{"id":35124,"date":"1994-03-01T00:00:00","date_gmt":"1994-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rampal-pithwa-rahidas-vs-state-of-maharashtra-on-1-march-1994"},"modified":"2018-07-18T06:45:48","modified_gmt":"2018-07-18T01:15:48","slug":"rampal-pithwa-rahidas-vs-state-of-maharashtra-on-1-march-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rampal-pithwa-rahidas-vs-state-of-maharashtra-on-1-march-1994","title":{"rendered":"Rampal Pithwa Rahidas vs State Of Maharashtra on 1 March, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rampal Pithwa Rahidas vs State Of Maharashtra on 1 March, 1994<\/div>\n
Equivalent citations: 1994 SCC (2) 685, \t JT 1994 (2)\t135<\/div>\n
Author: S N.P.<\/div>\n
Bench: Singh N.P. (J)<\/div>\n
           PETITIONER:\nRAMPAL PITHWA RAHIDAS\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT01\/03\/1994\n\nBENCH:\nSINGH N.P. (J)\nBENCH:\nSINGH N.P. (J)\nREDDY, K. JAYACHANDRA (J)\n\nCITATION:\n 1994 SCC  (2) 685\t  JT 1994 (2)\t135\n 1994 SCALE  (1)785\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nDR  A.S.  ANAND, J.- These two appeals,\t by  special  leave,
\narise  out  of\ta  common judgment  of\tthe  High  Court  of
\nJudicature,  Appellate Side, at Bombay (Nagpur Bench)  dated
\n27th,  28th  and 31 st October, 1988, confirming  the  death
\nsentence passed by the Addl.  Sessions Judge, Chandrapur for
\nan  offence  under  Section 302 IPC on\tfive  appellants  in
\nCriminal  Appeal  No.  201 of  1989.   Three  convicts\twere
\nacquitted  by the High Court and Criminal Appeal No. 466  of
\n1989  has  been filed by the State  of\tMaharashtra  against
\ntheir  acquittal.   This judgment will dispose of  both\t the
\nappeals.\n<\/p>\n
2.Nine\t accused  persons,  namely,   Rampal,\tFulchand,
\nBabulal,   Sheoprasad  alias  Dhunda  Chunbaliya,   Basawan,
\nShamlal, Pratap, Ramkishore and Ramcharan, were sent up\t for
\ntrial  for  committing\tthe murder of  Tanba  Gedam,  Baldeo
\nsingh, Raman Chandra, Prakash Vehadkar and Raju Deshmukh and
\nfor causing injuries to Surendra PW 31, Mahendra singh PW 33
\nand Doma PW 5 on July 3, 1984 between 7.30 p.m. and 10\tp.m.
\non  the Highway Chandrapur Ballarshah Road while  committing
\ndacoity. (One other accused who had also been arrayed by the
\npolice died before the trial in police custody).  They\twere
\ntried  for offences under Sections 302, 307, 342  read\twith
\nSection\t 149  and Sections 395 and 396 of  IPC.\t  Accused  1
\nRamcharan  Rahidas  turned an approver and was\texamined  as
\nsuch.\tThe  learned  Addl.  Sessions  Judge  accepting\t the
\ntestimony   of\tthe  approver  and  the\t other\t prosecution
\nevidence,  convicted all the eight accused  mentioned  above
\nand  awarded the sentence of death to all the eight  accused
\nfor  the  offence under Sections 302\/149 IPC,  and  for\t the
\noffences  under\t Sections  307 and  395,  the  accused\twere
\nsentenced to suffer rigorous imprisonment for two months and
\nto  pay\t a  fine  of Rs 50 each and  in\t default  they\twere
\ndirected  to  suffer rigorous imprisonment for\tseven  days.
\nThe learned Addl.  Sessions Judge submitted the\t proceedings
\nto the High Court for confirmation of the sentence of  death
\nand the convicted eight accused also filed a criminal appeal
\nchallenging their conviction and sentence in the High Court.
\nWhile  the  appeal  of appellants  Basawan  Rahidas,  Pratap
\nRahidas\t and Ramkishore Rahidas was accepted and  they\twere
\nacquitted of all the charges, the appeal filed by Rampal and
\nfour others was dismissed and their conviction under Section
\n302  IPC was maintained.  The High Court also confirmed\t the
\nsentence  of death on Rampal and the other four\t appellants,
\nwho  have filed Criminal Appeal No. 201 of 1989.  The  State
\nof  Maharashtra\t has filed Criminal Appeal No. 466  of\t1989
\nagainst the acquittal of Basawan and two others.\n<\/p>\n
77<\/span><\/p>\n
3.The prosecution case is that on July 3, 1984, near K.M.
\nNo.  9\ton  Chandrapur-Ballarshah Road which is\t a  part  of
\nHighway\t No.  84, construction of two buildings\t of  a\tseed
\ncentre\twas  in\t progress.  Doma and Tanba  were  acting  as
\nwatchmen  at  the construction site.  At  about\t 7.30  p.m.,
\nwhile  Tanba and Doma were present at the site,\t they  heard
\nthe  approaching  movement of some persons.   One  of  those
\npersons\t on reaching near Doma and Tanba picked up a  bamboo
\nstick.\tFour other persons surrounded Doma while two  others
\nstarted\t assaulting Tanba with bricks, as a  result  whereof
\nTanba  fell down.  The miscreants assaulted Doma  and  Tanba
\nwith  bricks, stones and rafters and tied them\tby  removing
\nthe dhoti which Tanba was wearing and dragged them both to a
\ndistance  of  about 25 ft. and ultimately threw\t them  in  a
\nditch,\twhich was at some distance away from the main  road.
\nThe  assailants\t on  hearing  the  sound  of  a\t two-wheeler
\napproaching,  went  up to the main road\t and  assaulted\t the
\nrider  of  the\ttwo-wheeler  Raman  Chandra.   After  giving
\nbeating\t to  him, he was dragged and thrown near  the  road.
\nMahendra singh and Baldeosingh were coming on a scooter from
\nthe  Ballarshah\t side and they were also  assaulted  by\t the
\nassailants  with  rafters and sticks.  A bag  containing  Rs
\n7040 and some documents was snatched from them.\t As a result
\nof   the  beating,  Mahendrasingh  and\tBaldeosingh   became
\nunconscious.  Baldeosingh died on the spot.  The  assailants
\nthrew away his body and the scooter on one side of the road.
\nMahendrasingh  who had also become unconscious was later  on
\nremoved\t  to  a\t hospital  at  Nagpur  where   he   regained
\nconsciousness  after four days.\t Prakash Vehadkar  was\talso
\npassing on the road on his cycle at about the same time.  He
\nwas  stopped,  beaten and killed by  the  assailants.\tRaju
\nDeshmukh was driving a scooter with Surendra Chopra and\t was
\npassing through on that road, when his scooter was  stopped.
\nBoth  of them were assaulted by the miscreants as  a  result
\nwhereof\t Raju Deshmukh fell off his scooter and was  trapped
\nunder  it.   The miscreants then caused.  some\tinjuries  to
\nSurendra  and removed his gold ring, wrist-watch and Rs\t 250
\nand  left  him\ton  hearing the\t sound\tof  another  scooter
\napproaching  that side.\t Surendra escaped and ran over\tsome
\ndistance and requested one Mumtaz Ahmed, who was passing  by
\nthe  road  on his scooter, for a lift.\t Mumtaz\t Ahmed\ttook
\nSurendra, to the house of his brother at Ballarshah.   After
\nrendering  some\t medical aid to Surendra,  his\tbrother\t and
\nothers went in search of Raju Deshmukh but could not  locate
\nhim or his scooter.  While going to the site, where Raju and
\nSurendra  had been belaboured, the assistance of the  police
\nsubinspector  Chandrapur was also taken and  he\t accompanied
\nthem  to  the spot and on reaching the place  of  occurrence
\nthey  came to know about the killing of 4-5  persons.\tThey
\nlater  on  found the dead body of Raju Deshmukh.   The\tdead
\nbody of Tanba was also found there.\n<\/p>\n
4.PSI Gadekar of the Traffic Branch at Chandrapur was  on
\nthe  Highway  at  about 2210 hrs. on July 3,  1984  when  on
\nlearning that some dead bodies were lying by the side of the
\nroad,  he along with Constable Ram Das reached the place  of
\noccurrence.  He found the dead bodies lying on the two sides
\nof  the road.  Leaving Head Constable Ram Das to  guard\t the
\nspot, PSI Gadekar went and apprised PI Thakur of  Chandrapur
\nPolice\tStation, who rushed to the scene of  occurrence\t and
\nfound  three  dead bodies and an injured person\t asking\t for
\nwater.\tNear about the same place, two more dead bodies\t and
\ninjured\t Mahendrasingh\twere also found.  Both\tthe  injured
\npersons\t were sent to the General Hospital, Chandrapur in  a
\ntrakker belonging to the Maharashtra State
\n78<\/span>
\nElectricity  Board.  Sub-Inspector Bante of Chandrapur\tCity
\nPolice\tStation went to the General Hospital Chandrapur\t and
\nrecorded  the statement of injured PW Doma, which forms\t the
\nbasis\tof  the\t first\tinformation  report.   A  case\t was
\nregistered  and\t investigation taken in\t hand.\t During\t the
\ninvestigation, the inquest report of Prakash Vehadkar, whose
\nname  could be gathered from a tobacco box which  was  lying
\nnear  him as well as from the cycle which bore his name\t was
\nprepared  and a panchnama drawn up.  Inquest reports of\t the
\nother  dead  bodies were also  prepared.   The\tbloodstained
\nclothes of the injured were seized vide separate panchnamas.
