Pithwa Rahidas Vs. State of Maharashtra
 INSC 150 (1
N.P. (J) Singh N.P. (J) Reddy, K. Jayachandra (J)
1994 SCC (2) 685 JT 1994 (2) 135 1994 SCALE (1)785
Judgment of the Court was delivered by DR A.S. ANAND, J.- These two appeals, by
special leave, arise out of a common judgment of the High Court of Judicature,
Appellate Side, at Bombay (Nagpur Bench) dated 27th, 28th and 31 st October,
1988, confirming the death sentence passed by the Addl. Sessions Judge, Chandrapur
for an offence under Section 302 IPC on five appellants in Criminal Appeal No.
201 of 1989. Three convicts were acquitted by the High Court and Criminal
Appeal No. 466 of 1989 has been filed by the State of Maharashtra against their acquittal. This
judgment will dispose of both the appeals.
accused persons, namely, Rampal, Fulchand, Babulal, Sheoprasad alias Dhunda Chunbaliya,
Basawan, Shamlal, Pratap, Ramkishore and Ramcharan, were sent up for trial for
committing the murder of Tanba Gedam, Baldeo singh, Raman Chandra, Prakash Vehadkar
and Raju Deshmukh and for causing injuries to Surendra PW 31, Mahendra singh PW
33 and Doma PW 5 on July 3, 1984 between 7.30 p.m. and 10 p.m.
Highway Chandrapur Ballarshah Road while committing dacoity. (One other accused
who had also been arrayed by the police died before the trial in police
custody). They were tried for offences under Sections 302, 307, 342 read with
Section 149 and Sections 395 and 396 of IPC. Accused 1 Ramcharan Rahidas turned
an approver and was examined as such. The learned Addl. Sessions Judge
accepting the testimony of the approver and the other prosecution evidence,
convicted all the eight accused mentioned above and awarded the sentence of
death to all the eight accused for the offence under Sections 302/149 IPC, and
for the offences under Sections 307 and 395, the accused were sentenced to
suffer rigorous imprisonment for two months and to pay a fine of Rs 50 each and
in default they were directed to suffer rigorous imprisonment for seven days.
learned Addl. Sessions Judge submitted the proceedings to the High Court for
confirmation of the sentence of death and the convicted eight accused also
filed a criminal appeal challenging their conviction and sentence in the High
the appeal of appellants Basawan Rahidas, Pratap Rahidas and Ramkishore Rahidas
was accepted and they were acquitted of all the charges, the appeal filed by Rampal
and four others was dismissed and their conviction under Section 302 IPC was
maintained. The High Court also confirmed the sentence of death on Rampal and
the other four appellants, who have filed Criminal Appeal No. 201 of 1989. The
State of Maharashtra has filed Criminal Appeal No. 466
of 1989 against the acquittal of Basawan and two others.
3.The prosecution case is that on July 3, 1984, near K.M. No. 9 on Chandrapur-Ballarshah Road which is a part of Highway No. 84, construction of
two buildings of a seed centre was in progress. Doma and Tanba were acting as watchmen
at the construction site. At about 7.30 p.m., while Tanba and Doma were present at the site, they heard the
approaching movement of some persons. One of those persons on reaching near Doma
and Tanba picked up a bamboo stick. Four other persons surrounded Doma while
two others started assaulting Tanba with bricks, as a result whereof Tanba fell
down. The miscreants assaulted Doma and Tanba with bricks, stones and rafters
and tied them by removing the dhoti which Tanba was wearing and dragged them both
to a distance of about 25 ft. and ultimately threw them in a ditch, which was
at some distance away from the main road.
assailants on hearing the sound of a two-wheeler approaching, went up to the
main road and assaulted the rider of the two-wheeler Raman Chandra. After
giving beating to him, he was dragged and thrown near the road.
singh and Baldeosingh were coming on a scooter from the Ballarshah side and
they were also assaulted by the assailants with rafters and sticks. A bag
containing Rs 7040 and some documents was snatched from them. As a result of
the beating, Mahendrasingh and Baldeosingh became unconscious. Baldeosingh died
on the spot. The assailants threw away his body and the scooter on one side of
who had also become unconscious was later on removed to a hospital at Nagpur where he regained consciousness
after four days. Prakash Vehadkar was also passing on the road on his cycle at
about the same time. He was stopped, beaten and killed by the assailants. Raju Deshmukh
was driving a scooter with Surendra Chopra and was passing through on that
road, when his scooter was stopped.
of them were assaulted by the miscreants as a result whereof Raju Deshmukh fell
off his scooter and was trapped under it. The miscreants then caused. some
injuries to Surendra and removed his gold ring, wrist-watch and Rs 250 and left
him on hearing the sound of another scooter approaching that side. Surendra
escaped and ran over some distance and requested one Mumtaz Ahmed, who was
passing by the road on his scooter, for a lift. Mumtaz Ahmed took Surendra, to
the house of his brother at Ballarshah. After rendering some medical aid to Surendra,
his brother and others went in search of Raju Deshmukh but could not locate him
or his scooter. While going to the site, where Raju and Surendra had been belaboured,
the assistance of the police subinspector Chandrapur was also taken and he
accompanied them to the spot and on reaching the place of occurrence they came
to know about the killing of 4-5 persons. They later on found the dead body of Raju
Deshmukh. The dead body of Tanba was also found there.
of the Traffic Branch at Chandrapur was on the Highway at about 2210 hrs. on
July 3, 1984 when on learning that some dead bodies were lying by the side of
the road, he along with Constable Ram Das reached the place of occurrence. He
found the dead bodies lying on the two sides of the road. Leaving Head
Constable Ram Das to guard the spot, PSI Gadekar went and apprised PI Thakur of
Chandrapur Police Station, who rushed to the scene of occurrence and found
three dead bodies and an injured person asking for water. Near about the same
place, two more dead bodies and injured Mahendrasingh were also found. Both the
injured persons were sent to the General Hospital, Chandrapur in a trakker belonging
to the Maharashtra State 78 Electricity Board. Sub-Inspector Bante of Chandrapur
City Police Station went to the General Hospital Chandrapur and recorded the
statement of injured PW Doma, which forms the basis of the first information
report. A case was registered and investigation taken in hand. During the
investigation, the inquest report of Prakash Vehadkar, whose name could be
gathered from a tobacco box which was lying near him as well as from the cycle
which bore his name was prepared and a panchnama drawn up. Inquest reports of
the other dead bodies were also prepared. The bloodstained clothes of the
injured were seized vide separate panchnamas.
more articles were seized from different places in the neighbourhood of the
scene of crime vide separate panchnama in the morning of 4th July, 1984. The dead bodies of Raman, Raju, Prakash,
Baldeosingh and Tanba were sent for postmortem examination to the General
Hospital Chandrapur where Dr Murkey conducted the postmortem examination on the
dead bodies and submitted the postmortem reports.
do not consider it necessary or expedient to reproduce the injuries noticed on
each of the deceased, as the same have been given in detail both by the learned
Judge and the High Court in the judgment and no controversy surrounds them.
