IMPORTANT POINT
Where approver was planted & faked recoveries made by Police, the accused are entitled to acquittal.

JUDGMENT

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 31st 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. 201/1989. Three convicts were acquitted by the High Court and Criminal Appeal No. 466/1989 has been filed by the State of Maharashtra against their acquittal. This judgment will dispose of both the appeals.

2. Nine accused persons, namely, Rampal, Fulchand, Babulal, Sheoprasad & Dhunda Chunbaliya, Basawan, Shamlal, Pratap, Ramkishor and Ramcharan, were sent up for trial for committing the murder of Tanba Gedam, Baldeosingh, Raman Chandra, Prakash Vehdakar and Raju Deshmukh 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 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 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 offence funder Section 302/149 IPC, and for the offences under- Sections 307 and 395, the accused were sentenced to sufferrigorous - 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. The 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 Court. While the appeal of appellants Basawan Rahidas, Pratap Rahidas and Ramkishor 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. 201/1989. The State of Maharashtra has filed Criminal Appeal No. 466/1989 against the acquittal of Baswan and two others.

3. 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, construction of two buildings of a seed center 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 afters and tied them by removing the dhoti which and 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. 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. Mahendra singh and Baldeo singh were coming on a scooter from the Ballarshah side and they were also assaulted by the assailants with-afters and sticks. A bag containing Rs.. 7040/- and some documents was snatched from them. As a result of the beating, Mahendra singh and Baldeosingh became unconscious. Baldeosingh died on the spot. The assailants thre