Holding

The approver's testimony was deemed unreliable and uncorroborated, rendering the convictions unsustainable.

Summary

The case concerned a dacoity‑cummurder on a highway in July 1984 for which eight persons were convicted, largely on the testimony of an approver, Ramcharan, who had been arrested under suspicious circumstances and later granted pardon. The Supreme Court examined the legality of his arrest, the timing of his pardon, and whether his statement under Section 164 of the CrPC was recorded immediately as required. It held that the approver’s testimony was unreliable, uncorroborated in material particulars, and tainted by police fabrication and inconsistencies with his earlier bail application. The Court also found the identification of the accused without any test identification parade and the recoveries made in the presence of a single panch witness to be untrustworthy. Consequently, the convictions and death sentences were set aside and the accused were acquitted, while the State’s appeal against the acquittal was dismissed.

Issues considered

Whether the testimony of an approver can be relied upon without corroboration in material particulars.
Whether the arrest and subsequent grant of pardon to the approver complied with the requirements of Section 164 CrPC and related procedural safeguards.
Whether identification of the accused without a prior test identification parade is admissible.
Whether the recoveries and other circumstantial evidence presented by the prosecution are reliable.
Whether the convictions can be sustained on the basis of uncorroborated accomplice evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 307
Indian Evidence Act, 1872s. 114, s. 133
Indian Penal Code, 1860s. 149, s. 302, s. 306(4), s. 307, s. 342, s. 395, s. 396, s. 397

Subjects

approver testimonyaccomplice evidencecorroborationSection 133 Evidence ActSection 164 CrPCidentification paradefalse evidencepolice misconductdeath penaltydacoitymurder

Judgment

\

RAMPAL PITHWAS RAHIDASS AND ORS. A
'· v.
' 'STATE OF MAHARASHTRA ETC.

MARCH 1, 1994
1989

[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.]
B

Evidence Ac~S. 133, S. Jl~onviction of an accused on the un-cor-
( roborated testimony of an accomplice-Rule of prndence as per illustration
(b) of S. 114-Accomplice does not deserve to be relied upon without cor-
roboration in material particulars. c
Criminal Triaf-Status of after grant of pardon-Duty of Coult-The
status of an accused changes into that of a witness only after grant of
pardon-Statement must be recorded immediately after grant of pardon.

S. 164 and Criminal Procedure Cod~Statement of approvel'-Value D
of corroboration of evidenc&-Only sought when approver's evidence is other-
.... wise acceptable.
Very detailed nature of evidence of approver after 3 years of occun-ence
and making improvements upon the confessional statement lacks authen- E
ticity.

Sequence of examination as a witness-An approver should ordinarily
be examined as a first witness at a trial and not at the end when he has had
occasion to know the other evidence led by the prosecution.
F
..... ldentificatioit-ldentification in absence of any test identification when
accused were wearing masks and were not known to the witnesses-Not
trnstworthy.

Investigating Agencies-Role of-Must set fairly and honestly and must
not act in a manner which shakes the confidence of the common man in the
G
system of dispensation .of criminal justice.

...,. Panch Witnesses-Recoveries made at different pieces on different dates
at the instance of different accused in the presence of the same Panch
witness-Not reliable. H
179

\
}

180 SUPREME COURT REPORTS [1994] 2 S.C.R.

A According to the prosecution two watchmen on construction site { .
/

near a highway were assaulted by 9 assailants who then proceeded to
waylay six other persons passing on the highway and violently assaulted
them and escaped from the spot :after committing dacoity and consequfntly
5 victims of the assault died as a result of the injuries. Injured witness D
gave a statement which formed the basis for the F.I.R. No arrest was made
B for about 4 days leading to tension at the town C and there were demonsru·
lion in the town against the police inaction.
)
One R who later on turned an approver was arrested 4 days after
the event in connection with an allegation regarding an innocous incident
c involving touching of a bicycle under circumstances and for reasons not
satisfactorily explained by the prosecution. During Interrogation, R dis·
closed bis involvement In the sensational dacoity 4 days earlier and con·
sequent to the information disdosed by R, all other accused and one more
person M were arrested, M, however, died in police custody within 3 days
of bis arrest. 'Thereafter accused R made a voluntary statement under S.
D 164 of the Criminal Procedure Code before the Judicial Magistrate giving
details of the crime. This led to some recoveries and arrest of two more
persons. On grant of pardon R turned an approver. The prosecution in "
support of Its case primarily relied upon the testimony of the approver,
the statements of the injured witnesses and recoveries of articles allegedly
E belonging to the dead persons. The defence of the accused was one of denial
and false implication.

Accepting ·the approver"s statement the trial Court convicted all the
eight accused u.nder S.302/14!1 I.P.C. as well as Sections 307 and 395 I.P.C.
and sentenced them to deatln. In appeal and coltlirmation proceeding In
F the High Court, 3 accused Wt're acquitted and the conviction under S. 302 .II'
I.P.C. and consequent death, sentences were maintained in respect of 5
accused. All the 5 convicted accused and the State (against the acquittal
of 3 accused persons) appealled to this Court.