\nSome more articles were seized from different places in\t the
\nneighbourhood of the scene of crime vide separate  panchnama
\nin the morning of 4th July, 1984.  The dead bodies of Raman,
\nRaju,\tPrakash,  Baldeosingh  and  Tanba  were\t  sent\t for
\npostmortem  examination to the General\tHospital  Chandrapur
\nwhere Dr Murkey conducted the postmortem examination on\t the
\ndead bodies and submitted the postmortem reports.\n<\/p>\n
5.We  do  not  consider\t it  necessary\tor  expedient  to
\nreproduce  the injuries noticed on each of the deceased,  as
\nthe same have been given in detail both by the learned Add].
\nSessions  Judge\t and the High Court in the judgment  and  no
\ncontroversy  surrounds them.  Suffice it to notice that\t the
\ninjuries found on each of the dead bodies were, according to
\nDr  Murkey, sufficient in the ordinary course of  nature  to
\ncause the death of the deceased.\n<\/p>\n
6.Dr  Lohare PW examined injured Mahendrasingh PW on  4th
\nJuly,  1984  and found swelling on his right  forearm  lower
\npart, and after an X-ray examination it was discovered\tthat
\nMahendrasingh had suffered fracture of the right ulna.\tDoma
\nPW was also examined by Dr Lohare, who found two lacerations
\non  his\t right occipital region and one\t laceration  on\t the
\ncentral\t occipital  region with swelling on the\t right\thand
\nalso.\tSurendra  PW was examined by Dr Lohare\tand  it\t was
\nfound that he had swelling on both the hands, lower part  of
\nthe right forearm, left knee, right postcuricular of  scalp,
\nlacerations on the left and right forehead, contusion on the
\nright lower thoracic region, tenderness on the left shoulder
\nand an abrasion on the right shoulder.\tThere was no clue as
\nto  the culprits in the case.  Right from the start  of\t the
\ninvestigation  on July 3, 1984, till July 7, 1984 no  arrest
\nwas  made.  None of the injured prosecution witnesses  could
\nthrow any light on the identity of their assailants or those
\nwho  had committed the murders on July 3, 1984 as  according
\nto them assault had been committed by some men wearing masks
\nin  the\t darkness of the night.\t It appears that  since\t the
\ninvestigation  did not yield any results with regard to\t the
\ncrime  committed  on  the  Highway,  demonstrations  against
\npolice inaction were held at Chandrapur and a complete bandh
\nwas  also  observed  for  one  day.   Unprecedented  tension
\nprevailed  in  Chandrapur  on  account\tof  ineffective\t and
\nslipshod  investigation by the police.\tBoth the public\t and
\nthe  press continued to blame the police for their  inaction
\nand the police authorities were naturally concerned.\n<\/p>\n
7.On  July  7,\t1984 accused 1 Ramcharan,  who\tlater  on
\nturned an approver in this case, was sighted by one  Manohar
\nThikare\t PW  near  the metre-gauge line\t which\tpasses\tfrom
\nChandrapur  and\t goes towards Gondia.  He  was\tarrested  in
\nVillage Rajoli within the jurisdiction of Police Station Mul
\nin connection with some other case.  We shall, in the latter
\npart  of the judgment, deal with the story of his arrest  in
\nsome  detail.  According to the prosecution case,  Ramcharan
\naccused is alleged to have disclosed, during  interrogation,
\nat Police Station Mul
\n79<\/span>
\nhat  he\t had taken part in a case of dacoity  on  Ballarshah
\nRoad.\tOn  getting this information the police\t officer  of
\nPolice\tStation Mul informed the superintendent\t of  Police,
\nChandrapur  and\t on  his  direction  Ramcharan\taccused\t  as
\ntransferred  from  Police Station Mul to  Chandrapur  Police
\nStation.   It  is then alleged that after  his\ttransfer  to
\nChandrapur  Police Station at 2 a.m., his statement came  to
\nbe  recorded by the police at Chandrapur Police Station\t and
\nas  sequence  of  the information given by  him,  all  other
\naccused\t  persons  along  with\tone  Murari  Deshmukh\twere
\narrested.   Murari, however, died within three days  of\t his
\narrest\t while\t in  police  custody.\tAccording   to\t the
\nprosecution,  Ramcharan accused made a\tvoluntary  statement
\nunder  Section 164 before the Judicial Magistrate Ist  Class
\non  July 21, 1984 giving details of the crime.\t Armed\twith
\nthat  statement\t of  Ramcharan\taccused,  the  investigating
\nagency\tallegedly effected some recoveries  after  arresting
\nthe  other accused persons as well as at he instance of\t the
\napprover himself.  Ramcharan accused, subsequently turned an
\napprover and the accused were put on trial.\n<\/p>\n
8.The prosecution with a view to connect the accused with
\nthe  crime,  relied  primarily upon  the  testimony  of\t the
\napprover,  besides the statements of the  injured  witnesses
\nand  certain  recoveries,  alleged to  be  of  the  articles
\nbelonging various deceased and the injured persons  effected
\nunder  Section 27 of the evidence Act.\tThe defence  of\t the
\naccused was one of denial and false implication.  Rampal and
\nBasawan, the acquitted accused, also pleaded alibi.   Before
\ndealing\t with  the statements of the  eyewitnesses  and\t the
\nalleged\t recoveries, we shall first deal with the  statement
\nof the approver Ramcharan PW, an accomplice of the  accused,
\nwho turned an approver on grant of pardon. Legal Position :\n<\/p>\n
9.Section 133 of the Evidence Act expressly provides that
\nan accomplice is a competent witness against his  co-accused
\nand  it\t renders admissible the testimony of  an  accomplice
\nagainst\t his  co-accused.   It has,  however,  been  a\tlong
\nsettled practice of law that Section 133 of the Evidence Act
\nmust  be read along with the provisions of Illustration\t (b)
\nto  Section  114 of the Evidence Act.  Section\t114  of\t the
\nEvidence Act empowers the court to presume the existence  of
\ncertain\t facts\tand Illustration (b) in express\t terms\tsays
\nthat  an  accomplice  is unworthy of  credit  unless  he  is
\ncorroborated  in  material particulars.\t Thus,\tit  follows,
\nthat whereas law permits the conviction of an accused person
\non   the  basis\t of  the  uncorroborated  testimony  of\t  an
\naccomplice by virtue of the provisions of Section 133 who is
\ntreated\t as a competent witness, the rule of prudence  which
\nhas rightly been always accepted by the courts, embodied  in
\nIllustration (b) of Section 114 of the Evidence Act, strikes
\na  note of warning\/caution to the courts that an  accomplice
\ndoes  not  generally deserve to be relied upon,\t unless\t his
\ntestimony is corroborated in material particulars.  Thus, as
\na matter of practice and prudence the courts have held\tthat
\nthe testimony of an approver may be accepted in evidence for
\nrecording  conviction  of  an  accused\tperson\tprovided  it
\nreceives   corroboration  from\tdirect\t or   circumstantial
\nevidence in material particulars.  The courts have generally
\n‘looked\t upon  with suspicion the statement of\tan  approver
\nbecause\t he is considered to be a person of low\t morals\t and
\nnot a wholly trustworthy person who for the sake of  earning
\npardon\tfor  himself is willing to let\tdown  his  erstwhile
\naccomplices and therefore before recording conviction courts
\ninsist upon independent corroboration of his testimony.\t  In
\nRam Narain v. State of
\n80<\/span>
\nRajasthan’  Dua, J. while speaking for the Court dealt\twith
\nthe subject and observed : (SCC p. 811, para 8)
\n\t      “An  approver who is admittedly guilty of\t the
\n\t      crime  is an accomplice who has  betrayed\t his
\n\t      associates  and has apparently  sought  pardon
\n\t      for  saving his own skin.\t In other  words  he
\n\t      has   purchased  complete\t immunity  for\t his
\n\t      prosecution  at the expense of his  associates
\n\t      by agreeing to give evidence against them\t for
\n\t      the  prosecution.\t He is, therefore,  presumed
\n\t      not  to be a man of high character or  a\tfair
\n\t      witness.\t His  pardon being  conditional,  to
\n\t      please the prosecution he may well weave\tsome
\n\t      false  detail  into the true  details  of\t the
\n\t      prosecution story and may also falsely involve
\n\t      some  innocent person.  There is thus  a\treal
\n\t      danger of his telling a story true in  general
\n\t      outline  but containing some untruth which  he
\n\t      can  easily  work into the story.\t It  is\t for
\n\t      this  reason  that the courts as a  matter  of
\n\t      prudence\tand caution anxiously look for\tsome
\n\t      corroboration to satisfy their conscience that
\n\t      the  approver’s  testimony  which\t is  clearly
\n\t      admissible  is also worthy of  belief  credit.
