STATE OF RAJASTHAN Vs. RAM NIWAS

JUDGEMENT

(1.) For the rape and murder of a helpless woman Rekha, appellants have been sentenced to death. Learned trial Judge has referred papers of this case for confirmation of death sentence whereas the appellants have challenged order of conviction and sentence recorded against them by filing appeals. Substantial questions of general importance and somewhat ticklish, involved in the case are whether Rajesh, presented as an approver by the prosecution around whose testimony almost entire case of prosecution rests, qualify as an approver in view of his statements made under Ss. 164, 306, Cr. P.C. and his testimony before the Court where he completely exculpates himself and inculpates only appellants and whether from narration of facts given by him, he rather appears to be a protestor, preventer and to some extent, even a victim of the crime himself. The other question of equal significance that confronts the Court is that if testimony of Rajesh is discarded as approver whether he is a competent witness under S. 113 of the Evidence Act and his testimony should be appreciated and accepted in the same way and manner like any other witness. Appended to the two important questions of law as mentioned above, are also usual questions like the testimony of Rajesh if accepted as an approver, to be fulfilling usual tests and that sans statement of the approver, whether conviction of the appellants could possibly rest on circumstantial evidence led by the prosecution.

(2.) The facts that necessarily precede adjudication of the questions framed above, as per prosecution version, are that on the intervening night of 1-2/11-2003, Rekha was allegedly raped and murdered by the two appellants-Ram Niwas and Balveer and by the alleged approver Rajesh. For the commission of the crimes of rape and murder, vide judgment dated 5-3-2005 the Additional District and Sessions Judge (FastTrack) No. 4, Bharatpur, convicted the appellants for the offence under Ss. 302/34, I.P.C. and sentenced them to death penalty, fine of Rs. 1000/- each, and, in default thereof, to undergo a six month simple imprisonment. He convicted them further for the offence under S. 376(g), I.P.C. and sentenced them to imprisonment of ten years and imposed a fine of Rs. 1000/- each and to serve tax months in default thereof. Since the death reference and the attendant three appeals arise out of the same impugned judgment, they are being decided by this common judgment.

(3.) According to the prosecution story, one Prem Bahadur, SHO, Police Station Nadbai, got a formal FIR (Ex. P. 12), recorded on 1-11-2003, after bringing Rajesh back from the crime scene to the police station, wherein he (SHO Bahadur) claimed as under :