Suffice it to notice that the injuries found on each of the dead bodies were,
according to Dr Murkey, sufficient in the ordinary course of nature to cause
the death of the deceased.
PW examined injured Mahendrasingh PW on 4th July, 1984 and found swelling on his right
forearm lower part, and after an X-ray examination it was discovered that Mahendrasingh
had suffered fracture of the right ulna. Doma PW was also examined by Dr Lohare,
who found two lacerations on his right occipital region and one laceration on
the central occipital region with swelling on the right hand also. Surendra PW
was examined by Dr Lohare and it was found that he had swelling on both the
hands, lower part of the right forearm, left knee, right postcuricular of
scalp, lacerations on the left and right forehead, contusion on the right lower
thoracic region, tenderness on the left shoulder and an abrasion on the right
shoulder. There was no clue as to the culprits in the case. Right from the
start of the investigation on July 3, 1984,
till July 7, 1984 no arrest was made. None of the
injured prosecution witnesses could throw any light on the identity of their
assailants or those who had committed the murders on July 3, 1984 as according
to them assault had been committed by some men wearing masks in the darkness of
the night. It appears that since the investigation did not yield any results
with regard to the crime committed on the Highway, demonstrations against
police inaction were held at Chandrapur and a complete bandh was also observed
for one day. Unprecedented tension prevailed in Chandrapur on account of
ineffective and slipshod investigation by the police. Both the public and the
press continued to blame the police for their inaction and the police
authorities were naturally concerned.
7.On July 7, 1984 accused 1 Ramcharan, who later on
turned an approver in this case, was sighted by one Manohar Thikare PW near the
metre-gauge line which passes from Chandrapur and goes towards Gondia. He was
arrested in Village Rajoli within the jurisdiction of Police Station Mul in
connection with some other case. We shall, in the latter part of the judgment,
deal with the story of his arrest in some detail. According to the prosecution
case, Ramcharan accused is alleged to have disclosed, during interrogation, at
Police Station Mul 79 hat he had taken part in a case of dacoity on Ballarshah Road. On getting this information the
police officer of Police Station Mul informed the superintendent of Police, Chandrapur
and on his direction Ramcharan accused as transferred from Police Station Mul
to Chandrapur Police Station. It is then alleged that after his transfer to Chandrapur
Police Station at 2
a.m., his statement
came to be recorded by the police at Chandrapur Police Station and as sequence
of the information given by him, all other accused persons along with one Murari
Deshmukh were arrested. Murari, however, died within three days of his arrest
while in police custody. According to the prosecution, Ramcharan accused made a
voluntary statement under Section 164 before the Judicial Magistrate Ist Class
on July 21, 1984 giving details of the crime. Armed
with that statement of Ramcharan accused, the investigating agency allegedly effected
some recoveries after arresting the other accused persons as well as at he
instance of the approver himself. Ramcharan accused, subsequently turned an
approver and the accused were put on trial.
prosecution with a view to connect the accused with the crime, relied primarily
upon the testimony of the approver, besides the statements of the injured
witnesses and certain recoveries, alleged to be of the articles belonging
various deceased and the injured persons effected under Section 27 of the
evidence Act. The defence of the accused was one of denial and false
implication. Rampal and Basawan, the acquitted accused, also pleaded alibi.
Before dealing with the statements of the eyewitnesses and the alleged
recoveries, we shall first deal with the statement of the approver Ramcharan
PW, an accomplice of the accused, who turned an approver on grant of pardon.
Legal Position :
133 of the Evidence Act expressly provides that an accomplice is a competent
witness against his co-accused and it renders admissible the testimony of an
accomplice against his co-accused. It has, however, been a long settled
practice of law that Section 133 of the Evidence Act must be read along with
the provisions of Illustration (b) to Section 114 of the Evidence Act. Section
114 of the Evidence Act empowers the court to presume the existence of certain
facts and Illustration (b) in express terms says that an accomplice is unworthy
of credit unless he is corroborated in material particulars. Thus, it follows,
that whereas law permits the conviction of an accused person on the basis of
the uncorroborated testimony of an accomplice by virtue of the provisions of
Section 133 who is treated as a competent witness, the rule of prudence which
has rightly been always accepted by the courts, embodied in Illustration (b) of
Section 114 of the Evidence Act, strikes a note of warning/caution to the
courts that an accomplice does not generally deserve to be relied upon, unless
his testimony is corroborated in material particulars. Thus, as a matter of
practice and prudence the courts have held that the testimony of an approver
may be accepted in evidence for recording conviction of an accused person
provided it receives corroboration from direct or circumstantial evidence in
material particulars. The courts have generally 'looked upon with suspicion the
statement of an approver because he is considered to be a person of low morals
and not a wholly trustworthy person who for the sake of earning pardon for
himself is willing to let down his erstwhile accomplices and therefore before
recording conviction courts insist upon independent corroboration of his
testimony. In Ram Narain v. State of 80 Rajasthan' Dua, J. while speaking for
the Court dealt with the subject and observed : (SCC p. 811, para 8) "An
approver who is admittedly guilty of the crime is an accomplice who has
betrayed his associates and has apparently sought pardon for saving his own
skin. In other words he has purchased complete immunity for his prosecution at
the expense of his associates by agreeing to give evidence against them for the
prosecution. He is, therefore, presumed not to be a man of high character or a
fair witness. His pardon being conditional, to please the prosecution he may
well weave some false detail into the true details of the prosecution story and
may also falsely involve some innocent person. There is thus a real danger of
his telling a story true in general outline but containing some untruth which he
can easily work into the story. It is for this reason that the courts as a
matter of prudence and caution anxiously look for some corroboration to satisfy
their conscience that the approver's testimony which is clearly admissible is
also worthy of belief credit.