\n\t      On  can of course visualise an accomplice\t who
\n\t      is  genuinely repentant for the commission  of
\n\t      his  crime and truly desires to make  a  clean
\n\t      breast   of  the\twhole  affair  by   way\t  of
\n\t      penitence.   But even in such cases the  court
\n\t      has  to  judicially determine  the  extent  to
\n\t      which  his  uncorroborated  testimony  car  be
\n\t      considered  as trustworthy by looking  to\t the
\n\t      other  relevant  material\t and  the  attending
\n\t      circumstances  on\t the  basis  of\t which\t the
\n\t      accused  can be safely a convicted.  The\trule
\n\t      which  seems  to\temerge\tfrom  the  foregoing
\n\t      discussion and judicial decisions is that\t the
\n\t      necessity\t of  corroboration as  a  matter  of
\n\t      prudence\texcept when it is safe\tto  dispense
\n\t      with   such  corroboration  must\tbe   clearly
\n\t      present to the mind of the judge.”\n<\/p>\n
Arrest of Ramcharan and Grant of Pardon to him:\n<\/p>\n
10.The\tabove principle has stood the test of time and\tit
\nis  with this background present in our minds that we  shall
\nexamine\t the testimony of Ramcharan approver PW 49.  How  he
\ncame to be arrested?  How did he become a participant in the
\ncrime?\tWhat role did he play in the crime?  When and how he
\ndecided to be an approver?  These are some of the  questions
\nwhich\twe   shall  have  to  consider\tto   determine\t the
\ncreditworthiness  of  his testimony and the nature  and\t the
\nextent\tof  corroboration  which  is  required\tbefore\t his
\ntestimony  can be relied upon in support of the\t prosecution
\ncase.\n<\/p>\n
11.The\tapprover appeared as PW 49 at the trial.   He  was
\narrested  on July 7, 1984 in some other connection and\ttill
\nhis arrest as already noticed, the investigation had drawn a
\nblank  in  this case and was being criticised  both  by\t the
\nmedia  and  the public alike for not solving the  crime\t and
\nappears to have been under tremendous pressure.\t How did the
\napprover come to be arrested?\n<\/p>\n
12.One Manohar Thikare PW 1, according to the  prosecution
\ncase,  was collecting leaves by the side of  Rajoli  Railway
\nStation\t and had climbed on a tree for that purpose  leaving
\nhis  cycle  by\tthe side of the\t road.\t He  found  approver
\nRamcharan coming that side and touching his cycle.   Manohar
\nPW 1 shouted at Ramcharan PW 49 and got down from the  tree.
\nThe  approver started running away.  Manohar got  down\tfrom
\nthe  tree and riding on his bicycle, instead of chasing\t the
\napprover, who had ‘touched’ his bicycle went home to  inform
\nhis  brother, Sudhakar PW 2 about what he had seen near\t the
\ntree.  Both Manohar PW 1 and Sudhakar PW 2 then came back to
\nthe spot and started looking for the
\n1  (1973) 3 SCC 805, 811: 1973 SCC (Cri) 545
\n81<\/span>
\napprover  and found him standing on the water tank near\t the
\nrailway\t line.\tThey caught hold of him and took him to\t the
\nhouse of Tulsiram, Police Patil PW 3, who sent Sudhakar PW 2
\nwith  Ramcharan approver to Police Station at Mul  with\t his
\nreport Ex. 29, which makes an interesting reading and  reads
\nthus:\n<\/p>\n
To,
\nThe Police Station Officer,
\nPolice Station, Mul.\n<\/p>\n
Subject\t :  In\trespect\t of catching  thief  on\t account  of
\nsuspicion.\n<\/p>\n
Sir,
\nIt is submitted as under-\n<\/p>\n
This  day  July\t 7, 1984,  Saturday,  when  Manohar  Kessari
\nThikare,  resident of Rajoli, had gone for plucking  leaves,
\non a bicycle.\n<\/p>\n
Ramcharan started going away by taking his bicycle.  At that
\ntime, he (Manohar) shouted and with the help of his  brother
\nSudhakar Thikare, he (Manohar) caught Ramcharan and  brought
\nhim.  He (Ramcharan) told his name to be Ramcharan Ramasheth
\nChamber,  resident  of Gondia.\tHence you are  requested  to
\nhold  enquiry into the said matter.  Finish, dated  July  7,
\n1984.\n<\/p>\n
Seen,\t\t\t Sd\/
\n(Sd\/) x Illegible x\t T.K. Thikare,
\nS.D.P.O.\t\t Police Patil Rajoli
\nDt. 8.7.84\t\t Police Station, Mul
\n\t\t\t Tehsil & Distt. Chandrapur.\n<\/p>\n
13.  However, it is neither the case of Manohar PW 1 nor  of
\nSudhakar  PW 2, that approver Ramcharan made any attempt  to
\nsteal the bicycle of Manohar PW 1 let alone that he “started
\ngoing away by taking his bicycle”.  The testimony of Manohar
\nPW 1, which is also supported by panchnama of the spot dated
\nJuly  7, 1984 Ex. 3 1, is only to the effect that  while  he
\nwas plucking the leaves and had kept his cycle on the  road,
\nan  unknown person touched his cycle and when Manohar  PW  1
\nshouted, the unknown person ran away.  Since, the cycle\t had
\nnot been stolen, we are at a loss to understand as to why in
\nthe  first place Manohar PW 1 and his brother Sudhakar PW  2
\nshould have, come back on the cycle to the spot and why\t did
\nthey  chase  Ramcharan approver, who  had  done\t practically
\nnothing, and finding him on the railway water tank took\t him
\nto  PW 3 Tulsiram.  What was the basis for Tulsiram PW 3  to
\nsay in his report Ex. 29 that Ramcharan “started going\taway
\nby  taking  his bicycle” is not at  all\t intelligible?\t Why
\nTulsiram  PW 3 wrote it has not been explained even  by\t him
\nwhile appearing as a witness at the trial.  But then  unless
\nthe  Police  Patil Tulsiram PW 3 had concocted\ta  story  of
\n‘stealing’ there was perhaps no occasion for Tulsiram Police
\nPatil  to send the approver to Police Station Mul  with\t his
\nreport\tEx.  29\t and  that appears  to\tbe  the\t reason\t for
\nincorporating  the story of alleged theft of the bicycle  by
\nthe  approver by Tulsiram PW 3 in his report Ex.  29.\tWhat
\nhappened  subsequently\tat Mul Police Station is  even\tmore
\ncurious.\n<\/p>\n
14.  When  a Kotwal and Sudhakar PW 2 produced Ramcharan  at
\nPolice Station Mul along with report Ex. 29 from Tulsiram PW
\n3,  PSI Chandel PW 41, of Police Station Mul, made an  entry
\nin  the station diary regarding the ‘incident’ and  arrested
\nRamcharan  under Section 109 of the CrPC (not under  Section
\n379  or Sections 379\/511 IPC) and interrogated\thim,  during
\nthe course of which,
\n82<\/span>
\naccording  to the prosecution case, Ramcharan  disclosed  of
\nhaving\ttaken  part  in a dacoity on the  Highway.   In\t the
\nentry, in the station diary book Ex.  P-7, however, there is
\nno  mention  that  PW 41 PSI Chandel  had  arrested  accused
\nRamcharan under Sections 41\/109 CrPC.  When asked during the
\ncrossexamination  as to whether he had prepared\t the  arrest
\npanchnama of accused Ramcharan, PW 41 Chandel replied in the
\nnegative.   When  questioned  as to  why  the  approver\t was
\narrested  under\t Section  109 CrPC when\t that  was  not\t the
\npurport of Ex. 29 sent by Tulsiram PW 3, the witness  stated
\nthat “if any person is found pickpocketing at bus stand,  we
\narrest him under Sections 41\/109 CrPC” but could not explain
\nas  to\tthe basis on which accused  Ramcharan  was  arrested
\nunder Sections 41\/109 CrPC.  It was suggested to Chandel  PW
\n41  during  the cross-examination that since  in  the  area,
\npublic\tdiscontent had been increasing daily,  therefore,  a
\nfalse story was concocted and Ramcharan accused was  planted
\nas  an accused.\t He denied the suggestion.  The\t prosecution
\nhas  attempted to show that Manohar PW 1 and Sudhakar  PW  2
\nwere  independent  witnesses, who had made  a  complaint  to
\nPolice\tPatil  Tulsiram PW 3 in a routine  manner  and\tthat
\nTulsiram  Patil\t PW 3 sent Ramcharan to Police\tStation\t Mul
\nalso  in  a  routine manner along with\this  report  in\t the
\nofficial   routine.   The  truth  however,  appears  to\t  be
\notherwise.   During  his  deposition  PW  1  Manohar,  after
\nstating that Ramcharan was sent to the police station by the
\nPolice\tPatil Tulsiram PW 3 along with his brother  Sudhakar
\nPW  2  and  Vilas Kilake Police Kotwal at  about  10.  a.m.,
\nadmitted   in  his  cross-examination  that  “Police   Patil
\nTulsiram is my cousin brother”.\t He, therefore, proverbially
\nspeaking let the cat out of the bag!\n<\/p>\n
15.  It appears to us that Tulsiram Patil PW 3 utilized\t the
\nservices  of his cousins Manohar PW 1 and Sudhakar PW  2  to
\nplant Ramcharan and have him arrested under Section 109\t IPC
\nat Police Station Mul with the assistance of PW 41  Chandel.