Allowing the appeals o[ the accused and dismissing that of the State,
G
this Court

HELD : 1. That the circumstances surrounding the initial arrest of
the approver R were curious and the prosecution concocted a false story ,,...
about the arrest of R who was planted as an accused In order to silence the
H large discontent against the police due to its inability to apprehend the

f
RAMPAL v. STATEOFMAHARASHTRA 181

culprits. The recovery of a bag at the instance of R was also not free from A
' doubt due to conflict in versions regarding its contents. The version in R's
confessional statement under S. 164 Cr. P.C. dated 21-7-1984 was departed
from in his application dated 17-1-1987 seeking bail where he disclaimed
any knowledge about the incident and disclosed police pressure on him to
become an eye witness. R, the approver was throughout under pressure to
become an approver due to the fact that the police was under constant
B
attack from the media and the public and even his first confessional state-
lnent was not a voluntary one having come a couple of days after the death
of another accused in police custody. The examination of Ras an approver
at the fag end of the trial and not as the first prosecution witness enabled
him to know the other evidence led in the case so that he could depose c
accordingly in support of the prosecution. [197-G; 202-C, ff; 207-A, BJ

2. Identification of all the appellants In the absence of any earlier
test Identification parade when the assailants were alleged to be \Vearing
masks and were unknown to the victims or the injured witnesses, is of no
significance. The conduct of the approver in going away without a penny D
and the co-accused permitting him to do so. defies logic and common sense.
The very detailed statement of the approver at the trial recorded more than
3 years after the occurrence and travelling far beyond the confessional
statement, makes it difficult to believe its authenticity. The Importance of
the discrepancies has to be considered to test the credlblllty and trustwor- E
thiness of the approver and therefore Is not a reliable witness, his arrest
Intrinsically unnatual and his self confessed participation in the crime
without taking any active part Is unacceptable. R's statement is not worthy
of credence and does not Inspire confidence. [202-F; 203-B; 205-EJ

3. Long settled practice that S. 133 of the Evidence Act must be read F
with the provisions of illustration (b) to S.114 of the Evidence Act and
while law permits the conviction of an accused person on the basis of the
uncorroborated testimony of an accomplice, the rule of prudence is that
an accomplice does not generally deserve to be relied upon unless his
statement is corroborated in material particulars. (187-E, FJ G
Ram Narain v. State of Rajasthan, (1973) 3 S.C.C. 805, relied upon.

i, 4. The status of an accused changes into that of a witness after grant
of pardon and the law enjoins the courts to record the statement of the
approver immediately after pardon is granted to him so that he may find H
!

182 SUPREME COURT REPORTS [1994] 2 S.C.R.

A himself bound by that statement and failure to do so would render him
liable for prosecution. It is only when the approver's evidence is considered
otherwise acceptable that the Court applies its mind to the rule that the
approver's testimony needs corroboration in material particulars connect.-
ing or tending to connect each one of the accused with the crime charged.
[206 B-D]
B
5. The corroborating pieces olr evidence of identification by the 3
injured witnesses in the absence of any earlier test identification parade
or the recoveries made at different dates and different places at the
instance of different accused in the presence of the same panch witness
C P.W. 27 are not trustworthy or reliable. [206-E, F]

6. Investigating agencies must act fairly and honestly 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 investigation a~:ency but also in the system of dispen-
D sation of criminal justice. Let no guilty man go unpunished but let the end
not justify the means. Proper results must be obtai!led by proper means
otherwise it would be an Invitation to anarchy. (207-C-E)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
201of1989.
E
From the Judgment and Order dated 31.10.80 of the Bombay High
Court in Crl. A. No. 2 of 1988.

WITH

F Criminal Appeal No. 466 of 1989.
,.
From the Judgment and Order dated 27, 28 & 31.10.88 of the
Bombay High Court in Crl. A. No. 2 of 1988.

A.K. Sanghi for the Appellant in Cr!. A. No. 201/89.
G
S.M. Jadhav and A.S. Bhasme for the State of Maharashtra.

Shiv Pujan Singh, Rajeev Kumar and Sunil Kumar Singh for the
Respondent No. 1-3. >- •

H The Judgment of the Court was delivered by
\

RAMPAL v. STATEOFMAHARASHTRA [DR.ANAND,J.] 183

~ DR. ANAN~, J. These two appeals, by special leave, arise out of a A
common judgment of the High Court of Judicature. Appellate Side, at
Bombay (Nagpur Bench) dated 27th, 28th and 31st October 1988, confirm-
ing the death sentence passed by the Addi. Sessions Judge, Chandrapur
for an offence under Section 302 IPC on five appellants in Criminal Appeal
No. 201/1989. Three convicts were acquitted by the High Court and B
Criminal Appeal No. 466/1989 has been filed by the State of Maharashtra
against their acquittal. This judgment will dispose of both the appeals.

Nine accused persons, namely, Rampa!, Fulchand·, Babula!,
Sheoprasad @ Dhunda Chunbaliya, Basawan, Shamlal, Pratap, Ramkishor
and Ramcharan, were sent up for trial for commiting the murder of Tanba C
Gedam, Baldeosingh, Raman Chandra, Prakash Vehdakar and Raju Desh-
mukh and for causing injuries to Surendra PW31, Mahendrasingh PW33
and Doma PW5 on 3.7.1984 between 7.30 p.m. and 10 p.m. on the Highway
Chandrapur-Ballarshah Road while committing dacoity. (One other ac-
cused 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 D
read with Section 149 and Sections 395 and 396 of IPC. Accused No. 1
Ramcharan Rahidass 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 E
offence under Section 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 Ji fine of Rs. 50/- each and in default they were
directed to suffer rigorous imprisonment for seven days. The learned Addi.
Sessions Judge submitted the proceedings to the High Court for confirma-
' tion of the sentence of death and the convicted eight accused also filed a F·
criminal appeal challenging their conviction and sentence in the High
Court. While the appeal of appellants Basawan Rahidas, Pratap Hahidas
and Ramkishor Rahidas was accepted and they were acquitted of all the
charges, the appeal filed by Rampa! and four others was dismissed and
their conviction under Section 302 IPC was maintained. The High Court G
also confirmed the sentence of death on Rampa! and the other four
appellants, who have filed Crimianl Appeal No. 201/1989. The State of
Maharashtra has filed Criminal Appeal No. 466/1989 against the acquittal
~ ~ of Basawan and two others.
H
/

