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 companydition that he shall disclose the truth about each and every information, circumstance and person directly or indirectly companynected with the incident relating to the offence, within his knowledge.
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 companyroboration from sources independent from the tainted source, i.e., PW 1 who is an accomplice and we do find such companyroboration of the testimony of PW 1 from independent sources.
The trial companyrt, after examining and discussing the evidence on record and in particular the evidence of Rajesh PW 1 , companyvicted both the respondents under Sections 376 2 g and 302/34, IPC.
P 46 .
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.
P 12 soon after the incident on 01.11.2003.
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. On 29.12.2003, the statement of Rajesh was recorded under Section 164 of the Code of Criminal Procedure, 1973 for short Cr.
The report of the State Forensic Science Laboratory Ext.
The High Court further held that the evidence of PW 1 was number supported by other circumstantial evidence and in the absence of any companyroboration of the evidence of PW 1 in material particulars, it was difficult to uphold the companyviction of the respondents on the basis of such an unreliable witness.
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.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.
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.
There were other black bags also.
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 numberse 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 number remember the name of other boy.
P 45 .
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.
P.C., or in his statement before the Chief Judicial Magistrate for grant of pardon under Section 306, Cr.
Aggrieved by the impugned judgment, the State of Rajasthan is in appeal before us.
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.
PW 11, who was one of the villagers of Nadbai, has stated that a boy named Rajesh was running towards the companyony raising alarm that a girl is killed and he told that two boys Ram Niwas and Balveer are killing a girl, save her.
P 12 is legally admissible as companyroborative of the evidence of PW 1 in the trial companyrt.
Our black companyour bag was stitched with red companyour thread and other bags do number have red companyour stitches.
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 companyrt and acquitted the respondents of the offences under Sections 376 2 g and 302/34, IPC, and directed that the respondents be released forthwith.
This companyroborates the story given out by PW 1 that Ram Niwas and Balveer strangulated the deceased by a chunni.
Thereafter, the trial companyrt heard learned companynsel 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.
The Tehsildar, who was examined as PW 30, has companyfirmed 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.
261 of 2005, 347 of 2005 and 431 of 2005.
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 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 companydition lying dead.
Thereafter, charges were framed against the two respondents under Section 376 2 g , IPC, and alternatively under Sections 376, 302 and 34, IPC.
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 number 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.
The post mortem report Ext.
I did number say to the Tehsildar that I have companye to identify a black companyour bag.
In the FIR Ext.
P 56 states that human semen was detected in the vaginal smear, swab, chaddi and salwar of the deceased.
Rajesh also told the Station House Officer that both Ram Niwas and Balveer escaped on the motorcycle along the railway track towards Khedali.
As per the opinion expressed in the post mortem report also the death was because of asphyxia due to strangulation.
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.
When the Station House Officer questioned Rajesh, he told that on 01.11.2003 at about 4 to 5 Oclock in the evening, respondent Ram Niwas and the respondent Balveer brought the girl named Rekha on the motorcycle of Ram Niwas, bearing Registration No.
Facts 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.
P 55 shows ligature mark of 2 cm width, dark brown in companyour, 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.
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 companyld number be accepted as he had number inculpated himself in the crime in his statement recorded under Section 164, Cr.
P.C. and as he was number privy to the crime, he cannot be held to be an approver.
