State of H.P. vs Nain Singh and Another

R.S. Thakur, J.—This is an appeal against the judgment of acquittal dated December 7, 1979, passed by the learned Sessions Judge, Solan and Sirmaur at Nahan in. a criminal case against the two Respondents Nain Singh and Ram Kumar (hereinafter called as the accused), under Sections 342, 451 and 376 read with Section 109 of the Indian Penal Code.

The two accused namely, Nain Singh and Ram Kumar in March, 1978 were posted as Investigating Head Constable and Constable respectively in the police station at Rajgarh which is one of the Sub-Divisional Headquarters in the District of Sirmaur. One Chuhar Singh resident of Tehsil Joginder Nagar in Mandi district was posted at Rajgarh as a Supervisor in the R.P.D.O.�s office at Rajgarh since 1974. He had his residential quarter on rent at Rajgarh just below the police station and also below the main road over-there which he shared with one Man Singh who was also related to him. On March 10, 1978, they both went to meet one Khem Raj who was the son of maternal uncle of said Chuhar Singh at Chandigarh where he was doing the work of a tailor in some tailoring establishment. Said Khem Raj three years prior there to had married Tara Devi who was also at that time living with her husband Khem Raj at Chandigarh. They also both hailed from Tehsil Joginder Nagar. On March 11, 1978, said Khem Raj and his wife Tara Devi accompanied Chuhar Singh and Man Singh when they were coming back from Chandigarh to Rajgarh on March 12, 1978 and all stayed together in the quarter of Chuhar Singh over-there.

According to the prosecution on March 13, 1978, there was no Station House Officer in the police station at Rajgarh and on that day at about 10 p.m. the accused Nain Singh accompanied by the co-accused Ram Kumar left the police station Rajgarh on patrol duty. Sometime thereafter he gave beatings to one Sucha Ram, a labourer, for being on the road at that late hour. Thereafter, he went to the SFDA Hall in the town of Rajgarh and enquired from the person Incharge as to who were staying in the guest house of the SFDA Hall and also took into possession the visitor�s book for checking up the entries therein. After some time he then even went to a room of the guest-house where five or six people were sleeping and woke them up to check up their credentials. The two accused were under the influence of liquor at that time and when one of those persons sleeping over-there named Jagdish objected to this unwarranted interference on the part of the accused, the accused Nain Singh ordered him to accompany the accused to the police station. He was, however, allowed to go back when they were half way to the police station as the accused found that the other persons who were sleeping with Jagdish in that guest-house were also coming to the police station. Thereafter the two accused went to the quarter of one Joginder Singh which was just adjacent to the quarter of said Chuhar Singh and was shared by said Joginder Singh with one Khazana s Ram. It was about 11.30 p.m. at that time. Said Khazana Ram then opened the door of the quarter and the two accused went inside and lifted the quilt under which Joginder Singh was sleeping and then left his quarter while observing that nothing was to be found there.

The two accused thereafter knocked at the door of the quarter of Chuhar Singh. Said Chuhar Singh, his companion Man Singh and the two guests Khem Raj and his wife Tara Devi were fast asleep at that time. When the door of the quarter was opened, the two accused went inside and asked the two guests of Chuhar Singh, namely Khem Raj and his wife Tara Devi to accompany the two accused to the police station. When said Khem Raj and Chuhar Singh protested as to why they should accompany the accused, the accused Nain Singh told them that he had received a wireless message from Chandigarh that said Khem Raj had abducted the girl Tara Devi. Said Khem Raj then told the accused Nain Singh that Tara Devi was his legally wedded wife and there was no question of abducting her and asked the accused Nain Singh to show him the message to which the accused Nain Singh replied that he would show them the wireless message in the police station and thereafter the accused Nain Singh caught hold of said Khem Raj by the arm and dragged him to the police station and at the same time the co-accused Ram Kumar in the same manner caught hold the arm of Smt. Tara Devi and took her to the police station, Raj- garh. Chuhar Singh also then followed them to the police station but after said Khem Raj and Tara Devi had been taken inside the gate of the police station, the gate was closed against Chuhar Singh and he was not allowed to come inside police station.

Said Chuhar Singh thereafter went to his office in the Rajgarh town itself where he met the peon of the office, Mehtab Singh, and they both then went to the residence of Dr. Rama Nand, a private medical practitioner at Rajgarh. Said Chuhar Singh then narrated the entire incident to said Dr. Rama Nand and requested him to use his good offices with the accused Nain Singh to release his guests, Khem Ram and his wife Tara Devi. Dr. Rama Nand then rang up the police station and when the accused Nain Singh responded, said Dr. Rama Nand asked the accused to release said Khem Raj and Tara Devi. The accused Nain Singh then assured Dr. Rama Nand to release said Khem Raj and Tara Devi which assurance was conveyed by said Dr. Rama Nand to Chuhar Singh and said Chuhar Singh feeling satisfied then came back to his quarter. On arrival at the quarter said Chuhar Singh, however, found that said Khem Raj and his wife Tara Devi were not there. Then he and his room-mate Man Singh both went to the police station when they found only a constable in the police station sitting near a telephone in a room. While said Chuhar Singh was making enquiries as to where the accused Nain Singh was, the accused Nain Singh appeared on the scene and enquired from said Chuhar Singh as to with whose permission he had come to the police station and then asked the constable over-there to throw him out of the police station and he and his companion Man Singh were physically pushed out of the police station. Said Chuhar Singh then again went to Dr. Rama Nand and told him that his guests had not been relieved as assured by the accused Nain Singh. Said Rama Nand then again rang up the police station and when the accused Nain Singh was on the phone said Rama Nand again asked the accused Nain Singh to release the couple from his custody but said Nain Singh declined to do so unless said Rama Nand himself stood surety for them.

Said Chuhar Singh then thereafter wanted to book a lightning trunk calls to the Superintendent of Police, Nahan, and the Chief Minister of Himachal Pradesh but he was told by the telephone exchange people at Solan that this could not be done at that odd hour of the night and this booking could be done only at 6.00 in the morning. Said Chuhar Singh there after came to his quarter.

The prosecution story further goes that after Khem Raj and his wife Tara Devi were taken to the police station said Khem Raj was kept in a room in the police barrack while Tara Devi was kept in the office of the Station House Officer in the police station. The accused Nain Singh then gave beatings to said Khem Raj to extract from him the confession that he had actually abducted said Tara Devi but said Khem Raj insisted that said Tara Devi was his legally wedded wife. Thereafter the accused Nain Singh went to the room where Tara Devi was kept and gave her a few slaps and insisted that she should state that she was unmarried and had been abducted by said Khem Raj but said Tara Devi continued making statement that she was the wife of Khem Raj and was even putting on �sindur� in her �Maang� to show that she was a married lady. Thereafter this accused Nain Singh physically assaulted her when he pinched her breasts and thighs and even gave bites on the nipples of her breasts and then after bolting the room from inside he put off the lights in the room and forcibly made her lie on the floor. Said Tara Devi tried her best to resist this physical assault on the part of Nain Singh accused but when she became exhausted the accused Nain Singh over-powered her, snapped the string of her salwar and subjected said Tara Devi to forcible sexual inter-course. After completing the sex act the accused Nain Singh switched on the lights. Said Tara Devi had even become unconscious during this struggle and when she regained consciousness she put on her salwar. The accused Nain Singh then took said Tara Devi to the quarter of a constable near the police station where the wife of a constable Smt. Lachhmi was alone while her husband was out of station and told said Lachhmi that said Tara Devi should be kept in her quarter as she was a suspect in some crime. Next morning at about 6.00 the accused Nain Singh then took said Tara Devi from the quarter of the lady to the police station when she found her husband Khem Raj also there. The accused Nain Singh then prepared some documents and made said Khem Raj and Tara Devi sign them and thereafter sent them out of the police station with the direction that they should both leave Rajgarh at once.

Said Chuhar Singh on his part went from his quarter to his office round about at 6.00 in the morning and booked lightning, trunk calls to the Superintendent of Police, Nahan and the Chief Minister of Himachal Pradesh and after each of them: matured he complained to the authorities concerned about these acts of high-handedness on the part of the accused.

After doing this job Chuhar Singh again returned to his quarter at 8/9 a.m. when the found that said Khem Raj and Tara Devi had returned to the quarter and Tara Devi was crying. Said Khem Raj then told. Chuhar Singh that the accused Nain Singh gave beatings to them and also committed rape on said Tara Devi during the previous night when they were kept in the police station. At that time the shirt which Tara Devi was putting on was also found to be torn as a result of struggle between her and the accused Nain Singh when the latter had assaulted her in the police station. She changed those clothes and then she was taken by Chuhar Singh and Khem Raj to the Primary Health Centre Rajgarh for her medical examination, on the same day, that is, March 14, 1978. There were only two Medical Officers in the said Health Centre at that time, namely, Dr. Chopra, and his, wife Dr. (Mrs.) Radha Chopra. They, however, refused to examine said Tara Devi on the plea that she could be examined only in case a reference is made in this behalf by the police and not otherwise. They again went to the Primary Health Centre on the next day but to no avail.

Meanwhile said Chuhar Singh complained about the accused to Shri G.D. Sharma, the President of the N.G.Os� and other prominent citizens of Rajgarh which sent a wave of resentment amongst the residents of the town. A procession was taken out demonstrating against this high-handedness of the Rajgarh police and an Action Committee of the pro minent citizens was formed and telegrams were also sent to the Chief Minister, Deputy Speaker, Inspector General of Police, Deputy Commissioner, Nahan, Superintendent of Police, Nahan and some M.L. As. by the President of N.G.Os� Rajgarh Unit, in this behalf, the copies whereof were also sent in- confirmation through letters to the quarters concerned.

