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2023 Supreme(P&H) 2286

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SURESHWAR THAKUR, KULDEEP TIWARI, JJ.
Kuldeep Singh & Ors. – Appellants
Versus
State of Punjab – Respondent
CRA-D NO. 786-DB of 2019 (O&M)
Decided On : 24-03-2023

Advocates Appeared:
Mr. Brijesh Nanda, Advocate; For the Appellant
Ms. Monika Jalota, Sr. DAG, Punjab.

Headnote:(A) Indian Penal Code - Sections 363, 365, 366, 366-A, 376-D - Protection of Children from Sexual Offences Act, 2012 - Section 6 and 17 - Conviction of appellants for kidnapping and gang-rape based on the inconsistent testimony of prosecutrix. (Para 1, 3, 14)

(B) Legal principles concerning burden of proof in criminal cases - The burden lies on the prosecution to prove foundational incriminatory facts before raising a statutory presumption against the accused. (Para 12)

(C) The inconsistencies in the prosecutrix's statements and lack of corroborative evidence lead to reasonable doubt. (Para 14)

Facts of the case:
The appellants were convicted for kidnapping and gang-rape of a minor; however, the prosecutrix's inconsistent statements and lack of medical evidence raised doubts regarding their guilt. (Para 1, 15)

Findings of Court:
The prosecution failed to prove its case beyond a reasonable doubt, resulting in the acquittal of the appellants. (Para 15)

Issues: Whether the prosecutrix was kidnapped, intoxicated, and assaulted, and whether the appellants were guilty of the charges. (Para 5)

Ratio Decidendi: The contradictory testimonies of the prosecutrix and the absence of corroborative evidence rendered the prosecution's case highly improbable, necessitating the acquittal of the appellants. (Para 15)

Result: The appeal is allowed; conviction and sentence are set aside.

Table of Content
1. overview of prosecution and trial details. (Para 1 , 2 , 3 , 4)
2. determination of the prosecutrix's age and incident recount. (Para 5 , 6 , 7)
3. conflicting evidence from witness testimonies. (Para 8 , 10 , 11)
4. examination of witness credibility and evidence reliance. (Para 9 , 12 , 13)
5. prosecution's failure to substantiate claims. (Para 14 , 15)
6. final judgment and acquittal of appellants. (Para 16 , 17 , 18)

JUDGMENT

Kuldeep Tiwari, J.

The instant appeal has been directed against the verdict of conviction, and, the order of sentence dated 16.07.2019 passed by the learned Additional Sessions Judge/Exclusive Court, Amritsar, in case FIR No.69 dated 18.04.2017, registered under Sections 365 , 363, 366-A, 376, 328, 120-B of INDIAN PENAL CODE (hereinafter referred to as 'IPC' for short), and, section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for short), at Police Station Jandiala, District Amritsar, whereby the appellant Nos.1 and 3 have been convicted for the offences punishable under Sections 363 , 365, 366, 366-A and 376-D of IPC, while, the appellant No.2 has been convicted for the offences punishable under Sections 363 , 365, 366, 366- A, and, Section 17 of POCSO Act. The appellants have been awarded sentence as under:-

Offence under Section

Period (R.I.)

Fine

In Default

Appellants No.1 and 3- Kuldeep Singh and Manjinder Singh @ Peeta

Section 363 of IPC

R.I. for 7 Years

Rs.10,000/-

R.I. for 1 year

Section 365 of IPC

R.I. for 7 Years

Rs.10,000/-

R.I. for 1 year

Section 366 of IPC

R.I. for 10 Years

Rs.20,000/-

R.I. for 1 year

Section 366-A of IPC

R.I. for 10 Years

Rs.20,000/-

R.I. for 1 year

Section 376 -D of IPC

R.I. for 20 Years

Rs.20,000/-

R.I. 2 Years

Appellant No.2- Jinder Kaur @ Veer Kaur

Section 363 of IPC

R.I. for 7 Years

Rs.10,000/-

R.I. for 1 year

Section 365 of IPC

R.I. for 7 Years

Rs.10,000/-

R.I. for 1 year

Section 366 of IPC

R.I. for 10 Years

Rs.20,000/-

R.I. for 1 year

Section 366-A of IPC

R.I. for 10 Years

Rs.20,000/-

R.I. for 1 year

Section 17 of POCSO Act

R.I. 10 Years

Rs.20,000/-

R.I. for 1 year

2. The prosecution story unveils with the recording of the statement (Ex.PW1/A) of the complainant (mother of prosecutrix) (identity of the complainant and the prosecutrix is withheld in terms of explanation attached to Section 33 (7) of the POCSO Act), wherein, she stated that she is doing a private job at Focal Point, Amritsar, and, her duty hours are from 09:00 a.m. to 05:00 p.m. She is the mother of three children, i.e. two daughters and one son, out of whom, the prosecutrix is her youngest daughter, who was born in 1999. At the time of the incident, the prosecutrix had appeared in matriculation examination. On 15.04.2017, she went on duty at Focal Point, Amritsar, while leaving both her daughters at house, however, when she returned home at 5 o'clock in the evening, she did not find the prosecutrix at home. When she enquired about the whereabouts of prosecutrix from her another daughter, it was informed that at about 11:00 a.m., the friends-cum-schoolmates of the prosecutrix, namely, Ravneet Kaur and Komalpreet Kaur, had come to their house and the prosecutrix accompanied both of them on the premise of going to the house of Ravneet Kaur. Thereupon, the complainant went to the houses of both these girls to enquire about the prosecutrix and both these girls were found present at their respective houses, however, nothing could be elucidated about the whereabouts of the prosecutrix. Consequently, the complainant along with her other family members made efforts to search the prosecutrix at various places, but, all in vain. Having been unsuccessful in tracing the prosecutrix, the complainant alleged that the prosecutrix has been kidnapped by some unknown person with intention to detain her in illegal custody. U

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