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PETITIONER:

DHARMA

Vs.

RESPONDENT:

NIRMAL SINGH & BITTU & ANR.

DATE OF JUDGMENT: 05/02/1996

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

RAY, G.N. (J)

CITATION:

1996 AIR 1136 JT 1996 (4) 608

1996 SCALE (1)677

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

HANSARIA. J.

Sex violence is on increase, and in a big way. It is an

irony, as recently pointed out by this Court in State of

Punjab vs. Gurmit Singh, JT 1996 (1) SC 298, that while

celebrating woman's rights in all spheres, we show little

concern for her honour, which is a sad reflection. It has to

be remembered that a rapist not only violates the victim's

personal integrity but degrades the very soul of the

helpless female.

2. Present case is much more serious, because here, after

Ravindarjit had resisted rape, she was done to death. there

can be no doubt that such an offence has to be viewed very

seriously and a person accused of such an offence does not

deserve to be acquitted lightly. But this is precisely what

has happened inasmuch as the trial court, despite there

being clinching and conclusive evidence to find the accused

guilty, acquitted him. What is more, the State did not think

it fit to file appeal. We wonder why? It was left to the

complainant to knock the door of the High Court by invoking

its revisional jurisdiction. And seal what the High Court

has done. It passes one word order only saving "Dismissed".

We are afraid, the High Court was far from justified in

doing so inasmuch as from what is being stated later it

would appear that a full proof case exists against the

accused. The complainant was, however, not to be

disheartened at losing at the hands of two courts, as he

moved this Court by filing the present appeal. May we say by

allowing the appeal, for reasons to be given, we have felt a

little relieved that the failure of justice has after all

been taken care of and the damage done to womanhood and the

society is being repaired, albeit belatedly.

3. We are satisfied about the guilt of respondent- Nirmal

Singh, the sole accused in this case, because there is on

record the testimony of P.W.5, Balbir Singh, who had seen

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Nirmal Singh assaulting helpless and hapless Ravinder with

the blunt side of the Datar (which is a heavy instrument

made of iron whose one side is sharp and the other blunt) on

her head. Then there is evidence of Sarpanch P.W.4, Kashmir

Singh, about the extra-judicial confession of the accused.

This is not all. A Datar was recovered pursuant to the

information given by the accused which was found concealed

in the cattle shed under the heap of fuel wood. The Datar

had blood-stains on it. The fact of abscondence was also

pressed into service by the prosecution. Then the accused

had an inquiry on the outer angle of the right eye, which

also shows his involvement inasmuch as when he made the

extra judicial confession, he had stated to the Sarpanch

that when he was trying to commit rape on Ravinder, she had

given a fist blow on the right eye. It fails our

comprehension as to how despite the aforesaid believable

evidence being on record, the accused could be acquitted ?

4. Before we record our reading of the evidence produced

in the case, let a legal submission advanced by Shri Lalit,

appearing for the respondent-accused, be dealt with. His

submission is that as the complainant had approached the

High Court in revision and as under the revisional power

available to the High Court under section 401 Cr.P.C., the

High Court could not have altered the finding of acquittal

into one of convictions, because of what has been stated in

sub-section (3) thereof, if we were to be satisfied that the

acquittal was wrongful, it would not be within our

competence to convict the respondent; at best the case could

be sent back for retrial. We are not impressed with this

submission inasmuch as the approach to this Court being

under Article 136 of the Constitution. We do not read the

limitation imposed by section 401 (3) of the Code qua the

power available to us under the aforesaid provision. May it

be pointed out that a similar submission had been advanced

by Shri Lalit himself in the case of E.K. Chandrasenan vs.

State of Kerala, JT 1995 (1) SC 496, then contending that

this Court is incompetent to issue rule of enhancement as

had been done in those cases. It was held in the aforesaid

decision that the power available to this Court under

Article 136 is not circumscribed by any limitation. In any

case, power under Article 142 is available to pass such

order as may be deemed appropriate to do complete justice.

We, therefore, reject this contention of Shri Lalit and

proceed to examine the materials to find out whether case of

conviction does exist, as the contention of the appellant.

