Kalu Ram @ Ram Lubhaya vs State on 21 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No. 583 / 2008

Om Prakash @ Guruji S/o Sh. Prithvi Raj, by caste Bishnoi,
resident of Abu Shahar, Police Thana, Dbwali, District Sirsa,
Haryana

—-Appellant

Versus

State of Rajasthan

—-Respondent

Connected With

D.B. Criminal Appeal No. 29 / 2009

Kalu Ram @ Ram Lubhaya S/o Surendra, aged about 42 years,
by caste Soni, resident of Ward No.8, Purani Abadi, Near Chetan
Das Temple, Sri Ganganagar, District Sri Ganganagar

—-Appellant

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. DS Dev and Mr. GJ Gupta

For Respondent(s) : Mr. JPS Choudhary, PP

__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

Per Hon’ble Mr. Justice Gopal Krishan Vyas
DATE OF JUDGMENT :: 21st August, 2017

In both the appeals filed under Section 374(2) Cr.P.C., the

judgment dated 3.8.2007 passed by the learned Addl. District
(2 of 26)
[CRLA-583/2008]

Sessions Judge (Women Atrocities and Dowry Cases), Sri

Ganganagar in Sessions Case No.77/2004 arising out from the FIR

no.225/2004 registered at Police Station, Jawaharnagar, Sri

Ganganagar is under challenged whereby the accused appellants

were convicted for offence under Section 302/34 and 201 IPC and

passed the following sentence:

Under Section 302/34 IPC Life imprisonment with fine of
Rs.1,000/- and in default of
payment of fine to further
undergo two months RI

Under Section 201 Five years RI with fine of
Rs.200/- and in default of
payment of fine to further
undergo 1 month RI

As per facts of the case on 14.5.2004 at about 7.00 am an

oral information was given by Smt. Kaushalya Devi wife of

Resham Singh at Police Station Jawahar Nagar of Sriganganagar,

upon which an FIR No.225/2004 (Ex.P/18) was registered against

three persons Om Prakash @ Guruji, Kalu Ram Soni S/o Surendra

Singh and Rai Singh Meghawal. In the FIR, Smt. Kaushalya Devi

(PW-1) alleged that her husband Resham Singh was suffering

from pustule and depression because he was regularly drinking

wine. Before two and half years, the accused appellant Om

Prakash @ Guruji was living in a residence known as “Dera” near

Village Manguwas where her husband Resham Singh went for

treatment where accused appellant Om Prakash @ Guruji gave

some medicine and dust (Bhabhuti) to her husband. Due to said
(3 of 26)
[CRLA-583/2008]

medicine and dust (Bhbhuti) for some time, some relief was

occurred and condition of Resham Singh felt well from pustule,

therefore, Resham Singh and complainant regularly visited at the

residence/Dera of Om Prakash @ Guruji with their children. Due to

relief, the deceased Resham Singh started living with family at

the residence of Om Prakash @ Guruji where Kalu Ram and Rai

Singh were also residing.

The complainant further stated that before 20 days Om

Prakash @ Guruji told my husband Resham Singh that he is going

to purchase big plot at Sri Ganganagar where he would construct

residential Dera and if you want to come with him, you may

accompany. The husband of the complainant agreed and whole

family including three daughters went with Om Prakash @ Guruji

at Sri Ganganagar. First of all, accused Kalu Ram occupied a

rented house in Arjun Colony, SSB Road, Sri Ganganagar from

the owner Advocate Rajeev Kumar. In the house, all were living

alongwith daughters Raj @ Rajendra, Sonu, Maya and son

Santosh of the complainant.

When they were residing in the rented house, the husband of

complainant saw her daughter in objectionable condition with Om

Prakash @ Guruji, therefore, a quarrel took place in between her

husband and deceased Resham Singh and Om Prakash @ Guruji.

On 8.5.2004, Om Prakash @ Guruji asked the complainant

Kaushalya Devi that you may go to your parents’ house alongwith

your children and on same day, the complainant as well her
(4 of 26)
[CRLA-583/2008]

daughters and son went to the parents’ house with Rai Singh in a

hired car.

Resham Singh, husband remained with Om Prakash @ Guruji

and Kalu Ram Soni. As per complainant’s information on

12.5.2004 in the evening when she came back at Sri Ganganagar

and asked about whereabouts of her husband, then all the three

persons Om Prakash @ Guruji, Kalu Singh and Rai singh told that

your husband went to Chantapurni Mata for Darshan. After some

time, when Resham Singh did not come back then she became

afraid and on inquiry, a doubt created that her husband Resham

Singh might have killed by Om Prakash @ Guruji, Kalu Rama and

Rai Singh, therefore, a prayer was made by her to the police to

trace out her husband.

Upon aforesaid information in which a doubt was raised by

the complainant Kaushalya Devi, SHO, Police Station,

Jawharnagar registered FIR no.225 (Ex.P/18) on 14.5.2004 under

Section 302, 201 and 34 IPC and commenced the investigation.

