STATE OF RAJASTHANversusBALVEER @ BALLI AND ANR.

                   [2013] 11 S.C.R. 557

                 STATE OF RAJASTHAN                           A
                            v.
              BALVEER @ BALLI AND ANR.
            (Criminal Appeal No. 942 of 2006)
                   OCTOBER 31, 2013
                                                              B
    [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

     Penal Code, 1860 - s. 376(2)(g) and 302134 - Rape and
murder - FIR against three accused - One of the accused
examined as witness after tendering him pardon uls. 306 C
Cr.P.C. - Conviction and sentence of 10 years RI and death
sentence for the offences ulss. 376(2)(g) and 302134
respectively - High Court acquitted both the accused - Held:
The prosecution case is proved by the evidence of the
approver, and the same is admissible in evidence having o
been coffoborated by direct and circumstantial independent
evidence - Hence convicted u/ss.376(2)(g) and 302134 -
However, the death sentence reduced to life imprisonment as
the case does not fall in the category of rarest of rare cases ·
- Sentence of 10 years RI imposed by trial court confirmed. E

     Code of Criminal Procedure, 1973 - s.306 - Approver/
accomplice - Evidentiary value of - Held: For being an
approver, it is not necessary that the person has to inculpate
himself in the offence and has to be privy to the crime - After
grant of pardon accomplice is removed from the category of F
co-accused and put into the category of witness, and evidence
of such witness is admissible in evidence as per s. 133 of
Evidence Act - However, as a rule of prudence, presumption
as provided uls. 11411/ustration (b) of Evidence Act is against
the accomplice, unless he is corroborated in material G
particulars - Evidence Act, 1872 - ss. 133 and 114 11/ustmtion
(b).

    Evidence Act, 1872:
                            557                               H
    558      SUPREME COURT REPORTS               [2013) 11 S.C.R


A        s. 157 - Corroboration of testimony of witness - Held. In
    order to corroborate 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, may be proved.
8         s. 27 - Recovery under - On the basis of statement made
    by the accused while in police custody- Evidentiary value of
    - Held: Such recovery can be utilized against the accused,
    for the purpose of corroboration.

C      Respondents-accused were prosecuted u/s.
  376(2)(g) and 302 r/w s. 34 IPC. The prosecution case was
  that the two respondents-accused alongwith accomplice-
  approver (PW1) committed rape on the deceased and
  further the respondents committed her murder. After the
o incident, hearing the hue and cry of of PW-1that the
  respondents had killed the girl, people gathered at the
  place of occurrence, apprehended PW1 and informed the
  police over telephone. The SHO, on the basis of
  statement of PW1, lodged FIR against the respondents
E and PW1. Subsequently PW-1 was tendered pardon u/s.
  306 Cr.P.C. on the condition that he would disclose the
  truth relating to the offence, within his knowledge.
  Relying on the prosecution· evidence, trial court
  convicted the respondents-accused u/ss. 376 (2)(g) and
  302/34 IPC. They were sentenced to 10 years RI for the
F offence u/s. 376(2)(g) and were sentenced to death for the
  offence u/s. 302134 IPC. High Court in appeal, acquitted
  the respondents-accused of all the charges. Hence the
  present appeal by the State.

G         Allowing the appeal, the Court
      HELD: 1.1. Section 306, Cr.P .C. provides that with a
  view to obtain the evidence of any person supposed to
  have been directly or indirectly concerned in or privy to
H an offence, the Magistrate may tender a pardon to such
   STATE OF RAJASTHAN v. BALVEER@ BALLI                  559


person on condition of his making a full and true               A
disclosure of the whole circumstances within his
knowledge relating to the offence and to every other
person concerned, whether as principal or abettor, in the
commission thereof. [Para 15] [572-G-H; 573-A]
                                                                B
   Suresh Chandra Bahri vs. State of Bihar 1995 Supp. (1)
sec 80: 1994 (1) Suppl. SCR 483 - relied on.
     1.2. 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             C
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 Evidence
Act provides that an accomplice shall be a competent
witness against an accused person and when the pardon           D
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           E
Evidence Act. [Para 15] [573-F-G]

     1.3. As a rule of prudence, however, as provided in
Illustration (b) to Section 114 of the Evidence Act, the
Court will presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars.
                                                                F
[Para 16] [573-H; 574-A]

    1.4. 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           G
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. The testimony of PW-1 is
corroborated by the statement of PW-1 made before PW-
5 the SHO and recorded in the FIR (Ext. P-12) soon after        H
    560      SUPREME COURT REPORTS             [2013] 11 S.C.R.


