Penal Code, 1860 – ss.366A and 506 – Case of prosecution C that the appellant, a single lady who had a young boy as her tenant, lived in minor prosecutrix’s (PW1) neighbourhood – She tried to entice the prosecutrix to indulge in illicit intercourse with the rich tenant boy and allegedly pushed her into the room occupied by him and bolted it from outside – Door was unlocked after five minutes, with prosecutrix’s father (PW2) standing outside – Boy escaped– D Matter was reported only after the appellant allegedly threatened to kill prosecutrix’s brother if anyone was informed – Alternate version given by appellant u/s.313,CrPC was rejected – Convicted u/ss.366A, 506 – Held: Five day delay in registration of FIR gains importance as the father of the victim is an eye-witness to a part of E the occurrence – Difficult to appreciate that a father would await a second incident to happen before moving the law into motion – No complaint 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 girl F was locked inside the room or how the male tenant reacted, are missing – Appellant’s alternate version that there was no male tenant at all and no one except her child and mother lived with her and that she was falsely implicated as vengeance for filing rape complaint against the person with whom the prosecutrix’s father used to work, could not be lightly brushed aside – Prosecution failed to prove appellant’s guilt u/ss.366A & 506 beyond reasonable doubt – CrPC, 1973 – s.313.
Code of Criminal Prcedure, 1973 – s.313 – Held: Once a plausible version is put forth in defence at the s.313 examination stage, then it is for prosecution to negate such defense plea. Criminal Law – Sexual Offences – Delay in FIR – Sweeping assumptions 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, 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 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. PW1 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. Lack of examination of material independent witnesses, adversely affects the case of the prosecution. [Paras 11, 13, 15][515-A-C; 516-A; 516-D]
1.2 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 likely to cause gross injustice, then this Court in such exceptional circumstances may justifiably re-appraise the evidence to advance the cause of justice. 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. There are numerous clear contradictions between the testimonies of the two starwitnesses, which is fatal to the prosecution case. Important links of the story, including what happened in the crucial five minutes when the girl was locked inside the room or how the male tenant reacted, are missing. Similarly, other links of the story are grossly inconsistent and don’t fit with each other. [Paras 16, 17, 19 and 20][516-G-H; 517-A, C; 518-B-C]
1.3 Once a plausible version has been put forth in defence at the s.313 CrPC examination stage, then it is for the prosecution to negate such defense plea.The alternate version given by the appellant could not be lightly brushed aside. Her two-part defence 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 ‘BS’ with whom the prosecutrix’s father used to work. A rape complaint had indeed been made by the appellant against him approximately seven months previous to the present incident. DW-1, 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 ‘BS’ and the prosecutrix’s father by volunteering that PW-2 was residing in BS’s premises. 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. Given the facts of this case where the common testimony of PW-1 on both charges was 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. [Paras 21-25][518-F-H; 519-A-G]
Kamij Shaikh v. Emperor AIR 1948 Pat 73 – approved.
Musauddin Ahmed v. State of Assam, (2009) 14 SCC
541 : [2009] 9 SCR 1135; Takhaji Hiraji v. Thakore Kubersing 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 of
Karnataka & Anr. (2015) 7 SCC 423 : [2015] 1 SCR
156 – relied on.
Bhupinder Sharma v. State of Himachal Pradesh (2003)
8 SCC 551 : [2003] 4 Suppl. SCR 792 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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