SPS Rathore Vs. CBI

IN THE COURT OF SH. GURBIR SINGH,ADDITIONAL SESSIONS JUDGE, CHANDIGARH.

Computer I.D. No: 36014R0004172010.Criminal Appeal No: 5 of 12.1.2010.Date of Decision: 25.5.2010.

S.P.S. Rathore son of late Sh. K.S. Rathore, resident of House No. 469, Sector-6, Panchkula.

.........Appellant.

Versus

C.B.I. ........Respondent.

Appeal against the judgment and sentence order dated 21.12.2009 of Sh. J.S. Sidhu, Chief Judicial Magistrate, Chandigarh.

Present: Sh. SPS Rathore appellant on bail with counsel Sh. N.D. Sharma, Sh. Ajit Kumar Singh and Ms. Abha Rathore.Sh. CS Sharma,Spl. Prosecutor for CBI, Asstt. by Sh. R.V. Sharma and Sh. Chandra Dutta public prosecutors.Sh. Pankaj Bhardwaj and Anju Sharma, Advocate alongwith complainant.

***

Computer I.D. No: 36014R0021052010.Criminal Appeal No: 26 of 12.1.2010.Date of Decision: 25.5.2010.

State through C.B.I. .........Appellant.

Versus

S.P.S. Rathore son of late Sh. K.S. Rathore, resident of House No. 469, Sector-6, Panchkula.

........Respondent.

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SPS Rathore Vs. CBI

Appeal against the judgment and sentence order dated 21.12.2009 of Sh. J.S. Sidhu, Chief Judicial Magistrate, Chandigarh.

Present: Sh. CS Sharma,Spl. Prosecutor for CBI, Asstt. by Sh. R.V. Sharma and Sh. Chandra Dutta public prosecutors.Sh. Pankaj Bhardwaj and Anju Sharma, Advocate alongwith complainant.Sh. SPS Rathore appellant on bail with counsel Sh. N.D. Sharma, Sh. Ajit Kumar Singh and Ms. Abha Rathore.

***

Computer I.D. No: 36014R0021042010.Crl. Revision No: 22 of 5.2.2010.Date of Decision: 25.5.2010.

Madhu Parkash aged: 60 years, wife of Sh. Anand Parkash, resident of House NO. 210, Sector-6, Panchkula.

.........Appellant.

Versus

S.P.S. Rathore son of late Sh. K.S. Rathore, resident of House No. 469, Sector-6, Panchkula.

........Respondent.

Revision against the judgment and sentence order dated 21.12.2009 of Sh. J.S. Sidhu, Chief Judicial Magistrate, Chandigarh.

Present: Sh. Pankaj Bhardwaj and Anju Sharma, Advocate alongwith revisionist.Sh. CS Sharma,Spl. Prosecutor for CBI, Asstt. by Sh. R.V. Sharma and Sh. Chandra Dutta public prosecutors.Sh. SPS Rathore with counsel respondent Sh. N.D. Sharma, Sh. Ajit Kumar Singh and Ms. Abha Rathore.

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SPS Rathore Vs. CBI

J U D G M E N T

1. SPS Ratore has filed the appeal against the judgment dated: 21.12.2009 passed by Sh.Jasbir Singh Sidhu, Learned CJM, Chandigarh in challan No. 3/17.11.2000, 12T 19.4.2006, RBT 191/17.11.2009 whereby SPS Rathore was convicted under Section 354 IPC and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default of payment of fine to undergo imprisonment for one month. The State through Central Bureau of Investigation (hereinafter called “CBI”) has filed appeal under Section 377 Cr.P.C for enhancement of the sentence. Complainant Smt.Madhu Parkash has filed revision against the said judgment with a prayer for enhancement of the sentence. All these three cases are being disposed off in this judgment.

2. The case in question, FIR No. 516 dated: 29.12.1999 under Section 354,509 IPC, PS Panchkula (Haryana), was registered as per the orders dated: 21.8.1999 passed by Hon'ble High Court of Punjab & Haryana Chandigarh in Crl.Writ petition No. 1694/97 filed by Smt. Madhu Parkash wife of Sh. Anand Parkash resident of House NO. 210, Sector- 6, Panchkula (hereinafter called the “complainant”) and upheld by Hon'ble Apex Court vide judgment dated: 14.12.1999. After registration of the case, investigation of the case was conducted by CBI. The FIR was registered on the basis of memorandum dated: 16.8.1990 submitted with the signatures of Ms.Ruchika and others addressed to Financial Commissioner and Secretary, Home Department, Government of Haryana. In the memorandum allegations were levelled that Sh. SPS Rathore, President, Haryana Lawn Tennis Association, a police officer of rank of IG had molested Ms. Ruchika in the office of Haryana Lawn Tennis

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Association after securing her presence on the pretext of discussion for making arrangements for extra facilities to promote Ruchika's promising career in lawn tennis. During investigation, it was found that in the year 1989-91 Sh.SPS Rathore was on deputation with Bhakhra Beas Management Board (BBMB) as Director Vigilance and Security. During the year 1988-89 Sh. SPS Rathore formed the Haryana Lawn Tennis Association (hereinafter called “HLTA”) and got the same registered on 29.11.1988 with the Registrar of Firms & Societies, Haryana with its address House NO. 469, Sector-6, Panchkula. The office of the association was established in the garage of House NO. 469, Sector-6, Panchkula owned by Sh.SPS Rathore which was under construction. S/Sh. T. Thomas, Kuldip Singh and Paltoo Mehto were engaged as Lawn Tennis Coach, Manager and Ball Picker respectively in the said association. The garage of under construction building was divided into three portions and front portion of the same was being used as the office of HLTA. Sh. T. Thomas coach and Sh. Kuldip Singh Manager, were using other two portions for residential purpose. All the three portions were interconnected with doors. HLTA had enrolled 60-70 member players on payment of monthly subscription comprising young boys and girls who were mostly residents of Sector-6 and Officers colony Panchkula. They were being imparted training in tennis courts by Sh. T. Thomas coach. Ms.Ruchika aged about 15 years daughter of Sh. S.C. Girhotra resident of House NO. 363, Sector-6, Panchkula and a student of Sacred Heart School, Sector-26, Chandigarh and Ms.Aradhna @ Reemu aged 15 years daughter of Sh.Anant Parkash, resident of House NO. 210, Sector-6, Panchkula also got themselves enrolled as members of the association by paying the requisite fee and joint coaching in lawn tennis. Ms. Ruchika and Ms. Reemu were friends

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SPS Rathore Vs. CBI

and both usually went together for practice. The other members who played lawn tennis included Manish Arora, Vipul Chanana and Pushpinder etc. The accused SPS Rathore used to visit lawn tennis court in the evening. Ms. Ruchika was to go to Canada for a few months as decided by her father and she had informed about the same to the accused.

3. On 11.8.1990, at about 12.00 (noon) accused SPS Rathore visited the house of Sh.S.C. Girhotra and told him that he should not send his daughter Ms. Ruchika abroad as she was a very promising player and accused would arrange special coaching for her. Accused SPS Rathore also asked Sh S.C. Girhotra to send Ms. Ruchika to his office on 12.8.1990 at 12.00 noon in connection with the same. Sh. S.C.Girhotra agreed to the same. On 11.8.1990, Sh. S.C.Girhotra informed his daughter Ms. Ruchika about the visit of accused Rathore and also desire of Mr. Rathore to meet her at 12.00 noon on 12.8.1990 for making arrangements for special coaching for her. Sh. S.C. Girhotra specifically instructed Ms. Ruchika to meet Sh. Rathore on 12.8.1990 at 12.00 noon in his office. Ms. Ruchika on 12.8.1990 visited the house of Ms. Aradhana @ Reemu and told her excitedly about the visit of the accused to her house on the previous day i.e. 11.8.1990. She further told that Sh. Rathore had advised her father not to send her to Canada and had promised also that he would arrange extra coaching for her since she was a promising player. Ms. Ruchika further told to Ms. Aradhana @ Reemu that Sh. Rathore had called her to his office on 12.8.1990 at 12.00 noon. Thereafter, both Ms. Aradhana @ Reemu and Ms. Ruchika went to play at the lawn tennis court. While both were playing, Mr. Paltoo-ball picker came there and told Ms. Ruchika that Sh. Rathore had called her in his office at 12.00 noon.

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SPS Rathore Vs. CBI

Accordingly, Ms.Ruchika accompanied by Ms. Aradhana @ Reemu went to meet Sh. Rathore in his office and found him standing outside the office. Ms. Ruchika requested him to talk to her outside the office but Sh. Rathore insisted on their coming inside the office. On the insistence of Sh. Rathore both Ms. Aradhana @ Reemu and Ms. Ruchika went inside the office. Sh. Rathore got fetched one chair which was occupied by Ms. Aradhana @ Reemu. Sh. Rathore sat in his chair which was on the other side of the table. Ms. Ruchika kept standing in the right side of Ms. Aradhana @ Reemu. Thereafter, accused SPS Rathore asked Ms. Aradhana @ Reemu to go out and fetch Sh. T.Thomas coach. Ms. Aradhana @ Reemu accordingly left leaving Sh. Rathore and Ms. Ruchika in the office. Ms. Aradhana @ Reemu went towards the rear of the house where she found Mr. T. Thomas standing on the Southern side of the house across the road. Between her and the coach, she also found the same person standing who had brought the chair in the office for her. Ms. Aradhana @ Reemu asked the said person to go to Mr. Thomas and tell him to come to the office of Sh. Rathore. Accordingly, the said person went to Mr. Thomas and told him whatever was conveyed to him by Ms. Reemu. However, Mr. Thomas waived his hand indicating that he would not come. Immediately thereon, Ms. Reemu returned to the office. On entering the office, Mr.Aradhana @ Reemu found that the accused was holding one hand of Ms. Ruchika while his other hand was around her waist and Ms. Ruchika was trying to get herself released but pushing the accused with her other hand which was not held by the accused. On seeing Ms.Reemu, the accused got nervous, released Ms. Ruchika and fell back in his chair. Ms. Aradhana @ Reemu told the accused that Mr. T. Thomas, coach had refused to come whereupon, the accused again ordered Mr. Reemu to go

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and bring the coach personally. In the mean time, Ms. Ruchika started leaving the room but the accused asked her to stay and again told Ms. Reemu to go and fetch the coach. However, Ms. Ruchika reached near Ms. Reemu and then ran out of the office. The accused then told Ms. Reemu, “Ask her to cool down, I will do whatever she says”. Thereafter, Ms. Reemu also ran out of the office of the accused and tried to catch up with Ms. Ruchika who was then running towards her house and was also weeping. With some efforts, Ms.Reemu could catch up Ms. Ruchika. On seeing Ms. Reemu, Ms. Ruchika who was already weeping, started crying loudly. According to Ms. Reemu, Ms. Ruchika informed her that as soon as she left to fetch the coach the accused had caught hold of her hand which was got released by her with lot of difficulty. The accused then got up from the chair and caught her hand again and with his other hand, had also encircled Ms. Ruchika waist, dragged her towards himself and had embarrassed her. Ms. Ruchika also informed Ms. Reemu that she had struggled to push the accused away with her other hand which was not held by the accused. Thereafter, Ms. Aradhana @ Reemu consoled Ms. Ruchika upon which she stopped weeping and enquired if it would be proper to inform her father and the parents of Ms. Reemu about the incident. After discussion, they both decided not to inform their parents as they apprehended that Sh. Rathore being an IG of Police could involve and harass the girls and their parents. Both the girls, thereafter, went to the house of Ms. Aradhana @ Reemu, from where Ms. Ruchika left for her house. On 13.8.1990, as it was holiday at the lawn tennis court, neither Ms. Reemu nor Ms. Ruchika went to play tennis.

4. On 14.8.1990 at about 4.30 pm, Ms. Reemu

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SPS Rathore Vs. CBI

alongwith Ms. Ruchika went to the lawn tennis court. They also wanted to avoid Sh. Rathore who used to usually visit the lawn tennis court in the evening. At about 6.30 pm, on 14.8.1990 while Ms. Reemu and Ms. Ruchika were about to return after practice, Mr. Paltoo, ball picker came out of the lawn tennis court and told Ms. Ruchika that accused had called her to his office immediately. However, Ms. Ruchika refused to go and pointed out to Ms. Reemu that since they had not informed their parents about the misbehaviour committed by Sh. Rathore on 12.8.1990, the accused was feeling emboldened and had again called Ms. Ruchika to his office with a view to molest her. Thereupon, both Ms. Reemu and Ms. Ruchika decided that it would be proper to inform the father of Ms. Ruchika and parents of Ms. Reemu about the said incident of molestation at the hands of Sh.Rathore. Accordingly, Ms. Ruchika accompanied by Ms. Reemu went to Ms. Ruchika's house. There they met Sh.S.C. Girhotra and started narrating the incident further and broke down whereupon Sh. S.C. Girhotra told Ms. Reemu to take Ms. Ruchika to Ms. Reemu's mother promising that he would also reach there. Thereafter, Ms. Reemu took Ms. Ruchika to her house. On seeing Smt. Madhu Parkash, Ms. Ruchika started crying. After being consoled by Smt. Madhu Parkash, Ms. Ruchika cooled down and narrated the entire incident of her molestation at the hands of the accused. Smt. Madhu Parkash also called her husband, Sh. Anand Parkash who was present in the house and both the girls narrated the incident to him as well. On being asked by Sh. Anand Parkash about the whereabouts of the accused both Ms. Ruchika and Ms. Reemu informed that the accused would be available at the lawn tennis court. On 14.8.1990 itself, Sh. Anand Parkash, Smt. Madhu Parkash accompanied by Ms. Ruchika and Ms.Reemu proceeded to lawn tennis court

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SPS Rathore Vs. CBI

and on the way Sh. S.C. Girhotra and some of his neighbours including Ms. Veenu Mittal, Mrs. Sangeet Virk also joined them. On reaching the lawn tennis court, they found S/Sh. Manish Arora, Vipul Chanana, Pushpinder and other player playing tennis. The enquiries made from them about the whereabouts of Sh. Rathore revealed that accused had already left for the office of association. The said persons thereafter, proceeded to the office of the accused where chowkidar Piare Lal informed them that accused had already left for Chandigarh.

5. On 15.8.1990, 10-15 other persons who were mostly parents of boys and girls and member of HLTA collected at the residence of Sh. Anand Parkash, then resident of House No. 407, Sector-6, Panchkula and decided that some strong action should be taken by way of taking up the matter with higher authorities of the Haryana Government. It was decided that a deputation of citizens including the players would meet the Chief Minister and Home Minister with a request to order an enquiry into the incident. Accordingly, a petition/memorandum was prepared in Hindi addressed to Chief Minister, Home Minister, Governor, Financial Commissioner-cum-Secretary (Home), Government of Haryana, SDM Panchkula and SHO Panchkula. On 16.8.1990, the parents of Ms. Ruchika and Ms. Reemu took Ms. Ruchika and Ms. Reemu and with other residents of Panchkula went to the Civil Secretariat to see the Chief Minister and the Home Minister but they could not contact any of the two. Accordingly, they met Sh. J.K. Duggal, Home Secretary (Home), Haryana and submitted a memorandum asking for an enquiry into the molestation of Ms. Ruchika. Sh. J.K. Duggal, in addition to bringing the matter to the notice of the Principal Secretary to the CM, the Chief Secretary and the Home Minister, discussed the

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SPS Rathore Vs. CBI

matter with the Home Minister on 17.8.1990. It was then decided to send the memorandum to the then DGP, Haryana asking him to enquire into the matter and submit enquiry report within one week. An office note was, accordingly, marked to the Home Minister for passing the aforesaid orders. After the approval of the note by the Home Minister, the same was forwarded to Sh. R.R. Singh, the then DGP, Haryana vide No. 18/34/90 – 2HG1, dated: 20.8.1990. During investigation, it was further revealed that on 16.8.1990, Sh. J.K. Duggal had assured the parents of Ms. Ruchika and Ms. Reemu and others that he would also depute Sh. S.K. Joshi,SDM to reach the lawn tennis court at 5.00 pm on that day to hear the grievances of the parents and the member players. On 16.8.1990, at about 5.00 pm, Sh. Anand Parkash alongwith Smt. Madhu Parkash and others went to the lawn tennis court where other parents alongwith their wards were also present. These persons however found a notice dated: 15.8.1990 declaring suspension of Ms. Ruchika w.e.f. 13.8.1990 displayed there. This agitated the persons/players present there as Ms. Ruchika had been suspended without any fault on her part and they started raising slogans against Sh. SPS Rathore. Sh. Anil Dhawan, SHO PS Panchkula who was on patrolling duty in the area received information around 5.30 pm that some boys and girls were raising slogans at the tennis court of Sector-6, Panchkula. On reaching there he found the member players including boys and girls shouting slogans against Sh. SPS Rathore, President HLTA. S/Sh. Kuldeep Singh, Manager, T. Thomas, Coach and Paltoo were also present there. Sh. S.K. Joshi, SDM had also reached the lawn tennis court and declared that the tennis court had no connection with HLTA and that he had taken over the same under orders of the Home Secretary. Sh. S.K. Joshi also made enquiries from

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SPS Rathore Vs. CBI

Sh.Kuldeep Singh, Manager and Sh. T. Thomas, Coach about the indiscipline on the part of Ms. Ruchika whereupon both wrote on the suspension order itself that they were not aware of any act of indiscipline on the part of Ms. Ruchika. Sh. Joshi also declared that the lawn tennis court will be open to everybody and that no fee will be charged from any person for playing over there. During investigation it was further revealed that no act of indiscipline was officially recorded and enquired into against Ms. Ruchika.

6. On 21.8.1990, Sh. R.R. Singh who was the then DGP, Haryana received the order dated: 17.8.1990 for making an enquiry into the matter. Sh. R.R. Singh conducted the enquiry into the incident of molestation of Ms. Ruchika and recorded the statements of Ms. Ruchika, Ms. Reemu, Sh. S.C. Girhotra, Smt. Madhu Anand, Sh. Anand Prakash and Sh. Anil Dhawan, SHO, PS Panchkula. After conducting the enquiry into the incident, Sh. R.R. Singh concluded that whatever Ms. Ruchika had stated about her molestation by Sh. SPS Rathore was based on true facts and that he was of the considered opinion that a cognizable offence was made out. Sh. R.R. Singh, therefore, had recommended registration of case under appropriate sections of Indian Penal Code and had forwarded his enquiry report dated: 3.9.1990 to the Home Secretary, Government of Haryana. During investigation it was also revealed that after the incident of molestation of Ms. Ruchika remained confined her to her house and remained depressed Later, Ms. Ruchika committed suicide by consuming poison on 28.12.1993 and died on 29.12.1993. On the basis of evidence collected during investigation CBI found that Sh. SPS Rathore IPS while working as President of HLTA molested Ms. Ruchika on 12.8.1990

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SPS Rathore Vs. CBI

knowing that his act was likely to outrage the modesty of Ms. Ruchika so he had committed offence punishable under Section 354 IPC. The challan was filed by CBI in the court of learned Special Judicial Magistrate, CBI Ambala on 17.11.2000 to summon and to try the accused in accordance with the law.

7. Alongwith challan an application was also moved by the CBI for condonation of delay in filing the challan. Notice of the application was given to the accused. Vide order dated: 5.12.2000 passed by learned Judicial Magistrate Ist Class the application under Section 473 Cr.P.C was allowed and delay in filing the challan was condoned. An application was moved by Smt. Madhu Parkash complainant for adding offence of Section 306 IPC. The learned Judicial Magistrate Ist Class, Ambala allowed the application. Vide order dated: 12.2.2002, the said order of addition of Section 306 IPC was set aside by Hon'ble High Court.

8. Notice of accusation under Section 354 IPC was served upon the accused on 17.3.2003 to which the accused pleaded not guilty and claimed trial.

9. In order to prove the case, the prosecution examined Sh. Anand Parkash husband of the complainant as PW.1, Smt. Madhu Parkash complainant as PW.2, Sh.Manish Arora member of HLTA as PW.3, Sh. Vipul Chanana member of HLTA as PW.4, Dr. Naresh Mittal as PW.5, Sh. R.R. Singh, Ex. DGP, Haryana as PW.6, Sh.S.K. Joshi then SDM Panchkula as PW.7, Sh. Som Lal Kajal, Asstt. Engineer as PW.8, Sh. Sunil Malik Executive Engineer as PW.9, Sh. Anil Kumar then SHO Panchkula as PW.10, Sh. Rattan Singh SHO Panchkula at the time of registration of FIR as PW.11, Sh. J.K. Duggal Ex- Secretary Home, Haryana as PW.12, Ms.