5. We have dealt with the aforesaid legal submission at

the threshold because, if we were agreed to Shri Lalit, we

would not have analyzed the evidence ourselves but would

have sent the case for retrial by passing a short order

indicating broadly as to why, according to us, the acquittal

was not justified. As the legal contention is not acceptable

to us, we propose to enter into the merits ourselves and see

whether the case really was one of acquittal or of

conviction.

6. Let us first note the evidence of the sole eye witness,

P.W.5, Balbir Singh and why he has been disbelieved by the

trial court. His deposition is that on the date of

occurrence, which was 25.12.1987, he had come to his village

as it was holiday. At about 6.15 a.m. he went to his field

of Malkiat Singh, which adjoins his field. After exchanging

greetings they separated to go to their respective

destinations. At about 7.00 a.m. he went to his field and

saw a girl tied to a eucalyptus tree and the accused was

present there who was known to him before. He found him

giving Datar blows on the head of the girl, by using the

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blunt side of the weapon. The girl was also known to him

from before - she was Ravinder Jit Kaur. He could not hear

the alarm of the girl, even if raised, as a loud speaker

fixed to a Gurudwara was in action. On seeing the witness,

the accused ran away. Reaching near to the victim, the

witness saw that she had been tied to the tree with the help

of a cloth. Injuries could be noticed on the head and her

salwar was open. He wanted to bring this immediately to the

notice of Shital Singh, father of the victim, and in search

of him went upto Manilpur on a cycle. Not finding him there,

he took a bus for Nangal and brought the matter to his

notice. This was around 11.00 a.m., whereafter both of them

came back to the village.

7. The aforesaid clearly shows that Balbir Singh had seen

the assault on the person of the girl. The trial court,

however, disbelieved him because of the evidence given buy

P.W.2, Dr. Mahajan, who had done the autopsy. On this being

done the following injuries were noticed on the person of

Ravinder:

(1) A lacerated wound 4-1/2 x 1-

1/2 cm. x bone deep on the head

extending to both sides 12 cm. from

frontal hair-line. On dissection,

there was a depressed fracture of

the skull underneath the wound and

corresponding area of the meninges

was also having ear of : cm x 1/4th

cm.

(2) An oblique lacerated wound 6

cm x 1-1/2 cm. bone deep on right a

side back of head, 2 cms, back to

injury No.1. On dissection,

underneath bone, manings and brain

were healthy.

(3) A lacerated wound 1 cm. x 1/2

cm. x bone deep on the left side

chin 2-1/2 cm. from the mioline, on

dissaction, underneath bone was

healthy.

(4) A lacerated wound 1/2 cm. x

bone deep on mid-line of chin. On

dissaction, the underneath bone was

normal.

(5) A reddish contusion 3-1/2 cm.

x 2-1/2 cm. on front of the left

shoulder joint.

(6) A reddish contusion 5 cm. x 2-

1/2 cm. on front of left mid

clavicular region. On dissection of

injuries Nos.5 and 6, under- neath

bones were healthy and normal.

(7) Dissection of the ligature

mark. The sub-cutaneous tissue was

having ecchymonis and underneath

plasma was ruptured and blood was

present in the adjoining area.

There was laceration on both

carotids. On further dissection,

there was found dislocation of the

second chervil vertebrae.

8. On this witness being asked by the court whether

"Injuries Nos. 1 and 2 were likely to have been caused by

the blunt side of blade of Datar (Exhibit - P.1) or by its

handle?", the answer was "by the handle of Datar and not by

the blunt side of the blade". By referring to this piece of

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evidence, the trial court stated that it was difficult to

expect that the assailant would hold the weapon from the

blade and cause injury from the handle. The court further

opined that the rapist must have decided resolutely to

finish the girl, in which case he would have rather used the

weapon more effectively. This led the court to observe the

possibility of a blunt weapon other than exhibit - P.1 with

bigger girth or width, having been used, in the

circumstances of the case.

