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376(2)(g) and 302/34, IPC and sec. 306 of Cr.p.c – Approver – Lower court punished to death basing on the evidence of approver – High court disbelieved the version of approver as he has not disclosed himself as prima accused in the offence and lack of corroboration and set aside the sentence – Apex court set aside the high court order – punished for life etc., = State of Rajasthan …… Appellant Versus Balveer @ Balli & Anr. ….. Respondents – Reported in http://judis.nic.in/supremecourt/filename=40947

376(2)(g) and 302/34, IPC and sec. 306 of Cr.p.c – Approver – Lower court punished to

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

death basing on the evidence of approver – High court disbelieved the version of approver as he has not disclosed himself as prima accused in the offence and lack of corroboration and set aside the sentence – Apex court set aside the high court order – punished for life etc., =

 

 

 

The trial court, after  examining

 

        and discussing  the  evidence  on  record  and  in  particular  the

 

        evidence of Rajesh (PW-1), convicted  both  the  respondents  under

 

        Sections 376(2)(g) and 302/34, IPC.  

 

Thereafter,  the  trial  court

 

        heard learned counsel for the respondents on the point of  sentence

 

        and sentenced both the respondents to rigorous imprisonment for ten

 

        years with fine of Rs.1,000/- each and in  default  of  payment  of

 

        fine, to undergo simple imprisonment for six months for the offence

 

        under Section 376(2)(g), IPC, and sentenced them to death with fine

 

        of Rs.1,000/- each and in default of payment of  fine,  to  undergo

 

        simple imprisonment for six months for the  offence  under  Section

 

        302/34, IPC, by order dated 05.03.2005.

 

 

 

     4. Aggrieved, the respondents filed criminal appeals before  the  High

 

        Court and the sentence of death  was  also  referred  to  the  High

 

        Court.  In the impugned judgment, the High  Court  found  that  the

 

        prosecution case was anchored in the sole  testimony  of  the  sole

 

        witness Rajesh (PW-1), but his testimony as an approver  could  not

 

        be accepted as he had not inculpated himself in the  crime  in  his

 

        statement recorded under Section 164, Cr.P.C., or in his  statement

 

        before the Chief Judicial Magistrate  for  grant  of  pardon  under

 

        Section 306, Cr.P.C. and as he was  not  privy  to  the  crime,  he

 

        cannot be held to be      an approver.  The High Court further held

 

        that the evidence of PW-1 was not supported by other circumstantial

 

        evidence and in the absence of any corroboration of the evidence of

 

        PW-1 in material  particulars,  it  was  difficult  to  uphold  the

 

        conviction of the respondents on the basis of  such  an  unreliable

 

        witness.  By the impugned  judgment,  the  High  Court,  therefore,

 

        declined to accept  the  death  reference  and  allowed  the  three

 

        appeals of the respondents and set aside the judgment of the  trial

 

        court and acquitted the respondents of the offences under  Sections

 

        376(2)(g) and 302/34, IPC, and directed  that  the  respondents  be

 

        released forthwith.  Aggrieved by the impugned judgment, the  State

 

        of Rajasthan is in appeal before us. =

 

 

 

Approver – Pardon 

 

Section  306,  Cr.P.C.  provides

 

        that with a view to obtaining the evidence of any  person  supposed

 

        to have been directly or indirectly concerned in  or  privy  to  an

 

        offence, the Magistrate may tender  a  pardon  to  such  person  on

 

        condition of his making a full and true  disclosure  of  the  whole

 

        circumstances within his knowledge relative to the offence  and  to

 

        every other person concerned, whether as principal or  abettor,  in

 

        the commission thereof.  

 

This Court in the case of  Suresh  Chandra

 

        Bahri v. State of Bihar [1995 Supp.(1) SCC 80] explained the object

 

        of Section 306 Cr.P.C. in the following words:

 

 

 

 

 

        “The object of Section 306 therefore is to  allow  pardon  in  cases

 

        where heinous offence is alleged to have been committed  by  several

 

        persons so that with the aid of the evidence of the  person  granted

 

        pardon the offence may be brought home to the rest. The basis of the

 

        tender of pardon is not the extent of the culpability of the  person

 

        to whom pardon is granted, but  the  principle  is  to  prevent  the

 

        escape of the offenders from punishment in heinous offences for lack

 

        of evidence. There can therefore be no objection against  tender  of

 

        pardon to an accomplice simply because in his  confession,  he  does

 

        not implicate himself to  the  same  extent  as  the  other  accused

 

        because all that Section 306 requires is that pardon may be tendered

 

        to any person believed to be involved directly or indirectly  in  or

 

        privy to an offence.”

 

The High Court  also  failed  to

 

appreciate that

 

Section 133 of the Indian  Evidence  Act  provides  that  an

 

accomplice shall be a competent witness against an accused person  and  when

 

the pardon is tendered to an accomplice  under  Section  306,  Cr.P.C.,  the

 

accomplice is removed from the category  of  co-accused  and  put  into  the

 

category of witness and the evidence of such a witness as an accomplice  can

 

be the basis of  conviction  as  provided  in  Section  133  of  the  Indian

 

Evidence Act.

