sps rathore-judgement punjab & haryana high court judgement-ruchika girhotra case

Crl. Revision No.1558 of 2010 (O&M) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Crl. Revision No.1558 of 2010 (O&M)

Date of decision: 01.09.2010

S.P.S. Rathore

…Petitioner

Versus

Central Bureau of Investigation

…Respondent

CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN

Present: Mrs. Abha Rathore, Advocate with

Ms. Priyanjali, Advocate for the petitioner.

Dr.Anmol Rattan Sidhu, Sr Standing counsel for the CBI with Mr. Ajay Kaushik, Advocate.

Mr. Pankaj Bhardwaj, Advocate with

Ms. Anju Sharma, Advocate,

for the complainant.

JITENDRA CHAUHAN, J.

Criminal Miscellaneous no. 29590 of 2010

For the reasons mentioned in the main judgment as well as the grounds taken


in the application, prayer of the complainant Mrs. Madhu Parkash for being impleaded as

respondent in this criminal revision petition, is allowed.

Crl. Misc. application stands disposed of.

MAIN CASE:

1. The present criminal revision petition has been preferred by S.P.S. Rathore, a

former IPS officer of the Haryana state cadre (hereinafter to be referred to as the

petitioner), against the confirmation of his conviction and enhancement of sentence by the

court of first appeal (Court of Additional Sessions Judge, Chandigarh) under Section 354

IPC vide Judgment dated 25.5.2010. The petitioner was convicted by the learned Trial

Court (Court of Chief Judicial Magistrate, Chandigarh) under section 354 IPC and was

sentenced to 6 months imprisonment along with imposition of a fine of Rs.1000/- vide

judgment dated 21.12.2009.

2. An Appeal was filed by the petitioner against his aforementioned conviction

which was dismissed by the learned Court of first appeal (Court of Additional Sessions

Judge, Chandigarh) whereas the appeal filed by the CBI and revision filed by Ms. Madhu

Parkash against inadequacy of sentence was allowed. Consequently, the sentence was

enhanced to 1 year and 6 months but the fine remained the same. The petitioner has

challenged by way of the present criminal revision petition, his conviction under section

354 IPC. In the alternative, the learned counsel for the petitioner has prayed for release of

the petitioner on probation.


3. In order to appreciate the issues involved and adjudicate them, it is necessary

to give a brief recapitulation of the relevant factual aspects of the case, which is as

follows.

4. It was the allegation of the prosecution that on 12.8.1990 at about 12 noon,

Ms. Ruchika Girhotra (since deceased), a promising tennis player, along with her friend,

Ms. Aradhana was called by the petitioner who was standing near the makeshift office of

the then Haryana Lawn Tennis Association (‘HLTA’ for short) which was set up in the

under construction house of the petitioner itself, in sector 6 Panchkula. It was also alleged

that the petitioner had visited the house of Ms. Ruchika on 11.8.1990 and had requested

Sh. S.C. Girhotra, father of Ms. Ruchika, not to send her to Canada for specialized tennis

coaching. The petitioner is said to have promised that he would be arranging special

coaching for her at HLTA itself and for this purpose he asked Sh. S.C. Girhotra to send

Ruchika to meet him the following day around 12 noon at the HLTA office.

5. Ms. Ruchika and her friend Ms. Aradhana, both of whom were also residents

of Sector 6 Panchkula, had gone to the tennis courts of HLTA for practicing around 12

noon on 12.8.1990 and at that time Sh. Paltoo, the ball picker, came and told Ms. Ruchika

that the petitioner wants to see him in his office. Ms. Ruchika along with Ms. Aradhana

went towards the office of the petitioner who on meeting them insisted that they come

inside his office.

6. Subsequently, the petitioner called for a chair on which Ms. Aradhana sat.


The petitioner sat on the chair which was already in the office whereas Ms. Ruchika kept

standing near the table. The petitioner asked Ms. Aradhana to go and fetch the tennis

coach Mr. Thomas, who thereafter went out to look for the coach. She spotted the coach

from a distance as he was standing across the road at the rear of the house (southern side)

of the petitioner. Ms. Aradhana then asked Sh. Paltoo to go and tell Mr. Thomas that the

petitioner wants to see him in the office. Mr. Thomas, on being informed about the same

by Sh. Paltoo, waved his hand towards Ms. Aradhana expressing his inability to come at

that moment. Immediately thereafter, Ms. Aradhana returned to the HLTA Office where

she witnessed that Ms. Ruchika was in the grip of the petitioner, his one hand holding one

hand of Ms. Ruchika and with his other hand, which he had put around the waist of Ms.

Ruchika, was pushing her towards his chest so as to embrace her. Ms. Ruchika was trying

to push the petitioner back with her free hand. Soon as Ms. Aradhana entered the HLTA

office, the petitioner on becoming nervous released Ms. Ruchika and fell down in his

chair. Ms. Aradhana then told the petitioner that Mr. Thomas has refused to come after

hearing which, the petitioner asked Ms. Aradhana to again go and call the coach.

7. Meanwhile, Ms. Ruchika ran out of the office even though the petitioner

asked her to come back. At that moment, the petitioner told Ms. Aradhana that she should

tell Ms. Ruchika to cool down and tell her that he would do whatever she wants. Without

wasting any moment, Ms. Aradhana also followed Ms. Ruchika whom she caught up

after a short distance. At that point of time, Ms. Ruchika was crying and on being asked

by Ms. Aradhana, Ms. Ruchika told her that after she went out, the petitioner caught hold

of her hand which she got released by force but again he got up and caught hold of her


hand and waist and was trying to embrace her. After a brief talk between the two, they

decided not to disclose this incident to anyone.

8. The following day i.e. 13.8.1990 being Monday and since the HLTA courts

remained closed on Monday, neither of them went to the HLTA courts. On 14.8.1990,

Ms. Ruchika and Ms. Aradhana went to the HLTA courts to play tennis at 4.30 pm

whereas earlier usually they used to go at 6.30 pm. Both of them went early since the

petitioner usually came to the HLTA courts at around 6.30 pm and they wanted to avoid

the petitioner by going earlier. However, on 14.8.1990 when the petitioner arrived at the

tennis courts, Ms. Ruchika and Ms. Aradhana were still playing tennis. The petitioner

sent a message through Sh. Paltoo that he wants to see Ms. Ruchika in his office. At this

point of time, Ms. Ruchika and Ms. Aradhana realized that the petitioner has no intention

of improving himself and that non disclosure of the incident dated 12.8.1990 has made

him even bolder. They thus decided to disclose the incident of 12.8.1990 to their parents

and on the same day the incident was first disclosed to Sh. S.C. Girhotra i.e. father of Ms.

Ruchika Girhotra, and thereafter to the mother and father of Ms. Aradhana, Mrs. Madhu

Prakash and Mr. Anand Parkash.

9. Mr. Anand Prakash, a senior technocrat with one of the agencies of the

Government of Haryana and father of Ms. Aradhana alongwith Sh. S.C. Girhotra, on

hearing about the incident, gathered the locality residents, who were mostly parents of

trainee boys and girls, on 14.8.990 itself and they went to the HLTA courts to meet the

petitioner. However, by the time they reached the HLTA office/Courts, they were told


that the petitioner has already left for Chandigarh. On 15.8.1990 a memorandum was

prepared disclosing the incident of 12.8.1990 involving the petitioner and the same was

signed by Ms. Ruchika, Ms. Aradhana, Mr. Anand Parkash, Ms. Madhu Parkash and few

other locality residents and players. On 16.8.1990 the said memorandum was presented to

the then Home Secretary, Haryana Sh. J.K Duggal who assured that he will look into the

matter. Official permission was sought from the then Chief Minister of Haryana and the

then DGP Haryana, Sh. R.R. Singh was directed to hold an inquiry in to the allegations

levelled against the petitioner in the Memorandum. This Memorandum was exhibited

before the trial court as Ex P -1.

10. On 16.8.1990 itself, on the asking of Sh. J.K. Duggal, all these persons went

to the HLTA courts at 5 pm where SDM Kalka Mr. Joshi was asked to be present as per

the orders of the Home Secretary. When Mr. Joshi reached the HLTA courts, a notice was

found pasted there in which it was mentioned that Ms. Ruchika has been suspended from

the HLTA for a period of 15 days on the grounds of indiscipline. This notice although

dated 15.8.1990, was made effective from 13.8.1990. The players and their parents who

had gathered there, pursuant to the directions of the Home Secretary, raised slogans

against the petitioner which attracted the then SHO of Sector 6, Panchukla to the spot on

a verbal message being flashed to him. Sh. Kuldip, Manager of HLTA and Sh. T.

Thomas, Coach were present there. On being asked by Sh. Joshi, both the Manager and

the Coach expressed their ignorance of any act of indiscipline having been committed by

Ms. Ruchika. Both of them gave their endorsement to this effect on that Notice itself. The

said Notice was exhibited before the Trial court as Ex. P – 2.


11. On 18.8.1990, another report was handed over to the SHO of sector 6, Police

Station, Panchkula by Sh. S.C Girhotra and Sh. Anand Parkash which was signed by Ms

Ruchika, regarding the incident of 12.8.1990 requesting the Officer in charge to take

action against the petitioner. This document was exhibited before the trial court as Ex. P-

3. Along with Ex P – 3, a photocopy of the memorandum (Ex. P – 1) was also attached

which was exhibited as Ex. P – 4 before the trial court.

12. Sh. R.R. Singh initiated the inquiry proceedings on 21.8.1990. Amongst

those examined by him, were Ms. Ruchika and Ms. Aradhana. He then asked the

petitioner to appear before him in response to which the petitioner replied that he will be

accompanied with his lawyer. This request of the petitioner was turned down and

consequently, the petitioner never appeared before Sh. R.R. Singh. The petitioner vide an

application dated 26.8.1990 submitted a list of witnesses whom he wanted to be

examined by Sh. R.R Singh along with a request to visit the site in question. On

26.8.1990 evening, a procession was taken out in sector 6 by some labourers who were

shouting slogans against Ruchika and in favour of the petitioner. In his inquiry report, Sh.

R.R. Singh indicted the petitioner and recommended the registration of a criminal case

against him. The Inquiry report was submitted on 3.9.1990. However, nothing was done

pursuant to the inquiry report and the State government simply chose to ignore the report,

for reasons best known to it.

13. The factual recapitulation above was the first phase of this case, right from


the events immediately preceding the alleged incident, leading upto the crime itself, its

public disclosure and follow up action by the family and friends of the molested girl Ms.

Ruchika Girhotra. Thereafter, unfortunately, Ms. Ruchika committed suicide in 1993,

allegedly under tremendous pressure from the petitioner who on account of his high civil

position harassed the girl and her family to no end. Separate proceedings are pending

against the petitioner in this Court which is dealing with the allegations against him,

regarding abetment to commit suicide by Ms. Ruchika. Those allegations are neither a

part of this case nor the evidence brought on record of this case deals in any manner with

the allegations of abetment to suicide. However, it was important to highlight the fact of

death of Ms. Ruchika by suicide since from thereafter, the responsibility of carrying the

case to its logical end was taken up by Ms. Madhu Parkash, mother of Ms. Aradhana and

by her husband Mr. Anand Parkash.

14. In 1997, a criminal writ was filed in this Court by Ms. Madhu Prakash, who

herself happens to be a lawyer, praying for registration of a criminal case against the

petitioner and investigation into the alleged act of molestation of Ms. Ruchika. The said

criminal petition was allowed by this Court vide order dated 21.8.1999 and the same was

upheld by the Hon’ble Supreme Court. Consequently, the matter was handed over to the

CBI which registered a case against the petitioner on the basis of Ex. P -1. After a

thorough investigation, the CBI filed its Report in the concerned court and thereafter, the

petitioner was called upon to face trial which was conducted by the Learned Court of

Chief Judicial Magistrate, Chandigarh. As has already been mentioned, the petitioner was

convicted by the Trial court and sentenced to 6 months imprisonment along with a fine.


His appeal against the conviction was dismissed and the sentence was enhanced to 1 year

and 6 months on an appeal for enhancement filed by the CBI as also a revision preferred

by the complainant Mrs. Madhu Parkash for enhancement of sentence. Against the said

judgment, upholding the conviction of the petitioner, the petitioner filed the present

criminal revision petition and that is how this case is before this Court.

15. Before adverting to the arguments of the petitioner, the CBI and the

complainant, it needs to be clarified that in revisionary jurisdiction the court addresses

questions of law only since the questions of facts have already been dealt with by two

courts below in detail by scanning all the evidence on record. This is the mandate of law

and has to be adhered to. However, there will always be certain factual aspects which

either touch upon or have a bearing on a related question of law and as such, such

arguments/ issues wherever presented, shall be dealt accordingly. Also in the interest of

justice, a brief resume of all the arguments, of law as well as of facts, raised by the

counsel for the petitioner will also be given.

16. An application was moved by the complainant i.e. Mrs. Madhu Parkash, to

be impleaded as a Respondent in the present Revision Petition. Her application was

opposed by the learned counsel for the petitioner on the ground of lack of locus standi.

17. The principle of locus standi was very aptly enunciated by Lord Denning in

one of his memoirs (The Discipline of Law). Tracing the expansion of the expression

“person aggrieved” Lord Denning referred to the case of R v Thames Magitsrate’s Court


(1957) 5 LGR 129 which was decided by him alongwith Justice Parker in which for the

first time, the old test of judging the “person aggrieved” was departed. The old test, which

was laid down by Lord Justice James in the Sidebotham case (1880) 14 Ch D 458 at 465,

prescribed that a man was not a “person aggrieved” unless he himself had suffered

particular loss in that he had been injuriously affected in his money or property rights. In

R V Paddington Valuation Offficer, ex parte Peachey Property Corpn Ltd (1966) 1 QB

380 at 400 – 1, Lord Denning observed – `But I do not think grievances are to be

measured in pounds, shellings and pence. If a ratepayer or other person finds his name

included in a valuation list which is invalid, he is entitled to come to the court and apply

to have it quashed. He is not to be put off by the plea that he has suffered no damage,

any more than the voters were in Ashby v White. The court would not listen, of course,

to a mere busybody who was interfering in things which did not concern him. But it will

listen to anyone whose interests are affected by what has been done…. So here it will

listen to any ratepayer who complains that the list is invalid. This was afterwards

approved by the House of Lords in Arsenal Football Club v Ende.’ The principle of locus

standi was thus expanded to include within the ambit of expression “person aggrieved”, a

person who may not have suffered personal injury but is aggrieved by a wrongful act.

18. It is worth mentioning here that the Complainant had filed a criminal writ

petition way back in the year 1997 praying for registration of an F.I.R. against the

petitioner which was allowed by this Court. Subsequently, the said order of this Court

was also upheld by the Hon’ble Supreme Court and pursuant to the same an F.I.R was

formally registered by the C.B.I. Regarding the aforesaid criminal writ petition, it is clear


that the Complainant’s locus standi already stands accepted by this Court as well as by

the Hon’ble Supreme Court. Moreover, the learned counsel for the complainant has

rightly argued that the plea of locus standi was not raised before the Court of First

Appeal. It was further argued by the Learned Counsel that a private complainant has

equal standing before the Court and infact the order of enhancement of sentence has been

passed in the revision filed by the complainant before the Lower Appellate court. They

(complainant) were a party before the trial court and the first appellate court. That being

the position, it can be easily inferred that the petitioner has intentionally not impleaded

the complainant as Respondent.

19. In any case, the ratio of the cases referred to by the Complainant fully

supports the plea that criminal justice system can be set in motion by any citizen. The

learned counsel for the complainant in this regard has placed reliance on A.R. Antulay

Vs. R.S. Nayak 1984 (2) SCC 500 FB; N.Natarajan Vs. B.K. Subbrao Dharmesh 2003

(2) SCC 76 and DharmeshBhai Vasudevbhai & Others Vs. State of Gujarat & Others

2009 (6) SCC 576. As such, the submissions of the learned counsel for the complainant

were heard and the application of the Complainant for being impleaded in this Criminal

Revision Petition stands allowed.

20. Before the lower courts as also before this court, the sequence of arguments/

issues raised and the contradictions highlighted in the prosecution case by the learned

counsel for the petitioner is identical. Following are the questions of law raised by the

petitioner’s counsel:


(a) No incident as alleged by the Prosecution, ever happened

because the incident, as detailed by the eye witness (Ms. Aradhana)

was neither possible nor probable i.e. theory of improbability and

impossibility.

(b) There was a lot of delay in lodging the F.I.R.

I Validity of Ex. P- 1 was challenged on the ground that it was

not signed by Ms. Ruchika or by her father and that Ms. Ruchika’s

signatures were forged on this document.

(d) Ex. P – 2 was challenged on the grounds that it was produced

before the trial court for the first time by Sh. Anand Parkash

although it was in his possession since 1990 and also on the ground

that Ex. P – 2 was tampered with.

(e) Admissibility of Ex. P – 3 was challenged on the ground that

it was not signed by Ms. Ruchika in as much as the signatures of

Ms. Ruchika appearing on Ex. P – 1 and Ex. P – 3 are not identical

and the same finds corroboration from a handwriting expert who

appeared as a defense witness.