of course visualise an accomplice who is genuinely repentant for the commission
of his crime and truly desires to make a clean breast of the whole affair by
way of penitence. But even in such cases the court has to judicially determine
the extent to which his uncorroborated testimony car be considered as
trustworthy by looking to the other relevant material and the attending
circumstances on the basis of which the accused can be safely a convicted. The
rule which seems to emerge from the foregoing discussion and judicial decisions
is that the necessity of corroboration as a matter of prudence except when it
is safe to dispense with such corroboration must be clearly present to the mind
of the judge." Arrest of Ramcharan and Grant of Pardon to him:
above principle has stood the test of time and it is with this background
present in our minds that we shall examine the testimony of Ramcharan approver
PW 49. How he came to be arrested? How did he become a participant in the
crime? What role did he play in the crime? When and how he decided to be an
approver? These are some of the questions which we shall have to consider to
determine the creditworthiness of his testimony and the nature and the extent
of corroboration which is required before his testimony can be relied upon in
support of the prosecution case.
approver appeared as PW 49 at the trial. He was arrested on July 7, 1984 in some other connection and till
his arrest as already noticed, the investigation had drawn a blank in this case
and was being criticised both by the media and the public alike for not solving
the crime and appears to have been under tremendous pressure. How did the
approver come to be arrested? 12.One Manohar Thikare PW 1, according to the
prosecution case, was collecting leaves by the side of Rajoli Railway Station
and had climbed on a tree for that purpose leaving his cycle by the side of the
road. He found approver Ramcharan coming that side and touching his cycle. Manohar
PW 1 shouted at Ramcharan PW 49 and got down from the tree.
approver started running away. Manohar got down from the tree and riding on his
bicycle, instead of chasing the approver, who had 'touched' his bicycle went
home to inform his brother, Sudhakar PW 2 about what he had seen near the tree.
Both Manohar PW 1 and Sudhakar PW 2 then came back to the spot and started
looking for the 1 (1973) 3 SCC 805, 811: 1973 SCC (Cri) 545 81 approver and
found him standing on the water tank near the railway line. They caught hold of
him and took him to the house of Tulsiram, Police Patil PW 3, who sent Sudhakar
PW 2 with Ramcharan approver to Police Station at Mul with his report Ex. 29,
which makes an interesting reading and reads thus:
The Police Station Officer, Police Station, Mul.
: In respect of catching thief on account of suspicion.
It is submitted as under- This day July 7, 1984, Saturday, when Manohar Kessari
Thikare, resident of Rajoli, had gone for plucking leaves, on a bicycle.
started going away by taking his bicycle. At that time, he (Manohar) shouted
and with the help of his brother Sudhakar Thikare, he (Manohar) caught Ramcharan
and brought him. He (Ramcharan) told his name to be Ramcharan Ramasheth
Chamber, resident of Gondia. Hence you are requested to hold enquiry into the
said matter. Finish, dated July 7, 1984.
(Sd/) x Illegible x T.K. Thikare, S.D.P.O. Police Patil Rajoli Dt. 8.7.84
Police Station, Mul Tehsil & Distt. Chandrapur.
However, it is neither the case of Manohar PW 1 nor of Sudhakar PW 2, that
approver Ramcharan made any attempt to steal the bicycle of Manohar PW 1 let
alone that he "started going away by taking his bicycle". The
testimony of Manohar PW 1, which is also supported by panchnama of the spot
dated July 7, 1984 Ex. 3 1, is only to the effect that while he was plucking
the leaves and had kept his cycle on the road, an unknown person touched his
cycle and when Manohar PW 1 shouted, the unknown person ran away. Since, the
cycle had not been stolen, we are at a loss to understand as to why in the
first place Manohar PW 1 and his brother Sudhakar PW 2 should have, come back
on the cycle to the spot and why did they chase Ramcharan approver, who had
done practically nothing, and finding him on the railway water tank took him to
PW 3 Tulsiram. What was the basis for Tulsiram PW 3 to say in his report Ex. 29
that Ramcharan "started going away by taking his bicycle" is not at
all intelligible? Why Tulsiram PW 3 wrote it has not been explained even by him
while appearing as a witness at the trial. But then unless the Police Patil Tulsiram
PW 3 had concocted a story of 'stealing' there was perhaps no occasion for Tulsiram
Police Patil to send the approver to Police Station Mul with his report Ex. 29
and that appears to be the reason for incorporating the story of alleged theft
of the bicycle by the approver by Tulsiram PW 3 in his report Ex. 29. What
happened subsequently at Mul Police Station is even more curious.
When a Kotwal and Sudhakar PW 2 produced Ramcharan at Police Station Mul along
with report Ex. 29 from Tulsiram PW 3, PSI Chandel PW 41, of Police Station Mul,
made an entry in the station diary regarding the 'incident' and arrested Ramcharan
under Section 109 of the CrPC (not under Section 379 or Sections 379/511 IPC)
and interrogated him, during the course of which, 82 according to the
prosecution case, Ramcharan disclosed of having taken part in a dacoity on the
Highway. In the entry, in the station diary book Ex. P-7, however, there is no
mention that PW 41 PSI Chandel had arrested accused Ramcharan under Sections
41/109 CrPC. When asked during the crossexamination as to whether he had
prepared the arrest panchnama of accused Ramcharan, PW 41 Chandel replied in
the negative. When questioned as to why the approver was arrested under Section
109 CrPC when that was not the purport of Ex. 29 sent by Tulsiram PW 3, the
witness stated that "if any person is found pickpocketing at bus stand, we
arrest him under Sections 41/109 CrPC" but could not explain as to the basis
on which accused Ramcharan was arrested under Sections 41/109 CrPC. It was
suggested to Chandel PW 41 during the cross-examination that since in the area,
public discontent had been increasing daily, therefore, a false story was
concocted and Ramcharan accused was planted as an accused. He denied the
suggestion. The prosecution has attempted to show that Manohar PW 1 and Sudhakar
PW 2 were independent witnesses, who had made a complaint to Police Patil Tulsiram
PW 3 in a routine manner and that Tulsiram Patil PW 3 sent Ramcharan to Police
Station Mul also in a routine manner along with his report in the official
routine. The truth however, appears to be otherwise. During his deposition PW 1
Manohar, after stating that Ramcharan was sent to the police station by the
Police Patil Tulsiram PW 3 along with his brother Sudhakar PW 2 and Vilas Kilake
Police Kotwal at about 10. a.m., admitted in his cross-examination that
"Police Patil Tulsiram is my cousin brother". He, therefore,
proverbially speaking let the cat out of the bag!