\nThe entire story regarding arrest of Ramcharan appears to be
\na  police concoction and padding with a view to silence\t the
\nlarge  discontent  against  the police\ton  account  of\t its
\ninaction  to  apprehend culprits, who were  responsible\t for
\ncommitting  five  murders on the  Highway,  besides  causing
\ninjuries to three witnesses.\n<\/p>\n
16.  At this stage it would also be relevant to take  notice
\nof  the\t report\t sent by PW 41\tChandel\t while\ttransferring
\nRamcharan  to  Police Station Chandrapur City.\tEx.  197  is
\nthat  report and it also makes an interesting  reading.\t  It
\nreads as follows:\n<\/p>\n
\t      “Police Station Mul,
\n\t      Date: 8.7.1984.\n<\/p><\/blockquote>\n
\t      To,
\n\t      The Police Inspector,
\n\t      Police Station, Chandrapur City.
\n\t      Sub:Regarding  transfer  of Ramcharan  son  of
\n\t      Ramashray Rahidas, the accused arrested  under
\n\t      Sections\t41(2)\/109 of CrPC at Police  Station
\n\t      Mul and his relevant documents.
\n\t      Sir,
\n\t      Report is submitted as under
\n\t      On  July\t7,  1984, Police  Patil\t of  Village
\n\t      Rajoli sent a person named Ramcharan Ramashray
\n\t      Rahidas  and  written  report  to\t the  Police
\n\t      Station Mul, through Sudhakar Shivram
\n\t      Thikre.  It was stated in the said report that
\n\t      83<\/span>
\n\t      the person named Ramcharan Rahidas was  caught
\n\t      while  he was trying to take away the  bicycle
\n\t      of  Manohar Shivram Thikare.  On the basis  of
\n\t      the  said report 1 personally went to  Village
\n\t      Rajoli  and  made an inquiry  about  the\tsaid
\n\t      incident.\t  During the course of\tinquiry\t the
\n\t      following facts were came to be known:
\n\t      At  about 7 a.m. Manohar Shivram Thikare\twent
\n\t      on  a  bicycle to pluck the  leaves  of  Palas
\n\t      tree.   He kept the bicycle on foot track\t and
\n\t      climbed  up  the\tPalas  tree.   When  he\t was
\n\t      plucking\t the  leaves  of  Palas\t tree,\t the
\n\t      aforesaid\t person named Ramcharan Rahidas\t was
\n\t      going by the road.  At that time he (Ramcharan
\n\t      Rahidas) touched the said bicycle, as a result
\n\t      of  which\t Manohar Thikre\t shouted.   On\tthat
\n\t      Ramcharan\t ran  away from\t there.\t  Thereafter
\n\t      Manohar Thikre went to the village by the said
\n\t      bicycle  and  brought  his  brother   Sudhakar
\n\t      Thikre  on  the said bicycle.   At  that\ttime
\n\t      Ramcharan\t was on the cistern.  Then the\tsaid
\n\t      two  brothers  caught  Ramcharan\tRahidas\t and
\n\t      brought him to the Police Patil of Rajoli.
\n\t      On  the  basis of the said  inquiry  since  it
\n\t      reveals that, the said incident was not theft,
\n\t      there was no intention of committing theft  of
\n\t      a\t bicycle, the accused Ramcharan Rahidas\t has
\n\t      no place of residence, he has been arrested at
\n\t      1935  hrs.  of  July 7,  1984  under  Sections
\n\t      41(2)\/109 CrPC.\n<\/p><\/blockquote>\n
\t      On  making  minute  inquiry  to  the   accused
\n\t      Ramcharan\t Rahidas regarding other crimes,  he
\n\t      disclosed that he was related to Crime No. 135<\/span>
\n\t      of  1984\tunder Sections 396 and\t397  of\t IPC
\n\t      registered at Police Station Chandrapur  City.
\n\t      Since accused Ramcharan Rahidas is related  to
\n\t      the said crime, he has been transferred to the
\n\t      crime    registered   at\t  Police    Station,
\n\t      Chandrapur.  Relevant documents have been also
\n\t      submitted\t along\twith the report\t for  taking
\n\t      proper action.\n<\/p><\/blockquote>\n
\t      PSI Mul,
\n\t      Dt. 8.7.1984″\n<\/p><\/blockquote>\n
\t      (emphasis supplied)\n<\/p><\/blockquote>\n
17.  PW\t 56  Jamdar  Singh  who at  the\t relevant  time\t was
\nattached  as Police Inspector at Police Station\t Chandrapur,
\nwhile  deposing\t about the transfer  of\t accused  Ramcharan,
\nstated that on July 8, 1984 the DSP Chandrapur informed\t him
\non telephone that one person in connection with the dacoity-
\ncum-murder  which took place on July 3, 1984 on\t Chandrapur-
\nBallarshah  Road  was  arrested\t at  Mul  and  his  name  is
\nRamcharan, and on getting that information PW 56 sent a jeep
\nto  Mul\t to  bring Ramcharan approver  to  the\tCity  Police
\nStation.  PSO Chandel of Police Station Mul came along\twith
\nthe  accused  to police station and handed over\t the  papers
\nregarding  the arrest of Ramcharan at about 2 a.m.  On\twhat
\nbasis  Crime No. 135 of 1984 under Sections 396 and 347\t IPC
\nPolice\tStation Chandrapur City came to be  incorporated  in
\nthe transfer note Ex. 197 by PW 41 Chandel of Police Station
\nMul has not been explained by the prosecution?\n<\/p>\n
18.  After  interrogating  Ramcharan,  PW  56  Jamdar  Singh
\nplaced him under arrest and went on to depose that “he\tgave
\nme information about the persons involved in the  commission
\nof  offence  of\t dacoity-cum-murder  which  took  place\t  on
\nChandrapur-Ballarshah  Road.  On his information,  I  caught
\nall  the  accused  persons  and\t deceased  Murari”.    While
\nRamcharan  was\tin  police  custody  on\t July  8,  1984,  he
\nallegedly disclosed in presence of panchas, Fakru and Patel,
\nthat he
\n84<\/span>
\nhad kept a bag at the house of accused Babu Lal and that  he
\nwas willing to produce the same.  His statement Ex. 105\t was
\nreduced into writing.  Accused Ramcharan then went with\t the
\npolice party, in a police jeep, to the house of Babulal\t and
\nafter going inside the house, brought out one black bag\t Ex.
\n144 which was seized vide seizure memo Ex. 103.\t The bag was
\nempty.\tPW 56 then deposed that there were some\t bloodstains
\npresent\t on  the  loongi which\tRamcharan  was\twearing\t and
\ntherefore, Ramcharan was asked to change the loongi and\t his
\nbloodstained  loongi  was  seized  vide\t Ex.  102.   In\t the
\ntransfer memo Ex. 197 there is no mention of the presence of
\nbloodstains on the loongi of accused Ramcharan while he\t was
\nin  custody of PW 41 Chandel at Police Station Mul  and\t the
\nprosecution has not been able to explain as to when and\t how
\nhis  loongi  got  bloodstained\tmore  particularly  when  on
\nRamcharan’s  own showing he had taken no part whatsoever  in
\nthe assault made on the deceased or the injured persons.\n<\/p>\n
19.  Deposing  about the recovery of the black bag Ex.\t144,
\nat  the\t instance  of accused Ramcharan, one  of  the  panch
\nwitnesses  Fakruddin PW 27, stated that one of\tthe  accused
\nwhose name or face he did not remember took the police party
\nto “his house and from his house produced one bag”.  He went
\non  to say that before producing the bag no talk  had  taken
\nplace  with  the  said accused but added  that\t“there\twere
\nclothes in the bag.  Police had removed the clothes from the
\nbag and had shown us.  There were clothes stained with blood
\nin  the\t said bag.  The bloodstained clothes  contained\t one
\nbaniyan and other clothes which I do not remember.  The said
\nclothes\t were  tied in a bundle and were  sealed.   We\tthen
\nreturned to Police Station Ballarshah.”\n<\/p>\n
20.  The  evidence  of Fakruddin PW 27 with  regard  to\t the
\nalleged disclosure statement made by Ramcharan coupled\twith
\nthe testimony of PW 56 Police Inspector Thakur goes to\tshow
\nthat  the story regarding recovery of the black bag Ex.\t 144
\nat the instance of Ramcharan accused is not free from  doubt
\nbecause\t whereas according to the disclosure  statement\t the
\napprover had kept in his house an empty black bag, but\twhat
\nwas  produced by Ramcharan from the house of Babulal  was  a
\nbag  containing bloodstained clothes.\tThese  discrepancies
\nrender the so-called recovery doubtful.\n<\/p>\n
21.  We\t shall\tnow  deal  with\t the  manner  in  which\t the
\nconfessional  statement of Ramcharan under Section 164\tCrPC
\ncame  to  be recorded on July 21, 1984 and its\tcontents  as
\nalso  the  manner of grant of pardon to him  more  than\t two
\nyears  later.\tAs already noticed,  accused  Ramcharan\t was
\narrested  on  July 7, 1984 at Police Station  Mul  and\tthen
\ntransferred to Chandrapur Police Station on July 8, 1984  at
\n2  a.m. and thereafter arrested in the dacoity case.   While
\nhe was in custody at Chandrapur he is alleged to have made a
\nstatement  before the Judicial Magistrate Ist Class on\tJuly
\n21,  1984.  He appeared before the Judicial  Magistrate\t Ist
\nClass  Shri  Bhola on July 19, 1984 and offered\t to  make  a
\nconfessional  statement.   He was given 24  hours’  time  to
\nthink  and reflect whether he wanted to make  any  voluntary
\nconfession.   The  learned Magistrate Chandrapur  Shri\tV.K.