(f) Ex. P – 4, which is a photocopy of Ex. P -1 and was

submitted along with Ex P – 3, was challenged on the ground that

an extra sheet has been added to the said document containing the

names of a number of locality residents, which was not there in the


original document i.e. Ex. P – 1 by photocopying the extra

signatures on the back of last page of Ex. P – 1.

(g) The Inquiry conducted by Sh. R.R. Singh was without

jurisdiction as the petitioner at the relevant time was on deputation

with the BBMB; that the Inquiry officer was inimical towards the

petitioner and that the petitioner was never examined by the

Inquiry Officer.

(h) The only eye witness, Ms. Aradhana was infact a planted

witness and she was not present with Ms. Ruchika at the time

when the alleged molestation took place; her testimony suffers

from contradictions and improvements; that she is an interested

witness, that she is a chance witness and most of what Ms.

Aradhana has deposed before the court, is hearsay evidence which

is inadmissible under the Indian Evidence Act.

(i) Prosecution failed to produce two material witnesses, namely

Sh. Paltoo (ball picker) and Sh. T. Thomas (Tennis Coach).

(j) The case was set up against the petitioner by highly placed

civil servants namely Sh. Ojha and Sh. J.S. Duggal, who. At the

relevant time were PSCM and Home Secretary, respectively. In

particular, Sh. Ojha was supposedly inimical towards the petitioner

since he had turned down the suggestion of Sh. Ojha to step down

from the presidentship of HLTA, paving way for Sh. Ojha to

takeover.


(k) The criminal writ petition filed by Mrs. Madhu Parkash, on

the basis of which, an F.I.R. was ultimately ordered to be registered

by the Punjab & Haryana High Court, was infact a counter blast to

the defamation suit filed by the petitioner against Mrs. Madhu

Parkash and others and that the said criminal writ petition was filed

only after summons were issued by the Court which was trying the

defamation suit.

(l) Sh. S.C Girhotra demanded money at some point of time

(much after Ms. Ruchika’ suicide) for withdrawing the proceedings

against the petitioner.

(m) The public life of Sh. S.C. Girhotra and Sh. Anand Parkash

is tainted in as much as both of them have been punished on

corruption charges by their respective offices.

(n) The facts/ allegations of the case do not make out a case of

molestation u/s 354 IPC as the necessary ingredients of the offence

of molestation are lacking.

(o) The evidence of material prosecution witnesses suffers from

contradictions.

21. The afore mentioned string of arguments raised by the learned counsel for the

petitioner is woven around the main defence plea, as built up by the learned counsel that

infact the petitioner has been falsely implicated because of a long standing animosity

which Sh. Anand Parksah had allegedly developed against the petitioner. The learned


counsel for the petitioner has tried to connect practically each of the arguments somehow

with the defence assumption that the entire case was set up by Sh. Anand Parkash and he,

infact, derived professional benefit from this exercise, besides venting his longstanding

grudge against the petitioner. In addition to the above arguments, there are also a number

of connecting arguments of facts which however cannot be detailed here but if appearing

to be related to a question of law, shall be discussed at the relevant stage. Also, it is

relevant to highlight that out of the entire factual matrix as presented by the prosecution

and its contradiction/ rebuttal by the defense counsel, the only undisputed fact that can be

culled out is that Ms. Ruchika did go to meet the petitioner on 12.8.1990 around 12 noon

and the petitioner met her in his office i.e. makeshift office of HLTA in the garage of his

house in sector 6, Panchkula. The discussion hereinafter will be firstly on pure questions

of law and thereafter, wherever possible, the Court shall address mixed questions of fact

and law.

22. Learned Counsel for the petitioner has initiated her arguments by stressing on

the twin theories propounded by her on the aspect of improbability and impossibility of

the act of molestation. The learned counsel for the petitioner contends that given the

situation of the HLTA make shift office in a garage and presence of a number of people

including laborers around at that time in the house of the petitioner, no sane man would

ever attempt to molest a girl, knowing fully well that his act can be seen by others. An

argument related to the issue of impossibility of the act of molestation by the petitioner

was raised by the learned counsel for the petitioner by referring to the site plan which is

Ex. PW 8/ A. The learned counsel for the petitioner submits that the front side of the


garage/ HLTA make shift office i.e. facing the road and the gate which has been shown as

Point X in the site plan, consisted of collapsible/wooden doors and transparent glass

windows. As such, it was impossible to conclude that anybody would attempt to molest a

girl having full knowledge that his act can be seen from the outside very clearly. In

support of her arguments, learned counsel has placed reliance on a judgment of Hon’ble

the Supreme Court in Vikramjit Singh @ Vicky Vs. State of Punjab, 2007(2) CCC 650

(SC), wherein it has been held as under:

“14. It may be that in a situation of this nature where the court legitimately may raise a

strong suspicion that in all probabilities the accused was guilty of commission of heinous

offence but applying the well-settled principle of law that suspicion, however, grave may

be, cannot be a substitute for proof, the same would lead to the only conclusion herein

that the prosecution has not been able to prove its case beyond all reasonable doubt.

15. In Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984

SC 1622 = (1984) 4 SCC 116], this Court laid down the law in the

following terms :

“153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against an

accused can be said to be fully established:

56. the circumstances from which the conclusion of guilt is

to be drawn should be fully established. It may be

noted here that this Court indicated that the


circumstances concerned “must or should” and not

“may be” established. There is not only a grammatical

but a legal distinction between “may be proved” and

“must be or should be proved” as was held by this

Court in Shivaji Sahabrao Bobade v. State of

Maharashtra where the observations were made: [SCC

para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the accused must

be and not merely may be guilty before a court can convict

and the mental distance between ‘may be’ and ‘must be’ is

long and divides vague conjectures from sure

conclusions.”

(2) the facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say,

they should not be explainable on any other hypothesis

except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except

the one to be proved, and

(5) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all


human probability the act must have been done by the

accused.”

It was further observed :

“179. We can fully understand that though the case superficially

viewed bears an ugly look so as to prima facie shock the

conscience of any court yet suspicion, however great it may be,

cannot take the place of legal proof. A moral conviction however

strong or genuine cannot amount to a legal conviction

supportable in law.

180. It must be recalled that the well established rule of criminal

justice is that “fouler the crime higher the proof”. In the instant

case, the life and liberty of a subject was at stake. As the accused

was given a capital sentence, a very careful, cautious and

meticulous approach was necessary to be made.”

26. We have noticed hereinbefore that both the learned Sessions Judge

as also the High Court proceeded to compare the probabilities of two

views. It is now beyond any cavil that where two views of a story appear

to be probable, the one that was contended by the accused should be

accepted.

23. Opposing this argument, the learned counsel for the CBI submits that the

presence of glass windows in the site plan as on 27.1.2000 has no bearing on the inlay

and outlay of the HLTA office as it existed on 12.8.1990 especially, since there is huge


time gap of 10 years between the happening of the molestation event and preparation of

the site plan. The learned counsel further submitted that defence witnesses were in some

way or the other obliged to the petitioner or were under his influence and were bound to

depose about the existence of transparent windows as argued by the defence counsel in

the trial court. Moreover, it is not possible that the petitioner knew where the coach was

at the point of time when he sent Aradhana to fetch him and this itself proves that he

simply wanted to get rid of Aradhana from the HLTA office. Learned Counsel for the

complainant has argued that there are numerous reports almost every day disclosing acts

of molestation taking place in local buses and trains and even public places and hence,

there is no gain in saying that the act would not be attempted by any sane man knowing

that his act would be patently visible to all. The case law cited above by the learned

counsel for the petitioner in support of her argument of improbability/ impossibility has

no applicability to the facts of the present case in as much as in the case before this Court,

the allegations were duly substantiated and proved beyond reasonable doubt by the cogent

evidence of eye-witness, PW13, corroboration of eye-witness by Sh. R.R.Singh and

documentary evidence on record, Ex. P1 to Ex. P3.

24. In so far as the improbability of the alleged act is concerned, suffice it to say

that when the allegations are pertaining to an act of physical molestation, the analogy that

whether the same could have been attempted by a sane man is of no relevance. Physical

lust makes a man blind and even though it is a momentary lapse of morality which shuts

down the reasoning ability of a man, the consequences are disastrous, as has already been

seen in the present case. A man possessed by physical lust cannot see anything beyond his


immediate target. Even though a labourer, who is said to have been working on that day

at the petitioner’s house has been examined as a DW, all that he deposed was that he

heard that ‘Sahab’ was scolding a girl. There is no evidence that he could actually see

from outside as to what was happening inside the HLTA office. As per the site plan Ex.

PW 8/A, the point X refers to the front side of the office/ garage facing the road which

has been shown as a wall. The eye witness Ms. Aradhana has also deposed that on

12.8.1990, there existed a wall at Point X. Sh. Som Lal PW 8 has also submitted in his

evidence that he has prepared the legend of the site plan as per the eye witness and has

rightly shown a wall at point X. In the face of the site plan and the testimony of the eye

witness who has been believed in material terms, the major part of the argument relating

to the improbability of the act loses relevance.

25. In so far as the theory of impossibility of the act itself is concerned, the major

part of the argument of the learned counsel for the petitioner is directed towards trying to

prove that no man can embrace another, in the manner that the eye witness has deposed,

while standing behind a table and then suddenly falling into his chair when the eye

witness entered the room. Learned counsel for the CBI argued that the occurrence is well

proved by the unimpeachable testimony of the eye witness Ms. Aradhana. The main limb

of the impossibility theory put forth by the counsel for the petitioner is that there was a

table between the petitioner and the victim and it was not possible to embrace the victim

across the table which was allegedly 4 x 3 feet wide. However, the eye witness has no

where stated that the petitioner was trying to embrace the victim across the table. The

learned counsel for the CBI further contended that this argument has been unnecessarily


introduced simply to confuse the court and has no relevance or substance since it is not

even a part of the testimony of the eye witness.

26. As per the eye witness, when she and Ms. Ruchika went inside the HLTA

office, a table and a chair were already lying and the petitioner called for another chair on

which the eye witness sat. Ms. Ruchika kept standing at which point the eye witness was

asked by the petitioner to go and call the coach. The only inference that can be drawn

from this description is that it was the eye witness who was sitting across the table,

opposite the petitioner. Ms. Ruchika kept standing. After the exit of Ms. Aradhana, the

relative positions of the victim and the petitioner could have undergone an even more

suitable posture for the commissioning of the said act i.e. the petitioner getting up and

holding the hand of Ms. Ruchika, would have brought them to the position as shown in

the site plan. There is thus every possibility that Ms. Ruchika could have been embraced

in the manner that the eye witness eventually described. Moreover, the description that

the petitioner fell back in his chair on seeing Ms. Aradhana does not mean that the

petitioner literally fell down in his chair. It can equally be inferred that immediately on

seeing the eye witness, the victim was released and he immediately sat back in his chair.

There is thus no gain in saying that the act could have never taken place.

27. The next argument raised by the learned counsel for the petitioner is of delay

in registering the FIR since the alleged incident took place on 12.8.1990 and the

complaint was ultimately presented to the SHO of sector 6 Police station, Panchkula on

18.8.1990. The Counsel contends that this huge time gap gave ample scope for false


implication of the petitioner. In this regard, reliance has been placed by the learned

counsel for the petitioner on a judgment of Hon’ble the Supreme Court rendered in

Gorle S. Naidu Vs. State of A.P. and others, (2003) 12 SCC 449, wherein it has been

held as under:-

“13. Though mere acquittal of large number of co-accused persons does

not per se entitle others to acquittal, the Court has a duty in such cases to

separate the grain from the chaff. If after sieving the untruth or

unacceptable portion of the evidence residue is sufficient to prove the guilt

of the accused, there is no legal bar in convicting a person on the

evidence which has been primarily disbelieved I others. But where they

are so inseparable that any attempt to separate them would destroy the

substratum on which the prosecution version is founded, then the Court

would be within its legal limits to discard the evidence in toto……”

It was also contended by the learned counsel for the petitioner that if the victim and her

parents/ friends felt that approaching the police authorities was difficult in view of the

official position of the petitioner, alternate remedy existed under section 190 and 200 of

the Cr. P.C but no such mode was adopted. In this regard, the learned counsel for the

petitioner has relied on a judgment of Hon’ble the Supreme Court in Aleque Padamsee

and others v. Union of India & others, (2007) 6 SCC 171, wherein it has been observed

as under:

8. The writ petitions are finally disposed of with the following

directions:


(1) If any person is aggrieved by the inaction of the police

officials in registering the FIR, the modalities contained in Section

190 read with Section 200 of the Code are to be adopted and

observed.

(2) It is open to any person aggrieved by the inaction of the

police officials to adopt the remedy in terms of the aforesaid

provisions.

(3) So far as non-grant of sanction aspect is concerned, it is for

the concerned government to deal with the prayer. The concerned

government would do well to deal with the matter within three

months from the date of receipt of this order.

(4) We make it clear that we have not expressed any opinion on

the merits of the case.

On the contrary, the learned counsel for the CBI has relied on Vidyavardhan vs. State of

Kerala 2004 Crl. L. J. 605 SC to contend that in a traditional society where the question

of reputation of a woman is involved, delay in filing the FIR is not fatal to the case of

prosecution.

28. There is no doubt there was a delay of about 6 days in presenting the

complaint to the SHO concerned but the same has been duly explained. Having regard to

the facts of the case, it was not possible for the molested girl to straight away go and

lodge an FIR against the accused who happened to be a very senior police officer. The


Court has to keep in view the possible state of mind of Ms. Ruchika at that time. It would

not have been an easy decision for her either ways but having regard to our social set up

and also the petitioner’s official position, she probably decided to keep quiet. It was only

after it appeared to her and Ms. Aradhana on 14. 8. 1990 that the petitioner does not seem

to be improving that they decided to disclose the facts to their parents.

29. The follow up action was immediate since the locality residents, including

the parents of Ms. Ruchika and Ms. Aradhana went to meet the petitioner in HLTA office

on 14th evening itself. On the following day, a memorandum containing allegations

against the petitioner was prepared which was then submitted to the Home Secretary,

Government of Haryana on 16.8.1990. It was only after the assurance of Home Secretary

that Ms. Ruchika and her parents probably got the courage to lodge a formal complaint

with the SHO of sector 6 Panchkula. In such circumstances, the sequence of events is a

sufficient index to record that there is no delay in this case. In any case, delay in FIR is a

possible cause for false implication when a large number of people have to be roped in

along with the main accused. Here is a case where there was only 1 accused and the only

reason for delay was the high civil position that he was holding which in all probability

caused fear as well in the minds of Ms. Ruchika and her father. In any case, the formal

complaint was preceded by a memorandum to the state government containing similar

allegations against the petitioner which left little scope for false implication of the

petitioner. Question of invoking alternate remedy u/s 190 read with section 200 of the Cr.

P.C would have arisen only if the memorandum submitted to the state government also


would not have resulted in any action against the petitioner. However, the State

government acted in a responsive manner taking note of the serious allegations leveled

against the petitioner and acted in a proper manner by marking the Inquiry to the head of

State police machinery. There was, thus, no occasion for the victim or her parents/ friends

to approach the courts. The complainant had come to realize that he is pitted against the

high police official. Therefore, the representation was made to the Home Secretary.

Therefore, the authorities referred above by the learned counsel does not help the

petitioner.

30. Learned counsel for the petitioner has very strongly argued that the police

station was just a few hundred yards away from the residence of Ms. Ruchika and she or

her parents could have easily lodged a complaint with the Police. In support of her

argument, the learned counsel for the petitioner also contended that since petitioner was

on deputation with the BBMB at the relevant time, he could not have wielded any

influence over the state police and hence, there is no explanation for not approaching the

area SHO in the first instance.

31. In order to meet this argument it is relevant to narrate the incident of

16.8.1990. On 16.8.l990, at about 9 pm, the then SHO of Sector- 6, Panchkula was called

by the petitioner at his residence where he asked the SHO to lodge a complaint that the

Manager and Coach of HLTA have been beaten up by some persons. This fact was

deposed by the then SHO Sh. Dewan since he appeared as PW 10. He further deposed

that the same day i.e. on 16.8.1990, when he went to the HLTA court, both the Manager


and Coach of HLTA were standing there but they did not lodge any such complaint with

him. Infact two complaints were lodged by Sh. Kuldip Singh, first on 16.8.1990 on the

instructions of the petitioner and the second complaint on the following day i.e.

17.8.1990, neither of which was found to be true by the then SHO Sh. Anil Dhawan (PW

10). This small incident is enough indication of the fact that even though the petitioner

was on deputation, he wielded considerable clout over the state police to the extent that

he could summon the SHO of the area to his residence at 9 pm and ask him to lodge a

false complaint. Even if the petitioner was on deputation, ground realities in this country

cannot be ignored. The petitioner would have come back to the state police services

sooner or later. The importance of an SHO, as outlined in the criminal procedure code, is

more or less on paper only because when it comes to the pressure being exerted by senior

officers like the petitioner, the junior officers usually crumble under it. Father of Ms.

