Judgment 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 . 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 girl, Rekha who was known to Ram Niwas, and that he [Rajesh] arrived on Ram Niwass motorcycle, Registered No. RJ 29/2M/2370, along the railway track near the village Khedali. He further claimed that under the Khedali Bridge all three of them raped Rekha. After that, Ram Niwas and Balveer wanted to stuff her mouth with a piece of cloth and to strangle her. He further claimed that under the Khedali Bridge all three of them raped Rekha. After that, Ram Niwas and Balveer wanted to stuff her mouth with a piece of cloth and to strangle her. He protested and told them that someone was coming as noises could be heard. Thereupon, they forced her to accompany them on the motorcycle and brought her along the railway track to this place. Here both Ram Niwas and Balveer kicked her in the neck and strangled her with her scarf (“Chunni”). According to Rajesh, they assaulted him, when he protested. When he freed himself from their clutches, he raised a hue and cry. Consequently, Ram Niwas and Balveer fled on the motorcycle, along the railway tracks, towards Khedali. The SHO examined the dead body of the girl and discovered that her mouth was stuffed with cloth and her “chunni” was tightly wound around her neck, and that she had injuries on her chest and neck, and her “salwar” and “chunni” were pulled down to her knees. In the pocket of her jacket, they discovered an identification card. The card had her photograph and showed her name to be Rekha Marothiya D/o Bherulal Marothiya, Nursing Student, at the BRBM Hospital, Bharatpur, resident of Village Gaddi Maliyan, District Ajmer. Subsequently, the site inspection and an examination of the dead body were carried out. While the body of the deceased was sent to the mortuary at the CHC, Nadbai, Rajesh was brought to the Police Station.” 4. Upon this report, a formal FIR No. 492/2003 -was registered for offences under Sections 302/34, 376 (b), IPC, against Ram Niwas, Balveer, and Rajesh. 5. Since, there were no eye-witnesses to the commission of the alleged crime except Rajesh, on 212.2003, the police submitted an application (Exhibit P-69) before the Chief Judicial Magistrate, Bharatpur. According to the said application, the Superintendent of Police had clearly directed the police that, under Section 164, CrPC, Rajeshs statement, be recovered by a Magistrate, especially since the police had decided to seek his pardon and to produce him as an approver during the course of the trial. Hence, a prayer was made to the learned Magistrate to direct another Magistrate to record Rajeshs statement under Section 164, CrPC. Consequently, on 212.2003 a Judicial Magistrate recorded Rajeshs statement under Section 164 CrPC. Hence, a prayer was made to the learned Magistrate to direct another Magistrate to record Rajeshs statement under Section 164, CrPC. Consequently, on 212.2003 a Judicial Magistrate recorded Rajeshs statement under Section 164 CrPC. Thereafter, on 16.01.2004, the police moved an application (Exhibit P-70) for pardoning Rajesh and for declaring him an approver. Vide his order dated 19.01.2004 (Exhibit P-71), the Chief Judicial Magistrate pardoned Rajesh and permitted him to appear as an approver in the case. 6. Thus, supported by an approver, the prosecution examined 32 witnesses to prove its case. It also produced 71 documents to substantiate its case. The defense, on the other hand, did not produce any witness; it did, however submit five documents to support its defence. In light of the oral and documentary evidence, as aforementioned, the learned trial Court convicted and sentenced the appellants. Hence, the Death Reference and the three appeals before us. 7. As unfolded during the trial, in brief , the prosecution case is that Ram Niwas used to be a tenant of Rekhas parents in Ajmer. While Ram Niwas used to live in Ajmer, both Blaveer and Rajesh used to visit him. Thus, all three of them knew Rekha. In fact, once the three of them had misbehaved with Rekha. Consequently, Rekhas father. PW. 6, Shri Bahirav Lal, had asked Ram Niwas to vacate the house. Subsequently, Rekha came for training as a Nurse in Bharatpur. She was staying in a house at Gopalgarh, Bharatpur. She was occupying the house alongwith Smt. Anjana, PW. 12 and Smt. Khem Kanwar PW. 13 Smt. Shivdevi, PW. 14 was the landlady of the house. To these three and to others, Rekha had introduced Ram Niwas as her maternal uncle (Mama). According to them, Ram Niwas used to visit Rekha at night and, at times, used to stay with her over-night. In the afternoon of 011.2003, Rekha had told PW. 12 and PW. 13 that she would be going with her Mama today i.e., with Ram Niwas. However, she