Delhi High Court
Radha Kushwaha vs State (Nct Of Delhi) on 16 April, 2025
Author: Amit Sharma
Bench: Amit Sharma
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27th February, 2025
Pronounced on: 16th April, 2025
+ CRL.M.C. 1075/2025
RADHA KUSHWAHA .....Petitioner
Through: Mr. Joginder Tuli, Ms. Joshini Tuli,
Ms. Victoria Neri and Ms. Tanuja
Qureshi, Advs.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Ajay Vikram Singh, APP for the
State.
SI Dharamveer, P.S. Chhawla.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Section 482 of the Code of Criminal
Procedure, 1973 (for short, 'CrPC') and Section 528 of the Bharatiya Nagrika
Suraksha Sanhita, 2023 (for short, 'BNSS') has been filed seeking the
following prayers: -
"a) Set aside the order dated 10.02.2025 passed by the Ld. ASJ,
Dwarka District Court Courts, New Delhi being erroneous, illegal
and arbitrary in SC No. 440975/2016 registered U/s 302/120B IPC
at P.S. Chhawla in FIR No. 130/2012 and direct CRL.M.C.-1075-
2025 28 the Ld. Trial Court to record the deposition of the
Petitioner as an approver/accomplice in the present case and grant
Petitioner tender of pardon; and
b) Issue directions to the Ld. Trial Court to discard the earlier
evidence affidavits in terms of Section 3 of the Indian Evidence Act
and consider and appreciate the Evidence Affidavit filed on record
on dated 08.11.2024 before the Ld. Trial Court and decide the
Application u/s 306 and 307 CRPC,1973 of the Petitioner Afresh;
and
c) Pass any other order which this Hon'ble Court may deem fit in
the interest of justice."
2. The present petition has been filed challenging the order dated
10.02.2025 passed by the learned Trial Court dismissing the 4 th application
filed on behalf of the petitioner under Sections 306/307 of the CrPC seeking
permission for tendering of pardon.
3. The petitioner is facing trial in case FIR No. 130/2012, under Sections
302/201/34/120B of the IPC, registered at P.S. Chhawla along with other co-
accused persons. It is the case of the prosecution that on 13.06.2012, a DD
No. 16A was received at P.S. Chhawla to the effect that a very foul smell was
emanating from a locked house. On receipt of the said DD entry, the
concerned police team reached at the spot. The said house was opened by
breaking the locks and on searching the house a highly decomposed, naked
and mutilated body of the deceased was found covered in a polythene plastic.
The hands and legs of the body had been cut, which were kept in a separate
polythene packet. Accordingly, the present FIR was registered and after
completion of investigation, the chargesheet was filed before the Court of
competent jurisdiction.
4. It is the case of the prosecution that the present petitioner along with
her husband/co-accused- Mohd. Khalid and other co-accused persons had
entered into a conspiracy, in pursuance of which, it is alleged that the
deceased was called by the present petitioner as the husband of the petitioner,
Mohd. Khalid, had objected to their relationships, and thereafter, the
petitioner alongwith the other co-accused persons, killed the deceased and
mutilated his body, which was discovered, as pointed out hereinabove.
5. The matter has been pending for prosecution evidence since 2012.
6. Learned counsel appearing on behalf of the petitioner submits that the
petitioner was under a constant threat of co-accused, Mohd. Khalid, as her
minor daughter was about 1½ years old and was threatened to be murdered by
co-accused, Mohd. Khalid, if the petitioner raised any hue and cry or if the
said incident was reported to anyone else. It is further stated that the petitioner
was compelled by co-accused, Mohd. Khalid, to call the deceased to her
house as he was having suspicion that she was having extra marital affair with
the deceased. It is submitted by learned counsel for the petitioner that the
latter is ready to become an approver after making a full and complete
disclosure of entire circumstances within her knowledge relating to the
offence.
7. It is submitted that the learned Trial Court had failed to appreciate and
take into account the affidavit dated 08.11.2024 giving a brief outline as to
what the petitioner intends to testify. It is submitted that the affidavit placed
on record by the petitioner along with the application under Sections 306/307
of the CrPC is not evidence within the meaning of Section 3 of the Indian
Evidence Act, 1872 (for short, 'IEA') as well as Section 296 of the CrPC and
therefore, the dismissal of the application by the learned Trial Court is
misplaced as per settled principles of law and facts.