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Aradhana @ Reemu daughter of the complainant as PW.13, Sh. B.S. Ojha Ex-Financial Commissioner-cum-Secretary to Govt. of Haryana as PW.14, Sh.S.C. Girhotra father of Ms. Ruchika as PW.15, Sh. Rajesh Ranjan IG, CBI, Investigating officer of this case as PW.16. The prosecution has also tendered documents Ex.P1 to P10, Ex.PW6/1 to Ex.PW6/2, Ex.PW8/A, Ex.PW10/A, EX.PW11/A to PW11/B, Ex.PW13/A, Ex.PW14/A, Ex.PW15/A, Ex.PW16/1 to PW16/6 and prosecution closed the evidence.

10. The statement of the accused under Section 313 Cr.P.C. was recorded. The incriminating evidence appearing against the accused was put to him which was denied by him. The accused also admitted that during the period 1990 he was President of HLTA and the garage of his under construction house No. 469, Sector-6, Panchkula was being used as office of HLTA. S/Sh.T. Thomas, Kuldeep Singh and Paltoo were employed as tennis coach, Manager and ball-picker respectively by HLTA. The courts of the HLTA were situated in Sector-6, Panchkula. Sh. Manish Arora, PW.3, Sh. Vipul Chanana PW.4, Ms. Aradhana PW.13 and Ms. Ruchika Girhotra were the members of the said association and they used to play tennis in the courts of association in the year 1990. He admitted that he used to visit lawn tennis court to play and for general supervision but sometimes he did not go to lawn tennis court in the evening when he was busy in supervision of the construction of his house. Accused denied that Ms. Ruchika and Sh.S.C.Girhotra were living in House No. 303, Sector-6, Panchkula and Ms Aradhana and her parents were close door neighbourers. The accused denied visiting the house of Ms.Ruchika on 11.8.1990 and any conversation with Sh. S.C. Girhotra father of Ms. Ruchika. The accused specifically denied that on 12.8.1990 he caught the

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Ruchika's one hand tightly and put his another hand around her waist and embraced her with his chest and Ms. Ruchika was trying to get herself released by pushing him away. The accused denied the presence of Aradhana @ Reemu at that time. The accused denied that he organized any procession which raised slogans against Ms. Ruchika and Sh. S.C. Girhotra and in favour of the accused. The accused admitted the registration of case in pursuance of the order of Hon'ble Supreme Court of India. The accused pleaded that recording of statement of witnesses by CBI during investigation of the case was doubtful. Unfair investigation was conducted. Memorandum Ex.P1 is false and fabricated document. The witnesses of prosecution are not credible. The accused pleaded that he was staying in his official residence at Chandigarh during the month of August, 1990. He often used to go to House NO. 469, Sector-6, Panchkula to supervise the construction. A gunman always remained with him whenever he went out and held meeting outside his residence. He had employed a chowkidar at Panchkula house which was under construction. On 12.8.1990 he met Ms. Ruchika in the HLTA office in presence of his guman Ved Parkash and chowkidar servant Ram Piara @ Piare Lal. The HLTA office had all the plain glass windows at the entrance and was adjoining the stair-case for the first floor and main entrance gallery of the house. Plastering work on the first floor and flooring in the dinning-cum-drawing and lounge was in progress. This was attached to the main entrance gallery. Behind the dinning-cum-lounge on the ground floor and in the rear lawn boring of tubewell was in progress. At the time of alleged visit of Ms. Ruchika 15-16 labourers and mistries were moving around the house and HLTA office since it was peak working hour. Ms. Ruchika complained against the coach T. Thomas that

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he was not allowing her to play. He told her that coach was annoyed because of her indiscipline conduct of coming late and talking frivolously with boys in the coaching class and she was entering and playing in the courts at her own Will when the same were closed. He asked her to submit written apology to the coach but she refused. He warned her that she would be suspended if she did not improve her conduct and told her to leave the office. She went away in presence of the gunman and chowkidar from the house. On 13.8.1990 the coach again reported that she had opened the fencing of the court and played and spoiled the wet courts. He then signed on the suspension and issued the same copy of which is Mark-D5. On 14.8.1990 he received a phone call late in the evening from chowkidar Piare Lal at Chandigarh that Sh. S.C. Girhotra and Sh. Anand Parkash had come to his Panchkula residence and wanted to see him in connection with suspension of Ms. Ruchika. He told him that they could see him tomorrow at HLTA office i.e. on 15.8.1990 and they could speak to him on phone if they like. No phone call was received from them. Thereafter, on 15.8.1990 he reached Panchkula residence in the morning where he was told by Paltoo ball-picker of the tennis court that he tried to stop Ruchika from playing on the previous day telling her that she had been suspended by Sahib. Ruchika and Ms. Reemu who were playing together flared up and told him angerly that they would see and his Sahib. Thereafter, Ms. Ruchika went away alongwith Ms. Reemu to Sh. Anand Parkash residence. He then asked Sh. Kuldeep Singh Manager as to how he allowed Ms. Ruchika to enter the tennis courts. Sh. Kuldeep Singh explained that he was unaware and could therefore not notified about the suspension of Ms. Ruchika on the notice board and he will do the same on next day and ensure that she did not enter the

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coaching centre. Thereafter, he sent a notice to Sh. S.C. Girhotra calling him to meet him alongwith orders passed by him on account of her indiscipline through Kuldeep Singh and chowkidar. However, Sh. S.C. Girhotra did not turn up to meet him. He was told that Mr. Girhotra on the advise of Sh. Anand Parkash had refused to come. On 16.8.1990 in the evening he was informed by Sh. Kuldeep Singh on phone at Chandigarh that he and other officials namely, coach and ball-picker of HLTA are beaten up by Sh. Anand Parkash, Sh. Naresh Mittal, Sh. Manish Arora and Sh. Vipul Chanana etc. He reached HLTA office late in the evening and saw that Sh. Kuldeep Singh Manger's ear was bleeding and articles in the HLTA office were lying scattered. He informed the SHO to visit the site. SHO Sh. Anil Dhawan visited the site and admitted in prosecution evidence that he too saw the articles broken and lock of box broken. No case was registered. SHO Panchkula also told him that he had received a telephone call from DGP R.R. Singh that he had to help SDM to take over HLTA coaching centre. Sh. Anand Parkash was hailing from Ladwa Kurukshetra district. He entertained serious grudge since his posting in Kurukshetra district as SP of Kurukshetra in 1973-75. Sh. B.S. Ojha IAS, Principal Secretary and Sport Secretary became hostile to him as he did not accommodate his request to step down from Presidentship of HLTA. In the emergency meeting of Executive of HLTA held on 24.8.1989 the proposal of Mr. Ojha was rejected and the same was conveyed through S.K. Saxena Treasurer who told that Ojha threatened that he would not let HLTA function and Rathore would have to face the consequences. After sometime parallel lawn tennis association of the name of Haryana Tennis Association (HTA) was formed. Sh. J.K. Duggal IAS who was close to Mr. Ojha was made President. He challenged the proposed registration

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but it was registered since it was supported by senior IAS officer. Later on he filed a civil suit against Sh. J.K. Duggal against the affiliation to the All India Tennis Body vide Ex.D12. The entire controversy between HLTA and HTA was generated into IAS Vs. IPS. Sh. Anand Parkash being senior Haryana Government officer and his daughter being member of HLTA were having full knowledge of the on going tussle. He therefore moved with vengeance to exploit the suspension of Ms. Ruchika who earned the favour of Sh. J.K. Duggal and Sh. B.S. Ojha who were running the government. He with his own motive fabricated a false memorandum Ex.P1 alleging vague allegations and helped to take control of the coaching centre. Sh. Anand Parkash within four months despite his adverse record reports of corruption and pending vigilance enquiries was promoted as Chief Engineer. A false and fabricated memorandum Ex.P1 was prepared at the residence of Sh. Anand Parkash on 15.8.1990 with elaborate consultation with officers working directly under Sh. B.S. Ojha and Sh. J.K. Duggal. The lacuna of delay was filled up by concocting story by Smt. Madhu an advocate by profession. The memorandum was neither signed by Sh. S.C. Girhotra nor by his son Ashu. The signatures of the Ruchika on the memorandum appeared to be forged if compared with the statement of Ruchika recorded by Sh. R.R. Singh. Sh. J.K. Duggal immediately on receipt of memorandum deputed SDM to take over the centre. On 17.8.1990 defamatory material was published in the newspaper so accused filed defamation case under Section 500 IPC against Sh. Anand Parkash, Smt. Madhu, Sh. S.C. Girhotra, Reemu etc and press people. The accused were summoned in the said case. Sh. R.R. Singh was having animosity with him over the issue of harvesting of crop in Government land attached with SSP residence when he succeeded him. In the report Sh. R.R. Singh

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made Aradhana and Reemu as two different girls. Aradhana @ Reemu is the one girl. The same was done to make Ms. Reemu as saathi girl as written in Ex.P1 and thereby made Reemu as eye witness. Sh. R.R. Singh sent the report to Sh. J.K. Duggal under pressure. Sh. Anand Parkash, Smt. Madhu and Ms. Aradhana had got bail in the defamation case in March/January 1997. The leading press people had also to seek bail from the court. A new relationship of partnership between Sh.Anand Parkash and media people came into existence with common objective to take retaliatory measures against him. Smt. Madhu and Sh. Anand Parkash succeeded in getting the order of registration of FIR against him. Media commenced its onslaught against him. He himself requested for CBI investigation. 4-5 D.O. letters were exchanged between CBI and Chief Secretary. He was transferred from the post of DGP on the pressure of CBI. CBI conducted biased investigation. Ultimately, it was pleaded that it is a case of no evidence and prosecution has failed to prove the case against him. The accused opted to lead defence evidence.

11. The accused examined Sh. Ved Parkash who remained his gunman as DW.1, Ram Piara labourer as DW.2, Sh Surinder Kumar as DW.3, Sh. Chander Pal Manager of HLTA as DW.4, Sh. Gobind Ram Sharma DW.5, Shadi Lal Malik who was working as Asstt. Reader with the accused in the year 1973 DW.6, Sh. Jog Dhian SI as DW.7, EHC Bhagwan Dass as DW.8, Sh. Karan Singh as DW.9 , Sh. Devinder Parsad, document and handwriting expert DW.10, Sh. Abhilaksh Likhi PS to Raksha Rajya Utpadan Mantry, Ministry of defence as DW.11, Sh.D.S. Rao as DW.12, Sh. Bihari Lal as DW.13, Sh.S.S. Dhahiya Retd. Chief Engineer as DW.13/A, Sh.Rajiv Prohit clerk CRC, Punjab & Haryana High Court, Chandigarh as DW.14, Smt. Neelam Kashni IAS,

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Director, Social Welfare Haryana as DW.15, Sh. Om Parkash Kathuria, then Secretary HLTA as DW.16, Sh. Madhulesh Kumar Shishodia as DW.17. Sh. Vipin Pabbi, Radhye Sham and record keeper Ambala were not examined in defence and were given up. Documents Ex.D1 to Ex.D20, Ex.DW5/A, Ex.D8, Ex.D9, Ex.D10, Ex.DW8/A, Ex.DW11/A, Ex.DW12/A, Ex.DW14/1 and Ex.DW16/1 were tendered in defence evidence. The accused closed defence evidence.

12. After hearing the arguments of learned PP for CBI and learned defence counsel for the accused the learned trial court convicted the accused under Section 354 IPC and accused was ordered to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default to undergo imprisonment for one month for committing offence under Section 354 IPC.

13. Aggrieved against the said judgment and order of sentence the accused has filed appeal against conviction and sentence. The prosecution has filed appeal against the inadequacy of order of sentence and for enhancement of the sentence of imprisonment. The complainant has filed a revision against the inadequacy of the sentence . All these cases are being disposed off.

14. I have heard the submissions of the learned counsel for the convict, learned counsel for the CBI and learned counsel for the complainant and I have gone through the record carefully with their able assistance.

15. The counsel for the appellant has argued that learned trial court has recorded the conviction on the basis of uncorroborated testimony of Aradhana,

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the sole, interested alleged eye witness, despite the fact that prosecution failed to prove beyond doubt that she was present at the spot at the time of alleged occurrence and without noticing the contradictions and improvements made by her in her testimony. The learned trial court failed to appreciate evidence regarding unreliability, contradictions and large scale improvements made by her. The learned trial court misread the oral and documentary evidence and gave the findings on surmises and conjectures. It dismissed major lacunas as minor lacunas. The learned trial court failed to appreciate effective delay in lodging complaint/ memorandum and exhibiting forged memorandum and manipulated documents by the prosecution. The probable story contended by the accused was not considered. The defence evidence and defence version were neither examined nor considered. So no reason has been given for ignoring/rejecting the defence evidence and defence version in totality. Equal treatment is required to be given to the defence witnesses and evidence of defence. The learned defence counsel relied on case Anil Sharma and other Vs. State of Jharkhand 2004 SCC (Crl.) 1706 and case Malkiat Singh Vs. State of Punjab 2007(1) RCR (Crl.) 726. The written arguments in rebuttal were submitted by CBI after the close of arguments. Same were also not supplied to the accused which had caused prejudiced to the accused.

16. The defence has proved by leading cogent evidence that there was rivalry between two tennis associations, one headed by appellant and one formed later on by IAS Group which Sh. J.K. Duggal, Home Secretary as its President, with the patronage of Sh. B.S. Ojha. Earlier the accused did not step down from the presidentship of HLTA in favour of Sh. B.S.

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Ojha. Mr. Ojha was annoyed so he has strong reasons for ordering the enquiry by Sh. R.R. Singh, then DGP (Haryana). The police officers working against him had organized the drafting of the memorandum against the accused. Sh. J.K. Duggal had ordered for the taking over of the coaching centre. From the cross-examination of Sh. J.K. Duggal PW.12, Sh. B.S. Ojha PW.14, Sh. R.R. Singh PW.6 and from the statements of DW.8 and DW.16 and documents Ex.DW12, Ex.DW14 and Ex.DW16/A, it is proved that abovesaid officers were hostile towards the accused. Ms. Ruchika was a trainee of HLTA coaching centre which is under the over all control of the appellant who was the president of HLTA. The defence witnesses have proved that Ms. Ruchika had committed an act of indiscipline in the coaching centre on 10.8.1990 by coming late and talking frivolously with a fellow player. Her act angered the coach who did not allow her to attend the coaching class on that day. Thereafter, coach had verbally apprised the appellant about her misconduct on the next day. On 12.8.1990 Ms. Ruchika came to HLTA office between 11.45 to 12.00 hours which was situated in the garage of the under construction house of the appellant. At that time 15/16 labourers, masons, tubewell borers were engaged in construction work i.e. flooring and plastering work in the main bedroom, dinning hall on the ground floor and on the first floor and boring of tubewell on the back of the house. Ms. Ruchika met the appellant in the HLTA office for 2-3 minutes. She complained against the coach that he was unfair and did not allow her to play in the training centre. The appellant told her that coach had already informed him about her misconduct and she should tender a written apology to the coach but she refuse to tender written apology to the coach whereupon the appellants scolded her and asked her to maintain

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discipline in the centre and to leave the HLTA office. Thereafter on 13.8.1990 the coach again noticed her playing around 11.00 am in the court of coaching centre after having opened the plastic netting surrounding the court. The coach then submitted a written report about the misconduct of Ms. Ruchika on 13th evening and she was suspended from playing for 15 days w.e.f 13.8.1990. Ms. Ruchika again came to play on 14.8.1990 in the coaching centre. Upon noticing her playing with Aradhana, Paltoo ball-picker stopped her from playing and told Ruchika that she was not allowed to play as she had been suspended by the president. Thereafter, Ruchika and Aradhana left the court and threatened to see him with his sahib for stopping her from playing and went away. Said incident was blown up by Sh. Anand Parkash and his family who had past enmity with the appellant. Sh. Anand Parkash exploited appellant's hostile relations with Sh. J.K. Duggal IAS, and Sh. B.S. Ojha IAS, PS to CM of the rival tennis association and also his bad relations with then DGP R.R. Singh and other police officers. Sh. Anand Parkash and his advocate wife Smt. Madhu Parkash with the help of senior police officers Sh. C.P. Bansal, IPS DIG and Sh.S.L. Goyal DSP who were working directly under the Home Secretary, Sh. J.K.Duggal and Sh. B.S. Ojha and were close to Sh. Anand Parkash got drafted a memorandum on 16.8.1990 at his residence alleging “chedh char” with Ruchika by the appellant. The signatures of Ruchika were forged on the memorandum which was signed by Sh.Anand Parkash, his close relatives and his neighbours family. Even Sh. S.C. Girhotra did not sign the memorandum. The appellant had called Sh. S.C. Girhotra on 15th August to meet him in HLTA office but he did not come. The subsequent developments indicated that greed for money had entered Girhotra's

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mind on 15.8.1990 which motivated him to decline meeting with him when he was called. Sh.Anand Parkash and Sh. Naresh Mittal exploited Girhotra's weakness. They persuaded him to join them later on for lure of money. The memorandum was prepared after detailed deliberations and was submitted to Sh. J.K. Duggal IAS on 16.8.1990 who deputed the SDM to take over the coaching centre and allow everyone including Ruchika to play in the centre. Sh. J.K. Duggal got an enquiry ordered and marked to DGP R.R. Singh by the PS to CM on 17.8.1990. Sh.R.R. Singh thereafter submitted a one sided adverse report to the government on 3.9.1990. In the mean while, the appellant's intention to take legal action against makers and publishers of the false and fabricated memorandum was reported in the morning newspaper on 18.8.1990. The appellant filed a criminal complaint under Section 500 IPC in the court of learned Judicial Magistrate Ist Class, Sh. Dharamvir at Ambala against Sh. Anand Parkash, Smt. Madhu, Aradhana, Sh. SC Girhotra, Ruchika, Dr. Naresh Mittal and the press people etc. The order of suspension of Ruchika dated: 13.8.1990 was attached with the criminal complaint. The statement of the coach was also recorded in the court at Ambala. Sh. Anand Parkash who was keeping watch on the appellant's movement was also present in the Ambala court. The summons in the said criminal defamation case was effected on Dr. Naresh Mittal, Sh. Anand Parkash, Smt. Madhu, Aradhana only on March, 1997 whereafter, Smt. Madhu Parkash filed a criminal writ petition 1694/1997 with forged documents and got directions for the instant FIR under Section 354 IPC. The appellants examined four witnesses i.e. DW.1, DW.2, DW.3 and DW.4 who were present in and around HLTA office when appellant had met Ruchika in HLTA office. They were duly cross-examined. They have proved that

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Ruchika alone had met appellant in HLTA office on 12.8.1990 and she was scolded and was asked to get out of the office by the accused on her refusal to submit apology to the coach. She went away in presence of DW.1, DW.2 and DW.3 without any fuss. They also proved more than 12 persons were working in the house at that time and garage was open from the front and had wooden doors and windows fitted with transparent glass. DW.5 has proved the suspension order of Ruchika Ex. Mark-5 which was typed and issued on 13.8.1990. DW.1, DW.5, DW16 and document Mark-D5 also corroborated the fact of suspension of Ruchika on 13.8.1990 for her misbehaviour. The Ruchika's suspension w.e.f. 13.8.1990 is also mentioned in Ex.P2. DW.1, DW.4 also proved that Ruchika was prevented from playing in the evening of 14.8.1990 by Paltoo, ball-picker due to her suspension whereupon both the girls left the court angrily and threatened to teach him and his master a lesson. DW.1, DW.2 and DW.4 also proved that coach and Manager were beaten and terrorised by Sh. Anand Parkash and Dr. Naresh Mittal in the coaching centre of 16.8.1990 around 4.00 pm. DW.4 proved that SDM asked the coach to bring the notice of suspension of Ruchika and thereafter Manager Kuldip Singh brought the notice on the notice board and then SDM in his presence and in presence of crowd where PW.1, PW.2, PW.5 etc were shouting slogans got recorded on the notice by coach and manger that Ruchika did not commit any act of indiscipline. DW.1 and DW.2 proved that Sh. Manish Arora PW.3 and Vipul Chanana PW.4 and some more people came in the afternoon on 16.8.1990 and took away the register and other articles of HLTA and breaking open of the lock of the suitcase and pitcher was also broken by hooligans. PW.10 also admitted the said fact. Pws have themselves proved that Sh. S.K. Joshi took over the control of coaching

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centre of HLTA and deputed players PW.3 and PW.4 to bring registers of HLTA which was a registered body and latter took away the record without issuing any receipt to Manager. Sh. Anil Dhawan PW.10 stated that when he reached at lawn tennis court on 16.8.1990 then Sh. S.K. Joshi SDM told him that tennis court was being taken over on the instructions of Home Secretary, Haryana. This fact point to the strong probability that SDM got the note regarding the innocence of Ruchika recorded on Ex.P2 by the coach and Manager on the instructions from PW.12 Sh. J.K. Duggal IAS.