Ruchika as well as her friends and supporters were right in their own way to firstly

approach the senior functionaries of the state administration. Once they got assurance of

justice from them, they lodged a formal complaint against the petitioner with the area

SHO.

32. A related argument raised by the learned counsel for the petitioner is that if

the alleged incident ever really happened, why Ms. Ruchika and Ms Aradhana came to

play tennis on 14. 8.1990 when in fact they should have been avoiding the petitioner or

staying away from him? In this regard, learned counsel for the CBI has argued that a

reasonable explanation has come on record as deposed by the eye witness for not

disclosing the incident of 12.8.1990 on that day itself. The petitioner was a high ranking


police officer and that fear was definitely operating on the minds of both the girls. The

subsequent events have shown that their fear was well founded. Learned Counsel further

contends that post event conduct of a human varies from man to man and in support of

his arguments, reliance has been placed upon judgments of Hon’ble the Supreme Court

rendered in Rammi @ Rameshwar Vs. State of Madhya Pradesh 1999 Crl. L. J. 4561

SC; State of Orissa Vs. Dibakar Naik and others, 2002 Crl. L. J. 2826 SC; State of

Uttar Pradesh Vs. Devendra Singh 2004 Crl. L. J. 3118 SC and Dinesh Borthakur Vs.

State of Assam Appeal (Crl.) 687 of 2007.

33. This Court is of the view that if Ms. Ruchika and Ms. Aradhana still came to

play tennis after a day’s break, it was in tune with their decision not to disclose the

incident of 12.8.1990 fearing hostile reaction from the petitioner. Had they stopped

coming altogether, even then they would have had to disclose the reason behind the same.

They probably thought it wise to go and play instead of inviting undue questioning from

their parents which would have been their probable reaction to the sudden discontinuance

of playing tennis by their daughters. In any case it has come on record that they went at

4.30 pm on 14.8.1990 whereas their usual shift was at 6.30 pm, simply to avoid the

petitioner.

34. The learned learned counsel for the petitioner has also tried to build up an

argument that since Ex P – 1 did not contain the signatures of Sh. S.C. Girhotra and the

signatures of Ms. Ruchika are forged, it was Sh. Anand Parkash who prepared the false

memorandum, got it signed by a few others and submitted it to the Home Secretary,


Haryana. The learned counsel for the petitioner further contended that once the

memorandum had been submitted, there was no option left for Sh. S.C. Girhotra and Ms.

Ruchika but to follow the subsequent course of events. The learned counsel for the

petitioner has argued that it is possible to contend that false allegations can be levelled

against innocent persons by exploiting the weapon of female modesty. In this regard, the

learned counsel has placed reliance on a judgment of Hon’ble the Supreme Court in

Pandurang Sitaram Bhagwat Vs. State of Maharashtra, 2005(1) RCR (Criminal) 858,

wherein it has been observed as under:-

“16. The approach of the learned Trial Judge as noticed supra that

ordinarily a lady would not “put her character at stake” may not be

wrong but cannot be applied universally. Each case has to be determined

on the touchstone of the factual matrix thereof. The law reports are

replete with decisions where charges under Sections 376 and 354 of IPC

have been found to have been falsely advanced.

19. The charges of making false allegations by Alka at the instance of

her husband, who is working in the police department cannot be totally

brushed aside. No case was also made out that the incident of

threatening, abusing or beating took place outside the house of the

Appellant.

20. We are not oblivious that the doctrine ‘falsus in uno, falsus in

omnibus’ is not applicable in India but the evidence led by the parties

must be appreciated keeping in view the entirety of the situation. The Trial

Judge, as noticed hereinbefore, came to the conclusion that most of the


statements made by PW-2 and PW-3 were incorrect and no reliance could

be placed thereon. The statements of the said witnesses with regard to

commission of an offence by the Appellant under Section 354 IPC should

have been considered keeping in view the extent of falsity in their

statements. PW-2 and PW-3 not only failed to substantiate the allegations

as regard commission of offences under Sections 323, 504, 506 read with

Section 34 IPC but also implicated the three persons falsely. The

statements of the said witnesses should have been accepted with a pinch of

salt and keeping in view the admitted animosity between the parties. The

background of the case I continuous animosity between the complainant

and her husband, on the one hand, as also and the Appellant and his other

tenants could not have been lost sight of by the learned Trial Judge.”

35. In so far as the forgery of Ms. Ruchika’s signatures on Ex P -1 is concerned,

the same being a related question of fact will be touched upon a little later. However, in

so far as the other part of the submission is concerned, it does not stand to logic that

having regard to the Indian social set up, any father would let his daughter’s honour and

reputation be damaged merely because one of his associate has his own agenda against

the petitioner. There cannot be any dispute with the proposition as laid down in

Panduram’s case (supra). However, each case has to be determined on the touchstone

of the factual matrix thereof. In the instant case, there is nothing on record on the basis of

which, it can be said that the tender age of the victim was exploited for the benefit of Sh.

Anand Parkash. The learned counsel for the petitioner has very pointedly argued that Sh.


S.C. Girhotra himself admitted that his acquaintance with Sh. Anand Parkash started after

the incident of 12.8.1990. If that be the case, the defense story is rendered even more

improbable because it is impossible to conclude that any father would let his daughter be

used by a total stranger. Going a step further into the realm of probabilities, even if it is

assumed that Ex. P – 1 did not contain the signatures of Ms. Ruchika and someone else

signed on her behalf, even this fact does not dilute the evidentiary value of Ex. P – 1

unless it is proved that Ms. Ruchika never supported the allegations made in Ex. P – 1,

which is not the case here. It is on record that Ms. Ruchika signed Ex. P – 3 and also

appeared before Sh. R.R Singh which itself is sufficient to prove that she supported the

allegations made against the petitioner or else Sh. R.R. Singh would not have indicted the

petitioner. Learned Counsel for the CBI submits that Ruchika’s signatures have been

identified by her father and he has testified to that effect in the trial court. Emphasizing on

the weakness of evidence by a handwriting expert, learned counsel for the CBI has placed

reliance on S. Gopal Reddy Vs. State of A.P. 1996 Crl. L.J. 3237, wherein the

attention of this Court has been drawn towards the following part of the judgment:-

“4. ……On merits, counsel argued that reliance placed by the trial

court as well as the appellate and the revisional court on various letters

purporting to have been written by the first accused was erroneous

since the appellant had denied their authorship and there was no

satisfactory evidence on the record to connect the appellant with those

letters except the “inconclusive” and uncorroborated evidence of the

handwriting expert. Mr. Rao further argued that in the present case

there was no unimpeachable evidence available on the record to bring


home the guilt of the appellant and the failure of the prosecution to

examine Ms. Vani and Shri Narsinga Rao was a serious lacuna in the

prosecution case. Argued Mr. Rao that the evidence of PW1, the

complainant had not received any corroboration at all and since the

evidence of PW1 was not wholly reliable, conviction of the appellant

without any corroboration of the evidence of PW1 was not justified. Mr.

Rao urged that the complainant had exaggerated the case and roped in

the appellant, whose elder brother alone had made the demand for dowry,

out of anger and frustration and that let alone `demanding dowry’, the

first accused was not even a privy to the demand of dowry as made by the

second accused, his elder brother.

28. We are unable to agree, in the established facts and circumstances

of this case, with the view expressed by the courts below that PW1 is a

competent witness to speak about the handwriting of the appellant and

that the opinion of PW3 has received corroboration from the evidence of

PW1. PW1 admittedly did not receive any of those letters. He had no

occasion to be familiar with the handwriting of the appellant. He is not a

handwriting expert. The bald assertion of PW1 that he was “familiar”

with the handwriting of the appellant and fully “acquainted” with the

contents of the letters, admittedly not addressed to him, without

disclosing how he was familiar with the handwriting of the appellant, is

difficult to accept. Section 67 of the Evidence Act enjoins that before a

document can be looked into, it has to be proved. Section 67, of course,


does not prescribe any particular mode of proof. Section 47 of the

Evidence Act which occurs in the chapter relating to ‘relevancy of facts’

provides that the opinion of a person who is acquainted with the

handwriting of a particular person is a relevant fact. Similarly, opinion of

a handwriting expert is also a relevant fact for identifying any

handwriting. The ordinary method of proving a document is by calling as

a witness the person who had executed the document or saw it being

executed or signed or is otherwise qualified and competent to express his

opinion as to the handwriting. There are some other modes of proof of

documents also as by comparison of the handwriting as envisaged under

Section 73 of the Evidence Act or through the evidence of a handwriting

expert under Section 45 of the Act, besides by the admission of the person

against whom the document is intended to be used. The receiver of the

document, on establishing his acquaintance with the handwriting of the

person and competence to identify the writing with which he is familiar,

may also prove a document. These modes are legitimate methods of

proving documents but before they can be accepted they must bear

sufficient strength to carry conviction. Keeping in view the in-conclusive

and indefinite nature of the evidence of the handwriting expert PW3 and

the lack of competence on the part of PW1 to be familiar with the

handwriting of the appellant, the approach adopted by the courts below to

arrive at the conclusion that the disputed letters were written by the

appellant to Ms. Vani on the basis of the evidence of PW1 and PW3 was


not proper. The doubtful evidence of PW1 could neither offer any

corroboration to the inconclusive and indefinite opinion of the

handwriting expert PW3 nor could it receive any corroboration from the

opinion of PW3. We are not satisfied, in the established facts and

circumstances of this case, that the prosecution has established either the

genuineness or the authorship of the disputed letters allegedly written by

the appellant from the evidence of PW1 or PW3. The courts below

appear to have taken a rather superficial view of the matter while relying

upon the evidence of PW1 and PW3 to hold the appellant guilty. We

find it unsafe to base the conviction of the appellant on the basis of the

evidence of PW1 or PW3 in the absence of substantial independent

corroboration, internally or externally, of their evidence, which in this

case is totally wanting.

The learned counsel for the CBI has further placed reliance, in support of his arguments

that evidence of a handwriting expert requires corroboration, on the judgment of Magan

Bihari Lal Vs. State of Punjab, 1977 Crl. L. J. SC and the judgment of Allahabad High

Court in Sanjay Goel vs. State of U.P. 2002 Crl. L. J. 625.

36. It is thus clear that uncorroborated evidence of a handwriting expert is an

extremely weak type of evidence and the same should not be relied upon either for the

conviction or for acquittal. In the present case also, there is no corroboration at all of the

handwriting expert testimony with regard to the issue of forgery of Ms. Ruchika’s


signatures. In fact, identification of the relevant signatures by a person who is acquainted

with the same in the ordinary course is a much more reliable piece of evidence. The

learned counsel for the CBI has rightly argued that the signatures of Ms. Ruchika have

been identified by her father Sh. S.C. Girhotra, which completely disproves the allegation

of forgery made by the petitioner. Moreover, even if the contention of the petitioner is

accepted for a moment, still it cannot be said that forgery is proved because the evidence

of handwriting expert is only to the extent that signatures of Ruchika as appearing on Ex.

P -1 do not tally with her signatures as appearing on Ex. P – 3 which by no stretch of

argument can mean that Ruchika’s signatures are forged on Ex. P – 1. The authority cited

by the learned counsel for the petitioner in support of her arguments relating to

handwriting expert’s evidence i.e. Gope Laxmichand Badlani Vs. Oriental Bank of

Commerce & Others 2002 (5) SLR 69 does not hold much relevance keeping in view the

facts of the present case.

37. It is clear that the reason why a strong objection has been raised by the

learned counsel for the petitioner qua Ex. P–1 is because the FIR was ultimately

registered on the basis of this document. Otherwise there seems to be no reason to

contend that Ruchika’s signatures are forged on Ex. P – 1 and not on Ex. P – 3. In the

absence of any authentic handwriting of Ms. Ruchika, it is impossible to contend that

either of the signatures of Ms. Ruchika on Ex P –1 and P –3 are forged. The court has to

believe the testimony of the father of Ms. Ruchika since he has identified the signatures if

his daughter on Ex. P – 1.


38. Ex. P- 2 is a material document on which the prosecution as well as defence

has relied heavily. Ex. P – 2 is the notice dated 15.8.2010 of suspension of Ms. Ruchika

on the ground of indiscipline. The notice was effective from a back date i.e. 13.8.1990.

Before the trial court, defence plea was that this document shows that Ms. Ruchika was

punished for indiscipline and the complaint against the petitioner was an offshoot of this

suspension. The prosecution, on the other hand has tried to prove this document to

substantiate their case that the petitioner having committed the act of molestation, tried to

save himself by accusing Ms. Ruchika of indiscipline which was only a ploy to put

pressure on Ms. Ruchika. The prosecution has relied on the endorsement given by the

coach Sh. Thomas and the HLTA manager Sh. Kuldip at the end of this notice and on its

back to the effect that they were not aware of any act of indiscipline committed by Ms.

Ruchika. On the other hand, the learned counsel for the petitioner has tried to prove that

infact this document has been tampered with in as much as the lower part of this

document has been trimmed. The learned counsel for the petitioner has also contended

that this document was produced for the first time by Sh. Anand Parkash before the trial

court giving rise to a strong presumption that it was tampered with. The Counsel further

questioned that as to why this document was not handed over to the investigating

authorities?

39. There is no doubt that this document was produced in the trial court for the

first time by Sh. Anand Parkash but this fact itself cannot take away the evidentiary value

of the said document. The evidence which the defence counsel had led before the trial

court only proves that the lower end sides of the said document were trimmed but the


material aspect is that there is no finding that the contents appearing on Ex. P – 2 were

tampered with in any manner. The trimmed portion might have contained something

material or a part of it could have got torn by chance as a result of which it was trimmed.

Even at the stage of trial, it would have been impossible for the Court to draw any

negative inference qua Ex. P – 2 on the ground of it being trimmed unless it could have

been shown that the trimmed part contained something material and was in some way

connected with the contents of Ex. P – 2 i.e. the words/ sentence in Ex. P – 2 end abruptly

giving rise to a presumption that there was something more to it, which has been trimmed

away. This is definitely not the case here. When the contents appearing on Ex. P- 2 are

making complete sense itself and there is neither any allegation nor any proof regarding

the tampering of the contents as they appear in Ex. P – 2, the argument that tampering

should be presumed on the ground of trimming is not sustainable. Once no tampering is

proved in regard to Ex. P – 2, the fact that it remained with Mr. Anand Parkash for a long

time loses relevance.

40. Infact, it seems more probable that Mr. Anand Parkash took the said

document in his possession so as to prevent the petitioner from destroying it. Ex. P- 2

also proves in a way that the petitioner was trying to create evidence against Ms. Ruchika,

anticipating the disclosure of the incident dated 12.8.1990. Ex. P- 2 is actually a

suspension notice pasted in the HLTA lawns informing about the suspension of Ms.

Ruchika on the ground of indiscipline. This notice is dated 15.8.1990 but was made

effective from 13.8.1990. It is clear that the petitioner was informed about the fact that a


large number of people had come to meet him on 14th august (1990) evening after he had

already left for Chandigarh from HLTA office. He thus could anticipate it very well that

the incident of 12.8.1990 has come out in the open. The notice Ex. P – 2 was nothing but

a clever ploy by the petitioner to cover up his act and create a possible defence for the

allegations that were likely to follow and which did follow.

41. At this stage it is also relevant to discuss document Mark D – 5. Mark D 5 –

is a document which was sought to be exhibited by the defence before the trial court but

the permission to exhibit the same was refused. This document is dated 13.8.1990 and

mentions about the suspension of Ms. Ruchika from HLTA for 15 days. The learned

counsel for the petitioner has tried to build up an argument that infact this suspension

notice was typed on 13.8.1990 but could not be pasted on 13.8.1990 itself. This Court is

of the view that Mark D 5 was created simply because the defence could not demolish the

authenticity of Ex. P – 2. In the criminal complaint for defamation also, there is no

mention by the petitioner that he had got the suspension order of Ms. Ruchika typed on

13.8.1990. Moreover, if Mark D 5 was actually issued on 13.8.1990 but could not be

pasted for some reason, it could have been pasted on 14.8.1990 but what was actually

pasted was Ex. P – 2 on 15.8.1990 with effect from 13.8.1990. The conduct of the

petitioner infact borders on fabricating evidence to save himself.

42. The learned counsel for the petitioner has vehemently argued that Ex. P – 3

is not admissible. Elaborating the argument, the learned counsel for the petitioner has

stated that as per the opinion/ report of the handwriting expert DW the signatures of Ms.


