The main legal point established is the requirement for an approver to be connected to the offence and to inculpate themselves, as well as the need for corroboration and reliability of an approver's testimony.

R.S. Chauhan, J.- For the rape and murder of a helpless woman Rekha, appellants have been sentenced to death. Learned trial Judge has referred papers of this case for confirmation of death sentence whereas the appellants have challenged order of conviction and sentence recorded against them by filing appeals. Substantial questions of general importance and somewhat ticklish, involved in the case are whether Rajesh, presented as an approver by the prosecution around whose testimony almost entire case of prosecution rests, qualify as an approver in view of his statements made under Sections 164, CrPC 306, CrPC. and his testimony before the Court where he completely exculpates himself and inculpates only appellants and whether from narration of facts given by him, he rather appears to be a protestor, preventor and to some extent, even a victim of the crime himself . The other question of equal significance that confronts the Court is that if testimony of Rajesh is discarded as approver whether he is a competent witness under Section 113 of the Evidence Act and his testimony should be appreciated and accepted in the same way and manner like any other witness. Appended to the two important questions of law, as mentioned above, are also usual questions like the testimony of Rajesh if accepted as an approver, to be fulfilling usual tests and that sans statement of the approver, whether conviction of the appellants could possibly rest on circumstantial evidence led by the prosecution.

2. The facts that necessarily preceded adjudication of the questions framed above, as per prosecution version, are that on the intervening night of 1-2/11/2003, Rekha was allegedly raped and murdered by the two appellants, Ram Niwas and Balveer and by the alleged approver Rajesh. For the commission of the crimes of rape and murder, vide Judgment dated 05.03.2005, the Additional District and Sessions Judge (Fast Track) No. 4, Bharatpur, convicted the appellants for the offence under Sections 302/34, IPC and sentenced them to death penalty, fine of Rs. 1,000/-each, and in default thereof , to undergo a six-months simple imprisonment. He convicted them further for the offence under Section 376(g), IPC and sentenced them to imprisonment of ten years and imposed a fine of Rs. 1,000/-each and to serve six months in default thereof . Since, the Death Reference and the attendant three appeals arise out of the same impugned Judgment , they are being decided by this common Judgment .

3. According to the prosecution story, one Prem Bahadur, SHO, Police Station Nadbai, got a formal FIR (Exhibit P-12) recorded on 011.2003 after bringing Rajesh back from the crime scene to the Police Station, wherein he (SHO Bahadur) claimed as under:-

“On 011.2003 at 10:45 PM, they (the police) received a telephonic information that a woman had been murdered near the railway tracks in the vicinity of the jungles of village Kishanpura. The informer also told them that they (the people) had nabbed a person, who was in their custody. Upon this information, a police party left for the said spot. They reached the place at 10:55 PM. Upon arrival, they found about fifteen persons standing around, including Malkhan Luhar, Nemi Brahman, and Bharat Singh Jat. They told him (SHO Bahadur) that around 10:30 PM when they heard a hue and cry, they rushed to the spot. They saw two persons fleeing on a motorcycle along the railway track towards the village of Khedali. They also saw a person running through the fields, whom they managed to catch. They found a half -nude body of a woman who was dead. When the SHO asked the captured person his name, he told them that he was Rajesh, S/o Rekh Ram Meena, R/o Village Peelwa, Police Station Mandawar, District Dausa. He further told them that the afternoon, between 4:00-5:00 PM, Ram Niwas Meena S/o Devi Ram Meena, who was a resident of his (Rajeshs) village, alongwith Ram Niwas paternal-aunts (Buas) son, Balveer, R/o Village Badyowas, came alongwith a