184 SUPREME COURT REPORTS [1994] 2 S.C.R.

A The prosecution case is that on 3rd July 1984, near K.M. No. 9 on
Chandrapur-Ballarshah Road which is a part of Highway No. 84, construc- ' {
tion of two buildings of a seed centre was in progres.,. Doma and Tanba
were acting as watchmen at the construction site. At about 7.30 p.m., while
Tanba and Doma were present at tbe site, they heard the approaching
B 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 T anba '
was wearing and dragged them both to a distance of about 25 ft. and
C ultimately threw them in a ditch, which was at some distance away from
the main road. The 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. Mahendrasingh and Baldeosingh were coming on a
D 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, ,
Msahendrasingh and Baldeosingh became unconscious. Baldeosingh died
on the spot. The assailants threw away his body and the scooter on one
side of the road. Mahendrasingb who had also become unconscious was
E 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 wiving a scooter with Surendra Chopra and was
passing through on that road, when his scooter was stopped. Both of them
F 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 passi111g by the road on his scooter, for a lift. Mumtaz
G Ahmed took Surendra, to the house of his brother at Ballorshah. 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 r t
assistance of the police sub-inspector Chandrapur was also taken and he
H
RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.] 185

accompanied them to the spot and on reaching the place of occurrence A
). ' they come to know about the killing of 4-'.i persons. They later on found
the dead body of Raju Deshmukh. The dead body of Tanba was also found
there.

PSI Godekar of the Traffic Branch at Chandrapur was on the High-
way at about 2210 hrs. on July 3, 1984 when on learning that some dead
B
bodies were lying by the side of the road, he alongwith 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 Pl Thakur of Chandrapur Pokice Station,
who rushed to the scene of occurrence and found three dead bodies and c
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 Electricity Board. Sub-Inspector Bante
of Chandrapur City Police Station went to the General Hospital
D
Chandrapur and recorded the statement of injured PW Dama, 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 Vahadkar, 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 E
dead bodies were also prepared. The blood stained clothes of the injured
were seized vide separate panchnamas. Some 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 post mortem F
examination to the General Hospital Chandrapur where Dr. Murkey con-
'
ducted the post mortem eXdlllination on the dead bodies and submitted the
post-mortem reports.

We do not consider it necessary it necessary or expedient to
reproduce the injuries noticed on each of the deceased, as the same have G
been given in detail both by the learned Addi. Sessions 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. H
I

186 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Dr. Lohare PW examined injured Mahendrasingh PW on 4th July
1984 and found swelling on his ri1~t fore-arm lower part, and after an ' .
X-ray examination it was discovered that Mahendrasingh had suffered
fracture of the right ulta. 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
B PW was examined by Dr. Lohare and it was found that he had swelling on
both the hands, lower part of the right fore-are, left knee, right post-
curicular of scalp, lacerations on the left and right forehead, contusion on
the right lower thorasic region, tenderness on the left shoulder and an
abrasion on the right shoulder. There was no clue as to the culprits in the
c case. Right from the start of the investigation on 3.7.1984, till 7.7.1984 no
arrest was made. None of the injured prosecution witnesses could throw
any light on the identity of their as•>ailants or those who had committed the
murders on 3.7.1984, 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 com-
D
mitted on the Highway, demonstrations against police inaction were held
at Chandrapur and a complete l:iandh was also observed for one day. ,
Unprecedented tension prevailed in Chandrapur on account of ineffective
and slip shod investigation by the police. Both the public and the press
continued to blame the police for their inaction and the police authorities
E were naturally concerned.

On 7.7.1984 accused No.l Ramcharan, who later on truned an ap-
prover in this case, was sighted by one Manohar Thikare PW near the
metre-gauge line which passes from Chandrapur and goes towards Gondia.
F He was arrested in village Rajoli within the jurisdiction of Police Station
,
Mui in connection with some other ease. We shall, in the latter part of the
judgment, deal with the story of his arrest in some details. According to
the prosecution ease, Ramcharan accused is alleged to have disclosed,
during interrogation, at Police Station Mui that he bad taken part in a ease
of dacoity on Ballarsbah road. On getting this information the police officer
G of police station Mui informed tlie Superintendent of Police, Chandrapur
and on his direction Ramcharan accused was transferred from Police
Station Mui 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 a sequence of
H the information given by him, all other accused persons along with one
\

RAMPAL v. STATE OF MAHARASHTRA (DR.ANAND,J.] 187

Murari Deshmukh were arrested. Murari, however, died within three days A
of his arrest while in police custody. According to the prosecution, Ram-
charan accused made a voluntary statement under Section 164 before the
Judicial Magistrate !st Class on 21.7.1984 giving details of the crime.
Armed with that statement of Ramcharan accused, the investigating agency
allegedly effected some recoveries after arresting the other accused per-
sons as well as at the instance of the approver himself. Ramcharan accused,
B
subsequently turned an approver and the accused were put on trial.

The 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 C
belonging to 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. Rampa! and Basawan, the acquitted accused,
also pleaded alibi. Before dealing with the statements of the eye-witnesses
and the alleged recoveries, we shall first deal with the statement of the D
approver Ramcharan PW, an accomplice of the accused, who turned an
approver on grant of pardon.