Ruchika on Ex. P – 1 and Ex. P – 3 are not the same leading to the inference that it was

not signed by her. The question whether Ex. P – 1 and Ex. P – 3 bears the signatures of

Ms Ruchihearsr. The question whernfermc ka has partly been addressed above by this

Court. However, at the cost of repetition, the Court will again discuss the relevancy/

admissibility aspect of Ex. P – 1 and Ex. P – 3. Even though the opinion/ report of DW is

categoric that signatures of Ms. Ruchika as appearing on Ex. P – 3 do not tally with those

appearing on Ex. P-1, it has to be borne in mind that no document was brought on record

which could be said to be the original handwriting of Ms. Ruchika. Therefore, it was

impossible, even for a handwriting expert to prove which document actually bore the

signatures of Ms. Ruchika. rin ois categoric that signatures of Ms. As per the learned

counsel for the petitioner, the signatures of Ms. Ruchika were never appended on Ex. P- 1

which conclusion she draws from the comparison of signatures of Ms. Ruchika on Ex. P

– 3 but one thing is certain that at least Ex. P – 3 was signed by Ms. Ruchika. The reason

as to why the learned counsel for the petitioner has so strongly argued that Ex. P – 1 was

never signed by Ms. Ruchika is that her main line of argument throughout has been to

prove that infact neither Ms. Ruchika nor her father were ever interested in lodging a

complaint against the petitioner and it was only under pressure from Sh. Anand Parkash

that the whole show was staged. Thereafter, the learned counsel for the petitioner

contends that once the cat was out of the bag, there was no option for Ms. Ruchika and

her father but to go ahead with the complaint. Moreover, the C.B.I. lodged a formal F.I.R.

against the petitioner on the basis of Ex P -1 and hence the strong opposition to its

admissibility.


43. In so far as Ex. P- 1 is concerned, even if for a moment it is presumed that

someone else signed on behalf of Ms. Ruchika on the memorandum, even then the

seriousness of the allegations made therein is not diluted because the subsequent events

show that not only did Sh. S.C. Girhotra went to submit the memorandum Ex. P- 1 to the

state government on 16.8.1990 but he and Sh. Anand Parkash also lodged a formal

complaint with the SHO of the area and the same was signed by Ms. Ruchika. To say that

Ms. Ruchika or her father had no choice but to be dictated by Sh. Anand Parkash’s

maneuvers does not stand to reason at all. Learned counsel for the petitioner has grandly

elaborated the perceived hostility of Sh. Anand Parkash towards the petitioner but not a

word has been said as to why would Sh. S.C. Girhotra be so inimical towards the

petitioner that he would play into the hands of Sh. Anand Parkash and that too, to an

extent where he would allow his teenaged daughter to be used as a pawn for fulfillment of

someone else’s malafide motives. The Court is unable to conclude that Ex. P- 3 was

solely the result of the helpless situation in which Ms. Ruchika found herself after Ex. P –

1 had been submitted to the state government. This argument is preposterous.

44. At this stage it would also be relevant to highlight the reason put forth by the

learned counsel for the petitioner due to which Sh. Anand Parkash is said to be hostile

towards the petitioner and resultantly has set up this case against the petitioner. As per

the learned counsel for the petitioner, sometime in the year 1973, when the petitioner was

the S.P. of Kurukshetra, the father of Sh. Anand Parkash approached the petitioner with

the help of the local MLA of Laadwa with a request to protect them from false complaints

being made against him regarding ‘satta’ gambling. The petitioner is said to have


instructed the SHO of Laadwa to look into the matter and act as per law. This is the short

meeting that Sh. Anand Parkash’s father had with the petitioner and which according to

the learned counsel for the petitioner is the reason behind Sh. Anand Parkash’s hostility

towards the petitioner. This Court is unable to accept the contention that a grudge can be

carried over by any reasonable person regarding such a trifle for over 15 years. The then

Assistant Reader to the petitioner, who appeared as a defence witness also deposed on

these lines but was unable to produce any documentary proof to substantiate his

deposition. Even otherwise, it seems more probable that the phone call of the petitioner to

the SHO of Laadwa would have infact, sorted out the problems of the father of Sh. is

unable to conclude that such a trifle matter can be arried poer law. etowts the Petitioner

and resulatnaltu has eAnand Parkash.

45. Production of Exhibit P – 4 has also been strongly objected to by the learned

counsel for the petitioner. The learned counsel contends that this document is also

fabricated in as much as it purports to be a copy of the memorandum Ex. P – 1 which was

submitted to the Home Secretary, Govt. Of Haryana on 16.8.1990 but infact the

signatures of a large number of people were taken on a separate sheet and the same was

photocopied at the back page of this document i.e. Ex P – 1, even though these extra

signatures were not appended in the original Ex. P – 1. It is difficult to conclude that by

adding an extra sheet which only contains signatures of persons who had not originally

signed it would make it a forged document or even tampered so as to be inadmissible.

There is no allegation that contents of the Memorandum Ex P – 1 were changed or

tampered or altered when a copy of the same was submitted along with Ex P – 1. The


only conclusion that can be drawn regarding the extra signatures at the back of last page

of Ex P – 1 is that more people had come out in support of Ms. Ruchika by then and they

also felt that matter should be thoroughly inquired into.

46. The next argument put forth by the learned counsel for the petitioner is that

the inquiry conducted by Sh. R.R. Singh was without jurisdiction as the petitioner at the

relevant time was on deputation with the BBMB and was not under the administrative

control of the Government of Haryana. The learned counsel has further assailed the

Inquiry proceedings on the ground of bias of the Inquiry officer towards the petitioner. In

regard to the legality of the inquiry, the learned counsel has relied on a judgment of this

Court rendered in Jagbir Singh alias Lilu V. State of Haryana, 1994 (2) RCR 89,

wherein following para has been referred to:

“5. This fact is admitted that during the investigation of the case

registered against the petitioner allegations of mala fides on the part of

the police were made before Deputy Commissioner, Bhiwani and the

Deputy Commissioner directed the Sub Divisional Magistrate, Bhiwani to

enquire into the same. It was only a fact –finding enquiry and the

provisions of Section 6 of the Commission of Enquiry Act, 1952 were not

applicable so far as the statements recorded during that enquiry were

considered. Copy of the application which was made by the public

prosecutor for producing enquiry report is not on the record of this file

but the impugned order shows that application was moved under Section

311 Criminal Procedure Code for permission to produce evidence


regarding confession of the accused recorded by the Sub Divisional

Magistrate during enquiry proceedings and the Sessions Judge summoned

the record of the enquiry proceedings and observed that witnesses will be

summoned for the purpose of cross-examination with respect to the

enquiry later on. This order is not proper. Confessional statement of an

accused can be recorded by a Metropolitan Magistrate or a Judicial

Magistrate in the manner provided in Section 164 of the Code of Criminal

Procedure and it was not a case of the prosecution that any such

confession of the accused was to be got proved. Any confession recorded

after the commencement of investigation otherwise than in accordance

with the provisions of Section 164 Criminal Procedure Code is

inadmissible in evidence. Where a power is given to do a certain thing in

a certain way, the thing must be done in that way or not at all. Other

methods of performance are necessarily forbidden. Even if some

confession was recorded by the Sub Divisional Magistrate during enquiry

proceedings that was inadmissible in evidence and enquiry record should

not have been summoned for the purpose of proving that confession. The

impugned order is, therefore, liable to be quashed.”

47. In this regard, the learned Counsel for the CBI has contended that the

investigations carried out by the CBI were independent of the Inquiry report of Sh. R.R.

Singh. However, he has also submitted that it was wrong to suggest that the Inquiry

conducted by Sh. R.R. Singh was one sided and biased as the said officer examined all


the material witnesses and also gave an opportunity to the petitioner to present his case to

which he put a rider which was not accepted by the Inquiry Officer. Controverting the

assertion of the learned counsel for the petitioner that the memorandum Ex. P – 1 was

marked directly to then DGP without following the due procedure, the learned counsel for

the CBI contends that the memorandum was put up before the Home minister and the

Chief Minister and after seeking their approval, the Inquiry was marked to Sh. R.R.

Singh.

48. Undoubtedly, the petitioner was on deputation at the relevant time but the

fact of his deputation would have had some bearing on the legality of the inquiry by Sh.

R.R. Singh only if it had been a disciplinary inquiry under the service rules. This was not

the case here. Inquiry was marked to Sh. R.R. Singh after taking due orders from the then

Chief Minister of Haryana and was infact merely a fact finding inquiry. The argument of

the petitioner’s counsel is that it was not authorized under any service rules or statutory

rules, is totally without any basis. Inquiring into an allegation or an alleged act or a

disputed factual situation is a normal executive function which the State Government is

competent to order and for which it has inherent powers. Even otherwise, it is a common

experience that in a number of cases coming before the High Court or even the Supreme

Court, wherever the Court feels that a matter needs to be investigated or inquired into, it

orders accordingly. Such inquiries are not under any service rules or even statutory rules

but only to reach at the truth of the matter. Such an exercise, infact, sometimes proves

helpful in preventing a possible harassment of the person against whom allegations are

leveled. There is, thus, no illegality in ordering an inquiry by the State Government into


an allegation against a senior officer who even if on deputation, belonged to the state of

Haryana cadre. More importantly, the alleged act took place in Haryana i.e. in Panchkula,

and that automatically vests territorial jurisdiction in the Government of Haryana to

investigate or inquire into the matter. The case referred above by the learned counsel for

the petitioner is distinguishable as the enquiry by the DGP Sh. R.R. Singh was not

conducted under any service rules. The State in the interest of all the parties in order to

find out the truthfulness in the allegations, directed the DGP to conduct inquiry wherein

the petitioner chose not to appear before the DGP. Therefore, no prejudice as claimed by

the petitioner has been caused to him.

49. The Counsel for the petitioner has also raised a related issue to the effect that

the said inquiry was also not legal as per the Criminal Procedure Code and has strongly

objected to the corroboration by Sh. R.R. Singh of the statement made by Ms. Aradhana,

PW13, before him in the inquiry proceedings. In this regard, the learned counsel has

placed reliance on a judgment of Allahabad High Court delivered in Thakurji V.

Parmeshwar Dayal, AIR 1960 Allahabad 339, wherein it has been observed as under:

“37. This section is based on the principle that if there is consistency

between the previous statement and present statement of a witness, it may

be considered a ground for believing him. The corroborated value of

such previous statement depends upon the fulfillment of the conditions

laid down in S.157 and it is of a varying character dependent upon the

circumstances of each case. The Section requires that the former

statement must relate to the same fact, that the statement was made at or


about the time when the fact took place or before any authority legally

competent to investigate the fact. The statements Ex.B3 and Ex.B4 were

made in the year 1928 before the Collector with respect to facts said to

have taken place in the year 1901. The Collector was not legally

competent to investigate whether or not authority had been expressly

given by Rai Pratap Chandra to his wife to adopt a son to him. Defence

witnesses Ram Kishan and Madho Prasad were not produced or examined

before the Collector in the enquiry that was held for the first time in

1923. Apart, therefore, from the fact that both these witnesses by reason

of their relationship with Gaya Prasad are interested in setting up the

theory that such an express authority had been given by Rai Pratap

Chandra to his wife and that he had further given her some sort of

authority to make the endowments so that if the endowments are upheld

the managership or the Mutwalliship of the endowed property would

continue to vest in the descendents of Gaya Prashad, their previous

statements made on the 18th of December, 1928, before the Collector

could not be taken as corroborative as those statements did not fulfil the

conditions of S. 157 of the Indian Evidence Act.”

Learned counsel has further placed reliance upon the judgment of Calcutta High Court

passed in Emperor V. Ram Chandra Roy, AIR 1928 Calcutta 732, wherein it has been

observed as under:


“Mr. Bose has next asked us to hold that the prosecution should have

proved the report made by the receiver to the District Judge which

admittedly he made on his return to Rajshahi and as they did not do so we

should presume that this report would not, if put in evidence, support the

prosecution story. Now the answer to this contention is that this report

could have only been used by the prosecution to corroborate the

witnesses, if it came within the provision of S. 157, Evidence Act. The

report, however, was not made at or about the time of the occurrence but

some 24 hours after. Neither does it come under the second part of the

section for it was not made to a person who can legally investigate the

fact. It was made to the District Judge who had not power to investigate

the matter. Probably if any attempt had been made by the prosecution to

use it, strong objection would have been taken to it. Obviously, it is open

to the defence to have used it under S.155, Evidence Act to impeach the

credit of the receiver. No attempt was, however, made by the defence to

do so.”

50. In this regard, the learned Trial court has returned a plausible finding that Sh.

R.R. Singh was infact competent to investigate the matter since as per the Criminal

Procedure Code, any officer, senior in rank to the SHO of a police station is authorized to

investigate the matter within the area of his jurisdiction. However, as has already been

pointed out that since the inquiry by Sh. R.R. Singh was merely a fact finding enquiry, the

challenge to the same on the ground that it was illegal and not as per the Cr. P.C. holds no


value at all. More importantly, what prejudice had been caused to the petitioner that the

basis of the said inquiry was so strongly challenged? The answer to this is, nothing at all.

The undisputed fact is that nothing happened even after Sh. R.R. Singh had submitted the

report because the State Government did not take any action at all. Infact, the petitioner

subsequently earned promotions and was ultimately even appointed as head of the State

Police force. The Trial court has not in any way made the Inquiry report of Sh. R.R Singh

basis for convicting the petitioner. When Sh. R.R. Singh appeared as a PW, he was not

allowed to depose as to what had Ms. Ruchika told him when he held the inquiry since

the same was barred by the Indian Evidence Act. Ms. Aradhana anyways has appeared as

a PW before the trial court. Thus, even if Sh. R.R. Singh did depose before the trial court

regarding the Inquiry conducted by him, it merely proved the chain of events which is a

question of fact and thus admissible under the Evidence Act.

51. Sh. R.R Singh has of course corroborated the statement of Ms. Aradhana

which is clearly admissible under Section 157 of the Indian Evidence Act. Learned

counsel for the CBI, in support of his contention that Sh. R.R. Singh’s statement u/s 157

could be validly used for corroborating Ms. Aradhana’s earlier statement before him, has

relied on the following judgments of Rameshwar vs. State of Rajasthan, 1952 Cr. L.J.

547 SC State of Tamil Nadu vs. Suresh and another, 1998 Cr. L. J. 1416 SC. Under

section 157 of the Indian Evidence Act, a statement made by a witness relating to the

same fact, at or about the time when the fact took place, or before any authority legally

competent to investigate the fact, may be proved for corroboration. The evidence before

the trial court of Sh. R.R. Singh falls under both the situations as outlined in section 157.


It has already been discussed that he was competent to investigate into the matter. Even

otherwise, Ms. Aradhana deposed before Sh. R.R. Singh about the incident of 12.8.1990

on 21.8.1990 which in the circumstances of the case can very well be taken to be falling

within the meaning of the words “at or about the time when the fact took place”. The

learned Trial court has dealt in detail with this issue and there is no reason to negate that

particular finding. The language used in section 157 is broad enough to cover the

reasonable time period which might have lapsed between the happening of an event and

the statement made in relation there to. The incident occurred on 12.8.1990 and the same

was disclosed on 14.8.1990, reasons for which have already been discussed in detail

above. Thereafter, without any delay, the incident was reported to the State Government

which, as soon as was practicable after following the due procedure, ordered that an

Inquiry be conducted by the then DGP. The DGP initiated the inquiry on 21.8.1990 and

that is when Ms. Aradhana also deposed before him. There is thus no intervening period

of inaction or happening of an incident which breaks the chain of events so as to take the

deposition of Ms. Aradhana before Sh. R.R. Singh out of the purview of section 157. In

view of the above discussion, there is nothing on record that the matter was investigated

by any official not authorized to investigate the matter under law and hence, the judgment

referred above by the learned counsel does not help the case of the petitioner.

52. Another reason given by the learned counsel for the petitioner for assailing

the inquiry report of Sh. R.R. Singh is that he was biased against the petitioner over not

letting him harvest the crop standing in SP house Rohtak when the latter took over from

the former. This fact has been admitted by Sh. R.R. Singh which goes to show the


candidness of the witness. At the same time it also shows that his frank admission of the

incident was in no way operating as a prejudice in his mind against the petitioner or else

he could have easily denied it since there was no direct or even indirect evidence to prove

it.

53. This Court feels that all the arguments addressed by the learned counsel for

the petitioner against the Inquiry report of Sh. R.R. Singh are just diversionary tactics.

The Inquiry was initiated by Sh. R.R Singh on 21.8.1990 and the report was submitted on

3.9.1990. The petitioner had ample time to approach the courts so as to challenge the

legality of that Inquiry but no such action was taken by him. If the petitioner could file a

defamation case as early as on 18.8.1990 it was not difficult for him to approach the High

Court or a civil court for getting the Inquiry stayed or quashed on the ground of lack of

jurisdiction. Instead he simply chose not to appear before the Inquiry Officer. If his

request for appearing before the Inquiry officer along with his lawyer was declined, he

still could have appeared before Sh. R.R Singh. It is not understandable as to why did the

petitioner took such a strict stand of not joining the Inquiry proceedings. The conduct of

petitioner only leads to the inference that his mind was guilty and he wanted to ensure

that his guilt stayed hidden.

54. The next important argument raised by the counsel for the petitioner is that

the only eye witness i.e. Ms. Aradhana, is infact a planted witness and she never

accompanied Ms. Ruchika on that fateful day to the HLTA office/ courts. The learned

counsel for the petitioner derives this argument from the fact that the memorandum Ex P


– 1, which was submitted to the Home Secretary, Haryana, did not mention Ms.