 

 

 

    16. As a rule of prudence, however, as provided in Illustration (b)  to

 

        Section 114 of the Indian Evidence Act, the Court will presume that

 

        an accomplice is unworthy of credit, unless he is  corroborated  in

 

        material particulars. 

 

 In Rameshwar s/o Kalyan Singh v.  The  State

 

        of Rajasthan (supra), this Court laid down  the  kind  of  evidence

 

        which should,  or  would,  be  regarded  as  corroboration  of  the

 

        testimony of an accomplice and held that it is not  necessary  that

 

        there  should  be  independent  confirmation  of   every   material

 

        circumstance but independent evidence must not only make it safe to

 

        believe  that  the  crime  was  committed  and  must  in  some  way

 

        reasonably connect the accused with the crime.  In the language  of

 

        this Court in the aforesaid case:

 

 

 

        “All that is necessary is that there should be independent  evidence

 

        which will make it reasonably safe to  believe  the  witness’  story

 

        that the accused was the one, or  among  those,  who  committed  the

 

        offence.”

 

 

 

………………………………………………………………………………………………………………….

 

 

 

Death commuted to life 

 

 

 

 the Constitution  Bench  of

 

this Court in Bachan Singh v. State of Punjab [AIR 1980 SC 898]:

 

         “… As we  read  Sections  354(3)  and  235(2)  and  other  related

 

         provisions of the Code of 1973, it is quite clear to us  that  for

 

         making the choice of punishment or for ascertaining the  existence

 

         or absence of “special reasons” in that context,  the  Court  must

 

         pay due regard both to the crime and the criminal. …”

 

 

 

 

 

Thus, for awarding death sentence, special reasons have to  be  recorded  as

 

provided in Section  354(3),  Cr.P.C.,  and  while  recording  such  special

 

reasons, the Court must pay due regard both to the crime and  the  criminal.

 

In this case, there are materials to show that the crime  committed  by  the

 

respondents, both rape and murder of the deceased,  were  cruel,  but  there

 

were no materials to establish that the character of the respondents was  of

 

extreme depravity so as to make them liable for  the  punishment  of  death.

 

We are, thus, of the view that the respondents should be punished  for  life

 

for the offence of  murder  under  Section  302,  IPC.   For  offence  under

 

Section 376(2)(g), IPC, the trial court has awarded  the  punishment  of  10

 

years rigorous imprisonment which we would like to maintain.

 

25.   We, accordingly, allow this appeal, set aside  the  impugned  judgment

 

of the High Court and hold the respondents  guilty  of  the  offences  under

 

Section 376(2)(g) and Section 302 read with Section 34, IPC, and impose  the

 

punishment of rigorous imprisonment for life for the offence  under  Section

 

302 read with Section  34,  IPC  and  maintain  the  sentence  of  10  years

 

rigorous imprisonment imposed by the  trial  court  for  the  offence  under

 

Section 376(2)(g), IPC.

 

 

 

Reportable

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 942 OF 2006

 

State of Rajasthan ……
Appellant

 

Versus

 

Balveer @ Balli & Anr. ….. Respondents

 

 

 

J U D G M E N T

 

A. K. PATNAIK, J.

 
This is an appeal against the judgment dated 09.01.2006 of the High
Court of Rajasthan in D.B. Criminal Death Reference No. 1 of 2005 and D.B.
Criminal Appeal Nos. 261 of 2005, 347 of 2005 and 431 of 2005.

 

Facts:
2. The facts very briefly are that on 01.11.2003 at 10.45 P.M., Prem
Bahadur Singh, Station House Officer, Nadbai Police Station, received an
information on telephone that a woman has been murdered in the forest of
Kishanpura close to the railway track and that a person has been nabbed.
The Station House Officer reached the place of occurrence at 10.55 P.M. and
found 10 to 15 villagers standing there who told him that at about 10.30
P.M. they heard someone crying and they came running and saw two persons
running away towards Khedali along the railway track on a motorcycle and
the third person running towards the fields and they managed to catch this
third person named Rajesh and they also found a girl in a semi-naked
condition lying dead. When the Station House Officer questioned Rajesh, he
told that on 01.11.2003 at about 4 to 5 O’clock in the evening, respondent-
Ram Niwas and the respondent-Balveer brought the girl named Rekha on the
motorcycle of Ram Niwas, bearing Registration No. RJ-29-2M-2370, along the
Mandawar railway track towards Khedali and Ram Niwas, Balveer and Rajesh
had sexual intercourse with Rekha and thereafter Ram Niwas and Balveer
wanted to kill Rekha by gagging and pressing her neck, but Rajesh asked
them not to do so and thereafter Rekha was made to sit on the motorcycle
and brought along the railway track to the place of occurrence and Ram
Niwas and Balveer killed Rekha by strangulating her with her Chunni (scarf)
and by causing injury on her neck and feet. Rajesh also told Station House
Officer that both Ram Niwas and Balveer gave Rajesh some beating, but he
managed to escape and started running and shouting. Rajesh also told the
Station House Officer that both Ram Niwas and Balveer escaped on the
motorcycle along the railway track towards Khedali. The Station House
Officer then examined the dead body of Rekha (hereinafter referred to as
‘the deceased’) and came back to the Police Station and registered the
First Information Report (for short ‘FIR’) under Sections 376 and 302 read
with Section 34 of the Indian Penal Code (for short ‘IPC’) against Rajesh,
Ram Niwas and Balveer and handed over investigation to Mohan Singh, the Sub-
Inspector (for short ‘the I.O.’).

