JUDGMENT

FAZAL ALI, J.:—This appeal by special leave is directed against the judgment of the Bombay High Court dated 30th April, 1975 dismissing the appeal filed by the appellant before the High Court in limine. Mr. Bhasme appearing in support of the appeal has raised a short point before us. He contended that the Sessions Judge has disbelieved the fundamental part of the prosecution story because the witnesses examined to prove the charge against the appellant refused to support the prosecution and were declared hostile as having been gained over. The conviction is founded on the single testimony of P. W. Badada, a constable who is alleged to have seen the accused attacking the victim Namdeo with a sword near the Chhaya Talkies. At the outset we would like to observe that there were so many infirmities in the prosecution case that this was not at all a fit case which should have been summarily dismissed by the High Court so as to deprive the appellant of the right of appeal. The case involved arguable points and the evidence itself prima facie was full of contradictions. Hence, the matter undoubtedly required further investigation. It will, however, be futile now to send the case back to the High Court because four years have passed since and as the entire case rests on the evidence of P. W. Badada, we have decided to enter into merits of the case and we have gone through the evidence of P. W. Badada and we are clearly of the opinion that he is not a reliable witness. To begin with Badada has stated that on 8-5-1975 at about 11.45 p.m. he heard shouts near the Chhaya Talkies regarding the mara-mari (scuffle). Thereupon, he along with Kulkarni set out towards Chhaya Talkies on bicycles. Although the witness was fully aware that some sort of altercation was going on there, he neither made any entry in the Police Chowki to which he was attached nor did he care to take any weapon not even a stick to protect himself or to arrest the assailants. In cross-examination the witness admits that he learnt about occurrence at about 11.45 p.m. which is the actual time when the occurrence took place. It is, therefore, obvious that by the time he reached Chhaya Talkies the assault must have been over in all probability. Having realized this the constable has put a different story in cross-examination that the accused Yasin reached the electric pole and was ahead of the witness by 20 to 25 feet. Yasin after assaulting the victim turned back and started running in the direction in which the witness was coming. This statement has obviously been made to make him a competent witness to identify the appellant. He further admits that to theside of Municipal Dispensary there was neither crowd nor mara-mari. It is not understandable why after assaulting the victim with a sword, the accused, did not try to run away towards the Municipal Dispensary in which case he could have completely escaped. Secondly, even assuming that the witness saw the murderous assault on the victim, he did not care either to go to the house of the appellant and arrest him nor did he even approach Namdeo, the victim, to find out who was his assailant and under what circumstances he was assaulted. He further admits that he did not take any steps so as to send namdeo to the hospital. It also appears that he made no entry in the Chowki mentioning the fact that he had gone to the Chhaya Talkies and saw a criminal offence being committed in his presence. Finally, the witness says that on 9-5-1975 he narrated the entire incident to Inspector Parab, P. W. 18. But P. W. 18 in his evidence does not say that the witness had narrated the incident to him. For these reasons therefore, we are satisfied that the evidence of this witness is wholly unworthy of credence. Mr. V. S. Desai appearing for the respondent submitted that it appears that the same of the appellant came to light immediately when the victim was taken to the Hospital and the Doctor was told by Godabai, P. W. 8 and the appel