2010 Supreme(P&H) 2514

2010(4) LAW HERALD (P&H) 2737
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Jitendra Chauhan
Crl. Revision No.1558 of 2010 (O&M)
S.P.S. Rathore
v.
Central Bureau of Investigation
{Decided on 01/09/2010}

IMPORTANT POINT
Ruchika's Molestation case--Conviction maintained--Sentenced enhanced from 6 months to 1 year and 6 months confirmed.
Molestation--Consent--When a female is being held physically, by force and without her consent, offence of molestation is complete--Absence of consent itself presupposes fear and/ or annoyance on part of person so held.
Molestation--Ingredients--Explained.
Molestation--When allegations are pertaining to an act of physical molestation, analogy that whether same could have been attempted by a sane man is of no relevance.

Headnote:(A) Criminal Procedure Code, 1973, S.401--Indian Penal Code, 1860, S.354--Locus Standi--Impleadment of complainant--Complainant had filed a criminal writ petition in year 1997 praying for registration of an F.I.R. against petitioner which was allowed by High Court--Subsequently, order of High Court was also upheld by Hon'ble Supreme Court-- Pursuant to same a F.I.R was formally registered by C.B.I--Complainant's locus standi already stands accepted by High Court as well as by Hon'ble Supreme Court--They (complainants) were a party before trial court and first appellate court--It can be inferred that petitioner has intentionally not impleaded complainant as Respondent--Impleadment of complainant as respondent in revision filed by appellants allowed. (Para 18)

       (B) Indian Penal Code, 1860, S.354--Molestation--Conviction--Eye witness--Theory of improbability and impossibility--Allegations were duly substantiated and proved beyond reasonable doubt by cogent evidence of eye-witness-- Corroboration of eye-witness by Inquiry office and documentary evidence on record --Conviction upheld. (Para 23)

       ON FACTS

       Even though a labourer, who is said to have been working on that day at petitioner's house has been examined as a DW, all that he deposed was that he heard that 'Sahab' was scolding a girl--There is no evidence that he could actually see from outside as to what was happening inside HLTA office--As per site plan point X refers to front side of office/ garage facing road which has been shown as a wall--Eye witness has also deposed that on 12.8.1990, there existed a wall at Point X--PW 8 has also submitted in his evidence that he has prepared legend of site plan as per eye witness and has rightly shown a wall at point X--In face of site plan and testimony of eye witness who has been believed in material terms, contention relating to improbability of act loses relevance in so far as theory of impossibility of act is directed towards trying to prove that no man can embrace another, in manner that eye witness has deposed, while standing behind a table and then suddenly falling into his chair when eye witness entered room--Main limb of impossibility theory put forth by counsel for petitioner is that there was a table between petitioner and victim and it was not possible to embrace victim across table which was allegedly 4 x 3 feet wide--However, eye witness has no where stated that petitioner was trying to embrace victim across table--As per eye witness, when she and victim went inside HLTA office, a table and a chair were already lying and petitioner called for another chair on which eye witness sat--Victim kept standing and eye witness was asked by petitioner to go and call coach--Only inference that can be drawn from this description is that it was eye witness who was sitting across table, opposite petitioner but victim kept standing--After exit of Victim's friend, relative positions of Victim and petitioner could have undergone an even more suitable posture for commissioning of said act i.e. petitioner getting up and holding hand of Victim would have brought them to position as shown in site plan--There is thus every possibility that Victim could have been embraced in manner that eye witness eventually described--Moreover, description that petitioner fell back in his chair on seeing Victim's friend does not mean that petitioner literally fell down in his chair--It can equally be inferred that immediately on seeing eye witness, victim was released and he immediately sat back in his chair--There is thus no gain in saying that act could have never taken place. (Para 24, 25 & 26)

       (C) Indian Penal Code, 1860, S.354 --Conviction--Molestation--Delay in lodging FIR--Delay of 6 days in presenting complaint duly explained--Having regard to facts of case, it was not possible for molested girl to straight away go and lodge an FIR against accused who happened to be a very senior police officer--Court has to keep in view possible state of mind of Victim at that time--Sequence of events is a sufficient index to record that there is no delay in case--Formal complaint was preceded by a memorandum to state government containing similar allegations against petitioner which left little scope for false implication of petitioner--Question of invoking alternate remedy u/s 190 read with section 200 of Cr.P.C. would have arisen only if memorandum submitted to state government also would not have resulted in any action against petitioner--However, State government acted in a responsive manner taking note of serious allegations levelled against petitioner and acted in a proper manner by marking Inquiry to head of State police machinery--There was, thus, no occasion for victim or her parents/ friends to approach courts.