told the landlady, Smt. Shivdevi that she would be going to Ajmer on that date. According to Rajeshs testimony on 011.2003, Ram Niwas first picked him up and took him to the Jaipur Bus stand at Mahuwa. He was looking for someone in the buses. However, she told the landlady, Smt. Shivdevi that she would be going to Ajmer on that date. According to Rajeshs testimony on 011.2003, Ram Niwas first picked him up and took him to the Jaipur Bus stand at Mahuwa. He was looking for someone in the buses. Later on, as they were about to leave Mahuwa, Ram Niwas stopped the motorcycle near a girl and picked her up too. Subsequently, they also picked up Balveer. All four of them, namely, Ram Niwas Balveer Rekha and Rajesh went towards Nadbai on the motorcycle. They went to the jungle near Nadbai, stopped the motorcycle, where Ram Niwas and Balveer allegedly raped and murdered Rekha. When Rajesh tried to raise a hue and cry, he was verbally abused and physically dragged by Ram Niwas. However, he still managed to free himself from Ram Niwas. He ran and shouted for help. Some villagers who heard his shouts came there. He told them about Rekhas rape and murder. They all went to the site of the crime. They saw two man fleeing on a motorcycle from the place. Lastly, the police was informed. The police came, Rajesh told the police about the incident and the police took the villagers and Rajesh to the police station. Thus, began the investigation into the offences. During the course of investigation the police did recover a large number of love letters written by one Nisha to Ram Niwas from Rekhas room. However, Nisha was never produced as a witness during the trial. Further, during the investigation, the police applied for Rajesh to be declared an approver under Section 306 CrPC. As stated above, the Chief Judicial Magistrate granted pardon to Rajesh and declared him to an approver. 8. Mr. S.R. Bajwa, Senior Advocate and the learned Counsel for the appellants, has argued, firstly, that Rajesh does not qualify as an approver, for, in his statement under Sections 164 CrPC, and in his statement under Section 306, CrPC and in his testimony before the Court, he exculpates himself and inculpates only the appellants. In fact, he has presented himself as a victim, as a protestor, but not as a “ particeps crimins” (as participant in the crime), and the prosecution has not submitted any incriminating evidence against Rajesh, except his statement made to the SHO. In fact, he has presented himself as a victim, as a protestor, but not as a “ particeps crimins” (as participant in the crime), and the prosecution has not submitted any incriminating evidence against Rajesh, except his statement made to the SHO. On such a basis, Rajesh does not fall within the definition of an approver, especially as he is neither directly, nor indirectly, related to the offences nor is he, on the basis of admissible evidence, a privy to the offences. According to the learned Counsel, since Rajesh does not qualify as an approver, the pardon granted him under Sections 306 CrPC, has been given illegally. 9. Secondly, according to the learned Counsel, the testimony of an approver is trustworthy provided he fulfills three tests: 1) that he was an accomplice, ii) sufficient corroboration is available from other evidence, iii) he is otherwise reliable witness. However, Rajesh fails all the three tests. His evidence is, therefore, to be ruled as untrustworthy. 10. Thirdly, Rajesh was initially arraigned as an accused. He was arrested, pardoned, and produced as an alleged approver. Thus, his evidence is not of a “free person”. He was bound by the condition of pardon. He had to tailor his testimony to the prosecutions case. Hence, he is not free to speak as an independent witness. Hence, his testimony should be discarded lock, stock and barrel. 11. Fourthly, his testimony is not merely bland, broad, and cryptic, it is also full of contradictions. There is, for example, no mention in Rajeshs account of the struggle or co-operation on the part of the woman; no curses, protests, or plea for help, and certainly no description of the last moments of the dying woman. Therefore, even coming from a solitary witness, Rajeshs testimony is not of any sterling worth. Hence, the appellants cannot be convicted on the basis of his testimony alone. 12. Fifthly, in case Rajeshs testimony is discarded, the circumstantial evidence is too weak to warrant a conviction. No motives are adduced, no proofs furnished, not even normal procedures-such as DNA testing-followed. 13. Sixthly, the prosecutions case is full of infirmities. The circumstantial evidence marshaled by the prosecution is insufficient to warrant the conviction of the appellants. Obviously, the prosecution has failed to prove its case beyond a shadow of doubt. 