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TaxTMI 
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2016 (9) TMI 1641
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.... The office of HLTA was established in the garage of House No. 469, Sector 6, Panchkula, an under construction building owned by the Appellant-accused which was divided into three portions wherein front portion was being used as the office of HLTA and the other two portions were being utilized by T. Thomas and Kuldeep Singh, Coach and Manager respectively of the Association for residential purposes. HLTA enrolled several member players who were mostly nearby residents of Panchkula on payment of monthly subscription. (c) Ms. Ruchika (since deceased), daughter of Shri S.C. Girhotra and Ms. Aradhana @ Reemu, daughter of Shri Anand Prakash and Madhu Prakash (the complainant), both aged about 15 years, residents of Panchkula got themselves enrolled as members of the HLTA. Both of them were good friends and used to go together for practice at the Tennis court. The Appellant-accused was also a frequent visitor to the said Tennis court. One day, when Ms. Ruchika informed the Appellant-accused about her plan to go abroad, the Appellant-accused met her father-Shri S.C. Girhotra on 11.08.1990 in order to persuade him to not to send his daughter out of the country for specialized tenn....
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...., Ms. Aradhana also ran behind Ms. Ruchika to enquire about the matter. Thereafter, Ruchika narrated the whole incident to her. After discussion, both the girls decided not to inform the same to their parents as the Appellant-accused, being IG of Police, could involve or harass them and their parents. (g) On 14.08.1990, Ms. Ruchika along with Ms. Aradhana went to the lawn tennis court at about 4:30 p.m., instead of their usual timing, in order to avoid the Appellant-accused, who used to visit the court in the evening. When both the girls were about to return, at about 6:30 p.m., Mr. Paltoo-the ball picker, came out of the court and told Ms. Ruchika that the Appellant-accused had called her in his office. However, Ms. Ruchika refused to meet him and pointed out to Ms. Aradhana that since they had not informed their parents about the mis-behaviour of the Appellant-accused on 12.08.1990, the Appellant-accused was feeling emboldened and had again called her to his office with a view to molest her. Thereafter, both of them decided to disclose the incident that took place on 12.08.1990 to their respective parents. Accordingly, Ruchika narrated the incident of her molestation at ....
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....t (FIR) being No. 516 of 1999 Under Sections 354 and 509 of the Indian Penal Code at PS Panchkula, Haryana against the Appellant-accused. (l) The CBI filed charge-sheet dated 16.11.2000 before the Court of Special Judicial Magistrate, CBI, Ambala Under Section 354 of the Indian Penal Code. A petition Under Section 473 of the Code of Criminal Procedure, 1973 (in short 'the Code') was filed by the CBI for condoning the delay in filing the charge sheet and for taking cognizance which was allowed by the Court of Special Judicial Magistrate, by his order dated 05.12.2000. Being aggrieved by the order dated 05.12.2000, the Appellant-accused preferred Writ Petition (Criminal) being No. 46381 of 2000 before the High Court challenging the condonation of delay. The High Court, by its order dated 18.04.2001 dismissed the petition with a direction to the trial court to dispose of the case preferably within six months. (m) Further, a petition was filed for addition of Section 306 Indian Penal Code in the charge sheet which was allowed by an order of the Trial Court dated 23.10.2001. Being aggrieved by the order dated 23.10.2001, the Appellant-accused preferred Criminal....
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....g with the presence of a number of people including labourers, it would be impossible to even try for such an act, knowing well that the act can be seen by others. Learned senior Counsel further contended that the prosecution story is absolutely false and frivolous and the Appellant-accused has been framed in the present case by the complainant party and the high level officers of the State with an ulterior motive. The Appellant-accused neither visited the house of Shri S.C. Girhotra nor asked for a meeting with Ruchika on 12.08.1990 in HLTA office. It was further argued that the Memorandum/petition has been drafted after prolonged consideration and deliberation by several interested persons including some senior police officers of the State of Haryana. The name of the players who were allegedly accompanying Ms. Ruchika at the relevant time has not been mentioned in the Memorandum intentionally and later on Ms. Aradhana has been planted as 'Sathi Khiladi'. It was contended that the words 'Sathi Khiladi' have been mentioned in the Memorandum for the purpose of introducing an eye witness of choice. Learned senior Counsel further contended that the signature of Ms. Ruc....