LEGAL POSITION:

Section 133 of the Evidence Act expressly provides that an ac- E
complice 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 em- F
powers 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 µncor-
roborated testimony of '"" accomplice by virtue of the provisions of Section G
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
P ~. 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 H
I

188 SUPREME COURT REPORTS [1994] 2 S.C.R.

A an approver may be accepted in evidence for recording conviction of an
accused person provided it rec1!ives corroboration from direct or cir-
cumstantial 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
B
his erstwhile accomplices and therefore before recording conviction Courts

'
insist upon independent corroboration of his testimony. lo Ram Narain v.
State of Rajasthan, [1973] 3 SCC 805 at 811, Dua, J. while speaking for the
Court dealt with the subject and observed :

c "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. Jn other words he has purchased complete
immunity for his prosecution at the expenses 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
D
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 containning some untruth which he can easily
E 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 al'prover's testimony which is
clearly admissible is allso worthy of belief credit. One can of course
visualise an accomplice who is genuinely repentant for the com-
mission of his crime and truly desires to make a clean breast of ,
F
the whole affair by way of penitence. But even in such cases the
court has to judicially determine the extent to which his uncor-
roborated testimony can be considered as trustworthy by looking
lo the other relevant material and the attending circumstances on
the basis of which the accused can be safely convicted. The rule
G 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 corrobora-
tion must be clearly present to the mind of the judge."

H ARREST OF RAMCHARAN AND GRANT OF PARDON TO HIM:
\

RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.] 189

The above principle has stood the test of time and it is with this A
background present in our minds that we shall examine the testimony of
Ramcharan approver PW49. How he came to be arrested? How did he
became 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 creditworthi-
ness of his testimony and the nature and the extent of corroboration which
B
is required before his testimony can be relied upon in support of the
prosecution case.

The approver appeared as PW49 at the trial. He was arrested on
7.7.84 in some other connection and till his arrest as already noticed, the C
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?

One Monohar Tikare PWl, according to tbe prosecution case, was D
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
PWl shouted at Ramcharan PW49 and got down from from the tree. The
approver started running way. Manohar got down from the tree and riding E
on his bicycle, instead of chasing the approver, who had 'touched' his
bicycle went home to inform his brother, Sudhakar PW2 about what he had
seen near the tree. Both Manohar PWl and Sudhakar PW2 then came back
to the spot and started looking for the 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 PW3, who sent Sudhakar PW2 F
with Ramcharan approver to Police Station at Mui with his report Ex.29,
which makes an interesting reading and reads thus :

To
G
The Police Statiot Officer,
Police Station, Mui.

Subject : In respect of C<tching theif on account of suspicion.

Sir, H
I

190 SUPREME COURT REPORTS [1994) 2 S.C.R.

A It is submitted as under -

This day 7.7.84, Saturday, when Manohar Kessari Thikare,
resident of Rajoli, had gcine for plucking leaves, on a bicycle.

Ramcharan started going away by talcing his bicycle. At that
B time, he (Manohar) shouted and with the help of his brother
Sudhakar Thikare, he (Manohar) caught Ramcharan and brought
him. He (Ram.charan) told his name to be Ramcharan Ramasheth
Chamber, resident of Gondia. Hence you are requested to hold
enquiry into the said matter. Finfah, dated 7.7.84.
c Seen, Sd/ T .K. Thikare,

(Sd/-) X Illegible X
S.D.P.O. Police Patil Rajoli
Dt. 8.7.84 Police Station, Mui
D Tehsil & Dist. Chandrapur.

However, it is neither the case of Manohar PWl nor of Sudhakar
PW2, that approver Ramcharan made any attempt to steal that bicycle of
Manohar PWl let alone that he "started going away by taking his bicycle'.
The testimony of Manohar PWl, which is also supported by panchnama of
E the spot dated 7.7.84 E<. 31, 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 PWl 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 PWl and his brother Sudhakar PW2 should
F have, come back on the cycle to the spot and why did they chase Ram ,
Charan approver, who had done practically nothing, and finding him on
the Railway water tank took him to PW3 Tulsiram. What was the basis for
Tulsiram PW3 to say in his report Ex 29 (supra) that Ramcharan "stalted
going away by takpig his bicycle" is not at all intelligable? Why Tulsiram
PW3 wrote it has not been explained even by him while appearing as a
G witness at the trial. But then unless the Police Patil Tulsiram PW3 bad
concocted a story of "stealing" there was perhaps no occasion for Tulsiram
Police Patil to send the approver to police station Mui with his report
Ex. -29 and that appears to be the reason for incorporating the story of
eJleged theft of the bicycle by the approver by Tulsiram PW3 in his report
H Ex.-29. What happened subsequently at Mui Police Station is even more
\

RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.] 191

~urious. A

When a Kotwal and Sudhakar PW2 produced Ramcharan at Police
Station Mui along with report Ex.-29 from Tulsiram PW3, PSI Chs ...Jel
PW41, of Police Station Mui, made an entry in the station diary regarding
the 'incident' and arrested Ramcharan under Section 109 of the Cr. P.C.
(not under Section 379 or 379/511 !PC) and interrogated him, during the
B
course of whirh, 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. P7, however, there is no mention that PW41 PSI Chandel
had arrested aceused Ramcharan under Section 41/109 Cr. P.C. When
asked during the cross examination as to whether he had preparecl the C
arrest panchnama of aceused Ramcharan, PW41 Chandel replied in the
negative. When questioned as to why the approver was arrested under
Section 109 Cr.P.C. when that was not the purport of- Ex.-29 sent by
Tulsiram PW3, the witness stated that 'if any person is found pick-pocket-
ing at bus stand, we arrest him under Section 41/109 Cr.P.C.' but could not D
!xplain as to the basis on which aceused Ramcharan was arrested under
'>ection 41/109 Cr.P.C. It was suggested to Chandel PW41 during the cross
oxamination that since in the area, public discontent had been daily in-
creasing, therefore, a false story was concocted and Ramcharn accused was
planted as an aceused. he denied the suggestion. The prosecution has
attempted to show that Manohar PWl and Sudhakar PW2 were inde- E
pendent witnesses, who had made a complaint to police patil Tulsiram
PW3 in a routine manner and that Tulsiram Patil PW3 sent Ramcharan to
Police. Station Mui also in a routine manner alongwith his report in the
official routine. The truth however, appears to be otherwise. During his
deposition PWl Manohar, after stating that Ramcharan was sent to the F
Police station by the police patil tulsiram PW3 along with his brother
Sudhakar PW2 and Vilas Kilake Police Kotwal at about 10 a.m., admitted
in his cross examination that ''Police patil Tulsirom is my cousin brother".
He, therefore, proverbilly speaking let the cat out of the bag !