Aradhana’s name and instead, it was mentioned that Ms. Ruchika was with a ‘saathi

khiladi’. The Counsel further contended that ‘saathi khiladi’ was deliberately mentioned

so as to introduce a witness at a later stage and that Ms. Aradhana actually never saw

anything since she was not present at the site and at the time of the alleged incident. The

learned counsel has also assailed the veracity of the eye-witness account of Ms. Aradhana

on the ground of her being the sole eye-witness. In this regard, the learned counsel has

placed reliance on the judgment of Hon’ble the Supreme Court in Kartik Malbar V. State

of Bihar,

1995 (3) All India Crl. Law Reporter, 622, wherein it has been observed as under:-

“4. The Privy Council decision was considered by this Court in

Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614 in which it

was observed as under : -

“On a consideration of the relevant authorities and the provisions

of the Evidence Act. The following propositions may be safely

stated as firmly established :

(1) As a general rule, a court can and may act on the testimony

of a single witness though uncorroborated. One credible witness

outways the testimony of a number of other witnesses of indifferent

character.

(2) Unless corroboration is insisted upon by statute, courts should

not insist on corroboration except in cases where the nature of the


testimony of the single witness itself requires as a rule of

prudence, that corroboration should be insisted upon for example,

in the case of a child witness, or of a witness whose evidence is

that of an accomplice or of an analogues character.

(3) Whether corroboration of the testimony of a single witness is

Or is not necessary, must depend upon facts and circumstances of

each case and no general rule can be laid down in a matter like

this a much depends upon the judicial discretion of the Judge

before whom the case comes.

In view of these considerations, we have no hesitation in holding

that the contention that in a murder case, the Court should insist upon

plurality of witnesses, is much too broadly stated. Section 134 of the

Indian Evidence Act, has categorically laid it down that no particular

number of witnesses shall, in any case, be required for the proof of any

fact’. The Legislature determined, as long ago as 1872 presumably after

due consideration of the pros and cons. That, it shall not be necessary for

proof or disproof of a fact, to call any particular number of witnesses.”

This Court further observed as under :

“It is not seldom that a crime has been committed in the

presence of only one witness, leaving aside those cases which are


not of uncommon occurrence where determination of guilty

depends entirely on circumstantial evidence. If the Legislature

were to insist upon plurality of witnesses, cases where the

testimony of a single witness only could be available in proof of

the crime, would go unpunished. It is here that the discretion of the

presiding judge comes into play. The matter thus must depend

upon the circumstances of each cases and the quality of the

evidence of the single witness whose testimony has to be either

accepted or rejected. If such a testimony is found by the court to be

entirely reliable, there is no legal impediment to the conviction of

the accused person on such proof. Even as the guilt of an accused

may be proved by the testimony of a single witness, the innocence

of the accused person may be established on the testimony of the

single witness, even though a considerable number of witnesses

may be forth coming to testify to the truth of the case for the

prosecution. Hence, in our opinion, it is a sound and well-

established rule of law that the Court is concerned with the quality

and not with the quantity of the evidence necessary for proving or

disproving a fact, Generally speaking, oral testimony in this

context may be classified into three categories. Namely :

(1) wholly reliable :

(2) wholly unreliable:

(3) neither wholly reliable nor wholly unreliable.


In the first category of proof, the Court should have no difficulty in

coming to its conclusion either way – it may convict or may acquit on the

testimony of a single witness, if it is found to be above approach of

suspicion of interestedness, incompetence of subordination. In the second

category, the court equally has no difficulty in coming to its conclusion. It

is in the third category of cases, that the court has to be circumspect and

has to look for corroboration in material particulars by reliable

testimony, direct or circumstantial. There is another danger in insisting

on plurality of witnesses. Irrespective of the quality of the oral evidence of

a single witness, if courts were to insist on plurality of witnesses in proof

of any fact, they will be indirectly encouraging subordination of witnesses.

Situations may arise and do arise where only a single person is available

to give evidence in support of a disputed fact. The court naturally has to

weigh carefully such a testimony and if it is satisfied that the evidence is

feasible and free from all taints which tend to render oral testimony open

to the suspicion, it becomes its duty to act upon such testimony. The law

reports contain many precedents where the court had to depend and act

upon the testimony of a single witness in support of the prosecution.”

7. On a conspectus of these decisions, it clearly comes out that there

has been no departure from the principles laid down in Vadivelyu

Thevar’s case (supra) and, therefore, conviction can be recorded on the

basis of the statement of single eye witness provided his credibility is not

shaken by any adverse circumstances appearing on the record against him


and the Court, at the same lime, is convinced that he is a truthful witness.

The Court will not then insist on corroboration by any other eye witness

particularly as the incident might have occurred at a time or place when

there was no possibility of any other eye witness being present Indeed, the

Courts insist on the quality, and, not on the quantity of evidence.

15. As to the contention raised on behalf of the appellant that the

witness was the widow of the deceased and was, therefore, highly

interested and her statement be discarded, we may observe that a close

relative who is a natural witness regarded as an interested witness. The

term “interested” postulates that the witness must have some direct

interest in having the accused somehow or the other convicted for some

animus or for some other reason. In Mst. Dalbir Kaur and Others v. State

of Punjab, AIR (1977) SC 472, it has been observed as under :

“Moreover a clause relative who is a very natural witness cannot be

regarded as an interested, witness. The term ‘interested postulates that the

person concerned must have some direct interest in seeing that the

accused person is somehow or the other convicted either because he had

some animus with the accused or for some other reason. Such is not the

case here.”

Learned counsel has further placed reliance upon a judgment of Rajasthan High Court in

Partap Singh & Ors. Vs. State of Rajasthan, 2007(3) CCC 129 (Raj.), which discusses

the evidentiary value of sole witness, wherein it has been observed as under:-


“14. In Harpal Singh Vs. Devendra Singh, (1197(2) Apex Court Journal

142 (S.C.) : AIR 1997 SC 2914, the Hon’ble Supreme Court propounded a

sound rule of appreciation of evidence. It was held that if the testimony of

a witness is to be used as the sole basis of conviction, it should be of a

such caliber as to be regarded as wholly reliable. The blemish attached

to a witness as partisan witnesses, stands in the way of this evidence

becoming wholly reliable and hence without adequate reassurance from

other circumstances or materials it may not be safe to make the

uncorroborated evidence of such a witness, the sole basis for reversing

the order of acquittal.

15. The worth of testimony related or interested witnesses is to be

weighed and assessed like the evidence of any other witness with the

difference that court while assessing the value of the statement of such a

witness would be on its tiptoe and guard and would examine and

scrutinise his statement more carefully. The law only requires that in

case the eye witnesses are relations, the court should scrutinise their

evidence with more case and caution. Mere relationship with the

deceased is no ground to discard the testimony of a witness.”

55. The question whether or not Ms. Aradhana is a planted witness can be best

decided by referring to the examination in chief and her cross examination. A perusal of

the trial court judgment would show that her examination in chief runs into 35 pages

while her cross examination runs into 64 pages. The learned Trial court further observed


that in the cross examination nothing at all came out which in any way could doubt the

authenticity of the eye witness or the veracity of her deposition. Had she been a planted

witness, a number of contradictions could have been pointed out in the cross examination

itself which would have rendered her story improbable. Moreover, the demeanor of the

witness, of which the trial court is the best judge, also did not cast any doubt in the mind

of the trial court judge or else he would have observed something regarding the same.

Moreover, this Court is unable to conclude that the memorandum Ex P – 1 was prepared

with such precision and judgment that it would include the possibility of introducing a

witness at a later stage. More so, the argument of planting a witness is directed towards

Sh. Anand Parkash. It is difficult to accept the contention that he had in mind, at the time

of preparation of memorandum Ex. P – 1, that he would introduce his own daughter as a

witness at a later stage. It is unbelievable that a man would put his daughter’s future and

possibly honour as well, at stake just to settle his scores and that too by planting her

against a man who was even at that time a very powerful official, going by his status.

Even more improbable is the assumption that Ms. Aradhana would have towed this

remarkable plan of Sh. Anand Parkash. It has to be kept in mind that till submission of

the memorandum to the state govt. and initiation of action on it, there is reason to believe

that doubt/ apprehension was very much operating on the minds of the parents of both the

girls as to whether the govt. will take any action against such a senior police officer.

Hence, it can be inferred that Aradhana’s name was deliberately not mentioned so as to

protect her from any possible reaction from the petitioner, should the memorandum failed

to have any desired effect.


56. Even before this court, the learned counsel for the petitioner has not been

able to highlight anything from the cross examination of Ms. Aradhana which would

show that she was never present at the site and at the time of molestation of Ms. Ruchika

by the petitioner. It is very important to highlight at this point that the whole defence

argument of Aradhana being a planted witness completely fails on a plain reading of the

criminal complaint for defamation which was filed by the petitioner against a number of

persons including Sh. Girhotra, Sh. Anand Parksah, Madhu Parkash, Ruchika and

Aradhana. In Para 10 of the complaint, it is submitted by the Complainant (petitioner)

that on 12.8.1990 the coach complained to him regarding the indiscipline of Ruchika and

Reemu @ Aradhana. In Para 11 of the complaint, which is a continuation of the narration

of incidents of 12.8.1990, the petitioner states that accused no. 4 and 5 came to his office

and sought an audience with the complainant i.e. the petitioner, who advised them to

tender an apology to the coach for violating playing rules. It is further stated in Para 11

that accused no. 5 i.e. Aradhana tendered a written apology but accused no. 4 refused and

left the office angrily. This itself proves the fact the Ms. Aradhana was present on

12.8.1990 with Ms. Ruchika in the HLTA office in the presence of the petitioner.

57. In so far as the authorities, which the learned counsel for the petitioner has

cited in support of her arguments in relation to the weak evidentiary value of sole eye-

witness/sole witness, are concerned, in view of the foregoing detailed discussion

regarding the consistent and truthfulness evidence of Ms. Aradhana, PW13 and

cumulative reading of the evidence on record, the present case falls under the category of

wholly reliable witness. Moreover, there are ample and adequate reassurances from other


circumstances which can be safely corroborated with the version of Aradhana, PW13, and

therefore, it cannot be said that it rests on the statement of sole witness. Though,

Aradhana, PW13 was a friend of the victim but in the facts and circumstances of the case,

no ground is made out to discard her testimony.

58. A related argument by the learned counsel for the petitioner is regarding

improvements and contradictions in the statement of Ms. Aradhana and also about her

hearsay deposition. The learned counsel for the petitioner submits that the eye-witness

has consistently changed her stand. Reliance has been placed by the learned counsel on

State of Punjab Vs. Sucha Singh and others, (2003) 3 Supreme Court Cases 153. For

substantiating her arguments, the learned counsel for the petitioner has relied on the

contents of Ex. P – 1 and Ex. P -3 as also her statement before the CBI and the trial

court. Ex P – 1 is the memorandum signed and submitted by a number of residents of

Sector 6, Panchkula including Ms. Aradhana, who, supposedly enraged by the act of the

petitioner, decided to support Ms. Ruchika and her family. Ex P- 3 is the complaint

submitted to the SHO of sector 6 Panchkula. Just as in an F.I.R., complete details or facts

of the alleged commission of an offence cannot be given nor is it expected by law, in

much the same manner, the deposition of Ms. Aradhana could not be expected to be

restricted solely to what was contained in Ex P – 1 and Ex. P – 2. – 2.x.Ex P – 1 tained

ctedtoi solely Petitoiner Counsle has again relied onosedly emraged by I f Ms. It is a well

established law that registration of an F.I.R. only enables the investigative machinery to

come into action so as to inquire into the possibility of commission of the alleged offence.

It cannot be and need not be exhaustive to the minutest detail. If that be the case, then


there would not be any requirement of holding a trial and possibly, even the police

investigation. If a witness deposes about certain facts, which do not form part of the F.I.R

or the complaint to the Police, as the case may be, but are in consonance with the

prosecution case, then the same cannot be termed to be inadmissible or improvements as

being not a part of the F.I.R. In this regard, reliance can be placed on the authority cited

by the learned counsel for the CBI i.e. Dharmender Singh Vs. State of U.P. 1998 Crl. L.

J. 2064 Allahabad, wherein it has been held that mere omission of certain facts in the

FIR or in the statements of witnesses under Section 161 of Cr.P.C. is not of any

consequence. In the present case, memorandum Ex. P- 1 was probably a hurried reaction

to the stunning disclosure by Ms. Ruchika of her molestation by the petitioner. Similarly,

the complaint given to the SHO of sector 6 Police station on 18.8.1990 was not dictated

by Ms. Aradhana. As such her deposition before the trial court cannot be said to be an

improvement in any manner. The consistent stand of the eye-witness is that the petitioner

was the predator and the victim (Ms. Ruchika) was his prey. The question of shifting

stand, for which the learned counsel for the petitioner has relied on State of Punjab vs.

Sucha Singh and others, is neither here nor there.

59. Further, in this regard two alleged improvements need discussion since they

are material to the case. Firstly, the allegation of improvement made by the eye witness

regarding the alleged act of molestation. A perusal of the statement given by the eye

witness before the CBI and the trial court clearly shows that she has explained in very

consistent terms the act of petitioner holding one hand of Ms. Ruchika, encircling her

waist with the other hand and thereby pushing her towards his chest. The only variation is


probably with regard to the force being used by the petitioner in this act which cannot be

stretched to infer an improvement. There is thus hardly any improvement as alleged by

the learned counsel for the petitioner. The second alleged improvement is with regard to

the presence of Sh. Paltoo. The learned counsel for the petitioner submits that Paltoo’s

name was introduced for the first time by Ms. Aradhana only once it was clear to her that

Paltoo was not going to be examined by the prosecution. In this regard, it needs to be

highlighted that it has been specifically deposed by Ms. Aradhana that on 12.8.1990,

Paltoo came to the HLTA court and told Ms. Ruchika that the petitioner is calling him.

Thereafter, both the girls went to meet the petitioner. It is thus clear that Paltoo was

present in and around the HLTA courts/ office on 12.8.1990 at the relevant time.

Moreover, since he came to call Ms. Ruchika, the corollary is that he was at the HLTA

office with the petitioner from where he was sent to call Ms. Ruchika and having called

her, he must have gone back to the HLTA office since there is no evidence that any one

else was playing at the HLTA courts for Sh. Paltoo to stay back, being a ball picker. As

such the probability of Ms. Aradhana having spotted Sh. Paltoo at the rear end of the

house of the petitioner when she went out to call the coach, is very strong.

60. The learned counsel for the petitioner has raised an important argument

relating to the hearsay part of the evidence of Ms Aradhana. She has specifically raised an

objection to the evidence given by Ms. Aradhana of her conversation with Ms. Ruchika

after Ms. Ruchika ran out of the office of the petitioner i.e. after the act of molestation. In

this regard, the learned counsel for the petitioner has relied on Pratap Singh Vs.State of

Madhya Pradeswh, 1971 Crl. Law Journal 172, wherein it has been observed as under:-


“11. Section 6 of the Evidence Act and some of the succeeding Sections

embody the rule of admission of evidence relating to what is commonly

known as res gestae. They are in the nature of exceptions to ‘hearsay’

rule. Section 6 permits proof of collateral statements which are so

connected with the facts in issue as to form part of the same transaction.

Whether the statement made by a witness was a part of the same

transaction or not is to be considered in the light of the circumstances of

each case. The principle is that it should be so intimately connected with

the fact in issue as to be a spontaneous utterance inspired by the

excitement of the occasion or a spontaneous reaction thereof, there being

no opportunity for deliberately fabricating the statement. In order words

the statement which is a part of res gestae does not narrate a past event,

but it is the event itself speaking through a person thus excluding the

possibility of any design behind it.”

However, controverting the afore-stated argument of learned counsel for the petitioner,

the learned counsel for the CBI argued that evidence of Ms. Aradhana, regarding her

conversation with Ms. Ruchika immediately after the incident of molestation, forms part

of res gestae under Section 6 of the Evidence Act and the same can be validly proved by

the witness. In support of his argument, the learned counsel for the CBI has placed

reliance on the judgments of Hon’ble the Supreme Court rendered in Gentela

Vijayavardhan Rao and Another Vs. State of Andhra Pradesh, 1996 Crl. L. J. 4151

SC; Rattan Singh Vs. State of Himachal Pradesh, 1997 Crl. L. J. 833 SC and Sukhar


Vs. State of Uttar Pradesh 2000 Crl. L. J. 29 SC.

61. Admissibility of hearsay evidence or derivative evidence, as it is technically

called, is dealt in the Evidence Act under sections 32 and 33. The general rule regarding

hearsay evidence is that it is not trustworthy. However, there are 2 exceptions to this

general rule, namely ‘necessity’ and ‘special circumstances which render the evidence

more trustworthy than hearsay evidence in general’. Before discussing the admissibility

of hearsay evidence, it is important to analyse the evidence of Ms. Aradhana and judge as

to whether it all falls in the realm of hearsay evidence. Ms. Aradhana’s deposition is

unique due to the fact that her narration of the eye witness account and of what Ms.