       ON FACTS

       It would not have been an easy decision for her either ways but having regard to our social set up and also petitioner's official position, she probably decided to keep quiet--It was only after it appeared to her and her friend 'A' on 14. 8. 1990 that petitioner does not seem to be improving that they decided to disclose facts to their parents--Follow up action was immediate since locality residents, including parents of victim and her friend went to meet petitioner in HLTA office on 14th evening itself--On following day, a memorandum containing allegations against petitioner was prepared which was then submitted to Home Secretary, Government of Haryana on 16.8.1990--It was only after assurance of Home Secretary that Victim and her parents probably got courage to lodge a formal complaint with SHO--In such circumstances, sequence of events is a sufficient index to record that there is no delay in case--In any case, delay in FIR is a possible cause for false implication when a large number of people have to be roped in along with main accused--Here is a case where there was only 1 accused and only reason for delay was high civil position that he was holding which in all probability caused fear as well in minds of Victim and her father--In any case, formal complaint was preceded by a memorandum to state government containing similar allegations against petitioner which left little scope for false implication of petitioner--Question of invoking alternate remedy u/s 190 read with section 200 of Cr.P.C would have arisen only if memorandum submitted to state government also would not have resulted in any action against petitioner--However, State government acted in a responsive manner taking note of serious allegations levelled against petitioner and acted in a proper manner by marking Inquiry to head of State police machinery--There was, thus, no occasion for victim or her parents/ friends to approach courts--Complainant had come to realize that he is pitted against high police official--Therefore, representation was made to Home Secretary--Father of Victim as well as her friends and supporters were right in their own way to firstly approach senior functionaries of state administration--Once they got assurance of justice from them, they lodged a formal complaint against petitioner with area SHO--If Victim and her friend still came to play tennis after a day's break, it was in tune with their decision not to disclose incident of 12.8.1990 fearing hostile reaction from petitioner--Had they stopped coming altogether, even then they would have had to disclose reason behind same--They probably thought it wise to go and play instead of inviting undue questioning from their parents which would have been their probable reaction to sudden discontinuance of playing tennis by their daughters--In any case they went at 4.30 pm on 14.8.1990 whereas their usual shift was at 6.30 pm, simply to avoid petitioner. (Para 28, 29, 31 & 33)

       (D) Indian Penal Code, 1860, S.354--Molestation --Conviction --Allegation of signature of victim forged on memorandum--There is nothing on record on basis of which, it can be said that tender age of victim was exploited for benefit of Sh. Anand Parkash--Uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and same should not be relied upon either for conviction or for acquittal--There is no corroboration at all of handwriting expert testimony with regard to issue of forgery of Victim's signatures--In fact, identification of relevant signatures by a person who is acquainted with same in ordinary course is a much more reliable piece of evidence--Signatures of Victim have been identified by her father Sh. S.C. Girhotra, which completely disproves allegation of forgery made by petitioner--In absence of any authentic handwriting of victim, it is impossible to contend that either of signatures of Ms. Ruchika on memorandum--Court has to believe testimony of father of victim since he has identified signatures if his daughter on memorandum--Conviction upheld. (Para 35, 36 & 37)

       (E) Evidence Act, 1872, S.32 and 33--Hearsay Evidence--Admissibility of-- General rule regarding hearsay evidence is that it is not trustworthy--However, there are 2 exceptions to this general rule, namely 'necessity' and 'special circumstances which render evidence more trustworthy than hearsay evidence in general. (Para 61)

       ON FACTS

       Deposition pf PW 13, victim's friend is unique due to fact that her narration of eye witness account and of what victim told her after she left HLTA office, forms part of one integral incident--It is not as if eye witness account happened on an earlier day or a long time before--Chain of events is so inextricably linked that it is difficult to conclusively hold that her testimony consisted of hearsay evidence--Hardly any time had elapsed between act of molestation and conversation between victim and her friend so as to render said conversation as hearsay evidence--It is thus safe to infer that evidence Victim's, with regard to her conversation with victim, after both had left HLTA office on 12.8.1990, falls under second exception to admissibility of hearsay evidence i.e. special circumstances.. (Para 61)

       (F) Indian Penal Code, 1860, S.354--Molestation-Conviction--Interested witness--Fact that Victim's friend 'A' was arrayed as an accused in defamation case filed by petitioner itself is sufficient to negative contention that she was an interested witness--Defamation case was filed on 18.8.1990, in regard to incident of slogan shouting against petitioner on 16.8.1990 i.e. in evening, at HLTA courts--All those persons who had allegedly shouted slogans against petitioner were involved in said case --Victim's friend was allegedly one of them means that she had already supported victim in her fight against petitioner and her participation in slogan shouting on 16.8.1990 against petitioner was proximate cause of her involvement in defamation case--Contention that victim's friend became interested after her name figured in defamation case is thus without substance since admittedly, she was involved in whole incident earlier to that. (Para 63)