It appears to us that Tulsiram Patil PW3 utilized the services of his G
cousins Manohar PWl and Sudhakar PW2 to plant Ramcharan and have
him arrested under Section 109 !PC at police station Mui with the assis-
tance of PW41 sub-inspector Manohar Singh. The entire story regarding
arrest of Ramcharan appears to be a police i:oncoction and padding with
a view to silence the large discontent against the police on account of its H
!

192 SUPREME COURT REPORTS [1994] 2 S.C.R.

A inaction to apprehend culprits, who were responsible for committing five 1
murders on the Highway, beo:ides causing injuries to three witnesses.

At this stage it would also be relevant to take notice of the report
sent by PW41 Chandel while transferring Ramcharan to Police Station ·
Chandrapur City. Ex.197 is llhat report and it also makes an interesting
B reading. It reads as follows :

Police Station Mui,
Date:S.7.1984

To,
c The Police Inspector,
Police Station, Chandrapur City.

Sub : Regarding trasfor of Ramcharan son of Rameshray Rahidas,
the accused arrested under Section 41(2), 109 of Cr. P.C. at Police
Station Mul and his relevant documents.
D
Sir,

Report is submitted as under :

On 7.7.1984, Police Patil of village Rajoli sent a person named
E Ramcharan Rameshray Rahidas and written report to the Police
Station Mui, through Sudbakar Shivram Thikre. It was stated in
the said report that the person named Ramcharan Rahidas was
caught while he was trying to take away the bicycle of Manohar
Shivram Thikre. On the basis of the said report I personally"went
F to vi11age Rajo\i and made an inquiry about the said incident.
During the course of inquiry the following facts were came to
know:

At about 7 a.m. Manohar Shivram Thikre went on a bicycle to
pluck the leaves of Palas tree. He kept the bicycle on foot track
G 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
H went to the village by the said bicycle aud brought his brother
RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.J 193
. )
Sudhakar Thikre on the said bicycle. At that time Ramcharan was A
on the cistern. Then the said two brothers caught Ramcharan
Rahidas and brought him to the Police patil of Rajoli.

On the basis of the said inquiry since it reveals tha~ 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, B
he has been arrested at 1935 hrs. of 7.7.84, under Section 41(2), 109
Cr.P.C

On making minute inquiry to the accused Ramcharan Rahidas
regarding other crimes, he disclosed that he was related to Crime C
No. 135/84 under Sections 396 and 397 of I.P.C. registered at Police
Station Chandrapur City. Since accused Ramcharan Rahidas is
related to the said crime, he has been transferred to the crime
registered at police Station Chandrapur City. Relevant documents
have been also submitted alongwith the report for taking proper
action. (Emphasis Supplied) D
Sd Chandel,
P.SJ. Mui,
Dt. 8.7.1984

PW 56 Jamdar Singh who at the relevant time was attached as Police E
Inspector at Police Station Chandrapur, while deposing about the transfer
of accused Ramcharan,stated that on 8th July 1984, the D.S.P. Chandrapur
informed him on telephone that one person in connection with the decoity-
cum-murder which took place on 3rd July 1984 on Chandrapur-Ballarshah
'
road was arrested at Mui and his name is Ramcharan, and on getting that F
information PW56 sent a jeep to Mui to bring Ramcharan approver to the
City Police Station. PSO Chandel of Police Station Mui came along with
the accused to police station and handed over the papers regarding the
arrest of Ramcharan at about 2.00 a.m. On what basis Crime No. 135/84
under Section 396 and 347 !PC Police Station Chandrapur City came to be G
incorporated in the transfer note Ex. 197 (supra) by PWl Chandel of Police
Station Mui has not been explained by the prosecution ?

After interrogating Ramcharan, PW 56 J amdar Singh placed him
under arrest and went on to depose that 11 he gave me. infOrmation about
the persons involed in the commission of offence of dacoity-cum-murder H
l

194 SUPREME COURT REPORTS [1994) 2 S.C.R.

A 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 8th July 1984, be allegedly disclosed in presence
of panches, Fakru and Patel, that he had kept a bag at the house of accused
Babu Lal and that he was willing to produce the same. His stateme;nt Ex.
105 was reduced into writing. Accused Ramcharan then went with the
B police party, in a police jeep, to the house of Babu Lal and after going
inside the house, brought out one black bag Ex. 144 which was seized vi<le
seiZtlre memo Ex.103. The bag was empty. PW56 then deposed that there
were so,.1e blood stains present on the loongi which Ramcharan was
wearing and therefore, Ramcharan was asked to change the loongi and his
C blood stained loongi was seized vide Ex.102. In the transfer memo Ex.197
(supra) there is no menti1on of the presence of blood stains on the loongi
of accused Ramcharan while he was in custody of PW41 Chandel at police
station Mui and the prosecution has not been able to explain as to when
and how his loongi got blood stained more particularly when on
D Ramcharan's own showing had taken no part whatsoever in the assault
made on the deceased or the injured persons.

