Judgment

CHANDRACHUD, J.:- Eight persons were put up for trial before the learned Additional Sessions Judge, Cuttack, on the charge that at about 8 p.m. on October 17, 1965. They had committed the murder of one Siba Prusty. The appellant and one other accused were charged under Section 302. Penal Code, simpliciter and they were also charged along with others under Section 302 read with Section 34 of the Penal Code,. Accused No. 6. Ratnakar Prusti, was granted pardon after the evidence of as many as 31 witnesses was recorded and he was examined as an approver. The learned Judge acquitted all of the accused and in an appeal filed by the State of Orissa that order was confirmed by the High Court of Orissa except in regard to the appellant who has been convicted under Section 302 of the Penal Code and has been sentenced to imprisonment for life. The appellant challenges the correctness of his conviction in this appeal by special leave.

2. On the evening of October 17, 1965, the deceased Siba Prusty and Ghanshyam Ojha (P. W. 1) were returning to their village from a place called Baitarani Road. They were riding on their bicycles, the deceased being a little ahead of Ghanshyam. When they reached the Depada culvert, the appellant is alleged to have stopped the bicycle of the deceased and after the deceased got down the appellant is alleged to have dealt a heavy blow on his head with a lathi, Ghanshyam saw the assault but being terrified turned back and fled away. The First Information Report was lodged at the Korai police station the next evening at about 4-30 p.m.

3. The appellant and the other accused contended that they were implicated in the offence falsely on account of enmity between them and the rival faction of which Ghanshyam was a member.

4. The prosecution examined a large number of witnesses in order to connect the accused with the crime but eventually the case depended for its success on the evidence of Ghanshyam Ojha and the approver, Ratnakar Prusti. Both of these witnesses were disbelieved by the learned trial Judge and that led to the acquittal of all the accused. The High Court was apparently not impressed by the evidence of the approver but differing from the trial Court in regard to the assessment of Ghanshyam s testimony it has taken the view that it would be safe to base the conviction on that testimony.

5. In regard to the evidence of the approver the High Court has held that there was "some divergence in many material aspects of this incident between the evidence of P. W. 1 and that of the approver" and that "the approver s evidence in its material particulars is irreconcilable with that of P. W. 1". The evidence of the two witnesses being irreconcilable, the High Court, obviously, could not believe both the witnesses and had to make its choice between them. The choice, perhaps, was rightly made because in the circumstances of the case no reliance could be placed on the evidence of the approver.

6. The approver was tendered pardon at a very late stage of the trial, that is, after 31 witnesses were examined. Those witnesses were cross-examined on behalf of the approver and he had the dubious privilege of being able to hear closely almost the entire evidence led by the prosecution. The High Court has observed with plausibility that the prosecution has laid itself open to the criticism that pardon was tendered to one of the accused at the fag-end of the trial in an effort to fill up the lacunae in its case.

7. Thus the evidence of the approver has been concurrently discarded by the trial Court and the High Court. That evidence need not therefore detain us though we would like to add that we have examined it independently and have found the approver an unworthy witness. An interesting sidelight of the approver s evidence is that he put up the pretence that he was not aware that even if he honoured the terms of the pardon granted to him he could save himself from the prosecution. He also added that he did not understan