Soon thereafter some high officers including the Deputy Commisioner who is also the District Magistrate of Nahan District also came to Rajgarh when a written complaint signed by the Chairman and the General Secretary of the Action Com mittee was presented to him in the form of a memorandum. The District Magistrate then directed the Sub-Divisional Magistrate, Rajgarh to hold an enquiry in this behalf. The Sub-Divisional Magistrate after holding an enquiry submitted his report finding a prima facie criminal case against the two accused on which the District Magistrate directed that a criminal case be registered against the two accused. On this the District Inspector of Police Sirmaur vide his report dated October 12, 1978, got a case re gistered against the two accused in the police station at Rajgarh under Sections 330/348/458/376/354 read with Section 34 of the Indian Penal Code. He also thereafter investigated the case and challaned the two accused for the aforesaid offences vide his challan report dated February 9, 1979.

On committal, the case came up before the learned Sessions Judge who charge-sheeted the accused Nain Singh for the offences under Sections 342/451 and 376 of the Indian Penal Code and the co-accused Ram Kumar under Sections 342/451/ 376 read with Section 109 of the Indian Penal Code on July 7, 1979.

The prosecution then examined as many as 13 witnesses to bring home the charges to the accused. The accused examined five witnesses in defence and on the conclusion of the trial the learned Sessions Judge acquitted the two accused vide the impugned judgment, as stated earlier.

The learned Counsel for the accused has at the very out set argued that since this is an appeal against acquittal, the powers of the Court to interfere with the finding of the trial Court are very limited and this Court should upset the finding of the lower Court very reluctantly and only in case of perverse finding.

In view of this contention, we deem it proper to take stock of the legal side with regard to the powers of High Court in a case of this nature. We feel that this is no longer in doubt in view of a string of rulings of the Supreme Court on this legal aspsect. The basic ruling in this behalf is that of the Privy Council in Sheo Swarup and Others vs. King Emperor , the ratio wherein has been fully approved by the Supreme Court in number of judgments and may be reproduced as follows:

It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has �obstinately blundered,� or has �through incompetence, stupidity or perversity� reached such �distorted conclusions as to produce a positive miscarriage of justice,� or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result.

Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

The basic ruling of the Supreme Court in this behalf then came in Sanwat Singh and Others Vs. State of Rajasthan, where in the principles laid down in Privy Council case (supra) were approved in the following words:

In an appeal against acquittal, the appellate Court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in Sheo Swarup�s case A. 1. R. 1934 PC 227 (2) afford a correct guide for the appellate court�s approach to a case in disposing of such an appeal and the different phraseology used in the judgments of the Supreme Court, such as (i) substantial and compelling reasons, (ii) �good and sufficiently cogent reasons�, and (iii) �strong reasons�, are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusions; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment which lead it to hold that the acquittal was not justified.

This view was then again reiterated by the Supreme Court in the subsequent cases, namely; Ramaphupala Reddy and Others Vs. The State of Andhra Pradesh, and also in Bhim Singh Rup Singh Vs. State of Maharashtra, This entire law was then succinctly expressed by thier Lordships of the Supreme Court in K. Gopal Reddy Vs. State of Andhra Pradesh, in para-9 at pages 8i6 and 817 as follows:

The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for �substantial and compelling reasons� only and Courts used to launch on a search to discover those �substantial and compelling reasons.� However, the� formulae� of �substantial and compelling reasons�, �good and sufficiently cogent reasons� and �strong reasons� and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh and Others Vs. State of Rajasthan, In Sanwant Singh�s case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup and Others vs. King Emperor and reaffirmed those principles. After Sanwant Singh v. State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swamp�s case. Occasionally phrases like �manifestly illegal�, �grossly unjust�, have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases Ramaphupala Reddy and Others Vs. The State of Andhra Pradesh, ; Bhim Singh Rup Singh Vs. State of Maharashtra, etc.), it has been said that to the principles laid down in Sanwant Singh�s case may be added the further principle that �if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the trial Court�. This, of course, is not a new principle. It seems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in faovur of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of Anr. view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. �A reasonable doubt�, it has been remarked, �does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. As observed by Lord Denning in Miller v. Ministry of Pensions [ (1947)2 All ER 372] �Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence �of course it is possible but not in the least probable� the case is proved beyond reasonable doubt, but nothing short of that will suffice. In Khem Karan and Others Vs. The State of U.P. and Another, , this Court observed (at p. 1569) :

Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testi-mony.

Where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. That is what the High Court has done in this case. The appeal is dismissed.

In view of the foregoing rulings, the legal position is clear that the High Court in appeal against acquittal enjoys unfettered powers to reappraise the evidence as recorded by the trial Court and to come to its own independent conclusion and if need be, to differ with the order of acquittal of the trial Court and convict the accused or remand the accused for retrial with appropriate directions if the patrticular case so warrants. However, while up-setting the finding of acquittal of the trial Court this court, for the sake of judicial discipline, has to keep in mind certain facts, namely, (a) due weight should be given to the finding of the trial court, and while differing with such a finding cogent reasons must be given for doing so; (b) where on the basis of the facts and the circumstances on record the two conclusions are possible, one favourable to the accused and the other one adverse to him, the former should be adopted which in other words is in keeping with the fundamental principle of our criminal jurisprudence that the accused is entitled to benefit of reasonable doubt. It is, however, pertinent that the two opinions should be equally balanced on preponderance of probability and the one favourable to the accused should not be based on fanciful and remote possibilities but should be as nearly reasonably probable as the one adverse to him. In short �proof beyond a reasonable doubt should not be mean proof beyond a shadow of doubt,� and (c) the Court should also not lose-sight of the fact that the trial Court had the advantage of seeing the demeanour of the prosecution witnesses in the box and the appellate Court should be slow in disturbing a finding of fact recorded by it.

This is as it should be. This Court being the immediately higher Court to the trial Court in cases of this nature, such wide powers have to be conceded to it to re-appreciate the facts to ensure that the fountain of justice remains undefiled and unsullied.

The acquittal of the accused has been recorded by the learned Sessions Judge in the impugned judgment on two main grounds which may be characterised as legal and factual. So far as the legal ground is concerned the learned trial Court has held that since the offences in question were alleged to have been committed by the accused in connection with their official relations with the public, the provisions of Rule 16.38 of the Punjab Police Rules applied to Himachal Pradesh, were attracted and, therefore, when the complaint in this behalf was made to the Superintendnet of Police, Sirmaur at Nahan with regard to the case in hand, he should have forwarded the same to the District Magistrate and the District Magistrate was then duty bound to decide whether the investigation of the complaint should be conducted by a Police Officer or made over to a Magistrate having first class powers and when a prima facie case was found out against the accused, the District Magistrate ought to have made a speaking order as to whether the two accused should be judicially prosecuted or departmentally dealt with and since the provisions of this rule were given a go by, the investigation as well as the trial of this case were completely vitiated and on this ground alone the accused deserved acquittal since the provisions of this rule are mandatory in character. On the factual side, the trial Court has observed:

With this evidence on record, the entire prosecution evidence fabric is full of doubts and cannot be made a base for the conviction of the accused.

That is to say he has given a benefit of doubt to the accused.

The learned Assistant Advocate General for the Appellant has assailed both these findings and asserted that as regards the first ground the trial Court has taken a view which is a wholly erroneous legal proposition. On the factual side the learned Assistant Advocate General has contended that this was again without any basis in asmuch as the Court concerned failed to properly appreciate the evidence on record which fully brought home the offences to the accused.

The learned Counsel for the accused on the other hand has supported the judgment both on the legal as well as factual aspects and has contended that there is no satisfactory evidence on records to warrant the interference of this Court with the findings of the trial court.

Now so far as the legal aspect is concerned we have no doubt whatsoever that the finding of the lower Court is totally erroneous and unsustainable. The learned Counsel for the accused has drawn our attention to a full Bench ruling of Punjab and Harayana High Court, in Raj Kumar, A.S.I. v. The State of Punjab 1976 C.L.R.39, where in it was held that the provisions of Rule 16.38 of the Punjab Police Rules are mandatory in character and the non-compliance thereof vitiates the criminal trial of a police officer of the rank of A.S.I. and the evidence collected in the investigation held in derogation of this rule cannot be used against a police officer in a criminal prosecution.

This very point has, however, been exhaustively dealt with by this Court in Beli Ram and Ors. v. The State of Himachal Pradesh 1981 Sim. L.C. 178 ; (I.L.R. 1981 H.P. 39) wherein the learned Judge while completely disagreeing with this view of the Full Bench of Punjab and Haryana High Court, cited supra, observed:

Whenever the result of such investigation/discloses the existence of a prima facie case, judicial prosecution has normally to follow. The matter is to be disposed of departmen tally only if the District Magistrate so orders for reasons to be recorded. The only object of this rule is that no offence alleged to have been committed by a police officer in connection with his official relations with the public and brought to the notice of the Superintendnet of Police should be disposed of departmen tally in accordance with the provisions of the rules found in Chapter XVI without obtaining the prior approval of the District Magistrate for that purpose. Judicial prosecution for such an offence is the normal rule and departmental action is an exception and it is only to bring the case within that exception that prior direction or order of a District Magistrate is required. In case the normal procedure of launching judicial prosecution is to be followed, there should be no. necessity of obtaining the prior approval of the District Magistrate and certainly it was not the intention of Rule 16.38 to obtain such a sanction in derogation of the relevant provision of the Code of Criminal Procedure. If the construction as sought to be placed by the learned Counsel for the petitioners for Rule 16.38 is acceded to, it would be difficult to reconcile the provisions of rules 16.11 and 16.12 with those of Rule 16.38.

In short, where a prima facie criminal case is alleged to have been committed by a police officer in connection with his official relations with the public, there is no bar to the judicial prosecution being launched against him straightway and it need not be reported to the Superintendnet of Police or the District Magistrate. If, however, any complaint is made to the Superintendent of Police with regard to the criminal offence committed by a police officer under him he cannot on his own deal with the officer departmentally and the matter has to be reported to the District Magistrate and if the District Magistrate orders that the police officer should be dealt with only departmentally, he is to make a speaking order giving reasons for forming such an opinion.

