Burden Is On The Prosecution To Negate It

n a recent, remarkable and righteous decision delivered on July 28, 2020, the Apex Court in Parminder Kaur @ P.P. Kaur @ Soni vs State of Punjab in Criminal Appeal No. 283 of 2011 has made it abundantly clear that once a plausible version has been put forth by the defence at the examination stage of Section 313 of the Cr. PC, then it is for the prosecution to negate such a defence plea. It was further reiterated by the top court that failure of the trial court to fairly apply its mind and consider the defence could endanger the conviction itself. Very rightly so!

                                           To start with, this notable judgment authored by Justice Surya Kant for himself, Justice NV Ramana and Justice Krishna Murari sets the ball rolling in para 1 by first and foremost observing that, “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”).”

                                      While dwelling on the facts and case history, it is then elaborated in para 2 that, “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 the prosecutrix’s house.[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]. 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, PW-2), 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 by-standing 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 high-handedness, proceeded with her father towards the police station to report these two incidents and lodged a complaint.”  

                                              As it turned out, para 6 then holds that, “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 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.”

                                                 As a consequence, what then followed is stated in para 7 that, “The aggrieved appellant approached the High Court which too refused to interfere with the order of contention. While dismissing the appeal, the High Court observed that the statement of the accused under Section 313 CrPC appeared to be an after-thought, 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 explained away the delay in registration of FIR as a result of family reputation put at stake in matter of sexual offence cases. Other omissions in the form of non-examination of Bhan Singh and Hari Singh and failure to catch or trace the identity of the male tenant were deemed insignificant and immaterial.”              


I.                 Sweeping generalisations and superficial analysis

                     Without sparing any punches, the Bench then minces no words to point out in para 10 that, “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.”    

                                        While continuing in the same vein, the Bench then notes in para 11 that, “Similarly, the five-day delay in registration of the FIR, in the facts and circumstances of this case, gains importance as the father of the victim is an eye-witness 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 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.”  

                                               What’s more, the Bench then goes on to elaborate in para 12 that, “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

                                 In a damning indictment of the police, it is then pointed out in para 13 while also highlighting the shoddy investigation and prosecution that, “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, DW-1 casts an impressionable doubt on the existence of the boy in the first place. This is further buttressed by the fact that 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 and if he did live there for months, it is highly mootable that he couldn’t have been traced.”

                                          To be sure, it is then put forth in para 15 that, “Non-examination 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 PW-1 and PW-2. Such lack of examination of material independent witnesses, adversely affects the case of the prosecution.”

                                            Furthermore, it is then pointed out in para 14 that, “The spot map prepared by PW-3 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 examination-in-chief 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 adverse inference.(Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541).”

III. Gross Mis-appreciation of conflicting testimonies

                                 To put things in perspective, it is then envisaged in para 16 that, “Ordinarily, the Supreme Court ought not to re-appreciate evidence. However, where the courts below have dealt with the material-on-record in a cavalier or mechanical manner which is likely to cause gross injustice, then this Court in such exceptional circumstances may justifiably re-appraise the evidence to advance the cause of justice. There is no gainsaying that such re-assessment ought not to take place routinely and ought not to become substitution of an otherwise plausible view taken by the Courts below.”

                                            Needless to say, it is then held in para 17 that, “The trial Court has summarily disregarded the contradictions highlighted by the defence 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 PW-1 and PW-2 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 star-witnesses, which we find fatal to the prosecution case.”

IV. Failure to refute Section 313 CrPC statement

                                 Most significantly, it is then rightly underscored in para 21 that, “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 (Reena Hazarika v. State of Assam, (2019) 13 SCC 289). Unlike the prosecution 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. (M. Abbas v. State of Kerala, (2001) 10 SCC 103). 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.”

V. Charge of criminal intimidation

                                  In short, the key point of para 25 is that, “Given the facts of this case where the common testimony of PW-1 on both 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.”

                                        Truth be told, it is then held in para 22 that, “In the case at hand, the alternate version given by the appellant could 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 her child and mother lived with her, and second, that she was being falsely implicated as vengeance for filing a rape complaint against Bhola Singh with whom the prosecutrix’s father used to work.”


                                       Finally, it is then held in the last para 26 that, “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.”

                                      No doubt, it is a well balanced, well worded and well reasoned order by a three Judge Bench of the Apex Court. It rightly espoused that once an accused makes a plausible defence in his Section 313 CrPC statement, the burden is on the prosecution to negate it. If prosecution fails then the benefit of doubt will go to the defence as we see here. Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

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