During investigation the accused appellant Om Prakash @

Guruji, Rai Singh and Kalu Singh were arrested on 14.5.2014 and

as per their information, dead body of Resham Singh was

recovered from the pit situated in the house itself which is buried

by the appellant and Rai Singh after causing death of Resham

Singh. The Investigation officer after recording information under

Section 27 of the Evidence Act from both the appellants as well as

Rai Singh recovered the dead body from the house situated at

Arjun Colony, Sri Ganganagar and after completion of
(5 of 26)
[CRLA-583/2008]

investigation, filed charge-sheet against the accused appellant and

Rai Singh in the court of Judicial Magistrate, Sri Ganganagar under

Section 302, 201, 34 and 376(1) IPC because certain allegations

were levelled for committing rape with the daughter Rajendra

Kaur of the complainant and Resham Singh by the accused Om

Prakash @ Guruji.

After committal proceedings, the learned District Sessions

Judge, Sri Ganganagar transferred the case for trial to the court of

learned Addl. Sessions Judge (Women Atrocity Dowry Cases),

Sri Ganganagar where trial took place.

Before commencement of trial, application was moved under

Section 306(1) of the Cr.P.C. on behalf of the accused appellant

Rai Singh in which a request was made to narrate correct story

and to become approver in the case.

The application filed under Section 306(1) Cr.P.C. was sent

to the court of Magistrate for recording statement of approver Rai

Singh in accordance with law under the orders of the learned

District Sessions Judge, Sri Ganganagar. The learned Chief

Judicial Magistrate after passing an order for pardon of Rai Singh

recorded statement (Ex.P/69) of approver Rai Singh on 20.7.2004

and after recording statement of approver, the learned trial court

framed charge against the accused appellants Om Prakash @

Guruji and Kalu Ram under Section 376, 302, 302/34 and 201 IPC

and commenced the trial.

During trial, statements of 18 witnesses were recorded

including the statement of approver PW–3 Rai Singh and
(6 of 26)
[CRLA-583/2008]

exhibited number of documents in support of prosecution case.

After recording evidence of prosecution, statements of both the

accused appellants were recorded under Section 313 Cr.P.C. in

which they denied all the allegations of prosecution witnesses

including statement of Rai Singh (approver) and no evidence was

produced by the accued appellants in their defence.

The learned trial court after recording evidence proceeded to

hear final arguments and while relying upon the testimony of

approver Rai Singh coupled with the other evidence of recovery of

dead body upon information of the appellants, rendered the

judgment dated 3.8.2007 in Sessions Case No.77/2004 whereby

the learned trial court acquitted the accused appellant Om Prakash

@ Guruji and Kalu Ram from the charge under Section 376 IPC

but held them guilty for offence under Section 302/34 and 201

IPC and accused Rai Sigh was already given pardon vide order

dated 20.7.2004 by the Chief Judicial Magistrate PW–18 Rajendra

Singh on the ground that he will give correct statement before the

court and it was found that Rai Singh stated correct fact of the

case in which offence was committed by the accused appellants

and approver has participated in the crime therefore, ordered to

be released due to order of pardon.

In both the appeals, the accused appellants Om Prakash @

Guruji and Kalu Ram are assailing the validity of the judgment

dated 3.8.2007 on various grounds.

Learned counsel for the appellants submitted that a grave

error has been committed by the learned trial court so as to rely
(7 of 26)
[CRLA-583/2008]

upon the testimony of approver Rai Singh against whom same

charges were there. The story narrated by PW–3 Rai Singh

(approver) is not supported by any reliable evidence and

therefore, the conviction on the basis of testimony of approver is

not trustworthy so as to hold accused appellant guilty.

Learned counsel for the appellant submits that the learned

Magistrate Committed a grave error while giving pardon to the

PW–3 Rai Singh who was charge-sheeted alongwith the accused

appellants, who became approver, but in fact, the procedure

which is adopted by the learned Magistrate to grant pardon to the

accused Rai Singh is completely faulty. The Magistrate wrongly

accepted the prayer of Rai Singh (PW–3) to become approver

because he has narrated a totally false story, which is not

corroborated by any evidence, therefore, the finding of guilt

recorded by the learned trial court on the basis of testimony of

PW–3 Rai Singh is not sustainable in law.

Learned counsel for the appellants vehemently argued that

the statement of PW–3 Rai Singh were not recorded bonafidely

nor any application was submitted by him. More so, the

application was filed by the investigating officer for recording

statement of Rai Singh being approver, therefore, the entire story

narrated by approver PW–3 Rai Singh is far from the truth and

finding of conviction arrived at by the learned trial court against

the accused appellants deserves to be quashed.

To substantiate aforesaid arguments, it is submitted that the

complainant PW–2 Kaushalya Devi herself turned hostile and did
(8 of 26)
[CRLA-583/2008]

not support the prosecution case. Similarly, the daughter of

Resham Singh deceased, PW–1 Rajendra Kaur turned hostile and

did not support the allegation of approver as well as wife PW–2

Kaushalya Devi of the deceased Resham Singh , therefore, the

learned trial court acquitted the accused appellants from the

charge under Section 376 IPC, therefore, it is obvious that

prosecution has failed to prove its case beyond reasonable doubt.

Therefore, the judgment impugned may kindly be quashed.

Learned counsel for the appellants submits that finding of

recovery of dead body at the instance of the accused appellants is

totally perverse and illegal because before registration of the FIR

on the basis of so called statement of oral statement of Kaushalya

Devi (PW–2), the dead body was already recovered, therefore,

the story, which is fabricated by the prosecution that recovery of

dead body was made at the instance of the accused appellant is

far from the truth.