8. Learned counsel for the petitioner to support his case has placed
reliance on the following judgments: -
i) Narayan Chetanram Chaudhary and Ors. v. State of
Maharashtra1;
ii) Rahul Yadav & Ors. v. State and Ors2; and
iii) Jayalakshmi Jaitly v. CBI & Anr.3.
9. This Court has perused impugned order dated 10.02.2025, passed by
learned Trial Court whereby the 4th application filed on behalf of the
petitioner seeking permission for tendering pardon was dismissed. At the time
of passing the impugned order, it is noted, that out of 45 witnesses cited by
the prosecution, 44 had already been examined. The petitioner was granted
bail on 16.01.2018. As per the record, the first application filed by the
petitioner was dismissed as withdrawn with liberty to file afresh vide order
(2000) 8 SCC 457
2023:DHC:2108
2013:DHC:7316
dated 07.12.2023 passed by the learned Trial Court. Thereafter, the 2nd
application filed on behalf of the petitioner was dismissed by the learned Trial
Court vide order dated 05.07.2024. However, Co-ordinate Bench of this Court
in CRL.M.C. 6202/2024 vide order dated 09.08.2024 granted liberty to the
petitioner to file a fresh application. Accordingly, the third application was
filed by the petitioner which was dismissed by the learned Trial Court vide
order dated 29.11.2024, and thereafter, again, a Co-ordinate Bench of this
Court in CRL.M.C. 7791/2024 vide order dated 07.10.2024 gave liberty to
the petitioner file a fresh application. Resultantly, the petitioner filed her
fourth application which was dismissed by the order challenged in the present
petition.
10. It is noted that the prosecution did not support the application filed on
behalf of the petitioner to seek permission for becoming an approver and had,
in fact, opposed the same before the learned Trial Court. Learned Trial Court
while disposing of the application vide impugned order had observed and held
as under: -
"6. Before proceeding any further, it would be appropriate to
refer to brief facts of the case culminating in the present
adjudication. As per recitals in the charge-sheet, on 13.06.2012,
intimation was received at PS Chhawla to the effect that bad odour
was coming from house no. B-12, Shyam Vihar, Najafgarh, New
Delhi, which was found to be locked. Poster of one Rising Sun
Coaching Centre and Dance Academy, mentioning mobile numbers
9873105330 and 9999366948 was found affixed on the said house.
Upon breaking open the locks of one room, in the said house, one
naked body (torso) without head, both hands and feet in highly
decomposed condition was found. The severed head, both hands
and both legs were also found at the spot. Other injuries were
noticed on the body. Various articles enumerated in the charge-
sheet were seized from the spot. From another room, documents of
vehicle bearing no. DL4CAD 7920 were discovered. The car was
found to be of Mr. Sanjay Kumar Rohilla who was found to be
missing since 06.06.2012. The dead body was positively identified
by the relatives of Mr. Sanjay Kumar Rohilla. The car had already
been recovered unclaimed on 07.06.2012. Inquiry was made and it
was discovered that deceased had received phone call from mobile
number 9716423336 on 06.06.2012. The said mobile phone was
found to be of the accused/applicant. It was found that the said
house where the dead body was recovered had been taken on rent
by the accused/applicant and her husband Altaf who was working
as a driver with one Shiv Kumar Contractor. During further inquiry,
it was found that the actual name of Altaf was Mohd. Khalid. The
accused Mohd. Khalid and his wife Radha were arrested on
19.06.2012 from Old Delhi Railway Station. Pertinent to present
adjudication, one SIM Card bearing no. 30006879074 Vodafone
company was recovered from the purse of accused Radha.
Recoveries were also effected from and at instance of accused
Mohd. Khalid. Co-accused Jeetu and Dinesh were arrested later on.
From CDR, it was found that accused Radha had made call to the
deceased from her mobile phone number 9716423336 lastly on
06.06.2012 at 06.08 pm. The location of the mobile phones of the
accused/applicant was of Shyam Vihar, Najafgarh from 06.06.2012
at 06.00 pm to 07.06.2012 till 09.00 am and thereafter, the location
was of Mumbai. Location Charts of the mobiles of the deceased
and accused persons were obtained. Exhibits were sent for forensic
examination. The accused persons were accordingly charge-sheeted
for commission of offences punishable U/s 302/201/120 B/34 IPC.
**** **** ****
9. The very first contradictions are regarding the date and time
when the applicant had called deceased Sanjay Rohilla and when he
agreed to meet her.