17. It is further argued that there was conspiracy to malign the appellant. Neither Sh. S.S. Girhotra nor his son Ashu participated in drafting of memorandum Ex.P1. Ms. Ruchika's signatures Ex.P1 were forged. It was got typed by senior police officers. As per version of the prosecution Ex.P1 was prepared on 16.8.1990 at the residence of Sh. Anand Parkash in which complete incident was mentioned. Ex.P1 is of five pages. Sh. Anand Parkash, his wife Smt. Madhu and Aradhana signed on Ex.P1 after reading the understanding the contents carefully. They stated that whole incident was mentioned in Ex.P1 correctly. Ms. Aradhana PW.13 stated that she had carefully checked contents regarding misbehaviour of Ruchika in Ex.P1, whereas, Ex.P1 mentions vague insinuation, “chedh char” but not the alleged act of molestation as is being proved by the prosecution. All the persons who were present at Sh. Anand Parkash's house signed the memorandum. Had there been any truth in the allegation then Sh. S.C. Girhotra and his son Ashu would have definitely participated. Ruchika's signatures on Ex.P1 are forged which are apparent to the naked eye if compared with Ex.P3. Sh. S.C. Girhotra had signed

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Ex.P3 and had testified regarding Ruchika's signatures on Ex.P3. Sh. Devinder Parsad DW.10, handwriting expert gave the opinion in his report Ex.DW10/1 that signatures on Ex.P1 and Ex.P3 were not made by one and the same person. Even investigating officer admitted in reply to suggestion in the cross-examination that it is correct that signatures of Ruchika on memorandum Ex.P1 were forged. Ex.P1 was signed by three minors namely, Aradhana, Anirudh and Veenu. It was signed by Sh. Anand Parkash, Smt. Madhu, Meenu, Dr. Naresh Mittal, Sh. I.D. Mittal and Sh. C.S. Gupta, all relatives of Sh. Anand Parkash who belong to one community. It was also signed by Sangeet next door neighbour of Sh. Anand Parkash. Smt. Madhu Parkash PW.2 stated that first rough draft of memorandum was prepared at her residence then it was got typed. Sh. Anand Parkash and Sh. S.C. Girhotra stated that they did not dictate the memorandum so it was not got typed before him. Smt. Madhu Parkash PW.2 is an advocate and member of Bar Council of India. She stated that she did not know who got the memorandum typed or who wrote the material/text of the memorandum. Dr. Naresh Gupta PW.5 stated that when he reached at the residence of Sh. Anand Parkash around 2.00 pm there were only 10-15 persons present. Some of them signed on the memorandum in his presence. He also did not dictate it. Thus, it is proved that none of the signatories to Ex.P1 dictated or got the same typed. Question arises that who was pursuing the matter and who was left out from them. The answer is obviously DIG Sh. C.P. Bansal and DSP Shayam Lal Goyal. Thus, it is proved that Sh. C.P. Bansal and DSP Shayam Lal Goyal dictated, and got Ex.P1 typed whereafter persons present at the residence of Sh.Anand Parkash appended their signatures thereon. The direct participation of Sh. C.P. Bansal DIG and Sh S.L. Goyal in drafting

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the memorandum is proved from the fact that on the previous day i.e. on 14.8.1990 they had all around remained with Sh. Anand Parkash etc and Sh. C.P. Bansal had directed them to disperse from House NO. 469, Sector-6, Panchkula in the evening and advised them to meet next day for further action in the matter. The IO stated that decision to prepare the memorandum was taken on 14.8.1990 which was a time when abovesaid Sh. C.P. Bansal and Sh. S.L. Goyal were present. They, Sh. Anand Parkash, Dr. Naresh Mittal and DGP Sh. R.R. Singh were living within a radius of one furlong in the same sector. They both were close to Sh. Anand Parkash. They were patients of Dr. Naresh Mittal. The language of Ex.P1 is very colourful and allegations fanciful indicative of involvement of minds of police officers and advocates. Sh. C.P. Bansal and Sh. S.L. Goyal were working directly under Sh. B.S. Ojha IAS and Sh. J.K. Duggal IAS who were at daggers drawn with the accused because of rivalry between two parallel tennis associations. PW.1 and investigating officer testified that only memorandum Ex.P1 was prepared and was addressed to Home Secretary. It is well known prior appointment is required to be sought from senior officers through their PS on phone before passes are issued. PW.5 stated that a pass in his name and six others were made. Sh. S.C. Girhotra testified that no pass in his name for entry to Secretariat was made so it is proved that Sh. S.C. Girhotra did not go to complained to Home Secretary on 16.8.1990, therefore, Ex.P1 addressed to Home Secretary was taken by Sh.Anand Parkash and Dr. Naresh Mittal from Panchkula for handing the same over to Sh. J.K. Duggal who on receipt of the same advised those people to assemble at tennis court at 5.00 pm and ordered Sh. S.K. Joshi SDM who was neighbour of PW.1 Sh. Anand Parkash, to go and take

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SPS Rathore Vs. CBI

over the centre and take in custody records of HLTA. Accordingly he took over the office of HLTA and some of its record and got recorded from coach and Manager in their hands about the innocence of Ruchika. It proved the planned conspiracy to take over the HLTA. Ex.P1 does not bear receipt and dispatch number of the office of Home Secretary. It does not bear the receipt and dispatch number of the office of PS, CM. It does not bear the receipt and dispatch number of CMO office. It is not written on the same that CM had seen the memorandum. PW.6 testified that he had received X2 and X3 together on 21.8.1990. X3 bears dispatch date as 20.8.1990. Sh. R.R. Singh signed X2 on 21.8.1990. X3 proves that process of obtaining orders of the government started on 17.8.1990 regular orders were sent on 20.8.1990 for holding enquiry for recording statements of all signatories and appellant. The same was acknowledged by the DGP on 21.8.1990. In fact, Ex.P1 was handed over by hand on 16.8.1990 by Sh J.K. Duggal in person to Sh. B.S. Ojha IAS who wrote the orders of holding enquiry by DGP and sent the same to DGP in a cover and thereby procedure to issue such orders of enquiry by the Home Department. They knew that the appellant was on deputation with BBMB and enquiry would only be ordered by the Government of India and not by State Government. The normal prescribed procedure was not followed which proves the malafides of Sh. B.S. Ojha and Sh. J.K. Duggal. It is further argued that learned trial court had wrongly held that Sh. C.P. Bansal DIG and Sh. Shyam Lal Goyal DSP did not participate in the drafting of the memorandum and memorandum was written by layman. The use of the word 'Darinda' in Ex.P1 proved that it was not written by a layman. A layman writes simple complaint. He may exaggerate the incident but never minimise the offence. A layman always writes the

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name of the eye witnesses. Sometimes due to enmity he may include more names as accused persons. The fanciful language and wording of Ex.P1 proves that it was the handy work of police officers and advocate. It is further argued that Aradhana made the statement that Ruchika told the entire story to Sh. S.C. Girhotra on 14.8.1990. Later Aradhana and Ruchika went and told all the facts to PW.1 and PW.2. PW.1, PW.2 and PW.13 signed Ex.P1 dated: 16.8.1990 after reading and understanding the contents thereof carefully. But in Ex.P1 alleged molestation of catching one hand of Ruchika, putting another around her waist and embracing her, are not mentioned. The concocted story was developed by PW.1, PW.2, PW.13 after nine days on 21.8.1990 before Sh. R.R. Singh due to old enmity and with immediate provocation and hostility on account of criminal defamation case under Section 500 IPC instituted on 18.8.1990 against Sh. Anand Parkash and his family.

18. It is further argued that Sh. S.C. Girhotra was lured with money to sign on Ex.P3 on 18.8.1990. Ex.P3 can be treated as first complaint of Sh. S.C. Girhotra and Ruchika to police which was given to SHO PW.10 on 18.8.1990 at about 12.00 hours but in Ex.P3 there is no allegation of molestation and misbehaviour against the appellant. PW.10 Sh. Anil Dhawan, SHO Panchkula went to enquire into the complaint in the evening of 18.8.1990 but Sh. S.C. Girhotra refused to give any statement to him. Ex.P4 which was annexure of Ex.P3 was photocopy. It was wrongly exhibited so it cannot be read in evidence. PW.1 proved that Ex.P3 was prepared on 18.8.1990. PW.15 Sh. S.C. Girhotra made the statement that Ex.P3 was written before him and he had signed on extra sheet Ex.P4. DW.9 proved that Sh. Girhotra had told him that Sh. Anand Parkash had come to him to get his

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signatures on the complaint which he refused but later on his offering money and assurance that his daughter would be reinstated he had signed on the complaint and the memorandum. That is the reason Sh. S.C. Girhotra signed on extra sheet of memorandum Ex.P4 on 18.8.1990 and went to appear before Sh. R.R. Singh on 21.8.1990. It is relevant that Sh. S.C. Girhotra only made statement in the court about the 'abhadra vyohar' but he did not make any statement regarding alleged molestation. From the evidence on the file, it is proved that the accused was falsely implicated in this case by Sh. Anand Parkash and his family who were nursing grudge against the accused. Sh. Anand Parkash acted as a front man and was rewarded by way of his restoration to the rank of Superintending Engineer and elevation to the rank of Chief Engineer on 5.12.1990. He also satiated his old vendetta by celebrating victory function in Ladwa on 24.12.2000 and appeared on Zee TV and Star TV where he had witnessed his father premises being raided by police for satta gambling about 16 years ago. No reasons were mentioned in Ex.P1 as to why girls did not disclose to anyone for two days about the incident. There is unexplained delay of 45 hours on the part of Smt. Madhu Parkash and Sh. Anand Parkash and her relatives and police officers from 6.30 pm on 14.8.1990 till 4.00 pm on 16.8.1990 during which time they prepared the memorandum after full consultation with their relatives and police officers. The delay itself is sufficient to discredit the prosecution story. Sh. S.C. Girhotra did not report the matter to the police post which was about 200-250 yards away from his house. He asked Aradhana to take Ruchika to Smt. Madhu Parkash instead of sending his daughter to real, Nani-Nana, Mami-Mama. Her Nana was DSP CBI. Sh. S.C. Girhotra did not come to meet the appellant when he was

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invited through the letter delivered by chowkidar.

19. It is further argued that learned trial court failed to take into account that Sh. S.C. Girhotra and Sh. Anand Parkash etc conspired to implicate the appellant in the false case at the instance of very senior and ambitious police officer and with the willing support of Sh. J.K. Duggal IAS and Sh. B.S. Ojha IAS. The hostile media willingly joined hands and orchestrated media campaign by publishing false stories and half truth. DW.9 and DW.17 proved the extortion by Sh. S.C. Girhotra. The demand of alleged money by Sh. S.C. Girhotra was not constant and differ from time to time. The learned trial court contradicted its own view that over a period of time memory lapses can happen and actual figure may vary. DW.9 and DW.7 were categorical and consistent during cross-examination that money was demanded and demand was brought down by Sh. Girhotra because appellant was not accepting his proposal. Two cases of corruption were registered against Sh. S.C. Girhotra. He was also convicted in one of the cases which was with regard to fraud, cheating and corruption. Copy of the judgment is Ex.D15. During cross-examination, Sh. S.C. Girhotra, his tape recorded conversation was played to him in full. Sh. S.C. Girhotra spoke to DW.9 Karan Singh that demanding and settling money was like a business for him. On being asked by defence counsel, he refused to get his voice compared with the voice in the tape record before the trial court. Adverse inference has to be drawn against him for his refusal to give voice sample and conclusion drawn that it was his voice in the tape record. Sh. Girhotra's intention was to extort maximum amount of money from appellant that is why he went to varying his demand and also used DW.17 to prevail upon the appellant to

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agree to part with the reduced amount of money. If he had reduced the figure of Rs. 10 lacs from his original demand of the value of a plot, the factum of extortion is still proved. A specific suggestion was given to him that he did not come to meet the appellant on 15.8.1990 because he was intending to extort money from the appellant. Greed for money made him joined the conspiracy against the appellant It is also indicated by his threatening response to DW.2 when he handed over letter to him on 15.8.1990 that is why he joined Sh. Anand Parkash and became active after news report about the proposed legal action by the appellant. Sh. S.C. Girhotra's son also joined the extortion bid after commencement of CBI enquiry under Section 354 of IPC with the threat that they would involve the appellant in Section 306 IPC. Sh. S.C. Girhotra first demanded cost of a plot through a common friend Chaudhary Karan Singh on 8.5.2001 which was refused by answering respondent. Thereafter, Sh. S.C. Girhotra inducted another common friend Sh. M.K. Sisodia. After scaling down his demand of Rs. 10 lacs there was conversation “to openly discuss about the figures of the amount with the answering respondent and that he had stopped them (Anand Parkash etc.) to file the petition in the High Court meanwhile” was tape recorded on 13.9.2001. The appellant rejected his demand.

20. It is further argued that there was clear motivation and grudge of Sh. Anand Parkash and his family members and his relatives to falsely implicate the appellant. Smt. Madhu Parkash is the wife and Aradhana is the daughter of Sh. Anand Parkash. Dr. Naresh Mittal is the son-in-law of sister of Sh. Anand Parkash. There is history of old enmity of Sh. Anand Parkash and his family with the appellant. There were complaints of satta gambling against

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father of Dr. Naresh Mittal who lived in Ladwa District Kurushetra in 1973 where appellant was posted as Superintendent of Police. Police raid was conducted in the house of father of Sh. Anand Parkash on the directions of appellants despite intervention of the local MLA Sh. Shadi Lal Malik DW.6 has proved the said fact. The appellant had already instituted criminal defamation case against them and others and they were summoned as accused. Sh. Anand Parkash was SDO in PWD Haryana in 1973. He had to leave the department because he was caught indulging in corrupt practices and causing loss to Government. An enquiry was ordered against him by the government. Sh. Anand Parkash in his deposition blamed the appellant for the said charge-sheet. It indicates his inimical mind set against the appellant. Sh. Anand Parkash was placed under suspension in 1979 for grave misconduct/corruption etc. He was reverted to the rank of XEN in 1980 . He was dismissed from service in 1982. He was again reverted in 1985. His conduct as reported in his ACRs for 1987-88 read “his reputation for integrity remained poor. He brought

all type of pressure to get personal favour from his

seniors”. In the ACR for 1988-89 his seniors recorded “that he is intriguer number No.1 in the board, and epitome of all ills in the engineering

side. His reputation for integrity remained poor” Same is Ex.DW14/1. In 1990 Sh. Anand Parkash became the front man for various police officers who were working under Sh. B.S. Ojha PS to CM and other service rivals of the appellant. He helped those senior police and IAS officers in revengeful manner for advancing his own service career in fabricating the false memorandum Ex.P1 and thereby he earned the reward by way of promotion to the rank of Chief Engineer within four months despite his adverse record and reports of corruption. In the year 1997

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Sh. Anand Parkash was under Vigilance scanner. A notice was issued to him in enquiry pertaining to acceptance of higher rates of tender beyond his financial powers and departmental action was recommended against him. At that time, he alongwith his family members and relatives had to appear in the court and to seek bail in a defamation case. At that time, DGP Haryana was of the same batch as the appellant. It was expected that appellant would be appointed as next DGP. Therefore, Sh. Anand Parkash deliberately enlisted the help of ambitious police officers who did not want the appellant to become DGP and together with money and support of Dr. Naresh Mittal a criminal Writ Petition 1694/1997 was filed through Smt. Madhu Parkash wife of Sh. Anand Parkash for registration of the appeal against the appellant by annexing forged documents when Hon'ble High Court ordered registration of FIR against the appellant, the Vigilance enquiry and notice pending against Sh. Anand Parkash were also dropped. Smt. Madhu Parkash PW.2 and Aradhana PW.3 wife and daughter of Sh. Anand Parkash have same degree of vindictiveness and enmity towards the appellant. She is advocate but signed Ex.P3 which starts with the words that they did not have knowledge of law. She annexed forged documents with the criminal Writ petition. She is not member any NGO. She claimed to be like Ruchika's mother but in the cross-examination she admitted that she did not visit Ruchika during her illness in PGI nor she attended her cremation. She also made interpolation in document Ex.D6 attached with the challan. Her statement is full of improvements and contradictions. Dr. Naresh Mittal PW.5 is an influential man of Panchkula who has money power and clout with politicians. He is known for having access to influential and powerful people in his capacity as a doctor and distributor of Ayurvedic

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SPS Rathore Vs. CBI

medicines . He is leader of Aggarwal community. He has been involved in five police cases pertaining to cheating, forgery, fabrication of record, 306 IPC etc and assault of police. He is son-in-law of sister of Sh. Anand Parkash so he became enimical towards the appellant. He also threatened that he would have the appellant and his family eliminated. PW.3 and PW.4 were summoned in a criminal defamation case so they stood against the appellant. Sh. B.S. Ojha IAS, PW.14 was the Principal Secretary to CM in 1989-90. He had sent message through Sh. S.K. Saxena IAS the then treasurer of HLTA that the appellant should step down for the Presidentship of HLTA. Whereupon meeting of the executive body was held under the Chairmanship of appellant and Sh. Ojha's proposal was rejected. The proceedings are Ex.D16/1. He was upset and he conveyed verbal warning through Sh S.K. Saxena IAS that he would not left Mr. Rathore function and Mr. Rathore would have faced the consequences. Then Governor of Haryana HE Sh. Brari who was Chief Patron of HLTA was apprised of the said happenings. DW.16 proved that Sh. B.S. Ojha got the parallel tennis body HTA registered in 1989-90 and installed Sh. J.K. Duggal IAS Home Secretary as its President. There was total hostility between appellant and Sh. J.K. Duggal DW.12 in 1990 since they were heading rival tennis bodies in the State. The appellant had also challenged the registration of HLTA before the Registrar Cooperative Societies at the time of registration. There was litigation against HTA, the appellant also got amended civil suit No. 230/1989 on 2.9.1990 wherein, Sh. J.K. Duggal was arraigned as defendant. The memorandum Ex.P1 was presented at 3.30 pm on 16.8.1990 on Sh. J.K. Duggal's directions, SDM reached at the coaching centre of HLTA at 5.00 pm and took over the coaching centre and took into possession the record. The

35

SPS Rathore Vs. CBI

malafides of SDM's action is reflected by the fact that he forced the coach and Manager to write on the notice that Ruchika had not committed any act of indiscipline and handed over the said document to Sh. Anand Parkash. It also proves that Sh. Anand Parkash was acting as leader and front man and Sh. S.K. Joshi was also neighbour of Sh. Anand Parkash and was residing two house away from house of Sh. Anand Parkash. Sh. C.P. Bansal, IPS, DIG was working as CM, Flying Squad and Sh. S.L. Goyal DSP were directly working under Sh. J.K. Duggal and Sh. B.S. Ojha. Sh. C.P. Bansal had in service jealously with the appellant and in order to please his most powerful boss in the government, he enthusiastically participated and guided the drafting of the false memorandum to make out a complaint of moral turpitude against the appellant. Both of them remained associated with PW.1 from 14.8.1990. Sh. R.R. Sngh was living in the same area where Sh. Anand Parkash was residing. He was interested and was hostile towards the appellant. The appellant was his successor in Rohtak district as senior Superintendent of Police. The appellant had refused to allow harvesting of the crop in the SP's residence by Sh. R.R. Singh which had caused great annoyance to him. Sh. R.R. Singh PW.6 admitted in the cross-examination that he told CBI that he might have asked Smt. Rathore to accommodate him to harvest the crop at Rohtak at his residence but Mr. Rathore refused to do so. The appellant was sent on deputation to BBMB after Sh.R.R. Singh had taken over as DGP Haryana. Sh. R.R. Singh created incriminating evidence and sent one sided motivated report in violation of the principles of natural justice. The other name of Aradhana is Reemu but Sh. R.R. Singh made Aradhana and Reemu as two different persons while summing up allegations in his enquiry report since this was the

36

SPS Rathore Vs. CBI

only way to make Reemu as sathi khiladi as mentioned in Ex.P1. It was in the knowledge of Sh. R.R. Singh that there had never been any complaint of misbehaviour by Sh. Rathore against any lady prior to 12.8.1990. He also admitted the said fact. He also admitted that he had received a memorandum on 26.8.1990 in which it was stated that Sh. Rathore was victim of high level conspiracy and Sh. Anand Parkash and Dr. Naresh Mittal were touts. He ignored those crucial facts and did not ascertain the incidents of Sh. Anand Parkash, Dr. Naresh Mittal and Sh. S.C. Girhotra. The government had directed Sh. R.R. Singh to examine all the signatories to the memorandum and also the appellant but he examined only five out of the 11 persons who had signed Ex.P1. He did not examine the appellant and also refused to examine coach, Manager, Paltoo and other spot witnesses who had been produced before him on 26.8.1990 at the place of enquiry. He also turned down the appellant's request for spot inspection of the scene of alleged occurrence. It is further argued that media became enimical against the appellant due to filing of criminal defamation case against the media people also for publishing defamatory reports in the press on 17.8.1990 and 18.8.1990 they joined hands with Sh. Anand Parkash etc. When trial under Section 354 IPC commenced in December, 2000, Sh. Anand Parkash and Smt. Madhu Parkash started spreading concocted stories with the help of media which was seriously prejudicing the trial of the appellant. The appellant had to approach the Hon'ble High Court through CROCP NO. 38 of 2001 and contempt notices were issued to Smt. Madhu Parkash and Sh. Anand Parkash etc. The petition was admitted and is pending for regular hearing. The media alongwith Sh. Anand Parkash, Aradhana and Sh. S.C. Girhotra built up a formidable hype by launching organised and malicious hate

37

SPS Rathore Vs. CBI

campaign against the appellant after pronouncement of orders on 21.12.2009 which ultimately led to murderous assault on the appellant outside the court premises.

