedure, 1973 after the
    prosecution closes its evidence and examines all its witnesses, the
    accused is given an opportunity of explanation through Section 313(1)
    (b). Any alternate version of events or interpretation proffered by the
    accused must be carefully analysed and considered by the trial Court
    in compliance with the mandate of Section 313(4). Such opportunity is
    a valuable right of the accused to seek justice and defend oneself.
    Failure of the trial Court to fairly apply its mind and consider the
    defence, could endanger the conviction itself.4
    Unlike the prosecution
    4 Reena Hazarika v. State of Assam, (2019) 13 SCC 289, ¶ 19.
    Page | 13
    which needs to prove its case beyond reasonable doubt, the accused
    merely needs to create reasonable doubt or prove their alternate
    version by mere preponderance of probabilities.5
    Thus, once a
    plausible version has been put forth in defence at the Section 313
    CrPC examination stage, then it is for the prosecution to negate such
    defense plea.
  22. In the case at hand, the alternate version given by the appellant
    could not be lightly brushed aside. Her two­part defence, put
    succinctly, was that first there was no male tenant at all and no one
    except for her child and mother lived with her, and second, that she
    was being falsely implicated as vengeance for filing a rape complaint
    against one Bhola Singh with whom the prosecutrix’s father used to
  23. It is revealed that a rape complaint had indeed been made by the
    appellant against Bhola Singh approximately seven months previous
    to the present incident. Not only did she face difficulties in registering
    an FIR of rape with the police, but she also had to take pains in filing
    a private complaint and prosecuting the case against such third party.
    In fact, the effect of these proceedings was in line with the appellant’s
    defence, for in that rape trial the trial Court drew a damning
    observation against her character (calling her a child trafficker) owing
    to these proceedings.
    5 M Abbas v. State of Kerala, (2001) 10 SCC 103, ¶ 10.
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  24. Lastly, DW­1, who lived in the neighbourhood of the parties,
    both supported the appellant’s claim that there was no male tenant in
    her home and created sufficiently reasonable connection between
    Bhola Singh and the prosecutrix’s father by volunteering that PW­2
    was residing in Bhola Singh’s premises. Reliance on mere admission
    by DW­1 during cross­examination that PW­2 was a government
    employee, neither negates the defense of false implication nor does it
    imply that PW­2 couldn’t be working with Bhola Singh in a parttime/casual capacity or staying in Bhola Singh’s house. Thus, the trial
    Court’s analysis of the appellant’s Section 313 defence ought to have
    been deeper, before concluding it as being false or untrustworthy.
    V. Charge of Criminal Intimidation
  25. Proving the intention of the appellant to cause alarm or compel
    doing/abstaining from some act, and not mere utterances of words, is
    a pre­requisite of successful conviction under Section 506 of IPC.6
    trial Court has undertaken no such separate analysis or recorded any
    finding on this count, thus calling into question the conviction for
    criminal intimidation. Further, the nature of this charge is such that it
    is a derivative of the main charge of ‘procuration of minor girls’. Given
    the facts of this case where the common testimony of PW­1 on both
    6 Manik Taneja & Anr. v. State of Karnataka & Anr., (2015) 7 SCC 423, ¶ 12.
    Page | 15
    charges has been doubted, it would be unwise to rely upon it as the
    sole piece of evidence to convict the appellant for criminal intimidation
    without any other corroboration.7
  26. We are thus of the considered view that the prosecution has
    failed to discharge its burden of proving the guilt of the appellant
    under Section 366A and 506 of the IPC beyond reasonable doubt.
    Thus, for the reasons aforesaid, the appeal is allowed and the
    conviction and sentence awarded by the Courts below are set aside.
    The appellant is acquitted and consequently set free.
    …………………………….. J.
    (N.V. RAMANA)
    …………………………… J.
    DATED : 28.07.2020
    7 Kamij Shaikh v. Emperor, AIR 1948 Pat 73, ¶ 5.
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