As per learned counsel for the appellants there was no

reason for the accused appellants to kill Resham Singh because

Resham Singh and his whole family were residing with the

accused appellant Om Prakash @ Guruji being deciple of him and

he was beneficiary of treatment given by Om Prakash @ Guruji.

The learned trial court after considering the entire evidence held

that prosecution has failed to prove allegations under Section 376

IPC and further there is evidence that after some quarrel with

Resham Singh, Om Prakash @ Guruji himself asked his wife

Kaushalya Devi to go at her parents’ house alongwith children.

(9 of 26)
[CRLA-583/2008]

Therefore, it is obvious that entire case is based upon false and

concocted story of the prosecution, so also, the false story

concocted by the approver PW–3 Rai Singh.

The crux of arguments of learned counsel for the appellants

is that statements of approver were not recorded as per his will

and the complainant and her daughter tuned hostile and did not

support the prosecution case. Therefore, only on the basis of

recovery of dead body, the accused appellants cannot be held

guilty for committing murder of Resham Singh with whom there

was no enmity, therefore, the judgment impugned may kindly be

quashed.

Learned counsel for the appellant lastly argued that in

criminal case prosecution is required to prove its case beyond

reasonable doubt, but here in this case, when complainant wife

of the deceased PW–2 Kaushalya Devi turned hostile and did not

support the prosecution case, then how the testimony of

concocted and fabricated evidence of approver, conviction can be

made, but here in this case, the learned trial court committed a

grave error to accept the testimony of approver and recovery of

dead body at the instance of the accused appellant, which is not

even validly proved beyond reasonable doubt. Therefore, the

judgment impugned may kindly be quashed.

In support of his arguments, learned counsel for the

appellants invited our attention towards the judgment of Hon’ble

Court in the case of Sarwan Singh Ratan Singh Vs. State of Punjab

reported in 1957 SC CANDID 107.

(10 of 26)
[CRLA-583/2008]

Per contra learned Public Prosecutor submits that it is a very

serious matter in which innocent person Resham Singh who was

having full faith on Om Prakash @ Guruji was murdered by the

accused appellants and Rai Singh and his body was buried in the

house itself after digging from where the dead body was

recovered at the instance of the accused appellants. While

inviting attention towards the statements of PW–3 Rai Singh

(approver) it is submitted that there is no provision in the Cr.P.C.

to record statements of the accused to grant pardon if the

accused is desirous to narrate correct story before the court. In

this case, Rai Singh was arrested with the accused appellants for

the same charges and dead body was recovered at the instance of

all the three persons namely Om Prakash @ Guruji, Kalu Ram and

Rai Singh from the house where they were residing and after filing

charge-sheet against all the three persons, the accused Rai

Singh made a request to became approver and to state correct

facts before the court. Upon aforesaid request made by him, his

statements were recorded by the Magistrate and he was granted

pardon upon the condition that he will narrate correct story

before the court during the trial.

Learned Public Prosecutor submits that after declaring

accused Rai Singh approve and passing the order of pardon, Rai

Singh narrated the correct story before the court, therefore, the

learned trial court while accepting the testimony of Rai Singh held

that pardon has rightly been granted to him and convicted both
(11 of 26)
[CRLA-583/2008]

the accused appellants for offence under Section 302/34 and 201

IPC. Therefore, no interference is called for.

Learned Public Prosecutor further argued that it is nowhere

disputed by the accused appellants that dead body was recovered

from the house where accused appellants were residing alongwith

deceased Resham Singh and his family members. The house was

taken on rent by the accused appellant Om Prakash @ Guruji from

one advocate Rajeev Kaushik (PW–10), who has categorically

stated before the court that my house was taken on record by Om

Prakash @ Guruji where Om Prakash @ Guruji, one lady and three

girls alongwith other two persons were residing and in my house

dead body was recovered. Meaning thereby, there is no dispute

from the evidence of prosecution that dead body was recovered

from the house where accused appellants were residing alongwith

Resham Singh. The plea taken by the accused appellants that

PW–3 Rai Singh (approver) committed murder and buried the

dead body in the pit is not sustainable in the light because it is not

possible for a single person to cause death and put the dead body

in the pit of the house itself where they were residing. Therefore,

there is no question to disturb the finding of the learned trial court

on the ground that complainant and his daughter turned hostile

because as per admitted facts of the case, the complainant

Kaushalya Devi and Rajendra Kaur left the house upon asking by

the accused appellant Om Prakash @ Guruji and Resham Singh

was remained with them, therefore, the criminal appeals filed by

the accused appellants may kindly be dismissed. Learned Public
(12 of 26)
[CRLA-583/2008]

Prosecutor invited our attention towards the judgment reported in

the case of PC Mishra Vs. State (CBI) anr.Vs. reported in 2014

AIR (SC) 1921 and State of Rajasthan Vs. Balveer @ Bali Anr

reported in 2014 AIR (SC) 1117 and submits that the testimony

of approver cannot be discarded only on the ground that his

statements were not recorded in accordance with law, therefore,

both the appeals may kindly be dismissed.

