Holding

The Supreme Court’s jurisdiction under Articles 136 and 142 is not limited by Section 401(3) CrPC, and the evidence establishes the accused’s guilt, warranting conviction for rape and murder with life imprisonment.

Summary

The appellant Dharma challenged the acquittal of Nirmal Singh for the rape and murder of Ravinder Jit Kaur. The Supreme Court examined whether its power under Article 136 (and 142) of the Constitution is limited by Section 401(3) of the CrPC when hearing an appeal against an acquittal. It also evaluated the evidence – an eye‑witness account, medical autopsy findings, the accused’s extra‑judicial confession, recovery of the weapon and proof of his abscondence – to determine if conviction was justified. The Court held that the evidence was conclusive and that the use of the blunt side of the Datar could cause lethal injuries, rejecting the trial court’s reasoning. It further ruled that the case did not fall within the “rarest of the rare” category, so death penalty was inappropriate. Consequently, the Supreme Court set aside the acquittal, convicted the accused under Sections 376, 511 and 302 IPC and imposed life imprisonment. The appeal was allowed.

Issues considered

The scope of Supreme Court jurisdiction under Articles 136 and 142 vis‑à‑vis the limitation imposed by Section 401(3) of the CrPC when hearing an appeal against an acquittal
Whether the eye‑witness testimony, medical autopsy report, extra‑judicial confession, recovery of the weapon and evidence of abscondence establish guilt for rape and murder
Whether the blunt side of a Datar can cause lethal injuries sufficient to support a murder conviction
Whether the conduct of the eye‑witness in informing the victim's father first is natural and admissible
Whether the case qualifies as "rarest of the rare" warranting the death penalty
Appropriate sentence for the offences under Sections 376, 511 and 302 IPC

Legislation cited

Code of Criminal Procedure, 1973s. Section 401(3)
Constitution of Indias. Article 136, s. Article 142
Indian Penal Code, 1860s. Section 302, s. Section 376, s. Section 511

Subjects

rapemurderacquittalappealSupreme Court jurisdictionArticle 136Article 142Section 401 CrPClife imprisonmentrarest of the raresexual violenceextra‑judicial confessionweapon Datarabscondence

Judgment

DHARMA A
v.
NIRMAL SINGH @ BITTU AND ANR.

FEBRUARY 5, 1996

[B.L. HANSARIA AND G.N. RAY, JJ.] B

Constitution of India, 1950: Articles 136 and 142.

Acquittal-Appeal against-Power of Supreme Court-Not cir-
cumscribed by any limitation imposed by section 401(3) of the Code of C
Criminal procedure, 1973.

Criminal Law :

Indian Penal Code, 1860: Sections 376, 302 and 511.

Rape and murde1~Acquittal-Appeal against-Sole eye-witness-Tes-
D
timony of-Corroborated by medical evidence-Conduct of eye-witness first
infomting father of deceased instead of villagers-Not unnatural-Weapon of
offenc~Recovery of-At the instance of accused-Connected him with
crime-Fact of his abscondence also proved-Held : accused guilty of of-
fenc~Acquittal set aside. E
Sentenc~Accused guilty of committing offence of rape and mur-
de~Accused aged only 19 years-Occwrence taking place about 8 years
ago-Not "rarest of rare cases"-Imp1isonment of life would be a proper
sentence.
F
The respondent-accused had murdered the deceased after she had
resisted rape. However, the trial court, despite there being clinching and
conclusive evidence to find the accused guilty, acquitted him. It was left to
the complaintant to knock the door of the High Court by invoking its
revisional jurisdiction. The High Court dismissed the revision petition. G
Aggrieved by the High Court's judgment the complainant preferred the
present appeal.

According to the prosecution, P.W. 5 had seen the respondent -
accused assaulting the deceased with the blunt side of the Datar on her
head. He immediately reported the matter to the father of the deceased. H
115
116 SUPREME COURT REPORTS [1996) 2 S.C.R.

A The respondent had made extra-judicial confession before P.W. 4. A Datar
was recovered by P.W. 7. 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 injury on the
B outer angle of the right eye which also showed his involvement inasmuch
as when he made the extra judicial confession, he had stated to P.W. 4,
that when he was trying to commit rape on the deceased, she had given a
fist blow on the right eye. The autopsy was done by P.W. 2. and the injuries
on the deceased were found lacerated.

C On the basis of the evidence adduced on behalf of the prosecution,
the Trial Court came to the conclusion that the charges levelled against
the accused were not established. This finding was upheld by the High
Court.