 

3. On 29.12.2003, the statement of Rajesh was recorded under Section
164 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’)
and on 16.01.2004, the I.O. submitted an application before the
Chief Judicial Magistrate, Bharatpur, for making Rajesh an approver
under Section 306, Cr.P.C. and on 19.01.2004, the Chief Judicial
Magistrate passed an order tendering pardon to Rajesh on the
grounds that he was the sole eye-witness of the incident and
without the evidence of Rajesh, there was possibility of acquittal
of the two respondents. The Chief Judicial Magistrate in his order
dated 19.01.2004 stated that the pardon was being tendered for the
purpose of obtaining the evidence of Rajesh on the condition that
he shall disclose the truth about each and every information,
circumstance and person (directly or indirectly connected with the
incident) relating to the offence, within his knowledge.
Thereafter, charges were framed against the two respondents under
Section 376(2)(g), IPC, and alternatively under Sections 376, 302
and 34, IPC. Since the two respondents denied the charges, the
trial was held and at the trial, as many as 32 witnesses including
Rajesh (PW-1) were examined and a large number of documents and
material objects were exhibited. The trial court, after examining
and discussing the evidence on record and in particular the
evidence of Rajesh (PW-1), convicted both the respondents under
Sections 376(2)(g) and 302/34, IPC. Thereafter, the trial court
heard learned counsel for the respondents on the point of sentence
and sentenced both the respondents to rigorous imprisonment for ten
years with fine of Rs.1,000/- each and in default of payment of
fine, to undergo simple imprisonment for six months for the offence
under Section 376(2)(g), IPC, and sentenced them to death with fine
of Rs.1,000/- each and in default of payment of fine, to undergo
simple imprisonment for six months for the offence under Section
302/34, IPC, by order dated 05.03.2005.

 

4. Aggrieved, the respondents filed criminal appeals before the High
Court and the sentence of death was also referred to the High
Court. In the impugned judgment, the High Court found that the
prosecution case was anchored in the sole testimony of the sole
witness Rajesh (PW-1), but his testimony as an approver could not
be accepted as he had not inculpated himself in the crime in his
statement recorded under Section 164, Cr.P.C., or in his statement
before the Chief Judicial Magistrate for grant of pardon under
Section 306, Cr.P.C. and as he was not privy to the crime, he
cannot be held to be an approver. The High Court further held
that the evidence of PW-1 was not supported by other circumstantial
evidence and in the absence of any corroboration of the evidence of
PW-1 in material particulars, it was difficult to uphold the
conviction of the respondents on the basis of such an unreliable
witness. By the impugned judgment, the High Court, therefore,
declined to accept the death reference and allowed the three
appeals of the respondents and set aside the judgment of the trial
court and acquitted the respondents of the offences under Sections
376(2)(g) and 302/34, IPC, and directed that the respondents be
released forthwith. Aggrieved by the impugned judgment, the State
of Rajasthan is in appeal before us.

 

Contentions on behalf of learned counsel for the parties

 

5. Dr. Manish Singhvi, learned counsel appearing on behalf of the
State of Rajasthan, submitted that PW-1 is the only eye- witness to
the incident and he has stated that on 01.11.2003 he was in village
Pilwa and he was irrigating his field and Ram Niwas came to him and
took him on a Hero Honda Splendor motorcycle to Mahua at the Jaipur
bus stand and started looking for someone in the buses and around
5.30 p.m. they started proceeding on the motorcycle. He submitted
that PW-1 has further stated that Ram Niwas stopped the
motorcycle near a girl and made the girl to sit on the motorcycle
and thereafter all the three proceeded towards Mandawar and next to
Mandawar at the by-pass road, Balveer met them and Balveer was
given lift on the motorcycle and PW-1 was dropped. He further
submitted that PW-1 has stated that Ram Niwas threatened him and
made him sit on the motorcycle and went along the railway line till
they arrived at Nadbai and stopped the motorcycle in the jungle and
Ram Niwas and Balveer raped the girl and after the rape, Ram Niwas
and Balveer killed the girl by tying chunni (scarf) around her neck
and after killing the girl both of them came towards him and seeing
them he ran away from there and raised alarm that the girl has been
killed. He submitted that PW-1 has also stated that 8-10 villagers
met him and he told the villagers that Ram Niwas and Balveer killed
the girl. Dr. Singhvi submitted that this eye-witness account of
PW-1 was not believed by the High Court only on the ground that as
PW-1 has not inculpated himself in the crime, his evidence as an
approver cannot be accepted.