21. It is further argued that the prosecution failed to prove the alleged visit of appellant to Ruchika's house on 11.8.1990. Sh S.C. Girhotra PW.15 ws confronted with his statement and Ex.D17 where he only deposed that accused never came to his house. So version of the prosecution that alleged act was pre mediated as appellant visited Ruchika's house on 11.8.1990 is proved false.

22. It is further argued that in memorandum Ex.P1 the name of Aradhana as Saathi khiladi is not written. Aradhana is not proved to be eye witness. She was introduced afterwards. PW.1 deposed that Aradhana had read and understood the contents of the memorandum carefully and thereafter she signed the memorandum. Had she been the sathi khiladi then she would have insisted upon writing her name in Ex.P1 before signing. Paltoo and coach are the two persons who could tell about the sathi khiladi since Aradhana admitted their presence in/around HLTA office/ House No. 469/6, Panchkula. The prosecution did not bring the coach Thomas in the witness box. Although statement of the coach was recorded by CBI as admitted in the admission/denial statement. Another player Ruchi Girotra had signed at point H of Ex.P3. At point-I signatures of her mother K. Girotra are there. Ruchi also signed at page-7 of Ex.P4. At the bottom of her signatures address is noted as 641, Sector-6. Sh. S.C. Girhotra admitted her as sathi khiladi. DW.16 also deposed that one Ruchi Girotra her cousin was the closest friend of Ruchika Girhotra. Prosecution did not cross-examine him on

38

SPS Rathore Vs. CBI

this point. The investigating officer stated that he did not examine Ruchi. The aforesaid circumstances lead to strong probability that this Ruchi might have been sathi khiladi mentioned in the memorandum. When two views are possible, then one favouring the accused is to be accepted.

23. It is further argued that the story propounded by the prosecution itself disprove intention. The prosecution story that Ruchika came to meet the appellant at 12.00 hours in HLTA office on asking of the accused and accused insisted Aradhana and Ruchika to come inside the HLTA office where accused sat down in his chair and Aradhana sat down in another chair across the table and Ruchika stood next to her. Thereafter, accused asked Aradhana to call the coach who should be in the back yard. The document Ex.PW8/A itself ruled out any alleged intention to misbehave with Ruchika. Ex.PW8/A shows that back yard is only 29.5 ft. away from the point where Aradhana was sitted. The normal and shortest route to backyard is through the gallery running alongwith the adjoining rooms which were being used by the coach and the Manager as per charge-sheets. If the accused had any intention of misbehaving with Ruchika he would never had called Ruchika at 12.00 hours in a house which was under construction and labour was moving all around as the construction activity was at full swing at that time. If there were any ill intention the accused would have called her to HLTA office after 5.00 pm when construction work gets over and local labour goes away. The HLTA staff was in the tennis coaching centre providing more privacy in the house at that time. He would have sent away Aradhana to call the coach from the coaching centre which was more than one furlong away from the house or he would have

39

SPS Rathore Vs. CBI

taken both the girls to any other room in the building. The appellant was aware of the availability of time of one minute before Aradhana and coach would return to HLTA office. PW.3 Manish Arora also stated that distance between tennis courts and HLTA office was 800-900 metres. Learned trial court committed error in fact, by considering that Aradhana was asked to go to the tennis court in the centre (which was more than one furlong away). As per version of the prosecution the girls remained quite for more than two days. Ruchika did not show any reaction in HLTA office. She did not mention about the alleged incident to coach or Paltoo or any other worker in the house in question.

24. It is further argued that allegation of act of molestation by the accused is totally false. It was improbable to commit the offence at that very moment and at that very spot. PW.2 stated that HLTA office was opened with no door and connecting gallery in the rear was open without doors. In Ex.P1 it is written that appellant told Aradhana while directing her to call the coach that 'coach kahi peeche honge', therefore, Aradhana will naturally go from the gallery to the backyard from point-B and she will check on the way to backyard about presence of coach in his living room on the way. When she does not find the coach in the adjoining room then she proceed to the backyard of the house and then reach point-E from where she will return from the same route which is the shortest and natural route. While returning she will first enter the HLTA office before reaching point-G in Ex.PW8/A. If Aradhana was present in HLTA office and her version were true then she would have seen the alleged incident on entering HLTA office itself much before reaching point-G. A pond is shown in the basement of the under construction house, in

40

SPS Rathore Vs. CBI

Ex.PW8/A it is a major hurdle for choosing any other route for reaching point-E. Besides house being under construction, workers were moving around dinning hall and main bedroom about whom Aradhana is totally silent. Only garage area, housing HLTA office and its officials was the neatest. The prosecution has not proved the route/path Aradhana followed in going to call the coach from Point-B to E. The story made by Aradhana is totally concocted and she is lying and was not present in the HLTA office when Ruchika arrived to meet appellant. Ex.PW8/A and its legend is prepared only pointing to Aradhana and proved by her in the court. Initially, the appellant is shown sitting in his chair at Point-A and Aradhana in the chair at Point-B and Ruchika stood near Aradhana at Point-C. On Aradhana's return (after calling the coach) the appellant was at Point-I and Ruchika was point-H as per statement of PW.8, AEE, PWD Sh. Sompal. The distance between A and I is 2 to 2½ ft. The accused cannot fall down in his chair on seeing Aradhana. There is an office table between Point-A and B. The size of the office table is not mentioned in Ex.PW8/A. The map is also not as per scale. The DW.1 testified the size of table as 4'x 3' ft which stands proved because he was not cross-examined at that point. As per Ex.PW8/A the width of HLTA office is only 6 ft. The space between table and the common wall of the adjoining room is less than 2 ft because some space has also to be left between office table and the glass doors/windows of HLTA office. The Point-H where Ruchika has been shown to be standing is situated in this narrow space, therefore, story of Ruchika being embraced at Point-H and she was struggling to release herself in this narrow space is improbable and concocted. The prosecution has not explained, nor Ruchika in her alleged narration to Aradhana after coming out of

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SPS Rathore Vs. CBI

HLTA office on 12.8.1990 has explained how and why she went from Point-C to Point-H. The learned trial court committed error while dealing with the issue of falling down of the accused in the chair on surmises and conjectures. That distance of 2-3 ft is not such a big distance and same can be covered in one or two steps. It is not the case of the prosecution that accused moved back and then sat in the chair. The learned trial court failed to take into consideration that in criminal law strict proof is required for proving a fact. PW.1 testified that there were glazing (transparent glass widows) in the front portion of HLTA office . Many labourers were working there and were moving all around. Gun man Ved Parkash was present with the accused in HLTA office. Sh. Ram Piare chowkidar-cum-servant was also present and was working at a distance of 7-8 ft from the HLTA office. The HLTA office was approachable from both front and rear side. Aradhana covered distance of approximately 88 ft. in reaching Point-E. If she had gone to Point-F where coach was standing. She had to cover another 20 ft approximately. Aradhana young 13 years old tennis trainee would not have taken more than a minute or so in going and returning to HLTA office. The appellant also knows the consequences of criminal act of molestation on his service career and his social embarrassment if anyone including Aradhana and coach enter HLTA office from either side of the house. Even a person of average intelligence would not remotely think of acting in the manner as alleged. Sh. R.S. Chauhan OSD to CM Haryana was living with his family right in front of the HLTA office. Sh. Anand Parkash was SE in Haryana Government. He alongwith his son was with Sh. Anand Parkash etc on the evening of 14.8.1990 showing his closeness with Aradhana's parents. If any act of misdemeanour had taken place in HLTA office on

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SPS Rathore Vs. CBI

12.8.1990 it would have been immediately reported by Aradhana and Ruchika to Sh. R.S. Chauhan after leaving HLTA office. The learned trial court wrongly concluded that incident is not improbable and failed to appreciate evidence as to whether there was time/opportunity for commission of alleged act. Learned trial court proceeded with the assumption of presence of Aradhana in the HLTA office when Ruchika met the appellant but prosecution failed to prove the said fact beyond reasonable doubt.

25. It is further argued that the witnesses of the prosecution themselves proved the flawless and high reputation of the appellant regarding integrity and high moral character. DW.8 testified that the appellant was awarded president's matter and other decorations which are only awarded if officer's integrity and high moral character is certified. Learned trial court failed to appreciate said fact. In case Bhagwan Sarup Lal Bishan Lal Vs. State of Maharashtra and others AIR 1965, Supreme Court 682, it was held that evidence of good reputation and general good disposition is relevant in criminal proceedings. It may be useful in doubtful cases to tilt the balance in favour of the accused. Ruchika was of the age of appellant's daughter and her school mate too. The appellant was senior IPS officer, 48 years old, happily living with his family consisting of his wife and three grown up children. DW.16 has proved that appellant's wife was Vice President of HLTA. She used to play tennis with the appellant and remained present in all HLTA tournaments but no complaint was made by any of these girls to her. The Ruchika was about 15 1/2 years old and convent educated. Her grandfather had been DSP CBI of Ambala. She would have shown violent reaction or raised any protest or alarm knowing that her friend was around if any such

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SPS Rathore Vs. CBI

occurrence had taken place. Similarly, conduct of Aradhana as alleged eye witness as per prosecution case in remaining silent spectator and not even uttering a single word prove that no alleged act of molestation had taken place. Aradhana who is 13 years old girl had no cause of any personal embarrassment in sharing the information regarding alleged offence with her parents. The argument that informing parents would have involved the parents of the girls into false cases at the behest of the appellant is not tenable since parents are the best friends to keep secrecy and decided about the future prospectus. Both Ruchika and Aradhana went to play tennis again on 14.8.1990 at the usual time knowing fully well that tennis coaching centre was still under over all control of the appellant who used to visit the courts in the evening. Their conduct after the alleged incident is very unnatural and constitute a major infirmity in the prosecution case. The father and brother of Ruchika and parents of Aradhana did not file any report with the police or in the court for two days though the police post is very close to the house of Ruchika. The subsequent moves by the parents of Aradhana and senior police officer is very relevant. The complaint was drafted after five days which was got dictated and typed by Sh. C.P. Bansal, DIG and Sh. S.L. Goyal DSP with the assistance of Advocate Madhu.

26. The counsel for the appellant further argued that learned trial court failed to appreciate the evidence that Aradhana is a highly interested and unreliable witness whose evidence is full of infirmities. There was old enmity between Aradhana's family and appellant. The immediate cause of vindictiveness had arisen because the accused had filed the criminal defamation case under Section 500

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SPS Rathore Vs. CBI

IPC on 18.8.1990 against Aradhana and her family. Aradhana had signed Ex.P1 which is FIR but name of the Aradhana as eye witness is not mentioned. Aradhana became eye witness on 21.8.1990 after filing of criminal defamation case. The prosecution has failed to prove that Aradhana was present in HLTA office on 12.8.1990. Total six statements of Aradhana were recorded. In Ex.P1 the description of alleged incident is described as “Chedh char”. In the letter written to SHO Ex.P3 alleged incident is not mentioned. In the statement dated: 21.8.1990 Ex.PW13/A recorded by Sh. R.R. Singh her statement is that the accused caught the hand of Ruchika and put one arm around her waist. In the statement recorded under Section 161 Cr.P.C by IO, CBI she improved the story by saying that after putting arm around the waist, the accused hugged her. The legend of sketch plan Ex.PW8/A dated: 27.1.2000 prove that incident is improbable. In 2005 her statement was recorded in CBI court at Ambala. She tried to colour her story by using words that appellant had tied one hand of Ruchika and was embracing her tightly with his chest. At the time of deposition in the court her conduct was not straight forward. She avoided giving answer about the name of the person written at Point-I of Ex.P1. Learned trial court noted her conduct that after waiting for 3-4 minutes she stated that she could not recognise. Aradhana invented a new witness Paltoo in HLTA office before learned trial court in 2005. Prior to that her consistent stand was that there was one person in HLTA office on 12.8.1990 who she also claimed to have gone and got the chair in HLTA office. But she obviously did not know his name. As per prosecution story Aradhana later sent the same person to call the coach. The substitution of Paltoo in place of one person is a material improvement and was made with an ulterior motive.

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SPS Rathore Vs. CBI

The said person is the only admitted spot witness who could clarify as to two specific chain of events i.e. Aradhana was on the spot with Ruchika and Aradhana left Ruchika alone with the appellant and went to call the coach. Clever action of the Aradhana in substituting Paltoo in place of one person knowing that Paltoo was not examined under Section 161 Cr.P.C., is to prejudice the defence and prevent the court from knowing the real truth. DW.1, DW.2 and DW.3 who withstood the length cross-examination have proved that Aradhana was not in HLTA office when Ruchika met the appellant. The learned trial court failed to appreciate the improvement made by Aradhana. The story of the prosecution of avoiding accused in coaching centre on 14.8.1990 is wrong. According to prosecution story the girls went to play tennis on 14.8.1990 at 4.30 pm in order to avoid Sh. Rathore who used to come to play at 6.30 pm. Aradhana admitted her signatures on Ex.DW13 in which it is mentioned her playing time as 4.30 to 5.30 pm, Group-A. DW.5 and DW.16 have also proved the grouping timings. In the cross-examination Aradhana admitted that she and Ruchika met Paltoo at 6.30 pm on 14.8.1990. She has spoken a lie in the court and gave false statement regarding avoidance of Sh. Rathore on 14.8.1990. She also made false deposition regarding time of departure of Ruchika from her house for HLTA office. Sh. S.C. Girhotra made statement that Ruchika had gone from their house around 15-20 minutes before 12.00 O'clock whereas, Aradhana made statement that she met Ruchika at 11.00 O'clock on 12.8.1990 is incorrect. She deposed that Ruchika met and talked about appellant's visit, then they went to coaching centre and played tennis in the centre, whereafter, they both went to HLTA office. But Ruchika would take about 15 minutes in reaching Aradhana's house, 15-20 minutes staying and talking

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with Aradhana, 10-15 minutes in reaching coaching centre and then half an hour in playing tennis in the coaching centre and 10-15 minutes reaching the HLTA office from there. Then Ruchika and Aradhana would reach HLTA office around 1.30 pm instead of 12.00 hours. Learned trial court dismissed the said major contradictions. Sh. S.C. Girhotra who had seen Ruchika going from his house made statement that Ruchika used to go to play in the evening and never in the morning. Ruchika had gone empty handed on 12.8.1990. Ruchika had her own tennis Racquet which she used to take with her. So statement of Aradhana that she went with Ruchika to play tennis is wrong. Aradhana made statement that original of Ex.P4 was given to SHO but her father made statement that photocopy was given to SHO. In Ex.PW8/A Aradhana wrongly got the front portion of the HLTA office at X shown as cement wall on 27.1.2000. She falsely deposed that she was having close friendship with Ruchika. In the cross-examination she admitted that she did not know household name of Ruchika which was Ruby. She wrongly mentioned the address house number of Ruchika. She did not know that Ruchika's father was bank Manager. She admitted that she did not visit her when she was admitted in the hospital. She also did not attend her cremation. Evidence of being close friend was given in order to prove that she was sathi khiladi. She made false deposition regarding acquaintance with Sh. S.C. Girhotra. PW.15 who stated that he came to know Sh. Anand Parkash only after the incident. She made false statement regarding meeting Sh. J.K. Duggal IAS on 16.8.1990. Sh. J.K. Duggal PW.12 stated that some persons had come to meet him on 16.8.1990 but there were no ladies. In her statement under Section 161 Cr.P.C., she stated that Ruchika told her that sarcastic remarks were made against her. Aradhana had improved

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SPS Rathore Vs. CBI

her statement in the court that sarcastic remarks were passed against Ruchika in her presence. Aradhana stated that Ruchika went to Sh R.R. Singh on 21.8.1990 with her and her mother, whereas Sh. S.C. Girhotra says Ruchika went to Sh. R.R. Singh with him. She did not make statement before Sh. R.R. Singh that her mother consoled Ruchika but in the court she made improvement that her mother consoled Ruchika. She made wrong statement regarding signatures of Ruchika on Ex.P1 and her presence in her house on 15.8.1990/16.8.1990. She did not mention about the notes written by Sh. Kuldip Singh Manager and coach on Ex.P2 on the asking of SDM in Ex.P3 and her statement Ex.PW13/A before Sh. R.R. Singh and under Section 161 Cr.P.C before IO. Ex.P2 was is in unauthorised custody of his father. Counsel for the appellant also pointed out that she made further improvements over all earlier two statements i.e. Ex.P1 dated: 16.8.1990 and Ex.P3/P4 dated: 18.8.1990, as under :

“Jab main va Ruchika HLTA ke office main pahunche to

Doshi bahar Khade thee hamen deckhkar office main jane

ke liye kaha jis par Ruchika ne kaha bahar khade hokar

baat kar lete hai unhone jor dekar ander aane ko kaha

hum unke pichhe office ke liye chal diye.

Office main pahunchne par unhone kursi mangwai jis par

main baith gai vo pahle se ak table va ak kursi rakhi hui

thee va us samai Ruchika mere sath khadi thee va unhone

dusri kursi lane ke lye mana kar diya.

Uske baad mujhe SPS Rathore ne Mr. R. Thamus coach

ko Bulane ke liye Kaha.

Main Ruchika ko vahin chhodkar coach ko bulane chali

gayee.

Maine uneh bataya ki coach ne aane se mana kar diya

hai, Unhone jor se rudely kaha ke jao or uneh personally

bula kar lao or kaho ki unhone use bulaya hai.

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Yeh sunkar main bhi Ruchika ke peechhe bhag gai.

Voh roti ja rahi three va bhagti ja rahi thee.

Mai bhag kar uske paas pahunchi to voh muje dekh jor

jor se rone lagi.

Maine use puchha ki kya hua to usne muje bataya kijab

main coach ko bulane gaye thee to Rathore Sahib ne uska

hath pakda jo usne bahut muskil se chudaya phihr dosi

apni kursi se utha va uska ak hath jor se pakda to dusra

hath uski kammar main dala or use khinch kar apni chest

se chipka liya or vah lagatar dosi ko apne se door

dhakelene ki koshis karti rahi va unhone uske sath

misbehave kiya itne main, main aa gaye va mere aane

par unhone usko chhod diya.

Ruchika ne muje puchha ki ye baat apne parents ko

batani chaiya, hum dono mai kuchh der baat hui or

humne decide kiya ki hum apne parent ko kuchh na

batayen kyonki vo hamari family ko kisi trah ka nuksan

pahuncha sakte hai.

Iske bad hum done mere ghar gaye jahan se Ruchka apne

ghar gaye.

