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The CJM Sriganganagar granted pardon to Chandrapal @ Kalu by order dated 26.6.2007 (Ex.P46) on the condition that he would make a truthful deposition regarding the incident in question without any reservation upon which, name of Chandrapal @ Kalu was added to the list of witnesses as an Approver. He was continued to be detained in custody as per Section 306(4)(b) Cr.P.C.

After the submission of the charge-sheet, the statement of Chandrapal @ Kalu was recorded on oath under Section 306(4)(a) Cr.P.C (Ex.P10). The case was then committed to the court of Special Judge, SC/ST (Prevention of Atrocities) Act, Sriganganagar where, charges were framed against the accused appellants in the above terms. Charges were also framed against the accused (7 of 34) [CRLA-862/2011] Deepak for the offences under Sections 363, 364, 366A and 376 I.P.C. The accused denied the charges and claimed trial. The prosecution examined as many as 27 witnesses and exhibited 52 documents to prove its case. The accused were questioned under Section 313 Cr.P.C. and upon being confronted with the circumstances appearing against them in the prosecution evidence, they denied the same claiming that they had no connection with any girl named Sunita and they did not murder her. Chandrapal @ Kalu was inimical to them because of a previous quarrel and thus, he had made a totally false deposition and falsely implicated them in the offence. After hearing the arguments of the Public Prosecutor and the defence counsel and appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellants as above. Hence, this appeal.

P.W.18 Bhagwana Ram proved the proceedings whereby, the accused Chandrapal @ Kalu, turned into an Approver. We have examined his evidence in extenso and find that the procedure which he undertook was absolutely lawful and untainted, forwarding the application (Ex.P8) filed by the accused to turn into an Approver and the steps taken thereupon in accordance with Section 306 Cr.P.C.

From a threadbare appreciation of the evidence of the prosecution witnesses referred to above, it is clear that the factum regarding the complainant's daughter the victim Sunita, having gone missing from Sriganganagar in the month of June 2006 is well established from the evidence of the complainant Babulal Paswan and his wife Smt.Tara Devi. The evidence of these witnesses and the evidence of STD PCO owner Rajesh Kumar P.W.3, duly establishes the fact that Sunita, was confined at Delhi by accused Deepak Kumar and Narendra Kumar. She called her parents on the STD PCO and talked to them. The fact regarding Sunita and Deepak Kumar having gone away and married each other is duly fortified from the evidence of the prosecution witnesses and gets corroborated from the fact that the names "Deepak" and "Sunita" were found tattooed on the arm when the (27 of 34) [CRLA-862/2011] dead body was recovered at Rajpura. We have ourselves compared the photographs of the victim Sunita (Ex.P17) submitted by the complainant to the Police Officers and the photographs of the unidentified dead body (Ex.P6 & P7) clicked and preserved during inquiry at the Outpost Rajpura and find that all the photographs are undoubtedly of same girl. The argument harped upon by counsel Shri Soni that the age of the victim was mentioned as 25 years in the inquest proceedings and thus, it cannot be safely concluded that the girl whose dead body was found at Rajpura was Sunita, is totally untenable for the simple reason that the age which is mentioned in the 174 Cr.P.C. proceedings is an estimated one. From the evidence of the Medical Officer, P.W.16 Dr.Baldev Singh, it is clear that the death of the girl was homicidal in nature having been caused by inflicting sharp weapon injuries on her neck.

Nonetheless, even if the above links of circumstancial evidence led by prosecution case are accepted as such then also, they hardly give any reliable material so as to bring home the guilt of the accused appellants.

As a matter of fact, to bring home the charges, the prosecution case heavily banks upon the evidence of the Approver Chandrapal @ Kalu who was examined as P.W.1 in support of the prosecution case. Thus, his evidence needs to be appreciated in depth keeping in view all the checks and balances and more particularly, in reference to the submissions advanced by the defence counsel. The foremost contention of Shri Soni, learned counsel representing the appellants, was that proper opportunity to cross-examine the Approver was not given to the accused persons by the Chief Judicial Magistrate while undertaking the (28 of 34) [CRLA-862/2011] procedure under Section 306(4)(a) Cr.P.C. His pertinent submission was that the counsel, who had appeared in those proceedings was none other than Gokul Swami, who had filed the complaint (Ex.P11) on behalf of the complainant Babulal Paswan. This Court sought verification of the fact, whether there are more than one Gokul Swami Advocates practicing in Sriganganagar and the Secretary, Bar Council of Rajasthan has intimated vide communication dated 3.8.2019 that only one person by the name of Gokul Swami is practicing there. Thus, the contention of Shri Soni that the counsel who represented the accused in the proceedings under section 306(4)(a) Cr.P.C., was also the counsel for the complainant, is fortified.

Apparently thus, there is no such requirement of law that the defence must be allowed to cross-examine the Approver when his statement is recorded at the pre-committal stage. Hence, no prejudice whatsoever was caused to the accused on account of the fact that the counsel who had appeared on their behalf before the Chief Judicial Magistrate during the proceedings under Section 306(4)(a) Cr.P.C., was also the counsel for the complainant and that he did not cross-examine the Approver. Further, it is also clear from the proceedings undertaken by the CJM that the accused (30 of 34) [CRLA-862/2011] themselves were present in the court when the statement of the Approver was recorded on oath (Ex.P10) and they too did not choose to cross-examine him. As a consequence, we are of the firm opinion that no infirmity whatsoever is reflected in the proceedings whereby, Chandrapal @ Kalu P.W.1 was declared as an Approver and his statement was recorded by the Chief Judicial Magistrate. The mandatory requirements of Section 306 Cr.P.C. were duly followed and hence Chandrapal @Kalu is a competent witness.