\nBhola  after  cautioning accused Ramcharan that he  was\t not
\nbound  to  make any confession and that if he  did  so,\t any
\nconfession that he may make, can be used as evidence against
\nhim,  recorded\this  confessional statement  Ex.  225  under
\nSection 164 CrPC in which Ramcharan, inter alia, stated that
\nhe  is an inhabitant of Banda District and that\t his  father
\nwas working as a labourer at Gondia.  He came to Gondia from
\nBanda and stayed with his
\n85<\/span>
\nfather\tfor two days, when one person by the name  of  Kewat
\nwho was a resident of Ballarshah met him at Gondia.  He told
\nKewat that he wished to do some work, on which he was  asked
\nto come to Ballarshah where Kewat would get him engaged\t for
\nwork  on  daily\t wages\tof Rs 14-Rs 15\tper  day.   That  on
\nSaturday  he  came  to Ballarshah along with  Kewat  and  on
\nSunday\the  worked  on a truck.\t He was paid  Rs  7  towards
\nlabour and he told Kewat that he was not willing to work  on
\nRs  7  per day and then went away from the house  of  Kewat.
\nThe full name of Kewat as disclosed by Ramcharan is Inderpal
\nKewat  but no such witness has been produced or examined  at
\nthe  trial.   After  leaving  Kewat’s  house,  Ramcharan,  a
\nstranger  in  the locality, went in search of  some  persons
\nbelonging  to  his  district  and  found  Shamlal,  Babulal,
\nFulchand  and  Sheoprasad  and requested  them\tto  get\t him
\nengaged\t somewhere  for labour work and they told  him\tthat
\nwhenever  they could find some work for him they  would\t get
\nhim  engaged.  He went to the house of Babulal and  remained
\nin  the\t house of Babulal on Monday for the whole  day.\t  On
\nTuesday Babulal told him that he could not get him any\twork
\nat  that place.\t In the noon of Tuesday, Fulchand,  Shamlal,
\nSheoprasad  and five other persons gathered at the house  of
\nBabulal and Ramcharan heard them say “that they are in\tneed
\nof money and hence they wish to commit robbery”.   Ramcharan
\ntold  them not to do any such thing as they may land  up  in
\njail  and that he would not be a party to it.  All  of\tthem
\nassured him that they would give him money for going back to
\nhis  native place and he reluctantly agreed.  On  that\tvery
\nday in the noon, five persons went to the forest at a  place
\nwhere a new house was being constructed.  In the evening, he
\nalong with Babulal, Shamlal, Fulchand and Sheoprasad went to
\nthe  bus stand and from there went towards Chandrapur.\t All
\nof  them got down at a petrol pump and went on foot  towards
\nthe place where the house was under construction.  The\tfive
\npersons who had earlier gone to the forest also came  there.
\nBabulal,  Shamlal,  Fulchand and Sheoprasad took  off  their
\nclothes\t and  handed  them  over  to  him.   Sheoprasad\t and
\nFulchand took the knives which were given to them by Babulal
\nafter taking them out from an attache case which Babulal had
\nbrought\t with  him.   They  gave  one  small  stick  to\t him
\n(Ramcharan)  and got him seated near the road at a  distance
\nof 15-20 feet from the bridge.\tHe was directed that if\t any
\nvehicle\t arrives  then he should give a signal by  making  a
\nsound with the stick.  That was all the job assigned to him.
\nFulchand, Babulal and Sheoprasad went to the watchmen of the
\nnew  house to take sticks.  He then narrated  how  Fulchand,
\nBabulal and Sheoprasad had gone to the site of\tconstruction
\nand he had seen them cause injuries to both the watchmen  as
\nwell  as the manner in which the  motorcyclist,\t scooterists
\nand cyclewala were stopped and assaulted and added that\t his
\nco-accused  had robbed the money from the persons  who\twere
\nassaulted  by  them.   Ramcharan  then\tstated\tthat   while
\nreturning, they all stayed at one place in the forest.\t The
\nmoney  was with Fulchand and that he was shown a  bundle  of
\ncurrency  notes\t of the denomination of Rs 100\tby  Babulal.
\nThey  reached  Ballarshah  at  about  12\/1  o’clock  in\t the
\nmidnight  and  while  Ramcharan remained sitting  on  a\t cot
\noutside\t the house, the rest, all the nine persons, went  in
\nand remained inside the house of Babulal.  After about\thalf
\nan hour, they all came out of the house of Babulal and\twent
\nto  their  respective houses.  Thereafter, he went  to\ttake
\nmeals  with Babulal and then went to bed.  In  the  morning,
\nSheoprasad  prepared  tea  and all the\tnine  persons  again
\ngathered at the house of Babulal and they told him to return
\nto his native place but since he
\n86<\/span>
\nhad  no money he demanded money from them for going back  to
\nhis  native  place.  “However they did not give\t me  money”.
\n“They  asked  me to take oath in the name of  my  ‘son’\t and
\nfurther\t asked\tme  not to disclose the\t night\tincident  to
\nanyone.\t  I told them that if police asks me, then  I  would
\ndisclose   everything.\t I  took  the  meals  and  came\t  to
\nChandrapur  Railway  Station on foot” and  remained  at\t the
\nRailway Station for the whole day and boarded a narrow-gauge
\ntrain  for going to Gondia without ticket.  On the way,\t the
\nTT  asked  him\tto  get down from the  train  since  he\t was
\ntravelling  without ticket, and went to the Basti  where  he
\nbegged\tfor  meals and again went to the station  and  slept
\nthere  for  the\t night.\t In the morning,  he  inquired\tfrom
\nsomeone\t as to at what distance the next station was and  on
\nbeing  told  that it was at a distance of about\t 3  kos,  he
\nstarted to go there on foot by the railway line.   Ramcharan
\nwent on to state about the manner in which he was thereafter
\narrested.  He stated :\n<\/p>\n
\t      “On  the way, I saw that one boy had kept\t his
\n\t      bicycle aside and he was plucking the  leaves.
\n\t      I\t went  to him and asked him as\tto  at\twhat
\n\t      distance the next station is?  On it, that boy
\n\t      feared  and ran away, and then he\t called\t and
\n\t      brought\this   elder  brother.\t They\tthen
\n\t      apprehended  me and took me to their  village.
\n\t      From  there,  I was taken to  police  station,
\n\t      Mul.   The Daroga (Police Station Officer)  of
\n\t      Mu] Police Station made enquiries with me.   I
\n\t      told each and every fact to him.\tFrom  there,
\n\t      I was brought to Chandrapur.  I disclosed each
\n\t      and every true fact to the Police.”
\n\t      (emphasis supplied)\n<\/p><\/blockquote>\n
22.  The above version given by accused Ramcharan about\t the
\nmanner in which he was arrested is quite different from\t the
\nversion given by PW 1 Manohar, PW 2 Sudhakar, PW 3 Tulsiram,
\nPW  41\tChandel\t and PW 56 Inspector Thakur.   There  is  no
\nmention of the existence of or touching of the cycle in\t the
\nstatement  of the approver recorded under Section 164  CrPC.
\nAccording  to the approver he was not told by the police  to
\nmake  a\t statement under Section 164 CrPC and  that  he\t had
\nvoluntarily appeared before the Magistrate and requested for
\nhis  confessional statement to be recorded and that  he\t was
\nnot  even produced by the police before the  Magistrate\t for
\nthe purpose of getting his statement recorded.\n<\/p>\n
23.  After waiting for more than two years after his  arrest
\nand the statement made by him under Section 164 CrPC,  while
\nRamcharan  was\tin  the judicial lock-up,  he  submitted  an
\napplication  to the District and Sessions Judge,  Chandrapur
\non January 17, 1987 seeking bail and in that application  he
\nsaid that he was being forced to become an eyewitness in the
\ncase  although\the  knew  nothing  about  the  crime.\tThat
\napplication   Ex.  20  dated  January  17,  1987  makes\t  an
\ninteresting reading.  It reads :\n<\/p>\n
.lm15
\n“IN THE COURT OF DISTRICT AND SESSIONS JUDGE, CHANDRAPUR.