Ruchika told her after she left the HLTA office, forms part of one integral incident. It is

not as if the eye witness account happened on an earlier day or a long time before. The

chain of events is so inextricably linked that it is difficult to conclusively hold that Ms.

Aradhana’s testimony consisted of hearsay evidence. Hardly any time had elapsed

between the act of molestation and the conversation between Ms. Ruchika and the eye

witness so as to render the said conversation as hearsay evidence. It is thus safe to infer

that the evidence of Ms. Aradhana, with regard to her conversation with Ms. Ruchika,

after both had left the HLTA office on 12.8.1990, falls under the second exception to the

admissibility of hearsay evidence i.e. special circumstances. The observations made in

the case law referred by the learned counsel for the petitioner rather helps the prosecution

because the statement of Aradhana, PW13, was a part of the same transaction as noticed

in para 11 of the above-referred judgment.


62. Moreover, even if for a moment it is presumed that the aforesaid

conversation can strictly be termed as hearsay evidence, the eye witness account by Ms.

Aradhana itself forms a complete act of molestation.

In other words, even if the supposedly hearsay part of her testimony is detached from the

eye witness account, that is still in itself sufficient to convict the petitioner for molesting

Ms. Ruchika. So even if hearsay evidence has crept in the testimony of the Ms. Aradhana,

it does not in any way dilute her eye witness account. Even otherwise, it is not in dispute

that Ms. Ruchika appeared before Sh. R.R Singh. Although the issue is only academic

since Ruchika’s statement before Sh. R.R Singh was not allowed to be proved in the trial

court, it still merits discussion. It has also been held that Sh. R.R. Singh was competent to

hold the inquiry and naturally take evidence as well. Therefore, evidence of what she

stated before Sh. R.R. Singh could well have been taken on record under section 33 of the

Evidence Act. The petitioner was called to appear before Sh. R.R Singh for which he put

conditions which were not acceded to by the Inquiry officer. It is thus safe to hold that the

petitioner had the right to appear before the Inquiry officer and had he utilized his said

right of appearing before the Inquiry Officer, he would have also been granted the

opportunity of cross examining Ms. Ruchika. The language of Section 33 incorporates

two aspects – first relates to the right of cross examination and second relates to the

opportunity of cross examination. It does not extend to actual cross-examination. Thus

the ‘opportunity to cross examine’ is inherently linked to joining the proceedings but

when the petitioner deliberately did not join the proceedings before Sh. R.R. Singh, he

cannot be allowed to say that since he could not cross examine Ms. Ruchika, her evidence

before the Inquiry officer is inadmissible u/s 33 of the Indian Evidence Act. Moreover, in


the Inquiry proceedings before Sh. R.R Singh as also before the trial court, the issue was

the same i.e. the allegation of molestation of Ms. Ruchika by the petitioner.

63. The learned counsel for the petitioner has also challenged the truthfulness of

the eye witness on the ground that she was an interested witness. This argument is drawn

from the fact that the petitioner in his defamation case u/s 500 IPC had arrayed her as an

accused. Hence, she naturally became inimical towards the petitioner and thus, deposed

against him. The fact that Ms. Aradhana was arrayed as an accused in the defamation case

filed by the petitioner itself is sufficient to negative the contention of the learned counsel

for the petitioner that she was an interested witness. It is important to highlight that the

defamation case was filed on 18.8.1990, in regard to the incident of slogan shouting

against the petitioner on 16.8.1990 i.e. in the evening, at the HLTA courts. All those

persons who had allegedly shouted slogans against the petitioner were involved in the

said case. Ms. Aradhana was allegedly one of them. If that be the fact, then it means that

Ms. Aradhana had already supported the victim Ms. Ruchika in her fight against the

petitioner and her participation in the slogan shouting on 16.8.1990 against the petitioner

was the proximate cause of her involvement in the defamation case. The contention of the

learned counsel for the petitioner that Ms. Aradhana became interested after her name

figured in the defamation case is thus without substance since admittedly, she was

involved in the whole incident earlier to that.

64. Another argument raised by the learned counsel for the petitioner challenging

the truthfulness of the eye-witnesses is to the effect that Ms. Aradhana was in fact a


chance witness and hence, her evidence is unreliable. In this regard, the learned counsel

has placed reliance on Suresh Pal and Other Vs. The State of Punjab (P&H), CRA

No.550-DB of 2002, wherein it has been observed as under:-

“The ocular testimony consists of Joginder Singh (PW-3) and Sampuran

Singh (PW-8), who were chance witnesses to the occurrence. In assessing

and evaluating the evidence of eye witnesses, the two important

considerations are: (i) whether in the circumstances of the case, it was

possible for the eye witnesses to be present at the scene and (ii) whether

there are anything inherently improbable or unreliable in their evidence.

Each case must be judged on its own facts. The statements of chance

witnesses should be subjected to very close and careful scrutiny. Though

the chance witness is not necessary a false witness, but it is proverbially

rash to rely upon such evidence. If by coincidence or per chance, a person

happens to be at the place of occurrence at the time, it is taking place, he

is called a chance witness and such an evidence requires cautious and

close scrutiny.”

Having due regard to the ratio as laid down in the aforementioned case, this Court is of

the view that Aradhana, PW13, was not a chance witness. She accompanied the victim to

the office of the petitioner with the knowledge that the petitioner had called the victim to

meet him. Therefore, the case cited is on altogether different set of facts.

65. The next argument which merits discussion is as to why the prosecution did


not examine two important site witnesses i.e. Paltoo (ball picker) and T. Thomas (coach).

The contention of the learned counsel for the petitioner is that non-examination of these

two witnesses should result in a negative inference being drawn against the prosecution

case. In support of her arguments, the learned counsel has relied on a judgment of

Hon’ble the Supreme Court in S. Gopal Reddy Vs. State of A.P., 1996 Crl.L.J. 3237.

66. Regarding non examination of material witnesses i.e. Paltoo, T. Thomas and

Kuldip Singh, the learned Counsel for the CBI has argued that they were not in any way

connected with the actual commission of the offence and even in their absence the

commission of the offence of molestation was well proved. In support of his arguments,

the learned counsel has relied on the judgment of Srichand K. Khetwani vs. State of

Maharasthra 1967 Crl. L. J. 414 SC, wherein it has been held that an adverse inference

against the prosecution can be drawn only if it withholds certain evidence and not merely

on account of its failure to obtain certain evidence. Learned counsel for the complainant

has also controverted the argument of negative inference being drawn on the ground of

non-examination witnesses and in this regard, has placed reliance on the judgment of

Hon’ble the Supreme Court in Masalti and Others vs. State of Uttar Pradesh AIR 1965

SC 202. The relevant observations of Hon’ble the Supreme Court in the afore-

mentioned case is as under:-

“12. …..It is not unknown that where serious offences like the

present are committed and a large number of accused persons

are tried, attempts are made either to terrorise or win over


prosecution witnesses, and if the prosecutor honestly and

bonafide believes that some of his witnesses have been won over,

it would be unreasonable to insist that he must tender such

witnesses before the Court. It is undoubtedly the duty of the

prosecution to lay before the Court all material evidence

available to it which is necessary for unfolding its case; but it

would be unsound to lay down is a general rule that every

witness must be examined even though his evidence may not be

very material or even if it is known that he has been won over or

terrorised. In such a case, it is always open to the defence to

examine such witnesses is their witnesses and the Court can also

call such witnesses in the box in the interest of justice under

s.540, Cr. P.C. As we have already seen, the defence did not

examine these witnesses and the Court, after due deliberation,

refused to exercise its power under s.540, Cr. P.C. That is one

aspect of the matter which we have to take into account.”

Learned counsel for the complainant has also placed reliance on State of M.P. v.

Dharkoli 2005 CRL. L. J. 108, wherein it has been observed as under:-

“14. It is not necessary for prosecution to examine somebody as a

witness even though the witness was not likely to support the


prosecution version. Non-examination of some persons per se

does not corrode vitality of prosecution version, particularly

when the witnesses examined have withstood incisive cross-

examination and pointed to the respondents as the perpetrators

of the crime. “

67. Analyzing this argument, it would be relevant to highlight at the outset that

the argument of not producing Paltoo and T. Thomas as prosecution witnesses is infact a

double edged sword. If both of them were so material for proving the innocence of the

petitioner, why were they not produced before the trial court as Defence witnesses? The

prosecution has been able to bring home the guilt of the petitioner with the help of the

witnesses that were produced before the trial court. What negative inference can possibly

be drawn by the Court, as has been prayed by the learned counsel for the petitioner, when

the prosecution has established the case without any doubts and the prosecution witnesses

have inspired confidence in the trial court? In the facts and circumstances of this case, the

prosecution has established its case in totality. The Courts below have taken a view after

relying upon all relevant evidence and after affording full opportunity to the petitioner.

Therefore, it is safe to maintain the conviction of the petitioner which is based on

appreciation of evidence and its substantial independent corroboration led by the

prosecution.

68. Even if the above named witnesses had been traced, they probably would


have never deposed against their old master. This can be safely inferred from the fact that

the petitioner has produced in his defence, his old gunman, two labourers working in his

house at the relevant time, his former subordinate i.e. Assistant Reader, as DW’s in

addition to few other witnesses. It was infact, more material for the defence to have

produced them because both of them could have very well contradicted the whole

prosecution theory and infact would have impeached the credit of Ms. Aradhana as an eye

witness. In any case, both these persons could have deposed about the presence or

absence of Ms. Aradhana on 12.8.1990. Since, the whole defence case has been that Ms.

Aradhana is a planted witness since she was not present with Ms. Ruchika on 12.8.1990,

Sh. Paltoo and Sh. Thomas should have been cited as defence witness and not as

prosecution witness.

69. Infact, in the list of witnesses submitted by the petitioner to Sh. R.R. Singh

on 26.8.1990, the word Coach appears at no. 10 and the name of Paltoo appears at the

end. This shows the value of Sh. Thomas’s and Sh. Paltoo’s evidence in the defence of

the petitioner. If in 1990, Paltoo and the coach were sought to be produced as a defence

witness by the petitioner, then how can the learned counsel for the petitioner now contend

that Paltoo and the coach should have been cited as a prosecution witnesses especially

when their strong affiliation with the petitioner stands proved vide the aforementioned

document. However, the defence counsel thought it more suitable to adopt an aggressive

stand and raise this argument against the prosecution than ever trying to produce these

two men in its defence.


70. The argument raised by the learned counsel for the petitioner regarding the

bonafide of the criminal writ petition filed by Mrs. Madhu Prakash in the year 1997 in

this Court, is also very weak. Even if for a moment it is presumed that the said criminal

writ petition was actually a counterblast to the defamation suit filed by the petitioner, the

submissions made in the said criminal writ petition by Mrs. Madhu Parkash were

accepted by this Court and registration of an FIR against the present petitioner was

ordered. More importantly, the said order of this Court was upheld by the Hon’ble

Supreme Court which shows that Hon’ble the Supreme Court also believed in the prima

facie truthfulness of the allegations appearing against the petitioner. The question of

bonafide intentions of Mrs. Madhu Prakash would have definitely been available in 1997

and there is every reason to believe that the counsel for the petitioner at that time also

would have definitely raised the issue of it being a counterblast to the defamatory suit.

There is, thus, no scope for this Court to entertain questions regarding the bona fide of the

criminal writ petition filed by Mrs. Madhu Parkash.

71. The learned counsel for the petitioner has also argued that certain senior civil

functionaries of the state of Haryana, especially Sh. Ojha who was PSCM at the relevant

time, were inimical towards the petitioner and they lent all help to the complainant in

ensuring that an enquiry is initiated against him i.e. the petitioner. Specifically, it has

been argued that even at the time of preparation of Ex P- 1, a senior Police official was

present at the house of Sh. Anand Parkash. The learned counsel for the petitioner has

infact tried to portray a situation where practically everyone in the state bureaucracy was

against the petitioner, be it IAS or IPS officers. And the reason put forth for this assumed


hostility is the control of HLTA. Learned counsel for the CBI has argued that the whole

contention of the hostility between the petitioner and Mr. Ojha stems from the fight for

control of HLTA. The constitution of HLTA provided that only a tennis player can

become an executive member, office bearer or President of the association. However, no

evidence at all has been led to show that Mr. Ojha was a tennis player and hence could

gain entry into HLTA. Infact, a rival tennis association HTA had been set up and Mr. J.K

Duggal was made the President of that association. This fact also disproves the argument

that Mr. Ojha wanted to take control of the HLTA. Moreover, if Sh. Ojha and Sh. Duggal

were really that inimical towards the petitioner as has been sought to be portrayed, the

Inquiry report of Sh. R.R. Singh was the best tool in their hands to get even with the

petitioner but the facts suggest otherwise since the Inquiry report submitted by Sh. RR

Singh was put in cold storage. The learned Counsel for the CBI has further argued that

the whole controversy about HLTA and HTA and the rivalry of Sh. Ojha and Sh. Duggal

with the petitioner has been brought into the picture simply to divert the attention of the

Court from the main issue i.e. molestation of Ms. Ruchika.

72. Having regard to the events that ultimately followed, it is difficult to

conclude that the state bureaucracy worked in tandem with the complainant against the

petitioner. As has already been observed, the end result of that exercise was nothing. The

report of Sh. R.R. Singh was put in cold storage and nothing happened till the time this

Court ordered registration of a criminal case against the petitioner. Infact, in the lower

appellate court judgment, it has even been observed that soon after the submission of the

report by Sh. R.R. Singh, Ms. Ruchika was expelled from her school, apparently under


pressure from the petitioner. Although these facts are not relevant to prove the guilt of the

petitioner in the present case but it does show that the petitioner was not only powerful

enough to forestall any action against him but also ruthless to suppress any opposition to

him which was not possible if the petitioner had such poor relations with his colleagues

and fellow officers. It is understandable that professional jealousies might have developed

over a period of time between the petitioner and certain officers but the fact remains that

ordering of inquiry in question was not totally without basis. There was a written

memorandum against the petitioner with specific allegations, duly submitted by a number

of residents of sector 6 Panchkula, to support it. It was not as if out of the blue Sh. Ojha

and Sh. Duggal secured permission from the then Chief Minister to hold inquiry against

the petitioner. In order to substantiate the argument about bureaucratic hostility against

the petitioner, the learned counsel for the petitioner has named the then senior police

officers of government of Haryana who were allegedly involved in the drafting of

Memorandum Ex. P – 1. However, the learned counsel for the petitioner while assailing

the veracity of Ex. P – 1 has very strongly argued that the use of words in the said

document do not show that any act of molestation was committed by the petitioner. It is

thus not possible that if such senior government functionaries were involved in the

drafting of the Memorandum, they would use such language which would not be

descriptive enough to disclose the commissioning of the alleged crime for which the

petitioner was ultimately convicted.

73. Another argument raised by the learned counsel for the petitioner is that the

father of Ms. Ruchika demanded money at some point to withdraw the case against the


petitioner which proves that the main motivation for Sh. S.C. Girhotra for lodging a

complaint against the petitioner was his greed for money and the whole complaint against

the petitioner was just an extortion exercise. The learned counsel for the CBI has strongly

argued that the there is no evidence at all to suggest that money was the motivation for

Sh. S.C. Girhotra to join hands with Sh. Anand Parkash to falsely implicate the petitioner.

The learned counsel has pointed that as per the learned counsel for the petitioner’s

argument, Sh. S.C. Girhotra told DW 9 Karan Singh that he has been offered money by

Anand Parkash and has also promised that if he signs the complaint against the petitioner,

his daughter will be reinstated. This whole argument of the petitioner falls flat in the face

of the deposition of the defence witness Sh. Ram Piyara DW2 who deposed that on

14.8.1990 at around 7 – 8 pm, 4 – 5 people came to the residence of the petitioner and Sh.

Girhotra and Sh. Anand Parkash were amongst them which shows that Sh. Girhotra was

very much involved in the whole episode right from the day when the incident was

disclosed for the first time by the girls to their parents. Besides, it is important to note that

Ms. Ruchika had merely been suspended and not terminated from HLTA membership. As

such it is impossible to conclude that the reinstatement of Ruchika could be such a big

temptation for Sh. Girhotra that he would go to the extent of framing the petitioner.

74. In support of this extortion allegation, a recorded conversation was played in

the trial court by the defence. However, the trial court rejected it and no fault can be

found with the reasoning given by the trial court. The tape was admittedly played for 5

seconds only and it is impossible to judge the veracity of the recorded conversation in 5

seconds. It is also relevant to discuss the evidence of two defence witnesses, namely DW


9 and DW 17 who deposed before the trial court regarding the demand of money by Sh.

S.C. Girhotra for withdrawing the case against the petitioner.