Iske baad hum dono Ruchika ke ghar gaye.

Phir Ruchika ne muje kaha ki Sh. Rathore ne use khud

bulaya hai or uske irade theek nahi lagte jo use molesta

karane ke liye bulaya hai, par hamne apne parents ko

batane ka faisla kiya va Ruchika ne yah kaha ke hamne

abhi tak apne parents ko na bataya jiski vajah se Mr.

Rathore encourage feel kar rahe hain.

Ruchika ne apne pita ko incident batana shuru kiya aur

vah beech main he ro padi.

Ruchika ke pita ne muje Ruchika ko apni mother ke pass

le jane ko kaha kyonki unki mata na hai or vah meri mata

se khulkar baat kah payagi our unhone yah bhi kaha ki

vah thodi dher main pichhe-pichhe hamare gar aa

jayangi.

Jab hum ghar pahunche meri mother ghar par hi thee va

unhe dekh khar Ruchika rone lagi.

Ruchika ne unhe Rathere sir ke 12.8.1990 wali incident

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SPS Rathore Vs. CBI

bare main vistar se bataya.

Meri mata ne Ruchika se uske pita ke bare puchha to

maine unhe bataya ki voh hamare ghar hi aa rahe hai va

mere pitaji bhi us din ghar par the or meri mother ne sari

baat unhe bataya va unhone Ruchika se dubara sari baat

puchhi or mere parents ne humse puchha ki Rathore sir us

samai khan honge jis par maine bataya ki vah lawn tennis

court main hone kyonki 6.30-7.00 pm ka samai tha.

Mare ghar ke nazdeek he hame Ruchika ke pita kuchh

neighbour va bache mile jab main Ruchika va mere mata

pita lawn tennis ki taraf ja rahe the.

Vahan se hum sab log HLTA gaye jaha hame pata laga ki

Rathore sir kuchh samai pahle HLTA office chale gaya

hain. Hum sab log HLTA ke office jane lage va kuchh

sathi khiladi jinme Vipul Chanana va Manish Arora the

hamare sath chal pade.”

27. It is further argued that the learned trial court had wrongly relied upon the testimony of Aradhana and wrongly applied the ratio of the case Narain Chetan Ram Chaudhary Vs. State of Maharashtra. In the said case conviction was on the basis of approver's testimony but in the instant case there was no approver, single alleged eye witness and there was previous enmity/hostility of the witnesses and the accused in the instant case. Since the name of Aradhana is not mentioned as eye witness in Ex.P1 and there are vague allegation of 'Chedh char' in Ex.P1 so prosecution was required to prove beyond reasonable doubt presence of Aradhana in HLTA office on 12.8.1990. Since prosecution has failed to prove the same so no reliance can be placed on the testimony of Aradhana and learned trial court had wrongly considered her statement as gospel truth. Learned trial court wrongly held that there was no person inside the room or near the room and wrongly did not believe the defence version.

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SPS Rathore Vs. CBI

28. It is further argued that the prosecution has failed to examine three important witnesses namely, coach,Thomas, ball-picker Paltoo and Manager hailing from Tamil Nadu, Bihar and Uttrakhand respectively and belonging to different religions i.e. Christian and Hindu respectively. They were totally independent witnesses. Sh. Paltoo who had gone to call Ruchika on 12.8.1990 and again on 14.8.1990 was required to be examined. The coach could prove the veracity of version of Aradhana that she was sathi khiladi. The prosecution has failed to examine Manager Kuldip Singh who was present in the tennis coaching centre on 16.8.1990. The CBI is having jurisdiction in the entire country so version of the prosecution that Paltoo was not available cannot be accepted. Coach Thomas and Manager Kuldip Singh were joined in the investigation. The adverse inference is required to be drawn against the prosecution for withholding the material witnesses. A list of 12 witnesses who were present at the spot was given to Sh. R.R. Singh on 26.8.1990 and said fact is admitted by CBI. None of the said witness is examined.

29. It is further argued that learned trial court wrongly held that enquiry conducted by Sh.R.R. Singh was a fact finding enquiry and witnesses of the accused were not required to be examined in said type of enquiry and explanation given by Sh. R.R. Singh that Sh. SPS Rathore pressed to record his statement in presence of advocate so he was not examined. There is no law which says that it is a fact finding enquiry. The accused cannot be allowed to give his statement in presence of an advocate and witnesses of the accused are not to be examined. Sh.R.R. Singh even violate the orders passed by the government. He

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examined only 5 of the 11 persons who had signed Ex.P1. The presumption is that remaining six witnesses would not have supported the version of the prosecution. He also did not record statement of accused and his witnesses. Since appellant was posted in BBMB and was on deputation with the Ministry of Power, Government of India, so enquiry ordered by the Chief Minister Haryana to enquire into the conduct of the appellant is without jurisdiction. Learned trial court has wrongly held the statement of witnesses recorded by Sh. R.R. Singh are admissible under Section 157 of the Indian Evidence Act. It is wrongly held that Sh. R.R. Singh derive powers from Section 36 Cr.P.C. If he had derived powers under Section 36 Cr.P.C then any statement made before him will be treated at par with statement recorded by the police under Section 161 Cr.P. C. which can only be used for the purpose of contradiction and not corroboration. The learned trial court has wrongly decided the question of law with regard to previous statements recorded by Sh.R.R. Singh and applicability of Section 157 of the Evidence Act and Section 6 of the Evidence Act. The court wrongly applied the ratio of case Rameshwar Vs. State of Rajasthan AIR 1952 Supreme Court 3768. Ms. Aradhana's statement before Sh. R.R. Singh was made on 21.8.1990 after 9 days. Said statement was not made at the first available opportunity. Within those 9 days she got time and opportunity to tailor her statement. Learned trial court failed to examine the law cited by the defence. The learned trial court had wrongly held that girls were pygmies before Rathore who also took a stand in the writ that he was scared from Haryana police. The investigation be handed over to any other agency. The appellant had himself sought investigation by CBI since very senior police officer and very senior IAS officers were involved in the

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SPS Rathore Vs. CBI

frame up against him. They were went upon marring his brilliant service career besides removing from Presidentship of HLTA. Learned trial court had wrongly held that statement of Aradhana @ Reemu is well admissible in evidence since she had seen the entire incident and Ruchika explained the incident immediately after the incident. Since presence of Aradhana is not proved at the spot on 12.8.1990 so her statement could not be relied upon. The factum of speech between Ruchika and Aradhana was brought in after 9 days and that too after launching of criminal defamation case against Aradhana and her parents. There was total material improvement and statement of Aradhana cannot be relied upon. Alleged narration of incident by Ruchika to Aradhana in reply to Aradhana's query as to what happened is also not admissible as resgestae under Section 6 of the Evidence Act because it is hearsay after thought. It must be spontaneous statement during the transaction closely associated with the thing being done for making it admissible. It cannot be narration of past event in answer to a query or after elapse of time. The rule of resgestae is an exception to the general rule that hearsay evidence is not admissible. It is on account of spontaneity and immediacy of such statement or fact in relation to the fact in issue and such statement must be part of such transaction. If there is any slight interval for fabrication then the statement is not part of resgestae. In the instant case the statement was made after time elapsed and on enquiry so is not admissible. The learned trial court wrongly applied the yardstick of aggressive allegations for adjudicating the false implication of the appellant. There can be no standard laid down as to what kind of allegations may be treated by the court as suspicious. The false implication and aggressiveness may have to be

53

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informed from the subsequent conduct of Aradhana and her parents in dealing with present case of alleged molestation. The subsequent aggressive action of Aradhana etc prove that appellant was falsely implicated. Smt. Madhu Parkash in connivance with her advocate made interpolation in the copy of the writ petition supplied to the appellant by adding one line that appellant had made life of Ruchika so miserable that she committed suicide. Separate complaint under Section 340 Cr.P.C. is also pending. Mother of Aradhana filed an application for adding Section 306 IPC before CBI court on 15.10.2001. The language of Ex.P1 was intentionally made flowery so that vague allegations can be stretched to any limits and any convenient person can be used as eye witness. Aradhana stated in the cross-examination that she had no personal knowledge that appellant had managed 40-50 people for took out the procession. She also stated that some people used to follow Ruchika. At many times they passed sarcastic remarks against Ruchika in her presence. In the cross-examination she stated that she told the same to IO but the CBI wrote whatever they thought correct. The learned trial court made contradictory observation. If the accused had been so fearless and daredevil to hug a girl in the broad day light then observation of learned trial court that accused became nervous and fell down on the chair cannot be accepted. Aradhana is a 10th class student of DAV school. Her entire conversation is in Hindi. Even the accused is relied to be continued his dialogues in Hindi. There was no change in audience or situation which could make the appellant to suddenly switch over to English from Hindi. If Aradhana was stunned then she could not catch each and every word spoken in English so Ex.P1 is proved to be handy work of joint mind of advocates and senior police office for making plausible story

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after four days.

30. It is further argued that there is delay of three days on the part of Aradhana in giving information about the alleged incident. There was unexplained delay of 45 hours on the part of Smt. Madhu Parkash and Sh. Anand Parkash and her relatives in giving information. Sh. R.R. Singh submitted report on 3.9.1990 and there is unexplained delay of 7 years when writ was filed by Smt. Madhu Parkash. There is no document that any effort was made by the complainant for lodging the FIR from 3.9.1990 to 27.11.1990. Learned trial court wrongly held that the prosecution cannot be blamed for the delay. The learned counsel for the accused has relied on various judgments on the question delay, improvement made by the witness, antecedents of the prosecution witnesses, reputation, improbable story, adverse inference, conviction based on testimony of sole witnesses, expert evidence, equal treatment for defence witnesses, under Section 6 of the Indian Evidence Act, under Section 157 of the Indian Evidence Act and on the question if two views are possible then view favourable to the accused should be considered. The said citations are as under :

“Ramjag & others Vs. The State of UP AIR 1974 SC 606; Awdesh & Anr Vs. State of MP (1988)2 Supreme C ourt Cases 557; Devi Lal Vs. State of Haryana 1999(ii) All India Criminal Reporter 701; State of Punjab Vs. Ajaib Singh and others 2005 SCC (Crl.) 43; Gorle S. Naidu Vs. State of A.P. And others (2003) 12 Supreme Court Cases 449; Brajbandu Nail & Ors Vs. State 1975 Crl. Law Journal 1933; Thulia Kali Vs. The State AIR 1973 Supreme Court Cases 501; Bhag Singh Vs. State of Haryana 1979 PLR Vol. LXXXI 265; Vidhya Dharan Vs. State of Kerala 2004 SCC (Crl.) 260; State of Himachal Pradesh Vs. Rakesh Kumar 1999 Vol.1, All India Criminal Reporter 406; Piara Singh

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Vs. State of Punjab 2000(1) 493; Raghu Nandan Vs. State of MP 2007(4) Criminal Court Cases 498; Maha Raj Deen and others Vs. The State 1996 Crl. Law Journal 506; Tej Singh and another Vs. State of Rajasthan 1995 Crl. Law Journal 1944; Hasan Murtja Vs. State of Haryana (2002) 3 SCC-1; S. Gopal Reddy Vs. State of A.P. 1996 Crl.L. J. 3237; Bhagwan Sarup Lal Bishan Lal Vs. State of Maharashtra & others AIR 1965 Superme Court 682; Pandu Rang Sita Ram Vs. State of Maharashtra 2005 Vol.1, RCR (Crl.) 858; Harjana Therepala Vs. PP High Court of AP 2002 Vol.3 RCR (Crl.) 861; Habib Mohd. Vs. State of Hyderabad AIR 1954 SC-51; Kapur Singh Rani Vs. State of Delhi 2006 Vol.1 RCR (Crl.) 943; Partap Singh & other Vs. State of Rajasthan 2007 Vol.3 Criminal Court Cases 129; State of Rajasthan Vs. Om Parkash 2007 Vol.4, Criminal court Cases 134; Ram Krishan Madhu Sudan Nayar Vs. State of Maharashtra AIR 2008 Supreme Court 927; Kartik Malhar Vs. State of Bihar 1995 Vol.3, All India Criminal Law Report 622; Badri Vs. State of Rajasthan AIR 1976 SC 560; Madhu Yadav Vs. State of Bihar 2002(2) RCR (Crl.) 770; Gope LakshmiChand Badlani Vs. Oriental Bank of Commerce & other 2002 Voo.5 SLR 68; Anil Sharma and others Vs. State of Jharkhand 2004 Supreme Court Cases (Crl.) 1706; Dwarka Dass Vs. State of Haryana 2002(4) RCR 794; The President Shichi Vihar Vs. Yellaiah AIR 1960AP 148; M/s Jayant Vitamins Ltd. Vs. Chaintanyakumar & another 1992 Crl. L.J. 3450; Narain Chetan Ram Chaoudhar Vs. State of Maharashtra Crl. Appeal No. 25-26 of 2000.

31. The learned counsel for the appellant has submitted that judgment passed by learned trial court be set aside and appellant be acquitted of the charge framed against him.

32. The learned PP for the CBI has argued that the prosecution examined sixteen witnesses and proved the case against the accused beyond shadow of reasonable doubt. There is no dispute that office of HLTA was situated in the garage of house of the

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accused. Ms. Aradhana @ Reemu (PW.13) Mr. Manish Arora PW.3, Mr. Vipul Chanana PW.4 and Ms. Ruchika since deceased were the members of association and used to play tennis in the lawn tennis court. Father of Ruchika Sh. S.C.Girhotra PW.15 has proved that accused visited his house on 11.8.1990 and told him that he came to know that he was sending his daughter Ruchika to Canada and requested him not to send her abroad as she was very good player and would arrange special coaching for her. The accused asked PW.15 to send her daughter on 12.8.1990 at about 12.00 noon in his office to discuss about her training. Ruchika was not present in the house at that time so on her return PW.15 told her about the visit of the accused to their house and asked her to meet him on 12.8.1990 in his office at 12.00 noon. Ms. Aradhana PW.13 proved that Ruchika came to her house at 11.00 am on 12.8.1990. She was very excited. She told the visit of the accused to their house on 11.8.1990 and proposal of the accused not to send her abroad and he would arrange special coaching for her as she was promising player. She also told Aradhana that Rathore had asked her father to send her at 12.00 noon on 12.8.1990 at HLTA. The said fact is also mentioned in Ex.P1. PW.13 proved that she alongwith Ruchika went to play lawn tennis on 11.8.1990. While they were playing, Sh. Paltoo-ball picker came there and told Ms. Ruchika that Rathore had called her to his office at 12.00 noon. Accordingly they both went to office of HLTA where they met the accused. Accused sent Aradhana to call the coach Sh. T. Thomas. While Aradhana left the office, accused molested/outraged the modesty of Ms. Ruchika. On return she herself saw the accused molesting Ruchika and thereafter, Ruchika told her about the entire incident. Ms. Aradhana is an eye witness to the crime. Learned trial court rightly relied on her

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SPS Rathore Vs. CBI

statement. She also proved that both of them decided not to inform their parents as they apprehended that SPS Rathore being high ranking police officer could involve and harass the girls and their parents. On 13.8.1990 it was Monday and lawn tennis courts used to be closed so they did not go for playing on Monday. On 14.8.1990 they went for playing at 4.30 pm to lawn tennis court by preponing their practice time from 6.30 pm since respondent used to visit lawn tennis court at 6.30 pm and after the said incident the girls wanted to avoid the respondent. On that day when they were about to return after practice at around 6.30 pm Sh. Paltoo came over to the lawn tennis court and told Ruchika that respondent had called her to his office immediately. Ms. Ruchika refused to go and told Aradhana that his intention was malafide and he had called her to molest her again. Thereupon, both the girls decided to inform their parents. They went to the house of Ms. Ruchika where they met her father Sh. S.C. Girhotra. Ms. Ruchika tried to narrate the incident to her father but she could not narrate the same and broke down. Whereupon her father told Ms. Aradhana to take her to her mother. They went to the house of Ms. Aradhana where Smt. Madhu Parkash PW.2 and Sh. Anand Parkash PW.1 were present. She narrated the entire incident to Smt. Madhu Parkash PW.2 who informed to her husband. Thereafter, Ms. Ruchika, Aradhana, Sh. Anand Parkash, Smt. Madhu Parkash and Sh. S.C. Girhotra and other persons went to HLTA court to meet Sh. SPS Rathore and came to know that Rathore had already left the HLTA. They waited for about 45 minutes and thereafter dispersed. On 15.8.1990, number of persons including players and their parents collected at the residence of Sh. Anand Parkash and decided that incident should be brought to the notice of higher authorities including Chief Minister of

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Haryana. Accordingly, memorandum Ex.P1 was prepared which was signed by Ruchika, Aradhana, Sh. Anand Parkash, Smt. Madhu Parkash and others. The witnesses identified their signatures and signatures of Aradhana in the court. Although accused tried to prove that signatures of Ruchika were not genuine by examining Sh. Devinder Parsad DW.10, the learned trial court has rightly held that in view of the direct and primary evidence the report of the handwriting expert cannot be considered to be safe and rightly did not rely on the said report. On 16.8.1990 Ruchika, Aradhana, Smt. Madhu Parkash, Dr. Naresh Mittal, Sh. Anand Parkash, Sh. S.C. Girhotra and some other persons went to Civil Secretariat to meet the Chief Minister and the Home Minister but they were not available. So memorandum Ex.P1 was given to Sh. J.K. Duggal PW.11 who assured them that matter would be enquired into. He asked those persons to reach lawn tennis court where Sh. S.K. Joshi SDM would be reaching. They reached at lawn tennis court and assembled there at 5.00 pm. Notice dated: 15.8.1990 with regard to suspension of Ruchika w.e.f. 13.8.1990 was found displayed on the notice board. Sh. S.K. Joshi SDM reached there. Sh. Anil Dhawan SHO Panchkula also reached there. Sh. Kuldip Singh Manger and Sh. T. Thomas coach were also present there. Sh. Kudip Singh in presence of witnesses informed on enquiry that he had affixed notice Ex.P2 on the directions of SPS Rathore. Ruchika had not committed any act of indiscipline. He also wrote the same on the notice Ex.P2. Said fact was also confirmed by coach Sh. T. Thomas. He signed at point-I on Ex,P2. He also made endorsement on asking that to the best of his knowledge Ms. Ruchika had not done any act of misbehaviour or indiscipline in the HLTA tennis court. SDM handed over said notice to Sh. Anand Parkash who proved the

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SPS Rathore Vs. CBI

said notice in his deposition. The witnesses have duly proved these facts. Sh. Anil Dhawan SHO Panchkula PW.10 has proved that on being called by Sh. SPS Rathore he went to his residence at about 9.00 pm on 16.8.1990. Manager Kuldip Singh, coach T. Thomas and one more person besides Sh. Rathore were present. Sh. Rathore complained that some boys/girls players and their parents had beaten Sh. Kuldip Singh and T. Thomas and one watchman. He took away the registers alongwith money etc but he deposed that on that day when he had gone to lawn tennis court Sh. Kuldip Singh Sh. T. Thomas did not complaint about the beatings given by those persons. On 17.8.1990, Sh. Anand Parkash and Sh. S.C. Girhotra alongwith other went to Chief Minister again. Chief Minister informed that orders have been passed for an enquiry to be conducted by the DGP Haryana Sh. R.R. Singh and he would submit his report within a week. PW.2, PW.5 and PW.15 have duly proved the said fact. On 18.8.1990 Sh. Anand Parkash and Sh. S.C. Girhotra went to police station, Panchkula and met Sh. Anil Dhawan SHO Panchkula and handed over to him a written report Ex.P3 alongwith the photocopy of memorandum Ex.P4. In compliance of the orders of the Chief Minister and Home Minister to conduct enquiry, Sh. R.R. Singh recorded the statements of the witnesses including Smt. Madhu Parkash, Ms. Reemu, Sh. S.C. Girhotra, Sh. Anil Dhawan, Ms. Ruchika and Sh. Anand Parkash. He made recommendations that a case under appropriate sections of IPC be got registered on the statement of Ms. Ruchika and being investigated. But no action was taken by the government. It proves how much clout the accused was having in the government. The accused has made allegations that Sh. B.S. Ojha and Sh. J.K. Duggal were nursing grudge against him. Learned trial court has rightly ignored the allegations. They were senior officers posted in the