9. According to us, the trial court was swept too much by

the aforesaid answer of the autopsy surgeon. Injuries 1 and

2 being lacerated, the same could have been caused by blunt

side of Datar. It may be pointed out that what has to be

accepted when an autopsy surgeon deposes in the court is his

findings relating to the nature of injuries, and not as to

how these were caused. Shri Lalit does not deny this legal

position but, according to him, the blunt side of Datar

would not have been used as the accused must have attempted

to cause death, in which case, would have used the sharp

side. The learned counsel goes a step further and submits

that Balbir Singh deposed about the use of blunt side of the

weapon having known that the injuries were lacerated in

nature.

10. The last part of the submission has absolutely no merit

inasmuch as even though the postmortem was done on 25th

December itself, it is a common knowledge that the post

mortem reports do not become available for long even to

police. This being the position, the submission that when

Balbir Singh stated during investigation about the use of

blunt side of Datar during his examination on 25th itself,

he had done so because of the postmortem finding, is

merciless. The question as to why the blunt side of Datar

was used, is answered by the type of weapon the Datar was,

which, as would appear from Exhibit PO/1 had a blade 9-1/2"

in length and handle 5-1/2" long. This shows that even the

blunt side of Datar had lethality. This apart, as the

assault was on the head, striking by the blunt side would

have achieved the object inasmuch as a purely blunt weapon

like lathi is very often used for assault on head, so much

so as to cause death of the victim.

11. Because of the above, we totally disagree with the

trial court's assessment of the evidence of Balbir Singh. To

shake his credibility, Shri Lalit, however, urges that

having seen Ravinder Jit in the condition deposed by the

witness, he should not have gone in search of her father

upto Nangal. but should have gone to the village Abadi

nearby and brought to the notice of the villagers as to what

had happened to Ravinder Jit. Instead of doing this, if

Balbir Singh thought it proper to first inform father of

Ravinder Jit, we do not think what the witness had done was

unnatural: indeed, it was a natural conduct to first speak

to the father having found that Ravinder Jit had not only

been assaulted but was perhaps raped. The fact that the

father (Shital Singh) was not examined as an eye witness

cannot take away the weight of Balbir Singh's evidence,

though it would have been better for the prosecution to

produce Shital Singh also a witness. But then, this lapse

has been met to a great extent by examining grand father of

Ravinder Jit, who is P.W. 6. Dharma, and who is the person

who had approached the High Court and is the appellant

herein. From his evidence it has come out that his son

Shital Singh had left for Nangal at about 6.15 a.m. Sc. the

evidence of Balbir Singh that he had met Shital Singh at

Nangal has received corroboration from the deposition of

Dharma.

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12. Yet another criticism of Balbir Singh is based on what

was stated in this remand application - Exhibit DA. As the

original document is in Gurmukhi (whose translation was not

found in record). this was translated for us in the Court by

a counsel knowing Gurmukhi. A perusal of the same shows that

it mentioned about registration of a case against the

accused on 25.12.1987 at about 6.30 a.m., on the information

given by Dharma who had gone to the field in search of

Ravinder Jit as he had not come back. The informant had

stated that "one young man, name not known" had murdered

Ravinder Jit. Materials on record show that the name of the

accused had not come to be known to Dharma before Shital

Singh had come back to the village around 11 a.m. So the

statement by Dharma made around 6.30 a.m. that an unnamed

young man had caused the murder, cannot affect the voracity

of Balbir Singh.

13. The aforesaid would show that there was really nothing

to disbelieve Balbir Singh. The prosecution, however, has

not sought to rely on Balbir Singh alone to demand

conviction of the respondent inasmuch as there is on record

the evidence of Sarpanch, P.W.4 Kashmir Singh, to speak

about the extra-Judicial confession of the accused. From his

evidence it has transpired that the accused has an eye on

Ravinder Jit from before and it was on 30th December that

the accused case to him to seek some assistance because he

being a Sarpanch had a say with the police who was putting

pressure upon his family members because of his having

caused the offence in question. The accused, therefore,

desired that the Sarpanch should meet the police which was

so done. But before that when the accused has met the

witness he had stated that he had committed the offence in

question and on the girl offering resistance she was taken

to a nearby field in which trees were planted. The accused

also had stated to the Sarpanch that Ravinder Kaur had given

fist blow on his right side of the eye while offering

resistance. The further admission was that on the girl

stating that she would disclose what he had attempted to do

with her, cloth was tied around her neck and she was dragged

upto the tree, tied with it and injuries were inflicted with

Datar from the blunt side.