75. A careful perusal of the deposition of DW 9 Karan Singh, before the trial

court brings out the incoherence and improbability of the evidence of this witness. He

starts his examination in chief by stating that in August 1990 he was working as a

contractor of Sugar Mills, Meham, district Rohtak and was residing within the factory

premises. In the next few lines, he says that he started working in Panchkula in 1978 and

that is how he met the petitioner whose farm house was close to his factory. Thereafter,

he explains his closeness with the petitioner and then deposes in quick succession about

the assumed hostility of Sh. Anand Parkash and of Sh. B.S Ojha with the petitioner even

though there seems to be no reason for him to depose about these facts. After deposing as

above, he then states that he had become very friendly with Sh. Girhotra also and used to

meet him daily whenever he came from Meham. Thereafter, he straightaway mentions

about the incident of 8.5.2001 when allegedly Sh. Girhotra called him to his Shimla

residence and demanded a plot and Rs. 20 lakh in cash from the petitioner. After making

a mention of this episode, he deposes that this entire conversation of money demand was

tape recorded and the same was handed over to the petitioner. The most important part of

his testimony, on which Counsel for the petitioner has also heavily relied on, appears

towards the end of his examination in chief. Towards the end of his examination in chief,

he deposes that on 18.8.1990, Sh. S.C Girhotra told him that his signatures have been

obtained by Sh. Anand Parkash by promising money and also by promising that his

daughter would be re-instated. If that was actually the case, then given this witness’s


closeness with the petitioner which he has very elaborately described in his examination

in chief, he must have told the petitioner immediately about this conversation with Sh.

S.C. Girhotra. If that be the case, his name should have appeared in the list of witnesses

cited by the petitioner before Sh. R.R. Singh on 26.8.1990 but his name does not appear

in this list. It is impossible that had this conversation between DW 9 and Sh. S.C.

Girhotra taken place, the same would not have been disclosed to the petitioner which in

turn means, that this witness should also have been produced before Sh. R.R. Singh.

More importantly, it is not possible that even though DW 9 was close to the petitioner, he

was also very friendly with Sh. S.C. Girhotra, given the level of hostility that had already

been generated between the petitioner and Sh. Girhotra. The most absurd part of his

examination in chief is where he states that the conversation between him and Sh.

Girhotra on 8.5.2001 was tape recorded. If his testimony is to be believed, it would mean

that Sh. Girhotra himself called DW 9 to his residence, set up the tape recorder, made the

demand of money and a plot and then handed over the tape recorded conversation to the

said witness for him to further give it to the petitioner. The version of DW 9 is totally

unbelievable. It is patent that DW 9 has just been propped up as a defence witness and

evidence has been sought to be created against Sh. S.C. Girhotra because the defence has

not been able to impute any motivation to Sh. Girhotra for framing the petitioner.

76. Evidence of DW 17 Sh. Madhulesh Kumar Shishodia i.e. the other defence

witness who corroborated the alleged demand of money by Sh. S.C. Girhotra, is equally

uninspiring. In the opening lines of his examination in chief, it becomes clear that he is

motivated by the fact that he belongs to the same community as the petitioner i.e. Rajput


community. His version of demand of money by Sh. Girhotra is just as improbable as that

of DW 9. As per his deposition, he barely knew Sh. Girhotra and had no personal

acquaintance with the petitioner. Then how can it be believed that one fine day i.e.

sometime in September 2001, Sh. Girhotra called him and again demanded money. This

time he is supposed to have climbed down to Rs. 10 lakh only whereas just a couple of

months earlier i.e. in may 2001 as per DW 9, he was asking for double the money and a

plot. Interestingly, to relay this conversation and demand of money, DW 17 took a third

person (some dhaba owner) to meet the petitioner who supposedly refused to give any

money to Sh. Girhotra. The whole version of DW 17 seems improbable and can be

believed only if a man’s reasoning faculties are shut down.

77. The learned counsel for the petitioner has indulged in liberal character

assassination of Sh. Anand Parkash and Sh. S.C. Girhotra. The idea behind this approach

was probably to prejudice the court to an extent that their efforts in establishing the guilt

of the petitioner should appear tainted and unworthy of any credit. However, this Court

cannot be swayed in favour of the petitioner by this strategy. On one hand the learned

counsel for the petitioner has gone to great lengths to somehow establish that the

Complainant as also the father of Ms. Ruchika were very well connected and highly

placed people and have thus managed to frame the petitioner in the present case. In the

same breath, their character is sought to be shown in poor light by proving that both Sh.

Anand Parkash and Sh. S.C. Girhotra have been found to be corrupt in public life.

78. Specific arguments have been addressed towards the fact that Sh. S.C.


Girhotra was dismissed from service as a Manager of UCO bank after he was held guilty

by the CBI Court on corruption charges. In regard to Sh. Anand Parkash, the learned

counsel for the petitioner has tried to trace his entire career and give instances of

corruption, bribery and irregularities with which he has been charged. Specifically, the

learned counsel for the petitioner has even tried to prove that Sh. Anand Parkash was

earlier known as Mr. A.P. Singla but after he was dismissed from service from the

Department of PWD where he was an SDO, Haryana, he changed his name to Anand

Parkash and managed to join the Haryana Agriculture Marketing Board on the basis of his

new identity. Details of pending recovery suits, department inquiries, ACR records

relating to Sh. Anand Parkash have been brought on record to prove that he has a very

poor character. In particular the learned counsel for the petitioner has referred to an ACR

of Sh. Anand Parkash recorded for the year by the then Chief Administrator of

Agriculture Marketing Board where it has been mentioned as follows:

“1987 – 88 - his reputation for integrity remained poor. He brought all

types of pressures to get personal favours from his seniors. His power to

re examine cases having financial implications is very poor.

1988 – 89 – he is intriguer no. 1 in the Board and epitome of all the ills in

engineering side. His reputation for integrity remained poor.”

79. Strangely enough, the learned counsel for the petitioner first contended that

immediately after moving the Memorandum Ex. P – 1, Sh. Anand Parkash was promoted

as Chief Engineer of the Haryana Agriculture Marketing Board from a previous date even

though enquiries were pending against him and thus he benefited professionally by setting


up the petitioner in a false case. However, without wasting any time, the learned counsel

for the petitioner also contends that Sh. Anand Parkash has been compulsorily retired

from service. It is not clear as to what does the counsel for the petitioner wishes to

convey. If the fact of Sh. Anand Parkash having taken benefit professionally by framing

the petitioner is true, then he would have also ensured that all the inquiries pending

against him are dropped or closed but the fact is that he was compulsorily retired after his

aforesaid promotion as Chief Engineer which negates the possibility of his being well

connected and his taking professional benefit by framing the petitioner. It has also been

argued that an uncle of Sh. S.C. Girhotra was a D.S.P. in C.B.I and hence he was quite

influential. The argument does not appear to be sound in as much as if Sh. S.C. Girhotra

could not save his own service by having a supposedly influential uncle in the C.B.I., to

what effect are his so called high connections then and what role have they played in

framing the petitioner? This question contains its answer as well. It is clear from the facts

that Sh. S.C Girhotra was the head of an average middle class family. Though better

placed, Sh. Anand Parkash was definitely not in such a position that he would dare to

frame a serving IPS officer of IG rank in a false case. More importantly, even if the

submissions against the character of Sh. Parkash and Sh. Girhotra are taken to be correct,

it can have no bearing on the merits of this case. It is understandable if either of them had

leveled allegations of corruption or bribery against the petitioner because then their own

antecedents would have been put under the scanner but it is not so. The allegations are a

lot different and far serious. The learned counsel for the petitioner has not been able to

derive any benefit from character assassination either before the lower courts or before

this Court


80. Another argument raised by the learned counsel for the petitioner is that in

the present case, ingredients of Section 354 IPC are not made out. In this regard, the

learned counsel for the petitioner has also referred to the description of the molestation

incident by Sh. S.C. Girhotra as “abhadra vyavhar” to contend that the alleged act does

not amount to molestation u/s 354 IPC. The learned counsel for the CBI has argued that

simply because Sh. S.C. Girhotra described the molestation of her daughter by the

petitioner by terming it as ‘abhadra vyavhar’ does not mean that the offence of

molestation is not made out, as has been argued by the counsel for the petitioner. In this

regard, ld. counsel for the CBI has submitted that Sh. S.C. Girhotra was not an eye

witness and was not expected to depose the minute details of the molestation incident.

Moreover, as a father, he would obviously try to describe such an incident relating to his

daughter in a manner which would be decent to depose.

81. This argument merits discussion and for the same, language of section 354

IPC is necessary to be reproduced here:

“ Section 354. Assault or criminal force to a woman with intent to outrage

her modesty – whoever assaults or uses criminal force to any woman,

intending to outrage or knowing it to be likely that he will thereby outrage

her modesty, shall be punished with imprisonment of either description for

a term which may extend to two years or with fine or with both. ”

82. Criminal force is defined in section 350 of the IPC which also needs to be


reproduced here:

“Section 350. Criminal force – whoever intentionally uses force to any

person, without that person’s consent, in order to the committing of any

offence, or intending by the use of such force to cause, or knowing it to be

likely that by the use of such force he will cause injury, fear or annoyance

to the person to whom the force is used, is said to use criminal force to

that other. ”

83. For constituting an act of molestation the following ingredients are required:

1. Assault OR

2. Use of criminal force on a woman

3. with the intention OR

4. with the knowledge that such assault of criminal force is likely to

outrage her modesty.

84. Controverting the submissions of the learned counsel for the petitioner to the

effect that the incident dated 12.8.1990 does not disclose an offence under Section 354 of

IPC, the learned counsel for the CBI has placed reliance on the judgments of State of

Punjab vs. Major Singh 1967 Crl. L. J. 1 SC and Aman Kumar and another Vs. State

of Haryana 2004 Crl. L. J. 1399 SC. On the strength of the aforementioned judgments,

the learned counsel for the CBI contends that for making out a case under Section 354 of

IPC reaction of the victim is immaterial. The learned counsel further contends that no

girl of such a tender age, as was Ms. Ruchika, would tarnish or damage her own


reputation by making false allegations of such serious nature. The testimony of lone eye

witness in this case is very material for concluding whether the ingredients of section 354

IPC are present in the act of petitioner physically holding the minor victim i.e. Ms.

Ruchika. After searching for the coach, when Ms. Aradhana re-entered the HLTA office,

she saw the petitioner holding one hand of Ms. Ruchika with his one hand, and with the

other hand he had encircled the waist of Ms. Ruchika and was pushing her towards his

chest. Ms. Ruchika was trying to push the petitioner away with her free hand. It is thus

clear that Ms. Ruchika was annoyed with the petitioner using force on her which

constitutes the first ingredient i.e. criminal force. The other act of the petitioner of

encircling the waist and holding one hand of Ms. Ruchika and pushing her towards his

chest is enough to conclude that her modesty had been outraged at that moment itself.

The act of Ms. Ruchika getting her freed from the grip of the petitioner and running out

of HLTA office is sufficient proof that she was terrified, being held against her wishes

and with criminal force. When a female is being held physically, by force and without her

consent, the offence of molestation is complete. The absence of consent itself

presupposes fear and/ or annoyance on the part of the person so held. There is thus no

merit in the argument raised by the learned counsel for the petitioner that ingredients of

Section 354 IPC are not met in the present case.

85. The learned counsel for the petitioner has argued that in addition to the

contradictions/improvements pointed out in the evidence of the eye-witness, the

testimony of other material prosecution witnesses namely that of Sh. Anand Parkash,

Mrs. Madhu Parkash and Sh. S.C. Girhotra also suffers from serious infirmities. In regard


to the eye witness’s evidence, this court has already held above that there are no material

contradictions or improvements. However, sight cannot be lost of the fact that minor

contradictions are bound to appear in the testimony of witnesses which is, as the phrase

goes, a result of the fact that human memory is not infallible. The learned counsel for the

CBI has relied on the observation of Hon’ble the Supreme Court in Bharwada Bhoginbhai

Hiribhai vs. State of Gujarat (1983) 3 SCC 217, to contend that minor discrepancies,

appearing in the evidence of the witnesses who were examined after sizeable lapse of

time, have no bearing on the merits of the case. The afore-referred observation of Hon’ble

the Supreme Court is reproduced as under:-

“5. ……..The finding of guilt recorded by the Sessions Court

as affirmed by the High Court has been challenged mainly on

the basis of minor discrepancies in the evidence. We do not

consider it appropriate or permissible to enter upon a

reappraisal or reappreciation of the evidence in the context of

the minor discrepancies painstakingly highlighted by learned

counsel for the appellant. Over much importance cannot be

attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess

a photographic memory and to recall the details of an

incident. It is not as if a video tape is replayed on the

mental screen.


(2) ordinarily it so happens that a witness is overtaken

by events. The witness could not have anticipated the

occurrence which so often has an element of surprise.

The mental faculties therefore cannot be expected to be

attuned to absorb the details.

(3) The powers of observation differ from person to

person. What one may notice, another may not. An

object or movement might emboss its image on one

person's mind whereas it might go unnoticed on the part

of another.

(4) By and large people cannot accurately recall a

conversation and reproduce the very words used by

them or heard by them. They can only recall the main

purport of the conversation. It is unrealistic to expect a

witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time

duration of an occurrence, usually, people make their

estimates by guess work on the spur of the moment at the

time of interrogation. And one cannot expect people to

make very precise or reliable estimates in such matters.


Again, it depends on the time-sense of individuals which

varies from person to person.

(6) Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in

rapid succession or in a short time span. A witness is

liable to get confused, or mixed up when interrogated

later on.

(7) A witness, though wholly truthful, is liable to be

overawed by the court atmosphere and the piercing

cross-examination made by counsel and out of

nervousness mix up facts, get confused regarding

sequence of events, or fill up details from imagination on

the spur of the moment. The sub-conscious mind of the

witness sometimes so operates on account of the fear of

looking foolish or being disbelieved though the witness

is giving a truthful and honest account of the occurrence

witnessed by him-Perhaps it is a sort of a psychological

defence mechanism activated on the spur of the

moment.”


86. The learned counsel for petitioner has also raised an objection to the

observation of the Learned Court of First Appeal that Ashu, brother of deceased Ruchika

was falsely implicated by the petitioner in a number of criminal cases within a span of

one year i.e. from 6.9.1992 to 30.8.1993. The aforesaid matter was highlighted in a news

report dated 5th December 2000 on the basis of which this Court took suo moto

cognisance of the allegations of harassment of Ashu. In order to arrive at the truth of the

allegations as appearing in the news paper report regarding allegations of harassment of

Ashu at the hand of the present petitioner, this Court ordered a fact finding inquiry and

directed the then District Judge Patiala to inquire into the same. That order of this Court

was challenged in the Hon’ble the Apex Court. Hon’ble the Apex Court, after examining

the facts of the case and discussing the relevant law, held that the there were no such

circumstances which necessitated the ordering of an Inquiry for the purpose of grant of

compensation for alleged harassment of Ashu. In view of the fact that the allegations

regarding harassment of Ashu have been examined by Hon’ble the Apex Court, the same

having attained finality and thus no further examination of this issue is required.

87. The learned counsel for the petitioner has addressed arguments on the

question of child witness also. In this regard the learned counsel has placed reliance on

the judgments of Hon’ble the Supreme Court delivered in State of Bihar and others vs.

Kapil Singh and others, AIR 1969(SC) 53 and Rameshwar son of Kalyan Singh vs.

The State of Rajasthan, 1952 Crl. L.J. 547. In so far as the proceedings before the

trial court are concerned, this question is of no relevance since there was no witness who


was under the age of majority. The learned counsel has directed her arguments towards

the testimony of Ms. Aradhana before Sh. R.R. Singh. In this regard, it may be

highlighted that Ms. Aradhana was reportedly 13 years of age at the time of incident of

molestation. As per the Evidence Act, it is only when a child is to testify before the court,

that the presiding officer should satisfy himself about the capacity of the child witness to

understand the questions of the court and give rational answers thereto. In view of the

facts of this case, as no child witness has been examined in the instant case, therefore,

these cases have no bearing on the issue involved.

88. The learned counsel for the petitioner has also raised serious objection to the

presumed close friendship of the victim Ms. Ruchika with Ms. Aradhana. In this regard,

the learned counsel has raised purely factual arguments to the effect that Ms. Aradhana

did not know the pet name of Ms. Ruchika; that she did not know that her maternal

grandfather was in CBI; that she did not know that Ruchika’s father had a second wife

and few other such like arguments. It again needs to be highlighted that the whole

purpose of raising this argument is to somehow prove that Ruchika was never close to

Aradhana, as is being made out. From this premise the learned counsel for the petitioner

again wishes to draw strength for her main argument that it is Sh. Anand Parkash who

framed the petitioner due to his old hostility daring back to the year 1973. This issue of

hostility between Sh. Anand Parkash and the petitioner has been dealt in detail earlier

also and it has already been held that the petitioner cannot derive any benefit from it.

Moreso, the issue of close friendship of Ruchika with Aradhana raises a pure question of

fact and as already pointed out in the beginning the same need not be addressed at the


stage of revision.