10.14. As against this, Mr. No motives are adduced, no proofs furnished, not even normal procedures-such as DNA testing-followed. 13. Sixthly, the prosecutions case is full of infirmities. The circumstantial evidence marshaled by the prosecution is insufficient to warrant the conviction of the appellants. Obviously, the prosecution has failed to prove its case beyond a shadow of doubt. 10.14. As against this, Mr. Mohammad Rafiq, the Additional Advocate General, has argued, firstly, that Rajesh was directly involved with the commission of the crime. He had accompanied the appellants and had witnessed the occurrence. Hence, he was an accomplice. And, as an accomplice, he fulfils the criterion laid down by Section 306, CrPC. He was, therefore, rightly granted pardon, it has been argued, under the said section. His testimony is that of an approver. His testimony is trustworthy. 15. Secondly, that if for the sake of argument it is conceded that Rajesh is not an approver, then he is a competent witness under Section 113, Evidence Act. Therefore, his evidence is admissible. And as he has described the incident in detail, his testimony is trustworthy. The appellants can be convicted on the testimony of this sole witness. 16. Thirdly, that even if the Court discards Rajeshs testimony, there is still sufficient direct and circumstantial evidence on record to warrant the appellants conviction. The testimony of the villagers tells us that two persons escaped on a motorcycle from the scene of the crime. The motorcycle was recovered at the instance of Ram Niwas. Moreover, semen was discovered on Ram Niwas underwear. The black bag, allegedly belonging to Rekha, was discovered at Balveers instance. Hence, the circumstantial evidence completes a chain unerringly pointing to the guilt of the appellants. 17. Fourthly, that considering it is a case of rape and murder of a young lady, the death penalty, according to the learned Counsel, was rightly awarded. 18. We have heard the learned Counsels for the parties and have also considered the record and examined the impugned Judgment . 19. In order to appreciate the first contention raised by Mr. Bajwa, it is imperative to understand the scope and ambit of Section 306, CrPC. 18. We have heard the learned Counsels for the parties and have also considered the record and examined the impugned Judgment . 19. In order to appreciate the first contention raised by Mr. Bajwa, it is imperative to understand the scope and ambit of Section 306, CrPC. The section reads as under: Tender of pardon to accomplice -(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into or the trial of , the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof . .(2) This section applies to - .(a) anyoffence tribal exclusively by the Court of Session or by the Court of Special Judge appointed under the Criminal Law Amendment Act, 1952: (46 of 1952) .(b) anyoffence punishable with imprisonment which may extend to seven years or with a more severe sentence. .(3) Every Magistrate who tenders a pardon under Sub-section (1) shall record - .(a) his reasons for so doing; .(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused furnish him with a copy of such record free of cost. .(4) Every person accepting a tender of pardon made under Sub-section (1 ) - .(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; .(b) shall unless he is already on bail, be detained in custody until the termination of the trial. .(4) Every person accepting a tender of pardon made under Sub-section (1 ) - .(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; .(b) shall unless he is already on bail, be detained in custody until the termination of the trial. .(5) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizances of the offence shall, without making any further inquiry in the case- .(a) commit it for trial - .(i) tothe Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; .(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; .(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself . 20. It follows, then, that a pardon can be granted only to an accomplice; an accomplice being a person who participates in the commission of the crime charged against a co-accused. He needs to be a “participies crimins”. And crime consists of two elements, the actus reus (the actual act of the commission of the offence) and the mens rea (the guilty mind preparatory to the act done). So, the participation has to be in the actus reus and/or in the mens rea. Such participation could be “directly” or “indirectly” linked, or be “a privy” to an offence. Direct participation would consist of mere physical presence, or of actual physical participation. This would include vicarious liability under Section 34, IPC, or an offence under Section 149, IPC. Indirect participation could well be mental or physical. Mental, when one has an interest in the outcome of an offence, or when one is involved in the planning. The latter would reflect either a criminal conspiracy or an abetment. Physical, when in a crime consisting of a series of acts, one, or more acts are committed by the person. One is said to be “privy to the offence” when one has secret knowledge of or “is a person who is in privity with another. The latter would reflect either a criminal conspiracy or an abetment. Physical, when in a crime consisting of a series of acts, one, or more acts are committed by the person. One is said to be “privy to the offence” when one has secret knowledge of or “is a person who is in privity with another. One who is a partaker or has any part of interest in any action, matter or thing.” ( per Blacks Law Dictionary). In conclusion, there has to be some connectivity between the crime and the accomplice. 21. A person totally unrelated to the offence is deemed to be innocent, and an innocent person cannot be called, or treated as, an approver. Lack of complicity is, indeed, a disqualification for approvership. To be eligible as an approver, there should be some interest, on the part of the person, in the commission of the crime. 22. In the case of Suresh Chandra Bahri vs. State of Bihar, 1995 Supp (1) SCC 80, the Honble Supreme Court had emphasized the object behind Section 306, CrPC. However, on this specific aspect of the issue the Honble Supreme Court has not weighed in. The most critical analysis of Section 306, CrPC, has been done by the Honble Gujarat High Court in the case of State of Gujarat vs. Ramasi Devasi Bhil alias Bhalaka, 1991 CrLJ (Guj) 2801. But, the Honble Gujarat High Court has held a contrary point of view. It has held that, “Thus, the very basis of the section is that a person who applies for pardon under the provisions of Sections 306 and 307 of the Code of Criminal Procedure can be assumed to be directly or indirectly concerned in the offence. Similarly, he may be assumed to be privy to an offence. The assumption does not mean that he is party to the offence. Thus, the person applying may not be actual culprit. If he is not an actual culprit, there does not arise any question of exculpating ones own self .” (Emphasis added). 23. However, we respectfully disagree with this interpretation of the provision. The very word “accomplice” means that the person who seeks pardon, or for whom pardon is sought, has been complicit, an “associate”, connected with the offence. For, in case he is, unconnected, then he is innocent. And an innocent person does not need any pardon. 23. However, we respectfully disagree with this interpretation of the provision. The very word “accomplice” means that the person who seeks pardon, or for whom pardon is sought, has been complicit, an “associate”, connected with the offence. For, in case he is, unconnected, then he is innocent. And an innocent person does not need any pardon. Moreover, the supposition of his connection cannot be imagined or assumed as suggested by the Honble Gujarat High Court. “Suppose,” means “likely to be” or “some probability of”. However, the “likelihood” of a connection is a question of fact. The existence of a fact has to be found in some evidence. A judicious mind has to examine the relevant evidence to arrive at a supposition that the person was “directly”, or “indirectly,” connected to, or was “privy” to, the offence. In order to see the existence of the connection, there has to be some inculpation by the accomplice about his role in the commission of the offence. Unless there is some inculpation, the difference between an accomplice and an eye-witness gets blurred. The inculpation might be ever so slight, but the accomplice cannot paint himself totally as a protestor, as a victim, as an innocent person, and place the entire blame on the other co-accused persons for the commission of the crime. In case he were to do so, then he removes himself from the category of an accomplice and places himself as an eye-witness. 24. Mr. Bajwa has drawn our attention to Rajeshs statement recorded under Section 164, CrPC. His statement reads as under:-The incident is of the eleventh month. I was irrigating my fields. Ram Niwas came to me. He told me to accompany him as he could get me hired for a job. He said, “my buas (parental aunts) son has a machine, you could be hired for that.” Ram Niwas took me to Mahua and asked me to sit at the Bus Stop for Jaipur. As I sat, he searched the buses. I asked him “what are you looking for if we must go, then let us go immediately”. By the time we left