 

6. Dr. Singhvi next submitted that the finding of the High Court that
the testimony of PW-1 as an approver cannot be accepted as he has
not been inculpated in the crime during evidence in the trial court
is not correct in law. He referred to the provisions of Section
306 Cr. P.C. and argued that the section does not provide that an
approver must be privy to the offence if his evidence is to be
accepted. He submitted that an approver is in fact an accomplice
and Section 133 of the Indian Evidence Act provides that an
accomplice shall be a competent witness against an accused person
and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. He submitted that
Illustration (b) under Section 114 of the Indian Evidence Act,
however, states that an accomplice is unworthy of credit, unless he
is corroborated in material particulars and therefore the Court
looks for corroboration of the testimony of the accomplice in
material particulars either by some other direct or circumstantial
evidence.

 

7. Dr. Singhvi next submitted that in this case, there is sufficient
corroboration of the testimony of PW-1 that the respondents
committed rape on the deceased and thereafter killed her. He
submitted that under Section 157 of the Indian Evidence Act the
testimony of a witness can be corroborated by any former statement
made by such witness relating to the same fact, at or about the
time when the fact took place, or before any authority legally
competent to investigate the fact. He submitted that in the
present case the statement of PW-1 before the police recorded in
the FIR (Ex.P-12) soon after the rape and murder of the deceased on
01.11.2003 corroborates his testimony before the Court. Hari Singh
(PW-11) has also stated in his evidence that PW-1 was running
towards the colony raising the alarm when a girl was killed and on
his call for help, 10-15 persons gathered there and PW-1 told that
two boys Ram Niwas and Balveer were killing a girl, save her and
thereafter he went to the place of incident and found a dead body
of a girl lying at the place of incident. He submitted that
although PW-11 was declared hostile this part of evidence of PW-11
can be relied on by the prosecution to corroborate the testimony of
PW-1. He submitted that Bharat Singh (PW-16) has also stated in
his evidence that on 01.11.2003 in the night, he heard the boy’s
cry for help who was shouting “save the girl” and that boy told his
name as Rajesh and he had told that two boys had killed a girl. He
submitted that PW-16 has also deposed that he remembered the name
of one of the boys as Ram Niwas, but he did not remember the name
of other boy. He submitted that though PW-16 was also declared
hostile, this part of his evidence can be relied on by the
prosecution as corroborating the testimony of PW-1. Dr.
Singhvi also referred to the evidence of the father of the deceased
(PW-6) who has stated that the deceased was undergoing nursing
training at Bharatpur and that she had told him that 2-3 boys used
to trouble her and she had named Ram Niwas, Balveer and Rajesh (PW-
1). He submitted that the evidence of PW-6 strengthens the
prosecution story that Ram Niwas and Balveer were involved in the
offences against the deceased. He submitted that the testimony of
PW-1 was also corroborated by the FSL report (Ex.P-56), which
establishes that human semen has been detected on the underwear and
private parts of the deceased confirming rape on the deceased. He
submitted that the testimony of PW-1 that the deceased was
strangulated is confirmed by post-mortem report (Ex.P-55). He
submitted that the testimony of PW-1 is also corroborated by the
recovery of the bag vide memo of seizure (Ex.P-46) from the
possession of Balveer, which has been identified to be that of the
deceased by the father of the deceased (PW-6) and the mother of the
deceased (PW-7).

 

8. Dr. Singhvi cited the judgment of this Court in Rameshwar s/o
Kalyan Singh v. The State of Rajasthan [AIR 1952 SC 54] in which
this Court has held that the rule, which according to cases has
hardened into one of law, is not that corroboration of evidence of
an accomplice is essential, but that there is necessity of
corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it. He submitted that
in the aforesaid case this Court while holding that it would be
impossible to formulate the kind of evidence which should, or
would, be regarded as corroboration has laid down some of the rules
regarding the nature and extent of the corroboration required of
the testimony of an accomplice. He also relied on Haroom Haji
Abdulla v. State of Maharashtra [AIR 1968 SC 832] in which this
Court has held that the effect of provision of Section 133 of the
Indian Evidence Act is that the Court trying an accused may legally
convict him on the single evidence of an accomplice, but
Illustration (b) of Section 114 of the Indian Evidence Act
incorporates a rule of prudence that the Court may presume that an
accomplice is unworthy of credit unless he is corroborated in
material particulars. He also cited State of Kerala v. P. Sugathan
& Anr. [(2000) 8 SCC 203] for the proposition that once an
accomplice becomes an approver by a valid grant of pardon under
Section 306, Cr.P.C., and withstands cross-examination, his
testimony can be relied on for convicting the accused if it is
corroborated in material particulars by others.

