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Saturday, November 2, 2013

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 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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