14. The trial court disbelieved the Sarpanch stating that

the same did not inspire confidence because of the reason

that the office having been committed in absolute secrecy,

the perpetrator would have been too hesitant to make a

confession; more so. when practically all the residents of

the village were strongly condemning the rapist/killer of a

young girl of the same village. According to us, the trial

court absolutely missed the point that the Sarpanch was

approached by the accused to seek protection in as much as

police was putting pressure on the members of his family. A

Sarpanch being a man of authority it was nothing unnatural

in the accused approaching him and apprising him as to what

he had done.

15. The above is not all. There is evidence of the

investigating officer, P.W.7, that a Datar had been

recovered consequent upon the information given by the

accused that he had kept the same concealed in his cattle

shed under the heap of fuel wood. After giving this

information, the accused really led the police to the place

from where recovery was made and a bloodstained Datar was

found. This recovery does connect the accused with the

crime.

16. Shri Lalit submitted that as the room of the house of

accused was lying unlocked, police itself could have

recovered the Datar if thorough search would have been made.

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But as the instrument was lying hidden in the cattle shed

under the heap of fuel wood, and the weapon could not have

been found on search but for the information given and

leading the police to the place of concealment.

17. It is baffling to us as to how such an important piece

of circumstance was totally missed by the trial court. This

shows the casual approach not only of the trial court but of

the public prosecutor. The casualness does not stop here

inasmuch as the State did not feel it necessary to file an

appeal against the acquittal, leaving it to the old grand-

father of the victim to knock the door of the High Court

first and lastly of this Court.

18. The involvement of the accused is fortified by the fact

that on his examination by P.W. 1 redishness/sub-conjectivel

haemorrhage was found on the outer angle of the right eye,

which must have been the result of the fist blow on his

right eye given by Ravinder Jit, about which the Sarpanch

had deposed, as already noted.

19. We have also on record the fact of absconded of the

accused. Shri Lalit would not like us to believe this

inasmuch as there is no evidence that the police had

searched for the accused at his house all the days after the

occurrence till his surrender. The learned counsel put the

matter thus becasue the evidence of P.W.8. S.I Avtar Singh,

who had taken up investigation from P.W.7. is that after

recording the statements of witnesses, he had searched for

the accused on 25th itself but he was not available. Shri

Lalit contended that as this witness had not stated that

search was made on subsequent days also, the circumstance of

absconding had not been established. But then from the

evidence of P.W.6 we find that the police had been visiting

the village in connection with this case. It may be that on

such visits being made, whereabouts of the accused were

tried to be ascertained. The fact that the accused was

keeping away from the police has transpired from the

evidence of the Sarpanch also according to whom the accused

met him on 30th saying that the police was putting pressure

on his family members. All these evidence taken together do

establish the fact of abscondence.

20. We are thus fully satisfied that the respondent had

first attempted to commit rape on Ravinder Jit and

thereafter killed her. He is, therefore, convicted under

Sections 376/511 and 302 of the Indian Penal Code.

21. This requires us to consider the question of sentence.

As to this, the submission of Shri Lalit is that the present

is not the 'rarest of the rare' case. Further, in view of

the fact that occurrence had taken place in 1987 and the

accused was then aged around 19, he may not be visited with

capital punishment; more so, as he had been acquitted by the

trial court, which order was not interfered with by the High

Court. We accept the submission and hold that sentence of

imprisonment for life would be the appropriate punishment.

22. In the result, the appeal is allowed by convicting the

respondent under Sections 376/511 and 302 of the Penal Code,

for which offences we award a composite sentence of

imprisonment for life. He would be got arrested and follow

up steps would be taken as required by law.