A the incident. 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 admissible as corroborative of the evidence of
B PW-1 in the trial court. [Para 18] [575-C-D, F; 576-B]

          Rameshwar slo Ka/yan Singh vs. The State of Rajasthan
    AIR 1952 SC 54: 1952 SCR 377 - relied on.
       1.5. However, to make sure that what PW~1 has stated
C 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. [Para 19] [576-C]
D
       1.6. Such corroboration of the testimony of PW-1 from
  independent sources, viz. evidence of PW-11 and PW 16;
  post mortem report, report of the Forensic Science
  Laboratory (Ext.P-56); discovery of motorcycle
E (mentioned in FIR and by PW-1) on the disclosure
  statement made by one of the accused; and recovery of
  the bag of the deceased. Thus, there is direct and
  circumstantial evidence independent from ~he evidence
  of PW-1 in support of the prosecution story given out by
  PW-1 and to connect the respondents-accused in the
F offences of rape and murder. [Para 19) [576-C-D, E-G; 576-
  B-C]

      1.7. It is correct that there were some inconsistencies
  between the evidence of PW-1 and PW5, between the
G 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
  MaQistrate and the evidence of PW-1 before the Court, but
  these inconsistencies and contradictions were not
H material enough to doubt the story given out by PW-1 that
   STATE OF RAJASTHAN v. BALVEER @ BALLI                  561


the respondents-accused committed rape on the                    A
deceased and then killed her. (Para 20] [577-D-E]

     1.8. Section 27 of the Evidence Act, states that when
any fact is deposed to as discovered in consequence of
information received from a person accused of any                8
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 the respondents-
accused were in police custody, the information given by         C
them pursuant to which the motorcycle of one of the
accused and the bag of the deceased were recovered,
can be utilized against the respondents-accused
respectively for the purpose of corroboration of the
testimony of PW-1 that they committed rape and murder
of the deceased. (Para 21] [578-A~C]                             D

     1.9. It is found from the evidence of Investigation
Officer (PW-32) that he had seized the black colour rexine
bag from respondent-accused and this very bag was
identified by the parents of the deceased (PW-6 and PW-          E
7). 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 PW-7 identified the right bag. It is, thus,
clear that the bag of the deceased that was seized from          F
accused 'B' was identified as the bag of the deceased
and accused '8' has not explained in his statement under
Section 313 Cr.P.C. as to how the bag of the deceased
came to his possession. [Para 22] [578-E, H; 579-A-B]

    1.10. Thus, the testimony of PW-1 was corroborated           G
by material particulars qua the respondents-accused and
the only possible view on the evidence on record in the
present case is that both the respondents committed the
rape and murder of the deceased and the trial court had
                                                                 H
    562    SUPREME COURT REPORTS            [2013] 11 S.C.R.


A rightly convicted them under Section 376(2)(g) and
  Section 302 read with Section 34, IPC. 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
s 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. [Para 23] (579-B-E]
c      Ramprasarl vs. State of Maharashtra 1999(5) SCC 30:
  1999 (3) SCR 519; State of Andhra Pradesh through CBI vs.
  M. Durga Prasad and Ors. AIR 2012 SC 2225; Haroom Haji
  Abdulla vs. State of Maharashtra AIR 1968 SC 832: 1968
  SCR 641; State of Kera/a vs. P. Sugathan and Anr. (2000) 8
D SCC 203; Chandan and Anr. vs. State of Rajasthan (1988)
  1 SCC 696: 1988 (2) SCR 599; Bhiva Dou/u Patil vs. State
  of Maharashtra AIR 1963 SC 599: 1963 SCR 830; Piara
  Singh vs. State of Punjab AIR 1969 SC 961: 1969 (3) SCR
  236 - referred to.
E
       2. The reasons given by the trial court for imposing
  death penalty do not make out the case to be a rarest of
  rare cases in which death sentence could be awarded to
  the respondents. For awarding death sentence, special
F 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 the present case, there are materials to show
  that the crime committed by the respondents, both rape
G and murder of the deceased, were 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. Therefore, the
  respondents should be punished for life for the offence
  of murder under Section 302, IPC. For offence under
H
   STATE OF RAJASTHAN v. BALVEER @ BALLI                563