After hearing learned counsel for the parties, we have

considered the evidence on record in the light of grounds raised

by the accused appellants in both the appeals. Admittedly, in the

statement recorded under Section 313 Cr.P.C. no explanation is

given by them for recovery of dead body of the deceased from the

house where they were residing. Admittedly, the dead body was

recovered from the house situated at Arjun Colony, Gali No.1, Sri

Ganganagar. The said house was let out by PW–10 Rajeev

Kaushik to one Kalu Soni where Kalu Soni alongwith Om Prakash

@ Guruji and one lady and three girls were residing. PW–10

Rajeev Kaushik stated in his statement on oath that my house

situated in Arjun Colony was rented out to accused appellant Kalu

Soni and after giving him possession of the same, upon

recommendation by one Ramesh Soni upon rent of Rs.1000/- the

witness advocate Rajeev Kaushik went to the house where both

the accused appellants were residing alongwith four ladies and

due to their activities he instructed Kalu Soni to vacate the house

and it was assured by Kalu Soni that he will vacate the premises.

(13 of 26)
[CRLA-583/2008]

Upon consideration of statement of Rajeev Kaushik, there is

no doubt that the house in which dead body was recovered was

rented out by Rajeev Kaushik (PW–10) to Kalu Ram where

accused appellant Om Prakash @ Guruji alongwith other accused

and deceased Resham Singh residing.

It is true that FIR was registered on the basis of oral

statement of PW–2 Kaushalya wife of Resham Singh and the said

witness turned hostile and did not support the prosecution story,

but upon perusal of her statement there is no doubt that

Kaushalya left the house and went to the parents’ house and her

husband was residing in the house where accused appellant Om

Prakash @ Guruji and Kalu Ram were residing alongwith Rai Singh

(PW–2). The PW–1 Rajendra Kaur though declared hostile and

did not prove the allegation of rape, but it is accepted by her

that Om Prakash @ Guruji was giving treatment to her father and

Om Prakash @ Guruji and Kalu Ram and other persons were

residing with them and on the date of occurrence, she was not at

home and she went with her mother to the maternal-uncle’s

house. Meaning thereby, although PW–1 Rajendra Kaur and

PW–2 Kaushalya turned hostile, but in their statements, they

accepted that Resham Singh (deceased) was residing with the

accused appellants and Rai Singh in the house of PW–10 Rajeev

Kaushik, Advocate.

PW–3 Rai Singh is the approver who has categorically

narrated the whole incident and also accepted that he has

participated in the crime. PW–3 Rai Singh gave pardon upon
(14 of 26)
[CRLA-583/2008]

request made by him by the Magistrate under Section 306 Cr.P.C.

on the ground that he will narrate correct story before the court

during trial. Rai Singh co-accused who was granted pardon gave

following statement in the court, which reads as under:-

Þeqs cpiu ls guqeku th iwtk dk ‘kkSd gSA eSa jkst guqeku
pkyhlk o lqUnjdk.M dk ikB djrk FkkA vkt ls rhu o”kZ igys dh
ckr gSA eSa ekawokl ds ikl fLFkr ugj 6 eklh ds ikl fLFkr
vkseizdk’k mQZ xq:th ds Msjs ij ckyk th guqekuth dh lsok djus
pyk x;kA eSa ogka ij kM+w ikspk] lQkbZ djuk o lqcg ‘kke iwtk dk
dke djrk Fkk vkSj xq:th dh lsok esa muds ikao nokuk o ekfy’k
djrk FkkA bu dkeksa esa dkywlksuh esjh enn djrk FkkA xq:th ogka
vkus okys yksxksa dk bykt djrk Fkk vkSj muds ?kjksa esa tkdj Hkh
bykt djrk FkkA vkt ls nks o”kZ igys eSa xq:th ds Msjs esa Fkk rc
ogka ij js’ke flag uke dk vkneh vk;kA mlds flj esa QksM+s QqfUl;ka
gks j[kh Fkh ftlls ikuh o eokn fxjrk Fkk xq:th us mldk bykt
‘kq: djrs gq, gkFk o xys esa rkcht cka/k fn;k vkSj mls HkHkwrh ns nhA
js’ke flag dbZ fnuksa rd vkrk jgk vkSj Bhd gks x;kA mldh gkyr
o Qk;ns dks ns[kdj js’ke flag dh iRuh dkS’kY;k o iqh jkth Hkh
xq:th ds ikl vkus tkus yx xbZA bl izdkj js’ke flag dk iwjk
ifjokj xq:th ds lEidZ esa vk x;k vkSj ogka Msjs ij vkus tkus yxkA
dkywlksuh ges’kk xq:th ds lkFk jgrk Fkk ftlus vizsy esa vtZqu
dksyksuh Jh xaxkuxj esa dkSf’kdth dk edku fdjk;s ij fy;k bl
ekdu dk eqgwrZ 22 vizsy 2004 dks j[kk x;kA eqgwrZ ds ckn ogka
lcls igys xq:th vk;s vkSj mlh fnu dkyw lksuh js’keflag ds
ifjokj dks ysdj ogka vk;k js’keflag ds ifjokj esa mldh iRuh
dkS’kY;k o iqh jkth o rhu NksVs cPps ‘kkfey FksA bl edku esa pkj
dejs Fks ftlesa ls ,d dks eafnj cuk;k vkSj ckdh dks [kkus o lksus
ds fy, j[kk x;kA js’keflag dk ifjokj blh edku esa jgrk gSA ,d
fnu js’keflag lqcg ds pkj cps tkxk rks eSa Hkh tkx x;kA js’ke flag
mBdj ysfVªax pyk x;kA ftl ij eSaus xq:th dks ns[kk rks os vius
dejs esa ugha FksA eSaus mudh ryk’k dh rks og nwljs dejs esa js’keflag
dh yM+dh jkth ds lkFk lks jgs FksA rc eSaus xq:th dks txk;k vkSj
iwNk dh vkt jkth ds lkFk D;ksa lks jgs gksa rks mUgksus dgk fd ge
‘kkafr cukus ds fy, ,slk gh djrs gSa ml fnu ds ckn ls js’keflag
vkseizdk’k mQZ xq:th ds lkFk xM+k j[kus yx x;k vkSj js’keflag
us vkseizdk’k ds lkFk xM+k blfy, fd;k Fkk fd mlus viuh yM+dh
jkth ds lkFk xq:th }kjk cqjk dke djrs ns[k fy;k FkkA mlds ckn
,d fnu js’ke flag lks jgk Fkk rc xq:th us eqs dgk fd js’keflag
dh iRuh o cPpksa dks mlds ihgj NksM+ vkA eSa ‘kke dks lks ikap cts
dkj esa fcBkdj NksM+us pyk x;kA dkj dk pkyd v’kksd lksuh FkkA
xq:th v’kksd dks gh Mªkboj j[krk FkkA eSa mUgsa xkao yksdsfj;k
NksM+dj kbZ cts okil vk x;kA eSa tc okil vk;k tgka xq:th jgrs
Fks esjs vkus ij ?kj dk njoktk xq:th us [kksyk rc muds gkFk esa
Fkkik FkkA xq:th us crk;k fd mUgksaus js’keflag dh fiVkbZ dh gSA eSa
ogka ls Mªkboj ds ?kj tkdj lks x;kA xq:th us eqs o Mªkboj dks
(15 of 26)
[CRLA-583/2008]