\nSubject\t :  For grant of bail or for final  hearing  of\t the
\ncase.\n<\/p>\n
Applicant: Ramcharan s\/o Ram Asre.\n<\/p>\n
Offence under Sections 396 and 397 of IPC.\n<\/p>\n
Sir,
\nThe applicant submits as under
\nThat  the above applicant is undergoing imprisonment in\t the
\nsentence of 2 years, 6 months, under Sections 396 and 397 of
\nIPC,  in  the District Prison  Chandrapur.   The  Chandrapur
\nDistrict City Police (Crime Branch), in order to avoid their
\ntroubles produced the above applicant in the Court as
\n87<\/span>
\neyewitness;  and thereafter sent him in the Jail.  In  fact,
\nthe applicant does not know anything about this crime.\t The
\napplicant  being a respectable person and because of  family
\nworries,  he cannot keep mental balance.  The  applicant  is
\nthe  karta  (manager) of his family.  This  Hon’ble  Session
\nCourt has not heard this case for its final disposal as yet,
\nthough many recent matters have been decided.
\nIt  is,\t therefore, prayed that this Hon’ble  Court  may  be
\npleased\t to grant the application for bail or it is  further
\nprayed that this Hon’ble Court may be kind enough to decide,
\nthe case finally and oblige the applicant.
\nThe applicant hopes that this Hon’ble Court would look\tinto
\nthe matter and consider this application.\n<\/p>\n
Dt. 17.1.1987\t\t\t\tYours faithfully\nPlace : Lock-up of District Court,\nChandrapur\t\t\t\tThumb Impression of\n\t\t\t\t   Ramcharan s\/o Ram Asre\"\n\t\t\t\t   (emphasis supplied)\n<\/pre>\n
24.  Bail was, however, declined and he continued to  remain
\nin custody.  According to the prosecution case, on April  1,
\n1987,  Ramcharan accused suddenly and of his own decided  to
\nbecome\tan approver and to make a disclosure of\t all  facts,
\nabout which he had said in his application dated January 17,
\n1987  that he knew nothing.  His application dated April  1,
\n1987 reads :\n<\/p>\n
\t      “To,
\n\t      The District and Sessions Judge,
\n\t      Chandrapur.\n<\/p><\/blockquote>\n
\t      Sub: Case under Sections 396 and 397 of IPC.
\n\t      Through : The Superintendent, District Prison,
\n\t      Chandrapur.\n<\/p><\/blockquote>\n
\t      Sir,
\n\t      I, Ramcharan s\/o Ram Asre, prisoner No. 1\t 803<\/span>
\n\t      state as under:<\/p><\/blockquote>\n
\t      That on July 19, 1984 the police imprisoned me
\n\t      in  this\tjail under Sections 396 and  397  of
\n\t      IPC.   The statement given by me in the  lower
\n\t      court  in\t respect of my case  is\t true.\t The
\n\t      persons against whom the case for dacoity\t and
\n\t      murder  is filed, are all responsible for\t the
\n\t      murder.\tI  was\tonly  looking  after   their
\n\t      clothes.\tI  had\tseen  the  accused   persons
\n\t      committing  the murders of the persons. I\t may
\n\t      be given pardon in this case. I want to be  an
\n\t      approver.\t My  statement, as  given  above  is
\n\t      true.It has been read over to me. Before me,
\n\t\t\t\t    Yours
\n\t      faithfully,
\n\t      Sd\/- Illegible  (T.I.)
\n\t      Jailor,  District Prison, Chandrapur.\tLeft
\n\t      hand thumb\t\t\t\t\t impressio
\nn
\n\t\t\t  of Ramcharan s\/o Ram
\n\t      Asre
\n\t\t\t  No. Jud\/433\/87
\n\t\t     Chandrapur\t      District
\n\t      Prison
\n\t\t     Chandrapur Dt. 1.4.1987
\n\t      Submitted\t to  the  Sessions  Judge,  Sessions
\n\t      Court,   Chandrapur  for\t necessary   further
\n\t      disposal.\n<\/p>\n
\t      Sd\/- Illegible
\n\t      Jailor,
\n\t      District Prison,
\n\t      Chandrapur.”\n<\/p>\n
88<\/span><\/p>\n
25.  The  District  Judge forwarded the application  to\t the
\nAddl.  Sessions Judge, Chandrapur and the Public  Prosecutor
\nwas  directed  on  April  23, 1987  to\tfile  reply  to\t the
\napplication  of\t Ramcharan.  The Public\t Prosecutor  in\t the
\nreply stated :\n<\/p>\n
\t      “The  application\t can be allowed\t after\tsome
\n\t      preliminary   questions  provided\t  he   gives
\n\t      evidence\ton oath sticking up to the  previous
\n\t      statements under Sections 162 and 164 CrPC.”
\n\t      Thereafter,  an order granting  pardon,  which
\n\t      reads as follows, was made on April 24,1987:
\n\t      “Accused\tNo.  1 Ramcharan  son  of  Ramashray
\n\t      Rahidas  is  one of the accused persons  in  a
\n\t      dacoity-cum-murder  case which took  place  on
\n\t      Chandrapur-Ballarshah  Road on July  3,  1984.
\n\t      He has made a confession statement before\t the
\n\t      learned\tJudicial  Magistrate,\tIst   Class,
\n\t      Chandrapur  admitting  that he and  the  other
\n\t      accused are involved in the said offence.\t  He
\n\t      has now asked to pardon him.  The incident has
\n\t      taken place in the jungle at night.  Proof  of
\n\t      guilt   of   all\taccused\t  persons   is\t not
\n\t      forthcoming  satisfactorily.  It is  necessary
\n\t      to bring the rest of the offenders to justice.
\n\t      There is prima facie evidence that the present
\n\t      accused was present on the spot.\tHe is not  a
\n\t      principal\t offender.  He has agreed to make  a
\n\t      true and complete disclosure of all the  facts
\n\t      within his knowledge. 1, therefore, feel\tthat
\n\t      the  said accused should be granted pardon  on
\n\t      condition that he will make true and  complete
\n\t      disclosure   of  all  the\t facts\twithin\t his
\n\t      knowledge\t which he has agreed. 1,  therefore,
\n\t      pass the following order :\n<\/p><\/blockquote>\n
\t\t\t\t  ORDER
\n\t      Accused  No.  1, Ramcharan  son  of  Ramashray
\n\t      Rahidas  is tendered pardon under Section\t 307
\n\t      of CrPC on condition of his making a true\t and
\n\t      complete\tdisclosure  of\tthe  whole  of\t the
\n\t      circumstances within his knowledge relating to
\n\t      the   offence  and  to  every   other   person
\n\t      concerned\t whether as principal or abettor  in
\n\t      the commission thereof.\n<\/p><\/blockquote>\n
\t      Dt.\t\t\t\t    24.4.87.\n\t      Sd\/-\n\t      F.N. Velati\n\t      Addl.  Sessions Judge\n\t      Chandrapur.\"\n<\/pre>\n
26.  Considering  what\tRamcharan  approver  wrote  in\t his
\napplication  seeking  bail, dated January 17, 1987,  one  is
\nleft to wonder as to what made him to write his\t application
\non April 1, 1987 seeking pardon and to be made an  approver.\n<\/p><\/blockquote>\n
In  his\t application seeking pardon and for  being  made  an
\napprover, he inter alia stated that persons against whom the
\ncase for dacoity and murder had been filed were\t responsible
\nfor  the  murder and that “I was only  looking\tafter  their
\nclothes”.   In\this  application  dated\t January  17,\t1987
\nRamcharan   had\t categorically\tasserted  that\the  had\t  no
\nknowledge   of\tthe  crime.   The  statements  in  the\t two
\napplications are irreconcilable.\n<\/p>\n
27.  Indeed  Ramcharan was not confronted at the trial\twith
\nthe   statement\t contained  in\this  bail  application\t but
\nnonetheless  the  fact remains that  while  considering\t the
\ncredibility of the approver and the weight to be attached to
\nhis  statement, the statement made in the  bail\t application
\n(which is part of the judicial record) can be looked into by
\nthe courts.  The High Court, in our
\n89<\/span>
\nopinion, did not consider the significance of this variation
\nin the statement when it observed that :\n<\/p>\n
\t      “We   do\tnot,  therefore,  think\t  that\t the
\n\t      statement in the bail application, in any way,
\n\t      detracts from the credibility of the  evidence
\n\t      which he gave in the court.”\n<\/p><\/blockquote>\n
We  cannot  subscribe to the view of the High  Court.\tWhat
\nmade the approver all of a sudden on April 1, 1987 decide to
\naddress\t a letter to the Sessions Judge that he\t be  granted
\npardon and be made an approver?\t The prosecution as well  as
\nRamcharan  are\ttotally\t silent on  this  aspect.   Was\t the
\napprover being harassed or lured?  In this connection it may
\nbe  relevant to note that soon after Ramcharan approver\t had
\nbeen  shifted to Chandrapur Police Station on July  8,\t1984
\nwithin\t2\/3  days the police had got his  photograph  taken.