.D In the appeal before this Court, on behalf of the respondent it was
contended 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(3) of the Code of Criminal Procedure, 1973, the High
Court could not have altered the finding of acquittal into one of conviction
that the blunt side of Datar would not have been used as the accused must
E have attempted to cause death, in which case, he would have used the sharp
side; that P.W. 5. had deposed about the use of blunt side of the weapon
having known that the injuries were lacerated in nature; that the conduct
of P.W. 5. in reporting the matter first to the father of the deceased rather
than to the villagers was unnatural; that as the room of the house of
F accused was lying unlocked, police itself could have recovered the Datar if
· thorough search would have been made; that the fact of the abscondence
of the accused was not established; and that this was not the "rarest of the
rare" case and the accused might not be visited with capital punishment.

Allowing the appeal, this Court
G
HELD : 1.1. Sex violence is on inc~ease, and in a big way. It has to
be remembered that a rapist not only violates the victim's personal in-
tegrity but degrades the very soul of the helpless female. [118-F]

H State of Punjab v. Gwmit Singh, J.T. (1996) 1 SC 298, referred to.
DHARMAv. NIRMALSINGH [HANSARIA,J.] 117

1.2. The approach to this court being under Article 136 of the A
Constitution, there is no limitation imposed by Section 401(3) of the Code
of Criminal Procedure, 1973 qua the power available to this Court under
the aforesaid provision. 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 B
complete justice. [119-H, 120-A]

E.K Chandrasenan v. State of Kera/a, JT (1995) 1 SC 496, referred
to.

2.1. When an autopsy Surgeon Deposes in the Court what has to be C
accepted in his findings relating to the nature of injuries and not as to how
these were caused. Even the blunt side of Datar had lethality. Tltis 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 lathis is very
often used for assault on head, so much so as to cause death of the victim.
It was a natural conduct of P.W. 5 to first speak to the father of the D
deceased rather than to the villagers especially when the deceased was not
only assaulted but also was perhaps raped. [122-C, G, 123-B]

2.2. The accused approached P.W. 4 to seek protection in as much
as police was putting pressure on the members of this family. P.W. 4 E
being a man of authority it was nothing unnatural in the accused ap-
proaching him and and apprising him as to what he had done. The Dat:n
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. (124-E-G]
F
3.1. The involvement of the accused is fortified by the fact that on
his examination by P.W. 1 reddishness/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 the victim, about which P.W.4 had
deposed. (125-C]
G
3.2. From the evidence of P.W. 6 it is found 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 P.W. 4 also according to whom the accused met him H
118 SUPREME COURT REPORTS [1996] 2 S.C.R.

A saying that the police was putting pressure on his family members. All
these evidence taken together do establish the fact of abscondence.
[125-E-F]
4.1. This Court is fully satisfied that the respondent had first at-
tempted to commit rape on the victim and thereafter killed her. He is,
B therefore, convicted under Sections 376/511 and 302 of the Indian Penal
Code, 1860. [125-G]

4.2. The present case is not the 'rarest of the rare' case. Further, in
view of the fact that the occurrence had taken place when the accused was
aged around 19 years, sentence of imprisonment for life would be the
C appropriate punishment. [125-H, 126~A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1215 of 1995.

From the Judgment and Order dated 23.1.89 of the Punjab &
D Haryana High Court in Crl. R. No. 23 of 1988.

T.S. Arora for the Appellant.

U.R. Lalit, K.R. Nagaraja and R.S. Suri {NP) for the Respondent.

E Ranbir Yadav for the State.

The Judgment of the Court was delivered by

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 v. Gurmit
F Singh, JT {1996) 1 SC 298, that while celebrating woman's rights in all
spheres, we show little concern for the 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.

G 2. Present case is much more serious, because here, after Ravinderjit
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 clll~ch
ing and conclusive evidence to find the accused guilty, acquitted him. What
H is more, the State did not think if fit to file appeal. We wonder why? It was
DHARMAv. NIRMALSINGH [HANSARIA,J.] 119

left to the complainant to knock the door of the High Court by invoking A
its revisional jurisdiction. And see what the High Court has done. It passes
one word order only saying "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 B
say by allowing the appeal, for reason 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
c
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- D
judicial confession of the accused. This is not all. A Datar was recovered
pursuant to the information given by the accused which was found con-
cealed 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 E
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?
F
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 com-
plainant had approached the High Court in revision and as under the
revisional power available to the High Court under section 401 Cr. P.C., G
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 inas-
much as the approach to this Court being under Article B6 of the H
120 SUPREME COURT REPORTS [1996] 2 S.C.R.