The learned Judge while forming this view concurred with an earlier division Bench judgment of the Punjab High Court in Hoshiar Singh v. The State 1965 P.L.R. 438, which was overruled by the Full Bench of that High Court in the case cited supra, wherein it was hied:

After devoting my most earnest attention to the arguments addressed at the bar, as at present advised, I do not think Rule 16.38 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of law, a sanction or an order by the District Magistrate, as contemplated therein. The language appears to me to be confined only to departmental enquiries. The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or not a departmental proceeding, should be initiated against the guilty party, and it is the procedure and the punishment controlling the departmental proceedings alone, which appears to have been prescribed by this rule.

This controversy has, however, now been fully set at rest by the authoritative pronouncement of the Supreme Court in State of Punjab Vs. Charan Singh, wherein the view expressed in Hoshiar Singh�s case supra, was approved in terms of the following observation:

The accused who is alleged to have committed offence u/s 5(l)(d) read with Section 5(2), cannot be acquitted by the High Court merely on the ground that there was non-compliance with the provisions of R. 16.38 of Punjab Police Rules.

It was further observed that :

Rule 16.38 of Punjab Police Rules dealing with procedure for departmental punishment is not designed to be a condition precedent to the launching of a prosecution in a criminal court; it is in the nature of instructions to the department and is not meant to be of the nature of a sanction or permission for a prosecution. Nor can it override the provisions of the Criminal Procedure Code and Prevention of Corruption Act.

In the instant case as already observed a complaint in the form of a Memorandum was made before the District Magistrate Sirmaur against the accused alleging commission of criminal offences by the two accused where on he ordered preliminary enquiry to be made by the Sub-Divisional Magistrate, Rajgarh. The report of the preliminary enquiry revealed prima facie criminal offence against the accused and the District Magistrate thus ordered that a criminal prosecution be launched against the accused as a result of which a case was actually registered in the police station at Rajgarh, as stated earlier, and after investigation the two accused were ultimately sent up for trial before the Sessions Judge who charge-sheeted them for the offences set out above. In these circumstances, therefore, there was no question of the provisions of Rule 16.38 of the Punjab Police Rules being attracted in the case and the finding of the trial Court in this behalf, therefore, being totally erroneous is set aside.

Now as regards the factual side of the case it would be but proper to have reappraisal of the evidence on record, the summary narration whereof is as follows :

(PW 1) Chuhar Singh has stated that he and his roommate Man Singh who was also releated to him, came from Chandigarh to Rajgarh with his relations Khem Raj and his wife Tara Devi on March 12, 1978 and started staying in his quarter at Rajgarh. On the following night, that is, March 13, 1978, he, Khem Raj, Tara Devi and Man Singh were sleeping in the same quarter below the police station and the main road at Rajgarh when there was a knock at his door and when he came out of the room he found that the two accused were there. Thereafter they started knocking at the door of adjoining quarter occupied by Joginder Singh and Khazana Ram. The two accused at that time were in the police uniform and under the influence of liquor. They then entered the room of Khazana Ram and lifted the quilt under which Joginder Singh was sleeping and thereafter remarked that this was not the room. Thereafter both the accused came inside his quarter and the accused Nain Singh asked Khem Raj and Tara Devi to get up. He then enquired from the accused as to with whose permission they had entered the quarter at that time to which the accused replied that a wireless message had been received from Chandigarh to the effect that Khem Raj had abducted a girl Tara Devi. He then asked the accused to show the message to which he replied that they could show it only in the police station. The two accused then took both Khem Raj and Tara Devi to police station Rajgarh and he also then foilowed them but by the time he reached the main gate of the police station the same was closed. He then went to his office and woke up Mehtab Singh, peon, and they both then went to Dr. Rama Nand who was asleep at his residence. He woke up said Rama Nand and narrated the incident to him. Said Rama Nand then rang up the police station and when the accused Nain Singh came up on the phone said Rama Nand asked said Nain Singh to release Khem Raj and Tara Devi to which the accused Nain Singh agreed. He then came to his qurater but did not find Khem Raj and Tara Devi in the qurater. He then wrote an application to the Station House Officer for releasing Khem Raj and Tara Devi as they were his relations and innocent and he and his room mate Man Singh then went to the police station. At that time they found the gate of the police station open and they went to a room in the police station where a constable was sitting near a telephone. They then enquired about the accused Nain Singh to which the constable replied that the accused Nain Singh should be somewhere outside the police station. As they were then leaving the room the accused Nain Singh also came there and he then gave the application to the accused Nain Singh. Said Nain Singh, however, asked the constable over-there to throw out him and Man Singh from the police station and even the accused Nain Singh also pushed them out.

Thereafter he and Man Singh again went to said Dr. Rama Nand and told him that the police had not released Khem Raj and Tara Devi. Said Rama Nand again contacted Nain Singh accused on the phone when Rama Nand told the accused Nain Singh that he should release said Khem Raj and Tara Devi or else this may lead to unhappy results but to no avail. Then Man Singh went to his quarter while he himself again went to the police station andwhen he was outside the police station he heard the out-cries of a girl and thus out of fear he could not go inside the police station and returned to his quarter. He then took Man Singh from the quarter and again went to his office and tried to book a lightning call to the Superintendent of Police, Nahan and the Chief Minister at Shimla but the telephone exchange people at Solan declined to book any such call at that odd hour and they finding themselves helpless returned to their quarter. At about 6 a.m. next morning he and Man Singh again went to the office and booked a trunk call to the Chief Minister and also one to Superintendent of Police, Nahan. The P.A. to the Chief Minister attended to the call when he conveyed him the incident and similarly he also complained of the incident to the Superintendent of Police, Nahan. At about 9. a.m. he and Man Singh returned to the quarter when they found that Khem Raj and Tara Devi were present in the quarter and Tara Devi was weeping at that time. He then enquired as to why she was crying to which she did not give any reply whereas her husband Khem Raj told him that Tara Devi was raped on the previous night by the accused Nain Singh and he had asked them to leave Rajgarh at once.

He then went and informed the Employees� Union and made a complaint in writing against the accused to the Union. The Employees� Union then took out a procession to protest against this occurrence that very day at about 5.30p.m. Said Khem Raj and Tara Devi had been visiting the hospital for medical examination but the Doctor refused to examine them on the plea that a reference in this behalf should be made by the police. Thereafter the Doctor ultimately medically examined Tara Devi when the members of the Union protested in this behalf and also issued a medical certificate. Soon thereafter the Deputy Com missioner and the Superintendent of Police also visited Rajgarh and thereafter the Sub-Divisional Magistrate Rajgarh was appointed as the enquiry officer and his statement was also recorded during the course of the enquiry conducted by him.

In cross examination on behalf of the accused Nain Singh he replied that Khem Raj was the son of his real maternal uncle. He further stated that he has been living at Rajgarh since 1974 and had no relations with Dr. Rama Nand nor was this Dr. Rama Nand a Pradhan or a Lambardar but was a private medical practitioner at Rajgarh and as such he knew said Rama Nand.

According to him his superior officer R.P.D.O. and the Sub-Divisional Magistrate were out of station that night and the Tehsildar lived far away from his quarter and as such he did not know whether he was at Rajgarh or not. He admitted that he used to take water along with some other persons from the police tap outside the police station for daily use but were stopped by the police and they then stopped taking water from the police tap. But, according to him, this happened many days prior to the occurrence. He, however, denied that on that account he falsely implicated the accused in this case. He denied the suggestion that on the night of March 13, 1978, said Khem Raj and Tara Devi were loitering at the bus stand Rajgarh and the police had made enquiries from them. He also denied that the police at that time had asked Khem Raj and Tara Devi to attend the police on the next morning to fill identification form. He further denied that he did not tell Khem Raj that his Union would teach a lesson to the police for calling them to the police station.

To cross-examination on behalf of the other accused Ram Kumar, this witness Chuhar Singh replied that at the time when the accused entered his quarter some persons from Kisan Bhawan had come with the police but he did not know as to who they were. He further stated that Khem Raj was physically caught by Nain Singh accused and Tara Devi by Ram Kumar accused when they were taken to the police station by them.

Dr. (Mrs.) Radha Chopra (PW-2) has stated that she examined Tara Devi on March 16,1978 and found the following injuries on her person:

Semi circular abrasion over right breast. Crest formed. Shape as shown in the diagram in my medical report. Three in number upper and lower. They coalesce to form a single mass of abrasion. The combined size is l� � l/8". Size 1-1/2" supero-lateral to right nipple.

One contusion over sternum 1" below the manubrium sterni. Size 1/2" � l/2" colour livid red.

Two semi circular abrasions. Their margins coalesce to form single mass. Size is 1" x 1 /8". Size around left nipple.

4.One contusion 3" � 2" on the medial aspect of right thigh. 4" above the right knee joint. Colour livid red.

One contusion l� � l� on the front of right upper arm 3" above the right elbow joint. Colour livid red.

One contusion 3" x 2" on the medial aspect of left thigh 3" above left knee joint. Colour livid red.

P.V. Utrus and A.V. A.F. and N.S. ex downward healthy. Admits two fingers loosely. P.S.V.S. NAD.

In her opinion all the injuries No. 1 to 6 were simple of the duration of three to four days. She also opined that injuries No. 1 and 3 could be caused by teeth and other injuries by blunt weapon. She was also of opinion that since said Tara Devi was found to be used to sexual inter-course it was not possible to say whether she was subjected to forcible sexual intercourse but in view of the injuries found on her person the possibility of rape could not be ruled out. She also stated that this Tara Devi was brought to the hospital on the 14th of March for medical examination but her husband who was Anr. doctor in the said hospital had declined to examine her unless referred by the police. According to her injuries No. 4, 5 and 6 could be caused by excessive pressure on account of pinching.