\nThis  has been admitted by Ramcharan approver in his  cross-
\nexamination while appearing as PW 49.  It is also borne\t out
\nfrom the record that while Ramcharan approver was in  police
\ncustody at Chandrapur Police Station, Murari accused who had
\nalso been arrested and lodged in Chandrapur Police  Station,
\nas an accused in this case, died while in police custody  on
\nJuly 10, 1984.\tIt was within a few days after the death  of
\nMurari, that Ramcharan appears to have made his confessional
\nstatement  under  Section 164 before  the  learned  Judicial
\nMagistrate  but\t through his application dated\tJanuary\t 17,
\n1987,  he reported to the Sessions Judge that he  was  being
\nasked  to become an eyewitness in the dacoity case, when  he
\nknew  nothing  about that crime.  This should have  put\t the
\ncourt at its guard, when it was considering his\t application
\nfor tender of pardon dated April 1, 1987, but it seems\tthat
\nthe Sessions Court did not apply its mind to that aspect  at
\nall.  Having already made the so-called voluntary  statement
\nunder Section 164 CrPC on July 21, 1984, why did he complain
\nin his application dated January 17, 1987, that he was being
\nforced\tto  become  an eyewitness though  he  did  not\tknow
\nanything  about the crime?  The prosecution has\t offered  no
\nexplanation.  That the statement under Section 164 CrPC\t was
\nmade in 1984 and, therefore, the approver may have forgotten
\nwhat  he  wrote earlier is too feeble an explanation  to  be
\naccepted.   It\tappears to us that  Ramcharan  approver\t was
\nthroughout under pressure to become an approver in the\tcase
\nbecause\t the investigation had drawn a blank and  admittedly
\nthe District Police of Chandrapur was under constant  attack
\nfrom  the media and the public.\t The police, with a view  to
\nescape public wrath appears to have planted Ramcharan as  an
\napprover,  may\tbe  on\tthe promise  that  he  would  escape
\npunishment  and to us even the first confessional  statement
\ndoes not appear to be voluntary one.\n<\/p>\n
28.  The approver on his own showing did not know any of the
\nappellants  other than A-3, A-4, A-5 and A-7.  According  to
\nthe testimony of the injured Prosecution witnesses PW 9,  PW
\n31  and PW 33 the assault was made when it was dark and\t the
\nassailants were wearing masks.\tNo identification parade  at
\nall  was  conducted by the prosecution to have\tany  of\t the
\nappellants identified at a test identification parade either
\nby  the\t approver  Ramcharan or even by\t the  three  injured
\nprosecution  witnesses\tPW  5, PW 31 and  PW  33.   No\ttest
\nidentification\tparade\twas even held to have  the  approver
\nidentified  as a party present at the time of  assault\tfrom
\nthe three injured witnesses.  The identification of all\t the
\nappellants in the court only, in the absence of any  earlier
\ntest  identification  parade, when at the  time\t of  assault
\naccused are alleged to be wearing masks and were unknown  to
\nthe victims or the injured witnesses, is hardly of any
\n90<\/span>
\nsignificance,  in the facts and circumstances of this  case,
\nto positively connect the appellants with the crime.\n<\/p>\n
29.  We\t have already made a reference to the  statement  of
\nRamcharan approver recorded under Section 164 CrPC before he
\nmade  an application for being tendered pardon.\t  After\t the
\ntender of pardon, Ramcharan was examined at the trial not as
\na  first  witness  on behalf of the  prosecution,  which  he
\nordinarily should have been, but as PW 49, almost at the fag
\nend of the trial after he had the occasion to know the other
\nevidence   led\tin  the\t case,\tso  that  he  could   depose
\naccordingly in support of the prosecution.  The statement of
\nRamcharan  as PW 49 is a detailed one and gives\t in  graphic
\ndetails\t not only the manner in which he was  arrested;\t the
\ncircumstances  under  which he came into  contact  with\t the
\nappellants and others before his arrest but also the  manner
\nin  which  murders and dacoities were committed by  his\t co-
\naccused and the part played by him during the commission  of
\nthe  crime.   He  also deposed\tabout  the  recoveries\tmade
\npursuant   to  disclosure  statements  made   by   different
\nappellants  from different places of different\tarticles  on
\ndifferent  dates.   The minute details\tgiven  by  Ramcharan
\napprover at the trial, 3 years after the occurrence, are too
\ngood to be believed and exhibit a remarkable feat of memory!
\nHis  statement at the trial as PW 49 is much  more  detailed
\nthan  the  one\tcontained  in  his  confessional   statement
\nrecorded  under\t Section 164 CrPC within a few days  of\t his
\narrest.\t  Some\tof  the statements made as  PW\t49  find  no
\nmention\t in  his  earlier  confessional\t statement  as\t for
\nexample, that Babulal told him to accompany them and offered
\nto  pay him Rs 200 which he declined and that at that  point
\nof time accused Fulchand slapped him and thereupon he agreed
\nto accompany them and do whatever they would tell him to do.
\nThat apart, he ascribed no part to himself at all during the
\nentire\toccurrence except to take care of an empty  bag\t and
\nclothes\t of some of the co-accused.  Ramcharan also  deposed
\nat the trial that after dacoity had been committed,  accused
\npersons\t advised him to run towards Ballarshah side  but  he
\ndeclined to do so and told them that he will not go anywhere
\nalone and will only accompany them or sit by the side of the
\nroad.\tThe accused persons then caught hold of him  by\t his
\nhands  and took him towards Ballarshah side by the  side  of
\nthe road through jungle.  The approver then stated:\n<\/p>\n
\t      “…  from the spot of incident we went  at  a
\n\t      distance\tof about one mile and sat.   Accused
\n\t      Babulal  lighted\ta  match  stick\t and  I\t saw
\n\t      accused  Fulchand counting the money.   I\t had
\n\t      seen  Rs 100 denomination note in his hand  at
\n\t      that  time.   Six accused\t persons  thereafter
\n\t      went  towards  Ballarshah\t Power\tHouse  side.
\n\t      Myself, accused Rampal, accused Ramkishore and
\n\t      deceased\taccused Murari went from paper\tmill
\n\t      side to Ballarshah city.\tWe went to the house
\n\t      of  accused Babulal.  We reached the house  of
\n\t      accused  Babulal at midnight 12.00 o’clock  or
\n\t      1.00 a.m. At about 2.00 to 2.30 a.m. the\trest
\n\t      of six accused persons also came to the  house
\n\t      of accused Babulal.”\n<\/p><\/blockquote>\n
According  to the approver, on the next day in\tthe  morning
\naccused Babulal advised him to go to his home town and\ttold
\nhim-\n<\/p>\n
\t      “…  that  they\thad  committed\tdacoity\t and
\n\t      murder.  Police were enquiring in the  matter.
\n\t      I\t am  a\tnew  person,  they  would  therefore
\n\t      suspect  and interrogate me.  I  told  accused
\n\t      Babulal  that I had no money to go to my\thome
\n\t      town.  The accused Babulal told me that he had
\n\t      no money and he cannot give me any money.\t  At
\n\t      about  10\t a.m.  I  started  going.    Accused
\n\t      Babulal told me not to tell anybody about\t the
\n\t      incidence.   I  told accused Babulal  that  if
\n\t      anybody\tasks   me   I\twill   narrate\t the
\n\t      incident. … I came to
\n\t      91<\/span>
\n\t      Chandrapur on foot.  I went to B.N.R.  railway
\n\t      station and went to the platform.”
\n\t      They gave him no money.\n<\/p><\/blockquote>\n
30.  From  the statement of the approver appearing as PW  49
\nat  the trial, it emerges that even though  Babulal  accused
\nhad told him that he shall be given 200 rupees, for  joining
\nthe other accused in the commission of the crime, but  after
\ncommission of the crime, he was not given any money and\t was
\ntold  by accused Babulal to go back to his home town and  in
\nspite of his telling Babulal that he had no money, none\t was
\ngiven to him.  If as deposed to by the approver, Babulal and
\nothers\twanted\tthe  approver to go away to  his  home\ttown
\nbecause\t the  police  was already making  enquiries  in\t the
\nmatter\tand  he being a new person could  be  suspected\t and
\ninterrogated, but surprisingly they took no steps by  giving
\nhim at least the railway fare to go back to his home town or
\nput him on the train so that he would be out of the  village
\nand  thus  out\tof the reach of\t the  investigating  agency.