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government of Haryana. Sh. B.S. Ojha was working as PS to Chief Minister and Sh. J.K. Duggal was working as Home Secretary. If they were having any enmity with the accused then they would have got the case registered against the accused immediately. The allegations of the accused that Sh. R.R. Singh was having strained relations with him since 1976 were after thought. Sh. R.R. Singh gave an independent report. No girl or her father would make a complaint of such heinous nature against even their enemy. The statements of the witnesses recorded by Sh. R.R. Singh are admissible under Section 157 of the Indian Evidence Act. The statements of the witnesses who were examined in the court can be corroborated with the statements of witnesses recorded by Sh. R.R. Singh in the enquiry. Learned trial court has rightly held so. Sh. J.K. Duggal and Sh. B.S. Ojha are independent witnesses. They have no grudge against the accused. Even if there was some dispute over the control of HLTA between the accused and the two, it was not such a big issue which would have induced them to implicate the accused falsely. There is no evidence on record to infer any nexus of these two officers with Sh. Anand Parkash and Sh. S.C. Girhotra. There is no evidence to suggest any enmity between the accused and Sh. Anand Parkash. The accused created a false defence that Sh. Anand Parkash had a motive to implicate him falsely. The statement of Sh. Shadi Lal PW.6 is without any basis. It is improbable for a person to remember a petty matter after a gap of 35 years. No documentary evidence is proved to substantiate the allegations made in the statement Ex.DW6. The accused also set up a false defence while cross-examining Sh. Sh. S.C. Girhotra that he wanted heavy amount from the accused for settlement of the matter in the year 2001. The accused produced a cassette purported to

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be conversation between Sh. Karan Singh DW.9 and witness about demand of money. The cassette was played only for five seconds. The witness denied his voice. The cassette was in possession of the accused but his voice was not got tested. The said false defence was created in order to prejudice the court against the prosecution witnesses. Learned trial court gave reasoning for relying on each and every fact and passed a well reasoned order. Learned PP for the CBI relied on various judgments under Sections 6 and 157 of Indian Evidence Act, conduct of the witness, quality and quantity of the evidence, with regard to contradictions in the statement of witness, post event conduct of the witness and failure to obtain evidence and with regard to adverse inference. The said authorities are as under :

“Gentela Vijayavardhan Rao & 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; Sukhar Vs. State of Uttar Pradesh 2000 Crl.L.J. 29 SC; Rameshwar Kalyan Singh Vs. State of Rajasthan 1952 Crl.L.J. 547 SC; State of Tamil Nadu Vs. Suresh and another 1998 Crl.L. J. 1416 SC; 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; Magan Bihari Lal Vs. State of Punjab 1977 Crl.L. J. 711 SC; Sanjay Goel Vs. State of UP 2002 Crl.L. J. 625; Sheelam Ramesh and another Vs. State ofAndhra Pradesh 2000 Crl. L. J. 51 SC; Rattan Singh Vs. State of Himachal Pradesh 1997 Crl. L.J. 833 SC; Narayan Chetanram Chowdhary and another Vs.State of Maharashtra 2000 Crl. L.J. 4640 SC; Dharmendra Singh Vs. State of UP 1998 Crl.L. Journal 2064; Vidyadharan Vs. State of Kerala 2004 Crl.L. J. 605 SC; Srichand K. Khetwani Vs. State of Maharashtra 1967 Crl. L.J. 414 SC; State of Punjab Vs. Major Singh 1967 Crl. L.J. 1 SC; Aman Kumar and another Vs. State of Haryana 2004 Crl. L.J. 1399 SC; State of Karnataka Vs.

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Krishna @ Raju (1987) 1 SCC 538; Savaka Perumal Vs. State of Tamil Nadu 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 UP Vs. Kishan 2005 Crl.L.J. 333 SC; Siddarama & others Vs. State of Karnataka 2006 IV (Cr.)(SC) 78.”

33. The learned counsel for the CBI submitted that learned trial court rightly convicted the accused under Section 354 IPC and ultimately prayed that appeal filed by the accused be dismissed.

34. After considering the submissions of the learned counsel for the parties, I am of the view that there is no dispute that in the year 1990 accused Sh. SPS Rathore an IPS officer was on deputation to Bhakhra Beas Management Board (BBMB) as Director (Vigilance & Security). He formed the HLTA and got the same registered with the Registrar of Firms and Societies on 29.11.1988 with its address as 469, Sector-6, Panchkula. Office of the HLTA was established in the garage of the house which was under construction of the accused during the relevant period. The accused was president of the HLTA at that time. Sh. T. Thomas, Sh.Kuldip Singh and Sh. Paltoo were working as coach, Manager, and ball-picker respectively with HLTA at that time. The HLTA was imparting training in tennis court in Sector-6 adjacent to the house of the accused. The players were enrolled. Ms. Ruchika (since deceased), Aradhana @ Reemu (PW.13), Sh. Manish Arora (PW.3), Sh. Vipul Chanana (PW.4) also enrolled them as members and used to play tennis in the courts of HLTA. The accused used to visit said lawn tennis court in the evening. The accused admitted in the statement under Section 313 Cr.P.C that he met Ms. Ruchika in the HLTA office on 12.8.1990. It is

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specific case of the prosecution that Ruchika in the company of her friend Aradhana @ Reemu went to play at lawn tennis courts on 12.8.1990. While they were playing Sh. Paltoo-ball picker came over there and told Ms. Ruchika that Sh. Rathore has called her to his office at 12.00 noon. Accordingly, Ms. Ruchika and Aradhana went to the office of HLTA where they met the accused. Aradhana was sent by the accused to fetch the coach Sh. T. Thomas. The case of the prosecution is further that accused molested/outraged the modesty of Ms. Ruchika while Ms. Aradhana left the office. The prosecution examined Ms. Aradhana (PW.13). She deposed that she alongwith Ruchika went to play tennis on 12.8.1990. Sh. Paltoo ball-picker came over there and informed Ms. Ruchika that Sh. SPS Rathore had called her in HLTA office to meet him. They both went there to meet the accused in his office. They saw the accused standing outside his office. On seeing them accused proceeded towards the office and asked them to follow him. Whereupon Mr. Ruchika requested the accused to talk to her outside the office but accused insisted to her to come in the office. They followed him towards the office. On reaching inside the office on being asked by the accused a chair was brought on which PW.13 sat down and Ruchika remained standing. The accused directed not to bring another chair immediately thereafter, the accused asked Aradhana to fetch the coach Sh. T. Thomas. PW.13 after leaving Ruchika there in the office went to call the coach. When she reached to the back of the house of the accused she found Thomas coach standing at a distance on the other side of the house across the road. She asked Sh. Paltoo to go and fetch the coach Sh. T. Thomas as he was called by the accused. Sh. Paltoo by gesture indicated her that he had refused to come. Thereafter, PW.13 returned. When she reached at entrance of the office she saw

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that the accused was holding one hand of Ruchika and his other hand was around her waist and he had embraced Ruchika whereas Ruchika was trying hard to get herself released by pushing him away with one of her other hand. On seeing the witness there, the accused became nervous and left Ruchika and fell down on the chair. The witness informed the accused that coach had refused to come over there, thereupon the accused forcefully asked the witness to go again and call the coach personally. In the mean time, Ruchika tried to come to the side of the witness, the accused asked Ruchika to stay there and asked the witness to fetch the coach and to tell the coach and he had been called by him. Ruchika came near the witness and went out of the office. When Aradhana also wanted to follow her, the accused told her “asked her to cool down, I will do whatever she will say”. Thereafter, she followed her who was running. When witness caught up Ruchika she started weeping loudly, thereupon the witness enquired from Ruchika as to what had happened. Ruchika narrated that as soon as she had left to fetch the coach, the accused had caught hold of her hand which she with lot of difficulty got released but the accused again got up from his chair and again caught hold her hand and with his other hand he caught hold of her waist and dragged her towards him and embraced her, while she was pushing him. She further informed her in the mean time, she (Aradhana) reached there and own seeing her (Aradhana), he left her (Ruchika). After that, both Aradhana and Ruchika discussed and decided that they would not inform their parents as Sh. SPS Rathore being high ranking police officer could harm their families.

35. Ms. Aradhana (PW.13) also made the statement that on 13.8.1990 they did not go to play tennis

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since HLTA was closed on Monday. They both used to play tennis in the evening. Their usual time was from 6.30 pm. In the evening, almost daily the accused Sh. SPS Rathore used to visit the lawn tennis courts. They in order to avoid him thought it proper to go for playing at 4.30 pm. At about 6.30 pm on 14.8.1990 while they were about to return after the practice, Sh. Paltoo came over the lawn tennis court and told Ruchika that accused had called her in his office immediately. But Ruchika refused. Then Ruchika told her (Aradhana) that Rathore had called her again so his intentions were not good. Since they had not informed about the incident which took place on 12.8.1990 to their parents this had emboldened him. They thereupon decide to inform their parents. They went to the house of Ruchika where they met Sh. S.C. Girhotra, father of Ruchika present in the house, Ruchika tried to narrate the incident which took place on 12.8.1990 to her father but she could not narrate the same and broke down, whereupon her father told Aradhana to take her to her mother and said he too would be reaching there. They went to the house of Aradhana where Smt. Madhu Parkash (PW.2) and Sh. Anand Parkash (PW.1) were present. Ruchika told the incident which took place on 12.8.1990 in detail to Smt. Madhu Parkash and Smt. Madhu Parkash informed to her hand Sh. Anand Parkash (PW.1) about the said incident. Thereupon, Sh. Anand Parkash asked them about the whereabouts of the accused. Both informed that accused might be available at lawn tennis court at that time. Thereafter, Ruchika, Aradhana, Sh.Anand Parkash, Smt. Madhu Parkash, Sh. S.C. Girhotra and other persons went to HLTA court to meet Sh. Rathore where they were informed that Sh. Rathore already left for HLTA office. After knowing that accused might be at HLTA office, they reached at HLTA office where they were

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informed that Sh. Rathore had already left for Chandigarh. They waited for him for about 45 minutes and when he did not turn up they disperse from there. They decided to assemble on 15.8.1990. The abovesaid fact has also been substantiated from the evidence of Sh. S.C. Girhotra (PW.15), Sh. Anand Parkash (PW.1), Smt. Madhu Parkash (PW.2), Sh. Manish Arora (PW.3) and Sh. Vipul Chanana (PW.4).

36. The case of the prosecution starts with the memorandum Ex.P1 on the basis of which FIR in question was registered as per directions of Hon'ble Punjab & Haryana High Court which were passed on the writ filed by Smt. Madhu Parkash. The defence has strongly raised objections about the correctness and admissibility of the document Ex.P1. The defence version is that signatures of Ruchika at Point-B on the document are forged. Learned defence counsel is relying on the report dated: 14.3.2008 Ex.DW10/1 of document and handwriting expert Sh. Devinder Parsad DW.10 who after examining the signatures of Ruchika on Ex.P1 which is marked as X1 on its photograph and P3 which is marked X2 in its photograph, gave the opinion that person who wrote the signature Mark-X1 did not write the signature Mark-X2. On the other hand, Aradhana (PW.13), Smt. Madhu Parkash (PW.2) and Sh.Anand Parkash (PW.1) gave the direct evidence that Ruchika signed on Ex.P1 in their presence. The learned trial court held that Ruchika was the best person to depose about the genuineness about her signatures but she is no more so could not appear in the witness box. In her absence, the persons in whose presence she signed the document are the best witness to prove the genuineness of the signatures. Their view is relevant under Section 47 of the Indian Evidence Act. Her signatures were not got compared with any previous authenticated and admit signatures

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of Ruchika. The strong direct evidence cannot be rebutted by weak type of evidence of handwriting expert and ultimately held that signatures of Ruchika on Ex.P1 stand proved. As per version of the prosecution Ex.P1 was prepared on 16.8.1990 at the residence of Sh. Anand Parkash. It is only a memorandum and not a specific complaint. It is addressed to Financial Commissioner-cum-Secretary, Home Department, Haryana Government, Chandigarh. It consists of five pages. After narrating the entire incident at page No. 4 it is written that instead of tendering apology to the public Rathore by using his position as police officer had planned to terrorise father of Ruchika. He sent a letter through Sh. Kuldip Singh-Manager on 15.8.1990 between 1.00 to 2.00 pm that it was brought to the notice of President that on the previous day in the evening he wanted to meet him so he should meet him between 1.00 or 2.00 pm. It was written in the letter not to bring girls with him. In fact, Rathore had directed the Manager to bring the father of the girl alone to him. It is necessary to mention here that accused examined in defence, Ram Piara DW.2. The extract of his statement is as under :

“On 14.8.1990 at around 7.00-8.00 pm, 4-5 people came

to the residence of 469, Sector-6, Panchkula. Mr. Girothra

and Sh. Anand Parkash were among of them. Mr.

Girothra had asked where is Mr. Rathore thereupon I

replied that he had already gone to Chandigarh. On that

Mr. Girhothra asked me to summon Mr. Rathore. I replied

that I will convey your message to Mr. Rathore and I went

to marked and made a telephonic call to the Sahib. Sahib

told me that they may meet me in the morning. After that,

I returned and conveyed the message which Sahib had

given to me and told him that Sahib had called him to his

residence or he may talk to him on phone. Thereafter, they

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left the house.

On 15.8.1990 around 1.30 pm I had gone

alongwith Manager Kuldip Singh to Girothra's residence

363, Sector-6, Panchkula to hand over a letter which

Sahib had given to me for delivering it to Mr. Girothra. I

delivered the letter to Mr. Girothra.”

37. No doubt, memorandum was not signed by Sh. S.C. Girhotra PW.15 father of Ruchika and brother of Ruchika. The memorandum bear signatures of some persons. All the persons who signed the memorandum were not the witness of facts which were written in the memorandum Ex.P1. They have just assembled and mustered courage that action should be taken against the accused on the basis of facts stated therein. In the memorandum, the fact of visit of Sh. SPS Rathore in the house of Sh. S.C. Girhotra is also mentioned. On 11.8.1990 accused Sh. Rathore visited the house of Sh.S.C. Girhotra (PW.15) and told him that he was informed that he was sending his daughter Ruchika to Canada. He requested him not to send her abroad as she was a very good player and he would arrange for her special coaching. He asked Sh. S.C. Girhotra to send his daughter on 12.8.1990 at 12.00 noon to his office where he would discuss with her about the training. At that time Ruchika was not present at her house. On her return to the house, Sh. S.C. Girhotra informed her about the visit of Sh. Rathore on that day and asked her to meet him in his office on 12.8.1990 at 12.00 noon. On the next day, Ruchika went to the office of the accused which was situated in the under construction kothi of the accused at 12.00 noon. It was a matter of chance that she took alongwith her sathi khiladi. The name of the Aradhana is not mentioned in the memorandum Ex.P1 but memorandum Ex.P1 bears the signatures of Aradhana and her parents. In Ex.P1, events of 11.8.1990,

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12.8.1990, 13.8.1990, 14.8.1990, 15.8.1990 are written. In the end of Ex.P1 is the written that there is lot of anger among the residents of Panchkula due to said incident if such a senior officer of the police molest girls of the age of his daughter then there is no honour and security left for the common man. Ultimately, it was requested that entire matter be got enquired into at highest level as they have already written that justice at the lower level was impossible against the officer of the rank of IG so they were approaching him for justice. The question arises whether there was conspiracy to falsely implicate the accused or few people of the Panchkula had joined hands after the occurrence for justice to Ruchika and for taking action against the accused at highest level since he was officer of the rank of IG.

38. No doubt, the signatories of Ex.P1 are Aradhana, her parents, Dr. Naresh Mittal, relative of Aradhana, their neighbour and three minor tennis players. There is no iota of evidence which may even remotely suggest that Sh. S.C. Girhotra (PW.15) had any previous enmity with the accused for falsely implicating the accused and putting his minor school going daughter's future at stake. There is no documentary evidence on the file about previous enmity of Sh. Anand Parkash with the accused. The accused examined Sh. Shadi Lal Malik DW.6 working as Assistant Reader with the accused in the year 1973 when accused was posted as SP of Kurukshetra district. The statement of DW.6 cannot be believed. No complaint in writing against the father of Sh. Anand Parkash who was living in Ladhwa District Kurukshetra in the year 1973 is proved on the file. Many persons daily meet Superintendent of Police. It is not probable that a incident which had occurred

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about more than 15 years ago was in the mind of Sh. Anand Parkash. Had Sh. Anand Parkash was nursing any enmity against the accused then he would not have allowed his daughter Aradhana to join the HLTA which was formed and headed by accused. The statement of DW.6 is after thought. Even if the said statement is taken as correct then it does not prove that PW.1 had any reason to be hostile to the accused. The accused had simply directed SHO Ladhwa if complaints against Sh. Babu Ram father of Sh. Anand Parkash (PW.1) were correct then he should be put behind bars otherwise he should not be harassed. Such type of directions are given by the senior police officers generally whenever any person come to meet them in such matters. The accused acted in the same manner which was expected from the police officer. Any other police officer would have also acted in the same manner. Rather said directions were favouring the father of Sh. Anand Parkash since accused specifically asked the SHO if complaints were false then he should not be harassed. More-over, an IPS officer of the rank of Inspector General of Police cannot remember such a trifling matter which had occurred when he was posted as Superintendent of Police. It is an after thought defence and cannot be accepted. There is nothing on the file that Sh. Anand Parkash or Sh. S.C. Girhotra had any enmity with the accused or they were nursing any grudge against the accused prior to the date of occurrence. It is common knowledge that hardly any person come to the rescue of the victims of crime. Since it was a case involving senior police officer of the State so no one could even think of proceeding against him. As per version of the accused himself that Dr. Naresh Mittal is an influential person of the area so his joining with Sh. Anand Parkash, his relative cannot be considered as unnatural or result of any

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conspiracy. If Sh. S.C. Girhotra was interested to extort any money from the accused then he would have met the accused on 15.8.1990 when accused sent a letter to meet him alone and did not bring the girls with him. The defence version that Sh. S.C. Girhotra joined hands with Sh. Anand Parkash only out of greed for money does not sound to reason and cannot be accepted. The part of the defence version that Sh. S.C. Girhotra demanded money after registration of the case would be discussed at the later part of the judgment. Since many people have put signatures on Ex.P1 which was prepared only as memorandum to be given to higher authorities so it is not of much significance who had drafted the same and who had got typed the same. The signatories of the memorandum wanted that action should be taken against the accused on the basis of facts mentioned therein. It merely gives a sequence of events which had happened from the very beginning. The accused could not prove that Sh. C.P. Bansal DIG and Sh. Shyam Lal DSP were enimical towards him. If the memorandum Ex.P1 had been prepared with their consultation then witnesses would not have deposed about their presence in the court. The said memorandum was handed over to Sh. J.K. Duggal (PW.12) who was posted as Home Secretary to the Government of Haryana. He informed about the memorandum to Sh. B.S. Ojha then Principal Secretary to Chief Minister. There is no evidence on record to substantiate the allegations of the accused that these two officers were, in any way, instrumental in the preparation of the memorandum for implicating the accused in this case. The endorsement on memo Ex.P1 was made by Sh. B.S.Ojha (PW.14). He proved the endorsement Ex.PW14/A. The enmity/grudge suggested by the accused to Sh. J.K. Duggal (PW.12) and Sh. B.S. Ojha is without any basis. If these persons who were holding high post

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in the government of Haryana were enimical to the accused and wanted to implicate the accused falsely in the criminal case of this nature then they would have pursued the matter and ensured registration of criminal case against the accused in the police station especially, when Sh. R.R. Singh had submitted his findings and recommendations in his report dated: 3.9.1990 for registration of case against the accused and for investigation. The accused examined Sh. Om Parkash Kathuria (DW.16) Secretary, HLTA. He proved the proceedings dated: 24.4.1989 Ex.DW16/1. He also deposed that on 23.4.1989 message was received through Sh. S.K. Saxena then Tresurer of HLTA that Sh. B.S. Ojha wanted to become President of HLTA and Sh. SPS Rathore should step down. Thereafter, an urgent meeting of Executive body of the association was held on 24.4.1989. In the said meeting, it was held that proposal sent by Sh. B.S. Ojha was not acceptable because Sh. SPS Rathore was duly and unanimously elected as President and new President can only be elected after elections. Only a tennis player could become a Executive member. Proceedings of the meeting were drawn and were duly signed by Sh. SPS Rathore. These proceedings are Ex.DW16/1. The decision of the Executive Body was conveyed to Sh B.S. Ojha through Sh. S.K. Saxena that proposal for nominating him as President of association was not acceptable. Sh. Saxena informed to them that Sh. B.S. Ojha was very annoyed and he will not led the association to conduct tournament at Hissar in May, 1989. He further deposed that Sh. Ojha was not made President of the association. So with his blessing they created another association after 4-5 months after Hissar tournament and Sh. J.K. Duggal, IAS was made President of the association which was known as Haryana Tennis Association (HTA). He also proved the registration of the association Mark-D34. The