Deposing about the recovery of the black bag Article 144, at the ·
instance of accused Ramcharan, one of the panch witnesses Fakruddin
PW27, stated that one of the accused whose name or face he did not
E 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 blood stained clothes
F 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 PW27 with regard to the alleged dis-
G closure statement made by Ramcharan coupled with the testimony of
PW56 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 ba& but what was
produced by Ramcharan from the house of Babula/ was a bag containing
H blood stained clothes. These discripancies render the so called recovery
\

RAMPAL v. STATEOFMAHARASHTRA [DR.ANAND,J.] 195

\
doubtful. A

We shall now deal with the manner in which the confessional state·
men! of RamcharaIJ under Section 164 Cr.P.C. came to be recorded on
21.7.1984 and its contents as afao the manner of grant of pardon to him
more than two years later. As already noticed, accused Ramcharan was B
arrested on 7.7.84 at Police Station Mui and then transferred to
Chandrapur Police Station on 8.7.84 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 Isl Class on 21.7.84.
He appeared before the Judicial Magistrate !st Class Sh. Bhola on 19.7.84
and offered to make a confessional statement. He was given 24 hours time C
to think and reflect whether he wanted to make any voluntary confession.
The learned Magistrate Chandrapur Sh. V.K Bhola after cautioning ac·
cused 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 D
Cr.P.C. 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 father for two days,
when one person by the name of Kewal who was a resident of Ballarshah
met him at Gondia. He told Kewal that he wished to do some work, on
which he was asked to come to Ballarshah where Kewal would get him E
engaged for work on daily wages of Rs.14-Rs.15 per day. That on a
Saturday he came to Ballarshah along with Kewal and on Sunday he
worked on a truck. He' was paid Rs. 7 towards labour and he told Kewal
that he was not willing to work on Rs. 7 per day and then went away from
, the house of Kewal. The full name of Kewal as disclosed by Ram Charan F
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 fo11nd Sham·
Jal, Babula!, Fulchand and Sheoprasad and requested them to get him
engaged some where 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 G
house of Babula! and remained in the house of Babula! on Monday for the
whole day. On Tuesday Babula! 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 Babula! and Ramcharan
heard them say "that they are in need of money and hence they wish lo H
/

196 SUPREME COURT REPORTS (1994] 2 S.C.R.

A commit robbery''. Ramcharan told them not go 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 bis 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
B the evening, he along with Babula!, 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 on foot went towards the place where
the house was under construction. The five persons who had earlier gone
to the forest also came there. Babula!, Shamlal, Fulchand and Sheoprasad
took off their clothes and handed them over to him. Sheoprasad and
C Fulchand took the knives which were given to them by Babula! after talcing
them out from an attachi case which Babnulal 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 foet from the bridge. He was directed that if any
vehicle arrives then he should give a signal by making a sound with the
D stick. That was all the job assigned to him. Fulchand, Babula! and
Sheoprasad went to the watchmen of the new house to take sticks. He then
narrated how Fulchand, Babula! and Sheoprasad had gone to the site of
construction and he bad seen them cause injuries to both the watchmen as
well as the manner in which the motor-cyclist, scooterists and cyclewala
were stopped and assualted and added that his co-accused had robbed the
E 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 denominatio1n of Rs. 100 by Babula!. They reached Ballarshah
at about 12-1 O'Clock in the mid-night and while• Ramcharan remained
F sitting on a cot outside the house, the rest, all the nine persons, went in
and remained inside the house of Babula!. After about half an hour, they ,
all came out of the house of Babula! and went to their respective houses.
Thereafter, be went to take meals with Babula! and then went to bed. In
the morning, Sheoprasacl prepared tea and all the nine persons again
gathered at the house of Babula! and they told him to return to bis native
G place but since he had no money he demanded money from them for going
back-to bis native place. "However they did not give me money". "They
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, ,-f"
then I would disclose everything. I took the meals and came to Chandrapur
H
RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.] 197

Railway Station on foot" and remained at the Railway Station for the whole A
' day and boarded a narrow-gauge train for going to Gonda without ticket.
On the way, the T.T. asked him to get down from the train since he was
travelling without tickets, and he 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 coss, he started
B
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 :

"On the way, I saw that one boy had kept his bicycle aside and he
was plucking the leaves. I went to him and asked him as to at what c
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. From there, I was taken to police
station, Mui. The Daroga (Police Station Officer) of Mui 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 D
every true facts to the Police.' (Emphasis supplied)

The above version given by accused Ramcharan about the manher in
which he was arrested is quite different from the version given by PWl
Manohar, PW2 Sudhakar, PW3 Tulsiram, PW41 Chandel and PW56 In- E
spector Thakur. There is no mention of the existence of or touching of the
cycle in the statement of the approver recorded under Section 164 Cr.P.C.
According to the approver he was not told by the police to make a
statement under Section 164 Cr.P.C. 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 F
magistrate for the purpose of getting his statement recorded.

After waiting for more then two years after his arrest and the
statement made by him under Section 164 Cr.P.C., while Ramcharan was
in the judicial lock-up, he submitted an application to the District and
G
Sessions judge Chandrapur on 17.1.1987 seeking bail and in that applica-
tion he said that he was being forced to become an eye witness in the case
although he knew nothing about the crime. That application &. 20 dated
..,. 17.1.1987 makes an interesting reading. It reads:

In the Court of District and Sesions Judge, Chandrapur. H
I

198 SUPREME COURT REPORTS (1994] 2 S.C.R.

A Subject : For grant of bail; or for final hearing of the case.

Applicant : Ramcharan s/o Ram Asre.

Offence under Sections 396 and 397 of I.P.C.

B Sir,

The applicant submits as under :- ,.
I
That the above applicant is undergoing imprisonment in the
sentence of 2 years, 6 months, U/Sec. 396 and 397 of l.P.C., in the
c District Prison Chandrapur. The Olandrapur District City Police
(Crime Branch), in order to avoid their troubles produced the above
applicant. In the Court as eye witness; and thereafter sent him in the
Jail. In fac4 the applicaiil does not know anything about this crime.
The applicant being the respectable person and because of family
D worries, he cannot keep mental balance. The applicant is the Karta
(manager) of his family. This Hon'ble Sessions Court has not heard
this case for its final disposal as yet, through many recent matters
have been decided.