appears to us that Tulsiram Patil PW 3 utilized the services of his cousins Manohar
PW 1 and Sudhakar PW 2 to plant Ramcharan and have him arrested under Section
109 IPC at Police Station Mul with the assistance of PW 41 Chandel.
entire story regarding arrest of Ramcharan appears to be a police concoction
and padding with a view to silence the large discontent against the police on
account of its inaction to apprehend culprits, who were responsible for
committing five murders on the Highway, besides causing injuries to three
this stage it would also be relevant to take notice of the report sent by PW 41
Chandel while transferring Ramcharan to Police Station Chandrapur City. Ex. 197
is that report and it also makes an interesting reading. It reads as follows:
Station Mul, Date: 8.7.1984.
The Police Inspector, Police Station, Chandrapur City.
transfer of Ramcharan son of Ramashray Rahidas, the accused arrested under
Sections 41(2)/109 of CrPC at Police Station Mul and his relevant documents.
Report is submitted as under On July 7, 1984, Police Patil of Village Rajoli
sent a person named Ramcharan Ramashray Rahidas and written report to the
Police Station Mul, through Sudhakar Shivram Thikre. It was stated in the said
report that 83 the person named Ramcharan Rahidas was caught while he was
trying to take away the bicycle of Manohar Shivram Thikare. On the basis of the
said report 1 personally went to Village Rajoli and made an inquiry about the
said incident. During the course of inquiry the following facts were came to be
about 7 a.m. Manohar Shivram Thikare went on a bicycle to pluck the leaves of Palas
tree. He kept the bicycle on foot track and climbed up the Palas tree. When he
was plucking the leaves of Palas tree, the aforesaid person named Ramcharan Rahidas
was going by the road. At that time he (Ramcharan Rahidas) touched the said
bicycle, as a result of which Manohar Thikre shouted. On that Ramcharan ran away
from there. Thereafter Manohar Thikre went to the village by the said bicycle
and brought his brother Sudhakar Thikre on the said bicycle. At that time Ramcharan
was on the cistern. Then the said two brothers caught Ramcharan Rahidas and
brought him to the Police Patil of Rajoli.
basis of the said inquiry since it reveals that, the said incident was not
theft, there was no intention of committing theft of a bicycle, the accused Ramcharan
Rahidas has no place of residence, he has been arrested at 1935 hrs. of July 7,
1984 under Sections 41(2)/109 CrPC.
making minute inquiry to the accused Ramcharan Rahidas regarding other crimes,
he disclosed that he was related to Crime No. 135 of 1984 under Sections 396
and 397 of IPC registered at Police Station Chandrapur City.
accused Ramcharan Rahidas is related to the said crime, he has been transferred
to the crime registered at Police Station, Chandrapur. Relevant documents have
been also submitted along with the report for taking proper action.
Dt. 8.7.1984" (emphasis supplied)
56 Jamdar Singh who at the relevant time was attached as Police Inspector at
Police Station Chandrapur, while deposing about the transfer of accused Ramcharan,
stated that on July 8, 1984 the DSP Chandrapur informed him on telephone that
one person in connection with the dacoity- cum-murder which took place on July
3, 1984 on Chandrapur- Ballarshah Road was arrested at Mul and his name is Ramcharan,
and on getting that information PW 56 sent a jeep to Mul to bring Ramcharan
approver to the City Police Station. PSO Chandel of Police Station Mul came
along with the accused to police station and handed over the papers regarding
the arrest of Ramcharan at about 2 a.m. On what basis Crime No. 135 of 1984
under Sections 396 and 347 IPC Police Station Chandrapur City came to be
incorporated in the transfer note Ex. 197 by PW 41 Chandel of Police Station Mul
has not been explained by the prosecution?
After interrogating Ramcharan, PW 56 Jamdar Singh placed him under arrest and
went on to depose that "he gave me information about the persons involved
in the commission of offence of dacoity-cum-murder which took place on Chandrapur-Ballarshah
Road. On his information, I caught all the accused persons and deceased Murari".
While Ramcharan was in police custody on July 8, 1984, he allegedly disclosed
in presence of panchas, Fakru and Patel, that he 84 had kept a bag at the house
of accused Babu Lal and that he was willing to produce the same. His statement
Ex. 105 was reduced into writing. Accused Ramcharan then went with the police
party, in a police jeep, to the house of Babulal and after going inside the
house, brought out one black bag Ex. 144 which was seized vide seizure memo Ex.
103. The bag was empty. PW 56 then deposed that there were some bloodstains
present on the loongi which Ramcharan was wearing and therefore, Ramcharan was
asked to change the loongi and his bloodstained loongi was seized vide Ex. 102.
In the transfer memo Ex. 197 there is no mention of the presence of bloodstains
on the loongi of accused Ramcharan while he was in custody of PW 41 Chandel at
Police Station Mul and the prosecution has not been able to explain as to when
and how his loongi got bloodstained more particularly when on Ramcharan's own
showing he had taken no part whatsoever in the assault made on the deceased or
the injured persons.
Deposing about the recovery of the black bag Ex. 144, at the instance of
accused Ramcharan, one of the panch witnesses Fakruddin PW 27, stated that one
of the accused whose name or face he did not remember took the police party to
"his house and from his house produced one bag". He went on to say
that before producing the bag no talk had taken place with the said accused but
added that "there were clothes in the bag. Police had removed the clothes
from the bag and had shown us. There were clothes stained with blood in the
said bag. The bloodstained clothes contained one baniyan and other clothes
which I do not remember. The said clothes were tied in a bundle and were
sealed. We then returned to Police Station Ballarshah."