In cross examination she has stated that injuries No. 4, 5 and 6 could be self inflicted.

The prosecutrix Tara Devi (PW-3) has stated that she was married to Khem Raj three years prior to the incident and she and her husband had come to Rajgarh from Chandigarh in the company of their relations Chuhar Singh and Man Singh. On the night following the night of their arrival at Rajgarh while she, her husband Khem Raj, Chuhar Singh and his roommate Man Singh were sleeping in the quarter of Chuhar Singh, they heard some noise on hearing which she got up and found one constable and one Head-Constable inside the room who were none-else but the accused present in the court. The Head Constable then told her husband to accompany them to the police station as there was a wireless message that he had abducted a girl (that is, herself). Her husband, however, told the police constables that she was his married wife and Chuhar Singh also supported him. Her husband then asked the police constables to show him the wireless message to which it was replied that the same will be shown in the police station. Thereafter Nain Singh accused dragged her husband by the arm and the other accused Ram Kumar dragged her in a similar fashion and they were both taken to the police station Rajgarh where the accused Nain Singh kept her in a separate room which had chairs and table and telephone while her husband was kept in some other room. After leaving her in the room the accused Nain Singh came out and bolted the door of the room from outside. Then after sometime the accused Nain Singh again came to her room and enquired from her as to where from she had come to which she replied that she had come from Chandigarh and that she was married to Khem Raj. The accused Nain Singh, however, did not accept this statement and told her that she was telling lies and he then started slapping her while asking her to make a statement that she was not married. The accused Nain Singh, according to her, was drunk at that time.

She further stated that the accused Nain Singh then started pinching and insulting her and thus pinched her at her breasts, arms, and legs. He also gave bites on her breasts. She offered resistence but became exhausted at last. At that stage the accused Nain Singh over-powered her and made her lie on the floor. She cried for help but the accused gagged her mouth with a cloth. The accused then put off the lights of the room, snapped the string of her salwar and committed� rape on her while man-handling her. She then became unconscious while the accused went out of the room. When she regained consciousness after sometime she tied her salwar. After some time Nain Singh accused again came to the room and put on the light and also told her not to disclose about the rape to anybody. The accused then took her from the police station to the quarter of a constable whose wife alone was there and asked the lady to keep her in her quarter as she was a suspect in a case. The accused Nain Singh then again took her to the police station from the quarter of the lady at about 8/9 a.m. when she found that her husband was also in the police station. The accused then prepared some papers and obtained her signatures thereon and then the accused asked them both to leave for Chandigarh at once. She and Khem Raj then both came to the quarter of Chuhar Singh. She further stated that at time when the accused Nain Singh was trying to overpower her and she was resisting, the shirt which she was putting on also got torn and the shirt Ex. P. 1 and the salwar Ex. P. 2. which she was putting at the time of the incident were later on taken into possession by the Sub-Divisional Magistrate, Rajgarh during the course of the enquiry. According to her on arrival at the quarter of Chuhar Singh she changed her clothes and kept them in safe custody till they were produced before the Sub-Divisional Magistrate. She and her husband had gone to a lady doctor on the following day of the incident but the doctor did not examine her or her husband. They even went there on the next day as directed by the Medical Officer but they were again asked to come on 16th and on which date she was medically examined.

In cross examination on behalf of Nain Singh accused, she stated that she was putting on 2/3 bangles on each arm but they did not get broken at any stage at the time of dragging or when she was forcibly subjected to sexual intercourse. She denied that on the morning of 14th March she was taken from the quarter of the lady to the police station by Ram Kumar which fact she had stated in portion A to A her statement u/s 161 of the Code of Criminal Procedure She also denied portion B to B that it was the accused Ram Kumar who had kept her in the room of the police station and bolted the same from outside after she was brought to the police station. She further stated that she did not disclose to the lady where she was made to stay after the incident about the incident nor did she make any attempt to run away from the quarter of the lady during the night which quarter was above the road near the police station. She further stated that while resisting the accused Nain Singh she had given scratches to him. She denied the suggestion that the accused had met her and her husband at the bus stand Rajgarh at 11 p.m. on the night of occurrence. She also stated that the sex act was committed by the accused Nain Singh with her when she had become unconscious.

To the cross examination on behalf of the accused Ram Kumar she stated that the accused Nain Singh had asked the accused Ram Kumar to take her to the police station.

Khem Raj (PW-4) has stated that he married Tara Devi in the year 1977. He was working as a tailor at Chandigarh and four or five months prior to the incident his wife Tara Devi had come to live with him at Chandigarh. They then both had come to Rajgarh on March 12, 1978. On the 13th night when he and his wife Tara Devi, Chuhar Singh and Man Singh were sleeping in the quarter of Chuhar Singh at Rajgarh the accused came to their quarter at about mid-night in uniform. The accused Nain Singh then told Chuhar Singh that he (Khem Raj) had abducted a girl and he had received a wireless message from Chandigarh in this behalf. Chuhar Singh then asked the accused Nain Singh to show the wireless message to which he replied that it will be shown in the police station. The accused Nain Singh then pulled him out of the quarter and dragged him to the police station when Ram Kumar accused dragged his wife to the police station despite his protest. In the police station he was locked in a separate room. The accused Nain Singh then gave him beatings at the police station and wanted him to make a statement that he had abducted Tara Devi and when he was averting that Tara Devi was his wife he was given more and more beatings. Thereafter the accused Nain Singh proceeded towards the room where his wife had been kept and later on he heard out-cries of his wife from that room. At that time the accused Ram Kumar kept sitting in the room where he was kept. After 1.30 or 2 a.m he was made to sleep in the police station and he was told by Nain Singh on his query that his wife was sleeping somewhere else. Next morning the accused Nain Singh subjected him and his wife to interrogation when he prepared some papers and thereafter asked him that they should leave for Chandigarh at once. He has further stated that on that night his wife was putting on shirt Ex. P. 1 and salwar Ex. P. 2 and in the morning he had found the shirt on the person of his wife torn from the backside. On arrival at the quarter of Chuhar Singh his wife Tara Devi disclosed to him with regard to her maltreatment by Nain Singh and also that Nain Singh also subjected her to forcible sexual intercourse. He then narrated this incident to Chuhar Singh whereafter Chuhar Singh, his wife Tara Devi and he himself went to the lady doctor at Rajgarh, on the same day, i.e. 14th March but the doctor advised them to report the matter to the police. He then went to the police but they did not record his report. The same thing was repeated on the 15th and it was only on 16th that the lady doctor examined his wife and issued a certificate which certificate she had given to the Sub-Divisional Magistrate during the enquiry.

To cross examination on behalf of Nain Singh, he stated that he was given beating by a danda in the police station, i.e. about 10 or 15 danda blows on different parts of the body but they did not leave any mark on his body. He further stated that the accused were under the influence of the liquor and were smelling of liquor at the time when they were dragged to the police station. He denied that the accused had met him and his wife at the bus stand at 11 p.m. and that at that time the accused had asked them to come to the police station on the following morning for verification of their character. He also denied that they had instigated Chuhar Singh and Man Singh to implicate the accused in a false case. He denied the suggestion that he had given bites to Tara Devi on her breasts and thigs.

Joginder Singh (PW-5) has stated that his quarter which he shared with one Khajzana Ram was just adjacent to the quarter of Chuhar Singh. On March 13, he was sleeping in his quarter when there was knocking at the door and when Khazana Ram opened the door, the two accused entered the room and on this he also got up and on seeing him, the two constable accused left the room saying that there was nothing in the room. The two accused then entered the quarter where Chuhar Singh, Man Singh, Khem Raj and Tara Devi were sleeping and then took Khem Raj and Tara Devi to the police station by pulling them by the arms but he could not make out as to who out of the two constables were pulling whom out of the two persons Khem Raj and Tara Devi. He remained standing in the court-yard of his quarter for about five minutes and also made enquiries from Chuhar Singh but found him to be quite confused. Meanwhile, the lights of the police station were off and he then went inside the quarter and went to sleep. Next morning when he saw Khem Raj and Tara Devi standing outside the police station he sent two cups of tea for them through his room-mate Khazana Ram and he himself went in search of Chuhar Singh later on. When he returned to his quarter he found Khem Raj and Tara Devi in the quarter of Chuhar Singh and the shirt on the person of Tara Devi was found torn on both the sides near the waist and the breasts.

In cross examination on behalf of the accused Nain Singh, he replied that he made enquiries from Khem Raj and Tara Devi as to what had happened in the police station on the previous night but they did not tell him anything.

Dr. Rama Nand (PW-6) the medical private practitioner at Rajgarh has stated that during the night of March 13, 1978 at about mid-night Chuhar Singh accompanied by Anr. person came to his residence and told him that his brother and Bhabi (brother�s wife) had been arrested by the police, that is, by the accused Nain Singh and one constable and taken to the police station and that he should help in getting them released. He then rang up the police station and when Nain Singh was on the phone he replied to his query that said Khem Raj had abducted the lady Tara Devi from Chandigarh. He then requested the accused Nain Singh to release these two persons and that it was not proper to have taken the lady into custody during the night. On this the accused Nain Singh dropped the telephone and he then told Chuhar Singh to go to the police station and there was likelihood of the couple having been released by the police. Chuhar Singh, however, again came back after half an hour to him and told him that the police had not released them. He again rang up the police station when Nain Singh accused again responded to the call and he advised him to release the couple. The accused Nain Singh then asked him whether he was ready to stand surety for the couple to which he replied that they, had got their relations here who could do so but the accused Nain Singh refused to release the couple. Next morning Chuhar Singh and the couple then came to him and complained that the couple was detained by the police in the police station during the night and the accused Nain Singh had misbehaved with the lady. He then advised the lady to get herself medically examined to which the lady replied that she along with Ors. had gone to the hospital but the doctor refused to examine her unless she was sent through the police.

