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TMI Blog2020 (7) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 - 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. Shoddy investigation and prosecution - HELD THAT:- 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 PW-1 and PW-2 have completely corroborated each other and their testimonies were impeccable. These reasons are not only contrary to the record but they also lead to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. The prosecution has failed to discharge its burden of proving the guilt of the Appellant Under Section 366A and 506 of the Indian Penal Code beyond reasonable doubt - the conviction and sentence awarded by the Courts below are set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ses involving minors, at the instance of third parties, was improbable; and even DW-1 in his cross-examination 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 DW-4, 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 Indian Penal Code, or 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 five-day delay in registration of the FIR was condoned for having arisen out of natural fear of reputatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 Code of Criminal Procedure, and the failure of the Courts below to either examine such statutory statement in-depth or for the prosecution to belie it effectively. Emphasis was laid on the statement of DW-1 who volunteered during his cross-examination that PW-2 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 Appellant. 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 PW-2's cross-examination wherein he himself denied knowing Bhola Singh, to counter the allegation of false imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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 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. 18. First, PW-1 states that when the door was unlocked from outside, only her father (PW-2) and Bhan Singh were present outside. However, this contradicts both the information she gave in the police complaint and the testimony of her father (PW-2) 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 PW-1 estimated his age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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.3 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.4 Thus, once a plausible version has been put forth in defence at the Section 313 Code of Criminal Procedure 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 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 one Bhola Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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