 

9. In reply, Mr. K.B. Upadhyay, learned counsel appearing for the
respondent no.2-Ram Niwas, submitted that the evidence of Rajesh
(PW-1) cannot be believed by the Court as it is inconsistent with
the evidence of other witnesses in prosecution. He submitted that
while PW-1 has stated that he informed the Police by going to the
Police Station, the Station House Officer of the Police Station (PW-
5) has said in his evidence that someone informed him over the
telephone about the incident. He submitted that while PW-1 has
stated that he does not know the girl Rekha (deceased), the father
of the deceased (PW-6) has clearly stated that PW-1 used to visit
their house and knew the deceased and similarly the mother of the
deceased (PW-7) has stated that the deceased had told her that at
Bharatpur, Rajesh (PW-1) used to tease her and for this reason she
did not want to return to Bharatpur. He submitted that again PW-1
has stated that the place of rape and murder of the deceased was at
Nadbai, but the I.O. (PW-32) has stated that the rape and the
murder took place at different places as will be evident from the
site maps (Ext.P-42 and Ext.P-43). He submitted that again PW-1
has stated in his evidence that the motorcycle was driven by Ram
Niwas, but in the statement recorded by the Magistrate in Ext.P-7
before the pardon was granted to PW-1, he has stated that the
motorcycle was driven by Balveer. He submitted that because of
these inconsistencies and contradictions, PW-1 is not reliable and
the High Court has rightly discarded his evidence.

 

10. Mr. Upadhyay next submitted that sixteen love letters written by
Nisha to Ram Niwas were seized from the room where Rekha was living
in Bharatpur and these love letters show that there was love
between Ram Niwas and Nisha and this is also made clear from the
evidence of Anjana (PW-12) who was living adjacent to the house in
which the deceased lived. He submitted that there was also
evidence of PW-14, the landlady of the house in which the deceased,
Anjana and Khem Kanwar (PW-13) lived, that Ram Niwas used to visit
the deceased and sometimes used to stay during the night time and
used to come to meet her on the motorcycle. He submitted that
there was therefore an intimate relationship between Ram Niwas and
the deceased and there was no necessity for Ram Niwas to commit
rape on the deceased.

 

11. Mr. Upadhyay next submitted that two of the villagers, PW-10 and
PW-11, who have been examined in the Court, have stated in their
evidence that they had only seen the back light of the motorcycle
in which the persons, who had committed rape and murder, had left
the place of occurrence and, therefore, none of the villagers have
really identified Ram Niwas and Balveer who had committed the
offences. He further submitted that the incident took place on
01.11.2003 and the arrest of the respondents took place on
05.11.2003 and the respondents were in police custody on
05.11.2003, 06.11.2003, 07.11.2003 and 08.11.2003 and the recovery
of the motorcycle alleged to have been used for taking the deceased
was made on 09.11.2003. He argued that these recoveries made
belatedly when Ram Niwas was in police custody for several days
cannot be relied upon.

 

12. Mr. Upadhyay cited the decision of this Court in Chandan & Anr. v.
State of Rajasthan [(1988) 1 SCC 696] in which it has been held
that the approver’s testimony against the accused, absolving
himself and appearing unnatural, did not inspire confidence and in
the absence of independent corroboration of such testimony,
conviction of the accused cannot be sustained. He also cited
State of Andhra Pradesh through CBI v. M. Durga Prasad & Ors. [AIR
2012 SC 2225] for the proposition that this Court will interfere
with the order of acquittal only when it comes to the conclusion
that the view taken by the High Court while acquitting the accused
was not a possible view. Mr. Upadhyay submitted that in the
present case the view taken by the High Court that the evidence of
PW-1 was not reliable and that conviction on the testimony of PW-1
is unsafe, is a possible view in the facts and circumstances of
this case and should not be interfered with by this Court in
exercise of its power under Article 136 of the Constitution.

 

13. Mr. Ranvir Singh Yadav, learned counsel appearing for respondent
No.1-Balveer, adopted the submissions of Mr. Upadhyay and further
submitted that though the bag of the deceased was recovered by the
seizure memo Ex.P-46 on the information and at the instance of
Balveer, there was no evidence that the deceased Rekha had that
particular bag which was seized with her when she left the room at
Bharatpur on 01.11.2003 for Ajmer. He submitted that the bag that
was actually seized at the instance of Balveer was a rexine black
bag and neither the father of the deceased (PW-6) and nor the
mother of the deceased (PW-7) have described the bag of their
daughter as a rexine bag.

 

14. Mr. Yadav cited the decision of this Court in Bhiva Doulu Patil v.
State of Maharashtra (AIR 1963 SC 599) for the proposition that
there should be corroboration of the evidence of the approver in
material particulars qua each accused person. He submitted that
the corroboration of the testimony of PW-1, therefore, has to be of
material particulars which would connect Balveer to the offence.
He also relied on the decision of this Court in Piara Singh v.
State of Punjab (AIR 1969 SC 961) and submitted that the evidence
of the accomplice must be corroborated in material particulars by
other independent evidence. He further submitted that in Ramprasad
v. State of Maharashtra [1999(5) SCC 30 = AIR 1999 SC 1969] this
Court has further held that the approver’s evidence must pass the
test of reliability and secure adequate corroboration before the
same can be acted upon. He vehemently argued that the tests laid
down by this Court with regard to the reliability of the approver’s
evidence and the necessity of corroboration by independent evidence
are not satisfied in this case.