The evidence of Fakruddin PW 27 with regard to the alleged disclosure statement
made by Ramcharan coupled with the testimony of PW 56 Police Inspector Thakur
goes to show that the story regarding recovery of the black bag Ex. 144 at the
instance of Ramcharan accused is not free from doubt because whereas according
to the disclosure statement the approver had kept in his house an empty black
bag, but what was produced by Ramcharan from the house of Babulal was a bag
containing bloodstained clothes. These discrepancies render the so-called
shall now deal with the manner in which the confessional statement of Ramcharan
under Section 164 CrPC came to be recorded on July 21, 1984 and its contents as
also the manner of grant of pardon to him more than two years later. As already
noticed, accused Ramcharan was arrested on July 7, 1984 at Police Station Mul
and then transferred to Chandrapur Police Station on July 8, 1984 at 2 a.m. and
thereafter arrested in the dacoity case. While he was in custody at Chandrapur
he is alleged to have made a statement before the Judicial Magistrate Ist Class
on July 21, 1984. He appeared before the Judicial Magistrate Ist Class Shri Bhola
on July 19, 1984 and offered to make a confessional statement. He was given 24
hours' time to think and reflect whether he wanted to make any voluntary
confession. The learned Magistrate Chandrapur Shri V.K. Bhola after cautioning
accused Ramcharan that he was not bound to make any confession and that if he
did so, any confession that he may make, can be used as evidence against him,
recorded his confessional statement Ex. 225 under Section 164 CrPC in which Ramcharan,
inter alia, stated that he is an inhabitant of Banda District and that his
father was working as a labourer at Gondia. He came to Gondia from Banda and
stayed with his 85 father for two days, when one person by the name of Kewat
who was a resident of Ballarshah met him at Gondia. He told Kewat that he
wished to do some work, on which he was asked to come to Ballarshah where Kewat
would get him engaged for work on daily wages of Rs 14-Rs 15 per day. That on
Saturday he came to Ballarshah along with Kewat and on Sunday he worked on a truck.
He was paid Rs 7 towards labour and he told Kewat that he was not willing to
work on Rs 7 per day and then went away from the house of Kewat.
full name of Kewat as disclosed by Ramcharan is Inderpal Kewat but no such
witness has been produced or examined at the trial. After leaving Kewat's
house, Ramcharan, a stranger in the locality, went in search of some persons
belonging to his district and found Shamlal, Babulal, Fulchand and Sheoprasad
and requested them to get him engaged somewhere for labour work and they told
him that whenever they could find some work for him they would get him engaged.
He went to the house of Babulal and remained in the house of Babulal on Monday
for the whole day. On Tuesday Babulal told him that he could not get him any
work at that place. In the noon of
Tuesday, Fulchand, Shamlal, Sheoprasad and five other persons gathered at the
house of Babulal and Ramcharan heard them say "that they are in need of
money and hence they wish to commit robbery". Ramcharan told them not to
do any such thing as they may land up in jail and that he would not be a party
to it. All of them assured him that they would give him money for going back to
his native place and he reluctantly agreed. On that very day in the noon, five persons went to the forest at a place where a new
house was being constructed. In the evening, he along with Babulal, Shamlal, Fulchand
and Sheoprasad went to the bus stand and from there went towards Chandrapur.
All of them got down at a petrol pump and went on foot towards the place where
the house was under construction. The five persons who had earlier gone to the
forest also came there.
Shamlal, Fulchand and Sheoprasad took off their clothes and handed them over to
him. Sheoprasad and Fulchand took the knives which were given to them by Babulal
after taking them out from an attache case which Babulal had brought with him.
They gave one small stick to him (Ramcharan) and got him seated near the road
at a distance of 15-20 feet from the bridge. He was directed that if any
vehicle arrives then he should give a signal by making a sound with the stick.
That was all the job assigned to him.
Babulal and Sheoprasad went to the watchmen of the new house to take sticks. He
then narrated how Fulchand, Babulal and Sheoprasad had gone to the site of
construction and he had seen them cause injuries to both the watchmen as well
as the manner in which the motorcyclist, scooterists and cyclewala were stopped
and assaulted and added that his co-accused had robbed the money from the
persons who were assaulted by them. Ramcharan then stated that while returning,
they all stayed at one place in the forest. The money was with Fulchand and
that he was shown a bundle of currency notes of the denomination of Rs 100 by Babulal.
reached Ballarshah at about 12/1 o'clock in the midnight and while Ramcharan
remained sitting on a cot outside the house, the rest, all the nine persons,
went in and remained inside the house of Babulal. After about half an hour,
they all came out of the house of Babulal and went to their respective houses.
Thereafter, he went to take meals with Babulal and then went to bed. In the
morning, Sheoprasad prepared tea and all the nine persons again gathered at the
house of Babulal and they told him to return to his native place but since he
86 had no money he demanded money from them for going back to his native place.
"However they did not give me money".
asked me to take oath in the name of my 'son' and further asked me not to
disclose the night incident to anyone. I told them that if police asks me, then
I would disclose everything. I took the meals and came to Chandrapur Railway
Station on foot" and remained at the Railway Station for the whole day and
boarded a narrow-gauge train for going to Gondia without ticket. On the way,
the TT asked him to get down from the train since he was travelling without
ticket, and went to the Basti where he begged for meals and again went to the
station and slept there for the night. In the morning, he inquired from someone
as to at what distance the next station was and on being told that it was at a
distance of about 3 kos, he started to go there on foot by the railway line. Ramcharan
went on to state about the manner in which he was thereafter arrested. He stated
the way, I saw that one boy had kept his bicycle aside and he was plucking the
to him and asked him as to at what distance the next station is? On it, that
boy feared and ran away, and then he called and brought his elder brother. They
then apprehended me and took me to their village.
there, I was taken to police station, Mul. The Daroga (Police Station Officer)
of Mu] Police Station made enquiries with me. I told each and every fact to
him. From there, I was brought to Chandrapur. I disclosed each and every true
fact to the Police." (emphasis supplied)
The above version given by accused Ramcharan about the manner in which he was
arrested is quite different from the version given by PW 1 Manohar, PW 2 Sudhakar,
PW 3 Tulsiram, PW 41 Chandel and PW 56 Inspector Thakur. There is no mention of
the existence of or touching of the cycle in the statement of the approver
recorded under Section 164 CrPC.
to the approver he was not told by the police to make a statement under Section
164 CrPC and that he had voluntarily appeared before the Magistrate and
requested for his confessional statement to be recorded and that he was not
even produced by the police before the Magistrate for the purpose of getting
his statement recorded.
