R.C.CHAUHAN, J. - (1.) For the rape and murder of a helpless woman Rekha, appellants have been sentenced to death. Learned trial Judge has referred papers of this case for confirmation of death sentence whereas the appellants have challenged order of conviction and sentence recorded against them by filing appeals. Substantial questions of general importance and somewhat ticklish, involved in the case are whether Rajesh, presented as an approver by the prosecution around whose testimony almost entire case of prosecution rests, qualify as an approver in view of his statements made under Ss. 164, 306, Cr. P.C. and his testimony before the Court where he completely exculpates himself and inculpates only appellants and whether from narration of facts given by him, he rather appears to be a protestor, preventer and to some extent, even a victim of the crime himself. The other question of equal significance that confronts the Court is that if testimony of Rajesh is discarded as approver whether he is a competent witness under S. 113 of the Evidence Act and his testimony should be appreciated and accepted in the same way and manner like any other witness. Appended to the two important questions of law as mentioned above, are also usual questions like the testimony of Rajesh if accepted as an approver, to be fulfilling usual tests and that sans statement of the approver, whether conviction of the appellants could possibly rest on circumstantial evidence led by the prosecution.
(2.) The facts that necessarily precede adjudication of the questions framed above, as per prosecution version, are that on the intervening night of 1-2/11-2003, Rekha was allegedly raped and murdered by the two appellants-Ram Niwas and Balveer and by the alleged approver Rajesh. For the commission of the crimes of rape and murder, vide judgment dated 5-3-2005 the Additional District and Sessions Judge (FastTrack) No. 4, Bharatpur, convicted the appellants for the offence under Ss. 302/34, I.P.C. and sentenced them to death penalty, fine of Rs. 1000/- each, and, in default thereof, to undergo a six month simple imprisonment. He convicted them further for the offence under S. 376(g), I.P.C. and sentenced them to imprisonment of ten years and imposed a fine of Rs. 1000/- each and to serve tax months in default thereof. Since the death reference and the attendant three appeals arise out of the same impugned judgment, they are being decided by this common judgment.
(3.) According to the prosecution story, one Prem Bahadur, SHO, Police Station Nadbai, got a formal FIR (Ex. P. 12), recorded on 1-11-2003, after bringing Rajesh back from the crime scene to the police station, wherein he (SHO Bahadur) claimed as under : "On 1-11-2003 at 10.45 p.m., they (the police) received a telephonic information that a woman had been murdered near the railway tracks in the vicinity of the jungles of village Kishanpura. The informer also told them that they (the people) had nabbed aperson, who was in their custody. Upon this information, a police party left for the said spot. They reached the place at 10.55 p.m. Upon arrival, they found about fifteen persons standing around, including Malkhan Lunar, Nemi Brahman, and Bharat Singh Jat. They told them (SHO Bahadur) that around 10.30 p.m. when they heard a hue and cry, they rushed to the spot. They saw two persons fleeing on a motorcycle along the railway track towards the village of Khedali. They also saw a person running through the fields, whom they managed to catch. They found a half-nude body of a woman who was dead. When the SHO asked the captured person his name, he told them that he was Rajesh, s/o Rekh Ram Meena, r/o village Peelwa, Police Station Mandawar, District Dausa. He further told them that that afternoon, between 4.00-5.00 p.m. Ram Niwas Meena s/o Devi Ram Meena, who was a resident of his (Rajesh's) village, along with Ram Niwas's paternal-aunt's (Bua's) son, Balveer, r/o village Badyowas, came along with a girl, Rekha, who was known to Ram Niwas, and that he (Rajesh) arrived on Ram Niwas's motorcycle, Registered No. RJ 29/ 2M/2370, along the railway track near the village Khedali. He further claimed that under the Khedali Bridge all three of them raped Rekha. After that, Ram Niwas and Balveer wanted to stuff her mouth with a piece of cloth and to strangle her. He protested and told them that someone was coming as noises could be heard. Thereupon, they forced her to accompany them on the motorcycle and brought her along the railway track to this place. Here both Ram Niwas and Balveer kicked her in the neck and strangled her with her scarf ("chunni"). According to Rajesh, they assaulted him, when he protested. When he freed himself from their clutches, he raised a hue and cry. Consequently, Ram Niwas and Balveer fled on the motorcycle, along the railway tracks, towards Khedali. The SHO examined the dead body of the girl and discovered that her mouth was stuffed with cloth and her "chunni" was tightly wound around her neck, and that she had injuries on her chest and neck, and her "salwar" and "chunni" were pulled down to her knees. In the pocket of her jacked, they discovered an identification card. The card had her photograph and showed her name to be Rekha Marothiya d/o Bherulal Morathiya, Nursing Student at the BRBM Hospital, Bharatpur, resident of village Gaddi Maliyan, Dist. Ajmer. Subsequently, the site inspection and an examination of the dead body were carried out. While the body of the deceased was sent to the mortuary at the CHC, Nadbai, Rajesh was brought to the Police Station.";