 

Findings of the Court:
15. The first question that we have to decide is whether the High Court
is right in coming to the conclusion that for being an approver
within the meaning of Section 306, Cr.P.C., a person has to
inculpate himself in the offence and has to be privy to the crime,
otherwise he removes himself from the category of an accomplice and
places himself as an eyewitness. Section 306, Cr.P.C. provides
that with a view to obtaining the evidence of any person supposed
to have been directly or indirectly concerned in or privy to an
offence, the Magistrate may tender a pardon to such person on
condition of his making a full and true disclosure of the whole
circumstances within his knowledge relative to the offence and to
every other person concerned, whether as principal or abettor, in
the commission thereof. This Court in the case of Suresh Chandra
Bahri v. State of Bihar [1995 Supp.(1) SCC 80] explained the object
of Section 306 Cr.P.C. in the following words:

 
“The object of Section 306 therefore is to allow pardon in cases
where heinous offence is alleged to have been committed by several
persons so that with the aid of the evidence of the person granted
pardon the offence may be brought home to the rest. The basis of the
tender of pardon is not the extent of the culpability of the person
to whom pardon is granted, but the principle is to prevent the
escape of the offenders from punishment in heinous offences for lack
of evidence. There can therefore be no objection against tender of
pardon to an accomplice simply because in his confession, he does
not implicate himself to the same extent as the other accused
because all that Section 306 requires is that pardon may be tendered
to any person believed to be involved directly or indirectly in or
privy to an offence.”

 

 

 

Thus, the High Court failed to appreciate that the extent of culpability of
the accomplice in an offence is not material so long as the magistrate
tendering pardon believes that the accomplice was involved directly or
indirectly in or was privy to the offence. The High Court also failed to
appreciate that Section 133 of the Indian Evidence Act provides that an
accomplice shall be a competent witness against an accused person and when
the pardon is tendered to an accomplice under Section 306, Cr.P.C., the
accomplice is removed from the category of co-accused and put into the
category of witness and the evidence of such a witness as an accomplice can
be the basis of conviction as provided in Section 133 of the Indian
Evidence Act.

 

16. As a rule of prudence, however, as provided in Illustration (b) to
Section 114 of the Indian Evidence Act, the Court will presume that
an accomplice is unworthy of credit, unless he is corroborated in
material particulars. In Rameshwar s/o Kalyan Singh v. The State
of Rajasthan (supra), this Court laid down the kind of evidence
which should, or would, be regarded as corroboration of the
testimony of an accomplice and held that it is not necessary that
there should be independent confirmation of every material
circumstance but independent evidence must not only make it safe to
believe that the crime was committed and must in some way
reasonably connect the accused with the crime. In the language of
this Court in the aforesaid case:

 

“All that is necessary is that there should be independent evidence
which will make it reasonably safe to believe the witness’ story
that the accused was the one, or among those, who committed the
offence.”

 
In this case, the Court also clarified that corroboration need not be by
direct evidence that the accused committed the crime and it is sufficient
if it is merely circumstantial evidence of the connection of the accused
with the crime. In the aforesaid case, this Court also explained that
unless the testimony of an accomplice is treated as evidence, many crimes
which are usually committed between accomplices in secret, particularly
offences with females, could otherwise never be brought to justice. With
these principles with regard to the testimony of an accomplice in mind, we
may now examine the testimony of PW-1 and the corroboration of such
testimony by material particulars, if any, so as to connect Ram Niwas and
Balveer in the offences.

 

17. In his testimony, PW-1 has stated that on 01.11.2003 when he was
irrigating his field in village Pilwa, Ram Niwas came to him and
took him on a Hero Honda Splendor motorcycle to Mahua at the Jaipur
bus stand and at 5.30 p.m. they again started proceeding on the
motorcycle and Ram Niwas stopped the motorcycle near the deceased
and made her sit on the motorcycle and thereafter all the three
proceeded towards Mandawar. He has further stated that at the by-
pass road, Balveer met them and Balveer was given lift on the
motorcycle and thereafter they went to Nadbai. PW-1 has further
deposed that they stopped the motorcycle in the jungle and Ram
Niwas and Balveer raped the deceased and after the rape, Ram Niwas
and Balveer killed the deceased by tying chunni (scarf) and after
killing the deceased both of them came towards him and seeing them
he ran away from there and raised alarm that a girl has been
killed. He has also stated that 8-10 villagers met him and he told
the villagers that Ram Niwas and Balveer killed a girl.