       (G) Indian Penal Code, 1860, S.354 --Molestation--Chance Witness --Victim's friend PW 13 accompanied victim to office of petitioner with knowledge that petitioner had called victim to meet him--She cannot said to be not a chance witness--Conviction upheld. (Para 64)

       (H) Indian Penal Code, 1860, S.354 --Molestation--Non examination of witness--Prosecution has established its case in totality-- Courts below have taken a view after relying upon all relevant evidence and after affording full opportunity to petitioner--Therefore, it is safe to maintain conviction of petitioner which is based on appreciation of evidence and its substantial independent corroboration led by prosecution.

        (Para 67 & 69)

       (I) Indian Penal Code, 1860, S.354--Molestation--Ingredients--For constituting an act of molestation following ingredients are required:

       1. Assault OR

       2. Use of criminal force on a woman

       3. With intention OR

       4. With knowledge that such assault of criminal force is likely to outrage her modesty. (Para 83)

       (J) Indian Penal Code, 1860, S.354--Molestation--When allegations are pertaining to an act of physical molestation, analogy that whether same could have been attempted by a sane man is of no relevance--Physical lust makes a man blind and even though it is a momentary lapse of morality which shuts down reasoning ability of a man, consequences are disastrous--A man possessed by physical lust cannot see anything beyond his immediate target

       (K) Indian Penal Code, 1860, S.354--Molestation--Consent--When a female is being held physically, by force and without her consent, offence of molestation is complete--Absence of consent itself presupposes fear and/ or annoyance on part of person so held--On Facts--Testimony of lone eye witness is very material for concluding whether ingredients of section 354 IPC are present in act of petitioner physically holding minor victim --After searching for coach, when Victim's friend re-entered HLTA office, she saw petitioner holding one hand of Victim with his one hand, and with other hand he had encircled waist of Victim and was pushing her towards his chest--Victim was trying to push petitioner away with her free hand--It is thus clear that Victim was annoyed with petitioner using force on her which constitutes first ingredient i.e. criminal force--Other act of petitioner of encircling waist and holding one hand of Victim and pushing her towards his chest is enough to conclude that her modesty had been outraged at that moment itself--Act of Victim getting her freed from grip of petitioner and running out of HLTA office is sufficient proof that she was terrified, being held against her wishes and with criminal force. (Para 84)

       (L) Criminal Procedure Code, 1973, S.401--Revisional Jurisdiction--Interference--There is no manifest error on any point of law or facts--Learned Trial court after considering entire evidence has given its findings--Findings recorded by learned trial court stands scrutinized and upheld by learned Lower appellate court--No interference. (Para 93)

       (M) Criminal Procedure Code, 1973, S.401--Revisional Jurisdiction--Interference --Principles governing interference by Court in a criminal appeal by special leave summarised. (Para 93)

       (1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence;

       (2) that the Court will not normally enter into a re-appraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on;

       (3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court;

       (4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused;

       (5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence:

       It is very difficult to lay down a rule of universal application but the principles mentioned above and those adumbrated in the authorities of this Court cited supra provide sufficient guidelines for this Court to decide criminal appeals by special leave. Thus in a criminal appeal by special leave, this Court at the hearing examines the evidence and the judgment of the High Court with the limited purpose of determining whether or not the High Court has followed the principles enunciated above. Where the Court finds that the High Court has committed no violation of the various principles laid down by this Court and has made a correct approach and has not ignored or overlooked striking features in the evidence which demolish the prosecution case, the findings of fact arrived at by the High Court on an appreciation of the evidence in the circumstances of the case would not be disturbed”.

       (N) Indian Penal Code, 1860, S.354--Probation of Offenders Act, 1954--Molestation--Conviction--Release on Probation-- Question of grant of benefit of probation to a convict is to be considered keeping in mind following important parameters:-

       (i) Conduct of convict immediately after commission of offence;

       (ii) Conduct of convict during course of trial;

       (iii) Any remorse shown by convict for offence that he has been held guilty of ;

       (iv) Health grounds;

       (v) Family consideration;

       (vi) Protracted trial;

       (vii) Impact of grant of probation on society;

       (viii) Age of victim and effect of offence on his/her life;

       (ix) Social status of convict, in particular any special circumstances warranting high moral conduct. (Para 100)