In this case, no charge was framed against the Appellant- Accused for the offence punishable under Clause (f) of Sub-section (2) of Section 376 of the Indian Penal Code. A perusal of Clause (f) of Sub-section (2) of Section 376 shows that the punishment for the offence covered by Sub-section (2) of Section 376 is more stringent than the punishment for the offence Under Sub-section (1) of Section 376. In the absence of the charge framed at any stage against the Appellant-Accused for the offence punishable under Clause (f) of Sub-section (2) of Section 376 of the Indian Penal Code, now, at this stage, neither the prosecution nor the victim can contend that Clause (f) of Sub-section (2) of Section 376 of the Indian Penal Code was applicable. Another important aspect which goes to the root of the matter is that in his examination Under Section 313 of the Code of Criminal Procedure, the case that he was in a position of trust to the victim, was not put to him. In any event, the contention of the learned Counsel appearing for the Prosecutrix that the Appellant-Accused was a person in a position of trust as far as the Prosecutrix is concerned is completely erroneous. There was no fiduciary relationship between the Appellant-Accused and the Prosecutrix, which will be apparent when we examine the Prosecutrix's evidence. Therefore, on the face of it, the presumption Under Section 114A of the Evidence Act will not apply, and, therefore, the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix. We may also add here that in our jurisprudence unless there is a specific legislative provision which puts a negative burden on the Accused, there is no burden on the Accused to lead evidence for proving his innocence. The Accused may have some burden to discharge in case of a statutory prescription, such as Section 114A of the Evidence Act. In this case, the burden was on the prosecution to lead evidence to prove the guilt of the Accused beyond a reasonable doubt. {Para 11}
21. Firstly, the learned Counsel appearing for the Prosecutrix admitted that the prosecution did not produce the WhatsApp messages before the recording of evidence commenced. According to his version, the same was produced when the Prosecutrix was under cross-examination. The essential ingredient of Sub-section (1) of Section 294 of the Code of Criminal Procedure is that when any document is produced by the prosecution or the Accused, the parties shall be called upon to admit or deny the genuineness of each such document. In this case, it is nobody's case that the Appellant-Accused was called upon to admit or deny the genuineness of the WhatsApp chats. Moreover, Sub-section (3) of Section 294 of the Code of Criminal Procedure indicates that even if a particular document is not disputed, the Court has the discretion to read or not to read the same in evidence without formal proof of the signature of the person to whom it purports to be signed. The Court always has the power to require the signature to be proved. Therefore, the contention of the learned Counsel appearing for the Prosecutrix based on Section 294 of the Code of Criminal Procedure has absolutely no merit. In any case, a certificate Under Section 65B of the Evidence Act has not been produced.
22. Therefore, in our considered opinion, the prosecution has failed to prove the Appellant's guilt beyond a reasonable doubt. Hence, the impugned orders cannot be sustained, and they are hereby quashed and set aside. The Appellant-Accused is acquitted of the charges framed against him.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1753/2023
Decided On: 21.03.2024
Pankaj Singh Vs. The State of Haryana
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.
Author: Abhay Shreeniwas Oka, J.
Citation: MANU/SC/0254/2024.
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