In cross examination on behalf of the accused Nain Singh he denied various suggestions put to him to show that this witness had animus against the accused Nain Singh.

Kaka Ram (PW-7) has produced some record from the Court of the Sub-Divisional Magistrate partainirtg to this case.

Mehtab Singh (PW-8) who is peon in the office of the R.P.D.O., Rajgarh has stated that Chuhar Singh of his office had booked two telephone calls one to the Chief Minister, Himachal Pradesh and the other to the Superintendent of Police, Sirmaur Nahan. The entries in respect thereof were aade in the register concerned and the opies of the entries werw Ex. P. D.

Shri Balbit Chauhar (PW-9) is the Sub-Divisional Magistrate, Nahan, who has deposed that on a Memorandum Ex. P.E. presented to the District Magistrate by the Action Committee of the N.G.O.s. and the local people of Rajgarh was forwarded to him by the District Magistrate for enquiry and he conducted an enquiry and submitted his report to the District Magistrate Ex. P.E. on July 7, 1978. He also stated that the one Gopal Datt Sharma had produced the complaints of Khem Raj, Tara Devi and Chuhar Singh before him during the enquiry which he placed on the enquiry file. Clothes of Tara Devi, the medical certificates, Ex. P. 1 and P. 2, were also produced before him and he put all these articles in a sealed packet and kept them in the double lock of the treasury.

In cross examination on behalf of the accused Nain Singh, he admitted that he did not associate the accused during the course of the enquiry and the evidence was recorded by him in their absence despite the application of the accused in this behalf. He also admitted that after the incident a procession was taken out in Rajgarh and the N.G.Os. also held a meeting in the S.F.D.A. hall and he attended the meeting and announced that the Government had decided to hold an enquiry with re-gard to the incident. In cross examination on behalf of the accused Ram Kumar he replied that he had received orders for holding enquiries on March 27, 1978.

Gopal Datt Sharma (PW-10) who at the relevant time was the President of the N.G.Os.� Unit, Rajgarh, has stated that on March 14, 1978 Dr. Rama Nand, Chuhar Singh, Khem Raj and Tara Devi had met him in the town of Rajgarh and narrated to him about the occurrence and he asked the latter three persons to make complaints in writing to him which they did. He then asked all the N.G.Os. to hold a meeting in the evening and they did so in the Primary School, Rajgarh from where later on they took out a procession and also sent telegrams with regard to the incident to Deputy Commissioner, Superintendent of Police, Chief Minister, Deputy Speaker, Vidhan Sabha, Inspector General of Police and to some M.L. As. and letters were also later on sent to them in confirmation of the telegrames. He also asked the Medical Officer at Rajgarh to examine the lady. This was refused till the 15th but on their persuation the lady was examined on the 16th of March. On the 16th of March the Deputy Commissioner, and the Superintendent of Police, Sirmaur also came to Rajgarh when a written complaint Ex. PE was submitted to the Deputy Commissioner. During the course of enquiry he had handed over the written complaints given by Chuhar Singh, Khem Raj and Tara Devi to the Sub-Divisional Magistrate.

To cross examination on behalf of the accused Nain Singh he stated that the A.S.P. Shri B.S. Thind had come to Rajgarh to make enquiries on March 15, but the members of the Union had asked Khem Raj and Tara Devi not to make any statement before him as they were demanding judicial enquiry in this behalf.

Sohan Singh (PW-11) has stated that on March 13, 1978, he had come to Rajgarh on his official duty as Junior Engineer (Electrical) and was staying in the SFDA hall and when he was sleeping in the room the two accused came there at about 10.30 or 11 p.m. when they were drunk. They then exchanged hot words with one of the persons sleeping in the room, Named, Jagdish when the accused started taking Jagdish to the police station, he and three or four other persons from there then also accompanied him. At that time they had told Jagdish that they were looking for a boy who had abducted a girl from Chandigarh and when they were going towards the police station they saw the two accused dragging a boy and a girl towards the police station. After the boy and the girl were taken into the police station the gate of the police station was closed. He then peeped through a window when he found that Nain Singh accused was interrogating the girl alone in a room inside the police station. Thereafter the accused Nain Singh came out of the police station and asked them all to go away saying that they had cought the boy and a girl required by them.

To cross examination on behalf of the accused Nain Singh he stated that his statement was also recorded by the Sub-Divisional Magistrate during the enquiry. He further stated that when he and Ors. had followed Jagdish to the Police station said Jagdish had met them on the way but at that time the accused were not with him and infact Jagdish at that time was coming back from the police station side. He denied the suggestion that they had collected in the SFDA Hall that night under the influence of the liquor.

Moti Ram (PW-13) the District Inspector of Police is the Investigating Officer in this case who stated that on receipt of letter Ex. PK by the District Magistrate, Nahan to the Superintendent of Police, Nahan, a case was registered on the basis of his report Ex. PH in the police station Rajgarh. During the investigation he took into possession certain articles connected with this case from the Court of the Sub-Divisional Magistrate, Rajgarh and also prepared the site-plan Ex. PM. During the course of the investigation no wireless was found to have been received from Chandigarh by Rajgarh police about the abduction of a girl by a boy.

In his statement u/s 313 of the Code of Criminal Procedure the accused Nain Singh admitted that he was posted as Investigating Headconstable, police station, Rajgarh on March 13, 1978 and Ram Kumar accused was the constable in the said police station. He also admitted having gone on patrol duty with the co-accused Ram Kumar on the night of March 13, 1978 when they were both in the police uniform. He, however, denied that they were under the influence of liquor, at that time. He asserted that he had received a wireless message from Chandigarh about the abduction of a girl three days prior to March 13. He admitted that on the night of March 13, 1978, during the patrol duty he had visited SFDA Hall at 11 or 11.30 p.m. and had made enquiries from the chowkidar. He however, denied that Sohan Singh and Jagdish were sitting in the S.F.D. A. Hall that night and asserted that infact they had met them on the road. He admitted that at the time he had knocked the.door of the room of the SFDA Hall where Sohan Singh and Ors. were sleeping but denied that the door was opened by Jagdish or that he had any exchange of hot words with Jagdish or that he had told Sohan Singh and Ors. that a message had been received in the police station about the abduction of a girl or that he asked Jagdish to come with them to the police station. According to him said Jagdish and Ors. were infact taking liquor outside on the road and Jagdish was also having one bottle in his pocket and he asked them not to take liquor on the road side but go inside their rooms. He also denied that thereafter he had knoeked at the door of the quarter of Joginder Singh at night and entered his quarter, or that after inspection the quarter of Joginder Singh PW he uttered the words �Yaahan nahin hai�. He also denied that thereafter he entered the quarter of Ghuhar Singh without their permission where Khem Raj, Tara Devi, Chuhar Singh and Man Singh were sleeping and woke them up. He also denied that he and the co-accused Ram Kumar had forcibly dragged Khem Raj and his wife Tara Devi to the police station Rajgarh. He also denied that after Khem Raj and Tara Devi were taken by the two accused to the police station Rajgarh they were kept in separate rooms and were given beatings and he wanted Tara Devi to state that she was not married to Khem Raj but had been abducted by him and the same statement he intended to extract from Khem Raj. He also denied that Rama Nand asked him on the telephone twice to release Khem Raj and Tara Devi. He also denied that he also committed rape on Tara Devi in the police station that night. He further stated that he did not know whether any demonstration was held by the public of Rajgarh with respect to the incident as he had left Rajgarh but came to know about it on the third day. He denied that on the night of incident Tara Devi was putting on the clothes Ex. P.1. and Ex. P. 2 and asserted that infact he had met the couple near the bus stand that night when he noted down their address and at that time these clothes were not on the person of Tara Devi. He admitted that there was no S.H.O. in the police station, Rajgarh on March 13, 1978.

The case of the accused Nain Singh in short was that the entire case against him was a fabrication. According to him on March 13, 1978, when he and Ram Kumar accused were on patrol duty and came near bus stand at about 11 p.m. they saw Khem Raj and Tara Devi standing on the side of the road. They then enquired from them as to from where they were coming to which they replied that they had come from Chandigarh just then and they also told us that they were staying in the SFDA Hall. He then noted down the names and address of these two persons and while he was doing so Chuhar Singh along with five or six other persons came drunk over-there. Chuhar Singh then gave a blow at his back and started abusing him saying �Haramazada pata puchane wala tu kon hota hai� (who the bastered are you to enquire about the address). He then told said Chuhar Singh that he was discharging his official duties. After he noted down the address of Khem Raj and Tara Devi he and the co-accused were gheraod by Chuhar Singh and party and they threatened him to take revenge with regard to the previous incident when he had stopped their cricket and the water from the police compound. Said Chuhar Singh also threatened to ring up the Chief Minister. He then asked Khem Raj and Tara Devi to go away as he and the co-accused feared danger to their livies and with difficulty he and the co-accused Ram Kumar managed to escape from Chuhar Singh and party and came to the police station. This Chuhar Singh and party then, however, followed them to the police station and were stoned by them and Chuhar Singh also threatened him to see him in jail and also told him that he was going to book a telephone call to the Chief Minister, Deputy Commissioner and the Superintendent of Police and if no action was taken by them he would contact the Prime Minister of India. He also stated that Dr. Rama Nand had a grudge against him as he did not accept the recommendation of Rama Nand in a criminal case No. 18 of 1976. He further stated that Rama Nand also instigated the public to kill him in January 1978 when he was searching timber in village Manwa Khanewar. He further stated that four or five days prior to the occurrence Gopal Datt PW leader of the NG.Os. Unit at Rajgarh had picked up a quarrel with him when he did not allow said Gopal Datt to take liquor in a hotel at Rajgarh when this Gopal Dutt threatened him in these words ; �koi nahi beta aaj tene meri beizzati ki aagar naam bhi G.D. Sharma hoga to tere ko dekh loonga� (Alright son, you have insulted me today but if the name is G.D. Sharma, I will settle the score with you).

