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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.