Affidavit Amended Affidavit dt. Amended Affidavit
dt. affidavit dt. 22.08.24 filed Affidavit dt. dt.
14.12.23 06.06.24 filed alongwith 3rd 13.09.24 filed 08.11.24
filed alongwith 2nd application alongwith 3rd filed
alongwith application application alongwith
2nd 4th
application applicatio
n
Applicant Applicant called Applicant kept Applicant called Applicant
called deceased 3-4 calling the the deceased 3- called the
deceased 3- times but he did deceased 3-4 4 times but he deceased
4 times but not pick up. She times but he did did not pick up. from
he did not kept calling on not pick up. She She kept calling mobile
pick up. 3rd and 4th again kept on 3rd 4th June no.97164
She kept June 2012 and calling him and 2012 and he 23336 on
calling on he said that he he said that he said that he will 03.06.201
3rd and 4th would meet her will met her in meet her in the 2 but he
June 2017 on 05.06.2012. the evening of evening of did not
and he said (Para 8) 06.06.2012. 06.06.2012. respond.
that he (Para 8) (Para 8) She again
would meet called
her on him on
05.06.2017. 4th and
(Para 8) 5th June
2012 on
which he
promised
to meet
her on
06.06.201
2. (Para
14)
Khalid Khalid made The applicant Khalid made She
made her her call the made several her call to called
call the deceased on calls to deceased and him 12
deceased 05.06.2012 and deceased on she called the times
on deceased agreed 06.06.2012 and deceased for from 2.28
05.06.2017 and said that he he agreed and about 12 times pm to
and would come by said that he from 2.28 pm to 6.28 pm
deceased 06.00 pm. (Para would come by 6.28 pm on on
agreed and 10) 06.00 pm. (Para 06.06.2012. 06.06.12
said that he 10) Deceased and he
would agreed to come agreed
come by between 06.30- and told
06.00 pm. 7.00 pm. (Para that he
(Para 10) 10) would be
coming
by 6.30-
7.00 pm.
(Para 14)
10. Thus the applicant / accused has taken contradictory stands as to
when she had called the deceased. As per one affidavit, the applicant /
accused had called the deceased in 2017, while as per other affidavits,
she had called the deceased in the year 2012. Furthermore, as per three
affidavits, she had called the deceased on 3rd 4th June and 5th June.
While as per the last affidavit, she had called the deceased on 3rd, 4th,
5th and 6th June 2012. In the initial affidavits, her assertions was that
deceased agreed to meet her on 5th June (when he was murdered) while
in her later affidavits, her assertions was that the deceased agreed to meet
her on 6th June (when he was murdered).
11. Furthermore, the stand of the applicant has not been consistent in
various affidavits regarding the sequence of events. The contradictions
in this regard are tabulated here under:
Affidavit Amended Affidavit dt. Amended Affidavit
dt. affidavit dt. 22.08.24 filed Affidavit dt. dt. 08.11.24
14.12.23 06.06.24 filed alongwith 3rd 13.09.24 filed filed
filed alongwith 2nd application alongwith 3rd alongwith
alongwith application application 4th
2nd application
application
When When Sanjay When Sanjay When Sanjay When
Sanjay Rohilla started Rohilla started Rohilla Sanjay
Rohilla drinking with drinking with became semi Rohilla
started Khalid, Dinesh Khalid, Dinesh conscious and became
drinking asked her to go pushed her to lay on the semi
with to another second room Wooden conscious
Khalid, room and and locked it platform, and lay on
Dinesh locked it from from outside. Khalid asked the wooden
asked her outside. (Para 11) her to get her platform,
to go to (Para 11) chunni and Khalid
another strangulated asked her to
room the get her
and locked deceased. chunni and
it Dinesh and strangulated
(Para 11) Jeetu tied legs the
of deceased deceased.
with wire. Dinesh and
(Para Jeetu tied
11). When she legs of
shouted, she deceased
was pushed to with wire.
the second (Para
room and 16). When
locked from she
outside. (Para shouted,
12) she was
pushed to
the second
room
and locked
from
outside.
(Para
17)
12. Thus, as per two affidavits, she was asked by Dinesh to go to
another room while as per the other affidavits, she was pushed to
the second room by Dinesh. Furthermore, in her amended affidavit
filed with 3rd application, the affidavit filed alongwith 4th
application, her assertion was that Khalid asked her to get her
chunni with which he strangulated the deceased and Dinesh and
Jeetu had tied the legs of deceased with wire prior to the point of
time when she was pushed to the other room while no such
assertions was made by her in any other previous affidavits.
