Radha Kushwaha v. State (NCT of Delhi)

14) Khalid made her call the deceased on 05.06.2017 and deceased agreed and said that he would come by

06.00 pm. (Para 10) Khalid made her call the deceased on 05.06.2012 and deceased agreed and said that he would come by

06.00 pm. (Para

10) The applicant made several calls to deceased on 06.06.2012 and he agreed and said that he would come by

06.00 pm. (Para

10) Khalid made her call to deceased and she called the deceased for about 12 times from 2.28 pm to

6.28 pm on Deceased agreed to come between 06.30-

7.00 pm. (Para

10) She called him 12 times from 2.28 pm to

6.28 pm on 06.06.12 and he agreed and told that he would be

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: 14.12.23 2nd Amended Amended Affidavit dt. 08.11.24 4th When Sanjay Rohilla started drinking with Khalid, Dinesh asked her to go to another room and locked it (Para 11) When Sanjay Rohilla started drinking with Khalid, Dinesh asked her to go to another room and locked it from outside. (Para 11) Rohilla started drinking with pushed her to second room and locked it from outside. (Para 11) Rohilla became semi conscious and lay on the Wooden platform, Khalid asked her to get her chunni and strangulated the deceased. Dinesh and Jeetu tied legs of deceased When Sanjay Rohilla became semi conscious and lay on the wooden platform, Khalid asked her to get her the deceased. coming by 6.30-

7.00 pm. (Para 14) with wire. (Para 11). When she shouted, she was pushed to the second room and locked from outside. (Para

12) Jeetu tied legs of deceased (Para 16). When she shouted, 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: 14.12.23 2nd Amended Amended Affidavit dt. 08.11.24 4th While locked in the room, she saw Jeetu coming with a white sack. He took out wire from the sack and tied it over the neck of deceased. (Para

12) When she was in locked room and was shouting, the accused persons did everything in front of her daughter. Khalid repeatedly placed knife on her daughter’s neck and made gestures as if he was cutting her neck. (Para 13) While locked in the room, she saw Jeetu coming with a white sack. He took out wire from the sack and tied it over the neck of deceased. (Para

12) When she was in locked room and was shouting, the accused persons did everything in front of her daughter. Khalid placed knife on her neck and made gestures as if he was cutting her neck. (Para

13) On seeing this, she fainted and she when got up, Khalid and Jeetu were not in the room but Dinesh was sitting in the room with her daughter. (Para

14) At about 4.00 am, when deceased. (Para

12) When she was in locked room and was accused persons did daughter. Khalid placed knife on her daughter’s he was cutting her neck. (Para

13) On seeing this, she fainted and she when got up, Jeetu were not in the room but Dinesh was sitting in the room with her daughter. (Para 14) At about 4.00 am on 07.06.2012, when Khalid deceased. (Para

12) Mohd. Khalid had cut both hands of deceased from elbow with knife and Dinesh assisted him. Then Mohd. Khalid had cut both legs of deceased with assistance of Dinesh. Jeetu put cello tape on points of body to stop blood flow. Then Mohd. Dinesh cut the neck of deceased. They tried to cut the main part of the body but could not do so as intestine came out. (Para 14) When she was in locked room When deceased back semi conscious after drinking beer and lay down on wooden platform, Mohd. Khalid asked her to get the the deceased. Jeetu had tied legs of deceased (Para 16) Mohd. Khalid had cut both hands of deceased from elbow with knife and Dinesh assisted him. Then Mohd. Khalid had cut both legs of deceased with assistance of Dinesh. Jeetu put cello tape On seeing this, she fainted and she when got up, Khalid and Jeetu were not in the room but Dinesh was sitting in the room with her daughter. (Para

14) At about

4.00 am, when Jeetu came back, they had some polythene bag with them. Khalid, Dinesh and Jeetu locked her and her daughter in a room. (Para

15) When in the morning at around

9.00 am, the other accused opened Jeetu came back, they had some polythene bag with them. and Jeetu locked her and her daughter in a room. (Para 15) When in the around 9.30 am, the other accused 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) and Jeetu came back, they had some polythene bag with them. and Jeetu locked her and a room. (Para 15) When in the around 9.30 am, the other accused opened the door, she saw Rohilla sir was cut into six parts and his head was covered with tape. She saw (Para 16) and was accused daughter. Khalid placed knife on her daughter’s he was cutting her neck. (Para 13) on points of body to stop blood flow. Then Mohd. Dinesh cut the neck of deceased. They tried to cut the main part of the body but could not do so as intestine came out. (Para

14) When she was in locked room and was shouting, the accused in front of her daughter. Khalid placed knife on her neck and made gestures as if he was cutting her neck. (Para

18) the door, she saw Rohilla sir was cut into six parts and his head was covered with tape. She saw (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: 14.12.23 Amended Amended 08.11.24 2nd application alongwith 3rd alongwith 4th When body odor started coming out, Jeetu said that they would be caught and Khalid wrapped all these pieces. After wrapping those pieces, he put them in the loader and threatened the applicant to come with him and forcibly took her and her daughter in the same loader. (Para 17) When body odor started coming out, Jeetu said that they would be Khalid wrapped all these pieces. After wrapping those pieces, he put them in the loader and threatened the applicant to come with him and forcibly took her and her daughter in the same loader. (Para 17) When body Khalid the same loader. (Para 17) When body Khalid the same loader. (Para 14) After wrapping all the body pieces of deceased, Jeetu left the place of incident. Khalid locked all the rooms of premises i.e. B- 12, Phase-I, Shyam Vihar, New Delhi and thereafter took the applicant and her daughter with him in the loader. (Para 21 & 22)

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:

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 coaccused 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

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 selfserving 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 & Ors[4], 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: -

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