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....also he has not held the enquiry in proper manner. It was further submitted by learned senior Counsel that the media has played a negative role in the present case and published the selective news items only in collusion with the complainant party. The material witnesses like ball picker-Paltoo and Coach-K.T. Thomas, who were allegedly present at the place of alleged incident, have not been examined by the prosecution. Further, the witnesses have made a lot of improvements and there are other discrepancies also in the statements of witnesses and therefore, the same could not have been relied upon by the courts below. Learned senior Counsel finally contended that the case of the prosecution is false and frivolous, the net result of which is that the prosecution has failed to prove its case and the Appellant-accused is entitled to be acquitted. 7. Per contra, learned senior Counsel for the CBI submitted that the occurrence is well proved by the unimpeachable testimony of Ms. Aradhana (PW-13). The eye witness stood with her testimony till end and therefore, the contention urged on behalf of the Appellant-accused with regard to the above evidence has no relevance or substance. On a ....
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....then DSP were present on the spot, it cannot be said that they actively participated in its drafting and certain unnecessary and unwarranted facts were added to it. If experienced police officers would have participated in its drafting then it should have been in the form of FIR and the evidence must have been specifically pointed out in it. But the language of the Memorandum is like that the people have tried to show their resentment against the alleged act and demanded action against the accused. The reason for not mentioning the name of Ms. Aradhana in the Memorandum is that she could have been harassed by the accused, who being a high ranking police officer. Because of this reason only, Ms. Ruchika or Ms. Aradhana or their parents did not approach the local police to lodge the FIR. They were fully aware that the Appellant-accused, being a senior most police officer, holding a key post in the State, would definitely hamper the investigation or may not allow the police officers to cooperate with the complainant party. 10. Learned senior Counsel for the CBI further pointed out that Shri R.R. Singh was an authority legally competent to investigate the facts of the Memorandum and....
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....her and also asked her to meet the Appellant-accused on 12.08.1990 in his office at 12.00 noon. This fact finds corroboration from the statement of Ms. Aradhana (PW-13). She has deposed that on 12.08.1990, at about 11.00 a.m., Ms. Ruchika came to her house and she very excitedly told her that on 11.08.1990, the Appellant-accused had visited her house and requested her father not to send her abroad and that he would arrange special coaching for her at HLTA itself as she was a promising player. She further informed Ms. Aradhana that the Appellant-accused had asked her to meet him on 12.08.1990, at 12.00 noon, at HLTA office. The very same fact finds place in the Memorandum also which was signed by Ms. Ruchika along with others. The evidence of PW-15 corroborates with the evidence of PW-13 in order to substantiate the fact that the Appellant-accused visited the house of Shri S.C. Girhotra on 11.08.1990 and asked him to send Ms. Ruchika to his office on 12.08.1990, at 12.00 noon. 13. Ms. Ruchika (since deceased) and Ms. Aradhana went to play at lawn tennis court on 12.08.1990 and while they were playing Sh. Paltoo-the ball picker came there and told Ms. Ruchika that the Appellant-ac....
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....her, Ruchika started weeping loudly. When she asked Ms. Ruchika as to what had happened, she narrated that as soon as she left to fetch the coach, the Appellant-accused caught hold of her hand which she got released with great difficulty, but he again caught hold of her hand and with his other hand the Appellant-accused caught hold of her waist and dragged her towards him and embraced her. She further told her that in the meantime when PW-13 reached there, he got scared and immediately released her. After discussion as to whether the incident be disclosed to their parents or not, both of them decided not to inform their parents about the incident as the Appellant-accused, being a high ranking police officer, could harm their families. The molestation of Ms. Ruchika, at the hands of the Appellant-accused is very well proved from the deposition of PW-13. There was no reason for Ms. Aradhana (PW-13) to depose falsely. In fact, she witnessed the actual act of molestation of Ms. Ruchika at the hands of the Appellant-accused. Further, the fact regarding molestation of Ms. Ruchika by the Appellant-accused has been stated on oath by Shri Anand Prakash (PW-1), Mrs. Madhu Prakash (PW-2), Mr.....