Pertinently, in the initial affidavits, the applicant / accused did not
make any allegations against accused Dinesh.
13. There are also contradictions in the various affidavits as to the
actual commission of offence and whether the applicant had seen
the actual commission of offence. The various contradictions in this
regard are tabulated here under:
Affidavit Amended Affidavit dt. Amended Affidavit
dt. affidavit dt. 22.08.24 filed Affidavit dt. dt. 08.11.24
14.12.23 06.06.24 filed alongwith 3rd 13.09.24 filed filed
filed alongwith 2nd application alongwith 3rd alongwith
alongwith application application 4th
2nd application
application
While While locked While locked While locked When
locked in in the room, in the room, in the room, deceased
the room, she saw Jeetu she saw Jeetu she saw Jeetu back semi
she saw coming with a coming with a coming with a conscious
Jeetu white sack. He white sack. He white sack. He after
coming took out wire took out wire took out wire drinking
with a from the sack from the sack from the sack beer and lay
white and tied it over and tied it over and tied it over down on
sack. He the neck of the neck of the neck of wooden
took out deceased. deceased. deceased. platform,
wire from (Para (Para (Para Mohd.
the sack 12) When she 12) When she 12) Khalid
and tied it was in locked was Mohd. Khalid asked her to
over the room and was in locked room had cut both get the
neck of shouting, the and was hands of chunni and
deceased. accused shouting, the deceased from strangulated
(Para persons accused elbow with the
12) did everything persons did knife and deceased.
When she in front of her everything Dinesh Dinesh and
was in daughter. in front of her assisted Jeetu had
locked Khalid daughter. him. Then tied legs of
room and repeatedly Khalid Mohd. Khalid deceased
was placed knife repeatedly had cut both with wire.
shouting, on her placed knife on legs of (Para
the daughter's her daughter's deceased with 16)
accused neck and made neck and made assistance of Mohd.
persons gestures as if gestures as if Dinesh. Jeetu Khalid had
did he he was cutting put cello tape cut both
everything was cutting her neck. (Para on points of hands of
in front of her neck. (Para 13) On seeing body to stop deceased
her 13) On seeing this, she blood flow. from elbow
daughter. this, she fainted and she Then Mohd. with knife
Khalid fainted and she when got up, Khalid and and Dinesh
repeatedly when got up, Khalid and Dinesh cut the assisted
placed Khalid and Jeetu were not neck of him. Then
knife on Jeetu were not in the room but deceased. Mohd.
her in the room Dinesh was They tried to Khalid had
daughter's but Dinesh sitting in the cut the main cut both
neck and was sitting in room with her part of the legs of
made the room with daughter. (Para body but could deceased
gestures as her daughter. 14) not do so as with
if he was (Para At about 4.00 intestine came assistance
cutting her 14) am on out. (Para 14) of Dinesh.
neck. At about 4.00 07.06.2012, When she was Jeetu put
(Para 13) am, when when Khalid in locked room cello tape
On seeing Khalid and and Jeetu came and was on points of
this, she Jeetu came back, they had shouting, the body to
fainted back, they had some accused stop blood
and she some polythene persons did flow. Then
when got polythene bag bag with them. everything Mohd.
up, Khalid with them. Khalid, Dinesh in front of her Khalid and
and Jeetu Khalid, Dinesh and Jeetu daughter. Dinesh cut
were not and Jeetu locked her and Khalid the
in the locked her and her daughter in repeatedly neck of
room but her daughter in a room. (Para placed knife deceased.
Dinesh a room. (Para 15) on They tried
was sitting 15) When in the her daughter's to cut the
in the When in the morning at neck and made main part of
room with morning at around 9.30 gestures as if the body
her around 9.30 am, he but could
daughter. am, the other was cutting not do so as
(Para the other accused her intestine
14) accused opened neck. (Para 13) came
At about opened the door, she out. (Para
4.00 am, the door, she saw Rohilla sir 14)
when saw Rohilla sir was cut into When she
Khalid and was cut into six was in
Jeetu came six parts and his locked
back, they parts and his head was room and
had some head was covered with was
polythene covered with tape. She saw shouting,
bag with tape. She saw Khalid cutting the accused
them. Khalid cutting part of thigh in persons did
Khalid, part of thigh in which there everything
Dinesh which there was a rod. in front of
and Jeetu was a rod. (Para 16) her
locked her (Para 16) daughter.
and her Khalid
daughter repeatedly
in a room. placed
(Para knife on her
15) daughter's
When in neck and
the made
morning at gestures as
around if he was
9.00 am, cutting her
the other neck. (Para
accused 18)
opened
the door,
she
saw
Rohilla sir
was cut
into six
parts and
his
head was
covered
with
tape. She
saw
Khalid
cutting
part of
thigh in
which
there was
a rod.