89. As regards the contention of the learned counsel for the petitioner that the

CBI conducted a mock enactment of the incident dated 12.8.1990 and the same was also

video graphed, non production of the same in prosecution evidence should have lead to

an adverse inference drawn by the trial court, this court feel that this is only of academic

interest and the ld. Trial court rightly has not recorded any finding on the issue. The mock

enactment was conducted by the CBI in the course of its investigation. The production of

same would not have in any way either proved or disproved the guilt of the petitioner. In

any case, the learned counsel for the petitioner has very strongly argued the theory of

improbability and impossibility, and the mock enactment by the CBI, if tendered in

evidence, would have only been a part of the same. The said theories having been rejected

by the lower courts as also by this court, the issue of non production of mock enactment

video is rendered superfluous.

90. Summing up the arguments on behalf of the petitioner, the learned counsel

has argued that there is insufficient corroboration of the prosecution evidence and there is

no material evidence on record to prove the guilt of the petitioner beyond reasonable

doubt. In this regard, the learned counsel has placed reliance on Hasan Murtza Vs. State

of Haryana, (2002) 3 SCC (J) 1 and Sadashiv Ramrao Hadbe vs. State of Maharasthra

and another, (2006) 10 SCC 92. Further reliance is placed by the learned counsel on

State of U.P. Vs. Punni and Others 2008 (11) SCC 153 while submitting that on

appreciation of the evidence on record, if two views are possible, then the one favoring


the accused should be adopted. The learned counsel has also placed reliance on a

judgment of this Court delivered in Malkiat Singh Vs. State of Punjab (P&B) (DB),

2007 (1) R.C.R. (Criminal) 626, while impressing upon the Court that defence witnesses

also have to be attached the same credibility and trustworthiness as is attributed to the

prosecution witnesses.

91. This Court is of the view that on scrutinizing the entire evidence, importantly

the memorandum Ex. P – 1 which was signed by Ruchika, the eye witness account of

Aradhana PW13 and on the basis of investigation conducted in the case, the truthfulness

of the version of the prosecution is fully established. There is sufficient evidence and

corroboration in the instant case to establish the guilt of the petitioner and there is no

circumstance warranting the petitioner to be entitled to the benefit of doubt. The

proposition put forth by the learned counsel for the petitioner to the effect that defence

witnesses should also be given the same credibility and trustworthiness as the prosecution

witnesses is not disputed. However, it also needs to be clarified that credibility and

trustworthiness of a witness, whether of prosecution or of defence, is dependent upon the

quality of testimony in the light of surrounding circumstances. Even prosecution

witnesses can be held to be unreliable if their evidence is improbable in the light of the

case set up by the prosecution. Insofar as the argument relating to adoption of the view

favouring the acquittal, where there are two possible views is concerned, in the facts and

circumstances of the present case, the view subscribed by the learned Courts below is the

only possible view. Therefore, no interference is called for. The present petition is

against conviction and not against the acquittal. The view adopted by the learned Courts


below has been arrived at after referring to all the relevant evidence and does not suffer

from any perversity. Therefore, the view taken by the Courts below is the only possible

view and this Court is not inclined to substitute the same with any other possibility.

92. Adverting to the question of interference of courts in revisional jurisdiction,

the same is desirable only in the cases where some perverse view has been taken or

relevant material or evidence has not been considered. In this regard, the learned counsel

for the petitioner has relied on a judgment of Hon’ble the Supreme Court passed in Vimal

Singh Vs. Khuman Singh, 1998 (4) RCR (Criminal) 423, wherein it has been observed

as under:

“7. The legal position as to the powers of the High Court in

revision in the matter of interference with the order of acquittal is no

longer res integra, as the law in this regard is very well settled.

Suffice it to refer in this regard a decision of this Court in

K.Chinnaswamy Reddy vs. State of Andhra Pradesh and Anr. (AIR)

1962 SC 1788) wherein it was held, thus:

"It is true that it is open to a High Court in revision to

set aside an order of acquittal even at the instance of private

parties, though the State may not have thought fit to appeal by

the jurisdiction should be exercised by the High Court only in

exception the procedure or there is a manifest error on a point of

law and consequently there has been a flagrant miscarriage of

justice.


Sub-section (4) of Section 439 forbids a High Court from

converting a finding of acquittal into one of conviction and that

makes it all the more incumbent on the High Court to see that

it does not convert the finding of acquittal into one of conviction

by the indirect method of ordering retrial, when it cannot

itself directly convert a finding of acquittal into a

finding of conviction. This places limitations on the power of the

High Court to set aside the finding of acquittal in revision and it

is only in exceptional cases that this power should be exercised.....

Where the appeal Court wrongly ruled out evidence which was

admissible, the High Court would not be justified in interfering

with the order of acquittal in revision, so that the evidence may

be reappraised - after taking into account the evidence which

was wrongly ruled out as inadmissible. But the High Court

should confine itself only to the admissibility of the

evidence and should not go further and appraise the evidence

also".

8. Coming to the ambit of power of High Court under Section 401

of the Code, the High Court in its revisional power does not

ordinarily interfere with judgment of acquittal passed by the trial court

unless there has been manifest error of law or procedure. The

interference with the order of acquittal passed by the trial court is limited

only to exceptional cases when it is found that the order under revision


suffers from glaring illegality or has caused miscarriage of justice or

when it is found that the trial court has no jurisdiction to try the

case where the trial court has illegally shut out the evidence which

otherwise ought to have been considered or where the material evidence

which clinches the issue have been overlooked. These are the instances

where the High Court would be justified in interfering with the order

of acquittal. Sub-section (3) of Section 403 mandates that the High Court

shall not convert a finding of acquittal into one of conviction. Thus, the

High Court would not be justified in substituting an order of acquittal

into one of conviction even if it is convinced that the accused

deserves conviction. No doubt, the High Court in exercise of its

revisional power can set aside an order of acquittal if it comes

within the ambit of exceptional cases enumerated above, but it cannot

convert an order of acquittal into an order of conviction. The only course

left to the High Court in such exceptional cases is to order retrial. In

fact, Sub-section (3) of Section 401 of the Code forbids the High Court in

converting the order of acquittal into one of conviction. In view of the

limitation on the revisional power of the High Court, the High Court in

the present case under Section 304 Part -I and sentencing him to

seven years' rigorous imprisonment after setting aside the order of

acquittal.”

93. There is no dispute with the proposition that High Court under Section 401


of IPC can interfere in its revisional jurisdiction. But in the instant case, no circumstances

for interference have been made out as there appears to be no manifest error on any point

of law or facts. In the instant case, the learned Trial court after considering the entire

evidence has given its findings. The findings recorded by the learned trial court stands

scrutinized and upheld by the learned Lower appellate court. Hon’ble the Supreme Court

in Smt. Dalbir Kaur and Others Vs. State of Punjab, (1976) 4 SCC 158 dealing with the

scope of revisional jurisdiction held as under:

“1. Thus the principles governing interference by this Court in

a criminal appeal by special leave may be summarised as

follows:

(1) that this Court would not interfere with the

concurrent finding of fact based on pure appreciation of

evidence even if it were to take a different view on the

evidence;

(2) that the Court will not normally enter into a

reappraisement or review of the evidence, unless the

assessment of the High Court is vitiated by an error of

law or procedure or is based on error of record,

misreading of evidence or is inconsistent with the

evidence, for instance, where the ocular evidence is

totally inconsistent with the medical evidence and so on;


(3) that the Court would not enter into credibility of the

evidence with a view to substitute its own opinion for

that of the High Court;

(4) that the Court would interfere where the High Court

has arrived at a finding of fact in disregard of a judicial

process, principles of natural justice or a fair hearing or

has acted in violation of a mandatory provision of law

or procedure resulting in serious prejudice or injustice

to the accused;

(5) this Court might also interfere where on the proved

facts wrong inferences of law have been drawn or where

the conclusions of the High Court are manifestly

perverse and based on no evidence:

It is very difficult to lay down a rule of universal

application but the principles mentioned above

and those adumbrated in the authorities of this

Court cited supra provide sufficient guidelines for

this Court to decide criminal appeals by special

leave. Thus in a criminal appeal by special leave,

this Court at the hearing examines the evidence


and the judgment of the High Court with the

limited purpose of determining whether or not the

High Court has followed the principles enunciated

above. Where the Court finds that the High Court

has committed no violation of the various

principles laid down by this Court and has made a

correct approach and has not ignored or

overlooked striking features in the evidence which

demolish the prosecution case, the findings of fact

arrived at by the High Court on an appreciation

of the evidence in the circumstances of the case

would not be disturbed”.

94. Hon’ble the Supreme Court dealing with the same issue in Manju Ram

Kalita Vs. State of Assam, (2009) 13 SCC 330, observed as under:

“11. Thus, it is evident from the above that this Court being the

fourth Court should not interfere with the exercise of

discretion by the courts below as the said courts have

exercised their discretion in good faith giving due weight to

relevant material and without being swayed by any irrelevant


material. Even if two views are possible on the question of fact,

we, being the fourth court, should not interfere even though we

may exercise discretion differently had the case come before us

initially. In view of the above, we are not inclined to interfere

with the finding of fact so far as the issue of bigamy is

concerned nor the quantum of punishment on this count

required to be interfered with.

Similarly, Hon’ble the Supreme Court in State of Maharashtra Vs.

Jagmohan Singh Kuldip Singh Anand and others, (2004) 7 SCC 659

dealing with the revisional jurisdiction observed as under:

14. We have heard the learned counsel for the parties

at length and looked into the relevant evidence on

record. In our considered opinion the learned Single

Judge of the High Court of Bombay exceeded his

revisional jurisdiction by embarking upon in-depth re-

examination of the oral and medical evidence. Most

surprisingly, the High Court has come to a conclusion,

contrary to the consistent one reached by the two

courts, that the happening of the incident, as alleged,

appears to be doubtful.


21. In embarking upon the minutest re-examination of

the whole evidence at the revisional stage, the learned

Judge of the High Court was totally oblivious of the

self-restraint that he was required to exercise in a

revision under Section 397 CrPC. On behalf of the

accused, reliance is placed on the decision of this Court

to which one of us (Justice Sabharwal) is a party, i.e.

Ram Briksh v. Ambika Yadav. That was the case in

which the High Court interfered in revision because

material evidence was overlooked by the courts below.

22. The Revisional Court is empowered to exercise all

the powers conferred on the Appellate Court by virtue of

the provisions contained in Section 410 CrPC. Section

401 CrPC is a provision enabling the High Court to

exercise all powers of Appellate Court, if necessary, in

aid of power of superintendence or supervision as a part

of power of revision conferred on the High Court or the

Sessions Court. Section 397 CrPC confers power on the

High Court or Sessions Court, as the case may be,

"for the purpose of satisfying itself or himself as to


the correctness, legality or propriety of any

finding, sentence or order, recorded or passed and

as to the regularity of any proceeding of such

inferior court."

It is for the above purpose, if necessary, the High Court

or Sessions Court can exercise all appellate powers.

Section 401 CrPC conferring powers of Appellate Court

on the Revisional Court is with the above limited

purpose. The provisions contained in Section 395 to

Section 401 CrPC, read together, do not indicate that

the revisional power of the High Court can be exercised

as a second appellate power.

95. The learned counsel for the complainant has placed reliance on

Shantaram Nilkantha Meshram Vs. State of Maharashtra 2002 (1) RCR

(Crl.) 662, in support of his arguments that the jurisdiction of the revisional

court in case of concurrent findings is limited. The relevant part of the said

judgment cited by the learned counsel is as under:-

“5. It is now well settled that in the exercise of revisional

jurisdiction under Section 397, Criminal Procedure Code, the

revisional Court does not re-appreciate or re-appraise


evidence and findings of fact recorded by the two Courts below

can be interfered with only when such findings are perverse or

based on no evidence or suffer from any error of law learned

Advocate for applicant is not able to satisfy me that the

concurrent findings of fact recorded by the two Courts below

suffer from any such infirmity.”

96. On application of the parameters as delineated by Hon’ble the Supreme

Court to the facts of the instant case leads to the conclusion that there is no perversity in

the judgment and order of learned courts below and all evidence which ought to have

been taken note of has been dealt with. Even otherwise this is settled law that when two

views are possible, the view taken by the trial court should not be substituted by another

possible view unless and until it is established that the view taken by the learned Trial

court suffers from perversity.

97. The learned counsel for the petitioner has also challenged the enhancement

of sentence of the petitioner by the ld. lower appellate court from six months to one year

and six months. As opposed to this, the learned counsel for the CBI has justified the

enhancement in the sentence. The learned counsel for the CBI contends that in view of

the totality of the circumstances, the position of the accused/petitioner, the age of the

victim and the repercussion of the offence on the life of the victim, the sentence has been

rightly enhanced. In support of his arguments, the learned counsel for the CBI has relied


on State of Karnataka vs. Krishna @ Raju (1987) 1 SCC 538; Savaka Perumal Vs.

State of Tamilnadu 1991 Crl. L. J. 1845 SC; Dhananjoy Chatterjee @ Dhana vs. State

of West Bengal (1994) 2 SCC 220; State of Karnataka vs. Saranappa Vasnagouda

Aregoudar 2002 Crl. L. J. 2020 SC; State of U.P. vs. Kishan 2005 Crl. L. J. 333 SC;

Siddarama & Others vs. State of Karnataka 2006 IV (Cr.) (SC) 78 and Ahmed Hussein

Vali Mohammed Saiyed and another vs. State of Gujarat 1 (2010) CCR 1 (SC).

98. In view of the forgoing discussion, this court is of the view that the learned

trial court as well as the learned court of first appeal correctly appreciated the evidence on

record and have returned cogent findings. Not only has the eye witness been found to be

truthful but at the same time the evidence of defence witnesses have failed to inspire any

confidence in the courts below as also before this court. Hence, no interference is called

for in the findings recorded by the learned lower appellate court vide which the

conviction of the petitioner has been maintained.

99. In so far as the proportionality of sentence awarded to the petitioner is

concerned, this court is of the view that keeping in mind the totality of the circumstances,

there is no ground for interfering with the order of the lower appellate court whereby the

sentence of the petitioner has been enhanced.

100. The learned counsel for the petitioner has made an alternate plea for release

of the petitioner on probation of good conduct. The question of grant of the benefit of

probation to a convict is to be considered keeping in mind the following important

parameters:-


(i) The conduct of the convict immediately after

commission of the offence;

(ii) Conduct of the convict during the course of the trial;

(iii) Any remorse shown by the convict for the offence that

he has been held guilty of ;

(iv) Health grounds;

(v) Family consideration;

(vi) Protracted trial;

(vii) Impact of the grant of probation on the society;

(viii) Age of the victim and the effect of offence on his/her

life;

(ix) Social status of the convict, in particular any special

circumstances warranting high moral conduct.

The aforementioned list of relevant factors is not exhaustive but is inclusive in nature.

Depending upon the facts of a particular case, other relevant factors can also be

considered by the court seized of the matter.

101. In the present case, there are certain mitigating factors, as pointed out by the

learned counsel for the petitioner, which implore this Court to take a lenient view of the

offence committed by the petitioner. The factors so pointed out are - old age of the

petitioner; heart ailment; protracted trial; responsibility of looking after unmarried

daughter suffering from congenital heart disease; past meritorious service and claim for


pension.

102. However, having due regard to the afore-mentioned mitigating factors, there

are certain aggravating factors on the consideration of which, this Court is unable to grant

of benefit of probation to the petitioner. The most relevant factor in this regard is the

official position held by the petitioner vide which he was supposed to act as a guardian

and protector not just for his immediate family but to the entire society. In a situation like

this where the young child was trying to wrestle with injustice done to her by the public

servant who under oath of his office is supposed to be her guard, the victim cannot be left

to the mercy of the powerful and mighty. The justice delivery system has to take up the

responsibility here and now to advance justice by enhancing the faith and confidence of

the victims and also the common man in the justice delivery system. To be firm in

dealing with crime against the vulnerable sections of the society, particularly the woman,

is the requirement of the time and its relevance if not appreciated shall cause loss of faith

of the common man in the State institutions and particularly in the judicial system.

People with privilege and power must be conscious of their prestige. If they prostitute

their power and position, punishment should be in proportion to the crime.

103. The responsibility put on the petitioner, by the system of which he was an

important functionary, was completely betrayed by him. The act of the petitioner was

shameful to say the least. The prayer for extending the benefit of probation to the

petitioner has been dealt in detail by the lower courts and after careful consideration of

the relevant factors, which have been highlighted in the preceding para, has been rejected.


The question whether the petitioner is entitled to the benefit of probation is best answered

by posing another question – Sed quis custodiet ipsos custodes? (But who is to guard

the guards themselves?).

104. Accordingly, for the foregoing reasons, the instant revision petition filed by

the petitioner against the confirmation of his conviction and enhancement of sentence is

dismissed. The judgment dated 25.5.2010 passed by the learned lower Appellate Court is

maintained.

01.09.2010 (JITENDRA CHAUHAN)

mk JUDGE

Note: Whether to be referred to the Reporter? Yes / No

sps rathore-judgement punjab & haryana high court judgement-ruchika girhotra case

Documents