okil vkus ds fy, FkksM+h nsj ckn Qksu fd;k bl ij eSa okil vk
x;kA Mªkboj us vkus ls euk dj fn;kA eSaus vkdj ns[kk fd js’keflag
dh vkseizdk’k mQZ xq:th o dkyw lksuh us fiVkbZ dj j[kh Fkh mlds
diM+s QVs gq, Fks vkSj mldh fiaMyh ls [kwu vk jgk FkkA fQj xq:th
edku dk rkyk yxk dj pys x;s vkSj fnu ds nl cts okil vk;sA
rc js’keflag us vkseizdk’k mQZ xq:th dks dgk fd esjs chch o cPps
ykvks rc xq:th us dgk fd rsjs chch o cPpksa dks csp fn;k gS og
okil ugha vk;sxsaA fQj ml jkr dks eSa] xq:th] dkywjke o js’keflag
jkr dks lks x;sA jkr dks xq:th o dkywjke us eqs txk;kA vkSj
mUgksaus pk; cukbZA bl pk; esa xq:th o dkywlksuh us Hkkax o u’ks dh
xksfy;ka feyk nhA ;g pk; mu nksuksa us js’keflag dks txkdj mls
fiyk nhA js’keflag us pk; ih vkSj vkjke ls lks x;kA xq:th o
dkywlksuh nksuksa vkil esa feys gq, FksA os nksuksa dejs ds vUnj x;s
ftl dejs esa js’keflag lks jgk FkkA dkyw lksuh js’keflag dh Nkrh ij
cSB x;k vkSj js’keflag dk xyk idM+ fy;kA vkSj vkseizdk’k mQZ
xq:th us mldk eqag rfd;s ls nck fn;kA js’keflag rc cqjh rjg ls
rM+ius yxkA eSa ;g lc ns[k jgk Fkk vkSj ns[kdj Mj x;kA js’keflag
tc rM+i jgk Fkk rc xq:th us eqs dgk fd rqe blds iSj idM+ yksA
rc eSaus js’keflag ds ikao idM+ fy;sA FkksM+h nsj esa js’ke flag dh tku
fudy xbZA rc xq:th us mlds mij pn~nj Mky nhA vkseizdk’k mQZ
xq:th us dgk fd ;g ckr fdlh dks crkbZ rks rsjk Hkh ;gh gky
gksxkA lqcg ge lc ugk /kks fy;sA rc dkywjke lksuh o xq:th us
ftl dejs esa js’keflag dks ekjk ml dejs dks rkyk yxk fn;k vkSj
njokts o f[kM+fd;ksa ij lSUV fNM+d fn;kA ;s nksuksa ogka ls pys x;s
vkSj esjs dks ogka fcBk fn;kA nks +kbZ ?kaVs ckn dkywjke lksuh etnwjksa
dks lkFk ysdj vk;kA dkyw us dgk fd bu etnwjksa dks dguk fd
gou ds fy, dqbZ [kqnokuh gSA etnwj dqbZ [kksnus yxsA dqbZ [kksnus ds
ckn etnwjksa us esjs ls iSls ekaxsA esjs ikl iSls ugha FksaA eSaus mUgsa ‘kke
dks iSls ys tkus ds fy, dgkA os ‘kke dks vkus ds fy, eku x;sA
dqbZ 1012 QqV xgjh [kksnh FkhA mu etnwjksa ds tkus ds ckn xq:th
ogka vk x;s rc xq:th o dkywjke lksuh us js’keflag dh yk’k ds
dejs dk njoktk [kksykA mu nksuksa us yk’k dks mBkdj ogka ls
fudky flj uhps dj o iSj mij dj ml [kksnh gqbZ dqbZ esa Mky
fn;kA mUgksaus eqs dgk fd b/kj m/kj /;ku j[kukA mUgksaus ml dqbZ
dks feV~Vh ls yk’k ds Mkyus ds ckn Hkj fn;kA fQj esjs dks dgk fd
bl tehu dks cjkcj ¼lery½ dj nsA eSaus ml tehu dks ncknck dj
lery dj fn;kA fQj xq:th us eqs dgk fd fdlh dks ;g ckr ugha
crkuk esjh tkudkjh cgqr gSA eSaus igys Hkh /kewM+okyh Fkkusnkj dks
ykbu gkftj djok fn;k FkkA blds ckn js’keflag dh chch o cPps
12-05-04 dks ogka vk;s vkSj mUgksaus js’keflag dk iwNkA rks xq:th us
mUgsa crk;k fd js’keflag ekrknsoh ds n’kZu djus x;k gqvk gSA blds
ckn ogka ij iqfyl vk xbZ FkhA eSaus iqfyl dks ?kVuk ds ckjs esa
lEiw.kZ crk fn;k FkkA
ftjg }kjk vf/koDrk vfHk;qDrx.k
eSa d{kk 11 ikl gwaA QksM+s QqUlh Bhd gksus ds ckn js’keflag o
mldk ifjokj xq:th ds ikl vkus tkus yxk FkkA xaxkuxj ds edku
esa js’keflag o mldk ifjokj jgus yx x;k FkkA xq:th us js’keflag
dks viuk f’k”; eku fy;k FkkA ;g lgh gS fd blls igys eSa o
(16 of 26)
[CRLA-583/2008]