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defence raised by the accused cannot be accepted since Ex.D16/1 is only on loose paper. The proceedings are not written in any register. It does not bear signatures of Executive members or any other office bearer of the HLTA. It only bears signatures of the accused. More-over, HTA came into existence after 24.4.1989. Sh. B.S. Ojha did not become president of HTA i.e. Lawn tennis association formed subsequently. If Sh B.S. Ojha was so desperate to become President of Lawn tennis association then he would have not allowed even Mr. Duggal to become President of HTA. Sh. B.S. Ojha (PW.14) made endorsement Ex.PW14/A on the memorandum Ex.P1 that CM had ordered the DGP should enquire into it and submit his report within one week positively. Both PW.12 and PW.14 were senior IAS officers and they knew that as per bye-laws of the HLTA they could not become President of HLTA. So there was no question of their asking Sh. Rathore to step down and Sh. Ojha be made President of HLTA. The dispute over the control of HLTA was of trifling nature for a person holding high position in the government so defence of the accused that Sh. Ojha and Sh. Duggal were enimical towards the accused is not acceptable. The accused also contended that Sh. R.R. Singh had grudge against him. The accused came with the defence that on transfer of Sh. R.R. Singh as SSP, Rohtak the accused succeeded him to that post. When he left the charge of SSP, Rohtak he asked the accused to accommodate him to harvest the wheat crop at the residence which was grown by him in the area surrounding the residence. The accused did not accommodate him to harvest the crop and refused to do so. So relations between two were bad since 1976. In the cross-examination, this witness stated that it is correct that he told CBI that he may have asked Sh. Rathore to accommodate him to harvest the crop at Rohtak at his residence but

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Sh. SPS Rathore refused to do so. Had Sh. R.R. Singh PW.6 having any hostility in his mind then he would not have stated that he might have asked Sh. Rathore to accommodate him for harvesting the crop at Rohtak residence. It shows that Sh. R.R. Singh is a truthful man. More-over, the proceeds from the said crop were required to be deposited in the government treasury and the same were not to be kept by Sh. R.R. Singh. There is no other fact on the file about hostility between accused and Sh. R.R. Singh. Thus, defence of the accused that Sh. R.R. Singh was hostile towards him cannot be accepted. Sh. R.R. Singh is proved to be an impartial man, while holding post of DGP Haryana. He conducted enquiry on the orders of Government of Haryana. The learned trial court has rightly considered the enquiry conducted by him. There is no dispute that Sh. R.R. Singh recorded the statement of Ruchika, Aradhana, Smt. Madhu Parkash, Sh. S.C. Girhotra in the enquiry conducted by him on the orders of the Chief Minister. He sent the report for registration of the case against the accused but no case was registered against the accused. He was posted as DGP of Haryana at that time. If he was hostile towards the accused then he would have personally made efforts for registration of case against the accused. After sending the report he did not bother what happened to the report which further prove that he was not hostile or biased against the accused. Sh. R.R. Singh stepped into the witness box as PW.6 and proved his report. His observation that on 26.8.1990, in the evening about 47-50 persons including few women and children from labour colony, Chandigarh came in procession shouting slogans in favour of Rathore, against Ruchika and her father may not help to the prosecution to prove the crime in question but it is a fact which prove the conduct of the accused after the incident. He used such tactics

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so that no person should come forward against him, otherwise he would be insulted in that manner such procession could not be without the active connivance of the accused. The accused has tried to put a case that every body was enimical towards him who had dealt Ex.P1 at any stage. It is a simple case whether accused molested Ruchika on 12.8.1990 in order to outrage her modesty in his office at about 12.00 noon. Admittedly, the accused had met Ruchika at that time in his office. The question is whether Aradhana was accompanying her and is eye witness to the crime. If it is proved whether reliance can be placed on the testimony of Aradhana. Since Ruchika has already expired so court is required to scrutinize the statement of Aradhana very carefully. In memorandum Ex.P1 the name of Aradhana is not written but word sathi khiladi (co-player) is written. At the time of occurrence, she was also school going child and teenager. Her statement was recorded by Sh. R.R. Singh DGP in the enquiry on 21.8.1990. A proper explanation has been given by the prosecution that persons present at the time of preparation of memorandum Ex.P1 were of the opinion that in case her name is mentioned then accused being high rank officer would harass her. This is the natural act of the persons who had gathered in support of Ruchika for providing her justice. No person likes to bring the name of her minor daughter in such like cases. Since parents of Aradhana had also signed memorandum Ex.P1 so there was no question of Aradhana asking them to write her name in the memorandum instead of sathi khiladi. As discussed above there was no enmity between Sh. Anand Parkash and accused proved on the file prior to the incident and Aradhana alongwith her parents and Ruchika was also impleaded as accused in the complaint filed under Section 500 IPC by the accused in the court of

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Judicial Magistrate Ist Class, Ambala on 18.8.1990 so version of the accused that Aradhana was introduced first time as eye witness on 21.8.1990 cannot be accepted. If she was not the eye witness then there was no question of impleading a minor girl as accused in the complaint under Section 500 IPC. Aradhana stepped into the witness box as PW.13. Her cross-examination was conducted on many dates. Her cross-examination ran into 152 pages. In case Jai Shree Yadav Vs. State of UP (2005) 9 Supreme Court Cases 788, Hon'ble Supreme Court held that when a witness is subjected to lengthy cross-examination over lengthy period of time there is always a possibility of a witness committing mistakes which can be termed as omissions, improvements and contradictions which have to be appreciated in the background of ground realities. The head note 'F' of the said authority is as under :

“Criminal trial- Appreciation of evidence – Contradictions,

inconsistencies, exaggerations or embellishments –

Mitigating factors- Number of questions in and duration of

cross-examination- Held, when a witness is subjected to a

lengthy cross-examination (more than a hundred questions)

over a lengthy period of time (more than six months to a

year) there is always a possibility of the witness committing

mistakes which can be termed as omissions, improvements

and contradictions- Therefore those infirmities will have to

be appreciated in the background of ground realities which

makes the witness confused because of the filibustering

tactics of the cross-examining counsel, and if not found

fatal to the evidence given in the examination-in-chief,

would not in any manner affect the evendentiary value of

the examination-in-chief- Evidence Act, 1872- S.114.”

39. Learned trial court has held that the statement recorded by Sh. R.R. Singh of PW.13 is

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admissible under Section 157 of the Indian Evidence Act and said statement can be used for corroboration. Learned trial court also relied on case Rameshwar Vs. Rajasthan AIR 1952 Supreme Court 54 that in the instant case time gap was about 8 days but in the case Rameshwar the statement was recorded after 14 days.

40. Since State Government has given directions to Sh. R.R. Singh to hold enquiry so he was competent to hold enquiry. More-over he was senior most police officer posted in the State of Haryana so he had got the jurisdiction to investigate any criminal act which has occurred in the area of State of Haryana. Although, learned defence counsel cited authorities and tried to establish that her statement under Section 157 Evidence Act was not admissible but learned trial court has correctly held in para No. 54 of the judgment that said authorities were not applicable to the facts and circumstances of the case. Although in the memorandum Ex.P1 the word 'chedh char' is used describing the act of the accused but in the end of Ex.P1 it is clearly mentioned if such a high police officer molest girls of the age of his daughter then there was no honour and security left for the common man. It proves that the word 'chedh char' was used in the broader sense and signatories of the memorandum were conveying to the government about molestation of Ruchika at the hands of high ranking police officer. Memorandum, ultimately after long time, was converted into FIR. An FIR cannot be considered as encyclopedia of each and every event. The object of FIR is only to set the criminal law in motion. In the instant case the memorandum was submitted that the matter be got enquired into. It is not the requirement of the law that name of the witnesses and each and every fact must be mentioned in the FIR. I draw support from

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case Bhagwan Singh & Ors Vs. State of MP 2002(4) Supreme Court Cases 85.

41. Learned trial court has rightly held that Aradhana had seen entire incident of molestation with her own eyes. Thereafter, Ruchika had explained her incident immediately. The act of Ruchika running from the office and act of witness to follow her and stopping her were part of the same transaction. Learned defence counsel relied on various judgments that statement of Aradhana is not admissible under Section 6 of the Indian Evidence Act. 1971 Crl. Law Journal 172, AIR 1958 Cal. 482, AIR 1951 Orissa 53, AIR 1931 Madras 233, AIR 1930 Cal. 132, AIR 1921 Lahore 258,

1950 Crl. Law Journal 968, 1953 Crl. Law Journal 1427. Since Ruchika instantaneously told to Aradhana about the act of the accused so statement of Aradhana is a substantive piece of evidence and is admissible under Section 6 of the Indian Evidence Act. The learned trial court has rightly placed reliance on the statement of Aradhana. The act of the accused was seen by Aradhana PW.13 and the statement of Ruchika given to Aradhana proved that act of the accused was to outrage her modesty. She stood a lengthy cross-examination. Her confidence could not be shaken on the material point i.e. incident of molestation which she had seen with her own eyes. Her statement was recorded in the court after about 15 years of the occurrence. Any contradiction in her statement is without any significance. Such a minor girl cannot implicate falsely a senior police officer of the State. The service record of her father is no ground not to believe her statement. The learned trial court has rightly held that discrepancy pointed by learned defence counsel that witness has not named Paltoo-ball picker in her statement before Sh. R.R. Singh that she asked the person who had brought the chair in the office to call the coach but did not

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name Paltoo who was known to her is a minor discrepancy. The purpose of appreciating evidence of a particular witness is to whether said witness is able to prove the fact beyond shadow of reasonable doubt or not. Each and every sentence of the statement of the witness cannot make any basis for coming to the conclusion. The entire statement of the witness is to be seen whether the fact is proved or not. Even after seeing the occurrence her behaviour cannot be considered as unnatural keeping in view her age at that time. More-over, the accused left Ruchika on seeing her, the accused got nervous and fell on his chair. The accused again ordered her to go and bring the coach personally. She had no reaction time. Ruchika started leaving the room. She followed her and asked her what had happened. So her act was the most natural act under these circumstances. More-over, the accused then told to her to ask Ruchika to cool down and he would do whatever she said which further prove the intention of the accused was to win her. It is well known that every person acts differently under different situations. There is no hard and fast rule. Since Aradhana PW.13 is proved to be independent witness and she also made statement in the enquiry on 21.8.1990 conducted by Sh. R.R. Singh DGP Haryana and thereafter duly proved her version in the court so her statement is sufficient to prove that the accused molested the Ruchika. Thus, I am of the view that PW.13 has duly proved the act of molestation by the accused and learned trial court has rightly placed reliance on the testimony of Aradhana PW.13. As per defence version only Ruchika was suspended from playing in the tennis court on Monday 13.8.1990. But the other player who was playing with Ruchika was not suspended which also prove that order of suspension was after thought and was prepared to create the

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defence. More-over, order of suspension is shown to be passed on the basis of complaint of coach. If girls wanted to take any revenge then their grudge should have been against the coach and there would not have been any grudge against the accused. Sh. S.C. Girhotra (PW.15) has duly proved that accused visited his house on 11.8.1990 and asked him to send Ruchika to his office on 12.8.1990 at 12.00 noon where he would discuss about her training. Learned defence counsel referred to the statement of Sh. S.C. Girhotra (PW.15) that he stated in the cross-examination that it is correct that Sh. SPS Rathore did not come to his house. The perusal of his statement shows that said question was put to the witness thrice and he denied that Sh. Rathore did not come to his house on 11.8.1990. But at one stage he stated that it is correct that he did not come to his house on 11.8.1990 but later on he volunteered to say that Sh. Rathore came to his house on 11.8.1990. When a particular question is put to a witness more than once then it cannot be said that the witness admitted a particular fact in the cross-examination. The entire statement of witness is required to be considered and stray sentence in the statement is of no help to the court for making any opinion with regard to particular fact. The learned trial court has rightly held that question regarding written statement was asked and in that context he stated that he signed written statement that accused has not met him. This fact appears to be a little bit different from entire remaining statement. In the written statement in para-14 he even denied that any information was sent to the answering defendant by the accused or the answering defendant was advised to withdraw Ruchika from said centre. All the facts of the plaint were denied by the witness in the written statement so fact regarding meeting of the accused

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was denied. The contents of written statement cannot prevail upon the direct testimony of the witness. From the evidence on the file it is proved that Sh. Rathore visited the house of Sh S.C. Girhotra on 11.8.1990 and that is why Ruchika and Aradhana went to play tennis on 12.8.1990 at 12.00 O'clock. Although the learned defence counsel pointed out discrepancies with regard to time when Ruchika left her house and when she reached the house of Aradhana and distance between their houses and tennis court and the office but said contention of the defence counsel is without any significance since it is not expected from minor girls to remember their minute to minute programme. The defence version is that Ruchika met the accused at 12.00 noon on 12.8.1990 so such like discrepancies regarding time are meaningless. The learned defence counsel propounded the story about the improbability of commission of offence. Learned trial court has duly considered the same and rightly held that at the time of incident presence of any person inside the room or very near to the room is not established. Many witnesses are examined in defence that they were present in the house of the accused on 12.8.1990 at 12.00 noon but such defence can be created at any time and reliance cannot be played on the testimony of such witnesses. Even if any labour was doing any work in the house that was not a hurdle for the accused to commit the crime since there was no person inside the room where accused created the circumstances that Ruchika should be alone with him. It was not a big room and chair of the accused was not far away. The learned trial court has rightly held that the distance of 2-3 ft. is not such a big distance. It can be covered in one or two steps. It is not improbable that accused cannot fall on his chair. Ruchika was studying in a convent school. Her decision not to tell the act to

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their parents as they were scared from the accused being high police officer cannot be in any way considered as unnatural. Sh. Paltoo ball-picker, coach T Thomas and Sh. Kuldip Singh Manager were not examined by the prosecution and learned trial court has rightly held that IO clarified that he tried to join Paltoo but he was not available. Sh. T. Thomas was not the substantial witness so he was not joined the investigation. There is no ground to differ with the view of learned trial court. It is also rightly held by learned trial court that by trimming of Ex.P2 it is not proved that a line was torn from the document or it was altered. More-over, any event subsequent to the crime is not of much importance when there is eye witness's account. Learned defence counsel raised objection about the visit of SDM at HLTA and taking of the record of HLTA with motive to take over HLTA but HLTA was never taken over by Sh. B.S. Ojha and Sh. J.K. Duggal so it is of no help to the defence. When people of the area had made complaint against the accused then it was obvious for the government to do something as a mere eye wash. The filing of copy of the memorandum Ex.P4 with the police does not any way affect the case of the prosecution adversely. Since it is a case of eye witness version so all the subsequent events attached with the main issue cannot dislodge the eye witness's account. Learned trial court has rightly held that even if Ex.P2 is not proved the case of the prosecution is well proved. Learned trial court has held that merely on the ground that Aradhana did not go to the hospital and attend the cremation ceremony of Ruchika it cannot be said that they were not playing tennis jointly at some particular point of time. From the evidence, it is proved that they were playing tennis jointly. They were living in the same locality. So it cannot be said that they were not

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closed with one another. Ruchika, a young girl committed suicide. Aradhana was not related to her . If Aradhana and her mother Smt. Madhu Parkash did not visit her in the hospital to enquire about her help and did not attend her cremation same does not make any difference. It is well known that last ceremonies in such type of unnatural death of the young girls are done quietly and quickly even without informing distant relations. The memorandum Ex.P1 was submitted with the government without wasting time promptly. On the orders of the government, DGP Haryana conducted the enquiry and made recommendations on 3.9.1990 for registration of the case against the accused but no case was registered because the accused was very senior police officer in the Government of Haryana and ultimately FIR was registered on the orders of Punjab & Haryana High Court, so delay in lodging the FIR cannot be attributed to victim, complainant or prosecution. From the above discussion, it is proved that there was no enmity between the accused and the witnesses, the statement of Aradhana PW.13 is reliable and she has successfully proved that accused molested Ruchika in order to outrage her modesty. The intention of the accused was premeditated. The defence version is not probable and cannot be relied upon and deserve to be ignored.

42. The version of defence that Sh. S.C. Girhotra demanded money from the accused for withdrawing the matter from the court. Learned trial court has rightly held that there is no cogent evidence on record to establish that money was demanded. More-over it was subsequent event and has no effect on the alleged incident. The act of molestation on the part of the accused is duly proved by the eye witness so argument of the learned defence

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counsel that the accused is a man of high integrity and moral character loses its significance. The learned trial court has rightly held that it cannot be presumed that a person will not commit the act of molestation since he is having meritorious service record. This may be circumstance at the time of awarding the sentence but it is not a circumstance to come to the conclusion that a accused is a meritorious officer so he would not have committed the crime in question. Much stress has been laid on the role of Smt. Madhu Parkash PW.2 and Sh. Anand Parkash PW.1 and their relative Dr. Naresh Mittal PW.5 about their role against the accused. They were not the eye witnesses. If they had joined hands after the occurrence for getting justice for the victim then no motive can be attached to their acts. It is not necessary that any NGO should come forward for this purpose. When conscious of any person is pricked is anybody's guess. The bad service record of Sh. Anand Parkash has no relevancy in the instant case. More-over, as discussed above it is a case of eye witness's account so all other points raised by the accused against the witness of prosecution are of no help to him and those are liable to be ignored. Said points need not require to discuss in detail. Nothing is perfect in this world. Certain lapses are pointed out by learned defence counsel in the investigation of the case but the same was not motivated and any lapse on the part of investigating officer or any government officer is of no help to the convict. The question is whether judicial conscience of the court is satisfied for coming to the conclusion on the basis of evidence brought on the file whether a person has committed the offence. If answer is in affirmative then all other connected matters and factors become irrelevant. The learned defence counsel laid much reliance that on the case

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Jagvir Singh Vs. State of Haryana 1994 (2) RCR 89

(decided by Punjab & Haryana High Court) that confession of a accused recorded by SDM during enquiry is not admissible. In the instant case, there was no confession of the accused during enquiry so said authority is not attracted. The learned defence counsel relied on case Partap Singh and

another Vs. State of M.P 1971 Crl. L. J. 172 that statement made by person sometimes after the incident to a question is not spontaneous but in the instant case there was no time lapse when Aradhana after seeing the occurrence enquired from Ruchika and she replied while weeping. So said authority is distinguishable on facts and ratio of said authorities cannot be applied to the facts of this case. The learned defence counsel has relied on many authorities but each case is to be seen from its own angle. The authorities cited by the learned defence counsel are distinguishable on facts and ratio of said authorities cannot be applied to the facts of the instant case. The learned defence counsel also pointed that authorities relied by the learned trial court for coming to the conclusion are distinguishable. The learned trial court has rightly applied the ratio of case Narain Chetan Ram Chaudhary Vs. State of Maharashtra and Rameshwar Vs. State of

Rajasthan. But learned defence counsel has failed to show that authorities relied by learned trial court were not attracted to the points decided with the help of said authorities. In the light of the above discussion, I am of the view that well reasoned judgment has been given by the learned trial court and the accused has been convicted in accordance with the law under Section 354 IPC. There is no ground to interfere in the order of conviction of the accused passed by learned trial court. So appeal filed by the accused Sh. SPS Rathore against his

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conviction deserves to be dismissed.

