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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

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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  

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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  

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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  

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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  

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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

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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,  

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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  

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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  

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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  

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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  

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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,  

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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,  

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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  

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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  

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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.  

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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  

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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  

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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  

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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)

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

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