dkywjke lksuh xq:th ds psys FksA ;g lgh gS fd js’keflag Hkh esjh
rjQ ls xq:th dh vPNh lsok djus yx x;k FkkA ;g dguk xyr gS
fd xq:th eafnj o iSls VDds dk iw.kZ ftEesokjh js’keflag dks Hkjksls
ij j[kh gksA vt[kqn dgk fd eqs /;ku ugha gS eSa viuh iwtk esa eLr
jgrk FkkA jkth mQZ jktsUnzkdkSj ds lkFk eSaus xq:th dks lks;s gq, tc
eSaus ns[kk rc og igyk ekSdk Fkk eSaus blls igys o blds ckn dHkh
,slk lks;s gq, ugha ns[kk FkkA ;g lgh gS fd eSaus bl ?kVuk ;k xq:th
dk jkth ds lksus dh fdlh ls ppkZ ugha dh D;ksafd eSaus lkspk xq:th
iwtk ikB esa ,slk djrs gksaxsA xq:th dk jktsUnzdkSj ds lksus laca/kh
ckr eSaus fdlh dks ugha crkbZA bl ckr dh rkjh[k dk eqs /;ku ugha
gSA js’keflag ds ejus ls igys g¶rk nl fnu igys gh xq:th o jkth
dks lkFk lks;s ns[kk FkkA eSa ftl xkM+h ls js’keflag dh iRuh o cPpksa
dks muds ihgj esa NksM+dj vk;k og xkM+h xq:th ds tkudkjh dh
FkhA tc eSa kbZ cts okil vk;k rc xq:th us njoktk [kksyk rc eSaus
js’keflag ds fpYykus dh vkokt ugha lquhA eSa njokts ls okil pyk
x;k FkkA eSa xq:th ds Qksu dj cqykus ij okil vk;k rc rM+ds
5lks 5 cts dk le; FkkA eSa Mªkboj ds ?kj ls iSny vk;k FkkA eSa
dkj ds Mªkboj dks igys ls ughas tkurk FkkA eSa tc okil vk;k vkSj
ns[kk fd js’keflag ds diM+s QVs gq, Fks vkSj ik;tkes ij [kwu yxk
gqvk FkkA js’keflag ml oDr cksy ugha jgk FkkA og gks’k esa FkkA
js’keflag us eqs fiVus laca/kh dqN ugha crk;k vkSj uk gh eSaus cl
ckjs esa mlls iwNkA js’keflag dks ihVus laca/kh ckr eSaus fdlh eksgYys
ds O;fDr dks ugha crkbZA ;g lgh gS fd ftl edku esa vfHkΠxq:th
o eSa jgrs Fks ogka cjkcj esa edku Fks vkSj lkeus [kkyh eSnku gSA ogka
O;Lr eksgYyk gSA esjs iqfyl us C;ku fy, FksA eSusa jktsUnzdkSj ds lkFk
vfHkŒ xq:th dk lks;s gksuk o js’keflag dh ihVus laca/kh ckr iqfyl
dks crk nh Fkh ysfdu izn’kZ Mh1 esa ;g D;ksa ugha fy[kh ugha dg
ldrkA Qksu ls xq:th us okil cqykus dh ckr eSaus iqfyl dks crk
nh Fkh ysfdu izn’kZ Mh1 esa D;ksa ugha fy[kh ugha dg ldrkA
js’keflag dh iRuh o mlds cPps mudks esjs }kjk NksM+ dj vkus ds
rhu pkj fnu okil vk x;s Fks eqs fuf’pr ;kn ughaA eqs /;ku ugha
fd js’keflag dh iRuh o cPpksa dks ysus ds fy, iatkc x;s gksA ;g
dguk xyr gS fd vfHkΠxq:th o dkywjke nks fnu ?kj ls ckgj jgs
gksA vfHkΠxq:th o dkywjke fnu ds le; dqN le; ?kj ls ckgj
jgrs FksA ;g dguk xyr gS fd xq:th o dkyw lksuh js’keflag o
mldh iRuh o cPpksa dks ysus ds fy, x;s gksaA ;g dguk xyr gS fd
muds tkus ds ckn ihNs ls eSaus js’keflag dh gR;k dj nh gksA ;g
dguk xyr gS fd ;g gR;k eSaus dh gks D;ksafd xq:th js’keflag dks
viuk utnhdh psyk ekuus yx x;s gksA vkSj bl otg ls eSa
js’keflag ls jaft’k j[krk gksmaA ;g dguk xyr gS fd gekjs f’k”;