After waiting for more than two years after his arrest and the statement made
by him under Section 164 CrPC, while Ramcharan was in the judicial lock-up, he
submitted an application to the District and Sessions Judge, Chandrapur on
January 17, 1987 seeking bail and in that application he said that he was being
forced to become an eyewitness in the case although he knew nothing about the
crime. That application Ex. 20 dated January 17, 1987 makes an interesting
reading. It reads :
"IN THE COURT OF DISTRICT AND SESSIONS JUDGE, CHANDRAPUR.
: For grant of bail or for final hearing of the case.
Ramcharan s/o Ram Asre.
under Sections 396 and 397 of IPC.
The applicant submits as under That the above applicant is undergoing
imprisonment in the sentence of 2 years, 6 months, under Sections 396 and 397
of IPC, in the District Prison Chandrapur. The Chandrapur District City Police
(Crime Branch), in order to avoid their troubles produced the above applicant
in the Court as 87 eyewitness; and thereafter sent him in the Jail. In fact,
the applicant does not know anything about this crime. The applicant being a
respectable person and because of family worries, he cannot keep mental
balance. The applicant is the karta (manager) of his family. This Hon'ble
Session Court has not heard this case for its final disposal as yet, though
many recent matters have been decided.
therefore, prayed that this Hon'ble Court may be pleased to grant the
application for bail or it is further prayed that this Hon'ble Court may be
kind enough to decide, the case finally and oblige the applicant.
applicant hopes that this Hon'ble Court would look into the matter and consider
17.1.1987 Yours faithfully Place : Lock-up of District Court, Chandrapur Thumb
Impression of Ramcharan s/o Ram Asre" (emphasis supplied)
Bail was, however, declined and he continued to remain in custody. According to
the prosecution case, on April 1, 1987, Ramcharan accused suddenly and of his
own decided to become an approver and to make a disclosure of all facts, about
which he had said in his application dated January 17, 1987 that he knew
nothing. His application dated April 1, 1987 reads :
The District and Sessions Judge, Chandrapur.
Case under Sections 396 and 397 of IPC.
: The Superintendent, District Prison, Chandrapur.
I, Ramcharan s/o Ram Asre, prisoner No. 1 803 state as under:
on July 19, 1984 the police imprisoned me in this jail under Sections 396 and
397 of IPC. The statement given by me in the lower court in respect of my case
is true. The persons against whom the case for dacoity and murder is filed, are
all responsible for the murder. I was only looking after their clothes. I had
seen the accused persons committing the murders of the persons. I may be given
pardon in this case. I want to be an approver. My statement, as given above is true.It
has been read over to me. Before me, Yours faithfully, Sd/- Illegible (T.I.)
Jailor, District Prison, Chandrapur. Left hand thumb impressio n of Ramcharan
s/o Ram Asre No. Jud/433/87 Chandrapur District Prison Chandrapur Dt. 1.4.1987
Submitted to the Sessions Judge, Sessions Court, Chandrapur for necessary
Illegible Jailor, District Prison, Chandrapur." 88
The District Judge forwarded the application to the Addl. Sessions Judge, Chandrapur
and the Public Prosecutor was directed on April 23, 1987 to file reply to the
application of Ramcharan. The Public Prosecutor in the reply stated :
application can be allowed after some preliminary questions provided he gives
evidence on oath sticking up to the previous statements under Sections 162 and
164 CrPC." Thereafter, an order granting pardon, which reads as follows,
was made on April 24,1987:
No. 1 Ramcharan son of Ramashray Rahidas is one of the accused persons in a dacoity-cum-murder
case which took place on Chandrapur-Ballarshah Road on July 3, 1984.
made a confession statement before the learned Judicial Magistrate, Ist Class, Chandrapur
admitting that he and the other accused are involved in the said offence. He
has now asked to pardon him. The incident has taken place in the jungle at
night. Proof of guilt of all accused persons is not forthcoming satisfactorily.
It is necessary to bring the rest of the offenders to justice.
is prima facie evidence that the present accused was present on the spot. He is
not a principal offender. He has agreed to make a true and complete disclosure
of all the facts within his knowledge. 1, therefore, feel that the said accused
should be granted pardon on condition that he will make true and complete
disclosure of all the facts within his knowledge which he has agreed. 1,
therefore, pass the following order :
Accused No. 1, Ramcharan son of Ramashray Rahidas is tendered pardon under
Section 307 of CrPC on condition of his making a true and complete disclosure
of the whole of the circumstances within his knowledge relating to the offence
and to every other person concerned whether as principal or abettor in the
F.N. Velati Addl. Sessions Judge Chandrapur."
Considering what Ramcharan approver wrote in his application seeking bail,
dated January 17, 1987, one is left to wonder as to what made him to write his
application on April 1, 1987 seeking pardon and to be made an approver.
application seeking pardon and for being made an approver, he inter alia stated
that persons against whom the case for dacoity and murder had been filed were
responsible for the murder and that "I was only looking after their
clothes". In his application dated January 17, 1987 Ramcharan had
categorically asserted that he had no knowledge of the crime. The statements in
the two applications are irreconcilable.
