Vs. Nirmal Singh & Bittu & Anr  INSC 192 (5 February 1996)
B.L. (J) Hansaria B.L. (J) Ray, G.N. (J) Hansaria. J.
1996 AIR 1136 JT 1996 (4) 608 1996 SCALE (1)677
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
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
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.
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 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.
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 ?
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.
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.
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
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 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.
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:
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.
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
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.
lacerated wound 1/2 cm. x bone deep on mid-line of chin. On dissaction, the
underneath bone was normal.
reddish contusion 3-1/2 cm. x 2-1/2 cm. on front of the left shoulder joint.
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.
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.
laceration on both carotids. On further dissection, there was found dislocation
of the second chervil vertebrae.
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 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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
This requires us to consider the question of sentence.
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
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.