The accused Ram Kumar in his statement also admitted that he was on patrol duty with the co-accused Nain Singh on the night of March 13, 1978 when they went to SFDA Hall at 10-30 or 11 p.m. but had denied that he had gone inside the SFDA Hall and asserted that in fact it was the accused Nain Singh and the chowkidar of the SFDA Hall who had gone inside while he remained outside on the door so he did not know what happened inside the SFDA Hall. He also admitted that Jagdish was brought outside the SFDA Hall but said Jagdish was not actually taken to the police station. He denied that he and the accused Nain Singh while going back from the SFDA Hall entered the quarter of Joginder Singh. He stated that to his knowledge there was no wireless message from Chandigarh. He also denied that he and the co-accused Nain Singh then entered the quarter of Chuhar Singh and dragged Khem Raj and Tara Devi from that quarter to the police station and kept said Khem Raj and Tara Devi inside the police station throughout the night. He admitted that on March 14, 1978, a demonstration was held by the public at Rajgarh against Nain Singh .accused with regard to the occurrence in question and later on a magisterial enquiry was held in this behalf. He further stated that after he and Nain Singh on the night in question came back from SFDA Hall they met Khem Raj and Tara Devi near the bus stand, Rajgarh coming from a house nearby. The accused Nain Singh then enquired from them as to from where they had come and then asked them to go away and thereafter Khem Raj and Tara Devi went towards SFDA Hall while he and Nain Singh continued patrolling and they returned to the police station at 3 a.m.

The accused also examined five witnesses in defence.

Avtar Singh (DW-1) was the Moharar Head Constable at the police station, Rajgarh who has claimed that in the absence of the Station House Officer, he was the Incharge of the police station as he was the senior-most officer. The accused Nain Singh at that time was the Investigating Officer. On the night of March 13, 1978 he was sleeping in his quarter near the police station where any noise created in the police station could be heard but he did not hear any such noise that night. In cross examination by the P.P. he admitted that if the doors and the windows of his quarter are closed then the noise in the police station cannot be audible in his quarter He admitted that when there was agitation of N.G.Os. at Rajgarh it was alleged that on the night of March 13, 1978 the accused Nain Singh had brought a girl to the police station and misbehaved with her.

Baldev Singh (DW-2) English-clerk in the office of the Superintendent of Police, Nahan, has deposed that a wireless message dated February 17, 1978 was received from the S.S.P., Chandigarh in the office of the Superintendent of Police, Nahan pertaining to F.I.R. No. 76 under Sections 363/366 of the Indian Penal Code pertaining to a girl named Nirm�a Devi and a copy of this message was sent to all the police stations in Sirmaur district.

Roop Singh (DW-3) Assistant Vernacular Clerk in the office of the Superintendent of Police, Nahan, has produced certain record which appears to be of no relevance.

Hira Lal (DW-4) constable who was posted in the Rajgarh police station at the relevant time has stated that he was on telephone duty during the night in question which was installed in the office room of the Station House Officer and he remained in that room throughout the night. During the night no telephone came from Dr. Rama Nand. The two accused had returned that night to the police station from patrol duty at 3 a.m. and they did not bring any boy or girl to the police station that night.

In cross examination he admitted that he was cited as a prosecution witness in this case but was dropped by the P.P.

Similar is the statement of Chhotu Ram (DW-5) who was at that time posted as Moharar Constable in police station, Rajgarh. In cross examination by the P.P. he stated that he had not brought the rozenamcha of police station, Rajgarh dated March 13, 1978 while coming to depose in the court. He also admitted that he was cited as a prosecution witness but was dropped by the P.P.

From the foregoing resume of the evidence on record we are of the opinion that the offences in question were brought home to the two accused beyond all reasonable doubt and the learned Sessions Judge has gravely erred in acquitting them. In fact the impugned order of the learned Sessions Judge makes it apparent that the learned Judge has appreciated the evidence on record in a superficial and cryptic manner which has resulted in them mis-carriage of justice.

The prosecution evidence in this case appears to be based, in our opinion, on a satisfactory and reliable ocular, documentary and circumstantial evidence. It has been proved on record that Khem Raj and Tara Devi were married to each other four years prior to the incident. Said Khem Raj was working as a tailor in a firm at Chandigarh and in the Masch, 1978 his wife Tara Devi was staying with him at Chandigarh and they had come to Rajgarh with their relation Chuhar Singh, who was serving at Rajgarh, on March 12, 1978, and were staying with him in his quarter. The two accused have admitted that the accused Nain Singh was Investigating Head Constable at Rajgarh and Ram Kumar was constable and they had gone on patrol duty on the night intervening 13th/14th Match, 1978 and at that time there was no Station House Officer in the police station. They had also admitted that during their patrol duty they had visited the SFDA Hall round about 11 p.m. There is then evidence on record that after they visited the SFDA Hall they first-entered the quarter of Joginder Singh and Khazana Ram but left it while Nain Singh remarked that there was nothing to be found here and thereafter both the accused entered the quarter of Chuhar Singh which is just adjacent to the quarter of Joginder Singh where besides Chuhar Singh and his room-mate, Man Singh, the two guests of Chuhar Singh, namely, Khem Raj and his wife Tara Devi were also sleeping. Said Chuhar Singh, Khem Raj and Tara Devi have categorically stated that at that time the accused Nain Singh asked Khem Raj and Tara Devi to come to the police station since he had received a wireless message from Chandigarh that said Khem Raj had abducted the girl Tara Devi and when Chuhar Singh and Khem Raj insisted that this was not correct and as a matter of fact the said Khem Raj and Tara Devi were husband and wife and were related to Chuhar Singh and that they should be shown such a wireless, the accused Nain Singh told them that the message would be shown in the police station and despite their protest the two accused dragged Khem Raj and Tara Devi physically to the police station when the accused Nain Singh was holding Khem Raj and the co-accused Ram Kumar was pulling Tara Devi by her arm. They have also categorically stated that the couple was thus dragged to the police station by the two accused and when Chuhar Singh followed them, the gate of the police station was closed against him. There is then the statement of Khem Raj and Tara Devi that after they were taken to the police station said Tara Devi was kept in a separate room and Khem Raj in a separate one from where they could not see each other. The accused Nain Singh then first gave beatings with a danda to Khem Raj and thereafter he slapped Tara Devi as he wanted to extract statements from them that they were not married to each other but Khem Raj had abducted said Tara Devi. Thereafter the accused Nain Singh after closing and bolting the door of the room where Tara Devi was kept, physically assaulted her with a view to subject her to forcible sexual intercourse. Tara Devi has categorically stated that the accused Nain Singh after bolting the doorfrom inside-started violating her person by pinching her at thighs and other parts of her body and even gave bites at her nipples while he was under the influence of liquor. She resisted him to the best of her ability but was at last exhausted when the accused Nain Singh made her lie on the ground after switching off the lights and snapped the string of her salwar and thus subjected her to sexual intercourse.

It is also apparent that the behaviour of Chuhar Singh after this couple was taken to the police station was very natural and probable. After he finds that his guests were taken inside the police station and the gate is closed against him, he rushes back to his office, wakes up the peon Mehtab Singh, then they both go to Dr. Rama Nand, a local medical practitioner in the town of Rajgarh and said Chuhar Singh requests Dr. Rama Nand to use his good offices with the accused Nain Singh in getting the couple released. Said Rama Nand after contacting the accused Nain Singh had at first got the impression that the couple was being released and conveys this to Chuhar Singh who then rushes back to his quarter to see if the couple had come to his quarter but when he does not find his guests over-there he goes to the police station to make entreaties for the release of his guests, when, however, he finds being physically pushed out of the police station , he again rushes back to Dr. Rama Nand and tells him that the accused had not released his guests. Dr. Rama Nand again rings up the police station and even conveys to the accused Nain Singh that by keeping a lady in the police station he was not doing a rght thing and the results of this act on his part may not be happy, but to no avail. Said Chuhar Singh in his helplessness then rushes to his office and wants to book telephone calls to the Chief Minister of Himachal Pradesh and the Superintendent of Police, Nahan but the Exchange people do not oblige him on account of the fact that it was an odd hour for such calls. Said Chuhar Singh then in his full disappointment comes back to the quarter and when till 6.00 his guests are not released by the police he again goes to his office and books lightning calls to the S.P. Nahan and the Chief Minister of Himachal Pradesh and complains about this high-handed act on the part of the two accused.

Rama Nand who undoubtedly is a respectable witness in the town at Rajgarh has come into the witness box and stated on oath that Chuhar Singh came to him twice during the course of the night requesting him to use his good offices with the accused to secure the release of his guests but to no avail. No doubt on behalf of the accused Nain Singh certain suggestions have been thrown to this witness Dr. Rama Nand to show that said Rama Nand was harbouring a grievance against the accused Nain Singh but we do not feel that there is any truth in those suggestions which have been stoutly denied by Rama Nand and there is no reason to doubt the credibility of his evidence.

Thus this evidence clearly suggests that the accused Nain Singh helped by the co-accused was actually searching for this lady Tara Devi who might have cought his eye probably during the day time and, that is why he first went in search of her to the SFDA Hall, thereafter to the quarter of Joginder Singh and ultimately finds her in the quarter of Chuhar Singh. He took said Tara Devi and her husband to the police station on the false pretext that a wireless message had been received from Chandigarh by him; that Khem Raj had actually abducted this Tara Devi and it was apparent that since there was no Station House Officer in the police station he was least hampered in keeping the girl in the police station to accomplish his evil designs. He then obvioulsy gave beatings to Khem Raj by keeping him in a separate room and later on to Tara Devi in Anr. room far away from each other in order to terrorise them which appears to be a part of his design to gratify his lust.