Section 376(2)(g), IPC, the trial court has awarded the        A
punishment of 10 years rigorous imprisonment which
would be maintained. [Para 24] [580-A-B, D-F]

    Bachan Singh vs. State of Punjab AIR (1980) SC 898:
1980 (2) SCC 684 - followed.                                   B
                    Case Law Reference:
    1968 SCR 641               referred to        Para 8
    (2000) 8 sec 203           referred to        Para 9
                                                               c
    1988 (2) SCR 599           referred to        Para 12
    1963 SCR 830               referred to        Para 14
    1969 (3) SCR 236           referred to        Para 14
    1999 (3) SCR 519           referred to        Para 14      D

    1994 (1) Suppl. SCR 483 relied on             Para 14
    1952 SCR 377               relied on          Para 18
    AIR 2012 SC 2225           referred to        Para 23      E
    19so (2) sec 684           followed           Para 24
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 942 of 2006.
    From the Judgment & Order dated 09.01.2006 of the High     F
Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in
D.S. Criminal Death Reference No.1 of 2005, D.B. Criminal
Appeal Nos. 261/2005, 347/2005 and 431/2005.
     Dr. Manish Singhvi, AAG, Amit Lubhaya, Milind Kumar for   G
the Appellant.
    Ranbir Singh Yadav, Anzu K. Varkey, P. Kakra, K.B.
Upadhyay, Rajesh Pathak, Pushkar Anand, S.R. Setia for the
Respondents.
                                                               H
    564      SUPREME COURT REPORTS               (2013] 11 S.C.R.


A         The Judgment of the Court was delivered by
         A.K. PATNAIK, J. 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.
8
    Facts:
          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
c   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
D   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
E   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
F   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
G   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
H   towards Khedali. The Station House Officer then examined the
     STATE OF RAJASTHAN v. BALVEER @ BALLI                     565
                [A.K. PATNAIK, J.]
dead body of Rekha (hereinafter referred to as 'the deceased')         A
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
                                                                       B
1.0.').
     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 1.0. submitted an
application before the Chief Judicial Magistrate, Bharatpur, for       c
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         D
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         E
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               F
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           G
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)(9), IPC, and
sentenced them to death with fine of Rs.1,000/- each and in
                                                                       H
    566      SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A   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
B    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
C   164, Cr.P.C., or in his statement before the 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
D   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
E   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
F
       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
G 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 submitt~d 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
H thereafter all the three proceeded towards Mandawar and next
    STATE OF RAJASTHAN v. BALVEER @ BALLI                     567
               [AK. PATNAIK, J.]
to Mandawar at the by-pass road, Balveer met them and                A
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               B
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 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       C
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.                                                            D
      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           E
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         F
is not illegal merely because it proceeds upon the
uncorroborated testimony of an 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         G
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           H
    568     SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A   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
8   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 was running towards the
C   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 h.e went to the place of incident and found a dead
    body of a girl lying at the place of incident. He submitted that
D   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 girf'
E   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
F   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 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
G   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
H
   STATE OF RAJASTHAN v. BALVEER@ BALLI                    569
              [A.K. PATNAIK, J.]
semen has been detected on the underwear and private parts        A
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       8
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 slo Kalyan Singh v. The State of Rajasthan [AIR c
1952 SC 54] in which this Court has held that the rule, which
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
                                                                   0
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 E
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 F
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 Kera/a v. P. Sugathan & Anr.
[(2000) 8 sec 203] for the proposition that pnce an accomplice
becomes an approver by a valid grant of pardon under Section G
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.8. Upadhyay, learned counsel appearing
for the respondent no.2-Ram Niwas, submitted that the             H
    570      SUPREME COURT REPORTS               [2013] 11 S.C.R.