dh yM+kbZ ds laca/k esa vkil esa dbZ ckj xM+k gqvk gksA fnΠ9 ebZ
2004 dh rkjh[k dks xq:th o dkywjke lksuh dgka Fks eqs /;ku ugha
gSA ;g dguk xyr gS fd iqfyl us eqs cpkus ds fy, ;g wBs C;ku
crk;s gks vkSj muds dgus ls ;g wBs c;ku dj jgk gksmaA eksgYys ds
O;fDr dHkh dHkkj xq:th ds ikl vkrs FksA js’keflag ds eqag ij tc
rfd;k j[k cUn fd;k rc mls fpYykus o jksus dk ekSdk ugha feykA
;g dguk xyr gS fd js’keflag dk dRy jaft’k ds dkj.k eSaus fd;k
gksA ;g dguk xyr gS fd eSa viuk vijk/k Nqikus ds fy, nks”k nwljksa
ij Mky jgk gksmaA
(17 of 26)
[CRLA-583/2008]

iqu% ijh{k.k ‘kwU;ß

We have considered the arguments of learned counsel for

the appellant that Magistrate has committed error while recording

consent of approver and to grant pardon to him. We have perused

the cross-examination made by the appellants to the approver in

which not a single question is put to the witness that your

statements were recorded by the Magistrate due to influence of

accused appellants or under the threat and profit. It is very

strange that on the one hand not a single question was put

therefore the approver by the accused appellants in cross-

examination when he gave statement as approver and on the

other hand, strange argument is advanced by the learned counsel

for the appellant that his statement were recorded contrary to the

procedure laid down in the rules. In our opinion, there is no

strength in the argument of learned counsel for the appellant that

error has been committed by the learned trial court while granting

pardon to the approver or to treat PW–3 Rai Singh as approver

because he has narrated whole incident categorically in which

Resham Singh was murdered in the house and buried by the

accused appellants.

The approver has accepted that dead body was recovered

upon information given by the accused appellants as well as by

him. The dead body was recovered in the presence of the Addl.

Collector, Sri Ganganagar PW–17 Kalu Ram Gupta. The said

witness specifically stated in his statement that in pursuance of
(18 of 26)
[CRLA-583/2008]

Ex.P/26 he went at the place of recovery and in front of him as

per information given by Om Prakash @ Guruji and Rai Singh,

dead body of Resham Singh was recovered from the house

situated at Arjun Colony, Sri Ganganagar and at the time of

recovery of the dead body all the accused appellants alongwith

investigating officer were present and other persons were also

present. The SHO and other police officials Akabar, Harbansh

and Ved Prakash were present and Panchnama (Ex.P/8) was

prepared in front of them.

In our opinion, there is no question to disbelieve the

testimony of PW–17 Kalu Ram Gupta, ADM (City), Sri

Ganganagar because he is executive officer and as per procedure

laid down in the Cr.P.C. he was called at the time of recovery of

dead body of Resham Singh.

PW–18 Rajendra Singh was working as Chief Judicial

Magistrate, Sri Ganganagar. The said witness categorically stated

that on application submitted before him, Rai Singh was

summoned and his statements were recorded after putting proper

question that his statement can be used against him. His

statements were recorded and before that he was granted pardon

as provided under Section 306 of Cr.P.C.

In our opinion, no error has been committed by the learned

Magistrate to record statement of Rajendra Singh and to grant

him pardon on the ground that he will narrate correct story during

trial. Rai Singh stated correct story being PW–3 during trial and
(19 of 26)
[CRLA-583/2008]

upon relying his statement, the learned trial court held accused

appellant guilty and accepted the pardon given to him.

PW–4 Bishandas turned hostile. PW–5 Prem Kumar is the

neighbor who has categorically stated that accused appellants

and Resham Singh were residing in the house of Rajeev Kaushik

and some time before some quarrel took place in which Resham

Singh was crying and raising voice “Mar denge muje bacha lo”.