(Para 16)
14. As per assertions in the affidavit and amended affidavit filed by
her alongwith the second application and her affidavit filed
alongwith the 3rd application, she had fainted and did not witness
the incident, while in her remaining affidavits, she has given details
of the incident. Similarly, as per the affidavits filed by her
alongwith the 2nd application and initial affidavit filed alongwith
the 3rd application, the applicant had asserted that she only saw
accused Khalid cutting knee of the deceased while as per her
assertions in remaining affidavits she gave details of how the dead
body was cut by the other accused persons. Thus, the applicant /
accused has changed her stance even as to the aspect if she
witnessed the entire incident.
15. Furthermore, the applicant was inconsistent and has taken
contradictory stands regarding the disposal of the body parts in her
various affidavits which are tabulated here under:
Affidavit Amended Affidavit dt. Amended Affidavit dt.
dt. affidavit dt. 22.08.24 filed Affidavit dt. 08.11.24
14.12.23 06.06.24 filed alongwith 3rd 13.09.24 filed filed
filed alongwith 2nd application alongwith 3rd alongwith
alongwith application application 4th
2nd application
application
When When body When body When body After
body odor odor started odor started odor started wrapping all
started coming out, coming out, coming out, the body
coming Jeetu said that Jeetu said that Jeetu said that pieces of
out, Jeetu they would be they would be they would be deceased,
said that caught and caught and caught and Dinesh and
they Khalid Khalid Khalid Jeetu left
would be wrapped all wrapped all wrapped all the place of
caught and these pieces. these pieces. these pieces. incident.
Khalid After wrapping After wrapping After wrapping Khalid
wrapped those pieces, those pieces, those pieces, locked all
all these he put them in he put them in he put them in the rooms of
pieces. the loader and the loader and the loader and premises i.e.
After threatened the threatened the threatened the B- 12,
wrapping applicant to applicant to applicant to Phase-I,
those come with him come with him come with him Shyam
pieces, he and forcibly and forcibly and forcibly Vihar, New
put them took her and took her and took her and Delhi and
in the her her daughter in her daughter in thereafter
loader and daughter in the the same the same took the
threatened same loader. loader. loader. applicant
the (Para 17) (Para 17) (Para 14) and her
applicant daughter
to come with him in
with him the loader.
and (Para 21
forcibly & 22)
took her
and her
daughter
in the
same
loader.
(Para 17)
16. Thus in other affidavits except the affidavit filed with the
present application, contention of applicant / accused was that the
pieces of dead body were put in a loader by the co-accused Mohd.
Khalid which is contrary to the record as per which, the pieces of
dead body were recovered from H.No.B-12, Shyam Vihar,
Najafgarh, New Delhi. The applicant / accused changed her stand
in this regard and asserted in the affidavit filed with the present
application that the parts of dead body were left in the house where
offence was committed.
17. Thus, the applicant for reason best known to her has given
contradictory versions of the incident in the various affidavits filed
by her on record. The contradictions are not minor contradictions
but go to the very root of the prosecution version. It is well settled
that the evidence of an accomplice is a weak type of evidence.
Considering that the applicant had changed her version at every
possible stage for reason best known to her, granting pardon to her
under Section 306/307 Cr.P.C would not be of any help to the State
rather the same might prejudice fair trial of the case.
18. It is argued on behalf of applicant / accused that the previous
affidavits filed by her cannot be relied upon in terms of Section 296
Cr.P.C. Section 296 Cr.P.C. is re-produced here under :
"296. Evidence of formal character on affidavit (1) The evidence of
any person whose evidence is of a formal character may be given
by affidavit and may, subject to all just exceptions, be read in
evidence in any inquiry, trial or other proceeding under this code.
(2) The court may, if it thinks fit, and shall, on the application of
the prosecution of the accused, summon and examine any such
person as to the facts contained in his affidavit".