It is, therefore, prayf:d that this Hon'ble Court may be pleased to
E grant the applicatio:n 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.

The applicant hopes that this Hon'ble Court would look into the
matter and consider this application.
F (Emphasis supplied)

Yours faithfully,
Dt. 17.1.87.
Place : Lock up of Thumb Impression of
G
District Court, Ramcharan
Chandrapur s/o Ram Asre

Bail was, however, declined and he continued to remain in custody. ~
According to the prosecution case, on 1.4.1987, Ramcharan accused sud-
H denly and of his own decided to become .an approver and to make a
RAMPAL v.STATEOFMAHARASHTRA (DR.ANAND,J.) 199

disclosure of all facts, about which he had said in his application dated A
17.1.1987 that he.knew nothing! His application dated 1.4.1987 reads :

'To
The District and Session Judge,
Chandrapur.
B
Sub : Case u/ss 396 and 397 of IPC.
' Through : The Superintendent,
District Prison Chandrapur.

Sir,
c
I, Ramcharan s/o Ramashraya, prisoner no. 1803 state as under:

That on 19.7.84, the police imprisoned me in this jail under
Sections 3% and 397 of !PC. The statement given by me in the
lower court in respect of my case, is true. The persons against D
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 murder of the person. 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.
E
Before me, Yours faithfully, (T.1.)
Sci/- Illegible Jailor Left hand thumb
Districat prison, impression of Ramchanran
Chandrapur. s/o Ramashaya

No. Jud/433/87 F
Chandrapur District Prision
Chandrapur D\1.4.87

Submitted to the Sessions Judge, Sessions Court, Chandrapur
for necessary further disposal. G
Sci/- Illegible Jailor
District Prision Chandrapur."

The District Judge forwarded the application to the Addi. Sessions
Judge, Chandrapur and the Public Prosecutor was directed on 23.4.87 to H
!

200 SUPREME COURT REPORTS (1994] 2 S.C.R.

A file reply to the application of Ramcharan. The Public Prosecutor in the
reply stated :

"The application can be allowed after some prelimimuy questions
provided he gives evidence on oath sticking upto the previous
statements u/s 162 and 164 Cr. P.C."
B
Thereafter, an order granting pardon, which reads as follows, wa~ made on
24.4.1987:

"Accused No.l Ramcharan son of Ramashray Rahidas is one of
the accused persons in a dacoity-cum-murder case which took
c place on Chandrapur Ballarshah road on 3.7.84. He has made a
confession statement before the learned Judicial Magistrate, !st
Class, Chandrapur admitting that he and the other awtSed are
involved in the said offence. He has now asked to pardon, m. The
incident has taken place in the jungle at night. Proof of guilt of all
D accused persons is not forthcoming satisfactorily. It is necessary to ,
bring the rest of tho offendors to justice. There is prir. facie
evidence that the present accused was present on the spot. He is
not a principal offendor. He has agreed to make a true and
complete disclosure of all the facts within his knowledge I, there-
fore, foel that the said accused should be granted pardon on
E
condition that he will m:ke true and complete disclosure of all the
facts within his knowledge which he has agreed. I, therefore, pass
the following order :

ORDER
F
Accused No. 1, Ramcharan son of Ramashray Rahidas is
tendered pardon under Section 307 of Cr.P.C. on condition of his
making a true and complete disclosure of the whole of the cir-
cumstances within his knowledge relating to the offence and to
every other person concerned whether as principal or abettor in
G
the commission thereof.

Dt. 24.4.87. Sci/- F.N. Velati
Addi. Sessions Judge Chandrapur ."

H· Considering what Ramcharan approver wrote in his application seek-
RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.] 201
)

ing bail, dated 17.1.1987, one is left to wonder as to what made him to write A
his application on 1.4.1987, seeking pardon and to be made an approver.
In his application ~eeking 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 17.1.87 Ramcharan had B
categorically asserted that he had no knowledge of the crime. The state-
' ments 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 C
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 opinion, did not consider the significance of this variation in the
statement when it observed that :
D
"We do not, therefore, think that the statement in the bail applica-
tion, 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 1.4.1987 decide to address a letter to the E
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 8.7.84 within 2/3 days the police had got his F
photograph taken. This has been admitted by Ramcharan approver in his
cross-examination while appearing as PW49. 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 G
while in police custody on 10th July 1984. It was within a few days after
the death of Murari, that Ramcharan appears to have made his confes-
sional statement under Section 164 before the learned Judicial magistrate
but through his application dated J7.1.87, he reported to the Sessions Judge
that he was being asked to become an eye witness in the dacoity case, when
he knew nothing about that crime. This should have put the Court as its H
/

202 SUPREME COURT REPORTS [1994] 2 S.C.R.

A guard, when it was considering hi• application for tender of pardon dated
1.4.1987, but it seems that th'e Sessions Court did not apply its mind to that
aspect at all. Having already made the so called voluntary statement under
Section 164 Cr.P.C. on
21.7.1984, why did he complain in bis application
dated 17.1.1987, that he was being forced to become an eye witness though
he did not know anything about the crime? The prosecution offered no
B explanation. That the statement under Section 164 Cr.P.C. 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 Ram-
charan approver was throughout under pressure to become an approver in
the case because the investigation had drawn a blank and admittedly the
C 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.
D
The approver on bis own showing did not know any of the appellants
other than A3, A4, A5 and A7. A'CCOrding to the testimony of the injured
prosecution witnesses PW9, PW31 and PW33 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
E identified at a test identifica1tion parade either by the approver Ramcharan
or even by the three injured prosecution witnesses PW5, PW31 and PW33.
No test identification parad€: was even held to bavt 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
F any earlier test identificatioll 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 significance, in the facts and circumstan-
ces of this case, to positively connect the appellants with the crime.