\nWould  the  accused  persons,  who  had\t joined\t a  complete
\nstranger for the commission of the crime, not even take\t the
\nelementary  steps to see that he is out of the\tvillage\t and
\nleft him high and dry?\tWe find it difficult to accept.\t The
\napprover,  has\tonly  tried to\tremain\tclear  either  while
\ncommitting  or for sharing the fruits of the  dacoity.\t The
\nconduct\t of the approver going away without a penny and\t the
\nco-accused letting him go like that belies logic and  common
\nsense.\n<\/p>\n
31.  The  statement  of the approver at the  trial  recorded
\nmore  than three years after the occurrence, is so  detailed
\nthat   it   is\tdifficult  to\tbelieve\t  its\tauthenticity
\nparticularly when it also travels far beyond what was stated
\nby the approver in his confessional statement recorded under
\nSection\t 164 CrPC only a few days after the occurrence.\t  It
\nis  humanly not possible for an illiterate rustic person  to
\nremember  all such minute details as have been given by\t the
\napprover  detailing even the sequence of events\t during\t the
\nalleged occurrence.\n<\/p>\n
32.  The  sequence of events at Ballarshah Road as  detailed
\nby  the\t approver  in his statement in the  court  is  quite
\ndifferent  than the sequence of events as deposed to by\t the
\nthree  injured\teyewitnesses.  The High Court  noticed\tthat
\nthere  was  variations\tin the version\tgiven  by  Ramcharan
\napprover and the three eyewitnesses as regards the  sequence
\nof events and the manner of assault but chose to ignore this
\nby observing :\n<\/p>\n
\t      “But  having  regard  to\tthe  nature  of\t the
\n\t      incident,\t the  fact  that  the  life  of\t the
\n\t      eyewitnesses  was in peril and the  horrendous
\n\t      conditions under which they had to make  their
\n\t      escape, we do not think that the discrepancies
\n\t      regarding the order in which the vehicles came
\n\t      and  the directions in which they went can  be
\n\t      reflecting   upon\t the  credibility   of\t the
\n\t      eyewitnesses.   All this eventually  had\tbeen
\n\t      occurring\t in darkness, and  even\t Ramcharan’s
\n\t      recollection in this respect cannot but be too
\n\t      hazy  because  of the gruesome nature  of\t the
\n\t      incidence.  We, therefore, attach no value  to
\n\t      the discrepancies.”\n<\/p><\/blockquote>\n
This  approach of the High Court does not appeal to us.\t The
\nimportance of the discrepancies had to be considered to test
\nthe credibility and trustworthiness of the approver and\t the
\nHigh Court failed to do so.\n<\/p>\n
33.  A\tcareful\t analysis of the statement of  the  approver
\ngiven  at  the trial coupled with  the\tcircumstances  under
\nwhich  he  came\t to  be\t arrested,  the\t averments  in\t his
\napplication for grant of bail and other circumstances has
\n92<\/span>
\ncreated\t an impression on our minds that the approver  is  a
\nplanted\t witness and his testimony is not at all  worthy  of
\nreliance and credence.\tThe investigating agency appears  to
\nhave  created  false  evidence and  fabricated\tfalse  clues
\ninsofar as the testimony of the approver is concerned.\tFrom
\nall  the attendant circumstances, we are satisfied that\t the
\napprover Ramcharan is not a reliable witness; his arrest was
\nintrinsically unnatural and his self-confessed participation
\nin  the\t crime\twithout taking any active  part\t in  it\t not
\nacceptable.   The approver has claimed to be a spectator  of
\nevery fact and of every moment but asserted that he did\t not
\nparticipate  in\t the  assault  at  any\tstage  and  remained
\nstanding at a distance taking care of the clothes of some of
\nthe  co-accused.  His statement is almost of an\t exculpatory
\nnature.\t   His\tstatement  as  a  whole\t does  not   inspire
\nconfidence.   His story is not worthy of credence.  We\tfind
\nourselves unable to place any reliance on his  untrustworthy
\nand  unreliable evidence and in that view of the matter,  we
\nrefrain even from expressing any opinion about the effect of
\nthe  alleged non-compliance with the provisions\t of  Section
\n306(4) CrPC read with Section 307 CrPC, as admittedly  after
\nthe  grant of pardon by the order dated April 24,  1987,  no
\nstatement  of  Ramcharan  approver  was\t recorded  till\t  he
\nappeared at the trial as PW 49.\t It is only after the  grant
\nof pardon that the status of an accused is changed into that
\nof  a witness and the law enjoins upon the courts to  record
\nthe  statement of the approver immediately after  pardon  is
\ngranted to him so that he may consider himself bound by that
\nstatement and failure to do so at the trial would render him
\nliable for prosecution.\t That exercise was not performed  in
\nthis case.\n<\/p>\n
34.  Once,  we\thave found that the approver  is  a  planted
\nwitness\t and his testimony is not worthy of credence and  is
\nuninspiring   and  unacceptable\t justifying  its   rejection
\noutright,  it will be futile and wholly unnecessary to\tlook
\nfor  corroboration  of his testimony.  It is only  when\t the
\napprover’s evidence is considered otherwise acceptable\tthat
\nthe  court applies its mind to the rule that  his  testimony
\nneeds  corroboration in material particulars  connecting  or
\ntending\t to connect each one of the accused with  the  crime
\ncharged.  We need not therefore detain ourselves to consider
\nthe other evidence led by the prosecution to corroborate the
\ntestimony of the approver.  Suffice it to say that even\t the
\ncorroborating  evidence of identification of the  appellants
\nin  court by the three injured witnesses, in the absence  of
\nany  earlier test identification parade, or  the  recoveries
\nmade  by the associating convenient panch witnesses for\t all
\nthe recoveries conducted from different places on  different
\ndates  at  the\tinstance of different  accused\tbut  in\t the
\npresence of the same panch witness PW 27 is not\t trustworthy
\nor reliable.\n<\/p>\n
35.  From the discussion above, we find that the prosecution
\nhas  not  been\table to prove the case against\tany  of\t the
\nappellants  beyond  a reasonable doubt and  both  the  trial
\ncourt  and  the High Court fell in error in  convicting\t and
\nsentencing the appellants for various offences as noticed in
\nthe earlier part of the judgment.  Their convictions  cannot
\nbe sustained.\n<\/p>\n
36.  We are conscious that five persons have died  unnatural
\ndeaths\ton  the Highway and the crime is  going\t unpunished.
\nBut the courts have to decide the cases on the evidence\t led
\nand not on what ought to have been led.\t The manner in which
\nthe  approver has been introduced in the case  coupled\twith
\nthe  alleged faked recoveries has created an  impression  on
\nour minds that the investigating agency failed to  apprehend
\nthe real criminals and created false evidence and
\n93<\/span>
\nfabricated false clues in the present case to somehow or the
\nother  secure the conviction of the appellants and save\t its
\nimage in the face of the severe attack about its  incapacity
\nto apprehend the real culprits by the public and the  media.
\nIt is unfortunate that the investigating agency should\thave
\nresorted to fabricating of evidence and act in the manner in
\nwhich it did in this case.\n<\/p>\n
37.  “The  quality of a nation’s civilisation,” it is  said,
\n“can  be  largely  measured by the methods it  uses  in\t the
\nenforcement  of\t criminal law” and going by  the  manner  in
\nwhich  the  investigating agency acted in this\tcase  causes
\nconcern to us.\tIn every civilised society the police  force
\nis invested with the powers of investigation of the crime to
\nsecure punishment for the criminal and it is in the interest
\nof  the\t society  that the  investigating  agency  must\t act
\nhonestly  and  fairly and not resort  to  fabricating  false
\nevidence or creating false clues only with a view to  secure
\nconviction  because  such acts shake the confidence  of\t the
\ncommon\tman not only in the investigating agency but in\t the
\nultimate analysis in the system of dispensation of  criminal
\njustice.   Let no guilty man go unpunished but let  the\t end
\nnot justify the means!\tThe courts must remain ever alive to
\nthis truism.  Proper results must be obtained by recourse to
\nproper means otherwise it would be an invitation to anarchy.\n<\/p>\n
38.  In\t the result, the Criminal Appeal No. 201 of 1989  is
\nallowed\t and the conviction and sentences of the  appellants
\nare set aside and they are acquitted and directed to be\t set
\nat  liberty  forthwith, if not required in any\tother  case.
\nCriminal Appeal No. 466 of 1989, filed by the State  against
\nacquittal  shall also stand dismissed.\tThe  respondents  in
\nCriminal Appeal No. 466 are discharged of their bail bonds.\n<\/p>\n
94<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rampal Pithwa Rahidas vs State Of Maharashtra on 1 March, 1994 Equivalent citations: 1994 SCC (2) 685, JT 1994 (2) 135 Author: S N.P. Bench: Singh N.P. (J) PETITIONER: RAMPAL PITHWA RAHIDAS Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT01\/03\/1994 BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) REDDY, K. JAYACHANDRA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-35124","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRampal Pithwa Rahidas vs State Of Maharashtra on 1 March, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rampal-pithwa-rahidas-vs-state-of-maharashtra-on-1-march-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rampal Pithwa Rahidas vs State Of Maharashtra on 1 March, 1994 - 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