There is then evidence on record to show that when on the protest of the citizens of Rijgarh the Medical Officer in the Primary Health Centre at Rajgarh ultimately examined Tara Devi on the 16th March, 1978, as per the medical certificate Ex. PA, she found as many as six injuries on the person of Tara Devi out of which injuries No. 1 and 3 were teeth bites around both right and left nipples of Tara Devi, and the rest of the injuries were mostly at her thighs and they were of the duration of three to four days, which approximates to the period when the accused Nain Singh had physically assaulted her to violate her person.

Thus the statements of Khem Raj and Tara Devi in categorical terms that they were kept confined in the police station during that night when the accused Nain Singh subjected Tara Devi to forcible sexual intercourse are further corroborated and strengthened by the circumstance that Chuhar Singh, after the couple was taken to the police station was running from pillar to post through out the night to secure their release when two telephone calls were made to the police station at his instance by Dr. Rama Nand and then he makes two telephone calls early in the morning to the Chief Minister of Himachal Pradesh and the Superintendent of Police, Nahan. Further it is also on record that when next morning the couple was released from the police station by the accused Nain Singh with a stern warning to return to Chandigarh immediately they came to the quarter of Chuhar Singh when said Tara Devi was crying and she conveyed to her husband that she was subjected to rape during the night by the accused Nain Singh and said Khem Raj then conveyed this to Chuhar Singh when he returned to the quarter next morning after he had made the telephone calls to the Chief Minister and the Superintendent of Police, Nahan and said Chuhar Singh also stated categorically that he found Tara Devi crying and her shirt was found to have been torn.

Similar is the statement of the occupant of the adjoining quarter, namely, Joginder Singh who saw the couple in the morning at the police station when he sent two cups of tea to them through Khazana Ram and when the couple returned to the quarter of Chuhar Singh he saw that the shirt of Tara Devi had been torn and she was crying. This is further corroborated by the medical evidence which is to the effect that said Tara Devi had sustained injuries at her thighs and teeth bites on both her nipples during that night and she has categorically stated that they were inflicted by non-else but the accused Nain Singh who while under the influence of liquor committed forcible sexual intercourse with her in a room of the police station.

The learned Counsel for the two accused at the time of arguments before us have mainly urged the same points which the learned trial Court has high lighted to find the prosecution evidence as unworthy of credence.

We may now take note of those points. The learned trial Court has stated that there has been no allegation of rape in the complaint which was filed against the accused before the District Magistrate Ex. PE and also in the enquiry report Ex. PF and that even after Khem Raj and Tara Devi came to the quarter of Chuhar Singh on the morning of March 14, 1978, from the police station, the victim of the rape Tara Devi did not disclose this factum of rape to Chuhar Singh but Chuhar Singh heard it only from Khem Raj but obviously said Khem Raj had not seen Nain Singh subjecting Tara Devi to sexual intercourse as he was in a different room and therefore, this was a hearsay evidence.

We do not think that this approach on the part of the trial Court is in the right direction. It is clear that as soon as Tara Devi and Khem Raj were released from the police station on the morning of March 14, 1978, Tara Devi while crying told her husband Khem Raj that the accused Nain Singh subjected her to forcible sexual intercourse during the night in a room of the police station. She continued crying even when she was in the quarter and to the query of Chuhar Singh, Khem Raj had conveyed to him that his wife Tara Devi was ravished by the accused Nain Singh during the night, in the police station. We fail to understand as to how it becomes hearsay evidence.

The trial Court should have known that it is no mere-trifle matter when a person of a married or unmarried lady is violated and out of sheer shame and modesty she would be highly reluctant to convey to each and every person that she has been raped. It was thus but natural that she should have conveyed this only to her husband and to Ors. her tears were sufficient to convey that all did not go well with her inside the police station and if in that case instead of Tara Devi herself disclosing it to Chuhar Singh it was disclosed by her husband, it was not hearsay but was rather natural behaviour on the part of Tara Devi.

78.Then coming to the complaint which was made, touching the point, it was categorically noted in the complaint Ex. PE that while Tara Devi was confined by the accused Nain Singh in a separate room, �the accused Nain Singh slept with her and outraged her modesty�. The outraging of modesty, no doubt in legal parlance, may not amount to rape but it must be remembered that those who drafted and signed this complaint were no lawyers but only the prominent citizens of the town of Rajgarh and thus even if the specific word �rape� was not used there, it is of no consequence. It is on record that a case, inter alia, was registered against the accused u/s 376 of the Indian Penal Code and he was challaned for that offence amongst Ors. and was even charge-sheeted and we are satisfied that there is over-whelming evidence on record to prove this charge against the accused Nain Singh beyound all reasonable doubt.

The trial Court has also observed that there have been improvements in the prosecution case since in the beginning only the name of Nain Singh accused was given in the complaint Ex. PE and later on they came with the allegations that the co-accused Ram Kumar had also participated in dragging the couple to the police station. This again appears to be an erroneous appreciation of the evidence. It has been clearly stated that the accused Nain Singh was heading the party with one constable though his name has not been given. But, this is of no consequence in the instant case. The trial Court lost sight of the fact that this offence was not like any other ordinary offence since it was committed by the police officials themselves and members of the public are not supposed to know the name of each and every police official of the police station. Probably at that time the main resentment was only against the accused Nain Singh who was the main actor in this outrageous episode but it is no where been stated that he was all alone when he entered the room of Chuhar Singh and dragged the couple to the police station.

Then the other point which has weighed with the learned trial Court is that although as per the statement of Tara Devi, after she was subjected to forcible sexual intercourse by the accused Nain Singh in a room of the police station, she was taken by him to a quarter nearby of a constable who was out of station and his wife alone was there and was kept there during the rest of the night, but, that lady, whose name is probably Lachhami, has not been examined by the prosecution which calls for adverse inference. There is again no substance in this plea. It is apparent from the record that the police per sonnel at least at the lower strata have naturally a soft corner for the accused and even those police constables who were cited as prosecution witnesses, namely, Hira Lal and Chhotu Ram had to be dropped by the prosecution at the trial stage as they were not ready to support the prosecution case and have rather appeared as defence witnesses. Under the circumstances, it can be safely presumed that this lady Lachhami Devi would not have supported the prosecution case had she been examined as a prosecution witness. In any case we are strongly of the opinion that her non-examination does not at all affect the substratum of the prosecution case and the trial Court was wrong in giving undue weightage to this inconsequential aspect.

The trial Court has also found fault with the investi gation in not taking the clothes of the accused Nain Singh and Tara Devi into possession and getting them examined by the Chemical Examiner to find out supporting evidence of the rape. This plea has to be stated to be rejected straight away. It is quite clear that the trial Court has looked at the entire evidence from myopic and oblique angle. He has lost sight of the fact that in this case as the offence was committed by the police, no case was being registered in the police station. Not only that, but, even the Medical Officers declined to examine Tara Devi unless reference was made in this behalf by the police and finding thus helpless the victims with the help of Chuhar Singh had to complain to the leader of the N.G.Os. It is on record that this created a spontaneous resentment in the entire town and there was demonstration against this high handed and outrageous behaviour on the part of the police and an �Action Committee� of the citizens of Rajgarh town was formed and even written complaint was made to the District Magistrate. Even in that situation, however, no criminal case was registered against the two accused and in order to pacify the public, the District Magistrate ordered a magisterial enquiry which took as many as seven months for completion and it was thereafter that a criminal case was registered against the accused.

In these circumstances, where was the agency which could take the clothes of the culprit and the victim into possession and get them examined. Even the lady was medically examined after three days of the occurrence despite the fact that she was visiting the hospital every day and requesting the medical officers to examine her and this too happened when the public of Rajgarh showed resentment and persuaded the Medical Officer concerned to examine Tara Devi. In any case the injuries on the person of Tara Devi are one of the strongest factors to fasten the guilt of rape on the accused Nain Singh and the noa-examination of the clothes is of no consequence. It has been proved on record that Tara Devi was putting on the clothes Ex. P 1 and Ex. P 2 out of which the shirt was found torn immediately after she was released from the police station on the morning of March 14, 1978 and these clothes were handed over by Tara Devi to Sub-Divisional Magistrate during the course of enquiry when they were put in a sealed cover and kept in the double lock of the treasury and were handed over to the Investigating Officer during the investigation of the case after the case was registered against the accused.

Then Anr. factor which the lower Court has taken into consideration is that when Chuhar Singh visited the police station long after Khem Raj and Tara Devi were confined in the police station, he had gone to the room having telephone but he had not found Tara Devi in that room although according to Tara Devi she was kept in a room which had telephone. This again is of no consequence. Since it has not been made clear during the course of the trial as to how many telephones were in the police station and even if there was only one whether it had no extension. It may be that she was kept in a room which might be having a separate telephone or the extension of the telephone in the room of the S.H.O where Tara Devi was kept.

Besides, the trial Court for this minor circumstance, has conveniently overlooked the over-whelming evidence which clearly indicates that said Khem Raj and Tara Devi were kept confined by the accused in the police station during the night of March 13, 1978, namely, the categorical statements of these two victims that they were tortured inside the police station and said Tara Devi was also subjected to sexual intercourse by the accused Nain Singh. Soon after they were taken to the, police station, their relation Chuhar Singh kept running about throughout the night in order to secure their release when he approached Dr. Rama Nand PW twice to ask the accused Nain Singh to release them and when failed in the attempt, he tried to book distant trunk calls to the Chief Minister and the Superintendent of Police, Nahan, and when it did not materialise at night, he d d so early in the morning at 6.00 and complained to the authorities concerned regarding the incident and the disclosure of this maltreatment on the part of the accused Nain Singh by Tara Devi immediately after their release next morning with tears in her eyes when her shirt was also found torn and there were injuries on the erotic zones of her body. Besides, since the police was involved in this episode, admittedly this incident had to be, in a way, taken to the streets before the authorities concerned found themselves compelled to order a magisterial enquiry into the episode.