19. Thus, Section 296 Cr.P.C permits evidence of formal
character on affidavits and is no help to the applicant / accused in
the facts of the present case. The affidavits in the present case filed
by the applicant / accused to show her bonafides, to show that she
was ready to make full and complete disclosure of all facts within
her knowledge as well as to show to the State the material about
which she would depose in case she was granted pardon. The said
affidavits cannot be brushed aside and rather the other accused
persons would have every right to challenge veracity of testimony
of the applicant / accused, in case she is granted tender of pardon
by using the said affidavits. This arguments of the applicant /
accused is liable to be rejected.
20. Perusal of the affidavit filed by applicant / accused Radha
alongwith present application shows that the same is completely
self exculpatory. The sum and substance of the affidavit is that the
applicant / accused Radha was acting under fear/coercion of co-
accused Mohd. Khalid. As per the applicant / accused her only role
was that she had called the deceased Sanjay Rohilla from 3rd to 6th
June 2012 and he said that he would meet her in the evening of
06.06.2012.
21. Furthermore, as per the prosecution version, one banner
"Rising Sun Coaching Centre" mentioning mobile numbers
9873105330 and 9999366948 was found to have been put up
outside the house where the offence was committed. As per
prosecution version, the deceased Sanjay Rohilla was called to the
said house on pretext that accused Radha was running the said
dance academy and would not work with him. As per the
prosecution version, the mobile phone number 9873105330 was
issued in the name of one Jai Bhagwan which was lost and was
being used by accused Radha. The affidavit is completely silent as
to the said aspect.
22. Thus the affidavit is rather totally self serving and
exculpatory. The application lacks bonafides and is rather
damaging to the prosecution version. Apparently the applicant /
accused has not made and is not ready to make full and true
disclosure of the whole circumstances of the case including the
facts and circumstances especially within her knowledge. The
applicant / accused has taken contradictory stands in various
affidavits filed by her alongwith her applications for tender of
pardon which damage her veracity."
11. Power to grant pardon in a given set of facts and circumstances of the
case will depend on the subjective satisfaction of the Court concerned.
Exercise of such power shall be governed by the judicial conscience of the
concerned Court. In the present case, the learned Trial Court has discussed the
various affidavits filed by the petitioner in support of her application to
become an approver and after examining the same, the learned Trial Court
came to the conclusion that the affidavits on behalf of the petitioner were self-
serving and exculpatory. As pointed out hereinabove, 44 PWs out of 45 have
already been examined by the prosecution and all the relevant material was
before the learned Trial Court at the time of examining the affidavit(s) of the
petitioner. The contention of the learned counsel appearing on behalf of the
petitioner is that various affidavits cannot be relied upon and could not have
been thus compared by the learned Trial Court, is not tenable. It is the duty of
the learned Trial Court to assess all the material on record before arriving at a
subjective satisfaction whether the case for grant of pardon to a person is
made out or not. No doubt that the provision of Section 308 of CrPC provides
for procedure in case the person granted pardon does not give a statement
making full and true disclosure of the circumstances within his/her
knowledge, however, at the first instance the concerned Court has to satisfy
its judicial conscious with regard to the testimony of the aforesaid person who
wishes to become an approver. In the considered opinion of the said Court, if
a testimony of a proposed approver instead of assisting the prosecution's case
has the propensity to create doubt or damage the prosecution's case, then such
a person cannot be permitted to become an approver.
12. Grant of pardon has to be determined by the learned Trial Court, after
examining the facts of the case alongwith the evidence on record, which
would help the prosecution's case and not damage it. The prosecution in the
present case had opposed the petitioner's application seeking for becoming an
approver. The Hon'ble Supreme Court in Lt. Commander Pascal Fernandes
v. State of Maharashtra & Ors4 , while examining the scope of provision of
Section 337 of the CrPC, 1898 (which is corresponding to Section 306 of the
CrPC, 1973) underlined the importance of say of the prosecution to examine
the accused as an approver, and observed as under: -
"14. The next question is whether the Special Judge acted with due
propriety in his jurisdiction. Here the interests of the accused are
just as important as those of the prosecution. No procedure or
action can be in the interest of justice if it is prejudicial to an
accused. There are also matters of public policy to consider.