PW–6 Dr. Ved Prakash Hasija conducted post mortem of the

dead body. PW–7 Ved Prakash is the resident of same locality. He

has categorically stated that accused person in present in the

court were residing in the house where dead body was recovered

vie Ex.P/8 and Panchanama is prepared upon which I put my

signature.

PW–8 Rajendra Singh was the SHO of Police Station

Jawharnagar who has recorded statement of Kaushalya and

registered the FIR and conducted whole investigation.

PW–9 Indra Lal is the person who has conducted

videography of the place of occurrence where dead body was

recovered, so also, photographs (Ex.P/32 to Ex.P/43) were taken

by him. The photographs of the accused were also taken vide

Ex.P/59 to P/61 and negatives were handed over to the

investigating officer.

PW–10 Rajeev Kaushik categorically stated that my house

situated in Arjun Colony, Sri Ganganagar was taken on rent by

Kalu Ram in which other accused appellants were also residing.

(20 of 26)
[CRLA-583/2008]

PW–11 Ashok Kumar is the person with whom Kaushalya

and her family members went to parents house after hiring his

vehicle.

PW–12 Mohan Lal is Malkhana incharge. He has

categorically stated before the court that I have sent the articles

to the FSL. PW–13 Rampal is the person who has hired for

digging pit in the house in which dead body of the deceased

Resham Singh was buried. He has identified the accused

appellant Kalu Ram who was present in the court.

PW–14 Akbar is Motbir witness before whom the dead body

was taken out form the pit (qui) in the house situated in Arjun

Colony, Sri Ganganagar vide Ex.P/6. The dead body of Resham

Singh was handed over to Kaushalya vide Ex.P/11, that too, is

proved by this witness. The witness Akbar further proved the

memo of videography (Ex.P/28), the recovery of one pillow vide

Ex.P/30 and also proved site plan (Ex.P/11) which is prepared by

the police on spot. It is categorically stated by him that at the

time of recovery of dead body from pit (qui) from the house of

Rajeev Kaushik situated in Arjun Colony, Sri Ganganagar they

were present. The Ex.P/7 and P/8 were prepared in front of him.

The cloths of the deceased were also recovered vide Ex.P/10 from

the place of occurrence itself.

PW–15 Harbans Singh was Malkhana incharge who proved

the fact that articles were deposited in Malkhana on 15.4.2004.

PW–16 Om Prakash @ Banti is the witness who has sold

the land of 1 bigha to construct the Dera, but he has refused to
(21 of 26)
[CRLA-583/2008]

give his land due to bad character of accused appellant Om

Prakash @ Guruji.

Upon assessment of entire evidence, we are of the opinion

that prosecution has proved the case against the accused

appellants beyond reasonable doubt on the basis of recovery of

dead body of deceased Resham Singh from the house where both

the accused appellants were residing, so also, no error has been

committed to accept the statement of PW–2 Rai Singh, therefore,

so as to hold accused appellant guilty and to give pardon to the

accused Rai Singh.

We have perused the judgment citied by the learned counsel

for the appellant. In our opinion the ratio laid down in those cases

are not applicable in the light of the facts of this case because in

the case of State of Rajasthan Vs. Balveer @ Bali (supra), the

Hon’ble Supreme Court reverse the judgment of the Division

Bench of this Court passed in D.B. Death Reference No.1/2005

and D.B. Cr. Appeal No.261/2005, 347/2005 and 431/2005

whereby the Division Bench of this Court at Jaipur Bench

disbelieved the testimony of approver and acquitted the appellants

from the charge of murder and held that High Court has failed to

appreciate the statement of accomplish and to acquit the accused.

The para nos.16 to 19 of the said judgments are as follows:

“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
(22 of 26)
[CRLA-583/2008]

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 State Of Rajasthan vs
Balveer @ Balli Anr on 31 October, 2013 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.

(23 of 26)
[CRLA-583/2008]

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
(24 of 26)
[CRLA-583/2008]

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 State Of Rajasthan vs
Balveer @ Balli Anr on 31 October, 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
(25 of 26)
[CRLA-583/2008]

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 boys 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 State
Of Rajasthan vs Balveer @ Balli Anr on 31 October,
2013 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
(26 of 26)
[CRLA-583/2008]

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.”

Upon consideration of evidnce of this case, there is no doubt

that prosecution has proved that dead body of Resham Singh was

recovered as per information given by the accused appellants as

well as approver Rai Singh. In the statement of approver Rai

Singh, he has categorically stated that he has participated in the

crime, therefore, pardon has rightly been given to him while

treating his statement trustworthy being approver in accordance

with Section 306 Cr.P.C. In the aforesaiad judgment, Hon’ble

Superme Court reversed the findings of this Court in case of

Balveer@ Bali (supra) and held that statement of approver should

be accepted upon the fact that he has participated in the crime

and that disclosed the incident being approver.

In view of the above discussion, in the light of aforesaid

judgment of Hon’ble Supreme Court in the case of Balveer @ Bali

(supra), we are of the opinion that there is no force in these

appeals, hence, both the appeals are hearby dismissed.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.

cpgoyal/ps

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