A 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
8 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
C her that at Bharatpur, Rajesh (PW-1) used to tease her and for
  this reason she did 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 1.0. (PW-32) has stated
  that the rape and the murder took place at different places as
D 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
E 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
F 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 evidence of PW-14, the
G 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
H Niwas to commit rape on the deceased.
   STATE OF RAJASTHAN v. BALVEER @ BALLI                     571
              [A.K. PATNAIK, J.]
      11. Mr. Upadhyay next submitted that two of the villagers,    A
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   B
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           C
the motorcycle alleged to have been used for 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
                                                                     D
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 E
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· F
case the view taken by the High Court that the ~vidence 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 with by this Court in
exercise of its power under Article 136 of the Constitution.         G
      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 H
    572     SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A   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
8   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
c of the approver in material particulars qua each accused
  person. He submitted that the corroboration of the 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
D 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
E 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:
F
       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
G privy to the crime, otherwise he removes himself 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
H
   STATE OF RAJASTHAN v. BALVEER @ BALLI                    573
              [A.K. PATNAIK, J.]
of his making a full and true disclosure of the whole              A
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   8
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          c
    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 preventthe
    escape of the offenders from punishment in heinous
    offences for lack of evidence. There can therefore be no
                                                                   0
    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 or
    indirectly in or privy to an offence."                         E
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      F
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    G
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
                                                                   H
    574       SUPREME COURT REPORTS                [2013] 11 S.C.R.


A 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
  slo 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
8
  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
C 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."
D
  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,
E 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-
F 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
G 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
H towards Mandawar. He has further stated that at the by-pass
   STATE OF RAJASTHAN v. BALVEER@ BALLI                   575
              [A.K. PATNAIK, J.]
road, Balveer met them and Balveer was given lift on the A
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 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 8
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   c
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
                                                                  0
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 E
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 F
(Ext. P-12) soon after the incident on 01.11.2003. In
Rameshwar slo Kalyan Singh v. The State of Rajasthan
(supra), this Court after extracting Section 157 of the Indian
Evidence Act has held:
    "The se.ction makes no exceptions, therefore, provided the G
    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 H
    576      SUPREME COURT REPORTS                [2013] 11 S.C.R.


A         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
8 source of an accomplice (PW-1), the 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
C 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
D 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 girf'
E 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
F 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
G 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 sa/war of the deceased. In the FIR (Ext.P-12)
  prepared on the basis of the information given out by PW-1 soon
H
    STATE OF RAJASTHAN v. BALVEER @ BALLI                    577
               [A.K. PATNAIK, J.]
  after the incident, the motorcycle of Ram Niwas was described      A
  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           8
  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 evidence of PW-
  1 in support of the prosecution story given out by PW-1 and to     C
  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, D
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 E
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
intimat~ relationship between Ram Niwas and the deceased
but if evidence of PW-1 corroborated in material particulars F
established that Ram Niwas did commit rape and 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       G
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          H
    578        SUPREME COURT REPORTS                    (2013] 11 S.C.R.


A 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.
8
  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 the bag of the deceased were recovered can be
C 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
D 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
E 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 Tehsiltlar, go and identify. I do not know
F         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
G         say to the Tehsildar that I have come to identify a black
          colour bag. 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
H that besides the bag of the deceased four other bags which
   STATE OF RAJASTHAN v. BALVEER@ BALLI                       579
              [A.K. PATNAIK, J.]
looked alike were placed at the time of identification and            A
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.                       8
     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                c
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 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        D
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      E
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 off~nce under Section 302, IPC, the accused         F
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    G
has recorded special reasons for imposing the punishment of
death on the respondents and these are that 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     H
    580      SUPREME COURT REPORTS                 [2013J 11 S.C.R.


A were not entitled for any leniency and should be punished with
  death. In our view, the reasons g1xen 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 r.espondents. As· has been
  held by the Constitution Bench of this Court in Bachan Singh
B 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, i~ i~ quite clear to
          us that for making the choice of punishment or for
          ascertaining the existence or absence of "special reasons"
c         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
D 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
  cruel, but there were no materials to establish that the character
  of the respondents was of extreme depravity so as to make
E them liable for the punishment of death. We are, th.us, 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.
F
       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
G 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.
    K.K.T.                                          Appeal allowed.
H