We have already made a reference to the statement of Ramcharan
G approver recorded under Section 164 Cr~P.C. before be made an applica-
tion for being tendered pardo11. 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 PW49, almost at the fag end
of the trial after he had the occasion to know the other evidence led in the
H case, so that he could depose accordingly in support of the prosecution.
RAMPAL v. STATE OF MAHARASHTRA [DR.ANAND,J.J 203

The statement of Ramcharan as PW49 is a detailed one and gives in A
graphic details not only the manner in which he was arrested; the cir-
cumstances 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 B
persuant to disclosure statements made by ·different: appellants from
different places of different articles on different da(es. 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 PW49 is much more detailed than the one
contained in his confessional statement recorded under Section 164 Cr.P.C. C
within a few days of his arrest. Some of the statements made as PW49 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 D
tell him to do. That apart, 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 Ballar-
shah 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 E
road. The accused persons then caught hold of him by his hands and took
him toward' 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 F
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. Myself, accused Rampa!,
accused Rarnkishor and deceased accused Murari went from
paper Mill side to Ballarshah city. We went to the house of accused G
Babula!. We reached the house of accused Babulal at midnight 12
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 Babula! H
I

204 SUPREME COURT REPORTS [1994) 2 S.C.R.

A advised him to go to his home town and told him

"that they had committed dacoity and murder. Police were enquir-
ing in the matter. I am a new person, they would therefore suspect
and interrogate me. I told accused Babula! that I had no money
to go to my home town. The accused Babula! told me that he had
B no money and he cannot give me any money. At about 10 a.m. I
started going. Accused Babula! told me not to tell anybody about
the incidence. I told accused Babula! that if anybody asks me I will
narrate the incident ............ I came to Chandarpur on foot. I went
to B.N.R. railway station and went to the platform." They gave him
c no money.

From the statement of the approver appearing as PW49 at the trial,
it emerges that even though Babula! accused had told him that he shall be
given 200 rupees, for joining the other accused in the commission of the
D crime, but after "commission of the crime, he was not given any money and
was told by accused Babula! to go back to his home town and inspite of
his telling Babula! that he had no money, none was given to him. If as
deposed to by the approver, Babula! 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,
E but surprisingly they took no steps by giving him atleast 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 investigating agency. Would
the accused persons, who had joined a complete stranger for the commis-
sion of the crime, not even take the elementary steps to see that he is out
F 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 coaccused letting him go like that belies logic and
common sense.

G 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 state:! by
the approver in his confessional statement recorded under Section 164
Cr.P.C. only a few days after the occurrence. It is humanly not possible for
H an illiterate rustic person to remember all such minute details as have been
'
RAMPAL v. STATEOFMAHARASHTRA [DR.ANAND,J.] 205

given by the approver detailing even the sequence of events during the A
alleged occurrence.·

The sequence of events at Ballarshah· Road as detailed by the ap-
prover in his statement in the Court is quite different than the sequence of
events as deposed to by the three injured eye witnesses. The High Court
noticed that there was variations in the version given by Ramcharan B
approver and the three eye witnesses as regards the sequence of events and
the manner of assault but chose to ignore this by observing :

'But having regard to the nature of the incident, the fact that the
life of the eye witnesses was in peril and the horrendouse condi- C
lions 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 crediDility of the eye witnesses. All this eventually had been
occuring in darkness, and even Ram Charail's recollection in this
respect cannot but be too hazy because of the gruesome nature of D
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.
E
A 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
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 F
investigating agency appears to have created false evidence and fabricated
false clues in so far as the te•timony of the approver is concerned. From
all the attendant circumstances, we are satisfied that the approver Ram-
charan is not a reliable witness; his arrest was intrinsically unnatural and
his self-confessed participation in the crime without taking any active part G
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 excul-
patory nature. His statement as a whole does not inspire confidence. His
story is not worthy of credence. We find ourselves unable to place any H
I

206 SUPREME COURT REPORTS [1994] 2S.C.R.

A reliance on his untrustworthy and unreliable evidence and in that view of
the matter, we refrain even from "xpressing any opinion about the effect
of the alleged non-compliance with the provisions of Section 306(4) !PC
read with Section 307 !PC, as admittedly after the grant of pardon by the
order dated 24.4.1987, no statement of Ramcharan approver was recorded
till he appeared at the trial as PW 49. It is only after the grant of pardon
B that the status of an accused is changed into that of a witness and the law
enjoins upon the Courts to remrd the statement of the approver immedi-
ately 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.
c
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
D evidence is considered otherwi;e 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 ap-
prover. Suffice it to say that even the corroborating evidence of identifica-
E tion of the appellants in Court by the three injured witnesses, in the
absence of any earlier test idenctification parade, or the recoveries made byl
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 PW27 is not trustworthy or
reliable.
F
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
G part of the judgment. Their convictions cannot be sustained.

We are conscious that five persons have died unnatural deaths on
the Highway and the crime is going unpunished. But the Courts have to
decide the cases on the evidence led and not on what ought to have been
H led. The manner in which the approver has been introduced in the case
RAMPAL v. STATEOFMAf!ARASHTRA [DR.ANAND,J.J W7

coupled with the alleged faked recoveries has created an impression on our A
minds that the investigating agency failed to apprehend the real criminals
and created false evidence and 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. It is unfortunate that the B
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 C
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 clause only with a view to secure conviction because such
acts shake the confidence of the common man not only in the investigating D
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 anarchy. E

In the result, the Criminal Appeal No. Wl 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. Criminal Appeal No. 466 of 1989, filed by the State against
acquittal shall also stand dismissed. The respondents in Criminal Appeal F
No. 466 are discharged of their bail bonds.

M.M. Appeals of ..ccw.ed allowed.
Appeals of State dismissed.