 

18. Section 157 of the Indian Evidence Act states that in order to
corroborate the testimony of a witness, any former statement made
by such witness relating to the same fact at or about the time when
the fact took place, or before any authority legally competent to
investigate the fact, may be proved. PW-5, the SHO of the Police
Station Nadbai, has stated in his evidence that at 10.45 p.m. on
01.11.2003 someone informed him over the telephone that a woman had
been murdered and her body was lying along with the railway track
in the jungle of Kishanpura and one person in this connection had
been nabbed and he reached the place of incident and took that
person Rajesh (PW-1) into custody and on the basis of the statement
made by PW-1, the First Information Report (Ext.P-12) was prepared.
We have read Ext.P-12, the First Information Report in Hindi, and
we find that the aforesaid testimony of PW-1 is corroborated by the
statement of PW-1 made before PW-5 and recorded in the FIR (Ext. P-
12) soon after the incident on 01.11.2003. In Rameshwar s/o
Kalyan Singh v. The State of Rajasthan (supra), this Court after
extracting Section 157 of the Indian Evidence Act has held:

 

“The section makes no exceptions, therefore, provided the
condition prescribed, that is to say “at or about the time etc.”
are fulfilled there can be no doubt that such a statement is
legally admissible in India as corroboration. The weight to be
attached to it is, of course, another matter and it may be that in
some cases the evidentiary value of two statements emanating from
the same tainted source may not be high, but in view of Section
118 its legal admissibility as corroboration cannot be
questioned.”

 

Thus, even though the evidence given at the trial and the former statement
relating to the incident is from the same tainted source of an accomplice
(PW-1), the former statement of PW-1 as recorded in Ext.P-12 is legally
admissible as corroborative of the evidence of PW-1 in the trial court.

 

19. However, to make sure that what PW-1 has stated before the Police
soon after the incident and what he has stated before the Court in the
trial is true and reliable, the Court must look for corroboration from
sources independent from the tainted source, i.e., PW-1 who is an
accomplice and we do find such corroboration of the testimony of PW-1 from
independent sources. PW-11, who was one of the villagers of Nadbai, has
stated that a boy named Rajesh was running towards the colony raising alarm
that a girl is killed and he told that two boys Ram Niwas and Balveer are
killing a girl, save her. PW-16, who is also a villager of Nadbai, has
also stated in his evidence that they heard a boy’s cry for help who was
shouting “save the girl” and he had seen that boy who was making the noise
and that boy told his name as Rajesh and also told him that two boys have
killed the girl and PW-16 remembered the name of one boy as Ram Niwas, but
he did not remember the name of other boy. The post mortem report (Ext.P-
55) shows ligature mark of 2 cm width, dark brown in colour, encircling the
upper part of the neck prominent on the right side of the deceased, which
goes to show that the deceased had been strangulated. As per the opinion
expressed in the post mortem report also the death was because of asphyxia
due to strangulation. This corroborates the story given out by PW-1 that
Ram Niwas and Balveer strangulated the deceased by a chunni. The report
of the State Forensic Science Laboratory (Ext.P-56) states that human semen
was detected in the vaginal smear, swab, chaddi and salwar of the deceased.
In the FIR (Ext.P-12) prepared on the basis of the information given out
by PW-1 soon after the incident, the motorcycle of Ram Niwas was described
as Hero Honda Splendor motorcycle and the number of the motorcycle is given
as RJ 29/2M 2370 and the Investigating Officer (PW-32) has deposed that on
09.11.2003 in pursuance of the disclosure statement made by Ram Niwas, a
Hero Honda motorcycle having the registration number RJ 29/2M 2370 was
recovered vide memo of seizure (Ext.P-45). PW-32 has also deposed that on
09.11.2003 on the information at the instance of Balveer, the bag of the
deceased was recovered vide memo of seizure (Ext.P-46). There is,
therefore, direct and circumstantial evidence independent from the evidence
of PW-1 in support of the prosecution story given out by PW-1 and to
connect Ram Niwas and Balveer in the offences of rape and murder.

 

20. Mr. Upadhyay, learned counsel appearing for the respondent no.2-Ram
Niwas, was right that there were some inconsistencies between the evidence
of PW-1 and PW5, between the evidence of PW-1 and PW-6 and between the
evidence of PW-1 and PW-32 as well as contradictions in the statement of PW-
1 recorded before the trial by the Magistrate and the evidence of PW-1
before the Court but these inconsistencies and contradictions were not
material enough to doubt the story given out by PW-1 that Ram Niwas and
Balveer committed rape on the deceased and then killed her. Mr. Upadhyay
is also right in his submission that there was intimate relationship
between Ram Niwas and the deceased but if evidence of PW-1 corroborated in
material particulars established that Ram Niwas did commit rape and murder
of the deceased, we cannot discard the evidence only on the ground that
there was no necessity for Ram Niwas to commit rape and murder of the
deceased.

 

21. Mr. Upadhyay and Mr. Yadav rightly submitted that the recovery of the
motorcycle at the instance of Ram Niwas and the seizure of bag of the
deceased at the instance of Balveer were made belatedly on 09.11.2003,
eight days after the incident on 01.11.2003 and after they had remained in
custody in the police lock up on 05.11.2003, 06.11.2003, 07.11.2003 and
08.11.2003. Section 27 of the Indian Evidence Act, however, states that
when any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved.
Hence, even though Ram Niwas and Balveer were in police custody during
05.11.2003, 06.11.2003, 07.11.2003, 08.11.2003 and 09.11.2003, the
information given by Ram Niwas and Balveer pursuant to which the motorcycle
of Ram Niwas and the bag of the deceased were recovered can be utilized
against Ram Niwas and Balveer respectively for the purpose of corroboration
of the testimony of PW-1 that Ram Niwas and Balveer committed rape and
murder of the deceased.