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....rt identified their signatures as well as signatures of Ms. Ruchika on the Memorandum. The Appellant-accused disputed the genuineness of signatures of Ms. Ruchika. He tried to substantiate his contention by examining the hand writing expert. The contention of the Appellant-accused is not tenable as the witnesses who have been examined by the prosecution and in whose presence the Memorandum was signed, have identified the signatures of Ms. Ruchika. Shri Anand Prakash has proved the preparation of Memorandum. In this regard, the law is very clear that a fact should be proved by the best available evidence. The witnesses had identified the signatures of Ms. Ruchika on the Memorandum, therefore, the evidence of the hand writing expert cannot considered to be safe and it requires corroboration from independent witnesses. As already stated, the signatures of Ms. Ruchika have been proved by the witnesses who have signed the Memorandum and are direct, primary and best available evidence in the case and, therefore, the same can be relied upon. 16. On 16.08.1990, the Memorandum was given to Shri J.K. Duggal (PW-12), the then Secretary (Home) who assured them that the matter would be enqui....
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....against the Appellant-accused, no action was taken by the State Government. It is most surprising that no value was attached to the said Report and to the recommendations made by such a high ranking police officer i.e., Director General of Police, Haryana. 18. It has also been argued from the side of the Appellant-accused that Shri B.S. Ojha and Shri J.K. Duggal were having great grudge against him. It was further contended that the relations between the Appellant-accused and Shri R.R. Singh were strained since 1976. But this suggestion was denied by the witness while appearing in the court. Learned senior Counsel for the CBI has strenuously submitted that a proper report was given by Shri R.R. Singh and it is a matter of common experience that no girl or father would make a false complaint of such heinous nature even against their enemy. 19. Shri R.R. Singh had conducted the enquiry under the orders of the Government of Haryana, therefore, he was competent to investigate/enquire into the allegations made in the Memorandum. As such, all the statements recorded by him are admissible Under Section 157 of the Indian Evidence Act for the purpose of corroboration. Shri J.K. Duggal....
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....quiry conducted by him was merely a fact finding enquiry. The undisputed fact is that nothing happened even after the submission of the report by Shri R.R. Singh because no action was taken by the State Government on the same. Further, all the witnesses including Sh. J.K. Duggal and Shri B.S. Ojha examined by the prosecution are the independent witnesses and the enmity, as suggested by the Appellant-accused, is not proved, as discussed above. 20. Learned senior Counsel for the Appellant-accused has contended that in the present fact situation, how a person can embrace other while standing behind the table and then suddenly fall into his chair on the entry of PW-13. In this regard, we have carefully considered the evidence given by the prosecution, especially the evidence of PW-13. She, being the sole witness to prove the actus reus, her evidence should receive some careful consideration and we do not find any reason for her to depose falsely against the Appellant-accused. There is, thus, every possibility that Ms. Ruchika could have been embraced by the Appellant in the manner as described by PW-13. 21. The High Court, on proper re-appreciation of the entire evidence, came to....
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....ng thereby to outrage her modesty. 23. This Court, in Vidyadharan v. State of Kerala (2004) 1 SCC 215, held as under 10. Intention is not the sole criterion of the offence punishable Under Section 354 Indian Penal Code, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight..... 24. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. The sequence of events ....
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.... to the contention of learned senior Counsel for the Appellant-accused that the signature of Ms. Ruchika on the Memorandum was forged though she signed the same in front of Shri Anand Prakash, Shri S.C. Girhotra, Ms. Aradhana and Mrs. Madhu Prakash and they have admitted the same, we are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but th....
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....on which the conclusion as to the genuineness of the letters is arrived at. That however is a matter which we cannot permit to be canvassed before us. 29. In Smt. Bhagwan Kaur v. Shri Maharaj Krishan Sharma and Ors. (1973) 4 SCC 46, this Court held as under: 26. ...It is no doubt true that the prosecution led evidence of handwriting expert to show the similarity of handwriting between (PW 1/A) and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, not much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case. 30. It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type o....