Before the Special Judge acts to tender pardon, he must, of
course, know the nature of the evidence the person seeking
conditional pardon is likely to give, the nature of his complicity
and the degree of his culpability in relation to the offence and in
relation to the co-accused. What is meant by public policy is
illustrated, by a case from Dublin Commission Court
(Reg v. Robert Dunne, 5 Cox Cr. cases 507) in which Torrens, J.,
on behalf of himself and Perrin, J., observed as follows:
"From what I can see of this case, this witness Bryan, who has
been admitted as an approver by the Crown is much the more
criminal of the two on his own showing... I regret that this
witness, Bryan, has been admitted as evidence for the Crown
and thus escaped being placed upon his trial. It is the duty of
Magistrates to be very cautious as to whom they admit to give
evidence as approvers, and they should carefully inquire to what
extent the approver is mixed up with the transaction, and if he be
an accomplice, into the extent of his guilt...."
15. .....To determine whether the accused's testimony as an
approver is likely to advance the interest of justice, the Special
Judge must have material before him to show what the nature of
that testimony will be. Ordinarily it is for the prosecution to ask that
a particular accused, out of several may be tendered pardon. But
even where the accused directly applies to the Special Judge, he
must first refer the request to the prosecuting agency. It is not for
the Special Judge to enter the ring as a veritable director of
prosecution. The power which the Special Judge exercises is not
1967 SCC OnLine SC 37
on his own behalf but on behalf of the prosecuting agency and
must, therefore, be exercised only when the prosecuting joins
tendered pardon because it does not need approver's testimony.
It may also not like the tender of pardon to the the crime or the
worst offender. The proper course for the Special Judge is to ask
for a statement from the prosecution on the request of the
prisoner. If the prosecution thinks that the tender of pardon will be
in the interests of a successful prosecution of the other offenders
whose conviction is not easy without the approver's testimony, it
will indubitably agree to the tendering of pardon....."
(emphasis supplied)
In all the three judgments relied upon by learned counsel for the
petitioner, namely Narayan Chetanram Chaudhary (supra), Rahul Yadav
(supra) and Jayalakshmi Jaitly (supra), the prosecution had supported the
plea of granting pardon in the aforesaid cases.
13. The learned Trial Court while appreciating the affidavit alongwith the
material on record was of the opinion that the testimony of the petitioner as an
approver would actually result in causing prejudice to the prosecution's case.
The petitioner is making a statement which is contrary to the prosecution's
case. For instance, in her affidavit she states that pieces of the dead body were
put in the loader by the co-accused, Mohd. Khalid, however, it is the case of
the prosecution that the said pieces were recovered from House No. B-12,
Shyam Vihar, Najafgarh, New Delhi.
14. Similarly, various other instances have been highlighted by the learned
ASJ to come to conclusion that examining the petitioner will not advance the
interest of justice. The petitioner's stand in various affidavits regarding
sequence of events are contradictory. Similarly, the contradictions in various
affidavits with regard to the actual commission of offence and whether the
petitioner had seen it is also contradictory. In these circumstances,
examination of such a person as a witness for prosecution is fraught with
possibility of causing damage to the prosecution's case. It is a settled law that
testimony of an approver, as a rule of prudence, should be corroborated with
some other material on record. If the nature of the deposition sought to be
brought on record is untrustworthy, the same cannot be permitted. Such a
witness can introduce facts favourable to the accused persons also. No doubt
such a witness can be retried or punished for perjury but the damage to the
prosecution's case is done.
15. It was the contention of the learned counsel appearing on behalf of the
petitioner that the previous affidavits filed should not have been taken into
account and compared with the affidavit filed alongwith the 4th application on
the ground that the said affidavits were not evidence under the meaning of
Section 3 of the Indian Evidence Act. The learned Trial Court has rightly
pointed out that the affidavits filed on behalf of the petitioner are part of the
record and, therefore, any contradiction or anything which is in variance to
the prosecution's case shall render the testimony of such a witness weak and
therefore, cause prejudice to the prosecution's case.
16. In the totality of the facts and circumstances of the case, the impugned
order dated 10.02.2025 does not warrant any interference.
17. Accordingly, the petition is dismissed and disposed of accordingly.
18. Pending application(s), if any, are also disposed of.
19. Needless to state that, nothing mentioned hereinabove, is an opinion on
the merits of the case and any observations made herein are only for the
purpose of the present petition.
20. Copy of the judgment be sent to the concerned learned Trial Court for
necessary information and compliance.
21. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA, J.
APRIL 16, 2025/bsr/nk