 

22. Coming now to the submission of Mr. Yadav that the bag recovered at
the instance of Balveer was a rexine black bag and neither the father of
the deceased (PW-6) nor mother of the deceased (PW-7) have described the
bag of the daughter as rexine bag, we find from the evidence of
Investigation Officer (PW-32) that he had seized the black colour rexine
bag from Balveer and this very bag was identified by the parents of the
deceased (PW-6 and PW-7). To quote from the evidence of the mother of the
deceased (PW-7):

 

“SHO had told us at the police station that 4-5 bags are lying in the
office of Tehsildar, go and identify. I do not know if SHO would have
accompanied to the office of Tehsildar. Tehsildar had opened before
us a sealed bag and took out 4-5 bags and placed the same before us on
the table. Thereafter, I pointed towards one bag and said that this
belong to my daughter. It was a black colour bag. I did not say to
the Tehsildar that I have come to identify a black colour bag. There
were other black bags also. Our black colour bag was stitched with
red colour thread and other bags do not have red colour stitches.”

 
The Tehsildar, who was examined as PW-30, has confirmed that besides the
bag of the deceased four other bags which looked alike were placed at the
time of identification and Santosh Devi (PW-7) identified the right bag.
It is, thus, clear that the bag of the deceased that was seized from
Balveer was identified as the bag of the deceased and Balveer has not
explained in his statement under Section 313 Cr.P.C. as to how the bag of
the deceased came to his possession.

 

23. Thus, the testimony of PW-1 was corroborated by material particulars
qua Ram Niwas and Balveer and the only possible view on the evidence on
record in this case is that both the respondents committed the rape and
murder of the deceased on 01.11.2003 and the trial court had rightly
convicted them under Section 376(2)(g) and Section 302 read with Section
34, IPC. The decision of this Court in Andhra Pradesh through CBI v. M.
Durga Prasad & Ors. (supra) cited by Mr. Upadhyay applies only to a case
where the view taken by the High Court on the evidence that the accused
should be acquitted is a possible one and in such a case this Court will
not interfere with the order of acquittal passed by the High Court. In the
facts of the present case, however, the view taken by the High Court that
the respondents were entitled to acquittal was not at all a possible view.
The evidence on record, considered in the light of the provisions of the
Indian Evidence Act and in particular Sections 27, 114 Illustration (b),
133 and 157 thereof establish beyond reasonable doubt that the respondents
were guilty of the offences under Section 376(2)(g) and Section 302 read
with Section 34, IPC.

 

24. For the offence under Section 302, IPC, the accused is liable to be
punished with death or imprisonment for life and also liable to fine and
for the offence under Section 376(2)(g), IPC, the accused are liable to be
punished with rigorous imprisonment for a term which shall not be less than
ten years but which may be for life and also liable to fine. The trial
court has recorded special reasons for imposing the punishment of death on
the respondents and these are that the respondents deceived and took away
the deceased, turn wise committed rape on her in the darkness of night and
thereafter committed her murder by throttling her by her chunni (scarf) and
hence they were not entitled for any leniency and should be punished with
death. In our view, the reasons given by the trial court do not make out
the case to be a rarest of rare cases in which death sentence could be
awarded to the respondents. As has been held by the Constitution Bench of
this Court in Bachan Singh v. State of Punjab [AIR 1980 SC 898]:
“… As we read Sections 354(3) and 235(2) and other related
provisions of the Code of 1973, it is quite clear to us that for
making the choice of punishment or for ascertaining the existence
or absence of “special reasons” in that context, the Court must
pay due regard both to the crime and the criminal. …”

 
Thus, for awarding death sentence, special reasons have to be recorded as
provided in Section 354(3), Cr.P.C., and while recording such special
reasons, the Court must pay due regard both to the crime and the criminal.
In this case, there are materials to show that the crime committed by the
respondents, both rape and murder of the deceased, were cruel, but there
were no materials to establish that the character of the respondents was of
extreme depravity so as to make them liable for the punishment of death.
We are, thus, of the view that the respondents should be punished for life
for the offence of murder under Section 302, IPC. For offence under
Section 376(2)(g), IPC, the trial court has awarded the punishment of 10
years rigorous imprisonment which we would like to maintain.
25. We, accordingly, allow this appeal, set aside the impugned judgment
of the High Court and hold the respondents guilty of the offences under
Section 376(2)(g) and Section 302 read with Section 34, IPC, and impose the
punishment of rigorous imprisonment for life for the offence under Section
302 read with Section 34, IPC and maintain the sentence of 10 years
rigorous imprisonment imposed by the trial court for the offence under
Section 376(2)(g), IPC.

 
.……………………….J.
(A. K.
Patnaik)

 

 

 

 

 
………………………..J.
(Gyan Sudha
Misra)
New Delhi,
October 31, 2013.

 

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