STATE OF RAJASTHAN versus BALVEER @ BALLI AND ANR.

Citation: [2013] 11 S.C.R. 557 · Decided: 31-10-2013 · Supreme Court of India · Bench: A.K. PATNAIK · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2013] 11 S.C.R. 557 
STATE OF RAJASTHAN 
v. 
BALVEER @ BALLI AND ANR. 
(Criminal Appeal No. 942 of 2006) 
OCTOBER 31, 2013 
[A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.] 
A 
B 
Penal Code, 1860 - s. 376(2)(g) and 302134 - Rape and 
murder - FIR against three accused - One of the accused 
examined as witness after tendering him pardon uls. 306 
C 
Cr.P.C. - Conviction and sentence of 10 years RI and death 
sentence for the offences ulss. 376(2)(g) and 302134 
respectively - High Court acquitted both the accused - Held: 
The prosecution case is proved by the evidence of the 
approver, and the same is admissible in evidence having o 
been coffoborated by direct and circumstantial independent 
evidence - Hence convicted u/ss.376(2)(g) and 302134 -
However, the death sentence reduced to life imprisonment as 
the case does not fall in the category of rarest of rare cases · 
- Sentence of 10 years RI imposed by trial court confirmed. 
E 
Code of Criminal Procedure, 1973 - s.306 - Approver/ 
accomplice - Evidentiary value of - Held: For being an 
approver, it is not necessary that the person has to inculpate 
himself in the offence and has to be privy to the crime - After 
grant of pardon accomplice is removed from the category of F 
co-accused and put into the category of witness, and evidence 
of such witness is admissible in evidence as per s. 133 of 
Evidence Act - However, as a rule of prudence, presumption 
as provided uls. 11411/ustration (b) of Evidence Act is against 
the accomplice, unless he is corroborated in material G 
particulars - Evidence Act, 1872 - ss. 133 and 114 11/ustmtion 
(b). 
Evidence Act, 1872: 
557 
H 
A 
8 
558 
SUPREME COURT REPORTS 
[2013) 11 S.C.R 
s. 157 - Corroboration of testimony of witness - Held. In 
order to corroborate testimony of a witness, any former 
statement made by such witness relating to the same fact at 
or about the time when the fact took place, or before any 
authority legally competent to investigate, may be proved. 
s. 27 - Recovery under - On the basis of statement made 
by the accused while in police custody- Evidentiary value of 
- Held: Such recovery can be utilized against the accused, 
for the purpose of corroboration. 
C 
Respondents-accused were prosecuted u/s. 
376(2)(g) and 302 r/w s. 34 IPC. The prosecution case was 
that the two respondents-accused alongwith accomplice-
approver (PW1) committed rape on the deceased and 
further the respondents committed her murder. After the 
o incident, hearing the hue and cry of of PW-1that the 
respondents had killed the girl, people gathered at the 
place of occurrence, apprehended PW1 and informed the 
police over telephone. The SHO, on the basis of 
statement of PW1, lodged FIR against the respondents 
E and PW1. Subsequently PW-1 was tendered pardon u/s. 
306 Cr.P.C. on the condition that he would disclose the 
truth relating to the offence, within his knowledge. 
Relying on the prosecution· evidence, trial court 
convicted the respondents-accused u/ss. 376 (2)(g) and 
302/34 IPC. They were sentenced to 10 years RI for the 
F offence u/s. 376(2)(g) and were sentenced to death for the 
offence u/s. 302134 IPC. High Court in appeal, acquitted 
the respondents-accused of all the charges. Hence the 
present appeal by the State. 
G 
Allowing the appeal, the Court 
HELD: 1.1. Section 306, Cr.P .C. provides that with a 
view to obtain the evidence of any person supposed to 
have been directly or indirectly concerned in or privy to 
H an offence, the Magistrate may tender a pardon to such 
STATE OF RAJASTHAN v. BALVEER@ BALLI 
559 
person on condition of his making a full and true 
A 
disclosure of the whole circumstances within his 
knowledge relating to the offence and to every other 
person concerned, whether as principal or abettor, in the 
commission thereof. [Para 15] [572-G-H; 573-A] 
Suresh Chandra Bahri vs. State of Bihar 1995 Supp. (1) 
sec 80: 1994 (1) Suppl. SCR 483 - relied on. 
1.2. The High Court failed to appreciate that the extent 
B 
of culpability of the accomplice in an offence is not 
material so long as the magistrate tendering pardon 
C 
believes that the accomplice was involved directly or 
indirectly in or was privy to the offence. The High Court 
also failed to appreciate that Section 133 of the Evidence 
Act provides that an accomplice shall be a competent 
witness against an accused person and when the pardon 
D 
is tendered to an accomplice under Section 306, Cr.P.C., 
the accomplice is removed from th
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