Indeed Ramcharan was not confronted at the trial with the statement contained
in his bail application but nonetheless the fact remains that while considering
the credibility of the approver and the weight to be attached to his statement,
the statement made in the bail application (which is part of the judicial
record) can be looked into by the courts. The High Court, in our 89 opinion,
did not consider the significance of this variation in the statement when it
observed that :
do not, therefore, think that the statement in the bail application, in any
way, detracts from the credibility of the evidence which he gave in the
court." We cannot subscribe to the view of the High Court. What made the
approver all of a sudden on April 1, 1987 decide to address a letter to the
Sessions Judge that he be granted pardon and be made an approver? The prosecution
as well as Ramcharan are totally silent on this aspect. Was the approver being
harassed or lured? In this connection it may be relevant to note that soon
after Ramcharan approver had been shifted to Chandrapur Police Station on July
8, 1984 within 2/3 days the police had got his photograph taken.
has been admitted by Ramcharan approver in his cross- examination while
appearing as PW 49. It is also borne out from the record that while Ramcharan
approver was in police custody at Chandrapur Police Station, Murari accused who
had also been arrested and lodged in Chandrapur Police Station, as an accused
in this case, died while in police custody on July 10, 1984. It was within a
few days after the death of Murari, that Ramcharan appears to have made his
confessional statement under Section 164 before the learned Judicial Magistrate
but through his application dated January 17, 1987, he reported to the Sessions
Judge that he was being asked to become an eyewitness in the dacoity case, when
he knew nothing about that crime. This should have put the court at its guard,
when it was considering his application for tender of pardon dated April 1,
1987, but it seems that the Sessions Court did not apply its mind to that
aspect at all. Having already made the so-called voluntary statement under
Section 164 CrPC on July 21, 1984, why did he complain in his application dated
January 17, 1987, that he was being forced to become an eyewitness though he
did not know anything about the crime? The prosecution has offered no
explanation. That the statement under Section 164 CrPC was made in 1984 and,
therefore, the approver may have forgotten what he wrote earlier is too feeble
an explanation to be accepted. It appears to us that Ramcharan approver was
throughout under pressure to become an approver in the case because the
investigation had drawn a blank and admittedly the District Police of Chandrapur
was under constant attack from the media and the public. The police, with a
view to escape public wrath appears to have planted Ramcharan as an approver,
may be on the promise that he would escape punishment and to us even the first
confessional statement does not appear to be voluntary one.
The approver on his own showing did not know any of the appellants other than
A-3, A-4, A-5 and A-7. According to the testimony of the injured Prosecution
witnesses PW 9, PW 31 and PW 33 the assault was made when it was dark and the
assailants were wearing masks. No identification parade at all was conducted by
the prosecution to have any of the appellants identified at a test
identification parade either by the approver Ramcharan or even by the three
injured prosecution witnesses PW 5, PW 31 and PW 33. No test identification
parade was even held to have the approver identified as a party present at the
time of assault from the three injured witnesses. The identification of all the
appellants in the court only, in the absence of any earlier test identification
parade, when at the time of assault accused are alleged to be wearing masks and
were unknown to the victims or the injured witnesses, is hardly of any 90
significance, in the facts and circumstances of this case, to positively
connect the appellants with the crime.
have already made a reference to the statement of Ramcharan approver recorded
under Section 164 CrPC before he made an application for being tendered pardon.
After the tender of pardon, Ramcharan was examined at the trial not as a first
witness on behalf of the prosecution, which he ordinarily should have been, but
as PW 49, almost at the fag end of the trial after he had the occasion to know
the other evidence led in the case, so that he could depose accordingly in
support of the prosecution. The statement of Ramcharan as PW 49 is a detailed
one and gives in graphic details not only the manner in which he was arrested;
the circumstances under which he came into contact with the appellants and others
before his arrest but also the manner in which murders and dacoities were
committed by his co- accused and the part played by him during the commission
of the crime. He also deposed about the recoveries made pursuant to disclosure
statements made by different appellants from different places of different
articles on different dates. The minute details given by Ramcharan approver at
the trial, 3 years after the occurrence, are too good to be believed and
exhibit a remarkable feat of memory! His statement at the trial as PW 49 is
much more detailed than the one contained in his confessional statement
recorded under Section 164 CrPC within a few days of his arrest. Some of the
statements made as PW 49 find no mention in his earlier confessional statement as
for example, that Babulal told him to accompany them and offered to pay him Rs
200 which he declined and that at that point of time accused Fulchand slapped
him and thereupon he agreed to accompany them and do whatever they would tell
him to do.
he ascribed no part to himself at all during the entire occurrence except to
take care of an empty bag and clothes of some of the co-accused. Ramcharan also
deposed at the trial that after dacoity had been committed, accused persons
advised him to run towards Ballarshah side but he declined to do so and told
them that he will not go anywhere alone and will only accompany them or sit by
the side of the road. The accused persons then caught hold of him by his hands
and took him towards Ballarshah side by the side of the road through jungle.
The approver then stated:
from the spot of incident we went at a distance of about one mile and sat.
Accused Babulal lighted a match stick and I saw accused Fulchand counting the
money. I had seen Rs 100 denomination note in his hand at that time. Six
accused persons thereafter went towards Ballarshah Power House side.
accused Rampal, accused Ramkishore and deceased accused Murari went from paper
mill side to Ballarshah city. We went to the house of accused Babulal. We
reached the house of accused Babulal at midnight 12.00 o'clock or 1.00 a.m. At about 2.00 to 2.30 a.m. the rest of six accused persons
also came to the house of accused Babulal." According to the approver, on
the next day in the morning accused Babulal advised him to go to his home town
and told him- "... that they had committed dacoity and murder. Police were
enquiring in the matter.
I am a
new person, they would therefore suspect and interrogate me. I told accused Babulal
that I had no money to go to my home town. The accused Babulal told me that he
had no money and he cannot give me any money. At about 10 a.m. I started going. Accused Babulal told me not to tell
anybody about the incidence. I told accused Babulal that if anybody asks me I
will narrate the incident. ... I came to 91 Chandrapur on foot. I went to
B.N.R. railway station and went to the platform." They gave him no money.