A 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 v. State of Kera/a, Jt (1995) 1 SC
496, then contending that this court is incompetent to issue rule of enhan-
cement as had been done in those case. It was held in the aforesaid
B 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
C 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 analysed the
evidence ourselves but would have sent the case for retrial by passing a
D 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
E 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 ~bout 6.15 a.m. he went to the field of Malkiat
singh, which adjoins his field. After exchanging greetings they separated to
go to theii; respective destinations. At about 7.00 a.m. he when to his field
F 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
G 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 Mahilpur on a cycle.
Not finding him there, he took a bus for Nangal and brought the matter to
H his notice. ·This was around 11.00 a.m., whereafter both of them came back
DHARMA v. NIRMAL SINGH [HANSARIA, J. l 121

to the village. A
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 by P.W. 2 Dr. Mahajan, who had done the autopsy.
On this being done the following injuries were noticed on the person of
Ravinder: B

(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 : C
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 ems. back to injury No. 1. On dissection.
underneath bone, manings and brain were healthy.
D
(3) A lacerated would 1 cm. x 1/2 cm. x bone deep on the left side
chin 2-1/2 cm. from the midline, on dissaction, underneath bone
was healthy.

(4) A lacerated would 1/2 cm. x bone deep on mind-line of chin.
On dissaction, the underneath bone was normal. E

(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- F
neath bones were healthy and normal.

(7) Dissection of the ligature mark. The sub-cutaneous tissue was
having ecchymonis and underneath plasma and ruptured and blood
was present in the adjoining area. There was laceration on both G
carotids. On further dissection, there was found dis-location of the
second cervial 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 H
•
I

122 SUPREME COURT REPORTS [1996) 2 S.C.R.

A 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
B weapon more effectively, this led the court to observe the possibility of a
blunt weapon other than exhibit - P.l 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 lacarated,
C 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, accord-
ing to him, the blunt side of Datar would not have been used as the accused
D 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
E as even though the post-mortem 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
F post-mortem finding, is meritless. 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/l had a blade 9-1/2" in length and handle
5-1/2" long. This show 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
G often used for assault on head, so mucli so as to cause death of the victim.

11. Because of the above, we totaliy 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
H deposed by the witness, he should not have gone in search of her father
... +
DHARMA v. NIRMALSINGH [HANSARIA, J.] 123

upto Nagal, but should have gone to the village Abadi nearby and brought A
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
B
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 C
evidence it has come out that his son Shital Singh had left for Nagpal at
about 6.15 a.m. So, the evidence of Balbir Singh that he had met Shital
Singh at Nangal has received corroboration from the deposition of Dhar-
ma.
D
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 Dharmp. who had
E
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 F

- 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 dis-
believe Balbir Singh. The prosecution, however, has not sought to rely on G
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 came to him to seek some H
124 . SUPREMECOURTREPORTS [1996] 2 S.C.R. -
A 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
B 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
C 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 offence having been
committed in absolute secrecy the perpetrator would have been too
hesitant to make a confession; more so, when practically all the residents
D 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
E 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
F really led the police to the place from where recovery was made and a
bloodstain~d 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
G lying unlocked, police itself could have recovered the Datar if thorough
search would have been made. 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.

H 17. It is baffling to us as to how such an important piece of cir-
' /

DHARMA v. NIRMAL SINGH [HANSARlA,,J.) 125

cumstance was totally missed by the trial court. This~shows the casual A
approach not only of the trail court but of the public prosecutor. The
casualness does not stop here inasmuch as the State did not feel it neces-
sary 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.
B
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
first blow on his right eye given by Ravinder Jit, about which the Sarpanch
had deposed, as already noted. c
- 19. We have also on record the fact of abscondence 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
because the evidence of P.W. 8 S.I. Avtar Singh, who had taken up D
investigation from P.W. 7 is that after recording the statements of wit-
nesses, 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 circumstances of absconding
has not been established. But then from the evidence of P.W. 6 we find E
that the police had been visiting the village in connection with this case.
It may be that no 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 F
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.
G
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 the had been acquitted by the trial court, H
. 126 SUPREME COURT REPORTS (1996) 2 S.C.R.

A 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
B award a composite sentence of imprisonment for life. He would be got
arrested and follow up steps would be taken as required by law.

V.S.S. Appeal allowed.

-