IMPORTANT POINT
Evidence of accomplice ought not to be acted upon unless it is corroborated against the particular accused, in material respects & corroborative evidence must be such which shows or tends to show that story as told by accomplice accused, committed the crime.

JUDGMENT

V.D. Gyani, J. -This appeal arises out of judgment dated 3-4-1993 delivered by Sessions Judge, Lakhimpur in Sessions Case No.7 of 1990 thereby holding the appellant guilty of offence punishable u/s 302 IPC and sentencing him to undergo imprisonment for life With fine of Rs. 50001- or in default of payment of fine to suffer one year Rigorous Imprisonment. Aggrieved by the same the accused-appellant has preferred this appeal from jail since he was under presented by Mr. P. Khatoniar who was appointed as Amicus Curiae. He has accordingly appeared and made his submissions.

We have also heard learned Public Prosecutor appearing for the respondent-State.

2. The prosecution case stated in brief was that on 18th July, 1984 around 10-30 p.m. Smt. Rupa Saikia assaulted one Prafulla Dutta with a 'Mit-Dao'. She had straightway gone Jo the Police Station along With the weapon of attack and herself lodged a report to that effect. The General Diary Entry No. 620 was made by the Police and a case u/s 302 IPC was registered and taken under investigation, P.W. 7 (Sub-Inspector of Police, Sri L.B Chetry) was not examined by the prosecution who visited the place of occurrence and prepared inquest report. The dead body was forwarded for post-mortem examination. On completion of investigation initially Rupa Saikia was charged and tried for the above offence. She was eventually acquitted by the Trial Court vide judgment dated 3-4-1993. Subsequently, the present accused-appellant was charged and tried for the same offence as already noted above. He has been found guilty by the Trial Court, At this trial the acquitted accused Rupa Saikia was examined as P.W.8. It was at

this trial that the accused-appellant has been found guilty of the offence charged by the Trial Court1 solely on the basis of the evidence of Smt.Rupa Saikia P.W. 8. Aggrieved by the same he has now preferred this appeal.

3. Heard learned Amicus Curiae who has raised the following points for consideration in this appeal:

That the trial was palpably wrong in allowing the evidence of acquitted accused Smt. Rupa Saikia although she was not a listed witness and had been tried the same, offence, but eventually acquitted and thereafter produced for witness. This novel procedure adopted by the prosecution has been strongly attacked by the Amicus Curiae.

That there is absolutely no reliable legal evidence available on record to sustain appellant's conviction.

The charge as framed was not only defective but highly prejudicial to the accused in his defence and has resulted in gross miscarriage of justice. The examination of the accused under Section 313 Cr. P.C. was an apol for such an examination defeating the very object of Section 313 Cr. P.C.

4. Mr. J. Singh learned Public Prosecutor appearing for the respondent State has fairly conceded that the trial Court has failed to apply the test of accomplice evidence to the facts of the instant case and has also not supported the mode and manner in which the accused was examined u/s 313 Cr. P.C.

5. Before proceeding any further to deal with the points as raised by the learned Amicus Curiae, it would be pertinent to note that Smt. Rupa Saikia was in fact an accused and not mere accomplice having faced a regular trial, she was acquitted by the Trial Court of the same offence and thereafter she was produced as a witness by the prosecution. It is not a case of tendering pardon to accomplice as contemplated by Section 306 of the Code of Criminal Procedure. Even her trial was not the result of contravening the condition of pardon as, provided u/s 308 Cr. P.C. The Trial Court has missed this provision. It appears that both the prosecuting agency as well as Trial Court were labouring under a total misconception of law in facing of the situation. If the prosecution had no other evidence except that of Smt. Rupa Saiki and was desirous to examine her as a witness, the only course known to law, that was open to prosecution was recourse to Section 306 a