From the statement of the approver appearing as PW 49 at the trial, it emerges
that even though Babulal accused had told him that he shall be given 200
rupees, for joining the other accused in the commission of the crime, but after
commission of the crime, he was not given any money and was told by accused Babulal
to go back to his home town and in spite of his telling Babulal that he had no
money, none was given to him. If as deposed to by the approver, Babulal and
others wanted the approver to go away to his home town because the police was
already making enquiries in the matter and he being a new person could be
suspected and interrogated, but surprisingly they took no steps by giving him
at least the railway fare to go back to his home town or put him on the train
so that he would be out of the village and thus out of the reach of the
the accused persons, who had joined a complete stranger for the commission of
the crime, not even take the elementary steps to see that he is out of the
village and left him high and dry? We find it difficult to accept. The
approver, has only tried to remain clear either while committing or for sharing
the fruits of the dacoity. The conduct of the approver going away without a
penny and the co-accused letting him go like that belies logic and common
The statement of the approver at the trial recorded more than three years after
the occurrence, is so detailed that it is difficult to believe its authenticity
particularly when it also travels far beyond what was stated by the approver in
his confessional statement recorded under Section 164 CrPC only a few days
after the occurrence. It is humanly not possible for an illiterate rustic
person to remember all such minute details as have been given by the approver
detailing even the sequence of events during the alleged occurrence.
The sequence of events at Ballarshah Road
as detailed by the approver in his statement in the court is quite different
than the sequence of events as deposed to by the three injured eyewitnesses.
The High Court noticed that there was variations in the version given by Ramcharan
approver and the three eyewitnesses as regards the sequence of events and the
manner of assault but chose to ignore this by observing :
having regard to the nature of the incident, the fact that the life of the
eyewitnesses was in peril and the horrendous conditions under which they had to
make their escape, we do not think that the discrepancies regarding the order
in which the vehicles came and the directions in which they went can be
reflecting upon the credibility of the eyewitnesses. All this eventually had
been occurring in darkness, and even Ramcharan's recollection in this respect
cannot but be too hazy because of the gruesome nature of the incidence. We,
therefore, attach no value to the discrepancies." This approach of the High
Court does not appeal to us. The importance of the discrepancies had to be
considered to test the credibility and trustworthiness of the approver and the
High Court failed to do so.
careful analysis of the statement of the approver given at the trial coupled
with the circumstances under which he came to be arrested, the averments in his
application for grant of bail and other circumstances has 92 created an
impression on our minds that the approver is a planted witness and his
testimony is not at all worthy of reliance and credence. The investigating
agency appears to have created false evidence and fabricated false clues
insofar as the testimony of the approver is concerned. From all the attendant
circumstances, we are satisfied that the approver Ramcharan is not a reliable
witness; his arrest was intrinsically unnatural and his self-confessed
participation in the crime without taking any active part in it not acceptable.
The approver has claimed to be a spectator of every fact and of every moment but
asserted that he did not participate in the assault at any stage and remained
standing at a distance taking care of the clothes of some of the co-accused.
His statement is almost of an exculpatory nature. His statement as a whole does
not inspire confidence. His story is not worthy of credence. We find ourselves
unable to place any reliance on his untrustworthy and unreliable evidence and
in that view of the matter, we refrain even from expressing any opinion about
the effect of the alleged non-compliance with the provisions of Section 306(4) CrPC
read with Section 307 CrPC, as admittedly after the grant of pardon by the
order dated April 24, 1987, no statement of Ramcharan approver was recorded
till he appeared at the trial as PW 49. It is only after the grant of pardon
that the status of an accused is changed into that of a witness and the law
enjoins upon the courts to record the statement of the approver immediately
after pardon is granted to him so that he may consider himself bound by that
statement and failure to do so at the trial would render him liable for
prosecution. That exercise was not performed in this case.
Once, we have found that the approver is a planted witness and his testimony is
not worthy of credence and is uninspiring and unacceptable justifying its
rejection outright, it will be futile and wholly unnecessary to look for
corroboration of his testimony. It is only when the approver's evidence is
considered otherwise acceptable that the court applies its mind to the rule
that his testimony needs corroboration in material particulars connecting or
tending to connect each one of the accused with the crime charged. We need not
therefore detain ourselves to consider the other evidence led by the
prosecution to corroborate the testimony of the approver. Suffice it to say
that even the corroborating evidence of identification of the appellants in
court by the three injured witnesses, in the absence of any earlier test
identification parade, or the recoveries made by the associating convenient panch
witnesses for all the recoveries conducted from different places on different
dates at the instance of different accused but in the presence of the same panch
witness PW 27 is not trustworthy or reliable.
From the discussion above, we find that the prosecution has not been able to
prove the case against any of the appellants beyond a reasonable doubt and both
the trial court and the High Court fell in error in convicting and sentencing
the appellants for various offences as noticed in the earlier part of the
judgment. Their convictions cannot be sustained.
are conscious that five persons have died unnatural deaths on the Highway and
the crime is going unpunished.
the courts have to decide the cases on the evidence led and not on what ought
to have been led. The manner in which the approver has been introduced in the
case coupled with the alleged faked recoveries has created an impression on our
minds that the investigating agency failed to apprehend the real criminals and
created false evidence and 93 fabricated false clues in the present case to
somehow or the other secure the conviction of the appellants and save its image
in the face of the severe attack about its incapacity to apprehend the real
culprits by the public and the media.
unfortunate that the investigating agency should have resorted to fabricating
of evidence and act in the manner in which it did in this case.
"The quality of a nation's civilisation," it is said, "can be
largely measured by the methods it uses in the enforcement of criminal
law" and going by the manner in which the investigating agency acted in
this case causes concern to us. In every civilised society the police force is
invested with the powers of investigation of the crime to secure punishment for
the criminal and it is in the interest of the society that the investigating
agency must act honestly and fairly and not resort to fabricating false
evidence or creating false clues only with a view to secure conviction because
such acts shake the confidence of the common man not only in the investigating
agency but in the ultimate analysis in the system of dispensation of criminal
justice. Let no guilty man go unpunished but let the end not justify the means!
The courts must remain ever alive to this truism. Proper results must be
obtained by recourse to proper means otherwise it would be an invitation to
the result, the Criminal Appeal No. 201 of 1989 is allowed and the conviction
and sentences of the appellants are set aside and they are acquitted and
directed to be set at liberty forthwith, if not required in any other case.
Appeal No. 466 of 1989, filed by the State against acquittal shall also stand
dismissed. The respondents in Criminal Appeal No. 466 are discharged of their