We may also note with a certain amount of dismay that the learned trial Court has brushed aside the important medical evidence on record for reasons which, to say the least, are ridiculous on their very face. The relevant portion of the judgment in para-5 in this behalf be extracted as follows:

Now coming to the medical evidence the lady doctor who has examined Smt. Tara Devi has clearly stated that she was used to sexual mtercourse and her cervix and vagina were loose enough to permit two fingers loosely. It was not possible for her to opine that she was subjected to rape. She had not noticed any injury on the private parts of the girl, excepting some abrasions and some contusions on breasts, arms, and knees. So this evidence on the medical side also does not lend much support to the prosecution story. The girl is admitted to be married with Khem Raj PW and as per opinion of the doctor the abrasions and marks found on the person of the girl could be a result even from her own husband.

In other words, according to the trial court, since Tara Devi was married, was used to sexual intercourse and did not have any injuries on her private parts, it was not possible for the medical officer concerned to opine whether said Tara Devi was subjected to rape. As regards the injuries on her body, there were only abrasions and contusions on her breasts, arms and knees and since said Tara Devi was married to Khem Raj, as has been opined by the doctor as well, these injuries could have been caused by her husband Khem Raj as well. This is not only a travesty of facts on record but also perversity in the opinion of the trial court. In the first place, the Court has lost sight of the fact that the injuries on the breasts of Tara Devi were not ordinary injuries but they were teeth-bites around the nipples of both the breasts and the injuries were not on the knees but on both the thighs. Then the medical officer when in the witness box has categorically stated that apart from those injuries which had been caused by teeth bites, the rest of the injuries could be caused by excessive pressure of pinching and these injuries could appear if a woman is subjected to forcible intercourse. It is on record that the accused were completely unknown to Tara Devi and her husband Khem Raj till the night of March 13, 1978 and as such they did not have any animus whatsoever against the accused. It is thus highly improbable that had they not been subjected to this humiliating treatment by the accused Nain Singh, they would have involved him in such a serious offence even at the cost of reputation of a lady by stigmatising her as ravished and raped by the accused Nain Singh in such an inhuman fashion and said Khem Raj would have gone to the extent of himself inflicting those injuries upon his own wife just to implicate the accused Nain Singh. It is also highly improbable that they would have done so on the instigation of Chuhar Singh even if it is conceded, that he was prejudiced against the police for stopping him from using water from the police tap.

The last point which weighed with the trial Court is that although according to Chuhar Singh, Khem Raj and Tara Devi had filed written complaints before Gopal Datt Sharma, the President of the N.G.Os. Unit at Rajgarh who had handed over those complaints to the Sub-Divisional Magistrate, Rajgarh during the enquiry but the Sub-Divisional Magistrate, Rajgarh in his enquiry report Ex. P.F. does not make any mention of such complaints and as such adverse inference was drawn by the trial Court to the effect that either no such complaints were in existence and if at all there were, the same gave a different version of the incident. This again is a twisted view. Gopal Datt Sharma PW has categorically stated that the three persons had made complaints in writing to him which he handed over to the Sub-Divisional Magistrate during the enquiry while he was in the witness box. Then the Sub-Divisional Magistrate, when in the witness box, again confirmed this and asserted that he had brought the enquiry file with him and those three complaints were on that file which were handed over to him by Gopal Datt Sharma PW during the course of the enquiry. Now, if the defence wanted to take any advantage of those complaints nothing prevented the accused from asking the trial Court to place them on record or the Court itself suo-motu could do so and since they failed to do so, no advantage could be given to the accused in this behalf. Then no question was put to the Sub-Divisional Magistrate as to why he failed to make reference to those complaints in his enquiry report. We may straightway observe at this stage that since the accused were not associated during the course of the enquiry inasmuch as they were not even notified of the charges against them nor were they given any opportunity to cross examine the witnesses, no part of the finding given in the report of the Sub-Divisional Magistrate (Ex. PF) should be taken into consideration in this trial adversely to the accused. It was at the most a preliminary enquiry for the satisfaction of the District Magistrate whether or not a criminal case should be registered against the accused. We are, however, of the opinion that when such serious allegations had been made against the accused it was not proper on the part of the District Magistrate to order this magisterial enquiry and a criminal case should have been registered at once against the accused.

It, however, appears that the main ground hat has weighed with the trial Court in acquitting the accused was non-compliance of the provisions of Rule 16.38 of the Punjab Police Rules, which as we have already held was a wholly erro neous view taken by the trial court.

It may also be noted that the version of the two accused in their examination u/s 313 of the Code of Criminal Procedure is at variance on many of the important points indicating thereby that the accused Nain Singh starts telling lies upon lies without having the slightest regard for truth. While the two accused admitted that during the course of patrol duty they had visited the SFDA Hall, according to Nain Singh, he had altercation with Jagdish outside the hall as he along with Ors. was taking liquor on the road side and he asked them to go to their room to have liquor; whereas according to accused Ram Kumar he had remained on the road side while the accused Nain Singh and the chowkidar of the SFDA Hall had gone inside and, therefore, he did not know whether inside there was any altercation with Jagdish or not, but the accused Nain Singh had brought this Jagdish outside the SFDA Hall to be taken to the police station though released him halfway while on their way to the police station. Then according to both the accused said Khem Raj and Tara Devi had met them at about 11 p.m. near the bus stand when according to Ram Kumar they were coming from a house just nearby and after they had replied to the query of Nain Singh that they had come from Chandigarh, they were allowed to go and they then went towards the SFDA Hall. Nain Singh accused on the other hand has come out with a different story, namely, that they were found loitering near the bus stand. He then enquired from them as to from where they had come and when he was noting down their addresses, PW Chuhar Singh along with five or six other persons gheraoed him and gave him fist blows, at his back and asked him as to who the bastered was he to ask the address of those people and he then threatened him that he would see to it that he was jailed and for this purpose he would approach the Chief Minister of Himachal Pradesh, the Deputy Commissioner and the Superintendent of Police, Nahan and if they did not do any thing in the matter he would approach the Prime Minister of India ; then he and the constable Ram Kumar apprehending danger to their livies managed to escape from them with difficulty.

We fail to understand as to why for such an innocent act said Chuhar Singh should have felt so much infuriated so as to not only threaten him with criminal prosecution with the help of high-ups of the State and the country but also physically assault him and how the accused Nain Singh who admittedly was an Investigating Head Constable and probably Incharge of the police station at that time, should have failed to take appro priate steps against Chuhar Singh and his companions or atleast to make mention of this incident in the police daily diary. Apparently this is just a figment of the imagination of the accused Nain Singh and an after thought especially when not even a suggestion in this behalf was put to Chuhar Singh when he was in the witness box.

The evidence led in defenceis, in our opinion, good for nothing and does not help the accused in the least.

In view of the above discussion we are of the opinion that the two accused had illegally entered the quarter of Chuhar Singh at that odd hour of night to take Tara Devi and her husband Khem Raj to the police station to terrorise them through physical torture with intent to ultimately subject Tara Devi to forcible intercourse and the accused Nain Singh and Ram Kumar thereafter not only illegally confined Khem Raj and Tara Devi PWs in the police station at Rajgarh but the accused Nain Singh also subjected said Tara Devi to forcible intercourse and in the$e circumstances the two accused are guilty of offences under Sections 451 and 342 of the Indian Penal Code and the accused Nain Singh is further guilty of the offence u/s 376 of the I.P.C. and the accused Ram Kumar is guilty of the abetment of the offence and is thus guilty for the offence u/s 376 read with Section 109 of the Indian Penal Code while the order of the trial Court is liable to be set-aside.

The appeal is thus accepted, the order of the trial Court dated December 7, 1979 acquitting the accused is set aside and the accused Nain Singh is convicted for the offences under Sections 451, 342 and 376 of the Indian Penal Code and the accused Ram Kumar is convicted under Sections 451, 342 and 376 read with Section 109 of the Indian Penal Code.

Let the accused be now heard on the question of sentence.

November 14, 1986

We have heard the accused on the question of sentence. The learned Counsel for the accused have pleaded d that since the accused are going to lose their service as a result of this conviction, this by itself will be sufficient punishment to them and that in fact the accused Nain Singh was discharged from service forfeiting his 25 years service sometime after the incident and was re-employed as constable about three years ago. The other usual plea has also been taken that they have young kids to support.

We feel that in this particular case lenient view is not call for. The accused admittedly were protectors by virtue of the office they held but actually behaved like predators. Particularly, the accused Nain Singh has acted like a lusty brute. The accused also acted in gross violation of the law as laid down by the Supreme Court in Nandini Satpathy Vs. P.L. Dani and Another, as well as the Police Rules by dragging Tara Devi in the dead of night to thepolice station.

We, therefore, feel that atleast in the case of Nain Singh a deterrent punishment should be awarded.

The accused Nain Singh is, therefore, sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 1000/- and in default to undergo further rigorous imprisonment for three months u/s 376 of the Indian Penal Code. He is further sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- u/s 451 of the Indian Penal Code and in default to go further rigorous imprisonment for a period of two months. He is also sentenced to undergo rigorous imprisonment for a period of six months u/s 342 of the Indian Penal Code. All these sentences, however, shall run concurrently.

As regards accused Ram Kumar, we feel that in his case the punishment should not be that severe as in the case of Nain Singh since he has played only a second fiddle to the accused Nain Singh. He is, therefore, sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 1000/- and in default to undergo further rigorous imprisonment for three months u/s 376 read with Section 109 of the Indian Penal Code. He is further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- u/s 451 of the Indian Penal Code and in default to undergo further rigorous imprisonment for a period of two months. He is also sentenced to undergo rigorous imprisonment for a period of six months u/s 342 of the Indian Penal Code. All these sentences, however, shall run concurrently.

The accused are on bail. They are directed to surrender to their bail bonds forthwith and serve out the sentences imposed upon them.