STATE OF RAJASTHAN Vs. BALVEER @ BALLI

JUDGEMENT

(1.) 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.

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

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