43. The counsel for the CBI and counsel for the complainant-revisionist have argued that learned Chief Judicial Magistrate took a lenient view and ordered the convict to undergo rigorous imprisonment for a period of six months only and to pay a fine of Rs.1000/-, in default of payment of fine to undergo for a period of one month for committing an offence under Section 354 IPC keeping in view the prolonged trial, age of the accused and there was no allegation in the past regarding such a conduct of moral turpitude. Sentence awarded to the convict is inadequate in view of the seriousness of the offence. The mensrea in the present case is duly established which is sine-qua-non in the offence. The act of the convict was premediated. Since convict had visited the house of the minor girl Ruchika on 11.8.1990 and had requested her father not to send her abroad as he would make the arrangement for providing her best coaching. The learned trial Court has taken into consideration age of the convict while awarding sentence of imprisonment but failed to take into consideration that girl molested was minor school going and was playing tennis in the coaching centre which was headed by the convict. When a minor girl is molested a liberal view cannot be taken against the convict. The prolonged trial in this case has been due to the dilatory tactics adopted by the accused. There was a fight between the unequals i.e. on the one hand there was a teenaged girl who had decided to fight for her right to battle with a senior officer who have been the IG of the State of Haryana and later on promoted as DGP of Haryana. On the contrary said minor Ruchika was expelled from her school at the behest of the convict but the learned trial Court failed to take into account that minor girl was

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molested and other tell tale circumstances were created by the accused which ultimately forced the minor to commit suicide. She under went various miseries at the hands of the accused who had been got her expelled from the school. The victim and his family members were harassed. Sarcastic remarks were being passed to her whenever she used to go outside. She remained depressed and confined to her house and ultimately committed suicide. It is a case of vivid example of the persons like the convict who had always considered themselves above the law. Ashu, the brother of Ruchika was falsely involved in various cases of theft and was tortured. Later on he was discharged in all the cases by the court. A procession including consisting 50/60 persons was carried out in Sector 6 Panchkula on 26.8.1990 at the behest of the appellant. The said procession was raising slogans against Ruchika and in favour of the appellant. The DGP submitted his report recommending the registration of case against the appellant on 3.9.1990 and Ruchika was expelled from the school on 19.9.1990 because daughter of the convict was also studying in the same school and was of the same batch. No case was registered against the convict despite recommendation of the DGP of the State. After decision of this case by the learned CJM, Chandigarh an inquiry was conducted. The leaned SDM, Chandigarh submitted his report to Home Secretary, Chandigarh on 8.2.2010 where it was categorically mentioned that Ruchika was expelled from the school due to extraneous pressure. Ruchika was got expelled from her school on 19.9.1990 on account of submission of late fee whereas convict gave representation to Home Minister, Haryana after barely a week i.e. on 26.9.1990 stating that Ruchika was expelled from the school on loose moral ground and thereafter the report of DGP which recommended registration of FIR

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was suddenly changed into departmental inquiry and was kept further under the wrap for three years and after death of Ruchika in the year 1993, the file was sought to be closed with the office note since Ruchika had died, therefore, no action on the complaint was required to be taken. The convict tried to put pressure on all the PWs by way of lengthy cross-examination. During trial of the case every possible method was used to sabotage the story of prosecution. Then DGP Sh. R.R. Singh conducted the inquiry and recorded statement of Ruchika in the year 1990. FIR was registered when Hon'ble Hight Court passed the orders on the writ petition filed by the complainant. It took nine years for registration of the case and further nine and half year for completion of the trial. At the time of act of molestation the convict was posted as Inspector General of Police who got his promotions from time to time and retired in the year 2002 as DGP, Haryana. On the other hand, victim who was minor, teenaged girl, studying in tenth class and ultimately being fed up with the life committed suicide. The act of the molestation of Ruchika by the convict was not on the spur of moment but was preplanned act. The convict being Inspector General of Police was duty bound to protect the vulnerable persons but he himself committed the act of molestation of minor girl. This is a major aggravating factor requiring the severest of the punishment to be awarded to the convict. Sentence imposed should respond to the sensitivities of the society and imposing a meager sentence would be counter productive. The Court must not keep in view the rights of the criminals only but must also keep the rights of the victim of the crime and society at large while considering the imposition of appropriate punishment. The sentence imposed by the Court should have a deterrent affect on the wrong

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doer. The undue sympathy in imposing inadequate sentence do more harm to the justice delivery system and undermine the public confidence. The sentence of imprisonment awarded to the convict is grossly inadequate and requires that same be enhanced to the maximum extent provided for the commission of offence punishable under Section 354 IPC. He relied upon case State of Madhya Pardesh Vs. Sheikh Shahid 2010(1) RCR (Crl.) 220, State of Karnatka Vs. Krishna @ Raju (1987) 1 SCC 538, Savaka Perumal Vs. State of Tamil Nadu 1991, Crl. L.J. 1845 SC, Dhananjoy Chatterjee @ Dhanna 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 and others Vs. State of Karnatka 2005 IV (Cr.) (SC) 78 and Ahmed Husein Vali Mohammed Saiyed and

another Vs. State of Gujarat 1 (2010) CCR 1(SC).

44. The learned counsel for the convict Sh. S.P.S. Rathore has argued that in the instant case media at the behest of the persons who had involved him in this false case built up malicious hate campaign against the convict even after pronouncement of the orders on 21/12/2009 which led to murderous assault on the convict on 8.2.2010. The media and the opposing counsel in the instant case have been commenting and published half truths and twisted facts to maintain sensational characters of the news in order to promote their own economic interests. The media has not exercised restraint even in respect of Court judgment. Every one is presumed innocent until proved guilty. There is nothing on record that there was anything adverse against the convict earlier or there is any misconduct on the part of the convict even after the incidence. He is having flawless and high reputation regarding integrity and high moral character. He was awarded President's medals and other decorations which are only awarded

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to the persons of integrity and high moral character. If the convict had any earlier intention of misbehaving Ruchika then he would never have called her at 12:00 hours in the day rather he would have called her after 5:00 p.m. He would not have sent Aradhna to call the coach and to add one more witness as coach. The age of the girls is generally reduced at the time of initial admissions in the school. No medical proof or the certificate from the Registrar of Births and Deaths has been produced by the prosecution. Ms. Ruchika was likely to be more than 16 years of age but was shown only 15 and half years in the school certificate. The convict in his statement under Section 313 Cr.P.C. had clarified that he had no hand in the procession on 26.8.1990. No person from Rajiv Colony of Panchkula was examined to prove any connection with the convict. The Secret Inquiry Officer from whom Sh. R.R. Singh gathered information was also not examined. No question was put to the convict under Section 313 Cr.P.C. regarding the allegations of harassment of Ashu. The convict has proved the written statement filed by the Government in suo-moto the proceedings for grant of compensation to Ashu Girotra as Ex.DW11/A and said proceedings were ultimately quashed by the Hon'ble Apex Court. Said issue was duly examined by Hon'ble Apex Court. Ashu Girotra was duly represented by his counsel before the Apex Court. He had no role in arrest of Ashu. The convict took recourse two legal remedies by filing complaint for defamation. There is no question of harassment of any witness in this manner. Charge sheet was submitted on 17.11.2000 and judgment was passed by learned Trial Court on 21.12.2009. During said period this case was fixed for about 240-250 days but appellant never sought adjournment except for a short period when he was operated for heart valve replacement on 10.9.2007 and

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was convalescing after the major surgery. The trial of the case was delayed only due to non production of witnesses by the prosecution and on the request of the prosecution. The convict is entitled for benefit of protracted trial.

45. The learned trial Court erred in not granting probation to the convict that allegations were serious in nature since the victim was minor and allegations are of moral turpitude. The view of the trial Court is misconceived and reflected by media bias. The provisions of Probation of Offenders Act are beneficial provisions. The convict deserves benefit of admonition under Section 3 of Probation of Offenders Act or alternatively benefit of probation for good behaviour under Section 4 of the Probation of Offenders Act since the alleged incident is dated 12.8.1990 and is now about 20 years old. The convict is 69 years old. He has major health problems. He had undergone open heart surgery for replacement of aortic valve and he is continuously on medications for controlling his INR through blood thinners which has to be monitored regularly otherwise it can be fatal on account of blood clotting or internal bleeding. He is suffering from severe spondilitis, hyper tension and diabetes. He is retired from service and has dependent unmarried daughter with congenital heart problem and has to look after her personally. He is getting pension. His retirement benefits are in peril for which notice has already been served upon the convict by the Government of India, it will amount to punishment to his family. He has undergone agony for protracted trial stretching for more than 10 years. His agony commenced in 1990 when he was subjected to inquiry by Sh. R.R. Singh. Charge sheet was issued to him in 1991. After dropping of inquiry he has to litigate in

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the Hon'ble Punjab and Haryana High Court and thereafter in the Apex Court since 1997. It had exhausted him both mentally and financially. The convict is having complete honest and clean reputation who was DGP Haryana. PW.10 and PW.11 themselves justified that convict had never been linked with any other matter of moral turpitude or mis behaviour with any girl prior to 12.8.1990. He has never been convicted in any other case till date. He has remained on bail through out the trial. He never violated any condition of the bail bond till date. The maximum allegations made against the convict is that of embracing the girl. The convict has already been punished by motivative media which laid unleashed hate campaign against him which culminated in murderous assault on him in the Court compound on 8.2.2010. Media hate campaign also led to forfeiture of his President's medal given in 1985 i.e. five years prior to the alleged occurrence for his outstanding professional accomplishment. The counsel for the convict relied on case Ranji Missir Vs. State of Bihar AIR 1963 Supreme Court 1088, Isher Dev Vs. State of Punjab AIR 1912 SC 1295, Hamir Singh Vs. State of Punjab Criminal Revision No.551/2009 decided on April, 15, 2009, Narinder Kumar Vs. State of Punjab Criminal Revision No.648/2002, Dhanpat and others Vs. State of Punjab and another Criminal Revision No.210 of 1991 decided on March 16, 2010, Ajay Dahiya Vs. State of Haryana Criminal Revision No.1413 of 2000 decided on 12.2.2010, Kaur Singh Vs. State of Punjab Criminal Revision No.566 of 2003 decided on March 6, 2009, Kanwar Pal Singh Vs. State (Admn., U.T. Chandigarh Thro' Secy., and another (appeal Crl. 1032 of 1998) decided on 27.7.2005 by Hon'ble Supreme Court, Lakhwinder Singh and another Vs. State of Punjab Criminal Appeal No.270 SB of 1995 decided on March 9, 2007, Parmod Vs. State of Haryana Criminal Revision No.1035 of 2000 decided on 3.3.2009, Rai Singh Vs. State of Punjab Criminal Revision No.7 of 1993 decided on July 4, 2007, Mahindro Devi Vs.

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State of Haryana and others Criminal Revision No.2332 of 2004 decided on 14.9.2006, Pal Singh and others Vs. State of Punjab Criminal Revision No.770 of 2002 decided on 24.3.2009 and Jaimal Singh Vs. State of UT, Chandigarh Criminal Revision No.588 of 1997 (O&M) decided on February 15, 2010.

46. After considering the submissions of the counsel for the parties, the question arises what is the object of punishment. It is necessary to understand the co-relation of crime and punishment. According to Ralf Waldo Emerson, “Crime and punishment grow out of one stem. Punishment is a fruit that unsuspected ripens within the flower of the pleasure which concealed it”. The most simplistic definition of punishment was given by Hugo Grotious who defined punishment as the infliction of an ill, suffered for an ill done. However, from a criminological point of view punishment can be defined as a penalty or sanction given for any crime or offence. So, punishment is as necessary to law as law is necessary for the society. The punishment is a negative which seeks to restore the moral balance, and to that extent it is an ethical necessity. When this purpose is not achieved punishment loses its purpose and effectiveness. The effect of punishment varies according to the criminality of the accuseds. There are various theories of punishment including deterrent theory, preventive theory and reformative theory. In case Sevaka Pirumal etc. (supra) Hon'ble Apex Court held in para No.9 of the judgment that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats if the courts did not protect the injured, the injured then resort to private vengeance. It is duty of every Court to award proper sentence having regard to the

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nature of the offence and manner in which it was executed or committed. In case State of U.P. Vs. Krishnan (supra) it was held by the Hon'ble Supreme Court of India that object of awarding sentence should be to protect the society and to deter the criminals in achieving the avord object of law by imposing appropriate sentence. The head note B of case State of M.P. Vs. Sheikh Sahid cited (supra) is as under :

“Indian Penal Code, Section 53- Criminal Procedure

Code, Section 354- Quantum of sentence – Undue

sympathy to impose inadequate sentence would do more

harm to the justice system to undermine the public

confidence in the efficacy of law and society could not long

endure under such serious threats- Further held:

I) The aggravating and mitigating factors and

circumstances in which a crime has been

committed are to be delicately balanced on the

basis of really relevant circumstances in a

dispassionate manner by the Court- Such act of

balancing is indeed a difficult task.

II) The social impact of the crime, e.g. where it

relates to offences against women, dacoity,

kidnapping, misappropriation of public money,

treason and other offences involving moral

turpitude or moral delinquency which have great

impact on social order and public interest cannot

be lost sight.

III) Any liberal attitude by imposing meager

sentences or taking too sympathetic a view merely

on account of lapse of time in respect of such

offences will be resultwise counter productive in the

long run.”

47. The probation laws were enacted in India to provide reformation to the offenders. It is a restorative jurisprudence in dealing with the

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offenders. The object of Probation of Offenders Act, 1958 is to prevent conversion of youthful offenders into obdurate criminals of mature age in case they are sentenced to undergo substantive imprisonment in jail. The release of offender on probation saves him from stigmatisation and thus prepares him for an upright living. The shame of going through the trial process would have sufficient chastised him. On the other hand if offenders are not punished suitably and adequately, the faith and confidence of public in criminal justice system is bound to erode and tendency to obey the law will be decreased gradually which should not be good for the society. If offenders are punished according to the gravity of the offence, then the people will think twice before committing the offence again, rather they will follow the law strictly and also the convicted person after undergoing punishment will hesitate to commit it again. There is an impression and feeling among the people that probation law is an easy let off of the wrong doer and it is a form of leniency shown to the offender and not a punishment. Whether release of offender after admonition or probation of good conduct would at all serve any useful purpose in this era of modernisation, globalization, growth of industrialization and expansion of cities with the rapid expansion of population depends upon the facts of the case. This fact cannot be lost sight of that it is the human feeling and sentiment that the aggrieved party who has suffered loss and injury to his person and property is never satisfied if the offender is released on probation. While passing sentence or releasing the offender on probation the Court cannot ignore the victim who has suffered humiliation, indignity, loss of reputation, loss of damage to his property and injury both physical and mental. Some victims are satisfied with the grant of

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compensation only but it is always not so. The Court has to consider the circumstances of the case including the nature of the offence and the character of the offender and position of the victim while awarding the sentence or releasing the offender on probation. Basically the Courts are to make balance keeping in view the totality of the circumstances of the case, status and position of the offender and the victim and nature of the offence. Coming to the case in hand trial Court held that allegations are of moral turpitude. Such allegations are serious in nature pertaining to the circumstances when the victim was minor. Liberal view cannot be taken, prolonged trial and age of the convict can be considered while passing the order on quantum of sentence. The learned trial Court further held that plea of the convict that there was no earlier allegations of such nature or any such type of conduct can be considered while passing the order on quantum of sentence.

48. In the instant case, the offence committed by the convict is under Section 354 IPC. At the time of commission of offence, the convict was police officer of the rank of Inspector General of Police whereas, victim was a teenaged minor school going girl having high hopes from life. She used to play lawn tennis in the courts of HLTA with sole aim to become good player. The convict was President of HLTA and that time and was even running office of HLTA in the garage of his house which means he was over all incharge of all the functions of HLTA. The incident is dated: 12.8.1990. The defence was created that due to indiscipline of Ruchika she was suspended from the HLTA for 15 days. Even convict filed a defamation case under Section 500 of IPC on 18.8.1990 against many persons including the minor

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victim and her friend Aradhana. The government of Haryana marked inquiry to DGP Haryana. A procession of about 50 persons was taken in Sector-6, Panchkula where victim was residing. The slogans shouters were shouting slogans in favour of convict and against the minor Ruchika. The DGP Haryana sent the inquiry report dated: 3.9.1990 and recommended the registration of case against the convict. Ruchika who was studying in the Sacred Heart Convent School, Sector-26, Chandigarh which is one of the premier educational institution of Chandigarh was expelled from the school on 19.9.1990. The daughter of convict was also studying in the said school. Since Ruchika was expelled from school few days after the sending of report by the DGP Haryana for registration of case and it is well known that hardly any girl child is expelled from the school as long as she is attending classes so the expulsion of Ruchika from the school was result of direct or indirect influence of convict on the school authorities. It is a fact that Ashu brother of Ruchika was arrested in various cases of theft but he was discharged in all the cases of theft by the courts. Since CBI did not collect any evidence as to why he was implicated in theft cases and what was the reason for his discharge and at whose instance he was arrested or implicated in the cases so no comments can be made on this contention of the learned counsel for the complainant and CBI. There is no dispute that Ruchika committed suicide. A precious life is lost. Thereafter departmental enquiry initiated against the convict on the basis of inquiry report of DGP Sh. R.R. Singh were dropped. The convict got promotions and retired as DGP of Haryana. The convict was working as senior police officer at the time of occurrence. He was President of HLTA. As police officer his role was to protect the public. As President of HLTA his role

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was to train young budding players for the India. But he failed in both duties by molesting a minor girl. People are afraid to send their minor girls to play grounds due to presence of such persons in the sports field. Due to activities of such persons, our nation is lagging behind in every sport and citizens of country felt ashamed as knowing that India lost again. As long as such persons are at the helm of affairs of sports associations the presence of women in the sports activities cannot be increased and real talent cannot be brought forward to represent the country in various sports. Justice should not only be done but it appears to have been done. I have considered the arguments of learned defence counsel if convict is not released on probation then it may affect his pensionary benefits but keeping in view the nature and gravity of the offence and the fact that the legal battle was between two unequals the said contention of learned defence counsel is of no help to the convict. Keeping in view the facts and circumstances of this case the authorities cited by learned defence counsel for releasing the convict on probation are distinguishable on facts and ratio of said authorities cannot be applied to the facts of the instant case. If convict is released on probation then it would be mockery of the justice delivery system. It is a case in which convict deserves maximum punishment prescribed for the offence under Section 354 IPC. The learned trial court fell in error by awarding rigorous imprisonment of six months to the convict. The trial court was required to minutely consider the conduct of the convict after the occurrence and during trial of the case. Cross-examination of PW.3 Aradhana was conducted in 152 pages. Cross-examination of PW.1 Sh. Anand Parkash, PW.2 Smt. Madhu Parkash, PW.3 Sh. Manish Arora, PW.5 Dr. Naresh Mittal and PW.15 Sh. S.C. Girhotra was

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conducted in 26 pages, 124 pages, 40 pages, 62 pages and 152 pages respectively. No doubt, every accused has got right to cross-examine the witness but no one has got right to drag the cross-examination to such an extent. Such a lengthy cross-examination of the witnesses prove that they were put on trial and accused was not facing trial. The objection raised by the learned defence counsel that convict is a victim of media trial is without any basis. Learned trial court has rightly held that court has concern with the facts and circumstances which are available on record only and court is not concerned with the report of any agency about the accused or the victim. So I am of the view that courts are only bound by law and its own judicial conscience. Till today, media cannot influence the decision making process. Indian courts and Indian judicial system is very strong. If media is able to influence the judgments of the Indian courts then there cannot be independence of judiciary. The courts work on the basis of legal evidence available on record. Nobody should apprehend the media trial can influence the decision of the courts. For awarding sentence the court is to take into consideration totality of facts. In the instant case the convict has no remorse for the wrong committed by him. Every witness of this case had to face allegations in one form or the other and attempt was made to catch the witness in a well woven legal web. Although convict deserves maximum punishment which is prescribed for offence under Section 354 IPC but keeping in view the age of the convict, his medical background, his dependent unmarried daughter who is suffering from congenital heart problem, his meritorious service record and the fact that convict spent more than 200 dates in the court during trial of the case, I am of the view that purpose of law would be met if convict is awarded sentence of

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rigorous imprisonment for 1½ years, otherwise, face of the public in justice delivery system/judiciary would erode.

49. In the light of the above discussion, the appeal filed by Sh. SPS Rathore against his conviction is hereby dismissed. The appeal filed by CBI and revision petition filed by the complainant against the inadequacy of the sentence and for enhancement of sentence of imprisonment are allowed. The order of sentence passed by learned Chief Judicial Magistrate, Chandigarh whereby convict was awarded rigorous imprisonment for six months is hereby set aside. The convict is ordered to undergo rigorous imprisonment for 1½ years (one and half year) for committing offence under Section 354 IPC. The sentence of fine remains unchanged. The convict is ordered to be taken into custody and is ordered to be sent to the concerned jail for undergoing the sentence of imprisonment. Record of learned trial court be returned. One copy each of the judgment be placed on the connected appeal file titled as CBI Vs. SPS Rathore and connected revision file titled as Madhu Parkash Vs. SPS Rathore. All the files are ordered to be consigned to the record room.

Pronounced on:25.5.2010. (Gurbir Singh)

Addl. Sessions Judge, Chandigarh.

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